text:
    2006 ND 117
    Rhonda HAUGEN, Plaintiff and Appellant v. BioLIFE PLASMA SERVICES, f/d/b/a Community Bio-Resources, Defendant and Appellee, and Baxter Healthcare Corp., Defendant.
    No. 20050310.
    Supreme Court of North Dakota.
    June 1, 2006.

    Robert V. Bolinske, Bismarck, ND, for plaintiff and appellant.

      Jerome C. Kettleson, Pearce & Durick, Bismarck, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Rhonda Haugen appeals from a judgment dismissing her personal injury lawsuit. The judgment was entered after a jury found BioLife Plasma Services was not negligent. Haugen contends the district court erred when it did not instruct the jury on the doctrine of res ipsa loqui-tur. We affirm, concluding res ipsa loqui-tur does not apply to this case.

I

[¶ 2] In January 2001, Haugen donated plasma at Community Bio-Resources, now doing business as BioLife Plasma Services (“BioLife”). According to Haugen, the needle, called a cannula, inserted into her vein either was negligently inserted into or became dislodged from her vein, which BioLife negligently failed to notice. She claims that as a result, the needle was embedded in the soft tissue of her right arm rather than in her vein. According to BioLife, an alarm sounded on the plasma drawing machine during the donation’s re-injection, and the needle had to be adjusted. When the whole blood components that had been separated from Haugen’s plasma during the donation process were infused back into her arm, Haugen contends the whole blood was infused into her soft tissue rather than her vein. Haugen claims the injection of blood components into her arm tissue caused her to suffer heavy bruising and eventually caused reflex sympathetic dystrophy (“RSD”), a localized regional pain disorder that can cause a person to constantly feel pain in the affected body part.

[¶ 3] Haugen sued BioLife. At the jury trial, the district court refused Hau-gen’s request to instruct the jury on res ipsa loquitur, concluding the doctrine did not apply to this case because Haugen presented specific evidence of what had happened. The jury found BioLife was not negligent.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 5] On appeal, Haugen argues she met the foundational elements of res ipsa loquitur and therefore the instruction should have been given to the jury. Basically, she contends she should be allowed to use res ipsa loquitur as an alternative pathway to prove negligence. BioLife argues res ipsa loquitur is inappropriate in this case because RSD can occur without negligence and because Haugen can point directly to what alleged negligence caused her claimed injury.

A

[¶ 6] On appeal, we review jury instructions as a whole to decide whether they fairly and adequately advised the jury of the law in the case:

This Court reviews jury instructions to determine whether, as a whole, they fairly and adequately advised the jury. A proper jury instruction is one that adequately informs the jury of the applicable law. “While a trial court may properly refuse a requested instruction not applicable to the evidence, a party is entitled to an instruction on a valid applicable theory if there is some evidence to support it.”

Case Credit Corp. v. Oppegard’s, Inc., 2005 ND 141, ¶ 9, 701 N.W.2d 891 (citations omitted).

B

[¶7] In North Dakota, res ipsa loquitur allows a fact finder to infer negligence if the plaintiff can establish three foundational elements: (1) the accident was one that does not ordinarily occur in the absence of negligence; (2) the instrumentality or agent that caused the plaintiffs injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff. Robert v. Aircraft Inv. Co., Inc., 1998 ND 62, ¶7, 575 N.W.2d 672; Foerster v. Fischbach-Moore, Inc., 178 N.W.2d 258, 263 (N.D.1970). In'this case, only the first element is in dispute. The cannula and BioLife’s employee are the undisputed instrumentality and agent that allegedly caused the injury, and they were under the exclusive control of BioLife. Thus the second element is not at issue. BioLife does not claim that Haugen contributed to her injury, so the third element is not at issue.

[¶ 8] BioLife argues the first element should not be “the accident was one which does not ordinarily occur in the absence of negligence,” but should be “the injury is one that does not normally occur in the absence of negligence.” BioLife relies on a case from the Eighth Circuit Court of Appeals interpreting North Dakota law as support. See Maguire v. Taylor, 940 F.2d 375, 377 (8th Cir.1991) (“The doctrine of res ipsa loquitur contains three elements: (1) the injury is one that does not normally occur absent negligence,_”) (emphasis added); see also Lemke v. United States, 557 F.Supp. 1205, 1210 (D.N.D. 1983) (“In order for a plaintiff to rely upon the doctrine of res ipsa loquitur, he or she must establish three elements: 1) the injury is one that would not ordinarily occur absent negligence; ....”) (emphasis added). Other sources have been internally inconsistent when describing the first element as an accident or an injury. See Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 579 (7th Cir.1994) (“If a plaintiff can demonstrate (1) that the accident was one that does not ordinarily occur absent negligence, ....”) (emphasis added); id. (“Newell must show that her injury is one which would ordinarily not occur in the absence of improper care on the part of those in control of the injuring instrumentality.”) (emphasis added); 57B Am.Jur.2d Negligence § 1848 (1989) (“In order for the doctrine of res ipsa loquitur to apply, the following elements or conditions, although expressed in varying phraseology, must be met: (1) the accident was of such character as ,to warrant an inference that it would not have happened except for defendant’s negligence.”) (emphasis added); id. § 1853 (“Where the applicability of res ipsa loquitur is in question, the test is, not whether a particular injury rarely occurs, but rather, when it occurs, whether it is ordinarily the result of the defendant’s negligence.”) (emphasis added).

[¶ 9] When the doctrine was created in 1863, the falling of a flour barrel was the occurrence that spoke for itself, not the specific injuries the plaintiff received. See Byrne v. Boodle, (1863) 2 H & C Rep., 726 (Exch.) (“there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident.... It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence.”); see also 57B Am.Jur.2d Negligence § 1824 (“It is the character of the accident, rather than the fact of the accident, which gives rise to the doctrine.”). To take the district court’s example, the crashing of an airplane is the occurrence that does not occur without negligence and speaks for itself, not the injuries received by the passengers on board. Therefore, the use of accident better describes the doctrine. Under this interpretation of res ipsa loquitur, the accident that must be examined is the displacement of the cannula and injection of whole blood into Hau-gen’s soft tissue, not the specific injury RSD.

[¶ 10] Res ipsa loquitur allows for an inference of negligence when there is no evidence of what caused the accident. Robert, 1998 ND 62, ¶ 7, 575 N.W.2d 672. When a plaintiff can present specific evidence of negligence and the cause of the accident, however, the plaintiff has no need to rely on an inference. See Newell, 36 F.3d at 580 (“If Newell were able to allege an act of negligence in this case, she would not need to avail herself of res ipsa loquitur.”); Malloy v. Commonwealth Highland Theatres, Inc., 375 N.W.2d 631, 637 (S.D.1985) (“When there is direct evidence concerning the cause of the incident and all the facts and circumstances surrounding it, the res ipsa loquitur rule is inapplicable.”); Sharman v. Skaggs Companies, Inc., 124 Ariz. 165, 602 P.2d 833, 838 (Ct. App.1979) (“Plaintiff having introduced specific evidence of negligence, cannot invoke the doctrine of res ipsa loquitur.”). Res ipsa loquitur is a gap-filler, not an alternative pathway to negligence as Hau-gen contends. See id. It is used when an accident occurs that has no explanation other than negligence, even if the plaintiff cannot prove what negligence was committed. See id.

[¶ 11] Haugen presented a specific theory and specific.evidence in this case. According to Haugen, the cannula was dislodged from her vein and left sitting in her arm’s soft tissue. Dr. Sena Kihtir, Hau-gen’s treating physician, testified during her deposition, which was admitted at trial, that the only event which could cause this volume of blood to be infused into soft tissue in this case would have been if the cannula had been displaced or dislodged:

Q: "What caused the blood to be dispersed into the tissue outside the vein?
A: Well, the only thing that could have caused it is — is if the cannula was displaced, it was dislodged.

This is evidence of the exact cause of the accident, so Haugen had no need to rely on an inference. Haugen argues the cause is not known because she has no evidence of whether the cannula was initially inserted improperly outside the vein or came to rest outside the vein after a BioLife employee adjusted it. The end result is the same, however; the cannula was outside the vein. Haugen cannot rely on an inference when she is able to present specific evidence of negligence and the cause of the accident. The district court properly refused the res ipsa loquitur instruction.

