author: GORDON W. SHUMAKER, Judge.

text:
    Lawrence B. GRAY, Respondent, v. BADGER MINING CORPORATION, individually and as successor-in-interest to the C.A. Chier Sand Company, Appellant, Carpenter Brothers, Inc., et al., Defendants.
    No. C4-02-2052.
    Court of Appeals of Minnesota.
    July 15, 2003.

      Michael S. Polk, Michael R. Strom, Sie-ben, Polk, LaVerdiere & Hawn, P.A., Hastings, MN, for respondent.
    Robert E. Diehl, Cynthia R. Bartell, Minneapolis, MN; and Cathy R. Gordon, pro hac vice, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and HALBROOKS, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Respondent Lawrence Gray developed silicosis and sued appellant Badger Mining Corporation and various other defendants in this personal-injury action. He claimed that the defendants were negligent and strictly liable for failing to warn him of the dangers of breathing silica dust, and that the defendants breached warranties of merchantability and fitness for intended purpose. After the district court denied the defendants’ motions for summary judgment, all defendants settled with Gray, except Badger.

Badger renewed its motion for summary judgment on the legal issue that it had no duty to warn Gray. After the district court denied Badger’s motion, Badger and Gray agreed to forego a trial on the disputed factual issues and stipulated to certain facts and to entry of judgment against Badger. But Badger also denied liability and preserved its right to appeal the legal issue of whether it had a duty to warn Gray. The parties thus agreed that if this court concluded that Badger had a duty to warn Gray, Badger’s liability would remain at the judgment amount, but if Badger had no duty to warn, Badger’s liability would be limited to a lesser amount. Badger filed this appeal after the entry of final judgment.

FACTS

For over four decades, respondent Lawrence Gray worked in a foundry where he was exposed to silica sand. He ultimately contracted silicosis. For part of Gray’s work history, appellant Badger Mining Corporation supplied silica sand to the foundry.

Gray sued Badger, among others, alleging that Badger failed to warn of the dangers of inhaling silica. Badger contended in its defense that it had no duty to warn Gray of such dangers because Gray’s employer was a sophisticated buyer of silica sand and was in the best position to warn and to protect its employees.

Badger twice moved for summary judgment on the issue of duty to warn. The district court denied the motions. Badger and Gray then stipulated to the entry of judgment against Badger and agreed that Badger would thereby preserve the duty-to-warn issue for appeal. The parties further stipulated that they would forego a trial on the facts and that if Gray prevails on appeal he will receive the stipulated judgment amount of $75,000, but if Badger prevails, Gray will accept $17,500 in satisfaction of the judgment.

In this unique procedural posture, and despite the likelihood of the existence of genuine issues of material fact, Badger appeals from the stipulated judgment and asks this court to decide whether Badger had a legal duty to warn Gray about potential hazards of inhaling silica.

Many significant facts are undisputed. Gray worked in various capacities at the Smith Foundry from 1951 to 1998. In the 1950s and 60s, he was exposed to silica dust, created when the foundry recycled sand. In those days, the foundry had no fans or exhaust systems to reduce the quantity of dust particles in the air, and employees did not have dust masks available for their protection. When protective masks became available in the early 1970s, Gray sometimes wore them. He wore masks continuously from 1993 until his retirement in 1998.

Badger was a supplier of sand in bulk to the foundry. Unquestionably, Badger supplied sand beginning in 1992, but there is evidence in the record that Badger shipped sand to the foundry before 1981. Prior to 1981, suppliers of silica sand provided no warnings of inhalation hazards. For shipments beginning in 1992, Badger gave safety warnings on invoices, bills of lading, and Material Safety Data Sheets (MSDS).

The MSDS identified silica as a hazardous ingredient in sand; noted permissible exposure limits; disclosed that silicosis is a health hazard from exposure to silica sand; described respirators to be used; and outlined precautions for safe handling and use of silica sand.

For over 100 years, the foundry industry has been aware of some dangers from the inhalation of silica. The American Found-rymen’s Society (AFS) was formed to educate workers about foundry processes, and later the AFS provided information about the prevalence of silicosis among foundry workers. The Smith Foundry has been a member of the AFS since the 1940s. Smith’s current president knew in the early 1960s that inhaling silica dust can be harmful. In the 1970s, Smith began receiving warnings from sand suppliers other than Badger about the dangers of exposure to silica dust. During the 1970s, it was common knowledge in the foundry industry that silica dust could pose a health risk, and, because of this knowledge, Smith began to offer to its foundry workers respiratory protective devices. In the 1980s, Smith’s safety director worked with a consultant to help bring the foundry into compliance with OSHA standards as to silica exposure.

At all times material to the issue on appeal, sand suppliers, foundry owners and workers, and governmental regulatory agencies recognized that the inhalation of silica could cause silicosis.

ISSUE

Did the district court err in concluding that, as a matter of law, appellant Badger Mining Company had a duty to warn respondent of the hazards of inhaling silica dust particles?

ANALYSIS

This appeal from a stipulated judgment raises only a question of law, which we review de novo. Moundson v. Bitzan, 588 N.W.2d 169, 171 (Minn.App.1999). The district court held, among other things, that Badger had a duty to warn Gray of health hazards from exposure to silica. Badger contends that the court erred in that ruling because Badger was entitled to rely on Smith Foundry, a sophisticated purchaser of silica sand, to deliver appropriate safety warnings to Smith’s employees. Additionally, Badger argues that it was not in a position as a bulk supplier of sand reasonably to warn Smith’s foundry workers of silica dangers.

Courts determine as a matter of law whether there exists a duty to warn of a danger in a product. Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn.1986). In general, there is no duty to warn as to a danger of which the product’s users knew or should have known. Harmon Contract Glazing, Inc. v. Libby-Owens-Ford Co., 493 N.W.2d 146, 151 (Minn.App.1992), review denied (Minn. Feb. 12, 1993). If a legal duty to warn is found to exist, ordinarily the trier of fact resolves the factual issues of the adequacy of the warning, breach of the duty, and causation. Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987). However, here, because of the parties’ stipulation, the answer to the question of whether a duty to warn existed is dispositive of the case, for the parties have stipulated not to try the usual factual issues.

In Minnesota, the duty of suppliers of goods to warn users of dangers in those goods is determined under the Restatement (Second) of Torts § 388 (1965). The supreme court recognized this duty in Mikel v. Aaker, 256 Minn. 500, 504-05, 99 N.W.2d 76, 79-80 (1959). One who supplies goods directly or through a third person to an ultimate user is hable to the ultimate user for injury from a hazard associated with the goods if the supplier “has no reason to believe that those for whose use the [goods are] supplied will realize [the] dangerous condition [of the goods]” and if the supplier fails to warn of the hazard. Restatement (Second) of Torts § 388(b), (c). When the ultimate user, or an intermediary through whom the goods are supplied to the end user, knows or should know of the danger of the goods, the supplier is relieved of its duty to warn. Strong v. E.I. DuPont de Nemours & Co., Inc., 667 F.2d 682, 686 (8th Cir.1981). This exception to the duty to warn is commonly called the “sophisticated user” doctrine. Bergfeld v. Unimin Corp., 226 F.Supp.2d 970, 977 (N.D.Iowa 2002). The exception is also known as the “learned intermediary” defense. Todalen v. U.S. Chem. Co., 424 N.W.2d 73, 79 (Minn.App.1988), review denied (Minn. June 29, 1998), overruled on other grounds by Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54 (Minn.1993). When one supplies a dangerous product to an end user through an intermediary, the exception shifts liability for harm from the supplier to the intermediary or the end user if either is a sophisticated user. Smith v. Walter C. Best, Inc., 927 F.2d 736, 739 (3rd Cir.1990).

