text:
    2005 ND 193
    WILD RICE RIVER ESTATES, INC., Plaintiff and Appellant v. CITY OF FARGO, a municipal corporation, Defendant and Appellee.
    No. 20050074.
    Supreme Court of North Dakota.
    Nov. 14, 2005.
    Rehearing Denied Dec. 23, 2005.

      Jonathan T. Garaas, Garaas Law Firm, Fargo, ND, for plaintiff and appellant.
    Patricia A. Roscoe (argued) and Garylle B. Stewart (appeared), Solberg, Stewart, Miller & Tjon, Fargo, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Wild Rice River Estates, Inc. (“Wild Rice”), appealed from a judgment dismissing its inverse condemnation action against the city of Fargo and from an order denying its post-trial motions. We conclude the trial court correctly ruled that Fargo’s 21-month moratorium on building permits did not constitute a taking of Wild Rice’s property in violation of the federal and state constitutions, and we affirm.

I

[¶ 2] Wild Rice is the owner and developer of a rural residential subdivision along the banks of the Wild Rice River located about three miles south of Fargo. Wild Rice was owned by Anton Rutten, who acquired the farmland in 1947. Rut-ten anticipated that the property would one day become a part of Fargo, and he hoped to develop a subdivision on the property when the city grew. The subdivision was platted in 1993 with 38 lots, and 16 of those lots are located on an oxbow of the river. Wild Rice was incorporated in 1994 for the purpose of developing the subdivision. Because of county and township regulations, Wild Rice was required to construct at its expense a connection to the local sanitary sewer system operated by Southeast Cass Water Resource District. Fargo and Wild Rice entered into a 10-year agreement for the city to treat the sewage collected from the development, and Wild Rice installed sewer and water services for 14 of the lots. At the time of the platting, the required flood elevation for lots in Wild Rice was one foot above base floor elevation. Wild Rice sold the first lot in the development in 1994 for $24,000 and Rutten purchased a lot in 1996 or 1997. In the meantime, Wild Rice invested approximately $500,000 to develop and promote the subdivision.

[¶ 3] The Red River Valley, including the Wild Rice River, has a long and significant history of flooding. A bridge that once connected a road to the oxbow of the Wild Rice River where lots are currently located was removed in 1989 because of flood damage. During the April 1997 flood, all undeveloped lots in Wild Rice were under water. The homes then existing at the subdivision were not under water, but the partially constructed Rutten home was damaged by water and “muck.”

[¶ 4] After the 1997 flood, Fargo began working with the Federal Emergency Management Agency (“FEMA”) to plan for future floods, and on August 1, 1997, Fargo brought the Wild Rice subdivision into its extraterritorial jurisdiction. On June 15, 1998, FEMA developed a preliminary flood insurance rate-map for the area and several Wild Rice lots were located within the preliminary floodway. The Wild Rice River did not have a mapped floodway before this time, and city officials believed the FEMA designation for the river would be formalized in about 18 months. On August 10, 1998, the Fargo City Commission decided that a “moratorium be placed on the issuance of all building permits for new construction in the floodway within the City of Fargo and its four-mile extraterritorial zone effective August 10, 1998 for a period until the Fargo City Ordinances have been passed and FEMA has made a final determination on their flood plain map.” Although several of Wild Rice’s lots were affected by the moratorium, others were not affected. During the approximately 21-month period the moratorium was in effect, Fargo city officials participated in many meetings with local, state and federal officials concerning flood plan mitigation issues.

[¶ 5] In May 1999, Anton Rutten’s daughter, Bonnie Rutten, applied for a building permit to construct a home on one of the lots in Wild Rice, but the permit was denied because the lot was located within the area identified by FEMA in the preliminary designated floodway covered by the moratorium. During the moratorium, some buyers showed interest in purchasing Wild Rice lots and several people contacted Wild Rice for information. One potential buyer signed two purchase agreements and another signed a lot-hold agreement, but no lots were sold. Wild Rice repeatedly attempted to persuade Fargo to lift the moratorium and issue permits for construction, but the city refused.

[¶ 6] Wild Rice brought this inverse condemnation and tortious interference action on March 30, 2000, and Fargo filed its answer on April 21, 2000. On April 27, 2000, the Fargo city engineer wrote to the city commissioners and recommended that the building permit moratorium be lifted and the city adopt FEMA’s June 15, 1998 preliminary flood insurance rate-map panel as the governing panel for all flood-prone areas. Following a public hearing, the city commission voted to lift the moratorium on May 1, 2000.

[¶ 7] After the moratorium was lifted, Wild Rice sold five lots. The party who signed a purchase agreement during the moratorium purchased a lot in May 2000 for $32,900. Lots were also purchased in March 2002 for $39,000, in November 2002 for $39,000, in July 2003 for $55,900, and in April 2004 for $59,900. Other sales were pending at the time of these proceedings.

[¶ 8] Following a bench trial, the trial court ruled in favor of Fargo, concluding there had been no “taking” of Wild Rice’s property and no malicious interference with third-party contract rights. The court also denied Wild Rice’s post-trial motions.

II

[¶ 9] Wild Rice does not challenge the trial court’s dismissal of its claim for malicious interference with third-party contract rights, but asserts the court erred in dismissing its claim for inverse condemnation because Fargo’s 21-month moratorium constituted a “taking” of its property.

[¶ 10] Whether there has been a taking of private property for public use is a question of law which is fully renewable on appeal, Braunagel v. City of Devils Lake, 2001 ND 118, ¶ 16, 629 N.W.2d 567, but we will not set aside a trial court’s findings of fact on a takings claim unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Minch v. City of Fargo, 832 N.W.2d 71, 73 (N.D.1983). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made. Buri v. Ramsey, 2005 ND 65, ¶ 13, 693 N.W.2d 619.

[¶ 11] Because Wild Rice challenges the moratorium as a taking of its property under both the federal and state constitutions, it is appropriate to outline takings jurisprudence under the respective constitutional provisions.

A

[¶ 12] The Fifth Amendment to the United States Constitution guarantees that private property shall not “be taken for public use, without just compensation.” U.S. Const. Amend. V. The takings clause of the Fifth Amendment is made applicable to the states through the Fourteenth Amendment. See Rippley v. City of Lincoln, 330 N.W.2d 505, 507 n. 1 (N.D.1983).

[¶ 13] In Lingle v. Chevron U.S.A. Inc., — U.S. —,—, 125 S.Ct. 2074, 2082, 161 L.Ed.2d 876 (2005), the United States Supreme Court recently disavowed the “stand-alone” regulatory takings test announced in Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), that “ ‘[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests.’ ” In doing so, the Court summarized the remaining valid rules that govern its takings clause jurisprudence. The Court identified two categories of regulatory action that generally will be deemed per se takings: “First, where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation.” Id. at 2081. Compensation is required for physical takings, “however minimal the economic costs [they] entail[],” because they “eviscerate[ ] the owner’s right to exclude others from entering and using her property — perhaps the most fundamental of all property interests.” Id. at 2082. “A second categorical rule applies to regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” Id. at 2081 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). The complete elimination of a property’s value is the determinative factor in this category because the total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation. Lingle, 125 S.Ct. at 2082. “Outside these two relatively narrow categories,” regulatory taking challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Lingle, 125 S.Ct. at 2081. These standards are “designed to allow ‘careful examination and weighing of all the relevant circumstances.’ ” Tahoe-Sierra Preserva tion Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 636, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (O’Con-nor, J. concurring)). The primary Penn Central factors are “ ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations,’ ” and the “ ‘character of the governmental action’— for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good.’” Lingle, 125 S.Ct. at 2081-82 (quoting Penn Central, 438 U.S. at 124, 98 S.Ct. 2646). The “Penn Central inquiry-turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.” Lingle, 125 S.Ct. at 2082.

[¶ 14] The United States Supreme Court has addressed whether a moratorium on land development imposed during a government agency’s process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the takings clause of the Fifth Amendment. The Court’s decision in Tahoe-Sierra, 535 U.S. 302, 306, 122 S.Ct. 1465, 152 L.Ed.2d 517, involved two moratoria that prohibited virtually all development on property for a 32-month period in an effort to maintain the status quo while the government agency studied the impact of development on Lake Tahoe and designed a strategy for environmentally sound growth. The Court rejected the argument that a temporary deprivation of all economically viable use compels a finding that a categorical taking has occurred under Lucas. The court explained:

An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner’s interest. See Restatement of Property §§ 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner’s use of the entire area is a taking of “the parcel as a whole,” whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. Agins v. City of Tiburon, 447 U.S., at 263, n. 9, 100 S.Ct. 2138 (“Even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense’ ” (quoting Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 84 L.Ed. 240 (1939))).

