author: LANSING, Judge.

text:
    In re Mark D. RUTZ, Petitioner, Respondent, v. Irina Z. RUTZ, Appellant.
    No. CX-01-2126.
    Court of Appeals of Minnesota.
    May 28, 2002.

      Karim El-Ghazzawy, El-Ghazzawy Law Office, Minneapolis, MN, for respondent.
    John E. Mack, Mack & Daby, New London, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and STONEBURNER, Judge.
   OPINION

LANSING, Judge.

Three months after entry of judgment dissolving Mark and Irina Rutz’s marriage, Irina Rutz petitioned to move the residence of their two children from Minnesota to Hawaii. The district court, relying in part on statutory provisions governing parenting plans, denied the motion. Although we conclude that the dissolution judgment did not create a parenting plan as defined by Minn.Stat. § 518.1705 (2000), we affirm the denial of the motion under Minn.Stat. § 518.175, subd. 3 (Supp.2001), because the record supports the district court’s finding that the purpose of the proposed move was to interfere with Mark Rutz’s parenting time.

FACTS

Irina and Mark Rutz are the parents of two children, one born in 1995 and one in 1997. In 1998, Irina Rutz moved from the family home in Hutchinson to Willmar, and Mark Rutz petitioned for dissolution. The dissolution proceedings were acrimonious, and the Rutzes were unable to agree on visitation. Irina Rutz alleged that Mark Rutz abused the parties’ daughter; the allegations were not substantiated. Mark Rutz pleaded guilty to disorderly conduct stemming from a dispute with Irina Rutz and voluntarily permitted the entry of an order for protection prohibiting his contact with Irina Rutz.

In August 2000, Irina Rutz moved from Willmar to St. Paul to take graduate-level agricultural classes. She had earned the equivalent of a doctorate in agronomy and plant genetics before emigrating from the former Soviet Union in 1994. She did not consult with Mark Rutz before she and the children moved to St. Paul. Mark Rutz remained in Hutchinson.

The district court entered judgment dissolving the Rutzes’ marriage in May 2001. At that time, Mark Rutz, who has a graduate degree and had been employed at Hutchinson Technologies, was unemployed and receiving public assistance because of an emotional disability. Irina Rutz was a student with the potential to earn a significant income in agricultural science after completion of her graduate-level courses. The court placed sole physical custody of the children with Irina Rutz and joint legal custody with both parents. The court expressed concern that either parent might attempt to limit the other’s parental role.

In June 2001, the social security administration approved disability benefits for Mark Rutz retroactive to May 1999. About the same time, Irina Rutz began interviewing for employment in Hawaii. In July, Irina Rutz brought a motion to remove the residence of the children to Hawaii. Her supporting affidavit alleged that she had employment opportunities in Hawaii, her older child had an interest in marine biology, and she would facilitate Mark Rutz’s visitation with the children in Hawaii.

Mark Rutz opposed the motion and submitted an affidavit to support his allegation that Irina Rutz’s purpose in moving to Hawaii was to limit his parenting time with the children. His affidavit stated that Iri-na Rutz was not facilitating visitation and that he had not been able to communicate with the children since they moved to St. Paul in 1998.

Following an evidentiary hearing, the district court denied the motion to move the children’s residence. The court found that Irina Rutz had no assurance of getting a job in Hawaii, the proposed removal was an attempt to interfere with Mark Rutz’s parenting time, and the motion was made less than a year after entry of the dissolution judgment and did not satisfy the modification provisions of Minn.Stat. § 518.18(a), (c) (2000). Irina Rutz appeals.

ISSUES

I. Did the parties’ dissolution judgment create a parenting plan?

II. Did the district court abuse its discretion by denying Irina Rutz’s motion to remove the children’s residence from Minnesota?

ANALYSIS

I

The standard that applies to removing a child’s residence from Minnesota in cases governed by parenting plans under Minn.Stat. § 518.1705 may be altered by parental agreement to vary from the standard for cases involving a conventional custody arrangement. Compare Minn. Stat. § 518.1705, subd. 7 (parenting plan), with Minn.Stat. § 518.175, subd. 3. (conventional standard). The district court did not specifically address whether the judgment dissolving the parties’ marriage was intended to create a parenting plan, but its order denying the motion relies on statutory provisions governing parenting plans. A parenting plan “must” include, among other requirements, “a method of dispute resolution.” Minn.Stat. § 518.1705, subd. 2(a)(3). The Rutzes agree that their judgment lacks a method of dispute resolution, but Mark Rutz contends that this omission is not dispositive.

Whether a dispute-resolution mechanism is necessary to create a parenting plan requires interpretation of Minn. Stat. § 518.1705, the parenting-plan statute. Statutory interpretation is a legal question reviewed de novo. In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn. 1999). <fWhen the language of a statute is plain and unambiguous, it * * * must be given effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn.2001). The parenting-plan statute states that a parenting plan “must” include a dispute-resolution mechanism. Minn.Stat. § 518.1705, subd. 2(a). In statutes, “must” can be a synonym for the mandatory “shall,” but when the context suggests otherwise, “must” need not have a mandatory meaning. Lenz v. Coon Creek Watershed Disk, 278 Minn. 1, 11, 153 N.W.2d 209, 217 (1967); see Minn.Stat. § 645.44, subd. 16 (2000) (stating “shall” is mandatory). The statement that a parenting plan “must” include a dispute-resolution mechanism is unambiguous, and the context of that requirement does not suggest an alternative reading. Minn.Stat. § 518.1705, subd. 2(a). Furthermore, the inclusion of a dispute-resolution mechanism is central to the purpose and function of parenting plans that are designed to provide comprehensive methods of resolving custody, visitation, and access issues. The lack of a dispute-resolution mechanism in the parties’ dissolution judgment, which does not specifically state that a parenting plan has been agreed to or imposed by the court, means that the judgment did not create a parenting plan.

II

Removal decisions for custodial arrangements not involving parenting plans are reviewed to determine whether “the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996) (quoting Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985)). Because the court apparently presumed that the parties’ dissolution judgment created a parenting plan, the order does not contain a conventional removal analysis. See id. The district court did, however, find that Irina Rutz’s proposed removal was intended to interfere with Mark Rutz’s parenting time and that this fact compelled denial of Irina Rutz’s motion.

When one parent has been given parenting time and the child resides with the other parent, the parent with whom a child resides “shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent.” Minn.Stat. § 518.175, subd. 3. Because it is undisputed that the dissolution judgment provided Mark Rutz with parenting time and because Mark Rutz did not consent to Irina Rutz’s proposed removal, her proposed removal was possible only with court permission. If the purpose of a proposed removal is to “interfere” with the other parent’s parenting time, the court “shall not” permit the removal. Id.

Citing her own testimony that she would allow Mark Rutz visitation and would abide by the district court’s visitation order, Irina Rutz alleges that the record does not support the district court’s finding that her motion was an attempt to interfere with Mark Rutz’s parenting time. Irina Rutz, however, admits that “[t]he district court did not believe her.” Appellate courts do not engage in a redetermi-nation of facts but defer to the district court’s credibility determinations and to findings that are supported by the record. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. Review is conducted in the light most favorable to the underlying findings. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000).

Applying these standards, the record establishes that (a) both the dissolution and removal proceedings were acrimonious and visitation has been problematic since Irina Rutz was awarded temporary custody; (b) the same district court judge presided in both proceedings, was familiar with the facts, and had an opportunity to observe both parents in court; (c) in the dissolution proceeding, both the district court and the custody evaluator expressed concern that giving one parent sole control over the children could result in that parent seeking to diminish the other parent’s role in the children’s lives; (d) in the removal proceeding, Irina Rutz stated that she wants to move to Hawaii because, among other things, she has better job prospects there and the parties’ son has an interest in marine biology; (e) Irina Rutz unsuccessfully applied for only two jobs in her field in Minnesota, no jobs in her field in Wisconsin or Iowa, and no jobs outside her field in Minnesota, Wisconsin, or Iowa; (f) Irina Rutz hás no firm job offer in her field in Hawaii; (g) several jobs she has considered in Hawaii involve working as a waitress in restaurants, including at least one franchise that also does business in Minnesota; (h) the Rutzes’ son — whose interest in marine biology is advanced in support of the move — is six years old; (i) Mark Rutz testified that, since Irina Rutz moved out of the marital home, she has obstructed his ability to communicate with the children and to arrange visitation with the children; and (j) Mark Rutz testified that Irina Rutz did not consult him about her move to St. Paul or her proposed move to Hawaii.

We reject four arguments advanced by Irina Rutz against the district court’s finding that the purpose of the move is to interfere with Mark Rutz’s parenting time. First, Irina Rutz alleges that an intent to interfere is insufficient to deny her motion because the critical issue is whether a new parenting-time arrangement can be ordered that would allow Mark Rutz to maintain his relationship with the children. This argument is defeated by the statutory provision prohibiting the court from allowing removal if the purpose of the move is to interfere with parenting time. Minn.Stat. § 518.175, subd. 3. Furthermore, it is highly speculative that a new schedule of parenting time would allow Mark Rutz to retain his relationship with the children in light of the attendant transportation cost and both parties’ unemployed status.

