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

text:
    2001 ND 6
    Lisa M. REISER, Plaintiff and Appellee, v. Jeffrey J. REISER, Defendant and Appellant.
    No. 20000194.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Brenda A. Neubauer, Neubauer & Oster, Bismarck, ND, for plaintiff and appel-lee.
    Maury C. Thompson, Christensen & Thompson, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Jeffrey J. Reiser appealed from a divorce decree, claiming the trial court’s property division is clearly erroneous and the court erred in awarding Lisa M. Reiser attorney fees. We affirm the trial court’s division of the marital property, but we reverse the award of attorney fees.

I

[¶ 2] Jeffrey and Lisa Reiser were married in October 1995. They have no children of their marriage, but they resided together during the marriage on a farm near Turtle Lake with one of Lisa’s daughters born to her of a prior marriage. Problems soon developed in the marriage, and the parties have lived separately at various times since November 1997, when Lisa moved from the farm to Bismarck. Lisa filed for divorce, and, after a bench trial, the court awarded the parties a divorce on the grounds of irreconcilable differences and divided the marital property.

II

[¶ 3] Jeffrey asserts the trial court’s division of the marital property is clearly erroneous. He contends the trial court did not appropriately consider all relevant factors and placed too much weight on Jeffrey’s fault in causing the breakdown of the marriage.

[¶ 4] Upon granting a divorce, the trial court is required under N.D.C.C. § 14-05-24 to make such equitable distribution of the real and personal property of the parties as may seem just and proper. The trial court’s distribution of the marital property is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Wetzel v. Wetzel, 1999 ND 29, ¶ 16, 589 N.W.2d 889. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 5] In distributing the marital property, the trial court must use the guidelines established in Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107, 111 (1952) and Fischer v. Fischer, 139 N.W.2d 845, 852 (N.D. 1966), wherein:

[T]he court, in exercising its sound discretion, will consider the respective ages of the parties to the marriage; their earning ability; the duration of and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property owned at the time, its value at that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage; and from all such elements the court should determine the rights of the parties and all other matters pertaining to the case.

[¶ 6] Jeffrey is 45 years old and in good health. He completed an electrician program at a trade school and is employed at the Falkirk Mine, where he earns an income of about $50,000 per year. Lisa is 33 years old and in good health. She has a two-year medical secretary degree and has also completed some legal secretary courses. She is employed as a medical transeriptionist at St. Alexius Medical Center and earns slightly more than $60,000 per year.

[¶ 7] Jeffrey and Lisa executed a premarital agreement on the day they married. This agreement listed specific property which was brought into the marriage by each party and was to remain the property of that party in the event of a subsequent divorce between them. The trial court concluded it was a voluntary and valid agreement under the provisions of N.D.C.C. ch. 14-03.1. The trial court applied the premarital agreement and awarded to each party the property granted to that party under the agreement. In accordance with the premarital agreement, Jeffrey retained the farmstead and farmland valued at about $120,250, the premarital value of his retirement account of $86,250, and farm equipment arid other property totaling $23,000. Lisa retained under the agreement a car, some household items, and her employee retirement plan. The trial court also divided the marital estate, awarding property to Lisa valued at $139,226.99 and awarding property to Jeffrey valued at $141,278.25.

[¶ 8] In dividing the property the trial court made the following relevant findings of fact, which are supported by the record evidence:

Here, Lisa is 33 years old. Jeffrey is 45 years old. Both are in good health. Both have good jobs that should continue. Lisa makes more money than Jeffrey. The marriage was of relatively short duration, with the parties being married in October 1995 and separating for good in August 1999. Lisa brought little property into the marriage, as evidenced by the premarital agreement. She had little debt as she had gone through bankruptcy in 1992. Jeffrey had considerable property at the time of the marriage. However, most was kept out of the marital estate by the premarital agreement. Jeffrey had considerable debt resulting from his two previous divorces. The manufactured home is the parties’ main asset, and it was bought during the marriage. Each contributed to the purchase of the home. During the marriage, Jeffrey gave Lisa $500 to $550 per month. She paid all the parties’ bills with this and money she earned. During the marriage Jeffrey borrowed more than $28,000 from his retirement account and took out a $10,000 agriculture loan. $12,000 of the $28,000 went to pay off one of Jeffrey’s divorce judgments. The remaining money went to other bills Jeffrey owed. During the marriage, Jeffrey was able to replenish his retirement account because Lisa paid most of the bills with her earnings, less the $500 or $550 contributed by Jeffrey each month....
Jeffrey abused Lisa mentally and physically throughout their relationship, including during the marriage....
The most significant factors governing property distribution here are the length of the marriage, the property each brought into and contributed to the marriage, the parties’ present earning ability, and Jeffrey’s conduct during the marriage.

[¶ 9] Jeffrey asserts he should have been awarded his entire retirement account, because a significant part of the marital estate is the increased value of that account, and it increased in value during the marriage primarily from Jeffrey’s efforts of making deposits and of wisely investing the money. He also contends the trial court placed too much emphasis on fault as a factor in dividing the marital property and did not give sufficient consideration to the short duration of the marriage. Lisa contends the trial court’s division, which was a nearly equal division of the marital estate, was equitable and is not clearly erroneous.

[¶ 10] In divorce cases involving division of property, the courts generally start with the view that marital property should be equally divided, and although the division need not be exactly equal to be equitable, the trial court must explain any substantial disparity. Schoenwald v. Schoenwald, 1999 ND 93, ¶ 23, 593 N.W.2d 350. The trial court’s division of the marital property in this case is a nearly equal division. We do not agree the trial court improperly weighed the relevant factors.

[¶ 11] The trial court enforced the premarital agreement which set aside for each party the value of the property owned by that party on the date of the marriage. That agreement specifically reserved for Jeffrey his savings retirement plan “as of 10-05-95.” The trial court, correctly applying this agreement, awarded Jeffrey the value of the retirement account on that date but included the increase in its value during the marriage as part of the marital estate to be divided between the parties. Although Jeffrey contends the increased value of the account was largely through his efforts, the trial court recognized Lisa paid most of the living expenses of the family unit, thereby allowing Jeffrey to retire debt and to increase deposits to the retirement account. When a spouse’s contributions to the family allow the other spouse to accumulate and preserve assets, those contributions deserve equivalent recognition in a property distribution upon a dissolution of the marriage. See Peterson v. Peterson, 1999 ND 191, ¶ 9, 600 N.W.2d 851.

[¶ 12] Jeffrey also contends the trial court placed too much emphasis on Jeffrey’s fault in causing the marriage to deteriorate. The record evidence of Jeffrey’s abuse toward Lisa is substantial and supports the trial court’s finding that “Jeffrey’s conduct during the marriage” is among “[t]he most significant factors” governing property distribution in this case. This Court has long recognized that non-economic fault, as well as economic fault, is a proper factor for the court to consider in dividing marital property. Pfliger v. Pfliger, 461 N.W.2d 432, 436 (N.D.1990). We are not persuaded the trial court gave undue consideration to this factor.

