author: HALBROOKS, Judge. FOLEY, Judge

text:
    John F. NIESZNER, Appellant, v. ST. PAUL SCHOOL DISTRICT NO. 625, Respondent.
    No. C5-01-1806.
    Court of Appeals of Minnesota.
    May 14, 2002.

      Gary M. Rankila, Richard P. Osborne, Minneapolis, for appellant.
    Nancy L. Cameron, St. Paul, for respondent.
    Considered and decided by PETERSON, Presiding Judge, HALBROOKS, Judge, and FOLEY, Judge.

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

   OPINION

HALBROOKS, Judge.

Appellant challenged the results of a veteran’s preference hearing in district court, and the court dismissed the case for lack of personal jurisdiction. Appellant contends that (1) the district court erred in ruling that Minn. R. Civ. P. 4.03(e)(4) applies to service of the notice of appeal required by Minn.Stat. § 197.46 (2000); and (2) once the court dismissed his appeal, the court administrator had no legal authority to tax costs against him. Because service of the notice of appeal pursuant to section 197.46 commences a civil action and appellant did not comply with the service requirements of rule 4, and because a district court has authority to award costs to a prevailing party after dismissing the action for lack of personal jurisdiction, we affirm. Respondent’s motion to strike a portion of appellant’s appendix that contained an affidavit that was not part of the district court’s record is granted.

FACTS

Appellant John Nieszner is a veteran entitled to the protection of Minn.Stat. § 197.46 (2000), the Minnesota Veterans Preference Act. Appellant was employed as a teaching assistant II and a bus monitor at a St. Paul public school from October 4, 1999, to June 20, 2000, when he was terminated for unsatisfactory job performance. Pursuant to MinmStat. § 197.46, appellant requested a hearing before the civil service commission. Following a three-day hearing, the commission upheld the termination by a notice dated March 7, 2001.

On March 22, 2001, appellant mailed two copies of a notice of appeal to the school district superintendent, one by first-class mail and one by certified mail. Appellant filed the notice of appeal with the district court on March 30, 2001. Respondent moved to dismiss the appeal, contending that (1) the district court lacked subject-matter jurisdiction because the notice was not served on the “officer making the charges” as required by section 197.46; (2) the district court lacked personal jurisdiction because the notice was mailed and not personally served; and (3) appellant’s notice failed to state a claim upon which relief could be granted. The district court dismissed the appeal based on lack of personal jurisdiction. The court ruled that the service was ineffective because section 197.46 does not provide for service of a notice of appeal by mail and the superintendent was not personally served in accordance with Minn. R. Civ. P. 4.03(e)(4). The court taxed costs against appellant, which appellant paid. This appeal follows.

ISSUES

1. Did the district court err by dismissing an appeal under Minn.Stat. § 197.46 (2000) for lack of personal jurisdiction when appellant failed to serve notice of the appeal in accordance with Minn. R. Civ. P. 4.03(e)(4)?

2. Did the court administrator have authority to tax costs against appellant after the district court dismissed his appeal for lack of personal jurisdiction?

ANALYSIS

Statutory construction and the existence of personal jurisdiction are questions of law, which this court reviews de novo. Ryan Contracting, Inc. v. JAG Inv., Inc., 634 N.W.2d 176, 181 (Minn.2001).

I.

Minnesota Statutes section 197.46 (2000) provides certain protections for veterans separated from military service under honorable conditions who are employed by school districts, among other public entities. Pursuant to the statute, a veteran may only be removed from employment following a hearing and upon a showing of misconduct or incompetence. A request for a hearing before the civil service commission “shall be made in writing and submitted by mail or personal service to the * * * [employer].” Id. Following the hearing, the statute provides that:

The veteran may appeal from the decision of the board upon the charges to the district court by causing written notice of appeal, stating the grounds thereof, to be served upon the governmental subdivision or officer making the charges within 15 days after notice of the decision and by filing the original notice of appeal with proof of service thereof in * * * the district court within ten days after service thereof.

Id.

The meaning of the language “to be served upon the * * * officer making the charges” is the crux of this appeal and presents this court with a case of first impression. The district court ruled that, because a notice of appeal is a commencement of a civil action, service must be made in accordance with Minn. R. Civ. P. 4.08(e)(4), which requires personal service. Because appellant mailed the notice of appeal to the school district superintendent, but did not personally serve a proper person within the statutory 15-day time frame, the district court dismissed the matter for lack of personal jurisdiction.

Appellant contends that an appeal from Minn.Stat. § 197.46 formally begins when it is filed in district court, not when it is “preliminarily served” on the opposing party. As a result, appellant asserts that the manner of serving the notice of appeal is merely a continuation of the administrative hearing process and is not governed by the rules of civil procedure.

Statutory provisions for service of notice must be strictly followed for a court to acquire jurisdiction. Lebens v. Harbeck, 308 Minn. 433, 434, 243 N.W.2d 128, 129 (1976). But rules concerning the commencement of an action should be construed to provide a single, uniform course of procedure applicable to all civil actions. Leek v. Am. Express Prop. Cas., 591 N.W.2d 507, 508-09 (Minn.App.1999), review denied (Minn. July 7, 1999). Absent personal service of process, or waiver of service by the defendant, a court ordinarily may not exercise jurisdiction over a defendant. Murphy Bros. v. Michetti Pipe Stringing, Inc. 526 U.S. 344, 350, 119 S.Ct. 1322, 1327, 143 L.Ed.2d 448 (1999).

In support of his position, appellant contends that section 197.46 permits service of notice of appeal by mail because the statute permits a veteran to request a hearing on a termination by either mail or personal service. The statute uses the verb “submitted” in reference to the handling of the veteran’s written request for a hearing before the civil service commission. In contrast, the statute requires that the subsequent notice of appeal to the district court “be served.” See Minn.Stat. § 645.19 (2000) (“Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer.”).

We note that appellant could have served respondent by adhering to the service-by-mail procedures of Minn. R. Civ. P. 4.05, which require the served party to sign and return an acknowledgment of service. Appellant concedes that the notice of appeal sent by certified mail fails to constitute service under rule 4.05, but argues that service under rule 4.05 would be impossible under section 197.46 because “a savvy respondent would always be able to run out the time periods” and defeat district court jurisdiction. But this is true any time a litigant relies solely on service by mail. A litigant must be prepared to serve the intended party personally if the party fails to return the signed acknowledgment of service within the timeframe for answering the complaint. See Minn. R. Civ. P. 4.05.

Appellant also argues that the provision requiring that a hearing request be “submitted by mail or personal service” is ambiguous, suggesting that a hearing may be requested by either “mail service” or “personal service.” Appellant contends that the service of the notice of appeal may be by either means as well. But a plain reading of the statute suggests that “mail” and “personal service” are separate terms, and “personal service” is an unambiguous, common-law term. See Bardwell v. Anderson, 44 Minn. 97, 103, 46 N.W. 315, 317-18 (1890) (stating that under common law, “personal service” was required for jurisdiction). Moreover, statutory words should be given their plain meaning, and appellant’s interpretation of the service provision is inconsistent with the ordinary meaning of the term “personal service.” See Minn.Stat. § 645.08(1) (2000) (“Words and phrases are construed according to the rules of grammar and according to their common and approved usage[.]”).

Appellant asserts that service in this case is governed by Minn. R. Civ. P. 5. Rule 5.01 provides that

[ejxcept as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint * * * and every written notice * * * shall be served upon each of the parties.

Rule 5.02 authorizes service of such documents by mailing papers to a party’s attorney. Respondent, however, was never a party to a civil action subject to rule 5, which “clearly govem[s] service on one who is already a party.” See Ryan, 634 N.W.2d at 187 (the lenient service requirements of rule 5.02 only apply once one is made a party).

Finally, appellant suggests that the remedial purpose of the Minnesota Veterans Preference Act would be frustrated by requiring strict personal service of the notice of appeal, especially when respondent had actual notice of the appeal. But certified mail does not constitute service by mail under rule 4.05. And actual notice of a lawsuit will not subject a defendant to personal jurisdiction absent substantial compliance with the personal-service requirements set forth in rule 4. Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn.1997). As appellant concedes, the substantial-compliance exception has only been applied when a party has attempted substitute service in accordance with the rules of civil procedure. See Thiele, 425 N.W.2d at 584 (finding jurisdiction when there was actual notice and service under rule 4.03 by leaving the summons at a potential party’s office). Here, appellant did not attempt to serve respondent in accordance with either rule 4.03 or rule 4.05.

We conclude that service of a notice of appeal pursuant to section 197.46 commences a civil action for purposes of the rules of civil procedure. The statute itself provides that, when filing the appeal in district court, one must attach the proof of service of the notice of appeal. See Minn.Stat. § 197.46 (requiring filing of the original notice of appeal with proof of service thereof within ten days of service of the notice). Section 197.46 reasonably provides for less formal notice, such as by mail, for the initial administrative hearing, and yet requires stricter notice for summoning the other party into district court for an appeal. And while the rules of civil procedure “do not supersede the provisions of statutes relating to appeals to the district courts,” Minn. R. Civ. P. 81.02, nothing in section 197.46 suggests that the notice of appeal may be served in any manner other than by the rules. Moreover, “all * * * statutes inconsistent or in conflict with these rules are superseded insofar as they apply to pleading, practice, and procedure in the district court.” Minn. R. Civ. P. 81.01(c).

Established precedent also supports our conclusion. Personal service is generally governed by rule 4.03, and when a statute does not specify how a summons should be served to commence an action, the rules of civil procedure apply. Ryan, 634 N.W.2d at 186-87 (holding service of process in a hen action was ineffective when not personally served despite service on a joint-venture partner, actual notice, and no prejudice). While initially administrative in nature, once an aggrieved person files a statutory appeal of a civil service commission’s decision to the district court, it becomes a judicial inquiry and an adversarial proceeding between parties. Andrusick v. City of Apple Valley, 268 N.W.2d 766, 768 (Minn.1977) (holding ineffective service of a notice of appeal of a tax assessment on a holiday). These cases are not limited to hen statutes or assessment appeals, but stand for the general rule that service of process must strictly comply with rule 4 of the rules of civil procedure.

