text:
    2004 ND 149
    STATE of North Dakota, Plaintiff and Appellee v. Larry Shane MATHRE, Defendant and Appellant.
    No. 20030312.
    Supreme Court of North Dakota.
    July 22, 2004.

      Mark A. Flagstad, Assistant State’s Attorney, Minot, ND, for plaintiff and appel-lee.
    Larry Shane Mathre, Donnybrook, ND, pro se.
   VANDE WALLE, Chief Justice.

[¶ 1] Larry Shane Mathre appealed from a judgment entered upon a jury verdict convicting him of two counts of assaulting a peace officer, one count of preventing arrest or discharge of other duties, and one count of escape. We affirm.

r

[¶ 2] In January 2003, Mathre was helping his grandmother move out of an apartment located in a domestic violence residence in Minot. Two Minot police officers, Corwin Effertz and Scott Redding, were dispatched to the residence because there was a report of an unwanted individual, presumably Mathre, on the premises. Apparently, males are not allowed at the residence. Mathre claims he remained on public property while others brought his grandmother’s property out of the residence for him to load into a van and a trailer. Immediately upon the officers’ arrival, Mathre “mooned” them. As a result, the officers attempted to place Mathre under arrest for disorderly conduct. Mathre resisted and a scuffle ensued between him and the officers. During the scuffle, Mathre’s grandmother fainted, and he tried to assist her. At this point, the officers subdued Mathre and placed him under arrest.

[¶ 3] Mathre was charged with disorderly conduct under a Minot municipal ordinance for mooning the officers in the presence of others. He was convicted of the offense in municipal court and appealed to the district court. The district court acquitted Mathre, concluding it could not find that mooning is an “obscene gesture” under the Minot ordinance and the ordinance was void and unenforceable because it did not conform with N.D.C.C. § 12.1— 31-01. Mathre appealed to this Court, and we dismissed because a judgment of acquittal is not appealable under N.D.C.C. § 29-28-06. City of Minot v. Mathre, No. 20030313.

[¶ 4] As a result of the scuffle with the officers, Mathre was charged in district court with two counts of assault on a peace officer in violation of N.D.C.C. § 12.1-17-01, a class C felony; one count of preventing arrest or discharge of other duties in violation of N.D.C.C. § 12.1-08-02, a class A misdemeanor; and one count of escape in violation of N.D.C.C. § 12.1-08-06, a class C felony. Trial was held in the district court, and a jury returned a verdict finding Mathre guilty of all four offenses.

[¶ 5] Mathre raises the following issues on appeal:

I. Whether the Defendant has a Right to Constitutional Protection under the First Amendment for mooning a Police Officer, as an expression of freedom of speech and expression.
II. Whether the Defendant broke any North Dakota Statute prior to being arrested.
III. Whether the defendant has the right to Resist Arrest in Absence of Criminal Activity.
IV. Whether Law Enforcement Acted Lawfully and Under Color of the Law in Arresting Defendant.
V. Whether the Defendant is allowed to use unlawful arrest for a defense.
VI. Whether the Record, as a whole, Supports a Conviction of Preventing Arrest or Discharge of other duties.
VII. Whether the Record, as a whole, Supports a Conviction of Assaulting a Police officer. Count 1
VIII. Whether the Record, as a whole, Supports a Conviction of Assaulting a Police officer. Count 2.
IX. Whether the Record, as a whole, Supports a Conviction of Escape.

[¶ 6] Our ability to review Mathre’s claims is limited because he has not provided a transcript on appeal. Under N.D.R.App.P. 10(b), it is the appellant’s responsibility to provide a transcript on appeal, and Mathre suffers any consequences resulting from the lack of a transcript to review. See N.D.R.App.P. 10(b); State v. Raywalt, 436 N.W.2d 234, 238-39 (N.D.1989).

II

[¶ 7] We do not decide Mathre’s first issue because we have previously dismissed his prior appeal regarding the constitutionality of mooning the officers. Similarly, we do not consider Mathre’s second contention, whether he violated any North Dakota statute prior to being arrested, because he was not convicted of any offense committed prior to his arrest. See State v. Goulet, 1999 ND 80, ¶ 12, 593 N.W.2d 345 (“we do not give advisory opinions”). Insofar as Mathre contends evidence of his actions after the arrest should have been suppressed because he was not convicted of any crime occurring prior to his arrest, we have previously held that suppression of evidence is not the appropriate remedy in such circumstances. See State v. Ritter, 472 N.W.2d 444, 452-53 (N.D.1991); see also State v. Saavedra, 396 N.W.2d 304, 306 (N.D.1986) (“The legality of the ... citation was not relevant to the determination of whether Saavedra’s subsequent conduct was lawful because his actions were independent and intervening acts which broke the chain of causation and dissipated the taint of any prior illegality” by the officer).

III

[¶ 8] Mathre claims that he had a right to resist arrest in the absence of criminal activity, that the officers were not acting lawfully and under color of law when they attempted to arrest him for disorderly conduct, and that he should have been allowed to use unlawful arrest as a defense to the charges against him. He relies on his subsequent acquittal of the disorderly conduct charge to support these contentions.

A.

[¶ 9] Notwithstanding Mathre’s arguments to the contrary, his claims regarding the unlawfulness of his arrest apply only to his conviction for preventing arrest or discharge of other duties. See N.D.C.C. § 12.1-08-02; Ritter, 472 N.W.2d at 453 n. 1 (Levine, J., concurring specially) (“The defense of unlawful police conduct is not available to the crime of reckless endangerment or terrorizing or disorderly conduct or assault”). Section 12.1-08-02, N.D.C.C., provides

1. A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty.

It is a statutory defense in a prosecution for preventing arrest or discharge of other duties “that the public servant was not acting lawfully, but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully.” N.D.C.C. § 12.1-08-02(2). However, unlawful police conduct is not an absolute defense to a preventing arrest charge, and a defendant is allowed to resist only excessive force used to effect an arrest. State v. Cox, 532 N.W.2d 384, 388 (N.D.1995) (appeal from a jury verdict finding Cox guilty of preventing arrest); see also N.D.C.C. § 12.1-05-03(1).

[¶ 10] In this case, the trial court did not instruct the jury regarding the statutory defense to preventing arrest or discharge of other duties. Mathre did not request any jury instructions or object to the instructions given. State v. Johnson, 2001 ND 184, ¶ 10, 636 N.W.2d 391 (“Although the trial court is initially responsible for correctly instructing the jury on the law of the case, both the prosecution and the defense have the responsibility to request and object to specific instructions”). “A defendant is entitled to have the jury instructed on all defenses for which there is any support in the evidence, whether the defenses are consistent or inconsistent.” State v. Ronne, 458 N.W.2d 294, 296 (N.D.1990). Under N.D.C.C. § 12.1-08-02, the lawfulness of police conduct is a factual defense which is inappropriate for pretrial determination and subsequent suppression of evidence. Cox, 532 N.W.2d at 387. In Cox, we stated,

when the lawfulness of the police conduct has a bearing on the ultimate question of the defendant’s guilt or innocence, the jury must be permitted to resolve any factual disputes concerning the lawfulness of the police conduct. Only when the facts are not in dispute may the trial court resolve the issue as a matter of law.

Id. at 386-87 (citations and footnote omitted).

[¶ 11] Here, the material facts leading to Mathre’s arrest for disorderly conduct are not in dispute. He admits to mooning the officers in the presence of others. As a result, the officers attempted to place him under arrest, without an arrest warrant, for disorderly conduct, a class B misdemeanor.

[¶ 12] Section 29-06-15, N.D.C.C., provides in part:

1. A law enforcement officer, without a warrant, may arrest a person:
a. For a public offense, committed or attempted in the officer’s presence; and for the purpose of this subdivision, a crime must be deemed committed or attempted in the officer’s presence when what the officer observes through the officer’s senses reasonably indicates to the officer that a crime was in fact committed or attempted in the officer’s presence by the person arrested.

“The term ‘public offense’ includes misdemeanors.” State v. Overby, 1999 ND 47, ¶ 10, 590 N.W.2d 703. Therefore, whether the officers were acting lawfully and under the color of law depends upon whether the officers’ observations reasonably indicated to them that Mathre had committed the crime of disorderly conduct in their presence.

[¶ 13] Clearly, Mathre’s conduct was sufficient for the officers to reasonably believe he had committed the crime of disorderly conduct in their presence. Although Mathre was acquitted of the disorderly conduct charge, an arrest does not become unlawful merely because there is no subsequent conviction of the crime for which an individual is arrested. See N.D.C.C. § 29-06-15. Without the benefit of a transcript to review, we must infer Mathre failed to provide evidence indicating the officers were not acting lawfully, and therefore, the trial court did not err by not submitting the question to the jury.

