author: PETERSON, Judge.

text:
    In re ESTATE OF Jeffrey Robert ROCK, Deceased.
    No. C5-99-2081.
    Court of Appeals of Minnesota.
    July 3, 2000.

      John J. Gores, Norris J. Skogerboe, Skogerboe & Skogerboe, Chtd., Blaine, MN (for appellants Lee Rock and Rachelle Lies).
    Patrick J. McGuigan, McGuigan & Holly, P.L.C., St. Paul, MN (for respondent Jodi Rock).
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge.

Appellants Lee Rock and Rachelle Lies are the co-personal representatives of the estate of decedent Jeffrey Robert Rock, who died intestate on January 6, 1997. Appellants filed a petition seeking a determination that the dissolution judgment dissolving the marriage of Jeffrey Rock and respondent Jodi Rock divested respondent of her beneficiary interest in three individual retirement accounts (IRAs) owned by Jeffrey Rock when he died. This appeal is from the judgment denying that petition. We affirm.

FACTS

Jeffrey Rock and respondent were married in 1986 and had two children together. Jeffrey Rock also had two older children. In January 1994, Jeffrey Rock opened three IRAs. He designated respondent as the primary beneficiary and his children as contingent beneficiaries of each of the IRAs.

In 1995, the marriage of Jeffrey Rock and respondent was dissolved by stipulated judgment and decree. The dissolution judgment contains the following provisions regarding the parties’ retirement accounts:

[Respondent] is the owner of a 401(K) account through her place of employment. Said account has a current value of approximately $8,410.00. [Jeffrey Rock] is the owner of an IRA which has a current value of approximately $16,000, some of which is nonmarital.
Each party is awarded all right, title and interest in and to any and all pension, profit sharing, retirement or savings plans in which they may have an interest, free and clear of any claim or right of the other party.

At the time of his death in 1997, Jeffrey Rock still owned the three IRAs, and the beneficiary designations had not been changed.

Respondent testified that after the dissolution, she and Jeffrey Rock maintained an amicable relationship and cooperated well in raising their children; Jeffrey Rock continued to help with repairs to the homestead that she had been awarded in the dissolution; and she and Jeffrey Rock agreed that each would remain as beneficiary of the other’s IRAs or retirement accounts because their children were young and the proceeds would be needed to help support them.

Rudolph Jacobsz testified that about one month before Jeffrey Rock’s death, he and Jeffrey Rock had a discussion about retirement plans during which Jeffrey Rock stated that the beneficiaries of his IRAs were respondent and his children, “Jodi and the kids.” Jacobsz had known Jeffrey Rock since 1973, had worked for him from 1979 until sometime in 1995, and had lived with him from the fall of 1996 until his death.

The district court found:

5. The Dissolution Decree did not specifically terminate [respondent’s] status as the primary beneficiary of said IRA’s, nor did it specifically terminate [Jeffrey Rock’s] status as the primary beneficiary of [respondent’s] 401(k).
6. Following the dissolution of the parties’ marriage, and continuing until the time of [Jeffrey Rock’s] death, [respondent] remained as the primary beneficiary of the IRA’s, and [Jeffrey Rock] remained as the primary beneficiary of [respondent’s] equivalent retirement benefit account or plan.
7. That subsequent to the Dissolution Decree, [Jeffrey Rock] and [respondent] maintained an amicable relationship, and mutually agreed to retain each other as primary beneficiaries on their IRA accounts, retirement plans or equivalent cash accounts. In reliance on said agreement, both [respondent] and [Jeffrey Rock] did knowingly and intentionally continue to retain each other as the primary beneficiary on said accounts and/or plans.
8. After the dissolution of the parties’ marriage, but before his death, [Jeffrey Rock] stated his intention to retain [respondent] as the primary beneficiary of his IRA’s to [respondent] and others.

ISSUES

I. Did the district court err in concluding that respondent was the primary beneficiary of Jeffrey Rock’s IRAs?

II. Is the issue of the admissibility of Jacobsz’s testimony properly before this court?

ANALYSIS

I.

Whether a writing is ambiguous is a question of law subject to de novo review. State by Humphrey v. Delano Community Dev. Corp., 571 N.W.2d 233, 236 (Minn.1997). If a writing is ambiguous, that is, it is reasonably susceptible to more than one interpretation based on its language alone, extrinsic evidence may be admitted to resolve the ambiguity. Anderson v. Archer, 510 N.W.2d 1, 3-4 (Minn.App.1993). “When extrinsic evidence is admitted, the meaning of ambiguous language is a question of fact.” Id. at 4. These rules of contract construction apply when construing a stipulated provision in a dissolution judgment. Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977); see also Anderson, 510 N.W.2d at 3-4 (applying rules of contract construction to interpretation of stipulated provision in dissolution judgment). A district court’s findings of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01.

In Larsen v. Northwestern Nat’l Life Ins. Co., 463 N.W.2d 777 (Minn.App.1990), review denied (Minn. Feb. 6, 1991) in deciding whether a stipulated provision in a dissolution judgment divested the ex-spouse of his beneficiary right in a life insurance policy, this court stated:

Ordinarily, marriage dissolution does not affect the right of the named beneficiary. When an insured does not change the beneficiary of his or her life insurance policy after a marriage dissolution, the ex-spouse beneficiary is entitled to the proceeds of the policy upon the death of the insured. This rule is based on the notion that the beneficiary’s claim to the proceeds evolves from the terms of the policy rather than the status of the marital relationship.
However, under certain circumstances the ex-spouse beneficiary may have surrendered his or her right by a property settlement, which may or may not have been incorporated into the dissolution decree. “Whether a property settlement agreement should be deemed to bar the [ex-spouse beneficiary’s right to the insurance proceeds] is a question of the construction of the agreement itself. Where there is no provision that the effecting of the settlement agreement should deprive her of her rights as named beneficiary and she in fact remains named as beneficiary, the settlement agreement will not be given broader scope than its express terms specify.”

Id. at 779-80 (quoting 5 George J. Couch et al., Couch on Insurance (Second) § 29:4, at 248 (1984)) (citations and footnote omitted).

Relying on Larsen, appellants argue that as a matter of law the dissolution judgment divested respondent of her beneficiary interest in the. IRAs. The provision at issue in Larsen awarded each party “all right, title and -interest in the insurance policies covering his or her respective life.”. The Larsen court, however, did not conclude that this language unambiguously divested husband of his beneficiary interest in wife’s life insurance policy. Rather, in affirming the district court’s order to pay wife’s life insurance proceeds over to her estate, this court looked to the .underlying facts. Those facts included the following: during the dissolution proceeding, wife asked her attorney if she could remove husband’s name from her life insurance beneficiary designation, and her attorney advised her to not change the beneficiary designation until the dissolution was final; wife had indicated that if she died, She wanted her property to go to her mother; and wife died unexpectedly less than two months after entry of the final dissolution judgment.

Here, the provision in the dissolution judgment applicable to the IRAs awarded each party

all right, title and interest in and to any and all pension, profit sharing, retirement or savings plans in which they may have an interest, free and clear of any claim or right of the other party.

This provision is ambiguous in that it does not expressly refer to beneficiary designations.

In light of the ambiguity, whether the provision divested respondent of her beneficiary interest in the IRAs is a “fact-driven determination.” Mohamed v. Kerr, 53 F.3d 911, 915 (8th Cir.1995). Respondent testified that following the dissolution, she and Jeffrey Rock maintained an amicable relationship and cooperated well in raising their children. Their children were young, ages three and seven when Jeffrey Rock died, and in need of support. Following the -dissolution, Jeffrey Rock and respondent agreed to retain each other as primary beneficiaries on their IRA and retirement accounts. Shortly before his death, Jeffrey Rock told Jacobsz that “Jodi and the kids” were the beneficiaries of his IRAs. Because this evidence supports the district court’s finding that the dissolution judgment did not remove respondent as the primary beneficiary of Jeffrey Rock’s IRAs, the finding of fact is not clearly erroneous. See National Auto. Dealers & Assocs. Retirement Trust v. Arbeitman, 89 F.3d 496, 501 (8th Cir.1996) (citing parties’ amicable relationship following divorce as support for finding that separation agreement did not divest wife of beneficiary interest in pension plan).

Appellants cite respondent’s testimony that "she understood the languagé awarding retirement and savings plans “free and clear of any claim or right of the other party” to mean that she would make "no claim on Jeffrey Rock’s IRAs as an admission that she relinquished her beneficiary interests in the dissolution. We disagree. Read in context, respondent’s testimony referred to money or benefits to which the other party was entitled at' the time of dissolution or retirement and did not encompass beneficiary interests.

