author: NEUMANN, Justice.

text:
    2002 ND 146
    William BENDER and Larry Young, assignee, Plaintiffs and Appellants, and Torkildson Properties, Inc., Plaintiff, v. BEVERLY ANNE, INC., Defendant and Appellee.
    No. 20010280.
    Supreme Court of North Dakota.
    Aug. 29, 2002.

      Larry Young (argued), pro se, Bismarck, and William Bender (appeared), pro se, Bismarck, for plaintiffs and appellants.
    Brad A. Sinclair (argued), Serkland Law Firm, Fargo, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] William Bender and Larry Young appealed a judgment and two amended judgments in their action against Torkild-son Properties, Inc.; Beverly Anne, Inc.; and David L. Torkildson. We conclude Bender was not entitled to a mechanic’s lien and we affirm the original judgment. Except for a cost award, we conclude Beverly Anne, Inc., was not entitled to the affirmative relief granted in the amended judgments, and we reverse the amended judgments in part and affirm them in part.

I

[¶ 2] In 1995, Torkildson Properties, Inc., and its president, David Torkildson, contracted with Basic Concrete, Inc., and its president, Kevin Sehrenk, for a concrete project at the Beverly Anne assisted living facility in Lisbon. Schrenk and Basic Concrete, Inc., left the project, filed a mechanic’s lien on the property, and sued David Torkildson and Torkildson Properties, Inc., in Ransom County (“Civil No. 96-027”). The mechanic’s lien was released by stipulation of the parties and the action was later dismissed by stipulation of the parties.

[¶ 3] Bender filed a mechanic’s lien on the project property. On March 8, 2001, Bender and Young filed in district court a complaint against Torkildson Properties, Inc.; Beverly Anne, Inc.; and David L. Torkildson, alleging, among other things, that from September 26, 1995, through October 31, 1995, Bender furnished “labor, materials, and supplies ... used in the improvement of certain real estate owned by the named defendant, Torkildson Properties, Inc., and allegedly in the possession of the named defendant, Beverly Anne, Inc.,” and that he was due $8,517.96. The complaint alleges “William Bender has made a limited assignment of the above referenced claim to Larry Young.” For the sake of convenient reference, we will refer to Bender and Young, collectively, as “Bender.” The complaint alleged “Bender was entitled to the mechanic’s lien against the entire described real estate upon which the improvement is situated,” and was “entitled to commence an action to enforce the mechanic’s lien.”

[¶ 4] Beverly Anne, Inc., filed a motion for dismissal or summary judgment, asserting, in part:

For its motion, Beverly Anne relies upon this motion and notice, its brief filed in support of its motion, the deposition testimony of Kevin Schrenk and William Bender, and all the pleadings and files in this case and the companion case of Schrenk and Basic Concrete v. David Torkildson and Torkildson Property, Inc., Civil No. 96-027 (District Court, Ransom County 1996).

With its notice, motion, and supporting brief, Beverly Anne, Inc., filed copies of (1) a contract between Torkildson Properties and Basic Concrete for work at Beverly Anne assisted living facility; (2) a July 5, 1996, stipulation for dismissal with prejudice of Civil No. 96-027; (3) an order for judgment of dismissal in Civil No. 96-027; (4) a judgment of dismissal in Civil No. 96-027; and (5) a release of mechanic’s lien on the project property by Kevin Schrenk and Basic Concrete, Inc. In its brief, Beverly Anne, Inc., summarized deposition testimony of Kevin Schrenk and William Bender in Civil No. 96-027, including that Bender testified he was an employee of Basic Concrete.

[¶ 5] At a hearing on May 17, 2001, the trial court took judicial notice of the file in Civil No. 96-027. “Courts have the power to judicially recognize their own records of prior litigation closely related to the present case.” 1 Weinstein’s Fed. Evid., § 201.12[3], p. 201-29 (2d ed.2002). “Generally, the party challenging the propriety of taking judicial notice has the burden to request the opportunity to be heard.” Id., § 201.31[2], The trial court informed the parties it was taking judicial notice of the file in No. 96-027. Bender did not object to the court’s authority or procedure in taking judicial notice. The court ruled it was “going to dismiss the summons and complaint with prejudice,” as well as the mechanic’s hen and lis pen-dens filed by Bender. The court explained:

THE COURT: The rationale, as I’ve indicated, I’m taking complete judicial notice of 96-027. This matter is res judicata. It was dismissed on the merits by Stipulation of the parties. Mr. Bender is in privity with Basic Concrete, one of the parties in that matter. It cannot be brought up again. As to the right of Mr. Bender to have a Mechanic’s Lien, he simply under the statutes involved is not a subcontractor. The right to a Mechanic’s Lien under Title 35-27 belong[s] to Basic Concrete. It did not belong to an employee of a North Dakota Corporation who was not an independent contractor and not an independent operator here.

On June 6, 2001, the court issued the following order for judgment:

Plaintiffs William Bender’s and Larry Young’s Complaint concerning the above-entitled matter is hereby DISMISSED with prejudice and all costs and disbursements allowed by law being hereby awarded to Defendant Beverly Anne, Inc. in the manner provided by law. Based on this dismissal, IT IS HEREBY ORDERED that the mechanic’s hen filed by William Bender and Larry Young on about January 30, 2001 ... is hereby stricken, released and satisfied, as well as any Lis Pendens previously filed by Plaintiffs ... as to the ... real estate.

The court found “this action is frivolous but has not been brought in bad faith by Plaintiffs but was instead brought by Plaintiffs based on a fundamental misunderstanding of the law” and “denie[d] Defendant’s request for attorney’s fees and costs.” Judgment was entered accordingly on June 8, 2001.

[¶ 6] On June 25, 2001, Beverly Anne, Inc., filed a motion under N.D.R.Civ.P. 60 for relief from judgment or an amended judgment, seeking costs of $678 for depositions of Kevin Schrenk and Bender, an order striking a quitclaim deed to the subject property and declaring it “null and void and of no effect,” and an order that any future documents filed by Young, Bender or Torkildson Properties, Inc., “against the real estate ... are also deemed stricken, null and void and have no future effect.”

[¶ 7] The motion was accompanied by a copy of a May 31, 2001, quitclaim deed executed by “Larry Young, Vice President, Torkildson Properties, Inc.,” purportedly conveying to William Bender the Beverly Anne assisted living facility property. The deed allegedly had been filed June 4, 2001. The motion was supported by a brief, copies of documents, and affidavits showing or averring, among other things, (1) Beverly Torkildson received all the stock in Tork-ildson Properties, Inc., which owned the Beverly Anne assisted living facility in Lisbon, in a 1997 divorce judgment; (2) Beverly Mikesh, formerly known as Beverly Torkildson and Beverly Froemke, had changed the corporate name of Torkildson Properties, Inc., to Beverly Anne, Inc., in 1998, but, “through an oversight, failed to convey the real estate that is the subject matter of the present litigation from Tork-ildson Properties, Inc., to Beverly Anne, Inc.;” and (3) that Beverly Mikesh owns the real estate and ‘William Bender and Larry Young have no interest in the real estate.”

[¶ 8] On July 9, 2001, Bender filed an affidavit averring, among other things, that he is “the registered president of the Torkildson Properties, Inc., a North Dakota corporation,” and “[tjhe former interests of the named defendant, Torkildson Properties, Inc., previously dismissed from this instant proceeding, with prejudice, have now merged with the interests of the named Plaintiffs in this proceeding.” Bender has not disputed Beverly Anne, Inc.’s, assertion that Bender and Young formed a new corporation called Torkild-son Properties, Inc., and filed articles of incorporation on May 30, 2001.

[¶ 9] After a hearing on August 9, 2001, the court issued an order for amended judgment on August 13, 2001, which dismissed Bender’s complaint with prejudice, awarded deposition costs of $678, ordered “the Mechanic’s Lien filed by William Bender and Larry Young ... is hereby stricken, released and satisfied, as well as any Lis Pendens” on the subject property, declared the quitclaim deed from “Torkildson Property Inc.” to Bender is “null and void and of no legal effect;” prohibited Bender, Young or Torkildson Properties, Inc., “from attempting to file ... any deed, conveyance, lien, encumbrance, or any other claim of any kind, concerning the above-noted real property ... without first obtaining express prior permission from the District Court;” and awarded Beverly Anne, Inc., reasonable attorney fees under N.D.C.C. §§ 28-26-01(2) and 28-26-31. Judgment was entered accordingly on August 13, 2001.

