author: KAPSNER, Justice. MARING, Justice,

text:
    2003 ND 42
    Douglas GRONFUR, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION FUND, Appellee, and Halliburton Energy Services, Inc., Respondent.
    No. 20020250.
    Supreme Court of North Dakota.
    March 26, 2003.

      Kevin J. Chapman, Chapman Law Office, Williston, ND, for claimant and appellant.
    Harry Malcolm Pippin, Special Assistant Attorney Gfeneral, Williston, ND, for ap-pellee.
   KAPSNER, Justice.

. [¶ 1] Douglas Gronfur appealed from a district court judgment affirming an order of the North Dakota Workers Compensation Bureau denying Gronfur’s reapplication for temporary total disability benefits. We hold the Bureau properly interpreted and applied N.D.C.C. § 65-05-08(1) in concluding Gronfur did not demonstrate an actual wage loss, and we affirm the denial of Gronfur’s request for additional benefits.

I

[¶ 2] Gronfur injured his back in July 1996 when he lifted an eight foot section of two inch iron while working as a service operator for Halliburton Energy Services in -Williston. Gronfur promptly filed a claim for workers compensation benefits, and the Bureau accepted liability for the injury, paid his medical expenses, and began paying him temporary total disability benefits. On October 8, 1997, the Bureau issued an order discontinuing Gronfur’s temporary total disability payments but awarding him temporary partial disability benefits, based upon its finding that Gron-fur was presently capable of performing light duty work. The Bureau found Gron-fur’s preinjury earning capacity was $614.00 per week but with his work injury medical limitations he had an earning capacity of only $340.70 per week. Based upon those findings, the Bureau calculated Gronfur’s partial disability benefit under N.D.C.C. § 65-05-10, and began paying him “$889.52 every 28 days.” Gronfur now claims that he was not capable in 1997 of performing light duty work. However, he concedes that he neither contested that finding by the Bureau nor appealed the October 8, 1997, order awarding him partial disability benefits.

[¶3] On February 23, 2000, Gronfur filed a reapplication for temporary total disability benefits under N.D.C.C. § 65-05-08(1), asserting that the medical condition of his back had become worse, with symptoms of extreme muscle spasms, pain, numbness, and swelling. His doctors advised that he undergo spinal fusion surgery to relieve his symptoms. Gronfur agreed to have the surgery. In his reap-plieation for disability benefits Gronfur asserted that as a result of his worsened medical condition he was not capable of performing any work while recuperating from the surgery and that in the future he would be capable, at most, of performing only sedentary work. The Bureau approved payment of Gronfur’s spinal surgery, concluding Gronfur had sustained a significant change, or worsening, of his compensable medical condition. However, in an order issued April 28, 2000, the Bureau denied Gronfur’s reapplication for disability benefits upon finding “[t]he greater weight of the evidence does not indicate claimant suffered an actual wage loss caused by a significant change in his compensable medical condition because he has not worked since July 26, 1996, and was unemployed and not earning any wages at the time of his February 23, 2000, reapplication.” Based upon this finding, the Bureau concluded Gronfur “has not proven actual wage loss caused by a significant change in his compensable medical condition in connection with his February 23, 2000, application.” Gronfur appealed to the district court from the Bureau’s denial of his reapplication for disability benefits, and the district court upheld the Bureau’s decision.

II

[¶ 4] On appeal, Gronfur asserts the Bureau misinterpreted and misapplied N.D.C.C. § 65-05-08(1) in denying him additional benefits on the ground that he failed to demonstrate an actual wage loss.

[¶ 5] Under N.D.C.C. § 28-32-46 the district court must affirm an administrative agency order unless it finds any of the following:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal, this Court under N.D.C.C. § 28-32-49 reviews the judgment of the district court in the same manner. See Grand Forks Professional Baseball, Inc. v. N.D. Workers Comp. Bureau, 2002 ND 204, ¶ 8, 654 N.W.2d 426. In evaluating an administrative agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency, but determine only if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Boger v. N.D. Workers Comp. Bureau, 1999 ND 192, ¶ 12, 600 N.W.2d 877. The interpretation of a statute is a question of law which is fully reviewable by this Court on appeal. Jensen v. N.D. Workers Comp. Bureau, 1997 ND 107, ¶ 9, 563 N.W.2d 112. If an appeal presents only a question of law, this Court affirms the Bureau’s order unless it is not in accordance with the law. Id.

[¶ 6] Under N.D.C.C. § 65-01-11 a workers compensation claimant must establish by a preponderance of the evidence his or her right to receive benefits from the fund. Boger, 1999 ND 192, ¶ 11, 600 N.W.2d 877. A claimant must, therefore, prove by a preponderance of the evidence that he is eligible for temporary disability benefits. See Rooks v. N.D. Workers’ Comp. Bureau, 506 N.W.2d 78, 80 (N.D.1993). When a claimant has received disability benefits, those benefits have been discontinued, and the claimant then sustains a significant change in medical condition which causes further wage loss, the claimant may reapply to “begin payment again” under N.D.C.C. § 65-05-08(1). See Baier v. N.D. Workers Comp. Bureau, 2000 ND 78, ¶¶ 11, 12, 609 N.W.2d 722.

[¶ 7] Section 65-05-08(1), N.D.C.C., provides, in relevant part:

If the period of disability is five consecutive calendar days’ duration or longer, benefits must be paid for the period of disability provided that:
1. When disability benefits are discontinued, the bureau may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the bureau. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and
c.The employee has not retired or voluntarily withdrawn from the job market as' defined in section 65-05-09.3.

[¶ 8] The Bureau found Gronfur had met his burden of proving he sustained a significant change in his compensable medical condition. The deterioration of Gron-fur’s back condition required him to undergo spinal fusion surgery and the Bureau approved payment for those medical costs. However, the Bureau found Gronfur was not entitled to additional disability benefits, because Gronfur failed to prove that he had sustained an “actual wage loss” under N.D.C.C. § 65-05-08(l)(b). That determination by the Bureau involved a finding of fact and an interpretation and application of the statute. The relevant finding was that Gronfur “has not worked since July 26, 1996, and was unemployed and not earning any wages at the time of his February 23, 2000 reapplication.” Gronfur does not dispute the finding. He concedes that after his total disability benefits were terminated and he was awarded partial disability benefits on October 8, 1997, he never sought employment of any type. He also concedes that he was not gainfully employed when he filed his reapplication for benefits.

[¶ 9] Gronfur’s objection to the Bureau’s decision is that the Bureau has construed N.D.C.C. § 65-05-08(l)(b) as requiring him to prove he has sustained an actual wage loss caused by his changed condition by showing he was employed and earning wages prior to the change which left him unable to continue working. Gronfur asserts that because his current medical condition limits him to either doing no work, or at most sedentary work, he has experienced a loss of earning capacity and that loss should satisfy the requirements of the statute and qualify him to receive either total disability benefits or an increase in his partial disability payments.

