author: VANDE WALLE, Chief Justice.

text:
    2007 ND 202
    Susan G. NAGEL, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Sykes Enterprises, Inc., Respondent.
    No. 20070120.
    Supreme Court of North Dakota.
    Dec. 19, 2007.
    Rehearing Denied Jan. 28, 2008.

      John J. Gosbee, Gosbee Law Office, Mandan, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Susan Nagel appealed from a district court judgment affirming an order of Workforce Safety & Insurance (“WSI”) denying Nagel benefits for claims from 1999, 2000 and 2002. We conclude WSI correctly applied the statute of limitations to Nagel’s 1999 and 2000 injuries and the weight of the evidence in the record supports the district court’s determination that Nagel did not meet her burden of proving a compensable dental injury for the 2002 claim. We affirm the district court judgment.

I.

[¶2] In February 2002, Nagel filed a claim with WSI seeking benefits for injuries resulting from an alleged fall in January 2002 at her workplace, Sykes Enterprises, Inc. (“Sykes”). Nagel claimed several injuries resulted, including injury to her teeth. WSI denied benefits in May 2002 and issued an Order of Dismissal in September 2002. Specifically, WSI determined there was insufficient evidence indicating Nagel’s dental injuries were caused by the alleged work injury.

[¶ 3] In October 2003, WSI agreed to pay for a shoulder injury resulting from the 2002 fall but continued to deny liability for Nagel’s teeth. WSI cited the opinion of Dr. Philip Iero, who saw Nagel in April 2002, in determining Nagel failed to prove compensability of her dental injuries. Dr. Iero said fractures to Nagel’s teeth most likely occurred on teeth compromised by rampant decay and multiple existing abscesses. He also said it was impossible to tell whether Nagel’s teeth fractured because of the abscesses or from another cause.

[¶ 4] Nagel subsequently alleged most of her dental injuries resulted from two falls at Sykes in 1999 and 2000. She stated a fall in November or December of 1999 damaged numerous teeth and a later fall in January 2000 injured another tooth. Na-gel claimed the 2002 fall injured one tooth as well. WSI issued an Amended Order in May 2003, rejecting the 1999 and 2000 injuries because Nagel failed to file her claim within one year after those injuries, in accordance with N.D.C.C. § 65-05-01. Nagel requested a hearing by an administrative law judge (“ALJ”) on whether she was entitled to benefits for her teeth and whether her 1999 and 2000 injuries were time-barred.

[¶ 5] At a hearing in October 2004, Na-gel argued she did not file a claim for benefits in 1999 and 2000 because her employer told her WSI did not cover dental injuries. She stated she sought medical treatment after the January 2000 fall but again did not file a claim with WSI. Nagel testified in detail about the effect of the falls on her teeth. Her family and friends testified to the condition of Nagel’s teeth before and after her falls in 1999, 2000 and 2002.

[¶ 6] The ALJ decided Nagel failed to timely file a claim for her 1999 and 2000 injuries after finding out from WSI’s 2002 denial that dental injuries are covered. The ALJ also determined, even if the statute of limitations did not apply to those injuries, Nagel did not meet her burden of proving she was entitled to benefits for her teeth regarding the 1999, 2000 and 2002 claims. In an order dated December 22, 2004, WSI adopted the ALJ’s findings and affirmed its previous order denying benefits to Nagel for her teeth.

[¶ 7] Nagel appealed WSI’s final order to the district court, raising issues regarding Sykes’ history of failing to forward injury claims to WSI and providing inaccurate information to Nagel. Nagel also requested to reopen the record to examine certain dental records she contended were forged. The district court remanded to WSI to allow Nagel to pursue discovery from Sykes regarding inaccurate information provided to Nagel and Sykes’ failure to provide WSI with proper forms. The district court also ordered that Nagel be allowed to present evidence on contested dental records.

[¶ 8] Subsequently, Nagel requested incident forms from Sykes, pertaining not only to herself but to other employees. Sykes provided forms with employees’ names redacted and the ALJ ruled un-redacted forms were beyond the scope of discovery. At the hearing on February 15, 2006, Chief of Police Dennis Rohr testified it was highly probable Nagel’s signature was forged on a certain medical record. Nagel also stated it was not her signature on the record. The ALJ concluded the evidence presented on remand did not require any changes to the relevant findings of fact and conclusions of law contained in WSI’s final order. In February 2007, the district court affirmed the findings of the ALJ and WSI’s final order.

[¶ 9] Nagel argues WSI should not apply the statute of limitations if an employer misled an employee to believe a work injury was not covered or if the employer failed to file the first report of notice of injury with WSI. She also argues an employee can provide objective medical evidence under N.D.C.C. § 65-01-02(10) and an employer that initially questions an employee’s claim is a party to the action for purposes of discovery rules. Finally, Na-gel argues she met her burden of proving a compensable injury.

II.

[¶ 10] On appeal from the district court, we review the decision of the administrative agency in the same manner the district court reviewed the decision of the agency, giving respect to the analysis of the review by the district court. Swenson v. Workforce Safety & Insurance Fund, 2007 ND 149, ¶ 21, 738 N.W.2d 892 (citations omitted). We must affirm the order of an administrative agency unless one of the following are present:

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

N.D.C.C. § 28-32-46. We exercise restraint in deciding whether WSI’s findings of fact are supported by a preponderance of the evidence and do not make independent findings or substitute our judgment for that of WSI. Swenson, at ¶ 22. Rather, we determine only whether a reasoning mind reasonably could have decided WSI’s findings were proven by the weight of the evidence from the entire record. Id. However, questions of law are fully reviewable on appeal. Id.

A.

[¶ 11] Nagel argues WSI should be estopped from applying the statute of limitations to her 1999 and 2000 injuries because of Sykes’ misrepresentations regarding WSI’s coverage of dental injuries. No benefits are allowed if a claimant fails to file a written claim within a year after the injury. N.D.C.C. § 65-05-01. The date of injury is “the first date that a reasonable person knew or should have known that the employee suffered a work-related injury and has either lost wages because of a resulting disability or received medical treatment.” Id.

[¶ 12] Equitable estoppel may be applied to bar an assertion that a claim was untimely under N.D.C.C. § 65-05-01. Linnertz v. N.D. Worker’s Comp. Bureau, 502 N.W.2d 528, 530 (N.D.1993). A familiar defense to the bar of late claims is that the lateness resulted from an employer’s assurances, misrepresentations, negligence, or even deliberate deceptions. Id. at 531 (quoting 2B Arthur Larson, The Law of Workmen’s Compensation, § 78.45 (1993)). An employer’s misleading statements need not be purposely deceptive to estop the employer from relying on a statutory time bar against its injured employee’s claim for workers compensation benefits. Linnertz, at 532. “[I]t is reasonable for an employee to rely on the employer’s presumably greater knowledge of such matters.” Id. (citation omitted). If WSI is estopped from applying the statute of limitations because an employer’s willful conduct prevented an injured employee from filing a timely claim, the employer must reimburse WSI for all benefits paid in the first five years of the claim. N.D.C.C. § 65-05-01.

[¶ 13] An employer may eliminate the tolling of the statute of limitations by clearly notifying the employee of the necessity of filing a claim for workers’ compensation benefits within the statutory period. Linnertz, at 534 (citing Jaeger v. Stauffer Chem. Co., 198 Mont. 263, 645 P.2d 942, 946 (1982)). This Court has noted, however, “that in certain situations, such as a relapse of a condition caused by a work-related injury, the notifying event for the injured worker might be the disal-lowance of his workers compensation claim following relapse....” Id. at 534 n. 2.

[¶ 14] Even if we were to assume Sykes misinformed Nagel of the compens-ability of her dental injuries in 1999 or 2000, there was a notifying event when Nagel received WSI’s decision dated May 17, 2002, to deny benefits for dental injuries for her 2002 claim. However, Nagel did not file a claim for either the 1999 or 2000 injuries after discovering in May of 2002 that WSI covered dental injuries. Therefore, we hold the 1999 and 2000 injuries are barred as Nagel failed to file a claim for these injuries after the notifying event in May of 2002, which ended the tolling of the statute of limitations for these injuries.

B.

[¶ 15] Nagel argues no reasoning mind reasonably could have concluded she did not sustain a compensable injury in her fall at Sykes in 2002 based on her testimony. “It is within the Bureau’s province to weigh the credibility of the evidence presented.” Grotte v. N.D. Workers’ Comp. Bureau, 489 N.W.2d 875, 878 (N.D.1992). Based on Dr. Iero’s statements, as well as the lack of medical documentation to support Nagel’s claim, we hold a reasoning mind reasonably could conclude Nagel did not sustain a compen-sable dental injury in her fall at Sykes in 2002.

[¶ 16] In light of our holding, the other issues raised by Nagel need not be addressed.

[¶ 17] We conclude WSI correctly applied the statute of limitations to Nagel’s 1999 and 2000 injuries and the weight of the evidence in the record supports the district court’s determination that Nagel did not meet her burden of proving a compensable dental injury for the 2002 claim. We affirm the district court judgment.

