author: HALBROOKS, Judge.

text:
    Jennifer THORSON, Respondent, v. ZOLLINGER DENTAL, P.A., d/b/a Advance Family Dental, Appellant.
    No. A06-935.
    Court of Appeals of Minnesota.
    March 13, 2007.

      Daniel E. Hintz, Johnson & Lindberg, P.A., Minneapolis, MN, for respondent.
    Thomas E. McEllistrem, Christopher K. Wachtler, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; ROSS, Judge; and CRIPPEN, Judge.

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

   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s decision to strike from the pleadings its affirmative defense of insufficient service of process. Because (1) appellant failed to supplement its answers to interrogatories or otherwise disclose its basis for the insufficient-service defense as required by the Minnesota Rules of Civil Procedure until after the relevant statute of limitations had passed and (2) respondent was prejudiced by appellant’s failure to disclose, we conclude that the district court did not abuse its discretion by striking the affirmative defense from the pleadings and subsequently denying appellant’s motion for summary judgment. We therefore affirm.

FACTS

On March 30, 2005, respondent Jennifer Thorson brought a claim against her employer, appellant Zollinger Dental, P.A., alleging, among other things, that she was discriminated against when appellant terminated her from employment after she informed it that she was pregnant. Respondent attempted to serve appellant with the summons and complaint by delivery of the Ramsey County Sheriffs Department at appellant’s office on April 1, 2005. The summons and complaint was left with the office receptionist. Appellant served its answer on April 18, 2005, alleging improper service of the summons and complaint as an affirmative defense.

On April 20, 2005, two days after receiving appellant’s answer, respondent’s attorney wrote a letter to appellant’s attorney, enclosing a copy of the affidavit of service executed by the Ramsey County Sheriffs Department and requesting that appellant’s counsel notify respondent’s counsel if appellant still intended to assert the defense of improper service. The affidavit of service states that the summons and complaint were given personally to “Heather Erickson AAFS” (authorized agent for service).

On May 17, 2005, respondent’s attorney delivered a letter to appellant’s attorney, serving respondent’s interrogatories and requests for production of documents. Interrogatory No. 2 asked: “If you claim insufficiency of service of process and/or lack of personal or subject matter jurisdiction as a defense to all or part of this action, state all facts in support of such defense or defenses.” In addition, the letter stated, “I am still waiting for written confirmation that you are withdrawing the affirmative defense alleging improper service of the Summons and Complaint. Please let me know as soon as possible.”

After receiving no reply, respondent’s counsel delivered another letter to appellant’s counsel on June 13, 2005, stating:

I have provided you with a copy of the Affidavit of Service, and I have written to you on several occasions asking about the status of your improper service defense. I am obviously concerned because of the short statutes of limitations involved in this type of case. Please provide me with the courtesy of advising whether you continue to maintain this defense.

Appellant’s attorney responded by letter dated June 15, 2005, informing respondent’s attorney that he would receive appellant’s discovery responses after respondent answered appellant’s discovery requests, which were served on May 3, 2005. In the same letter, appellant’s counsel also stated, “We acknowledge receipt of the copy of the Affidavit of Service of the Summons and Complaint served upon Heather Erickson.” Shortly thereafter, appellant’s counsel and respondent’s counsel discussed settlement over the telephone. During that conversation, appellant’s counsel stated that he did not want to pursue the improper-service issue and would rather settle the case.

The next correspondence was initiated by appellant’s counsel by way of a September 19, 2005 letter to respondent’s counsel. Respondent’s attorney responded by letter on September 22, 2005, notifying appellant’s attorney that appellant’s discovery responses were more than three months overdue and requesting that appellant notify respondent if it could not complete the responses within seven days. Appellant submitted its answers to respondent’s interrogatories on September 23, 2005, signed by Molly Seidl, the office manager, offering the following answer to Interrogatory No. 2:

INTERROGATORY NO. 2: If you claim insufficiency of service of process and/or lack of personal or subject matter jurisdiction as a defense to all or part of this action, state all facts in support of such defense or defenses.
ANSWER NO. 2: Plaintiff has not pursued a claim with the EEOC or the Minnesota Human Rights Department. Discovery continues. This response will be updated.

The two parties apparently had little contact after that date until December 2005. Both parties agree that the statute of limitations for appellant’s claims ran in mid-November 2005. On or about December 16, 2005, the parties again discussed settlement over the telephone. During that conversation, appellant’s attorney informed respondent’s attorney that the basis for the insufficient-service defense was that Heather Erickson was not an authorized agent for service.

On January 17, 2006, appellant served respondent with supplemental answers to respondent’s interrogatories, amending its answer to Interrogatory No. 2 in the following way: “See attached Affidavits of Molly Seidl, Paul Zollinger, D.D.S., and Heather Erickson, with exhibits. Discovery continues.” The affidavits of Seidl, Zollinger, and Erickson all indicate that Erickson, appellant’s office receptionist, was not an authorized agent to accept service of process upon appellant. Appellant also moved for summary judgment pursuant to Minn. R. Civ. P. 56, arguing in part that respondent did not properly serve appellant and that the statute of limitations had subsequently run, thereby barring respondent’s claims. After a hearing, the district court issued an order denying appellant’s motion for summary judgment and striking appellant’s affirmative defense of insufficient service of process. The district court concluded that appellant failed to comply with the rules of civil procedure in answering interrogatories and in pleading the affirmative defense of insufficient service of process, stating:

When the Answers to Interrogatories were submitted in September, 2005, [respondent] reasonably relied on those answers. Since the Answer to Interrogatory No. 2 did not create a need for any further action on [respondent’s] part, none was undertaken. The fact that the answer was changed in January, 2006, after the statute of limitations has run is unfair to [respondent].
[I]t is only fair that [appellant] be responsible for the answers provided to the Interrogatories which did not create a need for [respondent] to re-serve [appellant], Fairness and the general application of the intent and spirit of the Rules of Civil Procedure support this Court’s order that the affirmative defense be stricken and summary judgment denied.

This appeal follows.

ISSUE

Did the district court err when it struck appellant’s affirmative defense of insufficient service of process and denied appellant’s motion for summary judgment?

ANALYSIS

As a preliminary matter, the parties dispute the standard of review that we should apply in reviewing the district court’s order. Appellant argues that the appropriate standard of review is de novo because this is an appeal from the district court’s order denying appellant’s motion for summary judgment. See Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000) (stating “[t]he determination of whether personal jurisdiction exists is ... a question of law that we review de novo”). But respondent contends that the appropriate standard of review is abuse of discretion because the basis for the denial of appellant’s motion for summary judgment was the striking of appellant’s insufficient-service-of-process defense as a sanction for discovery violations. See In re Welfare of D.D.R., 713 N.W.2d 891, 898 (Minn.App.2006) (noting that the district court “has wide discretion in deciding whether to impose sanctions” for a discovery violation). Appellant counters that the district court was not imposing sanctions for discovery violations when it struck the insufficient-service-of-process defense, but rather fashioning an equitable remedy. Because we believe that the crux of this appeal is the district court’s decision to strike appellant’s insufficient-service defense as a result of appellant’s failure to supplement its interrogatory answers until after the statute of limitations had run, thereby barring respondent’s claims, we review for an abuse of discretion.

There is no dispute here with regard to whether service of the summons and complaint was proper, as even respondent now concedes that it was not. Instead, the issue on appeal is whether the district court abused its discretion when it struck appellant’s insufficient-service-of-proeess defense because appellant failed to supplement its answers to interrogatories in a timely manner and, therefore, denied appellant’s summary-judgment motion.

Minn. R. Civ. P. 26.05 provides, in relevant part, that

[a] party who has responded to a request for discovery is under a duty to supplement or correct the response to include information thereafter acquired if ordered by the court or in the following circumstances:
A party is under a duty seasonably to amend a prior response to an interrogatory ... if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

Prior to the adoption of rule 26.05 in 1974, the supreme court in Gebhard v. Niedziviecki, 265 Minn. 471, 122 N.W.2d 110 (1963), imposed a continuing obligation to supplement responses under Minn. R. Civ. P. 33. Minn. R. Civ. P. 26.05 1975 advisory comm. note. Rule 26.05 simply “clarifies the practice and makes explicit the obligation to provide new information.” Id. But because rule 26.05 does not expressly provide for appropriate sanctions when a party fails to supplement responses, we examine Gebhard for guidance.

In Gebhard, appellant’s counsel called a witness to testify near the end of trial without conveying the identity of the witness to respondent’s counsel, despite the fact that respondent had earlier sought through interrogatories the names and addresses of all eyewitnesses and parties with knowledge of the facts. 265 Minn. at 474-75, 122 N.W.2d at 113. Respondent’s counsel moved to suppress the testimony of the witness and the district court, after conducting a hearing in chambers, granted respondent’s motion “on the ground that there had been a violation of the spirit of Rule 33 by [appellant’s] attorneys in failing to transmit the information they had concerning th[is] witness[ ] to [respondent’s] counsel.” Id. at 475, 122 N.W.2d at 113.

