author: RANDALL, Judge

text:
    Peter W. MORTON, Respondent, v. Gregg N. DYSTE, M.D., Appellant.
    No. C4-00-2046.
    Court of Appeals of Minnesota.
    June 12, 2001.

      Mark Hallberg, Mackenzie & Hallberg, P.A., Minneapolis, MN, (for respondent).
    William H. Leary, Geraghty, O’Loughlin & Kenney, P.A., St. Paul, MN, (for appellant).
    Considered and decided by RANDALL, Presiding Judge, PETERSON, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

RANDALL, Judge

The district court denied appellant-physician’s motion for summary judgment and ruled that Minn.Stat. § 541.076 (2000) revived respondent’s time-barred claim. Appellant challenges the district court’s ruling, arguing that the Minnesota Legislature did not intend Minn.Stat. § 541.076 to revive claims that were time-barred by the previous statute of limitations. We reverse.

FACTS

Respondent Peter W. Morton was injured during a bicycle accident on August 27,1995. After admission to North Memorial Medical Center, appellant Dr. Gregg N. Dyste, a neurosurgeon, treated Morton’s resulting spinal cord injury. Since August 1995, Morton has suffered from quadriplegia and is respirator dependent.

At the time of Morton’s injury, under Minn.Stat. § 541.07(1) (1994), the statute of limitations for medical-negligence claims was two years. The parties do not dispute that Morton’s cause of action accrued in 1995, and thus became time-barred in 1997. In 1999, the Minnesota Legislature enacted Minn.Stat. § 541.076, extending the statute of limitations for medical-negligence claims to four years, which became effective on August 1,1999.

On August 26, 1999, four years after his injury, Morton commenced a medical-negligence action against Dyste. On November 18, 1999, Dyste moved for summary judgment, claiming that Morton failed to commence his action within the two-year limitation period provided by Minn.Stat. § 541.07(1). On December 6, 2000, the district court denied Dyste’s motion for summary judgment and certified the question as important and doubtful pursuant to Minn. R. Civ.App. P. 103.03(h). After two amended orders, Dyste now appeals from the district court’s denial of his summary judgment motion.

ISSUE

Does Minn.Stat. § 541.076 (2000), which provides a four-year statute of limitations for medical-negligence claims, apply to a claim that accrued in 1995 and became time-barred in August 1997, two years before the statute of limitations for such claims was changed from two years to four years?

ANALYSIS

Dyste argues that the district court erred by applying Minn.Stat. § 541.076 (2000) retroactively to revive Morton’s time-barred claim. When reviewing an appeal from summary judgment, we ask two questions: (1) whether any genuine issues of material fact exist and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Statutory interpretation is a question of law that we review de novo. Koehnen v. Dufuor, 590 N.W.2d 107, 108-09 (Minn.1999).

At the time of Morton’s injury, the statute of limitations for medical-negligence claims was two years. Minn.Stat. § 541.07(1) (1994). Because Morton’s claim accrued in 1995 and he failed to file a lawsuit within two years of accrual, his claim became time-barred in 1997. In 1999, the Minnesota Legislature enacted a four-year statute of limitations that applied to medical-negligence claims. 1999 Minn. Laws ch. 23, § 3 (codified at Minn.Stat. § 541.076(b) (2000).) The four-year statute became effective August 1, 1999, and applied “to actions commenced, on or after that date.” Id. (emphasis added).

On August 26,1999, four years following his injury and after the new statute of limitations was enacted, Morton commenced a lawsuit against Dyste. Thus, Morton filed his claim after it became time-barred under the old statute of limitations but just before the new, four-year limitation period had elapsed. Because Morton’s claim was time-barred for approximately two years before the four-year statute of limitations became effective, “revival” of his claim would be required to allow it to be timely filed under the new limitation period. The issue squarely presented is whether Minn.Stat. § 541.076 operates not only retroactively, but operates retroactively to revive previously time-barred medical-malpractice claims.

A. Retroactivity

Despite the timeline of events, Morton asserts that it is speculative to suggest that his claim was time-barred. He argues that since he never filed a lawsuit, no court ever had a chance to rule on the statute of limitations and, therefore, he argues it has never been “adjudicated” as time-barred. Morton’s assertion is not persuasive. See Chizmadia v. Smiley’s Point Clinic, 428 N.W.2d 459, 461 (Minn.App.1988) (reviewing court determined action was time-barred by law even though district court had not reached statute of limitations issue), revieiv denied (Minn. Oct. 26, 1988). Morton’s argument that his claim was not technically time-barred in August 1997, because he did not file it until August 26, 1999, “so no court ever said it was time-barred” (and thus he argues his 1995 injury claim is still “alive” and can take advantage of the August 1, 1999, extension from two to four years) is a backwards argument. It can be answered best by straightening it out. There is no affirmative duty on defendants who have never been sued to hire an attorney, get service of process on all potential claimants, and then run into the court one day after the statute of limitations they rely on has expired, and affirmatively ask the district court for a declaratory judgment that “if a lawsuit is started against me based on these facts, I want a declaratory judgment that there is no lawsuit because it is time-barred.” Historically, and to the present day, 'plaintiffs bear the affirmative burden of commencing their lawsuit within the proper time limit under the applicable statute of limitations. Defendants have no affirmative duty to bring a potential lawsuit to the court’s attention and ask for a “pre-lawsuit ruling” that all applicable statutes of limitations have expired.

Morton then argues that the language of Minn.Stat. § 541.076 shows the legislature’s clear and manifest intent to apply the statute retroactively. We are not persuaded. First, “[n]o law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn.Stat. § 645.21 (2000). Thus, there is a presumption against retroactive effect. Defeat of this presumption requires

much clearer evidence of retroactive intent in the statute’s language — -such as mention of the word “retroactive” — before [a reviewing court will] determine that a statute was intended to be applied retroactively.

Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn.1985).

Morton relies on LaVan v. Community Clinic, 425 N.W.2d 842 (Minn.App.1988), review denied (Minn. Aug. 24, 1988), which examined Minn.Stat. § 541.15 (1986), a provision of the 1986 Tort Reform Act. This provision shortened the “suspension” period of limitation for minority as a disability in medical-negligence claims. As in this case, the statutory amendment in La-Van applied to “actions commenced on or after the effective date.” Id. If Minn.Stat. § 541.15 had a retroactive effect, the plaintiffs claim in LaVan would have been time-barred because the new, shorter limitations period had already elapsed. On the other hand, if Minn.Stat. § 541.15 applied prospectively, the plaintiffs claim would have been timely because she had not yet reached 19. This court found that Minn.Stat. § 541.15 was retroactive. La-Van, 425 N.W.2d at 845-46.

Morton contends that because of the similarity between the language in Minn. Stat. § 541.15 and Minn.Stat. § 541.076, LaVan is controlling. But Morton does not account for a factor that distinguishes LaVan. The 1986 Tort Reform Act contained several provisions, many with differing effective dates and varying enactment language. In LaVan, we found that Minn.Stat. § 541.15 was retroactive after comparing it to several enactment provisions contained within the 1986 Tort Reform Act. When examined alongside contrasting language in other provisions of the act, the entirety of the enactment language in the act led us to conclude that Minn. Stat. § 541.15 was retroactive. In other words, in determining whether Minn.Stat. § 541.15 was retroactive, we compared other language from the same act to the language in question. In this case, there is no such contrasting language. Minn. Stat. § 541.076 is not part of a larger act with comparative enacting language. Thus, the mere use of the “commenced on or after” language does not show specific retroactive intent on the part of the legislature. Most importantly, we did not even address the issue of revival in LaVan.

Morton also relies on K.E. v. Hoffman, where we held that the statute of limitations of the new law relating to sexual-abuse claims applied “to actions pending on or commenced on or after [the enactment date of the new statute].” K.E. v. Hoffman, 452 N.W.2d 509, 512 (Minn.App.1990), revieiv denied (Minn. May 7, 1990) (quotation omitted). In Hoffman, we concluded that the new statute was retroactive partly because its language indicated that it should apply to pending cases. Id. Morton’s case when he filed his lawsuit in 1999 was not “pending.” He had never filed it so as to make it “pending,” and during the time that he did not file it, the then controlling statute of limitations, two years, ran out on Morton.

Morton then cites Baertsch v. Minnesota Dept. of Revenue, 518 N.W.2d 21, 24 (Minn.1994), pointing to the Minnesota Supreme Court’s finding that the word “retroactive” need not be used to find legislative intent for retroactivity. But in Baertsch, no words of retroactivity were required to show the legislature’s retroactive intent, since the statute’s effective date was before the statute was enacted. Id. The amendment was passed in May 1993 and its effective date was January 1, 1993, five months earlier. Id. at 23-24. Thus, by definition, five months retroactively was built into that statute. In contrast, Minn.Stat. § 541.076 discussed claims commenced on or after August 1, 1999. Here, the effective date of Minn. Stat. § 541.076 is after the statute’s enactment date, which is by far the most common way to choose a starting time for a legislative enactment.