[¶ 13] There are no set rules for distribution of marital property, because what is equitable depends upon the circumstances in a particular case. Linn v. Linn, 370 N.W.2d 536, 541 (N.D.1985). Having reviewed this record, we are convinced the trial court conscientiously applied the Ruff-Fischer guidelines and gave appropriate consideration to the relevant factors in dividing the marital property. On the entire record evidence, we are not left with a definite and firm conviction a mistake has been made, and we therefore conclude the trial court’s division of the marital property is not clearly erroneous.

Ill

[¶ 14] The trial court awarded Lisa attorney fees in the amount of $7,544.70. Jeffrey asserts Lisa should be required to pay her own attorney fees, because Lisa has a greater income than Jeffrey. Lisa contends the award of attorney fees is appropriate, because Jeffrey’s conduct and failure to cooperate increased the degree of litigation required in this case, resulting in Lisa incurring higher attorney fees.

[¶ 15] The district court has discretion under N.D.C.C. § 14-05-23, to award attorney fees in divorce proceedings. Brown v. Brown, 1999 ND 199, ¶ 36, 600 N.W.2d 869. An award of attorney fees is within the sound discretion of the trial court and will not be set aside on appeal absent an abuse of discretion. Weigel v. Weigel, 2000 ND 16, ¶ 16, 604 N.W.2d 462. In deciding whether to award attorney fees in a divorce action, the trial court must balance one parties’ needs against the other parties’ ability to pay. Id. The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case. Myers v. Myers, 1999 ND 194, ¶ 13, 601 N.W.2d 264. An award of attorney fees requires specific findings supported by evidence of the parties’ financial conditions and needs. Whitmire v. Whitmire, 1999 ND 56, ¶ 14, 591 N.W.2d 126.

[¶ 16] In awarding attorney fees to Lisa the trial court made only the following cursory finding:

Jeffrey -will pay Lisa’s attorney’s fees due to the fact that his behavior was the most significant factor that caused the divorce.

Fault is a consideration in awarding attorney fees only to the extent that one party has unreasonably escalated the fees. Foreng v. Foreng, 509 N.W.2d 38, 41 (N.D.1993). This Court has not applied general fault in the marriage as a relevant factor in the decision whether to award attorney fees. Lisa has not presented a persuasive reason to do so in this case. Although Lisa asserts Jeffrey’s conduct unreasonably escalated her attorney fees, the trial court made no such finding.

[¶ 17] Lisa’s current income is greater than Jeffrey’s income. The trial court found Lisa earns slightly more than $60,000 per year as a medical transcrip-tionist while Jeffrey earns about $50,000 per year as a mining employee. The parties were awarded approximately equal shares of the marital estate, and Lisa’s award included a $30,000 cash payment to her from Jeffrey, to be made in six $5,000 annual installments. There is no finding by the trial court that Lisa has a need for the attorney fees award, and the record evidence would not support such a finding. Under these circumstances, we conclude the trial court abused its discretion in awarding attorney fees to Lisa.

[¶ 18] The judgment of the district court, including the division of the marital estate, is affirmed, except for the award of attorney fees to Lisa, which we reverse.

[¶ 19] DALE V. SANDSTROM, CAROL RONNING KAPSNER, WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 20] I concur with parts I and II of the majority opinion. Moreover, I concur with Part III of the majority opinion to the extent it concludes the trial court applied an erroneous view of the law in determining the award of attorney fees. I must respectfully dissent, however, because I would remand the issue of attorney fees to the trial court for a correct application of the law.

[¶ 21] A trial court’s decision regarding an award of attorney fees will not be disturbed unless it is established the court abused its discretion. Weigel v. Weigel, 2000 ND 16, ¶ 16, 604 N.W.2d 462. A trial court abuses its discretion when it misinterprets or misapplies the law. Heller v. Heller, 367 N.W.2d 179, 184 (N.D.1985). The principle considerations in determining whether to award attorney fees in a divorce action are one spouse’s ability to pay and the other spouse’s needs. Kjonaas v. Kjonaas, 1999 ND 50, ¶ 17, 590 N.W.2d 440. The trial court may further consider whether one party’s conduct has unreasonably increased the time spent on the case. Id.

[¶ 22] The trial court’s explanation for its decision to award attorney fees rests exclusively on Jeffrey’s behavior during the divorce. As the majority indicated, general fault during the marriage is not a relevant consideration in the decision to award attorney fees. Because the trial court based its decision on an improper criterion, I would remand for it to apply the correct criterion.

[¶ 23] Lisa never argued she had a need for the attorney fees award. She, however, did argue there was evidence Jeffrey unreasonably escalated the cost of the litigation. During trial, Lisa testified Jeffrey failed to cooperate in preparing the N.D.R.Ct. 8.3 property and debt statement. Specifically, Lisa stated Jeffrey did not include certain property in the Rule 8.3 statement. Jeffrey’s failure to cooperate in preparing the Rule 8.3 statement caused Lisa to introduce evidence at trial detailing that property he excluded from the statement. Lisa also obtained an Interim Order prohibiting Jeffrey from contacting her, and he violated the Order on at least two occasions. In light of such evidence, the trial court should be provided the opportunity to address the issue regarding an award of attorney fees to the extent Jeffrey’s actions may have unreasonably increased the time and effort spent on the litigation. Kautzman v. Kautzman, 1998 ND 192, ¶ 36, 585 N.W.2d 561.

[¶24] I would, therefore, remand and direct the trial court to apply the correct law in its determination of the award of attorney fees.

[¶ 25] Mary Muehlen Maring


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2001 ND 8
    Nicholas David DOYLE, a minor, by his parent and guardian, Karen DOYLE, Petitioner and Appellee, v. David A. SPRYNCZYNATYK, Director, North Dakota Department of Transportation, Respondent and Appellant.
    No. 20000244.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Douglas L. Broden (on brief), Broden, Broden & Walker, Devils Lake, ND, for petitioner and appellee.
    Andrew Moraghan, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for respondent and appellant.

       See Substitution of Successor to Public Office, N.D.R.App.P. 43.

   KAPSNER, Justice.

[¶ 1] The North Dakota Department of Transportation (“DOT”) appeals from the district court judgment which reversed the DOT’s decision and reinstated the driving privileges of Nicholas David Doyle. We reverse the district court’s judgment.

I

[¶ 2] On December 5, 1999, Nicholas Doyle was cited for driving 82 mph in a 65-mph zone. On December 18, 1999, at the suggestion of his attorney, Doyle completed a defensive driving course to reduce points he anticipated would be added to his driving record as a result of this violation. The speeding charge later was amended to allege Doyle had driven 80 mph. On January 4, 2000, Doyle was convicted of the charge in district court.

[¶ 3] On January 5, 2000, the DOT received both Doyle’s certification of completion of the defensive driving course and notice of Doyle’s conviction from the district court. As no violations were recorded on Doyle’s driving record at that date, the DOT did not enter a points reduction for Doyle’s completion of the driving course. On January 11, 2000, the DOT recorded the conviction and assessed four points on Doyle’s driving record.

[¶ 4] On March 6, 2000, Doyle was convicted of an additional speeding violation, driving 74 mph in a 55-mph zone. On March 14, 2000, the DOT recorded the conviction and assessed three points on Doyle’s driving record. After the DOT notified Doyle his driver’s license would be canceled due to an accumulation of seven points on his record, Doyle requested a hearing. The hearing officer recommended not canceling Doyle’s driving privileges, reasoning the intent of the point reduction statute is not violated by holding the points accumulated before they were actually entered into Doyle’s driving record. The hearing officer stated the purpose of the statutory' language requiring points to be accumulated prior to taking the driving course is to “assure one could not take a course to reduce points below zero in anticipation of committing a violation.”