[¶ 18] SONJA CLAPP, D.J., and CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

[¶ 19] The Honorable SONJA CLAPP, D.J., sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2007 ND 203
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Samuel S. JOHNSON, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Samuel S. Johnson, Respondent.
    Nos. 20070107, 20070108.
    Supreme Court of North Dakota.
    Dec. 19, 2007.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Ronald H. McLean (argued), and Joseph A. Wetch, Jr. (on brief), Serkland Law Firm, Fargo, N.D., for respondent.
   SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] Samuel S. Johnson and Disciplinary Counsel petitioned this Court for review of a hearing panel’s report and recommendation of suspension. We conclude there is clear and convincing evidence Johnson violated N.D.R. Prof. Conduct 3.3, 4.1, 4.4, 8.1, and 8.4, and N.D.R. Lawyer Discipl. 1.2(A), and we order Johnson be suspended for 60 days and pay the costs of the disciplinary proceeding in the amount of $8,670.36.

I

[¶ 2] Johnson was admitted to practice law in North Dakota on November 9, 1989, and was practicing law in Wahpeton during the time relevant to this case. The Disciplinary Counsel alleges Johnson violated the disciplinary rules in two separate incidents. The first incident involves a letter Johnson sent to Roger Gibbon in response to Gibbon’s attempts to collect witness fees Johnson owed. The second incident involves statements Johnson made to the district court while representing Wesley Bladow in a divorce proceeding.

A

[¶ 3] In 2003, Johnson subpoenaed Roger Gibbon and Gibbon’s father for depositions in a divorce case. Johnson sent checks to Gibbon and his father to cover fees for one day’s attendance and mileage and travel expenses as required under N.D.R.Civ.P. 45. Gibbon and his father traveled to Wahpeton for the depositions, but because of settlement negotiations in the case, the depositions did not occur. Johnson stopped payment on the checks.

[¶ 4] Gibbon filed a complaint with the Disciplinary Board, and Johnson received an April 2, 2004, admonition from the Inquiry Committee Northeast:

The Committee found that Attorney Samuel S. Johnson violated Rule 3.4(C), RPC, knowingly disobey an obligation under the rules of a tribunal, in that he Johnson issued subpoenas to complainant and his father to travel to Johnson’s office in Wahpeton for a deposition in a civil case, along with which he served each with a check in the amount of $69.20, provided to the witnesses pursuant to the requirement of Rule 45, NDCivP, which requires that a subpoena for attendance must be accompanied by the tendering of fees for one day’s attendance and the mileage and travel expense. Complainant and his father traveled to Wahpeton pursuant to the subpoenas. Thereafter, Johnson stopped payment on the checks. Therefore, Attorney Samuel S. Johnson is hereby issued an ADMONITION by the Inquiry Committee Northeast.

Johnson appealed the admonition to the Disciplinary Board of the Supreme Court. On June 17, 2004, the Disciplinary Board approved the admonition, and Johnson was sent notice of the approval.

[¶ 5] After receiving the admonition, Johnson did not pay the witness and mileage fees. Gibbon sent Johnson invoices for his and his father’s witness fees. On October 13, 2004, Johnson sent Gibbon a letter in response to what Johnson called the “FRAUDULENT BILL,” which said:

You are hereby notified pursuant to the Federal Fair Debt Collections Act that you may no longer submit any documentation to me or my firm. Any future documentation submitted to me or my firm will be challenged will [sic] all civil or other alternatives available to me and my firm.
Please do not take this letter lightly, Mr. Gibbon. I have had quite enough of your harassment. You do not have the right to charge me.
Mr. Gibbon, you are entering an area within which you do not want to venture.
Accordingly, no further correspondence, including any billing, should be submitted to me or my firm by you, any representative on your behalf or your company.

[¶ 6] After receiving Johnson’s letter, Gibbon filed a second disciplinary complaint. Johnson paid Gibbon the mileage and witness fees after the second complaint was filed.

[¶ 7] Johnson testified at a hearing on the second complaint that he believed he did not owe Gibbon the witness and mileage fees and he believed the Fair Debt Collection Practices Act (“Act”), 15 U.S.C. § 1692, applied to this transaction. Johnson testified he researched the Act before sending the letter to Gibbon, and after the second disciplinary complaint was issued, he concluded there was a good-faith basis for asserting the Act applied to this transaction.

[¶ 8] The hearing panel found:

8. Johnson testified that he extensively researched the Federal Fair Debt Collections Act prior to sending the letter of October 13, 2004 and determined that there was a good faith basis for asserting that the Federal Fair Debt Collections Act applied to this transaction. Johnson’s testimony on that topic was not credible. There was no good faith basis for making that allegation. Further, the alleged good faith basis for asserting the application of the Federal Fair Debt Collections Act was developed by Johnson after his letter of October 13, 2004 was written and a disciplinary complaint was issued.
9. In the letter of October 13, 2004, Johnson made statements of fact and law that he knew to be untrue in that Johnson knowingly made false statements that the Federal Fair Debt Collections Act prohibited Gibbon from attempting to collect the amount of the checks upon which Johnson had stopped payment and that the amount claimed was not due.
10. The letter written by Johnson on October 13, 2004 had no substantial purpose other than to embarrass or burden a third person in that Johnson’s intention was to threaten and intimidate Gibbon in an effort to avoid payment of the witness and mileage fees that Johnson knew were due and owing to Gibbon and his father. Johnson had no basis for denying that the debt was owed.
11. Johnson was representing a client at the time that he wrote the letter dated October 13, 2004 to Gibbon in that the service of the Subpoenas and checks for witness and mileage fees arose out of Johnson’s representation of Lisa Gibbon in late 2002 and early 2003 and Johnson’s October 13, 2004 letter involved that representation.

The hearing panel concluded Johnson violated N.D.R. Prof. Conduct 4.1 and 4.4.

B

[¶ 9] Johnson represented Wesley Bla-dow in a divorce from Kristine Berg. A judgment was entered in the initial divorce proceeding in January 2003. In August 2003, Berg moved to amend the judgment to modify custody provisions and resolve issues about debt obligations.

[¶ 10] On several occasions before November 1, 2003, Bladow and Johnson discussed whether Berg would be willing to settle all pending issues in the re-opened divorce proceedings if Bladow would pay a lump sum of $20,000 to $25,000. Bladow did not have the financial means to pay or borrow that much money. On or before November 1, 2003, Johnson reviewed N.D.R. Prof. Conduct 1.8, which prohibits a lawyer from providing financial assistance to a client except “a lawyer may guarantee a loan ... provided that the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation.... ” N.D.R. Prof. Conduct 1.8(e). Johnson met with Bladow on November 1, 2003, and they agreed Johnson would guarantee a loan for Bla-dow in the amount of $25,000 if Berg would accept a lump sum payment to settle the pending' issues. Johnson prepared a document entitled “Agreement to Guarantee Loan,” which set out the terms and conditions under which Johnson would agree to guarantee a loan for Bladow. Johnson and Bladow signed the agreement on November 1, 2003. Johnson and Bla-dow agreed Bladow would sign a promissory note at Johnson’s bank and Johnson would guarantee the promissory note if Berg accepted the settlement offer. Although it was not included in the written agreement, Johnson and Bladow also agreed Johnson would make payments on the loan until Bladow was financially able to make the payments and repay Johnson.

[¶ 11] On November 17, 2003, Johnson sent a letter to Berg’s attorney proposing a settlement and advising the attorney that Johnson would advance Bladow money to pay Berg the proposed settlement. On December 1, 2003, Johnson sent Berg’s attorney another letter proposing a second settlement offer. The letter said, “[s]ince [Bladow] cannot afford to pay any significant sums of money to [Berg], I have agreed to advance [Bladow] some money to settle various issues in relation to this matter. In that regard, I would pay [Berg] the sum of $20,000.... ” Johnson did not disclose in either letter that Bla-dow would borrow the money and Johnson would guarantee the loan. Berg did not accept either offer. Bladow did not take out a loan at Johnson’s bank, and Johnson did not guarantee a loan for Bladow.

[¶ 12] During a January 2004 hearing on Berg’s motion to amend the divorce judgment, Berg offered the proposed settlement offers as evidence of Bladow’s ability to pay the amounts ordered in the initial judgment and the attorney fees for the current litigation. Johnson objected and said, “That was a Rule 408 settlement offer and that was an offer made by me, Judge and [sic] offer with respect to certain sums of money to be paid by me, not by Mr. Bladow, by me.” At a February 5, 2004, hearing, Bladow testified about the settlement offer:

Q: Isn’t it true that it’s your position that you owe your attorney $30,000.00 and you haven’t paid him a dime?
A: Yes.
Q: Yet he’s willing to pay on your behalf $20,000.00—
A. Pretty nice guy isn’t he.
Q: —is that true?
A: Yes.
Q: And that’s all coming out of his pocket?
A: I guess.

Bladow did not testify that he had planned to take out a loan and Johnson was going to guarantee the loan. In discussing Bla-dow’s failure to pay amounts ordered in the initial divorce judgment, the district court said:

[Bladow’s] explanation for nonpayment is that he did not have the money. He has offered extensive financial records to indicate his indebtedness, his net worth and the obligations that he has not been able to meet. [Berg] has countered this by saying that [Bladow], through his attorney, was willing to offer $20,000.00 in settlement of this matter if [Berg] would simply turn the children over to him. Apparently the money was going to be advanced by [Bladow’s] attorney. Whether this was a bluff, this Court has no way of knowing. It would certainly seem strange that an attorney already having extensive legal fees owing to him by [Bladow] would advance [Bladow] $20,000.00. To this Courts way of thinking, that type of conduct would border on champerty.