Id. at 331-32, 122 S.Ct. 1465.

[¶ 15] The Supreme Court in Tahoe-Sierra also rejected a proposed per se rule that any moratorium lasting more than one year is constitutionally unacceptable. The Court acknowledged “[i]t may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism” and “the duration of the restriction is one of the important factors that a court must consider in the appraisal of a regulatory takings claim,” but concluded “the interest in ‘fairness and justice’ will be best served by relying on the familiar Penn Central approach when deciding cases like this, rather than by attempting to craft a new categorical rule.” Tahoe-Siem, 535 U.S. at 341-42, 122 S.Ct. 1465.

B

[¶ 16] Under N.D. Const, art. I, § 16, “[p]rivate property shall not be taken or damaged for public use without just compensation.” This Court has said our state constitutional provision is broader in some respects than its federal counterpart because the state provision “ ‘was intended to secure to owners, not only the possession of property, but also those rights which render possession valuable.’ ” Grand Forks-Traill Water Users, Inc. v. Hjelle, 413 N.W.2d 344, 346 (N.D.1987) (quoting Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808 Syll. ¶ 1 (1942)). Nevertheless, this Court has looked to both state and federal precedents in construing takings claims under the state constitution, see, e.g., Southeast Cass Water Res. Dist. v. Burlington N. R.R. Co., 527 N.W.2d 884, 890 (N.D.1995), and our cases on inverse condemnation under the state constitution bear some similarities to the federal analysis.

[¶ 17] In Braunagel, 2001 ND 118, ¶ 16, 629 N.W.2d 567, this Court summarized its jurisprudence on regulatory takings:

[T]he City, acting through its police powers, has broad authority to enact land-use regulations without compensating the landowner for the restrictions placed upon use of the property. Grand Forks-Traill Water Users, Inc. v. Hjelle, 413 N.W.2d 344, 346 (N.D.1987); Rippley v. City of Lincoln, 330 N.W.2d 505, 507 (N.D.1983); Kraft v. Malone, 313 N.W.2d 758, 761 (N.D.1981), overruled on other grounds by Shark v. Thompson, 373 N.W.2d 859 (N.D.1985); Eck v. City of Bismarck, 283 N.W.2d 193, 197 (N.D.1979). A zoning ordinance does not constitute a taking of property for public use merely because it diminishes the value of the regulated property or disallows the best and highest use of the property. Grand Forks-Traill, at 346; Rippley, at 507; Eck, at 197. Governmental regulation constitutes a taking for public use only when it deprives the owner of all or substantially all reasonable uses of the property. Grand Forks-Traill, at 346; Rippley, at 507; Kraft, at 761.

This Court has also adopted the parcel-as-a-whole rule, relying upon Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (quoting Penn Central, 438 U.S. at 130-31, 98 S.Ct. 2646), for the proposition that “[i]n determining whether a restriction constitutes a taking, courts look to the effect of the restriction on the parcel of land as a whole, rather than to the effect on individual interests in the land.” Hjelle, 413 N.W.2d at 346. The Supreme Court stated in Penn Central, 438 U.S. at 124, 98 S.Ct. 2646, that it, “quite simply, has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government.” We have also observed that “[c]lear guidelines are similarly absent from the variety of precedents pronounced by this court.” Minch v. City of Fargo, 332 N.W.2d 71, 73 (N.D.1983).

C

[¶ 18] Wild Rice argues the 21-month moratorium constituted a per se categorical taking of its property because the moratorium denied it all economically viable use of the property. Wild Rice relies on the Supreme Court’s statement in Lucas, 505 U.S. at 1019, 112 S.Ct. 2886 (footnote omitted), that “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.”

[¶ 19] The Supreme Court’s decision in Tahoe-Sierra disposes of Wild Rice’s claim that Lucas controls this case. Lucas involved a permanent, rather than a temporary taking. The Court stated the Lucas “holding that the permanent ‘obliteration of the value’ of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation prohibiting any economic use of land for a 32-month period has the same legal effect.” Tahoe-Sierra, 535 U.S. at 330-31, 122 S.Ct. 1465. The Court said “the categorical rule in Lucas was carved out for the ‘extraordinary case’ in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry.” Id. at 332,122 S.Ct. 1465.

[¶ 20] We conclude that the moratorium did not constitute a per se categorical taking of Wild Rice’s property under the federal and state constitutions.

D

[¶ 21] Wild Rice argues the moratorium constituted a taking under the Supreme Court’s Penn Central analysis. Under Penn Central, 438 U.S. at 124, 98 S.Ct. 2646, the particularly significant factors a court must consider are: 1) the “economic impact of the regulation on the claimant”; 2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and 3) “the character of the governmental action.”

[¶ 22] Wild Rice contends the evidence supports a conclusion that a taking has occurred. There was evidence of economic impact on the claimant, according to Wild Rice, because of the nearly $500,000 it invested in the property between 1992 and 1999, most of which was mandated by governmental entities that required a public sewer system and road infrastructure for the development. Wild Rice also relies on the pending sales of lots that did not take place because potential purchasers were unable to obtain building permits. Wild Rice argues the moratorium interfered with its investment-backed expectations because of its inability to sell residential lots after investing $500,000 in the property. Wild Rice argues the governmental action in this case is characterized by bad faith, because the city conducted no reviews or studies to create new ordinances applicable to its property during the moratorium period and lifted the moratorium only after impacted landowners brought inverse condemnation actions. Wild Rice claims the moratorium was used by the city simply “to prevent construction on Wild Rice’s previously platted real property during an unsuccessful attempt to secure Federal funding to purchase Wild Rice’s real property at a lower price (a price without need for compensation for new construction).”

[¶ 23] However, in concluding Wild Rice had not established a taking under the Penn Central factors, the trial court reasoned:

12. [Wild Rice] retained economically viable use of its property during the moratorium. Cf. Palazzolo v. Rhode Island, 533 U.S. 606, 632, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (holding that reduction in developer’s property from $3,150,000 to $200,000, due to a state coastal committee’s refusal to allow development in costal area, did not amount to a deprivation of all economic value and therefore did not amount to a total takings claim).
13. There is a huge disconnect between the fact of the history of [Wild Rice] development and its claim for compensation. Pre-moratorium sales were at the rate of ½ lot per year (the average lots sales for 1994 until July 1998). Rounding up 21 to 24 months, the loss was one (1) lost/delayed lot sale. At trial, loss on one of the riverside lots would be approximately $80,000 according to the Wild Rice River Estates brokers. A mere delay equals the sum of delayed investment opportunity (“interest”) would be more in the nature of $8,000, a far cry from the one million dollars plus claimed by [Wild Rice]. Furthermore, “[m]ere fluctuations in value during the process of governmental decision-making, absent extraordinary delay, are incidents of ownership. They cannot be considered a taking in the constitutional sense.” Tahoe-Sierra, 535 U.S. at 332,122 S.Ct. 1465.
15. The moratorium did not single out Plaintiffs property. Rather, it applied to other developments as well and the City has not paid compensation to other developers similarly affected. Cf. Tahoe-Sierra, 535 U.S. at 340, 122 S.Ct. 1465 (stating that the need to protect planners’ decisional process is stronger when developing a regional plan as opposed to considering a permit for a single parcel).
16. The moratorium was not an appropriation of [Wild Rice’s] property for public use, but rather a temporary moratorium until local, State and Federal officials could adequately review a flood plain management for the area so devastated by the 1997 flood.
18.Fargo city officials acted in good faith and with proper diligence concerning the moratorium as part of an overall effort to maintain the status quo until flood planning efforts and development could be re-evaluated after the devastating 1997 flood.
19. Fargo city officials were justified in waiting for FEMA’s final adoption of a floodway for the Wild Rice River and other rivers in the Red River Valley.
20. The moratorium protected prospective buyers who might build on - a river lot, not knowing, for example, that a home previously located on or next to the lot was damaged or destroyed by the 1997 flood.
21. Given the devastation and cost in damages caused by the flood, the City’s moratorium was a reasonable, appropriate land-use regulation, issued in an effort to maintain the status quo of development in flood-prone areas until Fargo city officials and local, state and federal agencies had an opportunity to properly review and prepare an appropriate flood management plan for flood-prone areas within the City of Fargo’s extraterritorial jurisdiction.
22. The City’s moratorium bears a reasonable relationship to a legitimate governmental purpose; it is not arbitrary or capricious and does not amount to an unconstitutional taking of property requiring payment of just compensation.

