author: PETERSON, Judge.

text:
    In the Matter of the WELFARE OF J.W.L., Child.
    No. A06-863.
    Court of Appeals of Minnesota.
    June 5, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Sarah A. McGee, Mark N. Lystig, Assistant County Attorneys, St. Paul, MN, for respondent State of Minnesota.
    John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, Gregory Scanlon, Certified Student Attorney, Minneapolis, MN, for appellant J.W.L.
    Considered and decided by LANSING, Presiding Judge; PETERSON, Judge; and CRIPPEN, Judge.

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

   OPINION

PETERSON, Judge.

This appeal is from a denial of a motion to suppress photographs of graffiti taken by a police officer who discovered the graffiti while searching a home during an emergency. Appellant argues that taking the photographs constituted a seizure and, therefore, because (1) the officer could not remain in the home to take the photographs after finding no emergency in the home and (2) the officer did not have probable cause to believe that a crime had been committed, taking the photographs violated appellant’s right to be secure against unreasonable searches and seizures. Because the state has not identified an exception to the warrant requirement that permitted the officer to take the photographs, the district court erred in not suppressing the photographs, and we reverse.

FACTS

On July 17, 2005, someone made a 911 call from a residence in St. Paul and hung up. The dispatcher made a routine callback, and there was no answer. As part of the standard protocol for responding to a hang-up call, two St. Paul police officers were dispatched to the residence. The officers knocked on the front door of the residence, and no one answered. The officers walked to the back of the house and found a door open. The officers called out to announce their presence and that they were going to enter the house. Nobody answered, and the officers entered the house and checked all of the rooms that they could in order to make sure that everybody was safe and secure. While searching the house, one of the officers found a bedroom in which the ceiling, walls, door frame, closet, and furniture were covered with graffiti. The officer went to his squad car to retrieve a camera and then returned to the bedroom and took seven photographs of the graffiti. The officer who took the photographs acknowledged that when he took them, no crime had been committed, and he testified that “the pictures weren’t taken for evi-dentiary purposes of a crime being committed, they were for information only.” The officer wrote an informational report and turned the photographs over to a graffiti investigator in the St. Paul Police Department.

About two weeks later, the graffiti investigator received a report about graffiti incidents that occurred at multiple businesses in the vicinity of Snelling Avenue and Minnehaha Avenue around July 29 and July 30, 2005. The investigator later received a report about a graffiti incident that occurred in the St. Anthony Park neighborhood around August 11 and August 12, 2005. The graffiti in both incidents included a distinctive design, or “tag,” that was also included in the graffiti in the photographs taken during the search of the residence on July 17. Using the photographs, the graffiti investigator was able to connect appellant J.W.L. to the two graffiti incidents.

After further investigation, J.W.L. was charged by delinquency petition with criminal damage to property in violation of Minn.Stat. § 609.595, subd. 1(3) (2004), for each of the two incidents. Appellant moved to suppress the photographs that the police had taken during the July 17 search. The motion was denied, and the case was presented to the juvenile court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980), thereby reserving J.W.L.’s right to challenge the denial of his motion to suppress the photographs. The juvenile court determined that J.W.L. was guilty, stayed adjudication, and ordered J.W.L. to pay restitution. This appeal challenging the denial of the suppression motion and the determination of J.W.L.’s guilt followed.

ISSUE

Are photographs of graffiti discovered in plain view inside a home when a police officer entered and searched the home to make sure that everybody in the home was safe and secure admissible as evidence in a prosecution for offenses that occurred after the officer took the photographs?

ANALYSIS

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution guarantee individuals the right to be secure against unreasonable searches and seizures. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). But the warrant requirement is subject to certain limited exceptions, and law-enforcement officers, in pursuing a community-caretak-ing function, “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Brigham City v. Stuart, — U.S. -, -, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006); see State v. Lemieux, 726 N.W.2d 783, 787-90 (Minn.2007) (addressing community-caretaking function and emergency-aid search).

J.W.L. does not dispute that the officers’ initial entry into the home and their search of the home to make sure that everybody was safe and secure were justified under the emergency-aid exception to the warrant requirement. J.W.L. argues, however, that after verifying that no emergency existed, the officers no longer had a legitimate basis for remaining in the home, and the officer violated J.W.L.’s Fourth Amendment rights by taking photographs of the graffiti.

The state contends that the argument that the police were not properly in the home when the photographs were taken was waived in the district court when, in response to a question from the court, J.W.L.’s counsel stated, “[M]y argument has never been whether [the officer] had a right to be there. My question is whether he had a right to seize it, a seizure of goods or evidence from a place that he had a right to be in but where no crime had been committed.”

We do not agree that this statement establishes waiver of the argument that the police were not properly in the house when the photographs were taken. In the district court, J.W.L.’s counsel acknowledged that the police had the right to enter the house and search it to check on the well-being of anybody in it. Counsel then said:

That is not the issue. The issue is once they find that no crime has taken place, that no crime — that nobody is injured in this particular situation, that the well-being of anybody that might be in the home has been taken care of, and since there was nobody in the home it would be their obligation at that time to then leave.

This statement expresses the argument that upon learning that there was no one in the home who needed assistance, the police needed to leave. Therefore, the argument was not waived. But this argument does not address the sequence of events that actually occurred in this case. The police did not learn that there was no one in the home who needed assistance before they discovered the graffiti; they discovered the graffiti in plain view while searching the home to determine whether anybody needed assistance. Consequently, the issue that we must decide is whether J.W.L.’s right to be secure against unreasonable searches and seizures was violated when the officer photographed the graffiti discovered in plain view while the officer was in the house under the emergency-aid exception to the warrant requirement.

J.W.L. argued in the district court that even though the graffiti was in plain view, taking photographs of the graffiti was an impermissible seizure because the graffiti’s incriminating nature was not immediately apparent. This argument is based on the plain-view exception to the warrant requirement, which makes evidence that the police seize after discovering it in plain view admissible under certain circumstances. Under this exception, evidence is admissible when it was “in plain view, there was a prior justification for an intrusion, the discovery was inadvertent, and there was probable cause to believe that the items seized were immediately apparent evidence of crime.” State v. Bradford, 618 N.W.2d 782, 795 (Minn.2000) (quotation omitted).

The district court determined that there was not an impermissible seizure because photographing the graffiti did not constitute a seizure. The court explained:

When the police officers arrived the graffiti was on the wall and when they left, the graffiti was still on the wall. The officers did not take the graffiti or part of the wall from JWL, and they simply recorded what they saw through the use of a Polaroid camera. There was no seizure which would trigger a Fourth Amendment warrant requirement.

The district court also cited State v. Fulford, 290 Minn. 236, 187 N.W.2d 270 (1971), for the principle that when police are where they have a legal right to be, they may photograph the area that is in plain view. In Fulford, police who were summoned to an apartment building found an injured man seated, hunched over, on the stair landing of the second floor. Id. at 237, 187 N.W.2d at 272. The officers went to the defendant’s room on the third floor, asked to be let in, and after being told to get a passkey, kicked in the door and entered the room. Id. The defendant was searched and arrested, and an 8-inch knife was found during the search of a coat that was hanging over a chair in close proximity to the defendant. Id. When the police arrested the defendant, they also took photographs of his room. Id. at 238, 187 N.W.2d at 272.

The defendant was convicted of second-degree murder. Id. at 237, 187 N.W.2d at 272. In an appeal from his conviction, the defendant asserted that the photographs of his room were inadmissible, and without any analysis, the supreme court concluded that

it is apparent from the evidence that no search and seizure was involved in the instant case. Since the police officers were validly in the room, they could properly view everything in plain sight in that room. State v. Clifford, 273 Minn. 249, 141 N.W.2d 124; State v. Kotka, 277 Minn. 331, 152 N.W.2d 445, certiorari denied, 389 U.S. 1056, 88 S.Ct. 806, 19 L.Ed.2d 853; State v. Huffstutler, 269 Minn. 153, 130 N.W.2d 347. If the officers could validly view the inside of the room at all, they could validly photograph that which was in plain sight, and the photographs were properly admitted in evidence.

Id. at 240, 187 N.W.2d at 273.

Like the district court, this court may not disregard a decision of the supreme court, and the supreme court decided in Fulford that photographing that which is in plain sight is not a seizure. But after the district court rendered its decision in this case, the supreme court released its opinion in State v. Lemieux, 726 N.W.2d 783, which addresses the permissible scope of a search of a residence under the emergency-aid exception to the warrant requirement and leads us to conclude that even if no seizure occurred when the officer photographed the graffiti, the photographs of the graffiti are not admissible under the emergency-aid exception to the warrant requirement.

In Lemieux, police officers who went to a home during the course of a murder investigation saw as they approached the front of the home that the screen on the window to the right side of the door had been torn loose, the window had been pushed up, and the door was slightly open. 726 N.W.2d at 785. The officers also heard music playing inside, and a CD sounded like it was skipping. Id. One of the officers pounded on the door loudly enough to be heard over the music, and another officer shouted the name of the woman who lived in the home and called for her to open the door. Id. Meanwhile, a neighbor stepped out and told an officer that he had heard someone singing inside the home that night. Id. The officers became concerned that a burglary had occurred, and after calling the officer in charge of the murder investigation to report what they had observed, the officers were told to do a “health and welfare” check for possible injured occupants. Id.