Second, referring to a presumption favoring a custodial parent’s ability to remove the residence of children from Minnesota recognized by Silbaugh and Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), Irina Rutz also argues that this record is insufficient to overcome that presumption. The presumption, however, is defeated when the party opposing removal shows that the removal is intended to interfere with visitation. Silbaugh, 543 N.W.2d at 641; Auge, 334 N.W.2d at 400.

Third, Irina Rutz notes that under Sharp v. Bilbro, 614 N.W.2d 260 (Minn.App.2000), review denied (Minn. Sept. 26, 2000), and Dabill v. Dabill, 514 N.W.2d 590 (Minn.App.1994), a denial of, or interference with, visitatióh is not controlling in custody-modification proceedings, but must be considered along with other factors, and argues that visitation problems should not preclude removal. But Sharp and Dabill did not involve removal. And in the removal context, Minn.Stat. § 518.175, subd. 3, forbids removal when the intent of the party seeking removal is to interfere with the other parent’s parenting time. For these reasons, Sharp and Dabill are distinguishable. ■ ■

Fourth, Irina Rutz argues that Minn.Stat. § 518.175, subd. 3, and Minn. Stat. § 518.18(a) unconstitutionally violate her right to travel if, without proof that her proposed move is contrary to the children’s best interests, those statutes prevent her from removing the children’s residence from Minnesota. Appellate courts address only questions presented to and considered by the district court. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). The constitutionality of Minn.Stat. § 518.175 was not presented to or addressed by the district court. Also, Irina Rutz did not, as is required by Minn. R. Civ.App. P. 144, notify the attorney general of an appellate challenge to the constitutionality of Minn.Stat. § 518.18(a). And her notice to the attorney general of the constitutional challenge she made to that statute in district court is insufficient to satisfy rule 144. Minn. R. Civ.App. P. 144 cmt.; Maxwell Communications v. Webb Publ’g Co., 518 N.W.2d 830, 834 n. 6 (Minn.1994). Therefore, constitutional challenges are not properly before us, and we decline to address them. See Theorin v. Ditec Corp., 377 N.W.2d 437, 440 n. 1 (Minn.1985).

The district court’s finding that Irina Rutz intended to interfere with Mark Rutz’s visitation is supported by the record, and the district court correctly applied Minn.Stat. § 518.175, subd. 3, to deny Iri-na Rutz’s removal motion. Therefore, we affirm the district court’s denial of Irina Rutz’s motion to remove the children’s residence. from Minnesota.

Because of our resolution of the appeal, we decline to address Mark Rutz’s motion to strike portions of Irina Rutz’s brief.

DECISION

Th$ judgment dissolving the parties’ marriage lacked a method for resolving disputes, and, thus, it did not create a parenting plan. The record supports the finding that Irina Rutz’s purpose in seeking to remove the children’s residence from Minnesota was to interfere with Mark Rutz’s parenting time. Therefore, the district court did not abuse its discretion by denying Irina Rutz’s motion to remove the children’s residence from Minnesota.

Affirmed.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    In the Matter of Thomas DANIEL FOR The ESTABLISHMENT OF CARTWAY.
    No. CX-01-1820.
    Court of Appeals of Minnesota.
    May 28, 2002.
    James R. Cope, Andrew R. Peterson, Virginia, MN, for appellant Donald Schoch.

      Alan L. Mitchell, St. Louis County Attorney, Timothy 0. Lee, Assistant County Attorney, Duluth, MN, for respondent St. Louis County.
    Considered and decided by SHUMAKER, Presiding Judge, KALITOWSKI, Judge, and WILLIS, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant challenges the district court’s grant of summary judgment affirming the St. Louis County Board of Commissioners’ decision to grant Daniel’s petition for a cartway over appellant’s land. Appellant argues that lake-only access is sufficient access within the meaning of Minn.Stat. § 164.08, subd. 2(a) (2000), and Daniel’s petition for a cartway should have been denied. Because lake-only access is not sufficient access within the meaning of the statute, we affirm.

FACTS

In 1995, Thomas Daniel bought lakefront acreage on Lake Vermillion. Appellant Donald Schoch owns Lake Vermillion land that abuts Daniel’s property. Daniel’s land can be reached either by crossing the lake or by traveling upon other people’s lands. Until 1999, Daniel always used the lake to reach his property.

A heavy windstorm on July 4, 1999, toppled trees throughout the Lake Vermillion area. After the storm, Schoch built a primitive road on his land and partly on state-owned land to use in removing felled timber and debris. Daniel asked Schoch if he could use the road for the same purpose. Schoch said that he could not.

Daniel then petitioned the St. Louis County Board of Commissioners for the grant of a cartway, which would be located primarily on Schoch’s primitive road. The board granted the cartway, finding that Daniel “does not have access to his property except across the property of others” and concluding that “the requested cart-way is the most appropriate means of access” to Daniel’s land. Schoch appealed to the district court.

Schoch also wrote to the department of natural resources to inquire whether Daniel could use DNR winter roads to remove the trees and debris from his property. The DNR indicated its willingness to allow use of winter roads:

The DNR Division of Forestry has harvested timber in the past in this locale using a network of winter roads. We are happy to facilitate reasonable requests to use our network of winter roads for timber management purposes.

After Schoch appealed the board’s decision to the district court, the county moved for summary judgment. The district court granted the motion, holding that the board did not abuse its legislative discretion in granting the cartway. Schoch appeals from the summary judgment.

ISSUES

1. Did the district court err in granting summary judgment because, as a matter of law, it found that there was no legal definition of the term “access” in the context of Minn.Stat. § 164.08, subd. 2 (2000)?

2. Did the district court err in not ordering an evidentiary hearing to determine whether Daniel had access within the statutory meaning of Minn.Stat. § 164.08, subd. 2 (2000)?

ANALYSIS

On appeal from summary judgment, we ask whether there exists any genuine issue of material fact for trial and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

There is no dispute about the ways in which Daniel can reach his property. Thus, there is no fact issue for trial. The question for resolution is the meaning of the word “access” in the law under which the board granted Daniel permission to erect a cartway. The application of a statute to undisputed facts results in a legal conclusion, which we review de novo. Lef-io v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

If a landowner has no access to his property except over the lands of others, a municipal board may grant a cartway over those lands:

Upon petition presented to the town board by the owner of a tract of land containing at least five acres, who has no access thereto except over the lands of others * * *, the town board by resolution shall establish a cartway at least two rods wide connecting the petitioner’s land with a public road.

Minn.Stat. § 164.08, subd. 2(a) (2000).

Schoch contends that Daniel does not qualify for the grant of a cartway because he has access to his land from Lake Vermillion and he could also have access over DNR winter roads.

Because the term “access” in section 164.08, subd. 2(a), is ambiguous as to its scope, we may properly construe the term. See Minn.Stat. § 645.16 (2000) (instructing that when the words of a law are not explicit, the intention of the legislature may be ascertained by considering various factors). Among the factors we may consider in ascertaining the intent of the statute are “the mischief to be remedied,” “the object to be attained,” and “the consequences of a particular interpretation.” Id. And we are to presume that the statute is not intended to produce an unreasonable result. Minn.Stat. § 645.17 (2000).

It is apparent that the mischief to be remedied is the predicament of a landowner who has no way to reach a public road from his property except by crossing lands owned by others. The object of the statute is to provide a remedy for the mischief by empowering the governing municipal body to grant to the landowner a cartway and thereby to allow the lawful crossing of others’ properties. Of course, even when we consider the statutory factors of the mischief to be remedied and the object of the legislation, we might still reasonably conclude that lake access satisfies legislative intent.

But the lake-access interpretation is problematic because inevitably the vicissitudes of the Minnesota climate can produce conditions that will prevent even lake access. Seasonal transformations might create ice on the lake that is too thin to traverse by foot or vehicle and yet is too thick to navigate by watercraft. Thus, the consequence of the lake-access interpretation is that the legislature intended that access less than 100% of the time would nevertheless be sufficient to disqualify a landowner from eligibility for a cartway. This would not be a reasonable interpretation of the cartway statute, and we reject it as being indicative of probable legislative intent.

Although the parties have cited no controlling authorities, caselaw gives us some guidance in reaching the conclusion that “access” as used in the cartway statute does not include lake access. In State ex rel. Rose v. Town of Greenwood, 220 Minn. 508, 20 N.W.2d 345 (1945), the court determined whether the petitioner had access to a town road from his land. The evidence showed that petitioner owned three parcels of land designated as lots one, two, and seven. Lot one was a half-acre and was unused. The town road could be reached through this lot. However, lot one was completely separated from lots two and seven by a lake. Lots two and seven totaled 92 acres and constituted petitioner’s farm. Id. at 509, 513, 20 N.W.2d at 346-48.