On appeal, the supreme court affirmed the suppression of appellant’s witness, holding that because “there is no reason why a party should not be under an equal duty to disclose information, acquired after answering an interrogatory, that would render the answer inaccurate, untrue, or incomplete” “where the after-acquired information is of a material nature or where it will render the answers originally given untruthful, unreliable, or inaccurate, the obligation to disclose such after-acquired information continues.” Id. at 476, 477, 122 N.W.2d at 114.

Having determined that a party has a continuing obligation under rule 33 to disclose information discovered after answers to interrogatories are served and that appellant failed to comply with that duty, the supreme court considered appropriate sanctions. Id. at 478, 122 N.W.2d at 115. The supreme court first noted that “[b]e-fore drastic sanctions are imposed, it should appear that violation of the rule has or will result in prejudice to the party asserting a violation.” Id. (footnote omitted). The supreme court reasoned that

[t]he object of sanctions should be to prevent the party who fails to comply with the rule from profiting by his own violation. In cases where there is an honest mistake and the harm can be undone, it may frequently occur that a continuance or some other remedy would be adequate, but, where the violation is willful and the party guilty of the violation seeks to take advantage of it at a time when the harm cannot be undone, suppression of the evidence may very well be the proper and only available remedy.

Id. at 478-79, 122 N.W.2d at 115 (footnotes omitted). Because the supreme court determined that appellant’s failure to disclose was willful, it concluded that the district court did not abuse its discretion in suppressing the evidence. Id. at 480, 122 N.W.2d at 116.

Similarly, in McCarthy Well Co. v. St. Peter Creamery, Inc., 410 N.W.2d 312, 316 (Minn.1987), respondent, in its answers to interrogatories, identified the alleged negligent acts of appellant which supported its counterclaim against appellant for negligence and stated that it had not yet found an expert witness to use at trial. Just five days prior to trial, respondent’s attorney served amended answers to interrogatories stating additional negligent acts of appellant in support of its counterclaim. Id. at 314, 316. On the same day, respondent’s attorney also delivered a letter to appellant’s attorney identifying the expert witnesses that they intended to call at trial. Id. at 316. Appellant moved to exclude evidence regarding the alleged negligent acts identified for the first time in the amended interrogatory answers, but the district court denied appellant’s motion. Id. The district court also allowed one of the expert witnesses identified in the letter to testify, although it prohibited the other expert from being called. Id. at 316-17. This court affirmed. Id. at 317.

On appeal, the supreme court stated that “[a] party on whom interrogatories are served has a continuing duty to supplement answers; when a party fails to disclose information acquired after answering interrogatories, drastic sanctions are proper only when it appears that the failure will result in prejudice to the party asserting the violation.” Id. (citing Gebhard, 265 Minn. at 478, 122 N.W.2d at 115). The supreme court added that

[o]ne of the purposes of interrogatories is to prevent unjust surprise and prejudice, and the purpose of imposing sanctions is to prevent a party who fails to comply with Minn. R. Civ. P. 33 from profiting from his or her own wrong. The proper relief lies within the discretion of the [district] court.

Id. The supreme court concluded that respondent’s identification of additional acts of negligence by appellant did not constitute unfair surprise and did not prejudice appellant and that the late disclosure of the expert witness similarly did not prejudice appellant; therefore, the supreme court affirmed. Id.

The case before us is factually distinguishable from McCarthy Well and more akin to Gebhard. Here, respondent attempted to serve the summons and complaint on appellant on April 1, 2005. In response to appellant’s answer, which asserted improper service as an affirmative defense, respondent’s counsel delivered a letter to appellant’s counsel on April 20, 2005, enclosing a copy of the affidavit of service and requesting that appellant’s counsel notify respondent if it intended to maintain its insufficient-service defense. On May 17, 2005, respondent’s counsel delivered a second letter to appellant’s counsel, serving respondent’s interrogatories and again asking appellant’s counsel to notify respondent’s counsel “as soon as possible” regarding whether appellant still intended to assert the improper-service defense. In addition, Interrogatory No. 2 asked: “If you claim insufficiency of service of process and/or lack of personal or subject matter jurisdiction as a defense to all or part of this action, state all facts in support of such defense or defenses.”

After receiving no reply, respondent’s counsel delivered a third letter to appellant’s attorney on June 13, 2005, stating that they were “concerned because of the short statutes of limitations involved in this type of case,” and therefore requesting that appellant’s counsel “provide [respondent] with the courtesy of advising whether [they] continue to maintain this defense.” Appellant’s counsel delivered a letter to respondent’s counsel on June 15, 2005, stating, in part, “we acknowledge receipt of the copy of the Affidavit of Service of the Summons and Complaint served upon Heather Erickson.” But the letter did not indicate whether appellant maintained the defense of improper service. Shortly thereafter, appellant’s attorney represented to respondent’s attorney during a telephone conversation that appellant did not want to pursue the improper-service issue and would rather settle the case.

On September 23, 2005, appellant served its responses to respondent’s interrogatories. With regard to Interrogatory No. 2, appellant answered “[respondent] has not pursued a claim with the EEOC or the Minnesota Human Rights Department. Discovery continues. This response will be updated.” During a telephone call on December 16, 2005, after the one-year statute of limitations had run on respondent’s claims, appellant’s attorney revealed an additional basis for the improper service defense — that Heather Erickson was not an authorized agent for service. On January 17, 2006, appellant served supplemental answers to respondent’s interrogatories along with attached affidavits, which all stated that Heather Erickson was not an authorized agent to accept service upon appellant. On the same day, appellant moved for summary judgment on respondent’s claims, arguing that appellant was not properly served and that respondent’s claims were therefore barred by the statute of limitations.

Although appellant eventually disclosed in supplemental interrogatory answers that service upon appellant was improper because Erickson was not an authorized agent for service, appellant did not do so until after the relevant statute of limitations had passed. As a result, respondent did not have an opportunity to re-serve appellant. Thus, although the district court found that appellant did not fail to supplement its answers intentionally or in bad faith, we still conclude that respondent here was prejudiced by appellant’s untimely disclosure. Moreover, adopting appellant’s position on appeal could have disastrous consequences, effectively encouraging parties to delay discovery, research, investigation, and disclosure, either intentionally or unintentionally, until after the relevant statute of limitations had run on plaintiffs’ claims and to thereafter bring a motion to dismiss such claims when plaintiffs had no opportunity to remedy the insufficiency. This result would-be untenable. Accordingly, we affirm the district court’s decision to strike appellant’s insufficient-service-of-process defense.

Citing Uthe v. Baker, 629 N.W.2d 121, 122-23 (Minn.App.2001), appellant argues that the district court improperly fashioned an equitable remedy when it struck appellant’s insufficient-service-of-process defense because the district court did not have jurisdiction over appellant. But Uthe is distinguishable from this case because the district court here did not employ its equitable power to estop appellant from asserting the defense. Instead, the district court struck the defense from appellant’s complaint as a sanction for appellant’s failure to disclose or supplement interrogatory responses until after the statute of limitations had run on respondent’s claims.

Finally, because we conclude that the district court did not abuse its discretion when it struck appellant’s affirmative defense of insufficiency of service, we need not address respondent’s contention that appellant waived its right to assert the affirmative defense by failing to supplement interrogatory answers until after the statute of limitations had run.

DECISION

We conclude that the district court did not abuse its discretion by striking from the pleadings appellant’s affirmative defense of insufficient service of process when the factual basis for the defense was or should have been known by appellant before the running of the statute of limitations and respondent was prejudiced by appellant’s failure to disclose the basis for the defense until after the relevant statute of limitations had run.

Affirmed.

      . Therefore, we need not address whether Heather Erickson was a "managing agent" or had "implied authority” to accept service or whether appellant had “actual notice” of service.

      . The supreme court noted:
      One of the main purposes of Rules 26.02 and 33 is the discovery of facts which will enable litigants to prepare for trial free from the element of surprise which, prior to the adoption of the rules, frequently led to a result based more upon the legal maneuvering of counsel than upon the merits of the case. That being the purpose of the rules, a construction of them that will defeat the purpose for which they were adopted should be avoided if that is possible.

        Id. at 476, 122 N.W.2d at 114 (footnote omitted). The supreme court further noted that the party who originally served interrogatories should not be required to submit successive interrogatories up until the time of trial in order to obtain additional information, nor should they be required to state in the interrogatories that the request is a continuing one. Id. at 477, 122 N.W.2d at 114.

