text:
    2007 ND 83
    In the Interest of A.S. and N.S., Minor Children. Libby Wynne, Petitioner and Appellee v. A.S., child, N.S., child, I.S., mother, and R.S., father, Respondents. I.S., mother, Respondent and Appellant.
    No. 20060256.
    Supreme Court of North Dakota.
    June 7, 2007.

      Frederick R. Fremgen, State’s Attorney, Jamestown, N.D., for petitioner and appellee.
    Thomas E. Merrick, Merrick & Schaar Law Firm, Jamestown, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] I.S. (“Irene”) appeals the juvenile court’s judgment terminating her parental rights. We conclude the juvenile court did not abuse its discretion in denying Irene’s motion for continuance, and it did not err in terminating Irene’s parental rights. We affirm the juvenile court’s judgment terminating Irene’s parental rights.

I

[¶ 2] Irene, the mother, and R.S. (“Randall”), the father, have two children, A.S. (“Andrew”), a nine-year-old boy, and N.S. (“Nadine”), an eight-year-old girl. Reports of problems in the household began in 1999 when Stutsman County Social Services (“Social Services”) received a report about a domestic assault in which the children were involved. Social Services recommended the parents participate in domestic violence services, psychological evaluations, parenting classes, and case management. Irene and Randall did not participate in these services. On December 27, 1999, the police reported to Social Services that the home was dirty and the children were locked in their rooms. The children were placed in Social Services’ custody from December 28, 1999, to June 28, 2000. Over the next several years, Social Services received numerous reports about Irene and her children, including: Nadine was hit on the head with a door during an altercation between Irene and Randall; Irene intentionally cut herself in front of Andrew; Irene kicked Randall and the children out of the house; and Nadine went to school without socks or gloves on a cold day and had not eaten dinner the previous two days. Services such as psychological evaluations and parenting classes had been recommended to or required of Irene numerous times since 1999. She did not participate in these services.

[¶ 3] On February 28, 2006, after a deprivation hearing, the juvenile court, in its findings of fact and order for disposition, found Andrew and Nadine were deprived children. The juvenile court also found Social Services had made reasonable efforts to prevent removal of the children from their home. The juvenile court ordered the children be removed from the care, custody, and control of their parents, and placed under the care, custody, and control of Social Services until August 23, 2006. The juvenile court ordered Social Services to make every reasonable effort to return the children to their parents. The juvenile court ordered Irene to participate in psychological and parenting capacity evaluations, and to follow through with the recommended treatment, submit to urinalyses, work with a parent aide, and attend parenting classes. Irene did not comply with the juvenile court’s order. On March 1, 2006, Irene arranged visitation with the children. On March 5, 2006, Irene told her social worker, Libby Wynne, that Wynne could keep the children or give them to Randall. On March 6, 2006, Irene told Wynne she would sign over her parental rights to the children. On March 15, 2006, Irene told Wynne she wanted to terminate her parental rights. On May 3, 2006, Wynne filed a petition for termination of parental rights.

[¶ 4] A termination of parental rights hearing was scheduled for May 31, 2006. In the May 3, 2006, summons, Irene was informed that if she intended to have legal counsel she had to file an application for court-appointed counsel within two weeks of service of the summons. Irene appeared at the hearing without a lawyer. The juvenile court continued the hearing until August 18, 2006, after Irene requested court-appointed counsel. Irene submitted an application for court-appointed counsel on June 13, 2006, and received court-appointed counsel on June 14, 2006. On June 26, 2006, a notice to appear on August 18, 2006, was filed. On July 12, 2006, Irene was served with the notice to appear. On July 17, 2006, the juvenile court ordered that Andrew and Nadine remain in the care, custody, and control of Social Services until August 23, 2007.

[¶ 5] On July 27, 2006, Irene moved for an order continuing the August 18, 2006, hearing for at least ninety days because she did not wish to have her parental rights terminated; she was willing to take psychological and parenting capacity evaluations; she wished to reestablish contact with her children; and she wanted to reunite with her children. Irene participated in psychological and parenting capacity evaluations on August 11, 2006. On August 17, 2006, the juvenile court denied Irene’s motion for continuance. The hearing took place on August 18, 2006. At the hearing, Irene orally moved for continuance, informing the juvenile court of her completion of the psychological and parenting capacity evaluations. The results of those evaluations had not been completed at the time of the hearing. The juvenile court denied the motion. On September 20, 2006, the trial court entered a judgment terminating Irene’s parental rights.

II

[¶ 6] Irene argues the juvenile court abused its discretion in denying her motion for continuance. The juvenile court’s decision to grant or deny a motion for continuance will not be reversed on appeal unless there was an abuse of discretion. State v. Kunkel, 452 N.W.2d 337, 339 (N.D.1990). There is an abuse of discretion when the juvenile court acts unreasonably, arbitrarily, or unconscionably. Id. This Court looks to the particular facts and circumstances of each case when reviewing the juvenile court’s decision on a motion for continuance because there is not a mechanical test to determine whether the juvenile court abused its discretion. Id.

[¶ 7] In its order denying Irene’s motion for continuance, the juvenile court found: “The hearing in this matter was originally scheduled to be heard on May 31, 2006, and was continued at that time at the request of [Irene]. The motion for a further continuance is denied, and the hearing will take place as scheduled on August 18, 2006.” At the August 18, 2006, hearing, the juvenile court said:

[Irene’s counsel] mentioned the evaluation wasn’t completed, I was concerned but that might have been something that was not the fault of [Irene], whether or not it is or is not I don’t know at this point, but I note as I indicated it was ordered back at the end of February so there’s been several months that have gone by, that’s certainly something that can be raised through testimony....

[¶ 8] We conclude the juvenile court did not abuse its discretion in denying Irene’s motion for continuance. Her motion for continuance was based on the unavailability of the psychological and parenting capacity evaluation results. Irene had from February 28, 2006, to July 27, 2006, — the date she moved for continuance — to comply with the juvenile court’s order requiring her to participate in psychological and parenting capacity evaluations, to submit to urinalyses, to work with a parent aide, and to attend parenting classes. Irene failed to comply with any part of the juvenile court’s order until August 11, 2006, one week before the hearing, when she participated in the psychological and parenting capacity evaluations. The hearing had already been rescheduled once from May 31, 2006. Irene had five months to comply with the juvenile court’s order and, for more than five months, Irene failed to participate in the psychological and parenting capacity evaluations. Delaying the hearing an additional ninety days would have kept Andrew and Nadine in a prolonged state of uncertainty. Services were recommended to or required of Irene as early as 1999, but she failed to utilize them. Considering the particular facts and circumstances of this case, the juvenile court did not abuse its discretion in denying Irene’s motion for continuance.

Ill

[¶ 9] Irene argues the juvenile court clearly erred in terminating her parental rights by finding the conditions and causes of her deprivation of her children were likely to continue. Irene also argues reasonable efforts were not made to reunite her with her children.

[¶ 10] To terminate a parent’s rights, N.D.C.C. § 27 — 20—44(l)(b) requires a petitioner to prove by clear and convincing evidence that: (1) The children are deprived, (2) “The conditions and causes of the deprivation are likely to continue or will not be remedied,” and (3) Because of the deprivation, the children are suffering or probably will suffer serious mental, emotional, physical, or moral harm. Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11. “Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true.” Interest of D.M., 2007 ND 62, ¶7, 730 N.W.2d 604.

[¶ 11] The juvenile court’s decision to terminate parental rights is a question of fact that this Court does not overturn unless the decision is clearly erroneous. Interest of D.M., 2007 ND 62, ¶ 6, 730 N.W.2d 604. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Id. Due regard is given to the juvenile court’s opportunity to judge a witness’s credibility. Interest of B.J.K., 2005 ND 138, ¶ 10, 701 N.W.2d 924.

A

[¶ 12] To terminate a parent’s rights, the children must first be deprived. N.D.C.C. § 27-20-44(l)(b). The juvenile court, in its September 20, 2006, findings of fact and order terminating parental rights, stated that in March 2000, and again in February 2006, it had found the children to be deprived, and had ordered removal and placement of the children with Social Services. Irene does not dispute that the children are deprived.

B

[¶ 13] Once the children are determined to be deprived, the juvenile court must find the deprivation is “likely to continue or will not be remedied.” N.D.C.C. § 27-2(M4(l)(b)(l). Irene argues the juvenile court erred in finding clear and convincing evidence that the conditions and causes of her deprivation of her children were likely to continue.