Although petitioner was able to reach the town road from lot one, he was not able to reach the road from lots two and seven because of the lake. Id. at 513, 20 N.W.2d at 348. The evidence showed that petitioner once had access to the town road from his farm by another road on. the west side of the lake, but petitioner had granted all access rights to a third party. Id. at 514, 20 N.W.2d at 348. There was another road that petitioner used by license or permission revocable at will, but the license or permission had been revoked. Id. Finally, the evidence showed that the lake could be navigated by rowboat, but that it was muddy and “it was impracticable to build a road across it.” Id. at 513-14, 20 N.W.2d at 348. Based upon this evidence, the court found that petitioner “was entitled to a cartway.” Id. at 514, 20 N.W.2d at 348.

Similarly, Daniel only has direct access to his land over Lake Vermillion. It is impractical to build a road across the lake, and thus Daniel has no other access to a public road except over the land of others.

Schoch also urges that, because the DNR said it would allow use of winter roads for “timber management purposes,” Daniel would have access through those roads. The district court considered evidence of the DNR’s offer but determined that the permissive use of the winter roads was neither certain nor permanent and that the county board had no authority to require the DNR to allow Daniel to use the winter roads. The district court’s ruling is supported by Kroyer v. Bd. of Supervisors, 202 Minn. 41, 277 N.W. 234 (1938). In that case, the supreme court held that the landowner was entitled to a cartway because his access to a public road was over private property which that be crossed only with the property owner’s consent. Id. at 42-43, 277 N.W. at 235.

Schoch relies principally on Roemer v. Bd. of Supervisors of Elysian Township, 283 Minn. 288, 167 N.W.2d 497 (1969), and Mackie v. United States, 194 F.Supp. 306 (D.Minn.1961), to support his argument that Daniel has access to a public road. The Roemer court concluded that the cart-way statute “does not contemplate establishing an alternative right-of-way where an owner already has means of ingress and egress.” Roemer, 283 Minn, at 291, 167 N.W.2d at 499. Mackie involved a claim of an implied easement by necessity. Mack-ie, 194 F.Supp. at 307.

Roemer was premised on a determination that the landowner already had a means of ingress and egress. Here, the board and the district court determined that Daniel does not have a means of ingress or egress across land. Because we have interpreted the cartway statute to require access by land and not by water, we too conclude that Daniel does not have a means of ingress from and egress to a public road. Thus, Roemer does not control.

Mackie, a ■ federal district court case, dealt with a common-law implied easement by necessity. Although there might be similarities between a common-law easement by necessity and a statutory cartway, we are called upon to interpret and apply the statute and not the common law. Thus, Mackie is not instructive.

Schoch contends that he is entitled to a fact hearing to determine whether Daniel has access within the meaning of the cartway statute. But there is no genuine fact issue for trial. Daniel does not dispute the fact that he can and does use the lake to gain access to his property. Thus, whether he has some type of access is not in issue. The question is whether lake access is sufficient access under the statute to make Daniel ineligible for a cartway. This statutory interpretation is purely a matter of law.

Furthermore, Schoch provided no evidence at the summary-judgment stage to show the existence of any genuine issue of material fact. See Minn. R. Civ. P. 56.05 (party resisting summary-judgment motion must present specific facts showing a genuine issue for trial); DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (party resisting summary judgment must do more than rest on mere averments; a genuine issue must be established by substantial evidence).

Finally, Schoch has included in his index materials presumably from the proceedings before the county board. Except for pages 1-27 and 38, none of the items in the index was included in the district court file, and, therefore, are not properly part of the appellate court record and cannot be considered. See Minn. R. Civ.App. P. 110.01 (the record on appeal consists of papers filed in the district court, the exhibits, and the transcript); Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993) (we will strike documents included in a party’s brief that are not part of the appellate record). Since these documents were not before the district court in deciding whether to grant summary judgment, we will not consider these documents on appeal.

We also note that the board’s order was not included in the district court file, but since Schoch challenges the board’s order, and the district court refers to specific conclusions in the board’s order, we will presume that the board’s order was considered by the district court and is part of the district court record. Cf. Rigwald v. Rigwald, 423 N.W.2d, 701, 704 n. 5 (Minn.App.1988) (taking notice of document not part of district court record which was “critical” to the appeal).

In its brief, the county refers to statements Schoch made at the hearing before the board, but the transcript of that hearing was not made a part of the district court record. We may selectively disregard improper references to evidence outside the record without striking the entire brief. AFSCME Council No. H v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App.1995), review denied (Minn. May 16 & June 14, 1995). Thus, statements Schoch made at the board’s hearing and the improper documents in his index are stricken because neither is part of the appellate record. See Minn. R. Civ.App. P. 110.01 (the record on appeal consists of papers filed in the district court, the exhibits, and the transcript).

DECISION

The district court did not err in granting summary judgment, affirming the determination of the St. Louis County Board of Commissioners that a landowner did not have “access” to his property when the only means of ingress and egress was over a lake.

Affirmed.


author: HARTEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Joel Robert HENNING, Appellant.
    No. C9-01-1985.
    Court of Appeals of Minnesota.
    May 28, 2002.
    Gary A. Gittus, George F. Restovich & Associates, Rochester, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Terry L. Adkins, Rochester City Attorney, Peter D. Magnuson, Daniel D. Derner, Assistant City Attorneys, Rochester, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, HARTEN, Judge, and WILLIS, Judge.
   OPINION

HARTEN, Judge.

Appellant challenges his conviction of driving after revocation and having no driver’s license in his possession, arguing that special series license plates do hot provide an articulable suspicion to stop a vehicle. He also argues that Minn.Stat. § 168.0422 (1998), authorizing traffic stops based solely on special series license plates, is unconstitutional under the Fourth Amendment to the United States Constitution and Article 1, Section 10, of the Minnesota Constitution. Because we conclude that appellant implicitly consented to these stops and that the statute is not unconstitutional, we affirm in part and reverse in part.

FACTS

Minnesota law requires the impoundment of vehicle license plates when a vehicle’s owner is convicted of driving after the revocation of a driver’s license. Minn.Stat. § 168.041, subd. 1(a) (1998). . Plates are also impounded if a vehicle owner gives another person permission to drive the vehicle, knowing that the other person’s driver’s license has been revoked. Minn. Stat. § 168.041, subd. 1(b) (1998). An owner or violator may apply for special series license plates if the owner or violator has a limited driver’s license or if a family member has a valid driver’s license. Minn.Stat. § 168.041, subd. 6 (1998). Minnesota law permits the police to stop a vehicle solely because the vehicle displays special series license plates. Minn.Stat. § 168.0422 (1998).

On 12 July 2000, an Olmsted County sheriffs deputy observed and stopped a car bearing special series license plate number WZ1066. Appellant Joel Henning, the driver, identified himself and stated that he did not have a valid driver’s license. The deputy testified that appellant said, “he knew he could get stopped for [having the plates] * * * but [he was] under the impression that there had to be some other reason” for the stop.

The deputy ran appellant’s name on his mobile communications terminal and discovered that appellant’s driver’s license had been revoked. The deputy then returned to the vehicle and issued appellant a citation for driving after revocation and for driving without being in possession of a driver’s license. At an omnibus hearing, the deputy testified that the special series license plate was his only reason for stopping appellant’s vehicle. Appellant argued that Minn.Stat. § 168.0422 was unconstitutional. The district court held the statute unconstitutional but found that the special series license plate provided the deputy with a reasonable, and articulable suspicion of criminal activity to justify the stop.

The case was set for bench trial. Appellant stipulated to the facts contained in the police report and his driving record. The district court issued an order finding appellant guilty of driving after revocation and driving without a driver’s license in possession. The district court order incorporated the earlier omnibus order. This appeal followed.

ISSUES

1. Does an applicant for special series license plates implicitly consent to vehicle stops based on those plates?

2. Is Minn.Stat. § 168.0422 (1998) constitutional?

ANALYSIS

1. Implied Consent to Stop

"Whether an applicant for special series license plates implicitly consents to vehicle stops based on those plates is a question of law, which we review de novo. See Frost Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984) (reviewing court need not give deference to district court’s decision on purely legal issue).

A statute permitting police officers to stop vehicles bearing special series license plates to check the status of the driver’s license has been construed to “explicitly condition receipt of [those] plates on submission to routine police stops.” State v. Greyeagle, 541 N.W.2d, 326, 328 (Minn.App.1995) (footnote omitted) (referring to a Washington statute). Minnesota now has an analogous statute to which this construction is relevant.

We have previously upheld the state’s authority to impound license plates. See Knudson v. Comm’r of Pub. Safety, 438 N.W.2d 423, 425 (Minn.App.1989) (applying Minn.Stat. § 168.041, subd. 3a (1988), and noting that public would benefit from impounding of vehicle registration plates of driver whose license was revoked three times within five years). Appellant does not contest the impounding of his plates. After impounding, appellant chose to apply for and display special series plates. By applying for and displaying those plates, appellant submitted to routine police stops of his vehicle; he told the deputy that he knew he could be stopped because of the plates.

