author: MARING, Justice.

text:
    2000 ND 83
    STATE of North Dakota, Plaintiff and Appellee, v. Kevin Robert KEYES, Defendant and Appellant.
    No. 990089.
    Supreme Court of North Dakota.
    April 25, 2000.

      Carl 0. Flagstad, Minot, N.D., for defendant and appellant.
    Mark A. Flagstad, Assistant State’s Attorney, Minot, N.D., for plaintiff and ap-pellee.
   MARING, Justice.

[¶ 1] Kevin Robert Keyes appeals from a judgment entered upon a jury verdict finding him guilty of the delivery of a controlled substance, methamphetamine. On January 20, 1998, the Ward County Drug Task Force (“Task Force”) sent an informant into Keyes’ home to purchase methamphetamine. The informant had previously contacted the Task Force to inform on Keyes, stating that she had purchased drugs from Keyes for herself and others in the past. While outfitted with a wire, the informant entered Keyes’ home and asked to buy drugs. Keyes removed several baggies from his closet and handed her a substance later identified as methamphetamine. She held up $350, of which Keyes took $250. After speaking for a few more minutes, the informant left Keyes’ home and reported back to the Task Force officers. The informant and two Task Force officers testified about these events on behalf of the State at trial, and a jury found Keyes guilty of the charged offense on January 20, 1999. We affirm his conviction.

I.

[¶ 2] On appeal, Keyes first argues he was denied his constitutional right to confront a witness against him because the State refused to release the informant’s address to him before trial. Our review of a claimed violation of a constitutional right is de novo. State v. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109. On the record before us, we conclude Keyes’ constitutional right to confrontation was satisfied.

[¶ 3] Before his trial, Keyes served a request for discovery asking the State to provide names and addresses of witnesses it planned to call in its case-in-chief. At that time, the State served a response listing the informant only as “C.I. # 209.” Keyes asked for the informant’s identity; however, the State refused to provide the information, citing N.D.C.C. § 44-04-18.3(3) and N.D.R.Ev. 509. On November 30, 1998, the State filed a notice of endorsement of an additional witness, naming the informant. Keyes moved for sanctions, or in the alternative, a continuance, claiming he was prejudiced by the State’s failure to name the informant as a witness because he had not been able to examine her at his preliminary hearing and prepare for her testimony at trial. The State justified its refusal to provide the name and address, again citing § 44-04-18.3(3) and Rule 509, and further argued Keyes already had the informant’s name because the State inadvertently failed to redact her first name on one page of a statement she gave to criminal investigators, which had been provided to Keyes. The trial court granted a continuance so that the defense could depose the informant.

[¶ 4] Keyes deposed the informant on December 8, 1998; during the deposition, Keyes asked her to state her address, however she refused to answer upon the advice of the State. Keyes moved to dismiss the case or, in the alternative, to compel discovery and for a continuance. The trial court never issued a written ruling on the motion to dismiss and did not address the motion in court proceedings. Though we do not condone such inattentiveness on the part of the trial court and counsel, for the purposes of this appeal, we assume the motion to dismiss was denied because the case proceeded to trial and verdict. Under N.D.R.App.P. 35(c), in an appeal from a verdict or judgment, this Court “may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant.”

[¶ 5] The right of a criminal defendant to confront witnesses is found in both the Constitution of the United States and in our own state’s constitution. See U.S. Const, amend. VI; N.D. Const, art. I, § 12; State v. Haugen, 458 N.W.2d 288, 291 (N.D.1990). A criminal defendant has a right not only to confront witnesses physically, but also to cross-examine witnesses. State v. Velasquez, 1999 ND 217, ¶ 8, 602 N.W.2d 693. Our Court has held this right is satisfied when the defendant has had the “opportunity to expose weaknesses” in the testimony of a witness. Id. Though the right of confrontation guarantees to a defendant the opportunity for an effective cross-examination, we have recognized it does not guarantee a “cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Messner, 1998 ND 151, ¶ 10, 583 N.W.2d 109 (quoting United States v. Spotted War Bonnet, 933 F.2d 1471, 1474 (8th Cir.1991)).

[¶ 6] Keyes argues the trial court erred in denying the motion to dismiss. He states that, without the informant’s address, he was unable to conduct a proper background investigation into her character and reputation for truthfulness in the area of her residence, without which he could not effectively cross-examine her at trial. However, the record reflects Keyes had ample opportunity to cross-examine her and did, in fact, expose weaknesses in her testimony. First, though the State did not divulge the informant’s address, it did provide her North Dakota and federal criminal records, containing both felony and misdemeanor convictions. Second, during the deposition, Keyes had an opportunity to ask the informant questions about her background and elicited details about several other criminal convictions which were not listed in the rap sheets. Finally, Keyes extensively cross-examined the informant at trial, eliciting testimony about her prior convictions for drug use, burglary, arson, and the domestic abuse of a boyfriend who had shot her dog. She also admitted on cross-examination that she currently used drugs and worked as a stripper, and once spent several years on the lam attempting to avoid arrest. It seems, to the extent the informant’s character and reputation could be impeached, Keyes did so.

[¶ 7] Keyes argues that in State v. Lince, 490 N.W.2d 476 (N.D.1992), this Court recognized the importance of the State’s disclosure of witnesses, in that it provides a defendant with an opportunity to prepare an effective cross-examination. Keyes correctly states our holding in that case; however, the circumstances presented in Lince are substantially dissimilar from the facts in this case. In Lince, the State provided the defendant with the name of only one witness before trial, but announced it intended to call six witnesses during in-chamber discussions shortly before the trial began. Lince, at 476. Lince argued the State’s untimely disclosure denied him an opportunity to effectively cross-examine the witnesses because he could not conduct investigations of their backgrounds and had no time to obtain an expert to rebut expert testimony offered on behalf of the State. Id. at 477. Unlike the defendant in Lince, Keyes 'possessed the informant’s name, criminal record and deposition testimony prior to trial, and he conducted an effective cross-examination at trial. Our law requires that Keyes be afforded an opportunity to expose weaknesses in a witness’ testimony; we conclude Keyes’ trial presented him with that opportunity and, thus, his constitutional right to confrontation was satisfied.

II.

[¶ 8] Keyes second argument on appeal concerns statements the State made during closing argument, which Keyes asserts were improper and unconstitutional comments on his decision to remain silent. Keyes did not object to these statements at trial; thus this Court will not overturn his conviction unless the statements constituted obvious error affecting his substantial rights. N.D.R.Crim.P. 52(b); State v. Strutz, 2000 ND 22, ¶ 20, 606 N.W.2d 886. Keyes identifies two statements which he asserts infringed upon his constitutional rights. First, during a discussion of the elements of the crime and the proof the State adduced for each element, the State said: “There is no evidence, no testimony, no anything that refutes any of the testimony.” Second, possibly in an attempt to rehabilitate the informant’s credibility, the State made the following argument during rebuttal closing:

The argument was Kevin didn’t want anything to do with [the informant] when she came back. I think the testimony was, too, he doesn’t want to have anything to do with her. Why is he taking phone calls from her on the 19th? She has testified she called him. There is no evidence that she didn’t. Nobody said she didn’t.

Keyes argues the references to the absence of testimony refuting the State’s evidence were an indirect comment on his silence because he was the only person in a position to provide such testimony. We disagree.

[¶ 9] Under the Fifth and Fourteenth Amendments of the United States Constitution, and article I, section 12 of our state’s Constitution, a criminal defendant cannot be compelled to be a witness against herself. We have held that a comment on the defendant’s silence at trial is improper because it violates the defendant’s constitutional right against self-incrimination. State v. Ebach, 1999 ND 5, ¶ 15, 589 N.W.2d 566. We review de novo a claim of a constitutional rights violation. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109.

[¶ 10] We first analyze the State’s reference to the absence of testimony contradicting evidence offered to prove the elements of the crime. We conclude this comment, taken in context, did not reflect on Keyes’ failure to testify and thus was not error. First, the State’s comment emphasized the strength of the case against Keyes as a whole; it did not focus on any particular fact directly calling attention to Keyes’ silence. Second, Keyes called three witnesses in his defense case and, thus, the statement drew the jury’s attention to the fact that the testimony of these witnesses had not diminished the strength of the State’s proffered evidence that Keyes committed the charged crime.

[¶ 11] Turning to the State’s second comment, we conclude this, too, was not error. The informant testified during the State’s case that she had never been romantically involved with Keyes. However, all three witnesses Keyes presented testified she and Keyes dated in the past, and two of the witnesses testified they believed she and Keyes had a sexual relationship. Leatrice Keyes, Keyes’ mother, testified that when the informant came back to Minot after an absence of several years, she attempted to rekindle her relationship with Keyes, but that he spurned her advances. In closing argument, the defense remarked on this testimony, claiming it showed both that the informant had not testified truthfully, and also that she was a jilted lover with her own agenda. Rather than reflecting on Keyes’ /ailure to testify, the State’s comment highlighted an inconsistency between the accounts offered by the State and the defense. See Ebach, 1999 ND 5, ¶ 15, 589 N.W.2d 566 (statement drawing attention to the inconsistency between accounts offered by the defendant and another witness was not an improper comment on the defendant’s silence). Further, the statement directly responded to comments Keyes made in closing argument. Thus, the State’s comment was not an improper reference to Keyes’ silence and did not violate his constitutional rights.

III.

[¶ 12] We conclude Keyes’ constitutional right to confront the witnesses against him was satisfied and the State’s comments in closing argument were not an impermissible comment on Keyes’ right to remain silent. Thus, we affirm his conviction.