[¶ 14] Further, Mathre’s argument fails to recognize the applicable law when force is used to resist arrest. “Our Criminal Code, first enacted in 1973, is largely modeled on the proposed 1971 Federal Criminal Code.” Ritter, 472 N.W.2d at 451 n. 8 (citing Report of the North Dakota Legislative Council, at 81 (1973)). The National Commission on Reform of Federal Criminal Laws recognized that there was a right under the common law to use force against a public official attempting to make an unlawful arrest. I Working Papers of the National Commission on Reform of Federal Cñminal Latos, at 261 (Study Draft, 1970). However, the Commission “propose[d] to do away with this privilege to use force to resist an arrest by a public servant.” Id. at 264. The Commission noted:

There are ample nonviolent remedies against improper official action. The law should not sanction any rule which would lawfully put an officer’s safety at stake when he seeks to make an arrest.
Although the draft does not permit force for the purpose of resisting arrest, it does not curtail defensive force for the purpose of resisting illegal excessive force.

Id.; see also Ritter, at 450-51 (“Generally, judicial approval of forceful reaction to official action, even when the official action is unconstitutional, is not an appropriate remedy”). This position was adopted in the Commission’s Final Report. See Final Report of the National Commission on Reform of Federal Criminal Laws, at §§ 603(a), 1302 (1971). Section 1302 of the Final Report addressed preventing arrest or discharge of other duties. The Comment to that section states:

This section singles out and treats specially physical interference with an arrest. The conflicts in present federal law on the right to resist arrest are resolved under §§ 1301 and 1302 and under § 603(a), which deals with self-defense; these sections provide a consistent pattern of affording protection from risk of serious injury to an officer engaged in his duty in good faith and under color of law.... Slight interferences which create no substantial risk to the officer are not offenses under this section. The section proscribes conduct against a public servant executing a warrant or other process in “good faith, under color of law”. Conduct in response to otherwise unlaxoful acts of a public servant is governed by the provi sions generally applicable to use of force. The circumstances under which there is justification for use of force against a federal law enforcement officer in such cases are limited by § 603(a).

(emphasis added).

[¶ 15] North Dakota enacted the relevant portions recommended by the Final Report when its criminal code was adopted in 1973. See N.D.C.C. §§ 12.1-05-03(1); 12.1-08-02. The 1973 Report of the North Dakota Legislative Council stated, if force is used “against a peace officer making an arrest which later turns out to be unlawful, such use of force will be unjustified.” Report of the North Dakota Legislative Council, at 83. This indicates the legislature’s intent to follow the recommendations regarding the use of force to resist arrest as stated in the Final Report of the National Commission. See A Hornbook to the North Dakota Criminal Code, 50 N.D.L.Rev. 639, 672 & nn. 211-12 (1974). Therefore, even if we assume the officers were acting unlawfully, Mathre’s right to forcefully resist the arrest was limited by N.D.C.C. § 12.1-05-03(1), and he was not entitled to use force unless excessive force was used by the officers. Ritter, at 451 (“Forceful resistance to an arrest ‘under color of law is no longer legally justified unless ‘excessive force’ is used by the officer”).

B.

[¶ 16] Mathre claims the officers used excessive force entitling him to forcefully resist the arrest. In this regard, his appeal raises questions similar to those we addressed in Ritter. In Ritter, the State appealed from the dismissal of a misdemeanor charge of preventing arrest against Ritter. 472 N.W.2d at 445. Ritter was detained by police officers and refused to provide them with his name when questioned about a fight in a bar. Id. at 446; see also Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, — U.S. —,— - —, 124 S.Ct. 2451, 2459-61, 159 L.Ed.2d 292, — - —(2004) (defendant’s arrest and conviction for refusing to identify himself under Nevada “stop and identify” statute did not violate Fourth and Fifth Amendments of the United States Constitution). Ritter became profane and belligerent, refused to respond to the officers’ questions, and continually asked to leave. Ritter at 446. He ultimately pushed one of the officers and was arrested for disorderly conduct. Id. When he was placed under arrest, a fight ensued and he had to be subdued by force. Id. He was charged with preventing arrest and assault in conjunction with the bar fight. Id. The preventing arrest charge was dismissed prior to trial. Id. at 447.

[¶ 17] On appeal, we agreed with the trial court that Ritter was wrongfully detained by the officers. Id. at 449. However, we did not agree that Ritter was thereby excused for his forceful conduct that followed. Id. at 450. We discussed the application of N.D.C.C. § 12.1-05-03, the self-defense statute, to situations involving the use of force against a peace officer and evaluated its legislative history in conjunction with the proposed Federal Criminal Code. Id. at 451. In relevant part, we stated:

The Comment to [proposed Federal Criminal Code] § 603 explained:
This section states the rule permitting the use of force to protect oneself from imminent harm. Present federal law on resisting unlawful arrest has been changed ... to make legality of the arrest irrelevant. The purpose of this change is to discourage self-help for the resolution of such an issue.
The use of force to resist an unlawful arrest is thus curtailed.
Legislative history shows that the North Dakota legislature specifically recognized this change:
Any person is justified in using force in self-defense against imminent unlawful bodily injury, sexual assault, or unlawful detention. However, if the force used is against a peace officer making an arrest which later turns out to be unlawful, stick use of force will be unjustified. Report of the North Dakota Legislative Council, p. 83 (1973).
....
Still, unlawful police action is not completely excused either.... [T]he courts retain the power to act upon “evidence of flagrant police misconduct such as intentional harassment or the use of excessive force.” Particularly, if an accused avoids belligerent and forceful reactions to overbearing police conduct, the courts will remedy an unlawful arrest or detention by dismissal of charges....
More immediately, the criminal statutes still recognize justification defenses as factual remedies for official misconduct. Resistance to “excessive force” by an officer acting under color of law is a factual defense to any criminal charge arising from the resistance. Specifically, where the charge is preventing arrest, as in this case, the defining statute authorizes “a defense to a prosecution under this section that the public servant was not acting lawfully....” Factual defenses remain as remedies for unlawful official conduct.
These defenses do not depend on judicial suppression of evidence or dismissal of charges. Rather, they depend upon full presentation of the facts to the trier of fact, usually the jury, for determination of the independent nature of the charged offense. Official misconduct is a justification defense to a charge of resisting arrest.

Id. at 451-53 (emphasis added) (footnotes and citations omitted). Accordingly, we reversed the dismissal and remanded the case for trial, including submission to the jury of whether the officers were not acting lawfully in arresting Ritter for resisting arrest. Id. at 453.

[¶ 18] In the present case, Mathre claims the officers used excessive force which entitled him to defend himself and his property. He contends the jury ignored any and all evidence of the act of self-defense. Under N.D.C.C. § 12.1-05-03(1), “[a] person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.” The jury was properly instructed regarding self-defense and the use of force in resisting arrest. By finding Mathre guilty of the crimes charged, the jury’s verdict can only be interpreted as finding the officers did not use excessive force, and therefore, Mathre was not justified in using force to resist the arrest. See Cox, 532 N.W.2d at 388.

IV

[¶ 19] Mathre contends the record does not support his convictions. “To preserve an issue of sufficiency of the evidence in a jury trial, the defendant must move the trial court for a judgment of acquittal under Rule 29, N.D.R.Crim.P.” City of Bismarck v. Towne, 1999 ND 49, ¶ 8, 590 N.W.2d 893. A partial transcript submitted by the State indicates Mathre did not move for judgment of acquittal at the close of the State’s case or after the presentation of all the evidence. Therefore, issues regarding sufficiency of the evidence have not been preserved for appeal. Furthermore, Mathre suffers the consequences of failing to provide a transcript on appeal, and it is virtually impossible to evaluate the sufficiency of the evidence without the benefit of a transcript to review.

V

[¶ 20] Mathre claims the trial court made various errors in instructing the jury on potential defenses to the crimes charged. Mathre was entitled to have the jury instructed on all defenses for which he provided any supporting evidence. Ronne, 458 N.W.2d at 296. However, his argument again must fail because, without a transcript, it is impossible for us to determine whether any evidence was presented at trial to support his alleged defenses.

