text:
    2001 ND 29
    August T. VOGEL, Plaintiff and Appellant, v. Mike BRAUN; Dave Heidt; Barb McGillivrary; Steven Boelter, Defendants and Appellees.
    No. 20000193.
    Supreme Court of North Dakota.
    Feb. 15, 2001.
    Rehearing Denied March 5, 2001.

      August T. Vogel (on brief), Bismarck, ND, for plaintiff and appellant. Pro se.
    Jean R. Mullen (on brief), Assistant Attorney General, Bismarck, ND, for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] August T. Vogel appealed from a judgment dismissing his action against Mike Braun, Dave Heidt, Barb McGilliv-rary and Steve Boelter. We conclude the trial court did not abuse its discretion in denying Vogel’s motion to proceed in for-ma pauperis and Vogel’s failure to participate in oral argument does not require reversal. We affirm.

I

[¶ 2] Vogel, an inmate at the State Penitentiary, filed a motion to proceed in forma pauperis on February 8, 2000, stating he had $1,184.77 in his “release aid account but this cannot be touched until[ ] his release according to N.D.S.P. policy.” Although the complaint had not yet been filed, the trial court apparently had the complaint before it and denied the motion, ruling the “acts complained of are internal matters and should be handled pursuant to the administrative procedures established for the same.” Vogel filed the complaint on March 16, 2000, alleging Braun, Heidt, McGillivrary and Boelter, who are employees of the State Penitentiary, had confiscated numerous items of his property. Vogel sought actual and punitive damages from the defendants.

[¶ 8] The defendants subsequently moved to dismiss the complaint under N.D.R.Civ.P. 12(b), arguing the court did not have subject matter jurisdiction over Vogel’s claims. Vogel requested a hearing, and a hearing was scheduled for 4:30 p.m. on April 10, 2000. Six days before the hearing, Vogel wrote to the court indicating he had a potential conflict at 4:30 p.m. on April 10 and might not be able to telephone the court at that time. The hearing was rescheduled for 4 p.m. on April 10. The defendants’ attorney appeared at the hearing, but Vogel did not call the court until 4:15 p.m., after the hearing was completed. The court granted the motion for dismissal, concluding the defendant state employees, who were sued in their individual capacities only, could not be held personally liable to Vogel. Vo-gel appealed.

II

[¶ 4] Vogel argues the trial court erred in denying his motion to proceed in forma pauperis.

[¶ 5] Our review of a trial court’s decision on a civil litigant’s request to proceed in forma pauperis under N.D.C.C. § 27-01-07 is limited to determining whether the court abused its discretion. Patten v. Green, 369 N.W.2d 105, 107 (N.D.1985). A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. In re S.J.F., 2000 ND 158, ¶ 22, 615 N.W.2d 533.

[¶ 6] The trial court did not abuse its discretion in this case. First, Vogel indicated he had $1,184.77 in his “release aid account,” but that this money “cannot be touched” until he is released from prison. However, funds from an inmate’s “release aid account” can be withdrawn before discharge if “authorized by the warden.” N.D.C.C. § 12-48-15(1). Vogel has not alleged he requested and was denied permission to access his account for court costs, and he therefore has failed to establish indigency.

[¶ 7] Even if indigency had been sufficiently alleged, a trial court may still deny a motion to proceed in forma pauperis if the action is totally without merit. Patten, 369 N.W.2d at 107. From our review of the complaint, Vogel seeks to hold the defendants liable only in their personal or individual capacities. A state employee may be liable in a personal capacity for actions outside the scope of employment that constitute reckless or grossly negligent conduct, malfeasance, or willful or wanton misconduct. N.D.C.C. §§ 32-12.2-01(6) and 32-12.2-03(3). Although Vogel alleged the defendants acted “maliciously, willful[l]y, oppressively, frau[du]Iently, and recklessly,” these allegations conform to his request for punitive damages under N.D.C.C. § 32-03.2-11 and do not constitute an allegation that the employees acted outside the scope of their employment. See Kautzman v. McDonald, 2001 ND 20, ¶ 8. Under N.D.C.C. § 32-12.2-03(2), a “state employee is not personally liable for money damages for an injury when the injury is proximately caused by the negligence, wrongful act, or omission of the employee acting within the scope of employment.” Rather, such an action “must be brought against the state,” N.D.C.C. § 32-12.2-03(1), and Vo-gel has not sued the state. Moreover, neither the state nor a state employee may be held liable for a “claim resulting from damage to the property of a patient or inmate of a state institution.” N.D.C.C. § 32-12.2-02(3)(k). Consequently, Vogel’s claims lack merit.

[¶ 8] We conclude the trial court did not abuse its discretion in denying Vogel’s motion to proceed in forma pauperis.

Ill

[¶ 9] Vogel argues reversal is required because the trial court denied him an oral argument.

[¶ 10] The record reflects the clerk of court complied with Vogel’s request to set a time for the motion hearing, and the hearing was scheduled for 4:30 p.m. on April 10. The clerk also complied with Vogel’s subsequent request to change the time of the hearing in order to accommodate his schedule, and rescheduled the hearing for 4 p.m. Although Vogel contends he did not receive notice that his last request had been granted or notice of the, new time set for the hearing, N.D.R.Ct. 3.2(a) places the burden on the party requesting oral argument to secure a time for the argument and to serve notice upon other parties. Having initially secured a time for oral argument, Vogel had a further duty to check on the status of his subsequent request to change the time of oral argument in order to make the subsequent request complete. See Syvertson v. State, 2000 ND 185, ¶ 11, 620 N.W.2d 362. Vogel did not do so, and as a result, Vogel apparently did not learn that his request had been granted and the time had been changed. As the party with the laboring oar under N.D.R.Ct. 3.2(a), Vogel cannot complain about a lack of notice of a time change brought about at his request. In any event, the trial court’s dismissal was nevertheless proper because Vogel’s claims lacked any merit. See Syvertson, at ¶¶ 37-38; Lithun v. DuPaul, 449 N.W.2d 810, 811 (N.D.1989).

[¶ 11] We conclude Vogel’s failure to participate in oral argument does not require reversal.

IV

[¶ 12] The judgment is affirmed.

[¶ 13] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur. DALE V. SANDSTROM, J., concurs in result.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2001 ND 31
    Cody NORTHROP, Plaintiff and Appellee, v. Daisy NORTHROP, Defendant and Appellant.
    No. 20000157.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Gary D. Ramsey, Greenwood & Ramsey, PLLP, Dickinson, ND, for defendant and appellant.'
    Mary E. Nordsven, Hardy, Maus & Nordsven, P.C., Dickinson, ND, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Daisy Northrop appeals from a divorce judgment challenging the trial court’s division of the marital estate. We reverse the trial court’s distribution of the marital estate and remand for reconsideration consistent with our opinion.

I

[¶ 2] Cody Northrop and Daisy Northrop began living together in 1991 and married on July 24, 1998. Prior to the marriage, the couple purchased a home together and had five children, one of whom died.

[¶ 3] In February 1992, Cody began working at Bob’s Oilfield Services in Bel-field, North Dakota. Cody earns an average gross monthly income of $2,037.33 and is provided with a 401(k) profit-sharing plan. At the time of the divorce, the plan had an estimated value of $35,800.

[¶ 4] In October 1994, Daisy began working part-time at a jewelry store in Dickinson, North Dakota. She resigned from her position in June 1997 and in November 1999 returned to work at the same store.

[¶ 5] Cody and Daisy entered into a stipulation, whereby Daisy was given primary custody of their four children born July 3, 1992, August 8, 1994, September 11, 1995, and February 6, 1998. A trial was held on February 17, 2000, and during the proceeding, the couple further stipulated to the distribution of all property except the riding lawn tractor and how to divide Cody’s 401(k) profit-sharing plan.

[¶ 6] On March 20, 2000, judgment was entered awarding Daisy the riding lawn tractor and one-half of the value of Cody’s 401(k) profit-sharing plan earned during the marriage. The court further distributed the parties’ debts. The trial court found the value of all of the marital property was $82,722. The trial court found the total of the debt was $56,549 and Cody would be responsible for debt in the amount of $9,013.50 and Daisy would be responsible for debt in the amount of $47,535.50. The result of the stipulation and the court’s judgment was that Cody received $29,340.79 and Daisy received $-3,167.79. Daisy filed her Notice of Appeal on May 24, 2000.

