author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Lorenzo Lamont WRIGHT, Appellant.
    No. A03-589.
    Court of Appeals of Minnesota.
    May 18, 2004.

      John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; SCHUMACHER, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges his convictions of two counts of first-degree criminal sexual conduct, arguing that (1) the evidence is insufficient to support the jury’s verdict and (2) he is entitled to a new trial because his attorney agreed to stipulate to an element of the offense without appellant personally waiving the right to have the jury decide that issue. We affirm.

FACTS

In May 2002, appellant Lorenzo Lamont Wright and his girlfriend moved in with Leverder Ford and her family at Ford’s home in Minneapolis. At that time, Ford lived with several children, including her 11-year-old daughter, K.R., and Ford’s best friend, Cassandra Simms.

Ford became concerned when she noticed Wright paying more attention to K.R. than the other children in the home. After Ford confronted K.R. about these concerns, K.R. eventually disclosed that she and Wright had engaged in sexual activity in the bathroom a few days earlier. Ford immediately called Simms and Wright’s girlfriend into the room and directed K.R. to repeat what K.R. had told Ford. When Simms heard the allegations, she called the police.

The police came to the residence, spoke with K.R., Ford, Simms, and Wright’s girlfriend, and then arrested Wright. Minneapolis Police Sergeant Bernard Martinson drove K.R., Ford, and Simms to Children’s Hospital where K.R. underwent a physical examination. Martinson arranged for K.R. to be interviewed the next day at the Midwest Children’s Resource Center (MCRC).

A registered nurse with several years’ experience conducting medical evaluations and interviews of children alleging sexual or physical abuse interviewed and examined K.R. From a separate observation room, Martinson observed the interview, which was videotaped. During the interview, K.R. stated that, while Wright and K.R. were on the bathroom floor and unclothed below the waist, Wright placed his “private parts” inside her “private parts.” K.R. reported feeling pain when Wright did this.

Wright was charged with two counts of first-degree criminal sexual conduct, a violation of Minn.Stat. § 609.342, subd. 1(a) (2000). At trial, Dr. Steven Tredal testified for the defense that, based on his review of the medical reports, there was no physical or medical evidence of penetration. Dr. Tredal admitted during cross-examination that there also is no evidence that the sexual contact or penetration had not occurred. Martinson, who investigated the bathroom with a forensics team, testified that no physical evidence of semen was found in the bathroom.

The jury found Wright guilty of both counts of first-degree criminal sexual conduct. Wright moved for a new trial because he did not personally agree to stipulate that he is more than 36 months older than K.R. — an element of each offense of conviction. The district court denied the motion, and this appeal followed.

ISSUES

I. Was the evidence sufficient to support the jury’s verdict?

II. Did the district court err in denying appellant’s motion for a new trial?

ANALYSIS

I.

In considering a claim of insufficient evidence, our review is limited to a careful analysis of the evidence to determine whether the jury, giving due regard to the presumption of innocence and the state’s burden of proof, could reasonably find the defendant guilty. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We view the evidence in the light most favorable to the conviction, assuming the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 989).

A person who engages in sexual penetration or sexual contact with a person under 13 years of age is guilty of first-degree criminal sexual conduct if “the actor is more than 36 months older than the complainant.” Minn.Stat. § 609.342, subd. 1(a) (2000). Mistake as to the complainant’s age or consent to the act by the complainant is not a defense. Id. “Sexual contact” includes “the intentional touching of the complainant’s bare genitals ... by the actor’s bare genitals ... with sexual or aggressive intent_” Minn.Stat. § 609.341, subd. 11(c) (2000). “Sexual penetration” includes “any intrusion however slight into the genital or anal openings ... of the complainant’s body by any part of the actor’s body.” Id., subd. 12(2)(i) (2000).

Wright argues that there is insufficient evidence to support the jury’s verdict because (1) K.R. gave inconsistent statements during the MCRC interview and at trial, and (2) there is no physical evidence of sexual penetration to corroborate KR.’s allegations. Assessing the credibility of a witness and the weight to be given a witness’s testimony is exclusively the province of the jury. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990). In fulfilling its factfinding responsibility, the jury is free to accept some aspects of a witness’s testimony and reject others. State v. Poganski, 257 N.W.2d 578, 581 (Minn.1977). Inconsistencies and conflicts in evidence do not necessarily provide the basis for reversal. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn.1983). “inconsistencies are a sign of human fallibility and do not prove testimony is false, especially when the testimony is about a traumatic event.” State v. Mosby, 450 N.W.2d 629, 634 (Minn.App.1990), review denied (Minn. Mar. 16,1990).