      . Appellant claims that it did not disclose that Erickson was not an authorized agent for service at an earlier date because counsel did not investigate the basis of the insufficient service defense until December 2005. But Minn. R. Civ. P. 26.07 provides that an attorney shall sign discovery responses and that such signature constitutes that the attorney has read the discovery requests and has made a “reasonable inquiry.” Here, the record supports the conclusion that appellant did not reasonably inquire into the issue of service prior to serving answers to respondent's interrogatories in September 2005, because if appellant had, it surely would have answered then that Erickson was not an authorized agent for service. Because the district court did not make a finding of bad faith on appellant’s part, we decline to do so. But we conclude that this record does not contain any reasonable basis for appellant’s failure to timely supplement its answers.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Toyie Diane COTTEW, Appellant.
    No. A06-785.
    Court of Appeals of Minnesota.
    March 20, 2007.

      Samuel A. McCloud, Carson J. Heefner, McCloud & Heefner, Shakopee, MN, for appellant.

      Lori Swanson, Attorney General, St. Paul, MN, and James P. Ratz, Aitkin County Attorney, Aitkin, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; TOUSSAINT, Chief Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges the district court’s imposition of jail time and home confinement with electronic monitoring as intermediate sanctions for her probation violations, arguing that the district court failed to make the findings required by State v. Austin, 295 N.W.2d 246, 250 (Minn.1980), reaffirmed in State v. Modtland, 695 N.W.2d 602, 606 (Minn.2005). We affirm as modified.

FACTS

Appellant Toyie Cottew was convicted of fourth-degree driving while impaired, a violation of Minn.Stat. §§ 169A.20, subd. 1(1), .27 (2002). The district court sentenced Cottew to 90 days in jail, stayed the execution of the sentence, and ordered supervised probation for a term of two years. As conditions of Cottew’s probation, the district court ordered Cottew to pay fines and fees totaling $1,065, obey all laws, and abide by the rules of probation.

On January 3, 2006, a probation-violation report was filed, alleging that Cottew had failed to pay her fines and fees and had failed to report to her probation agent as required. Cottew admitted these violations on February 6, 2006, at a probation-violation hearing. The district court ordered Cottew to serve 20 days in jail “in the nature of an executed sentence” but ordered the term of confinement reduced to ten days if Cottew paid the remaining $125 of her financial obligations before commencing her confinement. After observing that Cottew’s two-year term of probation had expired on February 2, 2006, the district court discharged Cottew from probation and commuted the remainder of her sentence.

Cottew moved for reconsideration, arguing that the district court had not made the findings required by State v. Austin, 295 N.W.2d 246, 250 (Minn.1980), reaffirmed in State v. Modtland, 695 N.W.2d 602, 606 (Minn.2005). On reconsideration, the district court explained that it did not execute Cottew’s sentence; rather, it imposed intermediate sanctions. Observing that the intermediate sanctions were consistent with those it had imposed for similar probation violations, the district court affirmed the sanctions but ruled that Cottew could serve half of her term of confinement at home with electronic monitoring. The district court granted Cottew’s motion to stay its order pending the resolution of this appeal.

ISSUES

I. Was the district court required to determine that the Austin factors were satisfied when imposing intermediate sanctions of confinement for a probation violation?

II. Was the district court’s imposition of the intermediate sanctions a correct application of Minn.Stat. § 609.135, subd. 1(a)(1) (2004), and Minn. R.Crim. P. 27.04, subd. 3(3)(b)?

ANALYSIS

I.

The district court imposed jail time and home confinement with electronic monitoring as sanctions for Cottew’s probation violation without determining that the factors for probation revocation set forth in State v. Austin, 295 N.W.2d 246, 250 (Minn.1980), reaffirmed in State v. Modtland, 695 N.W.2d 602, 606 (Minn.2005), had been met. Cottew argues that, in doing so, the district court committed reversible error. In Austin, the Minnesota Supreme Court established that a district court must satisfy the following three requirements before revoking probation and executing a stayed sentence: (1) designate the specific probation condition that the probationer has violated; (2) find that the violation is inexcusable or intentional; and (3) find that the need for confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250.

Here, the district court did not revoke CotteVs probation and execute her sentence. Rather, as clarified at the hearing on reconsideration, the district court imposed intermediate sanctions. Cottew argues that this distinction does not relieve the district court from the obligation to make Austin findings before the intermediate sanctions of confinement are imposed. Whether Austin findings are required before a district court may impose intermediate sanctions of confinement is an issue of first impression, which requires us not only to examine the express holding of Austin, but also to consider whether the policy considerations that inform the Austin decision apply with equal force to the imposition of intermediate sanctions.

In Austin, the defendant pleaded guilty to burglary and aggravated assault. Id. at 248. The district court sentenced the defendant to concurrent terms of imprisonment for these offenses but stayed the execution and placed the defendant on probation for six years. Id. At a subsequent probation-violation hearing, the district court found that the defendant had failed to comply with the condition of his probation that required him to undergo drug treatment, revoked the defendant’s probation, and executed the sentence. Id. at 249. On review, the supreme court observed that “[t]he purpose of probation is rehabilitation” and cautioned that probation revocation be employed as a last resort only after rehabilitation efforts have failed. Id. at 250. To this end, before probation may be revoked, the third Austin factor requires a finding that the need for confinement outweighs the policies favoring probation. Id. The supreme court recently reaffirmed this holding in Modt-land and in doing so recognized the imposition of intermediate sanctions as an alternative to probation revocation. 695 N.W.2d at 606, 607-08 n. 3. The Modtland court observed that, when a district court determines that the third Austin factor has not been satisfied, the district court may respond by “altering] the terms of the defendant’s probation — including imposition of intermediate sanctions — under Minn.Stat. § 609.135 (2004).” Id. at 607-OS n. 3 (emphasis added).

Unlike probation revocation, which occurs when rehabilitative treatment or service is deemed futile, an intermediate sanction is imposed based on a district court’s determination that the defendant is susceptible to rehabilitation through treatment or the deterrence value of punitive accountability. See Minn.Stat. § 609.135, subd. 1(b) (defining “intermediate sanction” to include incarceration in local jail or workhouse, home detention, electronic monitoring, chemical-dependency treatment, mental-health treatment, counseling, community-work service, and work service in a restorative-justice program); Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943) (recognizing that purpose of probation is to “provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuse this opportunity”); Developments in the Law: Alternatives to Incarceration, 111 Harv. L.Rev. 1863, 1956 (1998) (noting that most states’ criminal statutes “explicitly state that the purpose of intermediate sanctions is to rehabilitate”). Limiting a district court’s ability to impose an intermediate sanction of confinement to those situations when the probation violation was intentional or inexcusable, as the second Austin factor requires, would hinder the district court’s ability to intervene when a probationer’s excusable violations necessitate a rehabilitative response.

Indeed, confinement as an intermediate sanction may provide a necessary incentive or “wake-up call” to comply with a rehabilitative treatment or counseling regimen included in the probation conditions or to avoid antisocial activity and resume court-ordered conduct. The rehabilitative purpose of this confinement distinguishes it from the confinement resulting from an executed sentence addressed in the third Austin factor, which has as its primary purposes punishment and public safety by removing the defendant from society. See Minn. Sent. Guidelines cmt. III.C.04 (2006) (identifying punishment as a primary purpose of imprisonment). Admittedly, because of the nature of the probation violations and the timing of the hearing — four days after probation had expired — the intermediate sanctions at issue here appear more akin to deterrence through punitive accountability than rehabilitation. But we do not read Austin to pertain to confinement other than that triggered by probation revocation and execution of the sentence. Cf. State v. B.Y., 659 N.W.2d 763, 768-69 (Minn.2003) (revocation of extended-jurisdiction-juvenile probation and execution of adult sentence require application of Austin factors). Moreover, because intermediate sanctions are intended to effectuate the policies favoring probation, namely, rehabilitation, it would be illogical to require a district court to find that the need for confinement outweighs the policies favoring probation when imposing confinement in jail or home confinement with electronic monitoring as an intermediate sanction.

Intermediate sanctions, including confinement, are an alternative to an unwarranted probation revocation. Modtland, 695 N.W.2d at 607-08 n. 3. Because the district court did not revoke Cottew’s probation, the district court did not err by imposing intermediate sanctions without making findings regarding the Austin factors.

II.

We next consider whether the district court imposed the intermediate sanctions in a manner authorized by Minn.Stat. § 609.135 (2004) and Minn. R.Crim. P. 27.04. When a defendant is alleged to have violated conditions of probation imposed during a stay of execution of sentence, but the term of the stay has expired, a probation officer may seek initiation of probation-revocation proceedings within six months after expiration of the stay. Minn.Stat. § 609.14, subd. 1(b) (2004). Under these circumstances, the district court is authorized to “conduct a revocation hearing and take any action authorized under [Minn. R.Crim. P.] 27.04 at any time during or after the six-month period.” Id. Here, the intermediate sanctions were imposed at a probation-revocation hearing held four days after the term of Cottew’s probation expired. We, therefore, consider whether the district court’s action was authorized under Minn. R.Crim. P. 27.04.