[¶ 13] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE Y. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2000 ND 80
    Kathryn OLVERA, Joyce Erlene Schulte, Phyllis Ann Clary, Donald Paul Brown, David Wendel Chase, Judith Helen Kullberg, Sandra Kaye Rupp, Richard Manley Brown, Mildred Brown, Barbara Huff, Diane M. Hembree, Rick Craig Brown, Kathleen J. Smith, Jessie Rolfsrud, Katherine Eichenberger, and Patricia Elmer, Plaintiffs and Appellants, v. Darrell JOHNSON, et al., Defendants and Appellees. Kathryn Olvera, Joyce Erlene Schulte, Phyllis Ann Clary, Donald Paul Brown, David Wendel Chase, Judith Helen Kullberg, Sandra Kaye Rupp, Richard Manley Brown, Mildred Brown, Barbara Huff, Diane M. Hembree, Rick Craig Brown, Kathleen J. Smith, Jessie Rolfsrud, Katherine Eichenberger, and Patricia Elmer, Plaintiffs and Appellants, v. Robert C. Thom and Joan A. Thom, individually and as Trustees of The Thom Trust, et al., Defendants and Appellees. Kathryn Olvera, Joyce Erlene Schulte, Phyllis Ann Clary, Donald Paul Brown, David Wendel Chase, Judith Helen Kullberg, Sandra Kaye Rupp, Richard Manley Brown, Mildred Brown, Barbara Huff, Diane M. Hembree, Rick Craig Brown, Kathleen J. Smith, Jessie Rolfsrud, Katherine Eichenberger, and Patricia Elmer, Plaintiffs and Appellants, v. Scott P. Bradac, et al., Defendants and Appellees.
    Nos. 990316-990318.
    Supreme Court of North Dakota.
    April 25, 2000.

      John L. Sherman (argued), Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, N.D., for plaintiffs and appellants.
    Lawrence Bender (argued), Pearce & Durick, Bismarck, N.D.; LaRoy Baird III (appearance), LaRoy Baird, P.C., Bismarck, N.D.; Todd D. Kranda (appearance), Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D.; T.L. Secrest (appearance), Secrest Law Firm, Hettinger, N.D.; and Craig C. Smith (appearance) and John W. Morrison (appearance), Fleck, Mather & Strutz, Bismarck, N.D., for defendants and appellees.
   NEUMANN, Justice.

[¶ 1] The plaintiffs, heirs of the stockholders of Brown Brothers Corporation, appeal from summary judgments quieting title to mineral interests in defendants who claim the minerals through a chain of title emanating from foreclosures by advertisement of 1915 mortgages. The common issue in these three appeals is whether Brown Brothers Corporation’s severed mineral interests were terminated by the foreclosures by advertisement. We hold the foreclosures by advertisement under 1913 N.D. Comp. Laws ch. 30 terminated Brown Brothers Corporation’s mineral interests, and we affirm.

I

[¶ 2] The plaintiffs claim title to the mineral interests in several tracts of land in Bowman County by virtue of a March 17, 1921 instrument conveying the mineral interests from Brown Brothers State Bank and Trust Company to Brown Brothers Corporation. At that time, the tracts of land were subject to mortgages that contained “power of sale” clauses and were executed in 1915. In late 1922 and 1923, the mortgagees and their assignees commenced proceedings to foreclose the 1915 mortgages by advertisement. They caused notices before foreclosure to be served on the surface owner and notices of mortgage foreclosure sales to be published in the Bowman County Pioneer for six consecutive weeks. The Bowman County Register of Deeds mailed printer’s affidavits of publication to the surface owner. Brown Brothers Corporation was not served with the notices before foreclosure and was not sent printer’s affidavits of publication. The property was sold at sheriff sales to the respective mortgagees or their assignees, who listed their addresses in some of the deeds as Aberdeen, South Dakota, c/o Brown Brothers Corporation. All the defendants except Joseph Dobson, James Dobson, Mary Frances Peterson, The Dublin Company, and Altair Corporation claim mineral interests in the property through a chain of title emanating from the deeds to the mortgagees and their assignees.

[¶ 3] In three separate actions involving the different tracts of land, the plaintiffs sued the defendants to quiet title to the mineral interests. The trial court granted the defendants summary judgments, ruling the foreclosures by advertisement terminated Brown Brothers Corporation’s mineral interests. The court said Brown Brothers Corporation’s mineral interests were terminated even though it had not received notice of the foreclosures, because the foreclosures were by advertisement and under Patterson Land Co. v. Merchants’ Bank, 55 N.D. 90, 212 N.W. 512 (1927) and the law in effect when the mortgages were executed in 1915, no service of notice of intention to foreclose was required for a foreclosure by advertisement. See 1913 N.D. Comp. Laws ch. 30. The court said the deeds from the foreclosures by advertisement had the same force and effect under 1913 N.D. Comp. Laws § 8087 as a deed from a foreclosure action in which all persons having an interest in the property subsequent to the mortgage were made parties and duly served with process. We consolidated the plaintiffs’ appeals.

II

[¶ 4] We consider the plaintiffs’ appeals in the posture of summary judgment, which is a procedure for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences' to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. DeCoteau v. Nodak Mutual Ins. Co., 2000 ND 3, ¶ 7, 603 N.W.2d 906.

A

[¶ 5] The plaintiffs argue the trial court erred’ in deciding Brown Brothers Corporation’s severed mineral interests were terminated by the foreclosures by advertisement, because other than publication of the notices of sale in the Bowman County Pioneer for six weeks, Brown Brothers Corporation did not receive notice of the foreclosures. The plaintiffs argue Patterson Land Co. is not readily adaptable to nonpossessory severed mineral interests, and seek to apply the rationale of Yttredahl v. Federal Farm Mortgage Corp., 104 N.W.2d 705 (N.D.1960), which requires notice to the owner of a severed mineral interest before that interest can be foreclosed.

[¶ 6] In Patterson Land Co., the defendant claimed title to land through a 1923 foreclosure of a 1917 mortgage. The parties conceded the 1923 foreclosure proceedings were valid, except a notice of intention to foreclose was irregular. The trial court found the notice of intention to foreclose was irregular and insufficient, but decided the foreclosure was valid because a 1919 statute requiring service on the title owner of a written notice of intention to foreclose a mortgage and a 1921 amendment did not apply to the 1917 mortgage. This Court held the notice statutes did not apply to the foreclosure of a mortgage executed before 1919, because the Legislature did not make the 1919 and 1921 statutes retroactive. Patterson Land Co., 55 N.D. at 93, 212 N.W. at 513. See also Shirley v. State, 103 N.W.2d 103, 108 (N.D.1960) (holding 1943 foreclosure law not retroactive).

[¶ 7] Here, under Patterson Land Co., the law in effect when these 1915 mortgages were entered governs the foreclosure proceedings. That law was codified at 1913 N.D. Comp. Laws ch. 30, and for mortgages containing a power of sale clause, permitted foreclosure by advertisement. 1913 N.D. Comp. Laws § 8073. Under that law, a foreclosure by advertisement was commenced by publishing a notice of foreclosure once each week for six consecutive weeks in the newspaper of the county where the property was located. 1913 N.D. Comp. Laws § 8079. The published notice of foreclosure was required to state the names of the mortgagor and the mortgagee, the date of the mortgage, the book and page of the recorded mortgage, the date of sale, and the amount due on the mortgage on the date of sale. 1913 N.D. Comp. Laws § 8080. The sale was by public auction, and the purchaser was entitled to a certificate of sale. 1913 N.D. Comp. Laws §§ 8081, 8084. If the mortgaged premises were not redeemed within one year, the purchaser was entitled to a deed, which had “the same force and effect as if it had been executed pursuant to a sale under a foreclosure of the mortgage by an action in which all persons having an interest in or lien upon the property subsequent to the mortgage were made parties and duly served with process.” 1913 N.D. Comp. Laws § 8087.

[¶ 8] The plaintiffs have cited no statutory provisions requiring service of notice of intention to foreclose before a proceeding could be commenced to foreclose these 1915 mortgages by advertisement. See 1927 N.D. Sess. Laws ch. 143, § 2, codified at N.D.C.C. § 1-05-07 (stating any sale of real estate made upon foreclosure of a mortgage executed before July 1, 1919 is valid for all purposes although no notice of intention to foreclose was given). Other than notice by publication, the 1913 law did not require notice before foreclosure by advertisement for a mortgage containing a power of sale clause.

[¶ 9] The plaintiffs’ reliance on Yttredahl, 104 N.W.2d at 707, is misplaced because it did not involve a foreclosure by advertisement; rather, it addressed the consequences of the failure to name mineral owners as defendants in an action to foreclose a mortgage executed after 1919. Yttredahl is not applicable to a foreclosure by advertisement of a mortgage executed before 1919. Under the 1913 law, Brown Brothers Corporation’s mineral interests were terminated by the foreclosures by advertisement of the 1915 mortgages, because the deeds issued had the same force and effect as deeds issued after a foreclosure by action in which all persons having an interest in the property subsequent to the mortgage were made parties and duly served with process.

B

[¶ 10] The plaintiffs argue the mortgagees and their assignees did not intend to foreclose Brown Brothers Corporation’s mineral interests. The plaintiffs argue, as a matter of law, the mortgagees and their assignees waived their right under the 1913 law to foreclose Brown Brothers Corporation’s mineral interests without notice, because (1) they served a notice before foreclosure on the surface owner, but not on Brown Brothers Corporation; (2) they did not cause the register of deeds to serve notice of the foreclosure sale on Brown Brothers Corporation; and (3) they listed them addresses in some sheriff deeds as Aberdeen, South Dakota, c/o Brown Brothers Corporation. Alternatively, the plaintiffs argue those circumstances raise disputed issues of material fact regarding waiver.