Those who operate motor vehicles within Minnesota are deemed to consent to tests of their “blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances.” Minn.Stat. § 169.123, subd. 2(a) (1998). If operating motor vehicles within the state legally implies a driver’s consent to blood, breath, or urine testing for a particular purpose, it is reasonable to infer that utilization of special series license plates likewise may legally imply the driver’s consent to stops of the vehicle for a particular purpose. Minn.Stat. § 168.0422 (1998) permits stops of vehicles bearing special series license plates only for a particular purpose. We hold that application for and display of the special plates on a vehicle implies the driver’s consent to stops of the vehicle for the purpose of determining whether the driver has a valid license.

2. Constitutionality of Minn.Stat. § 168.0422

Appellant argues that Minn.Stat. § 168.0422 is unconstitutional. Minnesota statutes are presumed constitutional and the power to declare a statute unconstitutional should be exercised with extreme caution and only when necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). Evaluating the constitutionality of a statute is a question of law. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Accordingly, this court is not bound by the district court’s conclusions. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993).

Appellant relies on Greyeagle, 541 N.W.2d at 328-29, which held that the police stop of a vehicle based solely on the vehicle’s special series license plates was unconstitutional. The statute at issue in Greyeagle authorized special series plates that could “be readily identified by traffic law enforcement officers,” but did not authorize stops based solely on these plates. Id. at 328 (quoting Minn.Stat. § 168.041, subd. 6 (1994)). In Greyeagle, we contrasted the Minnesota statute with a Washington state statute that specifically authorized an officer to stop a vehicle with special series license plates for the sole purpose of determining whether the driver had a valid driver’s license. Id. We noted then that the Minnesota statute “does not suggest the condition of use that is provided in the Washington statute.” Id. at 328.

After the Greyeagle decision, the Minnesota legislature amended the statute by adding section 168.0422:

A peace officer who observes the operation of a motor vehicle within this state bearing special series registration plates issued under section 168.041, subdivision 6, * * * may stop the vehicle for the purpose of determining whether the driver is operating the vehicle lawfully under a valid driver’s license.

The constitutionality of Minn.Stat. § 168.0422 was challenged in State v. Baumann, 616 N.W.2d 771 (Minn.App.2000) (upholding conviction when vehicle stop was based on both officer’s observation of special series license plates and officer’s hearing report that driver’s license of vehicle’s owner had been cancelled), review denied (Minn. 15 Nov. 2000). Baumann held that the additional information as to the owner’s cancelled driver’s license provided a reasonable suspicion of criminal activity to justify the stop. Id. at 774. Noting that the conviction could be sustained on that basis and that this court considers constitutional questions only when necessary to dispose of the case before it, Baumann did not address the constitutionality of Minn.Stat. § 168.0422. Id. at 773-74

However, Baumann is distinguishable: in this case, the deputy testified .that the special series license plates provided his only basis for the stop. Therefore, we must address the constitutionality of Minn. Stat. § 168.0422. Its language is almost identical' to the Washington statute cited in Greyeagle; it permits stops to determine whether a driver has a valid driver’s license to be based solely on an officer’s observation of special series license plates. Greyeagle interpreted this language as making receipt of special series license plates conditional on submission to routine police stops. Id. at 328. The constitutionality of the Washington statute has been upheld.

In order for an investigative stop to be valid under either our state or federal constitutions, the officer must have “spe-cifie and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) * * *.
* * * *
[T]he presence of the special tab on the license plate was a specific and articula-ble fact from which the officer could reasonably infer that there was a substantial possibility the driver of the vehicle did not possess a valid license.

City of Seattle v. Yeager, 67 Wash.App. 41, 834 P.2d 73, 75-76 (1992). We agree with the rationale of the Washington Supreme Court. Accordingly, we hold that Minn. Stat. § 168.0422 is not unconstitutional.

DECISION

Because appellant implicitly consented to routine stops of his vehicle when he applied for and displayed special series license plates and that Minn.Stat. § 168.0422 (1998) is constitutional, we affirm the district court’s finding that the stop of appellant’s vehicle was valid and reverse the district court’s finding that section 168.0422 is unconstitutional.

Affirmed in part and reversed in part.

      . Even if he had not known, he would be deemed to have submitted: citizens of Minnesota are presumed to know the law. State v. Calmes, 632 N.W.2d 641, 648 (Minn.2001).

        . Because Minnesota had no analogous statute when Greyeagle was decided, that case did not address “whether states may statutorily provide that special driving privileges be granted on the condition that the user enjoys lesser constitutional rights.” Id. at 328, n. 3.

      . This language is similar to 1987 Wash. Laws, ch. 388 § 2, quoted in Greyeagle, 541 N.W.2d at 328, "Any officer who sees a vehicle being operated with marked license plates may stop the vehicle for the sole purpose of ascertaining whether the driver of the vehicle is operating it in violation of [statutes prohibiting operation of a vehicle without a valid license].”

      . A special concurrence to Baumann stated that Minn.Stat. § 168.0422 was "a legislative attempt to specifically overrule the holding in Greyeagle.” Id. at 776 (Randall, J., concurring). Appellant relies on this language to argue that the statute is unconstitutional. However, a concurrence does not speak for the court and is not precedent. See Nitz v. Nitz, 456 N.W.2d 450, 453 (Minn.App. 1990) (dicta not the judgment of the court and not binding). Appellant’s reliance on the concurrence is misplaced, particularly in light of the majority's specific determination that the case could be disposed of without addressing the issue of constitutionality. See Baumann, 616 N.W.2d at 773-74.

      . Appellant also relies on Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187 (Minn.1994) (holding that police roadblocks were unconstitutional because Minnesota constitution requires individualized suspicion of wrongdoing before a stop). But Ascher is distinguishable: it involved stopping all vehicles at a roadblock. Minn.Stat. § 168.0422 permits stops only of vehicles bearing special series plates.


text:
    Radu RASIDESCU, Relator, v. COMMISSIONER OF ECONOMIC SECURITY, Respondent.
    No. C3-01-1786.
    Court of Appeals of Minnesota.
    May 28, 2002.

      Radu Rasidescu, Hudson, WI, relator pro se.
    Philip B. Byrne, St. Paul, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Relator appeals the decision of the representative of the commissioner that relator is ineligible for unemployment insurance benefits. Because relator is ineligible under the plain language of the controlling statute, we affirm.

FACTS

Relator Radu Rasidescu is a Canadian citizen who lawfully entered the United States to work temporarily as a plant engineer for Dairy Farmers of America (DFA). DFA decided to reduce its staff and it eliminated Rasidescu’s job.

Rasidescu applied to the Minnesota Department of Economic Security (DES) for unemployment benefits. The DES obtained information from the United States Immigration and Naturalization Service (INS) that Rasidescu was a nonimmigrant alien classified as a temporary worker (TN) who was “out of status” because of the termination of his job with DFA. Thus, according to the INS, Rasidescu was no longer eligible to work in the United States and was required to depart immediately.

The DES then concluded that, because Rasidescu was not authorized to work in the United States, he was not eligible for unemployment benefits. After successive appeals, an unemployment law judge and the commissioner’s representative both affirmed the determination of ineligibility. Rasidescu appeals from the decision of the commissioner’s representative.

ISSUE

Is a nonimmigrant alien, who was admitted to the United States on a temporary work visa but whose employment was terminated, ineligible for unemployment insurance benefits under Minn.Stat. § 268.085, subd. 12(a) (2000)?

ANALYSIS

Relator contends on appeal that the decision of the commissioner’s representative should be reversed because the representative misapplied the law in determining his ineligibility for unemployment benefits. Although appellate courts defer to the commissioner’s findings of fact if they are reasonably supported by the evidence in the record, questions of law are reviewed de novo. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Unemployed individuals who meet the requirements of Minn.Stat. §§ 268.085, .086 (2000), are entitled to receive unemployment benefits. Minn.Stat. § 268.069, subd. 1(3) (2000). However, aliens who are not eligible to work in the United States are not eligible for unemployment benefits:

An alien shall be ineligible for unemployment benefits for any week the alien is not authorized to work in the United States under federal law. Information from the Immigration and Naturalization Service shall be considered conclusive, absent specific evidence that the information was erroneous.

Minn.Stat. § 268.085, subd. 12(a) (2000).

The North American Free Trade Agreement (NAFTA) requires the United States, Canada, and Mexico to grant to certain persons temporary entry into those respective countries for work purposes as long as the persons are otherwise qualified for entry. 8 C.F.R. § 214.6(b)(f) (2001). Relator contends that NAFTA preempts Minnesota law and gives him the right to collect unemployment benefits.