[¶ 5] The DOT rejected the hearing officer’s recommendations and canceled Doyle’s driver’s license. The DOT refused the point reduction since Doyle had completed the driving course before his conviction, when he had not yet accumulated points.

[¶ 6] On appeal, the district court reversed the DOT’s decision and reinstated Doyle’s driving privileges. The district court reasoned the DOT’s assertion that Doyle did not accumulate points prior to taking the defensive driving course “elevates form over substance.” The court indicated Doyle took his attorney’s advice and completed a driving course to reduce points Doyle anticipated would be added to his driving record for this speeding citation. The court concluded the DOT’s refusal to reduce Doyle’s point accumulation was not consistent with the public policy of encouraging safe driving, which is promoted by the point reduction statute. The DOT appeals.

II

[¶ 7] In Kouba v. State, Dep’t of Transp., 1999 ND 233, ¶4, 603 N.W.2d 696, we summarized the standard of review for appeals from district court decisions on license suspension:

We do not review the decision of the district court, but instead review the record compiled and the decision rendered by the agency. We affirm the agency’s decision unless: 1) a preponderance of the evidence does not support the agency’s findings; 2) the agency’s findings of fact do not support its conclusions of law and its decision; 3) the agency’s decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency’s rules or procedures have not afforded the appellant a fair hearing; or 6) the agency’s decision is not in accordance with the law.

(Citations omitted.)

A

[¶ 8] Under existing statutory requirements, the DOT must cancel permits or driver’s licenses of minors who have accumulated point totals on their driving record in excess of five points. N.D.C.C. § 39-06-01.1(1). However, point totals are reduced for completion of a defensive driving course, as mandated under N.D.C.C. § 39-06.1-13(2):

The point total shown on a licensee’s driving record must, during any twelvemonth period, be reduced by three points when the licensee mails or delivers a certificate to the licensing authority indicating successful completion of instruction in a driver training course approved by the licensing authority.... The reduction in points authorized by this subsection must only be from a point total accumulated prior to completion of the necessary hours of driver training instruction....

[¶ 9] The DOT urges us to reverse the district court judgment and reinstate the DOT’s cancellation of Doyle’s driver’s license because the statutory language plainly authorizes reduction of points only from a point total accumulated prior to completing a driving course. The DOT contends points did not accumulate on Doyle’s driving record retroactive to the date Doyle was charged with a traffic violation. Rather, the DOT argues the statutory term “accumulated” is ambiguous and susceptible to two different rational meanings that points accumulate either on the date of conviction or the date the points are entered on the driving record. The DOT claims it has adopted a “more liberal” interpretation of the statute in a driver’s favor by considering points to have accumulated at the time of conviction, rather than insisting they have not accumulated until the time the DOT performs the ministerial act of entering points on the driving record.

[¶ 10] A statute is ambiguous when it is susceptible to differing, but rational, meanings. Buchholz v. City of Oriska, 2000 ND 115, 112, 611 N.W.2d 886. The interpretation of a statute is a fully reviewable question of law. Mead v. North Dakota Dep’t of Transp., 1998 ND App 2, ¶10, 581 N.W.2d 145. Statutes must be harmonized to give meaning to related provisions and must be construed in their plain, ordinary, and commonly understood meaning. Id. We interpret statutes in context to give meaning and effect to every word, phrase, and sentence in a statute. Treiber v. Citizens State Bank, 1999 ND 180, ¶ 17, 598 N.W.2d 96; see also N.D.C.C. § 1-02-03 (providing words and phrases of a statute must be construed according to the context). We defer to the interpretation of a statute by the agency administering the law unless that interpretation contradicts clear statutory language. Saari v. North Dakota Workers Comp. Bureau, 1999 ND 144, ¶20, 598 N.W.2d 174.

[¶ 11] We conclude N.D.C.C. § 39-06.1-13(2) is unambiguous. The plain language of the statute authorizes a reduction of points only from a point total accumulated prior to completion of the necessary hours of driver training instruction. That is, the defensive driving course may not be used to reduce points on a driver’s record until those points have accumulated. Interpreted in context, the first sentence of § 39-06.1-13(2) provides: “The point total shown on a licensee’s driving record must ... be reduced by three points when the licensee ... indicates] successful completion of instruction in a driver training course.... ” However, points are not shown on a driving record until the DOT receives a report of conviction for a traffic violation and enters the points on the driving record.

[¶ 12] A related statute, N.D.C.C. § 39-06.1-10(1) provides:

When a report of a conviction of a traffic offense, or admission or adjudication of a traffic violation is received by the licensing authority, the licensing authority shall proceed to enter the proper number of points on the licensee’s driving record.... When the driving record shows that the licensee has an accumulated point total of twelve or more points, ... the authority shall notify the licensee of its intention to suspend the operator’s license....

(Emphasis added.) This related statute is further contextual evidence that points accumulate when entered on the driving record. Thus, the DOT’s contention that § 39-06.1-13(2) is susceptible to two different rational meanings, either that points accumulate on conviction or on entry into the driving record, contravenes the unambiguous language of the statute taken in context which plainly states points accumulate only when the DOT enters the points on the licensee’s driving record. See Saari, 1999 ND 144, ¶ 20, 598 N.W.2d 174 (deferring to an administrative agency’s interpretation of a statute if not contradictory to clear statutory language). We conclude the DOT’s interpretation that points accumulate on the date a driver is convicted of the traffic violation contradicts express statutory language that points accumulate on the date of entry on the driving record. See Lembke v. Unke, 171 N.W.2d 837, 854 (N.D.1969) (Knudson, J., dissenting) (quoting 50 Am.Jur. Statutes § 229 (1944)) (“The general rule is that nothing may be read into a statute which is not within the manifest intention of the legislature as gathered from the act itself, and that a statute should not be construed any more broadly or given any greater effect than its terms require.”).

B

[¶ 13] The DOT contends the district court does not have the prerogative to decide whether the perceived public policy of a statute warrants application of the statute beyond the reach of its plain language providing for a reduction of points accumulated only prior to completing a driving course. We agree.

[¶ 14] We have said many times if changes are to be made in the statute, we leave that matter to the legislature, as “it is for the legislature to determine policy, not for the courts.” Treiber v. Citizens State Bank, 1999 ND 130, ¶16, 598 N.W.2d 96 (quoting Lembke v. Unke, 171 N.W.2d 837, 853 (N.D.1969) (Knudson, J., dissenting)). Courts are not free to disregard the letter of a statute under the pretext of pursuing its spirit. Trinity Med. Ctr., Inc. v. Holum, 544 N.W.2d 148, 154 (N.D.1996); see also N.D.C.C. § 1-02-05 (providing that “[w]hen the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”). The legislature has sifted through the competing policy concerns and adopted a statute, and our function is not to reevaluate those policy arguments, but to ascertain the legislature’s intent from the language of the statute. Trinity, 544 N.W.2d at 154. If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. In re Estate of Thompson, 1998 ND 226, ¶ 7, 586 N.W.2d 847.