[¶ 10] Our primary goal of statutory construction is to ascertain the intent of the legislature. Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721. In ascertaining the legislature’s intent, we first look at the plain language of the statute and give every word of the statute its ordinary meaning. Id. Words used in a statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. If a statute is clear and unambiguous we do not disregard the letter of the statute under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05; Grand Forks Professional Baseball, Inc. v. N.D. Workers Comp. Bureau, 2002 ND 204, ¶ 10, 654 N.W.2d 426.

[¶ 11] To begin payment of previously discontinued disability benefits a claimant must prove under N.D.C.C. § 65-05-08(l)(b) that the claimant has sustained “an actual wage loss caused by the significant change in the compensable medical condition.” We conclude this provision is clear and unambiguous.

[¶ 12] Although the legislature has not defined the term “actual wage loss,” the term wages is defined under N.D.C.C. § 65-01-02(31):

‘Wages” means an employee’s remuneration from all employment reportable to the internal revenue service as earned income for federal income tax purposes.

Using that definition of wages in the context of “actual wage loss” under N.D.C.C. § 65-05-08(l)(b), the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the internal revenue service as earned income for federal income tax purposes. The requirement is clear. To demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages.

[¶ 13] Gronfur’s attempt to equate actual wages with earning capacity is misplaced. The distinction between those terms is clearly recognized in workers compensation law as explained in 4 Larson’s Workers’ Compensation Law § 81.01, at p. 81-2:

Degree of disability is calculated under most acts by comparing actual earnings before the injury with earning capacity after the injury.
It is at once apparent that the two items in the comparison are not quite the same. Actual earnings are a relatively concrete quantity.... Earning capacity, however, is a more theoretical concept. It obviously does not mean actual earnings, since the legislature deliberately chose a different phrase for the post-injury earnings factor.

See also Shiek, 2002 ND 85, ¶ 15, 643 N.W.2d 721 (noting the definition of disability is broader than lost wages, it means loss of earning capacity); Business Ins. Co. v. BFI Waste Systems of North America, Inc., 23 P.3d 1261, 1265 (Colo.App.2001) (recognizing distinction between “actual wage loss” and “loss of future earning capacity”); Ruff v. Labor and Industry Review Comm’n, 159 Wis.2d 239, 464 N.W.2d 56, 58 (Ct.App.1990) (applying statutory scheme distinguishing between “actual wage loss” and “loss of earning capacity”);’ Gobler v. Auto Owners Ins. Co., 139 Mich.App. 768, 362 N.W.2d 881, 885 (1984) (receipt of survivor benefits from no-fault auto insurer required proof of “actual loss of wages” as opposed to “loss of earning capacity”).

[¶ 14] The facts of this case point out the inconsistency of using “actual wage loss caused by a significant change in the compensable medical condition” as the basis for reapplying for disability benefits. Disability benefits are a substitute for loss of earning capacity. See N.D.C.C. § 65-01-02(15); 65-05-10; Wright v. N.D. Workers Comp. Bureau, 2001 ND 72, ¶ 27, 625 N.W.2d 256. Gronfur has already established a loss of earning capacity. Further, the Bureau accepts the fact that the medical condition creating his disability has substantially worsened. While the legislature could have made diminution of earning capacity as a result of a worsening medical condition the standard by which a claimant could restart discontinued benefits under N.D.C.C. § 65-05-08(l)(b), it did not do so. Rather, the legislature clearly made proof of actual wage loss as a result of the worsening medical condition the requirement for restarting previously discontinued disability benefits.

Ill

[¶ 15] We conclude the Bureau interpreted and applied N.D.C.C. § 65-05-08(1) in accordance with the law. Gronfur, by choosing not to seek employment and by not earning employment wages when he sustained a change in his compensable medical condition, failed to incur an actual wage loss as a result of the change in his medical condition. Gronfur was unable, therefore, to prove the actual wage loss which is a prerequisite to reinstating discontinued disability benefits under the statute. We, therefore, affirm the district court judgment upholding the Bureau’s order denying Gronfur’s reapplication for disability benefits.

[¶ 16] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, J, concur.

MARING, Justice,

dissenting.

[¶ 17] I do not agree with the majority opinion, which concludes that in order to successfully reapply for disability benefits an employee must first prove “he was earning wages from employment when the change in his medical condition occurred. ...” Not even the Workers Compensation Bureau has taken this position. In this case, the Hearing Officer concluded not only that Gronfur had not been working, but that he did not “actively seek employment within the determined activity and work restrictions ... contrary to [N.D.C.C.] § 65-05.1-04 and § 65-05-08(7).” The Bureau adopted the Hearing Officer’s findings of fact and conclusions of law. The Bureau specifically argues on appeal that their interpretation of “actual wage loss” is consistent with chapter 65-05.1 on rehabilitative services, which requires the employee to make a good faith work trial or work search. N.D.C.C. § 65-05.1-04(1) and (4). The Bureau also points to N.D.C.C. § 65-05-08(6):

It is the burden of the employee to show that the inability to obtain employment or to earn as much as the employee earned at the time of injury is due to physical limitation related to the injury, and that any wage loss claimed is the result of the compensable injury.

Therefore, “actual wage loss” can be established by showing an inability to obtain employment. The Bureau takes the position that this inability to obtain employment is proven by a job search and evidence of rejection for jobs based on the physical impairment caused by the work injury. I am at a loss as to why “an inability to obtain employment” cannot be proven by medical evidence that the employee is totally disabled from any work as a result of the work injury. Such is the case here from April 14, 2000, through October 5, 2000.

[¶ 18] Finally, there is nothing in the legislative history of Senate Bill 2206 (1991) that I can find to explain why the legislature amended N.D.C.C. § 65-05-08, adding the requirement of a finding of “actual wage loss” or what it means. Section 65-01-02(15), N.D.C.C., defines “disability” as “loss of earnings capacity and may be permanent total, temporary total, or partial.” As previously noted, to receive disability benefits, the employee must show a physical limitation related to the work injury that caused the employee to be unable to obtain employment or “to earn as much as the employee earned at the time of injury” and that the wage loss is the result of the injury. N.D.C.C. § 65-05-08(6). Under N.D.C.C. § 65-05-09(1), where the employee suffers disability but is able to return to employment for twelve consecutive months, temporary total or permanent total disability benefits are based on the wage in effect at the time the disability recurs or on the wage the employee received prior to the injury, whichever is highest. Partial disability benefits are based on the “difference between the injured employee’s average weekly wages before the injury and the employee’s wage earning capacity after the injury in the same or another employment.” N.D.C.C. § 65-05-10. The employee’s earning capacity for the purpose of calculating partial disability benefits “may be established by expert vocational evidence of a capacity to earn.” N.D.C.C. § 65-05-10(3). Whether claiming temporary total, permanent total, or partial disability benefits, the employee’s pre-injury wage is utilized. Gronfur proved his pre-injury wage. In its Order of October 8, 1997, the Bureau concluded Gronfur’s average weekly wage was $614.00 at the time of his injury. The Bureau concluded he was entitled to partial benefits due to his injury and that he had a retained earnings capacity of $340.70 per week.

