author: NEUMANN, Justice. BEKKEN, District Judge, MARING, Justice,

text:
    2002 ND 139
    Delano GREY BEAR, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Defendant and Appellee, v. Robert V. Bolinske, Additional Defendant on Counterclaim and Appellant.
    No. 20010241.
    Supreme Court of North Dakota.
    Aug. 23, 2002.

      Robert V. Bolinske, Bismarck, N.D., for plaintiff and appellant.
    Jean R. Mullen, Assistant Attorney General, Bismarck, N.D., for defendant ■ and appellee.
   NEUMANN, Justice.

[¶ 1] Delano Grey Bear and Robert V. Bolinske appeal from a judgment dismissing Grey Bear’s claims against the Department of Human Services for intentional infliction of emotional distress and governmental bad faith, and granting summary judgment in favor of the Department on its claim for conversion. We affirm in part, and reverse in part.

I

[¶ 2] Delano Grey Bear was paralyzed from the neck down in a car accident in 1978. As a result of Grey Bear’s long-term disability, the Department of Human Services had paid medical expenses in the form of Medicaid benefits on Grey Bear’s behalf. In order to receive Medicaid benefits, Grey Bear assigned any rights of recovery he might have from any third-party to the Department for medical costs paid under the Medicaid program.

[¶ 3] As a result of a surgical procedure in 1994, Grey Bear required additional medical services that were paid by the Department through Medicaid. Grey Bear commenced a medical malpractice action because of complications arising from the surgery. The case was settled in 1998 for $30,000. Grey Bear’s attorney deducted one-third of the judgment for attorney’s fees, and half of the remaining amount was sent to the Department. The Department accepted the amount received, but demanded the entire judgment, less expenses and attorney’s fees.

[¶ 4] Grey Bear sued the Department for intentional infliction of emotional distress and governmental bad faith claiming he was entitled to the entire judgment. The Department asserted a counterclaim arguing it was entitled to the entire judgment, less expenses and attorney’s fees. The Department filed an amended counterclaim adding Grey Bear’s attorney, Robert V. Bolinske, as a party, alleging a conspiracy to convert the Department’s money. The Department moved for summary judgment on Grey Bear’s complaint and on the Department’s claims against Grey Bear and Bolinske. The trial court granted summary judgment in favor of the Department on all claims.

[¶ 5] Bolinske moved for reconsideration, claiming the trial court did not have personal jurisdiction over him because he was not served with a summons. The trial court denied Bolinske’s motion and signed the judgment. Bolinske moved to vacate the judgment. The trial court vacated the judgment and the judge recused himself based on a concern for potential bias and an irritation with Bolinske’s tactics. The case was reassigned. After reviewing the case file, the trial court granted summary judgment in favor of the Department. Grey Bear and Bolinske appeal.

II

[¶ 6] Grey Bear argues he made only a partial assignment under N.D.C.C. § 50-24.1-02.1, that he assigned only any claim he might have for medical costs. Grey Bear argues his medical malpractice action was not for medical costs, but for pain and suffering, claims which were never assigned to the Department under N.D.C.C. § 50-24.1-02.1. Therefore, Grey Bear contends, he is entitled to all the proceeds from the settlement.

[¶ 7] We are asked on appeal to determine the extent of the assignment granted under N.D.C.C. § 50-24.1-02.1. We recently, delineated the standard of review for statutory interpretation:

The interpretation of a statute is a question of law, fully reviewable on appeal. Our primary objective in construing a statute is to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. Although courts 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. In interpreting a statute, we presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. Rather, statutes are to be construed in a practical manner. We give consideration to the context of the statutes and the purposes for which they were enacted.

Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 43, 643 N.W.2d 29. However, we give some deference to a reasonable interpretation of a statute by the agency responsible for enforcing it, and give appreciable deference to agency expertise if the subject matter is highly technical. Consol. Tel. Coop. v. W. Wireless Corp., 2001 ND 209, ¶ 7, 637 N.W.2d 699.

[¶ 8] Some background about the relevant Medicaid statutes is necessary to fully understand the issue on appeal. Medicaid was enacted in 1965 to provide medical assistance to persons who lack sufficient income or resources to cover the costs of their own essential medical care. See 42 C.F.R. § 430.0; see also Krueger Estate v. Richland Cty. Soc. Serv., 526 N.W.2d 456, 457 (N.D.1994). The Medicaid program is governed by the Social Security Act, 42 U.S.C. §§ 1396-1396v, and is jointly financed by federal and state governments. Hecker v. Stark County Social Service Bd., 527 N.W.2d 226, 233 (N.D.1994). Once a state elects to participate in the Medicaid program, the federal government will share the costs if the state’s plan complies with the requirements of the Act and the related regulations set forth by the Department of Health and Human Services. Krueger Estate, at 457. Medicaid is intended to be the payor of last resort. Hecker, at 235. States must require medical assistance payment recipients to assign to the state any rights they have to reimbursement for medical care from any third parties. See 42 U.S.C. § 1396k. Section 1396k provides:

(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this title ..., a State plan for medical assistance shall' — ■
(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required—
(A) to assign the State any rights, of the individual ... to payment for medical care from any third party
(b) Such part of any amount collected by the State under an assignment made under the provisions of this section shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of an individual with respect to whom such assignment was executed ... and the remainder of such amount collected shall be paid to such individual.

[¶ 9] The North Dakota legislature has given state agencies who provide assistance to needy persons the right to be reimbursed for that assistance from persons who have support obligations to those receiving the assistance. Mehl v. Mehl, 545 N.W.2d 777, 779 (N.D.1996). North Dakota has created a statutory assignment of claim to comply with the federal guidelines, under N.D.C.C. § 50-24.1-02.1, which provides:

Each applicant or recipient of benefits under this chapter must be deemed to have assigned, to the department of human services, any right of recovery the applicant or recipient may have for medical costs incurred under this chapter not exceeding the amount of funds expended by the department for the care and treatment of the applicant or recipient. The applicant or recipient, or other person empowered by law to act in the applicant’s or recipient’s behalf, shall execute and deliver an assignment of claim, assignment of rights, or other authorizations as necessary to secure fully the right of recovery of the department. The assignment:
1. Is effective as to both current and accrued medical support recovery obligations.
2. Takes effect upon a determination that an applicant is eligible for assistance under this chapter.

[¶ 10] Grey Bear argues his assignment under N.D.C.C. § 50-24.1-02.1 was only for medical expenses, and not his claim for pain and suffering. The same argument was raised in Link v. Town of Smithtown, 175 Misc.2d 238, 670 N.Y.S.2d 692 (1997). The plaintiff argued the State’s recovery of medical assistance it paid on behalf of the plaintiff should be limited to that portion of the settlement proceeds allocated to reimburse the plaintiff for medical expenses, and not that portion of the settlement proceeds intended to compensate the plaintiff for pain and suffering. Link, 670 N.Y.S.2d at 695. In determining all of the proceeds of the settlement were available to satisfy the State’s claim, the court analyzed both the federal and state assignment statutes. Id. The-court concluded the language in the state statutes underscored the legislature’s clear intention the state be afforded broad and extensive means to obtain third-party reimbursement of Medicaid expenditures. Id.

[¶ 11] Other courts when faced with the similar argument have reached the same conclusion as Link. See Wilson v. State of Washington, 142 Wash.2d 40, 10 P.3d 1061, 1066 (2000), cert. denied, 532 U.S. 1020, 121 S.Ct. 1959, 149 L.Ed.2d 755 (2001) (stating reimbursement is not limited to the recovery allocated specifically to medical expenses); Waldman v. Candia, 317 N.J.Super. 464, 722 A.2d 581, 587 (1999) (stating the New Jersey Medicaid statute does not distinguish between categories of damages); Calvanese D. Calvanese, 93 N.Y.2d 111, 688 N.Y.S.2d 479, 710 N.E.2d 1079, 1081 (1999). But see Martin v. City of Rochester, 642 N.W.2d 1 (Minn.2002) (stating the.state becomes the owner of the claim against a third party for medical expenses, but the recipient retains ownership of any .other claims); Arizona Health Care Cost Containment System v. Bentley, 187 Ariz. 229, 928 P.2d 653, 656 (1996) (stating assignments apply only to tort settlements if they are medical benefits). In Calvanese, the appellants argued that only the settlement proceeds specifically allocated to past medical expenses should be available to satisfy the state’s claim. 688 N.Y.S.2d 479, 710 N.E.2d at 1081. The court stated that nowhere in the elaborate scheme governing Medicaid “is -the agency’s right of recovery restricted in this manner.” Id. The court concluded the state acquires the right to payments by any third party for health care items or services and must retain from the recovery an amount as is necessary to reimburse it for medical payments made on behalf of an individual. Id. (citing 42 U.S.C. §§ 1396[a][25][H] and 1396k[b]).

