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

text:
    2002 ND 159
    Brian J. QUAMME, Plaintiff and Appellant, v. Joann L. BELLINO, f/k/a Joann L. Quamme, Defendant and Appellee.
    No. 20020024.
    Supreme Court of North Dakota.
    Oct. 15, 2002.

      John D. Bullís, Lies & Bullís, Wahpeton, N.D., for plaintiff and appellant.
    Mark A. Meyer, Meyer Law Firm, Wah-peton, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Brian J. Quamme appealed from an amended judgment awarding Quamme’s former spouse, Joann L. Bellino, permanent spousal support. We hold the trial court retained jurisdiction to make an award of permanent spousal support, the court’s finding there was a material change of circumstances justifying an award of permanent spousal support was not clearly erroneous, and the trial court did not abuse its discretion in reserving the issue of whether the spousal support award should terminate upon Quamme’s death. We affirm.

I

[¶ 2] Quamme and Bellino were married in August 1976. In September 1982 their son, Adam, was born, and in September 1984 their daughter, Breanna, was born. The parties were divorced in October 1991. In April 1995, the district court entered an amended judgment awarding Bellino rehabilitative spousal support of $500 per month for four years. In December 1996, the court increased the spousal support to $709 per month, retroactive to April 1995. On March 11, 1999, prior to expiration of the temporary support award, Bellino filed a motion asking the district court to award her permanent spousal support. In a May 12, 1999 order, the district court continued Bellino’s motion until September 1, 1999, for the purpose of allowing her to obtain additional financial records from Quamme.

[¶ 3] Bellino renewed her motion for permanent spousal support on February 5, 2000. A hearing was held on May 2, 2000, and on July 24, 2000, the court entered an order denying Bellino’s request for permanent spousal support but reserving “the issue of rehabilitative and/or permanent spousal support until such time as the parties’ first child becomes emancipated and until a reasonable time after the last child is emancipated.”

[¶ 4] On August 17, 2001, Bellino again filed a motion requesting permanent spousal support. A hearing on that motion was held on September 20, 2001. The court entered an order and amended judgment on December 14, 2001, awarding Bel-lino permanent spousal support of $764 per month from October 2001 until September 2003, and permanent support of $1,500 per month commencing October 2003, to be terminated upon Bellino’s death or remarriage. Quamme appealed.

II

[¶ 5] Quamme asserts the trial court lost jurisdiction to award permanent spousal support when the support issue was not resolved by September 1, 1999, the date to which the court continued Bel-lino’s March 11, 1999 motion for permanent spousal support, and Bellino did not renew the motion until February 5, 2000.

[¶ 6] The issue whether a trial court lacks subject matter jurisdiction to modify an original spousal support order is a question of law which is fully reviewable by this Court on appeal. Bellefeuille v. Bellefeuille, 2001 ND 192, ¶ 17, 636 N.W.2d 195. When there has been an initial award of spousal support, the district court retains jurisdiction to modify the award at least as long as the spousal support continues. Id. at ¶ 19.

[¶ 7] In an appeal brought by Bellino from a prior amended judgment in this case, she argued the district court erred in failing to specifically retain jurisdiction to award permanent spousal support in the future. In resolving that appeal, this Court in Quamme v. Bellino, 540 N.W.2d 142, 147 (N.D.1995), concluded:

At least as long as spousal support continues, the district court retains jurisdiction to award permanent spousal support. If circumstances merit, before the rehabilitative spousal support ends, Bel-lino may apply for further spousal support, or for reservation of jurisdiction over the issue.

(Citations omitted.)

[¶ 8] Bellino did move for permanent spousal support on March 11, 1999, prior to the termination of the four-year temporary spousal support award which began in April 1995. After a hearing, the district court continued Bellino’s motion for permanent spousal support until September 1, 1999, for the purpose of allowing her to obtain additional financial records from Quamme. The issue was not resolved by September 1, 1999, and Quamme argues the district court lost jurisdiction to award permanent spousal support because Belli-no did not formally renew her motion until February 5, 2000. However, Quamme has not directed our attention to any case which holds that a pending motion in a trial court automatically terminates when the court continues the motion to a specified date and the issue is not resolved by that date.

[¶ 9] The facts of this case are clearly distinguishable from the facts in Bellefeuille v. Bellefeuille, 2001 ND 192, ¶ 10, 636 N.W.2d 195, wherein this Court held the trial court lost jurisdiction to modify a spousal support award. In Bel-lefeuille the court awarded spousal support in the original divorce decree to the wife “terminating] at the end of the 5th year following entry of the judgment decree granting the divorce or until the death of the wife, whichever shall first occur.” Id. at ¶ 4. The obligee did not request modification of the award until nearly 16 years after the last spousal support payment was made. Under those circumstances, this Court held the trial court was without jurisdiction to modify the original spousal support award. Here, Bellino moved for a modification of spousal support during the time support payments were being made under the original divorce decree. Before an award of rehabilitative spousal support terminates, the obligee can apply for further support and the trial court retains jurisdiction to act on the request. Id. at ¶ 19. Clearly, the trial court retained jurisdiction to act on Bellino’s motion for permanent spousal support.

[¶ 10] Furthermore, there is no indication in the district court’s order or pronouncements from the bench that the court intended Bellino’s motion to expire on September 1, 1999. In the May 12, 1999 order the district court states: “In the event [Bellino’s] motion is not resolved on or before September 1, 1999, [Quamme] shall make payments of $400 per month toward the existing child support arrear-age owed [Bellino].” While presiding over the May 2, 2000 hearing, the court, in response to a discussion about expert testimony regarding the parties’ financial circumstances, stated:

I didn’t anticipate this thing would continue for a year but it takes time to get the information. I understand. So I am not going to bar him at this point. I will see where it goes.

A trial court’s clarification of a previously entered, decree by that same court is given considerable deference by this Court in construing the original order or decree. Dakutak v. Dakutak, 1997 ND 76, ¶ 6, -562 N.W.2d 750; Anderson v. Anderson, 522 N.W.2d 476, 478 (N.D.1994). The trial court clearly did not intend the motion would expire on September 1, 1999 if not resolved at that time by the court, and we give deference to the trial court’s view of its order continuing the motion.

[¶ 11] ' Under these circumstances, we conclude the district court did not lose jurisdiction to decide Bellino’s motion for permanent.spousal support. The motion was timely filed prior to expiration of the temporary spousal support award. Although it took the parties longer than anticipated by the court to secure relevant financial records, there is nothing specific in the court’s orders or statements to conclude Bellino’s March 11, 1999 motion was to expire prior to the court’s resolution of it on the merits or that she needed to obtain an extension. We, therefore, hold the district court retained jurisdiction to resolve the spousal support issue.

III

[¶ 12] Quamme asserts there has been no material change of circumstances since the original award of rehabilitative spousal support to justify a change awarding Bellino permanent spousal support.

[¶ 13] While temporary spousal support to rehabilitate a disadvantaged spouse is preferred, spousal support may be required indefinitely to maintain a spouse who cannot be adequately retrained to independent economic status, van Oosting v. van Oosting, 521 N.W.2d 93, 100 (N.D.1994). We explained the standard for modifying spousal support in Wheeler v. Wheeler, 419 N.W.2d 923, 925 (N.D.1988):

To modify spousal support, circumstances must have changed materially. Slight, or even moderate, changes in the parties’ relative incomes are not necessarily material. “Material change” means something which substantially affects the financial abilities or needs of a party. The reason for changes in income must be examined, as well as the extent that the changes were contemplated at the time of the agreed decree.

(Citations omitted.)

[¶ 14] The party seeking modification of spousal support bears the burden of showing a material change in circumstances warranting a modification. Schmitz v. Schmitz, 1998 ND 203, ¶ 5, 586 N.W.2d 490. A district court’s determination of changed circumstances justifying a modification of spousal support is a finding of fact, which will only be set aside on appeal if it is clearly erroneous. Id. Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire record this Court is left with a definite and firm conviction that a mistake has been made. Id. A material change in circumstances means something which substantially affects the parties’ financial abilities or needs, and the reasons for changes in income must be examined as well as the extent the changes were contemplated by the parties at the time of the initial decree or a subsequent modification. Schmalle v. Schmalle, 1998 ND 201, ¶ 12, 586 N.W.2d 677. A contemplated change is one taken into consideration by the district court in fashioning its original decree. Schmitz, 1998 ND 203, ¶ 12, 586 N.W.2d 490. A change which can now be called foreseeable with the benefit of hindsight is not necessarily a change contemplated by the district court at the time of the original divorce decree. Id.