Finally, in Borich v. Borich, 450 N.W.2d 645, 646 (Minn.App.1990), we found the very same “commenced on or after” language amendment “clearly indicated a prospective effect only.” Although Borich was not a statute of limitations case, when compared to LaVan, it shows that Minnesota courts have not interpreted the “commenced on or after” language to be exclusively retroactive without looking further at the legislation.

B. Revival

Retroactivity is the threshold issue, but the specific narrow question here is whether the four-year statute of limitations can revive a claim that was time-barred before its enactment. Even if the legislature intends retroactive operation of a statute, it is not automatic that it intends the legislation to revive a previously time-barred claim. See Whittier v. Village of Farmington, 115 Minn. 182, 187, 131 N.W. 1079, 1081 (1911) (holding that amendment lengthening time to appeal election from six years to eight years “would not revive” claim that was time barred before new law took effect). In Whittier, the Minnesota Supreme Court stated:

[W]e have found no case where it has been held that a right, once existing, but lost because of a failure to comply with a statute, a compliance with the provisions of which was essential to its preservation, has been revived by an amendment of the statute changing the steps necessary to protect the right.

Id. Whittier is still the law. Morton argues that eases since Whittier support retroactive application of Minn.Stat. § 541.076. But all the cases he cites can be distinguished because they address claims that were not time-barred before the enactment of the new statute. Although retro-activity was at issue in those cases, revival was not. Morton asserts that Whittier is not authoritative because it was superced-ed by the enactment of Minn.Stat. § 645.21. But Morton fails to explain how Minn.Stat. § 645.21 is inconsistent with Whittier. We find Whittier consistent with Minn.Stat. § 645.21. The court in Whittier held that the new, extended statute of limitations cannot revive a time-barred claim, which is consistent with the presumption of prospectiveness set forth in Minn.Stat. § 645.21. Based on the relevant caselaw regarding retroactivity, the language of Minn.Stat. § 541.076 does not show a clear and manifest intent on the part of the legislature to apply the statute retroactively. In short, the language of Minn.Stat. § 541.076 does not show anything close to a clear and manifest intent on the part of the legislature to apply the statute so retroactively that it brings to life earlier claims that had become time-barred before the August 1, 1999, effective date.

With a few slight differences in arguments, which we have addressed above, this court’s recent decision in Gomon v. Northland Family Physicians, Ltd., 625 N.W.2d 496 (Minn.App.2001), resolved the issue of how Minn.Stat. § 645.21 impacts post-WMifer cases. In Gomon we held that

[t]he distinction between applying an expanded statute of limitations “retroactively” to claims not yet barred * * * and application to claims time-barred * * * has clearly survived after passage of Minn.Stat. § 645.21.

Id. at 500.

Morton argues that the “commenced on or after” language is superfluous unless the statute is intended to apply to actions that accrued before the enactment date. It is a “maxim of statutory construction that a statute is to be construed, if possible, so that no word, phrase, or sentence is superfluous, void, or insignificant.” Duluth Firemen’s Relief, 361 N.W.2d at 385 (citation omitted). The language is not superfluous, however, because the statute might apply to claims that were not time-barred before the enactment of the new statute of limitations. Gomon, 625 N.W.2d at 500. In other words, even if the “commenced on or after” language was intended to apply to claims that were not time-barred before the amendment date, this language does not show a specific intent to revive those claims such as Morton’s that were time-barred before August 1,1999.

Morton goes to great lengths to examine the legislative history of Minn. Stat. § 541.076 in an effort to show that the legislature intended to revive previously time-barred claims. If a statute’s language is ambiguous, it is permissible to look at legislative history to determine how the language should be read. Baumann v. Chaska Building Center, Inc., 621 N.W.2d 795, 797 (Minn.App.2001). Whether statutory language is ambiguous is a question of law. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). But,

[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.

Minn.Stat. § 645.16 (2000). If the statutory language is unambiguous, “we cannot supply that which the legislature has declined to provide.” Borich, 450 N.W.2d at 647 (citation omitted).

As set out above, we find the language of Minn.Stat. § 541.076 unambiguous in that it shows no specific intent to revive previously-barred claims. Assuming, for the sake of argument, that the statute is ambiguous regarding revival, examination of the legislative history reveals a complete lack of consensus on whether the August 1, 1999 statute of limitations revives previously time-barred claims. The legislature’s intent arises from the “collective understandings of the individual members.” Handle with Care, Inc. v. Department of Human Services, 406 N.W.2d 518, 522 (Minn.1987). Senator Kiscaden’s comments show an intent not to revive previously time-barred claims:

Kiscaden: * * * I just want to make sure that the effectiveness date accomplishes what we had agreed to in committee in terms of not being able to initiate any causes of action, not renewing old claims and so on.

Senate Floor Debate on H.F. No. 56 (Mar. 8, 1999). A different intent is inferable from a comment by Representative Bishop in his testimony before the House Health and Human Services Committee:

Bishop: And only one of the amendments came forth at the end, and that was, that was to put the statute at four years, to have it retroactive so that anyone who two years ago had a cause of action that otherwise would be expired, if it were in January of 1997, for example, would have a four-year statute of limitations ⅜ * *.

Hearing on H.F. No. 56 Before the House Comm, on Health & Human Servs. (Feb. 4, 1999). Even Representative Bishop’s comments do not necessarily distinguish between retroactivity and revival. We can find no unambiguous legislative history that gives support to Morton’s position that his previously time-barred claim has been revived. As we noted in Gomon:

The final discussion, therefore, appears to have represented the senators that this bill would not even retroactively extend the four-year limitation to actions that accrued prior to August 1, 1999, let alone revive time-barred actions.

Gomon, 625 N.W.2d at 501-02.

DECISION

The four-year statute of limitations provided by Minn.Stat. § 541.076 (2000), which governs medical-malpractice claims commenced on or after August 1, 1999, does not apply retroactively to revive a claim that was time-barred before August 1, 1999. The district court erred as a matter of law by reviving Morton’s claim and by denying Dyste’s summary-judgment motion.

Reversed.

      . The parties do not dispute when Morton's claim accrued. Accrual for medical malpractice occurs when treatment for the particular condition ceases. Zagaros v. Erickson, 558 N.W.2d 516, 520 (Minn.App.1997), review denied (Minn. Apr. 17, 1997).


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2001 ND 111
    In the Interest of A.B., a child Lannon V. Serrano, Petitioner and Appellee, v. A.B., child, Respondent and Appellant, S.S., Mother, and A.B., Father, Respondents.
    No. 20010016.
    Supreme Court of North Dakota.
    June 8, 2001.
    DeWayne Johnston, Olson Johnston Law Office, Grand Forks, for respondent and appellant.
    Brandi Jo Sasse, Assistant State’s Attorney, Mandan, for petitioner and appellee.
   NEUMANN, Justice.

[¶ 1] A.B., child, (“Andrew,” a pseudonym) appealed from a Morton County juvenile court order, finding Andrew twice committed the delinquent act of escape from the North Dakota Youth Correctional Center, finding Andrew to be in need of treatment and rehabilitation as a delinquent child, and continuing Andrew’s legal custody in the North Dakota Division of Juvenile Services (“DJS”) for twelve months. We hold the juvenile court violated N.D.C.C. § 27-20-12(1), in failing to transfer the proceedings for final disposition to the Grand Forks County juvenile court. We affirm that part of the juvenile court’s order finding Andrew committed delinquent acts and is in need of treatment, but we reverse that part of the order rendering disposition, and remand the case for transfer to the Grand Forks County juvenile court for final disposition.

I

[¶ 2] While under the care, custody, and control of DJS, Andrew escaped on August 6, 2000, from the North Dakota Youth Correctional Center in Morton County. He was subsequently returned, and again escaped from the facility on September 25, 2000. A petition alleging Andrew committed the delinquent acts of escape, unlawful entry into a motor vehicle, and theft of property, was filed in the juvenile court in Morton County.

[¶ 3] Andrew appeared with his attorney at a hearing on November 17, 2000, to address the charges in the petition. During the hearing, Andrew testified and admitted he committed two delinquent acts of escape. He also admitted he was in need of treatment and rehabilitation. The juvenile court referee immediately proceeded to a dispositional hearing and, thereafter, entered an order of final disposition committing Andrew to the custody of the DJS for one year and giving DJS express authority to physically place Andrew where it deemed to be in Andrew’s best interests, including placement in an out-of-state facility.

[¶ 4] Andrew filed a written request with the Morton County district court for review and a motion for transfer, requesting that the order of disposition be set aside and the case transferred to the Grand Forks County juvenile court for final disposition. In the written motion, Andrew’s attorney stated, “Defendant accepts the findings of fact but contends that the final order of disposition should be transferred via NDCC § 27-20-12.” The distriet court denied the request, and Andrew appealed to this Court.