[¶ 12] Grey Bear argues in his brief that none of the cases relied upon by the Department are applicable to this case because the statutes underlying the holdings in those cases are totally different from the North Dakota statute. While North Dakota’s Medicaid assignment statute, N.D.C.C. § 50-24.1-02.1, uses different language than other state’s statutes, all of the statutes are intended to comply with the rules and regulations of the federal Medicaid statutes set forth by the Social Security Act, 42 U.S.C. §§ 1396-1396v. Under the federal scheme, the states are required to enact laws under which a recipient of Medicaid assistance assigns to the state rights of third-party payments for medical care provided. Wilson v. State of Washington, 10 P.3d at 1064 (citing 42 U.S.C. § 1396a(a)(25)(H); 42 C.F.R. § 433.146). States have enacted different language in individual statutes to effectuate the mandates- of the federal regulations. -While we are not compelled to follow the interpretation or determinations from other states’ Medicaid statutes, we will look to other states as guides in helping interpret the federal Medicaid statutes in relation to North Dakota’s statutes. See Estate of Zins v. Zins, 420 N.W.2d 729, 731 (N.D.1988).

[¶ 13] The Department also relies on a letter it received in 1994 from the Federal Department of Health and Human Services. The letter was sent to state Medicaid directors and addressed the issue Grey Bear raises. The letter explained that in tort recovery situations, “the recovery will often contain more than just an element for medical services, such as pain and suffering or loss of consortium.” The letter went on to state, “[although the recipient has a claim to this recovery amount ... the recipient has assigned to the State any rights to medical support and to payment for medical care from the third-party payer. Thus, the State has claim to the entire amount recovered.” The Department relied on this letter in arguing that both the federal and state statutes require third-party recovery for the entire amount of the medical costs expended by the Department. While we are not required to follow the Department’s interpretations of the statutes, we normally defer to a reasonable interpretation of a statute by the agency responsible for enforcing it, especially when that interpretation does not contradict the statutory language. See Cass County Elec. Coop. v. Northern States Power Co., 518 N.W.2d 216, 220 (N.D.1994).

[¶ 14] This issue must be decided by analyzing North Dakota’s Medicaid assignment statute. The relevant portion of NlD.C.C. § 50-24.1-02.1 states that a recipient of Medicaid must assign “any right of recovery the applicant or recipient may have for medical costs incurred under this chapter not exceeding the amount of funds expended by the department for the , care and treatment-of the applicant or recipient.” Grey Bear argues the phrase “for medical costs incurred” modifies the preceding language, limiting the required assignment to “any right of recovery [he] may have for medical costs incurred.” Grey Bear’s argument ignores the language of the statute immediately following “for medical costs.” We read statutes as a whole to give meaning to each word and phrase, whenever fairly possible. In re Juran & Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 503. When read as a whole, N.D.C.C. § 50-24.1-02.1 assigns the Department any right of recovery the applicant may have for an injury, but limits what the Department may claim to the amount of medical costs incurred under this chapter for that injury. We conclude the assignment under N.D.C.C. § 50-24.1-02.1 gives the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering, but the statute specifies the Department’s recovery must be for medical costs incurred under the chapter and limits the recovery to the amount of funds expended by the Department for the care and treatment of the applicant or recipient.

Ill

[¶ 15] Grey Bear argued, in the alternative, that if the assignment was considered a total assignment, the Department still had all the rights it had acquired. Grey Bear contends the fact that he was able to wring a settlement out of the insurance company even though he.had assigned away all his rights to the claim, had no effect on the Department’s right to bring its own claim. A closer reading of N.D.C.C. § .50-24.1-02.1 shows a recipient “shall execute and deliver an assignment of claim, assignment of rights, or other authorizations as necessary to secure fully the right of recovery of the department.” Under the statute, Grey Bear not only assigned his right to pursue a malpractice claim, he also assigned any right of recovery he might have. The assignment is for the right of payment from the third-party, not solely the right to pursue a cause of action against the third party. Wilson, 10 P.3d at 1066. The federal Medicaid scheme grants the state the option either to pursue the claim directly against a third party or to collect from any third-party recovery the applicant or recipient might receive. Id. at 1066-67. The Department was well within its rights to" refuse to pursue a separate malpractice action, and to recover from the settlement instead.

[¶ 16] Contrary to Grey Bear’s assertion, we do not believe it is the insurance company’s problem if it turns out it paid Grey Bear on a claim he had assigned to the Department. In a similar case, a court ruled if the Medicaid recipient fails to notify the third-party insurer of the assignment, the insurer is not required.to pay double. See Arkansas Dep’t of Human Services v. Ferrel, 336 Ark. 297, 984 S.W.2d 807, 811 (1999). Instead, the recipient was required to pay over funds which were actually meant for the Department of Human Services in the first place. Id. The insurance company is not required to pay the same claim twice. See John Miller Co. v. Harvey Mercantile Co., 45 N.D. 503, 178 N.W. 802, 806 (1920) (noting equitable rules prevent a party from paying the same claim twice).

[¶ 17] We conclude the Department had the authority to refuse to bring a claim directly against a third party, and to recover the third-party settlement payment directly from Grey Bear.

IV

[¶ 18] Grey Bear argues the trial court erred in denying his motion to amend the judgment to include his costs in obtaining the settlement and in denying two requests for ,a hearing on the issue. We review a trial court’s decision denying a motion to amend the judgment to include costs under an abuse of discretion standard. Vanover v. Kansas City Life Ins. Co., 553 N.W.2d 192, 199 (N.D.1996). A trial court abuses its discretion when 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. Western Nat’l Mut. Ins. Co. v. Univ. of N.D., 2002 ND 63, ¶ 31, 643 N.W.2d 4.

[¶ 19] In order to properly analyze the issue of costs in this action, we must look to the procedural history surrounding Grey Bear’s argument. In the order for judgment issued by Judge Riske-dahl on April 24, 2000, the Department was awarded the “settlement proceeds ($30,000), less the 20 percent attorney fees it had indicated would be payable to Mr. Bolinske for pursuing the medical malpractice claim and expenses that have been documented by Mr. Bolinske ($2,656.34).” On May 26, 2000, Grey Bear moved to vacate the judgment. In his motion, Grey Bear objected to the $2,656.34 award of costs. In his brief, Grey Bear stated he had not “received any listing of defendant Department’s claim for costs and is mystified at what they may be.” On June 6, 2000, the Department responded to Grey Bear’s objection to the award of costs, indicating:

Bolinske also has misunderstood the discussion of “costs” in the judgment. The costs are those that the Department must reimburse to Bolinske for the costs incurred in obtaining the settlement of Grey Bear’s claims in the malpractice suit. As noted, those are costs that are deleted from Bolinske’s overall payment to the Department.

On June 29, 2000, Grey Bear’s attorney sent a letter to Judge Riskedahl withdrawing his request for a hearing on his motion to vacate the judgment. On August 25, 2000, Judge Riskedahl vacated the earlier judgment and recused himself from the case as a result of the alleged bias raised by Bolinske.

[¶ 20] The action was subsequently assigned to Judge Holum. On March 8, 2001, the trial court’s new order for judgment again awarded Grey Bear costs, stating:

The Department is entitled to a judgment from Mr. Bolinske and Mr. Grey Bear, jointly and severally, in an amount equal to the settlement proceeds ($30,-000), less the 20 percent attorney fees it had indicated would be payable to Mr. Bolinske for pursuing the medical malpractice claim ($6,000) and expenses that have been documented by Mr. Bolinske ($2,656.34), less any amounts paid to the Department.

Grey Bear again objected to the inclusion of costs in the judgment, claiming the Department had never submitted a claim for costs as required by ND.R.Civ.P. 54(e)(1). In the Department’s response this time, it indicated that if the trial court ordered, it would not deduct Grey Bear’s costs from the amount due the Department. On March 30, 2001, the trial court granted Grey Bear’s objection to costs and amended the judgment to remove them. In its order, the trial court explained:

For some reason, Mr. Grey Bear and Mr. Bolinske have been unable to accept [the Department’s] explanation and have objected again to the payment of costs in the underlying litigation. While the court views it to be against Mr. Bol-inske’s best interests, this Court is not about to require the Department to reimburse Mr. Bolinske his costs in the underlying litigation if Mr. Bolinske continuously and strenuously objects.

[¶ 21] On April 24, 2001, Grey Bear moved to amend the judgment because it excludes costs which should have been included in the judgment. Grey Bear claims he initially objected to the costs because they appeared to require that costs be added to the judgment rather than deducted. Grey Bear also claimed N.D.R.Civ.P. 54(e) required the trial court to set a hearing date. The trial court denied Grey Bear’s motion to amend the judgment on the grounds that Bolinske “failed to diligently protect his own interests by his continuous failure to read the pleadings, orders and judgments in this ease.”