Relator has cited no provision in the NAFTA that would preempt either United States immigration laws or state unemployment compensation statutes. Thus, once the INS determined that relator was “out of status” and was no longer entitled to be employed in the United States, relator became ineligible for unemployment benefits under the plain language of Minn.Stat. § 268.085, subd. 12(a). See Minn.Stat. § 645.08 (2000) (explaining that words and phrases should be construed according to their plain meaning); State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996) (stating that if statutory language is unambiguous the court must apply its plain meaning).

Relator next argues that, because his employer paid for the benefits and did not contest the application, he is entitled to the unemployment insurance benefits. Minnesota law makes clear that whether the employer pays for unemployment insurance, or whether the employer challenges the employee’s petition, has no bearing on whether or not the benefits are paid:

Unemployment benefits are paid from state funds and shall not be considered paid from any special insurance plan, nor as paid by an employer. An application for unemployment benefits shall not be considered a claim against an employer but shall be considered a request for unemployment benefits from the fund. The commissioner has the responsibility for the proper payment of unemployment benefits regardless of the level of interest or participation by an applicant or an employer in any determination or appeal. * * * [A]ny agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant’s entitlement.

Minn.Stat. § 268.069, subd. 2 (2000).

DECISION

Because relator became ineligible to work in the United States upon the termination of his employment, the representative of the commissioner correctly determined that relator was ineligible for unemployment compensation benefits.

Affirmed.


author: PORITSKY, Judge

text:
    STATE of Minnesota, Respondent, v. Jerad Blake CHRISTOPHERSON, Appellant.
    No. C1-01-1561.
    Court of Appeals of Minnesota.
    May 28, 2002.

      Mike Hatch, Attorney General, St. Paul, and Stephen N. Betcher, Goodhue County Attorney, Erin L.K. Schmickle, Assistant County Attorney, Red Wing, for respondent.
    John M. Stuart, State Public Defender, Charles F. Clippert, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge

Jerad Blake Christopherson appeals from an order denying his postconviction petition to withdraw his guilty plea to second-degree criminal sexual conduct, contending that the district court should not have imposed a five-year conditional-release term to his executed sentence after his probation was revoked. Christopher-son argues that because the five-year conditional-release term was never mentioned as part of his stayed sentence during his original plea hearing, the addition of that term when his sentence was later executed renders his original plea invalid in that it was not accurate, voluntary, and intelligent. Christopherson also argues that the addition of the conditional-release term violates the terms of his plea agreement. Because the imposition of Christopherson’s sentence was stayed at the original plea hearing, however, he did not need to be made aware of the conditional-release term in order to enter an accurate, voluntary, and intelligent plea. Furthermore, when the conditional-release term was ultimately added to his executed sentence, it did not violate Christopherson’s plea agreement because he never agreed to a durational limit in his plea agreement with the state. Therefore, we affirm the district court’s order.

FACTS

In May 1996, Jerad Christopherson was charged by complaint with three counts of criminal sexual conduct in the first degree pursuant to Minn.Stat. § 609.342, subd. 1(a) (1996), and three counts of criminal sexual conduct in the second degree pursuant to Minn.Stat. § 609.343, subd. 1(a) (1996), stemming from four sexual encounters with a 12-year-old female. In September of that same year, Christopherson pleaded guilty to one count of second-degree criminal sexual conduct. At the plea hearing, the court stayed imposition of sentence and placed Christopherson on probation subject to a number of conditions, including one year in the county jail.

At the time the court received Christo-pherson’s plea, the state informed the court that the sentencing guidelines did not require a presumptive commitment to imprisonment for Christopherson. Nevertheless, during questioning at the plea hearing, Christopherson’s own lawyer asked him if he understood that the maximum sentence for the crime to which he was pleading guilty was 25 years in prison and/or a $30,000 fine. Christopherson indicated that he understood. Later in the hearing, the district court judge told Christopherson that if he violated the conditions on his probation, he could “end up going to prison for a substantial period of time.” Other than this indirect reference, the district court never indicated the length of any stayed sentence, should Christopherson later violate the terms under which his sentence was stayed. No presentence investigation report was requested before the plea was accepted.

In late 1997, after repeated violations of his probation, revocation proceedings were initiated against Christopherson. At these proceedings, Christopherson admitted that he had committed three separate probation violations. During questioning, Chris-topherson stated that he believed that his original stayed sentence was 26 months. Later in the proceeding, the state requested that Christopherson be committed to the commissioner of corrections for 26 months. Despite these comments, there is no indication in the record from the earlier hearing at which Christopherson entered his plea that the original stayed sentence was for 26 months. The first time the 26-month sentence was mentioned was in a presentence investigation report ordered for the probation-revocation proceeding. Ultimately at that proceeding, the court revoked Christopherson’s probation and at that time imposed a sentence: 26 months in prison and a five-year conditional-release period to begin upon Christopher-son’s release from prison.

In 2000, after he was released from prison, Christopherson again violated the terms of his conditional release and was returned to prison. In March 2001, Chris-topherson filed a postconviction petition, claiming that his plea was invalid because he was not informed that the conditional-release period would be added to his sentence of imprisonment if his probation were revoked. He requested that his conditional release be vacated, or in the alternative, that he be allowed to withdraw his plea. Christopherson claims that his plea was not accurate, voluntary, and intelligent because he did not know of the conditional-release period. He also claims that the imposition of the conditional-release period violates his plea agreement because it exceeds- the 26-month prison sentence to which he claims he originally agreed.

The district court denied his petition, stating that there was no specific term of imprisonment mentioned in the plea agreement and that the addition of the conditional-release period was not contrary to the terms of that original agreement. The court found that without a specific mention of a durational limit when Christopherson entered his plea, his motivation to accept the plea agreement was the opportunity for probation and the stay of imposition of the underlying sentence. The court further found that because the maximum sentence for Christopherson’s crime was 25 years, a five-year conditional-release period did not exceed that limit and could therefore be imposed.

On appeal, Christopherson argues that the district court’s decision should be reversed because (1) his plea was invalid in that he was not made aware of the possibility of the conditional release at the time his plea was accepted, and (2) the addition of the conditional release violated the terms of the original plea agreement. Christopherson asks this court to remand this case to the district court so he can be given the opportunity to withdraw his plea or have the sentence modified.

ISSUES

I. Did the failure to inform Christo-pherson, at the time his plea was accepted, of the later possibility that he might be subject to conditional release make the plea not voluntary, knowing,. and intelligent as a matter of law?

II. Did the addition of the conditional release term violate the original plea agreement?

ANALYSIS

Review of a postconviction proceeding's limited to determining whether there is sufficient evidence to support the findings of the postconviction court. Hale v. State, 566 N.W.2d 923, 926 (Minn.1997). The postconviction court’s decision will not be disturbed absent an abuse of discretion. Id. Interpreting and enforcing plea agreements are issues of law, however, and they are reviewed de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000).

I.

Appellant’s first argument is that he should be allowed to withdraw his plea because it was not accurate, voluntary, and intelligent. Minn. R.Crim. P. 15.05, subd. 1 allows for withdrawal of a guilty plea after sentencing when it is “necessary to correct a manifest injustice.” The burden is on the defendant to demonstrate that refusal to allow withdrawal amounts to a manifest injustice. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). A manifest injustice occurs if the plea is not accurate, voluntary, and intelligent. Id.

The disposition Christopherson received was a stay of imposition of sentence. The statute that requires the conditional release reads:

Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release.

Minn.Stat. 609.109, subd. 7(a) (2000) (emphasis added). Because the imposition of the sentence was stayed, the court did not sentence Christopherson to prison at the time of the plea. Thus, under the plain language of the statute, the court was correct in not imposing a conditional-release term. In fact, had Christopherson complied with the conditions imposed at the time of the plea, he would never have been subject to a conditional release. It was not until he violated the terms of probation, and the court imposed a sentence, that the conditional release became mandatory.

Because the conditional-release term was not mandated at the time Christopher-son entered his plea, to adopt his position would be to adopt a rule that requires any court taking a plea to state on the record all possible consequences of any future violation of terms of probation. If the court fails to do so, upon a later finding of a violation, the court could not impose any sanction that was not mentioned at the time of the earlier plea without giving the defendant the opportunity to withdraw his plea, perhaps years after he entered it. Such a rule would conflict with Minn.Stat. § 609.14, subd. 3 (2000), which allows the court, if it finds that the defendant violated the terms under which a sentence was stayed, to impose intermediate sanctions, such as treatment or intensive probation. Cf. MinmStat. § 609.135, subd. 1(a)(2)(b) (2000) (describing intermediate sanctions).