II

[¶ 7] Daisy contends the trial court erred in distributing the marital estate. Specifically, she argues the court erroneously failed to consider the time she and Cody lived together prior to the marriage in dividing his 401 (k) plan and failed to make an equitable distribution of the parties’ property. Because we are unable to determine the trial court’s rationale for its distribution of the property, we remand for the court to either redistribute the property or adequately explain the rationale for the significant disparity.

[¶ 8] Under N.D.C.C. § 14-05-24, a trial court shall make such equitable distribution of the marital property of the parties “as may seem just and proper.” A trial court’s determinations regarding division of marital property are treated as findings of fact that will not be reversed on appeal unless clearly erroneous. Johnson v. Johnson, 2000 ND 170, ¶ 43, 617 N.W.2d 97. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851. Although property division need not be equal to be equitable, the trial court must explain any substantial disparity. Gregg v. Gregg, 1998 ND 204, ¶ 13, 586 N.W.2d 312.

[¶ 9] In determining an equitable distribution of the property, a trial court must consider the Ruff-Fischer guidelines. Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (N.D.1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). The Ruff-Fischer guidelines include:

the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial cir-cumstanees as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Mellum v. Mellum, 2000 ND 47, ¶ 15, 607 N.W.2d 580 (citation omitted).

[¶ 10] “The trial court is not required to make specific findings.” Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462. It must, however, indicate a rationale for its distribution of the property. Id. If the trial court fails to articulate an adequate factual basis for its property division or we are unable to determine its rationale through inference or deduction, we will remand for clarification of missing or con-clusory findings. Mellum, 2000 ND 47, ¶ 16, 607 N.W.2d 580; Emter v. Emter, 1999 ND 102, ¶ 10, 595 N.W.2d 16.

[¶ 11] In Bullock v. Bullock, 354 N.W.2d 904, 907-08 (N.D.1984), this Court adopted a formula for presently distributing a vested, but presently inaccessible, military pension. “The Bullock formula uses the number of years of marriage while the pension was earned, divided by the number of total years in earning the pension, times one-half of the later retirement payout to calculate a divorced spouse’s apportionment.” Welder v. Welder, 520 N.W.2d 813, 815-16 (N.D.1994). Use of the Bullock formula, however, is not the only method of distributing a pension nor is it mandatory. Braun v. Braun, 532 N.W.2d 367, 370 (N.D.1995). An unequal division of the pension may be necessary to achieve an overall equitable division. Id.

[¶ 12] “When parties live together and then marry it is appropriate for the court to consider all of the their time together in dividing the marital property.” Kautzman v. Kautzman, 1998 ND 192, ¶ 13, 585 N.W.2d 561 (quoting Nelson v. Nelson, 1998 ND 176, ¶7, 584 N.W.2d 527). We have never stated the trial court must equally divide an increase in the net worth of the parties’ estate which occurred during the marriage, but all of the property, including the parties’ separate property, is subject to distribution to either spouse if required for an equitable distribution. Wetzel v. Wetzel, 1999 ND 29, ¶ 16, 589 N.W.2d 889. A trial court must equitably distribute the marital estate based upon the circumstances of the particular case. Nelson, 1998 ND 176, ¶ 6, 584 N.W.2d 527.

[¶ 13] In Braun, the parties began living together in 1986, married in 1988, and divorced in 1994. 532 N.W.2d at 368. The couple had one child prior to the marriage and one child during the marriage. Id. In recognition of the direct burdens placed upon the wife in attempting to raise children and retain employment outside the home, the trial court did not use the Bullock formula to divide the pension. Id. at 370. The court instead distributed two-thirds of the husband’s pension to the wife and the remaining one-third of the pension to the husband. Id. at 369. Our Court concluded the division of the husband’s pension effectively accomplished an overall equitable distribution of the marital estate. Id. at 370.

[¶ 14] Cody and Daisy’s marriage is not analogous to a typical marriage of short duration. Prior to the marriage, the parties lived together for nearly seven years, and during that time, they had five children together,. one of whom died. During the years prior to the marriage, Cody and Daisy acquired the bulk of their property and debt. They purchased a home together and shared all of their expenses. When parties live together for a time, have children together, and then marry, our Court has made it clear the trial court may properly consider all of their time together. Id. at 371.

[¶ 15] Because we cannot discern the rationale for the trial court’s substantial disparity in the distribution of this marital estate, the judgment of the trial court with regard to the division of property is reversed and remanded for consideration not inconsistent with this opinion.

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


author: KAPSNER, Justice.

text:
    2001 ND 30
    Heather MOSZER, Plaintiff, and American Family Mutual Insurance Company, Plaintiff, Appellant and Cross-Appellee, v. Mike WITT, Defendant, Appellee and Cross-Appellant. Mike WITT, Plaintiff, Appellee and Cross-Appellant, v. Heather MOSZER, Defendant, Appellant and Cross-Appellee.
    Nos. 20000202, 20000203.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Steven Francis Lamb, Senior Claims Attorney, American Family Insurance, Fargo, ND, for plaintiff, appellant, and cross-appellee American Family Mutual Insurance Company and defendant, appellant, and cross-appellee Heather Moszer.
    William P. Harrie, Nilles, Hansen & Davies, Ltd., Fargo, ND, for defendant, ap-pellee, cross-appellant, and plaintiff Mike Witt.
   KAPSNER, Justice.

[¶ 1] Heather Moszer and American Family Mutual Insurance Company (“American Family”) appealed from a judgment dismissing their claims for damages against Mike Witt and from an order denying their motion for a new trial. Witt appealed from an order denying his motion to dismiss American Family’s subrogation claim against him for damages sustained by Scott Akers. We hold the jury verdict is inconsistent and irreconcilable and the trial court erred in its communication with the jury during the deliberation process. The trial court, therefore, abused its discretion in denying the motion for a new trial. We also hold Witt’s objection to American Family’s assignment from and claim for damages on behalf of Akers is without merit, and we affirm the court’s order denying Witt’s motion to dismiss that claim. We reverse the judgment and the order denying a new trial, and we remand the case for a new trial on the merits.

I

[¶ 2] On December 7, 1996, Heather Moszer was driving in the westbound lane of 13th Avenue South in Fargo and stopped to make a left turn at the University Drive intersection. When traffic cleared as the light turned yellow, she proceeded to make the left turn. A vehicle driven by Mike Witt in the eastbound lane of 13th Avenue South entered the intersection and struck Moszer’s vehicle, pushing it into a vehicle driven by Scott Akers. All three vehicles were damaged in the accident. Moszer and her insurer, American Family, commenced a small claims court action against Witt, who removed the matter to district court and brought a separate action against Moszer for damages to his vehicle. The two actions were consolidated for trial. American Family sought sub-rogation of $2,715 for payments made to Moszer and of $1,459.12 for payments made to Akers. Moszer sought her deductible of $100. Witt sued for damages to his vehicle of $2,269.27.

[¶ 3] Witt’s motion to dismiss American Family’s subrogation claim on behalf of Akers was denied by the trial court on January 27, 2000. Following a jury trial, judgment was entered dismissing Moszer’s and American Family’s claims against Witt and awarding Witt 100 percent of his damages, plus costs.

[¶ 4] Moszer and American Family-moved for a new trial, alleging several grounds. They asserted' under N.D.R.Civ.P. 59(b)(1) there were irregularities in the proceedings which denied them a fair trial, alleging the jury verdict was inconsistent, the trial court made changes to the special verdict form during jury deliberations without first seeking approval of the parties, and the trial court held improper discussions and gave improper instructions to the jury during the deliberation process. They asserted a right to a new trial under N.D.R.Civ.P. 59(g) because there was plain disregard by the jury of the instructions of the court so as to demonstrate a misapprehension of the instructions. They also sought a new trial under N.D.R.Civ.P. 59(b)(6), claiming there was insufficient evidence to support the jury verdict. The trial court denied the motion.

II

[¶ 5] Moszer and American Family assert they are entitled to a new trial because the jury verdict is inconsistent and irreconcilable and because of the irregularity of proceedings conducted by the trial court during the jury deliberation process.