[¶22] After reviewing the history of Grey Bear’s dispute over the issue of costs, we do not find that the trial court abused its discretion in denying Grey Bear’s motion to amend the judgment to include costs. Grey Bear’s main complaint on appeal is that the trial court did not grant a hearing despite his repeated requests for one. Grey Bear’s first request, on June 29, 2000, was mooted when Judge Riske-dahl vacated the judgment. The second request came with Grey Bear’s second motion to amend the judgment to exclude the award of costs. The Department acquiesced to Grey Bear’s motion, so the trial court determined there was no need to hold a hearing, and the motion was granted. After Grey Bear finally realized his mistake, he moved to amend the judgment once again, this time to reinstate the costs. The trial court denied Grey Bear’s request for a hearing on this motion and concluded Bolinske’s failure to exercise due diligence should not be rewarded with yet another amendment of the judgment. Grey Bear need not be allowed to delete an amendment to a judgment, an amendment he had vigorously and persistently pursued in the face of contrary advice and explanations, merely because of an obstinate mistake in understanding the court’s order. See Selinger v. Selinger, 250 A.D.2d 752, 672 N.Y.S.2d 913 (1998); see also Textron, Inc. v. Whitfield, 380 So.2d 259, 262 (Al.1979) (Torbert, C.J., dissenting). We conclude the trial court did not abuse its discretion in denying Grey Bear’s requests for hearings, nor his final motion to amend the judgment.

V

[¶ 23] Grey Bear argues the trial court’s award of attorney’s fees was unjust and unreasonable and constitutes an abuse of discretion. The trial court awarded Grey Bear twenty percent of the settlement for payment of attorney’s fees. Grey Bear claims the thirty-three and one-third percent fee agreed on by him and Bolinske should have been awarded.

[¶ 24] We review a trial court’s determination of attorney’s fees under the abuse of discretion standard. City of Medora v. Golberg, 1997 ND 190, ¶ 18, 569 N.W.2d 257. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process, or it misinterprets or misapplies the law. Klagues v. Maintenance Engineering, 2002 ND 59, ¶ 6, 643 N.W.2d 45.

[¶ 25] The Department sent a letter to Bolinske during the malpractice action notifying him of Grey Bear’s assignment to the Department and the Department’s right to recover payments made on Grey Bear’s behalf. Attached to the Department’s letter was a form entitled Attorney’s Agreement as to Recipient’s Recovery from Third Party. The form provided:

The attornéy’s fee shall otherwise be a percentage of the gross recovery to the North Dakota Department of Human Services to be determined in the following manner:
1. Twenty percent when recovery is made without service of a summons in a civil action;
2. Twenty-five percent when a civil action is commenced and settled before trial; or
3. Thirty-three and one-third percent when recovery is made after trial of a civil action has commenced.
Payment of the net amount payable to the North Dakota Department of Human Services shall be made immediately upon the obtaining of any recovery.

[¶ 26] As previously discussed, the North Dakota Legislative Assembly has given state agencies who provide assistance to needy persons the right to be reimbursed for that assistance from persons who have support obligations to those receiving the assistance. Mehl v. Mehl, 545 N.W.2d 777, 779 (N.D.1996). Under N.D.C.C. § 50-24.1-04, the Department is granted the authority to promulgate rules and regulations to meet the federal objectives. One of the rules the Department has established is to set an attorney’s fee schedule for the recipient’s collection of third-party liability. We are unpersuaded by Grey Bear’s argument that an award of twenty percent of the settlement is unjust or unreasonable. We conclude the trial court did not abuse its discretion in its award of attorney’s fees.

VI

[¶ 27] Bolinske argues the summary judgment against him is null and void because the trial court lacked personal jurisdiction. Bolinske claims there was insufficiency of process and insufficiency of service of process against him because he was never served with any summons.

[¶ 28] The persons over whom a trial court may exercise personal jurisdiction are determined by Rule 4 of the North Dakota Rules of Civil Procedure. Moon v. Moon, 499 N.W.2d 597, 599 (N.D.1993). Rule 4(b)4, N.D.R.Civ.P., explains how courts of this state acquire jurisdiction: “A court of this state may acquire personal jurisdiction over any person through service of process as provided in this rule or by statute,-or by voluntary general appearance in an action by any person either personally or through an attorney or any other authorized person.” We have defined personal service of process as the actual or direct delivery of the summons or a copy thereof to the person to whom it is directed or to someone who is authorized to receive it in his behalf. In re Estate of Ashbrook, 110 N.W.2d 184, 192 (N.D.1961) (citing 42 Am.Jur. Process, § 48).

[¶ 29] There is no dispute in this case that the trial court did not obtain personal jurisdiction over Bolinske through service of process. The Department does not dispute that it failed to serve Bolinske with a summons, but instead claims an alternative basis existed to obtain personal jurisdiction. The Department claims the trial court had jurisdiction over Bolinske because he waived service of process by his actions in this ease. The Department contends Bolinske waived service of process by voluntarily appearing in the action.

[¶ 30] Rule 4(b)(4), N.D.R.Civ.P., permits a court to acquire personal jurisdiction over any person by voluntary general appearance in an action by any person .either personally or through an attorney. Code v. Gaunce, 315 N.W.2d 304, 307 (N.D.1982). In the absence of a previously made and properly preserved objection to the jurisdiction of the trial court, a general appearance amounts to a waiver of the right to object to the jurisdiction of the court over the person of the appearing party. Wallwork Lease & Rental Co. v. Schermerhorn, 398 N.W.2d 127, 129 (N.D.1986) (citing Tooz v. Tooz, 78 N.D. 432, 50 N.W.2d 61, 65 (1951)). Under N.D.R.Civ.P. 12(h), the defense of insufficiency of process is waived if it is not made by a motion or included in a responsive pleading. Messer v. Bender, 1997 ND 103, ¶ 7, 564 N.W.2d 291.

[¶ 31] The Department contends Bol-inske did not raise the issue of the trial court’s jurisdiction until after the judgment against him was issued. A review of the record indicates Bolinske did in fact raise the lack of the trial court’s jurisdiction in the reply to the Department’s counterclaim dated January 11, 2000. Paragraph- five of Grey Bear and Bolinske’s reply states, “the Counterclaim is subject to all defenses set forth in Rule 12(b) in that the court lacks personal jurisdiction over the parties named therein, there is an insufficiency of process, an insufficiency of service of process ...”

[¶ 32] This issue provides a unique situation because of Bolinske’s relationship as the attorney for Grey Bear. While Bolinske continued to act as Grey Bear’s attorney, the only time Bolinske subjected himself personally to the trial court’s jurisdiction was in a motion for an extension of time to respond to the Department’s counterclaim and in the reply to the counterclaim. We have noted that a request for a reasonable extension of time does not always constitute a waiver of jurisdictional defects. Wallwork Lease, 398 N.W.2d at 130, n. 3. In Opp v. Matzke, 1997 ND 32, ¶¶ 16-17, 559 N.W.2d 837, a party was found to have made a voluntary general appearance when he submitted an affidavit, counsel made an appearance on his behalf, and he participated in answering interrogatories. Unlike the defendant in Opp, Bolinske never made a general appearance or caused one to be made on his own behalf and, except for requesting an extension of time. and responding to the counterclaim, only participated in this action as attorney for Grey Bear. We conclude the trial court lacked personal jurisdiction over Bolinske, and reverse the judgment against him.

VII

[¶ 33] The trial court’s judgment in favor of the Department of Human Services for recoupment of an assignment on a third-party settlement is affirmed. The trial court’s judgment against Robert V. Bolinske is reversed based on a lack of personal jurisdiction.

■ [¶ 34] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER concur.

[¶ 35] The Honorable JAMESM. BEKKEN, D.J., sitting in the place of SANDSTROM, J., disqualified.

BEKKEN, District Judge,

concurring.

[¶ 36] I concur with the results reached by the majority. Accordingly, I would affirm the trial court’s summary judgment in favor of the Department of Human Services on its claim for conversion against Delano Grey Bear, and would reverse the trial court’s judgment against Robert V. Bolinske. I write separately since I respectfully 'disagree with the conclusion set forth by the majority-in section II, ¶ 14, that “the assignment under N.D.C.C. § 50-24.1-02.1 gives the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering ...”

[¶ 37] The majority interprets the statute as giving the Department the right to recover “any settlement received” by Grey Bear. I interpret the statute as giving the Department the right to recover “any third-party settlement Grey Bear received as payment or reimbursement for medical costs.” I disagree with the majority’s broad reading of the statute that the applicant or recipient assigns to the Department any right of recovery the applicant may have to recover any settlement, even if designated for pain and suffering. I agree with Grey Bear that the phrase “for medical costs incurred” modifies the preceding language in the statute. The majority disagrees that the words “medical costs incurred” modify the preceding part of N.D.C.C. § 50-24.1-02.1. The majority interprets the phrase “for medical costs incurred” with the remaining part of the sentence- and thus concludes the statute as a whole requires the applicant or recipient must be deemed to have assigned to the Department the right to recover “any settlement received” by the applicant. That right of recovery, according to the majority, allows the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering and only limits the recovery to the amount of funds expended by the Department for the care and treatment of the applicant or recipient.