[¶ 14] Irene contends reasonable efforts were not made to reunite her with her children. Reasonable efforts to preserve and reunite families must be made before “the placement of a child in foster -care, to prevent or eliminate the need for removing the child from the child’s home[,] and [t]o make it possible for a child to return safely to the child’s home.” N.D.C.C. § 27-20-32.2(2). Under N.D.C.C. § 27-20-32.2(1), “reasonable efforts” is defined as:

[T]he exercise of due diligence, by the agency granted authority over the child ... to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family or, after removal, to use appropriate and available services to eliminate the need for removal and to reunite the child and the child’s family. In determining reasonable efforts to be made with respect to a child ..., and in making reasonable efforts, the child’s health and safety must be the paramount concern.

[¶ 15] In its February 28, 2006, findings of fact, the juvenile court found:

[Social Services] has made reasonable efforts to help prevent removal. Case management and Parent Aide Services were offered to [Irene], and she refused these services. [Irene] agreed to attend counseling at SCHSC, but has not attended since December 1, 2005. [Irene] agreed to ensure that [Andrew] attend therapy as recommended by his therapist, [Andrew] has not attended any therapy sessions since December 7, 2005.

The juvenile court ordered Social Services to “make every reasonable effort to return the children to their parental home” and ordered Irene and Randall to “participate in psychological and parenting capacity evaluations and follow through with recommended treatment” and ordered Irene to “submit to random urine analysis, work with parent aide, and attend parenting classes.” In its September 20, 2006, findings of fact and order terminating Irene’s parental rights, the juvenile court found Irene “did not submit to random urine testing nor did she take part in the nurturing classes” as ordered on February 28, 2006.

[¶ 16] There is evidence in the record that Social Services made reasonable efforts to reunite Irene with her children. The evidence shows Social Services attempted to have Irene submit to urinalyses, but Irene refused. The record indicates Irene repeatedly refused to participate in psychological and parenting capacity evaluations. The record also indicates Irene again refused services after Wynne told Irene her refusal to participate in court-ordered services could have an impact on the length of time her children were in foster care and could impede the reunification process. According to Wynne’s testimony, Wynne sent Irene letters on April 11, 2006, and June 8, 2006. Wynne’s testimony indicates that in both letters, Wynne offered Irene visitation or telephone contact with her children, but Irene did not respond to either letter. Wynne testified that she made several telephone calls to Irene to establish visitation. According to Wynne, Irene only called to say she did not want the children and was willing to surrender her parental rights.

[¶ 17] The record supports that Social Services clearly exercised due diligence in attempting to reunite Irene with her children. Wynne’s testimony establishes that Social Services repeatedly attempted to set up the court-ordered services and attempted to establish visitation or telephone contact with the children. The record indicates Irene not only ignored these attempts, but, until her motion for continuance on July 27, 2006, actually insisted that her parental rights be terminated. This Court rejects Irene’s claim that reasonable efforts were not made to reunite her with her children.

[¶ 18] A lack of parental cooperation is relevant to the determination of whether deprivation will continue. Interest of L.F., 1998 ND 129, ¶ 17, 580 N.W.2d 573. “Evidence of the parent’s background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue. Evidence of past or present deprivation, however, is not alone sufficient to terminate parental rights, rather there must be prognostic evidence.” Id. at ¶ 16 (citations omitted).

[¶ 19] Prognostic evidence is defined as that which “forms the basis for a reasonable prediction as to future behavior.” Id. “Prognostic evidence must demonstrate the parent is presently unable to provide physical and emotional care for the child, with the aid of available social agencies if necessary.” Id. at ¶ 17. Prognostic evidence must also demonstrate the parent’s “inability to care for the child would continue for sufficient time to render improbable the successful assimilation of the child into a family if that parent’s rights were not presently terminated.” Id. “Prognostic evidence includes the reports and opinions of the professionals involved.” Interest of D.F.G., 1999 ND 216, ¶20, 602 N.W.2d 697. The amount of contact a parent has had with a child may also be considered. Id.

[¶ 20] In Interest of B.J.K., 2005 ND 138, ¶ 17, 701 N.W.2d 924, this Court held the juvenile court was not clearly erroneous when it found the child was deprived, and the father’s decision to continue living with the child’s mother and his inability to complete the requirements established by social services were prognostic evidence that the deprivation would continue. In Interest of A.L., 2001 ND 59, ¶ 16, 623 N.W.2d 418, the parents had been offered social services for nearly ten years but had refused to change their behavior to prevent the deprivation of their children. This Court concluded a pattern of parental conduct can form a basis for a reasonable prediction of future behavior. Id.

[¶ 21] In the present case, the juvenile court found that from December 1999 to April 2000, the children were placed in foster care because Irene had threatened to harm them if they remained in her care; on several prior occasions, Irene left her children in the care of others for weeks or months; from February 23, 2006, when her children were removed, Irene only had one planned visit with the children, on March 1, 2006; during the planned visit, Irene told Andrew it was his fault the children were removed; after the planned visit, Irene conveyed to her social worker and the juvenile court supervisor that she did not want any more contact with her children, and that Social Services could keep her children or give them to their father; besides the planned visit, Irene only had one accidental meeting with the children on June 3, 2006; from June 3, 2006 to August 18, 2006, Irene never sought to visit with her children and never called them; Irene did not submit to urinalyses and did not partake in nurturing classes; Irene participated in the psychological and parenting capacity evaluations five months after the juvenile court’s order; and Irene testified that she is not able to currently care for her children because she does not have her own residence and has trouble finding a residence because of her rental history.

[¶ 22] The evidence presented in the record supports the juvenile court’s findings. The record indicates Irene’s involvement, and unwillingness to cooperate, with Social Services goes back nearly eight years. The record shows that before the deprivation finding in 2006, there was a deprivation finding in 2000. According to testimony, Irene has repeatedly failed to engage in treatment and failed to complete parenting classes. Irene’s lack of cooperation with Social Services and her refusal to change her behavior until the eve of the hearing are both strong and reasonable predictors deprivation will likely continue in the future.

[¶ 23] Irene now attempts to take steps necessary to improve her life. “[B]ut when the mental and physical health of a child are the concerns, it is not enough that a mother indicate a desire to improve. A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.” Interest of D.M., 2007 ND 62, ¶ 22, 730 N.W.2d 604. Irene testified she would not be able to have her children live with her because she does not have a residence of her own and has difficulty obtaining housing because of her rental history. Irene also testified she cannot currently fully care for her children because a lack of reliable transportation— her vehicle cannot be driven more than 45 miles per hour — requires her to leave for work with her supervisor at 4:30 a.m. and return home at 6:00 p.m. or 7:00 p.m. Irene herself indicates she cannot currently care for her children and that the situation is not likely to change soon. Due to her inability to provide stable housing and transportation for her children, Irene is currently incapable of caring for her children and will not become capable within the near future.

[¶ 24] Although professional reports and opinions can provide prognostic evidence to support a finding that the conditions and causes of deprivation are likely to continue, this Court has never said they are necessary to satisfy the requirement of prognostic evidence. Professional reports and opinions merely are prognostic evidence. See Interest of D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697. Prognostic evidence is any evidence that is a reasonable predictor of future behavior. Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573. Although a lack of parental cooperation alone is insufficient to establish deprivation, it is pertinent to whether deprivation will continue. Interest of D.F.G., 1999 ND 216, ¶ 21, 602 N.W.2d 697, relying on Interest of R.M.B., 402 N.W.2d 912, 918 (N.D.1987). Nearly eight years of a lack of parental cooperation, together with the refusal to change behavior, represent an established pattern of behavior that reasonably predicts Irene’s future behavior. Just as a continued failure to follow through with social services programs was prognostic evidence in Interest of B.J.K., 2005 ND 138, ¶ 17, 701 N.W.2d 924, so too is Irene’s repeated failure to comply with court-ordered treatment or to utilize the many services offered to her by Social Services. “When there has been an extensive period in which efforts have been made to overcome a parent’s inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.” Id. at ¶ 16. A child’s living situation should not continue to linger in the hope that the mother will finally follow through on her promise to reform. See id.

[¶ 25] We conclude the juvenile court’s finding that there was clear and convincing evidence that the conditions and causes of deprivation were likely to continue was not clearly erroneous.

C

[¶ 26] Termination of parental rights next requires the juvenile court to find “the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-20-44(l)(b)(l). The juvenile court, in its September 20, 2006, findings of fact and order terminating parental rights, found the “children are suffering and/or will probably suffer serious physical, mental, or emotional harm.” The juvenile court further found:

a. These children have already been harmed; are suffering academically, emotionally, and socially; and need counseling.
b. [Irene] has done nothing to remedy the situation. Although she has obtained full time employment, it has not been used in any way to facilitate her involvement in her children’s lives. [Irene] testified that she is not able now to receive the children because she has no place of her own to live. She indicates she has problems finding a place due to her rental history.
c. This case history of repeated deprivation, protracted periods of failure to take advantage of services designed to ameliorate the situation, and the several instances indicating the intent to abandon the children, all militate to produce the conclusion that the deprivation and suffering would likely continue if these children were returned to or left in the care, custody, and control of [Irene].