[¶ 21] Further, Mathre was provided with the jury instructions and given an opportunity to object to them at trial, which he failed to do. Under N.D.R.Crim.P. 30(c), failure to object at trial to jury instructions when there was an opportunity to do so operates as a waiver of the right on appeal to complain of instructions that either were or were not given. Woehlhoff v. State, 531 N.W.2d 566, 568 (N.D.1995). Nevertheless, an error that infringes upon substantial rights of a defendant is noticeable notwithstanding lack of an objection or in the absence of a request for an instruction. State v. Kraft, 413 N.W.2d 303, 307 (N.D.1987); see also N.D.R.Crim.P. 52(b).

The power to notice obvious error is exercised cautiously and only in exceptional circumstances where the defendant has suffered a serious injustice. In assessing the possibility of error concerning substantial rights under Rule 52(b), it is necessary to examine the entire record and the probable effect of the actions alleged to be error in light of all the evidence.

Kraft, at 307 (citations omitted).

[¶ 22] The partial record before us does not indicate the trial court committed obvious error in instructing the jury and, without a complete transcript to review, it is impossible to determine whether obvious error occurred at trial. Therefore, we conclude Mathre has waived his right to appeal issues regarding the jury instructions.

[¶ 23] The judgment is affirmed.

[¶ 24] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

      . Mathre was charged under section 23-16 of Minot City Ordinance 2455, § 5, which provides, in pertinent part:
      No person shall with intent to harass, annoy or alarm another person, or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by his behavior:

      (3) In a public place, use abusive or obscene language, or make an obscene gesture;
      Section 12.1-31-01, N.D.C.C., provides in relevant part:
      1. An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual’s behavior, the individual:

      c. In a public place, uses abusive or obscene language, knowingly exposes that individual's penis, vulva, or anus, or makes an obscene gesture;

      2. This section does not apply to constitutionally protected activity. If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 145
    MINN-KOTA AG PRODUCTS, INC., and Minn-Kota Ag Products, Inc. 401(K) Profit Sharing Plan, Plaintiffs and Appellants, v. Bruce H. CARLSON and McNair, Larson & Carlson, Ltd., Defendants and Appellees.
    No. 20030303.
    Supreme Court of North Dakota.
    July 6, 2004.

      James P. Carey (argued) of Sieben, Grose, Yon Holtum & Carey, Ltd., Minneapolis, MN, and Richard E.T. Smith and Jason R. Butts of Smith, Strege & Freder-icksen, Wahpeton, N.D., for plaintiffs and appellants.
    David S. Maring (argued) and Anthony J. Weiler of Maring Williams Law Office, Bismarck, N.D., for defendants and appel-lees.
   NEUMANN, Justice.

[¶ 1] Minn-Kota Ag Products, Inc., and Minn-Kota Ag Products, Inc. 401(K) Profit Sharing Plan (“Minn-Kota”) appeal from the district court’s summary judgment in favor of Bruce H. Carlson and McNair, Larson & Carlson, Ltd. (“Carlson”) dismissing Minn-Kota’S' legal malpractice action against Carlson. Because Minn-Kota had actual knowledge, as a matter of law, of Norwest’s breach or violation of its fiduciary duty at least three years before it retained Carlson, and that knowledge triggered the three-year statute of limitations more than three years before Carlson was retained, we affirm.

I

[¶ 2] The underlying facts are undisputed. In 1988, Minn-Kota Products, Inc., established a 401(K) Profit-Sharing Plan (“Plan”) for its employees. Norwest Bank North Dakota, now known as Wells Fargo (“Norwest”), was trustee of the Plan. As early as 1991, Minn-Kota was not satisfied with Norwest’s handling of the Plan. In 1991, Minn-Kota knew Norwest had failed to file Form 5500 and tax returns for the Plan. Form 5500 is an annual report of an employee benefit plan to be filed with the United States Secretary of Labor as required under 29 U.S.C. §§ 1023 and 1024. By 1992, Minn-Kota was seeking a successor trustee. In December 1993, Minn-Kota Products transferred the Plan’s assets to First National Bank North Dakota (“First National”). Early in 1994, Minn-Kota hired John Power, a certified public accountant, to review its concerns with Norwest’s handling of the Plan. Power observed problems resulting from Norwest’s handling of the Plan, including a failure to provide requested Plan documents, unorganized files and documentation, irregularities with accountings, excess distributions to retirees, and failure to file required forms and tax returns. Power wrote letters to the Internal Revenue Service explaining the problems and requesting waiver of any penalties because Norwest had caused the problems rather than Minn-Kota. On March 22, 1994, Dan Bra-ton, then controller of Minn-Kota, wrote a memorandum describing his communications with Diann C. Johnson of the Internal Revenue Service, during which she stressed the importance of detailing Nor-west’s negligence. On August 2, 1994, Minn-Kota representatives, John Power, and Steve Remark, a regional manager of First National, met with Pam Anderson and Vicki Weber of Norwest. Darrell Peterson of Minn-Kota prepared a memorandum to the board of directors explaining the discussions held at that meeting relating to problems with Norwest’s handling of the Plan. The memorandum noted Minn-Kota representatives told Pam Anderson the “IRS could be looking at $300,000 in penalties and interest — maybe more & hopefully less” and Steve Remark “had grave concerns about the Dept, of Labor and the potental [sic] audit that could occur.” Sigco Sun Products, Inc., is a sister corporation of Minn-Kota with several directors and shareholders in common. On September 15, 1994, Attorney Karl Cam-bronne sued Norwest on behalf of Sigco Sun Products, Inc. Profit Sharing 401(K) Plan, alleging many of the same breaches of fiduciary duty later asserted in Minn-Kota’s case against Norwest. In June 1995, Minn-Kota talked with Cambronne regarding the possibility of a lawsuit against Norwest regarding Minn-Kota’s Plan. On June 14, 1995, Marilyn Anderson, a Minn-Kota controller, wrote to Cam-bronne listing problems Minn-Kota had with Norwest’s handling of the Plan, specifically noting:

Prohibited transaction excise taxes.
Cost of correcting prohibited transactions: Surrender charges, etc.
ERISA penalties: Failure to provide summary plan descriptions, annual reports, etc.
Lack of written plan documents.
Correction of incorrect distributions, etc., due to accounting errors (annuity valuation mistakes).
Questionable interest rates and loan amounts to participants.

On October 16, 1996, Power submitted a final report to First National, with a copy to Minn-Kota, providing a detailed summary of Minn-Kota’s problems caused by Norwest. In November 1996, Minn-Kota representatives met with Carlson regarding a possible claim against Norwest, but did not retain Carlson at that time.

[¶ 3] In September 1998, Minn-Kota retained Carlson to represent it in a legal action against Norwest for breach of fiduciary duty under the Employee Retirement Income Security Act (“ERISA”). In March 2000, Carlson filed an action against Norwest on behalf of Minn-Kota in federal district court alleging ERISA violations. The federal district court issued a summary judgment in favor of Norwest dismissing the action as untimely under the three-year statute of limitations applicable to ERISA under 29 U.S.C. § 1113. The Eighth Circuit Court of Appeals affirmed the federal district court’s grant of summary judgment.

[¶ 4] In September 2002, Minn-Kota sued Carlson, alleging Carlson had committed legal malpractice by failing to file an action against Norwest within the statute of limitations. Carlson moved for summary judgment, asserting he did not commit legal malpractice by failing to bring an action on behalf of Minn-Kota within the statute of limitations because the statute of limitations had expired before he was retained as counsel. The district court found “as a matter of law Minn-Kota had actual knowledge of a breach or violation by Norwest more than three years before” Carlson was retained. The district court granted summary judgment in Carlson’s favor dismissing Minn-Kota’s action with prejudice. Minn-Kota appeals, arguing the district court improperly granted summary judgment by determining Minn-Kota had actual knowledge of a breach or violation more than three years before Carlson was retained, triggering the three-year statute of limitations for bringing an ERISA action.

II

[¶ 5] Whether a district court appropriately granted summary judgment is a question of law subject to a de novo standard of review. Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343. Summary judgment is a procedural device for disposing of an action without a trial if a party is entitled to judgment as a matter of law, and no dispute exists as to the material facts or the reasonable inferences to be drawn from the undisputed facts, or if resolving disputed facts will not change the result. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343; N.D.R.Civ.P. 56. This Court reviews the evidence in a light most favorable to the opposing party and determines if summary judgment was appropriately granted as a matter of law. Iglehart, at ¶ 9, 670 N.W.2d 343. In Iglehart, we stated:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. 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 comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief. Additionally, mere speculation is not enough to defeat a motion for summary judgment. A scintilla of evidence is not sufficient to support a claim, there must be enough evidence for a reasonable jury to find for the plaintiff.