Officers entered the home, and while conducting a sweep search, an officer saw the murder victim’s electronic-benefit-transfer card in plain view. Id. at 785-86. After the sweep search, the home was secured, and a search warrant was obtained. Id. at 786. During the execution of the search warrant, police found blood smears that matched the murder victim’s DNA profile, miscellaneous items that belonged to the victim, and an envelope with the victim’s fingerprint. Id.

Lemieux was indicted for murder, and before trial, he moved to suppress the evidence discovered during the warrant-less sweep search and all evidence derived from that search. Id. at 786-87. The district court concluded that the warrant-less entry was justified under the emergency-aid exception to the warrant requirement and denied the motion. Id. at 787. On appeal from the judgment of conviction, Lemieux challenged the admission of the evidence derived from the war-rantless sweep search. Id.

In addressing this challenge, the supreme court explained the test for determining whether an emergency justified a warrantless entry and then stated:

“But a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation’.... ” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Any search of a residence following a war-rantless entry must be “limited by the type of emergency involved. It cannot be used as the occasion for a general voyage of discovery unrelated to the purpose of the entry.” United States v. Moss, 963 F.2d 673, 678 (4th Cir.1992) (holding that even if original entry of cabin had been justified under the emergency-aid exception, search of defendant’s backpack for identification was unreasonable).

Id. at 788 (omission in original).

The supreme court determined that the search was “limited to the scope of the emergency, sweep-searching the floors for the presence of intruders or injured occupants and departing immediately upon finding the residence unoccupied,” and held that the police entry of the home “was justified under the emergency-aid exception to the warrant requirement because the officers had reasonable grounds to believe that a burglary was in progress or had recently occurred, the entry was motivated primarily to look for possible victims, and the scope of the search was limited to the emergency.” Id. at 790 (emphasis added).

Because the scope of an emergency-aid search must be limited to the scope of the emergency, the district court’s determination that “[tjhere was no seizure which would trigger a Fourth Amendment warrant requirement” did not fully address the limitations on the officer’s authority to photograph the graffiti during the search. Even if there was no seizure, the photographs were taken while the officers were in the house without a warrant, and they were later used as evidence against J.W.L. Photographing the graffiti was police conduct during an emergency-aid search of a home, and as the supreme court explained in Lemieux, an emergency-aid search of a home following a warrantless entry must be limited by the type of emergency involved. Therefore, the Fourth Amendment warrant requirement would be triggered if taking the photographs during the emergency-aid search exceeded the scope of the emergency.

The emergency involved in the officers’ warrantless entry into the home where the graffiti was found was a 911 hang-up call that raised concerns that somebody in the home might need assistance, and the officers entered the home in order to make sure that everybody was safe and secure. Taking photographs of the graffiti was not related to this emergency in any way and, therefore, exceeded the scope of the permissible emergency-aid search and was not permitted under the emergency-aid exception to the warrant requirement.

After determining that photographing the graffiti was not a seizure that would trigger a warrant requirement, the district court also considered whether taking the photographs was permissible even if it were a seizure. The district court concluded that because the graffiti was in plain view and it was reasonable for the officer to believe that the graffiti was the cause of the 911 call, there was probable cause to believe that the graffiti was useful as evidence of a crime, which permitted the officer to photograph the graffiti.

Under the “plain view” exception to the warrant requirement, the police may, without a warrant, seize an object they believe to be the fruit or instrumentality of a crime, provided: (1) the police are legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object’s incriminating nature is immediately apparent.

State v. Zanter, 535 N.W.2d 624, 631 (Minn.1995) (quotation omitted).

When an object revealed in plain view gives probable cause to believe that a crime has been committed, the object’s incriminating character is immediately apparent and a warrantless seizure is justified. In re Welfare of G.M., 560 N.W.2d 687, 693 (Minn.1997); see also Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987) (probable cause required in order to invoke plain-view doctrine; reasonable suspicion is insufficient). “Probable cause exists where ‘the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of crime.’ ” State v. DeWald, 463 N.W.2d 741, 747 (Minn.1990) (alteration in original) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)).

The facts available to the officer when he photographed the graffiti were that in a home where a 911 hang-up call was made, there was a bedroom with the ceiling, walls, door frame, closet, and furniture covered with graffiti. While these facts were unusual, we disagree with the district court that they were sufficient to establish probable cause. Unlike Fulford, the photographs were not taken at the scene of an arrest. Without any evidence that the graffiti was not authorized by an occupant of the home, a person of reasonable caution would not be warranted in believing that the graffiti was evidence of a crime. In fact, the officer who took the pictures testified that when he took them, no crime had been committed, the graffiti was of interest to him because it told him that somebody was practicing to write someplace else, and he took the pictures for information only, not for evidentiary purposes. Therefore, because there was not probable cause to believe that a crime had been committed at the time the photographs were taken, a warrantless seizure was not justified under the plain-view exception to the warrant requirement.

“It is established that evidence discovered by exploiting previous illegal conduct is inadmissible.” State v. Olson, 634 N.W.2d 224, 229 (Minn.App.2001) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)), review denied (Minn. Dec. 11, 2001). Evidence that is obtained by the exploitation of illegal actions by law enforcement must be suppressed. Wong Sun, 83 S.Ct. 407, 371 U.S. at 487-88, 83 S.Ct. at 417. Thus, the evidence obtained by using the photographs of the graffiti to link J.W.L. to the later graffiti incidents is inadmissible, and there is insufficient evidence to support the determination of J.W.L.’s guilt.

DECISION

Because photographing the graffiti was not related to the emergency that permitted the officers to enter the home without a warrant, photographing the graffiti was not permitted under the emergency-aid exception to the warrant requirement. Because the facts available to the officer when he photographed the graffiti did not establish probable cause to believe that a crime had been committed, photographing the graffiti was not permitted under the plain-view exception to the warrant requirement. Because the officer photographed the graffiti after entering the home without a warrant and the state has not identified an exception to the warrant requirement that permitted the officer to take the photographs, the district court erred in not suppressing the photographs, and we reverse the denial of J.W.L.’s motion to suppress the photographs and the determination of J.W.L.’s guilt.

Reversed.

      . The state argues that it does not matter that J.W.L.'s crimes did not occur until weeks after the photographs were taken, so long as the officer thought that he was seizing evidence of an existing crime. But this argument ignores the requirement that facts available to the officer when the photographs were taken must establish probable cause to believe that a crime has been committed. Time has shown that the officer's suspicion that somebody was practicing to write someplace else was warranted. However, the officer's suspicion is insufficient to permit the officer to seize evidence in plain view in anticipation of a crime.


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    Margaret JOHNSON, Appellant, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Respondent.
    No. A06-1478.
    Court of Appeals of Minnesota.
    June 5, 2007.

      Amanda M. Furth, Scott A. Teplinsky, Katz, Manka, Teplinsky, Due & Sobol, Minneapolis, MN, for appellant.
    Paul C. Peterson, William L. Davidson, Matthew S. Frantzen, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and WORKE, Judge.
   OPINION

STONEBURNER, Judge.

Appellant, an insured under a fire-insurance policy issued by respondent, challenges summary judgment dismissing her claim for fire-loss damages. Appellant acknowledges that her claim for damages is barred by the two-year limitation contained in the policy, but she argues that (1) she sufficiently pleaded a claim to enforce the appraisal clause in the policy and that (2) the district court erred by dismissing her motion to compel enforcement of the appraisal clause in the policy because appraisal is a non-judicial proceeding not barred by the limitation on suits or actions. We affirm.

FACTS

Appellant Margaret Johnson insured real and personal property against fire loss under a policy issued by respondent Mutual Service Casualty Insurance Company (MSI). The property was damaged by fire, and a dispute developed between Johnson and MSI over the amount of the loss.

The policy contained an appraisal clause, mandated by MinmStat. § 65A.01, subd. 3 (2006). Appraisal is a non-judicial method to resolve disputes over the amount of a loss. The policy also contained a statutorily mandated two-year limitation, which began to run from the date of the loss, barring any “action” for recovery under the policy. Three months after the limitation period expired, Johnson first demanded appraisal. MSI declined to participate in appraisal and continued to deny Johnson’s claim for additional damages.

Subsequently, Johnson sued MSI for damages and “[f]or such other and further [relief] as the court deems just and equitable.” In its answer, MSI asserted, among other affirmative defenses, that Johnson’s lawsuit was barred by the two-year limitation in the policy mandated by Minn.Stat. § 65A.01, subd. 3.

MSI moved for summary judgment. One day later, Johnson again demanded that MSI choose an appraiser. MSI again refused to participate in appraisal, claiming that Johnson’s first demand for appraisal was made after the limitation period expired and that Johnson had not complied with the policy provisions regarding inspections. MSI “provisionally” appointed an appraiser in case the district court denied its summary-judgment motion. Johnson then moved the district court to stay legal proceedings and compel appraisal. She asserted that although the two-year limitation barred her action for damages, it did not apply to a demand for appraisal, which is not an “action.”

The district court granted MSI’s motion for summary judgment and denied Johnson’s motion to compel appraisal, concluding that Johnson’s action was solely for damages and therefore barred by the statutorily mandated limitation on suits or actions on the policy. The district court did not address Johnson’s argument that appraisal is not governed by the two-year limitation. This appeal followed.