[¶ 10] By motion of August 20, 2001, Beverly Anne, Inc., moved for attorney fees of $2,918, presented an affidavit of its attorney, and presented an exhibit showing reasonable attorney fees of $3,740 in the litigation. On September 6, 2001, the trial court issued an order for second amended judgment, awarding Beverly Anne, Inc., attorney fees of $2,918 and costs or disbursements of $678 previously awarded, and reaffirming and incorporating all of the other provisions of the amended judgment entered August 13, 2001. Judgment was entered accordingly on September 10, 2001.

[¶ 11] Bender appealed from the June 6, 2001, order for judgment, the August 13, 2001, order for amended judgment, the September 6, 2001, order for second amended judgment, and the judgments entered on June 8, August 13, and September 10, 2001.

II

[¶ 12] Bender contends he has a right to a mechanic’s lien because he worked on the project. He asserts North Dakota has adopted the “Pennsylvania system,” under which a laborer’s right to a hen does not depend on the existence of an indebtedness due from the owner.to the contractor, rather than the “New York system,” under which a laborer’s lien depends on an amount remaining due to the contractor. That was true under R.C. 1899, § 4788, construed in Robertson Lumber Co. v. State Bank of Edinburg, 14 N.D. 511, 105 N.W. 719 (1905). However, our present statute, N.D.C.C. § 35-27-02, provides, in part: “If the owner or agent has paid the full price or value of the contribution, no lien is allowed.” Where an owner has paid the full price or value of the contributions of subcontractors or laborers, any lien they file is void. Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 5, 638 N.W.2d 545; Kirkland v. Oberquell, 405 N.W.2d 21, 23 (N.D.1987). We, therefore, conclude the trial court properly dismissed Bender’s complaint and properly ordered the mechanic’s lien “stricken, released and satisfied, as well as any Lis Pendens previously filed,” in its June 6, 2001, order for judgment. We, therefore, affirm the judgment entered on June 8, 2001.

Ill

[¶ 13] The June 25, 2001, and the August 20, 2001, motions by Beverly Anne, Inc., sought relief under N.D.R.Civ.P. 60 in addition to that imposed in the judgment entered on June 8, 2001, in the form of $678 in costs, attorney fees of $2,918, an order that the quitclaim deed is “null and void and of no effect,” and an order that any future filings by Bender, Young or Torkildson Properties, Inc., be “also deemed stricken, null and void and have no future effect.”

A. Costs

[¶ 14] At the May 17, 2001, hearing, the trial court said it would award costs and disbursements under N.D.C.C. ch. 28-26. The June 6, 2001, order for judgment provides, as to costs, that Bender’s complaint is “DISMISSED with prejudice and all costs and disbursements allowed by law being hereby awarded to Defendant Beverly Anne, Inc. in the manner provided by law.” In explaining its order for judgment, however, the court said:

Defendant requested attorney’s fees and costs against Plaintiffs for frivolous and bad faith litigation. The Court determines that this action is frivolous but has not been brought in bad faith by Plaintiffs but was instead brought by Plaintiffs based on a fundamental misunderstanding of the law.... As such, the Court denies Defendant’s request for attorney’s fees and costs.

[¶ 15] The June 25, 2001, motion of Beverly Anne, Inc., for relief under Rule 60 was accompanied by an affidavit of its attorney, who averred (1) the June 6, order was inconsistent because it granted costs and disbursements in one paragraph and denied them in another; (2) “Beverly Anne submitted the proposed Order for Judgment and Judgment providing that the costs and disbursements were in the amount of $678.00.... The affidavit of costs was mistakenly not filed with the court. Attached hereto is a copy of affidavit of costs that was served upon Larry Young and William Bender;” and (3) “Beverly Anne requests this Court to amend the judgment to include costs of $678.00 to be awarded against Larry Young and William Bender jointly.”

[¶ 16] In its August 13, 2001, order for amended judgment, the court awarded “costs and disbursements in the amount of $678.00,” explaining:

Defendant is awarded costs and disbursements of $678.00 for deposition expenses concerning the initial proceedings leading to the initial Order For Judgment and Judgment. These costs/disbursements could not be awarded in the initial Order and Judgment because the Affidavit of Costs and Disbursements was inadvertently not filed with the Clerk but the record clearly indicates that this failure to file was not prejudicial to the Plaintiffs because Plaintiffs were timely served and responded. The Court utilized these Depositions in making the rulings which constituted the initial Order for Judgment and Judgment. Therefore these deposition expenses were necessary as they were used and obtained for use in the initial proceedings. These deposition expenses are also fair and reasonable. See N.D.C.C. § 28-26-06(2).

[¶ 17] The $678 for deposition costs was not included in the first judgment because Beverly Anne’s attorney inadvertently faded to submit a verified statement thereof, as required by N.D.R.Civ.P. 54(e)(1). Beverly Anne, Inc., sought them in its June 25, 2001, motion for relief under Rule 60. Rule 60(a), N.D.R.Civ.P., provides errors in a judgment or order “arising from oversights or omission may be corrected by the court: (1) at any time on its own initiative; or (2) on the motion of any party.” Under N.D.R.Civ.P. 60(a), a court may correct “errors created by oversight or omission that cause the judgment to fail to reflect what was intended at time of trial.” Gruebele v. Gruebele, 338 N.W.2d 805, 811 (N.D.1983). We conclude that in awarding deposition costs of $678 in the amended and second amended judgments entered August 13 and September 10, 2001, the trial court properly corrected an error arising from oversight or omission under N.D.R.Civ.P. 60(a).

B. Attorney fees, quitclaim deed, further filings

[¶ 18] In addition to awarding deposition costs under N.D.R.Civ.P. 60(a), in the amended and second amended judgments, the court also granted other affirmative relief with regard to attorney fees, the quitclaim deed, and future filings, affirmative relief that had not been imposed in the original judgment. The additional affirmative relief sought by Beverly Anne, Inc., in its June 25 and August 20, 2001, motions falls under N.D.R.Civ.P. 60(b), which provides, in part:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.

“A trial court’s decision on a Rule 60(b) motion for relief is within the trial court’s sound discretion and will not be overturned absent an abuse of discretion,” Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 10, 609 N.W.2d 90, although a motion for relief from a void judgment under N.D.R.Civ.P. 60(b)(iv) “is not left to the court’s discretion,” First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 793 (N.D.1986).

[¶ 19] However, while a prior judgment may be set aside upon a N.D.R.Civ.P. 60(b) motion for relief from judgment, N.D.R.Civ.P. 60(b) may not be used to impose further affirmative relief in addition to that already contained in the prior judgment. McKenzie County Soc. Serv. Bd. v. C.G., 2001 ND 151, ¶ 20, 633 N.W.2d 157. The only relief available under Rule 60(b) is merely to set aside a judgment. Id. The affirmative relief requested and granted was not available to Beverly Anne, Inc., through a motion for relief under N.D.R.Civ.P. 60(b); its “remedy, if any, is outside the scope of this action.” McKenzie, at ¶ 23.

IV

[¶ 20] We affirm the judgment entered June 8, 2001. We affirm the amended judgment entered August 13, 2001, and the second amended judgment entered September 10, 2001, to the extent they award deposition costs of $678, and we reverse them in all other respects.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    2002 ND 145
    STATE of North Dakota, Plaintiff and Appellee, v. Kenneth YINEMAN, Defendant and Appellant.
    No. 20010279.
    Supreme Court of North Dakota.
    Aug. 29, 2002.

      Allen M. Koppy, State’s Attorney, Man-dan, for plaintiff and appellee.
    Robert W. Martin, Bismarck, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Kenneth Yineman appealed from a Morton County District Court criminal judgment entered after a jury convicted Yineman of leaving the scene of a traffic accident. Yineman contends the State did not produce evidence sufficient to support his conviction. The State, however, argues there was sufficient evidence to support the conviction, or, in the alternative, the State asserts Yineman failed to preserve the issue for appeal by not making a motion for a judgment of acquittal under N.D.R.Crim.P. 29(a). We affirm.

[¶ 2] A Morton County deputy sheriff was notified of an alleged hit and run accident south of Mandan, North Dakota, on Highway 1806. A description of the suspect vehicle including a license plate number was relayed to the deputy. The deputy then drove south along Highway 1806 until a vehicle matching the description of the suspect vehicle was located at the intersection of Highway 1806 and County Road 80.