2003 ND 154, ¶ 10, 670 N.W.2d 343 (citations omitted).

Ill

[¶ 6] Minn-Kota argues the district court improperly granted summary judgment because this case stems from a legal malpractice action involving issues of negligence calling for extensive factual findings, making summary judgment inappropriate. Carlson argues the district court properly granted summary judgment; as a matter of law Carlson could not have committed legal malpractice by missing the statute of limitations because the statute of limitations had already run by the time he was retained.

[¶ 7] Professional negligence in a legal malpractice action involves establishing the existence of an attorney and client relationship, an attorney’s duty to a client, an attorney’s breach of that duty, and damages caused by the attorney’s breach. Larson v. Norkot Manufacturing, Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33; Dan Nelson Construction v. Nodland & Dickson, 2000 ND 61, ¶ 14, 608 N.W.2d 267. Although a legal malpractice action is generally not appropriate for summary judgment, particularly when it involves an issue of proximate cause, Dan Nelson Construction, at ¶ 15, 608 N.W.2d 267, “issues of fact may become questions of law if reasonable persons could reach only one conclusion from the facts.” Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343.

[¶ 8] The fourth element of a legal malpractice action, damages caused by the alleged breach, is the underlying consideration of this case. “When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefitted the client.” Dan Nelson Construction, 2000 ND 61, ¶ 14, 608 N.W.2d 267. Determining whether Minn-Kota had actual knowledge of a breach or violation by Nor-west more than three years before it retained Carlson also determines whether Carlson caused the plaintiff damage by failing to timely file the action. Because the merits and outcome of the underlying legal malpractice case rest on determining a question of law, summary judgment is appropriate. See Dan Nelson Construction, at ¶ 15, 608 N.W.2d 267.

IV

[¶ 9] Minn-Kota argues the district court erred in granting summary judgment because genuine issues of fact and reasonable inferences to be drawn from the facts exist as to whether Minn-Kota had actual knowledge of Norwest’s breach or violation of its fiduciary obligation to Minn-Kota under ERISA, sufficient to trigger the three-year statute of limitations for commencing an action. Specifically, Minn-Kota asserts the determination of what constitutes actual knowledge and when Minn-Kota acquired actual knowledge of Norwest’s breach or violation involves extensive factual findings that should be resolved by a fact finder. Minn-Kota maintains a jury should be allowed to assess credibility and make factual determinations as to when Minn-Kota had actual knowledge of Norwest’s breach. According to Minn-Kota, it knew “something was awry,” but did not know it had a cause of action for a violation or breach under ERISA. Minn-Kota directs this Court to various undisputed factual transactions between 1991 and 1995 and, by way of unsupported speculation, attempts to draw disputable inferences. The mere speculations Minn-Kota has raised are not enough to defeat a motion for summary judgment. See Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343 (citations omitted). On this record, we are not persuaded reasonable persons could reach varying conclusions sufficient to find for the plaintiff.

[¶ 10] ERISA has an express statute of limitations barring breach of fiduciary duty claims three years after the earliest date a plaintiff has actual knowledge of the breach. The statute of limitations governing ERISA actions provides:

No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of
(1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation;
except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.

29 U.S.C. § 1113 (emphasis added).

[¶ 11] This Court has not addressed actual knowledge in the context of an ERISA claim, therefore, we are guided by federal courts. Our review of federal court decisions reveals a range of standards applied in determining actual knowledge in an ERISA action. See, e.g., Brown v. American Life Holdings, Inc., 190 F.3d 856, 859 (8th Cir.1999) (quoting Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3rd Cir.1992)), (holding, “a plaintiff must have ‘actual knowledge of all material facts necessary to understand that some claim exists’ ”); Gluck, 960 F.2d at 1177-78 (holding “a plaintiff have actual knowledge of all material facts necessary to understand that some claim exists,” and reasoning “[a]ctual knowledge of a breach or violation requires knowledge of all relevant facts at least sufficient to give the plaintiff knowledge that a fiduciary duty has been breached or ERISA provision violated”); Martin v. Consultants & Adm’rs, Inc., 966 F.2d 1078, 1086 (7th Cir.1992) (holding “the relevant knowledge for triggering the statute of limitations is knowledge of the facts or transaction that constituted the alleged violation ... it is not necessary for a potential plaintiff to have knowledge of every last detail of a transaction, or knowledge of its illegality,” reasoning “somewhere between ‘every last detail’ and ‘something was awry’ lies the requisite knowledge of an ERISA violation” and generalizing that “[t]he proper characterization will usually turn in part on the complexity of the underlying factual transaction, the complexity of the legal claim and the egregiousness of the alleged violation” (emphasis in original)); Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2nd Cir. 2001) (citing Blanton v. Anzalone, 760 F.2d 989, 992 (9th Cir.1985)) (holding a plaintiff “must have knowledge of all facts necessary to constitute a claim”); Richard B. Roush, Inc. Profit Sharing Plan v. New England Mut. Life Ins. Co., 311 F.3d 581, 585 (3rd Cir.2002) (holding actual knowledge as requiring “not only actual knowledge of the facts giving rise to the fiduciary violation but also as requiring actual knowledge that those facts support a cause of action under ERISA”); Int’l Union of Elect., Elect., Salaried, Mach. and Furniture Workers v. Murata Erie N. Am., Inc., 980 F.2d 889, 900 (3rd Cir.1992) (holding actual knowledge as requiring “a showing that plaintiffs actually knew not only of the events that occurred which constitute the breach or violation but also that those events supported a claim of breach of fiduciary duty or violation under ERISA”).

[¶ 12] The range of standards applied by federal courts in determining actual knowledge in the context of ERISA is helpful to our consideration; however, adopting a specific standard is not necessary to our decision in this case. On this record, Minn-Kota had actual knowledge by June 14, 1995, under even the most stringent of federal applications. The record evidences actual knowledge of Nor-west’s breaches or violations before 1995 and actual knowledge that those breaches or violations support a claim under ERISA.

[¶ 13] As early as 1991, Minn-Kota was not satisfied with Norwest’s handling of the Plan and knew Norwest had failed to file required forms and tax returns for the Plan, giving rise to potential penalties. Sigco, Minn-Kota’s sister corporation with several directors and shareholders in common, hired attorney Cambronne who commenced a federal action for Sigco against Norwest alleging many of the same ERISA violations later claimed by Minn-Kota. Minn-Kota hired a certified public account and an attorney, consequently incurring fees and costs. On June 9, 1995, Cambronne wrote a letter to Norwest’s attorney on Minn-Kota’s behalf documenting problems with Norwest’s handling of Minn-Kota’s Plan, which stated in closing “I trust you agree it is best to have this type of a problem resolved without the necessity of lawyers and lawsuits,” evidencing Minn-Kota knew some claim was supported. On June 20, 1995, Cambronne wrote to Norwest’s attorney enclosing a June 14, 1995, letter he had received from Marilyn Anderson, Minn-Kota’s controller. Anderson detailed specific problems Minn-Kota had with Norwest’s handling of the Plan. Each listed problem related to a known breach, violation, expenditure, or penalty that Minn-Kota had suffered because of Norwest’s handling of the Plan. The undisputed facts prove Minn-Kota had actual knowledge of all material facts necessary to understand some claim existed due to Norwest’s breaches or violations by June 14, 1995, at the latest, triggering the three-year statute of limitations.

V

[¶ 14] Whether Minn-Kota had actual knowledge sufficient to trigger the three-year statute of limitations is a question of law. Although questions of law may depend on facts to be determined by a fact finder, that is not the case here. Minn-Kota has not presented facts or drawn reasonable inferences from the undisputed facts that would allow a fact finder to reasonably find Minn-Kota did not have actual knowledge of Norwest’s breaches or violations under ERISA, by June 14, 1995, three years before retaining Carlson. The record clearly shows that Minn-Kota had actual knowledge, as a matter of law, of Norwest’s breaches or violations at least by June 14, 1995, triggering the three-year statute of limitations.

[¶ 15] The district court’s summary judgment dismissing Minn-Kota’s legal malpractice claim against Carlson with prejudice is affirmed.

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

[¶ 17] The Honorable KIRK SMITH, Surrogate Judge, sitting in place of MARING, J., disqualified.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 87
    Melanie REGALADO, Plaintiff and Appellee, v. Ardith Jean Ferguson MATHIESON, Defendant and Appellant.
    No. 23026.
    Supreme Court of South Dakota.
    Considered on Briefs June 1, 2004.
    Decided June 30, 2004.