ISSUES

I. Did Johnson’s pleadings assert a claim for appraisal?

II. Is the statutorily mandated appraisal provision in MSI’s fire insurance policy subject to the two-year limitation on “any action” for recovery under the policy?

ANALYSIS

On appeal from summary judgment, we ask: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

We first address whether Johnson’s failure to explicitly assert a claim for appraisal in the complaint or to move to amend the complaint to assert such a claim precludes our consideration of her claim for appraisal. “A pleading which sets forth a claim for relief ... shall contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ. P. 8.01. A specific legal theory does not need to be stated if the pleadings contain factual notice of the claim and a request for relief. Padco, Inc. v. Kinney & Lange, 444 N.W.2d 889, 891 (Minn.App.1989), review denied (Minn. Nov. 15, 1989).

Johnson acknowledges that the complaint is for damages, but she asserts that although her complaint does not mention appraisal or refer to the appraisal provision in the policy, the prayer “for such other and further [relief] as the court deems just and equitable” was sufficient to put MSI on notice of a demand for appraisal. We disagree and conclude that the district court did not err in holding that the complaint asserted only a claim for damages and did not give MSI notice of Johnson’s intent to assert a demand for appraisal. But we further conclude that Johnson’s motion for an order to stay the court proceedings and to compel appraisal was sufficient notice to MSI to permit the issue to be addressed on the merits on appeal. Although generally we will not consider issues that were not decided by the district court, Johnson’s argument that her demand for appraisal was not barred by the two-year limitation on suits or actions was fully briefed and argued to the district court and involves only questions of law. Therefore, in the interest of justice and judicial economy, we elect to address the claim. See Minn. R. Civ.App. P. 103.04 (providing that this court has discretion to address any issue as justice requires).

II.

Next, we address whether Johnson’s demand for appraisal was barred by the two-year limitation in the policy. Interpretation of an insurance policy and statutory language are questions of law which we review de novo. Nathe Bros., Inc. v. Am. Nat. Fire Ins. Co., 615 N.W.2d 341, 344 (Minn.2000). When the language in an insurance policy is clear and unambiguous, it must be given its usual and accepted meaning. Wanzek Constr. Inc., v. Employers Ins. of Wausau, 679 N.W.2d 322, 324 (Minn.2004). “[WJhen interpreting an insurance policy, we will avoid an interpretation that will forfeit the rights of the insured under the policy, unless such an intent is manifest in clear and unambiguous language.” Nathe, 615 N.W.2d at 344 (quotation omitted).

The Minnesota Standard Fire Insurance Policy sets out a number of provisions that must be included in all fire-insurance policies issued for Minnesota property, including the provision that “[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy have been complied with, and unless commenced within two years after. inception of the loss.” Minn.Stat. § 65A.01, subd. 3 (2006). As mandated, the MSI policy provides, in relevant part:

No one may bring a legal action against [MSI] under this Coverage Part unless:
1. There has been full compliance with all of the terms of this Coverage Part; and
2. The action is brought within 2 years after the date on which the direct physical loss or damage occurred.

The Minnesota Standard Fire Insurance Policy also mandates appraisal to resolve disputes over the amount of loss. Minn. Stat. § 65A.01, subd. 3. The MSI policy therefore provides:

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.
If there is an appraisal, we will still retain our right to deny the claim.

Johnson argues that the two-year limitation in the MSI policy does not apply to her demand for appraisal, because appraisal, like arbitration, is not a “legal action” for recovery under the policy. Johnson asserts that her demand for appraisal is similar to an agreement to arbitrate that is governed by the six-year statute of limitations in Minn.Stat. § 541.05, subd. 1(1) (2006), which governs actions on a contract where “no other limitation is expressly prescribed.”

We previously considered the application of a two-year limitation to a provision for appraisal in a policy insuring against wind damage. Vaubel Farms, Inc. v. Shelby Farmers Mut., 679 N.W.2d 407, 411-12 (Minn.App.2004). The policy covering Vaubel Farms contained a two-year-from-the-date-of-loss limitation on any “suit” under the policy. Id. at 409-10. The policy also contained a clause that described an appraisal process nearly identical to the appraisal process in Minn.Stat. § 65A.01, subd. 3, and MSI’s policy, except that the clause in the policy covering Vaubel Farms was titled “Arbitration.” Id. at 409. Vau-bel Farms moved the district court to compel arbitration nearly three years after the date of the loss. Id. at 410. The insurer moved for summary judgment, claiming the “suit” was barred by the two-year limitation. Id. The insurer argued that the policy did not provide for arbitration, notwithstanding the use of that term in the policy, but only for appraisal, which could not be pursued after the two-year limitation period had expired. Id.

The district court held that the policy was ambiguous, and the ambiguity should be construed against the insurer. Id. The district court appointed an appraiser/arbitrator. Id. The parties proceeded to arbitration, and Vaubel Farms received an award that was confirmed by the district court. Id. The insurer appealed, arguing that the district court erred in determining that the policy provided for arbitration and that Vaubel Farms’s motion to compel appraisal was not barred by the two-year limitation. Id. at 410-11.

We affirmed, concurring with the district court that the policy language created an ambiguity and “should be construed according to what a reasonable person in the position of the insured would have understood the words to mean rather than what the insurer intended the language to mean.” Id. at 411. Specifically, we held that use of the terms “arbitration” and “award” in the provision describing appraisal created ambiguity and a reasonable expectation on the part of an insured that the provision was an arbitration agreement governed by the Uniform Arbitration Act, Minn.Stat. §§ 572.08-572.30 (2002). Id.

We adopted a definition of “suit” as “any proceeding by a party or parties against another in a court of law ” and noted that an “action” is “confined to judicial proceedings.” Id. at 411-12 (quotations omitted). We stated that “[ajrbitration ... is an adjudicative process carried out outside the established tribunals of justice.” Id. at 412. And we concluded that “[bjecause ‘suit’ does not include ‘arbitration,’ ” the insurer could not invoke the two-year limit on suits against Vaubel Farms’s claim for arbitration. Id.

Although Vaubel Farms is similar to the case before us, it is distinguishable and does not compel the conclusion that the statutorily mandated appraisal language in MSI’s policy could be reasonably interpreted to provide for arbitration that could be demanded outside of the two-year limitation on actions for recovery under the policy. Unlike the policy in Vaubel Farms, MSI’s appraisal provision is not titled “arbitration” and does not include the term “award.” Additionally, MSI’s policy specifically provides that even if there is a determination of the amount of the loss through appraisal, MSI retains the right to deny a claim. The MSI policy therefore does not contain ambiguous language that would lead a reasonable insured to conclude that the policy contains an agreement to arbitrate MSI’s liability under the policy.

Johnson acknowledges the distinctions between the policy involved in Vaubel Farms and MSI’s policy and acknowledges that appraisal under MSI’s policy does not determine MSI’s liability under the policy. Nonetheless, she argues that because several cases have used the terms “arbitration” and “appraisal” interchangeably when discussing the appraisal provision mandated by Minn.Stat. § 65A.01, subd. 3, appraisal is the equivalent of arbitration and is governed by the Uniform Arbitration Act. We acknowledge that the terms have often been used interchangeably. See, e.g., Boston Ins. Co. v. A.H. Jacobson Co., 226 Minn. 479, 481, 33 N.W.2d 602, 604 (1948) (stating that the “[fjailure or inability of the parties to agree as to the amount of the loss conditions the right to an appraisement or arbitration”); Kavli v. Eagle Star Ins. Co., 206 Minn. 360, 364-66, 288 N.W. 723, 725-27 (1939) (upholding district court’s authority to appoint an umpire and, referring to the appraisal process, stating that “[t]he purpose of arbitration is to provide a plain, speedy, inexpensive, and just determination of the extent of the loss”); Glidden Co. v. Retail Hardware Mut. Fire Ins. Co. of Minn., 181 Minn. 518, 523, 233 N.W. 310, 312 (1930) (stating, “[w]e have referred often to the policy arbitration or appraisal as in the nature of a common law arbitration”), overruled on other grounds by Park Const. Co. v. Indep. Sch. Dist. No. 32, 209 Minn. 182, 186-87, 296 N.W. 475, 478 (1941). Additionally, in a case involving a dispute over the amount of loss from storm damage under a commercial insurance policy, we stated that “the arbitration statute ... governs the decision of the appraisers, and therefore, the appraisers had the authority to award prejudgment interest.” David A. Brooks Enters., Inc. v. First Sys. Agencies, 370 N.W.2d 434, 435 (Minn.App.1985). But none of these cases involved the issue of whether appraisal is governed by the two-year limitation on actions for recovery under the policy.

It is well settled that appraisal does not determine liability under a policy. Liability depends on a judicial determination. Mork v. Eureka-Security Fire & Marine Ins. Co., 230 Minn. 382, 384, 42 N.W.2d 33, 35 (1950) (holding that appraisers’ finding that loss was not covered under the policy was not within their province, was a decision on a question of law, and was not final); Glidden, 181 Minn, at 522, 233 N.W. at 312 (stating that appraisal “does not determine liability but only the amount of the loss”); Itasca Paper Co. v. Niagara Fire Ins. Co., 175 Minn. 73, 79, 220 N.W. 425, 427 (1928) (stating that an appraisal award “does not preclude the insurer from subsequently having its liability on the policy judicially determined”). Therefore, even if Johnson succeeded in determining the amount of the loss through appraisal, she would have to bring an action to determine MSI’s liability, and she concedes such an action is barred by the limitation on actions contained in the policy.