[¶ 24] The trial court’s factual findings are supported by the record. Although Wild Rice had originally projected sales of four lots per year, Wild Rice had difficulty selling any lots from the very beginning of its existence. Only one lot was sold to an outside party between 1994 and 1998 before the moratorium became effective, notwithstanding the assistance of a realtor experienced in river developments and a two-year tax exemption offer. Lots in Wild Rice were prone to flooding and all but two of the Wild Rice lots were covered by water during the 1997 flood. Additional flooding occurred in 2001. After the moratorium was lifted, prospective buyers expressed concerns about water and flood issues. As the trial court found, “[m]any factors” besides the moratorium “affected [Wild Rice’s] investment over the years.” The evidence suggests Wild Rice’s investment-backed expectations were unreasonable.

[¶ 25] Moreover, courts have said the focus of the economic impact criterion is the change in fair market value of the subject property caused by the regulatory imposition measured by comparing the market value of the property immediately before the governmental action with the market value of the same property immediately after the action is terminated. See, e.g., Cane Tennessee, Inc. v. United States, 57 Fed.Cl. 115, 123 (Fed.Cl.2003); Leon County v. Gluesenkamp; 873 So.2d 460, 467 (Fla.App.2004). Here, Wild Rice sold more lots at higher prices after the moratorium was lifted than it did before the moratorium became effective. The most recent lot sale reflected in the record was for $59,900, more than double the $24,000 Wild Rice received for a lot in 1994. Under these circumstances, it is far less likely that a compensable taking has occurred. See Leon County, 873 So.2d at 467 (no taking where landowners sold property for $500,000 profit after court-ordered moratorium on development was dissolved); Condemnation By The Municipality of Penn Hills, 870 A.2d 400, 409 (Pa.Cmwlth.2005) (no taking where 29-month injunction to suspend property development did not prevent landowners from gaining a reasonable return on their investment after injunction was dismissed).

[¶ 26] An extraordinary delay in governmental decisionmaking coupled with bad faith on the part of the governmental body may result in a compensable taking of property. See Bass Enter. Prod. Co. v. United States, 381 F.3d 1360, 1366 (Fed.Cir.2004); Wyatt v. United States, 271 F.3d 1090, 1098 (Fed.Cir.2001); Appolo Fuels, Inc. v. United States, 54 Fed.Cl. 717, 737 (Fed.Cl.2002); Byrd v. City of Hartsville, 365 S.C. 650, 620 S.E.2d 76, 2005 WL 2291782, *5 (2005). Fargo claimed it issued the moratorium in an effort to maintain the status quo until the city, along with other governmental bodies, could determine whether it was safe to build in flood prone areas. The moratorium applied to all land located within the preliminary designated floodway, not only to property owned by Wild Rice. According to Fargo, the city believed it was appropriate to wait for FEMA’s final adoption of a floodway before building should continue. Although Wild Rice argues the city was simply keeping the value of its property deflated while waiting to secure federal funding to purchase the property, the trial court found that “city officials acted in good faith and with proper diligence concerning the moratorium.” We apply the clearly erroneous standard to trial court determinations of good or bad faith. See, e.g., Belfield Educ. Ass’n v. Belfield Pub. Sch. Dist., 496 N.W.2d 12, 14 (N.D.1993); Corwin Chrysler-Plymouth, Inc. v. Westchester Fire Ins. Co., 279 N.W.2d 638, 644 (N.D.1979). In light of the evidence, the trial court’s finding that the city acted in good faith is not clearly erroneous nor can we say the 21-month length of the moratorium was extraordinary under these circumstances.

[¶ 27] Wild Rice has failed to establish that the city’s temporary moratorium resulted in an unconstitutional taking of Wild Rice’s property under the Penn Central analysis. Wild Rice has not advanced a principled theory for modifying the Penn Central analysis for state constitutional purposes. We conclude no unconstitutional taking of Wild Rice’s property has occurred under the federal and state constitutions.

E

[¶ 28] Wild Rice argues it is entitled to be compensated for Fargo’s temporary taking of its property under principles announced by this Court in Rippley, 330 N.W.2d 505.

[¶ 29] Rippley, 330 N.W.2d at 506, involved a Lincoln city zoning ordinance that zoned for public use 20 acres of the Rip-pleys’ property which previously had been zoned residential. The city intended to use the land in the future for construction of a school and other governmental operations, and after the city failed to commence eminent domain proceedings or otherwise offer to compensate the Rippleys for their land, they brought an inverse condemnation action. Id. The trial court dismissed the claim, concluding the city’s action did not constitute a taking entitling the Rip-pleys to compensation. Id.

[¶ 30] On appeal, this Court reversed, holding that by zoning the Rip-pleys’ property for public use “Lincoln has deprived the Rippleys of all reasonable use of their property and has thereby accomplished a taking of the property for which just compensation is constitutionally required.” Rippley, 330 N.W.2d at 509. The Court then turned to the issue of the proper remedy for the city’s taking of the Rippleys’ property through promulgation of the zoning ordinance and adopted Justice Brennan’s view in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 653, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting) (footnotes omitted), that “ ‘once a court establishes that there was a regulatory “taking,” the Constitution demands that the government entity pay just compensation for the period commencing on the date the regulation first effected the “taking,” and ending on the date the government entity chooses to rescind or otherwise amend the regulation.’ ” Rippley, 330 N.W.2d at 510. We concluded:

If a landowner proves that governmental regulation has deprived him of all reasonable use of his property, he is entitled to receive just compensation. However, the landowner cannot force a permanent taking upon the governmental body if the taking is reversible and the government wants to halt the taking. Rather, under its police power authority, the governmental body can choose to rescind the ordinance or other regulation in which case it must compensate the landowner only for a temporary taking measured by the time period between the date the regulation took effect and the date it was rescinded. If, however, the governmental body chooses to retain the ordinance or other regulation the landowner is then entitled to compensation for a permanent taking of his property. Upon remand of this case for a determination of the damage issue, the City of Lincoln must inform the court of its intention to either rescind or to continue the “P Public Use” zoning upon the Rippley property. With that information, the court can hold further hearings to determine the appropriate measure of damages in accordance with the approach advanced by Justice Brennan in San Diego, supra, which we adopt in this case.

Rippley, 330 N.W.2d at 511 (footnote omitted).

[¶ 31] Wild Rice argues it should have been allowed to assert a permanent taking of property by Fargo, because the city “did not properly plead ‘abandonment of moratorium’ as required by” this Court’s decision in Rippley. Because Fargo’s answer was filed before the city lifted the moratorium, the city did not allege that the moratorium had been terminated, and did not subsequently move to amend its answer to allege this fact. However, Rippley does not address pleading requirements for an inverse condemnation action. The city alleged in its answer that the moratorium on the issuance of building permits was “temporary,” and all parties were obviously aware that the moratorium had been terminated long before the trial began. Wild Rice’s argument that the actual termination of the moratorium should be ignored under these circumstances is without merit.

[IT 32] Wild Rice also asserts Rippley requires that, as a matter of law, Fargo pay it just compensation for the interim period between the enactment of the moratorium and the date the moratorium was lifted. But, the zoning ordinance in Ripp-ley was essentially permanent in nature, rather than temporary. This Court said “Lincoln’s zoning ordinance ... destroys all reasonable use of the Rippleys’ property leaving the Rippleys at the mercy of Lincoln as to a future date, if ever, that the latter may be willing to purchase the property for construction of public facilities.” Rippley 330 N.W.2d at 508 (footnote omitted). Moreover, in Rippley the city had accomplished a taking of the property. As a consequence, this Court held that once a taking of property has been established, the landowner cannot force upon the governmental body the remedy for a permanent taking of property if it should choose to halt the taking. Id. at 511. Under Rippley, the governmental body is given an opportunity to lessen the amount of compensation it must pay to the landowner by rescinding or correcting the regulation that caused the taking. Justice Brennan’s proposed rule articulated in his dissent in San Diego, upon which this Court relied upon in Rippley and which the United States Supreme Court eventually endorsed in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), only “addressed the separate remedial question of how compensation is measured once a regulatory taking is established.” Tahoe-Sierra, 535 U.S. at 328, 122 S.Ct. 1465. The Supreme Court in Tahoe-Sierra, 535 U.S. at 328, 122 S.Ct. 1465, specifically pointed out that First English did not address “the quite different and logically prior question whether the temporary regulation at issue had in fact constituted a taking.”

[¶ 33] In this case, we have concluded the city’s 21-month moratorium on issuing building permits did not constitute a taking of Wild Rice’s property. The choice of remedies for an established taking of property provided in Rippley, 330 N.W.2d at 511, does not come into play under these circumstances. Rippley does not support Wild Rice’s argument that a taking of its property has occurred under the state constitution.