[¶ 19] It does not seem logical to me that an employee who is medically incapable of working at all for a period of time due to a worsening of his work injury is not entitled to temporary total disability benefits. Although I cannot equate “loss of retained earnings capacity” with “actual wage loss,” I am of the opinion that “actual wage loss” can be proven by showing “an inability to obtain employment,” which in turn can be proven by medical evidence that the employee is totally disabled from performing any work.

[¶ 20] I, therefore, dissent and would reverse the denial of temporary total disability benefits from April 14, 2000, through October 5, 2000.

[¶ 21] WILLIAM A. NEUMANN, J„ concurs.

      . Although Gronfur’s total disability payments where discontinued in 1997 he continued to receive partial disability payments. When Gronfur's medical condition became worse he filed a reapplication for total disability benefits under N.D.C.C. § 65-05-08(1). Neither party has questioned the applicability of that statute to this situation. The parties are in agreement the statute applies and Gronfur properly made reapplication for total disability benefits under the statute because his total disability benefits had been discontinued. Consequently, the issue of whether N.D.C.C. § 65-05-08(1) is applicable when a claimant continues to receive one type of disability benefit while another type has been discontinued has not been raised by either party and we do not address it in this case.

      . Gronfur concedes that, after he was awarded partial disability benefits, he made no attempt to find employment with the restrictions recognized by the Bureau’s findings he was capable of light duty work. Consequently, this opinion does not address the possibility that an actual wage loss may be shown by a claimant’s unsuccessful diligent efforts to obtain wages from employment.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2003 ND 45
    Douglas B. MORRIS, Petitioner and Appellee v. JOB SERVICE NORTH DAKOTA, Respondent and Appellant.
    No. 20020258.
    Supreme Court of North Dakota.
    March 26, 2003.

      Constance N. Hofland (argued) and Patrick J. Ward (on brief), Zuger Kirmis & Smith, Bismarck, ND, for petitioner and appellee.
    Kevin McCabe (argued), Assistant Attorney General, and Douglas A. Bahr (appeared), Solicitor General, Attorney General’s Office, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] Job Service North Dakota appealed from a district court order reversing its decision disqualifying Douglas B. Morris from unemployment benefits. We conclude Job Service correctly ruled that Morris’s past employers contributed to his pension, thus disqualifying him from unemployment benefits under the circumstances. We reverse the district court order and reinstate Job Service’s decision.

I

[¶ 2] Morris, a member of Ironworkers Local Union No. 793, retired effective January 1, 2002, and began receiving $479 per week from the Ironworkers Union pension fund. On January 10, 2002, Morris filed a claim with Job Service and began receiving unemployment benefits in the amount of $290 per week. Job Service later found that the money in Morris’s pension was derived from direct contributions from his past employers, and, under N.D.C.C. § 52-06-02(15), deducted the amount of Morris’s pension from his job insurance benefits. Because the $479 weekly pension amount exceeded Morris’s $290 weekly unemployment benefits, Job Service ruled Morris was ineligible for any benefits.

[¶ 3] Morris requested reconsideration, and the matter was heard by an appeals referee. The appeals referee rejected Morris’s claim that the payments made to the pension fund were his contributions rather than his employers’ contributions, and affirmed Job Service’s initial determination. After Morris requested review, Job Service affirmed the appeals referee’s decision. Morris appealed, and the district court reversed Job Service’s decision disqualifying Morris from unemployment benefits, concluding the pension account was funded by employees’ money rather than by contributions from Morris’s employers.

[¶ 4] Morris’s appeal from Job Service’s decision to the district court was timely under N.D.C.C. § 52-06-27. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 52-06-27. Job Service’s appeal to this Court from the district court order, which was followed by a subsequently entered consistent judgment, see DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 1 n. 1, 636 N.W.2d 432, was timely under N.D.C.C. § 52-06-27 and N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 52-06-27.

II

[¶ 5] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from a district court ruling on an administrative decision, this Court reviews the agency order in the same manner. See N.D.C.C. § 28-82-49. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 8, 654 N.W.2d 426.

A

[¶ 6] The unemployment compensation program is a joint federal-state system in which each state receives federal funds and administers the program. See 26 U.S.C. §§ 3801 through 3311; N.D.C.C. chs. 52-02 through 52-08.1; Teledyne Columbia-Summerill Carnegie v. Unemployment Comp. Bd. of Review, 160 Pa. Cmwlth. 17, 634 A.2d 665, 669 (1993). Because some states allowed retired individuals who received social security or public or private pensions to receive unemployment insurance benefits even though they actually had withdrawn from the labor force, Congress in 1976 enacted the Federal Unemployment Tax Act, 26 U.S.C. § 3304(a)(15), to require all states to offset an individual’s unemployment insurance compensation by the amount of any public or private pension or other similar periodic retirement payment based on the individual’s previous employment. See Watkins v. Cantrell, 736 F.2d 933, 937 (4th Cir.1984). The pension offset requirements of the federal statute apply only if “such pension, retirement or retired pay, annuity, or similar payment is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law).” 26 U.S.C. § 3304(a)(15)(A)(i). The Act allows states to “provide for limitations on the amount of any such a reduction to take into account contributions made by the individual for the pension, retirement or retired pay, annuity, or other similar periodic payment.” 26 U.S.C. § 3304(a)(15)(B).

[¶ 7] In accordance with the federal requirements, the Legislature enacted N.D.C.C. § 52-06-02(15), which disqualifies an individual from receiving unemployment benefits “[f]or any week with respect to which an individual is receiving a pension ... under a plan maintained or contributed to by a base-period or chargeable employer, as determined under applicable law....” Under N.D.C.C. §52-06-02(15)(c), an individual’s weekly benefit amount willfcbe reduced “by no part of the pension if the entire contributions to the plan were provided by such individual, or by the individual and an employer, or any other person or organization, who is not a base-period or chargeable employer, as determined under applicable law....”

[¶ 8] Job Service does not contend Morris’s former employers “maintained” the Ironworkers Union pension fund. Morris does not contend his former employers were not “base-period or chargeable” employers under the law. Therefore, the issue in this case is whether Morris’s employers “contributed to” the pension fund, or whether Morris himself made the “entire contributions to the plan.” We agree with the court in Edinger v. State Employment Sec. Dep’t, 58 Wash.App. 525, 793 P.2d 1004, 1006 (1990), that this inquiry presents a mixed question of fact and law. Our review of a mixed question of fact and law involves a determination of whether the evidence supports the agency’s findings of fact and, in turn, whether those findings of fact sustain the agency’s conclusion. Hulse v. Job Service North Dakota, 492 N.W.2d 604, 606 (N.D.1992). In reviewing the agency’s findings of fact, we determine only whether a reasoning mind could have reasonably decided the findings of fact were proved by the weight of the evidence. Hjelden v. Job Service North Dakota, 1999 ND 234, ¶ 6, 603 N.W.2d 500.