We hold that the statutorily required appraisal provision is not an agreement to arbitrate governed by the Uniform Arbitration Act, and the appraisal provision is governed by the two-year limitation on actions or suits to recover under the policy. The district court did not err in granting summary judgment to MSI. See Myers Through Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990) (stating that this court will affirm summary judgment “if it can be sustained on any grounds”), review denied (Minn. Feb. 4, 1991).

DECISION

Because the statutorily mandated appraisal clause in the MSI policy issued to Johnson is not an agreement to arbitrate MSI’s liability under the policy and MSI’s liability can only be determined by a court action, which is barred by the two-year limitation on suits or actions, the district court did not err in implicitly denying Johnson’s motion to stay judicial proceedings and to compel appraisal and did not err in dismissing Johnson’s actions for recovery under the policy.

Affirmed.

      . MSI paid Johnson $79,930.02 for the loss, but Johnson demanded the policy limits of $131,000.

      . Because relevant portions of the statute remain unchanged, we cite the current version of the statute throughout this opinion.

      . Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).


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

text:
    2007 ND 81
    Danni Jane LYNCH, f/k/a Danni Jane Sweeney, Plaintiff and Appellee v. David James SWEENEY, Defendant and Appellant.
    No. 20060104.
    Supreme Court of North Dakota.
    June 7, 2007.

      Irvin B. Nodland, Irvin B. Nodland, PC, Bismarck, N.D., for plaintiff and appellee.
    Charles L. Neff, Neff Eiken & Neff, PC, Williston, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] David Sweeney appealed from a district court judgment awarding him $5,000 in attorney fees incurred in a child custody and visitation dispute. We affirm.

I

[¶ 2] Sweeney and Danni Lynch, formerly known as Danni Sweeney, married in Minnesota in 1989 and had one child together. They divorced in 1991, and Lynch was granted custody of the child with reasonable visitation for Sweeney. Lynch and the child moved to North Dakota, and Sweeney moved to Utah. The parties had difficulty implementing the ordered visitation, and after participating in mediation, Sweeney moved to enforce his visitation rights. In 1994, a Minnesota court entered a Second Amended Judgment establishing a detailed visitation schedule. The Second Amended Judgment was filed as a foreign judgment in North Dakota to allow enforcement where Lynch and the child lived.

[¶ 3] Between 1994 and 1996 some visitation occurred. In 1996, Lynch moved to restrict visitation and Sweeney moved to enforce his visitation rights. In 1997, a guardian ad litem was appointed to facilitate and supervise visitation and to advise whether unsupervised visitation would be appropriate. The guardian ad litem withdrew, after meeting with the child and supervising a few visits, citing interference and non-cooperation by Lynch and her family and friends.

[¶ 4] The district court held evidentiary hearings in September 1998 and August 2000. Lynch alleged Sweeney abused the child and sought restrictions on Sweeney’s visitation. Sweeney moved for a change of custody and an award of costs and attorney fees on the basis of Lynch’s willful and persistent interference with visitation and her unsubstantiated allegations of abuse. The district court found there was no credible evidence of abuse and also found Lynch had “engaged in a continued course of conduct which minimized, limited, and obstructed [Sweeney’s] relationship with [the child].” The court decided Lynch should retain custody, but specifically noted that this was Lynch’s final opportunity to recognize and facilitate Sweeney’s visitation rights. The court denied Sweeney’s motion for attorney fees.

[¶ 5] The parties filed cross appeals, and this Court affirmed the denial of the motion to change custody, but reversed and remanded for additional findings and a redetermination of Sweeney’s request for costs and attorney fees. Sweeney v. Sweeney, 2002 ND 206, ¶ 1, 654 N.W.2d 407 (“Siveeney /”). We held that N.D.C.C. § 14-09-24 requires a court to award reasonable costs and attorney fees to the noncustodial parent if it finds there has been willful and persistent denial of visitation rights by the custodial parent. Id. at ¶ 18. We concluded the district court faded to make findings about whether N.D.C.C. § 14-09-24 was triggered, and remanded for the court to make more explicit findings and to award reasonable attorney fees if the statute was triggered. Id. at ¶ 21.

[¶ 6] Upon remand the district court found the triggering factors had not been met and denied Sweeney’s request for costs and attorney fees under N.D.C.C. § 14-09-24. Sweeney appealed, and this Court concluded the district court’s finding that the triggers had not been met was clearly erroneous. Sweeney v. Sweeney, 2005 ND 47, ¶ 17, 693 N.W.2d 29 {‘Sweeney II”). We reversed and remanded with instructions the court award reasonable costs and attorney fees to Sweeney under N.D.C.C. § 14-09-24. Id. at ¶ 18.

[¶ 7] Following our second remand, Sweeney requested an award of $49,470.45 in costs and attorney fees for all the litigation expenses he incurred between 1998 and 2005. The court entered judgment awarding Sweeney $5,000 in attorney fees, and made the following findings:

2. The Supreme Court, in its opinion in 2005 ND 47, 693 N.W.2d 29, mandated attorney fees pursuant to NDCC 14-09-24.
3. NDCC 14 — 09—04[sic] mandates reasonable attorney fees if the Court finds there has been willful and persistent denial of visitation by the custodial parent.
4. Notwithstanding subsequent trial court findings, the trial court, in its order of March 28, 2001, found actions violative of 14-09-04[sic] (based upon Supreme Court interpretation).
5. Reasonable attorneys fees required of this section which are to be ordered by the Court must be reasonable under all circumstances. They must relate to the issue prohibited, namely willful and persistent denial of visitation. Other issues, such as custody, travel arrangements, or a host of other fees which the non-custodian incurred, do not appear reasonable for reimbursement.
The movant requests nearly all of his fees be paid without showing the relevance to the prohibited conduct.
6. I find that the sum of $5,000.00 is reasonable as it relates to this topic, and order the custodian responsible for the same.

Judgment was entered ordering Lynch to pay $5,000 in attorney fees, and Sweeney appealed.

II

[¶ 8] Sweeney argues the district court erred in awarding him only $5,000 in attorney fees because he requested an award of $49,470.45 and the evidence he presented supported his request.

[¶ 9] A decision to award attorney fees is generally in the court’s discretion, but in child visitation disputes N.D.C.C. § 14-09-24 requires a court award reasonable costs and attorney fees to the noncustodial parent when there has been willful and persistent denial of visitation rights by the custodial parent. Sweeney I, 2002 ND 206, ¶ 18, 654 N.W.2d 407. The district court must make findings whether N.D.C.C. § 14-09-24 has been triggered, and those findings will be upheld unless they are clearly erroneous. Sweeney II, 2005 ND 47, ¶ 7, 693 N.W.2d 29. If the court finds the custodial parent engaged in willful and persistent denial of visitation the court must award the noncustodial parent reasonable costs and attorney fees. Id. at ¶ 15.

[¶ 10] Although the court is required to award reasonable attorney fees if it finds there has been willful and persistent denial of visitation, it is well established that district courts are considered experts in determining what is a reasonable amount of attorney fees and we will not reverse the court’s decision about the amount and reasonableness of the attorney fees absent a clear abuse of discretion. CybrCollect, Inc. v. North Dakota Dept. of Fin. Inste., 2005 ND 146, ¶ 39, 703 N.W.2d 285. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. Gratech Co., Ltd. v. Wold Eng’g, P.C., 2007 ND 46, ¶ 18, 729 N.W.2d 326. We have adopted the following guidelines for the court to follow when awarding attorney fees:

(1) the time and labor required on legal work as distinguished from clerical and investigation; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent ...; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of professional relationship with the client; and (12) awards in similar cases.

City of Bismarck v. Thom, 261 N.W.2d 640, 646 (N.D.1977). The court may consider other factors if it states the reasons and justifications for including them in its decision. Id.

[¶ 11] The court may award a noncustodial parent costs and attorney fees under N.D.C.C. § 14-09-24 for the reasonable expenses incurred fighting the willful and persistent denial of visitation rights. The issues of frustration of visitation and change of custody as a resulting remedy are often intertwined, and the court has discretion to award attorney fees for those intertwined proceedings. Here, however, the district court found Sweeney was not entitled to all the attorney fees he requested because there were other issues resolved during the litigation, including custody and travel arrangements. The judge who awarded the attorney fees presided over the entire case and was very familiar with the issues litigated, and therefore was in the best position to exercise discretion in awarding attorney fees and to determine what was a reasonable amount of attorney fees for the litigation related to the denial of visitation. See Gissel v. Kenmare Twp., 512 N.W.2d 470, 478 (N.D.1994). The district court found the litigation did not solely pertain to denial of visitation, and the evidence supports the court’s finding. The court awarded Sweeney an amount it found reasonable based on the amount of litigation that was related to denial of visitation.