[¶ 13] Berg filed a complaint with the Disciplinary Board. In response to Berg’s complaint, Johnson’s attorney sent the Inquiry Committee Southeast a November 30, 2005, letter explaining the factual background and addressing whether Johnson violated N.D.R. Prof. Conduct 1.8, which prohibits providing financial assistance to a client. The letter claimed Johnson did not violate N.D.R. Prof. Conduct 1.8, because he agreed to guarantee a loan for Bladow, which is allowed under N.D.R. Prof. Conduct 1.8(e)(3) and is not a prohibited transaction. The letter said Bladow wanted to settle the pending issues in the divorce matter with Berg, but he did not have the financial means. The letter explained Johnson offered to guarantee a loan to allow Bladow to make a settlement offer and explained the terms and conditions of the loan guarantee agreement. The letter further explained that while Johnson used the words “agreed to advance” and “I will pay” in the settlement offers, he was actually advancing and paying out of the contemplated loan for which he would be the guarantor. The letter failed to disclose that Johnson and Bladow agreed Johnson would make all loan payments until Bla-dow was able to make the payments himself and repay Johnson.

[¶ 14] Disciplinary Counsel filed a formal petition for discipline, and a hearing was held. The hearing panel found Johnson knowingly made a false statement of fact to the district court when he said he personally made the settlement offer, because Johnson had already entered into an agreement to guarantee a loan for his client and he knew any money paid under the settlement offer would come from the loan. The hearing panel also found Johnson allowed his client to make false statements to the court without making an effort to clarify the misleading testimony when Bladow’s testimony suggested money paid under the settlement offer would come from Johnson, because Johnson knew the money would be borrowed by Bladow and Johnson would guarantee the loan. The hearing panel concluded Johnson violated N.D.R. Prof. Conduct 3.3 and 8.4 and N.D.R. Lawyer Discipl. 1.2(A) by making false statements to the court. The Disciplinary Counsel argued Johnson also violated N.D.R. Prof. Conduct 8.1 by not disclosing the entire agreement he made with Bladow to the Inquiry Committee in the November 30, 2005, letter, but the hearing panel did not make any findings about this allegation.

C

[¶ 15] The hearings in both disciplinary matters were held together, and the hearing panel issued one report. The hearing panel considered sanctions from reprimand to disbarment for all of Johnson’s violations, and recommended Johnson be suspended from the practice of law for 60 days and pay $8,670.36 in costs and expenses of the disciplinary proceeding.

D

[¶ 16] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Disciplinary Counsel and Johnson timely filed petitions for review under N.D.R. Lawyer Discipl. 3.1(F). This Court has jurisdiction under N.D. Const, art. VI, § 3, N.D.C.C. § 27-14-01, and N.D.R. Lawyer Discipl. 3.1(F).

II

[¶ 17] The standard of review for disciplinary proceedings is well established:

We review disciplinary proceedings de novo on the record. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere rubber stamp. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted.

Disciplinary Bd. v. Chinquist, 2006 ND 107, ¶ 7, 714 N.W.2d 469 (citations omitted). We give special deference to the hearing panel’s findings on matters of conflicting evidence because the hearing panel had the opportunity to hear the witnesses and observe their demeanor. Disciplinary Bd. v. Bullis, 2006 ND 228, ¶ 12, 723 N.W.2d 667.

Ill

[¶ 18] Johnson argues there is not clear and convincing evidence he violated N.D.R. Prof. Conduct 4.1 and 4.4 by sending the October 13, 2004, letter to Gibbon.

A

[¶ 19] Rule 4.1, N.D.R. Prof. Conduct provides, “[i]n the course of representing a client a lawyer shall not make a statement to a third person of fact or law that the lawyer knows to be false.” The rules of professional conduct define “knows” as “actual knowledge of the fact in question.” N.D.R. Prof. Conduct 1.0(g). Knowledge may be inferred by the person’s conduct in the circumstances. Id.

[¶ 20] The hearing panel found Johnson made false statements in his letter to Gibbon, including the statements that the Fair Debt Collection Practices Act applied and that the amount claimed was not due. Johnson claims the evidence does not support the hearing panel’s findings, because he had a good-faith belief the Act applied. Johnson testified he extensively researched the Act before he wrote the letter to Gibbon and after the disciplinary complaint was made, and on the basis of that research he believed the Act applied and he could stop Gibbon from contacting him to collect the debt. Johnson also testified he could not recall how much time he spent researching whether the Act applied before he wrote the letter to Gibbon.

[¶ 21] The Act states, “[i]f a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt,.... ” 15 U.S.C. § 1692c(c). The Act only applies to debt that is a consumer debt, which is an “obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes,.... ” 15 U.S.C. § 1692a(5). The Act generally does not apply when a creditor is attempting to collect its own debts; rather, the act only applies if the debt is being collected by a business whose principal purpose is to collect debts, or who regularly collects debts owed to another. 15 U.S.C. § 1692a(6); Volden v. Innovative Fin. Sys., Inc., 440 F.3d 947, 950-51 (8th Cir.2006).

[¶ 22] The hearing panel found Johnson’s testimony that he extensively researched the Act before sending the letter and decided there was a good-faith basis for claiming the act applied to the transaction was not credible. The hearing panel found Johnson did not have a good-faith basis for claiming the Act applied, and furthermore, Johnson’s alleged good-faith basis was not developed until after the letter was written and a disciplinary complaint was issued. We defer to the hearing panel’s findings on the credibility of a witness, because the hearing panel had the opportunity to observe the witness’s demeanor and hear the witness testify. See Bullis, 2006 ND 228, ¶ 12, 723 N.W.2d 667. The evidence supports the hearing panel’s findings, and we conclude Johnson knowingly made false claims that the Fair Debt Collection Practices Act prohibited Gibbon from contacting Johnson to collect the witness and mileage fees.

[¶ 23] Moreover, Johnson made a false statement in the letter to Gibbon when he claimed he did not owe the witness and mileage fees. Johnson’s letter referenced the “FRAUDULENT BILL” and said “[y]ou do not have the right to charge me.” Before writing the letter, Johnson had received an April 2, 2004, admonition from the Inquiry Committee for disobeying an obligation by stopping payment on the checks to Gibbon and Gibbon’s father. Johnson knew he owed the witness and mileage fees, and therefore his claim that the bill was fraudulent and Gibbon did not have the right to charge for the fees was false.

[¶ 24] We conclude there is clear and convincing evidence Johnson violated N.D.R. Prof. Conduct 4.1 by making false statements in his letter to Gibbon, including the statements that the Fair Debt Collection Practices Act prohibited Gibbon from contacting him to collect the witness and mileage fees and that he did not owe the fees.

B

[¶ 25] Rule 4.4, N.D.R. Prof. Conduct, provides, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or to embarrass or burden a third person, .... ” The hearing panel found Johnson’s letter to Gibbon had no substantial purpose other than to embarrass or burden Gibbon, because Johnson’s intent was to threaten Gibbon in an effort to avoid paying the witness and mileage fees he owed. The hearing panel also found Johnson was representing a client when he wrote the letter to Gibbon. Johnson argues there is not clear and convincing evidence he violated N.D.R. Prof. Conduct 4.4.

[¶ 26] Johnson claims he was not representing a client within the meaning of the rule when he wrote the letter, because the letter was written approximately twenty months after Gibbon was to be deposed and nineteen months after Johnson’s involvement in the underlying divorce case ended. But Johnson’s letter cannot be considered in a vacuum. Johnson’s obligation to pay Gibbon witness and mileage fees arose out of his representation of a client in a divorce matter, and the letter involved that representation. We conclude there is clear and convincing evidence to support the hearing panel’s finding that Johnson was representing a client when he sent the letter to Gibbon.

[¶ 27] Johnson contends he had a substantial purpose for writing the letter. Johnson claims the intent of the letter was not to threaten Gibbon, but to stop Gibbon from sending him more bills. Johnson had received an admonition for stopping payment of the checks before he sent the letter to Gibbon. Johnson knew he was required to pay the fees when he sent the letter claiming Gibbon did not have a right to charge him, threatening that any future documentation submitted to Johnson or his firm would be challenged, and warning “you are entering into an area within which you do not want to venture.” The only purpose Johnson’s letter served was to threaten and intimidate Gibbon to avoid payment of the witness and mileage fees Johnson knew he owed. We conclude there is clear and convincing evidence Johnson violated N.D.R. Prof. Conduct 4.4.

IV

[¶ 28] Johnson argues the hearing panel erred in finding he violated N.D.R. Prof. Conduct 3.3 and 8.4 and N.D.R. Lawyer Discipl. 1.2(A) by making false statements to the district court about the settlement offer in the Bladow divorce proceedings. The Disciplinary Counsel argues Johnson also violated N.D.R. Prof. Conduct 8.1 by not disclosing to the Inquiry Committee the entire agreement he made with Bla-dow. Johnson claims he did not violate the rules of professional conduct, and he was truthful and candid with the court and the Inquiry Committee at all times.

A

[¶ 29] Rule 3.3(a), N.D.R. Prof. Conduct, provides, “[a] lawyer shall not knowingly ... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]” Rule 8.4(f), N.D.R. Prof. Conduct, provides, “[i]t is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice,.... ” Rule 1.2(A)(3) and (8), N.D.R. Lawyer Discipl., provides:

A. Grounds for Discipline. A lawyer may be disciplined for the following misconduct:
(3) Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;
(8) Engaging in conduct prejudicial to the administration of justice, including willful violation of a valid order of the court or board imposing discipline, or willfully failing to respond to a lawful demand from a disciplinary authority, except that this rule does not require disclosure of information otherwise protected by applicable rules of privilege or confidentialityf.]

