author: MARING, Justice. KAPSNER, Justice,

text:
    2006 ND 163
    Lynette D. MOLITOR, Plaintiff and Appellee v. Kenneth M. MOLITOR, Defendant and Appellant.
    No. 20040041.
    Supreme Court of North Dakota.
    July 18, 2006.

      Theresa L. Cole of American Legal Services, Bismarck, N.D., for defendant and appellant.
    Gary D. Ramsey of Greenwood & Ramsey, P.L.L.P., Dickinson, N.D'., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Kenneth M. Molitor appeals from an amended judgment, establishing custody of the parties’ two children and an order denying his motion for a change of custody. We affirm.

I

[¶ 2] Kenneth Molitor and Lynette Molitor, now known as Lynette Hewson, were divorced on September 29, 2002, following entry of a partial judgment on the issue of divorce only. Sole custody of the parties’ two minor children was awarded to Hewson by judgment on October 20, 2003. An amended judgment was entered the next day and a second amended judgment was entered on December 10, 2003. Custody of the two children was not altered in either of the amended judgments. On January 30, 2004, Molitor filed a notice of appeal with this Court.

[¶ 3] On April 20, 2004, while Molitor’s appeal was pending, social services removed the parties’ two children, along with the two children of Hewson’s new husband, from her and her husband’s home. The removal of the children followed an incident in which Hewson had discovered her oldest child and her new husband’s two children “huffing” gasoline in the basement of her house. An argument ensued between Hewson and the three children, during which time the mother of Hewson’s husband’s children called, overheard the argument, and called law enforcement. After investigation by social services, the parties’ youngest child was returned to Hewson’s custody.

[¶ 4] On April 23, 2004, as a result of the removal of the children from Hewson’s home, Molitor moved for an ex parte order stating he believed it was necessary to protect the children from a threat of imminent danger. The trial court noted that it did not believe it had jurisdiction over the matter because of the pending appeal. On July 23, 2004, Molitor moved to amend the judgment to change custody. On October 7, 2004, Molitor moved this Court to remand for the limited purpose of permitting the trial court to consider his motion for change of custody. This Court granted the motion on October 21, 2004, and a hearing was held before the trial court on July 20, 21, and 28, 2005. Following the hearing, the trial court denied Molitor’s motion. Molitor appealed the order. Since this case began, one of the two children at issue has reached the age of majority.

II

[¶ 5] On appeal, Molitor argues the trial court’s award of custody to Hewson was clearly erroneous. He also argues the trial court’s failure to change custody was clearly erroneous.

A

[¶ 6] In making an initial custody determination, a trial court must decide which custody arrangement would be in the best interest of the child by applying the factors listed at N.D.C.C. § 14-09-06.2(1). Shaw v. Shaw, 2002 ND 114, ¶ 5, 646 N.W.2d 693. In our review of a trial court’s application of the best interest factors, we do not require a separate finding for each factor. Id. However, the trial court’s findings of fact should be stated with sufficient specificity to enable us to understand the factual basis for the court’s decision. Id. On review, a trial court’s opportunity to observe the witnesses and determine credibility should be given great deference. Hanson v. Hanson, 2003 ND 20, ¶ 11, 656 N.W.2d 656. A trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Shaw, 2002 ND 114, ¶ 5, 646 N.W.2d 693. The complaining party bears the burden of showing that a trial court’s custody determination was clearly erroneous. L.C.V. v. D.E.G., 2005 ND 180, ¶ 3, 705 N.W.2d 257. “A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) only if it is induced by an erroneous view of the law, there is no evidence to support it, or, though some evidence supports it, on the entire record we are left with a definite and firm conviction a mistake has been made.” Shaw, at ¶ 5.

[¶ 7] Under N.D.C.C. § 14-09-06.2, the best interest factors to be applied in child custody determination cases are:

a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence ...
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 8] In making its findings of fact for the initial custody determination, the trial court did not make a separate finding on each individual factor. Nevertheless, the factual basis for the trial court’s decision is quite clear. The trial court found that Molitor’s mistreatment of his sheep is indicative of his avoidance of any kind of gainful employment adequate to support his family’s needs. The trial court found Hewson was the primary provider for the family while the parties were married. The trial court discussed evidence presented at trial regarding Molitor’s lack of insight into the role of a parent and instances when Molitor spoke negatively about Hewson in front of the children. The trial court found Molitor’s disciplinary practices with the children foster disrespect for the law and authority. The trial court found Molitor lacks maturity and interacts with his children as a “pal” rather than providing an adult role model. The trial court found Molitor has anger control issues and is self-centered. We can infer from these findings that the trial court concluded Mol-itor does not have the capacity to give the children the parental guidance needed. These findings indicate the application of, at a minimum, factors (b), (c), (f), and (g) by the trial court against awarding custody to Molitor. We believe these findings are sufficient to provide us with an understanding of the trial court’s decision on custody.

[¶ 9] In his brief on appeal from the initial custody determination, Molitor invites us to reexamine the record in bits and pieces favorable to his case. Under our standard of review, however, we look to whether there is evidence to support the trial court’s decision. There is clearly evidence on the record which supports this decision.

[¶ 10] Our standard of review also allows us to reverse if our review of the entire record leaves us with a definite and firm conviction a mistake has been made. Our standard of review does not allow us to reverse the trial court merely because of the possibility we may have decided a case differently. As we have said, when dealing with findings of fact:

“[RJeading a cold transcript is no substitute for hearing and observing witnesses as they testify. Tones of voice, hesitations, confusion, surprise, and other telltale indications of mental state convey to trial judges and jurors much that is lost to appellate judges. If we were to judge from the cold print, we might decide many cases differently than trial judges do, and this case might be one of them. But, if we decided differently, we would have no assurance that ours was the better decision.”

City of Jamestown v. Neumiller, 2000 ND 11, ¶ 12, 604 N.W.2d 441 (quoting State v. Tininenko, 371 N.W.2d 762, 764-65 (N.D.1985)). Our standard requires a definite and firm conviction a mistake has been made. We have no such conviction in this case.