II.

Pursuant to MinmStat. § 549.02 (2000), costs and disbursements are available to the “prevailing party” in ah cases in district court. The district court shah allow reasonable costs to a prevailing party in a district court action. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

Appellant argues that a court’s determination that it “does not have jurisdiction precludes the court from taking any further action.” But Minn. R. Civ. P. 54.04 provides that any party objecting to the court administrator’s taxation of costs or disbursements must “specify in writing the grounds thereof’ and “file a notice of appeal.” Appellant did not dispute the costs assessed against him below, and this court will not hear an appeal from taxation of costs that was not presented to the district court. Taylor v. N. States Power Co., 196 Minn. 22, 24, 264 N.W. 139, 140 (1935).

Appellant cites no authority for the proposition that a district court cannot tax costs against the losing party. Minn. Stat. § 549.02, subd. 1 (2000), provides that a district court shah award costs to a defendant when the action against it is dismissed. The plain language of the statute gives a district court authority to assess costs to a prevailing defendant, even if the court dismissed the action for lack of personal jurisdiction.

DECISION

The district court properly dismissed appellant’s statutory appeal pursuant to Minn.Stat. § 197.46 (2000) for lack of personal jurisdiction when appehant failed to serve respondent with the notice of appeal according to Minn. R. Civ. P. 4.03(e)(4). Minn.Stat. § 549.02 (2000) allows the court administrator to assess costs in favor of respondent, the prevailing party.

Respondent moved to strike an affidavit contained in appellant’s reply brief. The record on appeal consists only of the papers filed in the trial court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ. P. 110.01. Because appellant’s affidavit contains information not raised with the district court, respondent’s motion to strike is granted.

Affirmed; motion granted.

FOLEY, Judge

(dissenting).

I respectfully dissent and assert that requiring strict personal service of the notice of appeal, especially when respondent had adequate notice by service on the superintendent, frustrates, the fundamental purpose of the Minnesota Veterans Preference Act (the act), which is to safeguard veterans in their employment. The remedial nature of the provisions of a veteran’s employment-benefits statute must be liberally construed in favor of veterans. See, e.g., Byrne v. Indep. Sch. Dist. No. 237, 305 Minn. 49, 50-51, 232 N.W.2d 432, 434 (1975) (“Underlying statutes preserving employment rights for citizens who serve the military is the basic principle that a person who serves the armed forces should not be penalized for that service in civilian life.”). And

[a] rule of civil procedure is inconsistent or in conflict with the provisions of a statute if the essential purpose of the statute would be frustrated by application of the rule.

In re Pet. of Brainerd Nat’l Bank, 383 N.W.2d 284, 286 (Minn.1986).

In this case, appellant mailed two copies of the notice of appeal to the superintendent (a person upon whom proper service can be made); one copy was sent by certified mail. While certified mail does not constitute service by mail under Minn. R. Civ. P. 4.05, both procedures require signing an acknowledgement of receipt. Respondent does not contend that it was prejudiced or that it lacked actual notice of the appeal. Neither did respondent petition for review of the district court’s ruling on whether the superintendent was a proper person for service. Under the circumstances, appellant substantially complied with the service requirements. See O’Sell v. Peterson, 595 N.W.2d 870, 872 (Minn.App.1999) (“[s]ubstantial compliance combined with actual notice will subject an individual to personal jurisdiction.”); Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn.App.1986) (“When actual notice of the action has been received by the intended recipient, ‘the rules governing such service should be liberally construed.’ ” (citation omitted)).

Ryan Contracting, Inc. v. JAG Inv., 634 N.W.2d 176 (Minn.2001), relied on by the majority, was decided by a divided court, did not involve the act, and should not control the decision in this case.

Because courts must liberally construe the provisions of the act, the district court acquired jurisdiction from the service that appellant chose. Preventing district court review of appellant’s termination based on a technicality ignores the benevolent and protective purpose of the act, which was adopted by the legislature for and on behalf of the grateful citizens of Minnesota.

      . The district court did not analyze this matter under Minn. R. Civ. P. 4.05 (service by mail) because an acknowledgment of service did not accompany the mailed notice of appeal.

      . Appellant further argues that the notice of appeal in this case is "superfluous” because respondent need not answer or otherwise respond to a notice of appeal, as one must, for example, to a summons. But appellant did not raise this theory below. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (issues raised below will not be heard on appeal under new theory).


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2002 ND 81
    Paul UREN, Plaintiff and Appellant, v. DAKOTA DUST-TEX, INC., Defendant and Appellee.
    No. 20010205.
    Supreme Court of North Dakota.
    May 14, 2002.
    Randall J. Bakke (argued) and Michael J. Hagburg (on brief), Smith Bakke Hov-land <& Oppegard, Bismarck, ND, for plaintiff and appellant.
    Steven A. Storslee (argued) and Chris A. Edison (on brief), Storslee Law Firm, P.C., Bismarck, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] Paul Uren has appealed from a summary judgment dismissing his action against Dakota Dust-Tex, Inc. (“Dakota”) for damages resulting from a fire in a building leased to Dakota by Uren. We conclude that (1) Dakota was an implied co-insured under Uren’s property insurance policy and subrogation was therefore barred; (2) Dakota was not hable for lost rents; (3) Dakota was not liable for Uren’s insurance deductible and travel expenses to view the damaged building; and (4) an attorney’s travel expenses to attend a pretrial product inspection were not recoverable as costs or disbursements. Accordingly, we affirm in part, reverse in part, and remand for entry of an amended judgment in accordance with this opinion.

I

[¶ 2] Dakota operates a commercial laundry in a building it leases from Uren. On October 5, 1998, the building was extensively damaged by fire. Uren alleges the fire resulted from spontaneous combustion of towels which a Dakota employee had placed in a laundry cart without allowing an adequate cool-down period.

[¶ 3] Uren had purchased property insurance on the building from Heritage Mutual Insurance Company (“Heritage”). Uren’s policy with Heritage provided replacement cost coverage and coverage for lost rents. Heritage paid Uren more than $160,000 for the cost to repair the building and for lost rents.

[¶ 4] Heritage brought this subrogation action in Uren’s name against Dakota, alleging Dakota had negligently caused the fire which damaged the building. Uren also sought to recover $2000 in uninsured losses from Dakota. Dakota moved for summary judgment, alleging it was an implied co-insured under Uren’s property insurance policy and that Heritage was therefore barred from seeking subrogation. The district court granted summary judgment dismissing Uren’s complaint, and Uren appealed.

II

[¶ 5] Uren argues the district court erred in concluding that Dakota was an implied co-insured under Uren’s property insurance policy and that a subrogation action was therefore barred.

[¶ 6] We addressed this issue in Community Credit Union v. Homelvig, 487 N.W.2d 602 (N.D.1992). The Homelvigs leased a house from Community Credit Union and, after a fire caused significant damage to the house, Community Credit Union’s insurer paid under its policy. The insurer then brought a subrogation action alleging the Homelvigs had negligently caused the fire. Agreeing with “[t]he great majority of courts which have addressed this issue,” we held that, “absent an express agreement to the contrary, a tenant is an implied co-insured under the landlord’s insurance policy and the insurer may not seek subrogation against the tenant.” Id. at 603, 605.

[¶ 7] Uren argues that the following provisions in his lease with Dakota constitute “an express agreement to the contrary,” taking this case out of the Homel-vig rule:

HOLD HARMLESS:
The Lessee agrees to indemnify and save the Lessor harmless against any and all claims, damages, costs and expenses, including reasonable attorney fees arising out of or connected with the conduct or management of the business conducted by the Lessee on the demised premises....
LIABILITY INSURANCE:
The Lessee agrees to take out public liability insurance covering the demised premises. Said policy or policies shall be for an amount of at least Five Hundred Thousand Dollars ($500,000.00), for death or injury to one or more persons, plus Twenty-Five Thousand Dollars ($25,000.00) property damage, which said policy or policies of insurance shall name the Lessor as additional insureds thereunder. Lessee further agrees to maintain the same at Lessee’s sole cost and expense in full force and effect, during the entire term of this lease or any renewal hereof.

Uren argues the first provision makes Dakota responsible for all damages to the building, and the second provision required Dakota to procure insurance naming Uren as an insured to cover damage to the building.

[¶ 8] We do not believe these provisions express a clear, unambiguous intent to make Dakota liable for damages to the building or an intent that Dakota not be considered a co-insured under Uren’s property insurance policy. The first provision is a standard hold harmless clause, which this Court has construed as “a promise to protect and defend the indem-nitee from all claims of third parties.” Bridston v. Dover Corp., 352 N.W.2d 194, 197 (N.D.1984) (emphasis added); see also Olander Contracting Co. v. Gail Wachter Investments, 643 N.W.2d 29, 2002 ND 65, ¶ 16; St. Paul Fire and Marine Ins. Co. v. Amerada Hess Corp., 275 N.W.2d 304, 308 (N.D.1979). It is not a clear, express agreement that Dakota would not be considered a co-insured under Uren’s property insurance.

[¶ 9] Uren has also misconstrued the provision requiring Dakota to procure liability insurance and name Uren as an additional insured. Uren argues the clear purpose of the insurance clause was to require Dakota to purchase insurance to protect the building. Uren asserted “Dakota was also required to name Uren as an additional insured under the policy” and “[t]hus, the subject insurance policy was to provide direct coverage to Uren for property damages sustained by Uren.”

[¶ 10] The insurance clause in the lease did not require Dakota to purchase property insurance on the building, but only required Dakota to purchase liability insurance and name Uren as an additional insured. Naming Uren as an insured under a liability policy would not provide protection for Uren’s building, but would only protect Uren from liability claims of third parties. Naming Uren as an additional insured did not create a “loss payable clause” to protect Uren’s building. See Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 826 (N.D.1988). Our prior cases indicate that when a lease contains a hold harmless clause and a clause requiring the tenant to purchase liability insurance naming the landlord as an additional insured, the only purpose for such an insurance provision is “to protect [the landlord] from the consequences of its own negligent acts.” Rupp v. American Crystal Sugar Co., 465 N.W.2d 614, 617 (N.D.1991); Vanderhoof v. Gravel Products, Inc., 404 N.W.2d 485, 492 (N.D.1987); Bridston, 352 N.W.2d at 197.