The first application of the sophisticated-purchaser exception to reach the Minnesota Supreme Court was Mulder v. Parke Davis & Co., 288 Minn. 332, 181 N.W.2d 882 (1970). That was a wrongful-death action in which a physician prescribed a drug manufacturer’s medicine that caused a patient to die. Id. at 333-34, 181 N.W.2d at 884. One claim in the lawsuit was that the manufacturer failed to give an adequate warning about the drug’s usage and danger. Id. at 334, 181 N.W.2d at 884. As to that claim, the supreme court held that

where the only issue is failure to communicate a warning, the manufacturer is not liable if the doctor was fully aware of the facts which were the subject of the warning.

Id. at 335-36, 181 N.W.2d at 885 (citation omitted).

The exception was applied to an industrial injury in Todalen, 424 N.W.2d at 73. In Todalen, an employee used a dangerous chemical improperly and was injured. Id. at 75-76. The supplier, U.S. Chemical Co., had shipped the chemical in drums with warning labels that did not contain a caution regarding certain hazards of the chemical, but had provided the employer with MSDS. Id. at 76. The district court ruled that U.S. Chemical had a duty to warn the employee of the hazard of misusing the chemical. Id. at 80. We held that U.S. Chemical had a duty to warn the employee, and we distinguished the industrial context from the pharmaceutical context in Mulder. Id. at 79. We reasoned that in the industrial setting a greater number of people may be affected by the dangerous product and the employer is not motivated to warn employees because the employer’s liability is limited by the workers’ compensation laws. Id. (relying on Hall v. Ashland Oil Co., 625 F.Supp. 1515, 1519-20 (D.Conn.1986)). Because the end-user employee in Todalen was not a sophisticated user, the supplier was required to warn of the hazard.

Relying on Todalen, the district court here declined to extend the sophisticated-user exception to the industrial context and ruled that Badger had a duty to warn Gray of the danger of silica. Todalen is factually distinguishable in three respects. First, the employee in Todalen was misusing the product, whereas Gray was exposed to the hazard during the intended and proper use of the sand. Second, the chemical in Todalen was shipped in drums that could have contained a visible warning label; whereas, here, the sand was shipped in bulk and poured in bulk from a truck into a storage bin. Thus, there was no container on which to affix a warning sign or label. Third, the employee in Todalen handled the chemical container, whereas Gray neither received nor unloaded the bulk delivery of sand.

In addition, one factor for courts to consider when deciding whether to apply the sophisticated-user exception is the burden placed on the supplier if the supplier is required to directly warn all users of the product. Restatement (Second) of Torts § 388, cmt. n. In Todalen, the burden on the chemical supplier to place warning labels on the containers seemed minimal. But here, the burden on Badger would be far greater because the sand reaches the foundry in bulk and is placed in the employer’s containers, over which the supplier has no control. The sand becomes hazardous when, during the foundry process, microscopic particles of silica are released into the air. Employees who breathe silica-laden air are exposed to the hazard, but those employees are not known to the supplier in advance of the use of the sand. Because of dissimilarities in material facts and the substantial burden on a bulk supplier to warn end users of product hazards, Todalen is not controlling.

Thus, we view this as a case of first impression in Minnesota, and we look to outside jurisdictions for guidance. We find persuasive the reasoning in cases in the Eighth Circuit and other jurisdictions that have ruled on the applicability of the sophisticated-purchaser defense when a foundry employee who developed silicosis sued a silica sand supplier for failing to warn either the purchaser or employee. These industry-specific cases provide us with persuasive reasoning to support the legal conclusion that a bulk supplier of silica sand to a sophisticated purchaser has no duty to warn the user of the dangers of exposure to silica dust.

In Bergfeld v. Unimin Corp., a foundry employee developed silicosis and sued the supplier of silica sand. 319 F.3d 350 (8th Cir.2003). The case came before the federal court of appeals after the federal district court in Iowa granted the defendant’s summary judgment motion. Bergfeld v. Unimin Corp., 226 F.Supp.2d 970 (N.D.Iowa 2002). The employee alleged that the supplier failed to inform the foundry or the foundry’s employees about the risk of developing silicosis from exposure to dust levels above the maximum recommended exposure level. The appellate court affirmed the district court’s grant of summary judgment in favor of the sand supplier, holding that the supplier had no duty to warn because the employer was a sophisticated purchaser of sand, with the kind of generalized foundry industry knowledge relating to the dangers of inhaling silica sand and resulting silicosis. Bergfeld, 319 F.3d at 354.

In Smith v. Walter C. Best, Inc., the court affirmed summary judgment in favor of the defendant suppliers of industrial sand after a foundry employee developed silicosis and sued the suppliers for failure to warn. 927 F.2d at 739 (applying Restatement (Second) of Torts § 388 under Ohio law). Because the sand was delivered in bulk and the employee did not personally receive the deliveries, the foundry was in a better position to convey warnings to its employees. Id. at 740-41. Furthermore, the court held that it was reasonable for the sand supplier to rely on the foundry’s knowledge of the dangers of silicosis, given the regulations governing silica sand, the “state of common medical knowledge,” and the foundry’s membership in the Industrial Health Foundation, which provided information about occupational diseases including silicosis and their prevention. Id. at 741.

In Goodbar v. Whitehead Bros., the court discussed the foundry’s knowledge about silicosis dating back to the 1930s. 591 F.Supp. 552, 562 (W.D.Va.1984) (applying Restatement (Second) of Torts § 388 under Virginia law), aff'd sub. nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985). The court imputed the extensive knowledge of the AFS to the foundry through its vice president because he was active in the AFS and received information about silicosis. Id. at 561-62. The supplier could assume that the foundry would make proper use of this knowledge. And even if the foundry’s corrective measures indicated that the foundry was not sophisticated regarding silicosis, this argument could not rebut facts showing knowledge of silica dust and silicosis dating back to the 1930s. Id. at 565. The district court concluded that the sand supplier had no duty to warn the foundry’s employees because the foundry was in the better position to warn its employees. Thus, the district court granted summary judgment to the silica sand suppliers. Id. at 566.

The undisputed facts here show that Smith Foundry knew or should have known of the dangers of silica and was in a reasonable position to warn its employees. Thus, Smith was a sophisticated purchaser of the sand to which Gray was exposed during his foundry career.

On the rationale in Bergfeld, Goodbar, and Smith, it was reasonable for Badger as a bulk supplier of silica sand to rely on Smith to warn and protect its employees.

DECISION

Because respondent’s employer was ¾ sophisticated purchaser of a dangerous product, appellant did not have a duty to warn respondent. Therefore, the district court erred in denying appellant’s motion for summary judgment on respondent’s negligent failure-to-warn claim.

Reversed.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    In re Debra Ann STRANDBERG, Petitioner, Respondent, v. Brian Paul STRANDBERG, Appellant.
    No. C6-02-2246.
    Court of Appeals of Minnesota.
    July 22, 2003.