[¶ 11] At oral argument, Molitor argued the trial court’s decision in making its initial custody determination revealed bias against him, and that we should reverse as a result. However, in Molitor’s brief appealing the initial custody determination, he states only: “Rather than engaging in the required analysis as mandated by N.D.C.C. 14-09-06.2, the District Court took the opportunity to display its personal anger towards [Molitor] and as a result disparage [Molitor] in every personal manner feasible.” Never does Molitor argue the trial court was biased towards him such that it affected the outcome of the custody determination. This Court is not in the business of divining what a party meant to argue in its brief. Nor do we raise and address issues not adequately briefed. Issues on appeal should be fully briefed with appropriate supporting citations and with fair and adequate opportunity for a response from the opposing party. Roise v. Kurtz, 1998 ND 228, ¶ 10, 587 N.W.2d 573. The issue raised in Molitor’s brief was whether the trial court correctly applied the law to the facts. The issue of bias was not properly raised. Molitor cites one decision in his brief, Severson v. Hansen, 529 N.W.2d 167 (N.D.1995), for the proposition that the trial court must consider the best interest factors. In his brief, Molitor basically argues the trial court’s findings are not specific enough and that the evidence favorable to him on each factor supported awarding custody to him. Molitor requests that our Court reweigh the evidence and grant him custody.

[¶ 12] Although we understand judges do become frustrated with parties in family law cases, we agree that the trial court’s rhetoric reflects poorly on the court and such behavior can have a negative impact on the public’s trust and confidence in our judicial system. The trial court’s choice of words in its findings is unnecessarily derogatory and stinging. We do not condone the use of one’s judicial position to launch a vehement attack on a party. However, when this case was remanded for consideration of Molitor’s motion to change custody, Molitor neither made a motion for change of judge nor raised, in any fashion, the issue of his inability to get a fair hearing before the trial court. See N.D.C.C. § 29-15-21(3). “We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal. The failure to raise the issue of judicial bias in the trial court precludes our review on appeal.” Wenzel v. Wenzel, 469 N.W.2d 156,158 (N.D.1991).

B

[¶ 13] The original order granting custody was filed on October 20, 2003. Molitor’s motion to change custody was filed on July 23, 2004. Section 14-09-06.6(5), N.D.C.C., governs change of custody proceedings in situations where less than two years has passed since the initial order establishing custody. The section provides:

The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.

N.D.C.C. § 14-09-06.6(5). That provision “was enacted to provide something of a moratorium for the family during the two-year period following a custody determination. The purpose of this moratorium is to spare children the painful, disruptive, and destabilizing effects of repeat custody litigation.” Wagaman v. Burke, 2002 ND 51, ¶5, 642 N.W.2d 178 (citations omitted). We have also said that when a party seeking modification of custody does not allege any of the grounds listed under N.D.C.C. § 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody. See Wagaman, ¶11.

[¶ 14] In this case, Molitor never cites to N.D.C.C. § 14-09-06.6(5). His briefing to this Court indicates he believed a change of custody is governed by applying the best interest factors. In his brief to the trial court in support of his motion to change custody, Molitor cites to no law governing change of custody and only asserts: “Given the serious events that have occurred, a modification of the custody order would be in the best interests of the children.” In her briefing, Hewson contends Molitor had “not stated grounds constituting change of circumstances,” indicating that she believed the standard for modification found at N.D.C.C. § 14-09-06.6(6) applied. See N.D.C.C. § 14-09-06.6(6) (governing modification of custody after two years have passed since the initial finding of custody). The trial court never indicates which standard it applied. Instead, it simply applied the best interest factors.

[¶ 15] There is no finding by the trial court that would indicate Molitor made a case for change of custody under N.D.C.C. § 14-09-06.6(5). By Molitor’s own admission in his briefing, there was not denial of visitation. Molitor’s only complaint as to visitation is that Hewson “rarely allows [Molitor] more visitation than his scheduled 4 days a month.” The trial court states Hewson allows Molitor “reasonable visitation.” The facts also do not support that there has been a change in primary physical care for the child for more than six months. Molitor’s only argument under N.D.C.C. § 14-09-06.6(5) is that “the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.” See N.D.C.C. § 14-09-06.6(5)(b).

[¶ 16] Although it appears the trial court did not apply the correct provision, the court’s findings clearly show that Molitor did not prove a case for modification of custody under N.D.C.C. § 14-09-06.6(5)(b). In considering Molitor’s motion to change custody following a three-day evidentiary hearing on the matter, the trial court made specific findings of fact as to, at least, factors (a), (b), (c), (d), (e), (f), (g), (h), and (k) and arguably (i) and (m) of the best interest factors. The trial court specifically found “[t]he child has lived in a stable satisfactory environment and continuity should be maintained” and “[t]he child has been in his mother’s custody his whole life except for the three weeks that he was removed by social services and placed with his father.” In regards specifically to the April 2004 incident that led to the removal of the youngest child from the Hewson home, the trial court makes clear that it does not believe the youngest child was in danger in Hewson’s home and that it was the behavior of the other sibling and step-siblings in the home that was the source of that incident. Quite simply, our review of the record and of the trial court’s findings of fact indicate the trial court did not err in concluding that Molitor did not establish a case for change of custody. On this record, there is nothing that leaves us with a firm conviction a mistake has been made in the outcome. Again, Molitor selectively points to facts in the record to support his argument that modification is necessary, but we are unpersuaded the trial court erred. A case for modification of custody was not established under either the legal standard in N.D.C.C. § 14-09-06.6(5)(b) or in N.D.C.C. § 14-09-06.6(6). It must be noted that N.D.C.C. § 14-09-06.6(6) is a more lenient standard and even if the trial court applied it instead of the more strict standard under N.D.C.C. § 14-09-06.6(5), Molitor failed to prove his case. Application of the more lenient provision and the assumption the April 2004 incident was a change in circumstances actually benefitted Molitor.

[¶ 17] Although the trial court did not apply the correct provision under N.D.C.C. § 14-09-06.6, we believe the correct result was reached and that the result is supported, under the appropriate law, by the trial court’s findings of fact and the record. Had the trial court applied N.D.C.C. § 14-09-06.6(5), the issue would have been whether the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development. The trial court made findings that clearly infer the environment at Hewson’s home did none of these things. Under N.D.C.C. § 14-09-06.6(5), that finding ends the inquiry. The movant has failed to establish any of the three grounds on which to bring a motion within two years of the last custody order. When, as in this case, the outcome would be the same applying the correct provision, and the outcome that was reached was based on findings that are not clearly erroneous, we see little need to require that the parties continue to litigate merely to ensure the trial court is held to task.