[¶ 12] Furthermore, Sweeney submitted evidence of all the attorney fees he incurred between 1998 and 2005 without specifying what fees were related directly to the denial of his visitation rights. “An award of attorney fees must generally be supported by evidence upon which the court can determine the requested fees are reasonable and legitimate.” Whitmire v. Whitmire, 1999 ND 56, ¶ 14, 591 N.W.2d 126. When a court is required to award attorney fees under a statute, the movant must be more precise in his request for fees because the fees must relate to the denial of visitation and therefore the court has less discretion in deciding which attorney fees to award. Here, the district court was left with no explanation other than Sweeney’s claim the entire billing of attorney fees since 1998 was directly related to the denial of visitation. The court was left to award the entire sum or attempt to review for itself the prior proceedings. The court does not have a duty or obligation to ferret through the evidence to locate the actual amount of attorney fees incurred for each issue. See Peterson v. Zevr, 477 N.W.2d 230, 235 (N.D.1991). The district court could have awarded the entire sum of the requested fees, but we cannot conclude it abused its discretion in not doing so. While $5,000 may not be the actual amount of attorney fees, Sweeney failed to provide evidence delineating the actual amount of fees related to fighting the denial of his visitation rights.

[¶ 13] Sweeney failed to prove the actual amount of attorney fees he incurred in fighting the denial of his visitation rights, and the district court decided $5,000 was a reasonable amount of attorney fees based on its expertise. While the court had discretion to award a larger amount, the court’s decision was not arbitrary, capricious, or unreasonable, and we therefore conclude the court did not abuse its discretion in awarding attorney fees.

Ill

[¶ 14] We affirm the district court’s award of attorney fees.

[¶ 15] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 16] This case is the poster child for persistent and willful interference with visitation by a custodial parent and for persistent noncompliance with the law by a district court. See Sweeney v. Sweeney, 2002 ND 206, 654 N.W.2d 407; Sweeney v. Sweeney, 2005 ND 47, 693 N.W.2d 29. We have previously found the district court abused its discretion, id. at ¶ 17 (“We therefore conclude the trial court abused its discretion in denying Sweeney’s request for costs and attorney fees under N.D.C.C. § 14-09-24.”), and it has done so again. The statute requires that the attorney fees awarded be reasonable in these cases. N.D.C.C. § 14-09-24. Out of nearly $50,000 in attorney fees incurred by the noncustodial parent seeking to vindicate his legislatively guaranteed visitation rights, the district court awarded $5,000 as “reasonable.” Does the majority really believe that amount reasonably covers not only the proceedings in district court, but one appeal to this Court, let alone two appeals? Or three?

[¶ 17] I would reverse and remand to a different judge. See T.F. James Co. v. Vakoch, 2001 ND 112, ¶¶ 18-19, 628 N.W.2d 298; Holzer v. Jochim, 557 N.W.2d 57, 59 (N.D.1996).

[¶ 18] Dale Y. Sandstrom


author: CROTHERS, Justice.

text:
    2007 ND 77
    STATE of North Dakota, Plaintiff and Appellee v. Kevin D. TUTT, Defendant and Appellant.
    No. 20060205.
    Supreme Court of North Dakota.
    June 7, 2007.
    Gary E. Euren, Assistant State’s Attorney, Cass County Courthouse, Fargo, ND, for plaintiff and appellee.
    Douglas W. Nesheim (argued) and Steven D. Mottinger (on brief), Fargo, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Kevin D. Tutt appealed from a criminal judgment entered upon a jury verdict finding him guilty of two counts of possession of a controlled substance with intent to deliver under N.D.C.C. § 19-03.1-23(1), class A felonies. We reverse the criminal judgment and remand for a new trial.

I

[¶ 2] Law enforcement officers set up two controlled drug buys with a confidential informant who contacted Tutt on October 24, 2005 and November 30, 2005. Tutt met with and allegedly sold to the informant 2.1 grams of cocaine during the first controlled buy and 1.3 grams of cocaine during the second buy. Tutt was arrested under a warrant in March of 2006 and was charged with possession of a Schedule II controlled substance (cocaine) with intent to deliver. Before trial, the district court discussed Tutt’s prior conviction, also involving cocaine, which was referenced on the Information in the “Penalty section” by citing to N.D.C.C. § 19-03.1-23(l)(a). This section provides a minimum mandatory sentence of five years’ imprisonment for a second offense. N.D.C.C. § 19-03.1-23(l)(a). Prior to trial, Tutt’s counsel, after initially opposing a stipulation, agreed to stipulate Tutt had one prior conviction. Defense counsel then stipulated to the fact that the conviction involved cocaine. The district court allowed the evidence to be heard by the jury, but gave a special limiting instruction for the use of the prior conviction evidence.

[¶ 3] Tutt contends the district court erred in allowing the jury to hear evidence of his prior cocaine-related conviction. On appeal, Tutt argues his case was so prejudiced by the prior conviction information and by his attorney’s ineffective assistance that he should be given a new trial. Tutt also argues there was insufficient evidence to find him guilty because the confidential informant was never thoroughly searched and the informant’s credibility was never ascertained.

II

[¶ 4] Tutt contends the district court erred in allowing the jury to hear evidence of his prior cocaine-related conviction. He further argues this was obvious error requiring a reversal of the criminal judgment and a remand for a new trial. We agree.

[¶ 5] Tutt did not object to the district court’s admission of evidence regarding the prior conviction, to the court’s use of a special interrogatory, or to the jury instructions. Issues not raised in the district court generally are not reviewable by this Court unless they constitute obvious error under N.D.R.Crim.P. 52(b). State v. Lemons, 2004 ND 44, ¶ 15, 675 N.W.2d 148. Under N.D.R.Crim.P. 52(b), we may not reverse a conviction unless the defendant shows error that is plain and affects substantial rights. N.D.R.Crim.P. 52(b). This Court exercises the “ ‘power to notice obvious error cautiously and only in exceptional circumstances where the accused has suffered serious injustice.’ ” State v. Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173 (quoting State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658).

[¶ 6] The district court stated its understanding that recent United States Supreme Court cases required the prior-act evidence be either stipulated to by the defense or otherwise brought before the jury to make a finding. The district court correctly said that the prior conviction is “enhancement for sentencing.” But the court went on to state its erroneous belief that the Supreme Court requires the prior conviction be proved “beyond a reasonable doubt to a unanimous jury” and that the prior conviction information “would be part of a special verdict question.”

[¶ 7] Standing alone, a statutory minimum sentence is not an “element” of the offense, and the United States Supreme Court has rejected the argument that the fact of a prior conviction must be found by a jury. Almendarez-Torres v. United States, 523 U.S. 224, 239-247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres’ “prior conviction” exception has been built into the Sixth Amendment’s application of jury trial to sentence enhancements in subsequent United States Supreme Court cases (although each deals with upward departures from statutory maximum sentences as opposed to the application of statutory minimum sentences). Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Both Apprendi and Blakely state that the Almendarez-Torres rule requiring sentence-enhancing facts to be proven to a jury beyond a reasonable doubt or admitted to by the defendant only applies to facts “other than the fact of a prior conviction.” Apprendi, at 490, 120 S.Ct. 2348; Blakely, at 301, 124 S.Ct. 2531.

[¶ 8] Under N.D.C.C. § 19-03.1-23(l)(a)(l), one prior conviction for possession of a controlled substance with intent to deliver enhances a defendant’s sentence, but it does not enhance the offense from a class A felony to a more serious class. “A prior conviction that enhances a sentence, but not the seriousness of the offense, is generally not regarded as an element of the offense.” City of Fargo v. Cossette, 512 N.W.2d 459, 462 (N.D.1994); see also State v. Saul, 434 N.W.2d 572, 574 (N.D.1989); State v. Gahner, 413 N.W.2d 359, 362 (N.D.1987); State v. Edinger, 331 N.W.2d 553, 554 (N.D.1983).

[¶ 9] Here, the district court asked defense counsel,

[D]o you want to require the State to have to prove [the prior conviction] beyond a reasonable doubt to a unanimous jury as well, or for tactical or other reasons do you folks want to stipulate to that prior conviction?
[¶ 10] Defense counsel said,
I’ve discussed it with my client and we don’t want the jury to be shown my client’s record.... I’m somewhat hesi-tante,] though[,] to stipulate that he’s got a prior offense.... We’d be willing to stipulate it’s an issue for sentencing.

[¶ 11] Defense counsel later repeated that Tutt would stipulate the prior conviction was “an issue for sentencing.” The district court reasserted its understanding of current United States Supreme Court law regarding prior conviction information, stating that “the United States Supreme Court has made this type of a determination[][o]ne for the fact finder, not as a matter of law by a judge, unless stipulated to by the Defendant and the defense counsel.”

[¶ 12] After being shown a certified copy of Tutt’s prior conviction of a controlled substance with intent to deliver, defense counsel said, “[W]e will agree to have this submitted to the jury ... for determination.” Thus, notwithstanding his earlier protests, this agreement by Tutt’s counsel cannot be viewed as either an objection to admission of the prior conviction or a request that the court engage in a Rule 404(b), N.D.R.Ev, balancing analysis.

[¶ 13] We conclude the district court should not have required that the prior conviction information be admitted at trial. We further conclude that on the facts of this case, given the charge and nature of the prior conviction that includes the same drug in each, it was ineffective assistance for Tutt’s counsel to succumb to the district court’s misunderstanding of Apprendi and to stipulate to sending proof of Tutt’s prior conviction to the jury. Admission of that evidence constituted prejudicial and reversible error. See Saul, 434 N.W.2d at 575.

Ill

[¶ 14] Tutt argues he was further prejudiced when the district court provided ineffective limiting instructions regarding the prior conviction information before the jury, and misunderstood the applicable statute. He also argues insufficiency of the evidence. We do not reach the merits of these remaining issues because we conclude Tutt was prejudiced by use of the prior conviction information and reverse for a new trial.