Irene does not argue the juvenile court’s finding that the children are suffering and probably will suffer serious physical, mental, or emotional harm was clearly erroneous. Nevertheless, the record supports the juvenile court’s finding.

[¶ 27] We conclude the juvenile court did not err in finding the three elements to terminate parental rights under N.D.C.C. § 27 — 20—44(l)(b) had been proven by clear and convincing evidence.

Ill

[¶ 28] The juvenile court’s judgment is affirmed.

[¶ 29] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.

      . The parties’ names are pseudonyms.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2007 ND 87
    STATE of North Dakota, Plaintiff and Appellee v. Douglas James DENNIS, Defendant and Appellant.
    No. 20060265.
    Supreme Court of North Dakota.
    June 7, 2007.

      Julie A. Lawyer, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and ap-pellee.
    Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Douglas Dennis appeals from the criminal judgment entered after his conditional plea of guilty to possession of marijuana with intent to deliver within one thousand feet of a school. We hold the plain language of section 19-03.1-23.1(l)(a), N.D.C.C., provides an offense enhancement only for the manufacture and distribution of a controlled substance within one thousand feet of a school. We reverse the district court judgment and remand for resentencing under N.D.C.C. § 19 — 03.1—23(l)(b) as a class B felony.

I

[¶ 2] In February 2006, Dennis was arrested and charged with possession of marijuana with intent to deliver within one thousand feet of a school.

[¶ 3] Prior to Dennis’s arrest, Detective Paul Olson applied for a search warrant to search Dennis’s residence. At the hearing for probable cause to search the house, Detective Olson testified about having received a tip that Dennis was selling “large quantities” of marijuana from his residence near Grimsrud Elementary school. He further testified that after conducting surveillance, officers seized and analyzed trash from outside of Dennis’s home. He testified that officers found mail addressed to Dennis, plastic bags containing a green residue that field-tested positive for marijuana, and “a handful of Marijuana stems” in the trash bag. Detective Olson testified he received a tip that “a shipment” had arrived at Dennis’s home. He testified about “unusual traffic” at the residence — -individuals would arrive at Dennis’s home empty-handed and leave carrying brown paper bags. The district court granted Olson’s application for a search warrant for Dennis’s residence.

[¶ 4] During the search of Dennis’s home, officers ' found 18 individually wrapped bags of marijuana, each containing about three grams, and a single bag containing nearly 30 grams of the drug— less than a hundred grams total. The officers also found cash, money orders, smoking devices, a box of sandwich bags, an envelope with “pay/owe information,” and scales.

[¶ 5] Dennis moved to reduce the charge on the ground that the offense as charged does not exist under North Dakota law. The district court denied the motion. At the change of plea hearing, Dennis entered an oral conditional guilty plea to preserve his right to appeal. The district court accepted the State’s sentencing recommendation, which was apparently part of a plea agreement, and sentenced Dennis to a ten-year prison term, with all but six months suspended for five years. Dennis was placed on house arrest for the six-month period and was electronically monitored. At the sentencing hearing, Dennis’s trial counsel said that if this Court were to rule in his favor on appeal, his and Dennis’s intent “was to just have the same outcome as far as the plea agreement, just make it a Class B rather than a Class A [felony].”

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 7] Dennis contends the offense of possession of marijuana with intent to deliver within one thousand feet of a school does not exist in North Dakota. Dennis does not dispute that he lives within one thousand feet of a school. He now asks us “to reverse his conviction ... to the charge of Possession of Marijuana with Intent to Deliver and remand for further proceedings.”

[¶ 8] According to the criminal information, the State charged that Dennis “willfully possessed a controlled substance, namely marijuana, with .intent to deliver within 1000 feet of the real property comprising a public or private elementary or secondary school.... Class A Felony.” The State charged Dennis under four statutes: 19-03.1-23 (prohibited acts); 19-03.1-23.1 (increased penalties for aggravating factors in drug offenses); 19-03.1-05(5)(t) (defining marijuana as a schedule I hallucinogenic controlled substance); and 12.1-32-01(2) (“Class A felony, for which a maximum penalty of twenty years’ imprisonment, a fine of ten thousand dollars, or both, may be imposed.”).

[IT 9] Under N.D.C.C. § 19-03.1-23, possession with an intent to deliver marijuana is a class B felony:

1. Except as authorized by this chapter, it is unlawful for any person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.... Any person who violates this subsection with respect to:
a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony....
b.Any other controlled substance classified in schedule I, II, or III, is guilty of a class B felony, except that any person who delivers one hundred pounds ... or more of marijuana is guilty of a class A felony....

N.D.C.C. § 19 — 03.1—23(l)(a), (b) (emphasis added).

HT10] Under N.D.C.C. § 19-03.1-23.1, a person who violates section 19-03.1-23 is subject to an offense enhancement if any of the following “aggravating factors” are found to be present:

1. A person who violates section 19-03.1-23 is subject to the penalties provided in subsection 2 if:
a. The offense involved the manufacture or distribution of a controlled substance in or on, or within one thousand feet [300.18 meters] of, the real property comprising a public or private elementary or secondary school, public career and technical education school, or a public or private college or university;
b. The defendant was at least sixteen years of age at the time of the offense and the offense involved the delivery of a controlled substance to a minor;
c. The offense involved [certain types and quantities of controlled substances]; or
d. The defendant had a firearm in the defendant’s actual possession at the time of the offense.
2. The offense is:
a. A class AA felony if the violation of section 19-03.1-23 is designated as a class A felony.
b. A class A felony if the violation of section 19-03.1-23 is designated as a class B felony.
c. A class B felony if the violation of section 19-03.1-23 is designated as a class C felony.
d. A class C felony if the violation of section 19-03.1-23 is designated as a class A misdemeanor.

N.D.C.C. § 19-03.1-23.1(1) and (2) (emphasis added).

[¶ 11] In arguing the State charged him with an invalid offense, Dennis contends the aggravating factor for offenses near a school found in N.D.C.C. § 19-03.1-23.1(l)(a) is unambiguous and focuses his contention on the words “manufacture or distribution.” He contends “distribution” requires an actual, constructive, or attempted transfer — not merely possession with an intent to deliver. In the alternative, Dennis contends any statutory ambiguity must be resolved in his favor in keeping with the rule of lenity. The State agrees the statute is unambiguous but contends the controlling language is “involved.” The State relies on a dictionary definition of the present tense form of that verb to mean “to include as a necessary circumstance, condition, or consequence.” The State argues that “[p]ossession with intent to deliver ‘involves’ distribution of a controlled substance just as much as conspiracy or accomplice to a delivery involves distribution.” The State contends that applying Dennis’s reasoning produces an absurd result because “he could be charged with either Possession of Marijuana Within 1,000 Feet of a School, a class B felony, or Possession of Marijuana With Intent to Deliver, a class B felony. [This] interpretation produces the absurd result that the same penalty applies to his possession of the drug for his personal consumption and his possession of that drug with intent to deliver it to another.”

[¶ 12] “Construction of a criminal statute is a question of law, fully reviewable by this Court.” State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878 (citation omitted). “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05.

Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language. Technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law, or as are defined by statute, must be construed according to such peculiar and appropriate meaning or definition.

N.D.C.C. § 1-02-03. “[I]t is presumed that ... [t]he entire statute is intended to be effective.” N.D.C.C. § 1-02-38(2); see also Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878 (“We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage.”). In statutory construction, the particular usually controls the general:

Whenever a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision must prevail and must be construed as an exception to the general provision, unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.

N.D.C.C. § 1-02-07; see also Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993) (“It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say. The Legislature must be presumed to have meant what it has plainly expressed.”). As this Court in Little noted, “the mention of one thing implies the exclusion of another.” Id. (citation omitted); see also 2A Norman J. Singer, Sutherland Statutory Construction, § 47:23 (6th ed. 2000) (“As the maxim is applied to statutory interpretation, where a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.”) (footnotes omitted). “The language of a statute is ambiguous if it is susceptible to differing, but rational, meanings.” City of Bismarck v. DePriest, 2006 ND 158, ¶ 9, 717 N.W.2d 924. Consistent with the presumption that “[c]ompliance with the constitutions of the state and of the United States is intended,” N.D.C.C. § 1-02-38(1), “[c]riminal statutes are strictly construed in favor of the defendant and against the government.” State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250 (citing State v. Rue, 2001 ND 92, ¶ 33, 626 N.W.2d 681).

[¶ 13] In this case, the controversy centers around three words: “involved,” “manufacture,” and “distribution.” The latter two are defined by statute. The term “manufacture” means:

the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container.