Appellants also argue that the district court erred in enforcing an oral agreement entered into by respondent and Jeffrey Rock following their dissolution to redes-ignate each other as beneficiaries on their IRAs and retirement accounts. Appellants’ argument mischaracterizes the district court’s decision. The district court found that following the dissolution, Jeffrey Rock and respondent agreed to retain, not reinstate or redesignate, each other as beneficiaries. This agreement is evidence that, at the time of dissolution, respondent and Jeffrey Rock did not intend to divest each other of their beneficiary interests. Because the dissolution judgment did not divest respondent of her beneficiary interests in Jeffrey Rock’s IRAs, she remained as the beneficiary, and it was unnecessary for Jeffrey Rock to redesignate her as the beneficiary.

II.

Respondent argues that the issue of the admissibility of Jacobsz’s testimony is not properly before this court because appellants failed to make a motion for a new trial. We agree.

[Mjatters such as trial procedure, evi-dentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.

Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn.1986).

Citing Pump-It, Inc. v. Alexander, 230 Minn. 564, 572, 42 N.W.2d 337, 341-42 (1950), appellants argue that the new-trial-motion requirement does not apply to court trials because evidentiary rules are for controlling the jury, and greater latitude is permitted in the admission of evidence in a court trial. The Pump-It court addressed the showing required to obtain reversal based on the erroneous admission of evidence in a court trial. Id.

The appellant in Pump-It had made a motion for a new trial or amended findings, so the case did not address the new-trial-motion requirement. Id. at 565, 42 N.W.2d at 338. The reason for the new-trial-motion requirement is “to provide the trial court with the opportunity to correct errors made during the course of the proceedings.” Schiltz v. City of Duluth, 449 N.W.2d 439, 440 (Minn.1990). This rationale applies to court trials as well as jury trials. Consequently, the admission of Ja-cobsz’s testimony is not subject to appellate review because appellants failed to make a motion for a new trial in which admitting the evidence was assigned as error.

Appellants argue that the trial court erred in denying them a continuance to produce evidence rebutting Jacobsz’s testimony. Respondent notified appellants on July 19, 1999, that Jacobsz would be testifying at the trial on respondent’s objection to appellants’ petition. The trial was not held until September 14, 1999. Appellants had almost two months during which they could have taken steps to find out what Jacobsz’s testimony would be, but the record does not show that they did so. We cannot conclude that the district court abused its discretion in denying appellants’ request for a continuance.

DECISION

The district court did not err by finding that respondent remained the primary beneficiary of Jeffrey Rock’s IRAs. The issue of the admissibility of Jacobsz’s testimony is not properly before this court

Affirmed.

      . Although the dissolution judgment only refers to a single IRA, the parties agree it applies to the three IRAs at issue in this case.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2000 ND 131
    Robert HOUN, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20000058.
    Supreme Court of North Dakota.
    June 29, 2000.

      Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for petitioner and appellant.
    Todd Adam Sattler, Attorney General’s Office, Bismarck, N.D., for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Robert Houn appealed from a judgment affirming a North Dakota Department of Transportation decision revoking his driving privileges for one year. We conclude the Department’s finding Houn failed to timely cure his refusal to submit to a blood-alcohol test is supported by a preponderance of the evidence. We affirm.

I

[¶ 2] Bismarck police officer Glen Valley observed Houn driving erratically at 1:10 a.m. on October 10, 1999. Valley stopped Houn and, while speaking with him, detected the odor of alcohol. Valley asked Houn to perform several field sobriety tests, which Houn failed. Valley arrested Houn at about 1:30 a.m. for driving under the influence, and transported him to the Bismarck police station. Valley advised Houn about the implied consent law and his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Valley asked Houn to submit to an Intoxilyzer test to measure his blood-alcohol concentration. Houn indicated he wanted to speak to a specific attorney, but he was unable to contact that attorney. Houn was informed several times about the implied consent law, and he insisted on contacting a specific attorney before submitting to a blood-alcohol test. Houn was unable to contact the attorney, and he stated he would not take a test without legal representation. Finally, Officer Sinclair, a certified Intoxilyzer operator on duty at the police station, left the station and went back on patrol. Valley testified Houn subsequently indicated he would take the test at about 2:50 a.m., but Valley, who was not a certified Intoxilyzer operator, informed Houn it was too late.

[¶ 3] The Department sought to revoke Houn’s driving privileges for one year because he refused to take a blood-alcohol test. An administrative hearing officer decided Houn’s attempt to cure his prior refusal to take a test was not timely under the requirements of Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974). The hearing officer found:

The implied consent advisory was given to Mr. Houn several times. Mr. Houn wanted to talk with an attorney, was given opportunities to call an attorney, but was not successful in reaching the attorney of his choice. Mr. Houn said that he would not take the test without legal representation. Mr. Houn was offered several opportunities to take an Intoxilyzer test, all of which he refused. Eventually, Mr. Houn was told that the end of the two-hour period within which testing must be completed was approaching and that this would be treated as a refusal. The Intoxilyzer operator left the police department in order to go back on patrol. At 2:50 a.m., Officer Valley issued a Report & Notice to Mr. Houn. Around the time that the Report & Notice indicating a refusal was handed to Mr. Houn, Mr. Houn stated that he would submit to testing for alcohol concentration. Mr. Houn’s statement was probably made two or three minutes before 2:50 a.m. Test results, if obtained before 3:10 a.m., would still have been accurate. Time available for testing was therefore no more than 20 to 23 minutes. That Saturday night (including early Sunday morning) was a very busy night for the Bismarck Police Dept., and no more than 6 or 7 police officers were on duty, of whom only two were qualified operators for the Intoxilyzer. In an ideal situation, Intoxilyzer testing could have been completed in as little as 14 minutes. In this case, the situation was not ideal because an Intoxilyzer operator was not immediately available and an Intoxilyzer machine was not immediately available. Officer Valley, considering all factors at the time that Mr. Houn expressed a willingness to submit to testing, reasonably believed that it was not possible to bring in an operator and complete testing before the end of the two-hour period. Alternatively, blood could have been drawn for testing. In an ideal situation, the blood drawing process at the hospital could be completed in as little as ten minutes. There is no evidence that an ideal situation existed for Mr. Houn that night. It would have taken several minutes, probably 6 to 8 minutes, for Officer Valley to take Mr. Houn to the hospital emergency room. Officer Valley, considering all factors at the time that Mr. Houn expressed a willingness to submit to testing, reasonably believed that it was not possible to have blood drawn for testing before the end of the two-hour period. Trying to obtain a test before 3:10 a.m. would have caused substantial inconvenience to the police. Testing facilities, though theoretically available, were not readily available within the required time frame.

The Department revoked Houn’s driving privileges for one year. The district court affirmed the Department’s decision, and Houn appealed.

[¶ 4] The Department’s hearing was timely under N.D.C.C. § 39-20-05. Houn’s appeal to the district court was timely under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 28-32-15 and 39-20-06. Houn’s appeal from the district court was timely under N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-21.

II

[¶ 5] We review an administrative revocation of a driver’s license under N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act. Krehlik v. Moore, 542 N.W.2d 443, 445 (N.D.1996). We affirm the Department’s decision unless we conclude:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practices Act were not complied with in the proceedings before the agency; 4) the agency’s rules or procedures have not afforded the appellant a fair hearing; 5) the agency’s findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency’s decision are not supported by its findings of fact. NDCC 28-32-19.

North Dakota Dep’t of Transp. v. DuPaul, 487 N.W.2d 593, 595 (N.D.1992).

[¶ 6] We give great deference to the Department’s findings of fact, and we do not make independent findings or substitute our judgment for that of the Department; rather, we determine only whether a reasoning mind reasonably could have concluded the Department’s findings were supported by the weight of the evidence from the entire record. Seela v. Moore, 1999 ND 243, ¶5, 603 N.W.2d 480; Asbridge v. North Dakota State Highway Comm’r, 291 N.W.2d 739, 744 (N.D.1980). Our standard of review defers to the hearing officer’s opportunity to hear the witnesses’ testimony and to judge their credibility, and we will not disturb the Department’s findings unless they are against the greater weight of the evidence. Johnson v. North Dakota Dep’t. of Transp., 530 N.W.2d 359, 361 (N.D.1995). Resolving underlying factual disputes is the exclusive province of the hearing officer. Id.

Ill

[¶ 7] Houn argues the Department erred in finding he failed to timely cure his refusal to submit to a blood-alcohol test.

A

[¶ 8] Under North Dakota law, a chemical test to determine a driver’s blood-alcohol concentration must be given within two hours of driving, and the refusal to submit to a test will result in the revocation of driving privileges for up to three years. See N.D.C.C. §§ 39-20-01, 39-20-04, 39-20-04.1. Drivers who refuse to submit to a chemical test will not have their license revoked if, within 25 days, they plead guilty to violating N.D.C.C. § 39-08-01, or an equivalent ordinance. See N.D.C.C. § 39-20-04(2). Acceptable chemical tests include blood, breath, urine, or saliva, and the law enforcement officer has discretion to decide which test to use. See N.D.C.C. § 39-20-01.