[¶ 30] This Court summarized the high duty of candor placed upon attorneys in Disciplinary Bd. v. Kaiser, 484 N.W.2d 102, 108 (N.D.1992) (citation omitted):

“Truth and candor are synonymous with justice, and honesty is an implicit characteristic of the legal profession.” ABA, The Judicial Response to Lawyer Misconduct, III.l, III.3 (1984). The primary function of our judicial system is to find the truth to reach a just conclusion. ... Our courts are almost “wholly dependent on members of the bar to marshal and present the true facts.... ”

In some circumstances, the failure to make a disclosure is the equivalent of an affirmative misrepresentation. N.D.R. Prof. Conduct 3.3, Comment.

[¶ 31] In Disciplinary Bd. v. Lamont, 1997 ND 63, ¶ 11, 561 N.W.2d 650, an attorney gave deceptive, misleading, and evasive testimony about whether his client was paying another person’s attorney’s fees and litigation expenses. The attorney testified he personally agreed to pay the fees and his client was not involved in the financial arrangement, but the documentary evidence showed the attorney had previously represented that his client had agreed to pay the fees with the bills going through the attorney’s office to disguise the payments. Id. We concluded the attorney’s testimony misrepresented the actual agreement and was deceptive and misleading, but did not affect the outcome of the trial and did not result in a benefit to the attorney or his client. Id. at ¶¶ 13, 20. We concluded the attorney violated N.D.R. Prof. Conduct 3.3 and N.D.R. Lawyer Dis-cipl. 1.2(A)(3), and we ordered he be suspended for sixty days. Id. at ¶¶ 16, 21.

[¶ 32] In this case, Johnson’s statements to the district court were also deceptive and misleading. The hearing panel found that on or before November 1, 2003, Johnson reviewed the provisions of N.D.R. Prof. Conduct 1.8, which prohibits an attorney from providing financial assistance to a client. Johnson agreed to guarantee a loan to Bladow for approximately $25,000, and Johnson and Bladow signed the agreement to guarantee the loan on November 1, 2003. On January 21, 2004, Johnson told the district court, “That was a Rule 408 settlement offer and that was an offer made by me, Judge and [sic] offer with respect to certain sums of money to be paid by me, not by Mr. Bladow, by me.” Bladow’s testimony, on February 5, 2004, suggested Johnson would pay the money for the settlement offer without disclosing the money would come from a loan Bladow would take out.

[¶ 33] The hearing panel found Johnson knowingly made a false statement of fact to the district court on January 21, 2004, by stating that the settlement offer was made by Johnson, personally, and not by his client when Johnson had already entered into an agreement to guarantee a loan to be taken out by his client and he knew that any money to be paid under the settlement offer was to come from the loan. The hearing panel further found Johnson allowed his client to make statements to the district court that Johnson knew were false without making an effort to clarify the false statements, when Bla-dow’s testimony suggested the settlement offer was being paid by Johnson and Johnson knew the money was to be borrowed by Bladow with Johnson guaranteeing the loan. The hearing panel concluded N.D.R. Prof. Conduct 3.3 and 8.4 and N.D.R. Lawyer Discipl. 1.2(A) were violated.

[¶ 34] After reviewing the record, we conclude the evidence supports the hearing panel’s findings and conclusions that Johnson knowingly made false statements to the district court. We conclude there is clear and convincing evidence Johnson violated N.D.R. Prof. Conduct 3.3 and 8.4 and N.D.R. Lawyer Discipl. 1.2(A).

B

[¶ 35] The Disciplinary Counsel argues Johnson also violated N.D.R. Prof. Conduct 8.1(a), which states a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter, when Johnson did not disclose the entire agreement with Bladow to the Inquiry Committee. The hearing panel did not address the Disciplinary Counsel’s claim.

[¶ 36] In Johnson’s November 30, 2005, written response to the informal complaint filed by Berg, Johnson specifically addressed whether he violated N.D.R. Prof. Conduct 1.8. The letter to the Inquiry Committee discussed the agreement between Johnson and Bladow, but failed to disclose Johnson would make all payments on the loan until Bladow was financially able to take over the payments and repay Johnson.

[¶ 37] Johnson did not disclose the entire settlement agreement to the Inquiry Committee, just as he did not disclose the entire settlement agreement to the district court. Johnson knowingly made false statements of material fact to the Inquiry Committee. We conclude there is clear and convincing evidence Johnson violated N.D.R. Prof. Conduct 8.1(a).

V

[¶ 38] The hearing panel recommended Johnson be suspended from the practice of law for sixty days and pay $8,670.36 in costs and expenses for the disciplinary proceeding. Johnson argues a reprimand would be a more appropriate sanction. Johnson claims he has recognized he “over identifies” with his clients’ causes, and he has been working with two psychologists and a consultant to change his behavior, to identify problems with his practice, and to help implement changes. Johnson also urges this Court to consider that he referred himself and has been accepted into the Lawyer Assistance Program for diversion from discipline under N.D.R. Lawyer Discipl. 6.6, and an individualized assistance plan has been developed. The Disciplinary Counsel urges this Court to suspend Johnson from the practice of law for a period of six months and one day, which would require Johnson to .prove his rehabilitation under N.D.R. Lawyer Dis-cipl. 4.5.

[¶ 39] For violations of duties owed to the public, N.D. Stds. Imposing Lawyer Sanctions 5.11 provides disbarment is generally appropriate when:

(a) a lawyer engages in serious conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.

Suspension is appropriate when “a lawyer knowingly engages in conduct which does not contain the elements listed in Standard 5.11 but that seriously adversely reflects on the lawyer’s fitness to practice.” N.D. Stds. Imposing1 Lawyer Sanctions 5.12. Reprimand is appropriate when “a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice.” N.D. Stds. Imposing Lawyer Sanctions 5.13.

[¶ 40] Johnson knowingly made false statements in his letter to Gibbon by claiming he did not owe the witness fees and the Fair Debt Collection Practices Act prohibited Gibbon from contacting him to collect the fees. Generally, a reprimand would be the appropriate sanction under N.D. Stds. Imposing Lawyer Sanctions 5.13, but the Standards for Imposing Lawyer Sanctions are flexible, and we may impose a greater sanction when there are aggravating circumstances. See N.D. Stds. Imposing Lawyer Sanctions 1.3 and 9.2. In this case, Johnson had already received an admonition for stopping payment of a check for the witness fees, and his acts were in defiance of the admonition. We conclude suspension is appropriate.

[¶ 41] In cases involving conduct that is prejudicial to the administration of justice or dishonesty, fraud, deceit, or misrepresentation to a court, suspension is appropriate for a violation of duties owed to the legal system when:

a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

N.D. Stds. Imposing Lawyer Sanctions 6.12. A reprimand is appropriate when “a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld,.... ” N.D. Stds. Imposing Lawyer Sanctions 6.13.

[¶ 42] Johnson knowingly made false statements to the district court when he said he personally made the settlement offer knowing that he had already entered into an agreement to guarantee a loan to be taken out by Bladow and that any money paid under the settlement offer would come from Bladow’s loan. Johnson also knew material information was being withheld when Bladow’s testimony suggested Johnson was personally making the settlement offer, and he failed to take any remedial action to clarify the testimony. Although Johnson’s misleading statements to the district court did not affect the actual outcome of the Bladow litigation, it was still a serious violation. See Lamont, 1997 ND 63, ¶¶ 19-20, 561 N.W.2d 650. “An attorney’s deliberate use of false testimony or falsified evidence in a judicial proceeding is antithetical to the oath, the standards, and the ideals of the legal profession.” Disciplinary Bd. v. McDonald, 2000 ND 87, ¶ 36, 609 N.W.2d 418. Johnson acted with knowledge, and therefore a suspension is the appropriate sanction.

[¶ 43] We may also consider whether there are any aggravating or mitigating factors when deciding what sanction to impose. N.D. Stds. Imposing Lawyer Sanctions 3.0. Aggravating factors include prior discipline, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. N.D. Stds. Imposing Lawyer Sanctions 9.2. Johnson has been practicing law for approximately eighteen years. Johnson has five prior disciplinary offenses from 1997 through 2004, including the admonition he received for stopping payment on the checks to Gibbon and Gibbon’s father. Johnson has refused to acknowledge that his conduct violated the disciplinary rules.

[¶ 44] We may also consider mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.3, including personal or emotional problems, interim rehabilitation, and character or reputation. Johnson testified he “over-identifies” with and seeks validation through his clients’ causes, but he has recognized that he needs to change and has worked to change his behavior. Johnson presented testimony from various individuals about his character and reputation. Johnson also requests we consider his participation in the Lawyer Assistance Program, and we agree that his participation in the program is appropriate.

[¶ 45] Under this Court’s standards for imposing discipline, we conclude suspension is the appropriate sanction for Johnson’s violations of the disciplinary rules.

VI

[¶ 46] We order that Johnson be suspended for a period of sixty days beginning January 21, 2008. We further order that Johnson pay the costs and expenses of the disciplinary proceeding in the amount of $8,670.36.

[¶ 47] GERALD W. VANDE WALLE, C.J., and JOHN C. McCLINTOCK, JR., D.J., and DALE V. SANDSTROM, DANIEL J. CROTHERS, and CAROL RON-NING KAPSNER, JJ„ concur.