[¶ 18] We also consider Molitor’s contention at oral argument that the trial court’s statements indicated bias against him when making its decision on his motion. After review of the record and Molitor’s briefing, we do not see where Molitor raised, prior to oral argument, the issue of bias by the trial court. Again Molitor cites to us no case law on the issue of bias. Although Molitor points us to places in the trial court’s order which again exhibit rhetoric which reflects poorly on the trial court, we do not see where in his briefing he has indicated to us that he wishes to raise that issue or where he placed Hew-son on notice that he is raising the issue of bias.

Ill

[¶ 19] The trial court’s amended judgment awarding custody and order denying change of custody are affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., concur.

DANIEL J. CROTHERS, J., concurs in the result.

KAPSNER, Justice,

dissenting.

[¶ 21] Custody decisions are difficult. In reviewing custody disputes, our duty is to ensure district court judges have followed the legislative command of weighing the best interests of the child factors under N.D.C.C. § 14-09-06.2. When a trial judge ignores the legislatively imposed best interest factors, writes perfunctory findings that rely on evidence not in the record, or when we cannot determine the basis for a trial court’s decision, we will reverse and send a case back for further analysis and more detailed findings. See, e.g., Clark v. Clark, 2005 ND 176, ¶ 9, 704 N.W.2d 847; N.D. Human Rights Coalition v. Bertsch, 2005 ND 98, ¶ 15, 697 N.W.2d 1; Huntress v. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. When a judge evidences bias by using his position as a district court judge to ridicule the parents and children, that judge brings disrespect to the judiciary and destroys public confidence in our justice system. See, e.g., Sisk v. Sisk, 2006 ND 55, ¶43, 711 N.W.2d 203 (dissenting opinion). The majority is 'willing to make many inferences to save this decision. I believe it is impermissible to do so under the circumstances. I therefore respectfully dissent.

[¶ 22] When making an initial custody determination, a trial court has a duty to serve the best interests of the child. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 5, 642 N.W.2d 892. A court must weigh the best interests of the child factors set forth under N.D.C.C. § 14-09-06.2 when making such a decision. Id. A trial court’s findings on the factors for the best interests of the child under N.D.C.C. § 14-09-06.2 should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for a trial court’s decision. Huntress v. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶ 23] Here, the trial court did not review the best interest factors when the court made the initial custody decision. The majority argues it is “quite clear” the best interest factors were considered based on the words used by the district court and evidence within the record. Majority opinion at ¶ 8. I have trouble discerning the same level of clarity. Moll-tor’s brief states: “Rather than engaging in the required analysis as mandated by N.D.C.C. 14-09-06.2, the District Court took the opportunity to display its personal anger towards [Molitor] and as a result disparage [Molitor] in every personal manner feasible.” Majority opinion at ¶ 11. From the record we have before us, this appears to be an accurate description. At the conclusion of the initial custody hearing, the court made “Special Findings.” The court made findings chastising Molitor for an incident regarding his sheep farm and a case occurring fifteen years prior to the hearing. The court’s first finding stated:

1) Fifteen years ago, when I went to Amidon to hear the case of the defendant’s cattle grazing in his neighbors’ wheat fields in a desperate attempt to save their own lives, it was apparent that the defendant was running a concentration camp for livestock. Now, fifteen years later the defendant is still starving his sheep. It’s a mystery that the people of Slope County tolerate it.

The majority infers from this finding — or more accurately makes its own finding— that Molitor’s mistreatment of sheep is indicative of his avoidance of gainful employment. Majority opinion at ¶ 8.

[¶ 24] A trial court has an obligation to make findings of fact under N.D.R.Civ.P. 52(a). As an appellate court of review, we do not make independent findings. By scouring the record for sufficient information to support a court’s decision, we are acting as a fact-finder. When a district court provides no indication of the eviden-tiary and theoretical basis for its decision, the reviewing court is left to speculate whether factors were properly considered and the law was properly applied. Clark v. Clark, 2005 ND 176, ¶9, 704 N.W.2d 847. We cannot perform our appellate court function under such circumstances. Id.

[¶ 25] The court’s second special finding is based on an apparent sexist assumption that men cannot raise a family and that women should not have to work outside the home:

2) For about twenty years as nearly as I can tell, the defendant has managed to avoid any kind of gainful employment and he would have starved his own family just like his livestock if his wife had not gone out and worked outside of the home to put food on the table.

[¶ 26] The majority infers negative findings under N.D.C.C. § 14-09-06.2(b), (e), and (g), but this trial court on remand found the exact opposite. The court found under factor (b): that Molitor has the “capacity and disposition to give the child love, affection and guidance and to continue the education of the child.” Under factor (c), the court determined that Molitor has the “capacity to provide for the material needs of the child.” With factor (g), the court found that Molitor is a “physically fit” parent. These findings appear almost directly contradictory to the court’s other findings, but since the court made the findings, I would be unwilling to make contrary inferences on appeal.

[¶ 27] In addition to contradictory findings, as the majority acknowledges, the judge does not apply the correct law to a motion to change custody. Again, the majority is willing to make an inference to affirm the lack of analysis. On the change of custody motion, the court erroneously applies the best interest factors without ever making a finding that a material change of circumstances has occurred. The district court should have applied the best interest factors during the initial custody determination.

[¶ 28] The same kind of intemperate language used to describe the father is displayed toward the older child whose custody is no longer in question. Describing that child and two of Hewson’s stepchildren, the judge says that Hewson and her new husband were “providing a home to three drug-abusing juvenile terrorists only they didn’t know it.” Such language leaves me no assurance that this decision is based upon anything more than the judge’s anger. The final decision might very well be the correct result, but this record does not demonstrate that the trial judge applied the law to get there. I would reverse and remand for further findings.

[¶ 29]DALE V. SANDSTROM, J., agrees.


source: Caselaw Access Project

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

license: Public Domain

text:
    2006 ND 152
    STATE of North Dakota, Plaintiff and Appellee v. Steven Arthur TORKELSEN, Defendant and Appellant.
    No. 20050250.
    Supreme Court of North Dakota.
    July 18, 2006.