[¶ 6] The jurors and the parties were brought into the courtroom after the jury indicated it had reached a verdict. On the special verdict form the jury found Moszer was negligent and her negligence was a proximate cause of the accident. The jury found Witt was neither negligent nor a proximate cause of the accident, but the jury apportioned fault for the accident 75 percent to Moszer and 25 percent to Witt. In open court with the parties present, the trial judge had a discussion with the jury:

THE COURT: ... Question No. 3 says do you find by the greater weight of the evidence that Defendant Mike Witt was negligent at the time and place referred to in the evidence. Answer yes or no. You said no, and then that he wasn’t the proximate cause. But then you put 25 percent of negligence to him.
THE JURY: We misunderstood the question. Then we misunderstood the question in it’s [sic] entirety, I imagine.
THE COURT: Well,—
THE JURY: We don’t believe he was negligent.
THE COURT: You don’t believe he was negligent at all?
THE JURY: Uh-huh.
THE COURT: He wasn’t negligent at all. Okay. So in your instruction [sic] on the 25 percent — so are you saying then that Heather Moszer was a hundred percent negligent? Is that what you were intending?
THE JURY: I guess the question we had, if Mike was speeding up, if he wouldn’t have sped up that might have avoided it. But we weren’t there, we don’t know.

There was further discussion between the court and the jurors, concluding with the following exchange:

THE COURT: You’re saying he’s at fault 25 percent, or negligent 25 percent? It’s the same thing. Negligence and fault is the same thing.
A JUROR: It would be negligence. Then it would be negligence. That would be negligence.
So our answer would have been yes.
THE COURT: That’s what I was wondering. No proximate cause you’re saying but he was negligent?
A JUROR: No. We’re saying there was a proximate cause but no negligence.
We are totally confused.
THE COURT: Maybe we’ll have to send you back there.
THE JURY: That’s fine. We’re not judges.
THE COURT: Because you can have somebody who — well, it’s happened where they’re negligent but were not the proximate cause of the accident. We’ve had that happen.
Or, you know, we can send you back there and have you look at it again, you know, just so we don’t have an inconsistent verdict here is all we’re looking at.

[¶ 7] The court then recessed while the jury deliberated further and again reached a verdict. The jury found Moszer was negligent, her negligence was a proximate cause of the accident, and the jury apportioned 75 percent of the fault to her. The jury found Witt was not negligent, but he was a proximate cause of the accident, and the jury assigned 25 percent of the fault to him. The following exchange in open court with the parties present occurred between the court and the jury:

THE COURT: ..Well, now we’ve got a little problem here. Question No. 3. The jury found that by the greater weight of the evidence was the Defendant, Mike Witt, negligent at the time and place of the accident referred to in the evidence? No. You find by the greater weight of the evidence that Defendant Mike Witt’s negligence was a proximate cause of the accident referred to in the evidence. Yes. But then in the verdict form it says he was 25 percent negligent. See, there’s no such thing as 25 percent proximate cause.
A JUROR: We were just discussing what the proximate cause sheet said and it’s really confusing. As where one is negligent at time and place, the other one is negligent and a proximate cause.
THE COURT: A proximate cause, it says, is a cause which in natural and continuous sequence produces the injury and without which the injury would not have occurred. It is a cause which had a substantial part in bringing about the injury either immediately or through events which follow one another.
I mean, there are instances where somebody may be negligent but their negligence maybe doesn’t do anything. So it’s not the proximate cause of the accident. You know, that happens in some cases.
But I don’t know of a situation where you have no negligence but a proximate cause of the accident. You can have it the other way around, you know. I can be negligent but that may not proximately cause any harm, you know.
A JUROR: So we just basically—
THE COURT: I don’t know. But well get it straightened out before we leave.

[¶ 8] There was considerable additional discussion between the court and the jurors, with the court trying to ascertain the jury’s intent in answering the questions the way the jury did. At one point during the discussion the trial court attempted to give the jury an example of the elements of negligence and proximate cause by describing a hypothetical situation in which a doctor “operating could be negligent and not put enough stitches in.” The jury expressed confusion over the definitions of negligence and proximate cause, and there was considerable continued discussion between the court and the jurors. Ultimately, the jury arrived at a third verdict during the open court discussion with the trial judge. The jury found Moszer was negligent, her negligence was a proximate cause of the accident, and it assigned her 75 percent of the fault for the accident. This time, however, the jury found Mike Witt was negligent but was not a proximate cause of the accident, and the jury still assessed 25 percent of the fault for the accident to Witt.

[¶ 9] In an attempt to reconcile the jury’s findings, the court eliminated language on the special verdict question allocating percentages of fault that was a proximate cause:

A JUROR: So we can leave the 75-25 there.
A JUROR: Even if it’s no approximate [sic] cause.
THE COURT: Yes, you can. If that’s what you wish.
THE COURT: ... Just taking all the fault will do it. And I’m going to take out that proximate cause. Now you make sense. I understand your situation there. I see the confusion now.
THE COURT: Taking all the fault of the accident as 100 percent what percentage do you attribute to, A. Heather Moszer: 75 percent. B. Defendant Mike Witt: 25 percent. And Scott Ak-ers: Zero percent. And that gives a total of 100 percent.
Is that what you wanted to do?
A JUROR: That’s what we wanted to do.
THE COURT:.... [A]re you satisfied that’s the jury’s verdict?
' MR. LAMB [Plaintiffs’ counsel]: I’m not certain.
A JUROR: Would you like us to fill out another form?
THE COURT: Fill out another form?
MR. LAMB: Well, no. The question is taking all the fault that was the prpxi-mate cause of the accident. I think that’s got to be straightened out.
THE COURT: We just did. I took out the proximate cause so they understood it. You can be negligent without being the proximate cause because you’re [sic] negligence can be somewhat harmless.
I’ve had a lot of harmless negligence in my life. So, yeah, we’ve had verdicts like that before.
But my question is: Do you want them to fill out another verdict form or are you satisfied with this verdict form as it stands now?
MR. LAMB: As it stands right now? We’re taking out the proximate cause. I think that’s got to be in there, Judge.
MR. LAMB: I’m going — I’m in a really awkward position in responding.
THE COURT: Well, I think this is the best we can do.

Thereafter, judgment was entered on this verdict, dismissing Moszer’s and American Family’s claims and awarding Witt 100 percent of his damages, even though there remained on the special verdict form a 25 percent fault assessment against Witt.

A

[¶ 10] Moszer and American Family assert the verdict is inconsistent and irreconcilable, and the trial court abused its discretion in denying them a new trial on that ground. Under N.D.R.Civ.P. 59(g) the court may vacate a jury verdict and grant a new trial where there has been “plain disregard by the jury of the instructions” so as to convince the court “the verdict was rendered under a misapprehension of the instructions.” A motion for a new trial is addressed to the sound discretion of the trial court, and on appeal its decision will not be overturned unless there is an affirmative showing of a manifest abuse of discretion. Kronberger v. Zins, 463 N.W.2d 656, 658 (N.D.1990).

[¶ 11] We uphold special verdicts on appeal whenever possible and set aside a jury’s special verdict only if it is perverse and clearly contrary to the evidence. Fontes v. Dixon, 544 N.W.2d 869, 871 (N.D.1996). We have adopted the following test for reconciling apparent conflicts in a jury’s verdict:

“[W]hether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. If after a review of the district court’s judgment no reconciliation is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment, then the judgment must be reversed and the case remanded for a new trial.”

Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553 (quoting 5A Moore’s Federal Practice ¶ 49.03[4], at 49-29 to 32 (1987) in Grenz v. Kelsch, 436 N.W.2d 552, 553 (N.D.1989)) (emphasis in original). We reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable or whether it is perverse and clearly contrary to the evidence. Barta, at ¶ 6.

[¶ 12] The trial court, in its written instructions, advised the jury on the definitions of negligence and proximate cause:

Plaintiffs seek to recover for damage to Heather Moszer’s vehicle and Mr. Scott Akers’ vehicle.
The Defendant, Mike Witt, counterclaimed for damage to his vehicle and alleges that the accident was proximately caused by the negligence of Plaintiff Heather Moszer.
“Ordinary negligence” is the lack of ordinary care and diligence required by the circumstances. Ordinary care or diligence means such care as the person of ordinary prudence usually exercises about one’s own affairs of ordinary importance.
Negligence involves a lack of such concern for the probable consequences of an act or failure to act as a person of ordinary prudence would have had in conducting one’s own affairs. It is the lack of such care as persons of common sense and ordinary prudence usually exercise under the same or similar circumstances.
A proximate cause is a cause which, in natural and continuous sequence, produces the injury, and without which, the injury would not have occurred. It is a cause which had a substantial part in bringing about the injury either immediately or through events which follow one another.