[¶38] I do agree that the plain language of the last portion of the first sentence in N.D.C.C. § 50-24.1-02.1 does limit the recovery by the Department to the amount of funds expended by the Department for the care and treatment of the applicant or recipient. However, I disagree with the majority’s interpretation that the phrase “for medical costs incurred under this chapter” does not define the limit of the assignment given by the applicant or recipient to the Department. I believe it does limit the assignment and that such an interpretation is consistent with language in the federal statutes as well. As noted by the majority in ¶ 8, 42 U.S.C. § 1396k(a) provides for states to require medical assistance payment recipients to assign to the state any rights they have for reimbursement or payment for medical care from any third party. I agree with the reasoning set forth in the cases cited by the majority in ¶ 11 but not followed by the majority. See Martin v. City of Rochester, 642 N.W.2d 1 (Minn.2002) and Arizona Health Care Cost Containment System v. Bentley, 187 Ariz. 229, 928 P.2d 653, 656 (1996). I believe the majority’s interpretation of the statute is too broad. The right of recovery should be limited to recoveries the recipient receives for medical care or medical costs from any third party.

[¶ 39] In summary, I cannot equate amounts given for pain and suffering to an injured person by a third party to be a right of recovery for medical costs or medical care incurred. Pain and suffering do not equate to medical costs or medical care. Thus, those amounts recovered for pain and suffering are not, in my interpretation of the statute, covered by the assignment given in N.D.C.C. § 50-24.1-02.1.

[¶ 40] Given my interpretation of the statute, a remand to the trial court for a determination of what portion of the settlement proceeds constituted payment or reimbursement for medical costs incurred by Grey Bear would seem appropriate. However, since I agree with the majority that the trial court’s granting of summary judgment in this case was appropriate, a remand is unnecessary. A party resisting summary judgment must present competent evidence which raises a disputed issue of material fact. Although a party seeking summary judgment bears the initial burden of establishing there are no genuine issues of material fact, a party resisting the summary judgment may not simply rely upon the pleadings or upon unsupported conclusory allegations. Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 8, 574 N.W.2d 812. The resisting party must present competent admissible evidence by affidavit or other similar means which raises a disputed issue of material fact and must, if appropriate, draw the Court’s attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing evidence raising an issue of material fact. Id. It is presumed the evidence does not exist, if no evidence raising a disputed issue of material fact is presented. Id.

[¶ 41] In this case, the Department moved for summary judgment on the Department’s counterclaim that it was entitled to the full amount of any recovery Grey Bear receives from a third party for damages up to the total amount of Medicaid benefits furnished to him. Grey Bear submitted no opposing affidavit or other evidence establishing how much, if any, of the settlement proceeds in this case were for pain and suffering rather than medical costs incurred. Accordingly, there being no disputed issue of material fact on that issue, I agree that it was proper for the trial court to grant summary judgment as a matter of law in favor of the Department.

[¶ 42] Other than my disagreement with the majority regarding the conclusion that the assignment under N.D.C.C. § 50-24.1-02.1 gives the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering, I agree with the reasoning set forth by the majority in the conclusions reached in sections III through VI and the results set forth in section VII,

[¶ 43] JAMES M. BEKKEN, D.J„ and MARY MUEHLEN MARING, J., concur.

MARING, Justice,

concurring.

[¶ 44] I join in the concurrence of Judge Bekken. I write separately because I am troubled by paragraph 16 of Part III in the majority opinion. This paragraph states: “Contrary to Grey Bear’s assertion, we do not believe it is the insurance company’s problem if it turns out it paid Grey Bear on a claim he had assigned to the Department.” I disagree with this statement if it means that it does not matter whether the third-party insurer had notice of the assignment or not. I am of the opinion that if the third-party insurer did have notice of the Department’s right to recover and proceeded to settle with Grey Bear for all claims, the Department would have a right to recover payments for medical care from the third-party insurer. See Burgener v. Bushaw, 545 N.W.2d 163, 167 (N.D.1996). If the third-party insurer had notice of the assignment, the Department must be included in the settlement discussions or the third-party insurer risks a separate action against it. Grey Bear, however, did not come forward with any evidence at the time of the summary judgment motion, which would establish the third-party insurer had notice of the Department’s right to recover for medical care. It is interesting to note, however, that the record reveals correspondence between Grey Bear’s attorney and the Department, which indicates the Department had notice of the malpractice action before the case was settled. Again Grey Bear did not produce any evidence the Department placed the third-party insurer on notice .of its rights.

[¶ 45] Further, in this case, once Grey Bear settled with the third-party insurer and provided a release of all claims, he extinguished the Department’s right of subrogation. See id. (“[U]nder general subrogation principles, release of the injured plaintiffs claims against the tortfea-sor released the dependent subrogation rights as well.”). Consequently, the entire settlement was subject to the Department’s claim for medical care. Arguably, because Grey Bear assigned to the Department his right to bring a direct cause of action against the third party for medical expenses, Grey Bear had no enforceable claim for medical expenses and could not settle the Department’s claim. Grey Bear retained, however, his right to bring a cause of action for damages, other than medical expenses, which he incurred as a result of the conduct of the third-party tortfeasor.

[¶ 46] I agree with the conclusion of the Minnesota Supreme Court that the granting of a broad assignment right, such as the majority opinion sets forth in this case, allows the Department “to expand the range of the required assignment to defeat the anti-lien provision,” which interferes with the federal Medicaid scheme. Martin v. City of Rochester, 642 N.W.2d 1, 18 (Minn.2002). The federal anti-lien statute prohibits states from imposing a lien on property of a Medicaid recipient because of medical assistance paid. 42 U.S.C. § 1396p(a)(l) (2000) (“[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid ...”). The purpose of this general prohibition is “to protect the recipient’s limited assets, including nonassigned rights to recover, ...” Martin, at 18. The Minnesota Supreme Court concluded that the federal statutes, 42 U.S.C. § 1396a(a)(25)(H) (2000), 42 U.S.C. § 1396p(a)(l) (2000), and 42 U.S.C. § 1396k(a) (2000), “reflect dual federal objectives: first, protection of the recipient’s limited assets from encroachment by the state for reimbursement for medical expenses paid; second, requiring recovery and reimbursement from third parties liable for the recipient’s medical expenses that were paid by Medicaid.” Id. at 14. The Minnesota Supreme Court distinguished several of the cases cited by the majority opinion in this case. The Minnesota Supreme Court further stated:

We are also mindful of the state’s equitable argument that it needs to preserve and recover Medicaid assets. But our resolution of the issue before us does not eliminate the state’s ability to recover medical expenses when third parties are liable. Rather, our conclusion leaves the federal scheme intact and the state retains the assignment of a medical assistance recipient’s right to recover for medical expenses against potentially liable third parties. Indisputably, the state’s rights are limited — they only extend to a recipient’s right to recover for medical expenses. The state has no interest under the assignment in any of the recipient’s recoveries froto third parties for claims other than for medical expenses. But the state does not have to wait for the recipient to initiate an action. Under harmonized federal and state law, medical assistance recipients are required to assign to the state their rights to receive payment for medical expenses from any potentially liable third parties. This assignment enables the state to acquire the recipient’s property rights to this particular claim and to take independent legal action, or, as in this case, to be joined as a party to the recipient’s action. Thus, the state can take an active role as a plaintiff in its own right and does not have to rely on the efforts of others to ensure a recovery of medical assistance expenses. Therefore, even though the method of obtaining medical assistance reimbursement that the state seeks in this litigation is not available to it, the state has other alternatives available to recover medical expenses.

Id. at 24, 25.

[¶ 47] I am persuaded by the clear logic of the Minnesota Supreme Court concluding that' the Department cannot recover for medical expenses paid under Medicaid from settlements or verdicts for pain and suffering, loss of earnings, and other elements of damage, none of which are compensated by the Department through medical assistance.

[¶ 48] MARY MUEHLEN MARING and JAMES M. BEKKEN, D.J., concur.

      . The previous version of N.D.C.C. § 50-24.1-02.1 granted the Department both a sub-rogation right and an assignment right for medical expenses provided. The reference to subrogation was eliminated by the Legislative Assembly in 1981. See State ex rel. Moug v. N.D. Auto., 322 N.W.2d 245, 246 (N.D.1982). A review of the legislative history indicates the amendment to N.D.C.C. § 50-24.1-02.1 was intended to provide an automatic assignment, by each applicant for medical assistance, of any right that applicant might have to recover medical costs from some third party. Hearing on S.B. 2159 Before the Senate Social Services & Veterans Affairs Comm., 47th N.D. Legis. Sess. (Jan. 22, 1981) (testimony of Blaine L. Nordwall, Social Services Board of North Dakota).