Ill

[¶ 12] We affirm the judgment of the district court.

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


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2006 ND 120
    Pamela Jane KOSTELECKY, Plaintiff, Appellant and Cross-Appellee v. Kim Wayne KOSTELECKY, Defendant, Appellee and Cross-Appellant.
    No. 20050231.
    Supreme Court of North Dakota.
    June 1, 2006.

      Mary E. Nordsven, Hardy, Maus & Nordsven, P.C., Dickinson, N.D., for plaintiff, appellant and cross-appellee.

      LaRoy Baird III (argued) and Bonnie L. Storbakken (on brief), Bismarck, N.D., for defendant, appellee and cross-appellant.
   SANDSTROM, Justice.

[¶ 1] Pamela Jane Kostelecky, now known as Pamela Barrett (“Barrett”), appeals, and Kim Wayne Kostelecky (“Kos-telecky”) cross-appeals from a district court judgment distributing their marital property and awarding spousal support to Barrett. We affirm the district court’s valuation of the parties’ marital property; however, because we conclude the district court failed to adequately explain its award of spousal support and distribution of marital property, we reverse and remand for further proceedings.

I

[¶ 2] Barrett and Kostelecky were married on November 19, 1997, and had no children from their marriage. In March 2004, Barrett sued for divorce. At the November 2004 divorce trial, Barrett testified she was 44 years old, this was her third marriage, and she had custody of two minor children from a previous marriage. Kostelecky was 49 years old and had also been previously married.

[¶ 3] In March 2005, the district court issued a memorandum opinion and findings of fact, conclusions of law, and order for judgment, and on April 6, 2005, a judgment was entered. On April 8, 2005, Barrett moved to vacate the judgment, claiming it did not reflect all of the findings from the court’s memorandum opinion. The court subsequently vacated the initial judgment and entered supplemental findings, which incorporated additional provisions from the court’s memorandum opinion. A final judgment was entered on June 1, 2005.

[¶ 4] In its final judgment, the district court awarded Kostelecky property valued at $1,429,994.06 and debts of $735,506.63. The court awarded Barrett property valued at $262,857.00 and debts of $106,257.03. The court awarded Koste-lecky a farming and ranching operation that he had brought into the marriage, including its existing assets and debts, and the court awarded Barrett a business she had started prior to the marriage, Masterpiece Gifts and Floral, and its corresponding assets and debts.

[¶ 5] The court found Barrett entered the marriage with only nominal assets and had prospered during the marriage, and Kostelecky entered the marriage with an agricultural operation that had been expanded during the marriage but also had incurred corresponding debt. The court found the parties’ marriage was a short-term marriage and, as a result, each party was entitled to keep the net worth they had prior to the marriage. The court also found Barrett made contributions to the marriage that needed to be recognized and rewarded with spousal support. The court ordered Kostelecky to pay Barrett spousal support of $90,000 over six years,- at the rate of $15,000 per year without interest, payable in monthly or annual payments.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01. The appeal is timely under N.D.R.App.P. 4(a).

II

[¶ 7] Barrett argues the district court erred in its valuation of various items of the parties’ marital property.

[¶ 8] A district court’s valuation of property is a finding of fact, subject to the clearly erroneous standard of review. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601.

The value a trial court places on marital property depends on the evidence presented by the parties. See Fox v. Fox, 2001 ND 88, ¶22, 626 N.W.2d 660. Because a trial court is in a far better position than an appellate court to observe demeanor and credibility of witnesses, we presume a trial court’s property valuations are correct. See Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573. We will not reverse a trial court’s findings on valuation and division of marital property unless they are clearly erroneous. See Corbett v. Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made.” Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561. “A choice between two permissible views of the evidence is not clearly erroneous if the trial court’s findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations.” Hoverson, at ¶ 13.

Olson v. Olson, 2002 ND 30, ¶ 7, 639 N.W.2d 701.

[¶ 9] A district court’s marital property valuations are not clearly erroneous if they are within the range of the evidence presented. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601. Furthermore, an owner of real property may testify as to the value of land without any further qualification or special knowledge. See Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985). Ultimately, the district court is in a better position than this Court to judge the credibility and observe the demeanor of witnesses and to determine property values. Amsbaugh at ¶ 12.

[¶ 10] In this case, the district court had to choose between Barrett’s proffered valuations and Kostelecky’s proffered valuations of the marital property. The district court’s findings on the value of the parties’ marital property are within the range of the evidence presented at trial. Although Barrett argues Kostelecky made a number of errors in his valuations and his testimony was speculative, we will not reweigh the evidence and judge the credibility of the witnesses. We are not left with a definite and firm conviction a mistake has been made, and we conclude the district court’s valuation of the marital property was not clearly erroneous.

Ill

[¶ 11] Barrett argues the district court erred in the division of the parties’ marital property, and Kostelecky argues the court erred in awarding Barrett spousal support.

[¶ 12] When a divorce is granted, the district court must make an equitable distribution of the parties’ marital property and debts. N.D.C.C. § 14 — 05— 24(1). When distributing marital property, all of the parties’ assets must be considered to insure the division is equitable. Dvorak v. Dvorak, 2005 ND 66, ¶ 21, 693 N.W.2d 646. After including all of the parties’ marital assets, the district court must consider the Ruff-Fischer guidelines in its distribution of the parties’ assets. Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724. Under the Ruff-Fischer guidelines, the court must consider:

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

Id. (quoting Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462).

[¶ 13] The district court is not required to make specific findings on each Ruff-Fischer factor, but it must explain its rationale for its determination. Bladow, 2003 ND 123, ¶7, 665 N.W.2d 724. A property division need not be equal to be equitable, but any substantial disparity must be explained. Id. at ¶ 5. This Court has also effectively recognized that liquidation of an ongoing farming operation is ordinarily a last resort. Gibbon v. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707.

[¶ 14] Property division and spousal support are interrelated and intertwined and often must be considered together. Striefel v. Striefel, 2004 ND 210, ¶ 17, 689 N.W.2d 415; Schoenwald v. Schoenwald, 1999 ND 93, ¶ 6, 593 N.W.2d 350. Spousal support determinations are findings of fact, and the district court’s decision on spousal support will not be set aside unless it is clearly erroneous. Schoenwald, at ¶ 7 (quoting Hogue v. Hogue, 1998 ND 26, ¶¶ 24-25, 574 N.W.2d 579). In making a spousal support determination, the district court must consider the relevant factors under the Ruff-Fischer guidelines. Ingebretson v. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1; Schoenwald, at ¶ 7.

[¶ 15] A majority of this Court recently eliminated the requirement for a district court to make a specific finding of a “disadvantaged spouse” before awarding spousal support. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157; but see id. at ¶¶ 19-34 (Sandstrom, J., dissenting). The majority in Sack nevertheless explicitly emphasized, “[W]e elect to dispose of the ‘disadvantaged spouse’ doctrine and reemphasize the importance of a comprehensive analysis under the Ruff-Fischer guidelines when determining the appropriateness of rehabilitative spousal support. In doing so, we do not retreat from the reasons and rationale for rehabilitative support.” Id. at ¶ 12.

A

[¶ 16] In awarding Barrett spousal support, the court found “[Barrett] made contributions to the marriage which must be recognized and rewarded with some spousal support.” The court then awarded Barrett $90,000 in spousal support, at the rate of $15,000 for each of the six years the parties were married, payable over six years in monthly or annual payments without interest.

[¶ 17] The district court’s award of spousal support to Barrett was to “recognize[] and rewardf]” her contributions to the marriage. Barrett made no request to the district court for rehabilitative spousal support, and instead she had requested an additional $200,000 in cash to make the property distribution equitable. Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status, by providing an opportunity for a disadvantaged spouse to seek education, training, or experience that will enable the spouse to become self-supporting. Striefel, 2004 ND 210, ¶ 16, 689 N.W.2d 415; Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986).