[¶ 11] Furthermore, we note the insurance clause required Dakota to purchase liability insurance with coverage of property damage in the amount of $25,000. If the parties had intended this insurance to provide coverage for damage to the building, they certainly would have provided for a greater amount of coverage. This insurance was clearly intended to provide coverage only for Dakota’s or Uren’s liability for property of third parties damaged in the course of Dakota’s business.

[¶ 12] If there were any doubt about the parties’ intent regarding Uren’s right to subrogation from Dakota, that doubt is erased by the following provision in the lease:

REPAIRS:
The Lessee shall take good care of the interior in order to preserve the demised premises in a good and orderly condition and shall make, as and when needed, all repairs to the interior of the demised premises ...; provided, however, that repairs made necessary by reason of any cause or peril included unth-in the coverage of Lessor’s policy of property insurance shall be made by the Lessor to the extent of such insurance coverage. [Emphasis added].

This clause unambiguously demonstrates the parties intended Uren would purchase property insurance covering the building, they would look to that insurance to cover any insured loss, and Dakota would be absolved of liability for any such loss.

[¶ 13] We conclude the lease contains no express agreement indicating Dakota should not be considered an implied co-insured under Uren’s property insurance policy, and the Homelvig rule therefore applies. Accordingly, Heritage may not seek subrogation against Dakota.

Ill

[¶ 14] Uren argues that Dakota should be hable for lost rents caused by the fire, relying upon the following provision in the parties’ lease:

DESTRUCTION OF PREMISES:
In case the building shall be at any time wholly or partially destroyed by fire or other unavoidable casualties, so that the leased premises shah be unfit for occupation or use, or in the event this building is wholly or partially destroyed by any cause whatsoever, excepting destruction caused by the willful act or misconduct of the Lessee, its agents or employees, this Lease shall terminate unless the Lessor shah give notice in writing within thirty (30) days of the happening of such occurrence of his intention to rebuild or repair. In the event such notice is given, this Lease shall remain in full force and effect with the rent to be abated or prorated (if partially destroyed) during the time required for rebuilding or repair.

[¶ 15] The fire in this case damaged only part of the building. Uren decided to repair the building and, in accordance with the above lease provision, timely notified Dakota. Dakota continued occúpying the undamaged portion of the building, and Uren accepted prorated rental payments from Dakota under the above lease provision. Uren’s policy with Heritage provided coverage for lost rents, and Heritage paid Uren for the prorated rents lost while the building was being repaired.

[¶ 16] Uren now claims Dakota was not entitled to prorate its rent under the lease because Dakota caused the fire. However, because Uren has recovered his lost rents under his property insurance, any claim for lost rents is through subrogation. Because we have concluded Dakota was an implied co-insured under Uren’s policy with Heritage, subrogation is barred under Homelvig.

[¶ 17] Uren argues that even if Homel-vig bars a subrogation claim against Dakota for damage to the building, we should treat the claim for lost rents separately because the lease expressly made Dakota hable for rent if its negligence caused the fire. We find it unnecessary to decide whether a tenant’s liability can be “carved up” and the tenant be designated a co-insured for purposes of some claims but not others under Homelvig, because we conclude the lease does not expressly indicate Dakota would be liable for lost rents in this case.

[¶ 18] Uren has alleged the negligence of Dakota’s employee caused the fire. The lease provided that Dakota would remain liable for the full amount of the rent if the building was wholly or partially destroyed by “the willful act or misconduct” of Dakota or its employees. Uren has alleged only ordinary negligence by Dakota’s employee. Ordinary negligence does not constitute a willful act or misconduct. See, e.g., Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 25, 632 N.W.2d 407 (differentiating negligence and willful conduct); Peterson v. Traill County, 1999 ND 197, ¶ 17, 601 N.W.2d 268 (differentiating ordinary negligence and willful misconduct); Johnson v. Job Service North Dakota, 1999 ND 42, ¶ 11, 590 N.W.2d 877 (quoting ProServe Corp. v. Rainey, 536 N.W.2d 373, 376 (N.D.1995)) (ordinary negligence does not constitute misconduct disqualifying a claimant from unemployment benefits); Stokka v. Cass County Elec. Coop., Inc., 373 N.W.2d 911, 916 (N.D.1985) (Vande Walle, J., concurring) (differentiating ordinary negligence and willful acts); Barta v. Hondl, 118 N.W.2d 732, 734-36 (N.D.1962) (differentiating ordinary negligence and willful misconduct). Dakota was therefore entitled to prorate rent under the lease.

[¶ 19] The parties’ conduct after the fire bolsters this interpretation. Uren gave notice of intent to repair the damages and prorated the rent while Dakota occupied the unaffected portion of the building.

[¶ 20] We conclude the subrogation action against Dakota for lost rents is barred.

IV

[¶ 21] Uren contends that, even if subrogation is barred, he should be allowed to recover his uninsured losses. Dakota argues that Uren has recovered insurance payments which far exceed the total damages claimed in this action and he therefore has no uninsured losses.

[¶ 22] Uren sought to recover total damages of $116,971.81 in this case. Of that amount, $109,114.23 was for actual value of the damage to the building; $5,850.00 was for lost rents; $500.00 was for Uren’s insurance deductible; and $1,507.58 was for Uren’s mileage, meals, and lodging to travel from his home in Tennessee to view the building.

[IT 23] The amount of damages sought in this case reflects the directive of N.D.C.C. § 32-03-09.1 that “[t]he measure of damages for injury to property caused by the breach of an obligation not arising from contract ... is presumed to be the reasonable cost of repairs necessary to restore the property to the condition it was in immediately before the injury was inflicted.” Because Uren had purchased replacement cost coverage, however, he actually received $160,680.38 from Heritage for his damages. Accordingly, Uren has received insurance proceeds which exceed his claimed damages in this case by more than $40,000.

[¶ 24] Uren argues that the Homelvig rule applies only to subrogation, and therefore does not preclude him from recovering any uninsured losses from Dakota. Uren claims the decision in Agra-By-Products, Inc. v. Agway, Inc., 347 N.W.2d 142 (N.D.1984), allows a landlord to proceed against a tenant when the landlord has uninsured losses.

[¶ 25] In Agrar-By-Products, Agway leased land and buildings from Agra. The lease provided that certain property insurance would be kept in force, and Agway would reimburse Agra for all insurance premiums on the property. However, the insurance coverage was for less than the actual value of the buildings. After a fire damaged the leased buildings and other adjacent property, Agra sued Agway. This Court first concluded Agway was a co-insured under Agra’s property insurance and subrogation was therefore barred. Id. at 146-50. The Court further concluded, however, that Agway was not absolved of liability for losses exceeding the insurance coverage:

Looking to the lease, we find no agreement as to the procurement and maintenance of a specified level of insurance. Agway agreed to reimburse Agra for “all insurance premiums of any nature of [sic] kind paid by [Agra] for said insurance on the buildings” subject to the lease; “said insurance” referring to the insurance provisions in full force and effect as shown by the policy of insurance attached to the lease. Agra did not agree “to insure the premises against loss by fire to the extent of the fair insurable value thereof.” See City of Deland v. Dri-Clime Lamp Corp., 348 So.2d 1239, 1242 (Fla.App.1977). The terms of the lease cannot be construed to absolve Agway from liability for its negligence in causing Agra’s uninsured loss. We conclude that Agway is limited in its protection under the lease to the extent of insurance coverage provided for by “the insurance provisions in full force and effect as shown by policy of insurance attached [to] and made a part [of the lease].” We construe this provision to include all insurance, in effect at the time of the fire, purchased by Agra on the leased property during the term of the lease with Agway.
We hold, as a matter of law, that the provisions of the parties’ lease absolve Agway from liability to Agra for fire damage caused by Agway’s negligence to property subject to the lease, but only to the extent of insurance coverage purchased by Agra provided by the insurance policy or policies in force and effect for the property under lease to Agway.

Agrar-By-Products, 347 N.W.2d at 151-52 (footnote omitted).

[¶ 26] This case in effect presents the converse of Agra-By-Products: rather than being underinsured, or suffering damages to uncovered property, Uren had purchased replacement cost coverage which paid out more than the total damages he could have recovered from Dakota in a negligence action. Uren nevertheless argues that it was he who “had the prudence to purchase replacement cost coverage from his insurer,” and Dakota should not be able to reap the benefit of that coverage to avoid liability for uninsured losses.

[¶ 27] In resolving this issue, we look to the public policy underpinnings of the Homelvig rule. In Homelvig, the Court repeatedly stressed that the strongest policy favoring the majority rule was recognition that landlords pass on the cost of property insurance to the tenant when establishing the amount of rent, and the tenant should therefore enjoy the benefits of coverage when he has effectively paid the premium. See Homelvig, 487 N.W.2d at 603-05. The Court noted:

“The realities of who ultimately pays for the insurance also support adoption of this rule. Despite the fact that the lessor may actually send the premium check to the insurance company, the lessee ultimately pays for insurance through his rent checks, because the lessor takes his own costs into account when setting rent. If the lessee is ultimately the source of the insurance payment, simple equity would suggest that he be able to benefit from that payment unless he has clearly bargained away that benefit.”

Id. at 605 (quoting Tate v. Trialco Scrap, Inc., 745 F.Supp. 458, 473 (M.D.Tenn.1989)).

[¶ 28] We believe that rationale applies here as well. Although it may have been the landlord who “had the prudence to purchase replacement cost coverage,” Ho-melvig recognizes that it was the tenant who ultimately paid the higher premiums, through increased rents, for that greater coverage. Under Homelvig, a tenant is allowed to reap the benefit of insurance coverage it has paid for and thereby avoid subrogation. Absent an express agreement to the contrary, a tenant should also be able to claim the benefit of higher-priced replacement cost coverage it paid for which reimbursed the landlord for damages in excess of his actual loss.