      David W. Buchin, St. Cloud, MN, for respondent.
    Lynne M. Ridgway, St. Cloud, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

Child support obligor appeals the district court’s order for child support and asserts that the district court abused its discretion by failing to consider the resources and needs of the obligee and the child, including a state adoption subsidy, during the time obligor was unemployed and his income was below poverty-level guidelines. Because the adoption subsidy, the obligor’s resources, and the obligee’s and child’s resources and needs are relevant to the child support determination, we reverse and remand.

FACTS

The marriage of appellant Brian Paul Strandberg and respondent Debra Ann Strandberg was dissolved in January 2002. The parties have one adopted minor child, for whom the state pays a monthly adoption subsidy. When the parties separated, Debra, as the custodial parent, received the adoption subsidy.

The question of child support was determined after the marriage dissolution. The matter was initially heard by a child support magistrate (CSM). At the hearing before the CSM, the parties stipulated to the following facts:

— When the parties separated in March 2001, Brian’s net monthly income was $1,513.54.
— Brian lost.his job on July 26, 2001, and from August 1, 2001 to March 4, 2002, his net monthly income, from unemployment compensation, was $850. He was neither voluntarily unemployed nor voluntarily underemployed.
— On March 4, 2002, Brian became employed, and his net monthly income increased to $1,120.50. His net monthly income was $1,350 on June 21, 2002, the date support was determined.
— From March 1, 2001 to June 21, 2002, Brian’s monthly expenses were $1,684.
— From March 1, 2001 to June 21, 2002, Debra’s net monthly income was $1,762.
— From March 1, 2002 to June 21, 2002, Debra received the adoption subsidy, which ranged from $397 to $427 per month.
— Brian did not pay any direct child support to Debra during the 10 months while the marriage dissolution was pending.

The CSM determined that Brian owed child support, including arrearages, but that he was entitled to a downward deviation from the child support guidelines. The CSM’s determination was based on Brian’s limited resources; the resources available to Debra, including the state adoption subsidy; and the amount of time the child spent with Brian.

Pursuant to a motion for review filed by Debra, the determination of the CSM was considered by the district court. The district court (1) determined that Brian was not entitled to a downward deviation from the guidelines, that the summer visitation schedule did not support an adjustment in support, and that the state adoption subsidy could not be considered in determining child support or child support arrearages; (2) did not address the relevance of Brian’s resources being below the poverty level, of Debra’s resources, or of the child’s resources in setting support or support ar-rearages; and (3) ordered payment of child support and arrearages according to the child support guidelines.

ISSUE

Did the district court abuse its discretion by not considering the financial circumstances of the child support obligor, obligee, or the child in setting child support and arrearage obligations at the level specified in the statutory guidelines?

ANALYSIS

District courts have broad discretion in determining child support. Marden v. Marden, 546 N.W.2d 25, 27 (Minn.App.1996). In reviewing decisions of child support magistrates, district courts are not required to give any deference to those decisions. Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn.App.2001), review denied (Minn. Mar. 13, 2001). A reviewing court affirms the district court’s support determination if that deter mination has a reasonable and acceptable basis in fact. Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn.App.1994). A reviewing court will find an abuse of discretion where it finds a clearly erroneous conclusion that is against logic and the facts on record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986).

Generally, the obligation to pay child support is based on the obligor’s ability to pay. Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn.App.1991). This is reflected in the child support guidelines, which are set forth at Minn.Stat. § 518.551, subd. 5(b) (2002). The child support guidelines are a “rebutable presumption and shall be used in all cases when establishing or modifying child support.” Minn.Stat. § 518.551, subd. 5(i) (2002). If the court does not deviate from the guidelines, the statute requires written findings

concerning the amount of the obligor’s income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support.

Id. In addition to the child support guidelines, a court “shall” consider:

all earnings, income, and resources of the parents, including real and personal property * * * [and] the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported.

Minn.Stat. § 518.551, subd. 5(c)(1), (2) (2002).

Here, the district court refused to consider the state adoption subsidy in setting child support. The child support statute requires the district court to consider the “financial needs and resources” of the child. Id. (emphasis added). We have previously held that the adoption subsidy is a resource attributable to the child for purposes of reimbursing the county for the cost of care provided to the child in an out-of-home placement. County of Ramsey v. Wilson, 526 N.W.2d 384, 387 (Minn.App.1995). In Wilson, we noted that social security benefits, supplemental security income, veterans benefits, and railroad retirement benefits are all considered “income and resources attributable to the child.” Wilson, 526 N.W.2d at 387 (discussing Minn.Stat. § 260.251, subd. 1(b) (1990 & 1992)). We concluded that the adoption subsidy is similar to those resources “because none of these payments would be made if there were no child.” Id. Just as the adoption subsidy is considered a resource of the child for purposes of reimbursing the county for out-of-home placement, the adoption subsidy is a resource of the child for purposes of determining child support.

The district court’s refusal to consider the adoption subsidy in setting child support was based on the adoption subsidy statute, which provides that “adoption assistance payments received under this section shall not affect eligibility for any other financial payments to which a person may otherwise be entitled.” Minn.Stat. § 259.67, subd. 9 (2002). This limit on consideration of the subsidy does not conflict with child support determinations because the subsidy does not affect eligibility for child support, at most it affects the level of support.

Even to the extent there is some perceived limit on consideration of the adoption subsidy, it should be resolved in favor of factoring the subsidy into available resources. Otherwise, the language in the adoption subsidy statute unnecessarily conflicts with the child support statute’s mandate that a court is to consider “financial needs and resources” of the child when setting support. Minn.Stat. § 518.551, subd. 5(c). In this case, excluding the adoption subsidy from consideration in setting child support produces an unreasonable result. The overarching policy of the child support statute is to ensure that children’s needs are met. Murphy v. Murphy, 574 N.W.2d 77, 81 (Minn.App.1998). The child support statute and guidelines are also based on the obligor’s ability to pay. Schneider, 473 N.W.2d at 332. In light of those principles, it is reasonable to consider the adoption subsidy as a resource available for meeting the child’s needs, particularly in cases like this where the obligor parent cannot cover his own expenses. It is inappropriate to have litigants pushed into poverty by child support obligations that are set without considering all of the resources available to meet the needs of the child. Accordingly, we conclude that the adoption subsidy should be considered a resource of the child when determining child support.

We do not hold that the adoption subsidy should be treated as a mandatory offset to child support or an automatic reduction of the guideline amount. Nor are we holding that low-income obligors are relieved of their child support obligations. Rather, the treatment of the adoption subsidy and whether the subsidy affects the support obligation depends on the needs of the child and the financial circumstances of the obligor and obligee.

The district court should have made additional findings on Debra’s resources. In this case, Brian’s resources were inadequate to meet his needs and put him at or below the poverty level for at least part of the arrearages period. Debra’s resources exceeded her expenses and those of the child. These are “significant evidentiary factors affecting the determination of child support.” See MinmStat. § 518.551, subd. 5(i). Accordingly, the district court should have considered these factors in its written findings.

DECISION

Because the district court did not consider the adoption subsidy, and because the district court did not make adequate findings regarding the needs and resources of the parties involved, we reverse and remand for determination of child support consistent with this opinion.