[¶ 15] In awarding Bellino rehabilitative spousal support, commencing April 19, 1995, the district court explained its rationale and purpose for making the award, upon finding substantial inequality of income between the parties:

[Quamme] was and is a professional carrying on a practice in dentistry. [Belli-no] had little or no education beyond high school at the time of the divorce and would probably not qualify for much more than a minimum wage paying job had she entered the job market at the time of the divorce.
.... [Bellino] has sought to improve her situation by attending the University of Bemidji, Minnesota from which she expects to graduate in May of 1995 with a degree in business. Her employment opportunities should substantially improve at that time; however, she will have loans to repay for her college education.
Most of the observations generally made about divorces of this nature, where the spouse of one party provides the income while the other party is earning a professional degree, are true. Those general observations include the fact that the professional person is much more readily able to better their condition after the divorce and seek to maintain their standard of living and improve their standard of living, while the non-professional spouse lives at a somewhat reduced level and is generally not in a position to improve that level substantially. .That is the situation that we have here.
... Spousal support is awarded to [Bel-, lino] commencing April 1, 1995 at the rate of $500.00 per month for a period of four years. This support is awarded for rehabilitative purpose and will assist [Bellino] in meeting some of her accumulated college obligations, as well as provide an opportunity for her to improve her economic condition.

[¶ 16] The evidence shows that Bellino acquired a college degree in business and, after searching many job opportunities, accepted a position as a child protection case agent with the Beltrami County Human Services office in Bemidji. The evidence shows her net income as $1,710 per month. The court found Quamme’s income is at least four times Bellino’s present income, with his 1999 dental practice tax return showing gross income of $245,307. The evidence also shows that Bellino has continued to seek better paying positions in the area and has applied for two such positions with her current employer, but she was not offered either position.

[¶ 17] In its December 14, 2001 decree, the trial court explained in detail its finding of changed circumstances and reasons for awarding permanent spousal support:

In the present case, the rehabilitative spousal support earlier awarded to Joann has not adequately allowed her to rehabilitate to the degree necessary to maintain anywhere near her pre-divorce standard of living. While she has obtained a college degree, she is still earning net income — about $1,710 per month — of less than one-fourth that of Brian’s net income-about $6,860 per month.
... It is not practical for Joann to return to school and try to earn an advanced degree so as to increase her earning ability for a number of reasons. First, she cannot afford to quit her job and lose her monthly .earnings. Second, she cannot afford graduate school. Third, even if she could afford graduate school, she is needed at home to raise the parties’ children and put them through college. Fourth, even if she could afford graduate school, it is unlikely an advance degree would provide sufficient increased income to offset the time and money it would take to accomplish that degree. And fifth, a better job, with or without schooling, is unlikely because of Joann’s age (she is 49), skills, and residence. For all of these reasons, it is clear to the Court that permanent spousal support is called for in this case.
[T]his Court contemplated, back in 1995, that Joann would be able to find gainful employment after obtaining her college degree in order to “improve her economic condition.” That has not happened. ... This Court also contemplated, back in 1995, that the rehabilitative spousal ■support would be used by Joann to attend school in order to improve her standard of living substantially. Again, that has not happened.
... Joann, despite using her best efforts, still earns four' times less than Brian. Those efforts include a constant search for better employment both within and outside of her current employment agency. She has not even applied for a different job outside her employment agency because she is either not qualified or the job does not pay what she is now earning.
The Court concludes by noting that the 15 years of the parties’ marriage occurred during the time period when Joann was in the best position to advance economically AND when Brian was in the best position to advance economically. It is common knowledge that once a person reaches their late 30s, the doors to economic advantage are just about closed, especially if one has two young children. Joann has foregone opportunities and has contributed during the marriage to the supporting spouse’s increased earning capacity. Permanent spouse [sic] support is appropriate in this case, since Joann, as the economically disadvantaged spouse, cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.

[¶ 18] The trial court’s findings provide a detailed explanation and rationale for its decision to award permanent spousal support subsequent to the court’s attempt to mitigate Bellino’s disadvantage by the divorce with rehabilitative spousal support. In awarding rehabilitative support in 1995 the trial court contemplated that Bellino, by raising her level of education, would be able to overcome the economic disadvantages caused by the divorce and substantially improve her earning capacity to a level closer to Quamme’s earning capacity. For various reasons beyond Bellino’s control that has not happened, and the court found that Bellino’s inability to substantially improve her earning capacity constitutes a substantial change of circumstances justifying an award of permanent spousal support. The trial court here, like the trial court in Schmitz, 1998 ND 203, ¶ 15, 586 N.W.2d 490, found that in spite of the obligee spouse’s good faith effort at rehabilitation she has been unable to obtain substantial enhancement of her economic earning capacity and that failure constitutes a change of circumstances not contemplated by the court and one which justifies an award of permanent spousal support. Under these circumstances, we hold the trial court’s finding of a change of circumstances justifying an award of permanent spousal support for Bellino is supported by the evidence and is not clearly erroneous.

IV

[¶ 19] Quamme asserts the trial court erred in failing to specify that Belli-no’s spousal support award must terminate upon Quamme’s “reasonable retirement or death.” Nowhere in Quamme’s briefing of this issue does he state that he requested that if the court awarded permanent spousal support Quamme’s obligation should terminate upon his death or retirement. The district court did, however, state in the December 14, 2001 decree that the spousal support obligation would terminate upon Bellino’s “death or remarriage,” and that the court was reserving the issue of whether the support obligation “would terminate upon [Quamme’s] death.”

[¶ 20] This Court has held that a spousal support obligee is entitled to payment from the obligor’s estate where the divorce decree directs the obligor to make support payments to the obligee until her remarriage or death. See Stoutland v. Stoutland’s Estate, 103 N.W.2d 286, 291 (N.D.1960). Following the rationale of Stoutland, this Court in Gierke v. Gierke, 1998 ND 100, ¶ 28, 578 N.W.2d 522, con-eluded that, absent modification language in the support award, the obligee is entitled to spousal support from the obligor’s estate if the obligor predeceases the obli-gee. This Court has also concluded that if a spousal support obligor believes his retirement would constitute a change of circumstances he can move to amend his post-retirement spousal support obligation. Laude v. Laude, 1999 ND 203, ¶ 9, 600 N.W.2d 848.

[¶ 21] In this case, the district court has reserved the issue whether Quamme’s estate would be responsible to continue making support payments if Quamme predeceases Bellino. Under these circumstances, we are unpersuaded the trial court erred in setting the duration of Quamme’s spousal support obligation.

V

[¶ 22] We hold the trial court had jurisdiction to award permanent spousal support in this case, the trial court’s finding there is a material change of circumstances justifying an award of permanent spousal support is not clearly erroneous, and the court did not err in failing to require the support award to terminate upon Quamme’s reasonable retirement or death. The December 14, 2001 amended judgment of the district court is affirmed.

[¶ 23] MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ, concur.

I concur in the result: DALE V. SANDSTROM.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 24] I agree with parts I, II and III of the majority opinion. I concur in part IV with the understanding that upon Brian Quamme’s retirement or death a motion to continue or terminate the support payment will not be denied solely on the ground retirement or death was anticipated at the time the order was issued and therefore cannot constitute a change in circumstances.

[¶ 25] In Stoutland v. Stoutland’s Estate, 103 N.W.2d 286 (N.D.1960), cited by the majority opinion, the issue was whether the statute permitted a trial court to order spousal support after the death of the obligor. There was no reservation of the issue such as there was in this instance. In other similar cases decided by this Court the issue of spousal support after the death of the obligor was not reserved by the trial court but rather spousal support ordered by the trial court was to continue after death. Gierke v. Gierke, 1998 ND 100, 578 N.W.2d 522; Seablom v. Seablom, 348 N.W.2d 920 (N.D.1984); Matter of Estate of Gustafson, 287 N.W.2d 700 (N.D.1980).