[¶ 11] The 1913 law governed the foreclosures by advertisement, and other than notice by publication, that law did not require service of notice before foreclosure. The mortgagees and their assignees were not required by law to serve a notice of intention to foreclose on Brown Brothers Corporation, and we reject any implication the superfluous service of notice on the surface owner evidences an intent not to foreclose Brown Brothers Corporation’s mineral interests. The plaintiffs’ argument ignores the clear language of the 1913 law that a deed issued after a foreclosure by advertisement had the same force and effect as a deed issued in a foreclosure by action in which all persons having a post-mortgage interest in the property were made parties. Under the 1913 law, Brown Brothers Corporation’s mineral interests were terminated by the foreclosures by advertisement, and we are not persuaded the undisputed facts of this case vitiate the legal effect of the foreclosures by advertisement. We conclude the trial court did not err in granting summary judgment quieting title to the mineral interests in defendants who claim the minerals through the chain of title emanating from the foreclosures by advertisement.

Ill

[¶ 12] We affirm the summary judgments.

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

      . The trial court decided the March 17, 1921 instrument was a mineral deed. On appeal, the defendants have not challenged the court’s interpretation of that instrument.

      . Dobsons, Peterson, The Dublin Company, and Altair Corporation claim interests in the property from the same source as the plain
        tiffs — the March 17, 1921 instrument conveying the minerals from Brown Brothers State Bank and Trust Company to Brown Brothers Corporation.

      . 1919 N.D. Sess. Laws ch. 131, as amended by 1921 N.D. Sess. Laws ch. 66, provided:
      § 1. Before any action or proceeding shall be commenced to foreclose a mortgage on real property, a written notice describing the land, the date and amount of the mortgage, the sum due for principal, interest and taxes respectively, and stating that if the same be not paid within thirty days from the date of the notice, proceedings will be commenced to foreclose the mortgage, shall be served more than thirty days prior to the commencement of such action or proceedings by registered mail addressed to the title owner according to the records in the Register of Deeds office at his or their post office address as shown by the records in the Register of Deeds office and if not shown, then addressed to said owner at the post office nearest the land. An affidavit of proof of such service of notice shall be filed with the Clerk of the Court at the time of filing complaint in any action for foreclosure and shall be filed and recorded with the notice and certificate of sale in all other cases. Provided, however, that if said owner shall, before the expiration of thirty days from the service of such notice, perform the conditions or comply with the provisions upon which the default shall have occurred, such mortgage shall be reinstated and shall remain in full force and effect the same as if no default had occurred therein.
      Provided, further, that if an action or proceeding to foreclose is not begun within ninety days after the date of the notice herein provided for, then all proceedings hereunder shall be deemed to be discontinued.

      . In Robinson v. McKinney, 4 Dakota 290, 294, 29 N.W. 658, 659 (1886), the Supreme Court of the Territory of Dakota held statutory provisions authorizing foreclosure by advertisement of mortgages containing a power of sale clause did not deprive the mortgagor of property without due process. In Bailey v. Hendrickson, 25 N.D. 500, 510, 143 N.W. 134, 137 (1913), this Court held actual knowledge of a foreclosure by advertisement was not required for the foreclosure to be valid and notice by publication had the same binding effect as a foreclosure by action where the parties are personally served with process. The plaintiffs have not raised any issues in this case about the constitutionality of the 1913 statutes.


text:
    2000 ND 81
    STATE of North Dakota, Plaintiff and Appellee, v. James REAMANN, Defendant and Appellant.
    No. 990391.
    Supreme Court of North Dakota.
    April 25, 2000.
    David N. Ogren, Herr & Ogren, Wishek, N.D., for defendant and appellant.
    Donald R. Becker, State’s Attorney, Linton, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] James Reamann was convicted of simple assault for assaulting Vanessa Grenz. On appeal, he argues the trial court abused its discretion by denying him an opportunity to question Grenz about whether she previously made accusations of assault against other individuals. He asserts he made an offer of proof regarding these previous accusations to the trial court during a bench conference; however, no record was made of the bench conference. The State concedes an offer of proof was made, but disagrees with Reamann as to its substance. Reamann admits he made no attempt to comply with N.D.R.App.P. 10(f), which states:

If no verbatim record of the evidence or proceedings at a hearing or trial was made or a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement must be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments must be submitted to the trial court for settlement and approval and, as settled and approved, must be filed with the clerk of the supreme court by the appellant within 60 days after the notice of appeal is filed.

Without a record of the offer of proof, Reamann is unable to show the trial court abused its discretion. See City of Fargo v. Bommersbach, 511 N.W.2d 563, 566 (N.D.1994). Therefore, we affirm his conviction.

[¶ 2] GERALD W. VANDE WALLE, C. J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2000 ND 79
    Dallan BUCHMANN, Claimant and Appellant, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Magi Touch Carpet and Furniture, Respondent.
    No. 990362.
    Supreme Court of North Dakota.
    April 25, 2000.

      Kathryn L. Dietz, of Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Dalian Buchmann appealed a district court judgment affirming an order of the North Dakota Workers Compensation Bureau for payment of medical expenses and partial disability benefits. We affirm.

[¶ 2] While employed as a floor covering salesperson, Buchmann injured his back and hip lifting a roll of carpet in 1996 and filed a workers compensation claim. The Bureau accepted the claim and awarded benefits. Buchmann had back surgery on March 18,1998.

[¶ 3] Buchmann participated in a Functional Capacity Evaluation on October 19 and 20, 1998. Jeanne DeKrey, P.T., prepared a report of that evaluation. Under “SIGNIFICANT ABILITIES,” the report said Buchmann demonstrates “Maximum lifting abilities of up to 30 lbs.”; “Pushing and pulling forces of greater than 50 lbs.”; “Frequent tolerance of sitting if no more than 30 minutes at a time”; and “Frequent tolerance of walking if self-paced.” Under “SIGNIFICANT DEFICITS,” the report listed, among other things: “Primary limitations were with movement to the floor limiting his ability to lift from floor level, crouching, and repetitive squatting,” and “Tolerates static standing up to 15 minutes duration, occasionally through the day.” The report stated: “In general, Mr. Buch-mann’s abilities place him in the LIGHT to MEDIUM work categories as defined by the Dictionary of Occupational Titles.”

[¶ 4] On November 18, 1998, Buchmann and Debra Osowski, a rehabilitation consultant, signed a vocational plan worksheet stating Dr. Dilla had released Buchmann for full-time work, listing “sales” among Buchmann’s transferable skills, listing “sales” among other job goals with light and medium physical demand levels, and stating:

These transferable skills/job goals have been reviewed with me. I understand these skills/goals may be used in the development of a vocational plan. My signature below indicates the Rehabilitation Consultant and I reviewed this together.

[¶ 5] A December 18, 1998, vocational rehabilitation plan prepared by Debra Osowski provided in part:

During the Vocational Assessment Appointment and Initial Interview, the Vocational Rehabilitation Hierarchy was reviewed. I explained to Mr. Buchmann at the time of the Vocational Assessment Appointment that although he may not be able to return to the field of carpet sales due to the moving of merchandise, other sales job goals were being explored. He did not express concern with this issue....
VOCATIONAL GOAL:
1. JOB TITLE: Salesperson, General Merchandise
DOT CODE: 279.357-054/279.357-014
PHYSICAL DEMANDS: Light
JOB DESCRIPTION: Sells variety of merchandise, such as dry goods, notions and housewares to retail stores or other outlets.
AVAILABILITY OF EMPLOYMENT: Labor market research indicates there is a viable labor market for this job goal....
ANTICIPATED WAGE: $8.63 per hour or $345.20 per week
CONCLUSIONS AS TO FEASIBILITY OF JOB GOAL: Based on Mr. Buchmann’s prior sales experience, employer contacts and local labor market research, it appears that this job goal is physically appropriate, has a viable labor market and meets income test guidelines. Mr. Buchmann has demonstrated he possesses the skills necessary to perform this type of work. There are several areas of sales available to Mr. Buch-mann despite the fact that he is no longer able to sell floor coverings.

[¶ 6] On January 12, 1999, the Bureau mailed Buchmann a notice of intention to discontinue or reduce benefits. The notice said Buchmann’s temporary total disability benefits would be discontinued or reduced, effective February 2, 1998. It specified the following reasons for the benefit discontinuance or reduction:

Your vocational rehabilitation plan has been approved. You have transferable skills to return to work as a salesperson, general merchandise. You may be eligible for partial disability benefits based on the earnings capacity of $345/week or your actual earnings, whichever is higher.

The notice informed Buchmann his right to receive medical treatment or permanent partial impairment benefits was not affected. It also advised Buchmann he must contact the Bureau within 30 days if he believed the Bureau’s action was incorrect. The Bureau sent Buchmann another notice on January 15, 1999, amending the effective date of discontinuation from February 2, 1998, to February 2,1999.

[¶ 7] On January 15, 1999, Buchmann delivered to the Bureau a response to the first notice, stating, in part:

I am asking you to reconsider this decision for the following reasons. I am still having considerable discomfort in my lower back, right hip and right leg. I can’t sit very long without having to stand up then I can’t stand very long before I have to sit down — a continuing cycle. Also I have trouble sleeping at night.
At my last doctor’s appointment I expressed my concern about the continuing discomfort that I was having and I was told that it could take a year to a year and a half to heal.

[¶ 8] On January 29, 1999, the Bureau issued an order awarding partial disability benefits, thereby terminating Buchmann’s temporary total disability benefits. The Bureau found:

V.
Claimant’s significant work history includes work as a carpet salesperson, route sales worker, and carpet installer. Claimant’s average weekly earnings at time of injury were $395.00 per week.
VI.
Claimant’s medical limitations restrict claimant to light to medium level work.... The Functional Capacities Assessment dated October 19, 1998, and October 20, 1998, is incorporated herein by reference.
VII.
The greater weight of the evidence indicates that considering claimant’s education, experience, skills and medical limitations, claimant is able to pursue employment as a salesperson in general merchandise, advertising, and automobile sales.

The Bureau concluded:

II.
The first appropriate rehabilitation option under N.D.C.C. § 65-05.1-01(4) is return to related work suited to claimant’s experience, education, and marketable skills.
III.
Claimant is entitled to partial disability benefits pursuant to N.D.C.C. § 65-05-10.... Claimant is not entitled to vocational rehabilitation benefits or disability benefits beyond those provided by this order.