[¶ 48] The Honorable JOHN C. McCLINTOCK, Jr., D.J., sitting in place of MAKING, J., disqualified.


text:
    2007 ND 204
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST TaLisa A. NEMEC, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. TaLisa A. Nemec, Respondent.
    No. 20070358.
    Supreme Court of North Dakota.
    Dec. 19, 2007.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On December 12, 2007, an Application for Order of Interim Suspension of TaLisa A. Nemec, a member of the Bar of North Dakota, was filed under N.D.R. Lawyer Discipl. 3.4. Nemec was admitted to practice law on October 3, 2005, and is currently licensed to practice law.

[¶ 2] The Application is supported with attached documentation, Affidavit of Steven M. Bertsch, and Affidavit of Brent J. Edison. The Application asserts that a complaint was filed against Nemec alleging she was retained to represent Ruth Sten-saker at a Social Security Disability hearing, but failed to communicate with her client and failed to appear at the hearing. The Application also asserts that Nemec responded to the complaint and admitted to failing to appear at the Social Security Disability hearing, but alleged physical and mental health issues as mitigating factors.

[¶ 3] The Application asserts that Nemec indicated a willingness to participate in the Lawyer Assistance Program, and disciplinary proceedings were stayed pending submission of an individualized assistance plan. The Application further asserts that Assistant Disciplinary Counsel has been informed Nemec has not signed a participation agreement with the Lawyer Assistance Program, and Assistant Disciplinary Counsel believes Nemec is not participating in the Lawyer Assistance Program as directed. The Application further asserts that Assistant Disciplinary Counsel has tried to reach Nemec, without success, to determine her participation in the Lawyer Assistance Program.

[¶ 4] In a supporting Affidavit, Steven M. Bertsch asserts that he hired Nemec to represent him on a denial of Social Security Disability benefits. Bertsch asserts that Nemec was late in filing documents and was difficult to contact; that Nemec did not return phone calls; and that Nem-ec moved without notifying him. Bertsch asserts that he cannot retain new counsel until Nemec withdraws and releases her rights as his attorney, which has not been accomplished because he has been unable to communicate with Nemec.

[¶ 5] In an Affidavit filed December 17, 2007, Assistant Disciplinary Counsel asserts that a letter sent to Nemec by certified mail was unclaimed and returned to Disciplinary Counsel’s office. Assistant Disciplinary Counsel asserts that upon receipt of the unclaimed letter he tried to contact Nemec by phone, but the voice message indicated Nemec was out for the Thanksgiving Holiday and would return Monday, November 26, 2007. The voice message also indicated the mailbox is full and cannot accept additional voice messages.

[¶ 6] Assistant Disciplinary Counsel asserts that the information provided is sufficient evidence to demonstrate that Nemec has violated N.D.R. Prof. Conduct 1.3 (Diligence), 1.4 (Communication), and that under N.D. Stds. Imposing Lawyer Sanctions 4.41(a), disbarment is generally appropriate when a lawyer abandons the practice and causes serious or potentially serious injury to a client, and under N.D. Stds. Imposing Lawyer Sanctions 4.41(c), disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client. The Court considered the matter, and

[¶ 7] ORDERED, under N.D.R. Lawyer Discipl. 3.4, TaLisa A. Nemec’s license to practice law in North Dakota is suspended effective immediately and until further order of this Court, pending final disposition of the disciplinary proceedings predicated upon the complaints filed.

[¶ 8] FURTHER ORDERED, that Disciplinary Counsel promptly apply to the district court for a professional trustee as provided in N.D.R. Lawyer Discipl. 6.4.

[¶ 9] FURTHER ORDERED, that Ta-Lisa A. Nemec comply with N.D.R. Lawyer Discipl. 6.3.

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


author: MILLER, Retired Justice.

text:
    2007 SD 128
    Ronald J. HOLECEK, Plaintiff and Appellant, v. Robert T. SUNDBY and Genae M. Warrington, and all persons unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises described herein, Defendants and Appellees.
    No. 24489.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 7, 2007.
    Decided Dec. 12, 2007.

      Stan H. Anker of Anker Law Group, P.C. Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Michael K. Sabers of Clayborne, Loos & Strommen, LLP Rapid City, South Dakota, Attorneys for defendants and appellees.
   MILLER, Retired Justice.

[¶ 1.] Ronald J. Holecek appeals the circuit court’s grant of summary judgment and denial to vacate the same. The circuit court determined that Holecek lacked standing to bring the lawsuit to quiet title over a property belonging to Robert T. Sundby and Ganae M. Warrington (hereinafter collectively referred to as Sundby). Additionally, the circuit court granted Sundby’s summary judgment motion on two other issues. We reverse in part and affirm in part.

FACTS

[¶ 2.] Holecek brought a quiet title action against Sundby regarding a strip of land located in Pennington County, South Dakota. Holecek’s deceased grandfather, Joseph J. Holecek, owned the contested land until 1959, when he deeded it to the City of Rapid City using a quit claim deed that contained the following language:

The above described property shall revert to the grantor if the same is not used for purposes of a public street or for purposes of a public utility right of way.

In 1990, after the City’s Common Council passed a resolution that determined the property was “no longer necessary for municipal purposes,” the City sold it to Patrick Vidal and Peter B. Hendricksen for private development. However, in the same resolution, the Common Council specifically reserved the City’s right to use the property as a utility right of way, a right reiterated in the conveying instrument.

[¶ 3.] Although for some reason the City’s original deed conveying its ownership interest in the contested land lacked reference to the express utility easement, the correction deed, issued forty-one days later, unequivocally expressed the reservation, stating: “the City of Rapid City hereby retains an easement under, over, through, and across the above referenced property for the purpose of maintaining a public street or maintaining, constructing, or operating, and repairing public utilities by itself or by an authorized franchisee.”

[¶ 4.] In 2006, Holecek became aware of the property and the reservation in his grandfather’s deed to the City. Later, after consulting legal counsel, Holecek drafted a letter to Sundby and the City expressing his alleged “superior ownership” in the land, and demanded that the “developer” and the City “cease and desist from trespassing upon the property.” (Emphasis omitted). The City’s response, sent to both Sundby and Holecek, expressed the need for litigation. Sundby did not respond to Holecek’s letter. Holecek then filed a complaint seeking to quiet title to the land.

[¶ 5.] Sundby responded to the complaint by filing a motion to dismiss, or in the alternative, a motion for summary judgment. At the motion hearing, Sundby presented three arguments: 1) Holecek failed to establish he was an heir, and therefore had no standing to sue; 2) the City’s reserved interest in and use of the property prevented reversion from taking place; and 3) the defense of laches. Hole-cek opposed the motion by submitting an affidavit to the court stating he was the grandson and heir of Joseph J. Holecek, the holder of the reversionary interest. The affidavit also asserted his promptness in pursuing this legal matter and his understanding that the property was not being used for “purposes of a public street or for purposes of a public utility right of way,” as required by his grandfather’s deed.

[¶ 6.] After the hearing, the circuit court granted the motion for summary judgment on Sundby’s first argument, i.e., that Holecek had no standing. The court opined that Holecek’s conclusory assertions that he was a grandson and heir of Joseph J. Holecek were insufficient to oppose the motion. Holecek later made a timely motion to vacate the summary judgment order under SDCL 15 — 6—60(b).

[¶ 7.] At the motion to vacate hearing, Holecek argued that he honestly believed his affidavit, asserting that he was a grandson and heir of Joseph J. Holecek, was sufficient evidence to survive the summary judgment motion. He also argued that this belief, even if incorrect, was an inadvertent mistake covered under SDCL 15-6-60(b)(l). Additionally, Holecek presented two separate prior judicial rulings that established him as an heir to his grandfather, Joseph J. Holecek. Finally, he argued that the lawsuit had merit and must be permitted to proceed.

[¶ 8.] Notwithstanding these and other arguments, the circuit court denied Hole-cek’s motion to vacate, stating: “The court finds there has been no showing of excusable neglect. Further there is no showing of a probable meritorious defense.” Subsequent to denying the motion to vacate, the court expanded its original disposition and proceeded to grant Sundby’s original summary judgment motion on other issues, ie., no evidence the City’s use triggered the reversion, and the affirmative defense of laches. Holecek appeals.

Standard of Review

The standard of review on a motion for summary judgment is well settled. In reviewing a grant of summary judgment:

“ ‘[W]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.’ “

Continental Grain Co. v. Heritage Bank, 1996 SD 61, ¶ 14, 548 N.W.2d 507, 511 (citations omitted).

[¶ 9.] 1. Whether the court erred in granting summary judgment for lack of standing.

[¶ 10.] In resistance to Sundby’s motion, Holecek filed a brief along with an affidavit signed by himself, stating he was the grandson and heir of Joseph J. Hole-cek. He also provided case law that permitted an heir to sue in the stead of a deceased relative. However, Holecek did not provide any other information that indicated he had a right to the reversionary interest. The court granted summary judgment on the standing issue, stating:

[Pjlaintiff has failed to assert his status as an heir other than the fact that Joe Holecek, in essence, was his grandfather .... We have nothing that establishes him as an heir or signee [sic] of his grandfather’s right. Further, we have no, for example, from the will or even that there is a will, that he would be an heir. There is no information that even if grandfather Joe Holecek’s estate passed to his son, the plaintiffs father, that he would be a beneficiary under his father’s estate.

[¶ 11.] The statutory language of SDCL 15 — 6—56(e) states that:

When a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial.