[¶ 3] The vehicle was occupied by Yine-man, who was the driver, and another individual. The deputy stopped the vehicle and spoke briefly with Yineman. The deputy also observed damage to the front driver’s side of the vehicle. During this questioning, Yineman admitted to being involved in the accident and to leaving the scene of the accident. Based on the deputy’s observations and Yineman’s statements, Yineman was arrested and charged with leaving the scene of an accident.

[¶ 4] The driver of the vehicle which was allegedly struck by Yineman, was contacted and arrangements were made for him to bring his vehicle to the sheriffs office for inspection. When the driver of this vehicle came to the sheriffs office, the deputy first learned the details of the incident and saw the damage to the second vehicle.

[¶ 5] The deputy did not observe the second vehicle at the scene of the accident at any time, nor did he photograph the intersection generally or specifically any skid-marks that may have been at. the scene. No- photographs were taken of Yin-eman’s car, and the deputy did not further investigate the scene of the accident.

[¶ 6] The case was tried to a jury. At the end of the State’s case-in-chief, Yine-man did not move for an acquittal under the rules of criminal procedure based on insufficiency of the evidence. Instead Yin-eman presented his own evidence. At the end of his own presentation, Yineman did not move for an acquittal. The jury returned a verdict of guilty.

I

[¶ 7] In State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993), we announced a departure from a well-established rule of law, which required any defendant to make a motion of acquittal under N.D.R.Crim.P. 29 to preserve an issue of sufficiency of the evidence for appellate review. We held the procedural requirement of making a motion for acquittal under N.D.R.Crim.P. 29 was unnecessary in bench trials, where a judge rather than a jury acts as factfinder. Id. Nonetheless, we expressly declared in Himmerick this new rule did not apply in civil cases, criminal jury cases, or “challenges based on the weight of the evidence” as opposed to challenges based on the sufficiency of the evidence. Id.

[¶ 8] Evidentiary sufficiency and evidentiary weight are distinct concepts. In State v. Kringstad, we explained:

A conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. When a court, be it an appellate court or a trial court on motion for entry. of a judgment of acquittal, concludes that evidence is legally insufficient to support a guilty verdict, it concludes that the prosecution has failed to produce sufficient evidence to prove its case. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case.

353 N.W.2d 302, 306 (N.D.1984) (citations omitted).

[¶ 9] On the other hand, when a court is asked to consider whether or not a conviction is against the weight of the evidence, the court must evaluate for itself the credibility of the evidence. Id. “If the [trial] court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.” Id. (quoting U.S. v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)).

[¶ 10] Therefore, while in challenges based on the weight of the evidence a trial court acts as a “thirteenth juror” and independently assigns value to and weighs evidence, in challenges based on the sufficiency of the evidence the court asks only if the prosecution’s case could have been believed by a rational factfinder. Id. (quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

[¶ 11] Yineman presents his sole issue on appeal as if it were a challenge to the sufficiency of the evidence supporting his conviction, yet he marshals only weight-of-the-evidence arguments and evidence to the support of his cause. Specifically, in his brief to this Court Yineman asserts:

[T]he State presented not one single piece of consistent evidence to support the conviction in the instant case, including even the one “neutral” witness, Deputy Dion Bitz.
Deputy Bitz himself had to admit that he had no excuse for his failure to process the scene of the incident and that he made no attempt to go out to the site the next day due to the fact that he was on vacation, even though it would be a normal part of the investigative procedure to do so to determine the accuracy of the sole statement he had taken.
Further, even though Arley Bloom-gren painted a graphic encounter with Kenneth Yineman, including the two occupants of Mr. Yineman’s vehicle stopping, exiting, and approaching while making threatening “scalping” motions, the testimony presented by the other occupant of Mr. Bloomgren’s vehicle directly refuted this roadside encounter. Rose Marie Bloomgren testified that nobody exited Mr. Yineman’s vehicle after it pulled over, directly contradicting her husband’s flamboyant story of this encounter.
This represents the sum total of the evidence presented by the State, and while trial counsel did not move for a judgment of acquittal pursuant to Rule 29(a) of the North Dakota Rules of Criminal Procedure and chose to present an affirmative defense of duress, the presentation of such defense placed the circumstances of the incident into a they said/we said mode of conflicting-testimony. This is not enough to support a “reasonable inference” of guilt “warranting a conviction”, especially in light of the irreconcilable conflicts in the evidence presented by the State and the indifferent police work performed by Deputy Bitz.

(Citations omitted).

[¶ 12] Yineman is not arguing a rational factfinder could not have, drawing all inference in favor of the prosecution, found him guilty beyond a reasonable doubt. Rather, Yineman is arguing the weight of the evidence militates against finding him guilty beyond a reasonable doubt.

[¶ 13] As discussed above in State v. Himmerick, at 572, we explicitly put challenges of this sort beyond the reach of the modified rule. Therefore, for Yineman to have preserved his weight-of-the-evidence challenge to his conviction he was required to make an appropriate motion. He did not do so. Thus the issue was not properly preserved for appeal.

II

[¶ 14] Assuming, for purposes of discussion only, that Yineman is challenging his conviction on the basis the prosecution failed to produce sufficient evidence to prove its case, his argument is still inappropriately before this Court. Again, as discussed in Himmerick, we held “[t]his new rule does not apply to criminal jury trials.” Id. at 573. We further explained “[a] defendant in a criminal jury trial must still make a motion for a judgment of acquittal to preserve the issue of sufficiency of the evidence for appeal.” Id. Thus, it is clear, “[t]o preserve an issue of sufficiency of the evidence for review in a jury trial, a defendant must move.the lower court for a judgment of acquittal under N.D.R.Crim.P. 29.” City of Grand Forks v. Dohman, 552 N.W.2d 66, 67 (N.D.1996).

[¶ 15] Rule 29(a) -of the Federal Rules of Criminal Procedure is “significantly similar to our Rule 29(a), N.D.R.Crim.P.” Himmerick, at 572. Charles A. Wright, in his treatise on federal procedure, observes that the majority of federal circuits have interpreted the federal rule just as we have interpreted our similar state rule. Wright points out:

There is seemingly well-settled doctrine that if no motion for judgment of acquittal was made in the trial court, an appellate court cannot review the sufficiency of the evidence. And if the defendant has asserted specific grounds in the trial court as the basis for a motion for acquittal, he or she cannot assert other grounds on appeal.
Closely related to this is the rule that if the defendant does move for acquittal at the close of the government’s case, but fails to renew the motion at the close of all the evidence, he has waived his earlier objection to the sufficiency of the government’s evidence, and again there is nothing to review.
A very different rule applies in cases tried to the court. There it is held that the sufficiency of the evidence will be considered on appeal, even though there was no motion for acquittal, on the theory that “the plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary.” This is a sound theory, but it is strange that it is not held equally applicable in a jury trial. There, too, the plea of not guilty asks for a judgment of acquittal. Further, Rule 29(a) requires the court to grant such a judgment “on its own motion” if the evidence is insufficient to sustain a conviction. It would seem that if the evidence is indeed insufficient, and the court has failed to order an acquittal even though there was no motion, the court has failed to comply with the rule. This is an error of law that should be held fully reviewable.

Charles A. Wright, Federal Practice and Procedure § 469, at 321-23 (3d ed.2000) (footnotes omitted).

[¶ 16]' As conceded in Wright, and acknowledged in Himmerick, federal courts interpreting a rule of federal procedure similar to our state procedure hold that to preserve an issue of sufficiency of the evidence for review in a jury trial, a defendant must move the lower court for a judgment of acquittal under N.D.R.Crim.P. 29(a) in North Dakota courts and F.R.Crim.P. 29(a) in federal courts.

[¶ 17] The well-established rule, requiring a defendant in a jury trial to move a lower court for a judgment of acquittal to preserve the issue of sufficiency of the evidence for appellate review, does not seem strange to us. As the United States Court of Appeals has explained “[i]n a bench trial, the judge acting as the trier of both fact and law implicitly rules on the sufficiency of the evidence by rendering a verdict of guilty. A motion to acquit is superfluous because the plea of not guilty has brought the question of the sufficiency of the evidence to the court’s attention.” U.S. v. Atkinson, 990 F.2d 501, 503 (9th Cir.1993).