[¶26] Prior to August 1, 2001, N.D.C.C. § 14-05-24 provided that a court “from time to time may modify its orders in these respects.” Essentially the same language is now found in N.D.C.C. § 14-05-24.1, effective August 1, 2001, i.e., the court “may modify its spousal support orders.” But our prior cases construing N.D.C.C. § 14-05-24 have required an “unforeseen material change in circumstances” before a modification in spousal support may be made. E.g., Cermak v. Cermak, 1997 ND 187, ¶ 17, 569 N.W.2d 280; Wheeler v. Wheeler, 548 N.W.2d 27, 30 (N.D.1996). Death cannot be unforeseen. Yet in this instance, where the trial court reserves the issue of continuation of spousal support after Quamme’s death, there can be no contention that death was anticipated, and therefore a motion to discontinue or to continue, spousal support is unavailable because no unforeseen change in circumstances exists. Rather, I assume the trial court’s purpose was to determine whether Bellino was still in need of spousal support and whether Quamme’s estate could continue to pay the support at the time of the subsequent motion. This procedure is apparently authorized by statute and. our prior case law. It leaves the parties unsettled although it does allow the court to review the status of the parties at the time of Quamme’s death without any other material change of circumstances.

[¶ 27] WILLIAM A. NEUMANN, J., concurs.

KAPSNER, Justice,

concurring.

[¶ 28] I concur. Specifically in Section IV of the majority opinión, we hold the trial court was not in error in retaining jurisdiction to decide at a later time whether spousal support may continue after the death of Quamme. That authority derives from N.D.C.C. § 14-05-24, currently codified at N.D.C.C. § 14-05-24.1. However, I write separately to indicate that I do not wish to extend the life of the cases which have held that spousal support continues after the death of the payor spouse merely upon application of language that requires support “during the life of the payee spouse.” Those cases were exceptional when decided and should continue to be regarded as unusual. In Stoutland v. Estate of Stoutland, 103 N.W.2d 286, 287 (N.D.1960) (citations omitted), the court held the language which directed spousal support “to continue until the remarriage of said plaintiff or her death” was sufficient to create an exception to the “general rule” on the continuity of spousal support. In that case, the court noted “[i]t is the general rule that in the absence of an agreement between the parties or a statute providing otherwise, periodic payments of alimony terminate upon the [pay- or’s] death where the decree is silent as to the duration of the payments.” Id. at 288-89.

[¶ 29] A similar result was reached in Estate of Gustafson, 287 N.W.2d 700 (N.D.1980). In that case, this Court again referred to the “general rule” that the pay- or’s death terminates the obligation to support. Id. at 701. However, spousal support payments were ordered to be continued because the trial court had considered the award of alimony to be part of the property settlement. That analysis was key to this Court’s holding that the claim for payments survived the death of the payor husband. Id. at 702.

[¶ 30] Likewise, in Seablom v. Seablom, 348 N.W.2d 920 (N.D.1984), this Court was faced with a payment that was labeled alimony but held it was actually a part of the property division. Id. at 924. The payment was a monthly sum which did not terminate upon the remarriage or death of either party. Id. Because the possibility of continuation after the death of the payee spouse which would not serve the purposes for which spousal support was designed, this Court held the payment was a form of property division. Id. at 925. Although Seablom, at 924, and the later case of Gierke v. Gierke, 1998 ND 100, ¶ 28, 578 N.W.2d 522, cited Stoutland for the proposition that the obligor’s death does not necessarily terminate the payment of spousal support, neither case considered whether the “general rule” applied.

[1131] The “general rule” is more in keeping with the expectations of support. It is an obligation which relates to the existing needs of the recipient and the ability of the payor to give support. See Schmitz v. Schmitz, 2001 ND 19, ¶ 10, 622 N.W.2d 176. Therefore, the “general rule” should be applied in the absence of an explicit showing that it was not intended. We have stated that the remarriage of the payee spouse creates a prima facie case for termination of spousal support, unless there are extraordinary circumstances justifying the continuance of support. Pearson v. Pearson, 2000 ND 20, ¶ 7, 606 N.W.2d 128. The death of the payor spouse should be similarly treated. The obligation to pay spousal support would presumably terminate on the death of the obligor, absent a clear expression of intent to the contrary. The burden of proving the intent that spousal support payments continue after the obligor’s death should be on the party asserting the continuation. See 24A Am.Jur.2d Divorce and Separation § 1189 (1998). If treated as a prima facie case for termination, an agreement which calls for termination upon the remarriage or death of the recipient spouse, but is silent about the death of the payor spouse, would not be a sufficient indication of an explicit contrary intent. Id.

[¶ 32] Such treatment would be consistent with the normal expectation that support obligations terminate at death while recognizing that either the court or the parties to a divorce that is settled by agreement would have the ability to place their situation outside of the application of the “general rule” when circumstances so warrant.

[¶ 33] CAROL RONNING KAPSNER

      . The amount of temporary rehabilitative spousal support was increased to $709 per month in the court’s December 3, 1996 amended judgment.

      . In 2001, the legislature amended N.D.C.C. § 14-05-24 (currently codified at N.D.C.C. § 14-05-24.1), which previously stated the court could award spousal support to one party "during life or for a shorter period” to now allow the court to require a party to pay spousal support to the other party "for any period of time.” As amended, the statute gives the court authority to award support at least as broadly, if not more so, than the court had under the predecessor statute.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2002 ND 163
    STATE of North Dakota, Plaintiff and Appellee, v. Andre JONES, Defendant and Appellant.
    No. 20020104.
    Supreme Court of North Dakota.
    Oct. 15, 2002.

      Richard E. Edinger, Fargo, ND, for defendant and appellant.
    Wade L. Webb, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Andre Jones appeals the trial court’s denial of his motion to extend the time to appeal. We affirm.

[¶ 2] On November 28, 2001, the State petitioned to revoke Andre Jones’s probation. At the revocation hearing on February 4, 2002, the trial court ruled Jones had willfully violated conditions of probation. The trial court revoked Jones’s earlier sentence and resentenced him to five year’s imprisonment. The trial court did not inform Jones of his right to appeal and his right to the assistance of court-appointed counsel. Jones filed a notice of appeal on February 27, 2002, and the State moved to dismiss the appeal because it was untimely. Jones moved to extend the time to appeal, under N.D.R.App.P. 4(b)(3) and N.D.R.Crim.P. 37(b)(3), arguing excusable neglect because Jones was not informed of his right to appeal by the trial court. , The trial court denied the motion, stating Jones did not have to be notified of such right. Jones appeals.

[¶ 3] Jones argues the trial court was required to notify him of his right to appeal the revocation of his probation and its failure to do so constituted excusable neglect. Jones maintains that because of the excusable neglect, the late filing of his notice of appeal on February 27, 2002, was within the extra thirty-day period allowed under the North Dakota Rules of Criminal and Appellate Procedure and the filing was therefore timely.

[¶ 4] In the case at bar, we are asked to determine whether excusable neglect exists to extend the time to appeal when the trial court did not inform the defendant of his right to appeal the order revoking probation.

[¶ 5] A trial court has sound discretion in deciding a motion for an extension of time to file an appeal based on excusable neglect. State v. Latendresse, 450 N.W.2d 781, 782 (N.D.1990). We review a trial court’s decision on a motion to extend the time to file an appeal for an abuse of discretion. Id. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner. Id.

[¶ 6] In a criminal case, a defendant’s appeal “must be filed with the clerk of the trial court within ten days of the entry of the judgment or order appealed from.” N.D.R.App.P. 4(b); NJD.R.Crim P. 37(b). The ten-day period for filing a notice of appeal may be extended by the trial court for an additional thirty days upon a showing of excusable neglect. N.D.R.App.P. 4(b)(3); N.D.R.Crim.P. 37(b)(3). After sentencing in a case that has gone to trial, a trial court “shall advise the defendant of the defendant’s right to appeal.... ” N.D.R.Crim.P. 32(a)(2). After a probation revocation hearing, a trial court “may revoke an order suspending a sentence or an order suspending the imposition of a sentence, or continue probation on the same or different conditions, as the circumstances warrant. A record of the proceedings must be made.” N.D.R.Crim.P. 32(f).