Reversed and remanded.


author: MARING, Justice. DALE V. SANDSTROM, J. VANDE WALLE, Chief Justice,

text:
    2003 ND 120
    Carol Hope SMITH, n/k/a Carol Graves, Plaintiff and Appellee v. Leo John BAUMGARTNER, Defendant and Appellant.
    No. 20020323.
    Supreme Court of North Dakota.
    July 16, 2003.
    Rehearing Denied Aug. 20, 2003.
    Donavin L. Grenz, Linton, for defendant and appellant.

      Sheila K. Keller, Child Support Enforcement, Bismarck, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Leo Baumgartner appeals from the October 30, 2002, Memorandum Opinion and Order concluding the arrearage of $23,667.86 is a valid obligation of Baum-gartner. We affirm.

I

[¶ 2] The marriage of Baumgartner and Carol Smith, now known as Carol Graves, was dissolved by a Colorado district court decree dated July 25, 1975. The decree awarded custody of the couple’s two minor children to Smith and ordered Baumgartner to pay $200 per month in child support. When Baumgartner failed to pay support according to the Colorado decree, Smith brought a motion for a judgment for the unpaid support arrear-ages. On June 11, 1984, the Colorado court entered a $21,000 money judgment against Baumgartner for the child support arrearages which had accrued between August 1,1975, and May 9,1984.

[¶ 3] After the money judgment was entered, Baumgartner continued to default on his child support payments. On May 24, 1985, a hearing was held to show cause because Baumgartner failed to pay the court-ordered child support. As a result of this hearing, Baumgartner and Smith entered into a stipulation, whereby Baum-gartner acknowledged the Colorado court’s $21,000 money judgment against him for child support arrearages and agreed to pay monthly toward the judgment until the full principal balance was satisfied. Baum-gartner also agreed to pay $1,300 for the child support that had accrued between June 1, 1984, and June 1, 1985. Finally, he agreed to pay $100 per month for the current support of the one remaining daughter who had not yet reached the age of majority. Baumgartner paid the $1,300 and began making the $100 payments each month toward his child support. With the exception of one payment in August of 1987, Baumgartner stopped making the $100 payments after June of 1986. Baum-gartner never made any payment toward the $21,000 money judgment.

[¶ 4] On April 17, 2002, the Bismarck Regional Child Support Enforcement Unit filed a Notice of Registration of Foreign Support Order in North Dakota, following the filing of a petition by the state of Colorado, seeking to enforce payment of Baumgartner’s arrearages under the current enforcement statutes known as the Uniform Interstate Family Support Act (“UIFSA”). See N.D.C.C. ch. 14-12.2. Baumgartner resisted the enforcement of the foreign support order, claiming the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”), rather than UIFSA, should be applied because RURE-SA was the enforcement statute in effect when his support obligations terminated in 1985 and 1987. See N.D.C.C. ch. 14-12.1 (repealed 1995). After a hearing, the trial court issued its Memorandum Opinion and Order on October 30, 2002, in which it applied UIFSA, found Baumgartner was obligated to pay the child support arrear-ages of $23,667.86, and ordered payment of $200 per month toward the obligation. The court based its decision on the fact that UIFSA was enacted before the ten-year statute of limitations mandated by RURESA had run. Therefore, it reasoned UIFSA could be applied retroactively.

[¶ 5] Baumgartner appeals from the Memorandum Opinion and Order. Baumgartner claims under RURESA, the enforcement of all his child support obligations would be barred by North Dakota’s ten-year statute of limitations on judgments. He further argues the trial court erred in calculating his child support arrearages. He asserts that under UIFSA, all but $6,667.86 of his child support obligations would be barred by Colorado’s twenty-year statute of limitations. We conclude that UIFSA applies to the enforcement of Baumgartner’s child support arrearages and that none of Baumgartner’s child support arrearages are barred by the statute of limitations.

II

[¶ 6] The issue in this case is whether RURESA or UIFSA should be applied to Smith’s child support enforcement proceedings. The North Dakota Legislature repealed RURESA effective August 1, 1995. In its place, the legislature adopted UIFSA in chapter 14-12.2, N.D.C.C. RURESA and UIFSA have different choice of law provisions, the application of which result in the use of different statutes of limitation.

[¶ 7] RURESA contained a choice of law provision stating:

Duties of support applicable under this chapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

N.D.C.C. § 14-12.1-07 (repealed 1995). As applied to the facts of this case, RURE-SA’s choice of law provision requires that North Dakota law be applied to enforce Baumgartner’s child support arrearages. At the time Baumgartner’s child support obligations accrued, child support judgments were subject to cancellation ten years after the entry of judgment. See N.D.C.C. § 28-20-35; see also Ruscheinsky v. Ulrich, 2000 ND 183, ¶ 9, 612 N.W.2d 283. They were also subject to the ten-year statute of limitations under N.D.C.C. § 28-01-15(1), which begins when the duty to support terminates. Ruscheinsky, at ¶ 11. Therefore, under RURESA, Baumgartner would not be obligated to pay the arrearages.

[¶ 8] UIFSA’s choice of law provision, in proceedings for child support arrearag-es, allows the court to apply either the enforcing state’s statute of limitations or the issuing state’s statute of limitations, whichever is longer. See N.D.C.C. § 14-12.2-38(2). In this case, the enforcing state, North Dakota would apply a ten-year statute of limitations to Baumgartner’s arrearages, as discussed above. See N.D.C.C. § 28-20-35; N.D.C.C. § 28-01-15(1). In the issuing state of Colorado, the applicable statute of limitations for child support arrearages is the twenty-year period under Colo.Rev.Stat. § 13-52-102(2)(a), for execution on judgments of any kind. See In re the Marriage of Morris, 32 P.3d 625, 626 (Colo.Ct.App.2001). Therefore, under UIFSA, Colorado’s twenty-year statute of limitations would apply to this case because it is the longer of the two, and Baumgartner would be obligated to pay the arrearages.

Ill

[¶ 9] Baumgartner argues UIFSA cannot be applied retroactively. This is a question of law. In determining whether UIFSA can be applied retroactively to this case, we must consider N.D.C.C. § 1-02-10 which provides, “[n]o part of this code is retroactive unless it is expressly declared to be so.” We, however, said in State v. Davenport, that it is not necessary that a statute expressly declare it is to operate retroactively, because an intent of retroactive application can be implied. See 536 N.W.2d 686, 688 (N.D.1995) (citing In re W.M.V., 268 N.W.2d 781, 783-84 (N.D.1978)).

[¶ 10] The dissent is critical of our reliance on Davenport. The position the dissent takes in both this case and in Davenport was rejected by the majority of this Court. See Davenport, 536 N.W.2d at 692 (VandeWalle, C.J., concurring and dissenting). To the extent Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D.1979), stood for the position that there must be an express declaration that the statute is retroactive, it was overruled by Davenport.

[¶ 11] We have stated: “A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.” State v. Cummings, 386 N.W.2d 468, 471 (N.D.1986). “[L]aws which confer benefits are often excepted from the general rule against retroactive application.” Id. The issue in this case is whether the judgments for child support arrearages have expired or been canceled and, thus, whether they can be enforced. The general purpose of UIFSA is to ensure more efficient enforcement of these judgments. The judgments in this case were valid judgments under the law of the issuing state of Colorado when they were filed in North Dakota for enforcement. At that time, UIFSA was in effect in North Dakota.