[¶ 15] The district court authorized a points reduction for Doyle’s completion of a driving course before points were actually entered on his driving record, based on the public policy of encouraging safe driving which underlies the point reduction statute. The district court stated the DOT “elevates form over substance” by refusing to reduce Doyle’s points when he completed a defensive driving course after being charged with a traffic citation, but before his conviction. Doyle also contends points must accumulate as of the date he was charged with a traffic violation because otherwise a driver has no notice that points have been entered on the driving record except by making repeated phone calls to the DOT. Doyle argues drivers may be faced with having to take a later scheduled driving course at a location some distance away, since the courses are only offered at certain limited times in the state. According to Doyle, this difficulty and inconvenience in getting points reduced contravenes the legislative intent of encouraging improved driving skills and safety by reducing points for completing a defensive driving course.

[¶ 16] Both the district court and Doyle make good arguments; however, the function of the courts is to interpret law, not to make law. See Fetzer v. Minot Park Dist., 138 N.W.2d 601, 604 (N.D.1965) (holding we cannot legislate, regardless of how much we might desire to do so or how worthy an argument; if the rule is wrong, the legislature has ample power to change it, but duty of the judiciary is to enforce the law as it exists).

[¶ 17] Therefore, we conclude the policy arguments of the district court and Doyle fail. While there may be valid policy concerns supporting a reduction of points accumulated at the date of the charge, or even at the date of the conviction for that charge, those arguments are for the legislature, not this Court. We may not impose our own view of public policy by disregarding the clear, unambiguous language of a statute indicating points accumulate when entered on the driving record.

Ill

[¶ 18] The judgment of the district court, reinstating Doyle’s driver’s license, is reversed.

[¶ 19] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.


author: MARING, Justice.

text:
    2001 ND 14
    STATE of North Dakota, North Dakota Department of Corrections and Rehabilitation, Petitioner, v. The Honorable Bruce B. HASKELL, Judge of the District Court, South Central Judicial District, and Julie Smith, Respondents.
    No. 20000214.
    Supreme Court of North Dakota.
    Jan. 30, 2001.
    Tag C. Anderson, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for petitioner.
    Charles R. Isakson, Chapman and Chapman, Bismarck, ND, for respondent Julie Smith.
   MARING, Justice.

[¶ 1] The State of North Dakota, by the North Dakota Department of Corrections and Rehabilitation (“the State”), has petitioned this Court for a supervisory writ directing the trial court to vacate its June 19, 2000, order denying the State’s motion to dismiss Julie Smith’s complaint for lack of subject matter jurisdiction. We conclude this is an appropriate case in which to exercise our supervisory jurisdiction, and we grant the petition.

[¶2] Julie Smith (“Smith”) sued the State, alleging she had been wrongfully terminated as an addiction counselor by the State, in violation of the North Dakota Human Rights Act, ch. 14-02.4, N.D.C.C., and the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”). The State moved to dismiss the complaint, alleging the trial court lacked subject matter jurisdiction because Smith “failed to file a notice of claim as required by N.D.C.C. § 32-12.2-04(1) and because the State of North Dakota cannot be sued by a private party litigant under the ADA without the State’s express consent.”

[f 3] On June 19, 2000, the trial court issued an order denying the State’s motion, holding “the definitions contained in § 14-02.4-02(5) and (11), N.D.C.C. make it clear that the State is subject to an action under the chapter; and § 14-02.4-19, N.D.C.C. governs the time and manner of bringing such an action.” The State petitioned for a supervisory writ directing the trial court to vacate its order.

[¶ 4] This Court’s authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04 is a discretionary authority we exercise on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy. E.g., Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289; Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66; State ex rel. Heitkamp v. Haggerty, 1998 ND 122, ¶ 6, 580 N.W.2d 139; Traynor v. Leclerc, 1997 ND 47, ¶ 6, 561 N.W.2d 644; North Dakota Comm’n on Med. Competency v. Racek, 527 N.W.2d 262, 264 (N.D.1995). Here, the case is extraordinary, the trial court erred, and the State has no adequate alternative remedy, because the denial of a motion to dismiss is not appealable. We, therefore, conclude this is an appropriate case in which to exercise our supervisory jurisdiction.

[¶ 5] Section 32-12.2-04, N.D.C.C., provides, in part:

1.A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded....
5. A person bringing a legal action against the state or a state employee for a claim shall deliver a copy of the summons, complaint, or other legal pleading in which the claim is first asserted in the action to the director of the office of management and budget at the time the summons, complaint, or other legal pleading is served in the action. This provision is in addition to any applicable rule of civil procedure.

Section 32-12.2-01, N.D.C.C., provides, in part:

As used in this chapter, unless the context otherwise requires:
1. “Claim” means any claim for money damages brought against the state or a state employee for an injury caused by the state or a state employee acting within the scope of the employee’s employment whether in the state or outside the state.
2. “Injury” means personal injury, death, or property damage.
3. “Occurrence” means an accident, including continuous or repeated exposure to a condition, which results in an injury.
4. “Personal injury” includes bodily injury, mental injury, sickness or disease sustained by a person and injury to a person's rights or reputation.
5. “Property damage” includes injury to or destruction of tangible or intangible property.

[¶ 6] Smith did not present the notice required by N.D.C.C. § 32-12.2-04. The trial court ruled the matter is governed by N.D.C.C. ch. 14-02.4, and denied the State’s motion to dismiss. We have previously addressed notice-of-claim requirements. In Messiha v. State, 1998 ND 149, 583 N.W.2d 385, we upheld the trial court’s dismissal of a university professor’s contract claims arising out of his termination by the University of North Dakota for failing to present a written claim, as required by N.D.C.C. § 32-12-03. We rejected Messiha’s “argument that an administrative appeal satisfies the statutory requirement for presentment of a written claim for money.” Messiha, 583 N.W.2d 385, 1998 ND 149, ¶ 18. See also Livingood v. Meece, 477 N.W.2d 183 (N.D.1991).

[¶ 7] In Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶20, 603 N.W.2d 66, we again held a university professor’s failure to comply with the claim presentment requirement of N.D.C.C. § 32-12-03 rendered the trial court without jurisdiction over the professor’s claim for breach of contract in his action against the State. We also held any possible tort claim Dimond may have had was barred for failing to present notice of his tort claim within the time allowed by N.D.C.C. § 32-12.2-04(1). Dimond, at ¶ 25.

[¶ 8] In Cooke v. University of North Dakota, 1999 ND 238, ¶ 5, 603 N.W.2d 504, Paula Cooke sued UND, alleging it violated her rights under the North Dakota Human Rights Act by failing to appoint her Director of Aerospace Network because of her marital status. The trial court dismissed Cooke’s complaint for lack of jurisdiction because Cooke failed to present a notice of claim, as required by N.D.C.C. § 32-12.2-04(1). We said N.D.C.C. § 32-12.2-04(1) “encourages prompt investigation while evidence is still fresh; repair of any dangerous condition; quick and fair settlement of meritorious claims; and preparation of fiscal planning to meet possible liability.” Cooke, 603 N.W.2d 504, 1999 ND 238, at ¶ 7. “If a person suing the state fails to satisfy N.D.C.C. § 32-12.2-04(l)’s notice of claim requirement, dismissal of the person’s complaint is proper.” Id. at ¶ 9. “Applying N.D.C.C. § 32-12.2-04(1) and requiring exhaustion of remedies are not inconsistent.” Id. at ¶ 11. We held: “Because Cooke faded to comply with N.D.C.C. § 32-12.2-04(1) and the district court therefore lacked subject matter jurisdiction, we affirm the dismissal of her complaint.” Id. at ¶ 14.