Rule 27.04 allows the district court to take one of two actions as a consequence of the defendant’s probation violation when execution of the defendant’s sentence has been stayed: (1) order execution of the sentence, or (2) continue the stay of execution and place the defendant on probation in accordance with Minn.Stat. § 609.135. Minn. R.Crim. P. 27.04, subd. 3(3)(b). Because the district court did not execute Cottew’s sentence, the latter option applies.

Our analysis of whether the district court imposed the intermediate sanctions in accordance with the governing statutes and rule is complicated by the apparent conflict that exists between relevant provisions of section 609.135 and rule 27.04. Section 609.135, subdivision 1(a)(1), permits the district court to stay the execution of a sentence and “order intermediate sanctions without placing the defendant on probation.”' (Emphasis added.) But rule 27.04, subdivision 3(3)(b), instructs the district court to “'place the probationer on probation in accordance with Minn.Stat. § 609.135.” (Emphasis added.) When a rule promulgated by the Minnesota Supreme Court, such as a rule of criminal procedure, conflicts with a statute, “the statute shall thereafter be of no force and effect” unless the statute relates to a matter of substantive criminal law, the rights of the accused, or other specified matters that are not at issue here. Minn.Stat. § 480.059, subd. 7 (2006).

Section 609.135, subdivision 1(a)(1), relates to procedures governing the stay of imposition or execution of sentence. Because this statutory provision is procedural, section 609.135, subdivision 1(a)(1), has no force or effect to the extent that it conflicts with the requirements of rule 27.04, subdivision 3(3)(b), for imposing intermediate sanctions. Minn.Stat. § 480.059, subd. 7. Therefore, the district court was required to place Cottew on probation when it imposed the intermediate sanctions. Minn. R.Crim. P. 27.04, subd. 3(3)(b); see also Minn.Stat. § 609.135, subd. 1(a)(2) (permitting district court to impose probation with conditions, including intermediate sanctions).

The district court erroneously concluded that, because Cottew’s two-year probation term had expired, it was required to simultaneously impose the intermediate sanctions and discharge Cottew from probation. It is evident from the record that the district court intended to impose intermediate sanctions after the expiration of the probation term. To do so, it was required to place Cottew on probation and impose the intermediate sanctions of confinement as conditions of her probation. Minn. R.Crim. P. 27.04, subd. 3(3)(b); Minn.Stat. § 609.135, subd. 1(a)(2). Accordingly, to effectuate the district court’s intent, we modify the district court’s order to place Cottew on probation for the duration of the intermediate sanctions ordered by the district court.

DECISION

Because the findings mandated by State v. Austin, 295 N.W.2d 246, 250 (Minn.1980), reaffirmed in State v. Modtland, 695 N.W.2d 602, 606 (Minn.2005), pertain to confinement resulting from an executed sentence following probation revocation, the district court did not err when it imposed intermediate sanctions of confinement without making Austin findings. But an intermediate sanction imposed after the original probation term has expired must be accompanied by an extension of probation. We, therefore, modify the district court’s order and place Cottew on probation for the duration of the intermediate sanctions ordered by the district court.

Affirmed as modified.

      . Respondent State of Minnesota did not file a brief. We, therefore, decide this appeal on its merits, as required by Minn. R. Civ.App. P. 142.03.

      . Cottew does not dispute and the record indicates that the district court designated the specific probation conditions that Cottew violated.

      .The statutory definition of "intermediate sanction” includes, but is not limited to, "incarceration in a local jail or workhouse, home detention, electronic monitoring, [and] intensive probation.” Minn.Stat. § 609.135, subd. 1(b) (2004).

      . We observe, however, that the decision to impose any sanction, intermediate or otherwise, must be the product of the district court's judgment and sound discretion and not its will. See Burns v. United States, 287 U.S. 216, 222-23, 53 S.Ct. 154, 156, 77 L.Ed. 266 (1932) (observing that proper exercise of judicial discretion requires “conscientious judgment, not arbitrary action”); State v. Donnay, 600 N.W.2d 471, 473-74 (Minn.App.1999) (stating that downward dispositional departure placing defendant on probation is within district court's sound discretion when defendant is amenable to probation or offense-related mitigating circumstances are present), review denied (Minn. Nov. 17, 1999). And to the extent that any sanction is challenged on this ground, the record will be reviewed to ascertain whether the district court abused its discretion.

      . Section 609.135, subdivision 1(a)(2), provides the district court the alternative of placing “the defendant on probation with or without supervision and on the terms the [district] court prescribes, including intermediate sanctions when practicable.”

      . The other enumerated matters include: the prevention of crime, training, investigation, apprehension, and reports; privacy of communications; extradition, detainers, and arrests; judgment and sentence; special rules, evidence, privileges, and witnesses; the unanimity of verdicts; or writs of habeas corpus. Minn.Stat. § 480.059, subd. 7 (2006).


author: CROTHERS, Justice.

text:
    2007 ND 23
    Anton FETTIG, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee.
    No. 20060105.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   CROTHERS, Justice.

[¶ 1] Anton Fettig appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order terminating his future benefits after April 20, 2004, and ordering him to reimburse WSI for disability benefits paid between October 16, 1996, and December 31, 2002. We conclude a reasoning mind could reasonably conclude Fettig made willful and material misrepresentations regarding his work activities and income and his physical condition. We affirm.

I

[¶ 2] In August 1993, Fettig was 58 years old and working as a self-employed contract pumper within North Dakota’s oil industry when he injured his low back and left hip. Fettig did not work in the contract pumping business after January 1994. Fettig was subsequently diagnosed with chronic low-back pain and post-traumatic sacral deformity. In early 1994, WSI accepted Fettig’s workers’ compensation claim and paid him associated medical and disability benefits for over ten years. At the time of his injury, Fettig was also engaged in farming and continued to report income from his farm to the Internal Revenue Service in years following his injury. Fettig did not, however, report this farm income to WSI in his required monthly work status and income reports.

[¶ 3] In 2002, Fettig’s file was reviewed by a WSI claims analyst. Fettig continued to claim to be disabled although he had been receiving minimal medical treatment. WSI hired an investigator to determine whether Fettig was entitled to continued benefits. After further investigation, on March 30, 2004, WSI issued a Notice of Intention to Discontinue Benefits (“NOID”), informing Fettig that he had made willful false statements in violation of N.D.C.C. §§ 65-05-08 and 65-05-33 and that all future benefits would be terminated after April 20, 2004. WSI also determined an overpayment of benefits occurred as a result of his willful false statements, which included failing to report his income and work activities on his Income and Work Status Cards and Injured Worker Status Reports and making material and false statements and misrepresentations to WSI representatives regarding Ms physical condition, capaMlities, and activities during a functional capacity evaluation (“FCE”). Fettig requested reconsideration of the NOID.

[¶ 4] On April 28, 2004, WSI issued an order denying Fettig further benefits and ordering him to repay previously paid benefits. WSI’s order required Fettig to repay $150,604.71 for disability payments from July 26, 1996, through April 20, 2004, and for permanent partial impairment (“PPI”) benefits paid on September 10, 2002. WSI’s order required Fettig to forfeit all future benefits on his claim after April 20, 2004. Fettig requested reconsideration.

[¶ 5] After an evidentiary hearing, an administrative law judge (“ALJ”) determined WSI did not carry its burden with regard to requiring reimbursement of disability benefits paid after 2002, nor with respect to the PPI benefits paid. The ALJ’s recommended order required Fettig to repay disability benefits paid from October 16, 1996 (identified by WSI as the date of Fettig’s first willful misrepresentation) through December 31, 2002. The ALJ also recommended terminating Fettig’s benefits after April 20, 2004, “on the basis that he had willfully and intentionally made material false statements to WSI about his income and work activities, and had willfully and intentionally misrepresented his physical condition and capabilities in conjunction with functional capacity evaluations and a permanent partial impairment evaluation.”