[¶ 18] The district court’s award of spousal support only to “recognized and reward[]” Barrett’s contributions to the marriage is not sufficient for this Court to review whether an award of rehabilitative support is appropriate. This Court has said an award of spousal support may be appropriate to recognize a spouse’s role in contributing to the development of the other spouse’s earning capacity during the marriage. See Hanson v. Hanson, 404 N.W.2d 460, 466 (N.D.1987) (spousal support appropriate after twenty-two year marriage, where substantial assets did not exist, husband’s earning ability was substantially greater than wife’s, and wife aided husband during marriage by providing-primary financial support for family while husband attended college); Weir v. Weir, 374 N.W.2d 858, 864 (N.D.1985) (spousal support appropriate after twenty-three year marriage, in absence of presently-divisible substantial marital assets, to provide equitable sharing of the overall reduction in the parties’ separate standards of living, and to recognize wife’s role in contributing to husband’s earning capacity).

[¶ 19] However, unlike the district courts in Weir and Hanson, the district court here found the parties’ marriage was short-term. Moreover, both parties have ongoing potentially income-generating businesses, and assets exist for distribution. The district court’s award of spousal support appears to be more in the nature of property distribution rather than a determination of the need for rehabilitative support. However, this Court will not speculate on the district court’s rationale in awarding spousal support. We conclude the district court’s spousal support award to recognize and reward Barrett’s contributions to the marriage is not sufficient for us to understand the basis for the district court’s spousal support award under the Ruff-Fischer guidelines. We therefore reverse and remand to the district court for further explanation of its spousal support award.

B

[¶ 20] In distributing the parties’ marital estate, the district court explained:

[Barrett] seems to be worth about $100,000 and [Kostelecky] seems to be worth about $650,000. [Barrett] entered this marriage with only nominal assets and, through diligence, has prospered somewhat. [Kostelecky] has expanded his agricultural operation and thereby created corresponding debt. Neither won the lottery; neither has found a life of luxury.
So now I’ve thought long and hard about the Ruff-Fischer guidelines and what should fairly happen as these parties exit this unfortunate alliance. The brevity of this marriage persuades me the parties should leave as they came and take with them what they brought.

[¶ 21] In its initial findings of fact, the district court found Barrett and Koste-lecky had a net worth of $851,087. 40. The court further found that Kostelecky had a net worth before marriage of $617,840, and Barrett had a net worth before marriage of negative $20,000. The court found the marriage was a short-term marriage, and thus each party was entitled to keep the net worth they had prior to the marriage. The court then stated “[t]hat based upon consideration of all of the Ruff-Fischer guidelines, a fair and equitable division of property and debts would be” to award Kostelecky $1,429,994.06 in total assets and $735,506.63 in total debts, and to award Barrett $262,857.00 in total assets and $106,257.03 in total debts. The court found “[t]hat this division of property and debts results in an equitable division of the increase in the parties’ net worth during the marriage.”

[¶ 22] Because we are reversing and remanding the spousal support award for further proceedings and because spousal support is intertwined with the property distribution, we also remand the property distribution.

C

[¶ 23] Barrett also claims that the district court improperly delegated the decision to distribute some of the parties’ personal property to Kostelecky. In its memorandum opinion, the court stated:

I deem it impossible to somehow fairly distribute the personal property of the parties, items which he allegedly gave to her children as gifts or personal property located at the lake cabin. Instead, I think [Kostelecky] should read this over a few times, overcome petty rancor and give [Barrett] those small wares and goods which she wants, ever recalling that he doesn’t have to repurchase one-half of his land.

Although the district court’s final judgment did ultimately award certain items of personal property to Kostelecky, because we are remanding the property distribution for further consideration, the district court should consider any specific requests the parties have regarding the distribution of any particular items of personal property at that time.

IV

[¶24] We affirm the district court’s valuation of the parties’ marital property, but reverse and remand for further proceedings on the spousal support award and distribution of the parties’ marital property-

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


author: MARING, Justice.

text:
    2006 ND 118
    AMERICAN CRYSTAL SUGAR COMPANY, Applicant, Appellee, and Cross-Appellant v. TRAILL COUNTY BOARD OF COMMISSIONERS, Appellant and Cross-Appellee.
    No. 20050343.
    Supreme Court of North Dakota.
    June 1, 2006.

      Wickham Corwin, Conmy Feste, Ltd., Fargo, ND, for applicant, appellee, and cross-appellant.
    Jon J. Jensen (argued), Pearson Christensen Cahill & Clapp, P.L.L.P., Grand Forks, ND, and Stuart A. Larson, Hills-boro, ND, for appellant and cross-appellee.
   MARING, Justice.

[¶ 1] The Traill County Board of Commissioners appealed from a district court memorandum opinion and order reversing some of the Board’s determinations in a tax abatement proceeding brought by American Crystal Sugar Company (“American Crystal”) in an attempt to have its property tax liability lowered for a sugar factory located seven miles north of Hillsboro. American Crystal cross-appealed, challenging parts of the court’s ruling that denied it further tax relief. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] American Crystal operates a large sugar factory in Traill County that processes sugar beets into refined sugar. Originally constructed in 1973, the Hills-boro plant’s capacity was significantly increased by an expansion project completed in 1999. In 2000, an additional processing capability known as molasses desugarization (“MDS”) was added to the facility. The district court described the plant’s operations:

Trucks deliver the harvested beets to a wet hopper where the beets are water jetted or floated into the factory. Large equipment is then used for removing rocks, large chunks of mud, and also for doing initial washing to try to remove more of the mud that has adhered to the beets. From there, the beets go into the factory to what is called the extraction side. It is here where the washed beets are sliced like shoestring potatoes and then go into what is called the defusion or extraction process. There, hot water, pressure and time is used to separate the sucrose or the sugar from the fiber itself. The pulp itself then goes to the pulp drying or a pelletizing station.
This is where the pulp is pressed to dry and to extract the sugar from it. From there it goes to large, rotating dryers where the pulp is then separated. It then goes into pelletizing. From there it goes to a pellet storage bin. Pellets are then loaded to rail cars and shipped to customers as a byproduct.
The juice stream itself then goes into what is called the purification infiltration. Equipment consisting of vessels, pipes, and pumps that run through the factory, transfer that juice stream. That juice is mixed with lime and carbon dioxide in vessels. Then in reactors, the nonsugars are removed from the juice stream so that a much purer sucrose laden juice stream continues on in the factory.
From there, the juice goes to the evaporation station. These are large vessels where steam is used to drive off the water and thicken the juice.
The crystallization process is next. The plant uses a three-stage system where it boils and crystalizes the juice three times to extract as much sugar as economically feasible. It boils the juice under a vacuum at low temperature and initializes crystal growth. The crystals then go to centrifuges where the sugar crystals are separated from the mass or the juice. The crystals go to silos. The molasses goes to a storage tank. That molasses is held until it goes to the MDS plant where the molasses is further processed into an extract.

[¶ 3] On October 30, 2003, American Crystal applied for tax abatements for its Traill County property for tax years 2001 through 2003. Traill County had assessed the value of the property to be $27,746,143 for 2001; $27,092,238 for 2002; and $26,710,981 for 2003. American Crystal requested that the property tax value be reduced to $12,375,671 for 2001; $10,892,934 for 2002; and $17,222,233 for 2003. At the two-day hearing before the Board of Commissioners in January 2005, American Crystal raised several new issues that were not included in its applications for abatement. American Crystal claimed the property tax value of the plant for each of the three contested years was $5,700,000. American Crystal claimed some of the structures on the plant were being taxed as real property but should have been classified as personal property and excluded from taxation. American Crystal also challenged the Board’s classification of the 695.7 acres of land upon which the plant is located as commercial property rather than agricultural property. Following the hearing, the Board denied American Crystal’s applications for abatement.

[¶ 4] On appeal, the district court ruled the Board’s decision to accept the “trended cost” method for valuing the property was not arbitrary, capricious, or unreasonable; the Commissioners’ decision to include American Crystal’s beet storage sheds or freezers and extract tanks in the taxable real property valuation was correct; and the Board’s hearing process did not violate American Crystal’s due process rights. The court, however, further ruled the Board incorrectly included American Crystal’s conditioning silos as taxable real property and ordered that the land upon which the plant is located be reclassified as agricultural property rather than as commercial property and the valuation of the property be modified accordingly. These appeals followed.