[¶ 9] An arrestee who refuses to submit to a chemical test may cure that refusal by consenting to a test within a reasonable time after the prior refusal if the subsequent test would still be accurate, testing equipment or facilities are still available, the subject has been in police custody and under observation for the whole time since arrest, and the subsequent test will result in no substantial inconvenience or expense to law enforcement. Lund, 224 N.W.2d at 557. The two-hour limitation for taking a blood-alcohol test in N.D.C.C. § 39-20-04.1, narrows the reasonable time within which arrestees may attempt to cure a prior refusal, but does not refute the underlying rationale of Lund, which recognizes a preference for a chemical test within a reasonable time. Krehlik, 542 N.W.2d at 445. The requirements to cure a prior refusal outlined in Lund must be strictly and rigidly followed. Asbridge, 291 N.W.2d at 750 (holding subsequent consent did not cure prior refusal because arrestee was not in police custody and under observation from time of arrest until attempted cure).

B

[¶ 10] Houn argues the hearing officer erred in deciding he attempted to cure his prior refusal at 2:50 a.m., and he actually attempted to cure his refusal earlier, with about 39 minutes to spare. Houn argues it was undisputed he had 39 minutes left in the two-hour period when he attempted to cure his refusal.

[¶ 11] The hearing officer found Houn attempted to cure his refusal at about 2:50 a.m. and the “[t]ime available for testing was therefore no more than 20 to 23 minutes.” Officer Valley’s testimony supports the hearing officer’s finding. Although Houn argues Valley’s testimony is internally conflicting, the hearing officer, not this Court, determines the credibility of witnesses and the weight to be given their testimony. See Johnson, 530 N.W.2d at 361. Under our deferential standard of review, we conclude a reasoning mind reasonably could have concluded Houn attempted to cure his refusal at 2:50 a.m.

C

[¶ 12] Houn argues even if he attempted to cure his refusal at 2:50 a.m., a blood or breath test could have been done within the two-hour period, which ended at 3:10 a.m. Houn argues the implied consent law reflects the Legislature’s desire for suspects to take a chemical test, and he offers several scenarios to demonstrate either a blood or Intoxilyzer test could have been performed before 3:10 a.m. Houn effectively argues law enforcement must honor an attempted cure if there is any possibility a chemical test could be completed within two hours.

[¶ 13] In Lund, 224 N.W.2d at 557, this Court held:

[W]here, as here, one who is arrested for driving while under the influence of intoxicating liquor first refuses to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest.

[¶ 14] In Krehlik, 542 N.W.2d at 444, an arrestee refused to take a chemical test without speaking to a specific attorney, who was unavailable. The arresting officer completed his report, issued the arres-tee a temporary permit, and mailed the report to the Department as he left the jail to continue his patrol. The arrestee subsequently contacted an attorney, who suggested the arrestee take a blood test. The arrestee then informed law enforcement officials he wanted to take the test. The arresting officer was called back from patrol to accompany the arrestee for a blood test. Blood was drawn from the arrestee more than two hours after he had been driving or in physical control of his vehicle.

[¶ 15] We rejected the Department’s argument the enactment of a two-hour limitation for a chemical test invalidated the continued application of Lund. We said the two-hour limitation for a chemical test in N.D.C.C. § 39-20-04.1 may narrow the reasonable period of time within which arrested persons may change their mind, but the two-hour period does not refute the underlying rationale of Lund, which recognizes a legislative preference for a chemical test. Krehlik, 542 N.W.2d at 447. We said a driver can cure an initial refusal notwithstanding that the arresting officer issued a temporary operator’s permit and mailed a report to the Department by the time of the request. Id. We held because the hearing officer did not make a finding the blood test reasonably could have been taken before the expiration of the two-hour period, a remand was necessary for a finding on that issue. Id.

[¶ 16] Houn argues Krehlik is nearly identical to this case. In Krehlik, 642 N.W.2d at 447, however, there were not repeated refusals to take a chemical test, and we remanded for further proceedings because the hearing officer did not make a finding about whether a chemical test could reasonably have been taken before the expiration of the two-hour period.

[¶ 17] Here, Houn repeatedly told law enforcement officials he would not take a test without legal representation. The hearing officer found that in an “ideal situation” an Intoxilyzer or blood test could have been completed within the two-hour period, but the situation was not ideal and Officer Valley reasonably believed it was not possible to do either test within that time. The hearing officer found “[t]esting facilities, though theoretically available, were not readily available within the required time frame,” and “[t]rying to obtain a test [within the time frame] would have caused substantial inconvenience to the police.” There is evidence in this record which supports the hearing officer’s findings.

[¶ 18] Although the Legislature has expressed its desire for suspects to take a chemical test, Lund, Asbridge, and Krehlik do not require law enforcement officers to honor an attempted cure if the officers reasonably believed it was not possible to do a test within the appropriate time frame, testing facilities were not readily available, and trying to obtain a test would have caused substantial inconvenience or expense to law enforcement. We decline to adopt a requirement that law enforcement must honor an attempted cure if there is a theoretical possibility a chemical test could be concluded within two hours. Under Lund and its progeny, the standard is whether the proffered test reasonably could have been taken before the expiration of the two-hour period. Here, the hearing officer found the test could not have reasonably been completed within the two-hour period. Under our deferential standard of review, a reasoning mind reasonably could have found as the hearing officer did.

[¶ 19] We therefore conclude the hearing officer’s findings are supported by a preponderance of the evidence, and the hearing officer’s conclusions of law and decision are supported by the findings.

IV

[¶ 20] We affirm the judgment revoking Houn’s driving privileges for one year.

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

      . Under N.D.C.C. § 39-20-01, ”[a]ny person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcohol, other drug, or combination thereof, content of the blood.” See also N.D.C.C. § 39-20-14 (implied consent law for onsite screening tests).

      . When Lund was decided, the Legislature had not yet enacted the two-hour period in N.D.C.C. § 39-20-04.1. See Krehlik, 542 N.W.2d at 445.

      . Houn has asked this Court to correct the record or take judicial notice of the meaning of a reference to "this” in the transcript of the administrative hearing. He claims "this” refers to when a police videotape began. Houn asked the hearing officer to correct or modify the record under N.D.R.App.P. 10(h), to explain the meaning of "this.” The hearing officer declined Houn’s request. Chapter 28-32, N.D.C.C., outlines the procedure for supplementing the record in an administrative proceeding. See N.D.C.C. § 28-32-18.
      Houn now asks this Court to take judicial notice of the meaning of "this.” Under N.D.R.Ev. 201(b), a judicially noticed fact must not be subject to reasonable dispute because it is either generally known or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Houn’s request involves a dispute about what testimony in the record refers to and is not subject to judicial notice under N.D.R.Ev. 201(b). The record speaks for itself, and inferences from that record are matters for the hearing officer as the trier of fact and not for this Court under the auspices of judicial notice.

      . Although the hearing officer discussed the possibility of taking a blood test and Houn also suggests he could have had a blood test within the required time, Officer Valley asked Houn to submit to an Intoxilyzer test. An arrestee may not cure an initial refusal to submit to a chemical test by asking to take a test different from the one offered by the officer. See Burley v. North Dakota Dep’t of Transp., 1999 ND 232, ¶ 8 n. 1, 603 N.W.2d 490; Clairmont v. Hjelle, 234 N.W.2d 13, 16 (N.D. 1975).


author: KAPSNER, Justice.

text:
    2000 ND 134
    Ebenezer M. SINGHA, Plaintiff, Appellant and CrossAppellee, v. NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS, and Rolf Sletten, Executive Secretary and Treasurer of the North Dakota Board of Medical Examiners, Defendants, Appellees and Cross-Appellants.
    No. 990393.
    Supreme Court of North Dakota.
    June 29, 2000.
    Rehearing Denied Aug. 18, 2000.

      Roger R. Sundling and Alvin 0. Boucher, Robert Vogel Law Office, Grand Forks, N.D., for plaintiff, appellant and cross-ap-pellee.
    John M. Olson, Special Assistant Attorney General, Bismarck, N.D., for defendants, appellees and cross-appellants.
   KAPSNER, Justice.

[¶ 1] Ebenezer M. Singha appealed a judgment affirming in part and reversing in part a State Board of Medical Examiners’ decision finding he did not meet the educational requirements for a license to practice medicine in North Dakota and denying his application. The Board cross-appealed from the part of the judgment reversing its decision that Singha’s deceit and misrepresentations rendered him unfit for licensure. We affirm the Board’s decision that Singha did not meet the educational requirements for licensure.