      . North Dakota's assignment statute, N.D.C.C. § 50-24.1-02.1, is similar to both Pennsylvania's, 62 P.S. § 1404(b) (2001), and Utah's, Utah Code Ann. § 26 — 19—4.5(l)(a), statutes because there is only a right of assignment for recovery from third parties granted to the state for medical assistance provided. Many states, including New York, New Mexico, and Minnesota, have Medicaid statutes that provide for recovery from third parties with both assignment and subrogation rights. See e.g. N.Y. CLS Soc. Serv. §§ 366(4)(h)(l) (assignment statute), 367-A(2)(b) (subrogation statute); N.M.Stat.Ann. §§ 27-2-28(G)(l)(b) (assignment statute), 27-2-23(B) (subrogation statute); Minn.Stat. §§ 256B.056, subd. 6 (assignment statute), 256B.037, subd. 1 (subrogation statute). In Washington, the Medicaid statutes, Rev.Code Wash. §§ 74.09.180, 74.09.185, grant only a subrogation right for recovery, but the supreme court has found these subrogation statutes act as a statutory assignment. See Wilson, 10 P.3d at 1064-65.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2002 ND 140
    MR. G’S TURTLE MOUNTAIN LODGE, INC., Plaintiff and Appellant, v. ROLAND TOWNSHIP, Michael Sturdevant, Defendants and Appellees. Bill Light, Ken Nelson, Clayton Lider and Jeff Monson, Defendants.
    No. 20010202.
    Supreme Court of North Dakota.
    Aug. 23, 2002.

      James Edward Nostdahl (argued) and Brent Michael Olson (on brief), Pringle & Herigstad, P.C., Minot, for plaintiff and appellant.
    Collin Paul Dobrovolny (argued) and Bryan Lee Van Grinsven (appeared), McGee, Hankla, Backes & Dobrovolny, Minot, for defendant and appellee Roland Township.
    James S. Hill (argued) and R,ebecca S. Thieni (on brief), Zuger Kirmis & Smith, Bismarck, for defendant and appellee Michael Sturdevant.
   KAPSNER, Justice.

[¶ 1] Mr. G’s Turtle Mountain Lodge, Inc. (“Mr. G’s”) appealed from summary judgments dismissing its claims against Roland Township, Michael Sturdevant, Clayton Lider, Jeff Monson, Bill Light, and Ken Nelson. We dismiss Mr. G’s attempted appeal from the judgment dismissing its claims against Michael Sturde-vant, concluding the appeal is jurisdiction-ally barred and Mr. G’s waived its right to appeal when it voluntarily paid the judgment. We affirm the judgment dismissing Mr. G’s claims against Roland Township, concluding that Mr. G’s failed to raise a genuine issue of material fact on an essential element of its wrongful interference with business claim and that an allegedly libelous communication was not fairly susceptible of a defamatory meaning.

I

2] In March 1999, Mr. G’s purchased the Turtle Mountain Lodge on Lake Meti-goshe. When the lodge proved unprofitable, Mr. G’s closed it in September 1999 and had it razed. In November 1999, Mr. G’s requested that the Roland Township Board of Supervisors (“the Board”) rezone the property from commercial to residential. Mr. G’s intended to subdivide the property and sell lots on the lake. The Board met on December 10, 1999, to consider Mr. G’s request. Members of the Board expressed concerns to Mr. G’s representatives about lot size, setback requirements, lot configurations, and other zoning requirements, and indicated there would be problems with issuing building permits for the lots. The Board approved the zoning change from commercial to residential, but did not approve a plat map.

[¶ 3] Mr. G’s subsequently had a plat map prepared and recorded it with the Bottineau County Register of Deeds on January 26,' 2000. A dispute arose regarding the legality of recording a plat map which had not been approved by the Board. Two Board members and Michael Sturdevant, the Board’s attorney, met with representatives of Mr. G’s and John Gregg, who was Mr. G’s attorney and was also the States Attorney for Bottineau County. Gregg ultimately advised the Bottineau County Register of Deeds that it was legal to record the plat map without the approval of the Board.

[¶ 4] Mr. G’s scheduled a public auction for February 12, 2000, to sell the lots as described in the plat map. When the Board learned of the scheduled public auction, it authorized Sturdevant to send a letter to the editors of two area newspapers advising the public about possible problems with zoning and issuance of budding permits for the lots. The two essentially identical letters, published on February 6 and February 8, 2000, stated:

As attorney for Roland Township (Bottineau County) Board of Supervisors, I am writing with regard to the auction sale of lots on Hahn’s Bay Shores at Lake Metigoshe which was recently advertised in the Daily News. We believe that the public should be given notice that this property is subject to the Roland Township zoning ordinance and that plat of Hahn’s Bay Shores was recorded without the consent of the township supervisors.
Copies of the Roland Township zoning ordinance have been provided to the Minot Public Library and the Bottineau County Library. Persons considering the purchase of any of these lots should carefully review the provisions of the zoning ordinance relating to residential districts. Building permits are required and cannot be issued for nonconforming construction in new developments.

[¶ 5] The auction took place as scheduled. Bids on two lots were received, but Mr. G’s rejected the bids because they were below the minimum acceptable bids Mr. G’s had predetermined for those lots.

[¶ 6] On March 3, 2000, Mr. G’s brought this action against Roland Township; Sturdevant; Clayton Lider and Jeff Monson, members of the Board; and Bill Light and Ken Nelson, neighboring landowners. The complaint alleged tortious interference with business relationships, deceit, slander of title, civil libel, slander, and inverse condemnation. On motions for summary judgment, the district court dismissed all claims against Sturdevant, Light, and Nelson, found the claims against those defendants were frivolous, and awarded those defendants their actual costs and attorney’s fees for defending the actions. The court also granted summary judgment dismissing all claims against Roland Township, Lider, and Monson, concluding there were no genuine issues of material fact and the defendants were entitled to judgment as a matter of law. Mr. G’s appealed.

II

[¶ 7] Stúrdevant argues Mr. G’s attempted appeal from the judgment dismissing the claims against him should be dismissed because the formal 'satisfaction of the judgment jurisdictionally bars the appeal and Mr. G’s voluntary payment of the judgment constitutes a waiver of the right to appeal.

A

[¶ 8] The district court granted summary judgment dismissing Mr. G’s claims against Sturdevant, finding the claims were frivolous. The court awarded Sturdevant actual costs and attorney’s fees in the amount of $36,632.00 for defending the frivolous action. Mr. G’s paid the judgment, procured a satisfaction of judgment from Sturdevant’s attorney, and filed the satisfaction of judgment with the clerk of court. The satisfaction of judgment was properly acknowledged as required by N.D.C.C. § 28-20-24. See Nodak Mut. Ins. Co. v. Stegman, 2002 ND 113, 647 N.W.2d 133, ¶¶ 8-9.

[¶ 9] We have recently held that an attempted appeal from a judgment that has been properly satisfied of record fails for lack of jurisdiction:

A judgment that has been paid and satisfied of record ceases to have any existence. Lyon v. Ford Motor Co., 2000 ND 12, ¶ 10, 604 N.W.2d 453. A satisfaction of judgment on the record extinguishes the claim, and the controversy is deemed ended, leaving an appellate court with nothing to review. DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432; Lyon, at ¶ 10. An appellate court is without jurisdiction if there is no actual and justiciable controversy. Gregory v. North Dakota Workers Comp. Bureau, 1998 ND 94, ¶ 22, 578 N.W.2d 101. Thus, an attempted appeal from a judgment that has been satisfied of record fails for lack of jurisdiction.

Stegman, 647 N.W.2d 133, 2002 ND 113, ¶ 7.

[¶ 10] Further support for this conclusion is found in N.D.C.C. § 28-05-10, which provides:

A civil action in a district court is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.

Thus, when a judgment is satisfied before the time for appeal has expired, the action is no longer pending. Once an action is no longer pending under N.D.C.C. § 28-05-10, a court is without jurisdiction unless a motion is made to reinvoke jurisdiction. Fichter v. Kadrmas, 507 N.W.2d 72, 75 (N.D.1993).

[¶ 11] We further concluded in Lyon, 2000 ND 12, ¶ 13, 604 N.W.2d 453, that “a party who voluntarily pays a judgment against him waives the right to appeal from the judgment.” Consequently, Mr. G’s waived its right to appeal when it voluntarily paid the judgment to Sturde-vant.

[¶ 12] Mr. G’s argues that it did not pay the judgment voluntarily, but. rather paid it under duress. Mr. G’s contends that it only paid the various judgments to remove the judgment liens against the property in order to clear the way for a pending sale of some of the lots.

[¶ 13] While voluntary payment of a judgment waives the right to appeal, payment, of a judgment under coercion or duress does not constitute a waiver. Twogood v. Wentz, 2001 ND 167, ¶ 5, 634 N.W.2d 514; Lyon, 2000 ND 12, ¶ 14, 604 N.W.2d 453. The question whether a judgment has been voluntarily paid depends upon the facts and circumstances of each particular case, and the party seeking dismissal of the appeal bears the burden of showing the judgment was paid voluntarily. Twogood, at ¶ 5; Lyon, at ¶ 14. A showing that the judgment has been paid, however, creates a presumption that the payment was voluntary. Twogood, at ¶ 5; Lyon, at ¶ 14.