      Stanley E. Whiting, Winner, South Dakota, Attorney for plaintiff and appellee.
    Neil Carsrud, Dakota Plains Legal Services, Mission, South Dakota, Attorney for defendant and appellant.
    Sandy J. Steffen of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, South Dakota, Attorneys for appellees Minor Children.
   GILBERTSON, Chief Justice.

[¶ 1.] Mother appeals from a trial court’s dismissal of an action initiated by Grandmother pursuant to SDCL 25-5-29 et seq. seeking custody of Mother’s two children, T.H.M and M.M.M. On appeal, Mother argues the trial court abused its discretion when it dismissed the action based on its finding South Dakota was an inconvenient forum. Mother also contends the trial court committed reversible error when it declined to communicate with a California court in which Grandmother had commenced a separate guardianship proceeding. Finally, Mother renews her' previous argument that SDCL 25-5-29 et seq. is not the proper statutory scheme under which a non-parent may initiate a custody proceeding based upon allegations of abuse and neglect. For the reasons articulated herein, we affirm the trial court’s order dismissing the action.

FACTS AND PROCEDURE

[¶ 2.] This appeal marks the third time these parties have been before this Court. In Matter of the Guardianship and Conservatorship for T.H.M. and M.M-M., 2002 SD 13, 640 N.W.2d 68 (T.H.M.I), we reversed a trial court’s termination of Mother’s custodial rights based upon its determination that the children were abused and neglected. In the opinion, a three-justice majority held that Grandmother could not use the South Dakota Guardianship and Conservatorship Act, set forth in SDCL ch. 29A-5, to gain custody of the children based upon allegations of abuse and neglect. Id. ¶¶ 9-10, 640 N.W.2d 68. Rather, the majority believed that SDCL ch. 26-7A and 26-8A were the proper statutes under which to adjudicate custody based on allegations of abuse and neglect. Id. ¶ 10, 640 N.W.2d 68. We remanded the case and directed the trial court to:

[Ojrder DSS to intervene in this action pursuant to its statutory duty under SDCL 26-8A-9, pending an adjudication of the abuse and neglect proceedings.

Id. ¶ 16, 640 N.W.2d 68.

[¶ 3.] On remand, DSS failed to conduct an abuse and neglect investigation as to T.H.M and M.M.M., and, as a result, the state’s attorney stated that she had no basis for filing an abuse and neglect proceeding. The trial court took the matter under consideration. In the meantime, Grandmother initiated the action underlying the present appeal seeking custody of the children under SDCL 25-5-29 and 25-5-30, statutes enacted after this Court’s decision in T.H.M I, which permit a non-parent to pursue custody under certain circumstances. The trial court then dismissed the original guardianship proceedings and allowed Grandmother to proceed under SDCL 25-5-29 et seq. We summarily affirmed .the trial court’s dismissal of the original guardianship proceedings in Matter of. the Guardianship and Conservatorship for T.H.M. and M.M.M., 683 N.W.2d 423 (Table) (2004) (T.H.M.II).

[¶ 4.] Although she initiated the second action, Grandmother subsequently moved for a dismissal under SDCL 26-5A-7 on the grounds South Dakota was an inconvenient forum to make a custody determination. After conducting a hearing, the trial court dismissed the action and yielded jurisdiction to California under the Uniform Child Custody Jurisdiction Act (UC-CJA), codified by South Dakota at SDCL ch. 26-5A. Mother now appeals raising three issues for our review:

1. Whether the trial court abused its discretion in dismissing the action based upon its finding South Dakota was an inconvenient forum pursuant to SDCL 26-5A-7.
2. Whether the trial court committed reversible error when it declined to communicate with the California court.
3. Whether Grandmother may seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect.

STANDARD OF REVIEW

[¶ 5.] We employ the abuse of discretion standard when reviewing a trial court’s decision to decline jurisdiction as an inconvenient forum under the UCCJA. Ford v. Ford, 2002 SD 147, ¶7, 655 N.W.2d 85, 86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 16, 591 N.W.2d 798, 804 (citation omitted). Questions of law, such as statutory construction, are reviewed de novo with no deference afforded the trial court’s decision. T.H.M. I, 2002 SD 13, ¶ 7, 640 N.W.2d at 70-71 (citation omitted). Findings of fact, however, will not be overturned unless they are clearly erroneous. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id.

ANALYSIS AND DECISION

[¶ 6.] 1. Whether the trial court abused its discretion in dismissing the action based upon its finding South Dakota was an inconvenient forum pursuant to SDCL 26-5A-7.

[¶ 7.] After conducting a hearing with the attorneys for Mother, Grandmother, and the children, the trial court granted Grandmother’s motion to dismiss this guardianship action based upon its finding that South Dakota was an inconvenient forum in which to make a custody determination. Mother believes the trial court abused its discretion in making this determination, and she urges this Court to reverse the trial court and reinstate the custody proceedings in South Dakota. Following a careful review of the lengthy proceedings underlying this appeal, however, we believe the trial court reasonably exercised its discretion in determining South Dakota to be an inconvenient forum for purposes of the UCCJA under the particular facts of this case.

[¶ 8.] Under both the UCCJA and the Parental Kidnapping Prevention Act (PKPA), “the state granting the original custody decree maintains exclusive continuing jurisdiction to modify custody decrees so long as the child or one of the contestants remains in that state.” Fuerstenberg, 1999 SD 35, ¶ 19, 591 N.W.2d at 805; SDCL 26-5A-14; 28 USC § 1738A(d). Here, a South Dakota court made the initial custody determination, and Mother continues to reside in this state; therefore, the trial court clearly had jurisdiction to entertain Grandmother’s action to seek custody of the children. Under South Dakota’s codified version of the UCCJA, however, a court may decline to exercise jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” SDCL 26-5A-7. In making this decision, a trial may consider the following nonexclusive factors:

(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate.

Id. “Ultimately, the question comes down to whether ‘it is in the interest of the child that another state assume jurisdiction.’” Fuerstenberg, 1999 SD 35, ¶ 20, 591 N.W.2d at 805 (quoting SDCL 26-5A-7).

[¶ 9.] Here, the trial court determined the factors set out in SDCL 26-5A-7 militated against South Dakota exercising jurisdiction. First, the court noted the children have been living with Grandmother in California for over four years. The trial court further determined the children had closer connections with California and that evidence concerning the children’s current or future well-being was more readily available in that state. Central to the court’s analysis were the findings of fact and conclusions of law entered after the initial custody proceedings. These findings detailed the children’s involvement in numerous activities in California including basketball, soccer, and dance, along with their participation in church, youth groups and Sunday school. Additionally, the court found the children were involved in both individual and group counseling in California. Perhaps most importantly, the court found that the children had only received proper dental and medical care since their relocation to California, a significant finding given the necessity of T.H.M/s seeing a cardiac specialist for a heart valve problem. These findings were based to a great extent upon the observation of numerous witnesses who appeared in person or by deposition at the initial custody proceedings.

[¶ 10.] Under the particular circumstances of this case, the trial court’s findings of fact appear to be supported by the record and all reasonable inferences drawn therefrom. In light of these find^ ings, the trial court determined a California court would be better suited to make a custody determination concerning T.H.M. and M.M.M. We afford the trial court wide latitude in making such determinations, whether it chooses to exercise or decline jurisdiction. See Ford, 2002 SD 147, ¶ 11, 655 N.W.2d at 87; Fuerstenberg, 1999 SD 35, ¶ 21, 591 N.W.2d at 806. Our review of the record before us strongly suggests the trial court did not abuse its discretion in deferring to the California court’s jurisdiction. Current evidence concerning the children’s care, protection, training, and personal relationships will be more readily available in that jurisdiction where the children have resided for well over four years. While we acknowledge Mother may experience some hardship in defending a custody proceeding in California, the interests of T.H.M. and M.M.M. must be considered paramount. Accordingly, we find no abuse of discretion in this case.

[¶ 11.] 2. Whether the trial court committed reversible error when it declined to communicate with the California court.

[¶ 12.] For her second point of error, Mother argues that the trial court committed reversible error when it declined to directly communicate with the California court wherein Grandmother had commenced a separate custody proceeding. At a hearing on Grandmother’s motion to dismiss, the trial court stated, “It seems to me that [talking to the California court] would be a futile gesture at this time.” The court made this statement after determining South Dakota to be an inconvenient forum for the custody proceedings. Mother believes the trial court’s decision runs counter to language in SDCL 26-5A-6 stating that “[i]f the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court in order that the issues may be litigated in the more appropriate forum.”