Corroboration is not required in criminal sexual conduct cases. Minn.Stat. § 609.347, subd. 1 (2002). But “[t]he absence of corroboration in an individual case ... may well call for a holding that there is insufficient evidence upon which a jury could find the defendant guilty beyond a reasonable doubt.” State v. Ani, 257 N.W.2d 699, 700 (Minn.1977) (quoting Note, The Rape Corroboration Requirement, 81 Yale L.J. 1365,1391 (1972)).

Our review of the trial record establishes that there is ample evidence to support the convictions. KR.’s trial testimony included a detailed description of the sexual assault and Wright’s direction not to report the assault to her mother. The trial record also contains prior consistent statements that K.R. made to her mother, Simms, Wright’s girlfriend, the police, and the nurse who interviewed K.R. at MCRC. The testimony from others about KR.’s demeanor, emotional condition, and change in behavior after the sexual assault also is strong corroborative evidence. See State v. Reinke, 343 N.W.2d 660, 662 (Minn.1984).

Because K.R. did not contend that Wright ejaculated during the sexual assault, the absence of semen in her body or on the floor of the bathroom is not wholly exculpatory. At trial, the nurse who physically examined and interviewed K.R. addressed the absence of physical evidence corroborating the sexual assault. She explained that, based on her experience, in 90 percent of examinations performed on children in response to allegations of sexual abuse, physical evidence is not found. She testified that the absence of corroborative physical evidence could be explained by the physical condition of the hymen and hormone levels of a girl K.R.’s age. Moreover, because “sexual contact” is sufficient to sustain Wright’s conviction of first-degree criminal sexual conduct, the dearth of corroborative physical evidence of penetration does not render the evidence insufficient as a matter of law to support the jury’s verdict.

Our review of the evidence presented, along with the reasonable inferences that can be drawn from it, leads us to conclude that the jury could reasonably find Wright guilty of first-degree criminal sexual conduct.

II.

Counsel for the state and Wright agreed to stipulate that Wright is more than 36 months older than K.R., thereby removing this issue and any evidence pertaining to it from the jury’s consideration. Wright argues that, because he was not advised that he was waiving the right to have the jury decide every element of the offense and he did not personally agree to do so either on the record or in writing, he is entitled to a new trial.

The United States and Minnesota constitutions guarantee the right to a jury trial in a criminal case. U.S. Const. amend. VI; Minn. Const, art. I, § 6; see also Minn. R.Crim. P. 26.01, subd. 1(1). A defendant’s right to a jury trial includes the right to be tried on each and every element of the charged offense. State v. Bluhm, 457 N.W.2d 256, 260 (Minn.App.1990), ajfd in part, rev’d in part on other grounds, 460 N.W.2d 22 (Minn.1990). A defendant may agree to submit a case on stipulated facts by waiving this right, but such waiver must be made personally by the defendant, not by the defendant’s counsel. Minn. R. Crim P. 26.01, subd. 3; State v. Halseth, 653 N.W.2d 782, 785 (Minn.App.2002). The defendant’s agreement to submit the case on stipulated facts also must be written or oral. Minn. R.Crim. P. 26.01, subd. 3. When stipulating to an element of the offense, a defendant effectively waives the right to a jury trial on that element and removes unduly prejudicial evidence from the jury’s consideration. See State v. Berkelman, 355 N.W.2d 394, 397 (Minn.1984). Consequently, an oral or written waiver of rights also is required before a defendant personally elects to stipulate at trial to one of several elements of an offense.

When counsel for Wright and the state agreed to stipulate that Wright is more than 36 months older than K.R., a record was not made as to whether Wright was advised of his jury-trial rights and personally agreed to waive them as to this element. Thus, we conclude that it was error to accept the stipulation to proof of an element of an offense without Wright’s consent in writing or orally on the record.

We next consider whether the error was prejudicial. A constitutional error “will be found prejudicial if there is ‘a reasonable possibility’ that the error complained of might have contributed to the conviction.” State v. Larson, 389 N.W.2d 872, 875 (Minn.1986). A new trial is not warranted, however, if the state can establish beyond a reasonable doubt that the constitutional error was harmless. State v. Jones, 556 N.W.2d 903, 910 (Minn.1996). If, after reviewing the basis on which the jury rested its verdict, we conclude that the verdict was “surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Id.