[¶ 14] Mr. G’s argues it paid the judgment under coercion or duress because it needed to remove the judgment lien to facilitate a pending sale of the property. However, under N.D.C.C. § 28-20-29, a judgment debtor may have the judgment lien against the property released by either depositing sufficient funds with the clerk of court or posting a supersedeas bond. Lyon, 2000 ND 12, ¶ 12, 604 N.W.2d 453. Mr. G’s did not avail itself of these statutory options to release the lien, but paid the judgment to Sturdevant and procured and filed a satisfaction of judgment on the record. Under these circumstances, Mr. G’s payment of the. judgment was voluntary and constituted a waiver of the right to appeal.

[¶ 15] Mr. G’s also argues that dismissal is inappropriate because it paid only a cost judgment, not a judgment based upon the merits of its claims. Mr. G’s argues our holding in Twogood, which differentiated between payment of a cost judgment and one which goes to the merits, supports the assertion that it has not waived its right to appeal.

[¶ 16] In Twogood, we concluded that payment of a cost judgment, which did not “in any way go to the merits of the case,” did not defeat the right to appeal in that case. Twogood, 2001 ND 167, ¶¶ 7-8, 634 N.W.2d 514. We carefully noted that the $1,300 in costs assessed against Twogood “did not go to the merits of the case.” Id. at ¶ 8. In this case, the district court determined Mr. G’s action against Sturde-vant was frivolous and, based upon that determination, ordered Mr. G’s to pay Sturdevant’s actual costs and attorney’s fees in the amount of $36,632.00. Unlike an ordinary judgment for statutory costs to a prevailing plaintiff, an award of actual costs and attorney’s fees for bringing a frivolous action is based upon, and goes to, the merits of the case. When Mr. G’s paid the judgment for actual costs and attorney’s fees, it waived its right to appeal from the judgment.

[¶ 17] We conclude that Mir. G’s waived its right to appeal from the judgment dismissing its claims against Sturdevant, and that the appeal is jurisdictionally barred. We therefore dismiss the appeal from that judgment.

B

[¶ 18] Although Roland Township has not argued for dismissal of the appeal from the judgment dismissing Mr. G’s claims against ⅜ formal satisfaction of the judgment on the record raises a jurisdictional issue' which we may raise sua sponte. See Stegman, 2002 ND 113, 647 N.W.2d 133, ¶¶ 6-10. Although Mr. G’s paid the judgment in favor of Roland Township and .procured and filed a satisfaction of judgment, the satisfaction of judgment does not meet the requirements of N.D.C.C., § 28-20-24 because it was not notarized or otherwise witnessed and authenticated. See Stegman, at ¶¶ 8-10. Accordingly, the judgment was not formally satisfied of record and the appeal is not jurisdictionally barred. Id. at ¶ 10.

[¶ 19] We also note that the judgment against Roland Township is a pure cost judgment which does not in any way go to the" merits of the case. Thus, Mr. G’s payment of the judgment did not constitute a waiver of the right to appeal. See Twogood, 2001 ND 167, ¶¶ 7-8, 634 N.W.2d 514.

Ill

[¶ 20] Mr. G’s argues the district court erred in granting summary judgment dismissing its claims against Roland Township for tortious interference with business relationships and civil libel.

A

[¶ 21] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result. Knutson v. County of Barnes, 2002 ND 68, ¶ 11, 642 N.W.2d 910. The evidence must be viewed in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Dalan v. Paracelsus Healthcare Corp., 2002 ND 46, ¶ 7, 640 N.W.2d 726.

[¶ 22] We recently outlined the duty of a party opposing a summary judgment motion:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991)).

[¶ 23] Summary judgment is appropriate when a party fails to establish the existence of a factual dispute on an essential element of his claim on which he will bear the burden of proof at trial. Dalan, 2002 ND 46, ¶ 7, 640 N.W.2d 726; Anderson, 2001 ND 125, ¶ 15, 630 N.W.2d 46. When no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Anderson, at ¶ 15; Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 27, 606 N.W.2d 908.

B

[¶ 24] Mr. G’s argues the district court erred in dismissing its claim for tortious interference with business relationships. Mr. G’s contends that the letters to the editor published at the direction of the Board interfered with Mr. G’s reasonable business expectancy to sell the lots.

[¶ 25] We recognized the existence of a tort action for unlawful interference with business in Trade ‘N Post v. World Duty Free Americas, Inc., 2001 ND 116, 628 N.W.2d 707. We outlined the five elements of the tort:

(1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tor-tious or otherwise unlawful act of interference by the interferer; (4) proof that the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.

Trade ‘N Post, at ¶ 36.

[¶ 26] The gravamen of Mr. G’s unlawful interference with business claim is its assertion that the letters to the editor prevented prospective purchasers from making bids on the lots. Roland Township argues that Mr. G’s failed to present any evidence that the letters caused prospective bidders to refrain from bidding.

[¶ 27] William Gendreau, one of the principals of Mr. G’s, testified in his deposition that he could not identify anyone whose decision whether to bid or attend the auction was influenced by the letters. Two prospective purchasers who were deposed testified that they were aware of the letters but that the letters did not influence their decision to bid. One of the two in fact bid $35,000 for one of the lots, but Mr. G’s rejected the bid because it fell below Mr. G’s predetermined minimum bid for the lot. When the only witnesses who might have been influenced by the alleged interference testify that it had no effect upon their decision whether to enter into a business relationship with the plaintiff, there has been no showing of unlawful interference. See Hunt v. University of Minnesota, 465 N.W.2d 88, 96 (Minn.Ct.App.1991).

[¶ 28] Mr. G’s has not drawn our attention to any evidence in the. record which supports its assertion the letters to the editor caused the failure of its attempted auction sale of the lots. In essence, Mr. G’s argues it did not receive what it considered adequate bids for the lots, so the letters must be the reason for the failure of the sale. This is mere conjecture that a causal connection existed between the publication of the letters and the decision of individual purchasers to bid on the lots. There may have been numerous other factors which caused the failure of the sale. Mere speculation will not defeat a motion for summary judgment. Ellingson v. Knudson, 498 N.W.2d 814, 818 (N.D.1993).

[¶ 29] We conclude Mr. G’s failed to present competent, admissible evidence raising a genuine issue of material fact on an essential element of its claim on which it bore the burden of proof at trial. Summary judgment was therefore appropriate.

C

[¶ 30] Mr. G’s argues the district court erred in granting summary judgment dismissing its claim against Roland Township for civihlibel.

[¶ 31] Civil libel is a form of defamation, N.D.C.C. § 14-02-02, and is defined in N.D.C.C. § 14-02-03:

Libel is a false and unprivileged publication by writing .,. which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person’s occupation-

al 32] .Mr. G’s contends the letters to the editor implied wrongful conduct by Mr. G’s and damaged its business- reputation. Specifically, Mr.. G’s argues that the sentence in the letter indicating the plat was recorded without the consent of the Board leads to an inference “that there was something wrong or illegal about the lots.” Mr. G’s concedes that the sentence is technically not false: the plat was recorded without the Board’s consent. Mr. G’s argues, however, that the letter suggests by innuendo that the plat was wrongfully recorded.

[¶ 33] To be defamatory, a statement must be false. Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 24, 599 N.W.2d 293; Eli v. Griggs County Hosp. and Nursing Home, 385 N.W.2d 99, 101 (N.D.1986), However, statements which are technically true on their face, but which by innuendo, insinuation, or sarcasm convey an untrue and defamatory meaning, may constitute civil libel. See Moritz v. Medical Arts Clinic, P.C., 315 N.W.2d 458, 460 (N.D.1982).

[¶ 34] When the communication is not libelous per se, it is for the judge to decide whether the communication is capable of a particular meaning and whether that meaning is defamatory. Moritz, 315 N.W.2d at 460. In Moritz, this Court quoted Restatement (Second) of Torts § 614 about the respective roles of the trial court and the jury:

In Restatement Second, Torts ¶ 614, the function of the court and jury is discussed. We quote:
“(1) The court determines
“(a) whether a communication is capable of bearing a particular meaning, and
“(b) whether that meaning is defamatory.
“(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.”

[¶ 35] In comment (b) to this section it is said:

“Under the rule stated in this Section, the determination of the first two of these questions is for the court and that of the third for the jury. The court determines whether the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed is defamatory in character. If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended.”

Moritz, at 460.

[¶ 36] In determining whether words are libelous and actionable, the language complained of must be construed in the context of the entire document, and the sense or meaning of the document must be determined by construing words according to the natural and ordinary meaning a reasonable person of ordinary intelligence would give them. Id. at 461. A communication is not libelous if the language used is not fairly susceptible of a defamatory meaning. Little v. Spaeth, 394 N.W.2d 700, 706 (N.D.1986); Moritz, at 460.