II

[¶ 5] We set forth the standard of review for appeals under N.D.C.C. §§ 11-11-43 and 28-34-01 in Dakota Northwestern Assocs. Ltd. P’ship v. Burleigh County Bd. of County Comm’rs, 2000 ND 164, ¶ 8, 616 N.W.2d 349 (citations omitted):

Our review of a local governing body’s assessment of value for tax purposes is limited by the doctrine of separation of powers. Taxation of property is a legislative function, not a judicial function, and courts may not substitute their judgment for that of the local governing body. A reviewing court may not reverse the Board’s decision simply because it finds some of the evidence more convincing; rather, the reviewing court may reverse only where there is such an absence of evidence or reason that the Board’s decision is arbitrary, capricious, or unreasonable. A decision of a local governing body is arbitrary, capricious, or unreasonable only if it is not the product of a rational mental process, by which the facts and the law are considered together for the purpose of achieving a reasoned and reasonable interpretation.

Our scope of review is the same as the district court’s, and we independently determine the propriety of the local governing body’s decision without according special deference to the district court’s review. Ennis v. Williams County Bd. of Comm’rs, 493 N.W.2d 675, 679 (N.D.1992).

A

[¶ 6] American Crystal argues the Board’s hearing process denied it due process. American Crystal complains that it was required to present its evidence and final summation before Traill County presented its case, and was not allowed to cross-examine witnesses. American Crystal also argues the Board was influenced by newspaper accounts and general public opposition to its requested tax relief. The ultimate result, according to American Crystal, was that the Board, in denying its requests for abatements, showed more concern for preservation of the county’s tax base and political considerations, rather than notions of justice and fair play.

[¶ 7] Due process is flexible and must be analyzed on a ease-by-case basis, balancing the competing interests and assessing whether the basic due process requirement of fairness has been satisfied. Gray v. North Dakota Game and Fish Dept., 2005 ND 204, ¶28, 706 N.W.2d 614. This Court has long held that the taxation of property is a legislative rather than a judicial function. See, e.g., Ulvedal v. Board of County Comm’rs, 434 N.W.2d 707, 709 (N.D.1989); Appeal of Johnson, 173 N.W.2d 475, 481-82 (N.D.1970). Because a board of county commissioners is not a judicial tribunal, “ ‘due process does not require a judicial trial, and the character of the hearing is not measured by standards of judicial procedure.’ ” First American Bank & Trust Co. v. Ellwein, 221 N.W.2d 509, 514 (N.D.1974) (quoting Brinkley v. Hassig, 83 F.2d 351, 356 (10th Cir.1936)). Consequently, courts have refused to invalidate local government tax assessment' proceedings on due process grounds based on arguments that a particular governing body failed to follow rules applicable to judicial proceedings. For example, in County of Ramsey v. Lincoln Fort Rd. Hous. Ltd., 494 N.W.2d 276, 281 (Minn.1992), the court held civil discovery procedures were not applicable to proceedings for collection of delinquent taxes. In In re Owens, 144 N.C.App. 349, 547 S.E.2d 827, 831 (2001), the court held the taxpayers were not denied due process when the taxpayers were required to present their case first, after which the County advanced a method of valuation different than the method the taxpayers anticipated. In Town of Vienna v. Kokernak, 612 A.2d 870, 874 (Me.1992), the court rejected a due process challenge to denial of the opportunity to cross-examine witnesses at a hearing, reasoning “[i]t is unnecessary to import into the county commissioners’ hearing all those safeguards of a court proceeding in order to meet the requirements of due process.”

[¶ 8] The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Ellwein, 221 N.W.2d at 517; Owens, 547 S.E.2d at 831. Whether a party has been deprived of due process by an action of a nonjudicial body “depends on whether it acted contrary to the statutes and rules and with arbitrary and unreasonable discrimination.” Williams Elec. Coop., Inc. v. Montana-Dakota Util. Co., 79 N.W.2d 508, 523 (N.D.1956). Judicial review is the ultimate due process protection accorded persons aggrieved by the decisions of local government bodies or administrative agencies. See Sletten v. Briggs, 448 N.W.2d 607, 610 (N.D.1989).

[¶ 9] We are not persuaded by American Crystal’s argument that the Board’s alleged bias denied it due process. See, e.g., Ellwein, 221 N.W.2d at 513 (rejecting due process challenge to hearing that was allegedly “designed in the great tradition of the Old West to be a fair trial before the hanging”); Hilltop Basic Res., Inc. v. County of Boone, 180 S.W.3d 464, 470 (Ky.2005) (“despite the members’ preexisting opinions regarding the community effects of subsurface mining in general, we find nothing in the record which indicates that these members did not seriously or honestly consider Hilltop’s proposal”). We agree that “[g]eneral policy-based controversies such as these are best ferreted out in the legislative arena, i.e., through expression of the will of the voters in the electoral process.” County of Boone, 180 S.W.3d at 470.

[¶ 10] American Crystal was given an opportunity to present evidence at a meaningful time and in a meaningful manner. The Board was not required to follow formal rules of judicial procedure in the tax abatement proceedings. We conclude American Crystal’s due ■ process rights were not violated by the hearing procedure used in this case.

B

[¶ 11] American Crystal argues the Board acted arbitrarily and unreasonably in rejecting its proposed method of vacating the real property.

[¶ 12] For tax assessment purposes, property must be valued at its “true and full value,” see Dakota Northwestern, 2000 ND 164, ¶ 9, 616 N.W.2d 349; N.D.C.C. § 57-02-27.1, which is defined as:

the value determined by considering the earning or productive capacity, if any, the market value, if any, and all other matters that affect the actual value of the property to be assessed. This shall include, for purposes of arriving at the true and full value of property used for agricultural purposes, farm rentals, soil capability, soil productivity, and soils analysis.

N.D.C.C. § 57-02-01(15). A board of county commissioners may abate or refund, in whole or in part, any assessment or tax upon real property “[w]hen the assessment on the complainant’s property is invalid, inequitable, or unjust.” N.D.C.C. § 57-23-04(l)(h).

[¶ 13] “Appraisers generally use three approaches to get at fair market value: (1) analysis of comparable sales or market data; (2) analysis of the cost of replacement less depreciation; and (3) an income or economic analysis.” Mike Golden, Inc. v. Tenneco Oil Co., 450 N.W.2d 716, 719 (N.D.1990).. See also Midwest Processing Co. v. McHenry County, 467 N.W.2d 895, 900 (N.D.1991); Ulvedal, 434 N.W.2d at 710 n. 3. The Traill County tax equalization director used the “trended cost” method to determine the value of the plant for tax purposes, a method the director has used since the plant was built in 1973. Under this method, the value is calculated by determining the replacement costs of the plant, and subtracting from that figure amounts for physical depreciation, functional depreciation, and economic depreciation. American Crystal’s expert, John Coates, used the cost approach to market value based on computations from a facility located in Washington, the income producing approach to market value based on American Crystal’s financial information, and the sales approach to market value based on relatively recent sales of plants in various states. American Crystal argued that Coates’ method was more accurate than Traill County’s “trended cost” method in arriving at the Hillsboro plant’s actual market value, and under the “trended cost” approach, the Hillsboro plant was assessed many times higher than its actual market value.