[¶ 29] Uren concedes that his damages in his negligence action are limited to his actual loss of $116,000, and also concedes he has received $160,000 for that loss from his insurer. Under Agra-By-Products, Dakota is absolved of liability for fire damage caused by its negligence “to the extent of insurance coverage provided.” Agra-By-Products, 347 N.W.2d at 151. The insurance coverage paid for by Dakota through its rental payments provided coverage in excess of Uren’s actual loss. The “uninsured losses” claimed by Uren are not for damage to other property not covered by the lease, but are directly attributable to the covered loss. Under the circumstances presented in this cáse, we conclude Dakota is not hable for Uren’s deductible and travel expenses.

V

[¶ 30] Uren argues the district court erred in allowing as costs the travel expenses of Dakota’s attorney to attend a pretrial product inspection.

[¶ 31] Under N.D.C.C. § 28-26-10, costs may be allowed for or against either party in the discretion of the trial court. In re Estate of Dion, 2001 ND 53, ¶ 44, 623 N.W.2d 720. As part of the judgment in favor of a prevailing party, N.D.C.C. § 28-26-06 directs the clerk to tax that party’s necessary disbursements. Estate of Dion, at ¶ 44. A trial court’s decision on costs and disbursements will not be overturned on appeal unless an abuse of discretion is shown. Dowhan v. Brockman, 2001 ND 70, ¶ 10, 624 N.W.2d 690. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. Gaab v. Ochsner, 2001 ND 195, ¶ 6, 636 N.W.2d 669; US Bank Nat’l Ass’n v. Arnold, 2001 ND 130, ¶ 21, 631 N.W.2d 150.

[¶ 32] The district court allowed Dakota to recover as costs $509.41 for its attorney’s travel expenses to attend an out-of-state pretrial inspection of a radio which had been found near the source of the fire. Uren argues that attorney travel expenses are not taxable as costs under Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, 607 N.W.2d 904. In Braunberger, at ¶ 20, we held that attorney fees and expenses are generally not assessed as disbursements, but are normally reimbursed by the client.

[¶ 33] Dakota argues Braunberger should only apply to an attorney’s expenses incurred during trial, and attorney travel expenses incurred for pretrial discovery should be allowed. Dakota argues such expenses are recoverable as “necessary expenses of taking depositions and of procuring evidence necessarily used or obtained for use on the trial” under N.D.C.C. § 28-26-06(2).

[¶ 34] Attorney travel expenses for discovery are generally not recoverable by a prevailing party as costs or disbursements. See 10 Charles Alan Wright et al., Federal Practice and Procedure § 2676 (8d ed.1998); 20 Am.Jur.2d Costs § 61 (1995); 20 C.J.S. Costs § 124 (1990). We believe that general rule applies here. The holding of Braunberger was not limited to attorney travel expenses necessary to attend the trial. Although we did cite a South Dakota case, Tabor State Bank v. Jacobs, 58 S.D. 635, 222 N.W. 141 (1928), for the proposition that an attorney’s travel expenses for trips to court cannot be taxed as costs, we stated our holding in Braunberger in broader terms: “Attorney travel and meal expenses are normally reimbursed by the client and not assessed as disbursements.” Braunberger, 2000 ND 45, ¶20, 607 N.W.2d 904; see also Westchem Agric. Chems., Inc. v. Engel, 300 N.W.2d 856, 859 (N.D.1980) (“Generally, attorney fees and expenses are not allowable to the successful litigant in the absence of a statute providing for such an award.”). Dakota has provided no cogent reasoning for a rule which would allow taxation of such expenses incurred during discovery but disallow them if incurred during trial. The general language of N.D.C.C. § 28-26-06(2) allowing expenses of “procuring evidence necessarily used or obtained for use on the trial” does not include attorney travel expenses to attend a product inspection. Rather, such attorney expenses are part of the attorney’s fees and expenses which are normally reimbursed by the client.

[¶35] Dakota contends we have allowed taxation of attorney travel expenses in prior cases, citing Patterson v. Hutchens, 529 N.W.2d 561 (N.D.1995), Lacher v. Anderson, 526 N.W.2d 108 (N.D.1994), Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445 (N.D.1994), and Keller v. Vermeer Mfg. Co., 360 N.W.2d 502 (N.D.1984). We did not specifically address recovery of attorney travel expenses for discovery in any of those cases, and to the extent they can be read to allow such expenses they are hereby clarified.

[¶ 36] We conclude that the district court misapplied the law when it allowed taxation of Dakota’s attorney’s travel expenses as costs.

VI

[¶ 37] We have considered the remaining issues raised by Uren and find them to be without merit. We reverse that portion of the judgment allowing taxation of attorney travel expenses as costs. In all other respects the judgment is affirmed. We remand for entry of an amended judgment in accordance with this opinion.

[¶ 38] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . Because of our resolution of this issue, we do not consider the underlying question of whether a landlord’s travel expenses to view the damaged property are a proper element of damages recoverable in a negligence action.


author: NEUMANN, Justice.

text:
    2002 ND 83
    CASS COUNTY JOINT WATER RESOURCE DISTRICT, a political subdivision of the State of North Dakota, Plaintiff and Appellant, v. 1.43 ACRES OF LAND IN HIGHLAND TOWNSHIP, Cass County, North Dakota, Turtle Mountain Band of Chippewa Indians, a/k/a Turtle Lake Band of Chippewa Indians, and Roger W. Shea, Defendants and Appellees.
    No. 20010217.
    Supreme Court of North Dakota.
    May 14, 2002.

      Steven E. McCullough (argued), Ohns-tad Twichell, P.C., West Fargo, N.D., for plaintiff and appellant.
    Jerilyn DeCoteau (argued), Boulder, CO, Sarah M. Vogel and Courtney M. Koe-bele (appeared), Wheeler Wolf, Bismarck, N.D., for defendant and appellee Turtle Mountain Band of Chippewa Indians.
    Russell John Myhre (appeared), Ender-lin, N.D., for defendant and appellee Roger W. Shea.
    Jerald A. Hjelmstad, N.D. League of Cities, Bismarck, N.D., for amicus curiae North Dakota League of Cities.
    Charles M. Carvell, Assistant Attorney General, Bismarck, N.D., for amicus curiae State of North Dakota.
    Calvin N. Rolfson, Rolfson Schulz Ler-vick & Geiermann Law Offices, P.C., Bismarck, N.D., for amicus curiae North Dakota Association of Counties.
    Gary Michael Beaudry, Three Affiliated Tribes, Williston, N.D., for amicus curiae Three Affiliated Tribes.
   NEUMANN, Justice.

[¶ 1] The Cass County Joint Water Resource District (“the District”) appeals from a judgment dismissing its action seeking to acquire by condemnation 1.43 acres of land in Highland Township. We reverse and remand, concluding that neither tribal sovereign immunity nor the Federal Nonintercourse Act, 25 U.S.C. § 177, prohibits an in rem condemnation action against the land, and that the trial court erred in dismissing Roger Shea as a defendant in the action.

I

[¶ 2] The District is a political subdivision of the State of North Dakota authorized to manage water resources within Cass County. In 1994, the District submitted an application to the United States Army Corps of Engineers to build a dam on the Maple River in Cass County to provide flood control in eastern North Dakota. In conjunction with the project, the District has attempted to acquire the 1.43 acre tract of land at issue in this case. The land will be subject to frequent flooding if the dam is built.

[¶ 3] In a series of treaties between 1851 and 1873, the Mdewakanton, Wahpa-koota, Sisseton, and Wahpeton bands of the Sioux Indians ceded territory, including the 1.43 acre tract, to the United States. In the late 1800s the land was transferred by patent to the Northern Pacific Railroad Company and was privately owned for more than one hundred years. At the time the District began the process of approval for the dam, the 1.43 acre tract was owned by Roger Shea as part of a larger parcel of land. Shea opposed construction of the dam. On July 28, 2000, Shea conveyed the 1.43 acre tract to the Turtle Mountain Band of Chippewa Indians (“the Tribe”) by warranty deed for $500, reserving in himself the right to graze livestock on the land. On February 6, 2001, Shea executed a quit claim deed conveying his right to graze livestock on the 1.43 acre tract to the Tribe for $1. The July 28, 2000 warranty deed was recorded; the February 6, 2001 quit claim deed was not.

[¶ 4] The Tribe is a federally recognized Indian tribe and has a 43,000 acre reservation in Rolette County. The 1.43 acre tract at issue in this case is located approximately 200 miles from the reservation. The land does not lie within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust by, or otherwise under the superintendence of, the federal government. The Tribe contends, however, that its ancestors once occupied the area and that the 1.43 acre tract contains a culturally significant village site and burial site.

[¶ 5] In February 2001, the District brought this action seeking condemnation of the 1.43 acre tract, naming the Tribe and Shea as defendants. The Tribe moved to dismiss the action, arguing that it enjoyed sovereign immunity from suit and that condemnation of land owned by the Tribe would violate the Federal Noninter-course Act. Shea also moved to dismiss the action against him, arguing he no longer had any interest in the 1.43 acre tract. The district court concluded that the action against the Tribe was barred by sovereign immunity and that Shea had no interest in the property. Judgment was entered dismissing the action, and the District appealed.

II

[¶ 6] The primary issue presented in this case is apparently one of first impression nationally: May a state condemn land within its territorial boundaries which has been purchased in fee by an Indian tribe, but which is not reservation land, aboriginal land, allotted land, or trust land? The district court held that, in order to entertain the condemnation action, it required both in rem jurisdiction over the land and in personam jurisdiction over the Tribe. The court concluded that tribal sovereign immunity barred assertion of in personam jurisdiction over the Tribe, and it therefore lacked jurisdiction to hear the condemnation action.

[¶ 7] On appeal, the District argues the court did not need in personam jurisdiction over the Tribe because condemnation is a purely in rem action, and sovereign immunity therefore does not bar the action. The Tribe argues that in personam jurisdiction is required and the court correctly concluded it lacked jurisdiction.