[¶ 37] Reading the challenged language in the context of the entire letter, we conclude as a matter of law that the language is not reasonably and fairly capable of bearing the defamatory meaning suggested by Mr. G’s. The sentence at issue states: “We believe that the public should be given notice that this property is subject to the Roland Township zoning ordinances and that plat of Hahn’s Bay Shores was recorded without the consent of the township supervisors.” The letter then advises that potential purchasers should review the zoning ordinances and that building permits will be required. Read in context, the statement that the plat was not approved by the township supervisors suggests only that the Board has not approved the plat or authorized building upon the lots as configured, and potential purchasers must consult the relevant zoning ordinances to determine whether the lots conform to those ordinances.

[¶ 38] This Court has indicated defamation will not he where only a forced construction will place a defamatory connotation on the communication:

It is our opinion that only a tortured construction of the words of the letter could support such a meaning and even then the reader would have to be predisposed to imagine activities far beyond the ordinary import of the words used.... We ... conclude that the words used in this case were “obviously innocent: words which cannot properly be construed so as to convey any imputation on thé plaintiff.” No imagined innuendo can alter the sense or supply a meaning to a document which is not there. A court will not put a forced construction on words which may fairly be deemed harmless. The fact that plaintiff places a defamatory connotation op the statement does not make it actionable. , . :

Moritz, 315 N.W.2d at 461 (quoting State v. Haider, 150 N.W.2d 71, 74 (N.D.1967)) (citations omitted). The Court concluded that “[imagination and suspicion are not determinative — the meaning of the words is what counts.” Moritz, at 462.

[¶ 39] We conclude that the truthful and innocuous language of the letters is not fairly susceptible of a defamatory meaning. Accordingly, the district court did not err in dismissing the civil libel claim against Roland Township.

IV

[¶ 40] We have considered ‘the remaining issues raised by the parties and'they are either unnecessary to our decision or are without merit. We dismiss the appeal from the judgment dismissing Mr. G’s claims against Sturdevant. We affirm the judgment dismissing Mr. G’s claims against Roland Township.

[¶ 41] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, JJ., ALLAN L. SCHMALENBERGER, D.J., and MICHAEL 0. McGUIRE, D.J.

[¶ 42] The Honorable ALLAN L. SCHMALENBERGER, D.J., and the Honorable MICHAEL 0. McGUIRE, D.J., sitting in place of MARING, J., and NEUMANN, J., disqualified.

      . Prior to oral argument, Light and Nelson moved to dismiss the appeal from the judgment dismissing Mr. G’s claims against them. We granted the motion to dismiss the appeal on March 6, 2002. Mr. G's has not challenged on appeal the dismissal of its claims against Lider and Monson and has conceded in its brief that Lider and Monson are not involved in the appeal. Accordingly, we are only concerned with the appeals of the dismissal of claims against Roland Township and Sturdevant.

      . The Board and Sturdevant now concede that the Board’s approval was not required prior to filing the plat map.


author: SANDSTROM, Justice.

text:
    2002 ND 147
    James J. ABEL, Plaintiff and Appellant, v. Earl ALLEN, d/b/a Oak Park Leasing, Defendant and Appellee.
    No. 20020069.
    Supreme Court of North Dakota.
    Aug. 29, 2002.

      Michael Ward, Eaton, Van de Streek & Ward, Heritage Place, Minot, ND, for plaintiff and appellant.
    Moody M. Farhart, Farhart Law Firm, Minot, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] James Abel appealed a judgment dismissing his complaint against Earl Allen, doing business as Oak Park Leasing. We conclude Abel’s claim is barred by the statute of limitations, and we affirm.

I

[¶ 2] Abel and another person leased a building from Allen on April 27, 1989, for a period of five years, beginning June 1, 1989, and ending May 31, 1994. The lease gave Abel an option to purchase the premises:

Lessor, First Party, does hereby grant Second Parties, Lessees, an option to purchase the premises for $60,000.00, plus an exact amount for improvements made hereafter by First Party, Lessor; however, there shall be no additional cost to Lessees, Second Parties, for their improvements made and paid by them personally. Said option to purchase shall expire June 1,1994.

After the lease expired, Abel continued to occupy the premises on a month-to-month basis.

[¶ 3] On May 26, 2000, Abel sued Allen for specific performance of the purchase option, or for damages for unjust enrichment. Abel alleged, among other things, he had made repairs and improvements to the property, and also alleged:

VI.
That by May 1989 he elected to exercise the option to purchase for $60,000.00, plus the exact amount for improvements required under the lease. That Earl Allen knew he had the money available, but refused to sign the agreement or discuss the actual terms.... Abel understood that Earl was preparing the documents and Earl advised him that since he was a lawyer he could save them the cost of the documents, and that he would do them for nominal costs.
VII.
Once June 1, 1989 passed Earl advised [Abel] that since the date had passed he could no longer purchase the building, and the land, and he was not going to go through with it. It was understood that they would make an agreement for repayment that would be equitable as to the amount of money into the building .... Earl has often indicated that he might do so, but thus far has refused to make any sort of a fair reimbursement for his expenditures or to go through with the agreement.

[¶ 4] Allen moved for summary judgment of dismissal. On the specific performance claim, Allen contended Abel’s claim accrued in May 1989, when Abel alleged he exercised the purchase option, and argued:

This action was commenced on or about May 26, 2000. The ten-year limitations period, however, had already run out the previous year, ten years after Abel avers he and Brandt exercised the option. Thus, as a matter of law, the ten-year limitations period has lapsed and the claim for specific performance must be dismissed.

Allen also argued Abel’s unjust enrichment claim was barred under N.D.C.C. § 28-01-22 “[b]ecause Abel sat on- his rights for 11 years before asserting his claim for unjust enrichment.”

[¶ 5] In opposing Allen’s motion for summary judgment, Abel submitted an affidavit stating, in part:

4. Demands were made of him to honor the option continually through the period of the lease and even after the lease was foreclosed on. Certainly a number of demands were made in the last year of the lease.
8. That James had requested of Earl, that Earl honor this contract and that Earl uphold his option even on the last day of the lease, and at this time Earl refused to do so at this time.

[¶ 6] The trial court granted Allen’s motion for summary judgment, explaining:

The date of accrual of the time in which the plaintiff was to elect to exercise the option was May 1989. N.D.C.C. 28-01-16(2) allows the plaintiff 10 years to commence an action. The Summons and Complaint in this case were served on May 26, 2000 or 11 years after the date of accrual.. Thus, the plaintiff is precluded from proceeding on the option.

A judgment of dismissal with prejudice was entered, and Abel appealed.

[¶ 7] The trial court had jurisdiction under' N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] Summary judgment is a procedural device for disposing of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Jaskoviak v. Gruver, 2002 ND 1, ¶ 11, 638 N.W.2d 1. On appeal from a summary judgment, “ ‘we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence.’ ” Id. (quoting Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶ 11, 625 N.W.2d 241).

[¶ 9] The parties agree the applicable statute of limitations is N.D.C.C. § 28-01-15(2), providing that suit must be “commenced within ten years after the claim for relief has accrued.” Allen argued, and the trial court agreed, that the statute of limitations began to run in May of 1989, when Abel asserted he attempted to exercise his purchase option. Abel argues “the option was part of the lease,” he “had a right to attempt to exercise it as long as the lease was in force,” and if he “attempted to exercise the motion [sic] until the end of the leased period the statute would not have started to run until May 31,1994.”

[¶ 10] “ ‘The application of the statute of limitations is a legal bar to a cause of action.’ ” Huber v. Oliver County, 529 N.W.2d 179, 182 (N.D.1995) (quoting Hagen v. Altman, 79 N.W.2d 53, 58 (N.D.1956)). “The statute of limitations begins to run when the underlying cause of action accrues.” Huber, at 182. When, as here, the legislature has not defined when a cause of action has accrued, “it is for the judiciary to determine what controls the ‘accrual’ of an action.” Id.

[¶ 11] “Determining when a plaintiffs cause of action has accrued is generally a question of fact,” Huber, 529 N.W.2d at 182, and a district court’s determination “will not be overturned on appeal unless clearly erroneous,” Jones v. Barnett, 2000 ND 207, ¶ 6, 619 N.W.2d 490. However, if “there is no dispute in the evidence about the facts, the question of whether the statute of limitations has run is for the court.” Wells v. First Am. Bank West, 1999 ND 170, ¶ 7, 598 N.W.2d 834. See also American State Bank v. Sorenson, 539 N.W.2d 59, 62 (N.D.1995) (“Without a dispute of material fact, the trial court faced only a question of law on whether the statute of limitations barred the bank’s claim.”).