In support of his argument, Christo-pherson claims that the ABA Standards for Criminal Justice require that a court only accept a guilty plea if it determines that the defendant understands “the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or any special circumstances affecting probation or release from incarceration.” ABA Standards for Criminal Justice 14-1.4(a)(ii), 3d ed. (1997). Christopherson then highlights the fact that Minn. R.Crim. P. 15 adopts in principle the instruction provided in the ABA standards dealing with plea acceptance. See Minn. R.Crim. P. 15 cmt (“Rule 15.01 adopts in principle ABA Standards, Pleas of Guilty, 1.4-1.6 (Approved Draft, 1968) as to the advice which shall be given to and the inquiry that shall be made of a defendant before acceptance of a plea of guilty.”). Christopherson makes these arguments in an effort to establish that if the state fails to notify the defendant of elements mentioned in the ABA standards, the plea necessarily is invalid and should not be accepted, or the defendant should be allowed to withdraw his plea in order to avoid a manifest injustice.

Christopherson's argument, however, is undermined by the fact that the comments to the rules are only advisory and not meant to bind this court. State v. Johnson, 514 N.W.2d 551, 555 n. 8 (Minn.1994). Furthermore, Christopherson neglects to mention that the same comment to the rule later states, “[A] failure to include all of the interrogation set forth in Rule 15.01 will not in and of itself invalidate a plea of guilty.” Minn. R.Crim. P. 15 cmt. This language supports the conclusion that a plea may be validly entered even if there is not strict compliance with the rule. See Vernlund v. State, 589 N.W.2d 307, 310-11 (Minn.App.1999) (stating that there is no required method for taking a plea, so long as the method used complies with Minn. R.Crim. P. 15.02). Consequently, the fact that the conditional release was not mentioned to Christopherson at the time the original plea was entered is not, in itself, enough to demonstrate that his plea was not accurate, voluntary, and intelligent.

Essentially Christopherson argues that it would be desirable to establish a bright-line rule: in a case where a defendant will or may be subject to a conditional release, such a possibility must be articulated at the time of the plea. While there may be much to be said for such a practice, we conclude that on the facts of this case including the fact that Christopherson received a stay of imposition of sentence— the failure to mention the possibility of a conditional release at the time of the plea does not invalidate the plea.

II.

Christophersoris second argument is that the imposition of the conditional release violated the plea agreement. At the time of the plea, the prosecutor put the agreement on the record. According to the plea agreement, the only thing Chris-topherson bargained for was a disposition that would not include prison time, and this is what he received.

When the prosecutor mentioned the sentencing guidelines, it was only in connection with disposition (i.e., no commitment) and not duration. Nothing was said about a 26-month limitation, or any limitation for that matter. Although Christopherson and his counsel might have been thinking about a sentence with a presumptive guidelines duration, no mention was made of any duration. Thus, it appears that, if at a later sentencing the court imposed an upward durational departure, even if such a sentence violated the guidelines, it would not have violated the plea agreement. Hence, the fact that Christopherson has served, and may serve, more prison time than 26 months does not in itself violate the agreement.

On appeal, Christopherson relies on both State v. Jumping Eagle, 620 N.W.2d 42 (Minn.2000), and State v. Garcia, 582 N.W.2d 879 (Minn.1998), for the proposition that a defendant may withdraw his plea if the addition of the conditional release exceeds the upper limit of the defendant’s bargained-for prison time. While he correctly states the holdings in both Jumping Eagle and Garcia, the facts of those cases are distinguishable from his case. Here, unlike the cases he cites, at the time of the plea there was no limitation on the amount of prison time the Christopherson would serve. Thus, the cases on which Christopherson relies are wide of the mark and do not compel a conclusion that the imposition of the conditional release violated the terms of his plea agreement.

DECISION

Because the imposition of Christopher-son’s sentence was stayed, he was not subject to a conditional release at the time his plea was accepted. Therefore, the fact that the possibility of a conditional release was not mentioned at the time Christo-pherson entered his plea did not render the plea invalid, even though a conditional release was later added when his sentence was imposed. Furthermore, as there was no agreement on the duration of any prison term, adding the conditional release did violate his plea agreement.

Affirmed.

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


author: MARING, Justice.

text:
    2002 ND 80
    Terry A. LUALLIN; Meryl D. Luallin; Robert Bedrossian; Wayne Baumgardner; Stephen Nelson; Steven Franks, as trustee of the Marie Anne Franks Trust; and Mortimer J. Matthews, as trustee of the Matthews Trust, Plaintiffs and Appellants, v. Ronald C. KOEHLER and Condor Petroleum Inc., Defendants and Appellees, North Tioga # 1, a partnership; Tioga 2-A, a partnership; North Tioga #3, a partnership; North Tioga #4, a partnership; Madison Investors Basin Development, a partnership; Erickson 3-2 Partners, a partnership; Investors Production Acquisition # 1, a partnership; Madison Investors Development # 1, a partnership; Madison Investors Development # 1 Water Disposal, a partnership; Madison Investors Development # 2, a partnership; Madison Investors Development #3, a partnership; Madison Investors Development #4, a partnership; Production Buyers Acquisition #1, a partnership; Production Buyers Association # 2, a partnership; Production Buyers Acquisition # 3, a partnership; Lodgepole Re-Entry # 1, a partnership; Lodgepole Re-Entry # 2, a partnership; Williston Basin Preferred Partners # 1, a partnership; Capa Development # 1, a partnership; Capa Development # 2, a partnership; Capa Development # 3, a partnership; Capa Water Transportation System, a partnership, Defendants.
    No. 20010301.
    Supreme Court of North Dakota.
    May 14, 2002.

      Shane D. Peterson (argued) and Ken G. Hedge (appeared), Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Willi-ston, ND, for plaintiffs and appellants.
    Lawrence Bender (appeared), Pearce & Durick, Bismarck, ND, and Thomas J. Kimmell (argued), Zarlengo & Kimmell, Denver, CO, for defendants and appellees.
   MARING, Justice.

[¶ 1] The plaintiff investors, five individuals and two trusts, appealed from a summary judgment dismissing their action for damages against Condor Petroleum, Inc., and its president, Ronald Koehler (collectively referred to as “Condor”), alleging violations of the North Dakota Securities Act of 1951 (“Act”), under N.D.C.C. ch. 10-04. We hold the requirements for registration of securities and dealers under the Act do not apply because there was no sale or offer to sell securities from or within North Dakota by the defendants to these plaintiffs; the plaintiffs failed to raise a genuine issue of material fact to support their allegations the defendants committed fraudulent practices in violation of the Act; and the trial court did not abuse its discretion in denying the plaintiffs’ request for further discovery. We therefore affirm the summary judgment dismissing the action.

I

[¶ 2] Commencing in 1988, Jerry Anderson, a resident of California, and Peter Sacker, a resident of Michigan, formed two corporations to act as general partners for limited partnerships established to invest in oil and gas operations in North Dakota and other states. They formed Whitworth Energy Resources, Ltd. (“Whitworth”), a Nevada corporation, with its principal place of business in California, and Williston Basin Holding Corporation (“Williston”), a California corporation operating primarily in California. Anderson, together with Robert Kerns, established Amerivest Financial Group, Inc., a California corporation, which acted as a selling agent for the Whitworth and Williston oil and gas partnerships. Over a course of years these entities received $22,000,000 in funds from over 500 persons who invested in 22 oil and gas partnerships.

[¶ 3] The plaintiffs are residents of California and Washington who invested in these oil and gas partnerships. The solicitation of these investors and their purchases of the Williston and Whitworth oil and gas limited partnership interests all occurred in the states of California and Washington.

[¶ 4] Condor is incorporated in Colorado and operates oil and gas wells in North Dakota and other states. Condor provided geological and engineering information to Whitworth and Williston to enable them to decide whether to purchase interests in various oil and gas drilling ventures in North Dakota. In return for payments made by Whitworth and Williston, Condor assigned undivided working interests in oil and gas wells to them. Condor operated the wells and provided drilling and completion reports to the investing partnerships.

[¶ 5] In 1997, the United States Securities and Exchange Commission filed an action in federal court against Whitworth, Williston, and Amerivest and their principles, alleging fraudulent investment activity and seeking to shut down their operations. The federal court found that Whitworth and Williston had defrauded investors in several ways: (1) by falsely representing to investors that distributions were from oil and gas revenues when they were actually made from funds received from other investors; (2) by failing to disclose to investors that Condor claimed a substantial debt for its operating activity; (3) by misrepresenting and overstating ownership interests in wells; and (4) by purporting to assign the same wells to different partnership ventures. The federal court appointed a receiver to take control of the corporations, to shut down their activities, and to dispose of the assets. In carrying out these responsibilities, the receiver conducted an audit of Condor’s activities, reached a settlement of the debt owed by Whitworth and Williston to Condor, and transferred title of some of the oil well operations, after auction, to Condor.

[¶ 6] In April 2001, the plaintiff investors brought this action against Condor, asserting Condor participated in the fraudulent sale of the Whitworth and Williston partnerships and failed to register those securities or its dealers in North Dakota. Condor moved for a summary judgment dismissing the action. After a hearing, the trial court concluded none of the Whit-worth or Williston partnership securities were sold from or within North Dakota and, consequently, the North Dakota registration provisions did not apply to the sale of those securities. The court also determined the plaintiffs provided no factual basis for the alleged acts of fraud by Condor and, consequently, there was no genuine issue of material fact requiring a trial on the fraud claims. The court, without granting the plaintiffs’ request for additional time for discovery, granted Condor’s motion for summary dismissal of the case.