B

[¶ 9] Although N.D.C.C. § 52-06-02(15) is silent on who has the burden of proof on the issue, we conclude the burden of establishing that a pension should not be used to offset unemployment benefits properly rests with the claimant. In Lambott v. Job Service North Dakota, 498 N.W.2d 157, 159 (N.D.1993), this Court held that a claimant has the burden of establishing good cause for faling to apply for or accept suitable work under N.D.C.C. § 52-06-02(3). We reasoned that “[t]his interpretation places the burden on the party with particular knowledge of the claimed underlying facts.” Lambott, 498 N.W.2d at 159. We said a contrary interpretation would lead to an absurd result because it “would place on Job Service the burden of proving the negative- — -the existence or non-existence of unknown facts.” Id. Likewise, in this case, the claimant is the party with the knowledge of whether the claimant or the claimant’s employer contributed to the claimant’s pension. See also Edinger, 793 P.2d at 1006 (noting Washington administrative rule creates presumption of no employee contribution unless claimant provides satisfactory evidence that such a contribution was made). Consequently, to avoid the offset provisions of N.D.C.C. § 52-06-02(15), Morris has the burden of establishing that he, rather than his employers, contributed to the pension.

C

[¶ 10] Morris presented evidence that the Ironworkers Union and Associated General Contractors of North Dakota signed an agreement on April 4, 2000, as the result of negotiations over increased wages for a three-year period. The negotiations involved only a total dollar amount, and the members of the Ironworkers Union annually decided how much of the negotiated wage increase would be distributed to their pension, annuity, union health and welfare fund, ironworkers trade association, apprenticeship fund, and union dues. Article X of the agreement provides in part:

The Employer agrees to contribute and forward every month, not later than the 15th day of the following month, hereinafter called the “due date”, such sums for pension, health and welfare, apprentice and I.I.I. funds, plus the deductions from the Basic Wage for working assessment contributions, for each hour worked by all employees covered by this Agreement. The Funds shall be known separately as the Iron Workers Local 793 Supplemental Pension Fund (Annuity Fund), Duluth Building Trades Welfare Fund, Iron Workers Local 793 Apprentice Fund, I.I.I. Fund, Working Assessment Fund and Iron Workers Local 793 Trust Funds under separate Trust Agreements to which the Employer is automatically bound. The Fund’s Trustees shall equally represent the Union and the Employer.

(Emphasis added).

[¶ 11] Gary Nelson, the business manager for the Ironworkers Union, testified as follows:

MR. CLINTON: Well, who funds the pension, I guess that’s what we’re looking at, Gary.
MR. NELSON: Well, the eont[r]actor does, but, but, we tell them how to fund it. That’s what I’m saying, you know, they give us only so much.
MR. CLINTON: Yeah, I understand, I understand that, but I’m more interested in terms of the funding. So, the funding for this benefits [sic] comes from the employer?
MR. NELSON: Cuz, we tell them, instead of putting a dollar in our own pocket and going out there and buying an IRA or 401K or something like that. We go, we, we’ve did it this way, we go out there and we tell the employer we’re gonna give you $.50 of that dollar back and you go ahead put that $.50 in the pension for us, you know, instead of us doing it on our own. So, what I’m trying to, trying to get across here is that the contractor don’t put that $.50 or that dollar or this $2.69 total that it is now, they don’t do that now because they are a good contractor, they are doing that because Local 793’s members ...
MR. CLINTON: They have to pay it.
MR. NELSON: requested them to do that.

Nelson also testified, “we directed to have the contractor put it in because of the tax savings....” Nelson explained that income taxes are not paid on the amount of the contributions at the time the contributions are made, but members are taxed when they begin drawing their pensions. Nelson also testified, “to get vested in Local 793 pension, you have to work a minimum of 400 hours a year for five years in a row.” Morris did not offer in evidence the Trust Agreement for the pension fund.

[¶ 12] Based on the language of the agreement stating that the “Employer agrees to contribute” to the pension fund, and Nelson’s testimony that the “contractor” funds the pension, Job Service determined that Morris’s employers, rather than Morris himself, contributed to the pension. Morris argues the Ironworkers Union’s request to the contractors, made independently of the collective bargaining agreement, to make payments from union members’ paychecks to the pension does not transform the contributions into employer contributions. Morris contends union members exercise complete discretion over the distribution of their wages, the employer acts as a mere conduit for the payments, and therefore union members contribute to the pension fund. Morris acknowledges, the discretion is exercised collectively, not by the members individually. Job Service’s decision rejecting this contention is consistent with the decisions of most courts that have addressed the issue. See Belmont v. State, Dep’t of Labor, 745 P.2d 75 (Alaska 1987); Cardarelli v. Dep’t of Employment and Training, 674 A.2d 398 (R.I.1996); Edinger, 58 Wash.App. 525, 793 P.2d 1004.

[¶ 13] In Belmont, 745 P.2d at 76, the court rejected a similar argument that “the entire amount of [a claimant’s] Teamsters pension is not attributable to his employer, because his employer contributed the funds to the union trust fund pursuant to direction from employees under a collective bargaining agreement.” The court relied on language from the pension trust handbook stating, “ ‘This Plan is funded through employer contributions, the amount of which is specified in the Collective Bargaining Agreements. Contributions by employees are not required nor are they permitted.’” Id. at 77. The court reasoned the offset statute “does not make a distinction for amounts contributed as pension plan payments pursuant to a collective bargaining agreement,” and “[t]here is no question that Belmont’s employer made the contributions to the pension plan.” Id. at 78.

[¶ 14] In Cardarelli, 674 A.2d at 401, the court rejected a claimant’s argument that employee contributions to a pension fund can include other benefits that were given up to fund a pension:

The record before us yields no evidence to show that the employee contributed to his pension fund in any way. The plaintiffs pension plan was a result of a collective-bargaining agreement between his union and a former employer. In the instant case, as the trial judge noted, the plaintiff did not make any direct, out-of-pocket contribution to his pension plan. The trial judge stated that “[a] worker who gives up other items, such as pay increases, improved health coverage, extra vacation days, can be deemed to have contributed to a pension.” We find that there was no direct evidence in the record to show that the plaintiff did in fact contribute to his pension fund. Given the lack of evidence, we are of the opinion that the trial judge erroneously concluded that the plaintiff had “contributed [to his pension] in that other benefits were given up to obtain the pension.”

The court refused to interpret the offset statute to include nonmonetary contributions to a pension fund. Id.

[¶ 15] In Edinger, 798 P.2d at 1007, the court ruled contributions to a union pension fund were made solely by the employer when the collective bargaining agreement provided the pension plan would be “employer funded,” the money flowed directly from the employer to the pension fund, and a letter from the trust manager stated, “direct contributions from the employee cannot be accepted.” The court said:

We note that as a result of the collective bargaining agreement, the employer does not pay unemployment insurance taxes on “non wage” moneys designated for pension funds. See RCW 50.04.330. Thus, more unemployment insurance tax is paid on behalf of nonunion workers whose entire compensation is taxable wages. This makes it more desirable for the employer to hire union workers. In addition, the union worker receives an income tax deferment on pension moneys.

Id. at 1007 n. 3.