III

[¶ 34] Wild Rice argues the trial court erred in “prematurely” adopting Fargo’s proposed findings, conclusions and order “without notice to Wild Rice” and in allowing the city to include in those findings and conclusions “facts and case law not originally determined by the trial court.” Wild Rice’s complaints about the “prematurely” adopted findings and conclusions were raised in its post-trial motions and were considered by the court when it denied those motions. Therefore, Wild Rice can show no prejudice resulted from the court’s failure to allow Wild Rice a timely objection under N.D.R.Ct. 7.1(b). Moreover, “[w]hen the court affixes its signature to the findings, even though drafted by counsel, they become the findings of the court, and if they adequately explain the basis of the court’s decision it will be upheld.” Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 858 (N.D.1995). Wild Rice’s arguments are without merit.

IV

[¶ 35] We conclude Fargo’s 21-month moratorium on building permits did not constitute a taking of Wild Rice’s property under the federal and state constitutions. We have considered Wild Rice s other arguments and deem them to be either without merit or unnecessary to resolve in view of our disposition of this case. The judgment and the order denying Wild Rice’s post-trial motions are affirmed.

[¶ 36] DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., and DONOVAN JOHN FOUGHTY, D.J., concur.

[¶ 37] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of CROTHERS, J., disqualified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2005 ND 195
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 3, with Chambers in Bottineau, North Dakota, Northeast Judicial District.
    No. 20050369.
    Supreme Court of North Dakota.
    Nov. 17, 2005.
   PER CURIAM.

[¶ 1] On October 25, 2005, Governor John Hoeven officially notified the Supreme Court that the Honorable Lester Ketterling, Judge of the District Court, with chambers in Bottineau, Northeast Judicial District, is resigning his position effective December 31, 2005. Judge Ketter-ling’s impending resignation will create a vacancy under Section 27-05-02.1, N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effec-five judicial administration. This Court may, consistent with that determination, order the vacancy filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup. Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the Northeast Judicial District was posted October 26, 2005, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through November 15, 2005. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of the vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup. Ct. Admin. R. 7.2, Section 4, was filed November 15, 2005, by the Northeast Judicial District.

[¶ 5] Under the criteria of Section 4 of N.D. Sup. Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court determines that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship at Bottineau in the Northeast Judicial District be filled in the manner provided in N.D.C.C. Chapter 27-25.

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


author: ZINTER, Justice.

text:
    2005 SD 107
    ASPEN STORAGE INC., Plaintiff and Appellee, v. Brandon FLANAGAN, Defendant and Appellant, and The City of Deadwood, a Municipal Corporation, and Lawrence County, Defendants.
    Nos. 23632, 23642.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 3, 2005.
    Decided Oct. 26, 2005.
    Jerry C. Rachetto, Rachetto Law Office, Deadwood, South Dakota, Attorney for plaintiff and appellee.
    Daniel R. Gukeisen of Clayborne & Loos, Rapid City, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Brandon Flanagan acquired a deed to real property via a tax sale certificate. The circuit court held that the acquisition was void under SDCL 6-1-1 because Flanagan was a county commissioner at the time of the purchase and a county zoning administrator at the time of obtaining the tax deed. We affirm.

Facts and Procedural History

[¶ 2.] The relevant facts of this case are not in dispute. Aspen Storage, Inc. is the owner of real property, Mineral Survey # 166 (MS 166), in Lawrence County. On July 24, 2003, Flanagan, while serving as a Lawrence County Commissioner, acquired a tax certifícate to other real property, Mineral Survey # 848 (MS 848), that lies north of Aspen’s land. On March 29, 2004, Flanagan was appointed Lawrence County Planning and Zoning Administrator (county zoning administrator) by the Lawrence County Commission. On September 7, 2004, Flanagan acquired a tax deed to MS 848 from the Lawrence County Treasurer’s Office after the owner of record failed to redeem the tax certificate.

[¶ 3.] After acquiring the certificate and deed, Flanagan sought permission from Aspen to use an easement that had been granted by Aspen’s predecessor in interest, D & H Construction, across MS 166 to reach MS 848. Aspen declined.

[¶ 4.] On December 23, 2004, Aspen brought this declaratory judgment action against Flanagan, the City of Deadwood, and Lawrence County to preclude use of the easement. One of Aspen’s theories was that Flanagan did not own the dominant tenement, MS 848, because he acquired the property in violation of SDCL 6-1-1, a conflict-of-interest statute. Cross motions for summary judgment were filed on the conflict-of-interest question. The trial court granted Aspen’s motion for summary judgment, concluding that Flanagan’s acquisition of the tax sale property violated SDCL 6-1-1. Flanagan appeals raising the following issues:

1.Whether the trial court erred in concluding that Flanagan’s acquisition of tax sale property violated SDCL 6-1-1; and
2. Whether the trial court erred in concluding that a conflict exception in SDCL 6 — 1—2(1) did not apply to this acquisition.

Aspen raises the following issue by notice of review:

3. Whether the trial court erred in denying Aspen’s motion to take the deposition of Flanagan pending appeal.

Standard of Review

[¶ 5.] This appeal involves the interpretation of statutes. “Statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dept. of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). This Court reviews conclusions of law under the de novo standard with no deference afforded the trial court’s decision. Id. (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25).

Analysis and Decision

Whether a county commissioner’s acquisition of property through a tax certificate violated SDCL 6-1-1, a conflict-of-interest statute.

[¶ 6.] Aspen contends that Flanagan’s acquisition of MS 848 was void under SDCL 6-1-1 because Flanagan was a county commissioner and county zoning administrator when he purchased the certificate and obtained the deed. SDCL 6-1-1 provides:

It shall be unlawful for any officer of a county, municipality, township, or school district, who has been elected or appointed, to be interested, either by himself or agent, in any contract entered into by said county, municipality, township, or school district, either for labor or services to be rendered, or for the purchase of commodities, materials, supplies, or equipment of any kind, the expense, price, or consideration of which is paid from public funds or from any assessment levied by said county, municipality, township, or school district, or in the purchase of any real or personal property belonging to the county, municipality, township, or school district or which shall he sold for taxes or assessments or by virtue of legal process at the suit of such county, municipality, township, or school district. Such contract shall he null and void from the beginning.

(Emphasis added.)

[¶ 7.] This statute prohibits any county officer from obtaining an interest in or purchasing real property which is sold for taxes. Here, Flanagan, first as a county commissioner and later as county zoning administrator, was an officer of the county. Therefore, he was a member of the class of people who are prohibited from having an interest in or purchasing tax sale property under SDCL 6-1-1.

[¶ 8.] Flanagan, however, urges this Court to adopt an exception to the plain language of the statute. Flanagan argues that because the procedure for acquiring property at a tax sale is detailed by statute, and because the county's role in that procedure is ministerial in nature, the conflict of interest statute should not apply. We disagree. While it is true that the county’s role in selling property at tax sales is largely ministerial, the statute makes no exception for ministerial acts. In addition, the Legislature has created a list of express statutory exceptions. See SDCL 6-1-2. However, the Legislature did not create an exception for property that is sold by the county pursuant to a ministerial act. Because the Legislature has adopted exceptions, but declined to adopt Flanagan’s proposed ministerial exception, it will not be recognized by this Court.

[¶ 9.] Flanagan finally argues that there was no conflict because he was a county official and the tax sale involved the State rather than Lawrence County. Flanagan relies on Perry v. State Department of Social Security, 71 S.D. 247, 250, 23 N.W.2d 279, 281 (1946) for the proposition that a “tax sale under our statutes is a contract between the state and the purchaser, the terms of which are to be found in the law which is in force when the sale takes place” (emphasis added) (citing State ex rel. Waldo v. Fylpaa, 3 S.D. 586, 54 N.W. 599 (1893)). However, Flanagan fails to recognize that Perry used the term “state” and “county” interchangeably throughout the opinion. Furthermore, Perry was decided nine years before the Legislature enacted SDCL 6-1-1. Therefore, the Perry reference to the “state” could not have been intended to permit county officials to purchase property sold for taxes.

[¶ 10.] We determine the intent of the Legislature by using the plain language employed in the statute. See Sanford v. Sanford, 2005 SD 34, ¶ 13, 694 N.W.2d 283, 287. (citing State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653). In enacting this legislation, the Legislature clearly prohibited county officials from having an interest in or purchasing property sold at tax sales. Although the Legislature created certain express exceptions, it left no room for implied exceptions. Therefore, the purchase by Flanagan was presumptively void under SDCL 6-1-1.

Did an express exception in SDCL 6-l-2(l) apply.