[¶ 12] In Davenport, we quoted Landgraf v. USI Film Products, 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (citations omitted) stating:

A statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates “retroactively” comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have “sound ... instinctfs],” and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

From this language, Davenport concluded, “[t]hus it is questionable whether application of an amended statute of limitations to actions accruing before its adoption is “ret-roactivity” in the legal sense.” Davenport, at 689 n. 1. The effect of applying UIFSA in this case is to lengthen the period before a judgment for child support arrear-ages expires and can no longer be enforced.

[¶ 13] Finally, the dissent states the Davenport opinion relies on In re W.M.V., 268 N.W.2d 781 (N.D.1978). While W.M.V. is cited, Davenport relies heavily on Cummings for the position that N.D.C.C. § 1-02-10 is but a canon of construction, which we need not resort to if we are able to rationally infer from the statute itself the legislature’s intention. In Cummings, we held that an exception must be made to the general rule of Rett-ing in the case of ameliorating penal legislation. See Cummings, 386 N.W.2d at 472. The exception was carved out, however, based on general rules of construction emphasizing that the goal of statutory interpretation is to ascertain and effectuate legislative intent. See id. at 471-72. The Davenport decision is built on the rules of construction established in W.M.V.; Cummings; and Caldis v. Board of County Comm’rs, 279 N.W.2d 665 (N.D.1979).

[¶ 14] Section 1-02-10, N.D.C.C., is a rule of statutory construction which is “subservient to the main rule that the intent and purpose of the legislature must be given effect.” Davenport, at 688. We concluded in Davenport, “there is no need to resort to NDCC § 1-02-10 to discern legislative intent if we are able to rationally infer from other sources that the legislature intended retroactive application of the statute.” Id. at 689. In this case, a review of the legislative history of North Dakota’s enactment of UIFSA allows us to rationally infer the legislature intended retroactive application of the act.

[¶ 15] UIFSA is a uniform law first approved by the National Conference of Commissioners on Uniform State Laws in 1992 to govern the establishment, enforcement, and modification of child and spousal support orders when more than one state is involved. See 9 U.L.A. IB at 393. UIFSA superceded two then-existing uniform interstate support acts, the Uniform Reciprocal Enforcement of Support Act and RURESA. See id. at 393. By 1998, every state had enacted some form of UIFSA. See id. at Supp. p. 44.

[¶ 16] As previously stated, North Dakota enacted UIFSA in 1995, codified at N.D.C.C. ch. 14-12.2. See 1995 N.D. Sess. Laws ch. 157, § 3. At the same time, RURESA, which had been North Dakota’s interstate support collection mechanism since 1969, was repealed. See id. at § 4. The legislative history indicates UIFSA was enacted to “completely replace[]” RURESA and to make the current law “much more comprehensive and make[] the process much more efficient.” Hearing on S.B. 2069 Before the House Standing Comm., 54th N.D. Legis. Sess. (Feb. 27, 1995) (testimony of Vonette Richter, Attorney for the Legislative Council). In addition, when enacting UIFSA, the legislature’s intent was that UIFSA be applied and construed to effectuate its general purpose of ensuring uniform application of child support enforcement procedures among the states adopting it. See 1997 N.D. Sess. Laws ch. 152, § 17. The Court of Appeals of Utah, discussing the general purpose of UIFSA, stated;

In fact, Congress required that all states adopt UIFSA by January 1, 1998, to further national uniformity in the enforcement of child support orders. This policy of ensuring that foreign child support orders are uniformly recognized and enforced further supports our determination that UIFSA should be applied retroactively. In retroactively applying UIFSA, we comport with several other jurisdictions.

State Dep’t of Human Svcs. v. Jacoby, 1999 UT App 52, ¶ 14, 975 P.2d 939 (citations omitted); see also Welsher v. Rager, 127 N.C.App. 521, 491 S.E.2d 661, 664-65 (1997). All of the judgments entered against Baumgartner were valid under Colorado law when they were registered in North Dakota. The United States Constitution requires states to give full faith and credit to “the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const, art. IV, § 1.

[¶ 17] We conclude our interpretation is consistent with North Dakota state decisions, with other jurisdictions addressing the issue of retroactivity of UIF-SA, and that UIFSA applies to all proceedings to enforce foreign orders and judgments for child support arrearages which are registered in North Dakota.

IV

[¶ 18] Baumgartner asserts that even if UIFSA is retroactively applied, under the twenty-year statute of limitations, he would owe a child support obligation of $6,667.86, rather than the $23,667.86 ordered by the trial court. We disagree.

[¶ 19] Baumgartner’s child support ar-rearages that accrued from August 1,1975, to May 9, 1984, were reduced to a $21,000 money judgment in Colorado, entered on June 11, 1984. Under applicable Colorado law, this money judgment can be enforced at any time within twenty years from the entry of the judgment. See CoIo.Rev.Stat. § 13 — 52—102(2)(a). Therefore, under Colorado law, the $21,000 money judgment does not expire until June 11, 2004, and is enforceable.

[¶ 20] Similarly, each individual child support payment after May 9, 1984, by operation of Colorado law, became a final money judgment when it was due and unpaid. See Colo.Rev.Stat. § 14-10-122(1)(c); In re the Marriage of Nussbeck, 974 P.2d 493, 499 (Colo.1999). These individual judgments, which accrued from June of 1984 until November of 1987 when the younger child was emancipated, are subject to Colorado’s twenty-year statute of limitations on judgments. See Colo. Rev.Stat. § 13-52-102(2)(a). Therefore, none of Baumgartner’s child support ar-rearages have yet expired under the applicable twenty-year statute of limitations.

V

[¶ 21] At the trial court level, Baum-gartner argued his support obligation ended when each of his daughters reached the age of eighteen, rather than the age of nineteen. The trial court concluded under Colorado law, Baumgartner’s support obligation did not end until each daughter’s nineteenth birthday. See Colo.Rev.Stat. § 14 — 10—115(1.5)(a). Baumgartner has not argued this issue on appeal, and we deem it abandoned. See Haugenoe v. Bambrick, 2003 ND 92, ¶ 14, 663 N.W.2d 175.

[f 22] We affirm the trial court’s October 30, 2002, Memorandum Opinion and Order finding Baumgartner responsible for $23,667.86 in child support arrearages.

[¶ 23] WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, concur.

DALE V. SANDSTROM, J.

I concur in the result.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 24] I respectfully dissent. The majority opinion, although of somewhat limited effect because of the 1999 Amendment to N.D.C.C. § 14-08.1-05, providing that child support judgments are not to be cancelled, see Ruscheinsky v. Ulrich, 2000 ND 133, ¶ 9, 612 N.W.2d 283, relies on State v. Davenport, 536 N.W.2d 686 (N.D.1995) to reach its conclusion that UIFSA is to be applied retroactively. In Davenport, a majority of the court, relying on In re W.M.V., 268 N.W.2d 781 (N.D.1978), concluded a statute can be applied retroactively if there is an implied intent to apply it retroactively.