      Lisa Beckstrom Gibbens (argued), State’s Attorney, Cando, N.D., and Lonnie Olson (on brief), State’s Attorney, Devils Lake, N.D., for plaintiff and appellee.
    David Duane Dusek (argued), East Grand Forks, MN, and William Robert Hartl (appeared), Rugby, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Steven Arthur Torkelsen appealed from a criminal judgment entered on a conditional plea of guilty to class AA felony murder. Because we conclude the initial stop of Torkelsen’s vehicle was illegal, we reverse and remand for further proceedings.

I

[¶ 2] On the morning of June 27, 2004, Tom Belzer, a local farmer, discovered a human body burning in a ditch east of Cando in Towner County. Belzer told his hired hand to call emergency personnel. Before law enforcement officers arrived, Torkelsen, a resident of the area, drove up to the scene in a 1980s model red Ford pickup, stopped the vehicle, stepped out onto the road, and asked Belzer if he needed any help. Belzer, who knew who Torkelsen was, told Torkelsen to leave the area, and Torkelsen complied with the request. When Torkelsen left, he did not clearly move to the side of the “narrow gravel road” as emergency vehicles approached his truck on their way to the scene.

[¶ 3] Upon the arrival of Craig Za-chmeier, a special agent with the North Dakota Bureau of Criminal Investigation, Belzer informed him of Torkelsen’s presence and that Torkelsen did not acknowledge the smoke coming from the body only a few feet away from where Torkelsen had stood. Emergency personnel also informed Zachmeier about Torkelsen’s failure to move to the side of the road when they arrived. Captain Kyle Ternes of the Highway Patrol also responded to the scene and directed two troopers to assist with traffic control along Highway 17 east of Cando. Because Torkelsen had been at the scene before law enforcement officers arrived, a “be on the lookout” bulletin was issued for Torkelsen’s pickup.

[¶ 4] At approximately 1 p.m., Officer Jason Cartier of the Cando Police Department reported that the Department had received an identified citizen report that Torkelsen was seen driving west of Cando on Highway 17 and was “swerving all over the road.” Ternes asked Trooper Frank LaRocque, who was directing traffic on the west side of the crime scene, to head west and find Torkelsen. LaRocque caught up to Torkelsen near Wolford and radioed Ternes. Ternes told LaRocque to follow Torkelsen for a period of time. After LaRocque followed for about three miles, he radioed Ternes and informed him that Torkelsen was not driving erratically or violating any traffic laws and asked for instructions on how to proceed. Ternes told LaRocque to stop Torkelsen and bring him to Cando for questioning, but only after backup officers were in the area. LaRocque was familiar with Torkelsen because Torkelsen had been incarcerated in the Pierce County jail on charges stemming from the violation of a protection order in early 2004, and Torkelsen had told another officer that “he wouldn’t go in peacefully.”

[¶ 5] At 1:30 p.m., after other officers had arrived, LaRocque pulled Torkelsen over and instructed him to put his hands where he could see them and slowly exit the vehicle. Torkelsen complied with the orders given and LaRocque told him he was wanted for questioning and would be handcuffed for his own safety. Torkelsen was cooperative and was transported about 28 miles to Cando for questioning. The pickup was left at the scene of the stop. Torkelsen’s handcuffs were removed upon his arrival at the Towner County Sheriffs office. Testing revealed Torkelsen was not under the influence of alcohol. Torkel-sen was given Miranda warnings and questioned. During the interrogation, Torkelsen allegedly consented to a search of his vehicle and trailer, which revealed incriminating evidence. Torkelsen was formally arrested and taken to the Lake Region Correctional Center at 11:30 p.m. that evening.

[¶ 6] The body found burning in the ditch was ultimately identified as that of Rebecca Flaa, and Torkelsen was charged with her murder. Shortly before trial, Torkelsen moved to dismiss or suppress the evidence on Fourth Amendment grounds. The district court denied Tor-kelsen’s motion, and he entered an Alford conditional guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and N.D.R.Crim.P. 11(a)(2), reserving the right to appeal the district court’s denial of his suppression motion. Torkelsen was sentenced to 50 years in prison, with thirty years suspended.

II

[¶ 7] Torkelsen argues the district court erred in denying his motion to suppress the evidence.

[¶ 8] We apply a deferential standard of review when reviewing a district court decision on a motion to suppress:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Seglen, 2005 ND 124, ¶ 5, 700 N.W.2d 702 (quoting State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1). Questions of law are fully reviewable. Id.

[¶ 9] The district court ruled the initial stop of Torkelsen’s vehicle was valid, not based on the suspicion that he had committed a traffic violation, but because the law enforcement officers had a reasonable and articulable suspicion that Torkel-sen had committed a homicide. The court rejected Torkelsen’s argument that he was arrested at the time of the initial stop because the officers placed him in handcuffs when they transported him to the sheriffs office in Cando. The court ruled that although this constituted a seizure for Fourth Amendment puiposes, the seizure was reasonable given the “safety and security interests involved with [the] serious nature of the crime charged and the fact that [Torkelsen] was seen leaving the place where the body was found.” The court pointed out that it “was not asked to decide nor did it decide the issues of consensual search, authorization for a probationary search, and inevitable discovery of the evidence.”

[¶ 10] Permissible types of law enforcement-citizen encounters include:

(1) arrests, which must be supported by probable cause; (2) Terry stops, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures. See State v. Boyd, 2002 ND 203, ¶ 6, 654 N.W.2d 392; State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994). The State does not argue and the court did not find the first and third types of encounters are applicable in this case. The dispositive issue is whether law enforcement officers had a reasonable and articulable suspicion that Torkelsen had engaged in criminal activity to justify a Terry stop.

[¶ 11] Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot. Anderson v. Director, N.D. Dept. of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d 918. We have said an officer has reasonable and articulable suspicion to stop a vehicle: (1) when the officer relied on an appropriate directive or request for action from another officer; (2) when the officer received tips from police officers or informants, which were then corroborated by the officer’s own observations; or (3) when the officer directly observed illegal activity. Id.

[¶ 12] LaRocque testified he did not observe Torkelsen engage in any illegal activity, and did not corroborate the tip that Torkelsen had been swerving all over the road. However, when one officer relays a directive or request for action to another officer without relaying the underlying facts and circumstances, the directing officer’s knowledge is imputed to the acting officer. See State v. Smith, 2005 ND 21, ¶ 13, 691 N.W.2d 203; State v. Boline, 1998 ND 67, ¶ 37, 575 N.W.2d 906; State v. Miller, 510 N.W.2d 638, 643 (N.D.1994). The issue is whether Ternes’ direction to pull Torkelsen over was supported by a reasonable and articulable suspicion that Torkelsen had engaged in criminal activity.