[¶ 13.] Given the context of the trial court’s decision, we do not believe the trial court committed reversible error when it failed to communicate with the California court. As we explained In The Matter of the Termination of the Parental Rights Over M.C.S., “[o]nce it is determined that jurisdiction exists ... the court must determine whether jurisdiction should be exercised in view of SDCL 26-5A-6 (simultaneous proceedings in other states) [and] 26-5A-7 (inconvenient forum)[.]” 504 N.W.2d 322, 326 (S.D.1993). Here, because the trial court entered the initial custody determination underlying these proceedings and considering Mother still resides in South Dakota, it clearly had continuing jurisdiction under the UCCJ. Fuerstenberg, 1999 SD 35, ¶ 19, 591 N.W.2d at 805; SDCL 26-5A-14; see 28 USC § 1738A(d) (continuing jurisdiction under the PKPA). The trial court, however, ultimately declined to exercise jurisdiction given its inconvenient forum analysis pursuant to SDCL 26-5A-7 and dismissed Grandmother’s action. Thus, under these circumstances, informing the California court would seem • to have accomplished little and no real prejudice is shown. Mother’s argument under this issue fails.

[¶ 14.] 3. Whether Grandmother may seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect.

[¶ 15.] Mother renews an argument she presented to this Court in her last appeal, T.H.M. II, asserting that Grandmother may not seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect. Instead, Mother submits ■ that such a proceeding must be commenced under SDCL ch. 26-7A and 26-8A involving abuse and neglect proceedings conducted by the state. Mother grounds her argument in this Court’s analysis in T.H.M. I finding that the South Dakota Guardianship Act, found at SDCL ch. 29A-5, was “not the proper means of transferring custody from a parent to a non-parent without a prior determination of a parent’s unfitness.” 2002 SD 13, ¶ 9, 640 N.W.2d at 71. The opinion concluded that custody determinations based upon allegations of abuse and neglect must be conducted pursuant to SDCL 26A-7A and 26A-8A with the accompanying “constitutional safeguards embedded within [these] chapters” that were not included in the general Guardianship Act. Id. ¶ 10, 640 N.W.2d 68.

[¶ 16.] Subsequent to. our decisions in T.H.M. I and the well-publicized case of Meldrum v. Novotny, 2002 SD 15, 640 N.W.2d 460, the Legislature enacted SDCL 25-5-29 through 25-5-34. This statutory scheme permits a non-parent to pursue custody in certain situations:

Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child’s parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent’s presumptive right to custody of his or her child may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected the child;
(2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent;
(3) That the parent has abdicated his or her parental rights and responsibilities; or
(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child.

SDCL 25-5-29. Circumstances suggesting serious detriment to a child are further defined in SDCL 25-5-30. Additionally, SDCL 25-5-32 allows custody to be transferred to a non-parent without terminating parental rights over a child.

[¶ 17.] Mother maintains Grandmother may not seek custody of the children under this statutory scheme based upon allegations of abuse and neglect.

While the argument’s basic premise may merit attention by this Court, it is a question that cannot be addressed on this particular appeal. First, as to Mother’s case, the issue is moot. We have already determined the trial court acted within its discretion to decline jurisdiction and dismiss the action. Thus, Grandmother will not be proceeding in a South Dakota court arguing the application of SDCL 25-5-29. “[P]rinciples of judicial restraint dictate that when an issue effectively disposes of the case, other issues that are presented should not be reached.” Thompson v. Summers, 1997 SD 103, ¶ 24, 567 N.W.2d 387, 395, n. 8 (Miller, C.J., concurring in result).

[¶ 18.] Moreover, the substance of Mother’s argument concerns SDCL 25-5-29’s assurance “the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court.” As Mother posits in her appellate brief “[o]ne is left to wonder just what a trial court will say those rights are.” Although not specifically framed as such, Mother’s argument essentially raises a constitutional challenge to the statute itself. SDCL 15 — 6—24(c) provides:

When the constitutionality of an act -of the Legislature affecting the public interest is drawn in question in any action to which the state or an officer, agency or employee of the state is not a party, the party asserting the unconstitutionality of the act shall notify the attorney general thereof within such time as to afford him the opportunity to intervene,

(emphasis added). Here, Mother failed to provide notice to the Attorney General of her constitutional challenge to SDCL 25-5-29. Generally, this Court “will not rule on the constitutionality of a statute unless the Attorney General has been notified because when an adjudication of unconstitutionality may seriously affect the general public, it is proper for the Attorney General to appear on behalf of the Legislature and the people.” West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687 (citing Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D.1988); Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 870 (S.D.1990)).

[¶ 19.] The, Legislature enacted SDCL 25-5-29 et seq. after this Court’s decisions in T.H.M. I, 2002 SD 13, 640 N.W.2d 68, and Novotny, 2002 SD 15, 640 N.W.2d 460, in order to allow a non-parent to seek custody under certain circumstances. We will not entertain a constitutional challenge to this statutory scheme without the benefit of argument by the Attorney General.

[¶ 20.] For the reasons set forth herein, the judgment of the trial court dismissing Grandmother’s action is affirmed.

[¶ 21.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . SDCL 26-7A-43 provides in part, "[a] state's attorney may file with the clerk of courts a written petition alleging a child ... to be an abused or neglected child[.]” (emphasis added). The statute further provides that "[i]f the petition is signed by a party other than the state's attorney, the petition shall be verified.”
      Based on the clear language of the statute, it was within the state’s attorney's discretion whether to file an abuse and neglect proceeding. Because the opinion in T.H.M. I contemplated the action proceeding under the abuse and neglect statutes, and considering the state's attorney did not commence such a proceeding, the trial court had no alternative but to dismiss the action.

      . According to SDCL 25-5-30:
      Serious detriment to a child may exist whenever there is proof of one or more of the following extraordinary circumstances:
      (1) The likelihood of serious physical or emotional harm to the child if placed in the parent’s custody;
      (2) The extended, unjustifiable absence of parental custody;
      (3) The provision of the child’s physical, emotional, and other needs by persons other than the parent over a significant period of time;
      (4) The existence of a bonded relationship between the child and the person other than the parent sufficient to cause significant emotional harm to the child in the event of a change in custody;
      (5) The substantial enhancement of the child’s well-being while under the care of a person other than the parent;
      (6) The extent of the parent’s delay in seeking to reacquire custody of the child;
      (7) The demonstrated quality of the parent's commitment to raising the child;
      (8) The likely degree of stability and security in the child’s future with the parent;
      (9) The extent to which the child's right to an education would be impaired while in the custody of the parent; or
      (10) Any other extraordinary circumstance that would substantially and adversely impact the welfare of the child.

      . Arguably, as to this particular set of facts and parties, the issue is also res judicata. Mother raised the exact same argument during her most recent appeal, and we summarily affirmed the trial court despite this argument. See SDCL 15-26A-87.1(E) (allowing use of decisions rendered under the statute “when the decision establishes the law of the case, res judicata or collateral estoppel”).


text:
    2004 SD 86
    Karen NELSON, Plaintiff and Appellee, v. FARMERS MUTUAL INSURANCE COMPANY OF NEBRASKA, Defendant and Appellant.
    No. 23074.
    Supreme Court of South Dakota.
    Considered on Briefs June 01, 2004.
    Decided June 30, 2004.

      Nancy J. Turbak, Turbak Law Office, P.C., Watertown, South Dakota, Attorney for plaintiff and appellee.
    Richard L. Travis, David A. Pfeifle of May & Johnson, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Farmers Mutual Insurance Company of Nebraska (Farmers Mutual) appeals a declaratory judgment allowing Karen Nelson (Nelson) to submit two separate claims for damages subject to the maximum underinsured motorist coverage limit. Nelson’s claims arose as a result of an automobile-pedestrian collision which claimed the lives of her mother and father. We affirm the judgment of the trial court.

FACTS AND PROCEDURE

[¶ 2.] The facts underlying this appeal are not in dispute. On September 1, 2001, a van driven by Donald Huber struck and killed Verna Mae Gloe and Larry Gloe in Watertown, South Dakota. Nelson, the daughter of Larry Gloe and Verna Mae Gloe and at all times relevant to this action a policy holder with Farmers Mutual, was not involved in the accident. Considering the circumstances surrounding the accident, Nelson was entitled to collect damages from Huber for the deaths of her parents. Huber, however, was underin-sured. Insurers providing the applicable liability insurance coverage paid Nelson $41,583 in damages for the death of her father and Nelson received $40,611 in damages for the death of her mother from the relevant insurance policies.