II

[¶ 7] Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences

to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Steiner v. Ford Motor Co., 2000 ND 31, ¶ 6, 606 N.W.2d 881. Factual issues become appropriate for summary judgment when reasonable minds can draw but one conclusion from the evidence. Jones v. Barnett, 2000 ND 207, ¶ 4, 619 N.W.2d 490. On appeal, we determine whether a genuine issue of fact exists and whether the law was applied correctly. Steiner, 2000 ND 31, ¶ 6, 606 N.W.2d 881. Questions of law are fully reviewable on appeal. Id.

[¶ 8] The purpose of the North Dakota Securities Act is to protect the investing public from fraud, deception, and the disposal of securities where the proposed plan of business appears to be unfair, unjust, or inequitable. N.D.C.C. § 10-04-08.1; Meadow Fresh Farms, Inc. v. Sandstrom, 333 N.W.2d 780, 783 (N.D.1983). Within the Act is a three-part framework for protecting investors and the public:

(1) the first part regulates securities;
(2) the second part regulates the people who offer, sell, or provide security investment advice; and
(3) the third part prohibits fraud when securities are offered for sale, are sold, or are purchased, or when security advice is given.

State v. Goetz, 312 N.W.2d 1, 5 (N.D.1981).

[¶ 9] The requirement for registering securities is found under N.D.C.C. § 10-04-04:

It is unlawful for any person to sell, or offer for sale, any security in this state unless it is registered under this chapter or the security or transaction is exempt under section 10-04-05 or 10-04-06 or it is a federal covered security.

[¶ 10] The requirement for registering persons dealing in securities is found under N.D.C.C. § 10-04-10, which provides in relevant part:

A dealer or agent may not offer for sale or sell any securities within or from this state, except in transactions exempt under section 10-04-06, unless registered as a dealer or agent pursuant to the provisions of this section.

[¶ 11] The primary objective of statutory construction is to ascertain the intent of the Legislature. Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 18, 590 N.W.2d 454. In ascertaining legislative intent we look first at the words used in the statute, giving them their ordinary plain language meaning. Id. If the statute is unambiguous we apply the plain language. State v. Hafner, 1998 ND 220, ¶ 10, 587 N.W.2d 177. Interpretation of a statute is a question of law, fully reviewable on appeal. Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895.

[¶ 12] The requirement for registration of securities under the Act unambiguously applies only to securities which are sold or offered for sale “in this state.” Likewise, the requirement for registering persons dealing in securities under the Act unambiguously applies only to dealers or agents who “offer for sale or sell any securities within or from this state.” The trial court found that these registration requirements did not apply to this case, because the limited partnership interests purchased by the plaintiffs were neither sold nor offered for sale within or from North Dakota.

[¶ 13] Relevant to this case, the only securities purchased by the plaintiffs were interests in oil and gas limited partnerships established by and sold through Whitworth, Williston, and Amerivest. The offers for sale and the purchases all occurred outside the state of North Dakota. Although some of the limited partnerships, in which the plaintiffs invested their monies, subsequently purchased working interests in North Dakota oil and gas wells operated by Condor, those transactions are not the subject of this lawsuit. Those were separate transactions between the partnerships and Condor and did not involve the sale of securities to the plaintiffs who filed this action.

[¶ 14] There is no allegation or evidence that any of these plaintiffs purchased partnership interests or other securities in North Dakota or that any solicitation of purchases by these plaintiffs were made in or from North Dakota. For a state’s securities law to apply, there generally must be some physical nexus between the sale or offer to sell the securities and the state. Ah Moo v. A.G. Becker Paribas, Inc., 857 F.2d 615, 620 (9th Cir.1988) (sale of stock by telephone from California to buyer in Hawaii where salesman traveled to Hawaii and made other communications in Hawaii offering to sell the stock to buyer created sufficient nexus for application of Hawaii’s blue sky laws); Rosenthal v. Dean Witter Reynolds, Inc., 908 P,2d 1095, 1105 (Colo.1995) (there was sufficient “transactional nexus” to apply Colorado law for bonds purchased in Pennsylvania where the bonds were issued by and the official statement was prepared by an entity located in Colorado with whom the defendants participated in the distribution of the offering materials in Colorado). No such nexus with North Dakota exists in this case. There is no evidence any of these plaintiffs ever communicated with Condor either in North Dakota or elsewhere about investing in the Whitworth or Williston partnerships.

[¶ 15] Under N.D.C.C. § 10-04-02(9) the phrases “offer for sale” and “offer to sell” are defined to mean “every attempt or offer to dispose of, or solicitation of an order or offer to buy, a security or interest in a security for value.” There is no showing the defendants made any attempt or offer in North Dakota to dispose of or solicit an order or offer to buy any of the Whitworth or Williston limited partnership interests.

[¶ 16] The plaintiffs argue the language in N.D.C.C. § 10-04-04 referring to “security in this state” could be construed as merely requiring the assets underlying the sale of a security to be located in North Dakota and there need not be an offer or sale of the security in North Dakota for the Act to apply. The plaintiffs claim that under this interpretation the Act would apply, because the oil and gas wells are located in North Dakota. The plaintiffs’ argument is misplaced.

[¶ 17] There was no sale of any interest in North Dakota oil and gas wells to these plaintiffs by the defendants. The assignments of the North Dakota oil and gas interests were made between Condor and the Whitworth and Williston limited partnerships. Even if N.D.C.C. § 10-04-04 could be construed as urged by the plaintiffs, the Act would not apply to this case, because the plaintiffs were not parties to the transactions involving assignment of the oil and gas interests in North Dakota. We therefore conclude that, as a matter of law, under these circumstances, the North Dakota provisions for registering securities and dealers under N.D.C.C. §§ 10-04-04 and 10-04-10 do not apply.

Ill

[¶ 18] The plaintiffs assert Condor should be held liable to them for damages under N.D.C.C. § 10-04-17 for participating or aiding in the sale of the limited partnership interests purchased by the plaintiffs. That statute provides, in relevant part:

Every sale or contract for sale made in violation of any of the provisions of this chapter, or of any rule or order issued by the commissioner under any provisions of this chapter, shall be voidable at the election of the purchaser. The person making such sale or contract for sale, and every director, officer, or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser.

[¶ 19] Any sale or contract made in violation of the Act subjects the person making that sale to liability. The law also makes any “agent” of the seller liable if the agent has “participated or aided in any way in making such sale.” What constitutes participation or aid in any way in making a sale of securities is determined upon the facts of each case and not by a fixed rule of law. Schollmeyer v. Saxowsky, 211 N.W.2d 377, 381 (N.D.1973). Although it is undisputed that Condor provided geological, engineering, and other general information to Whitworth and Williston, we cannot agree with the plaintiffs that Condor’s activities made Condor an agent of Whitworth or Williston or constituted assistance in selling the limited partnership interests for purposes of applying N.D.C.C. § 10-04-17 to Condor.

[¶ 20] Condor does not dispute that it provided geological and engineering information to assist the Whitworth and Willi-ston partnerships in deciding in which oil and gas drilling ventures they would invest. When the partnerships decided to invest in an oil and gas venture operated by Condor, they would send funds to Condor which Condor used to purchase the oil and gas interests. Condor would then assign an undivided working interest to the partnerships, and Condor would operate the wells. When the wells generated revenues, Condor sent revenue payments to Whitworth and Williston in accordance with the terms of the assignment agreements. The plaintiffs assert that Condor’s submission of geological, engineering and other informational materials to the partnerships constituted participation or assistance by Condor in the sale of the limited partnership interests, thereby subjecting Condor to liability under N.D.C.C. § 10-04-17.

[¶ 21] Section 10-04-02(1), N.D.C.C., defines agent as “any individual, other than a dealer, who represents a dealer or an issuer or is self-employed in effecting or attempting to effect purchases or sales of securities.” While Condor may have provided information to the limited partnerships to inform them about purchasing interests in various oil and gas well operations, Condor did not involve itself in the activities of selling the Whitworth or Willi-ston limited partnerships. This case is clearly distinguishable from authorities cited by the plaintiffs in support of their position.