[¶ 9] Smith argues Cooke v. University of North Dakota, 1999 ND 238, 603 N.W.2d 504, is distinguishable “in that Smith seeks relief specifically authorized by the provisions of the North Dakota Human Rights Act, at least to the extent that back pay and reasonable attorneys fees are so identified,” and “by reason of the fact that such case involved an administrative grievance procedure, as opposed to Smith’s administrative involvement with the North Dakota Department of Labor and the U.S. Equal Employment Opportunity Commission.” Section 14-02.4-20, N.D.C.C., áuthorizes a wider range of relief than just money damages, including “injunctions, equitable relief, and back-pay,” together with a possible discretionary award of attorney fees to a prevailing party. We need not address what, if any, effect the notice of claim statute may have when such relief, other than money damages, is sought, because Smith has not specified any relief sought other than money damages for lost income, damage to her reputation and attorney’s fees. Smith’s complaint therefore, seeks only money damages for the very kind of claim for which N.D.C.C. § 32-12.2-04 requires a person to present a notice to the director of the office of management and budget within 180 days. Under Ch. 32-12.2, injury includes personal injury, which is defined as including “... injury to a person’s rights or reputation.” N.D.C.C. § 32-12.2-01(2) and (4). The potential relief in Cooke and in this case are similar. The administrative processes involved in this case and in Cooke in the exhaustion of the claimants’ remedies are not inconsistent with application of the notice-of-claim requirement of N.D.C.C. § 32-12.2-04. We are not persuaded any distinctions between Cooke and this case warrant any difference in treatment. In accordance with Cooke, we conclude Smith’s failure to present a claim in compliance with N.D.C.C. § 32-12.2-04 for the money damages she sought rendered the trial court without jurisdiction, and the court erred in refusing to grant the State’s motion to dismiss.

[¶ 10] We hold the trial court lacked jurisdiction and erred as a matter of law in denying the State’s motion to dismiss Smith’s complaint. The State has no other adequate remedy to avoid having to defend a suit over which the trial court lacks subject matter jurisdiction. We, therefore, exercise our supervisory authority and direct the trial court to vacate its order denying the State’s motion to dismiss and to enter an order dismissing Smith’s complaint.

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

      . On July 17, 2000, the trial court issued an order dismissing Smith's ADA claims. We note the United States Court of Appeals for the Eighth Circuit has ruled the ADA does not extend to states. Anderson v. North Dakota State Hospital, 232 F.3d 634 (8th Cir.2000).

      . As we recognized in Messiha v. State, 1998 ND 149, ¶ 17, 583 N.W.2d 385, one purpose of such a notice statute is to inform administrators of the amount of a claim so they have an opportunity to investigate and determine if it should be paid or disputed.


author:
PER CURIAM.
      MARING, Justice,

text:
    2001 ND 7
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Bruce R. HOWE, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Bruce R. Howe, Respondent.
    No. 20000211.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.
    Gary H. Lee, Olson Burns Lee, Minot, ND, for respondent.
   PER CURIAM.

[¶ 1] Disciplinary counsel filed a petition for discipline against Bruce R. Howe. Howe contested the allegations of misconduct and was granted a hearing before a hearing panel. Howe did not tender a conditional admission under N.D.R. Lawyer Discipl. 4.2 until after the hearing panel issued its report and recommendation that Howe’s license to practice law be suspended for 30 days and disciplinary counsel had filed an objection. Disciplinary counsel has objected to the hearing panel’s recommendation that Howe’s license to practice law be suspended for 30 days. Asserting this Court has “authority to extend an opportunity to accept discipline by consent as envisioned by Rule 4.2, N.D.R. Lawyer Discipl., even after an objection to the panel recommendation is filed,” Howe has tendered “a conditional admission in exchange for the stated form of discipline, 30 days suspension.” Howe withdraws the conditional admission if we reject it, and, alternatively, has raised a number of objections to the hearing panel’s report. We reject the tendered conditional admission, and we suspend Howe from the practice of law for six months.

I

[¶ 2] Howe became licensed to practice law in North Dakota in 1958. In 1992, Howe began estate planning for George Schreiber and his sister, Loretta Schreiber. In 1992, Howe prepared and George executed a will and a trust agreement. The will essentially transferred all estate assets to the trust. The trust agreement provided that prior charitable pledges were to be honored quickly, provided additional charitable gifts, and provided that upon George’s death, his nieces, Dolores Adams, Caroline Renner, and Rose Ren-ner, were each to receive $200,000. George named Loretta the primary beneficiary on a number of annuities. George’s nieces were contingent beneficiaries on the following annuities:

a. $79,742.17 Pioneer Mutual Life-Policy # 662510
b. $437,277.53 North American Security Life-Policy # 000215850
c. $522,960.23 COVA (formerly Xerox Life)-Policy # 74709-1

The trust was not funded before George Schreiber died on October 8, 1995. After George’s death, Howe attempted “to fund the trust via post-mortem estate planning,” which ultimately led to the institution of disciplinary proceedings against him in 1999.

[¶ 3] After a hearing on April 5 and 6, 2000, the hearing panel found:

15. In order to fund, post mortem, the George Schreiber trust, Howe drafted, and had Loretta execute, a series of “disclaimer and renunciations” for all annuities, “possibly” assuming that Loretta was the sole beneficiary, with no contingent beneficiaries....
18.... As testified by Howe’s own expert witness, Garry Pearson, Howe had an obligation to inform the nieces of all policies of which they were contingent beneficiaries. Howe directly violated that obligation, and his conduct from March 20, 1996 forward, leads the Hearing Panel to conclude, by clear and convincing evidence, that Howe made statements and representations to third persons (the nieces), of fact and law, that he knew to be false. Not only by what was said, but also what Howe failed to say. Furthermore, the Hearing Panel finds by clear and convincing evidence, that Howe’s continued course of conduct constitutes conduct involving dishonesty, fraud, deceit, or misrepresentation.
19.... In a draft dated April 16, 1996, Pioneer Mutual mistakenly paid policy # 662510 to George’s estate. Howe never advised Pioneer Mutual of their error. He never advised the nieces of his actions or their beneficiary status to Pioneer policy # 662510, in spite of his legal responsibility and obligation to do so.
21. On June 24, 1996, Howe met with Caroline and Rose Renner. The purpose of the meeting was to have Caroline and Rose sign disclaimers to the COVA annuity. All three nieces testified at the hearing. The Hearing Panel finds their testimony to be consistent and credible.... Howe did not advise the nieces of their contingent beneficiary status under the Pioneer policy. As an incentive to have the nieces sign the disclaimers, Howe told the nieces that if they did not disclaim, the proceeds they received from the COVA annuity would be deducted from their specific bequest under the trust. They testified that Howe told them they would get more if they disclaimed than they would if they didn’t.... The nieces testified that Howe told them that each would be responsible for $9,700.00 in estate administration fees. Howe did not deny making this statement. He claims it was a mistake. Each of the statements by Howe was false. The hearing panel concludes that at the time Howe made the statements, he knew that the statements were false. The Hearing Panel finds by clear and convincing evidence, that Howe engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
23. Eventually, claims were made against George’s estate on behalf of the nieces. Those claims were settled. The nieces received their fair share, and did not sustain any loss as a result of Howe’s conduct. It would appear that the only losers of the failure to timely fund the trust were the charitable organizations.
24. As stated earlier, the Hearing panel finds, from clear and convincing evidence, that Howe violated Rule 8.4(d), N.D.R. Prof. Conduct by violating N.D.C.C. § 27-14-02(7), which provides that it is ground for discipline for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Hearing Panel also finds that Howe violated Rule 4.1 N.D.R. Prof. Conduct, which provides that in the course of representing a client a lawyer shall not make a statement to a third person of fact or law that a lawyer knows to be false. Howe’s statements to the nieces were false. Howe knew those statements to be false. The statements were made to induce the nieces to disclaim and accomplish what Howe most likely should have done years earlier: timely fund the trust.
29. In considering a recommendation of the Hearing Panel for Howe’s violations of the Rules of Professional Conduct, we find no evidence that Howe has a prior history or record of violations of the Rules of Professional Conduct. This appears to be his first violation. Howe is, otherwise, a well-respected member of the bar. Nevertheless, his prohibited actions were serious, calculated, and could have resulted in significant loss to the contingent beneficiaries. Howe’s conduct is of the type that reflects dishonor on the legal profession and the public’s expectation of honesty and candor. The Hearing Body therefore recommends that the license of Bruce R. Howe be suspended for a period of thirty (30) days. The Hearing Body further recommends that Howe be ordered to pay disciplinary counsel’s costs, disbursements, and attorney’s fees.

II

[¶ 4] We recently addressed review of disciplinary proceedings in In re Disciplinary Action Against Robb, 2000 ND 146, ¶ 8, 615 N.W.2d 125:

We review disciplinary proceedings against attorneys de novo on the record. Disciplinary Board v. Boughey, 1999 ND 205, ¶ 8, 602 N.W.2d 268. Disciplinary Counsel must prove each violation by clear and convincing evidence. Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147. Although we give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, we are not merely a rubber stamp, and we decide each proceeding upon its own facts. Boughey, at ¶ 8.

‘When the hearing panel has heard the witnesses and observed their demeanor, we accord special deference to its findings on matters of conflicting evidence.” Disciplinary Bd. v. McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. “We consider each disciplinary case upon its own facts to decide what discipline is warranted.” In re Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147, cert. denied, — U.S. -, 121 S.Ct. 483, — L.Ed.2d -.

III

[¶ 5] Disciplinary counsel objected to the hearing panel’s recommendation of a 30-day suspension. Howe tendered a conditional admission in exchange for the recommended 30-day suspension, and, alternatively, raised a number of objections to the hearing panel’s report.

A

[¶ 6] Howe contends expert testimony should have been required to establish a violation of the Code of Professional Conduct. We agree with the hearing panel’s resolution of this contention:

In this case the standard of care is set forth in the rules themselves. There is no issue as to what the standard of care is. There is no dispute as to the interpretation of the standard of care, nor is the standard that of what a reasonably competent attorney might do under the same or similar circumstances.

[¶ 7] Under N.D.R. Lawyer Discipl. 3.5(B), the North Dakota Rules of Evidence apply in disciplinary proceedings “insofar as appropriate.” Rule 702, N.D.R.E, provides an expert witness may testify if “specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Here, Howe was alleged to have knowingly made false statements and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Expert testimony would not have assisted the hearing panel in determining if Howe made statements he knew to be false or if he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. We conclude expert testimony was unnecessary in this case.

B

[¶ 8] Howe contends the hearing panel’s finding he had all annuity information before George Schreiber’s death is not supported by clear and convincing evidence. The hearing panel found in part:

Howe testified that the COVA policy was never found. Regardless, in a letter from COVA dated May 22, 1995, Howe was advised that the nieces were contingent beneficiaries. On October 8, 1995 George Schreiber passed away, his trust unfunded.

Howe contends, and disciplinary counsel agrees, the COVA letter was dated May 22, 1996. Howe asserts “it is important that this be corrected because ... there is an impression that Howe had significant knowledge regarding the COVA policy long before George Schreiber’s death.” However, the significance of the COVA letter of May 22, 1996, is the fact that it advised Howe that Schreiber’s nieces were contingent beneficiaries before Howe met with two of them and made false statements to them on June 24,1996.

C

[¶ 9] Howe contends he did not discuss the Pioneer Mutual Policy with the nieces, and, “therefore made no statements to them which could be construed to be misleading, deceiving, or deceitful.” We agree with the hearing panel’s finding Howe made statements to the nieces he knew to be false, and we agree that Howe’s conduct in failing to inform the nieces they were contingent beneficiaries involved dishonesty, fraud, deceit, or misrepresentation.

[¶ 10] The hearing panel found:

On June 24, 1996, Howe met with Caroline and Rose Renner. The purpose of the meeting was to have Caroline and Rose sign disclaimers to the COVA annuity. All three nieces testified at the hearing. The Hearing Panel finds their testimony to be consistent and credible.... Howe did not advise the nieces of their contingent beneficiary status under the Pioneer policy.... Howe told the nieces that if they did not disclaim, the proceeds they received from the COVA annuity would be deducted from their specific bequest under the trust. They testified that Howe told them they would get more if they disclaimed than they would if they didn’t.... The nieces testified that Howe told them that each would be responsible for $9,700.00 in estate administration fees.Each of the statements by Howe was false. The hearing panel concludes that at the time Howe made the statements, he knew that the statements were false. The Hearing Panel finds by clear and convincing evidence, that Howe engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.

The nieces’ testimony, if believed, established that Howe made the statements. The hearing panel specifically found the nieces’ testimony was credible, the statements were false, and Howe did not inform the nieces of their contingent beneficiary status under the Pioneer policy. Howe’s knowledge the statements were false when he made them is a permissible inference to be drawn from the evidence. The hearing panel heard the witnesses and observed their demeanor. Giving due weight to the hearing panel’s findings, we conclude clear and convincing evidence supports the finding that Howe engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.

D

[¶ 11] Howe contends his conduct was not motivated with selfish or personal reasoning, and “[i]n fact, Howe’s motivations in this case were to attempt, as best he could, to carry out what he believed the intentions of George Schreiber were.” We consider these matters, as well as Howe’s absence of a prior disciplinary record, and his previously good reputation, to be mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.8.

E

[¶ 12] Howe contends disciplinary counsel’s view that the length of the hearing panel’s recommended suspension of thirty days is not long enough “should be considered irrelevant” and “Disciplinary Counsel should not supplant his judgment for that of the Panel.” While the length of a suspension is a decision for this Court to make, we welcome disciplinary counsel’s views in making that determination.