II

[¶ 5] On appeal, Andrew asserts the juvenile court erred in failing to transfer this case to the Grand Forks County juvenile court for final disposition. This Court’s review of a juvenile court’s order is governed by N.D.C.C. § 27-20-56(1), which provides, “[t]he appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.” We examine the evidence in a manner comparable to the former procedure of trial de novo, but we accord appreciable weight to the findings of the juvenile court, because that court had the opportunity to hear the testimony and observe the demeanor of the witnesses. Interest of R.D.B., 1998 ND 15, ¶ 9, 575 N.W.2d 420.

[¶ 6] Under N.D.C.C. § 27-20-11, when a petition alleges delinquent conduct the proceedings may be commenced in the county in which the acts constituting the alleged delinquent conduct occurred. However, N.D.C.C. § 27-20-12(1) provides for the transfer of the case to another juvenile court under specified circumstances:

If the child resides in a county of the state and the proceeding is commenced in a court of another county, the court, on motion of a party or on its own motion made prior to final disposition, may transfer the proceeding to the county of the child’s residence for further action. Like transfer may be made if the residence of the child changes pending the proceeding. The proceed ing must be transferred if the child has been adjudicated delinquent or unruly and other proceedings involving the child are pending in the juvenile court of the county of his residence. (Emphasis added).

[¶ 7] Andrew’s original placement to the custody of DJS was under order of the juvenile court in Grand Forks County, Andrew’s county of residence. After Andrew escaped from the youth correctional facility, a petition was filed on October 16, 2000, in the Grand Forks County juvenile court requesting that court to find Andrew a delinquent child in continued need of treatment because of the escape and to make an appropriate order of disposition for continued treatment and rehabilitation.

[¶ 8] The juvenile court referee in Morton County expressly recognized at the close of the hearing on November 17, 2000, that an extension hearing on the Grand Forks petition had been set in Grand Forks County for November 22, 2000. During the Morton County hearing, Andrew’s attorney requested the juvenile court to defer final disposition of the case to the Grand Forks County juvenile court:

We would ask this Court to just keep — he’s already in the custody of DJS. He’s already under similar, if not the same, conditions. We have a hearing that’s going to be set before the local county judge there that will determine if an extension should be needed. And I don’t think this is the proper place to address the out-of-state issue. Further, being Grand Forks County has the history of this child, it’ll be easier for the Referee there to make these determines [sic], we’ll have some more time to prepare adequately. To be frankly honest, I didn’t plan, I didn’t know we’d be addressing this issue here today. And I would just ask that this Court just defer to the Grand Forks Court. As Ms. Sorge has indicated, this county would just as soon not handle the legal issues of this child and we would be better off in Grand Forks County taking care of those. Thank you Your Honor.

[¶ 9] Section 27-20-12(1), N.D.C.C., was derived from the Uniform Juvenile Court Act (ULA) § 12(a). In drafting this provision, the National Conference of Commissioners on Uniform State Laws provided the following official comment:

This section places primary responsibility for care and supervision of a child with the court of the county of the child’s residence. This court is usually in a better position to deal effectively with the child’s welfare.

[¶ 10] Section 27-20-12(1), N.D.C.C., is clear and unambiguous. If a child has been adjudicated delinquent and other proceedings involving the child are pending in the juvenile court of the county of the child’s residence, the proceedings must be transferred to that court. By requiring the court to transfer the proceedings for disposition to the juvenile court of the child’s county of residence, our statute follows the commissioners’ stated intention of keeping primary responsibility for a child’s care and supervision with the court located where the child resides and with a judge who will usually be most familiar with the child and his or her history. This statutory requirement of transfer also serves to eliminate the possibility of inconsistent and competing orders of disposition by different juvenile courts dealing with the same child.

[¶ 11] Although Andrew admitted he had committed the charged delinquent acts of escape and admitted he was in need of treatment and rehabilitation, Andrew, through his attorney, requested the court to defer the final disposition of the case to the juvenile court in the county of his residence. We hold the Morton County juvenile court’s denial of that request constituted a violation of the transfer requirement under N.D.C.C. § 27-20-12(1).

Ill

[¶ 12] In accordance with this opinion, we affirm that part of the juvenile court’s order adjudicating Andrew, on his own admission, a delinquent child who is in need of treatment and rehabilitation. We reverse that part of the court’s order rendering disposition and remand the case for transfer to the Grand Forks County juvenile court for disposition.

[¶ 13] VANDE WALLE, C.J., and MARING, SANDSTROM and KAPSNER, JJ., concur.

      . At the hearing, the prosecutor withdrew the other allegations of delinquent acts for Andrew's agreement to admit he committed the two acts of escape and he needed treatment.


author: SANDSTROM, Justice.

text:
    2001 ND 109
    Kathy L. JOHNSON, Plaintiff, Appellee and Cross-Appellant v. Thomas L. JOHNSON, Defendant, Appellant and Cross-Appellee.
    No. 20000309.
    Supreme Court of North Dakota.
    June 8, 2001.

      Joanne H. Ottmar, Ottmar & Ottmar, Jamestown, for plaintiff, appellee, and cross-appellant; submitted on brief.
    Lawrence P. Kropp, Kropp Law Offices, Jamestown, for defendant, appellant, and cross-appellee.
   SANDSTROM, Justice.

[¶ 1] Thomas Johnson appealed from a divorce judgment, entered October 16, 2000, claiming the district court erred in dividing the parties’ marital property. Kathy Johnson cross-appealed from the judgment, claiming the court erred in granting a new trial, after entry of an original judgment on October 18, 1999. Because the trial court abused its discretion in granting Thomas Johnson’s motion for a new trial, we vacate the October 16, 2000, judgment and remand to the court for reinstatement of the judgment entered on October 18, 1999.

I

[¶ 2] Thomas and Kathy Johnson were married in June 1982. They have three children together, and the family lives in Jamestown. Problems developed in the marriage, and the couple separated in July 1998. In February 1999, Kathy Johnson sued to dissolve the marriage. Following a trial, the district court entered a judgment on October 18, 1999, awarding both parties a dissolution of the marriage, awarding custody of the children to Kathy Johnson with reasonable visitation for Thomas Johnson, ordering Thomas Johnson to pay child support, and dividing the marital property. Kathy Johnson moved for additional findings and clarification of the judgment. Thomas Johnson moved for a new trial. After a hearing on December 22, 1999, the court granted Thomas Johnson’s motion for a new trial. Following the new trial, the court entered an amended judgment on August 10, 2000, modifying the marital property division, and the court entered a Second Amended Judgment on October 16, 2000, making additional modifications.

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

II

A

[¶ 4] In her cross-appeal, Kathy Johnson contends the trial court “erred when a new trial was granted in this matter and the original judgment as entered on October 18,1999 should stand.”

[¶ 5] After the trial court entered its original judgment on October 18, 1999, Thomas Johnson filed a written motion for a new trial under N.D.R.Civ.P. 59(b), claiming the trial court “has shown an extreme bias and prejudice against him.” During the hearing on the motion, Thomas Johnson also asserted there was newly discovered evidence entitling him to a new trial:

[TJhere’s been newly discovered evidence which has transpired since the trial occurred. And one of the first things was that Kathy had testified at the time of trial that she was getting married to a Bob Koller. And that with his financial assistance, she could afford to pay for — make the payments on the marital home. We have been since informed that that relationship is over. She has no fiancee and so thus, a material change of circumstance — or material change in that, I believe her testimony was — is she couldn’t, she was going to have to go through some credit counseling even with Mr. Koller. But if he’s out of the picture, we’re very greatly concerned on how she could possibly afford to pay for anything.

At the close of the hearing, the trial court ruled:

The newly discovered evidence regarding the non-marriage to Mr. Koller is important to me. That was a factor in my determining that Mrs. Johnson would have the house. I will grant Mr. Johnson’s Motion for a New Trial as to property distribution....

[¶ 6] Under N.D.R.CivP. 59(b)(4), the court may vacate a decision and grant a new trial if there is newly discovered material evidence that the party, with reasonable diligence, could not have discovered and produced at the trial. Before a new trial is granted on the ground of newly discovered evidence, it must be shown: 1) the evidence was discovered following trial; 2) the movant must have exercised due diligence in discovering the evidence; 3) the evidence must not be merely cumulative or impeaching; 4) the evidence must be material and admissible; and 5) the evidence must be such that a new trial would probably produce a different result. Perry v. Reinke, 1997 ND 213, ¶27, 570 N.W.2d 224. A motion for a new trial on the basis of newly discovered evidence is addressed to the discretion of the trial court, and the court’s ruling on the motion will not be overturned on appeal absent an abuse of discretion. Keyes v. Amundson, 391 N.W.2d 602, 604 (N.D.1986).