[¶ 22] For example, the plaintiffs cite Rio Grande Oil Co. v. State, 539 S.W.2d 917 (Tex.Civ.App.1976), for the proposition that someone providing reports on the geology of oil and gas fields should be held liable for the selling of unregistered oil and gas lease securities involving those fields. The Texas Court of Civil Appeals in Rio Grande, 539 S.W.2d at 921-22, explained its conclusion that the Rio Grande Oil Company and its agents were guilty of selling unregistered oil and gas lease securities:

Rio Grande Oil is a Texas corporation, located in Houston, engaged in the selling of fractional interests in oil and gas leases located in Texas. Telephone calls by Rio Grande Oil sales personnel located in Houston were made to other states soliciting offers to buy such interests, and information provided by Rio Grande Oil was mailed from Texas to prospective out-of-state investors. Rio Grande Oil maintains its bank accounts in Houston and conducts portions of its business through them. On one occasion an investor and his wife came to Texas and visited the Rio Grande office. They were not offered any interests and their check was not solicited, but they were given glowing reports on the geology of some of the fields being developed and were told they should get in on them if possible.
[W]e think it clear that the Texas Securities Act applies if any act in the selling process of securities covered by the Act occurs in Texas.
In our case the defendants told their prospective purchasers to mail in their checks for the fractional interests. The “subscription of lease interest” form contained this provision: “It is understood that the sale to me (us) of the above interest(s) is subject to prior sale.” The defendants were making solicitations of sales or attempts to sell; the acceptances were intended to be made and were made in Texas, so the sales were Texas ones.

The case is clearly distinguishable from the factual circumstances here and is not persuasive authority for the position advanced by the plaintiffs. The Rio Grande Oil Corporation’s agents were clearly soliciting persons to purchase oil and gas leases from them. Their activities were directly related to the solicitation of investors and to the sale of the securities. In contrast, Condor never had any communication or contact with any of the plaintiff investors prior to their investing in the Whitworth and Williston partnerships. By merely providing information to Whit-worth and Williston, Condor did not participate in soliciting investors or aid in making sales of the limited partnership interests.

[¶ 23] The plaintiffs also cite S.E.C. v. Thomas D. Kienlen Corp., 755 F.Supp. 936 (D.Or.1991), in support of their argument that Condor should be held liable for assisting in the sale of the Whitworth and Williston securities. In Kienlen, 755 F.Supp. at 941, the federal district court concluded that defendants Thomas D. Ki-enlen Corporation (TDK), and its chief executive, Thomas Kienlen, were guilty of offering to sell securities without filing a registration statement. The court described the activity of the defendants:

Since TDK was formed in 1980, TDK through Kienlen has offered a mutual fund timing service to its clients.... Kienlen invests TDK’s clients’ money in stock when Kienlen believes the stock market is trending upward and invests TDK’s clients’ money in money market mutual funds when Kienlen believes the stock market is trending downward.
At a meeting of TDK clients in Eugene, Oregon on January 26, 1988 Kien-len announced plans to form a new mutual fund, to be managed by himself, using the investment strategy of TDK’s timing service.
The January meeting was preceded by a notice mailed to TDK clients on December 24, 1987. The notice stated that the meeting’s agenda would include a special topic, “The Christos Growth Fund (a new mutual fund managed by TDK Corp.),” offering “(1) Greater safety and improved performance” and “(2) Lower costs (no more quarterly fees).”
At the January meeting, Kienlen passed out a brochure and made an oral presentation including statements that he would use market timing to enable Christos to outperform other mutual funds.
The court finds that as a matter of law that the December 24, 1987 notice and the brochure handed out at the January 26, 1988 meeting constituted “offers to sell.” When defendants touted the “[g]reater safety,” “improved performance,” and “[l]ower costs,” defendants were offering to sell shares of the Chris-tos Fund.

Kienlen, 755 F.Supp. at 937, 941 (footnote omitted). The activity of the defendants in Kienlen is clearly distinguishable from the activity of Condor in this case. The defendants in Kienlen held meetings and provided brochures and other materials to potential investors with the obvious and direct purpose of soliciting them to invest in the defendants’ mutual fund. Here, Condor has had no communications or meetings with any of the plaintiffs about investing or about anything else. Unlike the defendants in Kienlen, Condor did not participate or aid in the solicitation or sale of any security to the plaintiffs as potential investors.

[¶ 24] We find other authorities cited by the plaintiffs no more persuasive on this issue. We, therefore, agree with the trial court that, as a matter of law, N.D.C.C. § 10-04-17 is not applicable under the circumstances and Condor is not subject to liability thereunder.

IV

[¶ 25] The plaintiffs assert Condor committed fraudulent practices in violation of the following specific provisions of N.D.C.C. § 10-04-15:

It shall be a fraudulent practice and it shall be unlawful:
2. For any person, in connection with the offer, sale, or purchase of any security, directly or indirectly, to
employ any device, scheme, or artifice to defraud.
3. For any person, in connection with the offer, sale, or purchase of • any
■ security, directly or indirectly, to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.
4. For any person, in connection with the offer, sale, or purchase of any security, directly or indirectly, to engage in any act, practice, or course of business which operates or would operate as a fraud or deception upon purchasers or the public.

The plaintiffs assert that Condor should be held responsible for participating in the defrauding of investors perpetrated by Whitworth, Williston, and Amerivest. The trial court concluded the plaintiffs failed to provide any factual basis for their alleged claim of fraud against the defendants here.

[¶ 26] Although the party seeking summary judgment bears the initial burden of showing there are no genuine issues of material fact, the party resisting the motion may not simply rely upon pleadings or upon unsupported, conclusory allegations. Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 10, 587 N.W.2d 173. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing testimony or evidence raising an issue of material fact. Id. Furthermore, fraud must be proved by clear and convincing evidence, and that higher burden of proof should have a corresponding effect on the judge when determining if a factual issue as to fraud exists. Id. at ¶ 12. If the evidence presented is of insufficient caliber or quantity to allow a rational finder of fact to find fraud by clear and convincing evidence, there is no genuine issue of material fact. Id.

[¶27] The federal court found Whitworth, Williston, and Amerivest committed fraud by falsely representing that distributions were from oil and gas revenues rather than from other investor’s contributions, by failing to disclose the debt owed Condor, by misrepresenting and overstating ownership interests in wells, and by assigning the same oil well properties to different partnership ventures. Counsel for the plaintiffs conceded during oral argument the plaintiffs have no evidence that the defendants in any communication, written or otherwise, provided false or misleading information about potential oil well investment interests. Furthermore, the federal court’s findings of fraud committed by Whitworth, Williston, and Amerivest do not implicate wrongdoing by Condor. In fact, the receiver appointed by the federal court conducted an extensive audit of Condor’s activities and concluded Condor was entitled to payment of a considerable sum as a creditor of the partnerships for operating the oil and gas wells. The receiver reached a settlement agreement to pay the legitimate debts owed to Condor by Whitworth and Williston. The plaintiffs have failed to present any evidence connecting Condor to the fraudulent conduct of Whitworth, Williston, and Am-erivest.

[¶ 28] We therefore agree with the district court that the plaintiffs have failed to raise a genuine issue of material fact on their claims of fraud against Condor.

V

[¶ 29] The plaintiffs assert the trial court should have granted them additional time to conduct discovery. Rule 56(f), N.D.R.Civ.P., provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

The purpose of Rule 56(f) is to provide an additional safeguard against the improvident or premature grant of summary judgment, and the rule generally has been applied to achieve that objective. Johnson Farms v. McEnroe, 1997 ND 179, ¶ 27, 568 N.W.2d 920. However, there are limits regarding when relief under Rule 56(f) should be granted, and this Court will not set aside the trial court’s decision under a Rule 56(f) motion unless the court has abused its discretion. See Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶¶ 10, 11, 576 N.W.2d 505.

[¶ 30] The plaintiffs have not persuasively demonstrated why they should have additional time for discovery to seek evidence in support of their claims of wrongdoing by Condor. The gist of the plaintiffs’ action is that Condor somehow defrauded the plaintiffs into investing in oil and gas limited partnerships. Facts to support the allegation, if they exist, should be within the knowledge of the plaintiffs. It is difficult to imagine how giving the plaintiffs additional time would, under these circumstances, result in plaintiffs discovering other relevant evidence to support their claims against Condor. The plaintiffs allege the defendants have perpetrated a fraud upon them but cannot now explain by what actions Condor wronged them. The federal action based upon the fraudulent activities of Whitworth and Wil-liston has been ongoing since at least 1997. The plaintiffs have had considerable time to discover wrongdoing, if any, by Condor. It is simply not enough to make unsupported, conclusory allegations. We are not persuaded lack of time for discovery is the problem. Under these circumstances, we conclude the trial court did not abuse its discretion in refusing to grant the plaintiffs’ request for additional time to conduct discovery.

VI

[¶ 31] We hold, under the facts presented by the plaintiffs, that N.D.C.C. §§ 10-04-04 and 10-04-10 do not apply because the case does not involve a sale or offer to sell from or within this state. We hold, as a matter of law, defendants did not participate or aid in the unlawful sale or contract for sale of securities which would subject them to liability under N.D.C.C. § 10-04-17. We hold the plaintiffs have failed to present a genuine issue of material fact in support of their claims of fraudulent conduct by the defendants under N.D.C.C. § 10-04-15. We also hold the trial court did not abuse its discretion in refusing to grant the plaintiffs additional time for discovery under N.D.R.Civ.P. 56(f). We, therefore, affirm the summary judgment dismissing the plaintiffs’ action for damages against Condor and its president Ronald Koehler.

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