[¶ 13] Howe contends a reprimand is a sufficient sanction, and he should not be suspended from the practice of law. He argues:

He attempted to act in a fashion which he believed would best carry out the intentions of his client, that is, George Schreiber.
In the final analysis, Howe was unable to effectuate what he believed George Schreiber’s wishes to be. The nieces received everything they were entitled to receive. The charities received everything they were entitled to receive according to the documents as they existed at the time of George Schreiber’s death. Thus, although Howe’s attempts to have the nieces disclaim the COVA policy ultimately generated litigation, in the final analysis no one was necessarily harmed. Given this, a 30 day suspension for this conduct is severe. It is in fact, not warranted.

[¶ 14] We do not agree a reprimand is appropriate in this case. Standard 5.1, N.D. Stds. Imposing Lawyer Sanctions, provides, in part:

5.1 Failure to Maintain Personal Integrity. Absent aggravating or mitigating circumstances upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving commission of an act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in conduct which does not contain the elements listed in Standard 5.11 but that seriously adversely reflects on the lawyer’s fitness to practice.
5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice.

[¶ 15] Generally, a lawyer’s “conduct involving dishonesty, fraud, deceit, or misrepresentation,” N.D. Stds. Imposing Lawyer Sanctions 5.1, “seriously adversely reflects on the lawyer’s fitness to practice,” id., 5.12, and “tends to bring reproach upon the legal profession,” N.D.C.C. § 27-14-02(7). Conduct like Howe’s generally results in suspension. See, e.g., Disciplinary Bd. v. McDonald, 2000 ND 87, 609 N.W.2d 418; Disciplinary Bd. v. Schultz, 1997 ND 117, 564 N.W.2d 307; Disciplinary Bd. v. Lamont, 1997 ND 63, 561 N.W.2d 650; Disciplinary Bd. v. Ellis, 504 N.W.2d 559 (N.D.1993); Disciplinary Bd. v. Kaiser, 484 N.W.2d 102 (N.D.1992). But see, Disciplinary Bd. v. Bailey, 527 N.W.2d 274 (N.D.1995) (disbarment for repeated violations and previous disciplinary history); Disciplinary Bd. v. Kinsey, 524 N.W.2d 89 (N.D.1994) (resignation allowed); Disciplinary Bd. v. Bailey, 472 N.W.2d 472 (N.D.1991) (public reprimand). Howe’s conduct undercut the public’s confidence in lawyers. Upon considering Howe’s absence of a prior disciplinary record and the absence of a selfish motive for his conduct as mitigating factors, we conclude a six-month suspension is appropriate.

F

[¶ 16] On May 10, 2000, disciplinary counsel executed an affidavit of costs and expenses in the amount of $10,566.65, of which $6,157.50 was for 82.1 hours of attorney time at $75 per hour. In its July 2000 order, the hearing panel recommended “Howe be ordered to pay disciplinary counsel’s costs, disbursements, and attorney’s fees.” Howe contends a disciplined attorney should not “have to pay for needless work conducted by Disciplinary Counsel. This is occurring in this case, and Counsel’s time should be cut.”

[¶ 17] “Unless otherwise ordered by this Court or the Disciplinary Board, our disciplinary rules require assessment of costs and expenses against a disciplined attorney.” Disciplinary Bd. v. Boughey, 1999 ND 205, ¶13, 602 N.W.2d 268. “Costs and expenses assessed under N.D.R. Lawyer Discipl. 1.3(D) ordinarily include reasonable attorney fees for disciplinary counsel.” Id. We have reviewed disciplinary counsel’s affidavit in light of Howe’s arguments, and, while not all of disciplinary counsel’s efforts led to findings of violations, we find the costs, expenses, and fees sought in this case are reasonable.

IV

[¶ 18] We order Howe suspended from the practice of law for six months, commencing March 1, 2001, and we order him to pay $10,566.65 for the costs and expenses of the disciplinary proceedings.

[¶ 19] WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 20] I agree with the majority that there is clear and convincing evidence Howe engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation. I also agree a reprimand is not appropriate in this case and that a suspension is the appropriate sanction. I, however, do not agree a six-month suspension is appropriate.

[¶ 21] In Disciplinary Board. v. Schultz, 1997 ND 117, 564 N.W.2d 307, 308, Charles Schultz admitted he violated Rule 5.5, N.D.R. Prof. Conduct, by practicing without a license and Rule 1.2(A)(3), N.D.R. Lawyer Discipl. (dishonest conduct) by holding himself out to his employer as a licensed attorney in the state of North Dakota. We suspended Schultz for 90 days. Id.

[¶ 22] In Disciplinary Board. v. Lamont, 1997 ND 63, ¶¶ 1, 16, 561 N.W.2d 650, Lamont was suspended for 60 days for violating Rule 3.3, N.D.R. Prof. Conduct (candor to the tribunal); Rule 1.2(A)(3), N.D.R. Lawyer Discipl. (dishonesty, fraud, deceit, or misrepresentation); and N.D.C.C. § 27-13-01(1) (respect for the court). We considered as mitigating circumstances that Lamont’s testimony did not benefit him personally, that he had a good reputation, and that he had an unblemished disciplinary record. Id. at ¶ 20.

[¶ 23] In this case there are significant mitigating circumstances. Howe graduated from law school in 1958 and has had a clear disciplinary record for forty years. He is well respected in his community. In addition, Howe was not motivated by self gain, but rather attempted to carry out George Schreiber’s testamentary intent as he saw it. Finally, his conduct did not result in any adverse consequences to these third persons.

[¶ 24] I conclude these mitigating circumstances justify the imposition of a three-month suspension.

[¶ 25] GERALD W. VANDE WALLE, C.J., concurs.


author: MILLER, Chief Justice

text:
    2001 SD 5
    Berton N. HYATT, Employee, Claimant and Appellee, v. HARVEST STATES COOPERATIVE, Employer and Appellant, and National Union Fire, Insurer and Appellant.
    No. 21372.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 23, 2000.
    Decided Jan. 10, 2001.

      Mark A. Reedstrom of Ash & Reedst-.rom, Milbank, SD, Attorneys for employee, claimant and appellee.
    Susan Bruniek Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for appellants.
   MILLER, Chief Justice

[¶ 1.] In this discretionary appeal we reverse the circuit court and hold that a claimant’s petition for medical bills in an occupational disease claim was time-barred by the statute of limitations.

FACTS

[¶ 2.] Berton N. Hyatt (Claimant) worked for Harvest States Cooperative (Employer) from May 1, 1983 until May 31, 1990. Claimant’s employment with Employer exposed him to dust and various particles. The exposure caused him to develop the occupational diseases of emphysema and bronchospactic pulmonary disease. He timely filed an occupational disease notice with Employer on September 10, 1990. Employer denied Claimant benefits, and, on November 13, 1990, he timely petitioned the Department of Labor for a hearing.

[¶ 3.] After discovery, the parties reached an agreement that was incorporated into a Memorandum of Payment pursuant to SDCL 62-8-45. The Department approved the Memorandum of Payment on August 21, 1991. The approved agreement provided a commuted lump-sum payment of $30,000 for permanent partial disability based on a weekly compensation rate of $261.33. Further, the agreement contained a provision requiring Employer to pay Claimant additional compensation as is medically determined applicable if his percentage disability increased due to the disease. It also contained a provision obliging Employer to pay future medical expenses if Claimant’s occupational disease required additional medical treatment.