[¶ 16] Morris relies on Ehman v. Unemployment Comp. Bd. of Review, 776 A.2d 1031 (Pa.Commw.Ct.2001), to support the argument that he, rather than his employers, contributed to the pension fund. In Ehman, a union and an employer agreed that a previously negotiated cost-of-living adjustment of $0.33 per hour, which union members began receiving effective May 1, 1999, would not be paid to the employees as wages after August 1, 1980, but part of it would be used to increase the pension benefits of past and future employees. Id. at 1033. The court ruled that “under the unusual facts of this case [the claimant] is properly regarded as having contributed to his pension.” Id. at 1036. The court reasoned:

[T]he situation was untypical ... [N]ever before and never since had the Union negotiated the give back of a particular adjustment with a set monetary value ... This was different from swapping inchoate proposals during bargaining. In a very real sense, Employer acted as a conduit to funnel money that otherwise would have gone directly into employee’s paychecks into the pension fund and other benefit programs, as is reflected in the Board’s language that a “reallocation of part of the monies claimant would have received was redirected to the Pension Plan.”

Id. (footnote omitted).

[¶ 17] We do not find Ehman persuasive under the circumstance of this case. The court in Ehman, 776 A.2d at 1033, emphasized “the unusual facts of this case ...” The court viewed the situation before it as “untypical” because the employees were already receiving the cost-of-living adjustment that was later redirected to the pension fund after new union negotiations. Id. at 1036. The court interpreted this situation as a “give back” of money the employees had actually been receiving as wages. Id. In this case, there is no similar “give back” of wages Morris had actually been receiving to fund the pension. If we were to apply the reasoning of Ehman to a typical collective bargaining situation, Job Service would be required to investigate the true nature of an employee’s wages beyond the actual terms of every collective bargaining agreement, because employers are assessed unemployment taxes based only on a percentage of “wages” paid to employees. N.D.C.C. § 52-04-03. We are not convinced the Ehman court would have ruled the employee contributed to his pension absent the actual “give back of a particular adjustment with a set monetary value.” Ehman, 776 A.2d at 1036.

[¶ 18] In any event, Ehman was recently overruled in United States Steel Corp. v. Unemployment Comp. Bd. of Review, 2003 WL 751184, *11, 2003 Pa. Commw. Lexis 110, *36 (Pa.Commw.Ct. March 6, 2003). The court in United States Steel said, “[biased upon review of the statutory framework, caselaw from other jurisdictions, as well as the record in the case sub judice, it is now apparent that the difficulties of proof in allowing pension offset decisions to be guided by collective bargaining negotiations renders the Eh-man doctrine unworkable from a practical standpoint.” Id. at *10, 2003 Pa. Commw. Lexis 110, *30. Because “the Ehman analysis, which requires this much in-depth consideration of the events occurring decades ago, is at odds with the purpose of the Law,” the court said, “we expressly overrule Ehman and now hold that, in order for employees to receive only a 50% pension offset, there must be a line-item deduction appearing on the pay stub or a specific provision in the pension plan indicating a contribution to the pension fund has been made by the employee.” Id. at **10, 11, 2003 Pa. Commw. Lexis 110, **31, 36.

[¶ 19] The agreement in this case states the “Employer agrees to contribute” to the pension. The union’s business manager testified the “contractor” funds the pension. The employers send the money to the pension fund. Section 52-06-02(15), N.D.C.C., does not distinguish between amounts contributed to a pension fund by an employer and amounts contributed to a pension fund by an employer under the directives of a collective bargaining agreement. Morris’s taxes are deferred on the amount contributed to the pension, and employees must work a minimum number of hours a year for five years in a row to vest in the pension fund. These circumstances are indicative of an employer-funded pension plan. Morris presented no evidence that he made any out-of-pocket contributions to the pension fund or that he was even allowed to do so. Although there is no evidence that Morris was prohibited from contributing to the pension, Morris chose not to offer in evidence the Trust Agreement for the pension fund. We view the absence of evidence prohibiting Morris from contributing to his pension as merely another factor for Job Service to consider along with all of the other evidence.

[¶ 20] We conclude a reasoning mind could have reasonably found from the weight of the evidence that Morris’s employers, rather than Morris himself, contributed to the union pension fund within the meaning of N.D.C.C. § 52-06-02(15), and this finding supports Job Service’s decision that Morris is disqualified from receiving unemployment benefits under the circumstances.

Ill

[¶ 21] We reverse the district court order and reinstate Job Service’s order.

[¶ 22] VANDEWALLE, C.J., and NEUMANN, MARING and KAPSNER, JJ., concur.


author: NEUMANN, Justice.

text:
    2003 ND 47
    Michael Paul WEAVER, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20020312.
    Supreme Court of North Dakota.
    March 26, 2003.

      Michael Paul Weaver, pro se, petitioner and appellant.
    Wade L. Webb, Assistant State’s Attorney, Fargo, ND, for respondent and appel-lee.
   NEUMANN, Justice.

[¶ 1] Michael Paul Weaver appeals the trial court’s summary disposition of his application for post-conviction relief. We affirm.

[¶ 2] On July 27, 2000, Weaver was charged with contact by bodily fluids, a class C felony, for urinating on a law enforcement officer. The trial court appointed James Lester to defend Weaver. On January 10, 2001, a jury convicted Weaver of contact by bodily fluids. In State v. Weaver, 2002 ND 4, 638 N.W.2d 30, Weaver appealed the jury’s verdict and this Court affirmed. Weaver filed a post-conviction application based on several grounds. On February 24, 2002, in its response and motion for summary disposition, the State argued Weaver’s allegations were unsupported by evidence and conclu-sory. Weaver replied to the State’s motion on March 11, 2002. On August 13, 2002, the trial court summarily dismissed Weaver’s petition because Weaver’s allegations were conclusory and because he failed to submit evidence supporting his allegations. Weaver appeals.

[¶ 3] Weaver argues his court-appointed attorney failed to provide him with reasonably effective assistance of counsel by failing to call witnesses and by refusing to actively investigate his case. We do not reach these issues, and we decline to discuss them today. The dispositive issue is whether a State’s motion for summary disposition in response to a petitioner’s application for post-conviction relief is sufficient to put the petitioner on his proof when the State’s motion points out the absence of supporting evidence in the petitioner’s application.

[¶ 4] While our case law requires a petitioner to establish a basis for post-conviction relief, a petitioner need not provide evidence or proof with an application. N.D.C.C. § 29-32.1-04. A petitioner meeting the required conditions and applying for post-conviction relief must “set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary.” N.D.C.C. § 29-32.1-04(1). “Affidavits or other material supporting the application may be attached, but are unnecessary.” N.D.C.C. § 29-32.1-04(2). The State may respond by answer or motion to the petitioner’s application, if at all, within thirty days. N.D.C.C. § 29-32.1-06(1). The State may move to dismiss the application if “it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings.” N.D.C.C. § 29-32.1-06(2). The trial court “shall take account of substance regardless of defects of form.” Id.