[¶ 13] We use an objective standard and view the totality of circumstances to determine whether an investigative stop is valid, and we consider whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity. Smith, 2005 ND 21, ¶ 15, 691 N.W.2d 203. In City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466 (quoting City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901 (citations omitted)), we explained:

We do not require an officer to isolate single factors which signal a potential violation of the law; but instead, “officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” When assessing reasonableness, we consider inferences and deductions an investigating officer would make which may elude a layperson.

[¶ 14] In this case, an unidentified woman was found burning in a ditch east of Cando. Before police arrived, Torkel-sen drove by, got out of his vehicle, and asked Belzer if he needed any help. Bel-zer told Torkelsen to leave, and Torkelsen left without commenting on the smoke coming from the body. Torkelsen did not move his vehicle to the side of the narrow gravel road when emergency vehicles approached as he was leaving. Several hours later he was found traveling west of Cando, but he was not violating any traffic laws. LaRoeque knew Torkelsen had a criminal history and “wouldn’t go in peacefully.” We conclude that under the totality of these circumstances a reasonable officer would not be justified in suspecting that Torkelsen had engaged in criminal activity.

[¶ 15] Just as mere presence at the scene of a crime is insufficient to support a warrantless search, see City of Fargo v. Wonder, 2002 ND 142, ¶ 23, 651 N.W.2d 665, “[i]t is axiomatic that presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.” State v. Parker, 834 P.2d 592, 595 (UtahApp.1992). See also Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (“The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct”); State v. Corum, 2003 ND 89, ¶ 13, 663 N.W.2d 151 (although an area’s reputation for criminal activity is an articulable fact on which a police officer may rely, it cannot solely support a finding of reasonable suspicion); Batson v. State, 847 So.2d 1149, 1151 (Fla.App.2003) (“The vehicle’s mere presence near the scene is insufficient to give rise to a reasonable suspicion that its occupants were connected to the recent burglary”); People v. Young, 202 A.D.2d 957, 610 N.Y.S.2d 417, 418 (1994) (“Because defendant’s presence with a number of individuals in a car parked outside the scene of a homicide is as susceptible to an innocent as to a culpable interpretation, that fact did not provide reasonable suspicion that defendant was involved in a crime”).

[¶ 16] Torkelsen was a resident of this rural area. While Torkelsen’s stopping at the scene and offering his assistance may have raised the officers’ subjective suspicions, reasonable suspicion requires more than a “mere hunch.” Smith, 2005 ND 21, ¶ 15, 691 N.W.2d 203. Although the State emphasizes Torkel-sen’s failure to acknowledge the smoldering body, this fact loses much of its significance when considered in conjunction with Belzer’s rather unusual directive that Torkelsen simply leave the area. The “narrow gravel road” obviously made Tor-kelsen’s failure to completely yield to emergency vehicles understandable. The State also relies on Torkelsen “heading out of the Cando area,” apparently suggesting that Torkelsen was fleeing. See Heitzmann, 2001 ND 136, ¶ 19, 632 N.W.2d 1 (“Officers confronted with flight may stop a fugitive and investigate further”). However, LaRoeque observed that Torkelsen was not violating any traffic laws, and when officers finally pulled him over several hours after Torkelsen left the scene, he was only 28 miles from Cando. This scenario hardly suggests that Torkelsen was fleeing the area. Tor-kelsen’s criminal history and warning may have justified the officers’ use of extra caution when pulling him over and transporting him back to Cando. See State v. Anderson, 2006 ND 44, ¶ 24, 710 N.W.2d 392 (officers may use forceable means reasonably necessary to protect their personal safety and maintain the status quo to achieve the purpose of the stop). However, this information is insufficient, in itself, to support a reasonable and articula-ble suspicion that Torkelsen committed a crime. See, e.g., Burrell v. McIlroy, 423 F.3d 1121, 1124 n. 3 (9th Cir.2005) (although prior criminal history cannot alone establish reasonable suspicion to support detention, it is permissible to consider it as part of the totality of circumstances); United States v. Sandoval, 29 F.3d 537, 542 (10th Cir.1994) (same).

[¶ 17] We conclude the stop of Torkel-sen’s vehicle was invalid because the officers lacked reasonable and articulable suspicion that Torkelsen had engaged in criminal activity. Because of our resolution of this issue, it is unnecessary to address the other issues raised.

HI

[¶ 18] We reverse the criminal judgment and remand for further proceedings.

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

SANDSTROM, Justice,

dissenting.

[¶ 20] The majority misapplies the law by parsing the facts rather than taking them as a whole. The majority wrongly discards the individual facts merely because there are other conceivable explanations for them. The majority also fails to consider the seriousness of the offense in deciding whether law enforcement had a reasonable suspicion for the stop. I would affirm the decision of the district court, and I therefore respectfully dissent.

I

[¶ 21] As the majority notes, at ¶ 13, we are to “use an objective standard and view the totality of circumstances to determine whether an investigative stop is valid, and we consider whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity” (citing State v. Smith, 2005 ND 21, ¶ 15, 691 N.W.2d 203). See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”). In that context, the severity of the crime, in this case murder, is important to a Fourth Amendment analysis. State v. Anderson, 2006 ND 44, ¶ 24, 710 N.W.2d 392. As the United States Supreme Court has said:

Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8-9, 105 S.Ct., at 1699-1700 (the question is “whether the totality of the circumstances justified] a particular sort of ... seizure”).

Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865,104 L.Ed.2d 443 (1989).

[¶ 22] Furthermore, law enforcement officers may rely on their common sense when conducting an investigation. Kappel v. Dir., N.D. Dep’t of Transp., 1999 ND 213, ¶ 10, 602 N.W.2d 718. “[T]he reasonable suspicion standard does not require an officer ... to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.” Id. The majority, however, takes each individual fact out of this reasonableness analysis. It examines each fact individually and claims each fact is insufficient in itself to support a reasonable and articu-lable suspicion.

A

[f 23] The first suspicious fact relevant to this murder investigation was Torkel-sen’s presence at the site where the victim’s body was found.