N.D.C.C. § 19-03.1-01(16). The term “distribute” means “to deliver other than by administering or dispensing a controlled substance.” N.D.C.C. § 19-03.1-01(11). The term “deliver” means “the actual, constructive, or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship.” N.D.C.C. § 19-03.1-01(8).

[¶ 14] The word “involved” is not statutorily defined; however, our laws do frequently use that word synonymously with a form of “to be,” making it a nullity, or a crutch or surplus word. See, e.g., N.D.C.C. § 6-09.10-01(2) (“ ‘Farmer’ means a person who is or was involved in the production of an agricultural commodity or livestock.”). We know that a farmer is a person who produces or produced an agricultural commodity or livestock. We do not refer to a tractor salesman as a farmer even though he could be seen as being involved in the production of an agricultural commodity. See, e.g., N.D.C.C. § 12.1-34-02(12) (“Victims and witnesses must be informed by the prosecuting attorney of their rights to a prompt disposition of the cases in which they are involved as victims or witnesses as defined by the docket currency standards of the North Dakota supreme court.”). The use of “involved” in that statute has no meaning other than “were” because only victims or witnesses must be so notified. See, e.g., N.D.C.C. § 20.1-13.1-02 (“when the operator of a motorboat or vessel is involved in an accident resulting in the death or serious bodily injury ... of another person ... the operator may be compelled by a game warden or a police officer to submit to a chemical test”). Once again, only the operator may be compelled to submit to a chemical test if the vessel he was operating “was” in an accident resulting in death or serious bodily injury.

[¶ 15] Webster’s dictionary defines “involved” as “implicated, affected, or committed.” Webster’s New World Dictionary 742 (2d ed.1980). The word “implicated” is not specifically defined in Webster’s; however, its past tense form is included in the present tense definition: “to show to have a connection with a crime, fault ... to have a resulting effect on ... to imply.” Webster’s New World Dictionary 705 (2d ed.1980). The State relies on a present tense definition of “involve,” which has a different connotation from its past tense form. The State quotes from another dictionary that defines “involve” as “to include as a necessary circumstance, condition, or consequence.” See also Webster’s New World Dictionary 742 (2d ed.1980) (defining “involve” as “to include by necessity; entail; require ... to relate to or affect”).

[¶ 16] The State urges us to adopt the federal courts’ broad reading of “involving” to define what “involved” means in our state law at issue here.

[¶ 17] In United States v. McKenney, the court addressed whether the defendant’s state conviction for conspiracy to violate a state controlled substances law by his agreement to possess with intent to deliver cocaine qualified as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance,” and was therefore a “serious drug offense” within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e). 450 F.3d 39, 42-45 (1st Cir.2006) (emphasis added). The court interpreted “involving” broadly:

By using “involving,” Congress captured more offenses than just those that “are in fact” the manufacture, distribution, or possession of, with intent to distribute, a controlled substance.
We agree with the Second Circuit’s analysis that “[t]he word ‘involving’ has expansive connotations, and ... it must be construed as extending the focus of § 924(e) beyond the precise offenses of distributing, manufacturing, or possessing, and as encompassing as well offenses that are related to or connected with such conduct.” [United States v.] King, 325 F.3d [110,] 113 [(2d Cir. 2003) ]. Also instructive is the D.C. Circuit’s criticism of the narrow construction of “involving” proposed by a defendant convicted of an inchoate crime. That court observed that if it were to adopt the narrow proposed reading, “the term ‘involving’ would be rendered meaningless — distribution alone would qualify as a crime ‘involving’ distribution and possession with intent to distribute alone would qualify as a crime ‘involving’ possession with intent to distribute.” [United States v.] Alexander, 331 F.3d [116,] 131 [ (D.C.Cir.2003) ] (some internal quotation marks omitted) (quoting United States v. Contreras, 895 F.2d 1241, 1244 (9th Cir.1990)).

McKenney, 450 F.3d at 42, 43-44. The McKenney court, however, qualified its expansive construction:

We add one observation: while the term “involving” under 18 U.S.C. § 924(e)(2)(A)(ii) is not to be too narrowly read, it also is not to be too broadly read. Not all offenses bearing any sort of relationship with drug manufacturing, distribution, or possession with intent to manufacture or distribute will qualify as predicate offenses under the ACCA. The relationship must not be too remote or tangential. We need not decide today where the line is; we hold only that the relationship between the inchoate offense of conspiracy and its object — its entire purpose — is plainly close enough that a conspiracy to possess with intent to distribute is, under the ACCA, an offense “involving ... possessing with intent to ... distribute.”

McKenney, 450 F.3d at 45 (emphasis added).

[¶ 18] Dennis argues that McKenney “dealt with a very narrow issue concerning whether the inchoate offense of conspiracy was an offense ‘involving ... possessing with intent to ... distribute.’ ” We agree. Inchoate offenses, such as conspiracy and attempt, may encompass conduct substantially more broad than those of choate crimes. See, e.g., N.D.C.C. § 12.1-06-04(1) (“A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy.”); N.D.C.C. § 12.1-06-01(1) (“A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime.”). Therefore, we need not analyze whether inchoate offenses deserve a broad reading of “involved,” because the charge in this case is not an inchoate offense.

[¶ 19] That “involved” has been construed narrowly to mean “was” or broadly to mean “to show to have a connection with a crime” does not necessarily render section 19-03.1-23.1 susceptible to more than one rational, but different, meaning in this case. Because the legislature restricted the meaning of “involved” to apply only to the offenses listed in section 19-03.1-23, which includes the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, the issue before us now is whether possession with intent to deliver involved the manufacture or distribution of a controlled substance.

[¶ 20] First, applying our various statutes’ use of “involved” as a form of “to be” — such as “was” — -to section 19-03.1-23.1(l)(a) supports Dennis’s position that the school zone aggravating factor does not apply to the charge against him; instead, it applies only if the offense was the manufacture or distribution of a controlled substance. Second, when we compare sections 19-03.1-23 and 19-03.1-23.1, there is an absence of parallel language between them. In the former, “it is unlawful for any person to willfully ... manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance”; in the latter, only those offenses that “involved the manufacture or distribution of a controlled substance” are provided. The inclusion of manufacture and distribution implies that possession with intent to deliver is excluded. Third, possession of a controlled substance with the intent to deliver could not have “involved” distribution of a controlled substance by the defendant, because the defendant had not yet distributed it; instead, only circumstances that indicated an intent to deliver the controlled substance existed. One might even argue that every drug-related offense necessarily involved manufacture or distribution at some point by some person — not necessarily the defendant. Had the legislature intended to include possession with intent to deliver as an offense subject to the aggravating factors of section 19-03.1-23.1, it would have so provided. Therefore, we hold that the State’s request that we “stretch” the meaning of “involved” to cover the offense charged in this case is not reasonable. See N.D.C.C. § 1-02-38(3).

Ill

[¶ 21] We reverse the district court judgment and remand for resentencing as a class B felony.

[¶ 22] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 80
    STATE of North Dakota by WORKFORCE SAFETY & INSURANCE, Plaintiff and Appellee v. JFK RAINGUTTERS, a Limited Liability Company, and Frank Whitecalfe, Individually, Defendants and Appellants.
    No. 20060196.
    Supreme Court of North Dakota.
    June 7, 2007.

      Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for plaintiff and appellee.
    Thomas M. Disselhorst, Disselhorst Law Office, Bismarck, N.D., for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] JFK Raingutters, LLC (“JFK”), and Frank Whitecalfe appealed from a judgment awarding Workforce Safety and Insurance (“WSI”) $93,414.28 in unpaid worker’s compensation premiums, penalties, and interest. We conclude the district court had subject matter jurisdiction over WSI’s action, and the court did not err in granting summary judgment. We affirm.

I

[¶ 2] Frank Whitecalfe is an enrolled member of the Three Affiliated Tribes and lives on the Fort Berthold Indian Reservation. In 1999, Whitecalfe filed with the Secretary of State articles of organization for JFK, a limited liability company which engaged in the business of constructing and installing rain gutters. To be eligible for Indian preference in employment under the Three Affiliated Tribes Tribal Employment Rights Ordinance (“TERO”) in effect at the time, JFK was required to qualify as a “Certified Indian Contractor.” TERO of the Fort Berthold Reservation, Chapter 7 (March 11, 1993). Under Chapter 7, Section 3(D) of the TERO, “Certified Indian Contractor” status would not be granted unless “[t]he firm ... provide[s] documentation, that all the required employer requirements; of unemployment insurance, workmen’s compensation, withholding of federal tax and any other required taxes and insurances’s [sic] are in effect, to be in operation in a lawful manner.” The Three Affiliated Tribes do not have a workers compensation scheme.