IV

[¶ 15] We reverse the criminal judgment and remand for a new trial.

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


author: KAPSNER, Justice.

text:
    2007 ND 85
    Sharon M. CLINE, Plaintiff and Appellant v. David D. CLINE, Defendant and Appellee.
    No. 20060249.
    Supreme Court of North Dakota.
    June 7, 2007.

      Lisa Maria Benson, Ward County Regional Child Support Enforcement Unit, Minot, ND, for plaintiff and appellant.
    Carey A. Goetz, Farhart Wolff, P.C., Minot, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The Minot Regional Child Support Enforcement Unit (“Unit”) appealed from the July 28, 2006 Second Amended Judgment of the district court setting David Cline’s child support. We hold the district court erred as a matter of law in failing to compute the child support obligation in accordance with the child support guidelines. We reverse and remand for redetermination of child support in accordance with the guidelines.

I

[¶ 2] David and Sharon Cline were divorced in 1997. Sharon Cline received custody of the parties’ two minor children, and David Cline was ordered to pay child support. The court calculated the presumptively correct amount of child support under the child support guidelines and adjusted the obligation, taking into consideration David Cline’s extended visitation with the children and his travel costs. The court deviated from the calculated guideline amount by giving David Cline a two-month credit against his annual support obligation and prorating the amount over twelve months, resulting in a $534 monthly support payment.

[¶ 3] In 2002, Sharon Cline requested permission to relocate with the children to Iowa. Upon stipulation of the parties, Sharon Cline was allowed to move with the children to Iowa, David Cline’s child support obligation was increased to $602 per month due to an increase in his net monthly income, and David Cline continued to receive a two-month credit annually on his child support, in consideration of his extended visitation and travel expenditures. An amended judgment was entered incorporating the provisions of the parties’ stipulation.

[¶ 4] In 2006, Sharon Cline requested the Unit to conduct a review of David Cline’s child support obligation. After conducting a review, the Unit filed a motion for an increase in child support based upon changes in David Cline’s income. Sharon Cline was given notice of the motion but did not file an appearance. The Unit and David Cline stipulated that David Cline’s net income is $3,234 per month and the presumptively correct child support amount under the guidelines, without deviation for extended visitation or travel expenses, would be $920 per month for the two children. The Unit asserted that any deviation from this guideline amount for extended visitation and travel expenses must be calculated under the relevant guideline provisions. David Cline asserted that he should be allowed to continue to receive a two-month credit against his obligation in accordance with the parties’ prior stipulation.

[¶ 5] The district court concluded David Cline should continue to receive a two-month credit against his support obligation and, at the hearing, explained its reasoning:

[I]n terms of paragraph four of the stipulation, it says: In calculating David’s child support obligation, a downward deviation from the North Dakota child support guidelines is warranted. David shall be given credit of two months during the year to take into consideration the transportation expenses he will bear and the time that he will have the children with him.
I’m going to treat this as the law of the case in terms of what went on. I think that it was based upon a stipulation by the parties in 2002.
[T]he two-month credit was arrived at for those increased expenses that would have been incurred upon [David Cline] for [Sharon Cline’s] ability to move to Iowa....
With that, taking that into account, I’m going to agree that the two-month credit should continue.

Continuing David Cline’s two-month credit against his annual support obligation and prorating the amount over 12 months, the district court awarded child support of $766 per month for two children and, upon the elder child’s graduation from high school, $503 per month for one child.

II

[¶ 6] On appeal, the Unit asserts the district court erred in failing to comply with the child support guidelines, N.D. Admin. Code ch. 75-02-04.1, in computing David Cline’s support obligation. Child support determinations involve questions of law which are subject to a de novo standard of review, findings of fact which are subject to a clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to an abuse-of-discretion standard of review. Berge v. Berge, 2006 ND 46, ¶ 7, 710 N.W.2d 417. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation. Heinz v. Heinz, 2001 ND 147, ¶ 16, 632 N.W.2d 443.

[¶ 7] The child support guidelines were adopted in response to the legislature’s desire for greater specificity and uniformity in the determination and enforcement of child support obligations. Logan v. Bush, 2000 ND 203, ¶ 31, 621 N.W.2d 314. Based upon an overriding need for adequate support and maintenance of minor children, a stipulation by the parents prohibiting or limiting the power of the court to modify future child support is deemed contrary to public policy and is invalid. See Zarrett v. Zarrett, 1998 ND 49, ¶ 10, 574 N.W.2d 855. Likewise, a stipulation which results in a child support obligation less than that required by the child support guidelines violates public policy and will not be enforced. Olson v. Olson, 2002 ND 30, ¶ 12, 639 N.W.2d 701.

[¶ 8] The district court has continuing power to modify an earlier child support order, and the court cannot apply principles of the law of the case or res judicata to order a reduced support obligation which does not comply with the child support guidelines. Zarrett, 1998 ND 49, ¶¶ 6-8, 574 N.W.2d 855. We conclude the district court erred as a matter of law in failing to compute David Cline’s support obligation in accordance with the guidelines.

Ill

[¶ 9] The child support guidelines include specific provisions governing calculation of child support deviations for extended visitation and travel expenses related to exercise of visitation. The 1999 Legislative Assembly amended the statutory authority for the child support guidelines to require that the guidelines “[i]n-clude consideration of extended periods of time a minor child spends with the child’s obligor parent.” N.D.C.C. § 14-09-09.7(l)(e); Logan v. Bush, 2000 ND 203, ¶ 24, 621 N.W.2d 314. Under N.D. Admin. Code § 75-02-04.1-08.1, the district court must adjust child support if the obli-gor is awarded “extended visitation” which is defined as “visitation between an obligor and a child living with an obligee scheduled by court order to exceed sixty of ninety consecutive nights or an annual total of one hundred sixty-four nights.” This guideline includes a complex formula for determining the amount of deviation from the presumptive child support, dependent upon the length of visitation scheduled in the court order. N.D. Admin. Code § 75-02-04.1-08.1(2). When an obligor has been awarded extended visitation, as defined under the guidelines, the district court must adjust the amount of child support to reflect that visitation in accordance with the guideline formula. Shaw v. Shaw, 2002 ND 114, ¶ 19, 646 N.W.2d 693; Gleich v. Gleich, 2001 ND 185, ¶ 14, 636 N.W.2d 418. There is no dispute that David Cline’s court ordered visitation falls within the guideline definition of extended visitation. Consequently, the court must adjust David Cline’s support obligation in accordance with N.D. Admin. Code § 75-02-04.1-08.1.

[¶ 10] Similarly, the child support guidelines include explicit provisions governing child support deviations when an obligor has a reduced ability to pay due to travel expenses incurred for child visitation. N.D. Admin. Code § 75-02-04.1-09(2)(i). If the obligor has a reduced ability to pay because of visitation-related travel expenses, any adjustment “shall be made to the obligor’s net income.” N.D. Admin. Code § 75-02-04.1-09(7). Under these guidelines, travel expenses which reduce an obligor’s ability to pay support are subtracted from the obligor’s net income before calculating the support obligation. See Schiff v. Schiff, 2000 ND 113, ¶¶ 32-33, 611 N.W.2d 191.

[¶ 11] By simply awarding David Cline a two-month credit against his annual support obligation, the district court erred in failing to follow the child support guidelines to determine what adjustment David Cline should receive. The court must follow the guideline provisions in considering David Cline’s scheduled extended visitation and related travel expenses.

IV

[¶ 12] David Cline asserts the district court’s judgment should be upheld, because the support award is at least 85 percent of the calculated amount under the guidelines. In support of this assertion, David Cline cites N.D.C.C. § 14-09-08.4(3):

If, upon review, the child support agency determines that the order provides for child support payments in an amount that is inconsistent with the amount that would be required by the child support guidelines established under subsection 1 of section 14-09-09.7, the child support agency may seek an amendment of the order. If the order provides for child support payments in an amount less than eighty-five percent of the amount that would be required by those guidelines, the child support agency shall seek an amendment of the order.

David Cline interprets this statute too broadly. The statute neither expressly nor implicitly endorses child support awards that deviate less than 15 percent from the calculated support obligation under the guidelines. The statute merely establishes a clear line below which the child support agency must seek an amendment of court-ordered support. If the support award is an amount less than 85 percent of the calculated guideline amount, the agency must seek amendment of the court’s order. If, however, the award of child support is greater than 85 percent of the required amount, the agency is given discretion under the statute whether to file an action seeking an amendment of the award.

[¶ 13] Under N.D.C.C. § 14-09-08.4(4), if a child support order sought to be amended was entered at least one year prior to the motion to amend, the court “shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines.” The statute requires the court to award support as calculated under the child support guidelines. A nonconforming award is not enforceable. Zarrett, 1998 ND 49, ¶ 10, 574 N.W.2d 855.

V

[¶ 14] We hold the district court erred, as matter of law, in computing David Cline’s child support obligation. We, therefore, reverse and remand for redeter-mination of child support in accordance with the child support guidelines.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


text:
    2007 ND 82
    STATE of North Dakota, Plaintiff and Appellee v. Ian August NOACK, Defendant and Appellant.
    No. 20060237.
    Supreme Court of North Dakota.
    June 7, 2007.