[¶ 18] A plea of not guilty obviously challenges the sufficiency of the evidence in a jury trial also, but it is the jury, not the court, which is the trier of fact, the determiner of the guilt or innocence of the defendant. Although a motion is not necessary in a bench trial where the judge must be focused on the facts as the trier of fact, a judge in a jury trial may not be as centered, and a motion may indeed be necessary to prompt the judge to review the evidence with an eye to the significant act of removing the case from the jury. There is logic in requiring the motion in a jury trial but not a bench trial. From an appellate court standpoint, we can, as Himmerick implies, assume a judge who is the trier of fact has determined the sufficiency of the evidence without a motion for acquittal. That same assumption is not necessarily valid where the jury is the trier of fact and no motion for acquittal was made. Although the issue of the sufficiency of the evidence is, after drawing all inferences in favor of the verdict, a question of law, fully reviewable on appeal, City of Grand Forks v. Thong, 2002 ND 48, 640 N.W.2d 721, the trial judge’s opinion of the sufficiency of the evidence from the viewpoint of the trier of fact rather than as the judge presiding over a jury trial is valuable to an appellate court. Cf. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860 (observing that on appeal from a district court judgment reviewing an administrative agency decision, we review the decision of the agency “but the district court’s analysis is entitled to respect”). On appeal, we can assume a trial judge sitting as a trier of fact has determined the evidence sufficient. Without a motion for acquittal, that same assumption is not necessarily warranted where the trial judge is not the trier of fact.

[¶ 19] Nor do we believe it an undue burden to require the defense to make a motion for judgment of acquittal in order to raise the issue of sufficiency of the evidence on appeal. Appellate counsel, who was not trial counsel, candidly admitted at oral argument there was no other issue he could find to raise on appeal. But allowing appellate counsel to raise the sufficiency of the evidence on appeal when trial counsel arguably did not believe the motion was meritorious" is not justification to change our jurisprudence. Furthermore, because the failure to make a motion for judgment of acquittal that could not have been granted by the trial court is not ineffective assistance of counsel, State v. Jackson, 2002 ND 105, ¶ 3, 646 N.W.2d 676, the requirement that a motion for judgment of acquittal be made in order to raise the issue on appeal is not unduly restrictive. Rather, it deters frivolous appeals.

[¶ 20] We decline the invitation extended by Mr. Yineman, to overturn our precedent. Rather, we will follow the logic of the precedent which led us to hold in Himmerick that' no motion for acquittal is necessary in a bench trial but that a motion is necessary in a jury trial to review the sufficiency of the evidence on appeal. Accordingly, we turn to the facts before us.

[¶ 21] Yineman was convicted by a jury. He did not make a motion for a judgment of acquittal to preserve the issue of sufficiency of the evidence for appeal. In other words, Yineman did nothing to bring the issue to the trial court’s atten-. tion. Nonetheless, his sole argument before us now is that there was insufficient evidence to support his conviction. “Generally, issues not raised in the trial court, even constitutional issues, will not be addressed on appeal.” State v. Miller, 388 N.W.2d 522, 522 (N.D.1986). The exception to this principle arises when the record reveals an “obvious error” in the action of the trial court. State v. Tweed, 491 N.W.2d 412, 418 (N.D.1992); N.D.R.Crim.P. 52(b); Wright, § 469, at 323 (observing “there is an escape from the doctrine that failure to move for acquittal bars review of the evidence in a jury case” under “plain error” doctrine).

[¶ 22] We have noted:

To establish obvious error under N.D.R.Crim.P. 52(b), the defendant has the burden to show- (1) error, (2) that is plain, and (3) that affects substantial rights. We exercise our power to notice obvious error cautiously, and only in exceptional circumstances where the accused has suffered serious injustice.' In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence.

State v. Johnson, 2001 ND 184, ¶ 12, 636 N.W.2d 391 (citations omitted).

[¶ 23] Upon our review of the record we find no obvious or plain error. Although in view of our holding today it may appear to be plain error whenever defense counsel fails to move for a judgment of acquittal under N.D.R.Crim.P. 29(a) in the trial court, we have previously observed the failure to make such a motion that could not have been granted by the trial court because the prosecution had, in fact, presented a prima facie case, is not ineffective assistance of counsel. State v. Jackson, 646 N.W.2d 676, 2002 ND 105, ¶ 3; State v. Kroeplin, 266 N.W.2d 537, 543 (N.D.1978). This is such a case.

Ill

[¶ 24] The judgment is affirmed.

[¶ 25] DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ.

MARING, Justice,

concurring in the result.

[¶ 26] I concur in the result. I agree with that part of the majority opinion which concludes Yineman presented a weight-of-the-evidence challenge to his conviction, but failed to preserve the issue for appeal by making a motion for a new trial.

[¶ 27] I do not agree with those parts of the majority opinion discussing the logic behind requiring a motion for acquittal in a jury trial, but not in a bench trial, in order to preserve the issue for appeal. Although it does appear the majority of federal circuits have interpreted Federal Rule 29(a) the same way the majority interprets our state rule, I am in agreement with Charles A. Wright in his treatise on federal procedure. 2A Charles A. Wright, Federal Practice and Procedure § 469, 322-23 (3d ed.2000). Wright points out that the theory behind not requiring a motion for acquittal in order to preserve the issue for appeal in a bench trial is that the plea of not guilty asks the court for a judgment of acquittal. Id. Wright notes:

This is a sound theory, but it is strange that it is not held equally applicable in a jury trial. There, too, the plea of not guilty asks for a judgment of acquittal. Further, Rule 29(a) requires the court to grant such a judgment “on its own motion” if the evidence is insufficient to sustain a conviction. It would seem that if the evidence is indeed insufficient, and the court has failed to order an acquittal even though there was no motion,- the court has failed to comply with the rule. This is an error of law that should be held fully reviewable.

Id. at 323 (footnote omitted). This is a more logical analysis than the majority’s, which infers a trial judge in a jury case has little or no responsibility to carefully listen to the facts and draw inferences therefrom as the trial progresses in preparation for a potential motion for a judgment of acquittal by the defendant or the granting of a judgment on the trial court’s own motion.

[¶ 28] Therefore, I respectfully concur in the result.

[¶ 29] MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ.


author: KAPSNER, Justice.

text:
    2002 ND 141
    COMSTOCK CONSTRUCTION, INC., Plaintiff, Appellee and Cross-Appellant, v. SHEYENNE DISPOSAL, INC., Defendant, Appellant and Cross-Appellee.
    No. 20010281.
    Supreme Court of North Dakota.
    Aug. 29, 2002.

      Richard J. Henderson (argued), Nilles, Hansen & Davies, Ltd., Moorhead, MN and Jacqueline Sue Anderson (on brief), Nilles, Hansen & Davies, Ltd., Fargo, for defendant, appellant and cross-appellee.
    Robert Garold Hoy, Ohnstad Twichell, P.C., West Fargo, for plaintiff, appellee and cross-appellant.
   KAPSNER, Justice.

[¶ 1] Sheyenne Disposal, Inc., appeals from a judgment and order denying its post-trial motion for a new trial and for remittitur of interest. Comstock Construction, Inc., cross-appeals from the dismissal of its claim for a mechanic’s lien. We conclude the trial court did not abuse its discretion in denying Sheyenne Disposal’s post-trial motion, but the court erred in dismissing Comstock Construction’s claim for a mechanic’s lien. We affirm in part, reverse in part, and remand.

I

[¶ 2] In 1998, John Beardmore, a representative of Sheyenne Disposal, contacted Bob Comstock, a principal of Comstock Construction, regarding the construction of a solid waste transfer station in West Fargo. There was no written contract between the parties, and the main dispute in this case involves the price Comstock Construction would charge Sheyenne Disposal for construction of the transfer station if Bob Comstock did not receive an ownership interest in it. Bob Comstock did not receive an interest in the transfer station, and according to him, the parties agreed that, under those circumstances, Comstock Construction would charge Sheyenne Disposal cost plus “normal markup” for the work. According to Beardmore, the parties did not agree on a price for the work if Bob Comstock did not receive an interest in the transfer station, and in that case, he and Bob Comstock agreed to meet at a later date to negotiate the final price.