A

[¶ 8] It is well settled that a condemnation action is strictly in rem. See, e.g., McKenzie County v. Hodel, 467 N.W.2d 701, 705 (N.D.1991); United States v. Petty Motor Co., 327 U.S. 372, 376, 66 S.Ct. 596, 90 L.Ed. 729 (1946); Farley v. State, 180 Ga.App. 694, 350 S.E.2d 263, 264 (1986); Utilities, Inc. v. Washington Suburban Sanitary Comm’n, 362 Md. 37, 763 A.2d 129, 135 (2000); State v. Clark, 238 Or. 505, 395 P.2d 146, 148 (1964); In re Petition of Seattle, 56 Wash.2d 541, 353 P.2d 955, 957 (1960); 6 Julius L. Sackman, Nichols on Eminent Domain § 26A.05[1] (2001). A proceeding in rem is an action against the property itself, and in personam jurisdiction is not required. See, e.g., Catlin v. Catlin, 494 N.W.2d 581, 588 (N.D.1992); Smith v. Smith, 459 N.W.2d 785, 787-88 (N.D.1990); Freeman v. Alderson, 119 U.S. 185, 187, 7 S.Ct. 165, 30 L.Ed. 372 (1886); Phillips v. Chas. Schreiner Bank, 894 F.2d 127, 132 (5th Cir.1990); Farley, 350 S.E.2d at 264; In re Petition of Seattle, 353 P.2d at 957-58; Restatement (Second) of Conflict of Laws § 59 (1988).

[¶ 9] The general rule is set out in 20 Am.Jur.2d Courts § 80 (1995): “[A] decision in rem does not impose responsibility or liability on a person directly, but operates directly against the property in question ... irrespective of whether the owner is subject to the jurisdiction of the court in personam.” See also 59 Am. Jur.2d Parties § 1 (1987) (“in an in rem proceeding there are no parties in the sense of opposing litigants,” and “a defendant to proceed against is essential in all civil proceedings except where the action is strictly in rem”). The essential nature of an in rem proceeding is delineated in 1 Am.Jur.2d Actions § 34 (1994) (footnotes omitted):

A proceeding in rem is essentially a proceeding to determine rights in a specific thing or in specific property, against all the world, equally binding on everyone. It is a proceeding that takes no cognizance of an owner or person with a beneficial interest, but is against the thing or property itself directly, and has for its object the disposition of the property, without reference to the title of individual claimants. The action of the court is binding, even in the absence of any personal notice to the party interested or any jurisdiction over his person.

[¶ 10] The Supreme Court of the United States outlined the distinctions between in rem and in personam jurisdiction in Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (emphasis added):

[S]tate authority to adjudicate was based on the jurisdiction’s power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court’s jurisdiction is based on its authority over the defendant’s person, the action and judgment are denominated “in personam” and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court’s power over property within its territory, the action is called “in rem” or “quasi in rem.” The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court.

The Court in Shaffer thus recognized that in rem jurisdiction can be exercised without acquiring in personam jurisdiction over a party, but concluded that due process requires that there be minimum contacts between the party and the forum state. Id. at 212, 97 S.Ct. 2569, 53 L.Ed.2d 683; see also Smith, 459 N.W.2d at 787-88. There is no due process problem in this case. As the Court noted in Shaffer, 433 U.S. at 207-08, 97 S.Ct. 2569, 53 L.Ed.2d 683 (footnotes omitted):

[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.

The Tribe, through its ownership of the subject property and other activities within the State, has sufficient contacts with the State to satisfy due process.

[¶ 11] In the specific context of a condemnation action, the Supreme Court of Washington has noted that, because the action is in rem, in personam jurisdiction is not necessary and the purpose of service of the summons and complaint upon the landowner is only to provide notice and an opportunity to be heard:

[A]n action to condemn private property for a public use is a proceeding in rem, and not in personam. Thus, personal jurisdiction over the landowner, or landowners, is not a prerequisite to valid court action. The service of a copy of the petition and summons, provided for by RCW 8.12.070, is solely for the purpose of imparting notice to the landowner, or landowners, of the pendency of the proceedings against the land.

In re Petition of Seattle, 353 P.2d at 957-58 (citations omitted). Similarly, the court in United States v. Winn, 83 F.Supp. 172, 174-75 (W.D.S.C.1949) (citations omitted), concluded:

A condemnation proceeding is a proceeding in rem. The only need for having any person a party to a condemnation proceeding is to give him notice and enable him to have a hearing on the disposition of the res before the court....
Condemnation proceedings result in “a taking, not of the rights of designated persons in the thing needed, but of the thing itself, with a general monition to all persons having claims in the thing.” United States v. Dunnington, 146 U.S. 338, 352, 13 S.Ct. 79, 83, 36 L.Ed. 996. Persons are made parties to condemnation suits, not to confer jurisdiction upon the court to render a personal judgment, but to enable the condemnor to acquire the property free from all claims, legitimate or spurious.

See also Farley, 350 S.E.2d at 264 (in a condemnation proceeding “it is jurisdiction over the property rather than its owner that is essential,” and “[t]he statute requires only that a copy of the action ‘be served on the owner ..., if known’”). Thus, to comport with due process, property owners of record must be given notice and an opportunity to be heard in the condemnation action. See N.D.C.C. § 32-15-18(2) (condemnation complaint must include “[t]he names of all owners and claimants of the property, if known, ... who must be styled defendants”); N.D.C.C. § 32-15-20 (all persons claiming an interest in the property may appear and defend in the condemnation action); N.D.R.Civ.P. 4(e)(1)(F) (authorizing service by publication in condemnation actions).

B

[¶ 12] In support of its contention that tribal sovereign immunity bars this condemnation action, the Tribe relies heavily upon cases which stress the continued validity of tribal sovereign immunity. See, e.g., Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). We do not question the continued validity of the doctrine of tribal sovereign immunity. Rather, the novel question presented in this case is whether tribal sovereign immunity bars a purely in rem action against land held by the Tribe in fee and which is not reservation land, allotted land, aboriginal land, or trust land. The Tribe has not cited any case holding that tribal sovereign immunity bars an in rem condemnation action in state court.

[¶ 13] Courts have recognized distinctions in application of the doctrine of tribal sovereign immunity based upon the in rem or in personam nature of the proceedings. For example, the Supreme Court of the United States has indicated states may exercise broader jurisdiction over tribal lands in an in rem proceeding than in an in personam proceeding. In County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), the county imposed an ad valorem tax on real property and an excise tax on sales of the property. The county had for many years imposed these taxes on allotted lands which had been patented and which were held in fee by tribal members or the tribe itself. When the county sought to foreclose on such properties for non-payment of the taxes, the tribe challenged the state’s authority to impose the taxes on land held by the tribe or its members.

[¶ 14] The Court’s resolution of this issue turned in part upon interpretation of federal statutes governing allotment of Indian land to individual tribal members. Under the Indian General Allotment Act of 1887, 24 Stat. 388, the President had the authority to allot land to tribal members, and the land would be held in trust by the United States for a period of twenty-five years or longer, when a fee patent would be granted. County of Yakima, 502 U.S. at 254, 112 S.Ct. 683, 116 L.Ed.2d 687. The Burke Act of 1906, 34 Stat. 182, clarified that state civil and criminal jurisdiction over allotted lands would only lie at the expiration of the trust period when the land had been conveyed by fee patent. County of Yakima, at 255, 112 S.Ct. 683, 116 L.Ed.2d 687. A proviso to the Burke Act authorized the President to issue a fee patent prior to expiration of the specified trust period, and provided that upon such premature patenting all restrictions as to sale, encumbrance, or taxation of the land would be removed. Id.

[¶ 15] Although the Court’s resolution of the taxation issue involved interpretation of the statutory provisions, the Court addressed distinctions in the state’s authority over tribal land based upon the in rem or in personam nature of the proceedings. The Court noted that the county’s assertion of jurisdiction over fee-patented lands located on the reservation was permissible if it was in rem rather than in personam. County of Yakima, 502 U.S. at 264-65, 112 S.Ct. 683, 116 L.Ed.2d 687. The Court concluded that the ad valorem property tax was an in rem tax upon the property itself, and therefore permissible, but the excise tax was transactional, implicating in personam jurisdiction, and was impermissible:

Turning away from the statutory texts altogether, the Yakima Nation argues that state jurisdiction over reservation fee land is manifestly inconsistent with the policies of Indian self-determination and self-governance that lay behind the Indian Reorganization Act and subsequent congressional enactments. This seems to us a great exaggeration. While the in personam jurisdiction over reservation Indians at issue in Moe [v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) ] would have been significantly disruptive of tribal self-government, the mere power to assess and collect a tax on certain real estate is not....
Liability for the ad valorem tax flows exclusively from ownership of realty on the annual date of assessment. The tax, moreover, creates a burden on the property alone....
We think the excise tax on sales of fee land is another matter, as did the Court of Appeals. While the Burke Act proviso does not purport to describe the entire range of in rem jurisdiction States may exercise with respect to fee-patented reservation land, we think it does describe the entire range of jurisdiction to tax.

County of Yakima, 502 U.S. at 265-66, 268, 112 S.Ct. 683, 116 L.Ed.2d 687 (citation omitted).

[¶ 16] In Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 929 P.2d 379 (1996), a lumber company brought an action in state court to partition and quiet title to property located on an Indian reservation. The lumber company owned an undivided five-sixths interest in the surface estate and an undivided one-half interest in the mineral estate. The remaining interests were owned by ten individuals as tenants in common with the lumber company. All of the land was formerly tribal land which had been fee patented, removing all restrictions on alienation, in 1958.

[¶ 17] After the action was commenced, the ten individual owners deeded their interests to the Quinault Indian Nation, which then challenged the court’s jurisdiction on the basis of tribal sovereign immunity. Noting the United States Supreme Court’s conclusion in County of Yakima that the federal statutory provision on sale, encumbrance, and taxation of fee patented reservation land “does not purport to describe the entire range of a state’s in rem jurisdiction over such land,” Quinault, 929 P.2d at 385, the Supreme Court of Washington concluded the trial court could properly exercise in rem jurisdiction over the property:

It is not disputed that the trial court had proper jurisdiction over this action when it was filed. The subsequent sale of an interest in the property to an entity enjoying sovereign immunity (Quinault Nation) is of no consequence in this case because the trial court’s assertion of jurisdiction is not over the entity in personam, but over the property or the “res” in rem. Because the res or property is alienable and encumbera-ble under a federally issued fee patent, it should be subject to a state court in rem action which does nothing more than divide it among its legal owners according to their relative interests. Reacquisition of a portion of the land by a federally recognized Indian tribe does not alter this result because tribal reacquisition of fee land does not affect the land’s alienable status. This conclusion is consistent with County of Yakima.