[¶ 3] Whitecalfe applied to WSI for workers compensation coverage for JFK and listed himself as the sole owner of the company on the application. Whitecalfe reported that the business performed rain gutter installation on the Fort Berthold Reservation as well as other locations in North Dakota and neighboring states. Although Whitecalfe originally paid JFK’s quarterly workers compensation premiums, he eventually claimed that JFK had no employees and no payroll, and began paying the minimum quarterly payment to keep the account open.

[¶ 4] In July 2002, Job Service North Dakota received an application for unemployment benefits from a person who listed JFK as his former employer in Bismarck. Job Service ultimately determined that JFK had 16 workers employed and was liable for unemployment insurance contributions. Based on Job Service’s information, WSI contacted Whitecalfe and requested JFK’s annual payroll report. Whitecalfe eventually submitted a payroll report listing no employees from October 1, 2001, through September 30, 2002. WSI informed Whitecalfe that Job Service had identified 16 employees and he needed to submit further documentation or it would assume those 16 workers were employees. After Whitecalfe failed to respond, WSI informed him of his personal liability for the unpaid premiums. In response, Whitecalfe claimed JFK was exempt from paying workers compensation insurance premiums because its workers were not employees, but were independent contractors under tribal law who were referred to him by the TERO office. Whitecalfe also claimed most of JFK’s work was performed within the exterior boundaries of the reservation or on trust lands, and that WSI had no jurisdiction and could not collect premiums for those projects. Whitecalfe conceded that some of JFK’s work was performed off the reservation.

[¶ 5] In 2003, after WSI issued a noncompliance order finding that JFK and Whitecalfe owed unpaid workers compensation premiums, penalties, and interest, Whitecalfe requested an administrative hearing. He argued that JFK was not responsible for premiums on work performed by independent contractors and that WSI did not have jurisdiction over work performed on the reservation or on trust lands. Whitecalfe did not dispute that JFK was subject to North Dakota’s workers compensation laws relating to work performed off the reservation. WSI sought discovery of JFK’s payroll records and information on all projects performed by JFK during the relevant time period. Whitecalfe failed to comply with WSI’s discovery requests, even after being ordered to do so by the administrative law judge (“ALJ”), and WSI moved for sanctions. The ALJ granted the motion for sanctions, holding that all workers used by JFK would be deemed employees rather than independent contractors and that Whitecalfe would be barred from presenting evidence at the administrative hearing that any of the work had been performed on the reservation or on trust lands. Following the administrative hearing, the ALJ found JFK and Whitecalfe were liable for the unpaid premiums, and WSI adopted the ALJ’s recommendation. JFK and Whitecalfe appealed WSI’s final order to the district court. When JFK and White-calfe took no further action, including failure to file a certified record, the district court dismissed the appeal. A final judgment was entered, and JFK and White-calfe did not appeal from that judgment.

[¶ 6] In June 2005, WSI commenced this collection action seeking recovery of the unpaid premiums, penalties, interest, and costs from JFK and Whitecalfe, and seeking to enjoin JFK from employing persons in hazardous employment within North Dakota until it had fully complied with North Dakota’s workers compensation laws. JFK and Whitecalfe answered, again asserting that JFK’s employees were independent contractors under tribal law and that the district court lacked jurisdiction to enforce WSI’s attempt to impose workers compensation premiums, penalties, and other sanctions for work JFK performed on the reservation or on trust lands. The district court granted WSI’s motion for summary judgment, concluding the court had subject matter jurisdiction over the action and the other issues raised by JFK and Whitecalfe were barred by administrative res judicata.

II

[¶ 7] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for the prompt resolution of a controversy on the merits if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. State ex rel. N.D. Hous. Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 8, 720 N.W.2d 425. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶4, 712 N.W.2d 828. Whether the district court properly granted summary judgment is a question of law that we review de novo on the entire record. Hild v. Johnson, 2006 ND 217, ¶ 6, 723 N.W.2d 389. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, ¶ 17, 721 N.W.2d 43.

III

[¶ 8] JFK and Whitecalfe argue the district court lacked subject matter jurisdiction over WSI’s action to collect unpaid workers compensation premiums, penalties, and interest for any work that JFK performed on the reservation or on trust lands.

[¶ 9] “[W]henever we consider a case involving a member of an Indian tribe we are confronted with the issue of subject-matter jurisdiction.” Davis v. Director, N.D. Dep’t of Transp., 467 N.W.2d 420, 422 (N.D.1991). Subject matter jurisdiction is the court’s power to hear and decide the general subject involved in the action. Harshberger v. Harshberger, 2006 ND 245, ¶ 16, 724 N.W.2d 148. Subject matter jurisdiction cannot be conferred by agreement, consent, or waiver, and issues involving subject matter jurisdiction can be raised by the court at any time. Id.

[¶ 10] “ Within Indian country state jurisdiction is preempted both by federal protection of tribal self-government and by federal statutes on other subjects relating to Indians, tribes, their property, and federal programs.’ ” Winer v. Penny Enters., Inc., 2004 ND 21, ¶ 10, 674 N.W.2d 9 (quoting F. Cohen, Handbook of Federal Indian Law 349 (1982) (footnotes omitted)). “[T]his Court has consistently held that state courts have no jurisdiction over civil causes of action involving Indians, arising within the exterior boundaries of an Indian Reservation, unless a majority of the enrolled residents of the Reservation vote to accept jurisdiction.” Airvator, Inc. v. Turtle Mountain Mfg. Co., 329 N.W.2d 596, 600 (N.D.1983).

[¶ 11] The United States Supreme Court explained in Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) (emphasis added), “absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Congress has plenary authority to legislate for the Indian tribes in all matters, see United States v. Wheeler, 435 U.S. 313, 319, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); In re A.B., 2003 ND 98, ¶ 37, 663 N.W.2d 625, and “[t]he unique and limited sovereignty that Indian tribes retain is subject to complete defeasance by Congress.” State v. Hook, 476 N.W.2d 565, 567 (N.D.1991).

[¶ 12] In 1936, Congress enacted 40 U.S.C. § 290, currently codified at 40 U.S.C. § 3172, which provides:

§ 3172. Extension of state workers’ compensation laws to buildings, works, and property of the Federal Government
(a) Authorization of extension. — The state authority charged with enforcing and requiring compliance with the state workers’ compensation laws and with the orders, decisions, and awards of the authority may apply the laws to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State in which the land, premises, projects, buildings, constructions, improvements, or property are located.
(b) Limitation on relinquishing jurisdiction. — The Government under this section does not relinquish its jurisdiction for any other purpose.
(c) Nonapplication. — This section does not modify or amend subchapter I of chapter 81 of title 5.

[¶ 13] In State ex rel. Indus. Comm’n v. Indian Country Enters., Inc., 130 Idaho 520, 944 P.2d 117 (1997), the Idaho Industrial Commission sued Indian Country Enterprises, Inc., and its owner to enjoin them from doing business and for statutory penalties for conducting business without providing workers compensation insurance for their employees. The business was located on the Coeur d’Alene Indian Reservation. Id. The business was not owned by the tribe, but the owner was a member of the tribe. Id. The trial court dismissed the action, concluding it lacked subject matter jurisdiction to decide the dispute. Id. The Idaho Supreme Court concluded its state courts had subject matter jurisdiction over an action to enforce Idaho’s workers compensation laws against a tribal member operating a business on the reservation based on 40 U.S.C. § 290:

Pursuant to 40 U.S.C. § 290, Idaho’s workers’ compensation laws apply on land “owned or held by the United States of America by deed or act of cession, by purchase or otherwise.” The right which Indians hold in reservation land is that of occupancy, the fee and right of disposition remains in the United States government. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 338, 65 S.Ct. 690, 692, 89 L.Ed. 985 (1945); Shoshone Tribe v. United States, 299 U.S. 476, 496, 57 S.Ct. 244, 251, 81 L.Ed. 360 (1937). Therefore, the reservation is land “owned or held by the United States” and, under 40 U.S.C. § 290, Idaho’s workers’ compensation laws apply on the reservation.
Pursuant to 40 U.S.C. § 290, the Commission is empowered to enforce Idaho’s workers’ compensation laws “in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be.” Because I.C. § 72-319(4) and (5) allows the Commission to bring an action in district court and 40 U.S.C. § 290 allows the Commission to enforce Idaho’s workers’ compensation laws in the “same way and to the same extent” as if the reservation was within the boundaries of the state, the trial court had subject matter jurisdiction and erred in dismissing the case.

Id. at 118.