[¶ 25] • I dissented in Davenport, as did Justice Beryl Levine, because the majority in that case relied on W.M.V. and ignored Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D.1979), which held that in view of N.D.C.C. § 1-02-10, which orders that no part of the Code is retroactive unless it is especially declared to be so, all statutes, substantive or procedural, are to be applied prospectively unless the Legislature clearly expresses they are to be applied retroactively. In Reiling, we reviewed prior case law, noting that while substantive statutes have not been applied retroactively without a clear expression of legislative intent to do so, Id. at 238-39, the issue of retroactivity of procedural statutes “has received different interpretations in the past.” Id. at 240. In adopting a narrow interpretation of N.D.C.C. § 1-02-10, which would make it applicable to substantive and procedural statutes, the Reiling court stated:

A narrow interpretation of § 1-02-10, N.D.C.C., clearly presents the better rule. In enacting the statute the legislature intended to have no statute apply retroactively unless it specifically provides that it is to apply retroactively. By giving § 1-02-10, N.D.C.C., a narrow interpretation in this case, the legislature will be given notice that it must specifically state that a statute is to apply retroactively if the legislature desires it to apply retroactively.

Id. at 240 (emphasis added)(footnote omitted). Thus, Reiling, relying on N.D.C.C. § 1-02-10, establishes a presumption that a statute is not to be applied retroactively in the absence of a specific legislative statement to the contrary.

[¶ 26] Reiling was decided in 1979, but today, because of the mischief of the Davenport opinion, the majority continues to find legislative intent by implication, in this case from decisions in other jurisdictions which applied UIFSA retroactively. That implied intent is a far cry from specific statements referred to in Reiling.

[¶ 27] In truth, it appears the majority has abandoned the Reiling requirement and I fear that the Court will, in the future, be looking in corners and under rocks to find by implication the express intent required by N.D.C.C. § 1-02-10 to apply a statute retroactively.

[¶28] I would reverse the decision of the district court.

[¶ 29] Gerald W. Vande Walle

      . In 1996 and again in 2001, the National Conference of Commissioners on Uniform State Laws revised portions of UIFSA. However, neither set of amendments altered UIF-SA’s original basic principles. See 9 U.L.A. IB at 236; 9 U.L.A. IB at Supp. pp. 43-44.

      . The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 conditioned each state's eligibility for federal child support enforcement funds on the state's enactment of UIFSA. See 42 U.S.C. § 666(f) (2003).

      .North Dakota's UIFSA was amended in 1997, to reflect the changes the National Conference of Commissioners on Uniform State Laws had made to UIFSA in 1996. See 1997 N.D. Sess. Laws ch. 152.


author: KAPSNER, Justice.

text:
    2003 ND 117
    Ed TARNAVSKY, Plaintiff and Appellant, v. McKENZIE COUNTY GRAZING ASSOCIATION, Keith Winter, Jim Kuykendall, Dale Greenwood, Kelly Indergard, Frederick K. James, Ron Whited, Alvin Nelson, Monty Carson, Lynn Dewhirst, Jason Leiseth, Jim Gudmunson, Bob Cross, Paul Wisness, Doug Rolfsrud, David Nelson, and Merle Jost, Defendants and Appellees.
    No. 20020311.
    Supreme Court of North Dakota.
    July 16, 2003.
    Rehearing Denied Aug. 20, 2003.

      Charles L. Chapman, Chapman and Chapman, Bismarck, N.D., for plaintiff and appellant.
    Dennis Edward Johnson, Johnson & Sundeen, Watford City, N.D., for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Ed Tarnavsky appeals from a summary judgment dismissing his action against the McKenzie County Grazing Association (“MCGA”). We hold Ed Tarnav-sky’s action is barred by the statute of limitations, and we affirm.

I

[¶ 2] The MCGA is a cooperative grazing association under N.D.C.C. ch. 36-08, which began operations in 1937 to lease grasslands from the federal government and to issue grazing permits to its members. During the 1930s, the federal government purchased land in McKenzie County for federal grasslands, and conducted a survey in 1936 to determine prior grazing use of the grasslands. The 1936 survey and original base property were used to determine grazing preferences, which are the right to graze a specified number of cattle for a specified number of months on the federal grasslands. The MCGA operations manual defines “base property” as “designated property on which a grazing preference was established as original members came into the MCGA. Base property is identified in the MCGA records on the original applications and consisted of both deeded and leased acres.” A 1938 grazing agreement between the MCGA and the United States required the MCGA to classify grazing preferences as either a class A preference for applicants with a priority of use, or a class B preference for applicants without a priority of use.

[¶ 3] Ed Tarnavsky is a member of the MCGA. He is the successor in interest to base property originally owned by Andrew Tarnavsky and by Thomas Tarnavsky, who were both members of the MCGA and owned base property with a priority of use under the 1936 survey. In 1938, Andrew Tarnavsky, Ed Tarnavsky’s uncle, had a grazing preference of 100 animal units based upon his priority of use and ownership of base property. Thomas Tarnav-sky, Ed Tarnavsky’s father, had a grazing preference of 250 animal units based upon his priority of use and ownership of base property. In the 1940s, the MCGA approved Andrew Tarnavsky’s requests to adjust his grazing preference to 40 animal units. In 1945, upon Thomas Tarnavsky’s motion, the MCGA accepted Kukla for membership and granted him a 25 animal unit grazing preference, which Thomas Tarnavsky agreed to release from his grazing preference. In 1948, the MCGA approved Freed for membership and granted him a 25 animal unit grazing preference, which Thomas Tarnavsky agreed to release from his grazing preference. The record does not reflect that Thomas or Andrew Tarnavsky transferred any of their base property when they released those grazing preferences, nor does the record reflect that Freed or Kukla owned or leased base property.

[¶ 4] In 1966, the MCGA adopted a policy that “[a]ll existing preferences shown on the records of the Association as of June 9,1966, shall be recognized subject to the rules and regulations of the Association.” In the early 1990s, the MCGA addressed issues about base property and grazing preferences. During this process, the term “phantom rights” was coined to refer to grazing preferences not attached to original base property. In 1993, the MCGA executive board discussed a report which referred to phantom rights, and voted to accept the report after changing the reference to phantom rights to “the difference between the original rights and today[’]s rights.”

[¶ 5] Ed Tarnavsky claims grazing preferences are inseparably tied to original base property, and the MCGA, in releasing the grazing preferences from his predecessors’ original base property, exceeded its authority under its charter and North Dakota law. Ed Tarnavsky sued the MCGA in 1998, alleging that as an owner of original base property, he owned land which, under the 1936 survey, had, or should have had, permanent grazing rights. He alleged the MCGA failed to restore his previously released grazing rights.

[¶ 6] The trial court granted the MCGA summary judgment, concluding, in part, the transfers of grazing preferences by Ed Tarnavsky’s predecessors in interest were not temporary, the transfers were not invalid because his predecessors did not also transfer base property, and any claims regarding the releases of grazing preferences by his predecessors were barred by any applicable statute of limitations. The court decided the statute of limitations began to run when Ed Tarnav-sky knew, or should have known, that Thomas and Andrew Tarnavsky had relinquished a portion of their grazing preferences, not when Ed Tarnavsky “ ‘knew of the real nature of the problems with the allocations of the preferences.’ ” The court ruled “[wjhether that date is (1) when Thomas and Andrew [Tarnavsky] relinquished portions of their grazing preferences without any conditions or duration, waiving their right or [Ed Tarnavsky’s] right to sue for their return, (2) when the [original base] property transferred to [Ed Tarnavsky], or (3) in 1966 when the MCGA took its action regarding grazing preferences, the applicable statue of limitations has long since run.” Ed Tarnavsky appealed.