Quinault, at 385 (footnote omitted).

[¶ 18] The court rejected the Quinault Nation’s contention that in personam jurisdiction was required, and that the action was therefore barred by tribal sovereign immunity:

The Nation also contends that, regardless whether the trial court had in rem jurisdiction over the property, the real issue in this case is whether the Nation waived its sovereign immunity. This argument ultimately leads to the proposition that in rem jurisdiction alone is not sufficient to extend the State’s authority to partition suits in-volvmg reservation fee patented land. Under that theory, this court would have to determine that the trial court acquired in personam jurisdiction over the Nation, as well as in rem jurisdiction over the property, to uphold its assertion of jurisdiction in this case. But the decision in County of Yakima, which based state jurisdiction to tax and foreclose on reservation fee land exclusively in rem, contradicts that contention.
Because our decision is based upon in rem jurisdiction, we need not further consider in personam jurisdiction, immunity and waiver.

Quinault, 929 P.2d at 386-87 (footnote omitted).

[¶ 19] Although the parties have not cited, and we have not found, any reported decision addressing tribal sovereign immunity in the context of a condemnation action, the Supreme Court of the United States has addressed the analogous question of whether a state’s sovereign immunity bars a condemnation action in the courts of another state. In State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796 (1924), the State of Georgia had purchased land in Chattanooga, Tennessee, for use as a railroad yard. The City sought to condemn part of the land as a right of way for a street. Georgia argued it was not subject to the jurisdiction of the courts of Tennessee because it enjoyed sovereign immunity. The Supreme Court concluded Georgia’s claim of sovereign immunity did not deprive the Tennessee court of authority to condemn the property:

The power of Tennessee, or of Chattanooga as its grantee, to take land for a street, is not impaired by the fact that a sister state owns the land for railroad purposes. Having acquired land in another state for the purpose of using it in a private capacity, Georgia can claim no sovereign immunity or privilege in respect of its expropriation.... Land acquired by one state in another state is held subject to the laws of the latter and to all the incidents of private ownership. The proprietary right of the owning state does not restrict or modify the power of eminent domain of the state wherein the land is situated.... The sovereignty of Georgia was not extended into Tennessee. Its enterprise in Tennessee is a private undertaking. It occupies the same position there as does a private corporation authorized to own and operate a railroad, and, as to that property, it cannot claim sovereign privilege or immunity. Undoubtedly Tennessee has power to open roads and streets across the railroad land owned by Georgia.
Having divested itself of its sovereign character, and having taken on the character of those engaged in the railroad business in Tennessee, its property there is as liable to condemnation as that of others, and it has, and is limited to, the same remedies as are other owners of like property in Tennessee. The power of the city to condemn does not depend upon the consent or suability of the owner.

State of Georgia, 264 U.S. at 479-82, 44 S.Ct. 369, 68 L.Ed. 796 (citations omitted; emphasis added); see also Paulus v. State of South Dakota, 58 N.D. 643, 650, 227 N.W. 52, 55 (1929) and Paulus v. State of South Dakota, 52 N.D. 84, 93, 201 N.W. 867, 870 (1924) (in tort action against State of South Dakota for injuries sustained in a coal mine located in North Dakota but owned by South Dakota, the Court suggests sovereign immunity would not bar an in rem action against property owned by another state within this state); People v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625, 629 (1957) (when one state has acquired land in another state, the land is held subject to the laws of the latter state and to all incidents of private ownership, and sovereign immunity does not bar an action concerning the property in state court).

C

[¶ 20] In light of the foregoing authorities, we conclude the district court could validly exercise jurisdiction over this condemnation action. The State, and the District acting on behalf of the State, has broad authority to acquire property located within its territorial jurisdiction to be used for public purposes. A condemnation action is purely in rem, and does not require acquisition of in personam jurisdiction over the owners of the land. In the words of the United States Supreme Court, the power to condemn “does not depend upon the consent or suability of the owner.” State of Georgia, 264 U.S. at 482, 44 S.Ct. 369, 68 L.Ed. 796.

[¶ 21] The land at issue in this case is essentially private land which has been purchased in fee by an Indian tribe. It is not located on a reservation, is not allotted land, is not part of the Tribe’s aboriginal land, is not trust land, and the federal government exercises no superintendence over the land. Under these circumstances, the State may exercise territorial jurisdiction over the land, including an in rem condemnation action, and the Tribe’s sovereign immunity is not implicated.

[¶ 22] In reaching this conclusion, we are mindful that this case presents competing claims of sovereignty. The Tribe contends that it enjoys sovereign immunity from suit in a state court. The District, exercising the State’s power of eminent domain, argues it has the inherent right to take property located within its territorial boundaries when necessary for the public good.

[¶ 23] The State’s power of eminent domain is one of the hallmarks of sovereignty. Eminent domain is an inherent attribute of sovereignty which does not require or depend upon a constitutional grant or recognition. Johnson v. Wells County Water Res. Bd., 410 N.W.2d 525, 527 (N.D.1987); Square Butte Elec. Coop, v. Hilken, 244 N.W.2d 519, 522 (N.D.1976). The Supreme Court of the United States has delineated the broad authority a state possesses to condemn property within its territorial boundaries:

The power of eminent domain is an attribute of sovereignty, and inheres in every independent state. The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state. It cannot be surrendered, and, if attempted to be contracted away, it may be resumed at will. It is superior to property rights, and extends to all property within the jurisdiction of the state....

State of Georgia, 264 U.S. at 480, 44 S.Ct. 369, 68 L.Ed. 796 (citations omitted).

[¶ 24] The decision of the district court, if affirmed, would have far-reaching effects on the eminent domain authority of states and all other political subdivisions. Indian tribes would effectively acquire veto power over any public works project attempted by any state or local government merely by purchasing a small tract of land within the project. The district court recognized the wide-ranging effects upon the State’s authority to condemn property:

Truly, the facts of this case present a conundrum. The record shows that the Tribe purchased the 1.43 acres from a non-Indian. The parcel in question has never been part of reservation land set aside for exclusive and absolute use by the Tribe and is located hundreds of miles outside the current exterior boundaries of the reservation. If tribal immunity bars the condemnation proceeding, the common sense result is that a non-Indian could convey real property to an Indian Tribe, not even located in the State of North Dakota, for purposes of stalling any street, water, sewage, road, or other public improvement project. Such a result infringes upon the sovereign immunity of the State of North Dakota to provide for the public safety, health and welfare of its people who benefit — including Indians — from such public improvements. The State’s projects will either be permanently stalled or the State will be forced to pay exorbitantly high prices to purchase the land through private sale.

[¶ 25] While the Tribe alleges that Indian tribes would not routinely attempt to block valid public projects, and although we do not question the sincerity of the Tribe’s motives in purchasing the 1.43 acres, we must consider this case in its current procedural posture and the potential ramifications of our resolution of this issue. The Tribe’s assertion of sovereign immunity is not based upon its alleged motives for acquiring the land or its future use of the land; it argues sovereign immunity applies solely because title is held by an Indian tribe. If the State is automatically stripped of its authority to acquire property for public use whenever a tribe purchases a small tract of land within the project, all public works projects will be subject to uncertainty.

Ill

[¶ 26] The Tribe argues that, even if the condemnation action is not barred by tribal sovereign immunity, condemnation of the property would violate the Federal Nonintercourse Act, 25 U.S.C. § 177.

The Nonintercourse Act provides, in pertinent part:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. § 177. At the time of its enactment in 1834, the Act was intended to protect Indian tribes by ensuring Indian lands were settled peacefully and Indians were treated fairly, and to protect them from the “greed of other races” and “artful scoundrels inclined to make a sharp bargain.” Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355, 1358 (9th Cir.1993) (quoting United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 70 L.Ed. 1023 (1926) and Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885, 888 (2d Cir.1958), vacated as moot by McMorran v. Tuscarora Nation of Indians, 362 U.S. 608, 80 S.Ct. 960, 4 L.Ed.2d 1009 (I960)). Congress did not distinguish between Indian trust lands and Indian fee lands when enacting the statute, “presumably because it did not contemplate that Indian tribes could hold land in fee simple.” Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538, 549 (1st Cir.1997).

[¶ 27] When Congress removes restraints on alienation on Indian land which was originally held in trust, state laws are fully applicable to subsequent claims. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 508, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986). As the Court further noted in Catawba, at 508 n. 19, 106 S.Ct. 2039, 90 L.Ed.2d 490 (quoting Larkin v. Paugh, 276 U.S. 431, 439, 48 S.Ct. 366, 72 L.Ed. 640 (1928)):

“With the issue of the patent, the title not only passed from the United States but the prior trust and the incidental restrictions against alienation were terminated. This put an end to the authority theretofore possessed by the Secretary of the Interior by reason of the trust and restriction — so that thereafter all questions pertaining to the title were subject to examination and determination by the courts, appropriately those in Nebraska, the land being there.”

The question presented in this case is whether the restraints of the Noninter-course Act automatically attach when an Indian tribe purchases from a private landowner property which had previously been patented in fee by the federal government and which had been freely alienable.

[¶ 28] In Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 115 n. 5, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998), the Supreme Court of the United States noted:

“This Court has never determined whether the Indian Nonintercourse Act, which was enacted in 1834, applies to land that has been rendered alienable by Congress and later reacquired by an Indian tribe.”

Although the Court found it unnecessary to address the issue in that case, other courts have concluded the protections of the Nonintercourse Act do not apply to land which has been rendered freely alienable by Congress, held by private parties, and subsequently acquired by an Indian tribe.