[¶ 7] Ordinarily, events occurring after trial are not grounds to justify a new trial under N.D.R.Civ.P. 59(b)(4). See Kaiser v. Kaiser, 474 N.W.2d 63, 65 (N.D.1991). In Porter v. Porter, 274 N.W.2d 235, 242-43 (N.D.1979), this Court said:

Events occurring subsequent to trial are not grounds to justify a new trial under Rule 59(b), NDRCivP. The validity of a finding by the trial court, supported by substantial evidence on the record as to the future intentions of a party is not affected by a subsequent decision by that party to engage in conduct contrary to the finding.
... It is well settled that evidence which does not tend to prove a fact or condition existing at or prior to the time of trial does not constitute “newly discovered evidence.”

[¶ 8] Although a trial court retains jurisdiction to modify child custody and support payments, it does not retain jurisdiction to modify a final division of marital property. Watne v. Watne, 391 N.W.2d 636, 638 (N.D.1986). After the original trial, the court divided the John-sons’ marital property, and a judgment was entered. The breakup of Kathy Johnson’s engagement to her fiancee after entry of the court’s judgment is not evidence tending to prove or disprove a relevant fact existing at the time of the trial and is not, therefore, newly discovered evidence for purposes of granting a new trial under N.D.R.Civ.P. 59(b)(4). We conclude the trial court abused its discretion when it granted Thomas Johnson’s motion for a new trial on the ground of newly discovered evidence. The Second Amended Judgment dated October 16, 2000, must therefore be vacated, and the original judgment of October 18,1999, reinstated.

B

[¶ 9] In his motion for a new trial, Thomas Johnson also argued that irregularities in the proceedings denied Mm a fair trial, because the judge was biased against him. He claimed the court’s award of more property to Kathy Johnson, failure to address her bad conduct in the marriage, and allowance of ex parte communication with her “via Safe Shelter assisted applications for temporary protection orders” show the court’s bias against him.. On appeal, Thomas Johnson claims the district court erred in not awarding him a new trial on this ground.

[¶ 10] The district court’s denial of a motion for new trial under N.D.R.Civ.P. 59(b) will not be reversed on appeal absent a manifest abuse of discretion. Jarvis v. Jarvis, 1998 ND 163, ¶ 8, 584 N.W.2d 84. An irregularity that justifies a new trial is one that prevents a party from having a fair trial. State v. Ellvanger, 453 N.W.2d 810, 815 (N.D.1990).

[¶ 11] The court acknowledged both parties had acted badly toward the other at times during the marriage. That the court did not award Thomas Johnson the amount of marital property he wanted does not show bias by the court. The court sought clarification by Thomas Johnson’s attorney at the December 22, 1999, hearing about his claim the court had ex parte communications:

THE COURT: The one thing I want it to be clear on is that you’re not stating that [Kathy Johnson] contacted me directly.
THE COURT: Outside of the Protection Order, are you?
MR. KROPP: I — not that I know of, no, Your Honor.
THE COURT: Okay, thank you.
MR. KROPP: The only one — the only thing that we’re saying is through the Protection Order and — it appeared, to the best of my knowledge, it was with the assistance of Safe Shelter, and Safe Shelter certainly knew that I was representing Mr. Johnson, as well, throughout these matters. And yet no attempt was made whatsoever to involve me in those proceedings or give us an opportunity to be present, as required under the Rules of Court.

Kathy Johnson’s attorney explained there were no improper contacts:

MS. OTTMAR: ... Mr. Kropp talks about the irregularity of the Court, talks about the issue with regard to the fact that there were Protection Orders that this Court was involved in, and also in the divorce. What I have found, based upon looking through the file is that back in July, there was an Ex-Parte Order on July 2nd. And after that there was a stipulation to enter Interim Order that was entered into by Mr. Kropp and Ms. Mecklenberg, so that this Court never had a hearing on that particular Protection Order that I can tell. Then on August 11th there was another Protection Order that was filed and again there was a stipulation that was entered into by Mr. Kropp and I believe it was Ms. Mecklenberg.
And then back in December of ‘98, there was an Ex Parte Protection Order, and there was a stipulation entered to continue the Protection Order; there was no hearing held. And I believe that that matter was before this Court and I was present. And I don’t recall any objection being made to this Court hearing that matter. Then the last Protection Order that was filed after the trial in this matter. What I understand was there was an objection filed by Mr. Kropp, but that point, even after hearing-the Court heard all of the testimony — no Protection Order was extended. So I fail to see any bias that was exhibited by the Court towards Mr. Johnson.

[¶ 12] Thomas Johnson’s attorney has not disputed the facts as explained by opposing counsel, and he has failed to demonstrate how the trial court acted with or displayed bias toward his client during the proceedings in this case. We conclude Thomas Johnson’s claim that the court was biased against him, resulting in irregularities in the proceedings, is unsubstantiated and devoid of merit. We hold, therefore, the trial court did not abuse its discretion when it denied the motion for new trial on this ground.

Ill

[¶ 13] Having concluded the trial court erred in granting a new trial, other issues raised by the parties, relating to the substance of the judgments entered following the new trial, need not be addressed nor resolved for disposition of this appeal. Questions whose answers are not necessary to the determination of an appeal need not be addressed. Blikre v. ACandS, Inc., 1999 ND 96, ¶ 16, 593 N.W.2d 775. We therefore reverse the court’s order granting a new trial, vacate the Second Amended Judgment of October 16, 2000, and remand for reinstatement of the judgment entered October 18,1999.

[¶ 14] VANDE WALLE, C.J, and NEUMANN, MARING and KAPSNER, JJ., concur.

      . Although Thomas Johnson attempted to appeal from the October 18, 1999, judgment, that judgment was superseded upon entry of the August 10, 2000, judgment, which, in turn, was superseded upon entry of the Second Amended Judgment on October 16, 2000. Upon reinstatement by the trial court of the original October 18, 1999, judgment, the parties will have, under N.D.R.App.P. 4(a), 60 days from notice of entry of the judgment to file an appeal from that judgment and will also have motion practice rights as provided by the rules of procedure.


author: SABERS, Justice.

text:
    2001 SD 59
    Dawn COOPER, Plaintiff and Appellant, v. Timothy L. JAMES, Defendant and Appellee.
    No. 21580.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2001.
    Decided May 16, 2001.

      Rick Johnson of Johnson, Eklund, Nicholson, & Peterson, Gregory, Attorneys for plaintiff and appellant.
    Wanda Howey-Fox of Harmelink and Fox, Yankton, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Dawn Cooper brought suit against her former attorney Timothy James. The trial court granted summary judgment to James finding that no genuine issue of material fact existed for jury determination on the expiration of the statute of limitation. As genuine issues of material fact exist as to the time the representation of Cooper ended or whether James was estopped from asserting the statute of limitation defense, we reverse and remand.

FACTS

[¶ 2.] Cooper brought suit against James for intentional infliction of emotional distress, violation of fiduciary obligations and negligent handling of her divorce action. James moved to dismiss the action based on expiration of the three-year statute of limitation. In a motion for summary judgment, the trial court found that the three-year statute of limitation began to run on October 18,1995, and that Cooper failed to properly serve James until October 26, 1998. Cooper appeals contending that the trial court erred in determining that no genuine issue of material fact existed as to whether James continued to represent Cooper after October 17, 1995. Viewed in the light most favorable to Cooper, the nonmoving party, the facts are as follows.

[¶ 3.] Cooper retained James to represent her in her divorce from Dr. Calvin Sprik. During the course of that representation, Cooper and James began having a sexual relationship. James referred Cooper to a counselor, Dr. Peterson-Sand-bulte, who was to testify as an alimony witness in the divorce trial. During these counseling sessions, Cooper revealed her affair with James. The counselor informed James that she knew of the sexual relationship and if called to the stand would reveal the relationship if asked about it.

[¶ 4.] Thereafter, James drafted a settlement agreement with Cooper’s former husband, Sprik. This settlement agreement provided Cooper with approximately half of the couple’s assets. This settlement agreement was signed on September 19, 1995. On October 16, 1995, James received a letter from Sprik’s attorney with documents that needed to be executed to finalize the divorce. On October 17, 1995, James wrote a letter to Cooper indicating:

Enclosed please find a copy of a letter which I received from Bill Klimisch dated October 16, 1995. Along with the letter also find enclosed documents which need to be executed by you and returned to our office so that I may then forward them on to Bill Klimisch. As the letter states, upon receipt of these documents, a check will then be disbursed. If you have any questions, please contact our office and I will walk you through these documents for your signature ...
I inquired about the additional items and Kevin informs me that you agreed to be cashed out except for the specific items that you had identified in the agreement. These items do not appear to be ones that were on that list in the agreement. If you wish to argue that you were entitled to these items, please let me know and we will schedule a hearing. It is necessary for you to advise us how you wish to proceed due to your previous request that we cease any legal efforts because you do not wish to incur any additional attorney fees.