[¶ 5] The procedure followed for a motion for the summary disposition of a petition for post-conviction relief is similar to that followed for a motion for summary judgment. Bell v. State, 1998 ND 35, ¶ 10, 575 N.W.2d 211. Because the proceedings are civil in nature, “all rules and statutes applicable in civil proceedings ... are available to the parties.” Id. We review a summary denial of post-conviction relief as we would review an appeal from summary judgment. Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542. A trial court may summarily dismiss a petition for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The initial burden is on the movant, in this case the State, to show there is no genuine issue of material fact. Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995). If the moving party initially shows there is no genuine issue of material fact, the burden shifts to the non-movant to demonstrate there is a genuine issue of material fact. Owens, at ¶ 13. The movant for summary disposition of a petition for post-conviction relief bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1); see also First State Bank of Casselton v. McConnell, 410 N.W.2d 139, 140-41 (N.D.1987) (stating a movant for summary judgment has the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts and that he is entitled to judgment as a matter of law).

[¶ 6] The movant’s burden of showing there is no genuine issue of material fact may be discharged in some cases by pointing out to the trial court there is an “‘absence of evidence to support the nonmoving party’s case.’ ” Steinbach v. State, 2003 ND 46, _ N.W.2d _ (2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the movant shows the trial court there is no evidence in the record to support the petitioner’s claims (and therefore nothing the State can point to in support of its assertion there is no such evidence), the movant has put the petitioner on his proof and a minimal burden has shifted to the petitioner to provide some competent evidence to support his claim. Id. The State is permitted to shift the burden to the petitioner in this manner in those cases in which the State, as movant, would otherwise be required to prove the complete absence of any evidence supporting the petitioner’s claims and allegations in order to meet its initial burden of showing there are no contested issues of fact. Id. at ¶ 22 (Neumann, J., concurring). In other cases, the movant’s initial burden must still be met before the burden can be shifted to the petitioner to produce evidence prior to the hearing to support his claim. Id. A party opposing a motion for the summary disposition of an application is entitled to all reasonable inferences at the initial stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Owens, at ¶ 13.

[¶ 7] In the present case, in its response and motion for summary disposition, the State met its burden in showing there was no genuine issue of material fact. The State pointed out to the trial court there was simply an absence of evidence to support Weaver’s allegation he received ineffective assistance of counsel when his counsel failed to call witnesses he claimed were available to testify in his defense. Once the State did so, the burden shifted to Weaver to provide some competent evidence to support his allegation. The record shows Weaver failed to provide any evidence to the trial court to support his allegation of ineffective assistance of counsel in his response to the State’s motion for summary disposition of his application for post-conviction relief. Weaver filed an answer, but did not file an affidavit or other evidence in support of his claim. We conclude the State’s response and motion for summary disposition was sufficient to put Weaver on his proof, and Weaver then failed to provide proof of his allegations.

[¶ 8] The trial court’s summary disposition of Michael Weaver’s petition for post-conviction relief is therefore affirmed.

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

I concur in the result.

DALE Y. SANDSTROM, J.


author: KAPSNER, Justice. NEUMANN, Justice,

text:
    2003 ND 46
    Mark STEINBACH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20020322.
    Supreme Court of North Dakota.
    March 26, 2003.
    Rehearing Denied April 15, 2003.

      Steven M. Light, Larivee & Light, Grand Forks, ND, for petitioner and appellant.
    Travis S. Peterson, State’s Attorney, New Rockford, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Mark Steinbach appealed from a judgment summarily dismissing his application for post-conviction relief. We conclude the trial court did not err in summarily dismissing, under N.D.C.C. § 29-32.1-12, claims 1, 2, 3, 5, 6, 7, and 8 in Steinbach’s post-conviction relief application, or in summarily dismissing claim 4 for ineffective assistance of counsel when Steinbach was put to his proof and failed to provide any evidentiary support for his allegations. We affirm.

I

[¶ 2] In April 1997, a jury found Stein-bach guilty of murder, physical obstruction of a government function, and tampering with physical evidence. Steinbach was sentenced to life imprisonment, without the opportunity of parole. In May 1997, Steinbach appealed his conviction, arguing the trial court abused its discretion by allowing the State to introduce certain photographs of the victim; by allowing a coroner to testify as to the cause of the victim’s death when the coroner had no knowledge of the length of the shotgun that killed the victim; by denying Stein-bach’s motion for judgment of acquittal; by denying Steinbach’s motion for a new trial based upon newly discovered evidence; and by impermissibly considering acts of domestic violence perpetrated by Steinbach against the victim during sentencing. In State v. Steinbach, 1998 ND 18, 575 N.W.2d 193, we affirmed the judgment on all convictions and the order denying Steinbach’s motion for a new trial.

[¶ 3] In May 1999, Steinbach filed an application for post-conviction relief. The attorney filing Steinbach’s post-conviction relief application was not Steinbach’s trial attorney, but represented Steinbach in his direct appeal to this Court. In September 2001, Steinbach hired a different attorney to represent him. Steinbach’s application for post-conviction relief was dismissed without prejudice in April 2002 because Steinbach failed to comply with the deadline set in the scheduling order for filing his brief.

[¶ 4] In June 2002, Steinbaeh filed another application for post-convietion relief. In his application, Steinbaeh listed eight separate grounds for relief, including: (1) a reasonable likelihood the jury misunderstood the trial court’s jury instructions, particularly the instruction on proof beyond a reasonable doubt; (2) the trial court’s jury instruction regarding the presumption a witness told the truth conflicted with Steinbach’s presumption of innocence; (3) the trial court failed to instruct the jury on the effect of intoxication and culpability; (4) Steinbaeh received ineffective assistance of counsel; (5) the trial court abused its discretion during sentencing; (6) prosecutorial misconduct; (7) prevalent abuse of judicial discretion; (8) Steinbaeh was denied his right to review his presentence investigation report prior to sentencing. The trial court summarily dismissed Steinbach’s application for post-conviction relief, finding Steinbaeh failed to provide evidentiary support for claims 1, 2, 3, 5, 6, 7, and 8; and these claims were issues the applicant inexcusably failed to raise in a proceeding leading to judgment of conviction. The trial court dismissed claim 4, ineffective assistance of counsel, finding Steinbaeh failed to provide any evi-dentiary support demonstrating how Stein-bach’s trial counsel’s conduct fell below a standard of objective reasonableness and how Steinbaeh was prejudiced by his counsel’s conduct when Steinbaeh had the deposition of his trial counsel available to him. Steinbaeh appeals the trial court’s summary denial of his application for post-conviction relief.

II

[¶ 5] Steinbaeh argues the trial court erred when it determined Steinbaeh misused process, under N.D.C.C. ch. 29-32.1, by raising issues in his application for post-conviction relief which were not raised during the criminal trial, sentencing, and the subsequent appeal.

[¶ 6] The affirmative defense of misuse of process is set out in N.D.C.C. § 29-32.1-12(2):

2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

The State moved to dismiss Steinbach’s application for post-conviction relief under N.D.C.C. § 29-32.1-06(2), (3) which provides:

2. The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.
3. The following defenses may be raised by answer or motion:
a. The claim has been fully and finally determined in a previous proceeding in accordance with subsection 1 of section 29-32.1-12; or
b. The application constitutes misuse of process in accordance with subsection 2 of section 29-32.1-12.