[¶ 14] In its February 1, 2005, decision rejecting American Crystal’s request for tax abatements, the Board explained:

[American Crystal] stated that the method used in determining taxable valuation was not fair. [American Crystal] addressed the three methods of determining value: cost, sales and income. The Board of Commissioners decided that the cost method used by the Tax Director’s Office was the only fair way the property could be valued. The current valuation is determined by a formula agreed upon by [American Crystal] and Traill County. The original cost of any property added to the tax rolls is provided by [American Crystal]. There have been adjustments to the formulas in past years, requested by [American Crystal], addressing obsolescent and economic depreciation (1987) and freezing the cost index for the main factory (1998), all favoring [American Crystal], The [American Crystal] appraisal completed December 21, 2004 stated the cost value of all real property for 2001, 2002, and 2003 was $5,700,000 for each year. The Board of Commissioners decided that these numbers were not valid. The valuation for each year has to change due to depreciation so these numbers are estimates not facts. The Board of Commissioners determined that the appraisal was not tied to relevant numbers. The Board of Commissioners also questions whether this truly was an independent appraisal when the appraiser, Mr. Coates, testified he changed his numbers one month before completing the appraisal because [American Crystal] attorneys told him to. [American Crystal] testified that the sales method should be used to determine the value of the Traill County property. The Board of Commissioners decided that this method was invalid because some of the sales used were compelled sales.
[American Crystal] testified that the income method was the least reliable method and should not be used. The Board of Commissioners agreed that while this is not the best method to use, it might have value because if the actual income could be determined, it may increase the value of the [American Crystal] property in Traill County.

[¶ 15] The appraisal of property for tax purpose is “far from an exact science.” Midwest Processing Co., 467 N.W.2d at 901 (VandeWalle, J., concurring specially). It is not our function “to micro-manage decisions of local taxing bodies in valuing property for tax assessment purposes.” Dakota Northwestern, 2000 ND 164, ¶ 11, 616 N.W.2d 349. Rather, only when there is such an absence of evidence or reason as to amount to arbitrary, capricious, or unreasonable action, can we reverse a local governing body’s assessment. National Sun Indus., Inc. v. Ransom County, 474 N.W.2d 502, 506 (N.D.1991). American Crystal has not cited, and we have not found, any case law condemning the “trended cost” method of valuation, and American Crystal does not argue that the “trended cost” approach is incompatible with the Tax Commissioner’s guidelines for property tax valuation for residential or commercial property. It is obvious from the record that the Board had problems with Coates’ credibility, and it was for the Board to assess credibility and give whatever weight it determined appropriate to his expert appraisal. See Dakota Northwestern, 2000 ND 164, ¶ 11, 616 N.W.2d 349.

[¶ 16] We conclude the Board, did not act arbitrarily or unreasonably in rejecting Coates’ appraisal and relying on Traill County’s “trended cost” approach to valuation of the property.

Ill

[¶ 17] The Board classified American Crystal’s beet storage sheds or freezers, MDS extract tanks, and conditioning silos as real property subject to taxation. The Board argues the district court erred in ruling the conditioning silos were personal property not subject to taxation, and American Crystal argues the court erred in ruling the storage sheds or freezers and extract tanks were real property subject to taxation. Unlike a board of county commissioners’, valuation of property, its classification of property as either real or personal presents a question of law fully reviewable by a court. See Ladish Malting Co. v. Stutsman County, 416 N.W.2d 31, 33-34 (N.D.1987) (“Ladish II”).

[¶ 18] All property in this state is subject to taxation unless expressly exempted by law. N.D.C.C. § 57-02-03. Under N.D.C.C. § 57-02-08(25), locally assessed personal property is generally exempt from assessment and taxation. See Ladish Malting Co. v. Stutsman County, 351 N.W.2d 712, 713 (N.D.1984) (“Ladish. I”). Personal property includes “all property that is not included within the definition of real property.” N.D.C.C. § 57-02-05.1. For purposes of taxation, “real property” is defined in N.D.C.C. § 57-02-04 to include:

1. The land itself, ... and improvements to the land, ... and all rights and privileges thereto belonging or in anywise appertaining, and all mines, minerals, and quarries in and under the same....
2. All structures and buildings, including systems for the heating, air-conditioning, ventilating, sanitation, lighting, and plumbing of such structures and buildings, and all rights and privileges thereto belonging or in anywise appertaining, but shall not include items which pertain to the use of such structures and buildings, such as machinery or equipment used for trade or manufacture which are not constructed as an integral part of and are not essential for the support of such structures or buildings, and which are removable without materially limiting or restricting the use of such structures or buildings.
3. Machinery and equipment, but not including small tools and office equipment, used or intended for use in any process of refining products from oil or gas extracted from the earth, but not including such equipment or appurtenances located on leased oil and gas production sites.

[¶ 19] In Ladish I, 351 N.W.2d at 721-22, this Court examined the legislative history of the statute and a Pennsylvania case referenced in that history, In re Borough of Aliquippa, 405 Pa. 421, 175 A.2d 856 (1961), in interpreting the meaning of N.D.C.C. § 57-02-04:

[T]he intent of the statute is to define real property for tax purposes so as to exclude those items (1) which pertain to the use of structures and buildings (such as machinery or equipment used for trade or manufacture), and (2) which are not constructed as an integral part of and are not essential for the support of such structures or buildings, and (3) which are removable without materially limiting or restricting the use of such structures or buildings. Thus, an item which pertains to the use of structures and buildings should be classified as personal property only if it is not constructed as an integral part of and is not essential for the support of structures or buildings and is removable without materially limiting or restricting the use of structures or buildings.
Items which pertain to the use of structures and buildings are those items which are used directly in and solely for effectuating that particular purpose to which the taxpayer has employed its structures and buildings.
[I]tems which can be removed without rendering the structure or building nonfunctional, without extensive repair or redesign of the structure or building, and without replacement of removed items satisfy the requirement that personal property be “removable without materially limiting or restricting the use of such structures or buildings.”
Where physical or economic considerations so negate movement as a matter of practicability, the property should be found to be real property. Here a reasonableness test must be applied.

Items which fall into the questionable area between real and personal property, such as industrial machinery and equipment, are not taxable. Ladish I, 351 N.W.2d at 720.

A

[¶ 20] The Board argues the district court erred in concluding American Crystal’s conditioning silos constituted personal property exempt from taxation.

[¶ 21] American Crystal has three conditioning silos, also known as Weibull silos, named after their Swedish inventor, Nils Weibull. They are freestanding structures that receive from conveyors and hold un-eured sugar emerging from the crystallization process until the sugar is packaged. Lloyd Kennedy, American Crystal’s factory manager, explained:

[The conditioning silos] are an integral part of the process. If they were not there we would have a very difficult time selling our sugar from a customer standpoint, whether it’s industrial or consumer, based on the fact that the sugar is not ready to be sold. It needs to be conditioned for a minimum of 72 hours to cool and to further remove moisture that’s trapped in the crystal. Also as we store that in these [sic] equipment it has to be maintained at a temperature and humidity to prevent condensation and attracting more moisture as it goes, plus from a safety standpoint if it gets too dry it does become explosive.
Just to explain how it works, sugar from the process comes from the top and is conveyed out to the top of the silo where it’s distributed by a sprinkler sys-tern that falls down. It has leveling equipment that convey the sugar. If you didn’t convey it out, it would pile up in the middle of the bin and you essentially would have — not be able to control the temperature of it. So it levels it out, pushes it out to the side to maintain a depth of sugar, you know, 6 inches at a time.
So when it’s level the air that circulates around the bin is — you can’t see it here, but there’s actually ducting on the outside walls, and that’s done to maintain the temperature because you have hot sugar inside, cold temperatures outside, just like your house, you’d have condensation in weather like this, you get water inside, and it would essentially become a large lump of sugar. So the air above the head space is heated from below and maintained at a temperature. Humidity inside the bin is controlled to drive off excess humidity and also to prevent it from getting too low.
So as it’s filled, that’s how it’s done, but when it’s retrieved the same equipment actually conveys the sugar back to the center of the bin in layers, brings it back, and then it’s conveyed out to whether it goes to our rail car loading or to our packaging plant where it’s put in bags.
And, like I mentioned, our conditioning, our policy is that it has to maintain a minimum of 72 hours. Anything less than that we run the risk of getting customer complaints. And that’s one of the most prevalent complaints we get if it’s not conditioned properly is hard, lumpy sugar, whether it’s consumer or from industrial producers.

[¶ 22] In Ladish I, 351 N.W.2d at 722, this Court, quoting from Aliquippa, 175 A.2d at 861-62, stated that “ ‘[a] structure used for storage, for example, is part of the realty and subject to real estate taxation.’ ” The Board argues that the conditioning silos should be classified as real property subject to taxation because they “are simply sophisticated storage structures used for holding the sugar before it is packaged and shipped to customers.” We reject both the Board’s argument that the conditioning silos are subject to taxation in their entirety and American Crystal’s argument that the structures in their entirety are personal property not subject to taxation.