The trial court found that “any claim that [Cooper] may have had expired when the statute of limitation expired on October 18, 1998.” By its reasoning, the mailing of the October 17, 1995 letter constituted the end of James representation. Cooper asserts through affidavit testimony that the representation continued until at least December of 1995.

[¶ 5.] A copy of the summons and complaint were mailed to James for his signature or admission of service on May 11, 1998. James retained counsel who began exchanging documents with Cooper’s attorney concerning the representation during the divorce action. James’ counsel agreed to have James deposed on October 22, 1998. However, on October 21, 1998, James’ attorney canceled the deposition and claimed inadequate service. James was later properly served bn October 26, 1998. Cooper claims James should be es-topped from claiming the statute of limitation bars recovery. The trial court granted James summary judgment finding that the statute of limitation had expired. Cooper appeals raising two issues.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for summary judgment is well established:

In reviewing a grant or a denial of summary judgment under SDCL 15~6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Larrup v. First Nat’l Bank of Garretson, 496 N.W.2d 581, 583 (S.D.1993) (citation omitted).

[¶ 7.] Additionally, when summary judgment is urged based on the defense of the statute of limitation:

The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. State Dep’t of Revenue v. Thieives, 448 N.W.2d 1, 2 (S.D.1989). When faced with “ ‘a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations[.]’ ” Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 5, 581 N.W.2d 510, 513 (citations omitted). It is well settled that “ ‘[sjummary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact.’ ” Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶6, 575 N.W.2d 457, 459 (citing Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 113 (S.D.1990)). Generally, a statute of limitations question is left for the jury; however, deciding what constitutes accrual of a cause of action is a question of law and reviewed de novo. Id.

[¶8 ] 1. WHETHER GENUINE ISSUES OF MATERIAL FACT EXIST THAT JAMES REPRESENTED COOPER AFTER OCTOBER 17,1995.

[¶ 9.] The statute of limitation period for legal malpractice actions is three years. SDCL 15-2-14.2. We have adopted the “continuing treatment doctrine” in determining the applicable limitation period in legal malpractice actions. Schoenrock v. Tappe, 419 N.W.2d 197, 200 (S.D.1988). Accordingly, a cause of action for malpractice will be tolled until the “representation” terminates. Id. at 201. This representation must be more than sporadic to toll the limitation period. Id. The attorney-client relationship must involve a “continuity of the professional services from which the alleged malpractice stems.” Id. Additionally, the tolling period after the alleged malpractice must stem from “the same or related services and is not merely continuity of a general professional relationship.” Id. (citations omitted).

[¶ 10.] “The continuous representation itself must occur before the three-year statute of limitation has run, to effectively toll it.” Greene, 1998 SD 16, ¶ 13, 575 N.W.2d at 460. To affirm the grant of summary judgment, we must be convinced that no genuine issue of material fact exists that the professional service had been terminated or that no services were rendered that stemmed from the alleged malpractice after October 26, 1995. We are not convinced the facts in this case warrant summary judgment.

[¶ 11.] Our critical inquiry is whether James’ representation of Cooper continued until October 26, 1995. Here, the parties dispute when the professional relationship was terminated. In her affidavit testimony, Cooper maintains that James represented her until at least December of 1995. James argues, and the trial court found, that the professional relationship was terminated with the mailing of the letter of October 17, 1995. In support of his position, James relies upon the wording in this letter indicating that Cooper should contact him before he challenges the property cash disbursement because she indicated she did not want to incur further legal expenses. In contrast, Cooper asserts that this letter establishes that services would continue sometime past the mailing of the letter, as the letter directs her to execute certain documents and to contact the office if she wishes to receive help executing these documents. Additionally, the statement in the letter “advise us how you wish to proceed due to your previous request that we cease any legal efforts because you do not wish to incur any additional legal fees” does not indicate the representation had been terminated but that James recognized that Cooper may not wish to have a hearing to argue her entitlement to additional items without first approving the additional expense.

[¶ 12.] While it is apparent that this relationship was winding down on October 17, 1995, it is not apparent that it was terminated on that date. By its very terms, this letter indicates that additional work was necessary to finalize the divorce settlement agreement. It is clear from the record that the finalizing of the settlement agreement constituted part of the professional services which James was hired to provide. James’ assertion that only ministerial work was left to be completed following the October 17, 1995 letter is not dis-positive. Ministerial work can consume a large amount of an attorney’s practice and its importance or effect is not to be so easily dispensed with or discounted.

[¶ 13.] Clearly, this disputed time frame of the termination of the professional relationship is sufficient to establish that genuine issues of material fact still exist regarding the date the continuing representation ended. Viewing the evidence in the light most favorable to the nonmoving party, James failed to demonstrate the absence of a genuine issue of material fact and entitlement to judgment as a matter of law to sustain his burden. Thiewes, 448 N.W.2d at 2. In resisting this motion, the letter Cooper received from James, as well as her affidavit testimony, satisfy her burden of establishing her disputed version of the facts beyond “mere speculation, conjecture, or fantasy.” See Himrich v. Carpenter, 1997 SD 116, ¶ 18, 569 N.W.2d 568, 573. As such, this question should have been presented to a jury. “Summary judgment is, therefore, improper where there is a dispute of material fact which would affect the application of the statute of limitations.” Wissink v. Van De Stroet, 1999 SD 92, ¶ 15, 598 N.W.2d 213, 216.

[¶ 14.] 2. WHETHER THE ACTIONS OF JAMES ESTOPPED HIM FROM ASSERTING THE STATUTE OF LIMITATION DEFENSE.

[¶ 15.] Cooper alleges that the actions of James should bar him from raising the statute of limitation as a defense. The facts she alleges to support estoppel consist of James’ actions after he received a copy of the summons and complaint by mail on May 11, 1998. James employed counsel and sent financial documents pertaining to Cooper’s divorce. These documents were sent in order to facilitate a settlement demand by Cooper. Additionally, James consented to his deposition. However, the date set for deposition was delayed until the deposition was finally cancelled the day prior when James asserted lack of service and that the statute of limitation barred recovery.

[¶ 16.] We have previously recognized that a party may be estopped from asserting the statute of limitation defense based on his acts or conduct. See L.R. Foy Const. Inc. v. SD State Cement Plant, 399 N.W.2d 340, 344 (SD 1987); Sander v. Wright, 394 N.W.2d 896, 899 (S.D.1986). An estoppel arises where one party, by acts or conduct, induces another party to do that which he would not otherwise have done, and is thereby prejudiced. L.R. Foy Const. Inc., 399 N.W.2d at 343. In Taylor v. Tripp, 330 N.W.2d 542 (S.D.1983), we expressed the elements of equitable estop-pel as follows:

In order to constitute an equitable es-toppel, also known today as estoppel in pais, false representations or concealment of material facts must exist; the party to whom it was made must have been without knowledge of the real facts; th[e] representations or concealment must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied thereon to his prejudice or injury. There can be no estoppel if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.

[¶ 17.] Other courts have applied the theory of estoppel to prevent a defendant from lulling a plaintiff “into a false sense of security” that service was effective, and the limitation period met. See Tresway Aero Inc. v. Superior Ct. of Los Angeles Co., 5 Cal.3d 431, 96 Cal.Rptr. 571, 487 P.2d 1211, 1218 (1971). A defendant cannot egregiously lead the plaintiff to believe that service was sufficient and then delay until the statute of limitation has run. To do so would allow a defendant to plead the very delay caused by his course of conduct as an affirmative defense.

[¶ 18.] Cooper asserts that the facts of this case present such a situation. While we acknowledge that Cooper has a difficult burden of establishing estoppel on these facts, especially given the fact she had retained counsel well before the statute of limitation was to expire, jury questions exist as to equitable estoppel. Cooper has the burden of establishing by clear and convincing evidence that James conduct constituted “fraud, false representations, or concealment of material facts” in order to delay until the limitation period ran. See L.R. Foy Const. Inc., 399 N.W.2d at 344.

[¶ 19.] Therefore, for the reasons stated in issues one and two, we reverse the trial court’s grant of summary judgment and remand for factual determinations.

[¶ 20.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

       In her affidavit Dr. Pelerson-Sandbulte stated:
      I informed him that I would testify at the divorce trial but if asked I would reveal my knowledge of his sexual relationship with [Cooper], I informed him that [Cooper's] records from River Oaks Hospital, where I had referred [Cooper] for in-patient treatment, also documented the sexual relationship between them. There was complete silence on the phone. Eventually!,] Mr. James said "it's not true,” or words to that effect. After I informed him that I believed her, the conversation ended.


author: KONENKAMP, Justice.

text:
    2001 SD 65
    STATE of South Dakota, ex rel. Stephanie JEALOUS OF HIM, Plaintiff and Appellee, v. David T. MILLS, Jr., Defendant and Appellant.
    No. 21454.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2001.
    Decided May 23, 2001.