I

[¶ 2] In Singha v. North Dakota State Bd. of Med. Exam’rs, 1998 ND 42, ¶¶ 2-3, 574 N.W.2d 838, we described some of the factual background for Singha’s application for a license to practice medicine in North Dakota:

Singha, a 1990 graduate with a “diploma in osteopathy” from the British School of Osteopathy (B.S.O.), applied to the Board in April 1995 for a license to practice medicine. As relevant to Sin-gha’s application, N.D.C.C. § 43-17-18(3) outlines certain requirements for licensure “[i]f the applicant is a graduate of a medical or osteopathic college that has not been approved by the board or accredited by an accrediting body approved by the board at the time the degree or its equivalent was conferred.” The B.S.O. was not approved by the Board and was not accredited by an accrediting body approved by the Board when Singha received his diploma in osteopathy, and the essence of this case is whether Singha qualified for licensure under the educational requirements of N.D.C.C. § 43-17-18(3).
While attending the B.S.O., Singha received additional clinical training at hospitals in Pennsylvania, and he self-studied pharmacology and biochemistry. In 1991, Singha was accepted in a family practice residency program at the University of North Dakota Medical School. In 1991 and 1993, the Board assisted Singha in sitting as a courtesy candidate for a Federal Licensing Examination (F.L.E.X.) administered in Ohio. Singha successfully completed the F.L.E.X. in 1993, and in September 1995, he successfully completed the three-year family practice residency program at UND.

[¶ 3] In Singha, 1998 ND 42, ¶ 1, 574 N.W.2d 838, we held N.D.C.C. § 43-17-18(3) requires a foreign-educated applicant for a North Dakota medical license to demonstrate the kinds of courses taken at a foreign educational institution, when combined with the successful completion of three years of Board-approved postgraduate training, are substantially equivalent to the kinds of courses required at a reputable medical or osteopathic college in the United States, and the successful completion of one year of Board-approved postgraduate training. We rejected Singha’s argument the Board was estopped from denying him a license because it had a duty to properly advise him about the requirements for licensure and led him to believe he would be granted a license after completing the three-year family practice residency program at UND. Singha, at ¶¶ 33-34. We also held the Administrative Agencies Practices Act, N.D.C.C. ch. 28-32, applied to the Board’s consideration of an application for a license. Singha, at ¶ 1. Because the Board failed to comply with the procedural requirements of N.D.C.C. eh. 28-32 in deciding Singha’s application, we remanded for proceedings consistent with those requirements and our interpretation of N.D.C.C. § 43-17-18(3). Singha, at ¶¶ 32, 39.

[¶ 4] On remand, an administrative law judge (“ALJ”) was appointed to make a recommendation on Singha’s application. After an administrative hearing, the ALJ recommended granting Singha a license. The ALJ recommended finding Singha’s B.S.O. education, including his self-study of pharmacology and biochemistry and his clinical externships in Pennsylvania, was substantially equivalent to the training a majority of osteopathic students receive in the United States. The ALJ recommended finding if there were any deficiencies in Singha’s B.S.O. education, they were more than compensated for by his three years in the UND family practice residency program. The ALJ commented that he “gave great weight to the testimony of those doctors from the UND family practice residency program who testified for Singha” and were all satisfied he was “competent to practice medicine in North Dakota.” The ALJ also recommended finding Singha did not intentionally deceive the Board, the UND residency program, or anyone else about his educational credentials or B.S.O. degree.

[¶ 5] The Board rejected the ALJ’s recommendation, finding Singha did not meet the educational requirements for licensure. The Board decided Singha’s self-study and clinical externships could not be considered under N.D.C.C. § 43-17-18(3). The Board found Singha’s B.S.O. education and successful completion of three years of Board-approved postgraduate training at the UND family practice residency program were not substantially equivalent to the kinds of courses taken at a reputable osteopathic college in the United States and the successful completion of one year of Board-approved postgraduate training. The Board also concluded Singha’s deceit and misrepresentations in the application process rendered him unfit for licensure. The district court affirmed the Board’s decision Singha did not meet the educational requirements for licensure and reversed the Board’s decision Singha’s deceit and misrepresentations rendered him unfit for licensure. Singha appealed, and the Board cross-appealed.

II

[¶ 6] Under N.D.C.C. § 28-32-19, we affirm the Board’s decision unless it is not in accordance with the law; it violates Sin-gha’s constitutional rights; the Board failed to comply with the provisions of N.D.C.C. ch. 28-32; the Board’s rules or procedures have not afforded Singha a fair hearing; the Board’s findings of fact are not supported by a preponderance of the evidence; or the Board’s conclusions of law and decision are not supported by its findings of fact.

[¶ 7] In Singha, 1998 ND 42, ¶ 14, 574 N.W.2d 838, we outlined our deferential standard of review of the factual basis of a decision by the Board:

Our review of the factual basis for the Board’s decision involves a three-step process to decide whether its findings of fact are supported by a preponderance of the evidence, its conclusions of law are supported by its findings of fact, and its decision is in accordance with the law and is supported by its conclusions of law. In applying the preponderance-of-evidence standard, we do not make independent findings of fact or substitute our judgment for that of the Board; rather, we decide only whether a reasoning mind reasonably could have decided the Board’s factual conclusions were proved by the weight of the evidence from the entire record. It is not our function to act as a super board when reviewing decisions by an administrative agency. In technical matters involving agency expertise, we have acknowledged the agency decision is entitled to appreciable deference.

III

[¶ 8] Singha argues the Board’s decision is not in accordance with the law, its findings of fact are not supported by a preponderance of the evidence, and its conclusions of law are not supported by its findings of fact, because the Board interpreted N.D.C.C. § 43-17-18(3) too narrowly and did not consider his clinical ex-ternships in Pennsylvania and his self-study of pharmacology and biochemistry. He argues the Board erred in requiring his B.S.O. education to be the mirror image of the education at an osteopathic college in the United States.

A

[¶9] In Singha, 1998 ND 42, ¶20, 574 N.W.2d 838, we recognized the Board has discretion to assess the substantive merits of an applicant’s qualifications for a medical license, and we rejected an interpretation of N.D.C.C. § 43-17-18(3) which would require the Board to give carte blanche approval to any foreign educational institution that used a form of the word osteopath in its title, or offered some level of osteopathic education. We declined to construe N.D.C.C. § 43-17-18(3) to permit an entity other than the Board to decide a foreign-educated applicant’s qualifications for licensure. Singha, at ¶ 22. We construed N.D.C.C. § 43-17-18 as a whole to establish a minimum educational threshold requiring the Board to compare the kinds of courses taken at a foreign institution with the kinds of courses required at a reputable osteopathic college in the United States. Singha, at ¶ 22. We interpreted N.D.C.C. § 43-17-18(3) to require a foreign-educated applicant to demonstrate the kinds of courses taken at a foreign institution, when combined with the successful completion of three years of Board-approved postgraduate training, were substantially equivalent to the kinds of courses required at a reputable medical or osteopathic college in the United States and the successful completion of one year of Board-approved postgraduate training. Singha, at ¶ 22.

[¶ 10] Our decision in Singha recognizes the Board’s statutory authority to assess the substantive merits of a foreign-educated applicant’s educational qualifications and to decide whether the kinds of courses taken at a foreign institution and three years of postgraduate training are substantially equivalent to the kinds of courses required at an osteopathic college in the United States and one year of postgraduate training. Here, although Sin-gha’s clinical externships in Pennsylvania and his self-study of biochemistry and pharmacology may have been completed while he was enrolled at the B.S.O. with its knowledge and consent, the externships and self-study were not part of the B.S.O. curriculum. Nothing in N.D.C.C. § 43-17-18 or Singha requires the Board to accept Singha’s clinical externships or his self-study as the substantial equivalent of courses required at a reputable osteopathic college in the United States. For foreign-educated applicants, N.D.C.C. § 43-17-18(3) and Singha require comparison of the kinds of courses taken at a foreign institution and three years of postgraduate training with the kinds of courses required at a reputable osteopathic college in the United States and one year of postgraduate training. As we explain, the Board compared Singha’s educational qualifications as required by N.D.C.C. § 43-17-18(3) and Singha, and we reject his claim the Board misapplied the law and required his B.S.O. education to be a mirror image of the education required at an osteopathic college in the United States.

B

[¶ 11] Singha argues the weight of the evidence supports his licensure and the Board’s denial is not supported by a preponderance of the evidence. He claims the Board erred in not giving appropriate weight to his extra two years in the UND family practice residency program and the testimony of his UND instructors to cure any deficiencies in his education. He argues the totality of his training made him a competent physician with skills and abilities equivalent to a physician educated in the United States. We conclude, however, the Board’s finding that Singha’s educational qualifications were not substantially equivalent to the educational qualifications of a physician educated in the United States is supported by a preponderance of the evidence.