[¶ 13] Proximate cause denotes cause to which liability may be attached. Beilke v. Coryell, 524 N.W.2d 607, 611 (N.D.1994). Proximate cause is a separate element from a determination of negligence and is a question of fact for the jury to determine. Jim’s Hot Shot Service, Inc. v. Continental Western Insurance Co., 353 N.W.2d 279, 283 (N.D.1984). Both negligence and proximate cause must be found to impose liability. See Andrews v. O’Hearn, 387 N.W.2d 716, 731 n. 22 (N.D.1986).

[¶ 14] Although the jury returned with a verdict, members of the jury quickly informed the court they were confused about the concepts of negligence and proximate cause. While the jury never wavered from assessing on the special verdict form 75 percent of the fault to Moszer and 25 percent of the fault to Witt, the jury never simultaneously found Witt’s conduct to constitute both negligence and a proximate cause of the accident. On the first verdict, the jury found Witt’s conduct was neither negligent nor a proximate cause of the accident, but the jury assessed him 25 percent of the fault. After considerable discussions with the court, the jury deliberated further and returned a verdict finding Witt’s conduct was not negligence but that it was a proximate cause of the accident. There were further discussions between the jurors and the court and, during those discussions and open court deliberations by the jurors, the jury found Witt’s conduct was negligent .but was not a proximate cause of the accident. Each time the jury assessed 25 percent of the fault to Witt. The jury’s answers to the special verdict clearly demonstrate they did not understand or correctly apply the law as given to them in the case, and their confusion was not resolved during the jury’s communications with the court.

[¶ 15] A jury verdict which assesses fault to a person after finding the person’s negligence was not a proximate cause is a “clearly inconsistent and perverse” verdict. Westfall by Terwilliger v. Kottke, 110 Wis.2d 86, 828 N.W.2d 481, 485 (1983). The jury clearly never understood in this case that to assess fault against a person who has been charged with negligent operation of a motor vehicle, the jury must find both that the person’s conduct was negligent and that it was a proximate cause of the accident. We conclude the trial court’s refusal to vacate the verdict and grant a new trial under N.D.R.Civ.P. 59(g) constituted a manifest abuse of discretion.

B

[¶ 16] Moszer and American Family also assert they were denied a fair trial and are entitled to a new trial under N.D.R.Civ.P. 59(b)(1) because of the irregularity of the proceedings when the court communicated with the jury during deliberations. We agree.

[¶ 17] If there is a need to further instruct the jurors on a point of law, after the jurors have retired for deliberation, the jury must be brought into court and information requested by the jury “must be given in the presence of or after notice to the parties or counsel.” N.D.C.C. § 28-14-19. The parties have a right to have the exceptions noted to the jury instructions to which they did not agree. In the absence of an opportunity to object, all instructions are deemed excepted to. N.D.R.Civ.P. 51(c). See Kronberger v. Zins, 463 N.W.2d 656, 659 (N.D.1990). In Kronberger, at 659-60 (citation omitted), we found the trial court’s ex parte communication with the jury after it had retired for deliberations was not harmless error:

When the trial court merely reiterates a proper instruction, or gives an instruction administrative in nature, the prevailing party may overcome the presumption of harm that attaches to ex parte communications. An administrative instruction is one that goes to the mechanics or process of jury deliberations, as for example, the jury’s inability to use a dictionary or whether the jury’s verdict must be rendered in writing. In this case, the question and answer concern neither a reiteration of a previously given instruction nor an instruction which is merely administrative. Instead, the question and answer go directly to the jury’s consideration of the merits. Under the circumstances, Zins did not overcome the presumption of harm and the trial court abused its discretion in denying a new trial.

[¶ 18] While the court in this case held its discussions with the jury in open court, with the parties present, the court so injected itself into the jury deliberation process on the merits that the parties were denied their right to have the jury determine the facts on the instructions given to them as approved by the parties. In Westfall by Terwilliger v. Kottke, 110 Wis.2d 86, 328 N.W.2d 481, 487-88 (1983) (quoting from and adopting the language of John A. Decker and John R. Decker in Special Verdict Formulation in Wisconsin, 60 Marquette Law Rev. 201, 271-73 (1977)), the Wisconsin Supreme Court provides succinct advice on the cautious procedure the trial court must exercise when the jury returns with an inconsistent verdict:

‘When a jury returns a verdict containing errors, inconsistencies or lack of compliance with the directions of the special verdict and instructions, the trial court may direct the jury's attention generally to the prospective error and require it to deliberate further to correct any errors that may exist. In doing so, the trial court must cautiously avoid suggesting which of the inconsistent answers is the error and must avoid dominating or dictating how an error or inconsistency is to be corrected.
“A trial judge should take the time and opportunity to carefully consider a verdict before announcing it as the verdict of the jury. Unless the judge can instantly conclude that the verdict is proper, it is appropriate for the judge, upon the receipt of the verdict, to retire to chambers to consider whether the verdict is consistent and correct as to form before accepting the verdict. In the event reinstruction of the jury is necessary, counsel should, of course, be consulted and be given an opportunity to make suggestions or objections.”

[¶ 19] In this case, without giving the parties an opportunity to review the inconsistent verdict out of the presence of the jury or to suggest how to further instruct the jury, the trial court engulfed itself in the deliberation process. The court went so far as to cross out language in the approved special verdict form regarding proximate cause in an attempt to reconcile the verdict form with the jury’s stated intentions. We conclude the trial court’s actions constituted irregularity in the proceedings which denied the parties a fair trial and entitles them to a new trial under N.D.R.Civ.P. 59(b)(1).

III

[¶ 20] Moszer and American Family assert they are entitled to a new trial under N.D.R.Civ.P. 59(b)(6) because there is insufficient evidence to support the verdict. In view of our conclusion these parties are entitled to a new trial based on other grounds, we need not address this issue. An appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal. State v. Evans, 1999 ND 70, ¶ 17, 593 N.W.2d 336.

IV

[¶ 21] An American Family adjuster recorded a statement of Mike Witt on January 13, 1997 and did not provide him with a copy of the statement within 30 days as required under N.D.C.C. § 31-08-07. Under that statute, failure to provide a statement within 30 days precludes use of the statement “directly or indirectly in connection with a civil action.” The trial court granted Witt’s motion in limine to exclude this recorded statement. Moszer and American Family assert N.D.C.C. § 31-08-07 is unconstitutional because it intrudes upon the judiciary’s authority to promulgate rules of evidence.

[¶ 22] In raising this issue, Moszer and American Family failed to comply with the provisions of N.D.R.Civ.P. 24(c), which provides in relevant part:

When the constitutionality of an act of the legislative assembly affecting the public interest is drawn in question in any action to which neither the state nor any agency or officer thereof is a party, the parties raising the constitutional issue shall notify the attorney general of the state. The attorney general may intervene as provided in this rule on behalf of the state.

The constitutional issue raised by Heather Moszer and American Family necessarily implicates conflict between the judicial and legislative branches of state government and their respective authorities to make laws and promulgate rules of evidentiary procedures in civil cases. This is a matter which affects the public interest and which, therefore, requires notice to the attorney general under N.D.R.Civ.P. 24(c). We conclude the issue is not at this time properly before us, and we decline to address it.

V

[¶ 23] Witt filed a cross-appeal from the trial court’s January 27, 2000 order, denying his motion to dismiss American Family’s claim against Witt under an assignment of rights from Akers. When Moszer and Witt’s vehicles collided, Moszer’s vehicle was pushed into a vehicle driven by Akers. American Family paid Ak-ers $1,459.12 for the damage to his vehicle and took an assignment of Akers’s rights against Witt. Witt moved to dismiss the claim, asserting it was a claim for “contribution” which is not allowed under North Dakota law and also asserting the assignment taken from Akers by American Family was not supported by valid consideration because it was executed “after plaintiff American Family had already paid Mr. Akers for the damage to his car as a volunteer.” The trial court denied the motion to dismiss on these grounds.