[¶ 3.] Based upon her automobile insurance policy in effect at the time of the accident, Nelson submitted two claims to Farmers Mutual for underinsured motorist coverage arising as a result of the deaths of her mother and father. Although Farmers Mutual admitted its policy’s un-derinsured motorist coverage entitled Nelson to seek damages as a result of her parents’ deaths, the parties disagreed as to the limits of the coverage. Nelson contented that each of her claims for underin-sured motorist benefits was subject to a separate $100,000 limit outlined in the policy. Farmers Mutual argued Nelson was entitled to submit only one claim as a result of her parents’ deaths,'subject to the $100,000 limit for underinsured motorist coverage.

[¶ 4.] Nelson subsequently commenced a suit for declaratory judgment in a South Dakota circuit court. A trial before the court was held on August 25, 2003. After considering a set of stipulated facts along with written and oral argument by Nelson and Farmers Mutual, the trial court entered findings of fact and conclusions of law granting a declaratory judgment to Nelson. Consistent with its judgment, the trial court ruled Nelson was entitled to $58,417 ($100,000 minus the previously awarded $41,583) for the death of her father and $59,389 ($100,000 minus the previously awarded $40,611) for the death of her mother. Farmers Mutual now appeals and raises the following issue for our review:

Whether the underinsured motorist coverage contained in the Farmers Mutual insurance policy entitled Nelson to submit two separate' claims for damages arising out of her parents’ deaths.

Affirmed.

' STANDARD OF REVIEW

[¶ 5.] We review declaratory judgments as we would any other judgment or order. SDCL 21-24-13; Parks v. Cooper; 2004 SD 27, ¶20, 676 N.W.2d 823, 828-29. Questions of law such as the construction of an insurance contract are reviewed de novo without deference to the trial court. Roden v. General Casualty, 2003 SD 130, ¶ 6, 671 N.W.2d 622, 625. We review the circuit court’s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25.

ANALYSIS AND DECISION

[¶ 6.] Whether the underinsured motorist coverage contained in the Farmers Mutual insurance policy entitled Nelson to submit two separate claims for damages arising out of her parents’ deaths.

[¶ 7.] In the controversy presently before this Court, Farmers Mutual acknowledged Nelson was entitled to recover un-derinsured motorist benefits under the terms of its policy. Our task is to determine whether Nelson’s claims arising out of the deaths of her mother and father are individually or collectively subject to the liability limit provided in the policy between Nelson and Farmers Mutual. This is the sole issue presented on appeal. We acknowledge courts in other jurisdictions are split on the propriety of allowing an insured, pursuant to statutorily required underinsured motorist policy provision, to recover damages arising from bodily injury or death of a third person. Compare Wetherbee v. Economy Fire & Casualty Co., 508 N.W.2d 657 (Iowa 1993) (insured allowed to collect for damages sustained by third party); Sexton v. State Farm, 69 Ohio St.2d 431, 433 N.E.2d 555 (1982), superseded by statute, (insured does not have to be the person who sustained bodily injury); State Farm v. Selders, 187 Neb. 342, 190 N.W.2d 789 (1971); with Farmers Insurance Exchange v. Chacon, 939 P.2d 517 (Colo.Ct.App.1997) (denying recovery where policy limited coverage to only “bodily injury sustained by the insured person”); Livingston v. Omaha Property and Casualty Insurance Company, 927 S.W.2d 444 (Mo.Ct.App.1996) (public policy not offended by insurance contract’s limitation of coverage to “injuries sustained by the insured”); Bartning v. State Farm Fire & Casualty, 164 Ariz. 370, 793 P.2d 127. Given the particular facts and posture of this case, however, today’s opinion does not address the wisdom or public policy of allowing such suits.

[¶ 8.] In South Dakota, automobile insurance providers must provide underin-sured motorist coverage in their policies. SDCL 58-11-9.4. Nelson’s policy with Farmers Mutual provided:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underin-sured motor vehicle.

(emphasis added). The policy defined “bodily injury” as “physical harm to the body, sickness, or disease and resulting death.” There is no dispute that Nelson is “an insured” under the policy. According to the policy’s language, liability under the underinsured motorist coverage was limited to:

The bodily injury liability limit for “each person ” is the maximum we will pay as damages for bodily injury to one person in any one occurrence.

(emphasis added). The policy’s sets the maximum limit for recovery at $100,000.

[¶ 9.] Farmers Mutual admitted Nelson was entitled to collect damages as a result of the deaths of her mother and father. The real issue in this case revolves around who sustained the “bodily injury” as a result of the accident that claimed Nelson’s parents’ lives. The trial court specifically found Nelson did not sustain any bodily injury as a result of the accident, but it followed the theory that she was entitled to collect for the bodily injury — death—her parents sustained in the accident. Thus, because the policy allowed for maximum recovery for “each person” who sustained bodily injury, it found that Nelson was entitled to two claims for damages, each claim subject to the $100,000 limit.

[¶ 10.] On appeal, Farmers Mutual argues that Nelson only had one claim for damages because she sustained “bodily injury” as result of the accident that killed her parents. It insists, therefore, that this one claim was subject to the $100,000 maximum provided by the insurance policy. Nelson counters that the policy does not explicitly require that the insured personally sustain bodily injury, but instead guarantees coverage in situations where an insured is “entitled to collect” damages.

[¶ 11.] We construe the language used in insurance contracts according to its plain, ordinary meaning and in reference to the policy as a whole. National Sun Industries, Inc., v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶ 19, 596 N.W.2d 45, 49. When the terms of a contract are ambiguous, however, we will adopt the interpretation most favorable to the insured. Roden, 2003 SD 130, ¶ 10, 671 N.W.2d at 625. As we noted in Roden, however,

This rule of liberal construction in favor of the insured and strictly against the insurer applies only where the language of the insurance contract is ambiguous and susceptible of more than one interpretation .... This rule does not mean, however, that the court may seek out a strained or unusual meaning for the benefit of the insured.

Id. (citing Alverson v. Northwestern Nat. Cas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 235).

[¶ 12.] Considering the language utilized by Farmers Mutual in this particular automobile insurance policy, we believe the trial court ruled correctly. Under the terms of the contract, Farmers Mutual must pay damages “for bodily injury an insured is legally entitled to collect” from an underinsured driver. By its own terms, this provision is not limited to injuries sustained by the insured but to those injuries for which the insured is legally entitled to collect. Conversely, the policy specifically provides in cases where someone other than the insured submits a claim under the contract, coverage only exists where there are damages “because of bodily injury to the insured.” By its plain language, the policy once refers to coverage for damages which an insured is entitled to collect, but another time limits coverage for damages actually sustained by the insured. This suggests the policy could have explicitly limited underinsured motorist coverage to damages arising from bodily injury suffered by the insured if that had been the parties’ intent. Applying our general rules of statutory construction to the plain language Farmers Mutual employed in the policy offered to Nelson, we believe Nelson was entitled to submit claims for injuries sustained by her parents when they were killed by an underin-sured motorist.

[¶ 13.] The policy limits liability for the bodily injury of “each person” to $100,000 in “each occurrence.” Because we have interpreted the policy as allowing Nelson to recover for her parents’ bodily injuries, Nelson was entitled to submit two separate claims because two people suffered bodily injury. Under the language of the contract, the injuries suffered by “each person,” in this case Nelson’s mother and father, were subject to the liability limit of $100,000. Thus, Nelson was entitled to submit two claims, each claim subject to the $100,000 limit established by the policy. The trial court’s judgment and order in this case is affirmed.

[¶ 14.] We wish to stress, however, that today’s holding is based upon the specific language found in the automobile policy between Nelson and Farmers Mutual. Farmers Mutual admitted Nelson could recover under the policy. A fair reading of the plain language in the policy allowed Nelson to submit claims for all damages for which she was entitled to collect from an underinsured motorist. Farmers Mutual admitted Nelson was entitled to collect from Huber, the underinsured motorist who struck and killed her parents. The public policy behind allowing an insured to recover damages arising from bodily injury sustained by another person, pursuant to a statutorily required underinsured motorist policy provision is a question that must be addressed another day.