      Mark Barnett, Attorney General, Pierre, Patrick M. Ginsbach, Special Assistant Attorney General, Hot Springs, Attorneys for plaintiff and appellee.
    Michael P. Acosta Dakota Plains Legal Services, Pine Ridge, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this child support enforcement action, we affirm the circuit court’s order refusing to dismiss for lack of jurisdiction.

Background

[¶ 2.] Stephanie Jealous of Him (the mother) and David Mills are enrolled members of the Oglala Sioux Tribe. They met in 1997 while Mills was employed as a police officer and the mother was employed as a dispatcher on the Pine Ridge Indian Reservation. Mills had been married since 1995. As a result of a sexual relationship with Mills, the mother gave birth to a son in July 1998. The child lives with her on the reservation.

[¶ 3.] The mother applied for Aid to Families with Dependant Children (AFDC). Between July 1998 and January 1999, she received $1,284 from the State of South Dakota for the care of her child. When she applied for public assistance, she listed Mills as the child’s father. She also assigned her right to the State to collect past due child support payments. The State undertook this action to recover the money it expended on behalf of the child.

[¶ 4.] Mills was served with a Summons, Petition, and an Order to Show Cause by personal service on December 3, 1998. Service was accomplished at a Rapid City, South Dakota address. Initially, he responded to the Petition by denying he was the child’s father and requesting that the circuit court order paternity testing. He submitted to testing at a clinic in Rochester, Minnesota in March 1999. At that time, Mills reported a Rochester address to the clinic. When the clinic requested identification, Mills produced two driver’s licenses: one from South Dakota and one from Minnesota. Neither license had an address on the Pine Ridge Indian Reservation. Paternity testing confirmed that Mills was the father of the child.

[¶ 5.] Mills next moved to dismiss the support action. He denied that the circuit court had personal jurisdiction over him or subject matter jurisdiction over the controversy. He claimed that he had insufficient contacts off the reservation to confer personal jurisdiction on the court. Additionally, he argued that the cause of action arose on the reservation and involved two tribal members domiciled on the reservation. In his view, by accepting jurisdiction the circuit court would infringe on the sovereignty of the Oglala Sioux Tribal Court. Mills insisted that while he may have intermittently resided off the reservation, he always intended to return; thus, his domicile remained there. The State, on the other hand, offered evidence showing a contrary intent. Most of Mills’ employment since 1995 had been off the reservation. He listed Rapid City addresses to register his vehicle, to obtain a driver’s license, to apply for court appointed counsel, and to request unemployment benefits.

[¶ 6.] The circuit court held an eviden-tiary hearing on Mills’ motion to dismiss. After listening to live testimony, the court denied the motion. It found that Mills had waived any right to challenge personal jurisdiction; he had filed a response to the paternity action without asserting that defense. In addition, the court found that Mills was domiciled off the reservation. Therefore, the court concluded that it possessed concurrent jurisdiction with the tribal court. As this proceeding was first in time, it could properly proceed. Mills appeals from the denial of his motion to dismiss.

Analysis and Decision

[¶ 7.] The question is whether the circuit court had jurisdiction over this child support action instituted by South Dakota to recover AFDC benefits. Mills, the mother, and the child are all members of the Oglala Sioux Tribe and conception took place on the Pine Ridge Indian Reservation. The mother and the child are domiciled on the reservation. Mills asserts that his domicile remains there as well. We review the circuit court’s denial of his motion to dismiss by inquiring whether he was entitled to judgment as a matter of law. In Re G.R.F., 1997 SD 112, ¶ 11, 569 N.W.2d 29, 32 (citations omitted). A jurisdictional challenge presents a question of law subject to de novo review. Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993) (citations omitted).

[¶ 8.] Mills claims that this action offends the “infringement test” articulated by the United States Supreme Court in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). To Mills, this case is a paternity and support dispute between two enrolled tribal members domiciled on the reservation. If his contentions were correct, tribal court jurisdiction would indeed be exclusive. See Harris v. Young, 473 N.W.2d 141, 144 (S.D.1991)(citing Fisher v. Dist. Court of Sixteenth Jud. Dist., 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); Wells v. Wells, 451 N.W.2d 402, 405 (S.D.1990)).

[¶ 9.] A contrary result may be warranted, however, if Mills is domiciled off the reservation. See Harris, 473 N.W.2d at 145 (discussing Wells, 451 N.W.2d at 405-06). When one party becomes domiciled off the reservation, state and tribal courts enjoy concurrent jurisdiction, and the case may be adjudicated by whichever court first obtains valid personal jurisdiction. Harris, 473 N.W.2d at 145. “Indians [who] go beyond reservation boundaries have generally been held subject to nondiscriminatory state law[s][.]” Wells, 451 N.W.2d at 405 (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114, 119 (1973))(further citations omitted). Under these circumstances tribal sovereignty is not threatened. Id

[¶ 10.] Although Mills asserts that both he and the child’s mother are domiciled on the reservation, the circuit court ruled in its conclusions of law “[t]hat the Defendant is domiciled off the Pine Ridge Reservation.” (Emphasis added). The crux of Mills’ argument is that the circuit court erred in this ruling. Residence and domicile are not interchangeable concepts. In Re G.R.F., 1997 SD 112, ¶ 16 n. 4, 569 N.W.2d at 33. “[D]omicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” In Re Estate of Gatada, 1999 SD 21, ¶ 12, 589 N.W.2d 221, 223 (citations omitted). Domicile consists of presence in the forum jurisdiction plus intent to remain there. When the domicile of a party is in doubt, a proper determination requires evaluation of all the surrounding circumstances. See Id. at ¶ 14, 589 N.W.2d 221. See also Wright and Miller, Federal Practice and Procedure § 3612 at 529 (2nd ed 1984)(fo-otnoted information omitted). Some appropriate considerations include the location of employment, the driver’s license address, and the place of voter registration. Id. at 530-31. A person’s declared intentions may be discounted when they conflict with the facts. Id. at 532.

[¶ 11.] A finding of domicile is generally considered a mixed question of law and fact. Wright and Miller, supra at 540-41. Underlying issues of intent, however, are generally seen as questions of fact. See McDonough v. Kahle, 1999 SD 14, ¶ 14, 588 N.W.2d 600, 603. See also 1 Childress and Davis, Federal Standards of Review § 2.21 at 2-158 (2nd ed 1992)(“[I]ntent to remain” is a factual issue subject to clearly erroneous review). On appeal, we review findings of fact deferentially. Harter v. Plains Ins. Co., 1998 SD 59, ¶ 9, 579 N.W.2d 625, 629 (citations omitted). The credibility of witnesses and the weight accorded their testimony are best left to the trial judge, and “we give due regard to the trial court’s opportunity to observe the witnesses and the evidence.” In Re Estate of Amundson, 2001 SD 18, ¶ 12 n. 4, 621 N.W.2d 882, 885 (citing In re Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995)).

[¶ 12.] While Mills may claim that he intended to remain domiciled on the Pine Ridge Reservation, the circuit court was presented with substantial information to the contrary. As early as 1995-1996, Mills was employed off the reservation in Rapid City. In 1997, the same year that his child was conceived, Mills claims he was living on the reservation. However, when he registered his vehicle in Pennington County, he reported a Rapid City address. Similarly, he testified that in 1998 he was living with his mother on the reservation. Yet in May of that year he gave a Rapid City address when applying for a hunting and fishing license with the South Dakota Game, Fish, and Parks Department. Later that same year he obtained a driver’s license and applied for unemployment benefits using a Rapid City address. An investigator from the Office of Child Support Enforcement testified that she sent a certified letter to Mills at a Rapid City address in September 1998, and he signed for it.

[¶ 13.] Assertions from both Mills and his wife reveal some inherent contradictions. In a brief to the circuit court, Mills claimed he was not personally served; instead, “[s]ervice was made at his wife’s residence in Rapid City upon one of his nephews.” On the other hand, his wife testified that in December 1998, she received the summons from a process server. Mills’ credibility further weakened with his difficulty in pinpointing his residence for much of the time between 1995 and early 1999. He confirmed that early in 1999 he moved to Rochester, Minnesota. His only explanation for these inconsistencies was that he “was driving back and forth” between Rapid City and the reservation.

[¶ 14.] Mills offered evidence that he initially moved to Rapid City “to go to school.” He also testified that he and his wife moved to Rochester to pursue coursework in police studies. Upon this testimony, Mills submitted proposed findings of fact to the circuit court, which included the following: “The Defendant has left the Pine Ridge Reservation for educational purposes, but is a domiciliary of the Pine Ridge Indian Reservation.” The circuit court rejected this proposal and found “[t]hat the Defendant has had employment off the reservation since 1995.” See Wright and Miller, supra § 3619 at 571.