[¶ 11.] Flanagan contends that if SDCL 6-1-1 applies, the purchase falls within an exception in SDCL 6 — 1—2(1), which provides:

The provisions of § 6-1-1 are not applicable if the contract is made pursuant to any one of the conditions set forth in the following subdivisions, without fraud or deceit; but, the contract is voidable if the provisions of the applicable subdivision were not fully satisfied or present at the time the contract was entered into:
(1) Any contract involving three thousand dollars or less regardless of whether other sources of supply or services are available within the county, municipality, township, or school district, if the consideration for such supplies or services is reasonable and just[.]

(Emphasis added). Flanagan argues that because he purchased the real property for less than $3,000, ($1,560.54), his purchase falls within this exception.

[¶ 12.] However, the $3,000 exception is only for “supplies” and “services.” Therefore, it does not apply to the real estate claimed by Flanagan. We conclude that because this attempted acquisition was not exempted by SDCL 6 — 1—2(1), it was void under SDCL 6-1-1.

Aspen’s motion to take the deposition of Flanagan pending appeal.

[¶ 13.] Aspen contends that the trial court erred in denying its motion to take the deposition of Flanagan pending this appeal. Because this Court has decided the appeal, the issue is now moot and we decline to address it.

[¶ 14.] Affirmed.

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

      . On May 20, 1980, D & H Construction, granted an easement to the City of Deadwood, allowing city employees to cross MS 166 to reach the land now claimed by Flanagan.

      . SDCL 6-1-2 provides.
      The provisions of § 6-1-1 are not applicable if the contract is made pursuant to any one of the conditions set forth in the following subdivisions, without fraud or deceit; but, the contract is voidable if the provisions of the applicable subdivision were not fully satisfied or present at the time the contract was entered into:
      (1) Any contract involving three thousand dollars or less regardless of whether other sources of supply or services are available within the county, municipality, township, or school district, if the consideration for such supplies or services is reasonable and just;
      (2) Any contract involving more than three thousand dollars but less than the amount for which competitive bidding is required, and there is no other source of supply or services available within the county, municipality, township, or school district if the consideration for such supplies or services is reasonable and just and if the accumulated total of such contracts paid during any given fiscal year does not exceed the amount specified in § 5-18-3;
      (3) Any contract with any firm, association, corporation, or cooperative association for which competitive bidding is not required and where other sources of supply and services are available within the county, municipality, township or school district, and the consideration for such supplies or services is reasonable and just, unless the majority of the governing body are members or stockholders who collectively have controlling interest, or any one of them is an officer or manager of any such firm, association, corporation, or cooperative association, in which case any such contract is null and void;
      (4) Any contract with any firm, association, corporation, or cooperative association for which competitive bidding procedures are followed pursuant to chapter 5-18, and where more than one such competitive bid is submitted;
      (5) Any contract for professional services with any individual, firm, association, corporation, or cooperative, if the individual or any member of the firm, association, corporation, or cooperative is an elected or appointed officer of a county, municipality, township, or school district, whether or not other sources of such services are available within the county, municipality, township, or school district, if the consideration for such services is reasonable and just;
      (6) Any contract for commodities, materials, supplies, or equipment found in the state price list established pursuant to § 5-23-8.1, at the price there established or below; and
      (7) Any contract or agreement between a governmental entity specified in § 6-1-1 and a public postsecondary educational institution if an employee of the Board of Regents serves as an elected or appointed officer for the governmental entity, and if the employee does not receive direct compensation or payment as a result of the contract or agreement.


text:
    2005 SD 108
    Bill HAHNE, Plaintiff and Appellant, v. Clarence W. BURR, Clarence W. Burr, Trustee of Clarence W. Burr 1994 Living Trust, Defendant, Third-Party, Plaintiff and Appellee, and Mark Burr, Defendant and Third-Party Plaintiff, v. Steve Schneider, Third-Party Defendant.
    Nos. 23448, 23461.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 30, 2005.
    Decided Oct. 26, 2005.

      Thomas M. Tobin of Tonner, Tobin and King, Aberdeen, South Dakota, Attorneys for appellant.
    Reed Rasmussen of Siegel, Barnett and Schütz, Aberdeen, South Dakota, Attorneys for appellee.
   ZINTER, Justice.

[¶ 1.] A dispute arose between Bill Hahne and Clarence Burr concerning an oral agreement for the sale of land. Hahne sued for specific performance of the agreement. The trial court denied relief, entering summary judgment against Hahne because of the statute of frauds. Hahne appeals the statute of frauds determination, and Burr appeals (by notice of review) the trial court’s refusal to grant Rule 11 sanctions. We affirm the trial court on all issues.

Facts and Procedural History

[¶2.] On February 23, 2000, Hahne and Steve Schneider (lessees) entered into a three-year lease of real property with Burr (lessor). At the end of the lease, Hahne and Burr discussed a possible sale of the land. Although there is a dispute about the content of those discussions and who initiated them, there is no dispute that the parties discussed a sale to Hahne. Although money was subsequently exchanged, some closing documents were drawn, and further conversations occurred concerning the sale, Burr ultimately declined to sell the property, and this suit was commenced.

[¶ 3.] Under Hahne’s version of the facts, by December 2002, Burr and Hahne orally agreed to all aspects of the sale, including the price. Later that month, the parties realized that a sale could not be completed before January 1, 2003, and therefore, Hahne agreed to pay further rent for the period of time between the first of the year and the eventual closing.

[¶ 4.] In early January 2003, purportedly upon Burr’s request, Hahne retained attorney Andrew Aberle to prepare closing documents. Hahne asserts that Aberle talked to Burr and that all of the terms of the agreement were verified. Aberle also prepared letters, a deed, and a certificate of value, which he sent to Burr to close the sale. Hahne also tendered a $15,000 check, which he contends was partially for rent and partially for a down payment on the land. Hahne finally asserts that, during this period of time, he did not purchase or lease other land needed in his farming operation because of his reliance on the agreement.

[¶ 5.] However, in February 2003, Burr’s grandson, allegedly acting as Burr’s agent, sent Hahne an e-mail informing him that Burr had decided not to sell the property. Hahne sued Burr for specific performance of the alleged agreement. The trial court granted summary judgment in favor of Burr based upon the statute of frauds. The trial court denied Burr’s request for sanctions and attorney’s fees. Hahne appeals the following issues:

(1) Whether there were sufficient writings regarding the sale of real estate to satisfy the statute of frauds;
(2) Whether the trial court erred in granting summary judgment on the issues of partial performance and es-toppel.

By notice of review, Burr appeals the following issue:

(3) Whether the trial court erred in denying Burr’s request for Rule 11 sanctions and attorney’s fees.

Analysis and Decision

[¶ 6.] In reviewing summary judgment, “we decide only whether genuine issues of material fact exist and whether the law was correctly applied. If any legal basis exists to support the trial court’s ruling, we will affirm.” Schulte v. Progressive N. Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438 (citations omitted). All reasonable inferences “must be viewed in favor of the non-moving party.” North-stream Invs., Inc. v. 1804 Country Store Co., 2005 SD 61, ¶ 11, 697 N.W.2d 762, 765 (citation omitted). Furthermore, “[t]he burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.” Id. (citations omitted).

Sufficiency of Writings to Bind Burr

[¶ 7.]Under the statute of frauds, a contract for the sale of land must be in writing to be enforceable. Jacobson v. Gulbransen, 2001 SD 33, ¶ 15, 623 N.W.2d 84, 88. The statute, SDCL 53-8-2, provides in relevant part:

The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing:
(3) An agreement for sale of real estate or an interest therein, or lease of the same, for a period longer than one year. However, this does not abridge the power of any court to compel specific performance of any agreement for sale of real estate.in case of part performance thereof....

We have stated that “[t]he role of the statute of frauds is evidentiary in nature, and serves to remove uncertainty by requiring ‘written evidence of an enforceable obligation.’ ” Harriman v. United Dominion Indus., Inc., 2005 SD 18, ¶ 15, 693 N.W.2d 44, 48 (citations omitted).

[¶ 8.]Although there is a significant dispute whether there was an agreement, for purposes of summary judgment we assume there was an oral agreement to sell the real estate. With respect to the sufficiency of writings, Hahne contends that his attorney, Aberle, personally verified all of the terms of the contract with Burr. Hahne also points out that Aberle drafted a letter forwarding a deed and certificate of value attempting to close the transaction. Hahne finally relies upon an e-mail sent by Burr’s alleged agent reflecting an awareness that a sale was pending.