[¶ 3] In late 1998, Comstock Construction began work on the transfer station. According to Bob Comstock, Comstock Construction “substantially complete[d]” the station in May 1999, and the facility began operation then. In September 1999, Comstock Construction recorded a $487,847.41 mechanic’s lien on the property on which the transfer station was built. On March 16, 2000, Sheyenne Disposal mailed Comstock Construction a written demand by certified mail with return receipt requested, stating “suit must be commenced and filed with the Clerk of Court for Cass County within thirty (80) days after this notice is served on Comstock Construction or the lien will be forfeited.” Comstock Construction signed for receipt of the written demand on March 18, 2000. On April 17, 2000, Comstock Construction personally served a summons and complaint on the registered agent for Shey-enne Disposal. On April 18, 2000, Com-stock Construction filed this action for a money judgment and for foreclosure of its mechanic’s lien. The trial court granted Sheyenne Disposal partial summary judgment, concluding Comstock Construction had forfeited its mechanic’s lien under N.D.C.C. § 35-27-25, because it had not commenced and filed its action within thirty days after service of the written demand.

[¶ 4] At trial, the parties disputed the amount due Comstock Construction for construction of the transfer station. Com-stock Construction claimed the parties had an express or implied contract for costs plus normal markup. Sheyenne Disposal conceded Comstock Construction was entitled to reasonable expenses for its work under the doctrine of quasi contract, but claimed there was no express or implied agreement regarding the amount due. A jury returned a special verdict, finding there was an express or implied contract for construction of the transfer station, and the total amount Sheyenne Disposal owed Comstock Construction was $781,745.72. The jury also awarded Com-stock Construction 6% interest on the award from May 1, 1999. The trial court credited Sheyenne Disposal for previous payments to Comstock Construction, and a judgment was entered awarding Comstock Construction $556,697.74, plus costs and disbursements. The trial court denied Sheyenne Disposal’s post-trial motion for a new trial under N.D.R.Civ.P. 59(b)(6) and for remittitur of the interest under N.D.R.Civ.P. 59(b)(5).

II

[¶ 5] Sheyenne Disposal argues the jury’s finding there was an express or implied agreement between the parties is not supported by the evidence. Sheyenne Disposal claims the parties’ agreed they would meet at a later date to work out the final charges for the work. Sheyenne Disposal argues the trial court abused its discretion in denying the motion for a new trial.

[¶ 6] We review a trial court’s denial of a motion for a new trial under the abuse of discretion standard. Brandt v. Milbrath, 647 N.W.2d 674, 2002 ND 117, ¶ 24; Rodenburg v. Fargo-Moorhead Young Men’s Christian Ass’n, 2001 ND 139, ¶ 7, 632 N.W.2d 407. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Sollin v. Wangler, 2001 ND 96, ¶ 8, 627 N.W.2d 159. In reviewing a trial court’s decision on a motion for a new trial based on insufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine if there is sufficient evidence to support the vérdict. Kreidt v. Burlington Northern R.R., 2000 ND 150, ¶ 19, 615 N.W.2d 153.

[¶ 7] In considering a motion for a new trial based on insufficiency of the evidence, we have said:

the trial court may, within limits, weigh the evidence and judge the credibility of' witnesses. In particular, when a motion for a new trial is made and the reason given in support of the motion is that there was insufficient evidence to justify the verdict, the moving party is asking the trial court to decide whether or not the verdict is against the weight of the evidence. And in making this decision, the trial judge must weigh the evidence; he must consider that evidence which supports the verdict equally with that evidence which challenges the verdict. In short, when ruling on a motion for anew trial, the trial judge may consider all the evidence.

Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982) (citations omitted).

[¶ 8] Sheyenne Disposal argues the trial court, in denying the motion for a new trial, referred only to Bob Comstock’s testimony that the contract price was cost plus “normal markup” and to testimony about the meaning of “normal markup” by the comptroller for Comstock Construction, Susan Bowman. Sheyenne Disposal argues the court did not weigh that evidence with evidence that was contrary to the verdict, and the court’s failure to do so was an abuse of discretion.

[¶ 9] The trial court cited Okken and said “[w]hen ruling on a motion for a new trial, a court .must consider all the evidence which includes both evidence that supports the verdict and evidence that challenges the verdict.” Although the trial court did not explicitly cite testimony contrary to the verdict, the court referred to the standard enunciated in Okken and stated “[t]he jury’s role is to determine the weight and credibility to give to witnesses [and t]he jury performed that role with the testimony of Bob Comstock and the Controller.” The court thereafter concluded there was sufficient evidence to sustain the verdict. Although the court’s decision could have been more explicit, we conclude the court’s statements reflect it weighed the conflicting testimony under Okken.

[¶ 10] Sheyenne Disposal argues the jury’s verdict is not supported by the evidence and is against the weight of the evidence. Sheyenne Disposal argues there was only an agreement to agree at a future date on an acceptable price for the work.

[¶ 11] The trial court instructed the jury:

A contract is an agreement to do or not do a certain thing.
A contract may be express, implied-in-fact, or implied-in-law.
An express contract is one in which the terms are stated orally or in writing. An implied-in-fact contract is one in which its existence and terms are manifested by conduct.
The distinction between an express and an implied-in-fact contract relates only to the manner in which the agreement is shown. Both are based on the express or apparent intention of.the parties.
An implied-in-law or quasi-contract is an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended. The essence of an implied-in-law contract is the receipt of a benefit which would be inequitable to retain without paying for it.
A breach of contract is a failure to perform all or any part of what is warranted or required in a contract.

[¶ 12] Sheyenne Disposal has not raised any issues about the jury instructions, and those unopposed instructions are the law of the case. Anderson v. Jacobson, 2001 ND 40, ¶ 11, 622 N.W.2d 730. It is undisputed Bob Comstock did not receive an interest in the transfer station. According to Bob Comstock, if he did not receive an interest in the station, the .parties agreed Comstock Construction would charge Sheyenne Disposal cost plus “normal markup” for the work. According to Beardmore, the parties did not agree on a price for the construction work, and he and Bob Comstock agreed to meet at a later date to negotiate the final charges. Susan Bowman, the comptroller for Comstock Construction, testified that Comstock Construction’s cost plus “normal markup” for construction of the transfer station was $781,745.72.. Bowman testified, for cost based jobs, the standard overhead markup was 10 percent of costs, the standard profit was 5 percent of costs, and the standard rate per hour for labor was $31. Bowman testified that, based on those percentages and rates, the total bill for construction of the transfer station was $781,745.72, which was the total amount the jury found due under an express or implied contract between Comstock Construction and Shey-enne Disposal.

[¶ 13] The terms of an oral contract can be established through extrinsic evidence, and a determination of those terms is for the trier of fact. See Fronteer Directory Co., Inc. v. Maley, 1997 ND 162, ¶ 13, 567 N.W.2d 826; Delzer v. United Bank, 459 N.W.2d 752, 757 (N.D.1990). Here, the testimony of Bob Comstock and Bowman supports the jury’s verdict that the parties had an express or implied agreement that Comstock Construction’s charge for constructing the transfer plant was cost plus “normal markup.” Bowman testified what “normal markup” meant. Viewing the evidence in the fight most favorable to the verdict, we conclude there is evidence that supports the jury’s finding there was an express or implied agreement between the parties. We conclude the jury’s finding of an express or implied agreement and the total amount due under the contract is supported by the evidence. We therefore conclude the trial court did not abuse its discretion in denying Shey-enne Disposal’s motion for a new trial.

Ill

[¶ 14] Sheyenne Disposal argues the trial court erred in denying remittitur on the jury’s award of interest. Sheyenne Disposal argues the damages awarded by the jury were not certain or capable of being made certain on any particular day under N.D.C.C. § 32-03-04, and Comstock Construction failed to show its right to payment vested on May 1,1999.

[¶ 15] The ■ jury awarded Comstock Construction interest from May 1, 1999, which, according to Bob Comstock, was when the work on the transfer station was “substantially complete[d].” The trial court instructed the jury that if it returned a verdict awarding damages, it “may award interest at a rate no greater than six percent per annum from the date of the wrongful act.”