The Bureau ordered that Buchmann’s medical expenses be paid and ordered that he “receive partial disability benefits pursuant to N.D.C.C. § 65-05-10 which is 66-2/3% of the difference between pre-injury earnings and the higher of $345.20 per week or actual earnings.”

[¶ 9] Buchmann requested a rehearing. A temporary administrative law judge (“ALJ”), held a hearing on June 9, 1999, and issued recommended findings of fact, conclusions of law, and order affirming the Bureau’s order on June 29, 1999. In an order of July 16, 1999, the Bureau adopted the ALJ’s recommended findings, conclusions and order. Buchmann appealed to the district court. The district court affirmed the Bureau’s order, resulting in the instant appeal.

I

[¶ 10] On appeal, we review the Bureau’s decision, not the district court’s decision. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 18, 606 N.W.2d 501. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm an administrative agency decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violates the appellant’s constitutional rights, or the agency’s rules or procedures deprived the appellant of a fair hearing. Id. Our review of an agency’s findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence in the record. Id. at ¶ 19. Questions of law are fully reviewable on appeal from a Bureau decision. Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, ¶ 8, 602 N.W.2d 704.

II

[¶ 11] Buchmann contends he was “denied adequate pre-termination due process,” asserting the notice “did not contain a summary of evidence relied upon and Buchmann did not receive a copy of the vocational plan from the Bureau that was the basis for the proposed action.” Buch-mann also asserts “[h]e had no idea what evidence the Bureau was relying upon.”

[¶ 12] “Due process requires a participant in an administrative proceeding be given notice of the general nature of the questions to be heard, and an opportunity to prepare and to be heard on those questions.” Saakian v. North Dakota Workers Comp. Bureau, 1998 ND 227, ¶ 11, 587 N.W.2d 166. “Notice is adequate if it apprises the party of the nature of the proceedings so there is no unfair surprise.” Id. Additional considerations come into play when the Bureau proposes to terminate benefits without first conducting a hearing. A continuing right to disability benefits under the Workers Compensation Act is a property right protected by the due process clauses of the state and federal constitutions. Beckler v. North Dakota Workers Comp. Bureau, 418 N.W.2d 770 (N.D.1988). In Beckler, this Court held the Bureau denied Beckler due process of law because its “procedures did not give Beckler a pretermination notice that his disability benefits would be terminated, a summary of the medical evidence supporting termination, and an opportunity to respond.” Id. at 775. A benefit recipient’s pretermination opportunity to respond may “be limited to a written submission as an initial check against an erroneous decision” if the Bureau conducts “a timely post-termination evidentiary hearing” and it has “authority to award retroactive disability benefits.” Id. As we reiterated in Vernon v. North Dakota Workers Comp. Bureau, 1999 ND 153, ¶ 18, 598 N.W.2d 139, in Beckler “this Court held due process under the federal and state constitutions requires the Bureau to give a claimant pre-termination notice of its intent to terminate disability benefits, a summary of the evidence supporting termination, and an opportunity to respond.”

[¶ 13] “The pretermination procedure must include, at a minimum, pre-termination notice of the contemplated action, a summary of the evidence supporting the proposed termination, and a pretermination opportunity to respond in writing to the alleged grounds for termination.” Stewart v. North Dakota Workers Comp. Bureau, 1999 ND 174, ¶ 12, 599 N.W.2d 280. “The pretermination notice must be sufficiently detailed to frame the precise issues, delineate the Bureau’s theories and rationale for terminating benefits, and summarize the significant evidence supporting the Bureau’s conclusions.” Id. at ¶ 19. However, a pretermination notice need “not provide the equivalent of a full evidentiary hearing. ... The notice need only disclose the evidence in a summary fashion, sufficient to allow meaningful response.” Id. at ¶ 19 n. 4.

[¶ 14] The Bureau’s pretermination notices advised Buchmann his temporary total disability benefits were being discontinued because his vocational rehabilitation plan had been approved, and he had transferable skills to work as a general merchandise salesperson. While brief, the notices did “disclose the evidence in a summary fashion, sufficient to allow meaningful response,” Stewart, ¶ 19 n. 4. It did “summarize the significant evidence supporting the Bureau’s conclusions.” Stewart, at ¶ 19.

[¶ 15] Very shortly before the Bureau issued the first notice, Buchmann had participated in the formulation of his rehabilitation plan. Buchmann had participated in a Functional Capacity Evaluation in October 1998. In November 1998, Buchmann acknowledged in writing that the rehabilitation consultant had reviewed his “transferable skills/job goals” with him, and that he understood “these skills/goals may be used in the development of a vocational plan.” Thus, Buchmann’s assertion that “[h]e had no idea what evidence the Bureau was relying upon” is somewhat disingenuous. Buchmann responded in writing on January 15, 1999, to the Bureau’s January 12, 1999, notice, and requested reconsideration because he was experiencing continuing discomfort and an inability to either sit or stand for very long periods of time. That written response was adequate to serve as “an initial check against an erroneous decision,” Beckler, 418 N.W.2d at 775.

[¶ 16] Buchmann contends he “was offered a 30-day window of opportunity to respond which was not honored by the Bureau.” Buchmann responded in writing within three days of the first notice. The notice told Buchmann to respond within 30 days if he thought the Bureau’s action was incorrect. The first notice advised Buch-mann benefits would be discontinued or reduced effective February 2, 1998, which the second notice corrected to February 2, 1999, which was 21 days from the date the first notice was issued. Issuing a notice advising a recipient his benefits will be discontinued or reduced in 21 days and telling him he must respond within 30 days carries with it a potential for confusion. However, in this case, Buchmann responded in three days, and he was not misled or prejudiced.

[¶ 17] We conclude the Bureau’s preter-mination procedures did not deprive Buch-mann of due process.

Ill

[¶ 18] Buchmann contends the Bureau was required, “as a matter of providing adequate due process, to conduct a formal evidentiary hearing before terminating Buchmann’s benefits.” Buchmann asserts:

A post-deprivation evidentiary hearing was not held for over four months after benefits were terminated, and a final order following that hearing was not issued by the Bureau for five additional months. Under these circumstances, Buchmann was entitled to a pre-termi-nation evidentiary hearing.

[¶ 19] We have already determined the Bureau’s pretermination procedures did not deprive Buchmann of due process. The Bureau issued its initial notice January 12, 1999. Buchmann responded in writing January 15, 1999, providing “an initial check against an erroneous decision,” Beckler, 418 N.W.2d at 775. The Bureau issued an order January 29, 1999, and issued a similar order February 3, 1999. Buchmann requested, a rehearing March 4, 1999. A hearing was scheduled for May 19,1999, but it was rescheduled to accommodate discovery. A hearing was held on June 9, 1999. The ALJ issued recommended findings of fact, conclusions of law, and order June 29, 1999. The Bureau issued an order adopting the ALJ’s recommended order as the Bureau’s final order on July 16,1999.

[¶ 20] The Bureau’s “preter-mination procedures must be followed by a timely post-termination evidentiary hearing ... at a meaningful time.” Stewart v. North Dakota Workers Comp. Bureau, 1999 ND 174, ¶ 21, 599 N.W.2d 280. “Sanctions for administrative delay are generally warranted only when a party has shown substantial prejudice from an unreasonable delay.” Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 35, 606 N.W.2d 501. From our review of the record in light of Buchmann’s arguments, we conclude Buchmann has not “shown substantial prejudice from an unreasonable delay,” id. We conclude the Bureau was not required to hold an evi-dentiary hearing before terminating Buch-mann’s temporary total disability benefits.

IV

[¶ 21] Buchmann contends the Bureau’s Findings of Fact 5, 6, 12, 13, 14, 15, and 16 are not supported by a preponderance of the evidence and its conclusions of law are not supported by findings of fact supported by a preponderance of the evidence. The Bureau found:

15. The greater weight of the evidence indicates that considering claimant’s education, experience, skills and medical limitations, claimant is able to pursue employment as a salesperson in general merchandise, advertising, and automobile sales.
16. The identified job goals provide claimant with a retained earning capacity of $345.20 per week. Claimant’s pre-injury weekly wage was $395.00. Accordingly, claimant may be entitled to partial disability benefits.

[¶ 22] Buchmann’s challenge to the Bureau’s findings is primarily based upon his belief he cannot get a sales position that will pay him $345.20 per week. A vocational rehabilitation plan cannot guarantee an injured worker either a job or a predetermined weekly wage. Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 59 (N.D.1996); Held v. North Dakota Workers Comp. Bureau, 540 N.W.2d 166, 170 (N.D.1995). Chapter 65-05.1, N.D.C.C., “does not require certainty.” Held, at 169. As we explained in Lucier:

The question for the hearing officer, and for this court, is not whether the vocational consultant’s plan would be eventually successful. Rather, the question is whether the plan, at the time, gave Lucier a reasonable opportunity to obtain substantial gainful employment in the state.

Lucier, 556 N.W.2d at 60.

[¶ 23] Our review of an administrative agency’s findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence in the record. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 19, 606 N.W.2d 501. No productive purpose would be served by detailing Buchmann’s testimony, the medical evidence, or the evidence provided by the parties’ rehabilitation consultants. After reviewing the record, we conclude a reasoning mind could reasonably find, as the Bureau did, that Buchmann “is able to pursue employment as a salesperson in general merchandise, advertising, and automobile sales” and the identified job goals provide him “a retained earning capacity of $345.20 per week.” It is unnecessary to separately review the other challenged findings underlying Findings 15 and 16. We conclude the challenged findings of fact are supported by a preponderance of the evidence.

V

[¶ 24] Buchmann contends: “The Bureau unfairly and without adequate explanation and an effort to reconcile conflicting expert opinions, disregarded the expert opinion of Robert Weber in favor of the less experienced, unsupported opinion of the Bureau’s rehabilitation consultant.”