[¶ 23] Kennedy’s testimony clearly establishes that the sprinkler system, the leveling equipment, and the temperature control system contained within the structures of the conditioning silos are items used directly in and solely for effectuating the process of converting sugar beets into sugar that is marketable. We do not believe Kennedy’s testimony establishes that the bin structures themselves are items used directly in and solely for effectuating the process. Although the Weibull silos are purchased as a unit, the evidence reflects that the bins themselves would not effectuate the conditioning of the sugar if it were not for the special equipment attached to the bins. In Ladish I, 351 N.W.2d at 720-21, we noted that the Tax Commissioner’s guidelines required that “[a]ll structures and buildings are required to be assessed as real property” and that “ ‘all other attached machinery and equipment is classified as personal property and is thereby exempt from property taxation.’ ” See also Ladish II, 416 N.W.2d at 36 (miscellaneous machinery and equipment located in barley elevators constituted personal property not subject to taxation); FACS of New Ulm, LLC v. County of Brown, 2001 WL 579058, *3 (Minn.Tax 2001) (refrigeration equipment contained in structure was personal property exempt from taxation). We are not persuaded that the physical structure of the bins themselves are so highly specialized that they are integral, functional and inseparable parts of the industrial process. See BFC Hardwoods, Inc. v. Board of Assessment Appeals of Crawford County, 565 Pa. 65, 771 A.2d 759, 767 (2001) (dry kilns are comparable to the shells or chambers of an oven and are inseparable parts of items of machinery or equipment). Although Kennedy testified the conditioning silos have no practical alternative use, we are not convinced that the silos, without the attached equipment, would have any fewer alternative uses than the structure of the barley elevator absent its equipment that we upheld as taxable in Ladish II. Consequently, we conclude that the sprinkler system, the leveling equipment, and the temperature control system are items that “pertain to the use of structures and buildings” and satisfy the first prong of the three-part test under Ladish I, 351 N.W.2d at 721.

[¶24] We further conclude that these items of equipment are not an integral part of and are not essential for the support of the silos or other structures on the site and that they are removable without materially limiting or restricting the use of the structures. The record does not suggest that the “roof and siding [of the structures] ... would collapse if the inner machinery were removed.” United States Steel Corp. v. Board of Assessment and Revision of Taxes of Bucks County, 422 Pa. 463, 223 A.2d 92, 97 (1966). Kennedy explained that “all the equipment inside [the conditioning silos] could be removed and reused.”

[¶ 25] We conclude the items of equipment in the conditioning silos used for effectuating the process of converting the sugar into a marketable sugar product, as opposed to the basic structures, are personal property not subject to taxation.

B

[¶ 26] American Crystal argues the district court erred in concluding the MDS extract tanks constitute real property subject to taxation.

[¶ 27] American Crystal has three freestanding extract tanks that contain extract that is formed through the molasses desu-garization process. Because the factory does not have sufficient capacity to process the extract into sugar until the primary slicing campaign has ended, those tanks store the molasses extract until it can be processed. Kennedy explained:

The extract storage tanks are the tanks to the north of the facility. They look like large ¡Storage but, there again, they’re an intermediate process. The molasses that is processed at our molasses desugarization plant is not a final product. It goes into those vessels where, again, it has to be stored for long period 'of times [sic]. From — basically from mid-August till we start processing in mid-May we have about 21 million gallons of extract for the factory to process.
It’s different from molasses. The molasses is pretty easy to store because of low purities, which means the percent sugar or the purity of sugar in the juice. Extract storage is a process. It has to be maintained at a certain pH, a certain temperature, you got to prevent moisture from getting in there to prevent spoiling of the juice because if it starts spoiling we won’t recover the sugar out of it. So it’s stored there until it can be crystallized in the factory. It’s stored for extended period of times at a certain temperature. And the atmosphere, the air above it, you can see the heat exchangers and the air- handling equipment for maintaining the temperatures in those bins are mounted on the outside with the large pipes going to the top of the tanks. So that’s all controlled and maintained throughout the process.

[¶ 28] Based on our analysis of the conditioning silos, we likewise conclude the basic structures of the extract tanks are subject to taxation as real property, but the associated equipment used to prevent the extract from spoiling is personal property not subject to taxation. See Ladish II, 416 N.W.2d at 86. Kennedy testified the temperature and the pH level in the tanks are controlled by heat exchangers and air handling equipment. This equipment that preserves the extract so it can be processed into marketable sugar constitutes items used directly in and solely for the purpose of producing sugar, and, as such, pertains to use of the structures. As with the conditioning silos, the physical structures of the extract tanks are not so highly specialized that they have no alternative use at the factory. The record does not suggest that the equipment associated with the tanks was constructed as an integral part of and is essential for support of the structures. Furthermore, the description of the equipment indicates it would be removable without limiting or restricting the use of the structures. The equipment associated with the extract tanks, therefore, meet the definition of personal property not subject to taxation.

C

[¶ 29] American Crystal argues the court erred in failing to conclude the beet storage sheds or freezers are personal property not subject to taxation.

[¶ 30] American Crystal has three freestanding sugar beet storage sheds or freezers that are designed to allow the factory to continue to operate until all of the beets harvested in a typical year can be processed. Kennedy explained:

[T]he beets are put in there and we use the ambient or cold weather like this to freeze the beets down to well below freezing basically in a large chunk, and they need to stay in that state until they’re processed. If they thaw out they pretty much immediately turn to mush and they’re no longer — we’re no longer able to process those beets in the facility. So they got to be maintained there, especially in the month of May. They’re frozen down rapidly and maintained there for the whole duration.
These are specially designed freezers. They take the air — and I’ll show you a schematic here in a minute of how they actually work. Once they’re frozen down they’re actually covered with insulation inside those to help keep the temperature down and keep the beets frozen until we actually can process them. They are used exclusively to extend the duration of the campaign at all of our facilities and specifically, in this case, Hillsboro.
This is an end view of one of the freezers. This would be the large door where trucks deliver the beets. But essentially this is a large air plenum. On both sides we have the option to bring in outside air or inside air drawn through computer-controlled fans to maintain the temperatures inside. Those are ducted underneath through the floor in about 10-foot spacing. That is pushed up through the beets and vented out the top ducts. Like if you drove out there now, you’d see a lot of steam being driven off. That’s because the beets are in the process of being frozen. When they’re frozen everything’s shut down, they’re sealed up, and maintained at that temperature until we open them up in the spring of the year to start processing.

[¶ 31] We do not view the sugar beet sheds or freezers any differently than the conditioning silos or the extract tanks. Although the basic structure of the freezers constitute real property subject to taxation, the associated equipment designed to keep the beets in condition to be processed into sugar at a later time must be classified as personal property exempt from taxation. Without the associated equipment, the beets stored in the structures could not be processed. This equipment is used directly in and solely for effectuating the purpose of processing beets into sugar, and therefore, the equipment pertains to the use of the building. The equipment is not constructed as an integral part of the structures and is not essential for support of the structures. Furthermore, the equipment is removable without materially limiting or restricting the use of the structures. Kennedy testified the structures could also be used as general storage facilities. Consequently, we conclude the equipment associated with the beet storage sheds or freezers are personal property not subject to taxation, but the basic structures are subject to taxation.

D

[¶ 32] During the proceedings, the Board took the position that the conditioning silos, the extract tanks, and the beet storage sheds or freezers were subject to property taxation in their entirety, without differentiating between the equipment and the basic structures. American Crystal took the position that the conditioning silos and the extract tanks were exempt from taxation in their entirety, also without differentiating between the equipment and the basic structures. With regard to the beet storage sheds or freezers, American Crystal differentiated between the equipment and physical structures and asserted that the nontaxable personal property “accounts for about 45 percent of the original acquisition costs.” We remand this case to the Board to reassess the value of this property minus the equipment which is personal property exempt from taxation. It is within the Board’s discretion to decide if it needs additional evidence to make the assessments.