[¶ 7] The district court, in summarily dismissing Steinbach’s post-conviction application, found that “[njone of the above issues [in claims 1, 2, 3, 5, 6, 7, and 8] were raised before the trial court, and Steinbaeh has shown no excuse for his failure to raise the issues.”

[¶ 8] In Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329, we held:

[Mjisuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings, see, e.g., State v. Willey [,] 381 N.W.2d 183 (N.D.1986); and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application, see, e.g., Silvesan v. State, 1999 ND 62[, 591 N.W.2d 131].

The claims in Steinbach’s application for post-conviction relief fall in the category of issues an applicant inexcusably failed to raise in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief. We agree with the trial court that Stein-bach has failed to present any excuse for his failure to raise and pursue claims 1, 2, 3, 5, 6, 7, and 8 in the criminal proceeding and on direct appeal. N.D.C.C. § 29-32.1-12(3). We conclude claims 1, 2, 3, 5, 6, 7, and 8 are barred by misuse of process under N.D.C.C. § 29-32.1-12.

Ill

[¶ 9] Steinbach argues the trial court erred in summarily dismissing his claim of ineffective assistance of counsel without an evidentiary hearing. Steinbach contends, because the trial court erroneously treated the State’s motion to dismiss as a motion for summary judgment, he was never adequately put “upon his proof’ or afforded an opportunity to submit evidence to support the claims asserted in his application for post-conviction relief.

[¶ 10] We have outlined our standard of review for summary denial of a post-conviction application:

Section 29-32.1-09(1), N.D.C.C., provides that a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Our review of a summary denial of a post-conviction application is like our review of an appeal from a summary judgment under Rule 56, N.D.R.Civ.P. The party opposing the motion is entitled to all reasonable inferences at the preliminary stages and is entitled to an eviden-tiary hearing if an inference raises a genuine issue of fact. Once the moving party has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists. The party resisting the motion may not merely rely on the pleadings or unsupported conclusory allegations; rather the party must present competent admissible evidence by affidavit or other comparable means.

Clark, at ¶ 5 (citing Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542).

[¶ 11] “The explicit purpose of the Uniform Post-Conviction Procedure Act[, N.D.C.C. ch. 29-32.1,] is to provide a method to develop a complete record to challenge a criminal conviction.” Wilson v. State, 1999 ND 222, ¶ 13, 603 N.W.2d 47 (citing State v. Bender, 1998 ND 72, ¶ 20, 576 N.W.2d 210). The Uniform Post-Conviction Procedure Act authorizes summary disposition “only when ‘there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’” Id. (quoting N.D.C.C. § 29-32.1-09(1)). We review a summary denial of a post-conviction application as we review an appeal from summary judgment under Rule 56, N.D.R.Civ.P. Hughes v. State, 2002 ND 28, ¶ 4, 639 N.W.2d 696.

[¶ 12] Although the party seeking a summary disposition bears the initial burden of showing there is no genuine issue of material fact, the United States Supreme Court has explained that “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmov-ing party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We addressed this difficulty of proving a negative in Black v. Abex Corp., 1999 ND 236, ¶ 19, 603 N.W.2d 182. In Black, we construed the showing required when a defendant moves for summary judgment seeking dismissal of the claims when there is no evidence to support an essential element of the plaintiffs claim:

If the record, after discovery, contains no evidence to support an essential element of the plaintiffs claim, there is no “evidence” the defendant can point to in support of its assertion there is no such evidence. In such a case the rule allows the defendant to put the plaintiff to its proof, without the necessity of a full trial, by merely “pointing out” to the trial court the absence of evidence to support the plaintiffs cáse.

Black, at ¶ 19 (citing Celotex, at 325, 106 S.Ct. 2548; Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995); 11 James Wm. Moore et al., Moore’s Federal Practice ¶ 56.13[1] (3d ed.1999)). This rule serves the policy underpinning Rule 56, N.D.R.Civ.P., “by allowing the defendant to put the plaintiff to its proof when the record contains no evidence on an essential element of the plaintiffs claim.” Black, at ¶ 20.

[¶ 13] In this case, Steinbach applied for post-conviction relief and included allegations of ineffective assistance of counsel as a ground for relief. Steinbach’s post-conviction application asserts his counsel was ineffective in the following regards:

a. Talking to, discussing with, or otherwise interviewing applicant about the charges against applicant and applicant’s version of events;
b. Preparing applicant to testify;
c. Talking to, discussing with, or otherwise interviewing defense witnesses;
d. Preparing defense witnesses to testify;
e. Preparing for jury trial, including voir dire, opening statement, witness questioning, closing argument, jury instructions, and generally presenting applicant’s version of events and defense;
f. Relying only on the prosecution’s case and witnesses, and simply attempting to defend against that, without presenting a defense case;
g. Deposing State’s witnesses and thereby preparing for trial;
h. Providing to applicant copies of discovery provided by the State, including statements made by State’s witnesses, and thereby not properly preparing applicant’s case for trial;
i. Waiving a record for voir dire (Tr. Jury Trial 2; 52, lines 7-8);
j. Protecting applicant’s right with respect to a change of venue;
k. Failing to give an opening statement at the beginning of trial (Tr. Jury Trial 65);
l. Failing to give an effective opening statement (Tr. Jury Trial 335-341);
m. Failing to properly advise applicant on, or to request, lesser included offenses, including the lesser included offenses of class A felony murder, manslaughter and negligent homicide (Tr. Jury Trial 3, 46, 489-490);
n. Not otherwise consulting with applicant on, or preparing, applicant’s defenses;
o. Failing to raise in the trial court or in the direct appeal all the grounds for relief in this application;
p. Defense counsel failed to provide effective assistance of counsel by failing to realize N.D.C.C. 12.1-08-01 is inapplicable to the facts of the present case as a matter of law;
q. Defense counsel failed to provide effective assistance of counsel of both trial and appeals by not demanding that the prosecution prove each element of N.D.C.C. 12.1-16-01 seperatly [sic] and beyond a reasonable doubt;
r. Defense counsel failed to provide effective assistance of counsel by not objecting to the use of piling inference upon inference from circumstantial and direct evidence, by the prosecutor, and the jury, to obtain a conviction under N.D.C.C. 12.1-16-01.

[¶ 14] The State moved to dismiss the post-conviction application, contending the claim of ineffective assistance of counsel “fail[s] on the merits due to the failure of Steinbach to show how his counsel’s conduct fell below a standard of objective reasonableness and to demonstrate that he was prejudiced by his counsel’s conduct.” Although Steinbach contends “the wording of the [State’s] motion did not adequately put [Steinbach] on notice that the State was seeking summary judgment of the application for relief,” Steinbach responded to the State’s motion to dismiss, stating: “[c]ounsel’s representation of the applicant was unreasonable under professional prevailing norms and the outcome would have been different if the representation had been performed without counsel’s unprofessional errors.... Counsel’s assistance was ‘grossly incompetent’ and applicant should be allowed an evidentiary hearing.” The trial court, in its memorandum opinion, stated “when a motion for summary disposition has been made (as in the instant case), the applicant (Mr. Steinbach) is put to the proof of providing sufficient evidentiary support for the allegations of the petition.... Mr. Steinbach responded to the State’s motion for summary disposition but did not provide any supplemental documents which have provided any further evidentiary support for his allegation of ineffective assistance of counsel.” The trial court concluded summary disposition of Steinbach’s ineffective assistance of counsel claim was appropriate.