[¶ 25] The Bureau clearly gave greater credence to the testimony of Debra Osowski, the rehabilitation consultant working with Buchmann, than it did to Weber’s deposition. The Bureau has discretion to weigh the evidence before it, although it may not pick and choose in an unreasonable manner. Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, ¶ 13, 574 N.W.2d 784. The Bureau explained why it placed less credence on Weber’s opinion than on Osowski’s in the following finding:

Robert Weber’s expert opinion that claimant is without transferable skills and cannot be hired because of his physical restrictions is not persuasive. Claimant’s extensive sales experience is a transferable skill. It matters little that his sales experience has, for the most part, been limited to selling floor covering. Employers of sales personnel look for sales experience, not particular product knowledge. It is common sense that one could possess all of the product knowledge in the world, but if that person cannot sell, he cannot perform the essential job function of a salesperson. Claimant does have the experience, skill, and aptitude to pursue employment as a salesperson. It is simply unreasonable for claimant to argue that with his seventeen years of professional sales experience, he is not qualified to sell anything but carpet, and that he is qualified only to be a sales clerk making minimum wage. With regard to claimant’s physical restrictions, claimant’s treating physician released him to work in a light duty category. The job goals fit that category. And while Weber stated that claimant would not be able to change positions while working as a salesperson, the FCA specifically found that claimant’s salesperson duties of sitting, standing, and walking were within claimant’s physical restrictions. Weber’s opinion that there are no sales jobs that claimant can do is pure supposition, as Weber demonstrated by claiming that “he can say that without talking to employers.” In fact, the Corvel rehabilitation consultant did talk to employers of salespeople, and four of six employers reported lifting within claimant’s abilities; and should heavier items need to be moved, assistance was available.

The finding adequately explains why the Bureau discounted Weber’s opinion and more highly credited Osowski’s opinion. We conclude the Bureau did not abuse its discretion in weighing the evidence before it.

VI

[¶ 26] The judgment is affirmed.

[¶ 27] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., concur.

The Honorable CAROL RONNING KAPSNER disqualified herself subsequent to oral argument and did not participate in this decision.

      . Certainly, it would have been better for all concerned if the Bureau had sent a copy of Buchmann’s rehabilitation plan with the notice, which would have narrowed the range of dispute. In cases in which there is a greater time period between a claimant's participation in a rehabilitation plan and the Bureau’s notice, it may well be necessary to include a copy of the claimant's rehabilitation plan with the notice, rather than relying on a claimant's subjective ability to analyze the notice and gauge the strength of the Bureau's case.


text:
    2000 ND 77
    Vicki LEWIS, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Investment Centers of America, Respondent.
    No. 990300.
    Supreme Court of North Dakota.
    April 25, 2000.

      Stephen D. Little, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.
    Tracy Vigness Kolb, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   MARING, Justice.

[¶ 1] Vicki Lewis appealed from an order denying her N.D.R.Civ.P. 60(b) motion for relief from a judgment affirming a Workers Compensation Bureau order awarding her benefits. We conclude N.D.R.Civ.P. 60(b) does not apply to a district court’s review of an appeal from a Bureau decision, and we dismiss the appeal.

I

[¶ 2] Lewis filed a claim for workers compensation benefits alleging she was injured on June 13, 1996, while employed at Investment Centers of America in Bismarck. Lewis stated the nature of her injury was throat nodules caused by overuse of her voice. The Bureau determined Lewis’s injury was not work-related, and dismissed her claim. Lewis requested a rehearing, and a formal administrative hearing was held. The administrative law judge (“ALJ”) recommended finding Lewis had sustained a compensable injury and was entitled to appropriate workers compensation benefits. The Bureau adopted the ALJ’s recommendations on June 23, 1998, but made additional findings and conclusions denying Lewis any disability benefits after November 18, 1996, when she left her employment. Lewis petitioned for reconsideration, which was denied by the Bureau.

[¶ 3] On September 1, 1998, Lewis appealed the Bureau’s June 23, 1998 order to district court, challenging the Bureau’s limitation of her disability benefits. On December 22, 1998, about one week before the district court ruled on Lewis’s appeal, this Court decided Scott v. North Dakota Workers Compensation Bureau, 1998 ND 221, ¶¶ 18, 22, 587 N.W.2d 153, in which we held ex parte contacts between the Bureau’s outside counsel and the Bureau official who had rejected the ALJ’s recommendation violated N.D.C.C. § 28-32-12.1(3), requiring reinstatement of the ALJ’s recommendation. On December 28, 1998, the district court affirmed the Bureau’s order on Lewis’s claim and notice of entry of judgiAent was filed on January 19, 1999.

[¶ 4] On February 9, 1999, Lewis moved the district court for relief from the January 1999 judgment under N.D.R.Civ.P. 60(b). Lewis alleged there was “fraud, misrepresentation or misconduct of the Workers Compensation Bureau in allowing improper ex parte contact, whether direct or indirect,” between the Bureau’s director of claims and its outside counsel, and requested the court reinstate the ALJ’s recommended decision under the reasoning of Scott. On February 24, 1999, the district court ordered “any ex[ Jparte contacts between the Bureau’s decision-maker and the Bureau’s litigation counsel should be disclosed and made part of the certified record.” After the Bureau disclosed the ex parte communications, the court, on June 28, 1999, denied Lewis’s motion for relief from judgment “because she failed to raise the issue about ex parte communications in her specifications of error and did not preserve the issue for appeal to the district court.”

[¶ 5] On October 1, 1999, Lewis appealed from both the January 1999 judgment affirming the Bureau’s decision and the June 28, 1999 order denying her Rule 60(b) motion for relief from judgment. In an unpublished order, we dismissed Lewis’s appeal from the January 1999 judgment because it was untimely, but allowed the parties to submit briefs “addressing whether a 60(b) motion is available in an administrative proceeding and, if so, whether the trial court erred in denying the 60(b) motion.”

II

[¶ 6] Determining whether N.D.R.Civ.P. 60(b) applies in an administrative appeal to district court requires an examination of the interplay between the relevant statutory appeal procedures and the Rules of Civil Procedure.

[IT 7] The right of appeal is governed by statute. Davis v. State Job Service, 365 N.W.2d 497, 499 (N.D.1985). The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, controls appeals of Bureau decisions to the district court. N.D.C.C. § 65-10-01. The Rules of Civil Procedure “do not supersede the provisions of statutes relating to appeals to or review by the district courts, but shall govern procedure and practice relating thereto insofar as these rules are not inconsistent with such statutes.” N.D.R.Civ.P. 81(b). Thus, N.D.R.Civ.P. 60(b) would be applicable on an appeal to district court from a Bureau decision unless Rule 60(b) is inconsistent with the statutory procedures. See Lende v. North Dakota Workers Compensation Bureau, 1997 ND 178, ¶ 30, 568 N.W.2d 755; Reliance Ins. Co. v. Public Service Commission, 250 N.W.2d 918, 920-22 (N.D.1977).

[¶ 8] An appeal from an administrative agency to the district court invokes that court’s appellate jurisdiction. Gregory v. North Dakota Workers Compensation Bureau, 1998 ND 94, ¶ 7, 578 N.W.2d 101. The scope of review and the procedure for appeals to district court from administrative decisions is set forth in N.D.C.C. § 28-32-19:

A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order of the agency unless it shall find that any of the following are present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. Provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
If the order of the agency is not affirmed by the court, it shall be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the order of the court.

[¶ 9] The appeal statute specifically limits a district court’s appellate review to the administrative agency record filed with the court, and requires affir-mance unless one of six conditions is met. If the court does not affirm, the court is limited to modifying or reversing the decision, and remanding to the agency for appropriate disposition. Although N.D.C.C. § 28-32-18 allows a party to apply to the court in which an administrative appeal is pending for leave to adduce additional evidence, if leave is granted the court does not consider the additional evidence, but may only remand to the agency for the agency to consider the evidence. See Flink v. North Dakota Workers Compensation Bureau, 1998 ND 11, ¶ 21, 574 N.W.2d 784. The district court is forbidden from considering evidence which has not been presented to the administrative agency. See Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 705 (N.D.1995). Appeals to this Court are authorized only from “[t]he judgment of the district court in an appeal from an order ... of an administrative agency.” N.D.C.C. § 28-32-21. See Center State Bank, Inc. v. State Banking Bd., 276 N.W.2d 132, 134 (N.D.1979).

[¶ 10] Rule 60(b) permits a party to move to set aside a judgment for various reasons, and provides courts with discretionary powers “ ‘to relieve the oppressed from the burden of judgments unfairly, fraudulently or mistakenly entered.’ ” In re Estate of Jensen, 162 N.W.2d 861, 873 (N.D.1968) (quoting Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (E.D.Wis.1956)). Rule 60(b) is remedial in nature, United Accounts, Inc. v. Lantz, 145 N.W.2d 488, 493 (N.D.1966), and requires a court to balance the concept of res judicata and the very strong public policy concern for the finality of judgments against the desire to do justice. Hamilton v. Hamilton, 410 N.W.2d 508, 510 (N.D.1987). Relief under Rule 60(b) ordinarily is obtained by motion in the court that rendered the challenged judgment because the rendering court will be far more familiar with the case and with the circumstances that are said to provide grounds for relief from the judgment. 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2865, at pp. 377-78 (1995). Because the trial court ordinarily has presided over the proceedings leading to the challenged judgment and because of the trial court’s fact-finding capabilities, we have said the trial court is in a much better position than an appellate court, which must rely on a cold record, to pass upon the issues presented in a Rule 60(b) motion. See Buzzell v. Libi, 340 N.W.2d 36, 41 (N.D.1983).