Holecek provided case law that would permit a relative to sue in the stead of a decedent, and argued that he was, in fact, the grandson and heir of the interested party’s estate. Further, he asserted that he was bringing the suit on behalf of himself and all other remaining heirs. The affidavit was executed with “personal knowledge” and “set forth such facts as would be admissible in evidence”; therefore, it was an appropriate form of affidavit supporting his opposition to the motion for summary judgment. Id. Moreover, the facts represented in the affidavit adequately raise a genuine issue of disputed fact. See Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (requiring “those resisting summary judgment [to] show that they will be able to place sufficient evidence in the record”) (citations omitted).

[¶ 12.] Thus, the grant of summary judgment based on standing was inappropriate and the circuit court erred in granting it.

[¶ 13.] 2. Whether the court erred in granting summary judgment on the issue of reversion.

[¶ 14.] Holecek next contends that the circuit court erred in granting summary judgment on the issue of reversion. In particular, he argues two points: 1) that the original deed merely granted an easement to the City, with no right to sell the property; and 2) by law the property reverted to his grandfather’s estate when the Common Council determined the land was “no longer necessary for municipal purposes.” We disagree with both contentions.

[¶ 15.] Holecek cites Tibbitts v. Anthem Holdings Corp., 2005 SD 26, ¶ 7, 694 N.W.2d 41, 44, for the proposition that the deed merely transferred an easement right over the property. In Tibbitts, we “stated that ‘[w]here the term ‘right of way’ is used in a deed it usually indicates that only an easement or right of passage is being conveyed or reserved.’ ” Id. (quoting Northwest Realty Co. v. Jacobs, 273 N.W.2d 141, 144 (S.D.1978)). However, in Tibbitts the instrument conveyed merely a right of way. Id. ¶¶ 5-6 (stating “[t]he original deeds to the County specifically state that the conveyances were for rights of way”). In contrast, here the deed granting the City an interest in the property conveyed a fee interest with a reservation limiting its use. Holecek’s grandfather conveyed the land with a quit claim deed. A quit claim deed statutorily “convey[s] to the grantee, his heirs and assigns, ... all right, title, and interest of the grantor in the premises described.” SDCL 43-25-8 (emphasis added). Therefore, the deed conveyed the City a fee simple interest.

[¶ 16.] However, use of the fee simple was subject to a conditional reservation. The quit claim deed required that the land be “used for purposes of a public street or for purposes of a public utility right of way." (Emphasis added). For the reservation clause to become effective, Holecek must establish the reversionary condition occurred. In this case, the City has always maintained “a reservation of utility easement” in the property. The City’s reserved right of a utility easement satisfies the conditional language. Moreover, the correction deed conveying the City’s interest to Vidal and Hendricksen stated:

[T]he City of Rapid City hereby retains an easement under, over, through, and across the above referenced property for the purpose of maintaining a public street or maintaining, constructing, operating and repairing public utilities by itself or by an authorized franchisee.

Additionally, Sundby’s affidavit stated that a public drainage easement has always existed on the property since Joseph J. Holecek conveyed it in 1959, and “[i]n 2005-2006 Sundbys/Scull Construction contacted several utility companies ... in regard to a number of lines located upon the property in accordance with the easement. Some lines were relocated by these [utility] companies in the summer of 2006 to accommodate the active building permit and will remain in accordance with the easement for public utility right-of-way.” Finally, Holecek failed to provide any evidence of the condition’s violation. Bordeaux, 2005 SD 117, ¶ 14, 707 N.W.2d at 127 (requiring a party resisting summary judgment to demonstrate its capacity to support each element “on which they have the burden of proof’) (citations omitted).

[¶ 17.] Holecek failed to establish the quit claim deed transferred anything less than fee simple title that was subject to a condition subsequent. Further, he has failed to proffer any evidence that the City has failed to use the property in the capacity required by the reservation. Therefore, the court’s grant of summary judgment on the issue of reservation was proper.

[¶ 18.] In view of our holding above, we need not address other issues raised.

[¶ 19.] Summary judgment for Sundby is affirmed.

[¶ 20.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, and HOFFMAN, Circuit Judge, concur.

[¶ 21.] MILLER, Retired Justice for SABERS, Justice, disqualified, and HOFFMAN, Circuit Judge for KONENKAMP, Justice, disqualified.


author: SABERS, Justice.

text:
    2007 SD 127
    Harold Fredrick BERGER, Plaintiff and Appellee, v. Lori VAN WINSEN, Defendant and Appellant.
    No. 24501.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 6, 2007.
    Decided Dec. 12, 2007.
    Rehearing Denied Jan. 22, 2008.
    Suzanne Dardis of Kinney & Dardis, LLP, Spearfish, South Dakota, Attorneys for plaintiff and appellee.
    Reed C. Richards of Richards and Richards, Deadwood, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Harold Berger petitioned for primary physical custody of his six-year-old son, Nolan. Lori Van Winsen contested Harold’s petition for custody, arguing she should have primary physical custody. After the circuit court awarded Harold primary physical custody of Nolan, Lori appealed. We affirm.

FACTS

[¶ 2.] Harold and Lori met in 1997, through a mutual friend, Grant Lawley. Lori was teaching in Newell, South Dakota and Harold lived and worked in White-wood, South Dakota. Harold and Lori dated casually, but at the end of her teaching year, Lori did not renew her contract. She moved back to Aberdeen, South Dakota, in part, to reconcile with a former boyfriend. When this reconciliation fell through, Lori became extremely depressed, attempted suicide and was hospitalized for several days.

[¶ 3.] Lori and Harold remained in contact and in September of 1999, Lori moved into Harold’s home in Whitewood, South Dakota. Eventually, Lori became pregnant and gave birth to their child, Nolan, who is the subject of this custody dispute. The couple never married and eventually, the relationship deteriorated. Lori suspected Harold of having an affair with one of his employees. Harold asked Lori to move out in the fall of 2005. Having no home, Lori left Nolan with Harold.

[¶ 4.] After the break-up, Lori again became depressed. She threatened to kill Harold and take Nolan away. She drove around during a blizzard, threatening to harm herself. Shortly thereafter, she checked herself into Rapid City Regional Hospital for treatment for her depression and suicidal thoughts.

[¶ 5.] After her stay in the hospital, Lori’s relatives took her to Watertown to recover. She wanted to take Nolan to Watertown for two weeks over Christmas. After Lori’s threats that she would take Nolan and never give him back, Harold was concerned that Lori would refuse to give Nolan back. Harold obtained legal advice and had a lawyer draft a stipulation that declared Harold was Nolan’s biological father and that Harold and Lori would have joint legal custody with primary physical custody with Harold. The stipulation also outlined visitation. Lori testified she had ample time to read the document and had time to obtain a lawyer, had she the money to hire one. Lori’s Aunt Brenda testified she offered to pay for an attorney. Without consulting an attorney, Lori signed the stipulation after requesting certain changes be made to the document.

[¶ 6.] In 2006, she moved back to western South Dakota, moving to Lead. At this time, Lori had visitation most weekends and Nolan was with Harold during the week. Lori became dissatisfied with this arrangement and in July of 2006, she initiated proceedings to change custody. She alleged Harold’s business kept him away until late at night, she could spend more quality time with Nolan than Harold and should be the primary caretaker.

[¶ 7.] In order to determine custody, the circuit court ordered a home study. As a part of the custody proceedings, Lori swore in an affidavit that “she had no boyfriend and could spend quality time with Nolan all during the week.” During the course of the proceedings it was discovered she became engaged to Justin Moore on September 16, 2006. Lori testified that when she signed the affidavit on July 13, 2006 she knew Moore, but had not started dating him officially until July 22, 2006. As a result of this new relationship, the home study was conducted in not only Lori’s and Harold’s homes in Lead and Whitewood, South Dakota, but also Moore’s home in Upton, Wyoming.

[¶ 8.] Dr. James Simpson conducted the home study. He found the home and environment provided by Harold to be much more stable than Lori’s home. Additionally, in Whitewood, Nolan lives in the only home he has known since birth. It is a small community that knows Nolan and his paternal grandparents and aunt live there. Nolan is very attached to his home and relatives. In contrast, Lori has only lived in Upton for a short time. Moore, his 12-year-old daughter, and Moore’s brother live in the community, but Lori and Nolan have no biological family there. Dr. Simpson noted that both parents are good, loving parents, but the instability in Lori’s life, with the depression, new home, new job, new relationship, made uprooting Nolan from the home and town he has known his entire life not conducive to Nolan’s welfare.

[¶ 9.] The circuit court heard testimony from Lori, Harold, Dr. Simpson and Lori’s and Harold’s families. It ordered that primary physical custody should remain with Harold. Lori appeals and raises the following issue:

Whether the circuit court abused its discretion when it determined primary physical custody of Nolan should remain with Harold.
STANDARD OF REVIEW
[¶ 10.] In custody disputes,
We review factual determinations under the clearly erroneous standard. Therkildsen v. Fisher Ben, 1996 SD 39, ¶ 8, 545 N.W.2d 834, 836; Lindquist v. Bisch, 1996 SD 4, ¶ 16, 542 N.W.2d 138, 141. Questions of law, including statutory construction, we decide without deference to the circuit court’s conclusions. West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶6, 549 N.W.2d 683, 685.

Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 16, 591 N.W.2d 798, 804. “Between parents adversely claiming custody, neither may be preferred over the other.” Id. ¶ 22 (citing SDCL 25-5-7). The circuit court “gaugefs] the credibility of the witnesses and ... weights] the significance of their testimony.” Id. (citing Kost v. Kost, 515 N.W.2d 209, 212 (S.D.1994) (additional citation omitted)). “Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion.” Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430 (quoting Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807).

[¶ 11.] Whether the circuit court abused its discretion when it determined primary physical custody of Nolan should remain with Harold.

[¶ 12.] The primary consideration in custody disputes is the best interest of the child. Id. In determining “which parent is better equipped to provide for the child’s ... welfare,” the circuit court may look at several factors, which include: “(1) parental fitness; (2) stability; (3) primary caretaker; (4) child’s preference; (5) harmful parental misconduct; (6) separation of siblings; and (7) substantial change in circumstances.” Id. ¶ 18.

[¶ 13.] The circuit court heard testimony from various witnesses and made findings of fact and conclusions of law. It noted both Lori and Harold were good parents. However, the circuit court noted that Nolan’s home environment with Harold “offers safety, stability and security” and Lori

Lori is unable to offer the same security and stability offered by [Harold]. She has experienced at least two failed, serious relationships and Mr. Moore is approaching his third marriage. Mr. Moore has lived in Upton less than a year, worked at his present employment for less than a year. They have live[d] together for approximately three months and Defendant has been in her present position for less than a month. If it be presumed, for purposes of this decision, that they will have a stable marriage, secure employment, will remain in Upton and that Mr. Moore’s daughter will remain there as well, there is still no measurable advantage for Nolan to move to his mother’s home.

[¶ 14.] A review of the record demonstrates the circuit court did not abuse its discretion when determining Harold should retain primary physical custody of Nolan. Lori claims that Harold owns a mechanic business and he works long hours and relies on his mother and sister to raise Nolan. She claims that her job in Gillette as a hotel manager only requires she work from 9 a.m. to 5 p.m. so she could take Nolan to school at 8 a.m. and be home by 5:45 p.m. so she could spend quality time with Nolan before he is in bed at 8 p.m.

[¶ 15.] Despite Lori’s claims, the evidence suggests Harold is just as capable and does spend as much, if not more time, than Lori could spend with Nolan if she had primary physical custody. He and other witnesses testified that he drops Nolan off at school almost every morning. Nolan is picked up from school by his grandmother or aunt and Harold picks up Nolan from their homes after work. There was no testimony, besides Lori’s, that Harold works until eight or nine at night on a regular basis. Dr. Simpson testified he did not get the impression that Harold works such late hours and Harold testified as much. Harold also testified that he has flexibility in owning his business and frequently takes a day off during the week when Nolan is out of school and spends the day with him. He also attends all school events. Finally, his shop is one block from his mother’s house so Nolan usually stops by the shop after school for ten to twenty minutes.

[¶ 16.] Ultimately, the circuit court heard and weighed the testimony and resolved any conflicts in the testimony in favor of Harold. Moreover, Dr. Simpson conducted a home study, which included interviews and tests with both Lori and Harold. He also interviewed Nolan and observed him in all three homes. Dr. Simpson interviewed and conducted psychological testing on Lori’s and Harold’s significant others. Simpson concluded, based in part on Lori’s instability that Nolan should remain within the continuity and comforting home life that he enjoys in Whitewood. He emphasized that Lori and Harold should work to encourage Nolan’s relationship with the other parent, to ensure Nolan feels comfortable and that it is okay to love and be close to both his parents. Simpson noted that Harold did a better job of encouraging and facilitating Lori’s relationship with Nolan. Based on this record, there is no showing that the circuit court abused its discretion.

[¶ 17.] Harold requests attorney’s fees for the appeal in the amount of $3,150.00. “To determine whether attorney fees are proper in domestic relation cases, we consider, ‘the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.’ ” Larson v. Larson, 2007 SD 47, ¶ 22, 733 N.W.2d 272, 278 (quoting Dejong v. Dejong, 2003 SD 77, ¶ 30, 666 N.W.2d 464, 471 (quoting Peter son v. Peterson, 434 N.W.2d 732, 738 (S.D.1989))). When we consider these factors as they relate to this case, we conclude that each party shall bear the responsibility for their own attorney’s fees.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Van Winsen and Moore planned to be and were married in July of 2007.

      . Lori also alleged that Harold did not supervise Nolan enough and the shop was too dangerous for Nolan. However, the testimony and Dr. Simpson's home study did not support these allegations.


text:
    2007 SD 129
    Thomas PELLEGRINO, Plaintiff and Appellant v. Doug LOEN, SD State Penitentiary Staff Attorney, and Douglas Weber, Warden, In their Individual and Official Capacities, Defendants and Appellees.
    No. 24490.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 6, 2007.
    Decided Dec. 12, 2007.
    Rehearing Denied Jan. 17, 2008.
    Thomas Pellegrino, Sioux Falls, pro se appellant.
    James E. Moore of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for ap-pellees.
   SABERS, Justice.

[¶ 1.] Thomas Pellegrino brought an action for a preliminary injunction, temporary restraining order and damages against Doug Loen, South Dakota State Penitentiary (SDSP) Staff Attorney, and Douglas Weber, Warden. He alleged Loen and Weber violated his right of access to the courts by refusing his request for over 2,000 photocopies, ostensibly needed for a petition of certiorari to the United States Supreme Court to review the denial of his state habeas corpus petition. The circuit court granted summary judgment in favor of Loen and Weber. Pellegrino appeals and we affirm.

FACTS

[¶2.] Pellegrino is an indigent inmate at the SDSP serving a life sentence for second degree murder. See State v. Pellegrino, 1998 SD 39, ¶ 7, 577 N.W.2d 590, 593. He has a history of filing numerous pleadings, motions and petitions in various courts. Since his incarceration in 1996, he has started twelve prisoner civil rights or habeas corpus lawsuits in the federal district court of South Dakota, has argued to the Eighth Circuit Court of Appeals twenty-three times and attempted to petition the United States Supreme Court for a writ of certiorari seven times. As a result of these multiple filings, the Eighth Circuit Court of Appeals determined that Pellegri-no could no longer file in forma pauperis in the federal court unless he is in imminent danger of serious physical injury. See Pellegrino v. Janklow, 113 Fed.Appx 730, 731-32, 2004 WL 2537588 (8th Cir Nov 10, 2004) (unpublished); see also Pellegrino v. Young, Civ. 01-4056 (DSD Mar. 13, 2001) (noting that Pellegrino is unable to file lawsuits in federal court without proving that he is in imminent danger of serious physical injury). Likewise, on January 10, 2005, the United States Supreme Court ordered its Clerk to reject “any further petitions in noncriminal matters from Pellegrino unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1.” See Brief of Appellees at App 109. Therefore, Pellegrino would no longer be granted in forma pauperis status; he would have to pay the docketing fee of $300 to file a petition for certiorari.

[¶ 3.] One of the many petitions Pelle-grino filed was a petition for writ of habeas corpus in 1999. This petition was denied. In 2004, Pellegrino again filed for a writ of habeas corpus. Again, this was denied and this Court denied the petition for a certificate of probable cause. Undeterred, Pelle-grino sent Justice Meierhenry a petition for writ of habeas corpus in April of 2005, which this Court denied. The subsequent petition for rehearing was denied as well. See Pellegrino v. Slykhuis, No. 23607 (June 27, 2005).

[¶ 4.] Pellegrino filed a petition for cer-tiorari with the United States Supreme Court from this Court’s denial of his writ of habeas corpus. As a part of the preparation and completion of his petition, Pelle-grino requested 2,619 free photocopies. This request was denied. Loen explained that since the United States Supreme Court has ordered Pellegrino to pay the docketing fee when filing a petition for certiorari in noncriminal matters, he would have to pay for the photocopies for his habeas petition as habeas is a civil proceeding.

[¶ 5.] He applied to Justice Clarence Thomas of the United States Supreme Court for an extension of time to file his petition for certiorari, which was granted. At the same time, Pellegrino filed a motion for in forma pauperis status for purpose of filing the motion for an extension, but this motion did not contain an application for informa pauperis status for the certio-rari petition. When the extension of time was granted, the order did not mention the informa pauperis status.

[¶ 6.] Pellegrino then requested 991 free photocopies from the SDSP. He showed Loen a copy of the order granting him an extension of time to file the petition. After contacting the United States Supreme Court Clerk’s office, Loen verified that the order merely granted an extension of time and Pellegrino was still subject to the January 10, 2005 order requiring him to pay the docketing fee in noncriminal cases. Pellegrino contends that this order granted him informa pau-peris status. However, Loen denied the request for free photocopies and Weber denied Pellegrino’s administrative request regarding the photocopies, with the understanding he was subject to the January 10, 2005 order.

[¶ 7.] This lawsuit originated on November 2, 2005, when Pellegrino sued Loen and Weber for impeding his access to courts. He requested a preliminary injunction and temporary restraining order that required the defendants to provide him with free photocopies and legal research materials. He later amended his complaint to request damages, alleging the denial of free photocopies prevented him from filing the petition for certiorari.

[¶ 8.] Pellegrino submitted his petition for certiorari on November 22, 2005. It was returned due to several problems. The United States Supreme Court gave him sixty days to fix the problems. On January 23, 2006, Pellegrino submitted the completed motion for in forma pauperis status and resubmitted his “skeletal” petition for certiorari. On February 2, 2006, the Supreme Court Clerk’s office informed him that it would not accept the petition due to the January 10, 2005 order and he would have to pay the $300 filing fee and conform to the requirements in Rule 33.1 for submitting a petition for certiorari.