[¶ 7] A showing of excusable neglect is required before a trial court may grant an extension of the time for appeal. State v. DuPaul, 527 N.W.2d 238, 243 (N.D.1995) (stating a party must show that unique or extraordinary circumstances caused that party to not file a timely notice of appeal); N.D.R.App.P. 4(b)(3); N.D.R.Crim.P. 37(b)(3). Jones, however, failed to submit affidavits or evidence to the trial court setting forth any excusable neglect on the part of the defendant or his counsel. Jones’s only argument to the trial court was it was error for the trial court not to have advised the defendant of his right to appeal the revocation of his probation. While Rule 32(a)(2), N.D.R.Crim.P., which controls sentencing and judgment after trial, requires the trial court to advise the defendant of a right to appeal, Rule 32(f), N.D.R.Crim.P., which controls revocation of probation, does not require a trial court to do so. N.D.R.Crim.P. 32(f). Because nothing in Rule 32(f), N.D.R.Crim.P., requires the trial court to advise a defendant of the right to appeal at a revocation hearing, we conclude the trial court’s failure to do so does not constitute “excusable neglect.” In the complete absence of any showing of excusable neglect, the trial court’s denial of Jones’s request for an extension was not an abuse of discretion. DuPaul, 527 N.W.2d at 243. The trial court’s denial of Jones’s request for an extension of time to file a notice of appeal is affirmed.

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


author: AMUNDSON, Justice. SABERS, Justice

text:
    2002 SD 97
    Jim SCHWAIGER, M.D., Plaintiff and Appellant, v. MITCHELL RADIOLOGY ASSOCIATES, P.C., Defendant and Appellee.
    No. 22197.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided Aug. 7, 2002.

      Robert A. Christenson, Sioux Falls, Jonathan K. Van Patten, Vermillion, for plaintiff and appellant.
    Monte R. Walz of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee.
   AMUNDSON, Justice.

[¶ 1.] Jim Schwaiger (Schwaiger), a radiologist, sued Mitchell Radiology Associates, P.C. (MRA), for misrepresentations that allegedly occurred while MRA was recruiting Schwaiger as an employee. The trial judge granted MRA’s motion for summary judgment. Schwaiger appeals. We affirm.

FACTS

[¶2.] This dispute stems from actions that took place prior to Schwaiger’s association with MRA. Dr. David Rundel (Run-del) and Dr. Carey Buhler (Buhler), both radiologists, formed MRA. Each owned an equal number of shares in the corporation and had equal ownership and voting rights. In 1994, a disagreement between Buhler and Rundel arose from Rundel’s failure to disclose a medical malpractice claim against him to Buhler, which impacted their malpractice insurability. In resolving the dispute, the two signed an agreement stating Buhler would take over most of the management responsibilities of the corporation, and that Rundel would vote for Buhler as president and treasurer as long as Rundel was a director of the corporation. In essence, control of the corporation shifted to Buhler.

[¶ 3.] MRA began hiring additional staff, and Schwaiger responded to a posting for a radiology position. Schwaiger claims that during the initial discussions, Buhler and Rundel commented on the potential for a “partnership” position within a short time after acting as an employee of MRA. Schwaiger came from Texas to Mitchell twice to visit MRA and discuss possible employment. He claims the discussions all indicated that there would be an opportunity to become a “full partner.” After initially turning down MRA’s offer for employment, Schwaiger later left a position in Texas and called Rundel to see if the job was still open. It was, and the parties again negotiated for Schwaiger’s employment at MRA. Based on Schwaiger’s desire to become a partner more quickly, the parties agreed that his salary would be reduced in exchange for lessening the amount of time before Schwaiger could be considered for partner from two years to one year.

[¶ 4.] On April 8, 1998, Schwaiger signed a one-year employment contract with MRA, which included the following clause:

18. Eligibility to Purchase stock: Following completion of twelve (12) full months of employment, Corporation or its shareholders shall consider selling to Employee a stock ownership interest in the Corporation. The Corporation’s or shareholders’ decision to sell employee an ownership interest requires the unanimous vote of the shareholders on such terms and conditions as are acceptable to the Corporation and shareholders. Corporation’s or shareholders’ decision to sell an ownership interest to Employee is wholly within the discretion of the Corporation and shareholders.

(emphasis added). The contract also contained an integration clause superseding any prior understanding or agreement among the parties involved and a clause permitting termination of Schwaiger’s employment at any time, with or without cause, on sixty days notice.

[¶ 5.] At the end of the first year of employment at MRA, Schwaiger was given the following information through a letter from MRA:

This letter is to advise you that we desire to continue your employment under the same terms and provisions of our contract date April 8, 1997, pending a modification of your compensation.
It is our intent to make an offer to you regarding your purchase of %rd of the outstanding shares of common stock in Mitchell Radiology Associate, P.C. Upon agreement of price and terms of payment, which then will provide that your compensation will be that of a fe-d owner, subject to the terms and conditions of an employment contract which is in the process of being prepared.
This is our letter of intent to continue our relationship. If the same is agreeable with you, please acknowledge by your signature on the bottom of this letter, where indicated.

Schwaiger did not want to continue his employment without knowing if a stock purchase agreement would be worked out. He was then given a copy of the stock-purchase contract, but decided it was different than Buhler’s contract, so he did not sign it. After further bargaining, Schwaiger claims the parties came to an agreement, but then, he alleges, “Buhler accidentally disclosed the existence of this secret agreement.” The “secret agreement” Schwaiger was referencing was the voting agreement between Kundel and Buhler from 1994. Therefore, Schwaiger chose not to become a shareholder, and subsequently sued MRA for alleged misrepresentation of his employment.

[¶ 6.] MRA moved for summary judgment, and on October 1, 2001, the circuit court granted that motion. Schwaiger appeals the following issues:

1) Whether the circuit court erred in granting summary judgment.
2) Whether there was a duty to disclose the shareholders’ agreement affecting management and voting.
3) Whether parol evidence is admissible to prove fraud in the inducement of a contract.
4) Whether admissions were made by a corporation shareholder.

STANDARD OF REVIEW

[¶ 7.] “When challenging a summary judgment, the nonmoving party ‘must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy.’ ” Estate of Elliott ex rel. Elliott v. A & B Welding Supply Co., Inc., 1999 SD 57, ¶ 16, 594 N.W.2d 707, 710 (quoting Himrich v. Carpenter, 1997 SD 116, ¶ 18, 569 N.W.2d 568, 573) (other citations omitted).

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.

S.D. State Cement Plant Comm’n v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01 (quoting Stoebner v. S.D. Farm Bur. Mut. Ins. Co., 1999 SD 106, ¶ 6, 598 N.W.2d 557, 558) (other citations omitted). A material fact is one that would impact the outcome of the case “under the governing substantive law in that ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (citation omitted).

DECISION

[¶ 8.] 1) Whether the circuit court erred in granting summary judgment.

[¶ 9.] The trial court held that any of Schwaiger’s claims of misrepresentation are contradicted by the subsequent written contract, the contract superceded all prior negotiations, and that to allow plaintiffs claims of fraud or deceit would amount to rewriting the contract. Therefore, summary judgment was granted on his fraud claim.

[¶ 10.] Fraud in the inducement may exist where one party to a contract is unable to “negotiate fair terms and make an informed decision” because he is “undermined by the other party’s fraudulent behavior[,]” thereby creating recoverable tort damages. 37 Am.Jur.2d Fraud and Deceit § 279 (2001). This Court has previously cited to two statutes when discussing fraud in the inducement. Mash v. Cutler, 488 N.W.2d 642, 652 (S.D.1992). The first, SDCL 20-10-1, states that “[o]ne who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” Id. Secondly, SDCL 20-10-2 states that “deceit” under SDCL 20-10-1 is either:

(1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
(3) The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or
(4) A promise made without any intention of performing.

These statutes “are declaratory of common law and comprehend an intention to mislead.” Mash, 488 N.W.2d at 652; Dede v. Rushmore Nat’l Life Ins. Co., 470 N.W.2d 256, 259 n. 2 (S.D.1991).