IV

[¶33] The Board argues the district court erred in ordering that the land upon which the plant is located be reclassified as agricultural property rather than as commercial property. The Board contends the land was not classified as commercial property and, in any event, the distinction between agricultural and commercial property is irrelevant in this case because, under the “trended cost” method it used for valuation, classification of the land as either commercial or agricultural does not matter. American Crystal has not responded to the Board’s assertions. Because the Board has provided no reason to upset the court’s ruling on this apparent nonissue, we affirm that part of the judgment.

V

[¶ 34] We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

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

      . Because the memorandum opinion and order was clearly intended to be final, we treat it as an appealable final judgment. See, e.g., Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895.


author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

text:
    2006 ND 123
    Brandon J. PORTER, Plaintiff and Appellant v. Olga V. PORTER, Defendant and Appellee.
    No. 20050358.
    Supreme Court of North Dakota.
    June 1, 2006.

      Jonathan Edward Aim, Louser and Zent, PC, Minot,' N.D., for plaintiff and appellant.
    Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Brandon Porter appealed from a district court order denying his motion to move with his child from North Dakota to Alaska. We conclude the district court erred in applying the Stout-Hawkinson factors, and we therefore reverse and remand.

I

[¶ 2] Brandon Porter is a member of the United States Air Force. Brandon and Olga Porter were married in 1996. The parties’ -minor child was born in 1999, while Brandon Porter was stationed in Alaska at Eielson Air Force Base. In 2002, Brandon Porter was transferred to Minot Air Force Base in North Dakota. Brandon and Olga Porter were divorced in 2003, and judgment was entered, consistent with the parties’ stipulation, awarding the parties joint legal custody of their child and awarding Brandon Porter primary physical custody.

[¶ 3] In March 2005, Brandon Porter received notice he was being transferred back to Eielson Air Force Base in Alaska. In April 2005, Brandon Porter moved for permission from the court to remove the parties’ child from North Dakota. After a hearing, the district court denied Brandon Porter’s motion, concluding he orchestrated the transfer from North Dakota to Alaska in an effort to distance himself from Olga Porter and to limit her involvement in raising the child. The court also concluded it doubted whether there was a realistic way to provide visitation that would preserve and foster Olga Porter’s relationship with the child, and it was questionable whether Brandon Porter would comply with any court-ordered visitation.

II

[¶ 4] Section 14-09-07, N.D.C.C., provides, “[a] parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent.” The court’s primary consideration in relocation cases is whether it is in the child’s best interests to move to another state. Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 7, 681 N.W.2d 762. The custodial parent has the burden to prove, by a preponderance of the evidence, that the move is in the child’s best interests. Id.

[¶ 5] The district court’s decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Stout v. Stout, 1997 ND 61, ¶ 7, 560 N.W.2d 903. A finding of fact is clearly erroneous if “it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Id. This Court will not reweigh the evidence or reassess credibility when there is evidence to support the district court’s findings, and we will not reverse the decision merely because we might have reached a different conclusion. See Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694.

[¶ 6] To determine whether a contemplated move is in the child’s best interests, a district court must consider the four factors that were enumerated in Stout and modified in Hawkinson:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move, and
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Stout, 1997 ND 61, ¶33, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144 (modifying the fourth factor). One factor is not dominant, and what may not be important in one case may be of more significance in another case. Oppegard-Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762. The district court must analyze all four factors when determining whether the move is in the child’s best interest; failure to address all four factors is reversible error. Dvorak v. Dvorak, 2005 ND 66, ¶ 19, 693 N.W.2d 646.

A

[¶ 7] Brandon Porter argues the district court clearly erred because it failed to address the first Stout-Hawkinson factor. We agree.

[¶ 8] The first factor requires the court to consider the prospective advantages of the move, and in doing so, the court is not limited to only considering the enhanced economic opportunities for the custodial parent, but must also consider the other less tangible benefits of the relocation. Stout, 1997 ND 61, ¶ 33, 560 N.W.2d 903. Essential. to the analysis .is the “importance of maintaining continuity and stability in the custodial family.” Goff v. Goff, 1999 ND 95, ¶ 14, 593 N.W.2d 768. The court should consider any. evidence presented regarding the relationship between the custodial parent and the child, and may also presume the custodial parent plays a significant role in the child’s life due to the nature .of their relationship. This Court has stated, “[w]e will reverse, if the trial court’s analysis fails to give sufficient credence to the need for keeping the custodial family intact.” Id.

[¶ 9] Olga Porter claims Brandon Porter is not the child’s custodial parent and that they are in fact joint custodians. The parties stipulated they would receive joint legal custody with Brandon Porter receiving primary physical custody of the child. We give a great deal of deference to custody provisions in a stipulated decree because the parties agreed to those terms and the terms were adopted by the court. Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. We encourage divorced parents to cooperate and allow flexible visitation to provide a healthy environment for the child, and as we have previously stated, we will not punish a custodial parent “for allowing, either voluntarily or out of necessity, the child [] to exercise flexible, liberal visitation with [the noncustodial parent].”' Id. at.1I13. However, notwithstanding - Olga Porter’s additional visitation, for purposes of N.D.C.C. § 14-09-07 the parties are not joint custodians. Brandon Porter is the child’s primary custodian, and therefore the district court must consider the benefits of maintaining the custodial relationship that exists between. Brandon Porter and the child.

[¶ 10] Although Olga Porter argues Brandon Porter failed to present any evidence on the first' Stout-Hawkinson factor which would allow the court to make findings, her argument is' unpersuasive. The evidence presented to the district court included the economic benefits, the recreational benefits, and the benefits of maintaining the custodial parent/child relationship. Brandon Porter testified to his daily involvement in the child’s life, including helping her with school work and his involvement in her daily routine. He testified to the recreational activities he participates in with the child, including hockey, soccer, snowmobiling, four wheeling, and other outdoor activities. Brandon Porter also testified to the economic benefit his family would receive, including an increased cost of living allowance of $500' per month, a housing allowance of $600 per month, and his. wife would receive a pay raise of $5,000 to $6,000 per year. He also testified if he refused the transfer he would effectively end his military- career because he would likely be denied re-enlistment. Brandon Porter is not required to provide the district court “with a comparative cost-of-living analysis to prove the economic advantage of the proposed move.” See Dickson v. Dickson, 2001 ND 157, ¶ 19, 634 N.W.2d 76. Although Olga Porter claims the cost of living is greater in Alaska and Brandon Porter will not see an economic benefit from the move, she failed to present any evidence supporting this claim. The district court may have considered the first factor and this evidence in reaching its conclusion, but the court’s analysis fails to address the factor or the relevant evidence.

[¶ 11] We conclude the district court misapplied the law and clearly erred in failing to address the first Stout-Hawkinson factor. On remand, the court must consider the advantages of the move, including the stability of the custodial relationship and the evidence presented regarding the economic and non-economic advantages. In doing so, the court should consider that Brandon Porter is unable to reconsider the decision to relocate due to his position in the military and he must relocate to Alaska whether or not the court gives, him permission to relocate with the child.

B

[¶ 12] The district court made specific findings on the second Stout-Hawkinson factor, concluding Brandon Porter’s motive for relocating to Alaska was improper. It is apparent from the court’s decision that this was the primary reason the court denied Brandon Porter’s motion to relocate.

[¶ 13] The district court found this was not the usual military transfer case, instead the evidence presented led the court to conclude Brandon Porter orchestrated his transfer from North Dakota to Alaska. The evidence the court found supporting its conclusion included Brandon Porter’s “Dream Sheet,” filled out six months after the parties’ divorce, listing Eielson Air Force Base as an installation he would accept a transfer to. The court found Brandon Porter’s actions in filling out the “Dream Sheet” were suspect and questioned whether he was attempting to put distance between himself and Olga Porter without regard for the child’s best interests. The court found Brandon Porter’s demeanor and uneasiness when questioned about the “Dream Sheet” and why he requested Olga Porter not attend the child’s recreational activities supported its decision. Based on this evidence, the court concluded the move to Alaska was the result of Brandon Porter’s desire to minimize the amount of contact he would have with Olga Porter regarding their child, and therefore was improper.