[¶ 15.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

       The statute provides:
      No motor vehicle liability policy of insurance may be issued or delivered in this state with respect to any motor vehicle registered or principally garaged in this state, except for snowmobiles, unless underinsured motorist coverage is provided therein at a face amount equal to the bodily injury limits of the policy. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. Any policy insuring government owned vehicles may not be required to provide underinsured motorist coverage.


author: PER CURIAM.

text:
    2004 SD 83
    In the Matter of the Discipline of Al ARENDT as an Attorney at Law.
    No. 23288.
    Supreme Court of South Dakota.
    Considered on June 24, 2004.
    Decided June 30, 2004.
    Robert B. Frieberg, Beresford, South Dakota, Attorney for Disciplinary Board.
    Scott N. Heidepriem, Johnson, Heide-priem, Miner, Marlow & Janklow, L.L.P., Sioux Falls, South Dakota, Attorney for A1 Arendt.
   PER CURIAM.

[¶ 1.] The Disciplinary Board of the State Bar of South Dakota filed a formal accusation against attorney A1 Arendt pursuant to SDCL 16-19-67. The Board recommended that Arendt be suspended from the practice of law-in the courts of South Dakota for a period of 120 days. Arendt admitted the allegations of the formal accusation and agreed to the sanction pursuant to SDCL 16-19-68. We conclude that suspension from the practice of law for a period of 120 days is an appropriate sanction.

[¶ 2.] Arendt graduated from law school in 1978. Upon his admission to the bar, he practiced law in Timber Lake for about seven years. Arendt then moved to Pierre, where he has been continuously engaged in private practice.

[¶ 3.] In early 2002, Arendt represented Steve Wellner and his wife in a real estate matter. Wellner had entered into an agreement to purchase a quarter section of land at a specific price. However, Wellner was unable to raise the funds necessary to execute the right to purchase, and he asked Arendt for assistance.

[¶ 4.] Arendt offered to create a joint venture. Arendt and his wife proposed to provide Wellner and his wife with the money necessary to purchase the real estate. The ultimate intent of the parties was to sell the property.

[¶ 5.] Before the joint venture agreement was to be executed, Arendt provided Wellner with a copy of Rule 1.8 of the Rules of Professional Conduct, which provides in relevant part:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a-manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

In drafting the joint venture agreement, Arendt also included a provision setting out the advice required by Rule 1.8. However, the joint venture agreement was never executed because the parties could not agree on the manner in which the proceeds from the intended sale would be divided.

[¶ 6.] In the course of investigating the foregoing matter, the Disciplinary Board learned that in early 1995, Arendt had been retained by Wellner and Wellner’s father, George, in connection with a mortgage foreclosure. At that time, George was indebted to the Farmers Home Administration (FHA), and the debt was secured by a mortgage on 560 acres of George’s land.

[¶ 7.] At the time Arendt was retained, the foreclosure sale was pending. Arendt initiated a bankruptcy procéeding in order to stay the foreclosure sale, and he continued to represent George for several months during the bankruptcy. Arendt worked to resolve the matter in a way that would enable George to retain the property. Arendt negotiated an agreement with FHA that released the land from the judgment lien upon payment of the appraised value of the property.

[¶ 8.] Arendt then offered to provide the money to satisfy the FHA judgment, with the understanding that Steve Well-ner, rather than George Wellner, would eventually purchase the land from Arendt. Arendt ultimately provided the funds, and title to the land was transferred to Ar-endt’s spouse, who then entered into a contract for deed with Steve Wellner. The contract called for annual payments of principal and interest; however, Wellner did not make any payments. In 1999, the land was sold to a third party. At that time, Arendt was repaid his investment, plus some fees. The balance was retained by Steve Wellner.

[¶ 9.] In conducting its investigation, the Board decided to determine whether Arendt complied with the requirements of Rule 1.8 in the course of the 1995 transaction. In responding to the Board’s inquiry, Arendt submitted a document that purported to be a copy of an August 30, 1995 letter advising George Wellner of the requirements of Rule 1.8. This letter, however, was a fabrication. Arendt had created the letter in February 2004 and had delivered it to his counsel who unknowingly submitted it to the Board.

[¶ 10.] Upon examination, the Board observed that the letter was different in style from other documents prepared by Arendt in August 1995. Particularly, the type font and the letterhead were different. The Board informed Arendt’s counsel of its concerns about the authenticity of the letter, and it asked that Arendt be prepared to address this issue when he appeared before the Board.

[¶ 11.] Arendt’s counsel advised Arendt of the Board’s concern, and Arendt admitted to his counsel that he created the letter in an effort to mislead the Board. Arendt’s counsel promptly advised the Board that the document was false. Ar-endt also admitted that the letter was false in his testimony before the Board. He was also remorseful.

[¶ 12.] After a hearing, the Board made findings, conclusions, and recommendations regarding the appropriate discipline. “Because [the Board] had the advantage of seeing and hearing the witnesses, this Court gives careful, due consideration to their findings.” In re Discipline of Mattson, 2002 SD 112, ¶ 38, 651 N.W.2d 278, 285 (citations omitted). Ultimately, however, “[t]he final determination for the appropriate discipline of a member of the State Bar rests firmly with the wisdom of this Court.” Id. (citation omitted).

Analysis

[¶ 13.] Initially, we note that:

[W]e must thoroughly examine the merits of this case, as well as the overall propriety of what our decision would mean to the South Dakota Bar and the public at large. [W]e first reaffirm the purpose of the disciplinary process — to protect the public, not to punish the lawyer. A further purpose of the disciplinary process is the deterrence of like conduct by other attorneys.

In re Discipline of Eicher, 2003 SD 40, ¶ 24, 661 N.W.2d 354, 363 (internal citations omitted).

[If 14.] The Disciplinary Board concluded that Arendt violated SDCL 16-18-26(1), which provides: “Every attorney at law who ... [practices any deceit or collusion, or consents to the same with intent to deceive the court or any party; ... is guilty of a Class 2 misdemeanor.” Moreover, the Board concluded that Ar-endt violated SDCL 16-18-19 concerning an attorney’s obligation to use only truthful means. That statute provides:

It is the duty of an attorney and counselor at law to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of fact or law.

Finally, the Board concluded that Arendt violated Rule 3.3 concerning candor toward the tribunal and Rule 8.4(a), (b), (c), and (d) concerning professional misconduct. Arendt admitted these accusations pursuant to SDCL 16-19-68, and indicated that he was prepared to accept the recommended discipline without notice or hearing.

[¶ 15.] We have previously stated that “[t]he foundation of an attorney’s relationship with clients and the legal system is trust.” Mattson, 2002 SD 112, ¶55, 651 N.W.2d at 289 (citation omitted). Arendt’s action in deliberately misleading the Board was not only a violation of statute and of the Rules of Professional Conduct, it was also a violation of that trust. After reviewing the record, we agree with the Board that Arendt’s conduct was of such serious- professional nature that, in the best interests of the public and legal profession, it warrants a suspension from the practice of law.

[¶ 16.] We concur with the Board’s recommendation. Therefore, pursuant to SDCL 16-19-35(2), a judgment of suspension will be entered for a period of 120 days, effective August 1, 2004. Furthermore, Arendt must submit an affidavit to this Court stating under oath that:

1. He has reviewed the Rules of Professional Conduct;
2. Upon reinstatement, he will maintain professional malpractice insurance along with proof thereof;
3. He recognizes fully that his conduct violated the Rules of Professional . Conduct by which he is bound;
4. He pledges he will devote every effort in his future practice to fully abide by the South Dakota Rules of Professional Conduct; and
5. He is to fully comply with the re- ■ quirements of a suspended attorney found in SDCL 16-19-78 and 79.

Arendt is also required to take and pass the Multistate Professional Responsibility Examination prior to any application for reinstatement. Upon expiration of his suspension, Arendt may, file his petition for reinstatement pursuant to SDCL 16-19-84 to SDCL 16-19-87. Finally, Arendt shall reimburse the State Bar of South Dakota and the Unified Judicial System expenses allowed under SDCL 16-19-70.2.

[¶ 17.] SABERS, Acting Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

[¶ 18.] GILBERTSON, Chief Justice, deeming himself disqualified, did not participate.

       Rule 3.3 provides:
      (a) A lawyer shall not knowingly:
      (1) make a false statement of fact or law to a tribunal or fail to timely correct a false statement of material fact or law previously made to the tribunal by the lawyer;
      (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

        (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. However, in a criminal matter, the lawyer shall not participate with the client in the presentation of the client's testimony which the lawyer knows ■ to be false.
      (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
      (c) The duties stated in paragraphs (a) and (b)continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
      (d)In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
      Rule 8.4 provides in relevant part:
      It is professional misconduct for a lawyer to:
      (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
      (d) engage in conduct that is prejudicial to the administration of justice^]