In denying the motion for a new trial, the district court found that, when the stipulation was read into the record, Wright made no objection. The district court also considered that, prior to agreeing to the stipulation, the attorneys contemplated recalling the officer to testify as to Wright’s date of birth, which would have had a more prejudicial effect than the stipulation because the testimony would have established that Wright is substantially older than K.R. The district court also reasoned that the jury had an opportunity to view Wright during his testimony and make its “own determination as to his age being more than 36 months older than [K.R.].” These reasons also support our conclusion that, although the district court erred in accepting the stipulation to an element of the offense without Wright’s personal waiver, such error was not so prejudicial as to require a new trial.

Finally, Wright raises a number of issues in his pro se brief. Having carefully reviewed these issues, we conclude that they are without merit.

DECISION

There is ample evidence to support the jury’s verdict. The district court erred in accepting a stipulation to an element of the offense without a personal oral or written waiver of the right to a jury trial on that element. But under the circumstances presented in this ease, the error was harmless beyond a reasonable doubt.

Affirmed.


source: Caselaw Access Project

author: HARTEN, Judge. RANDALL, Judge

license: Public Domain

text:
    Janet DOSTAL, et al., Appellants, v. David CURRAN, M.D., et al., Respondents, Fairview Health Services, d/b/a Fairview Ridges Hospital, Respondent.
    No. A03-1483.
    Court of Appeals of Minnesota.
    May 18, 2004.

      David B. Ketroser, Attorney at Law, Minnetonka, MN, for appellants.
    David C. Hutchinson, Jeremy J. Sun-dheim, Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., St. Paul, MN, for respondents David Curran, M.D., et al.
    Barry G. Vermeer, Kathleen M. Loucks, Gislason & Hunter, LLP, Minnetonka, MN, for respondent Fairview Health Services.
    Considered and decided by HARTEN, Presiding Judge, RANDALL, Judge, and KLAPHAKE, Judge.
   OPINION

HARTEN, Judge.

Appellants moved for judgment notwithstanding the verdict (JNOV) or for a new trial on the ground that expert affidavits they obtained after trial contradicted portions of the unrecanted trial testimony of one of respondents’ expert witnesses. The motion was denied. They challenge the denial of the motion for a new trial, which we affirm.

FACTS

Appellant Janet Dostal, a patient of respondent Southdale Obstetric & Gynecology Consultants (Southdale), delivered a healthy baby boy at the hospital of respondent Fairview Health Services (Fairview) about 9:30 a.m. on 12 February 2000. About 2:00 a.m. on 13 February 2000, appellant experienced symptoms later determined to be streptococcal meningitis. On 11 February 2000, the positive result of appellant’s test for Group B streptococcus had been faxed by Southdale to Fairview and been placed in a pile of documents to be filed. Because the positive result was not in appellant’s file, and no other factor indicated that the baby was at risk, penicillin had not been administered during appellant’s labor.

Appellant and her husband Kevin Dostal brought this action against Southdale and Fairview, contending that their negligence had caused her to contract meningitis. At trial, one of respondents’ expert witnesses, a board-certified specialist in internal medicine and sub-specialist in infectious diseases, testified extensively. His testimony included statements that strep bacteria may have been colonized on Janet Dostal’s skin and that one percent of blood-borne penicillin reaches the cerebral spinal -fluid (CSF). After trial, the Dostals obtained an affidavit from a microbiologist who said that strep bacteria do not colonize on skin and an affidavit from a pharmacologist who said that five to ten percent of blood-borne penicillin reaches the CSF.

On the basis of these affidavits, appellants unsuccessfully moved for a new trial. They now challenge the denial of that motion.

ISSUE

Are posttrial expert affidavits contradicting the unrecanted testimony of an expert who testified at trial “[mjaterial evidence newly discovered” within the meaning of Minn. R. Civ. P. 59.01(d)?

ANALYSIS

“A new trial may be granted ... for ... [mjaterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial.” Minn. R. Civ. P. 59.01(d). The decision to grant a new trial generally lies within the sound discretion of the district court and will not be disturbed absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). But when the district court exercises no discretion and decides a motion for a new trial because of an error of law, a de novo standard of review applies. Id.

Appellants claim they are entitled to a new trial because the posttrial affidavits are “material evidence” that could not have been found and produced at the trial. But the affidavits, neither of which was provided by a medical doctor, do no more than contradict insignificant portions of respondents’ expert’s testimony. A new trial will not generally be granted on the basis of evidence that is merely contradictory, impeaching, or cumulative. Disch v. Helary, Inc., 382 N.W.2d 916, 918 (Minn.App.1986), review denied (Minn. 24 Apr. 1986).