[¶ 6] Specifically, the ALJ found that between 1996 and 2002 Fettig willfully failed to report his work activities and income from his farming operations:

1. In April 1995 Anton Fettig prepared a United States Department of Agriculture document titled “Farm Operating Plan for Payment Eligibility Review for Individual.” ... Part 9 of that document instructed him to disclose the amount of “cropland acres” owned by him, leased from others, and leased to others. Mr. Fettig represented that he owned a 100% interest in 287.4 acres and that he leased no acreage to others. He stated that he cash-rented 98.7 acres from Fritz Birdbear, 136.4 acres from Veronica Baker, and 2 acres from what appears to be “Heirs of Allotment 853A & 3172.” He further represented that he leased several parcels from others on a 50/50 crop share basis: specifically, 471.1 acres from Howard Fettig, 156.4 acres from Morgen Fettig, 120.5 acres from Laverne Fettig, 282.7 acres from Gabriel Fettig, and 249.7 acres from Charles Fettig. Part 13 of the application instructed: “Enter the estimated percent or hours of labor required for this farming operation which is provided by you personally, hired laborers, or others.” It then asked: “What estimated percent or hours of active personal labor do you provide?” Mr. Fettig wrote — 100%. The application included an attachment titled “Definitions,” which explained to him that the term “active personal labor” means personally providing physical activities necessary in a farming operation, including activities involved in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities in the farming operation. He entered nothing for the remaining categories: “hired labor” and “other labor.” Part 14 of the application instructed: “Enter the estimated percent of the farming operation’s total management responsibility and the type of managerial duties required for this farming operation which are provided by you personally or by hired management.” In response to the instruction: “Enter the estimated percent of active personal management provided by you.” Mr. Fettig wrote “100%.” Part 16 of the application, titled “Certification,” stated:
I certify that all the information entered on this document and any supporting documentation is true and correct. I understand furnishing incorrect information will result in forfeiture of payments and the assessment of a penalty. I will timely provide written notification to the Agricultural Stabilization and Conservation Committees for the county and State listed in Item 9 of any changes in this farming operation.
Mr. Fettig signed that certification. That farm operating plan was effective for the program years 1996 through 2002.... Mr. Fettig made no changes to the plan during that period other than to file an update on June 18, 1996, changing the acreage figure listed at Part 9 for land owned by him, from 287.4 acres to 281.2 acres, and for land leased from Howard Fettig, from 471.1 acres to 466.7 acres....
2.Mr. Fettig’s federal income tax returns for each year from 1996 through 2002 include a “Schedule F-Profit or Loss From Farming.” For 1996 he reported farm income of $52,686 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $9,730.... For 1997 he reported farm income of $55,320 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $8,328.... For 1998 he reported farm income of $49,632 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $11,458.... For 1999 he reported farm income of $37,462 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $1,170.... For 2000 he reported farm income of $42,672 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $3,031.... For 2001 he reported farm income of $24,412 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $1,071.... For 2002 he reported farm income of $51,976 from “sales of livestock, produce, grains, and other products you raised” and “agricultural program payments” of $1,045....
3. Mr. Fettig was actively engaged in farming, personally providing physical activities necessary in a farming operation, including activities involved in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities in the farming operation, between January 1, 1996 and December 31, 2002,- and he received a total of $314,160 in farm income from sales of livestock, produce, grains, and other products, together with $35,833 in agricultural program payments, during that period.
4. During the period from July 26, 1996 through April 28, 2004, Mr. Fettig filed income and work status reports (Form SFN 7871) with the Workers’ Compensation Bureau and its successor, WSI, at intervals of, typically, twenty to thirty days.... The forms he filed between July 26, 1996 and June 29, 1999 were titled “Claimant’s Income and Work Status Card,” and asked, among other questions: “Have you done any work, whether for pay or not?” On each of the forty cards Mr. Fettig submitted during that period he checked “no” to that question. Those same cards also asked: “Have you received money from any source other than the Bureau?” Mr. Fettig checked “no” on every card except one, (for September 15, 1998, where he checked “yes” but did not reveal the amount or source of such income). The status reports he filed between July 22, 1999 and April 28, 2004 were titled “Injured Worker Status Report.” That report form prefaced a series of questions with the following admonishment: “You must accurately report work of any kind (voluntary, part-time, or full-time) that you do, whether you are paid or not. You must report any money received from work, activities, or services of any kind, regardless of profit or loss. Failure to report any type of work, wages, or other money received, may be a violation of law.” The form then asked, among other questions: “Have you gone back to work, or done any type of work for pay or not?” On the 61 forms he turned in during that period, he checked “no” on each one except the last, for April 28, 2004. On that form, (which followed WSI’s March 30, 2004 “Notice of Intention to Discontinue Benefits” for making false statements by not reporting income and work activities) he checked “yes” and reported that he worked “April 6-28 part time” checking “cattle watering turn hydrant on off’ for Howard Fettig. The status reports Mr. Fet-tig filed between July 22, 1999 and April 28, 2004 also asked: “Have you received money from any source other than from the [Bureau] [NDWC] [WSI]?” and thereafter listed several categories, one of which was “farming.” Mr. Fettig sometimes checked “yes” and on those occasions reported such items as interest, dividends, tax refunds or investment income, but never checked the category “farming” and never reported receiving income from farming.
5. Because Mr. Fettig was personally providing physical activities necessary in a farming operation, including activities involved in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities in the farming operation during the calendar years 1996 through 2002, and because he had yearly farm income from sales of livestock, produce, grains, and other products, ranging from $24,412 to $55,320, and yearly agricultural program payments ranging from $1,045 to $11,458 for the calendar years 1996 through 2002, his representations to WSI during that same period that he was not working, and that he had received no money from farming, were false.
6. Mr. Fettig, by virtue of his certification to the United States Department of Agriculture that he was personally providing physical activities necessary in a farming operation, including activities involved in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities in the farming operation during the calendar years 1996 through 2002, and by virtue of his representations to the United States Internal Revenue Service that he received farm income from those farming activities in each of the calendar years 1996 through 2002, knew that his representations to WSI during that same period, that he was not working, and had received no money from farming, were false. Because Mr. Fettig knew that he was engaged in farm work and was receiving substantial sums of money from that farm work, his repeated false statements to WSI that he was not working and was not receiving money from any source were intentional, not inadvertent.

The ALJ found WSI relied on and was misled by Fettig’s willful and intentional representations which caused WSI to erroneously pay him disability benefits. The ALJ found Fettig’s false statements were sufficiently material to require forfeiture of future benefits and reimbursement of disability benefits paid between October 16,1996, and December 31, 2002.

[¶ 7] The ALJ also found Fettig made false statements in connection with his physical evaluations:

9. On September 24, 2003, Mr. Fet-tig underwent a functional capacity evaluation (FCE) at First Choice Physical Therapy in Minot for the purpose of assessing his physical abilities and limitations with respect to activities such as walking, lifting, climbing, standing, carrying, kneeling, bending, pushing, pulling, and the like. Karen Rasmussen, a physical therapist, administered the FCE on both occasions. At the September 24, 2003 FCE Mr. Fettig presented with an extremely pronounced limp, characterized his pain level as 4 on a scale of 0-6, and represented that his work injury had become so debilitating that he was no longer able to drive....
10. In conjunction with the September 24, 2003 FCE Mr. Fettig was, unknowingly, videotaped engaging in various activities, such as driving from his home south of New Town to Minot and back, walking to and leaving the FCE clinic, and walking at other locations in Minot away from the clinic. While approaching and leaving the clinic Mr. Fet-tig walked slowly with a pronounced limp. However, once he was away from the clinic his limp disappeared, and he walked evenly, with what might be fairly described as a jaunty gait, displaying no evidence of pain. Contrary to his representation to Ms. Rasmussen that he was no longer able to drive, he was videotaped personally driving his red pickup truck from his home to Minot, driving about Minot, and driving home again....
11. Mr. Fettig’s actions, in presenting himself to his FCE evaluator with a pronounced limp, professing severe pain caused by his work injury, and claiming to be incapable of driving because of his work injury, while on the same date walking with an even gait and without any indication of pain when he was not at, or in the vicinity of, the FCE clinic, and driving himself about in his own vehicle, constitute false statements and misrepresentation of his physical ability by deceptive conduct.
12. Mr. Fettig’s deceptive conduct, requiring personal knowledge that his true circumstances were other than what he presented them to be, was by its nature knowing and volitional, rather than unintentional or inadvertent, and was, therefore, willful.
13. Mr. Fettig’s actions at the time of his September 24, 2003 FCE, of presenting himself to his FCE evaluator with a pronounced limp, professing severe pain caused by his work injury, and claiming to be incapable of driving because of his, work injury, while on the same date walking with an unaffected gait and without any indication of pain when he was not at, or in the vicinity of, the FCE clinic, and driving himself about in his own vehicle, caused Ms. Rasmussen, the FCE evaluator, to conclude that the September 24, 2003 FCE did not provide an accurate assessment of Mr. Fettig’s functional abilities....
14. WSI requested the September 24, 2003 FCE in order to obtain updated objective information regarding Mr. Fet-tig’s actual physical abilities.... Because that information was dependent upon an accurate assessment of Mr. Fet-tig’s functional abilities, his willful misrepresentation of his physical abilities by deceptive conduct could have misled WSI or medical experts in determinations affecting his claim, and was, therefore, material.
15. Because Mr. Fettig’s willful misrepresentation of his physical abilities by deceptive conduct in connection with his functional capacity assessments could have misled WSI or medical experts in determinations affecting his claim, WSI is entitled to impose the civil penalty of forfeiture of future benefits, provided at NDCC § 65-05-83.
16. It was not shown, by a preponderance of the evidence, that Mr. Fet-tig’s willful misrepresentation of his physical abilities by deceptive conduct in conjunction with the September 24, 2003 FCE, or prior FCEs in 2000 and 2002, actually caused benefits to be paid in error. Therefore those false statements were not sufficiently material so as to allow WSI to impose the civil penalty of reimbursement of benefits paid, provided at NDCC § 65-05-33.
17. Mr. Fettig applied for a permanent partial impairment (PPI) award for his 1993 work injury and was examined by Dean Redington, D.C. on July 23, 2002.... In the course of that examination he represented, among other things, that he had not worked for nine years, and that his left leg was very hard to control and function. Those representations are false. However, the evidence is insufficient to show that Mr. Fettig’s representations caused Dr. Redington’s final impairment rating of “19% whole person” to be greater than it would have been had he known that Mr. Fettig had been actively engaged in farming in the previous nine years, and that videotapes showed that he ambulates without any evident difficulty. Therefore, it was not shown, by a preponderance of the evidence, that Mr. Fettig’s willful false statements, including deceptive conduct which misrepresented his physical ability, in conjunction with his application and evaluation for PPI benefits, affected his PPI rating or amount of award.