[¶ 11.] MRA argues that a party cannot claim fraud where the alleged fraudulent misrepresentations are expressly contradicted by the terms of a signed written agreement. We agree that if a written contract is in direct contradiction of an oral representation, reliance on that oral representation, as a matter of law, is unjustified. Davidson v. Wilson, 973 F.2d 1391, 1401 (8th Cir.1992) (affirming motion for summary judgment where investors unjustifiably relied on oral representations that were contradicted by written subscription agreement). See also Calhoun v. Exxon Corp., 64 F.3d 656 (4th Cir.1995) (stating that plaintiff failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) where plaintiff allegedly relied on oral representation, which was contradicted in written contract). Before fraud in the inducement can be proven, an employee must show he justifiably relied on representation fraudulently made, or his claim will be unsuccessful. Houlihan v. Offerman, 31 F.3d 692, 695-96 (8th Cir.1994). Logically, if the employment contract itself contradicts any alleged oral promises made, reliance on that oral promise is simply not justified. Id.See also Slivinsky v. Watkins-Johnson Co., 221 Cal.App.3d 799, 270 Cal.Rptr. 585, 589 (1990) (stating reliance on oral promise was unjustified when contradicted by integrated employment agreement). Where inconsistencies exist between an alleged oral promise and the terms of a written agreement, the issue truly boils down to “reasonable reliance on the promise.” Veit v. Anderson, 428 N.W.2d 429, 432 (Minn.Ct.App.1988) (finding if an oral promise is “explicitly” contradictory to writing, reliance is unjustified as a matter of law; if promise is contradictory in light of other facts, the question is for a trier of fact).

[¶ 12.] In this case, Schwaiger claims to have relied on oral representations that he would become a “full partner” and that Kundel and Buhler’s nondisclosure of the voting agreement resulted in fraudulent inducement. These allegations do not rationally square up with the terms of the written employment contract he entered. Schwaiger could have been fired “without cause” upon sixty days’ notice under the terms of the contract. Moreover, the stock purchase eligibility under the terms of the contract was certainly no promise of “full partnership rights.” Clause 18 of the employment contract Schwaiger signed, as set forth in the facts above, indicates that the Corporation would “consider” selling Schwaiger stock ownership interest. This would only occur if there was a unanimous vote of the existing shareholders, and only on terms acceptable to those shareholders. Furthermore, under the terms of the contract, the “decision to sell an ownership interest to Employee is wholly within the discretion of the corporation and shareholders.” This is certainly in direct contradiction of the alleged oral promise of “full partnership” rights after one year of employment. We understand that Schwaiger is not concerned with the ability to purchase stock or enforce the promise supposedly made, but rather focuses on his lack of knowledge regarding the voting agreement. This, however, does not change the fact that the written agreement contradicted the alleged oral promise of becoming a shareholder on equal footing with the existing shareholders.

[¶ 13.] -In a factually similar case, a physician entered an employment contract that provided if the physician-employee worked for the employer group for one year, then the parties would negotiate for the employee to have stock-purchasing opportunities. Kandel v. Center for Urological Treatment and Research, P.C., 2002 WL 598567, *1 (Tenn.Ct.App.2002). After the employee worked for one year, the parties negotiated, as agreed, but the negotiations came to an impasse. Id. The employee subsequently sued on grounds that the defendants fraudulently induced him to sign the employment agreement and that the employers failed to negotiate in good faith. More specifically, he “assert[ed] that the defendants induced him into signing the employment contract ... by promising that he could become a shareholder ... at the end of his first year of employment,” which is also Schwaiger’s contention. See id. at *3. In that case, the court found that the employment contract only promised good faith negotiations, and that the plaintiff/appellant provided no evidence to show he was fraudulently induced into signing. Id. at *8. That is true here as well.

[¶ 14.] Importantly, cases of fraud and deceit require a higher degree of specificity in order to avert summary judgment. Bruske v. Hille, 1997 SD 108, ¶ 11, 567 N.W.2d 872, 876 (stating specific material facts must be presented in order to prevent summary judgment on fraud and deceit claims). In this record, there are no specific facts provided by Schwaiger supporting his claim for fraudulent inducement. The evidence shows a breakdown in contract negotiations because of Schwaiger’s own actions after MRA made the offer required in the written contract.

[¶ 15.] Fraudulent inducement requires willful deceit and intent to induce another to alter his position. Mash, 488 N.W.2d at 652. This case appears to involve professionals negotiating at arm’s length for pay and for stock ownership. During negotiations for the initial agreement, Schwaiger never asked about a voting agreement. Even after discovering the voting agreement at the end of the first year, he never discussed it with Buh-ler and Kundel. Instead, he chose to walk away, and then file a fraudulent inducement claim based on his dissatisfaction with the outcome of the negotiations. The mere subjective expectation of one professional cannot rise to the level of fraudulent inducement. There are no specific material facts indicating that MRA wrongfully induced Schwaiger to enter the initial employment contract with MRA. The record reflects that he sought to be employed at MRA, and during the initial negotiations, made counter proposals. Most importantly, the only evidence of fraud is Schwaiger’s own assertion of his expectations as to what was “equal partnership.” These bare allegations of fraud, “without specific material facts to substantiate them will not prevent summary judgment.” Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 26, 583 N.W.2d 399, 404.

[¶ 16.] 2) Whether there was a duty to disclose the shareholders’ agreement affecting management and voting.

[¶ 17.] The trial court held, that as a matter of law, MRA had no duty to disclose information about the voting agreement because the parties were dealing at arm’s length and Schwaiger was freely negotiating the terms of his contract. Schwaiger, however, argues that MRA had a duty to disclose the agreement between Buhler and Kundel, and cites to the Restatement of Torts, which says that the failure to disclose facts that may justifiably induce another to act in a business transaction may result in liability. Restatement (Second) of Torts § 551 (1976). This, the Restatement states, is true only if the non-disclosing party was “under a duty to the other to exercise reasonable care to disclose the matter in question.” Id.

[¶ 18.] There is no doubt that when individuals act in certain capacities, duties arise to disclose specific information. Buxcel v. First Fidelity, 1999 SD 126, ¶ 14, 601 N.W.2d 593, 596-97 (stating “one who stands in a confidential or fiduciary relation to the other party to a transaction must disclose material facts”); Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 26, 575 N.W.2d 457, 462 (stating attorney’s failure to disclose that an alimony waiver was invalid may constitute fraudulent concealment); Glad v. Gunderson, Farrar, Aldrich and DeMersseman, 378 N.W.2d 680, 683 (S.D.1985) (stating attorney had duty to disclose defects he knew or should have known). Schwaiger was not in a fiduciary or confidential relationship with MRA. See Dinsmore v. Piper Jaffray, Inc., 1999 SD 56, ¶ 18, 593 N.W.2d 41, 46 (acknowledging real estate brokers and securities brokers owe fiduciary duty to customers and discussing fiduciary relationships).

[¶ 19.] The parties in this case merely had a contractual relationship. Baker v. Jackson, 372 N.W.2d 142, 147 (S.D.1985) (abrogated by state statutes on other grounds) (stating “employer-employee relationship arises only out of contract”). Fiduciary duties, which often produce the duty to disclose, “are not inherent in normal arm’s-length business relationship, and arise only when one undertakes to act primarily for another’s benefit.” Dinsmore, 1999 SD 56 at ¶ 20, 593 N.W.2d at 47. Such duties will not be implied unless one involved party is unable to protect his own interests, and in turn, places trust and confidence in the other party. Id. That was not the case here.

[¶ 20.] Schwaiger clearly negotiated the terms of the contract at arm’s length. He admits to visiting MRA twice before even considering an employment contract, and to actively negotiating by writing a counter-proposal to MRA. Then, after initially declining MRA’s offer, he approached them about reopening negotiations. He chose to take a lower salary in exchange for lessening the time period before a buy in would be considered. Clearly, Schwaiger was not lacking the ability to protect his own interests; rather, he demonstrated his ability to look out for his best interest.

[¶ 21.] Voting agreements in various forms are common in the corporate realm. O’Neal & Thompson, O’Neal’s Close Corp § 5.03 (3rd ed.). In fact, our Legislature has stated “[ajgreements among shareholder regarding the voting of their shares shall be valid and enforceable in accordance with their terms.” SDCL 47-4-23.1. Therefore, if Schwaiger’s foremost goal was to ensure he had the opportunity to buy into the corporation and acquire equal voting rights with all other shareholders, he should have made a more thorough inquiry and clarified what he required for the offer to constitute an “equal partnership.” Instead, he signed a contract that did not define “equal partnership” and that failed to require that he have equal voting rights at the end of the first year.

[¶ 22.] For the foregoing reasons, we do not find MRA had a duty to disclose the voting agreement to Schwaiger. Based on our holding it is unnecessary to address other issues raised on appeal.

[¶ 23.] Affirmed.

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

[¶ 25.] SABERS and KONENKAMP, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 26.] There are genuine issues of material fact as to fraud in the inducement to get Dr. Schwaiger to move to Mitchell, South Dakota, and agree to take a substantial first year reduction in pay in order to have a good faith opportunity to get equal ownership in 1 year rather than in 2 years.