[¶ 16] Although Sheyenne Disposal claims the damages awarded by the jury were not certain or capable of being made certain on any particular day under N.D.C.C. § 32-03-04, Sheyenne Disposal has raised no issues regarding the jury instructions about interest and those instructions are the law of the case. See Anderson, 2001 ND 40, ¶ 11, 622 N.W.2d 730. We have said because a claim is disputed does not render the claim uncertain or unliquidated so as to preclude interest under N.D.C.C. § 32-03-04. See Western Nat’l Mut. Ins. Co. v. UND, 2002 ND 63, ¶¶ 44-47, 643 N.W.2d 4. There was evidence Comstock Construction’s work on the transfer station was substantially completed on May 1,1999, the date from which the jury awarded interest. We conclude the trial court did not abuse its discretion in denying Sheyenne Disposal’s request for remittitur on the interest award.

IV

[¶ 17] In its cross-appeal, Comstock Construction argues the trial court erred in granting partial summary judgment dismissing its claim for a mechanic’s lien.

[¶ 18] In September 1999, Comstock Construction recorded a $487,847.41 mechanic’s Men on the property on which the transfer station was built. On March 16, 2000, Sheyenne Disposal mailed Comstock Construction a written demand by certified mail with return receipt requested, stating Comstock Construction was required to commence and file an action within 30 days to foreclose its mechanic’s lien, On March 18, 2000, a representative for Comstock Construction signed for receipt of the written demand. On April 17, 2000, Comstock Construction served Sheyenne Disposal with an action for damages and to foreclose the mechanic’s lien. On April 18, 2000, Comstock Construction filed the action with the clerk of the district court.

[¶ 19] The trial court granted Shey-enne Disposal’s motion for partial summary judgment, ruling Comstock Construction had forfeited its mechanic’s lien because the action was not commenced and filed within thirty days after the written demand was served and therefore was not timely under N.D.C.C. § 35-27-25. The court’s decision indicates it calculated the time for commencing and filing the action from March 16, 2000, the day Sheyenne Disposal mailed the written demand to Comstock Construction, and concluded the action was commenced and filed thirty-three days after Sheyenne Disposal mailed the written demand.

[¶ 20] Comstock Construction argues the trial court erred in refusing to follow N.D.R.Civ.P. 6 to compute time under N.D.C.C. § 35-27-25. Comstock Construction argues its claim for foreclosure of the mechanic’s lien was timely because three days must be added when service is completed by mail under N.D.R.Civ.P. 6(e), which provides “[w]henever a party has the right or is required to do an act within a prescribed period after service of a notice or other paper and the notice or paper is served by mail or third-party commercial carrier, 3 days must be added to the prescribed period.” Comstock Construction argues its action to foreclose the mechanic’s Men was timely because Shey-enne Disposal’s service of the written demand was by mail and the action was commenced and filed within thirty days plus three days for mailing.

[¶ 21] Our analysis of this issue requires interpretation of N.D.C.C. § 35-27-25, which provides:

Upon written demand of the owner, that person’s agent, or contractor, served on the person holding the Men, suit must be commenced and filed with the clerk of court within thirty days thereafter or the Men is forfeited. The demand must contain a provision informing the person holding the Men that if suit is not commenced within thirty days, the person holding the Men forfeits the Men. No Men is valid or effective as such, nor may be enforced in any case, unless the holder thereof asserts the same by complaint filed with the clerk of court within three years after the date of recording of the verified notice of intention to claim a mechanic’s Men. If a summons and complaint asserting the validity of the lien is not filed in the office of the clerk of court of the county in which the lien is recorded within the limitations provided by this section, the Men is deemed satisfied and the clerk of court shall, upon request of any interested person, certify to the recorder that no summons and complaint has been filed and the lien is deemed satisfied under this section, who then shall record the verified certificate.

[¶ 22] The interpretation of a statute is a question of law and is fully reviewable on appeal. Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895. Our primary objective in construing a statute is to ascertain legislative intent by looking at the language of the statute itself. State ex rel. Heitkamp v. Family Life Services, Inc., 2000 ND 166, ¶ 7, 616 N.W.2d 826. We harmonize statutes to give meaning to related provisions, and we construe statutory language according to its plain, ordinary, and commonly understood meaning. Id. N.D.C.C. § 1-02-02. Although we may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. Overboe v. Farm Credit Services, 2001 ND 58, ¶ 9, 623 N.W.2d 372. We give consideration to the context of statutes and the purposes for which they were enacted. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

[¶ 23] Under N.D.C.C. § 35-27-25, unless an action on a mechanic’s lien is commenced and filed within thirty.days after a written demand is “served” on. the person holding the lien, the lien is forfeited. Under N.D.C.C. § 35-27-25, the thirty-day time period for commencing and filing an action begins when the written demand is “served” on the person holding the lien. However, N.D.C.C. § 35-27-25 does not define when a written demand is served and does not provide any further guidance for computing the thirty days. A related statute for computing time, N.D.C.C. § 1-02-15, provides, in part, that “[t]he time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then it also is excluded.” See also N.D.C.C. § 1-03-01 (defining holidays) and N.D.C.C. § 1-03-05 (stating act due on holiday may be performed on next business day).

[¶ 24] In construing the ordinary meaning of language in statutes, we have often resorted to dictionary definitions. See Estate of Zimmerman, 2001 ND 155, ¶ 15, 633 N.W.2d 594; McDowell v. Gillie, 2001 ND 91, ¶ 12, 626 N.W.2d 666. One dictionary defines “serve” as “a) to deliver (a legal instrument, as a summons) b) to deliver a legal instrument to; esp., to present with a writ.” Webster’s New World Dictionary 1301 (2d Coll. Ed.1980). Another dictionary defines “serve” as to “bring to notice, deliver, or execute actually or constructively as required by law: to put into effect (to serve a summons or process is to deliver it, or to read it so as to give notice, or both).” Webster’s Third New International Dictionary 2075 (1971). A legal dictionary defines “serve” as “[t]o make legal delivery of (a notice or process) ... [t]o present (a person) with a notice or process as required by law.” Black’s Law Dictionary 1372 (7th ed.1999). Those authorities indicate the plain and ordinary meaning of serve contemplates that a written demand is served within the meaning of N.D.C.C. § '35-27-25 when the demand is delivered and notice is given to the person holding the lien. That plain and ordinary meaning of “serve” is similar to the provisions for personal service of process within the state under N.D.R.Civ.P. 4(d)(2), which, as relevant to this case, authorizes personal service upon a corporation by any form of mail or third-party commercial delivery addressed to an appropriate representative of the corporation and requiring a signed receipt and resulting in delivery to that representative.

[¶ 25] A written, demand by an owner under N.D.C.C. § 35-27-25 will ordinarily shorten the statute of limitations for commencing and filing an action to enforce a mechanic’s lien. When a landowner serves a written demand on the person holding the hen, the demand is the document that initiates legal proceedings in the sense that it requires an action to be commenced and filed within thirty days after service of the demand. In that situation, because service of the written demand effectively results in the commencement and filing of an action to enforce the mechanic’s lien, we conclude the provisions for service of process in N.D.R.Civ.P. 4 apply to measure when the written demand is served. Under N.D.R.Civ.P. 4(d)(2), the written demand was served on Comstock Construction on March 18, 2000, when the demand was delivered by registered mail to Comstock Construction’s representative and that representative signed for receipt of the demand. However, the resolution of that issue only partially resolves whether Comstock Construction’s action was timely.

[¶ 26] Section 35-27-25, N.D.C.C., can be traced back to 1887 Compiled Laws of the Territory of Dakota § 5482, which was designated as part of the Code of Civil Procedure and provided “[u]pon 1 written demand of the owner, his agent or contractor, served on the person holding the lien, requiring him to commence suit to enforce such lien, such suit shall be commenced in thirty days thereafter, or the lien shall be forfeited.” The 1887 provision for commencing a suit to enforce a mechanic’s lien was part of the Code of Civil Procedure, which also authorized notices to be personally served on the party or attorney and pérmitted personal service and service by mail. See 1877 Compiled Laws of the Territory of Dakota, §§ 5327-5330. Under those provisions, when service was by mail, “it shall be double the time required in cases of personal service.” 1877 Compiled Laws of the Territory of Dakota § 5331.

[¶ 27] Those related provisions contemplated that when a person chose to serve a notice by mail, the responding person was given “double the time required in cases of personal service” to respond. Rule 6, N.D.R.Civ.P., which was adopted in 1957, lists several statutes as superseded, including 1943 N.D. Rev.Code § 28-2816, which authorized “double the time required in cases of personal service” after service by mail. In 1961, when the Legislature reenacted the mechanic’s lien law, see 1961 N.D. Sess. Laws ch. 238, the rules of civil procedure, including N.D.R.Civ.P. 6(e), had been in effect for several years and allowed three additional days to do an act after service by mail.