[¶ 8] WSI ultimately adopted the ALJ’s recommended order, and the district court affirmed WSI’s order.

II

[¶ 9] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, courts exercise only a limited review in appeals from administrative agency decisions. Forbes v. Workforce Safety & Ins., 2006 ND 208, ¶ 10, 722 N.W.2d 536; Sorlie v. Workforce Safety & Ins., 2005 ND 83, ¶ 7, 695 N.W.2d 453. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm WSI’s decision unless:

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

[¶ 10] We exercise restraint in deciding whether WSI’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Sorlie, 2005 ND 83, ¶7, 695 N.W.2d 453. In reviewing an agency’s findings of fact, “[w]e determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Roberts v. North Dakota Workmen’s Comp. Bureau, 326 N.W.2d 702, 704-05 (N.D.1982) (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)). Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Forbes, 2006 ND 208, ¶ 10, 722 N.W.2d 536.

Ill

[¶ 11] Fettig argues he did not make willful, material false statements in violation of N.D.C.C. § 65-05-33.

[¶ 12] Section 65-05-33, N.D.C.C., states that a claimant who willfully makes a false statement or who receives disability benefits and willfully fails to notify WSI of work or income from work “shall reimburse the organization for any benefits paid based upon the ... false statement and ... shall forfeit any additional benefits relative to that injury.” “The legislative intent in N.D.C.C. § 65-05-33 was to create a penalty for anyone who accepts disability benefits for a period of time in which that person is actually working.” Horob v. North Dakota Workers Comp. Bureau, 2000 ND 114, ¶ 14, 611 N.W.2d 875 (citing Hayden v. North Dakota Workers Comp. Bureau, 447 N.W.2d 489, 496 (N.D.1989)).

[¶ 13] Under N.D.C.C. § 65-05-33, to trigger the statutory consequences for a false statement, “WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.” Forbes, 2006 ND 208, ¶ 13, 722 N.W.2d 536 (citing Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 12, 572 N.W.2d 426). For purposes of this statute’s civil penalties, we have “defined ‘willfully’ as conduct engaged in intentionally and not inadvertently.” Forbes, at ¶ 13 (citing Dean v. North Dakota Workers Comp. Bureau, 1997 ND 165, ¶ 15, 567 N.W.2d 626). WSI “must prove the claimant’s state of mind was purposeful in making the false statement.” Hausauer, at ¶ 14. “A state of mind can rarely be proven directly and must usually be inferred from conduct and circumstantial evidence.” Dean, at ¶ 20. “In addition to proving that a false statement is willful, WSI must ... prove the false statement is material.” Forbes, at ¶ 14.

Based upon the language of N.D.C.C. § 65-05-33 and the civil penalty sought, two tests are used to determine “materiality.” If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required. Thus, a false claim or false statement is sufficiently material for forfeiture of future benefits if the statement simply could have misled WSI or medical experts in deciding the claim. Ultimately, WSI’s findings under N.D.C.C. § 65-05-33 must be affirmed if they are supported by a preponderance of the evidence.

Id. (citations omitted). Here, the ALJ’s order, as adopted by WSI, required both forfeiture of future benefits and reimbursement of disability benefits paid to Fettig between October 16, 1996, and December 31, 2002.

[¶ 14] Fettig argues he did not report his farming activities to WSI because his pre-injury income from farming was never factored into his average weekly wage or his disability benefit. Fettig essentially asserts he did not “willfully” make a material false statement because he reasonably believed he did not need to report his farming activity as work since it was not considered for purposes of awarding him benefits in the first place. During the administrative hearing, Fettig maintained he was not involved in the farming operation at all, he had turned over the operation to his sons, and his sons did all of the farming. Despite the significant farming income and expenses which appeared on his tax returns from farm operations from 1996 though 2002, Fettig maintained the farm income was from the sale of grain harvested prior to his 1993 work injury.

[¶ 15] Fettig argues he did not willfully fail to report his farming activities to WSI by representing he had done “no work” during the relevant period. However, the ALJ specifically found that because Fettig “knew that he was engaged in farm work and was receiving substantial sums of money from that farm work, his repeated false statements to WSI that he was not working and was not receiving money from any source were intentional, not inadvertent.”

[¶ 16] Section 65-05-08(3), N.D.C.C., requires an injured employee to report, among other things, “work” and “work activities” to WSI. Although neither WSI nor the legislature had defined “work” for the period relevant to the disposition of this case, we have held certain activities may be “work” in the ordinary sense or by common understanding. Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 12, 622 N.W.2d 712; Jacobson v. North Dakota Workers Comp. Bureau, 2000 ND 225, ¶ 15, 621 N.W.2d 141. This Court has previously addressed circumstances where claimants have maintained their activities were not “work” as contemplated by WSI’s reporting requirements.

[¶17] In Forbes, 2006 ND 208, ¶ 16, 722 N.W.2d 536, the claimant, who was found to have made false statements by reporting no work, asserted that she did not consider her sales of cosmetics or her conducting of insurance physicals as work and also testified she considered her activities more of a hobby. This Court concluded WSI could reasonably find her activities constituted work and that her explanations of her understanding were not credible. Id. In Jacobson, 2000 ND 225, ¶¶ 11-14, 621 N.W.2d 141, the claimant was found to have made false statements by reporting no work activity while he was entering as a professional in major fishing tournaments in a variety of states and receiving support from sponsors. Despite the claimant’s contention that fishing was only a hobby, the claimant “regularly reported income from fishing tournaments, in a Schedule C statement of profit or loss from a business, as a part of his federal income tax returns.” Id. at ¶ 13. In that case, the claimant’s activities were found to be work, and this Court held WSI could reasonably find the claimant’s explanations of his understanding of work were not credible. Id. at ¶ 15.

[¶ 18] In both Forbes and Jacobson, under our standard of review, this Court upheld WSI’s determinations that the respective claimants had made false statements by failing to report work, where the claimants’ explanations and understanding of work were rejected as not credible. See also Snyder, 2001 ND 38, ¶¶ 15-18, 622 N.W.2d 712 (claimant’s restaurant activities constituted work, and claimant’s concealment of work activities and income were sufficiently material for forfeiture and repayment of benefits).

[¶ 19] Here, the ALJ rejected Fettig’s testimony and evidence that he was not involved in the farming operation and therefore did not consider his farming activities to be “work” that needed to be reported to WSI. Instead, the ALJ found Fettig was actively engaged in farming and personally involved in providing the physical activities necessary in the farming operation, including involvement in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities. The ALJ’s findings are supported by a preponderance of the evidence.

[¶ 20] Fettig certified to the United States Department of Agriculture (“USDA”) in documents between 1996 and 2002 that he was contributing one hundred percent of “active personal labor” to his farming operation. Fettig filed federal income tax returns reporting farm income of $314,160 from sales of livestock, produce, grains, and other products, and $35,833 in agricultural program payments between 1996 and 2002. However, during that same time period, Fettig filed monthly status reports with WSI in which he repeatedly represented he had done no work and had received no money from any source.

[¶ 21] Fettig testified that, on one hand, the farm income he reported on his tax returns was from the sale of pre-1993 grain he had in storage bins, while on the other hand, that the farm income was actually his sons’ farm income that he had reported on his returns. Fettig also testified he had a crop share arrangement with his sons during a portion of the relevant period, contradicting his own testimony that the only grain he had was from crops harvested before 1993. The ALJ ultimately found Fettig’s testimony was inconsistent with the other testimony and objective evidence presented and thus not credible and Fettig’s true circumstances, supported by the greater weight of the evidence, were that he was actively farming and receiving income from farming during the period of 1996 to 2002.