[¶ 15.] The record amply supports the circuit court’s finding that Mills resided and was domiciled off the reservation. See In Re Estate of Galada, 1999 SD 21, ¶ 14, 589 N.W.2d at 223. We conclude that the court did not err in denying the motion to dismiss. See In Re G.R.F., 1997 SD 112, ¶ 11, 569 N.W.2d at 32.

[¶ 16.] Affirmed.

[¶ 17.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . Mills seems to dispute that he was personally served; however, the circuit court specifically found that personal service occurred. Mills did not challenge this finding on appeal.

      . In fact, when questioned by the circuit court at the evidentiary hearing, Mills’ counsel asserted his belief that Mills could not challenge personal jurisdiction.

      . There is no indication that any action was instituted in the Oglala Sioux Tribal Court.

      . Though not dispositive on the question of subject matter jurisdiction, it is noteworthy that Mills used the state court process to request paternity testing. Availing oneself of a state court system by a party contesting its jurisdiction may be considered as a factor supporting concurrent subject matter jurisdiction. Harris, 473 N.W.2d at 146. Indeed, we recognize the general principle that “subject matter jurisdiction can neither be conferred on a court, nor denied to a court by the acts of the parties or the procedures they employ.” Id. (Citations omitted). Such action by the contesting party, however, may be a factor indicating that tribal sovereignty will not be infringed by concurrent jurisdiction. Id.


author: NEUMAN, Justice.

text:
    Mabel DUNCALF and Harold R. Parr and Irene T. Parr, Appellants, v. RITSCHER FARMS, INC., Dean Werner, Clerk of Union Township, Benton County, Iowa, Steven Van Deusen, Gary Kelly, and Kevin J. Nolan, Township Trustees of Union Township, Benton County, Iowa, Acting as Fence Viewers, Appellees.
    No. 99-1186.
    Supreme Court of Iowa.
    May 31, 2001.

      Robert B. Fischer of Fischer Law Firm, L.L.P., Vinton, for appellants.
    David C. Thompson, County Attorney, for appellees.
    Wythe Willey of Wythe Willey Law Office, Cedar Rapids, for amicus curiae Iowa Cattlemen’s Association.
   NEUMAN, Justice.

This is an action at law to review the decision of fence viewers under Iowa Code chapter 359A (1997). The district court, applying rules pertinent to the fencing-in of livestock under Iowa Code chapter 169C (Supp.1997), upheld the fence viewers’ decision to place the entire burden for maintaining partition fences on the parties owning livestock.

We are convinced that the court, like the fence viewers before it, misapplied the law. We therefore reverse and remand for a reapportionment of the parties’ fencing obligations in accordance with chapter 359A.

I. Background Facts and Proceedings.

This is a dispute between neighbors over the repair, maintenance and upkeep of partition fences. The farm owned by plaintiffs Harold and Irene Parr adjoins the western boundary of property owned by defendant, Ritscher Farms, Inc. The property owned by plaintiff Mabel Duncalf shares Ritscher Farms’ south boundary. The fences in controversy are located along these two property lines. Both plaintiffs raise livestock on their properties. Ritscher Farms keeps no livestock at present.

Plaintiffs each had oral agreements with Ritscher Farms’ predecessor, the Meyer family. Those agreements were never reduced to writing or recorded. No new agreements were executed when members of the Ritscher family purchased the farm from the Meyers in the 1960s. Although family members occasionally made necessary fence repairs, no one had done so for some time preceding this litigation.

Under the old oral agreements, the Meyers maintained the north half of the fence between Meyers’ property and the Parrs’, and the east half of the fence between Meyers’ property and Duncalfs. Both of these sections of fence cross Prairie Creek, which has historically been subject to frequent flooding. This requires extensive repair to those portions of the fence.

In November 1997, the plaintiffs made a formal written demand upon Ritscher Farms to repair the portions of the partition fences formerly maintained by Meyers. Ritscher Farms made no reply. So the plaintiffs applied to the Union Township Trustees, as fence viewers, for a determination regarding fence maintenance in accordance with Iowa Code section 359A.1. That statute states:

The respective owners of adjoining tracts of land shall upon written request of either owner be compelled to erect and maintain partition fences, or contribute thereto, and keep the same in good repair throughout the year.

Iowa Code § 359A.1.

The fence viewers made the necessary inspection. Their subsequent order assigned Duncalf and Parrs complete responsibility for maintenance of the partition fences until such time, if any, as Ritscher Farms keeps livestock on its property. In accordance with Iowa Code section 359A.23, Duncalf and Parrs appealed to the district court.

The district court upheld the fence viewers’ decision. First, it agreed that Ritscher Farms was not bound by any oral and unrecorded agreements that may have existed between the plaintiffs and Ritscher Farms’ predecessor. Second, the court affirmed the fence viewers’ application of Iowa Code section 169C.4 (Supp.1997) to the controversy. That section imposes liability on livestock owners for damages caused by trespassing livestock unless the livestock trespassed through fencing that was not maintained by the injured landowner in accordance with obligations imposed under chapter 359A. Iowa Code § 169C.4(l)(a) (Supp.1997). Given Duncalf and Parrs’ statutory duty to fence in their livestock, the court reasoned, the fence viewers correctly relieved Ritscher Farms of any obligation under chapter 359A.

This appeal by plaintiffs followed.

II. Scope of Review.

Our review on appeal from the district court’s decision in a fence-viewing case is for the correction of errors at law. Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995). In a law action such as this, we are bound by the court’s well-supported factual findings but not by its legal conclusions. Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995).

III. Issues on Appeal.

A. Implied contract. Plaintiffs concede that no oral or written agreement exists that would bind Ritscher Farms to the fence maintenance agreement enjoyed by the plaintiffs with Ritscher’s predecessor, the Meyer family, prior to the 1960s. They assert on appeal, however, that the record supports a finding of implied contract based on Wayne Ritscher’s repair of the disputed fences through the early 1990s. Neither the fence viewers nor the district court, however, made such a finding. Their decisions rested solely on the lack of any actual or recorded notice of an agreement that would bind a successor in interest. See Iowa Code § 359A.13 (partition fence agreements between land owners binding on heirs and grantees when recorded).

Plaintiffs filed no motion under Iowa Rule of Civil Procedure 179(b) to have the court expand its findings to address the implied contract issue. Thus the matter has not been preserved for our review and we give it no further consideration. See Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (rule 179(b) crucial to preservation of error where unsuccessful litigant intends to challenge district court ruling on issues court did not resolve).

B. Statutory interpretation. The fighting issue is whether the law permits the court to burden the plaintiffs with all of the fence maintenance. Plainly the fence viewers believed this was the fairest result. The regular flooding of Prairie Creek creates much trouble and expense for the party assigned upkeep of those portions of the fence. And the plaintiffs had evidently not been “good neighbors” insofar as maintaining the portions of the fence line they regarded as their responsibility. But the decisive question for the fence viewers was “Who owns livestock?” It is here, we think, that they strayed from precedent and the district court erred in affirming them.

This court held in Gravert v. Ne-bergall that chapter 859A applies equally to all adjoining landowners without regard to the use of the land. 589 N.W.2d at 188. Our decision rested on the fundamental belief that, in the long run, shared responsibility for partition fences minimizes conflict among neighbors. Id. The fencing statute does not merely benefit livestock owners. Id. It serves the broader public good by mediating boundary, fence and trespass disputes. Id.

The district court evidently believed that the legislature’s subsequent enactment of Iowa Code chapter 169C (Supp. 1997) scuttled the mutual obligations recognized in Gravert. We disagree with that conclusion. Chapter 169C merely imposes liability on livestock owners for damages caused by their trespassing livestock. In doing so, the statute effectively rewrites the Iowa common law “fence-out” theory of livestock management. See Gravert, 539 N.W.2d at 186-87 (comparing Iowa common law with English common law). By imposing on landowners the duty to fence in their livestock or face liability, however, the legislature did not ignore independent obligations arising from agreements or orders under chapter 359A. By its terms, chapter 169C expressly relieves livestock owners from liability for trespassing animals if the animals trespass through fences not maintained as required by chapter 359A. Iowa Code § 169C.4(l)(a) (Supp.1997).

Because chapter 169C deals with liability for trespassing livestock, not responsibility for maintaining partition fences, the district court erred in applying it to relieve Ritscher Farms from its fencing obligation here. Under the plain language of section 359A.1, the duty to maintain partition fences must be shared by adjoining landowners once such relief is demanded. Accord 1970 Op. Iowa Att’y Gen. 649, 651 (1970). Whether one of the landowners keeps livestock is not the decisive factor. Gravert, 539 N.W.2d at 188.