[¶ 12] Dr. Gerald Osborne, the acting dean at the College of Osteopathic Medicine at Michigan State University and the president of the National Board of Osteopathic Medical Examiners, testified there was only a “distant comparison” and “extraordinary differences” between osteopathic education in Great Britain and the United States. Dr. Osborne testified osteopathic students in Great Britain are trained only to do manipulative treatment, which is just one component of what osteopathic students are trained to do in the United States. Dr. Osborne indicated a diploma of osteopathy received from the B.S.O. is not a doctoral level degree, and a comparison of the quality of a foreign osteopathic school with an osteopathic school in the United States requires more than looking at course names, numbers, and hours to measure equivalency. Dr. Osborne opined the instructional level at the B.S.O. was “not even close” to the quality of the instructional level at a college of osteopathy in the United States. Dr. Osborne testified a diploma awarded from the B.S.O. in 1990 was “absolutely” not equivalent to a degree awarded from an osteopathic college in the United States and indicated the B.S.O. education was more equivalent to training given at a chiropractic school in the United States. Dr. Osborne also reviewed documentation about Singha’s performance during his UND family practice residency and testified “unequivocally, with this kind of performance in the family practice residency at Michigan State University, [Singha] would have been asked to leave the program.” Based upon his review of Singha’s credentials, Dr. Osborne testified he did not believe Singha was qualified to practice medicine in the United States.

[¶ 13] Dr. Ralph Dunnigan, a former member of the Board and a former director of the UND family practice residency program in Bismarck, testified the traditional process for obtaining a license to practice medicine in the United States requires a four-year undergraduate degree, a four-year degree from an accredited medical or osteopathic school, and completion of a residency program. Dr. Dunni-gan emphasized the education at a United States medical school consists of two years of basic science and two years of clinical science consisting of structured didactic training and clinical work on wards. Dr. Dunnigan explained medical school emphasizes collegiality and integration of students as a required educational experience. Dr. Dunnigan testified a resident’s didactic training was much more limited than a medical school student’s didactic training. Dr. Dunnigan testified the didactic educational experience was a significant part of a medical school education and a three-year residency program could not make up for a deficiency in a medical school education.

[¶ 14] The Board’s decision compared Singha’s education at B.S.O. and his three years of postgraduate training at UND with the kinds of courses required at a reputable osteopathic college in the United States and one year of postgraduate training. The Board found the B.S.O. “diploma in osteopathy” was an undergraduate program which prepared a person to practice osteopathy as recognized in Great Britain; osteopathic medicine in Great Britain was not the same as in the United States; British osteopaths were not taught to evaluate health problems and were not able to provide general medical service; the courses taught at the B.S.O. were taught at an undergraduate level to familiarize students with osteopathy and enable them to know their limitations, rather than to equip them to practice medicine; the B.S.O. curriculum was deficient when compared to a traditional United States medical school curriculum; the B.S.O. and United States osteopathic schools were not substantially similar; Singha did not demonstrate the kinds of courses he took at the B.S.O. were similar to the kinds of courses required by osteopathic colleges in the United States; Singha’s externships did not provide him the benefit of a structured didactic component of medical school, which third and fourth year United States medical students received during clinical rotations; and Singha’s self-study in biochemistry and pharmacology were not part of the B.S.O. curriculum and no educational institution supervised or gave him credit for his self-study. The Board explained the ALJ inappropriately considered Singha’s self-study and clinical ex-ternships in evaluating his eligibility for licensure under N.D.C.C. § 43-17-18(3), because they were not courses taken at a foreign educational institution. The Board found even if Singha’s externships and self-study could be considered under N.D.C.C. § 43-17-18(3), he did not produce sufficient evidence to compare his externships with the clinical education of a medical student and his self-study with classes required at a medical or osteopathic college in the United States.

[¶ 15] The Board also cited testimony from Singha’s preceptors in the UND family practice residency program to the effect that Singha could not have completed the program without an adequate fund of knowledge of the basic sciences and that they believed he could practice medicine in an unsupervised setting. The Board explained N.D.C.C. § 43-17-18(3) does not authorize issuance of a license to practice medicine based on opinions the foreign graduate is qualified to practice medicine; rather, the statute requires a comparison of the foreign graduate’s education with the education required at an osteopathic college in the United States. The Board decided Singha did not meet his burden to demonstrate the kinds of courses he took at the B.S.O., coupled with the successful completion of three years of Board-approved postgraduate training, were substantially equivalent to the kinds of courses taken at a reputable medical or osteopathic college in the United States and the successful completion of one year of Board-approved postgraduate training.

[¶ 16] Although there is evidence Sin-gha’s preceptors at the UND family practice residency program believe he was qualified for licensure, there is also evidence in the record from which a reasoning mind reasonably could have found Singha did not meet the educational requirements for licensure. Issues involving educational qualifications for licensure involve technical matters subject to the Board’s expertise. See Singha, 1998 ND 42, ¶¶ 14, 22, 574 N.W.2d 838. Under our deferential standard of review, we conclude a reasoning mind reasonably could have found Singha did not meet the educational ■ requirements for licensure in N.D.C.C. § 43-17-18(3). The Board adequately explained its rationale for rejecting the ALJ’s recommendation, and the Board’s findings are supported by a preponderance of evidence. The Board’s findings support its conclusion Singha did not meet the educational requirements for licensure under N.D.C.C. § 43-17-18(3).

IV

[¶ 17] Singha argues the Board violated his constitutional right to a fair hearing under the due process clauses of the federal and state constitutions and his statutory right to a fair hearing under N.D.C.C. ch. 28-32.

A

[¶ 18] Singha claims the Board prejudged his application and was not an impartial decision maker.

[¶ 19] Assuming without deciding that Singha’s interest as an applicant for a license to practice medicine is a constitutionally protected property or liberty right that is more than a unilateral expectation, he has not demonstrated the Board prejudged his application or was biased. Sin-gha relies on press releases by the Board’s executive secretary reviewing this Court’s decision in Singha and indicating the Board could accept the ALJ’s recommendation to grant the license or “more likely do their own review of the case and again deny it.” Singha’s reliance on press releases by the executive secretary is misplaced because the executive secretary is not a member of the Board.

[¶ 20] Singha also claims a “review of trial transcripts” prepared by one Board member, Dr. Zachary Morris, demonstrates bias. Dr. Morris’s statements were made in a document circulated to the Board while the ALJ’s recommendation was pending before the Board. Chapter 43-17, N.D.C.C., authorizes the Governor to appoint a ten-person Board to decide applications for a medical license. Inherent in the creation of a collegial, multi-person Board is the authority for individual Board members to comment on the evidence and exchange opinions about pending applications. Dr. Morris’s statements reflect his review and analysis of evidence presented at the administrative hearing and are insufficient to show the Board was an impartial decision maker. See Opdahl v. Zeeland Pub. Sch. Dist., 512 N.W.2d 444, 447 (N.D.1994) (stating the existence of a generalized attitude prior to a hearing is not necessarily a disqualifying bias and a presumption exists officials regularly perform their duties by refusing to allow any preconceived biases or judgment from interfering with a decision based on evidence presented at a hearing). Singha has not overcome the presumption the Board regularly performed its duty and refused to allow any preconceived biases from interfering with a decision based on evidence presented at the administrative hearing.

B

[¶ 21] Singha argues the Board improperly considered evidence not introduced at the administrative hearing. He claims that evidence consisted of a chiropractic school catalogue, Dr. Morris’s statements, and written materials prepared by another Board member, Dr. David Rinn.

[¶ 22] Nothing in this record indicates the Board considered the chiropractic cata-logue or any other evidence not introduced at the administrative hearing. The written statements by Dr. Morris and Dr. Rinn represent their analysis of the evidence from the administrative hearing, with cites to the record, and the Board’s consideration of those statements was not improper. We conclude the Board did not violate Singha’s constitutional or statutory right to a fair hearing.

V

[¶ 23] Singha argues the Board did not comply with N.D.C.C. ch. 28-32, because there were impermissible ex parte contacts between the Board and the Board’s litigation counsel and its executive secretary. See Scott v. North Dakota Workers Comp. Bur., 1998 ND 221, 587 N.W.2d 153.

[¶ 24] In Scott, 1998 ND 221, ¶¶8-18, 587 N.W.2d 153, we considered an issue involving the Bureau’s ex parte contacts with its outside litigation counsel about a pending ALJ recommendation. In Scott, at ¶¶ 8, 10, the Bureau’s outside counsel represented the Bureau at an administrative hearing before an ALJ, consulted with the Bureau’s director of claims and rehabilitation, advised the director the ALJ’s recommendation should be rejected, and drafted several versions of findings, conclusions, and orders for the director to review. All of those ex parte contacts were without the knowledge or participation of the claimant or his attorney, and the claimant received no notice or copies of the Bureau’s outside counsel’s proposed findings, conclusions and orders prior to issuance of the final order. Id. at ¶ 8.