[¶ 22] We conclude a reasoning mind reasonably could have rejected Fettig’s understanding and explanations that his farming activities were not work. See, e.g., Snyder, 2001 ND 38, ¶ 12, 622 N.W.2d 712 (as a matter of law, claimant’s restaurant activities constituted “work” in its ordinary sense); Jacobson, 2000 ND 225, ¶ 15, 621 N.W.2d 141 (based on common understanding of work, claimant’s participation in professional fishing tournaments constituted work).

[¶ 23] Fettig also appears to argue the version of N.D.C.C. § 65-05-08 in effect at the time of his injury did not require him to report his farm income and work to WSI. However, “[a] benefit recipient’s status may change over time. See N.D.C.C. § 65-05-04. WSI can review at any time whether a recipient continues to be disabled. Id.; N.D.C.C. § 65-05-08(3).” Baity v. Workforce Safety & Ins., 2004 ND 184, ¶ 35, 687 N.W.2d 714. This Court has explained that N.D.C.C. § 65-05-08(3) “is a legislative recognition that inquiring about a recipient’s work activities is an appropriate part of such an investigation” and “specifically provides a recipient of disability benefits must complete reporting forms ‘to retain eligibility for further disability or rehabilitation benefits ... regardless of the date of injury or claim filing.’” Snyder, 2001 ND 38, ¶9, 622 N.W.2d 712.

[¶ 24] In Snyder, at ¶ 2, the claimant, who had suffered a 1988 work injury, was ordered to forfeit future benefits and repay benefits after he was found to have made false statements in connection with his claim. WSI found the claimant had either not reported, or partially reported, work and income on 12 status cards mailed to him in 1998, while he had performed a number of activities at a restaurant for which the restaurant owner had paid him monthly in both money and meals. Id. The claimant argued that N.D.C.C. § 65-05-08(3), requiring monthly reports to WSI, did not apply to him because it was not in effect at the time of his 1988 injury. Snyder, at ¶¶ 8-9. We concluded Snyder’s argument was without merit, recognizing WSI may appropriately investigate whether a recipient continues to be disabled. Id. at ¶ 9.

[¶ 25] Similarly, in this case, the AL J’s findings detail numerous work status reports filed with WSI during the relevant period where no farm work or income was reported, while the record reflects Fettig received significant farm income. Fettig asserts that it was reasonable for him not to report his farm income, which he has also characterized as passive income, based upon his understanding of what income and work were considered in awarding him benefits; however, Fettig’s argument again goes in part to his credibility before the ALJ. “[WSI] is responsible for assessing the credibility of witnesses and resolving conflicts in the evidence.” Aalund v. North Dakota Workers Comp. Bureau, 2001 ND 32, ¶ 15, 622 N.W.2d 210. To the extent Fettig asserts he was not required to report his farm activities as work under N.D.C.C. § 65-05-08, we reject Fettig’s argument.

[¶ 26] There is substantial evidence in this record about the nature and extent of Fettig’s farming activities supporting WSI’s conclusions regarding the willfulness and materiality of Fettig’s false statements not only about his work activities and income, but also his misrepresentation of his physical condition. This record includes evidence of farm income and expenses Fettig reported on his tax returns, USDA documents for Fettig’s participation in government farm programs, and the testimony of an elevator manager and of Fettig’s neighbor, all establishing Fettig’s personal involvement in farm work.

[¶ 27] The ALJ found Fettig’s willful and intentional false statements to WSI on his monthly income and work status reports from 1996 through 2002 in which he stated he had not done any work or received any money from work were relied upon by WSI and caused WSI to pay disability benefits to him. The ALJ thus found Fettig’s false statements were sufficiently material to impose both civil penalties of forfeiting future benefits after April 20, 2004, and reimbursing the disability benefits paid from October 16, 1996, through December 31, 2002. The ALJ also found that although Fettig’s misrepresentations of his physical condition in connection with his FCE and PPI evaluation could have misled WSI or medical experts, his misrepresentations were not shown by a preponderance of evidence to have caused WSI to pay disability or PPI benefits in error. Thus, the ALJ concluded reimbursement of those benefits on that basis was not appropriate.

[¶ 28] We hold that a reasoning mind reasonably could have found Fettig’s willful false statements were proven by the weight of the evidence in the record. We further hold that evidence supports the conclusion that Fettig’s false statements were sufficiently material, supporting both the forfeiture of future benefits and reimbursement of past disability benefits. We therefore conclude the findings of fact supporting WSI’s order terminating future benefits after April 20, 2004, and requiring reimbursement of disability benefits paid from October 16, 1996, to December 31, 2002, are supported by a preponderance of the evidence. We have considered Fettig’s remaining arguments and find them to be without merit.

IV

[¶ 29] The district court judgment affirming WSI’s order is affirmed.

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

      . Although inapplicable to the present case, WSI has since promulgated N.D. Admin. Code § 92-01-02-51.2, which for purposes of N.D.C.C. § 65-05-08(3) and N.D.C.C. § 65-05-33 defines "work” as "physical or mental effort exerted to do or to make something for any amount of remuneration or physical or mental effort exerted to do or to make something that a reasonable person would consider commonly done or made for remuneration.”


author: KAPSNER, Justice.

text:
    2007 ND 29
    Dennis HOLDEN, Plaintiff and Appellant, v. Linda HOLDEN, Defendant and Appellee.
    No. 20060212.
    Supreme Court of North Dakota.
    Feb. 28, 2007.
    Rehearing Denied May 1, 2007.

      Dennis Holden (argued), pro se, plaintiff and appellant.
    Sherry Mills Moore (argued), Bismarck, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Dennis Holden appeals from a divorce judgment, arguing the district court’s division of property was inequitably divided in favor of his former wife, Linda Holden. We affirm.

I

[¶ 2] The parties were married in 1979. This was each party’s first marriage. The Holdens have three adult children. In 2005, Dennis Holden sued for divorce. The district court held a trial in March 2006. Dennis Holden’s proposal at trial was to sell all of the marital assets, pay the parties’ debts, and divide the remainder. Linda Holden wanted to keep the real property and personal debt, but give Dennis Holden the businesses’ assets and debt associated with them. The parties’ primary assets were a parcel of 5.7 acres and two businesses operated on the land. The parties’ marital home was also located on the land.

[¶ 3] Before trial, Dennis Holden moved the court for an interim order, asking the district court to allow him exclusive use of the real property. He filed an affidavit assigning values to the real property and the businesses. Linda Holden requested she be temporarily awarded sole use of the house and Dennis Holden be awarded use of the shop located on the property from which the businesses were operated. The district court temporarily awarded Linda Holden the sole use of the house and awarded Dennis Holden the sole use of the shop. Linda Holden was ordered to pay the debts associated with the real property, while Dennis Holden was ordered to provide monthly accountings of the income and expenses of the businesses.

[¶ 4] Both parties filed several pretrial motions and discovery requests. Dennis Holden refused to answer Linda Holden’s discovery requests. Linda Holden moved the district court to compel discovery, which was granted. Dennis Holden then moved to modify the interim order, asking the court for sole use of the real property. The district court denied the motion. Dennis Holden moved the court for a continuance so an appraisal could be done on the parties’ personal property. The court granted the continuance so a third party could appraise the parties’ assets. Dennis Holden’s appraisal was not completed in a timely manner and was not presented to the district court. Linda Holden had Wayne Bachmeier, who works as an apprentice appraiser for a general appraisal firm, appraise the value of the real and personal property. Bachmeier’s appraisal was reviewed by two certified general appraisers in the firm.

[¶ 5] Linda Holden completed a N.D.R.Ct. 8.3 property and debt listing in accordance with the scheduling order. Dennis Holden completed a partial listing two days before trial. In dividing the parties’ assets, the court awarded the parties’ real property to Linda Holden, subject to all debts on the property. The district court awarded Dennis Holden net marital assets worth $79,145, plus one-half of whatever is recovered from the bankruptcy attorney, and awarded Linda Holden net marital assets worth $176,470, plus one-half of whatever is recovered from the bankruptcy attorney. The court ordered Linda Holden to pay Dennis Holden $43,000. The district court acknowledged the awards were not equal, but explained the slight difference in favor of Linda Holden. The court stated the award was equitable because of $3,000 in legal fees incurred by Linda Holden in pursuing her discovery claims, $706 for property tax due on the property from the previous year, and the appraisal costs. The court also concluded the property division was equitable due to Dennis Holden’s failure to cooperate in discovery and preparation for trial.