[¶ 24] After Belzer had discovered the smoking body, Torkelsen pulled up in his pickup. They were the only two people at the scene at the time. The record reflects that when Torkelsen stopped, he did not acknowledge the presence of the smoldering body in any way. The majority discounts Torkelsen’s presence by arguing, at ¶ 15, “Just as mere presence at the scene of a crime is insufficient to support a war-rantless search, see City of Fargo v. Wonder, 2002 ND 142, ¶23, 651 N.W.2d 665, ‘[i]t is axiomatic that presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.’ ” While “presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity,” State v. Parker, 834 P.2d 592, 595 (Utah Ct.App.1992) (emphasis added), the officers in this case had more on which to rely. Furthermore, most of the cases the majority cites are factually distinct from the remote encounter on a gravel road in this case. Those eases involved crime scenes in populated areas, where the presence of other people would be far more likely. See Brown v. Texas, 443 U.S. 47, 49, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (“The area of El Paso where appellant was stopped has a high incidence of drug traffic”); Batson v. State, 847 So,2d 1149, 1150 (Fla.App.2003) (“he responded to a call regarding a burglary at 5712 Guava Street.... The burglarized home is two blocks from the end of the street.”); People v. Young, 202 A.D.2d 957, 610 N.Y.S.2d 417, 418 (1994) (“The investigator testified that he requested that defendant be stopped and brought to headquarters based on a reliable informant’s statement that defendant and a number of other men had been sitting in a parked car outside a building where a homicide occurred.”); Parker, at 592 (“three garages in and around a West Jordan subdivision in Salt Lake County were burglarized”). This case involves a crime scene in a rural area where Torkel-sen’s almost immediate arrival after the body was discovered is far more suspicious than the presence of the defendants would have been in the cited cases.

B

[¶25] The second suspicious fact was Torkelsen’s lack of reaction upon seeing the burning body.

[¶ 26] The majority claims “this fact loses much of its significance when considered in conjunction with Belzer’s rather unusual directive that Torkelsen simply leave the area.” Supra at ¶ 16. The majority stops here, however, never explaining why Torkelsen’s reaction is insignificant or what Belzer’s directive has to do with the officers’ suspicion of Torkelsen. The majority also argues, at ¶ 16, that Torkelsen’s presence raised only the officers’ subjective suspicions, but Torkelsen’s presence and reaction were odd enough that Belzer reported them to law enforcement. Apparently, Torkelsen’s presence and reaction were suspicious not only to the officers but also to Belzer. The reasonable inference drawn from Torkelsen’s lack of reaction is that he was not surprised to see the body and possibly had information regarding why the body was there. In any event, Torkelsen did not act as a reasonable person likely would when coming upon a burnt body for the first time.

C

[¶ 27] The third suspicious fact was that on meeting emergency vehicles rushing to the scene, Torkelsen failed to pull over and yield the right of way.

[¶ 28] The record reflects that emergency vehicles were responding with their signal lights activated as Torkelsen was leaving the area. Agent Zachmeier testified he was told that when Torkelsen met the vehicles, “he did not yield to the emergency vehicles.” The majority, at ¶ 16, excuses Torkelsen’s conduct when first meeting the emergency vehicles on the gravel road as “understandable” and treats this fact alone as irrelevant in light of the narrow gravel road on which they traveled. The statute requiring a driver to yield when meeting an emergency vehicle, however, does not provide for an “understandable circumstances” exception or a “narrow gravel road” exception:

Upon the immediate approach of an authorized emergency vehicle displaying a visible flashing, revolving, or rotating blue, white, or red light, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in that position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

N.D.C.C. § 39-10-26(1).

[¶ 29] Torkelsen was required by law to pull as far as he safely could to the side of the road and stop to allow emergency vehicles to pass. In the context of a murder investigation in which Torkelsen was wanted for questioning, the investigating officers could reasonable interpret Torkelsen’s conduct as obstructive and aggressive, especially in light of his presence at the scene, lack of reaction to the body, location when law enforcement stopped him, and known history with law enforcement. Torkelsen’s failure to yield is relevant in the context of developing a reasonable and articulable suspicion while investigating a murder. The majority erroneously isolates this fact and ignores its relevancy.

D

[¶ 30] The fourth suspicious circumstance was Torkelsen’s leaving the area, with the addition of a reliable citizen report that he was driving wildly.

[¶ 31] Law enforcement officers ultimately located Torkelsen not at his home or near Cando, the community near where the murder occurred, but driving west on North Dakota Highway 17. He was located by law enforcement after a known informant reported erratic driving, and he was finally stopped, after backup had arrived, approximately twenty-eight miles west of Cando. The majority apologetically states, “when officers finally pulled him over several hours after Torkelsen left the scene, he was only 28 miles from Cando. This scenario hardly suggests that Torkel-sen was fleeing the area.” The majority takes this fact, again, individually out of the context of the investigation. Torkel-sen was wanted for questioning, either as a suspect or a witness. He was located twenty-eight miles away, and a known informant reported Torkelsen had been driving erratically. While he may not have been attempting to rapidly flee the area, the circumstances of this murder investigation do not suggest that he was out for a Sunday drive. A reasonable person with the same training and experience as these law enforcement officers would act as the officers in this case did and would stop Torkelsen before he was allowed to travel any further to prevent him from potentially compromising this investigation or from actually fleeing. While Torkelsen’s location alone does not suggest rapid flight from the scene of a crime, it does add another relevant fact the officers could rely on.

E

[¶32] The fifth suspicious fact was Torkelsen’s criminal history of domestic violence and history threatening violence against others.

[¶ 33] The record reflects that Torkel-sen had a criminal history of violating a protection order. Torkelsen had also threatened law enforcement, saying “he wouldn’t go peacefully.” The majority discounts Torkelsen’s criminal history and “warnings” to law enforcement as “insufficient, in itself, to support a reasonable and articulable suspicion.... ” Supra at ¶ 16 (emphasis added). By examining this fact by itself, the majority again takes a fact out of the context of a totality-of-the-circumstances analysis. His criminal history and threats towards law enforcement were two more facts the officers could consider. In the context of this murder investigation, the officers were allowed to consider Tor-kelsen’s criminal history, threat, location when stopped, failure to yield to emergency vehicles, presence at the crime scene, and utter lack of reaction upon seeing the burnt body.