[¶ 14] Similarly, in Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir.1982), the Ninth Circuit Court of Appeals held that Arizona workers compensation law applied in an action by individual Indian miners against their employers for injuries received while employed at uranium mines on the Navajo reservation. The court concluded:

The language of 40 U.S.C. § 290 unambiguously permits application of state workers’ compensation laws to all United States territory within the state. Claims by Indians against non-Indian employers are not matters of “self-gov-erance in purely intramural matters” sufficient to avoid the rule that Indians are subject to such federal laws of general application, United States v. Farris, 624 F.2d 890, 893 (9th Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 839 (1981), and the exercise of state jurisdiction over such claims does not, even minimally, infringe upon or frustrate tribal self-government, Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 483, 96 S.Ct. 1634, 1646, 48 L.Ed.2d 96 (1976) (citing Williams v. Lee, supra, 358 U.S. at 219-20, 79 S.Ct. at 270).

Id. at 1319. See also Johnson v. Kerr-McGee Oil Indus., Inc., 129 Ariz. 393, 631 P.2d 548, 551 (App.1981) (same).

[¶ 15] JFK and Whitecalfe rely on White Mountain Apache Tribe v. Industrial Comm’n, 144 Ariz. 129, 696 P.2d 223 (App.1985); Middletown Rancheria of Pomo Indians v. Workers’ Comp. Appeals Bd., 60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105 (1998); Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883 (Minn.1986); and Zempel v. Uninsured Employers’ Fund, 282 Mont. 424, 938 P.2d 658 (1997), to support their assertion that 40 U.S.C. § 3172 is inapplicable to Indian lands. However, in White Mountain, Middletown, and Tibbetts, the employers were wholly-owned entities of the Indian tribes, and the courts concluded that the federal statute did not have the effect of abrogating the sovereign immunity of the tribes themselves. See White Mountain, 696 P.2d at 228 (40 U.S.C. § 290 did not abrogate tribal sovereign immunity); Middletown, 71 Cal.Rptr.2d at 115 (40 U.S.C. § 290 “does not operate as a congressional waiver of Tribe’s sovereign immunity in this case and was not intended to apply state workers’ compensation laws to Native American Indian tribes ”); Tibbetts, 397 N.W.2d at 888 (40 U.S.C. § 290 “was never intended to apply to Indian tribes themselves”). The Zempel court did not mention 40 U.S.C. § 3172 or its predecessor.

[¶ 16] JFK and Whitecalfe argue Indian Country and Begay are distinguishable because the states in which those cases arose allow employers a choice of workers compensation insurers, while WSI operates as the sole insurer in North Dakota. They also rely on the TERO, which they claim is a “comprehensive scheme for applying Indian preference ... on the reservation,” and under which a tribal official has allegedly determined tribal members referred to JFK for employment are independent contractors.

[¶ 17] WSI’s role as the sole provider of workers compensation insurance in North Dakota may be a distinction, but it is one without a legal difference. The number of workers compensation insurers available to employers is irrelevant to the question whether a state’s workers compensation laws are applicable on an Indian reservation. Likewise, although the TERO may be a “comprehensive” scheme for providing a preference in employment to Indians on work projects being conducted within the reservation, the TERO does not address the subject of workers compensation except to require that workers compensation is in effect and operating.

[¶ 18] The tribal sovereignty interests that concerned the courts in White Mountain, Middletown, and Tibbetts are not present here. JFK is not owned by the Three Affiliated Tribes, but is wholly owned by Whitecalfe, a member of the tribe. We agree with the Idaho Supreme Court’s decision in Indian Country that, under these circumstances, 40 U.S.C. § 3172 makes a state’s workers compensation laws applicable on an Indian reservation. Cf. Airvator, Inc., 329 N.W.2d at 602, 604 (“state-chartered corporations should be treated as non-Indians independent of their percentage of Indian shareholders,” and are “subject to the jurisdiction of the courts of the state in which [they are] incorporated”).

[¶ 19] We conclude that North Dakota’s workers compensation laws apply in this case, and the district court had subject matter jurisdiction over the action.

IV

[¶ 20] JFK and Whitecalfe argue summary judgment was improperly granted because there are disputed issues of material fact whether JFK’s workers were employees rather than independent contractors, and whether work was performed off or on the reservation.

[¶ 21] Because we have concluded that North Dakota’s workers compensation laws apply on the reservation, the amount of work performed on or off the reservation is irrelevant and does not constitute a material issue of fact. Although the status of JFK’s workers as employees or independent contractors remains relevant, we believe JFK and Whitecalfe are precluded from raising the issue in this proceeding.

[¶ 22] Administrative res ju-dicata is simply the judicial doctrine of res judicata applied to an administrative proceeding to prevent collateral attacks on administrative agency decisions and to protect successful parties from duplicative proceedings. Fuchs v. Moore, 1999 ND 27, ¶6, 589 N.W.2d 902. Application of the doctrine is especially appropriate to bar new proceedings when an agency has conducted a trial-type hearing, made findings, and applied the law. Id. In Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 20, 637 N.W.2d 681, this Court explained:

Res judicata generally prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which were resolved by a final judgment in a court of competent jurisdiction. Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶23, 583 N.W.2d 377; Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D. 1992). Determinations by administrative agencies, including the Bureau, may likewise be given res judicata effect if the conventional elements of res judicata are present. See Westman v. Dessellier, 459 N.W.2d 545, 547 (N.D.1990); Vanover v. Kansas City Life Ins. Co., 438 N.W.2d 524, 526 (N.D.1989); Stine v. Weiner, 238 N.W.2d 918, 925-26 (N.D. 1976); 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 127.07[2] & [5]. Under traditional res judicata principles, the doctrine is not applicable to issues not considered or decided in the prior proceeding, and the doctrine applies only when the issues in the prior and current proceedings are “substantially identical.” Nodland v. Nokota Co., 314 N.W.2d 89, 92 (N.D.1981); see also Hofsommer, 488 N.W.2d at 384 (under related doctrine of collateral estoppel, issues must be identical).

Administrative res judicata applies only to final agency orders. Saakian v. North Dakota Workers Comp. Bureau, 1998 ND 227, ¶ 17, 587 N.W.2d 166; Muscatell v. North Dakota Real Estate Comm’n, 546 N.W.2d 374, 379 (N.D.1996). Under N.D.C.C. § 65-05-03, a final WSI decision is entitled to full faith and credit. Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, ¶ 17, 602 N.W.2d 704.

[¶ 23] Whether JFK’s workers were employees rather than independent contractors is the precise issue decided by the ALJ in the prior administrative proceeding. That decision resulted in an un-appealed judgment and became final. We conclude administrative res judicata precludes relitigation of the issue in this proceeding, and the district court did not err in granting WSI’s motion for summary judgment.

V

[¶ 24] The judgment is affirmed.

[¶ 25] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ„ concur.


author: MARING, Justice.

text:
    2007 ND 91
    Linda OLSRUD, Plaintiff and Appellant v. BISMARCK-MANDAN ORCHESTRAL ASSOCIATION, aka Bismarck-Mandan Symphony Orchestra, Defendant and Appellee.
    No. 20060239.
    Supreme Court of North Dakota.
    June 12, 2007.

      Deborah J. Carpenter, Carpenter Law Offices, Bismarck, N.D., for plaintiff and appellant.
    Gary R. Wolberg, Fleck, Mather & Strutz, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Linda Olsrud appeals from a judgment dismissing with prejudice her action against the Bismarck-Mandan Orchestral Association (“Association”), a nonprofit corporation, after the district court decided Olsrud’s service of the summons and complaint on the Association was improper. We conclude Olsrud’s service of process on the Association was improper, and we affirm the dismissal of the action but modify the judgment to dismiss Ols-rud’s action without prejudice.

I

[¶ 2] After the Association terminated Olsrud’s employment, she obtained a February 21, 2006, opinion from the North Dakota Attorney General, which concluded the Association was supported in part by public funds and was a public entity subject to North Dakota’s open records and meetings law; the Association did not violate the open records law by refusing to give Olsrud copies of personnel records, but violated the open records law by failing to provide her with other requested reports, minutes, meeting notices, and information, with appropriate redactions; the Association violated the open records law by failing to give public notice of meetings by it and its executive and personnel committees; and the Association violated the open records law by failing to give notice of its meetings to Olsrud, an individual who had asked to receive notice. N.D. Op. Atty Gen.2006-0-04.

[¶ 3] The attorney general’s opinion listed the steps needed to remedy the violations:

The Association must provide to the re-questor copies of all of the records requested. The Association must redact information that is confidential and may redact personnel information that is exempt, under N.D.C.C. § 44-04-18.1 or other applicable law.
In addition to providing copies of notices and minutes for meetings occurring from August 24, 2004, through August 24, 2005, the Association must provide to Ms. Olsrud copies of notices and minutes for meetings occurring from August 24, 2005, to the present, and must, in future, provide notice of its meetings to the public and Ms. Olsrud prior to its Board and committee meetings, in accordance with N.D.C.C. § 44-04-20.
Failure to take the corrective measures described in this opinion within seven days of the date this opinion is issued will result in mandatory costs, disbursements, and reasonable attorney fees if the person requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2. It may also result in personal liability for the person or persons responsible for the noncompliance.