[¶ 25] We concluded the provisions of N.D.C.C. § 28-32-12.1(3) and (5) and N.D.C.C. § 28-32-17(4)(i) and (k) prohibited the Bureau’s outside litigation counsel from making those ex parte contacts with the Bureau’s director of claims and rehabilitation. Scott, 1998 ND 221, ¶¶ 9-10, 587 N.W.2d 153. We decided the clear intent of those statutes was to prohibit ex parte contacts between the decision maker and persons who participated in the hearing or otherwise had an interest in the case. Id. at ¶ 10. We concluded the Bureau’s ex parte contacts with its outside counsel in that case clearly violated those statutory proscriptions. Id. We also concluded N.D.C.C. § 28-32-12.1(2), which allows an agency head or hearing officer to communicate with and receive aid from staff assistants if those assistants do not furnish, augment, diminish, or modify the evidence in the record, was intended to ensure staff assistance is available for the decision maker and was not intended to supersede the protections afforded by the specific provisions of N.D.C.C. § 28-32-12.1, prohibiting ex parte communications from persons who participated in an administrative hearing. Scott, at ¶ 11.

[¶ 26] Here, the ALJ issued his recommended decision on November 5, 1998. On November 13, 1998, the Board and its executive secretary, who was present at the administrative hearing before the ALJ, met and discussed the ALJ’s recommendation. The minutes of that meeting do not reflect any inappropriate ex parte communications. Rather, those minutes reflect the executive secretary suggested the Board review the record before it acted either to accept or reject the ALJ’s recommendation and “if you were entirely comfortable with his recommendations, then I would say there would be no point in ordering the transcript. But if you’re thinking that perhaps you won’t accept his recommendations, I think you should order the transcript or the whole record.” The Board then voted to review the record. Scott was decided on December 22, 1998. In January 1999, the executive secretary forwarded copies of the transcript of the administrative hearing and exhibits to Board members and informed the Board that he and counsel who represented the Board at the administrative hearing would not be available for advice about the ALJ’s recommendation. Thereafter, another assistant attorney general was appointed to advise the Board about the ALJ’s recommendation.

[¶ 27] According to an affidavit of the Board’s executive secretary, his participation was limited to procedural developments and logistical arrangements, and he did not discuss the merits of the case with any Board member while the ALJ’s recommendation was pending. According to an affidavit of counsel who represented the Board at the administrative hearing, he did not communicate with the Board about the merits of the case while the ALJ’s recommendation was pending. The record does not support Singha’s claims there were improper ex parte communications in this case. Compare Lawrence v. North Dakota Workers Comp. Bur., 2000 ND 60, ¶ 10, 608 N.W.2d 254 (stating Bureau acknowledged ex parte communications about ALJ recommendation while recommendation pending); Elshaug v. North Dakota Workers Comp. Bur., 2000 ND 42, ¶¶ 6-7, 607 N.W.2d 568 (citing documentation of ex parte communications about ALJ recommendation while recommendation pending); Scott, 1998 ND 221, ¶ 8, 587 N.W.2d 153 (stating Bureau acknowledged ex parte communications about ALJ recommendation while it was pending). We conclude any communications in this case were not impermissible ex parte contacts in violation of N.D.C.C. ch. 28-32 and Scott.

[¶ 28] Singha also argues the Board failed to provide him with notice of meetings at which the Board deliberated the ALJ’s recommendation. Singha has cited no statutory or regulatory provisions requiring the Board to notify him of its review of the ALJ’s recommendation. See Blanchard, v. North Dakota Workers Comp. Bur., 1997 ND 118, ¶20, 565 N.W.2d 485 (stating agency is not required to adopt rules for review of a hearing officer’s recommendation). We reject Sin-gha’s arguments the Board violated N.D.C.C. ch. 28-32.

VI

[¶ 29] Singha argues he should be awarded attorney fees and costs under N.D.C.C. § 28-32-21.1, because the Board denied him a medical license without substantial justification. Singha has received the attorney fees ordered in the prior appeal, and because he has not prevailed in this civil judicial proceeding, he is not entitled to any further attorney fees related to this judicial review of the Board’s decision. See Singha, 1998 ND 42, ¶ 38, 574 N.W.2d 838.

VII

[¶ 30] We affirm the judgment.

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

      . Section 43-17-18, N.D.C.C., was amended by 1997 N.D. Sess. Laws ch. 372, § 2, and now says graduates of osteopathic schools located outside the United States are not eligible for licensure in North Dakota. See Singha, 1998 ND 42, ¶ 18 n. 1, 574 N.W.2d 838.

      . Our affirmance of the Board's decision that Singha has not met the educational requirements for licensure in North Dakota is dispos-itive of this appeal, and it is not necessary for us to consider issues raised in the Board’s cross-appeal.


author: KONENKAMP, Justice. AMUNDSON, Justice

text:
    2000 SD 84
    THUNDERSTIK LODGE, INC., Harold Becker, William Becker, Charles Ross & Edwin S. Gage, Owners and Lessees, Plaintiffs and Appellees, v. Alvin REUER, Elva Reuer, and Leroy Reuer, Defendants and Appellants.
    No. 20966.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2000.
    Decided June 28, 2000.
    See also, 585 N.W.2d 819.

      Steven R. Smith of Andera & Smith Law Office, Chamberlain, SD, Attorneys for plaintiffs and appellees.
    Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, SD, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] This case presents the question whether a land lease agreement violated our statutory prohibition against agricultural leases of longer than twenty years. Thunderstik Lodge, Inc. leased agricultural land from the Reuers for hunting purposes, under an agreement providing for an initial ten-year lease, with two ten-year renewal options. Because the provisions in the lease agreement were severable, we affirm the circuit court’s ruling that although the second ten-year option was invalid, the rest of the agreement remains intact.

Facts

[¶ 2.] In February 1987, the principals of Thunderstik Lodge, Inc. placed an advertisement seeking hunting land in the Chamberlain newspaper. The Reuers (Alvin and Elva Reuer and their son, LeRoy) responded. Following considerable negotiations, with both sides represented by attorneys, a lease agreement between Thunderstik and the Reuers was signed on May 6,1988.

, [¶ 3.] The lease contains two provisions significant to this appeal. The first provision establishes the time frames the lease is in effect, providing for an initial ten year period, followed by two options to renew for an additional ten years each:

The term of this lease shall run from March 1, 1988 to February 29, 1998 (original term), both dates inclusive. The Lessor and Lessee agree that this lease may be extended for two (2) additional ten (10) year terms, the first extension term to run from March 1, 1998 to February 29, 2008, the second extension term to run from March 1, 2008 to February 29, 2018, all upon the same terms and conditions set forth in this lease, except that the annual rent for the premises shall be increased to Thirty-three Thousand Dollars ($33,000.00) for the first extension term and Thirty-six Thousand Dollars ($36,000.00) for the second extension term.

The other significant provision is the savings clause:

If any portion of this lease is held to be invalid or unenforceable, the remainder of this lease shall not be affected thereby and such remainder shall be valid and enforced to the fullest extent permitted by law.

At the same time the lease was executed, Thunderstik signed a purchase agreement, buying five acres of land from the Reuers for $1,500. Thunderstik Lodge, a “first class hunting lodge,” was constructed on this acreage.

[¶ 4.] The relationship between the parties began to deteriorate in 1996. See Thunderstik Lodge, Inc. v. Reuer, 1998 SD 110, 585 N.W.2d 819 (Thunderstik I) Le-Roy was fired from his position as a guide for the lodge, and the Reuers accused Thunderstik of illegal hunting practices on the leased land. N.W.2d at 820-21. CR 00 cn £ lO

[¶ 5.] The controversy now before us arose from the Reuers’ claim that the provisions of the contract create a thirty-year lease, void under South Dakota law. In a declaratory action, the circuit court ruled that the second of the two ten-year options was invalid, but severable, leaving the remainder of the lease intact and enforceable. The Reuers now appeal, contending (1) severance of the contract was improper; and (2) SDCL 43-32-2 mandates voiding the entire lease. Contract and statutory interpretation present questions of law reviewable de novo. State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994); Farm Credit Serv. v. First State Bank, 1998 SD 13, ¶ 6, 575 N.W.2d 250, 251.