[¶ 9.]However, Aberle’s conversations are not writings, and Hahne did not produce any writing signed by Burr (or his agent) confirming an agreement to the sale of the land. This is significant because an agreement for the sale of real property is not enforceable unless the document is “subscribed by the party to be charged.” SDCL 53-8-2; Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985). Here, Aberle was not the agent of the party to be charged, and the e-mail, even if signed by Burr’s agent, did not confirm an agreement. On the contrary, the e-mail expressly disavowed Burr’s intent to sell the property. Therefore, the trial court correctly determined that these conversations and writings by others were not sufficient to satisfy the statute of frauds.

Statute of Frauds Exceptions-Partial Performance and Estoppel

[¶ 10.] Even if there is no agreement in writing, SDCL 53-8-2(3) allows a “court to compel specific performance of any agreement for sale of real estate in case of part performance.... ” SDCL 53-8-2(3). Estoppel may also justify specific performance.

An oral promise to convey real property is enforceable by specific performance where the grantee has partially performed or has acted in reliance upon the promise of the grantor in such manner that it would invoke a fraud or prejudice against the grantee not to grant specific performance thereon.

Durkee v. Van Well, 2002 SD 150, ¶21, 654 N.W.2d 807, 815 (citations omitted).

Partial Performance

[¶ 11.] Hahne asserts that a number of actions constituted partial performance. He first relies on his “down payment.” We initially note that there is a dispute whether the $15,000 Hahne paid to Burr was a down payment on the sale or whether it was a lease payment for 2003. However, even assuming that it was a down payment, this Court has long held that “payment of the whole or a part of the purchase price is not sufficient in itself to take a case out of the operation of the statute of frauds.” Boekelheide v. Snyder, 71 S.D. 470, 473, 26 N.W.2d 74, 75 (1947). See also Ells v. Ells, 245 N.W.2d 498, 500 (S.D.1976) (stating that payment of a portion of the purchase price is “an act that has long been held insufficient to take a contract out of the ... statute of frauds”) (citation omitted). Therefore, the trial court correctly concluded that the payment, in and of itself, “would not constitute partial payment or partial performance of the purchase price.”

[¶ 12.] Hahne recognizes this rule and, therefore, contends that his possession of the land must also be considered. This Court has indicated “that the most important acts to constitute sufficient part performance are actual possession and permanent improvements made on the land.” Williams v. Denham, 83 S.D. 518, 523, 162 N.W.2d 285, 288 (1968) (citation omitted). However, in this case Hahne’s possession of the land is irrelevant because he was in continued possession after expiration of a written lease. See Skjoldal v. Myren, 86 S.D. 111, 119, 191 N.W.2d 809, 813 (1971) (concluding that where an option to purchase property had expired, but the lessee retained possession and farmed the land on a crop share basis, partial performance had not been established); Shaw v. George, 82 S.D. 62, 66, 141 N.W.2d 405, 407 (1966) (stating that where one party was in possession under an existing lease, the continued possession could not be regarded as an act of partial performance). Furthermore, there is no evidence Hahne made permanent improvements to the property. Therefore, we agree with the trial court that Hahne’s possession of the land was not “sufficient to constitute partial performance because ... [h]e was ... there under a written lease and [thus,] he was a holdover tenant.”

[¶ 13.]Hahne next contends that he partially performed because he incurred attorney and title policy fees in an attempt to close the transaction. However, in order for an act by the plaintiff “to be sufficient to constitute part performance, it ‘must be unequivocally referable to the contract.’ ” Morton v. Lanier, 311 Mont. 301, 55 P.3d 380, 385 (2002) (citations omitted). What conduct constitutes partial performance will depend on the facts of each case. Nelson v. Elway, 908 P.2d 102, 119 (Colo.1995); Veum v. Sheeran, 95 Minn. 315,104 N.W. 135, 137 (1905). And, whether those acts are sufficient to constitute partial performance is a matter of law to be decided by the court. Simons v. Simons, 134 Idaho 824, 11 P.3d 20, 23 (2000).

[¶ 14.]Here, the trial court concluded that Hahne hired the attorney to take care of Hahne’s personal interests, and therefore, the retention of the attorney was not partial performance of the terms and con ditions of the contract. The trial court correctly noted:

I think the partial performance has to relate to the terms and conditions of the agreement. I think the fact that Bill Hahne went out and hired an attorney was not any allegation even by Bill Hahne that that was part of the terms and conditions of the agreement. ... [H]e hired Andy Aberle for his own personal needs to take care of the legal matters. So I don’t believe that hiring Andy Aberle would constitute partial performance of the terms and conditions of the contract.

[¶ 15.]Finally, with respect to the title policy, the trial court noted that according to a letter from Aberle to Burr, it was unknown who was to pay this fee. Based upon this uncontested evidence, the trial court found that there was no agreement concerning who was to pay for the title policy. We agree. A review of Aberle’s letter reflects that he was only asking Burr how he wanted to approach the payment of the title policy. This did not reflect an agreement as to who would pay. Furthermore, as we noted in Williams, 83 S.D. at 523, 162 N.W.2d at 288, neither ordering abstracts (which is analogous to the procurement of a title policy) nor drawing up a contract constitutes partial performance.

[¶ 16.]For all the foregoing reasons, the trial court correctly determined that the partial performance exception to the statute of frauds was not applicable.

Estoppel

[¶ 17.]Hahne contends that Burr should be estopped from denying that a contract existed between the parties. Hahne relies on equitable estoppel and promissory estoppel. There are four elements of equitable estoppel:

1.False representations or concealment of material facts must exist; ...
2.The party to whom it was made must have been without knowledge of the real facts; ...
3.The representations or concealment must have been made with the intention that it should be acted upon; and
4.The party to whom it was made must have relied thereon to his prejudice or injury.

Cleveland v. Tinaglia, 1998 SD 91, ¶ 38, 582 N.W.2d 720, 727 (citations omitted).

[¶ 18.]“[P]romissory estoppel may be invoked where a promisee alters his position to his detriment in the reasonable belief that a promise would be performed.” Canyon Lake Park, LLC v. Loftus Dental, P.C., 2005 SD 82, ¶38, 700 N.W.2d 729, 739 (citing Garrett v. BankWest, Inc., 459 N.W.2d 833, 848 (S.D.1990)). The three elements of promissory estoppel are:

1) the detriment suffered in reliance must be substantial in an economic sense; 2) the loss to the promisee must have been foreseeable by the promisor; and 3) the promisee must have acted reasonably in justifiable reliance on the promise made.

Id. Estoppel is not applicable if any of these elements are lacking or have not been proven by clear and convincing evidence. Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 866 (S.D.1993) (citations omitted).

[¶ 19.]Assuming that a promise or false representation was made, these two forms of estoppel have a common element. Hahne was required to prove that he detrimentally relied on the promise or false representation. Hahne contends that he established this element because he did not look for other land in reliance on the agreement. Hahne also argues that he had previously reduced the size of his cattle herd and that by securing Burr’s land, he would have been able to expand his herd again. However, Hahne has failed to direct us to any evidence to support these arguments. Moreover, a letter from Hahne’s lawyer to the title company indicates that Steven, Todd, and Kelly Landis, not Hahne, were actually purchasing the property from Burr. The title policy also indicated that the Landises were to become the insureds under an “owner’s” policy. Because the evidence referenced on appeal indicates that Hahne was not ultimately purchasing the land, he failed to establish detrimental reliance on any promise or representation.

Rule 11 Sanctions

[¶ 20.]By notice of review, Burr contends that the trial court erred in failing to order sanctions and attorney’s fees under SDCL 15-6-11. Burr argues that Hahne misled the trial court by pursuing the action for specific performance without revealing that the Landises were the true purchasers of Burr’s land.

[¶ 21.JSDCL 15-6-ll(a) provides:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Unless otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, and exhibits or attachments thereto, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, embarrass another party or person, or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

A violation of 15-6-ll(a) triggers sanctions, including attorney fees.

If a pleading, motion, exhibits, or attachments thereto, or other paper is signed or filed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed or filed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

SDCL 15 — 6—11(b).

[¶ 22.]Appeals under “Rule 11 ... are reviewed under an abuse of discretion standard.” Prunty Const., Inc. v. City of Canistota, 2004 SD 78, ¶ 28, 682 N.W.2d 749, 761 (citation omitted). An “[a]buse of discretion is discretion not justified by, and clearly against, reason and evidence.” Id. (citation omitted).