The affidavits do not meet the standard required for granting a new trial. First, the disputed evidence is not material. On appeal from the denial of a motion for a new trial, the jury’s “verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn.App.1992), review denied (Minn.29 Apr. 1992). The probability that minute portions of respondents’ expert’s extensive testimony were responsible for the jury’s verdict is remote.

Furthermore, most of that expert’s testimony was corroborated by the testimony of another expert witness. Even without the disputed testimony, ample evidence supports the jury’s verdict; it is not “manifestly and palpably contrary to the evidence.” Id.

Appellants’ claim that the affidavits contradicting the expert’s testimony could not have been found and produced at the trial also fails. Appellants argue that, because respondents had not disclosed that their expert would testify as to the existence of strep bacteria on the skin of the lower back and as to what percentage of blood-borne penicillin enters the CSF, appellants could not oppose this testimony. But appellants admit that, during trial, their attorney recognized portions of the expert’s testimony as going beyond the disclosure. He did not object to this testimony as previously undisclosed, or ask that it be stricken, or offer evidence to rebut it, or ask for a continuance to prepare to deal with it. The posttrial affidavits do not meet the standard of Minn. R. Civ. P. 59.01(d); appellants, “with reasonable diligence!!,]” could have found other evidence to produce at trial. The district court did not abuse its discretion in denying a new trial based on newly discovered material evidence.

Appellants argue that the district court erred as a matter of law in not using the test set forth in Larrison v. United States, 24 F.2d 82 (7th Cir.1928) for granting a new trial based on false or recanted testimony because the posttrial affidavits purport to show that portions of respondent’s expert’s testimony were false. Minnesota adopted Larrison in State v. Caldwell, 322 N.W.2d 574 (Minn.1982).

[A] new trial may be granted on the grounds of false or perjured testimony where:

(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
(b) That without it the jury might have reached a different conclusion.
(c) The party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.

Id. at 584-85. The overwhelming majority of cases citing Larrison involve criminal convictions later found to have been based on false or recanted testimony.

Even assuming arguendo that the Lam-son test was appropriate, appellants are not entitled to a new trial. The first prong of the test is not met because the district court was not “reasonably well satisfied” that the testimony of respondents’ expert was false. In fact, appellants acknowledge that “the [district] Court failed to overtly acknowledge the claim of false testimony by [the expert].” The expert not only failed to recant his testimony; he stated explicitly in his own posttrial affidavit that he had reviewed the posttrial affidavits obtained by appellants and that “[t]he information in those Affidavits has not caused me to change the opinions I expressed at the trial of this case.” The affidavits form the sole basis of appellants’ claim that the expert delivered false testimony.

The second Lamson criterion is not satisfied because the testimony of another expert supported the disputed expert’s testimony and provided an ample basis for the jury to decide that respondents’ negligence did not cause appellant Janet Dos-tal’s injuries.

Finally, appellants do not meet the third criterion of the Larrison test, i.e., that they were surprised by the testimony or did not know of its falsity until after trial, because almost every particular of the testimony was disclosed before trial. Specifically, it was disclosed that the expert would testify that:

[Janet Dostal’s] development of meningeal symptoms in the absence of a high fever and chills is consistent with the Group B strep organisms entering her cerebral spinal fluid at the time of administration of the epidural anesthetic on the morning of February 12, rather than first entering her bloodstream and causing bacteremia prior to meningeal symptoms.

A review of the record shows that this was the thrust of the expert’s testimony on both direct and cross-examination. We conclude that appellants are not entitled to a new trial.

DECISION

The posttrial expert affidavits contradicting the unrecanted testimony of respondents’ expert were not “[mjaterial evidence newly discovered” within the meaning of Minn. R. Civ. P. 59.01(d), and they did not lead to the district court being “reasonably well satisfied that the testimony given by a material witness was false” under the Larrison test. Neither an analysis under Minn. R. Civ. P. 59.01 nor an analysis under Larrison indicates that appellants are entitled to a new trial.

Affirmed.

RANDALL, Judge

(concurring specially)-

I concur in the majority’s conclusion that posttrial affidavits contradicting unre-canted testimony of an expert were not a basis, on these facts, for a new trial. But I would go further and state that “Lamson testimony” has no place in a civil trial where there is simply “a battle of experts.” I find no Lamson issue here to even have to consider.