[¶ 4.] Claimant did receive additional medical treatment due to the occupational lung diseases in 1991, 1992, 1993 and 1994. He wrote to the Department on January 31, 1995 stating he had “a lot” of medical bills and inquiring where he should send them. The Department provided him with the address of Employer’s third party administrator for submission of his unpaid medical bills. Claimant sent the unpaid medical bills to the third party administrator, which included bills for medical treatment provided in May 1991, June 1992, January 1993, March 1993, September 1994 and December 1994. Employer’s third party administrator paid all of these medical bills.

[¶ 5.] In March 1995, Claimant discovered he suffered from heart disease and coronary artery disease. He received medical treatment for these conditions in 1995,1996 and 1997. Employer paid medical bills for such treatment until July 8, 1997 when it denied him further benefits for the heart-related medical treatments because it did not consider his heart problem work-related. Employer, however, did not make its last payment for heart-related medication until June 1998.

[¶ 6.] Claimant filed a petition for hearing before the Department on February 5, 1998. The parties agreed to bifurcate the issues to allow the Department to first decide the statute of limitation issue. The parties stipulated to the facts, as set forth above, and submitted briefs to the Department. The Department decided Claimant’s petition for hearing was barred by the statute of limitations. He appealed to the circuit court, which reversed and remanded deciding the petition was not time barred. Employer/Insurer filed for discretionary appeal with this Court, which we granted. We reverse the circuit court.

STANDARD OF REVIEW

[¶ 7.] This appeal presents a legal question regarding statutory application. Our review of the Department’s legal conclusions is de novo and the circuit court’s decision enjoys no presumption of correctness. Thomas v. Custer State Hosp., 511 N.W.2d 576, 579 (S.D.1994).

DECISION

[¶ 8.] The sole legal question in this appeal is whether the Department correctly applied the limitations on occupational disease claims found in SDCL 62-8-32 and SDCL 62-8-44.

[¶ 9.] SDCL 62-8-32 states, “[w]here compensation payments have been made and discontinued, and further compensation is claimed, the claim for such further compensation shall be made within one year after the last payment.” SDCL 62-8-44 pertains to modification of occupational disease awards and states in pertinent part:

[a]n award ... of compensation for an occupational disease may be reviewed and compensation increased, reduced or terminated where previously awarded ... only upon proof of fraud or of change in the conditions, and then only upon application by a party in interest made not later than one year after the ... award, or, where compensation has been awarded, after the date when the last payment was made under the award....

We recognize that we must apply the South Dakota Occupational Disease Disability Law according to the plain meaning of the statutes. Heupel v. Imprimis Tech, Inc., 473 N.W.2d 464, 466 (S.D.1991) (citations omitted).

[¶ 10.] Both sections 62-8-32 and 62-8-44 refer to “the last payment” as the starting point when the one-year time frame for filing for additional compensation or a modification of award begins to run. The term “last payment” is not defined within our statutes. The majority of jurisdictions that have faced this question hold that it is not the date of the actual lump-sum payment, but rather it is the date when the last payment actually would have been made if installment payments had been made. Southern Cotton Oil Co. v. Friar, 247 Ark. 98, 444 S.W.2d 556, 558-59 (1969); University of Denver v. Industrial Comm’n of Colo., 138 Colo. 505, 335 P.2d 292, 294 (1959); Allen v. IBP, Inc., 219 Neb. 424, 363 N.W.2d 520, 523 (1985); Andrejcak v. Elmora Bake Shop, 182 N.J.Super. 567, 442 A.2d 1046, 1049 (Ct.App.Div.1982); West v. Home Care Resources, 127 N.M. 78, 976 P.2d 1030, 1033-34 (Ct.App.1999); Haney v. State Compensation Comm’r, 138 W.Va. 303, 76 S.E.2d 753, 755 (1953). Accordingly, the triggering date for the statutory period would be determined by deciding when the last installment payment would have been made. We find further support for this view in our own statutes, which show a preference for installment payments. SDCL 62-4-10; SDCL 62-8-32; SDCL 62-8-44.

[¶ 11.] We adopt the majority view that in the context of a commuted lump-sum payment, any applicable statutory limitations for further compensation or modification of the award begins to run from the date when the “last payment” would have been made had the award been paid in installments.

[¶ 12.] If Employer had made installment payments, Claimant’s one-year limitations period for filing under sections 62-8-32 or 62-8-44 would have begun two years and two months after August 21, 1991. In this case, Claimant had until October 1994 to file his claim for additional compensation. However, he did not notify the Department of his claim for additional compensation until January 31, 1995, three months after his claims were time-barred. Although Employer did pay the claims, such payments could not revive the stale claims. Klein v. Menke, 83 S.D. 511, 514, 162 N.W.2d 219, 221 (1968). In Klein we said, “[w]here the employer does only what the Act requires of him, he does not thereby waive the protective shield of the statute.” Id. Since Employer could not revive stale claims by initially paying them, Claimant’s petition for hearing filed in February 1998 is time-barred for the same reasons the January 1995 claim is time-barred. It falls far outside the one-year time limitation running from the date of the last payment.

[¶ 13.] Claimant argues that the Memorandum of Payment obligated Employer to pay future medical expenses related to the occupational disease. We agree Employer was obligated to pay further medical benefits within the conditions and limitations set forth in the South Dakota Occupational Disease Disability Law, however, the indefinite period Claimant urges contradicts the clear one-year time limitation in SDCL 62-8-32 and SDCL 62-8-44. We take this opportunity to point out that the provisions of the South Dakota Workers’ Compensation Law bind employers and employees. SDCL 62-3-3; SDCL 62-8-6.

[¶ 14.] We have noted previously that agreement provisions similar to the provisions in this Memorandum of Payment were nothing more than a restatement of SDCL 62-7-33, which permits review in the case of a change in condition. Larsen v. Sioux Falls School Dist. No. 49-5, 509 N.W.2d 703, 708 (S.D.1993) (citing Call v. Benevolent & Protective Order of Elks, 307 N.W.2d 138, 140 (S.D.1981)). Similarly, under the South Dakota Occupational Disease Disability Law these provisions would simply be a restatement of SDCL 62-8-32 and 62-8-44, which provide for further compensation and modification of awards, respectively, under the Occupational Disease Disability Law. The difference under 62-8-32 and 62-8-44 is that a one-year time limit applies, and we note that both provisions in the Memorandum of Payment fail to note the time limitation that applies. Although the Memorandum of Payment is a Department form and gives incomplete information, that fact does not excuse Claimant from complying with the clear mandates of the statutes controlling access to further compensation or modifying an award. Larsen, 509 N.W.2d at 708.

[¶ 15.] In this case, Claimant failed to timely file his claims for additional compensation. He filed with the Department a full three months after the claims for additional compensation were time-barred and over three years after a petition for modification was time-barred. Accordingly, we reverse the decision of the circuit court and reinstate the decision of the Department dismissing Claimant’s time-barred petition for hearing.

[¶ 16.] Reversed.

[¶ 17.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.