[¶ 9.] Instead of paying the $300 fee and conforming his petition to the Rule 33.1 requirements, Pellegrino petitioned Justice Thomas of the United States Supreme Court for in forma pauperis status and permission to file his certiorari petition past the deadline. He claimed the January 10, 2005 order did not apply because his habeas petition was a criminal matter. The Supreme Court Clerk’s office rejected the motion.

[¶ 10.] On March 16, 2005, the circuit court denied the requested preliminary injunction and made findings of fact and conclusions of law. It found: 1) Pellegrino had no general right to free photocopies; 2) the United States Supreme Court order from January 10, 2005, denying informa pauperis status, was still in effect; 3) the habeas petition for certiorari was a noncriminal matter; and 4) Pellegrino could not show an injury because his inability to pay the $300 docketing fee, not the denial of free photocopies, prevented him from filing the certiorari petition.

[¶ 11.] A month later, Pellegrino sought a writ of mandamus from Justice Thomas. He requested an order that required the Supreme Court Clerk’s office to accept his certiorari petition. The Supreme Court Clerk’s office returned the petition for mandamus because of the January 10, 2005 order.

[¶ 12.] The defendants motioned for summary judgment. On February 20, 2007, the circuit court held a hearing. The circuit court granted the defendants’ motion for summary judgment on the basis that the United States Supreme Court refused to accept the petition due to its January 10, 2005 order; therefore, Pelle-grino could not show he had been injured by the defendants. Pellegrino appeals and we restate the issue as:

Whether Loen and Weber denied Pelle-grino access to the courts by refusing to grant Pellegrino’s request for over 2,000 free photocopies.

STANDARD OF REVIEW

[¶ 13.] Our standard of review on summary judgment is well settled:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Wojewski v. Rapid City Reg’l Hosp., Inc., 2007 SD 33, ¶ 12, 730 N.W.2d 626, 631 (quoting Read v. McKennan Hosp., 2000 SD 66, ¶ 8, 610 N.W.2d 782, 784 (quoting Coffee Cup Fuel Stops & Convenience Stores, Inc., v. Donnelly, 1999 SD 46, ¶ 17, 592 N.W.2d 924, 926)).

[¶ 14.] Whether Loen and Weber denied Pellegrino access to the courts by refusing to grant Pellegrino’s request for over 2,000 free photocopies.

[¶ 15.] The crux of Pellegrino’s argument is that Loen and Weber denied his access to courts by refusing to grant his request for free photocopies in order to prepare and complete his petition for cer-tiorari for habeas review to the United States Supreme Court. While Pellegrino advances several wild theories involving the defendants conspiring with an assistant Clerk of the United States Supreme Court to get his petition rejected, the facts construed in the light most favorable to Pellegrino demonstrate there are no genuine issues of material fact and the circuit court correctly granted summary judgment.

Habeas is a civil remedy

[¶ 16.] Pellegrino argues that his habeas petition is a criminal matter and therefore, he is not subject to the Supreme Court’s January 10, 2005 order that denies him informa pauperis status for noncriminal matters. Accordingly, if a matter is noncriminal, Pellegrino must pay the $300 filing fee and conform his petition to the requirements set forth in Rule 33.1. .

[¶ 17.] Contrary to his assertions, this Court and the United States Supreme Court have held that habeas is a civil proceeding. See Woodford v. Ngo, 548 U.S. 81, -, 126 S.Ct. 2378, 2386, n. 2, 165 L.Ed.2d 368 (2006) (quoting Fay v. Noia, 372 U.S. 391, 423-24, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)); Jenner v. Dooley, 1999 SD 20, ¶ 13, 590 N.W.2d 463, 469; Sweeney v. Leapley, 487 N.W.2d 617, 618 (S.D.1992); Reutter v. Meierhenry, 405 N.W.2d 627, 630 (S.D.1987). Specifically, “[h]abeas corpus [is] an original ... civil remedy for the enforcement of the right to personal liberty, rather than ... a stage of the state criminal proceedings ... or as an appeal therefrom.” Ngo, 548 U.S. at -, 126 S.Ct. at 2386 n. 2, 165 L.Ed.2d 368 (emphasis added) (additional citation omitted).

[¶ 18.] Therefore, Pellegrino’s habeas petition is a noncriminal matter subject to the January 10, 2005 order. This is confirmed by the fact that the United States Supreme Court rejected his inform a pau-peris application when he finally filed it and has repeatedly rejected his petitions when Pellegrino filed a subsequent motion and a writ of mandamus.

[¶ 19.] Pellegrino alleges the rejection of his petition for certiorari was orchestrated by Loen and Weber and that they “telephonically serenade[d]” the assistant Clerk of the United States Supreme Court into rejecting the petition. Instead of bringing forth specific facts to defeat summary judgment, he alleges that the United States Supreme Court first granted his petition for in forma pauperis when it granted his extension of time to file his petition for certiorari. However, this ignores the fact that the approval was only for an extension, not for informa pauperis status. Indeed, the order granting the extension never mentioned the in forma pauperis request. But the in forma pau-peris status was clearly denied when Pelle-grino requested the status when he submitted his certiorari petition.

[¶ 20.] As for the assertion that Loen and Weber somehow “telephonically serenade[d]” the Supreme Court Clerk, Pelle-grino advanced no specific facts, other than the rejection of his petition, to support this theory. Allegations and conspiracy theories not backed by specific facts will not defeat a summary judgment motion. See Sorrels v. Queen of Peace Hosp., 1999 SD 133, ¶ 19, 601 N.W.2d 606, 610 (Konenkamp, J., concurring in result) (“Faced with implausible assertions advanced to defeat summary judgment, trial judges ought not be forced to sift feathers. [The plaintiffs] claim is so insubstantial, so illogical, and so contrary ... that he had the duty to come forward with some persuasive proof to support his assertion....”); Baatz v. Arrow Bar, 452 N.W.2d 138, 140 (S.D.1990) (“Mere allegations that are devoid of specific facts will not prevent the issuance of summary judgment.” (quoting Western Cas. & Sur. Co. v. Gridley, 362 N.W.2d 100 (S.D.1985))).

Pellegrino cannot demonstrate an injury

[¶ 21.] We recently noted that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Gisi v. Gisi, 2007 SD 39, ¶ 24, 731 N.W.2d 223, 230 (quoting Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977)). Nonetheless, in order to demonstrate he was denied his constitutional right of access to the courts, Pellegrino must demonstrate that the denial resulted in an actual injury. Lewis v. Casey, 518 U.S. 343, 348, 116 S.Ct. 2174, 2178, 135 L.Ed.2d 606 (1996) (noting that “an inmate must show that the alleged inadequacies of a prison’s library facilities or legal assistance program caused him ‘actual injury’— that is, ‘actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.’ ”); see also Gisi, 2007 SD 39, ¶¶ 25-26, 731 N.W.2d at 231.

[¶ 22.] Pellegrino alleges that his right of access was violated because he experienced “denials of access to legal work materials and legal photocopies.” However, because the United States Supreme Court rejected his informa pawperis status, Pel-legrino is required to pay the $300 docketing fee and conform to the Supreme Court Rule 33.1 for filing petitions for certiorari. Pellegrino is indigent and unable to pay the $300 fee. Thus, it is his inability to pay the fee and the Supreme Court’s rejection of his in forma pauperis status that caused the rejection of his certiorari petition. Indeed, even if Loen and Weber had granted his request for more than 2,000 free photocopies, the petition for cer-tiorari would still be rejected. Pellegrino has not demonstrated he suffered an injury by the actions of Loen and Weber and he has not demonstrated the circuit court improperly granted summary judgment.

[¶ 23.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Pellegrino concedes that the deadline to file his certiorari petition has passed; thus, the injunctive relief is moot and the only question is damages.

      . In the appellee’s brief, the defendants explain that Pellegrino may purchase and has in the past purchased photocopies and supplies for his legal projects. Pellegrino's account has a negative balance of $2,410.46. Despite this negative balance, the SDSP allows indigent prisoners to continue to overdraw their accounts an additional $10.00 per month in order to purchase photocopies for legal projects.

      . While Pellegrino submitted a motion requesting in forma pauperis status when he submitted a motion for an extension, the defendants argue that Pellegrino clearly understood the distinction between his in forma pauperis status for the limited purpose of his extension and the separate in forma pauperis status for the purpose of filing his certiorari petition. We agree and this is demonstrated by Pellegrino filing a second motion requesting in forma pauperis status specifically for the certiorari petition.

      . The defendants correctly point out that even with in forma pauperis status Pellegrino still has no right to unlimited free photocopies. See Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983) (noting that as "broad as the constitutional concept of liberty is, it does not include the right to IXIerox” and the denial of photocopies must actually impede an inmate’s access to the courts); Robbins v. South, 595 F.Supp. 785, 789 (D.Mont.1984) ("[A] prisoner’s fundamental right of legal access does not require prison officials to furnish free photocopying services.”).

      . Pellegrino urges this Court to certify a question to the United States Supreme Court to determine whether his in forma pauperis status was supposed to be denied. However, his request for in forma pauperis status was repeatedly denied and we are satisfied the Supreme Court intended to deny in forma pau-peris status in accordance with its January 10, 2005 order. More importantly, the rules do not provide for a certified question from our Court to the United States Supreme Court.