[¶ 11] In view of the district court’s purely appellate function in the administrative process and the nature of a motion for relief from judgment, we conclude Rule 60(b) is inconsistent with the statutory appeal procedures of the Administrative Agencies Practice Act. Section 28-32-19, N.D.C.C., contains specific limitations on a court’s powers of adjudicative disposition, and nothing in the statute grants a court the power to revisit its judgment. Applying Rule 60(b), which is a rule of trial procedure, to an administrative appeal, which invokes the court’s appellate jurisdiction, is not only awkward in a theoretical sense, but would allow the court powers prohibited by the statute. A district court on a Rule 60(b) motion in an administrative appeal would become a trier of fact, could engage in a trial de novo, and could consider evidence which was not presented to the administrative agency, all of which are beyond the powers granted to the court by N.D.C.C. § 28-32-19. Relief similar to that afforded by Rule 60(b) is provided at the administrative fact-finding level by N.D.C.C. § 28-32-14, which allows a party to petition the administrative agency for reconsideration of a final order. See Boger v. North Dakota Workers Compensation Bureau, 1998 ND 131, ¶¶ 12, 18, 581 N.W.2d 463. We believe Rule 60(b) relief is no more appropriately sought in a district court exercising appellate jurisdiction than it would be in this Court when we exercise our appellate jurisdiction.

[¶ 12] Caselaw from other jurisdictions addressing this specific issue is sparse. We agree with the courts which hold a motion for relief from judgment under rules comparable to our Rule 60(b) is inapplicable to an administrative appeal. See, e.g., Department of Corrections v. Colbert, 202 Ga.App. 27, 413 S.E.2d 498, 500 (1991); Buchler v. Ohio Dept. of Commerce, 110 Ohio App.3d 20, 673 N.E.2d 611, 612-13 (1996); Garfield Hts. School Dist. v. Bd. of Education, 85 Ohio App.3d 117, 619 N.E.2d 429, 432 (1992); Giovanetti v. Ohio State Dental Board, 66 Ohio App.3d 381, 584 N.E.2d 66, 67 (1990); 2 Am.Jur.2d Administrative Law § 573 (1994); but see Schaal v. Commissioner of Social Sec., 969 F.Supp. 822, 836 (N.D.N.Y.1996), vacated on other grounds, 134 F.3d 496 (2nd Cir.1998). We recognize that in Vernon v. North Dakota Workers Compensation Bureau, 1999 ND 153, ¶¶ 26-27, 598 N.W.2d 139, we affirmed on the merits the district court’s denial of Rule 60(b) relief under circumstances similar to those in this case. However, applicability of Rule 60(b) relief was not raised as an issue in Vernon, and therefore, Vernon is not precedent for the proposition Rule 60(b) relief is available in an administrative appeal. See United Pac. Ins. Co. v. Aetna Ins. Co., 311 N.W.2d 170, 174 n. 2 (N.D.1981). Lewis’s reliance on State by Workers Compensation Bureau v. Kostka Food Service, Inc., 516 N.W.2d 278 (N.D.1994), is misplaced because no administrative appeal was involved.

[¶ 13] We conclude Rule 60(b) is inapplicable to an administrative appeal to district court.

Ill

[¶ 14] Because Rule 60(b) does not apply to administrative appeals, Lewis’s motion was, in effect, a nullity, and the trial court lacked the ability to entertain it. Therefore, we dismiss the appeal.

[¶ 15] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

[¶ 16] The Honorable CAROL RONNING KAPSNER disqualified herself subsequent to oral argument and did not participate in this decision.


text:
    2000 ND 82
    Kristine K. LAUER, Plaintiff and Appellee, v. Mark A. LAUER, Defendant and Appellant.
    No. 990314.
    Supreme Court of North Dakota.
    April 25, 2000.

      Theresa L. Zimmerman, American Legal Services, Bismarck, N.D., for plaintiff and appellee.
    Loren C. McCray, Alexander & Solem Law Office, Beulah, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Mark Lauer appealed from a post-divorce judgment denying his request to reduce child support and awarding attorney fees to Kristine Lauer for contempt proceedings brought by her against Mark. We affirm the award of attorney fees but reverse the child support award and remand for a redetermination of Mark’s child support obligation in accordance with the child support guidelines.

[¶ 2] Mark and Kristine Lauer were divorced in 1991. Kristine was awarded custody of their two children and Mark was ordered to pay child support of $1,005 per month. In 1999, Kristine filed a motion asking the court to hold Mark in contempt for failing to pay child support and for failing to abide by other parts of the divorce decree. Mark filed a motion requesting a reduction in child support. The trial court, after hearing, found Mark in contempt for failing to pay support and ordered him to pay arrearages. The court also denied Mark’s motion for reduction of child support and awarded attorney fees to Kristine for the contempt proceedings.

I. CHILD SUPPORT

[¶ 3] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. 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. Id. As a matter of law, the district court must clearly set forth how it arrived at the amount of income and level of support. Id. at ¶ 12. The trial court’s findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous. Richter v. Houser, 1999 ND 147, ¶3, 598 N.W.2d 193. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made. Id.

[¶ 4] In denying Mark’s motion for a reduction in child support, the trial court found, “[t]here is no substantial change in circumstances justifying a reduction in the obligation, except circumstances created by [Mark].” Under N.D.C.C. § 14-09-08.4(4), when a motion to amend child support is brought at least one year after entry of the order sought to be amended, “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 ... whether or not a material change of circumstances has taken place, unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted.” This statutory scheme envisions periodic review of child support orders to insure support is at all times consistent with the current guidelines amount. Zarrett v. Zamtt, 1998 ND 49, ¶ 8, 574 N.W.2d 855. An obligor must demonstrate a material change in circumstances only if the motion seeking modification of a child support order is brought within one year after its entry. Nelson v. Nelson, 547 N.W.2d 741, 744 (N.D.1996). When the obligor seeks modification of the support order after one year, as in this case, the trial court must modify the obligation to conform to the child support guidelines. Id. We hold the trial court erred in applying a change of circumstances standard to Mark’s motion in this case.

[¶ 5] In support of his motion, Mark introduced income tax returns showing his current income is substantially less than it was when the original support award was computed under the guidelines. Averaging his annual income from those tax returns, Mark computed a support obligation of $526 per month. Kristine asserted Mark is underemployed, and she filed a post-hearing brief computing Mark’s support obligation under the guidelines to be $638 per month. However, she requested the court to continue the original $1,005 per month support obligation because Mark failed to provide W-2 forms showing his actual income.

[¶ 6] Under N.D. Admin. Code § 75-02-04.1-02(7), “[i]ncome must be documented through the use of tax returns, current wage statements, and other information sufficiently to fully apprise the court of all gross income.” There is no record evidence demonstrating the tax returns introduced by Mark fail to reflect his actual income. Kristine’s argument that Mark’s failure to provide W-2 forms should preclude the court from redetermining Mark’s actual support obligation in accordance with the guidelines is without merit.

[¶ 7] In continuing the original support obligation, the court apparently imputed additional income to Mark. Under N.D. Admin. Code § 75-02-04.1-07, the court may impute income based upon earning capacity when the court finds an obli-gor is underemployed. The guidelines define an underemployed obligor as one whose “gross income from earnings is significantly less than prevailing amounts earned in the community by persons with similar work history and occupational qualifications.” N.D. Admin. Code § 75-02-04.1-07(l)(b). The trial court made no finding that Mark is underemployed for purposes of applying this guideline provision. Furthermore, the trial court made no finding about the prevailing wages of persons with similar work history and occupational qualifications. Absent adequate evidence of the obligor’s gross income from earnings and of the prevailing amounts earned in the community as a comparison to those earnings, the court cannot find an obligor is underemployed for purposes of imputing income under the guidelines. Nelson, 547 N.W.2d at 746-47.

[¶ 8] This Court has recognized the North Dakota Labor Market Advisor, published by Job Service North Dakota, as a judicially noticeable publication for determining whether an obligor is underemployed. Kjos v. Brandenburger, 552 N.W.2d 63, 66 (N.D.1996). In her post-trial brief to the court, Kristine cites the Job Service North Dakota wage survey showing the mean wage for welders, Mark’s profession at the time of the divorce, is $12.50 per hour. Considering a full-time welder practices his tradé for 2,080 hours per year at $12.50 per hour his annual wage would equal $26,000. Mark’s income tax statements show his average annual income for 1996 and 1997 was $27,484.50. Using these numbers as submitted to the trial court, Mark is not presumed by the guidelines to be underemployed. N.D. Admin. Code § 75-02-04.1-07(2).

[¶ 9] Kristine argues the court was authorized under N.D. Admin. Code § 75-02-04.1-07(9) to impute income to Mark without a showing that Mark is unemployed or underemployed. That guideline subsection provides:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

The district court’s findings under the imputed income provisions of the child support guidelines must be clear, and we must know how the court arrived at the amount of income and level of support. Buchholz, 1999 ND 36, ¶ 16, 590 N.W.2d 215. The trial court made no finding that Mark voluntarily quit the job he had when the original support award was computed. Furthermore, the trial court did not show how computation of imputed income to Mark under this subsection of the guidelines would result in a support obligation of $1,005 per month. Rather, it appears the court merely relied on its holding there was no change of circumstances to support its order of $1,005 per month.

[¶ 10] We conclude the trial court erred, as a matter of law, in failing to apply the guidelines for determining Mark’s current child support obligation. Therefore, we hold the trial court’s finding that Mark’s child support obligation is $1,005 per month is clearly erroneous and must be recomputed in accordance with the guideline requirements.

II. ATTORNEY FEES

[¶ 11] The trial court ordered Mark to pay Kristine “attorney’s fees actually incurred in bringing and presenting the Motions.” Kristine requested the court to hold Mark in contempt for failing to abide by the original divorce decree. The court found Mark in contempt and ordered him to pay arrearages for past due child support and to comply with other provisions of the decree. As a sanction for contempt, N.D.C.C. § 27-10-01.4 provides, in part:

1. A court may impose one or more of the following remedial sanctions:
a. Payment of a sum of money sufficient to compensate a party or complainant, other than the court, for a loss or injury suffered as a result of the contempt, including an amount to reimburse the party for costs and expenses incurred as a result of the contempt.