As the majority indicates, Larrison v. United States, 24 F.2d 82 (7th Cir.1928) is an old federal criminal case discussing the standard to grant a defendant a new trial when you have recanted testimony. As the majority points out, of the 22 Minnesota cases citing Larrison, every single one was criminal except one civil case, and that civil case involved recanted testimony.

At oral argument, appellant’s counsel had to concede that he did not know of one case in this country where, in a civil case not involving posttrial recanted testimony but merely experts with opposing points of view at trial, Larrison was found to be controlling law for a civil case. In the thousands and thousands of civil cases in this state and in this country yearly, involving claims of medical malpractice, products liability, accident reconstruction, etc., you have experts with opposing views routinely. Sometimes the experts are so opposed “in their expert opinion” that a common-sense lay juror is going to say to themselves, “Boy, somebody has to be lying because they both can’t be right!” There has never been a basis for equating opposing experts with opposing opinions as the legal equivalent of perjured and/or posttrial recanted testimony under oath. To even think about doing so would throw virtually every single civil case in this country, where experts are used, state and federal, into a continual series of posttrial Larrison motions. You can always find after a trial another expert to sign an affidavit that purportedly contradicts something that another expert said at trial.

Put simply, the resolution of conflicting expert opinions at trial is for the jury. That is the way it has always been. Romanik v. Toro Co., 277 N.W.2d 515, 518 (Minn.1979) (holding that conflicts in expert testimony are to be resolved by the jury); State v. Ostlund, 416 N.W.2d 755, 760-61 (Minn.App.1987) (stating that where doctor opinions conflict, the trier of fact is to determine the credibility of the witness and the weight to be given their testimony).

I would find, as a matter of law, that there never was a Larrison issue in this case because it was a civil case and did not have any posttrial recanted testimony.

      . Appellants also challenge the denial of their motion for additnr, and respondents, by notice of review, challenge the jury’s determinations that they were negligent. Because we affirm the denial of appellants' motion for a new trial, these issues are moot, and we do not address them.

      . A review of the transcript indicates that respondents' expert was cross-examined intensely. Appellants' attorney made repeated attempts to impeach him, generally by using statements in medical articles and textbooks out of context. In testimony on medical issues of this complexity, the context of the questions and answers is critical. The attempts to impeach failed — the jury's verdict indicates that the expert witness was credible.

      . It is arguable that this failure to challenge the testimony during trial operated as a waiver of the right to challenge it in a new trial motion. "[W]here there is no objection at the time the evidence is offered, no claim of surprise at trial and no request for a continuance, trial courts are well within their discretion to deny a motion for a new trial.” Gunderson v. Olson, 399 N.W.2d 166, 168 (Minn. App.1987), review denied (Minn. 18 Mar. 1987).

      . Of the 22 published Minnesota cases citing Larrison, only one, Kerkhoff v. Kerkhoff, 400 N.W.2d 752, 758 (Minn.App.1987), review denied (Minn. 23 Apr. 1987), was a civil case, and that case involved recanted testimony.


author: PER CURIAM.

text:
    2004 ND 87
    In the Matter of the RECIPROCAL DISCIPLINE OF C. Charles CHINQUIST, a member of the Bar of the State of North Dakota.
    No. 20040100.
    Supreme Court of North Dakota.
    April 26, 2004.
    Request for Reciprocal Discipline.
   SUSPENSION ORDERED

PER CURIAM.

[¶ 1] On January 15, 2004, the Disciplinary Board notified the Supreme Court under N.D.R. Lawyer Discipl. 4.4 that it was recommending the reciprocal discipline of C. Charles Chinquist, a member of the bar of the State of North Dakota.

[¶ 2] The Record reflects that an Order suspending Chinquist for failure to file or timely file state and federal individual income tax returns for the years 1991 through 2001 was filed by the Minnesota Supreme Court on December 2, 2003, and a certified copy of the Order was received by Disciplinary Counsel for North Dakota on December 11, 2003.

[¶ 3] The Record further reflects that on January 14, 2004, Disciplinary Counsel served Notice pursuant to N.D.R. Lawyer Discipl 4.4(B) on Chinquist, by certified mail, return receipt requested to two separate addresses; two return receipts were filed which indicate Chinquist received Notice.

[¶ 4] Under N.D.R. Lawyer Discipl. 4.4(B) Chinquist was given notice that a certified copy of the Order of suspension filed by the Minnesota Supreme Court was received, and he had 30 days to file any claim that the imposition of the identical discipline in North Dakota would be unwarranted and the reasons for the claim.

[¶ 5] By letter dated February 26, 2004, Chinquist agreed to discipline similar to that imposed by the Supreme Court of Minnesota.