[¶ 4] Olsrud claimed the Association failed to comply with the attorney general’s opinion, and her attorney thereafter prepared a March 20, 2006, summons and complaint against the Association for relief under the open records law. Olsrud’s attorney’s husband filed affidavits of personal service, stating that on March 20, 2006, the summons and complaint were served on both Gary Wolberg, the Association’s attorney, and on A1 Wolf, the Association’s president of the board of directors, “by personally delivering a copy of said Summons and Complaint to the receptionist” at Wolberg’s office address and at Wolfs office address.

[¶ 5] By letter dated March 20, 2006, Wolberg informed Olsrud’s attorney that he did not have authority to admit service of the summons and complaint on behalf of the Association and declined to sign and return an admission of service to Olsrud’s attorney. Wolberg also advised Olsrud’s attorney “to make service in the proper manner.” According to Wolberg, Olsrud’s attorney left him a voice mail on March 22, 2006, which stated the summons and complaint delivered to Wolberg’s office were a “courtesy copy,” and actual service of the pleadings had been made on Wolf, the Association’s president of the board of directors. According to Wolf, he was in Arizona on March 20, 2006, he did not return to his office until March 31, 2006, no one in his office signed an admission of service of the summons and complaint on March 20, 2006, nor was anyone in his office authorized to do so, and Wolberg was not authorized to accept service of process on behalf of the Association.

[¶ 6] The Association thereafter moved to dismiss Olsrud’s action, claiming insufficient service of process because Wolberg was not authorized to accept service on behalf of the Association and personal service had not been made on the Association’s president, the Association’s registered agent, or any officer, director, or other person authorized by rule to receive service. The district court granted the Association’s motion and dismissed Ols-rud’s action with prejudice.

II

[¶ 7] Olsrud argues service of the summons and complaint was timely' and proper. She asserts the general framework for service of civil actions is governed by N.D.R.Civ.P. 5(b), which she claims authorizes service upon the Association by “delivering” the summons and complaint to Wolberg’s office. She asserts “delivering” includes leaving the document at the attorney’s office with a clerk or other individual in charge under N.D.R.Civ.P. 5(b). Olsrud acknowledges N.D.R.Civ.P. 4(d)(2)(D) authorizes service on a corporation by delivering a copy of the summons “to an agent authorized by appointment or by law to receive service of process on its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service.” She claims Wolberg was an agent authorized “by appointment or by law” to receive service for the Association under N.D.R.Civ.P. 4(d)(2)(D), because Wolberg was the Association’s attorney in the proceeding culminating in the attorney general’s opinion. Olsrud argues even if Wolberg was not the proper person to be served, Wolf, the Association’s president of the board of directors, was delivered a copy of the summons and complaint at his office by leaving a copy with a “clerk or other individual in charge” under N.D.R.Civ.P. 5(b).

[¶ 8] The Association responds N.D.R.Civ.P. 5 is not applicable to service of a summons and complaint because it applies to service of papers made after an action is properly served under N.D.R.Civ.P. 4. The Association argues Wolberg was not an agent for the Association with respect to the matter on which Olsrud’s claim was based and N.D.R.Civ.P. 4(d)(2)(D) contemplates service upon corporate agents. The Association also argues Olsrud’s attempted service did not comply with the procedure for commencing an action against a corporation under N.D.R.Civ.P. 4(d)(2)(D), because there was no personal service on Wolf, the Association’s president of the board of directors, no one signed an admission of service on his behalf, and no one in Wolfs office had that authority. The Association asserts leaving a copy of the summons and complaint at Wolfs office was insufficient service of process.

[¶ 9] Under N.D.R.Civ.P. 3, an action is commenced by the service of a summons. Valid service of process under N.D.R.Civ.P. 4 is necessary for a court to acquire personal jurisdiction over a defendant. Sanderson v. Walsh County, 2006 ND 83, ¶ 13, 712 N.W.2d 842; Beaudoin v. South Texas Blood & Tissue Ctr., 2004 ND 49, ¶ 11, 676 N.W.2d 103; Gessner v. City of Minot, 1998 ND 157, ¶5, 583 N.W.2d 90. Absent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant. Riemers v. State, 2006 ND 162, ¶ 7, 718 N.W.2d 566; Muhammed v. Welch, 2004 ND 46, ¶ 11, 675 N.W.2d 402; Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D.1996). Without a valid service of process, any judgment is void because the court lacks personal jurisdiction. Riemers, at ¶ 7; Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D. 1991). A party must strictly comply with the specific requirements for service of process. Sanderson, 2006 ND 83, ¶ 13, 712 N.W.2d 842; Gessner, 1998 ND 157, ¶ 5, 583 N.W.2d 90; Messmer v. Olstad, 529 N.W.2d 873, 876 (N.D.1995); Farrington v. Swenson, 210 N.W.2d 82, 85 (N.D. 1973).

[¶ 10] Rule 4, N.D.R.Civ.P., deals with jurisdiction over a person, process, and personal service, and as relevant to personal service on a corporation, provides:

(d) Personal Service.
(2) How Service Made Within the State. Personal service of process within the state must be made as follows:
(D) upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service; (ii) if the sheriffs return indicates no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons at any office of the domestic or foreign corporation, partnership or unincorporated association within this state with the person in charge of the office; or (iii) any form of mail or third-party commercial delivery addressed to any of the foregoing persons and requiring a signed receipt and resulting in delivery to that person.

[¶ 11] Rule 5, N.D.R.Civ.P., deals with service and filing of pleadings and other papers and provides, in relevant part:

(a) Service-When Required. Except as otherwise provided in these rules, every order required by its terms to be served, and, unless otherwise ordered by the court, every pleading subsequent to the original complaint, every paper relating to discovery required to be served upon a party, every written motion other than one which may be heard ex parte, every proposed order, order for judgment, decree, finding of fact and conclusion of law, every paper filed with the clerk or submitted to the judge, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper must be served on each of the parties. No service need be made on parties in default for failure to appear except pleadings asserting new or additional claims for relief against them must be served upon them in the manner provided for service of summons in Rule 4.
(b) Service-How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service must be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party must be made by delivering a copy to the attorney or party, or by facsimile transmission if available to the attorney or party, or by mailing or delivering via third-party commercial carrier a copy to the attorney or party at the attorney’s or party’s last known address or, if no address is known, upon order of the court by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or, leaving it at the attorney’s or party’s office with a clerk or other individual in charge; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the party to be served has no office, leaving it at the party’s dwelling or usual place of abode with some individual of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service via a third-party commercial carrier is complete upon deposit of the paper to be served with the commercial carrier.

[¶ 12] In interpreting court rules, we apply principles of statutory construction to ascertain intent. Rekkedal v. Feist, 2006 ND 147, ¶9, 718 N.W.2d 10; Sanderson, 2006 ND 83, ¶ 16, 712 N.W.2d 842; State v. Lamb, 541 N.W.2d 457, 459 (N.D.1996); Bickel v. Jackson, 530 N.W.2d 318, 320 (N.D.1995). We ascertain intent by looking first to the language of the rule, and the words in a rule are construed in accordance with their plain, ordinary, and commonly understood meaning. Rekkedal, at ¶ 9; Sanderson, at ¶ 16. If possible, we construe rules as a whole to give meaning to each word and phrase. Sanderson, at ¶ 16.

[¶ 13] Rule 5, N.D.R.Civ.P., applies to service of certain enumerated papers and pleadings subsequent to the original complaint. Rule 5(b), N.D.R.Civ.P., authorizes service of pleadings and other papers upon a party represented by an attorney by delivery to the attorney and provides “[d]elivery of a copy within this rule means: handing it to the attorney or to the party; or, leaving it at the attorney’s or party’s office with a clerk or other individual in charge.” The language of N.D.R.Civ.P. 4(b) and (d) outlines how a court may exercise personal jurisdiction over a person organized under the laws of this state and how personal service of all process may be made. Under our law, “process” means “a writ or summons issued in the course of judicial proceedings.” N.D.C.C. § 1-01-49(6). See State v. Wolff, 512 N.W.2d 670, 674 (N.D.1994) (stating “Rule 5 applies to service of papers other than ‘process,’ and specifically applies to ‘every order required by its terms to be served’ ” and “[i]n contrast, ‘Rule 4 governs civil jurisdiction and service of process.’ ”); Smith, 478 N.W.2d 370, 371 (N.D.1991) (stating Rule 4 deals extensively with service of original process, which is the means of securing jurisdiction by the court over the defendant’s person).