[¶ 29] For example, in Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir.1993), the court addressed whether land which was part of the tribe’s reservation, but which had been patented to individuals under a treaty and subsequently reacquired by the tribe, was subject to the protections of the Nonintercourse Act. The United States Court of Appeals for the Ninth Circuit held:

No court has held that Indian land approved for alienation by the federal government and then reacquired by a tribe again becomes inalienable. To the contrary, courts have said that once Congress removes restraints on alienation of land, the protections of the Non-intercourse Act no longer apply....
We hold that the parcels of land approved for alienation by the federal government and then reacquired by the Tribe did not then become inalienable by operation of the Nonintercourse Act.

Lummi, at 1359.

[¶ 30] Similarly, in Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 929 P.2d 379 (1996), the Supreme Court of Washington considered whether the Nonintercourse Act prohibited an action to partition and quiet title to property on a reservation which had been fee patented to individual owners and subsequently reacquired by the nation. The court concluded:

The Nonintercourse Act is not applicable to this case.... [0]nce the United States removes restraints on alienation of Indian land, as it did here under a fee patent, the protections of the Noninter-course Act no longer apply. Reacquisition of the land by the Nation does not change this result since “parcels of [Indian] land approved for alienation by the federal government and then reacquired by the Tribe [do] not then become inalienable by operation of the Noninter-course Act.”

Quinault, 929 P.2d at 387 (footnotes omitted) (quoting Lummi 5 F.3d at 1359). The court further held:

Although the Indian Nonintercourse Act preempts operation of any state law affecting the ownership of Indian trust land, the protections of the Act do not apply to lands made alienable and en-cumberable under a federally issued fee patent. Subsequent reacquisition of the land by an Indian tribe does not change this result because the land’s alienable status is not altered.

Quinault, at 388.

[¶ 31] The Court of Appeals of Michigan reached the same result in Bay Mills Indian Cmty. v. State, 244 Mich.App. 739, 626 N.W.2d 169 (2001), cert. denied, 122 S.Ct. 1303 (2002). In that case, land which had previously been held in trust for the tribe by the federal government was fee patented to a non-Indian, creating fee simple private ownership. Id. at 172. The land was subsequently deeded to the Governor of Michigan for the use and benefit of the tribe. When property taxes on the land became delinquent the county sued for nonpayment of taxes, and the land was sold at a tax sale to private individuals. The tribe subsequently sued for damages for loss of use of the land, claiming the transfer of Indian land by tax sale violated the Nonintercourse Act. The court disagreed:

As previously discussed, once the United States removed the restraint on alienation of the land by patenting it in fee simple to [a private party], the property was subject to taxation. Nothing in the Indian trade and intercourse act suggests that its protections precluded taxation or that it acted to revive the federal government’s interest in the property sufficiently to require its consent for transfer by tax sale. Furthermore, “courts have said that once Congress removes restraints on alienation of land, the protections of the Noninter-course Act no longer apply.” Lummi, supra at 1359. We therefore conclude that the Governor’s acquisition of the land in trust for plaintiffs predecessors did not trigger the protections of the act and that the state’s transfer of the property at tax sale did not violate the act.

Bay Mills, at 174 (citation omitted); see also Mashpee Tribe v. Watt, 542 F.Supp. 797, 803 (D.Mass.1982), aff'd, 707 F.2d 23 (1st Cir.1983) (the Nonintercourse Act does not restrict “the alienation of property acquired by Indians from non-Indians in settled sections of the country”); Mary Jane Sheppard, Taking Indian Land Into Trust, 44 S.D.L.Rev: 681, 682-83 (1999) (suggesting that, although tribes may own land without putting it into trust with the federal government, “doing so better preserves the tribe’s land base because interests in land held in trust may not be sold or otherwise alienated without an Act of Congress” under the Nonintercourse Act).

[¶ 32] We agree with the conclusion of these authorities that once the federal government removes restraints on alienation of land, the land does'not become inalienable under the Nonintercourse Act merely because it is acquired by an Indian tribe. The result is even clearer in this case, where the Tribe’s historical interest in the land is far more tenuous than in the above cases. In Lummi, Quinault, and Bay Mills, the land had previously been held in trust for the tribe. In- this case, the land had never been held in trust by the federal government for the Turtle Mountain Band, nor apparently for any other tribe. Rather, the land was acquired by the federal government in a series of treaties in the 1800s from the Sioux Indians. It was subsequently fee patented and held in private ownership for more than one' hundred years before the Tribe purchased it in fee from a private landowner in 2000. In Lummi and Quinault, each court concluded the land was not subject to the Nonin-tercourse Act even though it was located on the tribe’s reservation. The land in this ease was never part of the Tribe’s reservation.

[¶33] We conclude that the Noninter-course Act does not apply to land which the Tribe has purchased in fee, which is located hundreds of miles from its reservation, which had never been held in trust for the Tribe, and which had been privately owned for more than one hundred years. This 1.43 acre tract is simply private land which has been purchased by the Tribe. We conclude that the Nonintercourse Act does not apply to conveyance of this land and does not preclude the condemnation action.

IV

[¶ 34] The District contends the district court erred in dismissing Shea as a defendant in this action. The court concluded that Shea had conveyed his entire interest in the property to the Tribe and, because he no longer retained any interest in the land, dismissal was proper. The District contends that, because the February 6, 2001 quit claim deed was never recorded, Shea was a record owner at the time the condemnation action was commenced and he should remain named in the action to assure clear title if the land is condemned.

[¶ 35] Section 32-15-18(2), N.D.C.C., requires that the complaint in a condemnation action contain “[t]he names of all owners and claimants of the property, if known, ... who must be styled defendants.” Under that statute, all record title owners at the time of the commencement of the action should be named in the complaint as defendants. See Basin Elec. Power Coop. v. Miller, 310 N.W.2d 715, 717 (1981). At the hearing on the motion to dismiss in district court, Shea’s counsel conceded that “the plaintiff may have a right to proceed to obtain clear title, and thereby keep Mr. Shae’s [sic] name in this law suit, for example under the Basin Electric case.”

[¶ 36] Given the unique nature of a condemnation action, we believe it is preferable under these circumstances to retain Shea as a named party rather than dismiss him from the action. As we have previously indicated, a condemnation action is an in rem action against the property directly, and in personam jurisdiction over the owners of the property is not required. Property owners are named in the complaint and “styled defendants,” N.D.C.C. § 32-15-18(2), but the effect of a judgment in such a case is limited to the property and cannot impose personal liability upon the property owner, “since he is not before the court.” Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The purpose of naming property owners is to provide notice and an opportunity to be heard, and to enable the condemnor to acquire the property free from all claims. United States v. Winn, 83 F.Supp. 172, 174-75 (W.D.S.C.1949); In re Petition of Seattle, 56 Wash.2d 541, 353 P.2d 955, 958 (1960). In order to ensure that the condemnor receives clear title to the land, free from any future claims, we believe it is preferable that record title holders remain named in the condemnation action.

[¶ 37] We recognize that there may be little practical difference between retaining Shea in the action and dismissing him. Because he has received notice and an opportunity to be heard, and has disclaimed any interest in the property, any judgment would be binding upon him should he attempt in the future to assert an interest in the property. However, since this is a purely in rem proceeding, he cannot be subject to any personal liability. If he claims no interest in the property, he need not participate further in the action and the judgment will have no effect on his interests. Under these circumstances, it is preferable and consistent with our statutory scheme to include record title holders in a condemnation action as defendants even if they disclaim any interest in the property. Including all record title holders in the final condemnation judgment provides further assurance that the condemnor will receive clear title to the property free from future disputes.

[¶ 38] We conclude the district court erred in dismissing Shea as a defendant in this action.

V

[¶ 39] We have considered the remaining issues and arguments raised by the Tribe and Shea and find them to be either without merit or unnecessary to our decision. We do not answer questions that are unnecessary to the determination of an appeal. E.g., BTA Oil Producers v. MDU Resources Group, Inc., 642 N.W.2d 873, 2002 ND 55, ¶ 76.

[¶ 40] We reverse the judgment dismissing the condemnation action and remand for further proceedings in accordance with this opinion.

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

      . Although the district court found it unnecessary to address this issue, an appellee may attempt to save a favorable judgment by urg-mg any ground asserted in the trial court. E.g., Tangen v. North Dakota Workers Comp. Bur., 2000 ND 135, ¶ 8 n. 1, 613 N.W.2d 490.

      . The Tribe contends the District is not authorized to condemn a cemetery and should not be allowed to condemn tribal burial grounds. Because there are factual disputes remaining on this issue, we find it unnecessary to address the issue on appeal from the judgment dismissing on the basis of tribal sovereign immunity.


author: MARING, Justice. NEUMANN, Justice,

text:
    2002 ND 78
    In the Interest of J.R. and L.R., minor children. Eva Rohr, Petitioner and Appellee, v. J.R., a child, L.R., a child, Respondents, J.R., their father, Respondent and Appellee, and B.K.B., their mother, Respondent and Appellant.
    No. 20010264.
    Supreme Court of North Dakota.
    May 14, 2002.

      Loren C. McCray, Hebron, N.D., for respondent and appellant.
    Dann E. Greenwood, Greenwood & Ramsey, PLLP, Dickinson, N.D., for respondent and appellee.
    Owen K. Mehrer (submitted on brief), Assistant State’s Attorney, Courthouse, Dickinson, N.D., for petitioner and appel-lee.
   MARING, Justice.

[¶ 1] B.K.B. appeals from a juvenile court order that granted Stark County Social Services custody and control of her minor children, J.R. and L.R., for a period of 12 months. We affirm.

I

[¶ 2] J.R. (“John,” a pseudonym) is a resident of North Dakota, and B.K.B. (“Barbara,” a pseudonym) is a resident of Mississippi. John and Barbara never married, but they lived together for about 15 years in North Dakota. In that time, they had three children together, L.R. (“Linda,” a pseudonym), J.R. (“James,” a pseudonym), and L.R. (“Laura,” a pseudonym). Linda is 18 years old, having been born on February 5, 1984. James is 13 years old, having been born on October 2, 1988. Laura is 11 years old, having been born on November 30, 1990. John and Barbara eventually ended their relationship, and Barbara obtained custody of the three children. In December of 1999, Barbara moved from North Dakota to Mississippi with James and Laura. Linda remained in North Dakota with John.