[¶ 15] On a claim of ineffective assistance of counsel, the defendant has the ultimate burden of proving counsel’s performance was deficient and the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hughes, at ¶ 5. “The second prong requires the defendant to prove that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hughes, at ¶ 5. Although we have stated claims of ineffective assistance of counsel are ordinarily unsuited to summary disposition without an evidentiary hearing, we have upheld summary denials of post-conviction relief when the applicants were put to their proof, and summary disposition occurred after the applicants then failed to provide some evidentiary support for their allegations. See Bell v. State, 1998 ND 35, ¶¶ 36-37, 575 N.W.2d 211; Hopfauf v. State, 1998 ND 30, ¶ 8, 575 N.W.2d 646, overruled on other grounds, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704.

[¶ 16] Steinbach relies on this Court’s decision in Whiteman to support his request for an evidentiary hearing. 2002 ND 77, 643 N.W.2d 704. Whiteman dealt with the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and the narrow issue of an ineffective-assistance-of-counsel claim based on counsel’s failure to file a direct appeal in a criminal case despite instructions to counsel from the client to appeal. In White-man, we addressed Whiteman’s request for an evidentiary hearing based on his post-conviction relief claim of ineffective assistance of counsel; Whiteman claimed his attorney was ineffective for failing to follow Whiteman’s instructions to appeal his criminal conviction. Id. at ¶ 3. The trial court granted the State’s motion for summary disposition, finding Whiteman had failed to present sufficient evidence showing a genuine issue of material fact concerning his ineffective assistance of counsel claim. We reversed, concluding Whiteman was entitled to an evidentiary hearing on his ineffective assistance of counsel claim because Whiteman’s affidavit and other material submitted to the trial court created a genuine issue of material fact while the State pointed to nothing in the record that conclusively contradicted Whiteman’s allegations. Id. at ¶22. In addition, under Flores-Ortega, prejudice under the second Strickland prong could be presumed from the absence of an appeal. Steinbach’s reliance on Whiteman is misplaced because Steinbach neither claims ineffective assistance of counsel for failing to file a direct appeal nor did Stein-bach present any evidence to the trial court to show there is a genuine issue of material fact warranting an evidentiary hearing.

[¶ 17] Once the State moves for summary disposition pointing out the absence of supporting evidence, the defendant is put on notice of the issue and a minimal burden shifts to the defendant to provide some competent evidence to support his claim. If competent evidence is provided, the defendant is entitled to an evidentiary hearing. From our review of the record in this case, Steinbach did not provide any evidence to support his allegations of ineffective assistance of counsel after the State moved to dismiss under N.D.C.C. §§ 29-32.1-06 and 29-32.1-12. There was a transcript of the original trial and a deposition of the trial attorney; neither was referred to nor was an affidavit of the defendant submitted in support of his claim. Steinbach cited pages from the jury trial transcript after four of the allegations listed under his claim of ineffective assistance of counsel; however, we have examined those pages and they merely point out when the issue occurred at trial. Steinbach’s references to the jury trial transcript are insufficient because he has failed to point out how counsel was ineffective and it is not obvious from the record that the representation was inadequate. See State v. Norman, 507 N.W.2d 522, 525 (N.D.1993).

[¶ 18] Although Steinbach argues he was never put to his proof or given an opportunity to present evidence, the burden of showing some competent evidence existed to support his claim shifted to Steinbach when the State pointed out to the trial court the absence of evidentiary support for the essential elements of Stein-bach’s ineffective assistance of counsel claim. The State’s motion to dismiss and supporting brief, asserting Steinbach’s claim of ineffective assistance of counsel fails on the merits, was adequate to put Steinbach on notice he needed to show evidence existed to support his allegations. Once the burden was shifted to Steinbach, he cannot merely rely on the pleadings or unsupported conclusory allegations, but must4 present some competent admissible evidence by affidavit or other comparable means. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. Steinbach’s response to the State’s motion to dismiss asserts, without providing any evidence, “[Counsel’s assistance was ‘grossly incompetent’ and applicant should be allowed an evidentiary hearing.” Steinbach failed to provide any evidence showing how counsel’s performance was ineffective after he was put to his proof and given an opportunity to provide some evidence. The trial court did not err in summarily dismissing Stein-bach’s ineffective assistance of counsel claim.

IV

[¶ 19] We conclude Steinbach failed to show any excuse for failing to raise at the criminal trial and on direct appeal claims 1, 2, 3, 5, 6, 7, and 8 of his post-conviction relief application; therefore, these claims are barred by misuse of process under N.D.C.C. § 29-32.1-12. We also conclude the trial court did not err in summarily dismissing claim 4, ineffective assistance of counsel, when Steinbach was put to his proof and then failed to satisfy his burden to present some competent admissible evidence to support his allegations. We affirm the judgment of the trial court summarily dismissing Steinbach’s post-conviction relief application.

[¶ 20] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, J., concur.

NEUMANN, Justice,

concurring.

[¶ 21] I concur in the majority’s opinion in this case. I write separately regarding part III of that opinion because I fear it may be read too broadly by some prosecutors and courts.

[¶22] As I read it, part III of this opinion permits the State to use an unsupported motion for summary disposition to shift the pre-hearing evidentiary burden to the post-conviction applicant only in those cases in which the State would otherwise be required to prove the absence of any evidence supporting the applicant’s claims and allegations. This does not mean that in every post-conviction case the State can require the applicant to prove up his case prior to any hearing merely by moving for summary disposition and asserting there is no evidence to support the applicant’s claims. It applies only in those cases in which the State would be required to prove a negative — the absence of any supporting evidence in the record — in order to meet its initial burden as movant of showing there are no contested issues of fact. In all other cases, that initial burden must still be met by the movant before the burden can be shifted to the applicant to produce evidence prior to hearing to support his claims. With that understanding of part III, I concur in the majority opinion.

[¶ 23] MARY MUEHLEN MARING, J., concur.

      . Steinbach's notice of appeal states the appeal is "from the MEMORANDUM OPINION DENYING PETITIONER’S APPLICATION FOR POST CONVICTION RELIEF.” When Steinbach filed his notice of appeal, judgment had not been entered. We have held "an attempted appeal from an order for judgment or a memorandum decision will be treated as an appeal from a subsequently-entered consistent judgment, if one exists.” Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987). Because a judgment consistent with the trial court’s memorandum opinion was subsequently entered, we consider this an appeal from the judgment. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 6 n. 2, 610 N.W.2d 53.

      . See N.D.C.C. § 29-32.1-07(2).