II

[¶7] We consider this appeal in the posture of summary judgment, which is a procedural device for promptly disposing of a lawsuit without a trial if, after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Snortland v. State ex rel. Dep’t of Pub. Instruction, 2000 ND 162, ¶ 10, 615 N.W.2d 574.

[¶ 8] The dispositive issue in this appeal is whether the statute of limitations bars Ed Tarnavsky’s 1998 action against the MCGA. He argues the statute of limitations does not bar his action, because the MCGA was continuing to make adjustments and changes to its allocation of grazing preferences and base property in the 1990s and was addressing the phantom rights issue in 1993. He argues he was not aware of the “depth” of the issue of unqualified ranchers holding grazing preferences until 1993, and claims, under the discovery rule, he was not aware of facts which would place a reasonable person on notice that a potential claim existed until 1993. He also argues the MCGA’s yearly issuance of grazing permits based upon the erroneous allocation of grazing preferences is a continuing wrong which extends the statute of limitations. The MCGA argues Ed Tarnavsky brought this action in 1998, more than fifty years after his predecessors in interest released their grazing preferences, and more than thirty years after the grazing preferences were frozen in 1966. The MCGA argues Ed Tamavsky’s action is either a contract claim barred by the six-year statute of limitations in N.D.C.C. § 28-01-16, or a claim subject to the ten-year statute of limitations in N.D.C.C. § 28-01-22. The MCGA also argues Ed Tarnavsky’s reliance on the discovery rule and the continuing wrong concept is misplaced.

[¶ 9] Statutes of limitation are designed to prevent plaintiffs from sleeping on their legal rights and bringing stale claims to the detriment of defendants. See Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 910-11 (N.D.1992). Statutes of limitations are a legal bar to a cause of action and begin to run when the underlying cause of action accrues. Abel v. Allen, 2002 ND 147, ¶ 10, 651 N.W.2d 635. The determination of when a plaintiffs cause of action has accrued is generally a question of fact, but if there is no dispute about the relevant facts, the determination is for the court. Id. at ¶ 11. A cause of action accrues when the right to commence the action comes into existence and can be brought in a court of law without being dismissed for failure to state a claim. Id. at ¶ 12. We have recognized statutes of limitation ordinarily began to run from the commission of the wrongful act giving rise to the cause of action, see BASF Corp. v. Symington, 512 N.W.2d 692, 695 (N.D. 1994), and “ ‘[a]n injury usually arises contemporaneously with the wrongful act causing the injury.’ ” Huber v. Oliver County, 529 N.W.2d 179, 182 (N.D.1995) (quoting Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D.1990)).

[¶ 10] Here, Ed Tarnavsky’s complaint alleges a wrongdoing that occurred when his predecessors in interest released their grazing preferences in the 1940s, and no later than 1966 when the MCGA eliminated the distinction between class A and class B preferences. Ed Tarnavsky’s predecessors in interest participated in the releases of their respective grazing preferences in the 1940s and thereafter received grazing permits based on those reductions in grazing preferences. Their right, if one existed, to bring an action came into existence when they released the grazing preferences in the 1940s and no later than 1966 when the MCGA eliminated the distinction between class A and class B preferences, and Ed Tarnavsky is not entitled to any greater rights under the statute of limitations than his predecessors in interest.

[¶ 11] Moreover, the discovery rule does not save Ed Tarnavsky’s claims from the statute of limitations. The discovery rule postpones the accrual of a claim until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury. Snortland, 2000 ND 162, ¶ 11, 615 N.W.2d 574. An objective standard is used for determining knowledge under the discovery rule, and that standard focuses upon whether the plaintiff is aware of facts that would place a reasonable person on notice a potential claim exists, without regard to the plaintiffs subjective beliefs. Id. Summary judgment is appropriate if the uncontroverted facts establish that a reasonable person would have been placed on notice of a potential claim. Id.

[¶ 12] Ed Tarnavsky’s statement that he was not aware of the “depth” of this issue until 1993 belies any contention that he had no notice of a potential claim before 1993. Ed Tarnavsky and his predecessors in interest have received grazing permits based on the reduced grazing preferences since the 1940s. The statute of limitations generally begins to run against heirs to enforce rights and causes of action belonging to the heirs’ ancestors when it begins to run against the ancestors. See 51 Am.Jur.2d Limitations of Actions § 76 (2000). During the years in which Ed Tarnavsky and his predecessors were receiving grazing permits, they knew or reasonably should have known of the difference in grazing preferences. We therefore reject Ed Tarnavsky’s reliance on the discovery rule to save his claims from the statute of limitations.

[¶ 13] We also reject Ed Tarnav-sky’s claim that his annual application for grazing permits and the issuance of grazing permits based on the grazing preferences and the history of the Tarnavsky ranch is a continuing wrong. Assuming the release of grazing preferences in the 1940s was wrongful conduct, the annual issuance of grazing permits is the result of the alleged wrongful acts in the 1940s and any action based on those acts has long since been barred by the statute of limitations.

[¶ 14] We need not decide whether the six-year or the ten-year statute of limitations governs Ed Tarnavsky’s action, because we conclude the alleged wrongdoing in this case occurred well outside either statute of limitations. Because of our resolution of this issue, we need not address the other issues raised by Ed Tarnavsky.

[¶ 15] We affirm the summary judgment.

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


author: NEUMANN, Justice.

text:
    2003 ND 118
    Vern SYVERSEN, deceased, and Lois Syversen, Plaintiffs and Appellants, v. Shelly HESS, Defendant, and Steve Hess, Defendant and Appellee.
    No. 20020361.
    Supreme Court of North Dakota.
    July 16, 2003.

      Cynthia G. Schaar of Merrick & Schaar Law Firm, Jamestown, ND, for plaintiffs and appellants.
    Michael Birrenkott of Gjesdahl & Associates, Fargo, ND, for defendant and ap-pellee.
   NEUMANN, Justice.

[¶ 1] Vern and Lois Syversen appeal from the trial court’s judgment and the denial of their motion to alter or amend the judgment in a land transfer dispute with Shelly and Steve Hess. We affirm.

I

[¶ 2] On June 4, 1996, the Syversens deeded farmland to their three children, including Shelly Syversen Hess. In 2001, the Syversens brought this action against Shelly and Steve Hess while a divorce was pending between the Hesses. In their amended complaint, the Syversens alleged a mistake occurred in the Hesses’ warranty deed. They requested a reformation of the deed so they would retain a life estate in the transferred land or, alternatively, that they would benefit from a constructive trust. The trial court determined no mistake occurred and no trust arose in favor of the Syversens. The Syversens moved to alter or amend the judgment, and the trial court denied the motion. The Syver-sens appeal.

[¶ 3] The Syversens argue the trial court erred (1) when it determined the parol evidence rule precludes consideration of mistake and implied trust, (2) when it failed to find a mistake was made in the drafting of the deed requiring the deed’s reformation, and (3) when it failed to find a constructive trust in favor of the Syver-sens.

II

[¶4] The Syversens argue the parol evidence rule allows a trial court to consider extrinsic evidence of mistake when construing a contract. We agree.