[¶ 24] Witt’s argument demonstrates confusion about the concept of contribution in a tort case. Under N.D.C.C. § 32-08.2-02, when two or more parties are found to have contributed to an injury “the liability of each party is several only, and is not joint, and each party is liable only for the amount, of damages attributable to the percentage of fault of that party,” except that persons who act in concert in committing a tortious act are jointly liable. Consequently, under North Dakota statutory law, tortfeasors who have not acted in concert are precluded from bringing claims for contribution against each other. Target Stores v. Automated Maintenance Services, Inc., .492 N.W.2d 899, 903 (N.D.1992). No one in this lawsuit has accused Akers of a tortious act. Akers was an innocent bystander whose vehicle was damaged as a result of the collision between Moszer and Witt. American Family’s claim here is not for contribution from Witt for damages paid to Akers on Moszer’s behalf. Rather, this claim by American Family is a claim brought under its assignment of rights from Akers, by which American Family has assumed Ak-ers’s direct claim against Witt for damages suffered by Akers as a result of Witt’s negligence. We conclude, therefore, Witt’s argument this is a contribution claim is without merit.

[¶25] Witt also asserts the assignment taken by American Family from Akers is invalid for lack of consideration. Witt has not -provided authority to persuade us he has standing to assert lack of consideration for an assignment executed between Akers and American Family. Furthermore, the written assignment executed by Akers expressly states that it was entered in consideration of the $1,459.12 paid to Akers by American Family for damage to his automobile. Witt also has provided no authority to support his contention there is a lack of legal consideration simply because the assignment was taken by American Family after it paid Witt for the damaged vehicle. We conclude Witt’s issues are without merit and the trial court did not err in denying the motion to dismiss American Family’s claim.

VI

[¶ 26] The order denying Witt’s motion to dismiss American Family’s claim under its assignment from Akers is' affirmed. The judgment and the order denying Moszer’s and American Family’s motion for new trial are reversed and the case is remanded for a new trial on the merits.

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


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 33
    K.L.G., Plaintiff and Appellant, v. S.L.N., Defendant and Appellee.
    No. 20000158.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Tom P. Slorby, Minot, ND, for plaintiff and appellant.
    Denise C. Hays, Pringle & Herigstad, P.C., Minot, ND, for defendant and appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] K.L.G. appealed the district court’s visitation order and allocation of transportation costs. K.L.G. argues the trial court erred by establishing an overly restrictive visitation schedule without sufficient justification and by allocating all the responsibility for transportation to him while reducing his child support obligation by only $25 a month. We reverse and remand.

I

[¶ 2] K.L.G. (“father”) and S.L.N. (“mother”) are parents of R.J.N.G. (“child”) who was born October 16, 1998. The father and mother never married. Prior to the child’s birth, the parents lived together for a few months in Minnesota. The mother moved to Stanley to live with her parents in May 1998. She continues to live with her parents and works as a medical transcriptionist earning about $1000 per month. The father lives in Morris, Minnesota, where he is employed in his family’s business and earns about $1440 per month. It takes approximately seven to eight hours to drive from Morris, Minnesota, to Stanley, North Dakota.

[¶ 3] The father and mother maintained contact during the pregnancy and the father was present at the birth. The father estimates he has seen the child approximately every third week from birth to the time of the trial. The mother has not allowed overnight visitation or visitation outside of the Stanley and Minot area.

[¶ 4] The father initiated an action for paternity, custody, support, terms of visitation, costs of visitation, jurisdiction for child support, and designation of the right to claim the child for tax exemption. Both parents agreed K.L.G. was the father of the child, and physical custody should be given tuthe mother. The major points of contention were visitation schedule and transportation costs.

[¶ 5] Following a hearing on February 7, 2000, both parties submitted a proposed visitation schedule. The father’s proposal provided for a transition time, beginning with short visitation restricted to the Stanley area due to the child’s young age and need to adjust. The visitation schedule progressed to allow overnight visitation, and eventually, one week of visitation every month at the father’s home in Minnesota. The father’s plan also proposed alternating holidays. After the child started school, the father proposed longer summer visits to compensate for the loss of the week-long visits during the school year.

[¶ 6] The mother proposed visitation of one weekend per month which included one overnight visitation from Saturday morning to Sunday evening, geographically restricted to Minot, Stanley, or the surrounding area until the child turned two years old. Between the ages of two and three, the mother proposed one weekend per month, including two overnights from Friday morning to Sunday evening, still restricted to the Minot and Stanley area. Additionally, the mother proposed one week of summer visitation in the Morris, Minnesota area. Once the child turned three, but before starting school in the fall of 2004, the mother proposed visitation of one weekend per month including two overnights with no restrictions on location, and one week of summer visitation with no restriction on location. Additionally, the mother offered to travel to Minnesota as many as three times each year, staying in Minnesota for two nights each time. She proposed the child would spend one night with her and one with his father during these weekends.

[¶ 7] The district court issued a memorandum opinion, the basis for the judgment dated March 30, 2000. The judgment established a visitation schedule similar to, but in some ways more restrictive than, the visitation proposed by the mother. The trial court extended the geographical restriction to age three and omitted the week-long visitation the mother had proposed for the summer of 2001. After the age of three, the trial court increased the visitation from one to two weekends per month, and extended the summer visitation from one week to two weeks anywhere in the United States or Canada.

[¶ 8] The visitation schedule alternated holidays, but restricted them in duration. For example, Christmas Day visitation began at 9:00 a.m. and ended at 8:00 p.m. the following day. Visitation on other holidays, such as the child’s birthday and the Fourth of July, was restricted' to only one day. The trial court did not include the offer of the mother to share the burden of transportation, instead it allocated all responsibility for transportation for visitation to the father. For that reason, the trial court reduced the father’s child support obligation by $25 per month.

II

[¶ 9] A trial court’s decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous as established by N.D.R.Civ.P. 52(a). Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191. Because assessment of transportation costs is part of the broader issues of visitation and custody, we will apply the same standard of review to the trial court’s determination of such costs. Berg v. Berg, 2000 ND 36, ¶ 18, 606 N.W.2d 895. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541.

III

[¶ 10] The father argues the trial court erred by establishing an overly restrictive visitation schedule, more restrictive than the plan proposed by the mother, without reasonable justification. District courts have the authority to grant a noncustodial parent visitation rights. Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. Section 14-05-22(2), N.D.C.C., specifies “the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child.” Visitation is primarily concerned with the best interests of the child. Muraskin v. Muraskin, 336 N.W.2d 332, 336 (N.D.1983). Visitation between a child and a noncustodial parent is not merely a privilege of the noncustodial parent, but a right of the child. Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D.1993).

[¶ 11] The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parents. Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81. Visitation with the noncustodial parent is presumed to be in the child’s best interests. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. Section 14-05-22(2), N.D.C.C., requires the court grant a noncustodial parent rights of visitation which will enable the maintenance of a beneficial parent-child relationship, allowing restriction or denial of this right only if “visitation is likely to endanger the child’s physical or emotional health.” See Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332 (stating the noncustodial parent is deprived of visitation only if visitation is likely to endanger the child’s physical or emotional health); Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896 (holding denying a noncustodial parent visitation with a child is an onerous restriction, such that physical or emotional harm resulting from the visitation must be demonstrated in detail before it is imposed); Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986) (determining an order denying visitation must be based on a standard of proof higher than probable cause); Sehiff, 2000 ND 113, ¶ 9, 611 N.W.2d 191 (stating to justify an onerous restriction on visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail). As we explained in Johnson, 502 N.W.2d 831, 835 (N.D.1993), “[b]eeause minor children are entitled to the love and companionship of both parents insofar as this is possible and consistent with their welfare, we recognize that a healthy relationship between a parent and child may necessarily depend upon and develop through regular visitation.” (citation omitted)

[¶ 12] In this case, the father lives eight hours away from his son and wants to develop a meaningful bond with his son through visitation. He requested a visitation schedule to accommodate this long drive by permitting fewer but longer duration visits, after an initial transition period. When there is a long distance between the homes of the custodial and noncustodial parents, we have approved visitation schedules which provide less frequent, but extended, visitation periods to preserve the noncustodial parent’s ability to foster and develop a relationship with the child. Olson v. Olson, 2000 ND 120, ¶ 4, 611 N.W.2d 892. Recently we affirmed a visitation schedule which included six weeks of summer visitation in Asia to compensate for the lack of less frequent visits due to the long distance, holding there is no presumption that overseas visitation is detrimental to a child’s best interests. Schiff, 2000 ND 113, ¶ 27, 611 N.W.2d 191. Also, in Tibor v. Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480, we stated “[a] visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability to foster and develop a relationship with the child.”