[¶ 28] The Legislature is presumed to know the law when enacting legislation. See State v. Clark, 367 N.W.2d 168, 170 (N.D.1985). When the historical circumstances for additional time after service by mail are considered with the statutes superseded by N.D.R.Civ.P. 6 and the Legislature’s reenactment of the mechanic’s lien law after the adoption of the rules of civil procedure, we conclude the Legislature intended the provisions for additional time after service by mail under N.D.R.Civ.P. 6(e) to apply when an owner chooses to serve a written demand by registered mail under N.D.C.C. § 35-27-25. Although that interpretation may result in a modest increase in time for commencing and filing an action when a landowner chooses to serve a written demand by registered mail, it promotes certainty and uniformity for that situation. We conclude the trial court erred in refusing to apply N.D.R.Civ.P. 6 to compute Comstock Construction’s time for commencing and filing an action after Sheyenne Disposal’s service of the written demand by registered mail under N.D.C.C. § 35-27-27.

[¶ 29] Here, Sheyenne Disposal’s written demand was served on Comstock Construction on March 18, 2000, when a representative for Comstock Construction signed for receipt of the demand. See Eggl v. Fleetguard, Inc., 1998 ND 166, ¶ 18, 583 N.W.2d 812. Comstock Construction commenced the action on April 17, 2000, see N.D.R.Civ.P. 3, and filed the action with the clerk of court on April 18, 2000. Under N.D.C.C. §§ 1-02-15, 35-27-25 and the three additional days provided by N.D.R.Civ.P. 6(e), Comstock Construction’s action was commenced and filed within thirty days, plus three days for mailing, after the written demand was served on it. Comstock Construction’s action was timely, and it therefore did not forfeit its mechanic’s lien.

V

[¶ 30] We affirm the judgment and order denying Sheyenne Disposal’s post-trial motion. We reverse the partial summary judgment dismissing Comstock Construction’s claim for a mechanic’s lien, and we remand for proceedings consistent with this opinion.

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


text:
    2002 ND 142
    CITY OF FARGO, Plaintiff and Appellant, v. Nancy Michelle WONDER, Defendant and Appellee.
    No. 20010263.
    Supreme Court of North Dakota.
    Aug. 29, 2002.

      Stephen R. Dawson, Assistant City Prosecutor, Fargo, for plaintiff and appellant.
    Beverley Lynn Adams, Serkland Law Firm, Fargo, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] The City of Fargo appealed from an order suppressing statements made by Nancy Wonder and the results of a preliminary breath screening test administered to Wonder. We affirm.

I

[¶ 2] On April 7, 2001, law enforcement officers investigated a loud party at an apartment in Fargo. The apartment’s residents .allowed the police officers to enter. The officers secured the premises and did not allow anyone to leave. There is some dispute about what occurred after the officers entered.

[¶ 3] The trial court found that the officers asked those partygoers who were under the age of 21 to raise their hands. Those who were over age 21 were allowed to leave after the officers verified their ages by checking their identification. The officers asked those remaining if they had been drinking alcoholic beverages. Those under 21 were then required to take a preliminary breath screening test to determine whether they had recently consumed alcoholic beverages. At no time were the partygoers told they were free to leave, told they could refuse the breath test, or advised of their Miranda rights.

[¶ 4] A breath test administered to Wonder at the scene showed she had been consuming alcohol. She was arrested and charged with a violation of Fargo’s ordinance prohibiting persons under 21 from purchasing, possessing, or consuming alcoholic beverages.

[¶ 5] Wonder requested a jury trial and the case was transferred from municipal court to district court. Wonder subsequently moved to suppress evidence, arguing the procedure by which the officers learned her age and that she had been drinking, without advising her of her rights under Miranda, was unconstitutional and required exclusion of all evidence and dismissal of the charges against her. She also argued admission of the results of the preliminary breath test would violate the statutory guidelines governing preliminary screening tests under N.D.C.C. § 39-20-14.

[¶ 6] The trial court determined Wonder had been in custody and the questioning without Miranda warnings violated her constitutional rights. The court also concluded the preliminary breath test constituted an improper warrantless search. The court ordered Wonder’s statements and the breath test results suppressed, and the City appealed.

II

[¶ 7] The City contends the district court erred in ordering suppression of Wonder’s statements made to police in the apartment.

[¶ 8] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in the evidence in favor of affirmance. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 7, 639 N.W.2d 466. We will affirm the district court’s factual findings on a motion to suppress unless we conclude there is insufficient competent evidence to support the decision or the decision is contrary to the manifest weight of the evidence. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478; City of Jamestown v. Dardis, 2000 ND 186, ¶ 7, 618 N.W.2d 495; City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). This standard of review accords great deference to the district court’s findings of fact, recognizing the district court is in a superior position to assess credibility of the witnesses and weigh the evidence. Dardis, at ¶ 7; City of Mandan v. Leno, 2000 ND 184, ¶ 6, 618 N.W.2d 161. Questions of law, however, are fully renewable. Lawrence, at ¶ 7; Dardis, at ¶ 7.

[¶ 9] The City argues the trial court erred in suppressing Wonder’s response to questions about her age. The City contends there was no evidence to support the trial court’s finding that the officers asked those partygoers under age 21 to raise their hand, and that any statement about Wonder’s age is subject to a “booking exception” to the Miranda requirements.

[¶ 10] The City does not contest the trial court’s finding that Wonder was in custody for purposes of Miranda at all relevant times after the officers entered the apartment. The City’s arguments focus exclusively upon the “interrogation” prong of Miranda. Specifically, the City argues the officers asked those partygoers over 21, not those under 21, to raise their hands. The City thus asserts the question was not “directed at” Wonder or anyone else under age 21, and therefore, did not constitute “interrogation” of Wonder. The City conceded at oral argument that, if those under 21 were asked to raise their hands, it would constitute custodial interrogation in violation of Miranda.

[¶ 11] We need not reach the City’s assertion that asking those under 21 to raise their hands is hnconstitutional but asking those over 21 to do so'is not, because we conclude there is sufficient evidence in the record to support the trial court's finding that the officers asked those under 21 to raise their hands. At the suppression hearing, the two police officers called by the City to testify gave somewhat conflicting testimony oh the specific nature of the question asked. Although the officers were part of the “party patrol” that responded to the loud party at the apartment, neither of the officers who testified actually asked the disputed questions in the apartment and neither actually recalled the questions being asked. Rather, they testified about their usual practice when investigating a loud party complaint. Each testified it was common practice to ask those under 21 to raise their hands. At another point in his testimony, one of the officers testified the common practice was to ask those over 21 to raise their hands.

[¶ 12] The trial court’s finding that those under 21 were asked to raise their hands is supported by sufficient competent evidence in the record. The City has conceded that asking that question would violate Miranda.

[¶ 13] The City also contends that Miranda does not apply to “[r]outine questions, common to the booking process, dealing with biographical data.” In support, the City quotes United States v. Horton, 873 F.2d 180, 181 n. 2 (8th Cir.1989): “It is well established that Miranda does not apply to biographical data necessary to complete booking-or pretrial services.”

[¶ 14] Courts have reached conflicting viewpoints on application of Miranda when a booking question relates to an element of the charged offense or when a question is likely to elicit an incriminating response. Some courts hold Miranda simply does not apply to questioning about routine biographical data, including age, during the booking process. See, e.g., People v. Dalton, 91 Ill.2d 22, 61 Ill.Dec. 530, 434 N.E.2d 1127, 1129 (1982); Watt v. State, 412 N.E.2d 90, 97 (Ind.Ct.App.1980); Upshaw v. State, 350 So.2d 1358, 1364-65 (Miss.1977). Other courts,' however, hold that Miranda bars questioning during booking about biographical data which relates directly to'an element of the offense or is likely to elicit incriminating information. See, e.g., United States v. Equihua-Juarez, 851 F.2d 1222, 1226-27 (9th Cir.1988), abrogated on other grounds by Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983); State v. Locklear, 138 N.C.App. 549, 531 S.E.2d 853, 855 (2000). In Pennsylvania v. Muniz, 496 U.S. 582, 602 n. 14, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the United States Supreme Court noted that recognizing a “booking exception” to Miranda does not mean that all questions asked during the booking process are permissible, and “the police may not ask questions, even during booking, that are designed to elicit incriminating admissions” without first complying with Miranda.