[¶ 23.]Burr’s motion for sanctions was grounded upon the fact that Hahne never disclosed that he was not the actual or ultimate purchaser of the property. Burr points out that although the complaint and amended complaint indicated that Hahne was the purchaser, the January 14, 2003 letter authored by his attorney clearly stated that Steven, Todd, and Kelly Landis were purchasing the land from Burr. This letter even included statements indicating the amount to be paid for the land and that the Landises would be obtaining financing through Dacotah Bank in Mo-bridge. The letter further requested that the owner’s and mortgagee’s policies, which would be paid for by either Hahne or the “Landis brothers,” be written and sent to Dacotah Bank. Burr finally points out that a title search was conducted on behalf of the Landis brothers, not Hahne.

[¶ 24.]In declining to award attorney’s fees and sanctions, the trial court acknowledged this evidence but relied on authorities holding that an individual may file an action based on a novel theory of law or on the belief that “they can change the law under some set of facts or circumstances.” Furthermore, the record reflects some factual confusion in that Hahne’s trial attorney did not know of the owner’s title policy because only Hahne’s transactional attorney, Andy Aberle, worked on the policy and retained possession of the documents until a few days before the case was heard by the trial court. Considering this evidence and the fact that it is not clear whether Hahne was purchasing for the Landises or whether the Landises were the direct purchasers, the trial court did not abuse its discretion in declining to award sanctions and attorney’s fees.

Appellate Attorney Fees

[¶ 25.]Burr seeks appellate attorney fees under SDCL 15 — 6—11(d) and SDCL 15-26A-87.3. These statutes authorize reasonable attorney fees and costs for a successful Rule 11 applicant who must defend the award on appeal. However, Burr was not a successful applicant at trial. Therefore, he is not entitled to attorney’s fees and costs on appeal.

[¶ 26.]Affirmed.

[¶ 27.JGILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Hahne wrote two checks, both containing a memo restriction indicating the check was either for the lease or the down payment. Burr rejected the first check because it was not made out to the attorney's trust account. The second check was rejected because of the memo restriction; more specifically, Burr did not want the act of endorsing the check to constitute an admission that the check was for a down payment.

      . Fifteen thousand dollars was the annual lease payment required under the parties’ lease. There is no dispute that the $15,000 was ultimately used for the lease payment in 2003.

      . See also Simons v. Simons, 134 Idaho 824, 11 P.3d 20, 23 (2000) (stating that “acts constituting part performance must be ... definitely referable to the alleged oral contract”); Pollmann v. Belle Plaine Livestock Auction, Inc., 567 N.W.2d 405, 409 (Iowa 1997) (stating that "[p]art performance will remove a real estate contract from the statute of frauds only when the acts constituting partial performance are referable exclusively and unequivocally to the contract”).


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellant, v. Gary Lee BUTLER, Appellee.
    No. 04-0217.
    Supreme Court of Iowa.
    Nov. 18, 2005.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Brent D. Heeren, County Attorney, for appellant.
    Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellee.
   TERNUS, Justice.

The issue in this case is whether notice to the defendant is required when the State seeks a sentence beyond the scheduled fine for a traffic offense resulting in death or serious injury. The district court held due process mandated notice and because constitutionally sufficient notice had not been given here, the court could impose only the scheduled fine and not the requested jail sentence. We granted the State’s application for discretionary review. Having examined the record and considered the pertinent legal authority, we conclude the State in essence charged the defendant with one crime, but sought to sentence him for a different crime. The trial court correctly ruled this procedure lacks due process. Therefore, we affirm.

I. Background Facts and Proceedings.

On June 22, 2002, a van driven by the defendant, Gary Butler, crossed the cen-terline of the highway and struck five motorcyclists, killing three and seriously injuring two. A state trooper who investigated the accident concluded that Butler probably fell asleep at the wheel, resulting in the accident. A grand jury brought a five-count indictment against the defendant alleging three counts of homicide by vehicle and two counts of serious injury by vehicle. In addition, the county attorney filed three complaints charging Butler with three traffic violations: (1) failure to yield the right half of the roadway in violation of Iowa Code section 321.297 (Supp.2001); (2) failure to maintain control in violation of Iowa Code section 321.288; and (3) careless driving in violation of Iowa Code section 321.277A. The complaints made no reference to the fact the alleged violations resulted in death or serious injury.

The indictable charges were tried to a jury, and the traffic charges were simultaneously tried to the court. The jury found the defendant not guilty of the indictable offenses. The court found the defendant guilty of violating section 321.297(1) (failure to drive on the right side of the roadway) and section 321.288 (failure to have control) and not guilty of the careless-driving charge.

At sentencing, the State asked the court to impose the maximum allowable sentence for simple misdemeanors: thirty-day jail sentences to be served consecutively and a $500 fine for each conviction. The defendant argued his offenses were scheduled violations carrying a $35 fine. He contended the scheduled fine was the only permissible sentence because the State had failed to give notice in the complaints or otherwise that the State was seeking to increase the standard sentence for these traffic offenses based on the fact the defendant had caused death or serious injury, which is the factual prerequisite for imposing the simple-misdemeanor punishment rather than the scheduled fines. The defendant asserted imposition of the increased penalty without prior notice would violate his due process rights.

Notwithstanding the State’s proof that Butler’s acts had caused death or serious injury, the district court concluded the State’s failure to allege this fact in the charging instrument prevented the court from imposing a sentence beyond the scheduled fines. In reaching this conclusion, the court relied on two cases: Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and State v. Jacobs, 644 N.W.2d 695 (Iowa 2001). In Jacobs, this court summarized the Supreme Court’s holding in Apprendi:

The Court in Apprendi held that the Fifth Amendment due process clause and the Sixth Amendment notice and jury trial guarantees require that any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment or information, submitted to a jury, and proved beyond a reasonable doubt.

Jacobs, 644 N.W.2d at 698 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455).

We granted the State’s application for discretionary review. Although the State focuses its appellate efforts on distinguishing Apprendi, we think the determinative issue on appeal is simply a matter of procedural due process: did the defendant receive constitutionally sufficient notice of the charge against him? Upon our de novo review, see State v. Mitchell, 670 N.W.2d 416, 418 (Iowa 2003), we conclude he did not.

II. Statutory Framework.

It is helpful to first review the criminal statutes involved in this appeal. “Simple misdemeanors in Iowa fall into two categories, scheduled and nonscheduled violations.” State v. Frazer, 402 N.W.2d 446, 446 (Iowa 1987). “For scheduled violations the penalty prescribed by statute is a dollar fine in a fixed amount.” Id. (citing Iowa Code §§ 805.8, 805.11, 911.2). Of particular relevance here is Iowa Code section 805.8, which states in pertinent part:

Except as otherwise indicated, violations of sections of the Code specified in sections 805.8A, 805.8B, and 805.8C are scheduled violations, and the scheduled fine for each of those violations is as provided in those sections....

Iowa Code § 805.8(1). The offenses of which the defendant was convicted are specified in section 805.8A, so they are scheduled violations. See id. § 805.8A(6)(c). The scheduled fine is thirty-five dollars. See id. Traffic violations, including those under section 805.8A, may be prosecuted by use of a citation form or through the filing of a complaint. See id. §§ 805.6 (authorizing use of uniform-citation-and-complaint form, but stating other charging instruments may be used, such as complaint under chapter 804), 804.1 (providing for the filing of criminal charges by complaint).

Notwithstanding the classification of specified traffic offenses as scheduled violations punishable by a standard fine, the legislature has delineated circumstances under which such violations may be prosecuted as a nonscheduled violation, punishable as a simple misdemeanor. Section 805.11 provides that if “it appears from the evidence that the [scheduled] violation was of the type set forth in section [805.10(1) (a) — resulted in death or serious injury ], ... the scheduled fine does not apply and the penalty shall be increased within the limits provided by law for the offense.” Id. § 805.11. Iowa Code section 903.1 prescribes the penalty for a simple misdemeanor:

For a simple misdemeanor, there shall be a fine of at least fifty dollars but not to exceed five hundred dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine.

Id. § 903.1(a). Prosecutions of simple misdemeanors must be commenced by filing a complaint. See Iowa R.Crim. P. 2.54.

The traffic violations at issue here were charged in complaints. The complaints set out the traffic laws that were violated (sections 321.297(1) and 321.288) and alleged the facts' showing these violations. The complaints did not mention the fact that the defendant’s actions resulted in death or serious injury, nor did they refer to the Code provisions authorizing increased penalties under such circumstances. With this background, we now examine the controlling constitutional principles.