Analysis and Decision

1. Severance of Contract

[¶ 6.] The trial court found that the second ten-year lease option was an agreement separate from both the original lease term and the first ten-year option now in effect. It also found that the second ten-year option could be severed from the rest of the lease without voiding the remaining agreement. The Reuers assert that the lease violates SDCL 43-32-2, and therefore it cannot be severed. Citing Hedges v. Dixon County, 150 U.S. 182, 192, 14 S.Ct. 71, 74, 37 L.Ed. 1044 (1893), they argue that a void instrument cannot be reformed. We believe, however, that the proper approach is to consider first whether the agreement’s terms can be severed and then move to the question of whether the lease is invalid under the statute. 1st American Systems, Inc. v. Rezatto, 311 N.W.2d 51, 56 (S.D.1981) (“so long as an illegal covenant is divisible, the remaining legal covenants are enforceable.”) (citations omitted).

[¶ 7.] Under South Dakota law, certain contracts are divisible: “Where a contract has several distinct objects, one or more of which are lawful and one or more of which are unlawful in whole or in part, the contract is void as to the latter and valid as to the rest.” SDCL 53-5-4. In Commercial Trust and Sav. Bank v. Christensen, 535 N.W.2d 853 (S.D.1995), we set forth the requirements of a severa-ble agreement: “(1) the parties’ performances must be separable into corresponding pairs of part performances and (2) the parts of each pair must be regarded as agreed equivalents.” Id. at 857 (citing E. Allen Farnsworth, Contracts, § 5.8, at 382 (2d ed 1990); Restatement (Second) of Contracts § 183 (1979)). Additionally, “the agreement must not be an integrated scheme to contravene public policy,” and “the party seeking enforcement must not have engaged in serious misconduct.” Id. at 857 n. 2. A court may divide a contract into “corresponding pairs of part performances,” and then enforce only those parts which do not “materially advance the improper purpose” of the agreement. Farnsworth, supra, § 5.8, at 381-82. See Russell Miller Milling Co. v. McLean, 48 S.D. 198, 203 N.W. 498, 499 (1925) (illegal penalty imposed under parties’ agreement was separable from rest of contract and did not render entire contract void).

[¶ 8.] In Christensen, the parties contracted to lease agricultural land. 535 N.W.2d at 855. At the time, SDCL 43-32-2 prohibited leases of agricultural land for periods longer than twenty years, just as it currently does. Id. at 856. The lease spanned ten years and included an option to buy the property, exercisable by the tenant before the lease expired. Id. at 855. When the lease had been in effect for seven years, the parties made another agreement (“Addendum”) restating the original lease terms, and giving the tenants the option to extend the original lease for an additional twenty-year period. This “Addendum” also contained the option to buy the property, stating that it could be exercised any time before the expiration of the additional twenty years. This Court concluded that there was no distinct and separate consideration to support both the option to buy and the “Addendum.” Id. at 858. Although the “Addendum” increased the purchase price by $1,000, that amount was only an additional sum to be paid for the land if the option was exercised. Therefore, the contract was not divisible, as the option was not supported by any additional consideration, and the only consideration tendered was for the lease itself.

[¶ 9.] We also addressed the question of divisibility in Mattson v. Rachetto, 1999 SD 51, 591 N.W.2d 814. There, the contract stated that the land was conveyed by warranty deed from the Mattsons to the Rachettos for the sum of $26,959.50. Id. ¶ 24, 591 N.W.2d at 819. The contract also provided that, “[f]or and in consideration of the agreement by Mattsons to sell the above-described property to Rachettos, Rachettos hereby lease to Mattsons the above-described property.” Id. The Ra-chettos argued that there were two subject matters and therefore the contract should have been severed and the void agricultural lease rescinded, leaving the rest of the contract intact. Id. ¶ 22, 591 N.W.2d at 818. We rejected this argument, as well as the assertion that each part of the contract was supported by its own consideration and was therefore divisible. Id. ¶ 25, 591 N.W.2d at 819.

[¶ 10.] Looking at the requirements for a severable agreement, as stated in Christensen, first, the obligations of the parties here can be separated into “corresponding pairs of part performances.” “[A] distinguishing mark of a divisible contract is that the consideration is not single, but can be apportioned to correspond with separate consideration offered by the other party.” Christensen, 535 N.W.2d at 857 (citation omitted). Unlike the contracts in Christensen and Mattson, the agreement here contains distinct consideration for each ten-year option. There was a separate annual rent set for each of the two corresponding extension terms: $33,000 for the first extension, and $36,000 for the second extension.

[¶ 11.] Second, each pair must be an agreed equivalent. “This means that the parts of the pair must be of roughly equivalent value.... ” Farnsworth, supra, § 5.8, at 382-83. The Reuers do not dispute that the amounts to be paid by Thunderstik in exchange for the lease of the land are agreed equivalents, nor do we find otherwise. The terms of the options were negotiated between the parties, and while the precise value of the land lease may be debatable, the amount in the contract was of “roughly equivalent value.”

[¶ 12.] Third, mindful of the limitation stated in Christensen, that “the agreement must not be an integrated scheme to contravene public policy,” the Reuers contend that the lease contravenes public policy, with little explanation other than the assertion that there was an intent to create an invalid thirty-year lease. In Sahara v. Thiede, 58 Wis.2d 489, 206 N.W.2d 129 (1973), the parties agreed that one would operate a tavern as his own business under the other’s liquor license for the remainder of the term of that license. Id. at 130. This was done to avoid the expense of obtaining a new liquor license. Although the agreement purported to be an employment contract, the parties clearly understood that it was a front for the underlying agreement. In a dispute over the terms of the lease, the court held that the right to the lease was “expressly conditioned upon his faithful performance as ‘manager’ pursuant to the illegal agreement.” Id. at 132. The court concluded that the contract “was so permeated with illegality” that it was not severable. Id. at 133. Here, the lease manifests no intrinsic scheme to violate public policy. While the Reuers contend that the intent of the parties was to create an illegal thirty-year lease on agricultural land, the core design of the agreement was to access land for hunting. None of the limitations on divisibility, therefore, apply here.

[¶ 13.] Finally, the lease agreement specifically states that should part of the contract be invalid, the rest “shall” remain in effect. This express provision that an unenforceable portion may be severed from the agreement supports our conclusion. See Whorton v. Dillingham, 202 Cal. App.3d 447, 248 Cal.Rptr. 405, 407 (1988). Because the requirements for severability have been met, and because the parties themselves anticipated possible severance, we uphold the court’s ruling that the last ten-year option was severable.

2. Invalid Lease Under SDCL 43-32-2

[¶ 14.] SDCL 43-32-2 states in part: “No lease or grant of agricultural land for a longer period than twenty years, in which shall be reserved any rent or service of any kind, shall be valid.” The Reuers contend that their lease “fits squarely within” the language of this statute: the agreement created an invalid thirty-year contractual right to lease the land.

[¶ 15.] We examined this statute, and specifically the term “agricultural land,” in Ryan v. Sioux Gun Club, 68 S.D. 345, 2 N.W.2d 681 (1942): “the statute should be construed so as not to apply to leases of land even though suitable for agriculture, when leased for a purpose other than agriculture, and exclusive of the right of agriculture.” Id. at 683. The lease here provides that the land may be used “for any legal purpose, including ... agricultural, hunting and fishing, and any other related purpose.” As agricultural use was not excluded, and in fact was specifically authorized, the statute applies to this land. See Trauger v. Helm Bros., Inc., 279 N.W.2d 406, 411-12 (N.D.1979) (under a substantially similar statute, if lease is fairly interpreted to limit use of land to nonagricultural purposes, lease violating time limit not invalid).

[¶16.] Contracts are construed to carry out “valid contractual relations” rather than interpreted to render them invalid or impossible to perform. Kuhfeld v. Kuhfeld, 292 N.W.2d 312, 315 (S.D.1980) (citations omitted). Our review of the contract shows that the parties intended to create a lease agreement with options to renew for two separate ten-year periods. Leaving the second ten-year option intact would make the entire lease invalid, but as we have just determined, it may be severed from the contract. Therefore, while this is an agricultural lease in which rent or services are reserved, the term is not of a length prohibited by the statute after the second ten-year option is severed.

[¶ 17.] The Reuers point to -the structure of the statute, emphasizing that it states “[n]o lease ... for a period of longer than twenty years, shall be valid.” This they compare to other states’ restrictions, such as Iowa’s, which provides: “No lease or grant of agricultural lands, reserving any rent, or service of any kind, shall be valid for a longer period than twenty years.” Iowa Const, art. I, § 24. They argue that under the language of Iowa’s restriction, if a lease is structured to run for longer than the time allowed, the excess may be severed, bringing the lease into conformance. South Dakota’s statute, on the other hand, appears to require that any lease purporting to exceed twenty years is unconditionally invalid. While there is some merit to this interpretation under Christensen, 535 N.W.2d at 857-58, we need not reach it because of our disposition on the issue of severance.