[¶ 15] We need not address this issue, however, because the interrogation at issue in this case was not routine questioning during the booking process. Rather, the questioning of the partygoers occurred before any of them were arrested and was clearly intended to establish an element of a suspected crime. Where the questioning did not arise in a “booking” setting, was related to an element of the suspected crime, and was reasonably likely to elicit an incriminating response, the “booking exception” does not apply. See United States v. Disla, 805 F.2d 1840, 1347 (9th Cir.1986).

[¶ 16] Under these circumstances, we conclude the trial court did not err in suppressing evidence of Wonder’s response to the question about her age.

Ill

[¶ 17] The City contends the trial court erred in suppressing the results of Wonder’s preliminary breath screening-test. The trial court concluded the preliminary breath test constituted a search “which was performed without a warrant and without individual, particularized suspicion directed at Defendant.”

[¶ 18] Unreasonable searches and seizures are prohibited by the Fourth Amendment of the United States Constitution, made applicable to the states under the Fourteenth Amendment, and by Article I, Section 8, of the North Dakota Constitution. City of Fargo v. Ellison, 2001 ND 175, ¶ 9, 635 N.W.2d 151; City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. Warrantless searches are unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. Dardis, at ¶ 9; State v. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. Once the defendant establishes a prima facie case, State v. Glaesman, 545 N.W.2d 178, 182 n. 1 (N.D.1996), the burden is then on the prosecution to show the warrantless search falls within a recognized exception to the warrant requirement. Dardis, at ¶ 9; City of Fargo v. Lee, 1998 ND 126, ¶ 8, 580 N.W.2d 580.

[¶ 19] This Court has concluded that the extraction of blood to determine blood alcohol content is a search under the Fourth Amendment. State v. Kimball, 361 N.W.2d 601, 604 (N.D.1985); State v. Anderson, 336 N.W.2d 634, 640 (N.D.1983); State v. Abrahamson, 328 N.W.2d 213, 216 (N.D.1982). Similarly, it is well-settled that administration of a breath test to determine alcohol consumption is a search. See, e.g., Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449 (9th Cir.1986); Blank v. State, 3 P.3d 359, 366 (Alaska Ct.App.2000); Blair v. Commonwealth, 115 Pa.Cmwlth. 293, 539 A.2d 958, 960 (1988); State v. Locke, 418 A.2d 843, 846-47 (R.I.1980); 1 Wayne R. LaFave, Search and Seizure § 2.6(a) (1996). We conclude the administration of the preliminary breath test to Wonder constituted a search. Consequently, the City had the burden of establishing that the search fell within a recognized exception to the warrant requirement.

[¶ 20] The City contends Wonder voluntarily consented to the breath test. Consent is a recognized exception to the warrant requirement. Ellison, 2001 ND 175, ¶ 11, 635 N.W.2d 151; Dardis, 2000 ND 186, ¶ 9, 618 N.W.2d 495. Only consent which is voluntarily given will validate the search, and the consent must not be coerced by explicit or implicit means or by implied threat or covert force. See Ellison, at ¶ 13; State v. DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579.

[¶ 21] There was conflicting evidence whether Wonder consented to the breath test. One of the police officers testified that, as a matter of routine, “we always make sure we get consent from the people before doing any breath tests.” The officer did not, however, administer the breath test to Wonder and did not have personal knowledge whether Wonder was asked to consent. The officer further stated that all of those under-21 were routinely asked to take a breath test and were not free to leave until officers determined whether or not they had been drinking. Cf. United States v. Drayton, — U.S. -, -, 122 S.Ct. 2105, 2112-14, 153 L.Ed.2d 242 (2002) (concluding officers’ failure to advise bus passengers of their right not to cooperate or to refuse to consent to searches did not violate the Fourth Amendment where the officers gave the passengers no reason to believe they were required to answer questions and nothing was said to suggest to a reasonable person that he or she was not free to leave the bus or otherwise terminate the encounter).

[¶ 22] Based upon this evidence, the trial court found that the officers had indicated to Wonder and the other under 21 partygoers that they “would not be able to leave until they submitted to a preliminary breath test” and “a reasonable person in Defendant’s position would not have felt free to refuse the police officers’ questions or the preliminary breath test.” Upon our review of the record, we conclude there is sufficient evidence to support the trial court’s findings and they are not contrary to the manifest weight of the evidence.

[¶ 23] We further note that Wonder was not under arrest when she was given the preliminary breath test, and there was no evidence presented that the officers had observed any of the customary outward manifestations of alcohol consumption by Wonder, such as glassy eyes, slurred speech, or the odor of alcohol. Rather, the trial court’s findings indicate the officers on the scene detained all par-tygoers who could not present identification showing they were over 21, conducted custodial interrogation seeking to elicit incriminating responses without complying with Miranda, and then required the par-tygoers to submit to breath tests. There is no indication that the officers had an individualized, particularized suspicion or probable cause to believe that Wonder had committed a crime. Mere presence at the scene of a crime is not sufficient to support a warrantless search. See State v. Serr, 1998 ND 66, ¶ 14, 575 N.W.2d 896; State v. Gilberts, 497 N.W.2d 93, 97 (N.D.1993).

[¶ 24] We conclude the City has failed to establish the warrantless search falls within one of the recognized exceptions to the warrant requirement, and the trial court did not err in suppressing the results of the preliminary breath test.

IV

[¶ 25] Wonder has moved to strike portions of the City’s appendix for violations of the North Dakota Rules of Appellate Procedure and seeks costs for bringing the motion.

[¶ 26] Under N.D.R.App.P. 30(a), only items actually in the record may be included in the appendix, and a signature on the appellate brief under N.D.R.App.P. 28 certifies compliance with this rule. Community Nat’l Bank of Grand Forks v. Husain, 1999 ND 201, ¶ 13, 600 N.W.2d 886; Hurt v. Freeland, 1997 ND 194, ¶ 11, 569 N.W.2d 266. The City concedes it included in its appendix two documents which were not part of the record, and referenced one of those documents in its argument in the briefs.

[¶ 27] This Court applies N.D.R.App.P. 13 as an enforcement tool to encourage compliance with the North Dakota Rules of Appellate Procedure. Husain, 1999 ND 201, ¶ 13, 600 N.W.2d 886; Hurt, 1997 ND 194, ¶ 12, 569 N.W.2d 266. The determination whether to administer sanctions under Rule 13 for noncompliance with the Rules of Appellate Procedure lies wholly within the discretion of this Court. Husain, at ¶ 13; Hurt, at ¶ 13; Lake Region Credit Union v. Crystal Pure Water, Inc., 502 N.W.2d 524, 528 (N.D.1993). In order to encourage respect for and compliance with the appellate rules, we have on numerous occasions assessed sanctions for failure to comply with the rules governing preparation of the appendix on appeal. See Husain, at ¶¶ 13-14; Hurt, at ¶¶ 9-15; Sternberger v. City of Williston, 556 N.W.2d 288, 290 n. 1 (N.D.1996); Lake Region Credit Union, at 528; Bye v. Federal Land Bank Ass’n, 422 N.W.2d 397, 398-99 (N.D.1988); In re Estate of Raketti, 340 N.W.2d 894, 897-98 (N.D.1983).

[¶ 28] We grant Wonder’s motion to strike the improper materials from the appendix and we assess costs in the amount of $486.00 against the City to compensate Wonder for her costs in preparing the motion for sanctions,

V

[¶ 29] We have considered the remaining arguments raised by the City and find them to be without merit.

[¶ 30] The order suppressing evidence is affirmed. Wonder’s motion for sanctions is granted and we assess costs for bringing the motion in the amount of $486.00 against the City.

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

        . The City argues it should be allowed to introduce evidence of Wonder's age acquired during the actual booking process. The district court's order only suppressed Wonder’s responses to the officer’s questioning at the apartment. The admissibility of any statements made by Wonder during the actual booking process at the police station is not before us on appeal.

        . The trial court also suppressed Wonder’s response to questions asking whether she had been drinking alcohol. The City has not specifically challenged that part of the suppression order and, in fact, argues no such questions were asked of Wonder. The City concedes that, if such questions were asked, it was improper custodial interrogation in violation of Miranda.