F

[¶ 34] The sixth factor is the seriousness of the crime in evaluating the reasonableness of the officer’s action.

[¶ 35] The severity of this crime cannot be disputed. As the United States Supreme Court has said, the test of reasonableness under the Fourth Amendment includes consideration of the severity of the crime at issue, and flight to evade arrest. See Graham, 490 U.S. at 396, 109 S.Ct. 1865; Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

[¶36] Torkelsen was not immediately arrested but was wanted for questioning. Although the officers had not observed Torkelsen committing any illegal acts, all facts known to the officers led them to believe that Torkelsen could have information relevant to the homicide investigation. The officers acted as any reasonable person in the officers’ position would, and therefore they had a reasonable and artic-ulable suspicion to stop Torkelsen’s vehicle.

II

[¶ 37] Torkelsen was seen at the crime scene shortly after an apparent homicide. He did not seem surprised by the sight of a burning body. He had a known history of violence and threatened violence. He failed to yield to approaching emergency vehicles. He was leaving the community where the crime had apparently been committed under circumstances that suggested flight. These factors taken together provided the officers with a reasonable suspicion to stop Torkelsen for questioning about an apparent homicide. I would affirm.

[¶ 38] Dale V. Sandstrom


author: KONENKAMP, Justice.

text:
    2006 SD 57
    Carl TOBEN, Plaintiff and Appellant, v. Douglas & Charlene JESKE, Defendants and Appellees.
    Nos. 23852, 23859.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2006.
    Decided June 28, 2006.

      Kelly Stricherz of Kettering Law Office, Yankton, SD, for plaintiff and appellant.
    Acie W. Matthews, Sioux Falls, SD, for defendants and appellees.
   KONENKAMP, Justice.

[¶ 1.] Plaintiff commenced this personal injury action three years after he was injured by a horse owned by his employers. Although the circuit court denied a motion to dismiss on the statute of limitations defense, it granted summary judgment on the ground that the Equine Activities Act exempted the employer defendants from liability. On appeal, plaintiff asserts that the court erred in granting summary judgment because genuine issues of material fact remain on whether an exception to the Act applies. By notice of review, defendants contend that the court erred when it held that the suit was timely. We affirm on the timeliness issue and reverse the grant of summary judgment.

Background

[¶2.] Defendants Douglas and Charlene Jeske own land near Utica, South Dakota, where they keep a stable and corral for their riding horses. At age eighteen, plaintiff, Carl Toben, was employed by the Jeskes as a farmhand. In Toben’s words, he did “everything from riding horses to loading feed, delivering feed, fencing, feeding horses, working cattle.” To train and condition the horses, Toben was expected to ride them as one of his job duties. Douglas Jeske told Toben “to make sure he always had a rein in his hand when mounting horses.” Yet the Jeskes would not pay Toben for his riding time. According to Toben,

Doug and Char didn’t think I was experienced enough to, or didn’t think I was good enough, or whatever, to be doing that, to be paid to be doing that. They thought I needed more experience. Well, they told me to quit writing it down on your time card and we’ll just give you a saddle for doing it. I never did receive that saddle.

Nonetheless, according to Toben, the Jeskes “want[ed] their horses rode.” Indeed, Toben wanted to ride them, for he was interested in gaining experience in breaking horses. He had ridden other horses before without being injured. The horses Toben had broken earlier, however, were “green broke,” meaning that they had already been in the process of learning to accept a saddle, bridle, and rider.

[¶ 8.] On July 2, 2001, the Jeskes asked Toben to ride Blaze. They had purchased this “unbroke” colt a year earlier, when it was three months old. According to Douglas Jeske, Blaze “was in the process of being broke so that it could be used for riding purposes and demonstration purposes.” Toben had ridden him perhaps a dozen times before. When he mounted Blaze this time, however, the horse immediately bucked him off. Toben fell to the ground and was unable to get up. An ambulance was called. As a result of his injuries, Toben incurred substantial medical bills and could not work for an extended time. Three years later, on July 2, 2004, Toben commenced suit against the Jeskes.

[¶ 4.] In response to the lawsuit, the Jeskes moved to dismiss on the ground that the statute of limitations had expired. Using the day of injury as the beginning date, the Jeskes argued that the limitations period expired on July 1, 2004. The circuit court denied the Jeskes’ motion. Discovery proceeded, and the Jeskes moved for summary judgment. They asserted that the Equine Activities Act in SDCL 42-11-2 exempted them from liability. Toben invoked the exceptions under SDCL 42-11-3.

[¶ 5.] In granting summary judgment for the Jeskes, the circuit court concluded that none of the exceptions in SDCL 42-11-3 applied. Toben appeals, and, by notice of review, the Jeskes also appeal contending that the circuit court erred in finding that the suit was not barred by the statute of limitations.

Analysis and Decision

1. Statute of Limitations

[¶ 6.] We address the Jeskes’ notice of review first. They contend that the statute of limitations expired on Toben’s claim.

Toben was injured on July 2, 2001. Under SDCL 15-2-14(3), he had three years to bring his personal injury action. The Jeskes cite SDCL 2-14^-2(36), which states that a “year” means “a calendar year.” For the term “calendar year” they cite a legal dictionary that defines a “year” as “[tjwelve calendar months beginning January 1 and ending December 31.” See Black’s Law Dictionary (8th ed. 2004). From this, they reason that if Toben had three years under the Jeskes’ definition of a year, the statute of limitations would include the first day, and Toben was required to commence his action by July 1, 2004. The Jeskes were served on July 2, 2004.

[¶ 7.] The calculation of time for commencement of civil actions in South Dakota is controlled by SDCL 15-6-6(a). That statute provides in part:

In computing any period of time prescribed or allowed by this chapter, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

SDCL 15-6-6(a). Despite the clear import of this statute, the Jeskes insist that the first day should be included, and they direct us to precedent from other jurisdictions. They further assert that we should not interpret SDCL 15-6-6(a) to apply in this case because it would “contravene SDCL 15-2-14 and SDCL 2-14-1.”