[¶ 27.] The majority opinion reaches the wrong decision in part because it addresses the issues in absolute backwards order. See order of issues in majority opinion at ¶ 6. For example:

(1) If the majority opinion would first decide correctly that after-the-fact admissions by a corporation owner were relevant to prove fraud in the inducement, it would put the entire case in a different light and in fact, change the result.
(2) Likewise, parol evidence is always admissible to prove fraud in the inducement of a contract. See Ducheneaux v. Miller, 488 N.W.2d 902 (S.D.1992).
(3) Likewise, in the fraud in the inducement of the contract claim, which goes to good faith, there is a duty to disclose the shareholder’s agreement affecting management and voting.
(4) Finally, the circuit court erred in granting summary judgment because genuine issues of material fact as to fraud in the inducement exist.

[¶ 28.] More specifically, the after-the-fact admissions by Dr. Kundel “that [MRA failed] to honor our promise to make him a full partner at the end of his year” ... “as well as a continued violation of the commitment we made more than a year ago with Dr. Schwaiger” is sufficient to prove genuine issues of material fact. See the highlighted portions of attached Exhibit H (Crisis in Radiology Memo) to support these and other genuine issues of material fact.

[¶ 29.] Obviously, if Dr. Buhler knew at the time of the contract that he would block the “equal partnership” of an “excellent radiologist” without regard to his performance, it would constitute fraud in the inducement. Although not proven yet, it can be fairly inferred from the evidence and the Crisis in Radiology memo, which present genuine issues of material fact.

[¶ 30.] In summary, it is obvious that one should determine questions of relevant evidence, including parol evidence and legal duty to disclose in a fraud case before determining the ultimate issue: “1) [w]hether the circuit court erred in granting summary judgment.”

[¶ 31.] The majority opinion also gets the burden of proof backwards. Under Dep’t of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989), the moving party must show that there are no genuine issues of material fact. This it has failed to do. The burden is not upon the NONmoving party to show that there are genuine issues of material fact, even though he has.

[¶ 32.] KONENKAMP, Justice, joins this dissent.

      . The parties use the terms "partner” and "shareholder” interchangeably.

      . Before Schwaiger turned the offer down, he had written a counter-proposal to MRA. That proposal, stated, in pertinent part, that "at the end of one year” Schwaiger "may be offered an opportunity to buy an equal share of MRA at the sole discretion of MRA.... ”

      . Paragraph 13 of the agreement submitted to Schwaiger provided for the issuance of 20 shares of capital stock under a Buy Sell agreement. The agreement further provided in paragraph 5 that "so long as Employee works substantially the same amount of time as do other Full-time, Regular Professional Employees, the Employee shall be compensated at a salary equal to other Full Time, Regular Professional Employees as determined from time to time by Employer and Employee."

      . MRA argues that fraud stemming from the nondisclosure of the voting agreement was not pled with particularity to the trial court, thereby waiving such claim. We have said, “fraud is sufficiently pled if the pleading party has set out facts indicating that there was a knowing misrepresentation, and that the plaintiff relied upon this falsity." Tri-State Refining and Inv. Co., Inc. v. Apaloosa Co., 431 N.W.2d 311, 314 (S.D.1988). Here, in his complaint, Schwaiger alleged that the agents of MRA made misrepresentations about Schwaiger's ability to become a “full partner” despite their knowledge that stock Schwaiger purchased would be restricted. This is stated with sufficient particularity.

      . In another factually similar case where the plaintiff was to become a partner after two years, the court found that any oral promises were barred by the statute of frauds. Taimoorazy v. Bloomington Anesthesiology Service, Ltd.., 122 F.Supp.2d 967 (C.D.Ill.2000). Although we find it unnecessary to address the statute of frauds in this case based on our ultimate holding, the Taimoorazy Court also points out the importance of focusing on the written contract while discussing promissory estoppel.

      . Appellant also raises issue two regarding whether parol evidence is admissible to prove fraud in the inducement of a contract. We find it unnecessary to address this issue considering our decision in issue one.

      . In fact, a series of e-mails between Schwaiger and Buhler demonstrates that Schwaiger was unwilling to even discuss information that may have been pertinent to the final negotiations. After Schwaiger hung up on Buhler during a phone conversation regarding Schwaiger's employment, Buhler emailed the following message to Schwaiger:
      Dear Jim,
      I'm confused. I'm getting the impression with you hanging up on me that I've done something to offend you....
      I also was surprised to see you have taken most of your things out of the hospital, apparently in the middle of the night.
      Since I wasn't able to talk to you, has [Kundel] said something that has you mad? I have not been able to reach [Kundel]. When we talked on Friday, you seemed intent on ... coming in to work on Monday with a completed partnership employee agreement. I'm not sure why that would be necessary unless you believed that would put the pressure on to more favorably negotiate something. If that were the case, have you discussed whatever it is you're interested in with [Kundel], because I’m not aware what it could be. After I talked to you, I told [Kundel] it didn’t sound like you were coming to work Monday if you didn’t sign the employee agreement. I told him to call me before leaving town since he may have to be here if you don't come in. I haven't been able to reach him. Have you talked to him or did you agree to cover for him? Although I certainly can’t make you respond to me, I hope you can see that I don’t know what is going on. If this is the way you deal with your colleagues [sic], then just let me know. Please call me or page me to call you back....
      Jim, I have to tell you some things. I truly am saddened, if you are deciding to leave. I enjoy being able to talk to you about difficult cases and value your opinion. I also value your opinion in practice management. You have seen other practice situations and have valuable insite [sic]. I don’t like ever having to be a "bad guy", but sometimes it comes with the territory.
      Please answer me by e-mail or call me.
      Best regards to you,
      [Buhler]
      Schwaiger responded with the following email:
      I do not want you to be confused. I thought I was clear on the phone.
      I hung up the phone because there was nothing further to discuss with you. I do not want to be impolite, so please don't call again.

      . The dissent relies on Exhibit H in its contention that there are genuine issues of material fact. Schwaiger's deposition testimony regarding this exhibit indicates that he actively took part in the drafting of Exhibit H. Moreover, it is obvious that this exhibit was compiled after Schwaiger rejected MRA’s offer for a one-third interest in the corporate stock — equal ownership. To make this the foundation of this fraudulent inducement claim would be to allow a party to fabricate, after-the-fact, a position that is totally in contradiction with the written contract entered into by the parties. In short, it would require this Court to allow a party to be relieved of his executed, written contract. Most importantly, Exhibit H clearly reflects that Kundel's so-called "admissions” do not relate to any independent evidence of fraud. On the contrary, they only relate to the "promise” and "commitment” the parties discussed in the oral negotiations, which were superseded by the written, signed employment contract that now precludes Schwaiger from claiming that he was fraudulently induced to enter into the employment contract.

      . Comment k of Restatement (Second) Torts § 551 further states:
      To a considerable extent, sanctioned by the customs and mores of the community, superior information and better business acumen are legitimate advantages, which lead to no liability. The defendant may reasonably expect the plaintiff to make his own investigation, draw his own conclusions and protect himself; and if the plaintiff is indolent, inexperienced or ignorant, or his judgment is bad, or he does not have access to adequate information, the defendant is under no obligation to make good his deficiencies.

        See also, Bradford v. Vento, 48 S.W.3d 749 (Tex.2001) (citing comment k supra approvingly). Moreover, as it pertains to this case, § 551(2)(b) only imposes a duty to disclose when a party makes a "partial or ambiguous” statement of the facts. Here, there was no "partial or ambiguous” statement of the facts. There was no "partial or ambiguous” representation concerning possible ownership interest and control of the corporation because the superseding written agreement expressly permitted an offer of an ownership interest on any terms within the absolute discretion of the shareholders and only upon their unanimous vote. Because the oral negotiations were superseded by this agreement, and because this agreement permitted an offer of virtually any terms, there could be nothing incomplete or ambiguous about the stated offer. Simply stated, the parties written agreement plainly permitted any offer of ownership on any terms including equal or unequal ownership and control.


author: GORS, Acting Justice.

text:
    2002 SD 118
    In the Matter of the ESTATE OF Henry SIEBRASSE, Deceased.
    No. 21968.
    Supreme Court of South Dakota.
    Order Granting Rehearing March 22, 2002.
    Argued on Rehearing May 28, 2002.
    Decided Sept. 25, 2002.