[¶ 14] The language of N.D.R.Civ.P. 4 and 5, when read together to give meaning to each rule, contemplates that Rule 4 applies to service of the original process to obtain personal jurisdiction and Rule 5 applies to service of subsequent pleadings and other papers. That interpretation gives meaning to the language of N.D.R.Civ.P. 5(a) that no service of pleadings or other papers need be made on parties in default, but pleadings asserting new or additional claims for relief against defaulting parties must be served upon the defaulting parties in the manner provided for service of the summons in N.D.R.Civ.P. 4.

[¶ 15] Any doubt as to the applicability of N.D.R.Civ.P. 4 and 5 is resolved by the Joint Procedure Committee’s official explanatory notes to N.D.R.Civ.P. 4 and 5, which specifically state that N.D.R.Civ.P. 4 governs civil jurisdiction and service of process and N.D.R.Civ.P. 5 applies to service of papers other than process. See Rekkedal, 2006 ND 147, ¶9, 718 N.W.2d 10; Wolff, 512 N.W.2d at 674. The explanatory note to N.D.R.Civ.P. 5 explains:

Rule 5 applies to service of papers other than “process.” In contrast, Rule 4 governs civil jurisdiction and service of process. When a statute or rule requiring service does not pertain to service of process, nor require personal service under Rule 4, nor specify how service is to be made, service may be made as provided in Rule 5(b).

[¶ 16] Our interpretation and application of N.D.R.Civ.P. 4 and 5 is also consistent with the parallel provisions of the federal rules requiring the prior establishment of personal jurisdiction over a party under P.R.Civ.P. 4 before invoking the provisions of F.R.Civ.P. 5. See 1 James Wm. Moore, Moore’s Federal Practice § 5.02 (3rd ed.2007); 4B Charles AJan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1141 (2002).

[¶ 17] We conclude Olsrud’s reliance on N.D.R.Civ.P. 5 for effectuating service of process and obtaining personal jurisdiction over the Association is misplaced, and we consider whether she has complied with the requirements for effectuating process and obtaining personal jurisdiction over the Association under N.D.R.Civ.P. 4(d)(2)(D).

[¶ 18] In Brakke v. Rudnick, 409 N.W.2d 326, 330 (N.D.1987), this Court said a plaintiff has the burden to establish that the authority to receive service of process exists between the defendant and the individual served. We also discussed an agent’s authorization to receive service of process and said:

“The cases dealing with agency by appointment indicate that an actual appointment for the specific purpose of receiving process normally is expected. Accordingly, the mere fact that a person acts as defendant’s agent for some purposes does not necessarily mean that he has authority to receive process.... Thus, a financial agent or manager of defendant’s business or even his attorney probably will not be deemed an agent appointed to receive process absent a factual basis for believing that an appointment of this type has taken place.”

Id. at 330 (quoting 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1097 (1985)). In Brakke, at 331-32, affidavits of service of process said service was accomplished when a process server left a copy of the summons and complaint with a secretary or other named individuals at the defendants’ offices. This Court said the plaintiffs had not established that the defendants had authorized the secretary or other named individuals to receive process for them and concluded the secretary and other named individuals were not authorized by appointment or by law to receive service of process on behalf of the defendants. Id.

[¶ 19] Olsrud has cited no law authorizing Wolberg, the Association’s attorney, to receive process for the Association. Affidavits by Wolberg and by Wolf both state that Wolberg was not authorized by appointment or by law to accept service of process for the Association. Under Brakke, Olsrud has not demonstrated that Wolberg was an agent authorized “by appointment or by law” to accept service of process for the Association.

[¶ 20] Olsrud nevertheless claims Wolberg was an agent for the Association with respect to the matter upon which her claim is based and was an agent of the Association at the time of service. However, leaving the summons and complaint at the offices of Wolberg and Wolf does not comply with N.D.R.Civ.P. 4(d)(2)(D). The definition of delivery in N.D.R.Civ.P. 5(b) for pleadings subsequent to the original complaint and other papers is explicitly limited to that rule, and N.D.R.Civ.P. 4(d)(2)(D) requires delivery of a summons to certain enumerated individuals to effectuate service of process on a corporation. The affidavits of service on both Wolberg and Wolf say the summons and complaint were “personally delivered ... to the receptionist” at their offices. There is no evidence the receptionist was “an officer, director, superintendent or managing or general agent, or partner, or associate” of the Association, and this record does not reflect that Olsrud attempted to serve the Association’s registered agent. Moreover, this record does not reflect any of the circumstances identified in Beaudoin, 2004 ND 49, ¶ 18, 676 N.W.2d 103, which could constitute valid service on the Association through delivery to a receptionist. On this record, we conclude service of process was not properly effectuated on Wolf, as president of the Association, and Olsrud’s attempted service of process on Wolberg was insufficient under N.D.R.Civ.P. 4(d)(2)(D).

[¶21] Olsrud nevertheless argues the refusal to accept delivery by the Association’s attorney and by Wolf constitutes delivery under N.D.R.Civ.P. 4(1) and Production Credit Ass’n v. Obrigewitch, 443 N.W.2d 923 (N.D.1989).

[¶ 22] Rule 4(0, N.D.R.Civ.P., provides:

(l) Effect of Mail or Delivery Refusal. If a summons and complaint or other process is mailed or sent with delivery restricted and requiring a receipt signed by the addressee, the addressee’s refusal to accept the mail or delivery constitutes delivery. Return of the mail or delivery bearing an official indication on the cover that delivery was refused by the addressee is prima facie evidence of the refusal.

The plain language of N.D.R.Civ.P. 4(0 applies to the refusal to accept a delivery of process “mailed or sent with delivery restricted and requiring a receipt signed by the addressee.” Olsrud did not purport to effectuate service of process on the Association by “raail[ ] or sent with delivery restricted and requiring a receipt signed by the addressee,” and N.D.R.Civ.P. 4(0 is not applicable to Olsrud’s attempted service of process in this case.

[¶ 23] In Obrigewitch, 443 N.W.2d at 925, a deputy sheriff approached named defendants in a hallway in a courthouse to attempt personal service on the defendants, the defendants refused to take the summons and complaint, and the documents were laid on a bench within two feet of one defendant while the other defendant fled the area. We rejected the defendants’ argument that they could avoid defending an action by merely refusing to accept service of process. Id.

[¶ 24] Here, the Association’s attorney was not an “agent authorized by appointment or by law” to receive service of process for the Association, and Olsrud’s purported service on receptionists for both Wolberg and Wolf was not proper to effectuate service on the Association. The rationale of Obrigewitch is not applicable to either of Olsrud’s attempted services of process.

Ill

[¶ 25] Olsrud argues the Association waived any defenses regarding sufficiency of service and is estopped from claiming improper service, because the Association’s attorney failed to respond to a notice of the alleged violations provided by Olsrud under N.D.C.C. § 44-04-21.2(3), and the Association failed to file a responsive pleading. However, Olsrud has not cited any legal authority to support her waiver and estoppel arguments. We have often said a party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit. E.g., Riemers v. City of Grand Forks, 2006 ND 224, ¶¶ 9-10, 723 N.W.2d 518; Riverside Park Condominiums Unit Owners Ass’n v. Lucas, 2005 ND 26, ¶ 34, 691 N.W.2d 862. Olsrud’s waiver and es-toppel arguments are without merit.

IV

[¶ 26] The Association asserts sanctions should be imposed upon Olsrud for including in the joint appendix documents that were not part of the record in the district court. During oral argument to this Court, Olsrud claimed the documents were part of her response to the Association’s motion to dismiss. However, the documents are not part of the district court record provided to this Court, and we admonish Olsrud that only items in the record may be included in the appendix. See Rekkedal, 2006 ND 147, ¶ 11, 718 N.W.2d 10.

V

[¶27] We conclude the district court did not err in dismissing Olsrud’s complaint against the Association for insufficient service of process. Absent personal jurisdiction over a defendant, a district court is powerless to do anything beyond dismissing without prejudice. See Witzke v. Gonzales, 2006 ND 213, ¶ 8, 722 N.W.2d 374; Riemers, 2006 ND 162, ¶¶8-11, 718 N.W.2d 566; Smith, 478 N.W.2d 370, 371-73 (N.D.1991). We therefore affirm the dismissal, but we modify the judgment to dismiss without prejudice.

[¶ 28] DANIEL J. CROTHERS, DALE V. SANDSTROM, CAROL RONNING KAPSNER, and LAWRENCE A. LECLERC, S.J., concur.

[¶ 29] The Honorable LAWRENCE A. LECLERC, S.J., sitting in place of VANDE WALLE, C.J., disqualified.