[¶ 8.] We conclude that the Jeskes’ argument is without merit. First, out-of-state cases have no bearing on our procedures because those decisions interpret dissimilar statutes. Second, SDCL 15-6-6(a) unquestionably applies to SDCL 15-2-14(3). Our rules in SDCL Title 15 govern the procedures for all civil suits in the circuit courts of South Dakota. See SDCL 15-6-1. SDCL 15-2-14(3) requires a plaintiff to commence an action within three years, and SDCL 15-6-6(a) prescribes how those three years are to be calculated. Toben was injured on July 2, 2001. The three years began on July 3, 2001, and ended on July 2, 2004. Because Toben commenced his action on July 2, 2004, within three years, the circuit court did not err when it held that Toben’s claim was timely.

2. Liability Under the Equine Activities Act

[¶ 9.] We next examine Toben’s issue on whether summary judgment was improper. “When reviewing a grant of summary judgment, we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15 — 6—56(c); Keystone Plaza Condominiums Ass’n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846). We view the evidence in a light most favorable to the nonmoving party. Wilson v. Great Northern Railway Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). Both sides concede that the Equine Activities Act (SDCL 42-11-2) applies in this case. Toben asserts that the exception under SDCL 42-11-3(1) subjects the Jeskes to potential liability because he “was inexperienced with unbroken horses, that the particular horse was unbroken, and that [the Jeskes] knew of his inexperience and that his representations to [the Jeskes] were that of inexperience.”

[¶ 10.] For the circuit court’s consideration, the parties offered Toben’s affidavit and deposition testimony, an affidavit from equine expert Mary Griffith, and an affidavit from Douglas Jeske. The record on appeal, however, does not contain Toben’s affidavit. Instead, the affidavit is in the appendix to Toben’s reply brief to this Court. Accordingly, the Jeskes claim that we cannot consider the assertions made by Toben in this affidavit. In response, To-ben argues that because opposing counsel and the circuit court transcript both refer to his affidavit, “it is part of the record in this case and should be considered.”

[¶ 11.] It is well settled that “[w]hen reviewing a grant of summary judgment, we are not bound by the trial court’s factual findings, but rather must undertake an independent review of the record.” Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 7, 580 N.W.2d 606, 609 (citing Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 6, 556 N.W.2d 68, 70). It is immaterial that the court referred to the information contained in Toben’s affidavit or that the Jeskes acknowledge the affidavit in their brief. Our review is restricted to facts contained within the settled record. Id. ¶ 9 (citing Nauman v. Nauman, 336 N.W.2d 662, 664 (S.D.1983)). Moreover, “all parties are obligated to see that the settled record contains all matters necessary for the disposition of the issues raised on appeal, [and] the ultimate responsibility for presenting an adequate record on appeal falls upon the appellant.” Caneva v. Miners & Merchants Bank, 335 N.W.2d 339, 342 (S.D.1983). Because To-ben’s affidavit is not part of the settled record, we cannot consider it on appeal.

[¶ 12.] The essential question here is whether the exception in SDCL 42-11-3(1) applies. This exception states in part:

Nothing in this chapter prevents or limits the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or other person:
(1) ... provides the animal and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability[.]

SDCL 42-11-3(1). Toben argues that the Jeskes failed to make reasonable and prudent efforts to determine his ability “to engage safely in the breaking of Blaze” and failed to determine his ability to safely manage Blaze considering Toben’s representations of his ability.

[¶ 13.] In granting the Jeskes’ motion for summary judgment, the circuit court ruled that Toben “was an experienced horse person,” that he “had ridden the horse in question,” and that he “had extensive experience in the horse breaking process, having ridden horses of other persons[.]” The court held that the Jeskes “made reasonable and prudent efforts to determine the ability of [Toben] to engage safely in the equine activity and had determined the ability of [Toben] to safely manage the animal in question[.]”

[¶ 14.] While it is undisputed that Toben rode Blaze and other horses in the past, there are material issues of fact in dispute on the overall level of experience Toben had with horses, and specifically on his range of experience in riding unbroken horses. Whether Blaze was broken, unbroken, or “green broke” when Toben was injured cannot be definitively established in the record. Indeed, the determination of this fact bears on whether the Jeskes were reasonable and prudent in concluding that Toben was able to ride Blaze. On this point, we think it significant that Charlene Jeske had earlier attempted to ride Blaze herself and, according to Toben, she was “face planted” on the ground when the horse bucked her off. Moreover, the Jeskes indicated that Toben had expressed an interest in the process of breaking horses and that they referred him to other people who might provide him with additional experience. These facts all bear on the Jeskes’ knowledge of the nature of Toben’s experience and the disposition of their horse.

[¶ 15.] We also believe it significant that although the Jeskes considered it part of Toben's duties to ride their horses, they would not pay him for his time spent riding. Toben’s testimony on their reason for not paying him, that the Jeskes did not think he was experienced enough, raises a genuine dispute on whether the Jeskes made reasonable and prudent efforts to determine Toben’s ability to ride Blaze safely. Additionally, it is reasonable to infer that when the Jeskes provided Toben instructions regarding the horses, i.e., that he should always use the reins when mounting, this also supports the notion that they considered him inexperienced.

[¶ 16.] That Toben had ridden Blaze in the past without incident, or that he had experience riding other peoples’ horses is insufficient to sustain the motion for summary judgment in this case. Such facts do not make it undisputed that the Jeskes made reasonable and prudent efforts to determine Toben’s ability to ride Blaze as required by SDCL 42-11-3(1). “ ‘[S]ummary judgment is not a substitute for trial; a belief that the non-moving party will not prevail at trial is not an appropriate basis for granting the motion on issues not shown to be a sham, frivolous or unsubstantiated; summary judgment is an extreme remedy and should be awarded only when the truth is clear[;] and reasonable doubts touching upon the existence of a genuine issue of material fact should be resolved against the movant.’ ” Keystone Plaza Condominiums Ass’n, 2004 SD 28, ¶ 15, 676 N.W.2d at 847 (citations omitted) (alterations in original).. After reviewing the evidence and its reasonable inferences, we conclude that summary judgment should not have been granted.

[¶ 17.] Affirmed in part, reversed in part and remanded.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . That statute provides:
      No equine activity sponsor, equine professional, doctor of veterinary medicine, or any other person, is liable for an injury to or the death of a participant resulting from the inherent risks of equine activities. SDCL 42-11-2.

      . In the circuit court, Toben also invoked the exception in SDCL 42-11-3(3) (commission of acts or omissions constituting willful or wanton disregard for safety). He has not asserted that issue here, thus we deem it abandoned.