[¶ 18.] As stated in Ryan, “[o]ur statute ... undoubtedly found its source in New York, which had a constitutional provision dating back to the Constitution of 1846, and identical in language except that the period fixed is twelve years instead of ten.” Ryan, 2 N.W.2d at 682 (.noting that South Dakota’s prohibition at the time was for periods longer than ten years). In Parthey v. Beyer, 228 A.D. 308, 238 N.Y.S. 412 (1930), the parties had a five year agricultural land lease, and later created another lease on the same property, to take effect when the original lease expired. The second lease provided for a $25 per month increase in rent, and gave the lessee the option to buy the property within three years. Id. at 414. New York’s Constitution, art. 1, sec. 13 stated: “No lease or grant of agricultural land for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.” Id. at 413. The court held that the entire second agreement, including the option to buy, was invalid, but the original lease was valid because its terms did not violate the state’s constitution. Id. at 415.

[¶ 19.] We hold that the second ten-year renewal period may be severed from the agreement, and that the original lease period, as well as the first ten-year renewal period, do not violate our prohibition against leases of agricultural land for longer than twenty years. See Rezatto, 311 N.W.2d at 56.

[¶ 20.] Affirmed.

[¶ 21.] MILLER, Chief Justice, and SABERS and GILBERTSON, Justices, concur.

[¶ 22.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 23.] I respectfully dissent.

[¶ 24.] In this case, we are faced with a determination of whether a ten-year lease and a subsequently drafted option for two additional ten-year periods violates SDCL 43-32-2 which prohibits agricultural leases for a period greater than twenty years.

[¶ 25.] “An option to renew a lease is a unilateral contract under which the lessee retains an irrevocable right to extend the lease during the option period.” See Norton v. McCaskill, 12 S.W.3d 789, 792 (Tenn.2000) (citations omitted). Further, “[w]hen an individual grants an option he ties up his rights and property for a specified period of time without binding the other side.” Cotter v. James L. Tapp Co., 267 S.C. 647, 230 S.E.2d 715, 719 (1976).

[¶ 26.] In the present case, it is clear that Reuers granted, in addition to the original ten-year lease, two ten-year options. Reuers, in essence, have contractually tied up their property for a total period of thirty years. Thunderstik Lodge has an irrevocable right to extend its lease for the full thirty years. A problem arises, however, because SDCL 43-32-2 does not allow this type of lease to extend longer than twenty years.

[¶ 27.] The majority opinion argues that the lease is not void for violating SDCL 43-32-2 because the agreement is severa-ble. While the majority correctly notes the requirements for determining sever-ability of an agreement under Commercial Trust & Savings v. Christensen, 535 N.W.2d 853 (S.D.1995), I do not agree that this lease is severable.

[¶ 28.] An essential element in determining severability is that the lease can not manifest an “intrinsic scheme to violate public policy.” The majority argues that no intrinsic scheme to violate public policy existed and that the “core design of the agreement was to access land for hunting.” In Christensen, we held “ ‘[a] contract should be considered as a whole and all of its parts and provisions will be examined to determine the meaning of any part .’ ” 535 N.W.2d at 854 (quoting Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 151-52 (S.D.1986) (quotation omitted)). An examination of this contract shows that the “core design” was to tie up the property for thirty years through the use of two unilateral ten-year options inserted at the request of Thunderstik. Thunderstik has an irrevocable right to extend its lease, through the exercise of the two options, for a period of thirty years. This is undoubtedly a clear violation of SDCL 43-32-2. I would find that the second ten-year renewal option is not severable and the entire lease is void for violating our prohibition of such leases extending for longer than twenty years. To hold otherwise would be to allow scriveners off the hook for intentionally circumventing the laws of this state through artful drafting.

      . In Thunderstik I, we held that the parties were required to arbitrate, and that a violation of the Migratory Bird Treaty Act was not a material breach of the lease.

      . The Reuers assert that the employment contract between LeRoy and Thunderstik was a part of the bargained-for agreement. As they fail to support the argument, however, we decline to discuss it.


author: PER CURIAM.

text:
    2000 SD 88
    Jeremy R. HOEFT, Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee,
    No. 21236.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided July 12, 2000.

      Nichole A. Carper of Minnehaha County Public Defender, Sioux Falls, Attorney for appellant.
    Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, Attorneys for appellee.
   PER CURIAM.

[¶ 1.] Jeremy Ronald Hoeft appeals from the circuit court order affirming the Board of Pardons and Paroles’ decision setting his parole/release eligibility date. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Hoeft was sentenced on February 5, 1992 to two equal indeterminate sentences of seven to twelve years, for burglary and aggravated assault. He was received at the penitentiary on February 24, 1992. The Board of Pardons and Paroles set his indeterminate sentences at ten years. On January 29, 1993, the sentencing court amended the sentences to ten years each, to be served concurrently, with four years suspended.

[¶ 3.] Hoeft was released on suspended sentence supervision on December 8, 1995. He returned to the penitentiary August 12, 1997 after committing the crime of passing a no account check. His suspended sentence was revoked on September 5, 1997 and the four years were added to his sentence. He was given credit for actual time served but lost one year, six months and three days of accrued street time. On October 21, 1997 he pled guilty to the crime of no account check and was sentenced to serve five years, with two years suspended, to run concurrently with the two ten-year sentences. He was informed of a parole/release eligibility date of October 22,1998 from all three sentences.

[¶ 4.] Hoeft was later advised his parole/release eligibility date had changed to May of 1999. He petitioned for a date correction and appeared before the Board of Pardons and Paroles at a hearing on February 26, 1999. The Board denied the petition. His appeal to the circuit court was affirmed. Hoeft appeals to this Court and we affirm.

ANALYSIS AND DECISION

[¶ 5.] To decide this appeal we examine SDCL 24-15A-18:

In the determination of an inmates’ initial parole date, two or more convictions arising from the same transaction, for which the sentences are -made to run concurrently, shall be considered as one conviction. Two or more sentences arising from different transactions for which the sentences are made to run concurrently shall be considered as separate convictions. The first parole date shall be figured on the concurrent sentence with the longest time to serve to parole. If there are different transactions with at least one occurring prior to July 1, 1996, and at least one occurring on or after July 1, 1996, the inmate shall be subject to parole provisions effective at the time of the offense with the longest time to parole eligibility or initial parole. (emphasis added).

[¶ 6.] Hoeft is serving time under three sentences. On February 5, 1992 he was given two indeterminate sentences, later set by the Board of Pardons and Paroles at ten years each in October 1992. The trial court then reduced Hoeft’s sentences to ten years with four years suspended, both to run concurrently. Hoeft was released on suspended sentence status on December 8,1995.

[¶ 7.] Hoeft’s third sentence is for committing the crime of passing a no account check on August 10, 1997. This offense resulted in his return to the penitentiary and revocation of his suspended sentence. The ten-year sentences were imposed with credit for time served but loss of street time of one year, six months, and three days. He was sentenced on the no account conviction on October 21, 1997 to five years with two years suspended. This sentence was to be served concurrently with the ten-year sentences.

[¶ 8.] The Board of Pardons and Paroles calculated that under the two ten-year “old system” sentences, as a second felony, Hoeft’s time to parole eligibility is two years, five months, and seven days. Under the 1997 conviction, Hoeft is required to serve forty percent of three years, which the Board computed to be one year, two months, and twelve days, before his initial parole date. The Board found that Hoeft’s older sentences carried the longer time to parole than his new sentence and therefore found, pursuant to SDCL 24-15A-18, that they controlled his parole eligibility release date. Specifically, the Board stated in its findings of fact that its calculation was made “based upon the longest time, not on which date on the calendar is later.” This decision comports with the plain language of the statute. Hoeft is subject to the parole provisions effective in 1992: “the time of the offense with the longest time to parole eligibility or initial parole.” SDCL 24-15A-18. See SDCL 24-15-5(2); 24-15-6.

[¶ 9.] Hoeft was serving sentences under both the old and the new parole systems. SDCL 24-15A-18 fixes parole eligibility dates for such persons. We will not construe a statute to arrive , at a strained, impractical, or illogical conclusion. Brim v. S.D. Board of Pardons and Paroles, 1997 SD 48, ¶ 17, 563 N.W.2d 812, 816. Committing a crime subject to the new parole laws will not earn Hoeft an earlier release ■ date. Giving great weight to the findings made by the Board on the questions of fact, and determining that the statute has been applied correctly and in accord with its plain language, we affirm.

[¶ 10.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

       Hoeft was released on parole from the penitentiary February 15, 2000. We issued an order to show cause why the appeal should not be dismissed as moot. After considering written responses from both parties, we determined the appeal would go forward because determination of this issue will affect other inmates similarly situated. See Rabenberg v. Rigney, 1999 SD 71, ¶2, 597 N.W.2d 424, 425, n. 2 (appeal not moot because of importance of issues presented); Sedlacek v. South Dakota Teener Baseball, 437 N.W.2d 866 (S.D. 1989).