[¶ 14] There is sufficient evidence to support the district court’s findings under the second Stoutr-Hawkinson factor. We do not reweigh that evidence, and we are not left with a definite and firm conviction the district court made a mistake on this factor. The court’s findings on this factor are not clearly erroneous.

C

[¶ 15] Under the third Stoüb-Hawkinson factor, the district court concluded Brandon Porter did not argue Olga Porter’s motives for opposing the move were suspect in any way. The court found Brandon Porter conceded that Olga Porter’s opposition was based on a desire to maintain a relationship with the child.

[¶ 16] Brandon Porter argues the district court’s finding is incorrect. In Brandon Porter’s district court reply brief he argued Olga Porter was opposing the move in an attempt to obtain custody of the child, to create a financial hardship for Brandon Porter, and to cause harm to his relationship with the child. Brandon Porter also presented evidence of an email from Olga Porter that he claimed supports his position. The evidence does not support the district court’s finding that Brandon Porter conceded the third factor was not at issue, and therefore, the district court’s finding on the third factor is clearly erroneous. On remand, the district, court must analyze this factor.

D

[¶ 17] The fourth Stout-Hawkinson factor requires the court to consider “the negative impact of the move on the noncustodial parent’s relationship with the child [] and the ability to restructure visitation to foster and preserve the relationship.” Oppegard-Gessler, 2004 ND 141, ¶ 15, 681 N.W.2d 762. “Distance alone is not a sufficient basis to deny relocation; it must'be considered in the contend of the ability to refashion a visitation schedule that can foster the noncustodial parent/child relationship.” Goff, 1999 ND 95, ¶ 17, 593 N.W.2d 768. While it may be' impossible to establish a visitation schedule with the same amount of visitation or with visitation as frequent, the court must consider that “ ‘[a] visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability to foster and develop a relationship with .the child.’” Olson v. Olson, 2000 ND 120, ¶4, 611 N.W.2d 892 (quoting Tibor v. Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480).

[¶ 18] Brandon Porter proposed a visitation schedule that included extended summer visitation, phone contact, and use of a webcam for weekly visits. However, the district court questioned whether there was any visitation .schedule that would provide an adequate basis for preserving and fostering Olga Porter’s relationship with her child. The court concluded the move would - irreparably harm the relationship between. Olga Porter and the child, because Brandon Porter is not the type of parent that would preserve and foster .the relationship between Olga-Porter and the child especially over a great distance.

[¶ 19] Furthermore, the court was concerned that Brandon Porter ‘ would not comply with any modified visitation agreement because Brandon Porter- had requested Olga Porter not attend some of the child’s recreational- activities.. During his testimony Brandon Porter explained that he asked Olga Porter not to attend some of the . child’s recreational activities because the child became confused when Olga Porter attended those activities. Brandon Porter also explained that these recreational activities, were not during Olga Porter’s visitation time and he never denied Olga Porter any scheduled visitation. The court found Brandon. Porter’s explanation was short on substance and was not persuasive.

[¶ 20] On' this record, it is pure speculation for the district court to conclude Brandon Portér would not honor a court-ordered visitation schedule should he be allowed to” move the child to Alaska. We conclude there is ño evidence to support the court’s finding about visitation and that its finding is clearly erroneous.

III

[¶ 21] We reverse and remand for further proceedings consistent with this opinion.

[¶ 22] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 23] Because the district court properly followed the law and because the majority wrongly seeks to substitute its judgment for that of the district court on findings of fact, I dissent.

[¶24] Plainly and simply stated, the district court found that this is a move-away case involving bad motives on the part of the custodial parent.

[¶ 25] The record shows that the custodial parent’s transfer to Alaska reflects his “dream sheet” filing with the Air Force, indicating Alaska as his “dream” location. He acknowledged that he did not have to make such a filing. The custodial parent’s attorney acknowledged at oral argument that there' is no evidence that absent his dream sheet, he would have been transferred to Alaska.

[¶ 26] As the district court found:

In the usual course of events, the Court would be inclined to give a person in Brandon’s position permission to move his child out of state. However,' the Court finds that this is not your “garden variety” case of a person in' the military being transferred from one duty station to another. Based upon the evidence, the Court is led to the inescapable conclusion that Brandon — at least to some degree — orchestrated his transfer from North Dakota to Alaska.
Brandon seemed very uneasy when talking about all of this at trial; and this uneasiness, coupled with Brandon’s acknowledged request of Olga that she not attend certain of Isabelle’s recreational activities/events, causes the Court to: 1. question the integrity of Brandon’s motives for relocation; 2. seriously doubt whether, if relocation is allowed, there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering Olga’s relationship with Isabelle; and, 3. question whether Brandon would comply with a modified visitation schedule devised 'by the Court.
In the final analysis, the' Court is persuaded, by the greater weight of the evidence, that Brandon’s move to Alaska is the result, at least in part, of his desire to minimize the amount of contact he will' have with Olga in relation to visitation and other issues associated with Isabelle’s upbringing. In the Court’s view, this is an improper motive for relocation on Brandon’s part, and demonstrates to the Court that he does not have Isabelle’s best interests truly at heart when it comes to preserving and fostering the relationship between Isabelle and her mother Olga.

[¶ 27] A custodial parent seeking a court order permitting a change in a child’s residence to another state under N.D.C.C. § 14-09-07 “must prove, by a preponderance of the evidence, that the move is in the best interests of the child.” Stout v. Stout, 1997 ND 61, ¶ 9, 560 N.W.2d 903. The district court did not believe Brandon Porter had met that burden.

[¶ 28] The majority, at ¶ 10, discusses the supposed economic benefit his family would receive from the move, and the consequences of refusing the transfer, “which would effectively end his military career.” Actually, what the majority characterizes as the “economic benefit” he will receive is, according to his own testimony, “a cost of living allowance.” The additional $500 Brandon Porter would receive was specifically labeled a cost-of-living allowance. The $600 per month housing allowance was actúally an increase of $600 per month from his existing housing allowance to assist with the higher cost of living in Alaska. By definition, these “benefits” would be allowances to help cover the higher cost of living, in this case, in Alaska. That he will receive a cost-of-living adjustment to help cover the costs of a more expensive place to live establishes no economic benefit at all. The evidence reflects that the wife’s “salary increase” is also related to the higher cost of living in Alaska, and that they are going to “spend more at the end of each month.”

[¶ 29] The majority quotes Dickson v. Dickson, 2001 ND 157, ¶ 19, 634 N.W.2d 76, out "of context, and wrongly seeks to shift the burden from the proponent of the move. What the Court said in Dickson is, “Nor have’we required a custodial parent to provide a trial court with a comparative cost-of-living analysis to prove the economic advantage of the proposed move. Although relevant, cost-of-living evidence is not required.” Further, in Dickson, the custodial parent was not claiming a cost-of-living adjustment as an economic advantage of the move. In this case, the custodial parent seeks to claim cost-of-living adjustments as an “economic advantage” of the move, but it in fact establishes no economic advantage.

[¶ 30] The district court specifically cites Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762, and discusses the noneconomic considerations of the first factor, including “that the Court must ‘weigh the advantages of the move while recognizing the importance of maintaining continuity and stability in' the custodial family....’ Further, ‘Both the economic and noneconomic advantages of the move must [be] given, due weight.’ ’.’

[¶ 31] The majority ' also references that Brandon Porter may not have been allowed to reenlist if he had not accepted the transfer to Alaska. The district court found, however, that this problem was of his own making because of his improperly motived acts, resulting in his being transferred to Alaska. Two maxims , of jurisprudence are that “[a] person cannot take advantage of that person’s own wrong,” and, “[n]o one should suffer by the act of another.” N.D.C.C. § 31-11-05(8), (11); see also Kraft v. Moore, 517 N.W.2d 643, 645 (N.D.1994) (“This case calls'for application of the maxim that a person may not take advantage of her own wrong.”). Brandon Porter cannot take advantage of his own wrong.

[¶ 32] The district court properly did its job.

[¶ 33] I would affirm.

[¶ 34] Dale V. Sandstrom