II

[¶ 6] On appeal, Dennis Holden raises numerous issues for our review. He argues the district court erred by not having adequate information to apply the Ruff-Fischer guidelines and the property award was erroneous because there were no certified appraisals done on the property. Specifically, Dennis Holden claims “the district court, because there were no certified appraisals, erred in not having adequate information to apply Rujf-Fischer guidelines, and by awarding the commercial property as well as the residence to Linda Holden, and thereby destroying two (2) businesses and causing the removal of corporate bankruptcy attorney....” Dennis Holden claims:

(1) The court erred in awarding all real property, including home, land, and commercial business location, to Linda Holden.
(2) The court erred in awarding to Linda Holden the entire Holden to Nedloh, Ltd. loan ... in the amount of $62,548.
(3) The court erred in awarding to Linda Holden one half of the funds on deposit with [the corporate bankruptcy attorney]. These are Corporate funds.
(4) The court erred in subtracting $1500 from Dennis Holden’s column.
(5) The court erred in accepting a non-certified appraiser’s input for real property values.
(6) The court erred in awarding “Cowboy Action Adventures” to Dennis Holden. The proper business names are Nedloh, Ltd., Brass Plus and Quickstar. The court awarded Dennis Holden a business that he never owned.
(7) The court erred in ordering corporate funds to be awarded to Linda Holden, which will incur tax liabilities for the businesses of Nedloh, Ltd. and Brass Plus.
(8) The court erred in causing all corporate taxes and debts to remain the liability of Nedloh, Ltd. and Brass Plus, i.e. Dennis Holden.
(9) The court erred in causing Dennis Holden’s personal tax documents to become inaccessible.
(10) The court erred in causing Dennis Holden’s personal liabilities to become unidentified.
(11) The court erred in causing Dennis Holden’s personal assets to be undeclared.
(12) The court erred in causing personal and corporate identity issues to remain unresolved.

Linda Holden argues the court’s judgment was proper, and the court properly relied on admissible evidence concerning the valuation of the real and personal property.

[¶ 7] Many of Dennis Holden’s arguments are frivolous, mistaken, duplicitous, or indecipherable. Dennis Holden does not support his issues with an adequate legal argument. He also failed to raise many of his issues to the district court. We have repeatedly stated we are not ferrets and we “will not consider an argument that is not adequately articulated, supported, and briefed.” See, e.g., State v. Haibeck, 2006 ND 100, ¶9, 714 N.W.2d 52; see also Riemers v. City of Grand Forks, 2006 ND 224, ¶ 9, 723 N.W.2d 518 (declining to consider an issue raised for the first time on appeal); Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167 (“ ‘[A] party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit.’ ”) (quoting Riemers v. O’Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547). “ ‘When the record does not allow for intelligent and meaningful review of an alleged error, the appellant has not carried the burden of demonstrating reversible error.’ ” Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D.1996) (quoting Olson v. Griggs County, 491 N.W.2d 725, 732 (N.D.1992)). Therefore, we limit our review to the issues Dennis Holden properly advanced for our review: whether the district court erred in equitably dividing the marital property, and whether the district court was required to liquidate the marital estate to establish the value of the property.

Ill

[¶ 8] Dennis Holden claims the district court erred by not equitably distributing the marital property. We conclude the distribution fashioned by the district court was not clearly erroneous and as such, his claim fails.

[¶ 9] A district court’s property valuation is a finding of fact, subject to the clearly erroneous standard of review. Kostelecky v. Kostelecky, 2006 ND 120, ¶ 8, 714 N.W.2d 845; Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601. “ ‘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.’ ” Donlin v. Donlin, 2007 ND 5, ¶ 10, 725 N.W.2d 905 (quoting Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561). “The value a trial court places on marital property depends on the evidence presented by the parties.” Kostelecky, at ¶ 8; see also Fox v. Fox, 2001 ND 88, ¶22, 626 N.W.2d 660. A district court is in a far better position than an appellate court “to observe demeanor and credibility of witnesses.... ” Kostelecky, at ¶ 8. “ 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.’ ” Id. (quoting Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573). A court’s valuation is not clearly erroneous if it is within the range of the evidence presented. Id. at ¶ 9; see also Amsbaugh, at ¶ 12. Therefore, we “presume a trial court’s property valuations are correct” and we will not reverse the court’s valuations and division of marital property unless they are clearly erroneous. Kostelecky, at ¶ 8.

[¶ 10] “Under N.D.C.C. § 14-05-24(1), the district court must make an equitable distribution of the property of the divorcing parties.” Ulsaker v. White, 2006 ND 133, ¶ 10, 717 N.W.2d 567. All of the parties’ assets must be considered by the district court to insure the property division is equitable. Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905. We have said:

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.
[Kostelecky, 2006 ND 120, ¶ 12, 714 N.W.2d 845]. “ ‘[A] property division need not be equal to be equitable, but a substantial disparity must be explained.’ ” Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601 (quoting Bladow v. Bladow, 2003 ND 123, ¶ 5, 665 N.W.2d 724). This Court has also recognized that a long-term marriage supports an equal distribution of property. Dvorak [v. Dvorak], 2006 ND 171, ¶ 34, 719 N.W.2d 362; Schoenwald v. Schoenwald, 1999 ND 93, ¶ 23, 593 N.W.2d 350.

Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905. North Dakota law does not mandate a set formula or method to determine how marital property is to be divided; rather, the division is based on the particular circumstances of each case. Ulsaker, 2006 ND 133, ¶ 14, 717 N.W.2d 567.

[¶ 11] Using the evidence presented at trial, the appraisal completed by Wayne Bachmeier at Linda Holden’s behest, and the pretrial N.D.R.Ct. 8.3 property and debt listings, the court determined the parties’ net worth was $255,615 and proceeded to equitably divide the property. The court awarded Dennis Holden $79,145 and Linda Holden $176,470 in property. This left a difference of $97,325. Half of the difference is $48,662.50. The court considered that Linda Holden had incurred $3,000 in legal fees because of Dennis Holden’s noncompliance with discovery and had incurred the appraisal costs. The court concluded Linda Holden must pay Dennis Holden $43,000 to make the property division equitable. Thus, Dennis Holden received a total of $122,145 of the $255,615 marital estate (47.778%), and Linda Holden received $133,470 of the $255,615 marital estate (52.215%). The court also acknowledged and explained the minor difference in the property awards when it concluded:

This is not an exactly equal amount, as the Court is going to allow Linda a credit for $3000 in attorneys fees which were incurred because of Dennis’ failure to cooperate with the discovery and preparation of inventory and valuations before trial, and 1/2 of the real estate taxes that are currently owing and the costs of the appraisals, and for Dennis’ obstinance in cooperating for trial.

[¶ 12] Dennis Holden complains the district court incorrectly valued the property by accepting Bachmeier’s appraisal of the property. The district court properly relied upon Bachmeier’s appraisal. See Kostelecky, 2006 ND 120, ¶ 9, 714 N.W.2d 845; Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601. Bachmeier is a real estate appraiser and a real estate broker. Bachmeier has passed the “Professionalism in Appraisal Practice Exam” for appraisers and works in an apprenticeship under the guidance of a certified general appraiser. The record shows Bachmeier completed his report and had two certified general appraisers review it. The record clearly indicates Bachmeier had specialized knowledge about real estate values and was qualified to give his opinion as to the value of the property. Furthermore, Dennis Holden failed to object to the introduction of Bachmeier’s appraisal report at trial and failed to present contrary evidence on the property valuation. When a party fails to object to the introduction of evidence, the error is essentially waived. Davis v. Killu, 2006 ND 32, ¶ 20, 710 N.W.2d 118. The court was entitled to rely on the appraisal to value the property, especially considering Dennis Holden presented no evidence on property valuation.

[¶ 13] Dennis Holden also claims the court erred in awarding specific property to Linda Holden. He argues the Ruff-Fischer guidelines were misapplied because the parties’ net worth was incorrectly determined by Bachmeier before the guidelines were applied. Dennis Holden did not challenge the application of the guidelines, only the values placed on the property before applying the Ruff-Fischer guidelines to divide the property. The district court properly applied the guidelines, resulting in a roughly equal distribution of the marital property. The award is consistent with our recognition that long-term marriages support nearly equal distribution of property. Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905. Furthermore, the court carefully explained why the award was not exactly equal. The district court’s property distribution was not clearly erroneous.

rv

[¶ 14] Dennis Holden also argues the marital property should be liquidated to establish its fair market value. Contrary to his position, property, especially business property, need not be liquidated for a distribution to be equitable. See Kostelecky, 2006 ND 120, ¶13, 714 N.W.2d 845; see also Gibbon v. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707 (compiling cases). “Our decisions effectively recognize liquidation of an ongoing ... business is ordinarily a last resort, and ... on appeal we generally have not been asked by the party awarded the [business] operation to liquidate it instead of structuring a monetary award so the enterprise can continue as a viable business.” Gibbon, at ¶ 7. In this case, the court distributed the property equitably without liquidating any of the marital property, including the businesses. When the district court is presented with different methods of distribution, it is not clearly erroneous to follow one method rather than the other. Id. at ¶ 9.

[¶ 15] The district court’s decision is supported by the evidence. Therefore, it is not clearly erroneous.

V

[¶ 16] The district court properly relied upon evidence before it to assign values to the property and divided the property in a roughly equal fashion. The court carefully explained the difference in the award values. Dennis Holden failed to show the district court’s decision was clearly erroneous. We affirm.

[¶ 17] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.