      Gregory Erlandson, John Raforth, Joseph M. Butler of Bangs, McCullen, Butler, Foye and Simmons, Rapid City, SD, for petitioner and appellant on Rehearing Estate and Personal Representative, Donald Siebrasse.
    Kennith L. Gosch, Rory King of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, SD, for appellee on Rehearing, Delbert Siebrasse.
   REHEARING OF DECISION OF SOUTH DAKOTA SUPREME COURT

GORS, Acting Justice.

[¶ 1.] This case comes to us on our grant of the Estate’s petition for rehearing in Estate of Siebrasse, 2002 SD 26, 640 N.W.2d 747 (Siebrasse I). In Siebrasse I, we were unanimously persuaded that the general direction in the testator’s will to pay all “just debts,” coupled with the specific gifts of specific land to named devi-sees, inferred that the testator intended to shift the burden of federal estate taxes to the residuary estate in lieu of equitable apportionment under the rule found in SDCL 29A-3-916. Now, after reviewing cases from other states, the Uniform Probate Code’s (UPC) treatment of federal estate taxes and policy considerations, we reverse that part of our earlier ruling in Siebrasse I relating to apportionment of federal estate taxes.

FACTS AND PROCEDURE

[¶ 2.] The facts of this case are detailed in Siebrasse I, 2002 SD 26 at ¶¶ 2-7, 640 N.W.2d at 748-49. This is a probate dispute between two brothers. Henry Sie-brasse (Henry) died May 1, 1999. He was survived by two sons, Donald and Delbert, and one daughter, Leola Siebrasse Hall (Leola). After a formal petition was filed, Henry’s will was admitted to probate. Donald was appointed personal representative pursuant to Henry’s will.

[¶ 3.] Article I of the deceased’s will directed his “executor ... to pay all my just debts and funeral expenses as soon after my decease as conveniently may be.” Article II provided, in part, “[ajfter payment of such funeral expenses and debts, I give, devise, and bequeath all of my property. ...” The will then set forth specific bequests of Henry’s real estate. Article III was the residuary clause, dividing the remainder of his property between two of his three children: Donald and Leola.

[¶ 4.] Henry left a total estate of $2,193,569.00 ($2,074,313.00 after expenses). The federal estate taxes were $500,962.00 or nearly 25% of the total estate. At the request of the Estate, the trial court held a hearing in November of 1999, regarding the apportionment of the federal estate taxes. Delbert was present, but he was not represented by counsel. Delbert objected but the trial court concluded that Delbert did not really object because he said, “I don’t object to paying my tax....” The trial court equitably apportioned the federal estate taxes under SDCL 29A-3-916 which provides:

[Ujnless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent’s will directs a method of apportionment of tax different from the method described in this code, the method described in the will controls.

Donald Siebrasse’s apportioned share of the federal estate taxes was $197,801.00. Delbert Siebrasse’s apportioned share was $92,710.00. Each specific, general and residual devise under the will and each non-probate transfer paid the same 24.15% share of the federal estate taxes.

[¶ 5.] In Siebrasse 2, we disagreed with the trial court’s equitable apportionment of the federal estate taxes. 2002 SD 26 at ¶ 18, 640 N.W.2d at 751. Pursuant to SDCL 29A-3-916(b), we held that Henry’s will “provide[d] otherwise” because Article I provided that “just debts” were to be paid first. Citing Matter of Estate of King, 278 N.W.2d 171, 174 (S.D.1979), we held that a direction to pay debts first shifted the burden of federal estate taxes to the residual estate.

[¶ 6.] The only issue on rehearing is whether SDCL 29A-3-916(b) requires apportionment of the federal estate taxes equally over all bequests in this estate or whether the residual estate should be subjected to federal estate taxes before apportioning the taxes among the specific devises.

ANALYSIS AND DECISION

[¶ 7.] The Estate argues that our decision in Siebrasse I ignores the equitable apportionment rule in SDCL 29A-3-916(b), and thus significantly changes federal estate tax apportionment law in South Dakota. Estate contends that our decision represents a dramatic departure from existing law and, if left unchanged, will have an unanticipated and unintentional adverse impact upon the estates of other decedents.

THE INFERENTIAL APPROACH

[¶ 8.] The purpose of a specific bequest is to give specific property to a specific person because the testator wants that person to have that property. The testator wants the devisee to have the specific thing, not something else and not something less. Therefore, specific bequests are the last to be abated to satisfy debts. SDCL 29A-3-902.

[¶ 9.] Henry Siebrasse wanted Donald, Delbert and Leola to have the specific land he bequeathed them. He described each parcel in the will. He did not give Donald 1120 acres and Delbert and Leola each 800 acres. He did not give Donald an undivided 40% in all the land and Delbert and Leola each an undivided 30%. Instead, Henry gave Donald the following 1120 acres:

SW-Yi and SE-⅛ Section 29;

NE-¾ and NW-⅜, Section 32;

N-⅜ of the S-½, Section 32;

NE-⅛ and NW-⅛ Section 30;

he gave Leola the following 800 acres:

All of Section 31;

SW-y*, Section 30;

and he gave Delbert the following 800 acres:

NW-⅜, Section 3, Township 117, Range 78;

All of Section 36, Township 117, Range 79.

Henry wanted certain land to go to certain people. No two pieces of land are alike. Individual parcels of real property are considered to be so unique that when an action is brought for breach of a contract for the sale of land, specific performance may be ordered. SDCL 21-9-1 and 21-9-9; Renner v. Crisman, 80 S.D. 532, 127 N.W.2d 717 (1964).

[¶ 10.] Henry also directed his executor to pay just debts and funeral expenses first. This was a clear statement of his intention that just debts and funeral expenses come out of the residuary estate to preserve the specific bequests for the people for whom they are intended. King, 278 N.W.2d at 174. Otherwise, the named devisees would get considerably less than the specific property devised.

[¶ 11.] The common laws provided that estate taxes were to be paid from the residuary. 85 CJS Taxation § 1889 at 875. South Dakota first abrogated the common law and adopted equitable apportionment in 1961. SDCL ch. 29-7 (repealed by 1995 SD Sess. L. ch. 167 § 96). In 1995, South Dakota adopted the Uniform Probate Code, including SDCL 29A-3 — 916(b), which continues to provide for equitable apportionment of federal estate taxes so that each specific share, interest or legacy bears its proportionate part of the federal estate taxes.

[¶ 12.] The issue is whether 29A-3-916(b) requires apportionment of federal estate taxes equally over all bequests in this case. SDCL 29A-3-916(b) includes an exception to the general rule of proportional apportionment if a “will otherwise provides.” According to Matter of Estate of King, 278 N.W.2d at 174, a direction to pay “debts and taxes” first shifted the burden of federal estate taxes to the residual estate. However, unlike the will in King, Henry’s will did not mention taxes, it only directed payment of “just debts.”

[¶ 13.] If federal estate taxes are equitably apportioned and deducted from Delbert’s share, Delbert receives only three-fourths of the specific bequest. Delbert’s land was valued at $328,600.00 and his apportioned share of federal estate taxes was $79,359.00 on the land. Therefore, Delbert only receives $249,241.00 worth of land after taxes or 75% of the specific devise.

[¶ 14.] We inferred from Article II of the will that Henry intended to give Delbert the entire specific parcels of land, not three-fourths of them. Otherwise Delbert would receive the equivalent of only 600 of the 800 acres which Henry specifically devised to him. The specific direction to give described parcels of land to named devi-sees, when read in conjunction with the shifting clause in Article I of the will, inferred that the will provided otherwise than for equitable apportionment. Equitable apportionment would defeat Henry’s desire that the specific devisees receive the undiminished specific parcels of land.

[¶ 15.] However, after careful consideration, we now conclude that the uncertainty of the inferential approach will foster confusion and litigation over apportionment of federal estate taxes in numerous estates. Instead, we overrule Sie-brasse I and adopt a bright line approach that equitable apportionment under 29A-3-916 applies unless a “tax clause” clearly shifts the burden of federal estate taxes from equitable apportionment and clearly identifies the property to which the burden is shifted.