Our law has long recognized the duty of fence viewers to apportion the shared costs of partition fences so as to equalize the burden. Talbot v. Blacklege, 22 Iowa 572, 575 (1867). In this case, for example, that may mean adjusting the shared expense to reflect the particular difficulty of fencing across Prairie Creek. See In re Swisher, 204 Iowa 1072, 1073, 216 N.W. 673, 673 (1927); In re Estate of Wallis, 276 Ill.App.3d 1053, 213 Ill.Dec. 507, 659 N.E.2d 423, 429 (1995). That factual determination must be made in the first instance, however, by the fence viewers, subject to review on legal error by the district court. See Iowa Code § 359A.23 (right of appeal).

Because the district court, in affirming the fence viewers, incorrectly applied the law, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except LARSON, J., who takes no part.

      . Unless otherwise indicated, all statutory references are to the 1997 Code of Iowa.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Pamela Mary CHRISTIANSON, Appellant.
    No. 99-2034.
    Supreme Court of Iowa.
    May 31, 2001.
    Richard Stochl of Elwood, O’Donohoe, Stochl, Braun & Churbuck, New Hampton, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Joseph M. Haskovec, County Attorney, for appellee.
   LARSON, Justice.

Pamela Christianson has appealed her conviction and sentence for involuntary manslaughter under Iowa Code section 707.5(1) (1997). The issue raised is one of first impression: whether the results of a blood alcohol test are admissible, under the doctrine of inevitable discovery, despite a lack of reasonable grounds to believe the defendant was intoxicated at the time a sample of blood was taken for alcohol analysis. We conclude the doctrine of inevitable discovery is inapplicable to our implied-consent law and therefore reverse the conviction.

I. Facts and Prior Proceedings.

On February 14, 1998, at approximately 1:55 a.m., the defendant’s vehicle crossed the centerline on a highway in Howard County and collided head-on with a vehicle driven by Todd Borlaug. Borlaug later died from his injuries. When a sheriffs deputy, Gordon Buss, spoke with the defendant at the scene, he noticed no odor or other sign of alcohol consumption. The defendant was transported to a hospital.

Deputy Buss secured the scene of the accident and went to the hospital where, at 3:23 a.m., he invoked the implied-consent procedure of Iowa Code section 321J.6. The deputy invoked implied consent despite the fact he had no reason to believe the defendant was intoxicated or even that she had been drinking. Before invoking implied consent, he did not perform any field sobriety tests, request a preliminary breath test, or in fact, have any reason to think the defendant had been drinking other than her involvement in an accident very early on a Saturday morning. The blood sample showed a blood alcohol level of .14, which is over the level of presumed intoxication under our statutes. See Iowa Code § 321J.2(l)(b).

Meanwhile, state trooper Rick Busch arrived at the accident scene. This was approximately an hour after the accident. He did a preliminary investigation and determined the defendant’s car was on the wrong side of the highway and had made no attempt to stop before colliding with Borlaug’s car. Trooper Busch testified he detected a faint odor of alcohol in the defendant’s car, but he found no empty alcohol containers or other sign of alcohol involvement. He related his findings to deputy Buss by radio, at approximately 4 a.m. By that time, Buss had already invoked implied-consent proceedings.

The defendant moved to suppress the blood test on the ground it was not properly obtained under our implied-consent statute because it was not based on the officer’s reasonable grounds to believe the defendant was intoxicated. See Iowa Code § 321J.6(1). In ruling on the motion to suppress, the district court agreed that deputy Buss did not have reasonable grounds to invoke implied consent at the time he did it. The court nevertheless concluded that trooper Busch’s “knowledge alone or coupled with Deputy Buss’s [knowledge] provided reasonable grounds for invoking implied consent.” The court ruled the evidence of the blood test result was admissible under the doctrine of inevitable discovery.

The court, in a bench trial on stipulated facts, found the defendant guilty of involuntary manslaughter and sentenced her to an indeterminate term of imprisonment not to exceed five years. The court also ordered her to pay $150,000 in restitution to the victim’s estate as provided by Iowa Code section 910.3B.

II. Inevitable Discovery.

The defendant contends that the blood test was illegal because the officer who invoked implied consent did not have reasonable grounds to believe she was intoxicated at the time he did so. The State counters that, even if the blood was withdrawn at a time when reasonable grounds were lacking, the later-acquired evidence via the radio call from trooper Busch would inevitably have been received, and it provided the necessary grounds to invoke implied consent, even though the invocation was premature. According to the State, the officers should be allowed to consider the later-acquired evidence, under the doctrine of inevitable discovery, to show reasonable grounds as of the time implied consent was invoked.

The State misconstrues the role of the inevitable-discovery doctrine. Inevitable discovery is a doctrine to determine whether the exclusionary rule should be applied to Fourth Amendment violations. It is based on the premise that relevant, probative evidence gathered despite Fourth Amendment violations is not constitutionally excluded when the police would have inevitably discovered the same evidence acting properly. We explained the doctrine in State v. Seager, 571 N.W.2d 204 (Iowa 1997).

[I]f the police have obtained or would have obtained evidence through a source unrelated to the illegality, the challenged evidence is admissible because to exclude such evidence would “put the police in a worse position than they would have been in absent any error or violation.”

Id. at 211 (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387 (1984)). This is because the exclusionary rule is not itself a constitutional right but a means of deterring future police misconduct. The deterrence rationale starts to break down and creates a windfall for the defendant if, by acting properly, the police would have inevitably discovered the same evidence.

The situation with implied consent is different. It is a statutory presumption of consent to testing that arises only as to those drivers whom the officers have reasonable grounds to suspect have driven under the influence of alcohol. Our implied-consent law is found in Iowa Code chapter 321J, which provides in relevant part:

A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A is deemed to have given consent to the withdrawal of specimens of the person’s blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321J.2A, and if any of the following conditions exist:
b. the person has been involved in a motor vehicle accident or collision resulting in personal injury or death.

Iowa Code § 321J.6(1) (emphasis added).

Condition b, involvement in a personal injury collision, is undisputed. The key to this case is whether the officer had reasonable grounds to believe the defendant was operating a motor vehicle in violation of the OWI chapter. We note that not every driver is deemed by section 321J.6 to have given consent to a test; it is only those drivers as to whom there are “reasonable grounds to believe that the person was operating a motor vehicle [while intoxicated]....”

The wording of Iowa Code section 321 J.6(l) does not lend itself to an interpretation that would allow reasonable grounds to be based on later-acquired evidence.

The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321 J.2 or 321J.2A....

(Emphasis added.) Under this statute, the reasonable grounds must come first, then the invocation of implied-consent proceedings. The statute clearly means the proceedings are to be invoked by “a peace officer [then] having reasonable grounds.... ” We have said as much in our prior cases, although these cases did not involve the issue of inevitable discovery. For example, we said in Reed v. Iowa Department of Transportation, 478 N.W.2d 844, 846 (Iowa 1991):

Clearly, as the [provisions of section 321 J.6(l) ] confirm, the implied-consent statute cannot be invoked unless the officer first has reasonable grounds to believe the driver has been operating a motor vehicle while intoxicated.

(Emphasis added.) See also State v. Boleyn, 547 N.W.2d 202, 205 (Iowa 1996) (“The reasonable grounds test is determined under the facts and circumstances known to the officers at the time the implied consent law is invoked.”); Munson v. Iowa Dep’t of Transp., 513 N.W.2d 722, 725 (Iowa 1994) (“The reasonable grounds test is met ‘when the facts and circumstances known to the officer at the time action was required would have warranted a prudent person’s belief that an offense has been committed.’ ”) (Emphasis added) (quoting State v. Braun, 495 N.W.2d 735, 738 (Iowa 1993)). This interpretation does not permit later-acquired evidence to be considered on the issue of whether implied consent should be invoked. In other words, the existence of reasonable grounds is a condition precedent to imposition of implied consent.

There is another reason for strictly applying our implied-consent statute — the sensitive and unique nature of any procedures involving intrusions into the human body. The Supreme Court recognized this in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Court acknowledged the general right of officers to search persons incident to a lawful arrest but said:

Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.

Id. at 769-70, 86 S.Ct. at 1835, 16 L.Ed.2d at 919. While the Court recognized the right of officers in some cases to make body-invasive searches, it said:

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States!’] minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions or intrusions under other conditions.

Id. at 772, 86 S.Ct. at 1836, 16 L.Ed.2d at 920 (emphasis added).

While the officers in this case appear to have acted in good faith, an interpretation of our implied consent statute that would allow the drawing of body specimens without then-existing reasonable grounds, perhaps to be bolstered by later-acquired evidence, would be the antithesis of the “stringently limited conditions” required by the Fourth Amendment.

We agree with the defendant that the officers’ failure to invoke implied-consent proceedings on the basis of existing reasonable grounds requires that this conviction be reversed. This resolution makes it unnecessary to address the defendant’s restitution argument.

REVERSED AND REMANDED.