[¶ 13] Similar to this case, accommodation of long distances between a noncustodial parent and a child is a major consideration of the court when deciding relocation motions by the custodial parent. Because it was impossible to physically satisfy both custodial and noncustodial relationships without a true joint physical custody arrangement, we recognized in Stout v. Stout, 1997 ND 61, ¶ 31, 560 N.W.2d 903, the importance of a modified visitation schedule providing for longer periods of continuous visitation to satisfy the loss of weekly visitation in the event of a move. The questions for the trial court in relocation cases include whether a reasonable visitation schedule can be fashioned to “preserve” and “foster” a relationship between the noncustodial parent and child; whether it will be complied with by the custodial parent; and whether the parties can financially support the schedule. Hawkinson v. Hawkinson, 1999 ND 58, ¶ 30, 591 N.W.2d 144 (Maring, J., specially concurring). We determined when cost and distance make it impossible to continue the same frequency of visits between noncustodial parent and child, “the court can and must restructure visitation to preserve their relationship with less frequent but more extended visits.” Paulson v. Bauske, 1998 ND 17, ¶ 15, 574 N.W.2d 801.

[¶ 14] We reversed a judgment establishing a visitation schedule upon relocation of the custodial parent that not only decreased the frequency of the visits of the noncustodial parent with the child, but also decreased the total time the child had with that parent. Interest of B.E.M., 1997 ND 134, ¶ 20, 566 N.W.2d 414. We remanded to the district court to devise a visitation schedule which provided for less frequent visits but extended the timé period of each visit to preserve the noncustodial parent’s right to foster and develop a relationship with his child, in accordance with our holding in Stout. Id.

[¶ 15] This case does not involve a motion for relocation of the custodial spouse; however, in common with such cases is the difficulty of nurturing the relationship of a noncustodial parent with a child over a long distance with limited resources of both time and money. Although the district court recognized the long-distance travel involved, it seemed to only recognize it as a reason to limit the time a young child would have to spend in a car seat. The court established, as a conclusion of law, the child, was “16 months old and should not be spending 16 hours every other weekend on the road traveling.” The court designed a visitation schedule that not only avoided long trips for the child while 16 months old, but also disallowed travel out of the Minot and Stanley area and extended visits until the child is three years old.

[¶ 16] Despite the trial court’s concern about long-distance travel for the young child, the court designed a visitation schedule that did not consider the eight hours of travel each way for the noncustodial parent. Instead, the court fashioned a schedule that required the father to drive 16 hours for each two-day visit. Additionally, all of these visits are restricted to the Minot and Stanley area until the child is three years old, eliminating the possibility of the child having the opportunity to go with his father to his father’s home.

[¶ 17] In Loll v. Loll, 1997 ND 51, ¶ 19, 561 N.W.2d 625, we reversed the trial court’s order requiring all visitation to occur in North Dakota when the noncustodial parent lived in Missouri. By restricting the geographical location of the visitation the trial court “created a serious impediment in fostering the parties’ relationships” with the children. Id. Because of the need for one parent to uproot from her home, we anticipated visitation would be more difficult and less frequent. Id. Also, we found allocation of all costs of travel to one parent to be inequitable. Id. at ¶ 20, 561 N.W.2d 625. In Loll, we reversed the visitation order and remanded to determine a visitation schedule and cost allocation that was more flexible and equitable or to provide a satisfactory explanation for the present unequal distribution. Id.

[¶ 18] Similarly, the visitation schedule and cost allocation in this case create a serious impediment to fostering the father’s relationship with the child. By requiring the father to drive 16 hours for each two-day visit and not allowing any extended visits to the father’s home until after the child is three, the trial court made visitation more difficult and therefore it is likely it will be less frequent. Beyond the concerns about a 16-month old spending 16 hours in a car seat, the trial court gave no reason for restricting the visitation further than the schedule proposed by the mother. The record does not support the restrictions placed on visitation. Loll, 1997 ND 51, ¶ 20, 561 N.W.2d 625.

[¶ 19] The child is no longer 16 months old, but is now over two years old. We have long recognized it is important for a child to develop a relationship with both parents. However, this important concern seems to be engulfed by the trial court’s concern about extended travel when the child was very young. Neither the father nor the mother proposed the child travel 16 hours every other weekend when the child was 16 months old. But, with no other explanation, the trial court issued a visitation schedule more restricted than the plan proposed by the mother in regards to geographic restriction, visits of longer duration, and transportation responsibility. On the entire evidence we are left with a definite and firm conviction a mistake has been made.

[¶ 20] We reverse and remand for determination of a visitation schedule and the allocation of travel responsibility and expenses in accordance with this opinion.

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


author: PER CURIAM.

text:
    2001 ND APP 2
    Ernest LANG, Plaintiff and Appellant, v. STATE of North Dakota; Gary Preszler, State Banking Commissioner; Governor Edward Schafer; District Judge Benny Graff; District Judge Burt Riskedahl; Supreme Court Judges, Gerald W. VandeWalle, Mary Muehlen Maring, Carol Ronning Kapsner, Dale V. Sandstrom, Defendants and Appellees.
    No. 20000223CA.
    Court of Appeals of North Dakota.
    Jan. 17, 2001.
    Ernest Lang, McKenzie, ND, pro se.

      Douglas Alan Bahr, Assistant Attorney-General, Bismarck, ND, for defendants and appellees.
   PER CURIAM.

[¶ 1] Ernest Lang has appealed a judgment entered in district court on May 30, 2000, “including but not limited to all preliminary orders, notices, judgments, and determinations previously and subsequently made,” in his action against the State of North Dakota; Gary Preszler, State Banking Commissioner; Governor Edward Schafer; District Judge Benny Graff; District Judge Burt Riskedahl; Chief Justice Gerald W. VandeWalle; Justice Mary Mueblen Maring; Justice Carol Ronning Kapsner; and Justice Dale V. Sandstrom. We affirm.

[¶ 2] This appeal is an outgrowth of Lang’s default on a note and the foreclosure of a mortgage. See Lang v. Schafer, 2000 ND 2, 603 N.W.2d 904; Lang v. Bank of North Dakota, 530 N.W.2d 352 (N.D.1995); Lang v. Binstock, Docket No. Civ. 900334, unpublished slip op., 1991 WL 574979 (N.D., Feb. 21,1991); Lang v. Barrios, Docket No. Civ. 930196, unpublished slip op., 1993 WL 477934 (N.D., Nov. 10, 1993); Lang v. Burleigh County Sheriff's Dep’t, 496 N.W.2d 24 (N.D.1993); Lang v. Binstock, 478 N.W.2d 13 (N.D.1991); Lang v. Barrios, 472 N.W.2d 464 (N.D.1991); Lang v. Bank of North Dakota, 453 N.W.2d 118 (N.D.1990); Lang v. Bank of Steele, Docket No. Civ. 890141, unpublished slip op., 1989 WL 158205 (N.D., Nov. 20, 1989); Lang v. Molbert, 442 N.W.2d 447 (N.D.1989); Bank of Steele v. Lang, 441 N.W.2d 648 (N.D.1989); Bank of Steele v. Lang, 423 N.W.2d 504 (N.D.1988); Lang v. Bank of North Dakota, 423 N.W.2d 501 (N.D.1988); Lang v. Bank of Steele, 415 N.W.2d 787 (N.D.1987); Lang v. Sheriff of Burleigh County, 408 N.W.2d 742 (N.D.1987); Bank of Steele v. Lang, 399 N.W.2d 293 (N.D.1987); Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985); and Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). See also Lang v. Binstock, 2001 ND App 1, 622 N.W.2d 241.

[¶ 3] By complaint of March 27, 2000, Lang brought this action against the State and the named officials. Lang generally alleged:

That a conspiracy of silent neglect exists because the foregoing above named personnel of the state of North Dakota have ignored their legal obligation by choosing not to act on the evidence of fraud that was proffered to them.