[¶ 5] Because a deed is a written contract, it is subject to the parol evidence rule. Des Lacs Valley Land Corp. v. Herzig, 2001 ND 17, ¶ 8, 621 N.W.2d 860. The parol evidence rule is partially codified in N.D.C.C. § 09-06-07, which provides: “[t]he execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” “The parol evidence rule is a rule of substantive law and precludes use of evidence of prior oral negotiations and agreements to vary the terms expressed in a written contract.” Des Lacs Valley Land Corp., 2001 ND 17, at ¶ 7, 621 N.W.2d 860. Oral testimony is incompetent and inadmissible to vary or contradict an executed and delivered quitclaim deed and to nullify the grant contained in the deed. Id. at ¶ 8. In Des Lacs Valley Land Corp., we explained the parol evidence rule as follows:

“Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement: ... all preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident, or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.
* * ⅜ *
The parol evidence rule is founded on experience and public policy and created by necessity, and it is designed to give certainty to a transaction which had been reduced to writing by protecting the parties against the doubtful veracity and the uncertain memory of interested witnesses.”

Id. (quoting Gajewski v. Bratcher, 221 N.W.2d 614, 626 (N.D.1974) (citations omitted) (emphasis in original)). We have held: “ ‘[w]here a written contract is complete in itself, is clear and unambiguous in its language and contains mutual contractual covenants agreed upon, such parts cannot be changed by parol testimony, nor new terms added thereto, in the absence of a clear showing of fraud, mistake or accident.’ ” Id. (quoting Larson v. Wood, 75 N.D. 9, 25 N.W.2d 100 (1946)).

[¶ 6] At trial, the Syversens argued a mistake was made in the drafting of the quitclaim deeds. The Syversens allege their children went to an attorney for help ■with estate planning for the Syversens. At the time, Vern Syversen suffered from the early stages of Alzheimer’s disease and the children wished to have the Syversens’ land transferred to protect it in the event Vern Syversen had to enter a nursing home. After reviewing options with the drafting attorney, the children decided the parents should transfer the land to them, and in return, the parents would receive income earned from the land.

[¶ 7] The Syversens presented, and the trial court received, evidence supporting their argument of mistake. The drafting attorney testified the Syversens understood that by signing the quitclaim deeds, the land would be transferred to their children and the Syversens would receive income from the land in return. Lois Sy-versen testified she understood she and Vern would receive rental money from the land from their children in return for transferring the land. She also testified she would not have signed the quitclaim deeds if she had known there was any chance they would not receive the income. The Syversens argued the quitclaim deeds, as transferred, did not reflect their intentions and therefore, a mistake was made and the deeds should be reformed.

[¶ 8] The trial court determined the quitclaim deeds were unambiguous and the parol evidence rule therefore precluded the consideration of extrinsic evidence, including that of mistake. That conclusion was erroneous. However, as we have stated, a trial court’s decision will not be set aside merely because the court applied an incorrect reason, if the result is the same under the correct law and reasoning. See, e.g., Des Lacs Valley Land Corp., 2001 ND 17, ¶ 11, 621 N.W.2d 860. Here, although the trial court erred in determining the parol evidence rule precludes consideration of extrinsic evidence of mistake, the trial court also, as an alternative ruling, found that if all the submitted evidence were considered, the Syversens had failed to prove a mistake had been made.

Ill

[¶ 9] The Syversens argue the trial court also erred when it considered the evidence and found a mistake had not been made in the drafting of the quitclaim deed. A trial court’s findings of fact are reviewed under the clearly erroneous standard of review. N.D.R.Civ.P. 52(a); Webster v. Regan, 2000 ND 89, ¶ 14, 609 N.W.2d 733. A trial court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support its finding, or if, although there is some evidence to support its finding, on the entire record, a reviewing court is left with a definite and firm conviction a mistake as been made. Webster, 2000 ND 89, at ¶ 14, 609 N.W.2d 733.

[¶ 10] The record contains evidence the Syversens intended to transfer their land in fee simple and that they did not want to reserve any interest in the land. Lois Syversen testified she and Vern asked their children to see a lawyer about transferring the land at issue. The drafting attorney testified that when he met with the children, he explained to them that reserving a life estate in the parents might cause difficulty with Medicaid. Lois Sy-versen testified she understood what a life estate was. She also testified that after receiving the quitclaim deeds from the drafting attorney, the Syversens showed the deeds to their children so they would know what the Syversens were doing with the land. The quitclaim deeds as transferred did not retain a life estate in the Syversens. Because there is evidence the Syversens intended to transfer their land in fee simple, the trial court’s finding there was no mistake is not clearly erroneous.

IV

[¶ 11] The Syversens argue the trial court erred in finding that no constructive trust arose in their favor. The trial court concluded no constructive trust arose in the Syversens’ favor because they suffered no impoverishment, and therefore there was no unjust enrichment to bring about a constructive trust. As we recently stated in Spagnolia v. Monasky, 2003 ND 65, ¶ 16, 660 N.W.2d 223:

“A constructive trust has two essential elements: unjust enrichment and a confidential relationship.” Schroeder v. Buchholz, 2001 ND 36, ¶ 8, 622 N.W.2d 202. “A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another.” Id. at ¶ 9 (quoting Estate of Wenzel-Mosset by Gaukler v. Nickels, 1998 ND 16, ¶ 25, 575 N.W.2d 425 (N.D.1998) (citations omitted))“The existence of a confidential relationship and the existence of an implied trust are questions of fact.” Id. at ¶ 7. “Unjust enrichment is an equitable doctrine, applied in the absence of an express or implied contract, to prevent a person from being unjustly enriched at the expense of another.” Apache Corp. v. MDU Resources Group, Inc., 1999 ND 247, ¶ 13, 603 N.W.2d 891 (quoting Zuger v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 135, 138 (N.D.1992)). “The determination of unjust enrichment is a conclusion of law and is fully reviewable on appeal.” BTA Oil Producers v. MDU Resources Group, Inc., 2002 ND 55, ¶ 37, 642 N.W.2d 873, cert. denied, - U.S. -, 123 S.Ct. 436, 154 L.Ed.2d 331 (2002).

One of the elements necessary to prove unjust enrichment is impoverishment. Schroeder v. Buchholz, 2001 ND 36, ¶ 15, 622 N.W.2d 202. Spagnolia, 2003 ND 65, at ¶ 16, 660 N.W.2d 223, continues:

Parties to a contract have a “remedy at law for enforcement of the contract or damages flowing from any contractual breach.” Id. at ¶ 18. “[T]here can be no implied-in-law contract” to prevent unjust enrichment “when there is an express contract between the parties relative to the same subject matter. BTA Oil Producers, at ¶ 37. “ ‘[W]here, as here, the parties have voluntarily entered into an express -written contract which defines the rights of each, unjust enrichment is a non sequitur.’ ” Id. at ¶ 38 (quoting JN Exploration & Prod. v. Western Gas Res., Inc., 153 F.3d 906, 910 (8th Cir.1998)).

The Syversens were not impoverished by the transfer of the land as deeded because they put themselves in a financial position in which they would benefit under Medicaid if Vern Syversen had to enter a nursing home. As the trial court determined, the Syversens also had an express oral contract with their children providing that the children were to pay them rental income from the land. We conclude the Syversens were not impoverished and no constructive trust arose from the transaction. The trial court’s finding that no constructive trust arose in the Syversens’ favor is supported by the evidence and is not clearly erroneous.

V

[¶ 12] The trial court’s judgment and its denial of the Syversens’ motion to alter or amend the judgment are affirmed.

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