[¶ 12] “ ‘A cause of action accrues when the right to commence it comes into existence; when it can be brought in a court of law without being subject to dismissal for failure to state a claim.’ ” Huber, 529 N.W.2d at 182 (quoting Keller v. Clark Equip. Co., 474 F.Supp. 966, 969 (D.N.D.1979)). We have recognized that a cause of action for breach of a lease accrues upon the first breach. Finstrom v. First State Bank of Buxton, 525 N.W.2d 675, 677-78 (N.D.1994).

[¶ 13] Abel acknowledged at oral argument that Allen breached the contract on Abel’s first demand and he could have sued Allen upon that first refusal to comply with Abel’s attempt to exercise the option. We agree, and we conclude the trial court did not err in ruling Abel’s cause of action accrued in 1989 and his suit in May 2000 was barred by the statute of limitations.

Ill

[¶ 14] The judgment is affirmed.

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


author: NEUMANN, Justice. VANDEWALLE, Chief Justice,

text:
    2002 ND 143
    STATE of North Dakota, Plaintiff and Appellee, v. Robert Lucas BERGER, Defendant and Appellant.
    No. 20010303.
    Supreme Court of North Dakota.
    Aug. 29, 2002.
    Chad R. McCabe of Vinje Law Firm, Bismarck, for defendant and appellant.
    Brian D. Grosinger, Assistant State’s Attorney, Mandan, for plaintiff and appel-lee.
   NEUMANN, Justice.

[¶ 1] Robert Lucas Berger appeals from a trial court’s judgment revoking his probation., We reverse and remand. '

[¶2] On July 10, 2000, Robert Lucas Berger pled guilty to menacing and false report to a law enforcement officer, both class A misdemeanors. Under the plea agreement accepted by the trial court, Berger was sentenced to one year of county detention on both counts to run concurrently, with nine months suspended for one year. Of the ninety days to serve, Berger was to receive credit for thirty days spent in inpatient treatment and the remaining sixty days would be completed by electronic monitoring. Berger was placed on supervised probation with Cen-tre, Inc., probation services for one year. Conditions of probation included not using or possessing alcoholic beverages, not leaving the State of North Dakota without permission, not entering a liquor establishment without permission, and successfully completing chemical dependency treatment.

[¶ 3] On August 20, 2001, the State petitioned for revocation of Berger’s probation. The State alleged: (1) Berger admitted using alcohol on October 14 and 21, 2000, and July 15, 2001; (2) on June 27, 2001, Berger left North Dakota without permission; (3) on July 31, 2001, Berger entered a liquor establishment and tested .068 for alcohol; and (4) Berger failed to complete chemical dependency treatment because he was terminated from the program for failing to comply with attendance requirements.

[¶ 4] On September 27, 2001, the trial court held a revocation hearing. Berger argued his one year of probation began on July 10, 2000, and ended July 10, 2001, before at least two of his alleged violations occurred. The trial court took the matter under advisement and requested briefs from the parties on the issue. The trial court issued a memorandum opinion concluding “the legislative intent would be that the defendant’s period of probation would commence upon the completion of this 60 days of electronic monitoring.” The trial court found the probation did not terminate on July 10, 2001. The trial court ordered Berger’s probation revoked and sentenced him to nine months in the Morton County Correctional Center. Berger appeals.

[¶ 5] Berger’s appeal presents the issue of when a period of probation commences. Berger argues the trial court’s July 10, 2000, order was ambiguous as to when his probation was to begin. He claims he believed his probation began on July 10, 2000, the date his sentence was issued. Because of the ambiguity in the trial court’s order concerning when probation began, he argues this Court should construe the commencement of probation in his favor.

[¶ 6] The State argues there is no ambiguity in the probation sentence. The State claims it is a common understanding that there is a period of incarceration, then a period of probation, and the two do not overlap.

[¶ 7] We have held conditions of probation are to be strictly construed in favor of the offender. State v. Ballensky, 1998 ND 197, ¶ 10, 586 N.W.2d 163; The accused should be given the benefit of the doubt as to a sentence which is not certain, definite, or free from ambiguity, and serious uncertainty in the sentence should be resolved in favor of liberty. State v. Drader, 432 N.W.2d 553, 554 (N.D.1988) (citing 24 C.J.S. Criminal Law § 1585). If a condition of probation is capable of two reasonable constructions, we will construe the condition in favor of the offender. Morstad v. State, 518 N.W.2d 191, 193 (N.D.1994).

[¶ 8] The trial court relied on N.D.C.C. § 12.1-32-06.1, to conclude the legislative intent is that the period of probation would commence at the completion of the electronic monitoring. Section 12.1-32-06.1(1), N.D.C.C., provides:

1. Except as provided in this section, the length of the period of probation imposed in conjunction with a sentence to probation or a suspended execution or deferred imposition of sentence may not extend for more than five years for a felony and two years for a misdemeanor or infraction from the later of the date of:
a. The order imposing probation;
b. The defendant’s release from incarceration; or
c. Termination of the defendant’s parole.

[¶ 9] Section 12.1-32-06.1(1), N.D.C.C., does not address the issue of when a period of probation commences. The statute deals with the maximum length of probation, and refers to three possible times a probation may begin. Section 12.1-32-06.1(1), N.D.C.C., does not require periods of incarceration and probation to run consecutively, nor does it limit a trial court’s discretion to sentence a defendant to periods of incarceration and probation that run concurrently.

[¶ 10] When a question arises concerning the commencement of probation, the controlling consideration is the intention of the trial court imposing the sentence; that intent is to be found in the language employed to create the probationary status. Sanford v. King, 136 F.2d 106, 108 (5th Cir.1943); see also United States v. Levitt, 799 F.2d 505, 507. (9th Cir.1986). If Berger was not clearly informed when his probation was to begin and end, then he did not receive adequate notice of the behavior that could lead to revocation. See Drader, 432 N.W.2d at 555; see also Davis v. State, 2001 ND 85, ¶ 12, 625 N.W.2d 855 (noting due .process requires that the probationer receive actual notice of conduct that could lead to revocation).

[¶ 11] The orders placing Berger on probation do not indicate when the period of probation was to commence, and we are unable to determine the trial court’s intent from the transcript of Berger’s sentencing. Conditions of probation are to be strictly construed in favor of the accused; if a condition of probation is capable of more than one construction, it is to be construed in favor of the offender. Drader, 432 N.W.2d at 554.

[¶ 12] Because Berger’s sentencing order was silent as to the date probation commenced, and the transcript of the sentencing proceeding discloses no clear intent, we conclude his probation began on' July 10, 2000, the date of sentencing, and expired on July 10, 2001. It was therefore error for the trial'court to consider violations that occurred after the July 10, 2001, conclusion of Berger’s probationary period in determining its disposition of Berger. We reverse the trial court’s judgment and remand this case to the trial court to determine an appropriate disposition considering only those violations of probation which occurred prior to July 10, 2001.

[¶ 18] MARING, J., concurs.

KAPSNER, J., concurs in result.

VANDEWALLE, Chief Justice,

concurring in the result.

[¶ 14] I concur in the result reached in the majority opinion. Although Berger was sentenced to one year in “County Detention” the trial court ordered that nine months be suspended for one year, that 30 days credit be given for treatment, and that 60 days be served on electronic monitoring. ■ The sentence further provided that defendant was placed on supervised probation for one year.

[¶ 15] The North Dakota statutes do not define “probation.” Under N.D.C.C. § 1-02-02, words used in statute and not otherwise defined therein, are to be understood in their ordinary sense unless a contrary intention plainly appears. The term “probation” is defined by Black’s Law Dictionary, Seventh edition to mean: “A court-imposed criminal sentence that, subject to stated conditions, releases a con-vieted person into the community instead of sending the criminal to jail or prison.” Electronic monitoring is authorized by N.D.C.C. § 12.1-32-07(3)(f) as a condition of probation. It may have been considered “County Detention” by the trial court for purposes of the sentence, but Berger was not in jail or prison and was released into the community, albeit with restraints. Under these circumstances, I agree with the majority that we should apply the rationale in State v. Drader, 432 N.W.2d 553 (N.D.1988) and subsequent cases. That rationale gives the defendant the benefit of the doubt as to a sentence which is not certain or free from ambiguity and we resolve the sentence in favor of liberty, in this instance by concluding Berger’s probationary period began July 10, 2000.

[¶ 16] This definition of probation, applied for the purpose of this case, does not affect our decision in cases such as Davis v. State, 2001 ND 85, 625 N.W.2d 855, holding that a defendant’s failure to successfully complete a sex offender program while in prison amounted to a willful violation of a condition of probation. Section 12.1-32-02(1), N.D.C.C., specifies that a person convicted of an offense “must be sentenced to one or a combination of the following alternatives.” Those alternatives include, among others, imprisonment and probation. Nothing requires the alternatives cannot be imposed simultaneously. However, unless, as in Davis, the trial court provides to the contrary in the sentence, the period of probation would not begin to run until after the term of imprisonment under the common definition of the term “probation.”

[¶ 17] SANDSTROM, J., concurs.