      M. Jason McCarthy (on brief), Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.
    Ian August Noack (argued), pro se, Grand Forks, ND, defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Ian Noack appeals from a judgment of conviction for illegally possessing a big game animal under N.D.C.C. § 20.1-05-02. We conclude Noack failed to present any issues for our review. We dismiss the appeal.

I

[¶ 2] Although Noack failed to provide a statement of the facts, our search of the record reveals this action began when a game warden for the North Dakota Game and Fish Department received a tip concerning a suspicious photo on a local hunting and fishing website. The game warden viewed the website, which depicted a man posing next to an antlered whitetail deer. Below the photograph, the caption read: “Another nice ND Eastern Buck Shot Nov. 17 not far from Larimore. Photo Submitted By: tlasea.” The game warden recognized Noack as the man in the photograph. The game warden had prior knowledge that Noack was issued three deer tags in 2005 and that Noack had been cited in the past for game and fish violations. In 2005, Noack was issued one tag for an antlered deer to be harvested in the early deer season — November 4 to November 10 — and two tags for antlerless deer. The game warden noted that the caption below the photograph indicated the deer was taken out of season for Noack’s antlered deer tag. The game warden observed the deer’s eyes appeared to be reflecting the camera flash. According to the warden, reflection from a deer’s eyes is only observable for a short time after the deer is harvested. Based on the warden’s training and experience, the warden concluded he had enough suspicion to apply for a search warrant and to further investigate Noack. The district court granted the warden’s request, issuing a search warrant for Noack’s residence, garage, and outbuildings.

[¶ 3] On November 23, 2005, law enforcement executed the search warrant. When Noack answered the door, Noack explained he had been expecting a visit from the officers and that the caption on the website was incorrect. Noack asserted the antlered deer had been taken during the early season. When asked if he still had the animal carcass and head, Noack replied “No.” Noack changed his answer when the officers produced the search warrant. In the garage, officers found an antlered deer carcass, appearing to be the same animal from the photograph, with an antlerless deer tag affixed to its antlers.

[¶ 4] At trial, Noack explained he tagged the deer with the proper tag after he shot it, but removed the tag so he could “do a European mount of it.” A European mount is a type of taxidermie process where the head of the animal is boiled in water to remove the animal’s flesh from its bone. After the process, all that remains is “the skull ... and the antlers.” Noack claimed he had to remove the proper tag from the deer’s antlers so it would not become damaged due to the boiling water and steam. Noack testified a friend had heard about Noack’s buck, so he came over to Noack’s home to see it. Noack said his friend wanted to take Noack’s picture with the animal, but Noack had already removed the deer tag to begin the taxidermic process. Noack testified he mistakenly affixed an antlerless deer tag for purposes of taking the photograph.

[¶ 5] On August 25, 2006, the district court held a bench trial. The court, noting Noack was charged with a strict liability offense, found the State met its burden of proving Noack possessed the improperly tagged deer and convicted him of the illegal possession of a big game animal under N.D.C.C. § 20.1-05-02, a class A misdemeanor.

II

[¶ 6] Noack filed a one-page, double-spaced brief, which did not include a statement of the issues or a statement of the facts, and it did not clearly articulate his argument. To the extent Noack asserted some facts, he appears to be arguing the district court erred because the law “says that the tag may be removed if the animal is to be mounted. It does not say it has to be immediately placed on the back of the mount.” The State argues Noack’s argument is irrelevant because the illegal possession of a big game animal is a strict liability offense.

III

[¶ 7] Noack’s brief fails in nearly every conceivable way to comply with our rules of appellate procedure. Rule 28(b), N.D.R.App.P., governs the content and format of appellant’s briefs. Rule 28(b) provides:

(b) Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in the order indicated:
(1) a table of contents, with page references;
(2) a table of authorities — cases (alphabetically arranged), statutes, and other authorities — with references to the pages of the brief where they are cited;
(3) in an application for the exercise of original jurisdiction, a concise statement of the grounds on which the jurisdiction of the supreme court is invoked, including citations of authorities; ’
(4) a statement of the issues presented for review;
(5) a statement of the case briefly indicating the nature of the case, the course of the proceedings, and the disposition below;
(6) a statement of the facts relevant to the issues submitted for review, which identifies facts in dispute and includes appropriate references to the record (see Rule 28(f));
(7) the argument, which must contain:
(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and
(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);
(8)a short conclusion stating the precise relief sought.

N.D.R.App.P. 28(b) (emphasis added).

[¶ 8] This Court has held “[a] pro se litigant is not granted leniency solely because of his status as such.” State v. Hilgers, 2004 ND 160, ¶ 19, 685 N.W.2d 109; accord Klose v. State, 2005 ND 192, ¶ 13, 705 N.W.2d 809 (concluding an appellant was not entitled to leniency due to his pro se status); Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558 (same). We have stated we are not ferrets and we “will not consider an argument that is not adequately articulated, supported, and briefed.” E.g., State v. Haibeck, 2006 ND 100, ¶ 9, 714 N.W.2d 52. We will not engage in unassisted searches of the record for evidence to support a litigant’s position. State v. Goulet, 1999 ND 80, ¶ 10, 593 N.W.2d 345. Judges are not “expected to be psychics, with the ability to divine a party’s true intentions.... The parties have the primary duty to bring to the court’s attention the proper rules of law applicable to a case.” Id. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court stated: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” Id. at 834 n. 46.

[¶ 9] We acknowledge Noack proceeded in this appeal as a pro se litigant. We also acknowledge some courts have relaxed certain “form and content” procedural rules to accommodate pro se litigants. See, e.g., Houston v. Lack, 487 U.S. 266, 270-72, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding some procedural rules must give way for pro se prisoners because of the unique circumstances of incarceration); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) (noting the court applies less stringent standards to pro se parties); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995) (same). Despite our previous rhetoric, strict adherence to the details of the rules of appellate procedure may not be possible for self-represented litigants based upon their lack of experience and education regarding the legal process. Nevertheless, pro se litigants, if they wish this Court to review the decision of the trial court, must reasonably comply with our appellate rules. Of the requirements imposed by N.D.R.App.P. 28, three are absolutely imperative for our review. At a minimum, a brief must contain a statement of the issues presented for review; a statement of the facts and, where those facts are disputed, references to the evidentiary record supporting the appellant’s statement of the facts; and the appellant’s legal argument, including the authorities on which the appellant relies. Without these essential elements included in the appellant’s brief, we decline to address the alleged errors because the case is not properly before us.

rv

[¶ 10] We conclude Noack’s appellate brief fails to provide us with the opportunity to meaningfully review his alleged errors. We exercise our authority under N.D.R.App.P. 3(a)(2) to dismiss the appeal.

[¶ 11] MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ„ concur.

GERALD W. VANDEWALLE, C.J., I concur in the result.

      . The court originally convicted Noack of a class B misdemeanor under N.D.C.C. § 20.1-05-02. Illegal possession of a big game animal under N.D.C.C. § 20.1-05-02, however, is a class A misdemeanor. See N.D.C.C. § 20.1-05-01. The court amended its judgment to reflect the proper gradation of the offense on September 29, 2006.


text:
    2007 ND 88
    D.G.L. TRADING CORPORATION, Plaintiff and Appellant v. Jeffrey REIS, Defendant and Appellee.
    No. 20070052.
    Supreme Court of North Dakota.
    June 7, 2007.

      Dennis William Lindquist, Mandan, ND, for plaintiff and appellant.
    Thomas F. Murtha, Murtha Law Office, Dickinson, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] D.G.L. Trading appeals the district court judgment finding Jeffrey Reis not liable for the diamond he was returning and the $7,000 cash payment he testified he shipped to D.G.L. via FedEx. The district court did not apply N.D.C.C. §§ 41-02-43 (U.C.C. § 2-326) and 41-02-44 (U.C.C. § 2-327) and did not resolve conflicts in the evidence to determine whether the parties agreed to alter the assignment of the risk of loss. We therefore reverse the district court’s judgment and remand for application of the appropriate law consistent with this opinion.

I

[¶ 2] Jeffrey Reis buys diamonds from various suppliers and re-sells them locally. He does business under the name “African Ice.” D.G.L. Trading is a New York corporation which sells gemstones. Reis and D.G.L.’s president, Tarun Patel, completed four or five gemstone transactions from 2001 to 2005. In October of 2005, Reis ordered and received two diamonds from D.G.L., agreeing on the prices of $8,200 for a 2.01 carat “diamond round” and $868 for a .62 carat “diamond princess.” Reis testified he sold and received a $7,000 cash partial payment for the “diamond round.” Reis testified he returned the “diamond princess” and the $7,000 in cash to D.G.L. via FedEx. Both parties agree the parcel disappeared in transit. FedEx acknowledged the loss and tendered Reis $123: $100 in basic insurance coverage and $23 for reimbursed shipping costs. Reis had not negotiated FedEx’s check at the time of trial.

[¶ 3] D.G.L. sued Reis to collect payment for the “diamond round” and for the loss of the “diamond princess.” At the bench trial, D.G.L. entered two exhibits: copies of an invoice and a memorandum. The memorandum was shipped with the diamonds on October 31, 2005, and the invoice followed. The memorandum purported to lay out the relationship of the parties and their respective rights to, and liabilities for, the diamonds. If intended by the parties to control their transaction, the memorandum would alter the rights and obligations otherwise established under N.D.C.C. §§ 41-02^3 (U.C.C. § 2-326) and 41-02-44 (U.C.C. § 2-327). However, neither party brought the language of the memorandum to the district court’s attention, nor did the court appear to consider the memorandum in its decision.