The court, in its discretion, may award attorney fees as part of the compensation to the complainant in contempt proceedings as reimbursement for costs and expenses incurred as a result of the contempt. Nygard v. Nygard, 503 N.W.2d 848 (N.D.1993); see also Fargo Women’s Health Organization v. Larson, 391 N.W.2d 627, 635 (N.D.1986). We find no abuse of discretion in awarding attorney fees on this record.

[¶ 12] We affirm the judgment except for that part denying Mark’s motion to amend his child support obligation, and we remand for a redetermination of child support in accordance with the child support guidelines.

[¶ 13] Affirmed in part, reversed in part, and remanded.

[¶ 14] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ concur.


author: AMUNDSON, Justice. KONENKAMP

text:
    2000 SD 51
    Beverly Jean ROGEN and Alton Rogen, Plaintiffs and Appellants, v. Lezli Jean MONSON, Defendant and Appellee.
    No. 20925.
    Supreme Court of South Dakota.
    Argued Nov. 30, 1999.
    Decided April 19, 2000.
    Rehearing Denied May 25, 2000.

      N. Dean Nasser, Jr. of Nassar Law Offices Sioux Falls, and Michael W. Day of Quinn, Day & Barker, Belle Fourche, for plaintiffs and appellants.
    Curt Ireland, Rapid City, for defendant and appellee.
   AMUNDSON, Justice.

[¶ 1.] Beverly and Alton Rogen (Rogens) appeal the denial of their motion for new trial and additur on the grounds that insufficient evidence existed for the jury verdict of $4,800 and claim error in admission of expert testimony. We affirm.

FACTS

[¶ 2.] On October 15, 1995, Lezli Monson (Monson) was driving on 1-90 in Pennington County, South Dakota. Monson was following a vehicle driven by sixty-four-year-old Beverly Rogen (Beverly). Beverly’s husband Alton (Alton) was a passenger in the vehicle. Both automobiles eventually exited the interstate. As the cars approached the yield sign at the end of the exit, Monson looked back. As she looked forward, she saw that the brake lights were on and Beverly’s car had stopped or nearly stopped. Monson was unable to stop her vehicle and collided with Beverly.

[¶ 3.] Both vehicles were operable after this collision and neither party claimed they were injured. After the police investigated, Beverly proceeded to drive home to the eastern part of the state.

[¶ 4.] Beverly claims that within two hours after the accident, pain began radiating in her lower back, down her right upper extremity and thigh, and in her right knee. On October 20, 1995, five days after the accident, Beverly went to see her family physician complaining of “pain in her lower lumbar spine with radiation to both buttocks and posterior leg down as far as knees.” Beverly claims she needs a back fusion and knee replacement as a result of the accident.

[¶ 5.] On October 20, 1997, Rogens filed a personal injury action against Monson claiming she was negligent in colliding with Rogens and injuring Beverly. At the conclusion of evidence, the trial court granted a directed verdict to Rogens on the issue of liability, finding that there was “no emergency, legal excuse or unavoidable accident or contributory negligence.” The issue of damages was submitted to the jury. The jury returned a general verdict awarding Beverly $4,800 and Alton $0. Ro-gens filed a motion for new trial and motion for additur on December 17, 1998. Both motions were denied.

[¶ 6.] Rogens appeal, raising the following issues:

1. Was the evidence sufficient to support the amount of the verdict and judgment?
2. Was it error to allow the percentage causation opinions of Dr. Hoversten under Daubert?
3. Whether the trial court erred in failing to grant an additur or new trial on damages?

DECISION

[¶ 7.] 1. Was the evidence sufficient to support the amount of the verdict and judgment?

[¶ 8.] Due to the similarity of issues one and three, issue one will be addressed along with issue three.

[¶ 9.] 2. Was it error to allow the percentage causation opinions of Dr. Hoversten under Daubert ?

[¶ 10.] Rogens argue that the trial court erred in overruling their objection to Dr. Hoversten’s testimony, that Beverly’s knee and back injuries were 95 percent related to her preexisting condition and only 5 percent related to the accident, because it lacked “proper foundation and factual predicate to permit his opinions to be admitted and weighed by the jury.” Rogens also claim that Hoversten had no scientific basis for this opinion.

[¶ 11.] Prior to trial, testimony was taken from Monson’s expert witness, Dr. Hov-ersten. In this deposition, he testified on direct examination as follows:

Q. (ATTORNEY FOR MONSON): Doctor, I believe you also did an impairment concerning both her back and her knee, and I want to ask first of all what degree of permanent impairment, if any, do you believe Mrs. Rogen has to her low back?
A. (DR. HOVERSTEN): I believe she has a 20 percent impairment of the whole person to her low back.
Q. (ATTORNEY FOR MONSON): Doctor, based upon your exam, and reasonable medical probability, can you prorate how much of that preexisted the car accident and how much you would say was caused by the car accident itself?
(ATTORNEY FOR ROGENS): First of all I will object for lack of foundation, and I would like to ask some questions pursuant to that objection for the purpose of making further objections.
(ATTORNEY FOR MONSON): No, just make your objection, you can do your cross.
(ATTORNEY FOR ROGENS): We object for lack of foundation, also lack of any scientific basis for making such a proration.
Q. (ATTORNEY FOR MONSON): What is your opinion, Doctor?
A: (DR. HOVERSTEN): In my opinion I think that fully 95 percent of this impairment is due to the preexisting condition, and one could make the argument that a small part of it was made worse by the accident, perhaps 5 percent of this over all impairment from the accident itself. (Emphasis added.)
⅜ * *
Q: (ATTORNEY FOR MONSON): Again do you have an opinion based upon reasonable medical probability as to the proration as to what percent of [the knee impairment] preexisted the car accident and what percent of that was related to the car accident?
A: (DR. HOVERSTEN): Again I think 95 percent of it is due to an underlying osteoarthritic problem, her obesity and her age, and that 5 percent of it could be related to a small injury sustained at the time of the accident which was quite insignificant and not complained about until several months following the accident (Emphasis added.)

[¶ 12.] During Hoversten’s deposition, Rogens’ objection consisted solely of the general objection of “foundation” with no further explanation and the “lack of any scientific basis for making such a pro-ration.” On November 19, 1998, after the deposition was completed, Rogens filed a list of their objections to Hoversten’s deposition and asked the trial court to rule on them. In this listing, Rogens’ objection stated as follows: “lack of foundation and lack of scientific basis for making pro-ration.” The judge overruled this objection without explanation.

[¶ 13.] Rogens argue that Hoversten’s testimony should not have been admitted because Hoversten’s testimony was not relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court established specific standards for admission of expert scientific testimony. This Court followed Daubert in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994) when we held that a trial judge must ensure that an expert’s testimony rests on both “a reliable foundation and is relevant to the task at hand.” We further held in Kuper v. Lincoln-Union Electric Co., 1996 SD 145, ¶ 41, 557 N.W.2d 748, 760, “when the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatekeeping function.”

[¶ 14.] In the present case, the trial court exercised its gatekeeping function in regards to the proposed testimony from Rogens’ expert witness, George Merlo. A Daubert hearing was held during the trial and the court was provided with sufficient information on this expert’s proposed testimony and ultimately' excluded parts of Merlo’s proposed testimony. However, no such Daubert hearing was ever requested or held regarding Dr. Hoversten’s testimony. We have previously stated, to insure a meaningful appellate review, the trial court must be allowed to rule “whether or not the subject of [the] expert’s opinion rested on a reliable foundation.” See Kuper, 1996 SD 145, ¶ 41, 557 N.W.2d at 760.

[¶ 15.] The objection of “ ‘lack of foundation’ has no single defined meaning, [and] an objection of ‘lack of foundation’ generally is of little or no use to a trial judge.” Tolver v. State, 269 Ga. 530, 500 S.E.2d 563, 565 (1998). Because of the various meanings that can be derived from the “lack of foundation” meaning, without a more specific explanation for the missing foundation element, both the trial judge and this Court are faced with mere speculation and guesswork as to what the objection counsel’s issue is. See id. By not providing anything more than a “general objection,” Rogens have failed to create a clear record for this appeal. Rogens provided only a “general” objection; therefore, the trial judge was never able to understand the precise question or specific grounds upon which to rule. Rogens never pursued any additional course of action beyond their “general” objection. Counsel was obviously aware that when expert testimony is offered that conjures up questionable scientific testimony, a Daubert hearing should be sought. At least, that is what Rogens did when they made a motion in limine with regards to the testimony of the consulting engineer expert George Merlo. Here, Rogens request this Court to hold that the expert testimony of Dr. Hoversten should not have been admitted under Daubert. The trial court never had the opportunity to conduct its Daubert ga-tekeeping review of this expert as was the case with expert witness Merlo. The bare bones objection made on this medical testimony was totally insufficient. The record reflects that there was no meat put onto this generic bare bones objection so that a meaningful appellate review could be held. We generally do not reverse trial courts for reasons not argued before them.

[¶ 16.] 3. Whether the trial court erred in failing to grant an additur or new trial on damages.

[¶ 17.] Our standard of review for a denial of a motion for new trial is well settled. We have often stated:

“Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion. Finally, we note a decision to grant a new trial stands on firmer footing than a decision to deny a new trial.”

Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 6, 579 N.W.2d 1, 3 (quoting Andreson, 1997 SD 12, ¶ 5, 559 N.W.2d at 887 (quoting Schuldies v. Millar, 1996 SD 120, ¶ 8, 555 N.W.2d 90, 95 (quoting Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (other citations omitted)))). “An abuse of discretion is when no ‘ “judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.” ’ ” Kuper, 1996 SD 145, ¶ 36, 557 N.W.2d at 759 (quoting Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992) (quoting Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991))).