In his first three causes of action, Lang alleged the State, Commissioner Preszler, and Governor Schafer, respectively, engaged in a “conspiracy of silent neglect in the cover-up of fraud that the Bank of Steele has committed.” In his fourth cause of action, Lang alleged Judge Graff became “a party to the conspiracy of silent neglect” by dismissing a motion and canceling a hearing. In his fifth cause of action, Lang alleged Judge Riskedahl “became a party in the conspiracy of silent neglect” by failing to act on a motion. In a sixth cause of action, Lang alleged Chief Justice VandeWalle, Justice Maring, Justice Kapsner, and Justice Sandstrom issued an order denying a petition for a writ of mandamus “without giving a reason for the denial as is required by Art. VI Sec. V of the North Dakota Constitution,” which “puts each of the named Supreme Court Judges into the position of being a party in the conspiracy of silent neglect.”

[¶ 4] Lang served the complaint on the State, but not on the individual officials named as defendants. The State moved for dismissal under N.D.R.Civ.P. 12. After a hearing, the district court determined the complaint in this action and the complaint in Lang v. Schafer, 2000 ND 2, 603 N.W.2d 904, “concern the same core of operative facts” and ruled “[t]he doctrine of res judicata bars Causes of Action 1, 2, and 3.” The court ruled the first three causes of action alleged by Lang were also barred by N.D.C.C. § 32-12.2-03(3)(b) (no liability for claims based upon a decision to perform or a failure to perform a discretionary function by the state or its employees). The district court ruled the fourth, fifth, and sixth causes of action alleged by Lang were barred by absolute judicial immunity.

[¶ 5] A judgment of dismissal was entered on May 30, 2000. A judgment of injunction was also entered on May 30, 2000, enjoining Lang from serving or filing legal process in any North Dakota court in connection with any foreclosure, sale, or property “which are the subject of Bur-leigh County District Court actions 34938 or 36266 unless or until Ernest Lang ... first obtains specific permission from this court for the filing and service of such ... legal process.” Lang appealed, raising a number of issues.

[¶ 6] Res judicata, or claim preclusion, prohibits 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 final judgment in a court of competent jurisdiction. Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377. Collateral estoppel, or issue preclusion, generally prohibits relitigation in a second action based on a different claim, of issues of fact or law which were, or must have been, determined in the prior suit. Id. The doctrines promote the finality of judgments and efficiency. Id. Res judicata applies even if a subsequent claim is based on a different legal theory. Id.

[¶ 7] The State and its employees generally enjoy immunity from liability for discretionary acts. See Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 640 (N.D.1994); N.D.C.C. § 32-12.2-02(3)(b). A judge acting within his or her jurisdiction is immune from liability for damages. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 21, 576 N.W.2d 505; Loran v. Iszler, 373 N.W.2d 870, 874 (N.D.1985).

[¶ 8] “On appeal, the trial court is presumed to have acted correctly,” State v. Ash, 526 N.W.2d 473, 483 (N.D.1995), and “the appellant bears the burden of showing error,” L.C. v. R.P., 1997 ND 96, ¶ 18, 563 N.W.2d 799. In light of the doctrine of res judicata, and our immunity legislation and jurisprudence, Lang had a heavy burden to bear in this appeal. “Generally, issues not adequately briefed or argued on appeal will not be considered.” First State Bank v. Moen Enterprises, 529 N.W.2d 887, 893 (N.D.1995). Without citations to relevant authority or supportive reasoning, an argument is without merit. Friedt v. Moseanko, 484 N.W.2d 861, 863 (N.D.1992). Lang’s arguments in this appeal were not supported by citations to relevant authorities or accompanied by any supportive reasoning. Lang’s arguments are, therefore, without merit. In re J.A.G., 552 N.W.2d 317, 324 (N.D.1996); Hodek v. Greater Nelson County Consortium, 520 N.W.2d 825, 829 (N.D.1994).

[¶ 9] Affirmed.

[¶ 10] JAMES H. O’KEEFE, S.J., Chief Judge, GORDON O. HOBERG, S.J., DAVID W. NELSON, D.J., concur.

      . The volume of litigation about Lang's default on a note and the foreclosure of a mortgage calls to mind Justice Story's observation that “it is for the public interest and policy to make an end to litigation, ... that suits may not be immortal, while men are mortal.” Ocean Ins. Co. v. Fields, 18 Fed. Cas. 532, 539 (C.C.D.Mass.1841), quoted in City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324, 331 (N.D.1975).

      . North Dakota Const, art. VI, § 5, provides, in part: "When a judgment or order is reversed, modified, or confirmed by the supreme court, the reasons shall be concisely stated in writing.” The provision does not similarly specify that the supreme court must state in writing the reasons for denying a petition for a writ.

      . The "open court” provision of N.D. Const. art. I, § 9, does not confer an absolute right of access to state courts, and access to the courts may be limited by narrowly tailored injunctive relief. Federal Land Bank v. Ziebarth, 520 N.W.2d 51, 56 (N.D.1994).


text:
    2001 ND APP 1
    Ernest LANG, Plaintiff and Appellant, v. Rodney BINSTOCK, Defendant and Appellee.
    No. 990345CA.
    Court of Appeals of North Dakota.
    Jan. 17, 2001.
    Ernest Lang, pro se, McKenzie, ND.
    Lawrence R. Klemin, Bucklin, Klemin & McBride, Bismarck, ND, for defendant and appellee.
   PER CURIAM.

[¶ 1] Ernest Lang appealed from a summary judgment dismissing his action against Rodney Binstock for conversion of personal property. We affirm the judgment and remand for an award of attorney fees for this appeal.

[¶ 2] In 1984, the Bank of North Dakota foreclosed its mortgage on Lang’s farm, and Lang was evicted from the property in 1987. Rodney Binstock’s grandfather, Anton Binstock, acquired the property, and between 1987 and 1994 Rodney Binstock purchased various parcels of the property. In 1998, Lang commenced this action against Rodney Binstock, alleging conversion of various items of personal property Lang had left on the property when he was evicted in 1987.

[¶ 3] The district court granted Bin-stock’s motion for summary judgment of dismissal, concluding Lang’s claim was barred by the statute of limitations, laches, waiver, estoppel, and abandonment. The court further concluded Lang’s claim was “absolutely frivolous” and awarded costs and attorney fees under N.D.C.C. § 28-26-01(2) in the amount of $3,822. Judgment of dismissal was entered, and Lang appealed.

[¶ 4] We agree with the district court’s characterization of Lang’s claim as “absolutely frivolous,” and we affirm the judgment under N.D.R.App.P. 35.1(a)(1) and (6). We further determine Lang’s appeal is frivolous, warranting an award of attorney fees for the appeal under N.D.RApp.P. 38. We therefore remand to the district court for a determination of reasonable attorney fees for this appeal. See Medd v. Fonder, 543 N.W.2d 483, 488 (N.D.1996).

[¶ 5] Finally, we feel compelled to address Lang’s continued, vexatious abuse of process. Lang’s continued attempts to litigate and relitigate frivolous claims relating to the 1984 foreclosure and 1987 eviction have created undue burdens upon opposing parties, including Binstock, and upon the judicial system. Including this case and another pending appeal, Lang has brought no less than twenty separate appeals involving or related to the loss of his farm more than a decade ago. We note that, in a related case, the district court has issued an injunction prohibiting Lang from filing or serving any further action or legal process in any state court relating to the property at issue without prior approval of the court. See Lang v. State, 2001 ND App 2. That injunction would restrict any further action relating to this property by Lang against Rodney Binstock without prior court approval.

[¶ 6] The judgment dismissing Lang’s claim is affirmed, and the case is remanded for an award of Rodney Binstock’s reasonable attorney fees for this appeal.

[¶ 7] JAMES H. O’KEEFE, S.J., C.J., and GORDON O. HOBERG, S.J., and DAVID W. NELSON, D.J., concur.