[¶ 3] On June 1, 2001, James and Laura returned to North Dakota for summer visitation with John. On July 23, 2001, while James and Laura were in North Dakota visiting John, John reported to Stark County Social Services that he suspected James and Laura were being abused or neglected while they were living in Mississippi with Barbara. After investigating the report, Stark County Social Services requested an order for temporary shelter care. A juvenile court referee granted the order on July 27, 2001. The order granting temporary shelter care stated that the children had indicated to John and Stark County Social Services that they did not want to return to Mississippi with Barbara because they were afraid of her and because they had found marijuana, cocaine, and drug paraphernalia in their mother’s home. Additionally, the order stated that James indicated he would physically injure himself if he were forced to return to Mississippi.

[¶ 4] On July 31, 2001, a hearing was held on the temporary shelter care order. Subsequent to the hearing, the juvenile court found probable cause to believe that James and Laura were deprived children. As a result, the juvenile court granted legal custody of the children to Stark County Social Services for a period of 30 days, during which time the children were to receive full psychological evaluations at Badlands Human Service Center.

[¶5] On August 20, 2001, a juvenile petition was filed which alleged James and Laura were deprived children and requested the juvenile court to make a determination concerning the care, custody, and control of the children. On September 5, 2001, John filed a return to the juvenile petition in which he concurred with the allegations made in it. On September 20, 2001, Barbara filed a response to the juvenile petition in which she requested that the petition be dismissed.

[¶6] Subsequent to a hearing on the petition, the juvenile court found James and Laura were in need of treatment as deprived children and Barbara was unable to provide the care or control necessary for the children’s mental and emotional health. The juvenile court ordered the care, custody, and control of James and Larnra be granted to Stark County Social Services for a period of 12 months. Barbara filed an appeal from the order on October 18, 2001.

II

[¶ 7] When an appeal is taken from a juvenile court order, this Court reviews the “files, records, and minutes or transcript of the evidence of the juvenile court.” See N.D.C.C. § 27-20-56(1). Although this standard of review is similar to a trial de novo, N.D.C.C. § 27-20-56(1) requires us to give “appreciable weight to the findings of the juvenile court.” Furthermore, we have recognized that the juvenile court is in a better position than this Court to observe the candor and demeanor of the witnesses. See In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412.

[¶8] On appeal, Barbara argues the trial court erred in granting custody of James and Laura to Stark County Social Services because there was not clear and convincing evidence showing that the children were deprived.

[¶ 9] Section 27-20-02(8), N.D.C.C., provides in part:

“Deprived child” means a child who:
a. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian....

See N.D.C.C. § 27-20-02(8)(a). As used in N.D.C.C. § 27-20-02(8)(a), the phrase “proper parental care” means the “minimum standards of care which the community will tolerate.” See In Interest of K.R.A.G., 420 N.W.2d 325, 327 (N.D.1988). A finding of deprivation under N.D.C.C. § 27-20-02(8) must be supported by clear and convincing evidence. See N.D.C.C. § 27-20-29(3); see also Eastburn v. B.E., 545 N.W.2d 767, 770 (N.D.1996). If a child is found to be deprived, the juvenile court may temporarily transfer legal custody of the child to the agency or person best suited for the protection and welfare of the child. See N.D.C.C. § 27-20-30; see also In the Interest of C.M., 532 N.W.2d 381, 383 (N.D.1995).

[¶ 10] At the hearing on the juvenile petition, the children’s guardian ad litem testified the children told her they had found drugs and drug paraphernalia in Barbara’s home. She testified the children said they had been left home by themselves all night on different occasions. She also testified James indicated he would commit suicide if he were forced to return to Mississippi.

[¶ 11] The psychologist who evaluated the children on behalf of Stark County Social Services testified Laura told her she was afraid of Barbara when she drank and she was seared of her brother being hit by Barbara or Barbara’s boyfriend. She also testified James told her he would kill himself if he were forced to return to Mississippi and “he was afraid to go live with his mom and her boyfriend because he was hit, because they use drugs and alcohol.” Based on her evaluations of the children, the psychologist concluded that James suffers from a major depressive disorder and that Laura suffers from an anxiety disorder. She testified the children were in need of treatment and needed to be in an environment where they felt safe. She testified the children indicated they did not feel safe in Barbara’s home.

[¶ 12] The social worker assigned to the case by Stark County Social Services testified the children told her they had found drugs and drug paraphernalia in Barbara’s home. She testified James told her he had begun to vomit after witnessing Barbara and her boyfriend having sex. She testified James told her he tried to call John after witnessing this, but Barbara grabbed him and threw him into the bedroom, causing him to hit his head on the bars on the bed. She testified Linda told her that while she was living with Barbara, Barbara’s boyfriend came home drunk one night and crawled into bed with her and began touching her. She testified Linda reported the incident to Barbara, yet Barbara did nothing about it. The social worker also testified Laura told her that Barbara’s boyfriend exposed himself to her on one occasion.

[¶ 13] Barbara testified the allegations the children made to Stark County Social Services were exaggerated, and she denied using drugs or having a drinking problem. She testified the children were doing well in school in Mississippi and were well cared for. She testified she called the police three- to four times in one year due to domestic disputes with her boyfriend. She testified she kicked her boyfriend out of her house and that he is no longer part of her life. However, she admitted she has kicked him out of her house before and allowed him to come back again. Furthermore, she also admitted she allowed him to ride with her when she drove from Mississippi to North Dakota for the shelter care hearing in July.

[¶ 14] In previous cases, we have affirmed juvenile courts’ findings of deprivation under circumstances similar to those presented in this case. In Eastbum, this Court concluded there was clear and convincing evidence of deprivation where the evidence showed the children suffered from psychological and emotional problems due to their mother’s failure to provide them with a stable home environment and it also showed the mother would not be able to provide the children with the environment they would need to recover from their problems. See 545 N.W.2d at 771. In In re D.F.G., 1999 ND 216, ¶ 14, 602 N.W.2d 697, we concluded a child was deprived where the mother failed to provide the child with “adequate stability and care” due to her alcohol and drug use, mental illness, involvement with an abusive boyfriend, frequent moves, and her repeated decisions to place the child in the custody of social services. See id. at ¶¶ 14-17. We also noted that the evidence showed the child suffered from psychological problems which were “exacerbated by [the mother’s] inability to provide stability.” See id. at ¶ 18. In In re T.K., 2001 ND 127, ¶ 13, 630 N.W.2d 38, we concluded a mother and father failed to “meet minimum standards for providing a safe and loving environment” for their children where the evidence showed the father blew marijuana smoke in the face of one child and gave the child alcohol and the mother handled the child roughly and threatened to harm the child. See id. at ¶ 13. Additionally, the evidence showed the parents provided the children with a “violent, chaotic home situation” which caused developmental delay in one of the children. See id.

[¶ 15] The evidence presented in this case showed Barbara has failed to provide the children with a safe and stable environment due to her drug and alcohol use and her on and off again relationship with a man who allegedly molested Linda and exposed himself to Laura. According to the evidence, James and Laura have developed psychological and emotional problems. Evidence presented at the hearing showed the children do not feel safe with Barbara and that Barbara has not been able to provide them with the stable environment they need to recover from their problems. Although Barbara presented evidence to the contrary, this does nothing more than raise a credibility issue which the juvenile court, having the opportunity to observe the candor and demeanor of the witnesses, is in a better position than this Court to resolve. See In re D.R., 2001 ND 183, ¶2, 636 N.W.2d 412. Furthermore, Barbara admitted that the children are generally honest and every witness who interviewed the children on behalf of Stark County Social Services testified the children's statements were reliable.

Ill

[¶ 16] When appreciable weight is given to the juvenile court’s findings and the record is reviewed as a whole, we conclude the evidence clearly and convincingly establishes that James and Laura are deprived children, and no evidence was presented which indicated their deprivation was due primarily to Barbara’s lack of financial means. See N.D.C.C. § 27-20-02(8)(a) (defining a deprived child as one who is without the “care or control necessary for the child’s physical, mental, or emotional health, or morals” and whose deprivation is not due primarily to the lack of financial means of the child’s parent or guardian). We, therefore, affirm the order of the juvenile court.

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

NEUMANN, Justice,

concurring.

[¶ 18] I concur in the majority’s opinion, but only because the children have extensive and recent contact with the State of North Dakota. As the majority points out, both these children lived their entire fives in North Dakota prior to December 1999, and in the summer of 2001 were legitimately in North Dakota again, visiting their father, who continues to reside in this state. Their mother’s custody of these children was the result of a North Dakota court order, as -the mother acknowledged in her brief to this Court.

[¶ 19] Sections 27-20-39 and 27-20-40 of our Uniform Juvenile Court Act permit the transfer of nonresident children to a court of another state for disposition. Section 27-20-39 provides that if the juvenile court finds a child is deprived and is the resident of another state with statutory provisions substantially similar to our sections 27-20-39 and 27-20-40 “the court may defer hearing on ... disposition and request by any appropriate means the juvenile court of the county of the child’s residence ... to accept jurisdiction of the child.” The two children in this case were no longer North Dakota residents. Clearly, if Mississippi has statutes similar to our own and if a Mississippi court had been willing to accept jurisdiction of these children, a transfer under 27-20-39 would have been appropriate. In fight of the policies expressed in the Uniform Child Custody Jurisdiction and Enforcement Act, N.D.C.C. ch. 14-14.1, and in the Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A, policies fostering and sometimes requiring deference to the courts of other states that have a legitimate interest in the custody and well-being of their children, such a transfer might have been not only appropriate but desirable.

[¶ 20] I am convinced, under any of the possibly applicable laws, our juvenile court had jurisdiction to entertain this case, at least on an emergency basis. I don’t believe this is a question of jurisdiction, but rather one of judicial humility. There are instances when good judgment and comity require that we limit our exercise of authority, even though we may have jurisdiction to act. Dealing with children who now reside in a sister state is certainly one of those instances. Unfortunately, nothing in this record indicates the possibility of action under section 27-20-39 was ever suggested to or considered by our juvenile court, and the possibility of such action was not raised to us in this appeal. I therefore concur.