[¶ 18.] A trial court has broad discretion in determining whether to grant a new trial based on insufficient evidence. See Gilkyson, 1998 SD 45, ¶ 16, 579 N.W.2d at 5 (quoting LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 13, 544 N.W.2d 523, 526 (citing Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980))). “Nevertheless, a jury’s verdict should not be set aside ‘except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law....’” Id. (quoting LDL, 1996 SD 22, ¶ 13, 544 N.W.2d at 526-27 (citations omitted)). The trial court should only set aside a verdict “ ‘if the jury’s conclusion was unreasonable and a clear illustration of its failure to impartially apply ‘the reasoning faculty on the facts before them.’ ’ ” Id. (quoting LDL, 1996 SD 22, ¶ 13, 544 N.W.2d at 527 (citing Lewis, 290 N.W.2d at 497).) We have often stated that “[w]e examine the record to determine whether there is competent and substantial evidence to support the verdict.” Kuper, 1996 SD 145, ¶ 35, 557 N.W.2d at 759 (citing Zee v. Assam, 336 N.W.2d 162, 165 (S.D.1983)). We examine the evidence in the record “in the light most favorable to the verdict, and give[ ] the prevailing party the benefit of all reasonable inferences.” Id. (citing Westover v. East River Elec. Power Coop., 488 N.W.2d 892, 896 (S.D.1992)). Finally, “ ‘if there is competent and substantial evidence to support the verdict, it must be upheld.’ ” Kremer v. American Family Mut. Ins. Co., 501 N.W.2d 765, 772 (S.D.1993) (Miller, J., concurring specially) (quoting Gross v. Connecticut Mut. Life Ins. Co., 361 N.W.2d 259, 273 (S.D.1985) (citations omitted)).

[¶ 19.] In the present case, the jury awarded Beverly $4,800 and Alton $0 via a general verdict. By using a “general verdict” form, it remains mere speculation as to how the jury categorized the damages awards. Rogens contend that because the jury’s verdict was so low and the “only evidence contained in the record which could be construed as justifying such a low award is the opinion of Dr. Hoversten that 95% of Mrs. Rogen’s injuries were from her preexisting arthritic condition rather than the accident,” the trial court erred when it refused to grant the motion for new trial. The trial court noted in the motion for new trial hearing:

As far as the prejudice or bias of the jury, I mean the Plaintiffs were just about the sweetest down-home country folk people I’ve ever seen and, if anything, I’m sure it bothered the jury immensely not to give them what they were asking for. I saw no sign of any prejudice or bias during the trial and simply because the verdict was so low, I don’t know why that occurred, it did occur, there was a lot of testimony on each side regarding the amount of impact as to - and that may have been a significant factor here because impact was so mild as to cause any serious - the-injuries she was complaining of and Dr. Hoversten, or of what the family doctor offered at trial. I think it’s just - it’s not easy getting the Plaintiffs’ verdict here, it doesn’t seem like, in Pennington County or any substantial one anyway and I’m not going to grant the Additur or the Motion for Neyv Trial.

[¶ 20.] We have previously held “ ‘[a] new trial is not to be granted due to inadequacy of damages merely because a court believes a verdict is smaller than it should be.’ ” Andreson, 1997 SD 12, ¶ 8, 559 N.W.2d at 888 (quoting Itzen v. Wilsey, 440 N.W.2d 312, 313 (S.D.1989)). “ ‘Furthermore, plaintiffs suing for personal injury are not guaranteed the recovery of any predetermined amount of damages.’ ” Id. (citing Itzen, 440 N.W.2d at 314 (quoting Gould v. Mans, 82 S.D. 574, 577, 152 N.W.2d 92, 93 (1967))). Additionally, “ ‘[t]his Court is not free to reweigh the evidence or gauge the credibility of the witnesses.... If the jury’s verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.’ ” Id. (quoting Miller v. Hernandez, 520 N.W.2d 266, 272 (S.D.1994) (citations omitted)).

[¶ 21.] The jury was presented evidence that Beverly’s past medical expenses amounted to $13,000 and that she would need a right knee replacement and a back fusion as part of her future medical expenses of $35,000. Both parties submitted expert testimony regarding the extent of damages sustained in the accident and whether any injuries were preexisting. “Trials are a search for the truth as determined by the jury based upon all the evidence.” Tunender v. Minnaert, 1997 SD 62, ¶ 27, 563 N.W.2d 849, 855. In its search for the truth, “it is the jury’s role to weigh the testimony, resolve conflicting testimony, and evaluate the credibility of the witnesses.” City of Bridgewater v. Morris, Inc., 1999 SD 64, ¶ 14, 594 N.W.2d 712, 716 (citing Berry v. Risdall, 1998 SD 18, ¶ 10, 576 N.W.2d 1, 4). Rogens’ claim that the jury relied upon Dr. Hoversten’s testimony because the “jury awarded only the equivalent of approximately five percent of the total medical expenses and an additional five percent apparently for general damages (a total verdict of $4,800)” is without merit. It must be reiterated that the jury returned only a general verdict form with no explanation for the amount of damages they awarded. Rogens’ parsing of the award into two five percent awards is based on speculation.

[¶ 22.] Rogens have failed to show that “competent and substantial evidence” did not exist to support the verdict. The jury was present at the trial, they heard the contradicting testimony in regards to injuries caused by the accident and those which were preexisting. Rogens have failed to show that the jury verdict was nothing more than the jury weighing the testimony, finding Rogens’ damages not proximately caused by the accident, and resolving the conflicts in favor of Monson. “ ‘[C]ompetent and substantial evidence’ ” existed in this case to support the jury verdict; therefore, “ ‘it must be upheld.’ ” Kremer, 501 N.W.2d at 772 (Miller, J., concurring specially) (quoting Gross, 361 N.W.2d at 273). The trial court did not abuse its discretion in denying Rogens’ motions.

[¶ 23.] We affirm.

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

[¶ 25.] KONENKAMP, Justice, concurs with writing.

KONENKAMP

(concurring).

[¶ 26.] Daubert’s methodology was intended to create a uniform procedure for addressing expert testimony based on scientific, technical, or other specialized knowledge. Hon. Janine M. Kern and Scott R. Swier, Daubert v. Merrell Dow Pharmaceuticals, Inc.: “Gatekeeping” or Industry “Safekeeping”? 43 S.D.L.Rev. 566, 576 (1998). See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Had a proper record been made in this case, Dau-bert’s bifold relevance and reliability process for determining admissibility should have been employed. See SDCL 19-9-7 (Rule 104(a)). A trial court’s gatekeeping function under Daubert is not limited to cases involving novel scientific or technical evidence. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999). Unquestionably, Daubert should apply to medical opinions to ensure that a medical expert, “whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Black v. Food Lion, Inc., 171 F.3d 308, 311 (5thCir.1999) (quoting Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176, 143 L.Ed.2d 238).

[¶ 27.] Not every proffer of expert opinion, however, requires the full Daubert foundation. First, “[i]f theory and instrument are generally accepted, the judge will judicially notice those elements of the foundation upon a proper timely request by counsel.” Edward J. Imwinkelried, Ev-identiary Foundations 116 (4th ed. 1998). Second, in fulfilling its “gatekeeping” role, the trial court may consider one or more of the five specific Daubert factors to decide whether the testimony is reliable. Kumho, 526 U.S. at 151-53, 119 S.Ct. at 1176, 143 L.Ed.2d 238. See also SDCL 19-15-2 (Rule 702) (note the use of the word “may”). A doctor’s experiential opinions should be subjected to some of Daubert’s factors to help evaluate reliability. Kumho Tire, 526 U.S. at 149, 119 S.Ct. at 1175, 143 L.Ed.2d 238.

[¶ 28.] The test for reliability is flexible — “Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts in every case.” Kumho, 526 U.S. at 141, 119 S.Ct. at 1171, 143 L.Ed.2d 238. Courts possess broad latitude in deciding how to determine reliability. When we examine a trial court’s reliability determination as well as its ultimate decision to admit or exclude expert testimony, abuse of discretion remains our standard of review. General Elec. Co. v. Joiner, 522 U.S. 136, 144-45, 118 S.Ct. 512, 518, 139 L.Ed.2d 508 (1997).

      . Rogens proposed that Merlo, a consulting engineer expert, would testify as to speed, force of impact and a study regarding “that [at] a certain speed, like five to ten mile an hour, ... there is no injuries.” The court allowed Merlo to “testify on speed [and] on all the things that his structural engineering degree give[s] him expertise in,” but he was not allowed to go into his opinions on personal injuries sustained in the accident.

      . It is well settled that " '[t]he appellant must affirmatively establish a record on appeal that shows the existence of error. He [or she] must show that the trial court was given an opportunity to correct the grievance he [or she] complains about on appeal.’ " Husky Spray Serv., Inc. v. Patzer, 471 N.W.2d 146, 153-54 (S.D.1991) (quoting Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D.1980) (citations omitted)) (alterations in original). Further, " '[w]e will not review a matter on appeal unless proper objection was made before the trial court. Objections must be made to the trial court to allow it to correct its mistakes.’ ” Id. at 154 (quoting Johnson v. John Deere Co., 306 N.W.2d 231, 239 (S.D.1981) (citations omitted)). " '[F]ail[ure] to make a timely and appropriate objection at the time of the alleged error[,]' ” does not preserve the issue for appeal. Andreson v. Black Hills Power & Light Co., 1997 SD 12, ¶ 22, 559 N.W.2d 886, 890 (quoting State v. Spiry, 1996 SD 14, ¶ 15, 543 N.W.2d 260, 263). See also State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443 (noting that ”[t]o preserve issues for appellate review litigants must make known to trial courts the actions they seek to achieve or object to the actions of the court, giving their reasons”).