THE CLEAR INTENT APPROACH

[¶ 16.] SDCL 29A-3-916(b) requires equitable apportionment of federal estate taxes among all bequests unless the will provides otherwise. The terms of the will must be “specific, clear, and not susceptible of reasonable contrary interpretation” to override equitable apportionment. In re Estate of Kapala, 402 N.W.2d 150, 153 (Minn.App.1987) (citing In re Estate of Huffaker, 641 P.2d 120, 121 (Utah 1982)); see also In re Kelly’s Estate, 41 Colo.App. 316, 584 P.2d 640, 641 (1978); Wendland v. Washburn Univ., 8 Kan.App.2d 778, 667 P.2d 915, 917 (1983); In re Hilliar’s Estate, 498 P.2d 1237, 1239 (Wyo.1972).

[¶ 17.] There is no specific formula or words to be used to shift the federal estate tax burden from equitable apportionment to some other method. 85 C.J.S. Taxation § 1893 at 880. The will must be construed as a whole. Id. See also Briggs v. Briggs, 73 S.D. 500, 506, 45 N.W.2d 62, 65 (1950) (stating that “[t]he sole purpose of the process of construction is to discover the intention of the testator. If that intention is clearly revealed by the language of the will, when read in its entirety in the light of the circumstances of its formulation, it will be declared”).

[¶ 18.] The language of the will controls. In Estate of Tovrea v. Nolan, 173 Ariz. 568, 845 P.2d 494, 500 (Ariz.App. Div. 1 1992). A few simple words may suffice if they sufficiently indicate an intent against apportionment. In re Ogburn’s Estate, 406 P.2d 655, 657-58 (Wyo.1965). Any ambiguity is to be resolved in favor of equitable apportionment. Estate of Carley, 90 Cal.App.3d 582, 153 Cal.Rptr. 528, 531 (1979); In re Pergament’s Estate, 29 Misc.2d 334, 218 N.Y.S.2d 831, 834 (N.Y.Sur.1961), aff'd, 19 A.D.2d 945, 245 N.Y.S.2d 312 (N.Y.A.D.1963).

[¶ 19.] Therefore, we conclude that the language of the will must be clear to override equitable apportionment.

TAX CLAUSE

[¶ 20.] Henry’s will directed the personal representative “to pay all my just debts and funeral expenses as soon after my decease as conveniently may be.” The Estate argues that federal estate taxes are not “just debts” of the testator; therefore, the clause in Henry’s will directing payment of just debts does not cast the burden of federal estate taxes on to the residual estate. The Estate maintains that to be clear enough to override equitable apportionment under SDCL 29A-3-916(b), Henry’s will must contain a “tax clause” in addition to a direction to pay “just debts.”

Federal estate taxes are a debt of the estate but not a debt of the testator

[¶ 21.] As we noted in Siebrasse I, SDCL 55-13-5 charges the principal of an estate with all settlement expenses, including federal estate taxes. Further, an estate cannot be closed until the federal estate taxes are paid. See SDCL 29A-3-1003(a)(2). These statutes make it clear that federal estate taxes are debts of the estate. They do not, however, answer whether federal estate taxes are “just debts” of the testator.

[¶ 22.] There are two kinds of “death taxes.” A tax on the right to transmit property is generally referred to as an estate tax and a tax on the right to receive property from a decedent is generally referred to as an inheritance tax. 85 C.J.S. Taxation § 1783 at 794. Federal estate taxes are a tax on the right to transfer property from the estate of the decedent to the beneficiaries. Id; 26 U.S.C. § 2001(a). The federal estate taxes are imposed on the gross estate minus expenses of administration, credit for state inheritance taxes and the unified credit.

[¶ 23.] By contrast, South Dakota’s inheritance tax, in effect at the time of Henry’s death and since repealed, is a tax on the right to receive property from an estate. Each beneficiary pays tax on what each beneficiary receives and has personal exemptions and special rates, depending on the relationship to the deceased. Therefore, state inheritance taxes are not “just debts” of Henry or Henry’s estate and are not at issue here.

[¶ 24.] Federal estate taxes are a tax on the testator’s accumulation of wealth. During a lifetime, a person may accumulate property and make investments. Property and investments sometimes appreciate in value and become a capital gain. A person may also turn ordinary income into capital gain by depreciating equipment and improvements to capital assets and by deducting expenses that enhance accumulated assets from ordinary income. The increase in value is ultimately taxed as capital gain on liquidation before death or as part of the testator’s estate after death. Therefore, federal estate taxes are a legitimate debt on the testator’s accumulation and increase in wealth.

[¶ 25.] However, federal estate taxes do not come into existence until the testator dies. 26 U.S.C. § 2001(a). See SDCL 10-41-61. Therefore, while federal estate taxes are a debt of the estate, they are not a debt of the testator.

Other jurisdictions

[¶ 26.] Other jurisdictions agree that federal estate taxes are not debts of the testator. In Reed v. United States, 316 F.Supp. 1228, 1230 (E.D.Mo.1970), a federal district court held that a direction in a will that “just debts” be paid out of the residual estate did not include the payment of federal estate taxes, which are not a “debt” of the testator under Missouri law. In Young v. Dunton, 106 N.H. 249, 209 A.2d 719, 720 (1965), the court held that federal estate taxes were not a debt of the testator. See also In re Packard’s Estate, 174 Ohio St. 349, 189 N.E.2d 434, 435 (1963); F & M Bank v. Robinson, 1994 WL 1031004, at *3 (Va. Cir. Ct.1994); Molner v. Silbert, 8 Ill.App.2d 388, 132 N.E.2d 36, 38 (1 Dist.1956).

Uniform Probate Code

[¶ 27.] Henry died in 1999. The UPC was adopted in 1995 and provides that it applies to the estate of all decedents dying after July 1, 1995, SDCL 29A-8-101(b)(l), and to instruments executed by decedents dying after July 1, 1995, without regard to when the instrument was executed. SDCL 29A-8-101(b)(2). Therefore, the UPC governs Henry’s will even though the will was executed on June 2,1986.

[¶ 28.] The UPC treatment of federal estate taxes bolsters the conclusion that federal estate taxes are not debts of the testator. SDCL 29A-3-916(a)(5) defines taxes as federal estate taxes and state inheritance taxes. Nowhere in the UPC are federal estate taxes defined as debts of the testator. Moreover, SDCL 29A-3-805 refers to “[d]ebts and taxes” separately. Therefore, the UPC considers each to be a separate category. Finally, SDCL 29A-1-201(7) defines creditor’s “claims” and federal estate taxes are specifically excluded.

Policy Considerations

[¶ 29.] Even though we might infer that Henry Siebrasse wanted Delbert to receive his land tax free, it is not clear from the will what other assets were to be used to pay the taxes or in what order. The residuary estate is not large enough to pay all of Henry’s “just debts” and the federal estate taxes. Although 29A-3-902 provides the order of abatement of bequests, it is not clear from the will where the tax burden should fall next: on non-probate assets, property held in joint tenancy, insurance, general bequests or specific assets.

[¶ 30.] By contrast, if the will had said “I give Delbert Siebrasse the following:

NW-⅞, Section 3, Township 117, Range 78;

All of Section 36, Township 117, Range 79[;]

free from federal estate taxes which are to be paid from the residuary estate,” then the intent of the testator would be clear. If the intent is not clear, equitable apportionment should apply.

CONCLUSION

[¶ 31.] Therefore, we conclude that federal estate taxes are not debts of the testator. Since federal estate taxes are not debts of the testator, a “tax clause” is necessary to show the clear intent required to defeat equitable apportionment. The tax clause should shift the burden of federal estate taxes from equitable apportionment and identify the property to which the burden is shifted. That portion of Siebrasse I which reversed the trial court and held that federal estate taxes should be paid from the residuary estate is overruled and the order of the trial court equitably apportioning federal estate taxes is affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and SAJ3ERS, AMUNDSON, and KONENKAMP, Justices, concur.

[¶ 33.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . Bank accounts held in joint tenancy and life insurance were transferred outside of the probate.

      . However, SDCL 55-13-5 does not provide an alternative to equitable apportionment; it merely requires the taxes to be paid from the principal of the estate without directing any preferential order.

      . As an example, for a farmer such as Henry, ordinary expense hay is fed to capital asset cows resulting in capital gain depending on how the cow was acquired and how it was treated for tax purposes.

      . "A tax is hereby imposed on the transfer of the taxable estate of every decedent who is a citizen or resident of the United States.” (emphasis added).