[¶ 4] After hearing testimony from Patel and Reis, the district court found that the parties did business with each other “on an approval basis” as “merchants as defined by NDCC [§ ] 41-02-04,” and that Reis “did not commit fraud in his actions.” The district court concluded:

[Reis’s] duty ended when he put the package with its contents into the hands of carrier FedEx. FedEx lost the package. [D.G.L.’s] remedy for the difference between $8,200 and $7,000 along with the returned gem lies with FedEx, not [Reis].

[¶ 5] On appeal, D.G.L. argues the transaction was a “sale or return” under N.D.C.C. § 41 — 02—43(l)(b) (U.C.C. § 2-326), and the risk of loss lies with Reis under N.D.C.C. § 41-02-44(2)(b) (U.C.C. § 2-327). D.G.L. also argues it is left with no remedy with FedEx because Reis was the party to whom FedEx was liable for the lost parcel. Reis argues the transaction was a “sale on approval” under N.D.C.C. § 41-02-43(l)(a) (U.C.C. § 2-326), and the risk of loss lies with D.G.L. under N.D.C.C. § 41-02-44(1) (U.C.C. § 2-327).

II

A

[¶ 6] We first consider the appropriate scope of our review. Both parties now argue that sections 41-02-43 (U.C.C. § 2-326) and 41-02-44 (U.C.C. § 2-327), N.D.C.C., are applicable and controlling. The district court applied a portion of the U.C.C.-based statutes, specifically N.D.C.C. § 41-02-04 (U.C.C. § 2-104), to conclude both parties were “merchants.” However, the record does not indicate the basis for the district court’s conclusion that the sale was “on approval.” In addition, the record does not show that either party alerted the district court to the other relevant U.C.C.-based statutes or that the district court considered or applied the relevant statute to determine which party shouldered the risk of loss in a sale “on approval.”

[¶ 7] Our general rule is that questions not raised before the district court will not be considered on appeal. Griggs v. Fisher, 2006 ND 255, ¶ 8, 725 N.W.2d 201. However, this rule cannot be applied so narrowly that we affirm erroneous or incomplete applications of law in favor of judicial expediency. Therefore, it is appropriate we consider and apply the correct statutes in this case, even if they were not presented to the district court in the first instance. See State ex rel. Bank of North Dakota v. Larsen, 515 N.W.2d 178, 182 (N.D.1994) (quoting Elder v. Holloway, 510 U.S. 510, 512, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)) (“We have a duty to conduct appellate review ‘in light of all relevant precedents, not simply those cited to or discovered by the district court.’ Otherwise, decisions might turn on ‘shortages in counsels’ or the court’s legal research or briefing,’ and ‘could occasion appellate affirmation of incorrect legal results.’ ”); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”).

[¶ 8] The district court found the parties conducted business on an “approval basis” and concluded both parties are merchants under N.D.C.C. § 41-02-04 (U.C.C. § 2-104). The district court did not appear to apply any other sections of ch. 41-02, N.D.C.C., and we are uncertain what formed the basis of the district court’s decision. As we explain below, before determining which party bore the risk of loss, the circumstances of this case required that the district court first should have determined whether the transaction was a “sale on approval,” a “sale or return,” a consignment, or some other form of transaction agreed to by the parties.

B

[¶ 9] D.G.L. contends its transaction with Reis was a “sale or return” governed by N.D.C.C. § 41-Q2-43(l)(b) (U.C.C. § 2-326). Reis contends this transaction with D.G.L. was a “sale on approval” governed by N.D.C.C. § 41 — 02—43(l)(a) (U.C.C. § 2-326). The statute provides:

1. Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is:
a. A “sale on approval” if the goods are delivered primarily for use.
b. A “sale or return” if the goods are delivered primarily for resale.
2. Goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
3. Any “or return” term of a contract for sale is to be treated as a separate contract for sale within the statute of frauds section of this chapter (section 41-02-08) and as contradicting the sale aspect of the contract within the provisions of this chapter on parol or extrinsic evidence (section 41-02-09).

N.D.C.C. § 41-02-43 (U.C.C. § 2-326).

[¶ 10] The official comment to Uniform Commercial Code § 2-326:121 notes:

1. Both a “sale on approval” and a “sale or return” should be distinguished from other types of transactions with which they frequently have been confused. A “sale on approval,” sometimes also called a “sale on trial” or “on satisfaction,” deals with a contract under which the seller undertakes a risk in order to satisfy its prospective buyer with the appearance or performance of the goods that are sold. The goods are delivered to the prospective purchaser but they remain the property of the seller until the buyer accepts them. The price has already been agreed. The buyer’s willingness to receive and test the goods is the consideration for the seller’s engagement to deliver and sell. A “sale or return,” on the other hand, typically is a sale to a merchant whose unwillingness to buy is overcome by the seller’s engagement to take back the goods (or any commercial unit of goods) in lieu of payment if they fail to be resold. A “sale or return” is a present sale of goods which may be undone at the buyer’s option....
These two transactions are so strongly delineated in practice and in general understanding that every presumption runs against a delivery to a consumer being a “sale or return” and against a delivery to a merchant for resale being a “sale on approval.”

3A Lary Lawrence, Lawrence’s Anderson on the Uniform Commercial Code § 2-326:121 (2002 & Supp. 2006).

[¶ 11] U.C.C. sections 2-326 and 2-327 allow for return of conforming goods and allocate the related risk of loss between the buyer and seller, unless otherwise agreed by the parties. See N.D.C.C. §§ 41-02-43(1) (U.C.C. § 2-326) and 41-02-44 (U.C.C. § 2-327). These provisions allow parties to make separate contracts regarding the return terms and risk of loss. Because the North Dakota statutes modeled after U.C.C. sections 2-326 and 2-327 were not considered below, the unanswered question in this case is whether the parties created a separate contract as evidenced by their course of dealing, course of performance, the memorandum, their oral agreement as explained in the testimony, or any combination of the foregoing. That question must be answered by the district court as the first step in determining which party bore the risk of loss in this case.

[¶ 12] Here, the parties testified regarding their course of dealing and, maybe, course of performance. They also gave conflicting testimony about the nature of this transaction. Tarun Patel, D.G.L.’s president, testified several times the transaction was a sale “on approval.” Yet there was no evidence consistent with N.D.C.C. § 41-02-43(1) (U.C.C. §' 2-326) that D.G.L. delivered the diamonds to Reis “primarily for use.” This discrepancy between the law, the testimony, and the district court’s findings was not reconciled or explained.

[¶ 13] Also unresolved with the other evidence was the fact D.G.L. shipped the merchandise with a memorandum listing D.G.L. as the “consignor” and Reis’s business, “African Ice,” as the “consignee” and the memorandum’s effect on the transaction. The text of the memorandum provides:

The goods described, listed and valued on the front of this memorandum are delivered to the consignee for examination and inspection only. In accepting said goods, consignee agrees that until payment for the goods is made or until the goods are returned and actually received by consignor title shall remain with the consignor and all risk of loss shall be that of the consignee. Consignee agrees that consignee’s liability for all risks of loss shall be that of an insurer. Payment as the term used herein shall be offered as legal tender. If an installment is used as payment, said payment shall not be considered accomplished until the funds represented by such are actually collected!.] Consignee warrants and represents and agrees that consignee has sufficient “all risks” insurance in effect with a reputable insurer to cover the goods subject to this agreement and memorandum and any other obligations thereunder[.][I]t is further agreed and warranted by the consignee that consignor is the intended beneficiary of any insurance of the consignee and that consignor may make claim upon consignee’s insurer and the consignee’s policy or any loss hereunder and that any such claim shall be settled, adjusted, and paid to the consignor to the extent of the consignor's interest hereunder!.] Further the proceeds of any claim on the consignee’s insurance are assigned to consignor to the extent of consignee’s liability under this memorandum for the goods subject hereof. In respect to litigation by consignor against consignee hereunder the parties agree to the jurisdiction of the courts in New York and that New York law applies in any such action or proceeding by consignor against consignee. The consignee agrees that it will at the option of consignor wa[i]ve trial by jury if the consignor is required to bring any action hereunder against the consignee. The consignee agrees to pay consignor in [sic] additional amount due under the memorandum in and for consideration of attorney’s fees, to be liquidated in the amount of 25% of the total value of all the goods listed on this memorandum, until payment is received hereunder as above set forth. Consignee has no right, power or authority to sell, pledge, hypothecate or otherwise dispose of goods regardless of prior transactions!,] permission & [sic] granted consignor to file a financing statement under the U.C.C.

[¶ 14] Under the memorandum, title remained with D.G.L., but Reis bore the risk of loss and risk of payment until the diamonds or payment were received by D.G.L. This retention of title but transfer of risk provision was also at odds with the relevant U.C.C. provisions, Patel’s description of the transaction as “on approval,” and perhaps, the parties’ dealings and performance in prior transactions.

Ill

[¶ 15] The district court did not apply N.D.C.C. §§ 41-02-43 (U.C.C. § 2-326) and 41-02-44 (U.C.C. § 2-327) and did not resolve conflicts in the evidence to determine whether the parties agreed to alter the assignment of the risk of loss. We therefore reverse the district court’s judgment and remand for application of the appropriate law consistent with this opinion.

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