      . See Lang v. Schafer, 2000 ND 2, 603 N.W.2d 904; Lang v. Bank of North Dakota, 530 N.W.2d 352 (N.D.1995); Lang v. Barrios, 509 N.W.2d 273 (N.D.1993); Lang v. Burleigh County Sheriffs Department, 496 N.W.2d 24 (N.D.1993); Lang v. Binstock, 478 N.W.2d 13 (N.D.1991); Lang v. Barrios, 472 N.W.2d 464 (N.D.1991); Lang v. Binstock, 516 N.W.2d 300 (N.D.1991); Lang v. Bank of North Dakota, 453 N.W.2d 118 (N.D.1990); Lang v. Bank of Steele, 449 N.W.2d 826 (N.D.1989); Bank of Steele v. Lang, 441 N.W.2d 648 (N.D.1989); Lang v. Molbert, 442 N.W.2d 447 (N.D.1989); Bank of Steele v. Lang, 423 N.W.2d 504 (N.D.1988); Lang v. Bank of North Dakota, 423 N.W.2d 501 (N.D.1988); Lang v. Bank of Steele, 415 N.W.2d 787 (N.D.1987); Lang v. Sheriff of Burleigh County, 408 N.W.2d 742 (N.D.1987); Bank of Steele v. Lang, 399 N.W.2d 293 (N.D.1987); Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985); Lang v. Glaser, 359 N.W.2d 884 (N.D.1985).


author: AMUNDSON, Justice

text:
    2001 SD 17
    STATE of South Dakota, Plaintiff and Appellee, v. John Steven LORENZ, Defendant and Appellant.
    No. 21422.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2001.
    Decided Feb. 14, 2001.

      Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for plaintiff and appellee.
    William A. Moore, Scotland, for defendant and appellant.
   AMUNDSON, Justice

[¶ 1.] John Lorenz (Lorenz) was convicted of possession of more than ten pounds of marijuana, in violation of SDCL 22-42-6. We affirm.

FACTS

[¶ 2.] On two occasions in the summer of 1999, Gayle Lorenz went to visit her estranged husband at his residence. During .her visits she observed marijuana growing outside the residence and on another occasion she observed dried marijuana in a clothesbasket in a closet. She reported her findings to the local Sheriff and a Department of Criminal Investigation agent. Based on what Lorenz’s wife had told authorities, law enforcement traveled to Lorenz’s residence and made observations from the road. From the vehicle, law enforcement could observe numerous marijuana plants growing along Lorenz’s residence. Law enforcement took photographs of the marijuana plants from the roadside.

[¶ 3.] With the information it had gathered, law enforcement was able to obtain a search warrant, which was executed on September 1, 1999. In executing the search warrant, law enforcement -again observed numerous areas where marijuana was growing. The marijuana was removed from each location and transported back to the Sheriffs office. The Sheriff weighed the bundles of marijuana, which weighed 24 pounds and 15 ounces. Lorenz was convicted of possession of over ten pounds of marijuana in violation of SDCL 22-^42-6. Lorenz appeals raising the following issues:

1) Whether the trial court properly denied Lorenz’s motion to suppress;
2) Whether the evidence was sufficient to convict Lorenz of possession of more than ten pounds of marijuana;
3) Whether the trial court abused its discretion regarding several eviden-tiary rulings.

STANDARD OF REVIEW

[¶ 4.] As a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). While we generally review a motion to suppress on an abuse of discretion standard, we will review the requisite legal standard of probable cause de novo because of its constitutional implication. State v. Stanga, 2000 SD 129, 617 N.W.2d 486.

ISSUE 1

[¶ 5.] Whether the trial court properly denied Lorenz’s motion to suppress.

[¶ 6.] Lorenz argues that statements made by Lorenz’s estranged wife cannot be used to support a probable cause determination because of the marital privilege. Lorenz contends that if it were not for her divulgence of Lorenz’s activities there was insufficient evidence of probable cause. This argument is flawed on many bases.

[¶ 7.] First, Lorenz cited no authority to support his argument. “The failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and the issue is thereby deemed waived.” State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599. Thus, it is considered waived.

[¶ 8.] Second, the marital privilege is inapplicable as the privilege only covers communication, not observations. State v. Hart, 391 N.W.2d 677 (S.D.1986). “Thus, the marital communications privilege ‘does not extend to all observations of the acts of one spouse by the other.’ ” Id. at 679 (citing State v. Newman, 235 Kan. 29, 43, 680 P.2d 257, 266 (1984)). Here, law enforcement acted upon what Gayle Lorenz observed at the residence. The record does not indicate, nor does Lorenz argue, that Gayle told law enforcement what he had said concerning the marijuana. The marital privilege is inapplicable to the determination of probable cause.

[¶ 9.] Third, law enforcement had an alternative basis for the finding of probable cause. Law enforcement observed and photographed the marijuana plants growing, in plain view, outside Lorenz’s residence. See State v. Lodermeier, 481 N.W.2d 614, 623 (S.D.1992) (positing that items found in plain view is not a search for Fourth Amendment purposes). What law enforcement had observed on their own was sufficient to support the search warrant. Those items found in plain view of an officer, rightfully there, is not a search and does not implicate the Fourth Amendment. Because the police observed the marijuana from a public road, those observations form a legal basis of probable cause.

ISSUE 2

[¶ 10.] Whether the evidence was sufficient to convict Lorenz of possession of more than ten pounds of marijuana.

[¶ 11.] Lorenz argues that the weight of the marijuana seized did not exceed ten pounds as required under SDCL 22-42-6. Lorenz argues based on testimony provided by the State ehemist, the actual amount of marijuana was really 4 pounds, 5.76 ounces, excluding what is considered “ditch” weed. Based on that testimony, Lorenz contends he cannot, as a matter of law, be convicted of possession of more than ten pounds of marijuana under SDCL 22-42-6.

[¶ 12.] Lorenz contends that an ambiguity exists in the statute defining marijuana, and he also relies upon Hill v. Commonwealth, 17 Va.App. 480, 438 S.E.2d 296 (1993) to lend meaning to South Dakota’s definition of what constitutes marijuana. SDCL 22-42-1(7) defines “ ‘Marijuana,’ all parts of any plant of the genus cannabis, whether growing or not, in its natural or unaltered state, except for drying or curing or crushing or crumbling!.]” When interpreting statutes, we have often stated:

[Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the court thinks it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citation omitted)). As defined in the statute, “all parts of any plant of the genus cannabis” is considered marijuana. When a legislative enactment is clear and unambiguous, this Court’s only duty is to read and give effect to that enactment. Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552. Because of this clear and unambiguous language, this Court does not have to look to outside authority to give meaning to this statute. Likewise, we do not find the Virginia decision argued by Lorenz to be of assistance in interpreting what constitutes marijuana in this jurisdiction.

[¶ 13.] Moreover, SDCL 22-42-1(7) does not differentiate between cultivated marijuana and what is loosely termed as “ditch” weed. Both are considered genus cannabis; thus the lower weight offered by the State chemist is clearly erroneous. See State v. Johnson, 509 N.W.2d 681 (S.D.1993) (concluding that all portions of the plant is considered marijuana). Therefore, the higher weight given by the sheriff of 24 pounds and 15 ounces more accurately describes the weight of the marijuana, consistent with the statutory definition. Thus, there was sufficient evidence to convict Lorenz of possession of more than ten pounds of marijuana.

[¶ 14.] We have considered the final issue by Lorenz and find it without merit.

[¶ 15.] Affirmed.

[¶ 16.] MILLER, C.J., and SABERS, KONENKAMP, and GILBERTSON, JJ., concur.

      . SDCL 22-42-6 provides:
      No person may knowingly possess marijuana. It is a Class 1' misdemeanor to possess two ounces of marijuana or less. It is a Class 6 felony to possess more than two ounces of marijuana but less than one-half pound of marijuana. It is a Class 5 felony to possess one-half pound but less than one pound of marijuana. It is a Class 4 felony to possess one to ten pounds of marijuana. It is a Class 3 felony to possess more than ten pounds of marijuana. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.

      . Lorenz’s reliance on the Hill case is misplaced because the Hill court was interpreting Virginia's statutory definition of marijuana, § 54.1-340, where marijuana is defined as:
      any part of a plant of the genus Cannabis whether growing or not, its seeds or resin; • and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or its resin. Marijuana shall not include any oily extract containing one or more cannabinoids unless such extract contains less than twelve percent of tetrahydrocannabinol by weight, nor shall marijuana include the mature stalks of such plant, fiber produced from such stalk, oil or cake made from the seeds of such plant, unless such stalks, fiber, oil or cake is combined with other parts of plants of the genus Cannabis.
      Even a cursory reading of our statute and that of Virginia's clearly show that the two statutes are incomparable.