III. Controlling Constitutional Principles.

It is well established that the Sixth Amendment right “ ‘to be informed of the nature and cause of the accusation’ ” is a component “of the ‘due process of law’ that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States.” Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562, 572 (1975) (citations omitted); accord, State v. Hernandez-Lopez, 639 N.W.2d 226, 241 (Iowa 2002) (“At the very least, due process requires the defendant to receive formal notice of the charges against him....”); Comm, on Prof l Ethics & Conduct v. Behnke, 276 N.W.2d 838, 843 (Iowa 1979) (stating due process requires “that the accused be informed of the nature and cause of the accusation”). As this court has said, “It is axiomatic that a defendant must have adequate notice of the charges in order to defend against them.” State v. Jeffries, 430 N.W.2d 728, 734 (Iowa 1988); accord State v. Marti, 290 N.W.2d 570, 577 (Iowa 1980) (stating “the defendant should be apprised of the crime charged with sufficient certainty to enable him to prepare his defense”).

The defendant contends the constitutionally required notice was deficient here because the fact of death or serious injury was not alleged in the complaint. He relies on a series of United States Supreme Court cases construing the effect of the Fifth and Sixth Amendments on the procedures required for applying sentencing enhancements. We will not review each of these authorities in detail, but we will briefly highlight the most pertinent aspects of this line of eases.

In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the United States Supreme Court, construing a federal statute, held the Fifth Amendment Due Process Clause and the notice and jury trial guarantees of the Sixth Amendment required that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d at 326 n. 6. In Apprendi, which involved a state criminal prosecution, the Court held the Fourteenth Amendment commanded the same answer. 530 U.S. at 476, 120 S.Ct. at 2355, 147 L.Ed.2d at 446. Specifically, the Court stated: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. Moreover, the Court held, an additional fact that serves to increase the maximum sentence otherwise statutorily authorized “is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” Id., 530 U.S. at 494 n. 19, 120 S.Ct. at 2348 n. 19, 147 L.Ed.2d at 457 n. 19. In a subsequent case, a plurality of the Court observed that when Apprendi and an earlier decision, McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), are “[r]ead together,” they “mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis.” Harris v. United States, 536 U.S. 545, 567,122 S.Ct. 2406, 2419, 153 L.Ed.2d 524, 544 (2002); see also Ring v. Arizona, 536 U.S. 584, 605, 122 S.Ct. 2428, 2441, 153 L.Ed.2d 556, 574 (2002) (stating government’s “characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative” of what constitutional protections apply).

More recently, the Court defined what the “statutory maximum” penalty was for purposes of determining whether a fact considered at sentencing was an “element” required to be submitted to the jury. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court held:

Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Id. at 303-04, 124 S.Ct. at 2537, 159 L.Ed.2d at 413-14 (citations omitted). Thus, if a defendant’s authorized punishment may be increased upon the finding of a fact, that fact — “no matter how the State labels it” — is treated as an element of the crime for constitutional purposes. Ring, 536 U.S. at 602, 122 S.Ct. at 2439, 153 L.Ed.2d at 572 (holding factual finding authorizing death penalty must be found by a jury beyond a reasonable doubt); accord United States v. Booker, 543 U.S. 220, -, 125 S.Ct. 738, 749, 160 L.Ed.2d 621, 642-43 (2005) (holding federal sentencing guidelines are subject to jury trial requirements of Sixth Amendment).

IV. Discussion.

The State challenges the applicability of Jones and its progeny to the present case, arguing the Fourteenth Amendment does not require that every element of the offense be charged in the indictment or complaint. Even if Jones and Apprendi apply, the State asserts, their holdings would not be violated by imposing the penalties for simple misdemeanors in this case because the penalty for a simple misdemeanor is the “prescribed statutory maximum” for the offenses of which the defendant was convicted.

The State is correct that the statement in Jones that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment” has not been held applicable to state prosecutions. Jones, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d at 326 n. 6. The Court was careful to point out in Apprendi, which involved a state prosecution, that the defendant had not asserted a constitutional claim based on the state’s failure to allege the enhancing facts in the charging instrument. 530 U.S. at 477 n. 3, 120 S.Ct. at 2355 n. 3, 147 L.Ed.2d at 447 n. 3. Noting the Fourteenth Amendment had not “been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury,’ ” the Court stated it would “not address the indictment question separately.” Id. The Court has held, however, that “[a]n indictment must set forth each element of the crime that it charges. But it need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime.” Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 1223, 140 L.Ed.2d 350, 358 (1998) (citation omitted).

We do not think it necessary here to determine whether a state charging instrument must allege each element of the crime as required for federal indictments under Almendarez-Torres. The present case can be decided based on the traditional due process requirement that the defendant be given notice of the charge sufficient to enable him to prepare a defense. Sufficient notice was not given here because there were no allegations in the complaint to alert the defendant to the State’s intent to convict and sentence him for a simple misdemeanor based on traffic violations resulting in death or serious injury.

As noted earlier, the State filed separate complaints charging the defendant with violating Iowa Code sections 321.288 and 321.297. The complaints did not include any reference to the fact the defendant’s conduct resulted in death or serious injury to other motorists, nor did the complaints cite to sections 805.10(l)(a) and 805.11, which authorize jail time and an increased fine under such circumstances. Therefore, the statutory maximum punishment to which the defendant could be sentenced for the charged crimes was the scheduled fine because that was the maximum sentence the judge could impose “without any additional findings.” Blakely, 542 U.S. at 304, 124 S.Ct. at 2537, 159 L.Ed.2d at 414. Only if the court found the additional fact of death or serious injury would the defendant be subject to sentencing under the simple misdemeanor sentencing statute. Because the additional fact — death or serious injury — increased the penalty for the crime beyond the authorized statutory maximum for a scheduled violation, this fact was “the functional equivalent of an element of a greater offense” than the one charged. Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. at 2365 n. 19, 147 L.Ed.2d at 457 n. 19; accord Hams, 536 U.S. at 567, 122 S.Ct. at 2419, 153 L.Ed.2d at 544. Thus, the nonscheduled violation — which requires the additional element of death or serious injury — is a different, greater offense than the scheduled violation that lacks this element. Cf. Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457 (noting “the effect of New Jersey’s sentencing ‘enhancement’ ... is unquestionably to turn a second-degree offense into a first-degree offense”); Jones, 526 U.S. at 243 n. 6, 251-52, 119 S.Ct. at 1224 n. 6, 1228, 143 L.Ed.2d at 326 n. 6, 330-31 (construing federal carjacking statute that imposed enhanced punishment when offense resulted in serious bodily injury or death as defining separate offenses with distinct elements to avoid “serious constitutional questions” under Due Process Clause and Sixth Amendment’s notice and jury trial guarantees).

Here, the defendant was charged with scheduled violations, yet the State sought to have him sentenced to jail on the basis it had proved he committed nonscheduled simple misdemeanors. Because the defendant had no notice he was being charged with the greater offenses, he clearly did not have constitutionally sufficient notice of the charges against him. See In re Matter of Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968) (holding procedural due process requires that “[t]he charge must be known before the proceedings commence”); State v. Hibler, 5 S.W.3d 147, 150 (Mo.1999) (“Due process requires that a defendant may not be convicted of an offense not charged in the information or indictment.”); cf. State v. Dellinger, 79 S.W.3d 458, 467 (Tenn.2002) (finding no due process violation when defendant given pretrial notice of prosecution’s intent to seek enhanced sentence and of factual basis for enhancement). We conclude that to permit a sentence beyond the statutory maximum for the charged scheduled violations would infringe the defendant’s Sixth Amendment right “to be informed of the nature and cause of the accusation” against him. We hold, therefore, that the district court was correct when it rejected the prosecution’s request to sentence the defendant to jail and impose $500 fines for his traffic-offense convictions.

AFFIRMED.

      . Iowa Code section 805.10 states that the statute allowing a defendant to avoid a court appearance by signing an admission 'of the violation and by paying the minimum fine before the court appearance date does not apply to a scheduled violation "[w]hen the violation charged involved or resulted in a death or serious injury to a person.” Iowa Code § 805.10(l)(a) (2001).

      . It appears this court's summarization of the Apprendi holding in our Jacobs decision was an overstatement to the extent we stated that Apprendi required that "any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment or information.” Jacobs, 644 N.W.2d at 698. As noted, the Court made clear it was not addressing that issue in Apprendi. See Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. at 2355 n. 3, 147 L.Ed.2d at 447 n. 3.


author: /s/Alan C. Page Associate Justice

text:
    Adam WERNEKE (minor) by Matthew WERNEKE, Respondent, v. LAKESIDE LAWN AND LANDSCAPE, INC., and Integrity Mutual Insurance/CompCost, Inc., Relators, Trustmark Life Insurance Co., Intervenor.
    No. A05-1665.
    Supreme Court of Minnesota.
    Nov. 22, 2005.
    Janet Monson, Brian J. Holly, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, MN, for Relators.
    Michal F. Scully, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 21, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice

MEYER, J., took no part in the consideration or decision of this case.