[¶ 6] Under N.D.R. Lawyer Discipl. 4.4(D), the Disciplinary Board forwarded its recommendation that Chinquist be suspended from the practice of law for 90 days, and pay the costs of the disciplinary proceedings in the amount of $250. The Court considered the matter, and

[¶ 7] ORDERED, C. Charles Chinquist is suspended from the practice of law for a period of 90 days, effective May 1, 2004.

[¶ 8] FURTHER ORDERED, C. Charles Chinquist pay the costs and expenses of the disciplinary proceedings in the amount of $250, payable to the Secretary of the Disciplinary Board.

[¶ 9] FURTHER ORDERED, C. Charles Chinquist comply with N.D.R. Lawyer Discipl. 6.3.

[¶ 10] GERALD W. YANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2004 ND 94
    Karen JASTE, as Conservator and Guardian of Delima Jaste, Plaintiff and Appellant v. James W. GAILFUS and Jim Gailfus Insurance Agency d/b/a Jim’s Insurance, Defendants and Appellees.
    No. 20030261.
    Supreme Court of North Dakota.
    May 5, 2004.

      Thomas A. Dickson (on brief), Timothy Q. Purdon (argued), and Justin D. Roness (appeared), Dickson & Purdon, Bismarck, N.D., for plaintiff and appellant.
    Daniel M. Traynor, Traynor, Rutten & Traynor, P.C., Devils Lake, N.D., for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Karen Jaste, as conservator and guardian of Delima Jaste, appeals a Northeast Judicial District Court judgment dismissing her negligence action against James Gailfus and the Jim Gailfus Insurance Agency, doing business as Jim’s Insurance. The district court dismissed the case after granting Gailfus’s motion for summary judgment, finding no reasonable jury could find Gailfus had breached a duty to Delima Jaste. The district court based its decision on the “open and obvious danger” doctrine. Karen Jaste argues the district court erred in granting summary judgment on a ground that Gailfus did not raise in his summary judgment motion. She also argues the district court erred in finding that an open and obvious danger existed as a matter of law. Finally, Karen Jaste argues that Gailfus’s initial grounds for summary judgment should be denied. We conclude the district court erred in granting summary judgment without notice on a ground not raised by either party, and we therefore reverse and remand for further proceedings.

I

[¶ 2] Certain facts are undisputed for the purpose of summary judgment. James Gailfus owns the Jim Gailfus Insurance Agency and the Gailfus Office Building in Rolla, North Dakota. The Jim Gail-fus Insurance Agency is located in the Gailfus Office Building. On April 9, 2001, Delima Jaste went with her daughter, Karen Jaste, to pay Delima Jaste’s insurance premium at the Gailfus Office Building. When Delima Jaste attempted to exit the building, she lost her balance on a cement step located on the sidewalk in front of the entrance and fell onto the sidewalk. There was no ice or snow accumulation on the step.

[¶ 3] The front entrance of the Gailfus Office Building consists of a door threshold and a single step. The property line ends at the face of the building, and the step down is located on a city right of way owned by the City of Rolla. There are no warnings, striping, or markings at the entryway to the office building. The entrance also has no handrails or ramps. Gailfus maintains the front entryway of the office building. The condition of the step has not changed since Gailfus bought the building twenty years ago. Gailfus is not aware that anyone has fallen before at the building entrance.

[¶ 4] In April 2002, Karen Jaste sued Gailfus, alleging the entrance of the building was negligently designed and maintained. Gailfus moved for summary judgment on two grounds, arguing that he did not owe a duty to third persons to repair or make improvements to a public sidewalk on land adjoining his property and that the negligent acts alleged by Jaste were committed by the municipality and thus could be remedied only by the municipality and not by an adjoining landowner.

[¶ 5] In response, Karen Jaste argued Gailfus has a duty to provide business invitees with a reasonably safe means of ingress and egress, regardless of the exact boundaries of the premises. She argued that a fact issue exists regarding whether Gailfus breached that duty to Delima Jaste. She also argued that if special use is made out of a municipality-owned sidewalk, or if control is exercised over the sidewalk, then there is a duty to exercise reasonable care to guard the public from injury resulting from the use. She argued that whether Gailfus has made spécial use of or exercised control over the sidewalk is also a factual issue for the jury to decide. In his response, Gailfus again argued he did not owe a duty, even to business invitees, to keep the sidewalk in a safe condition. He also argued that no special use was made of the sidewalk.

[¶ 6] A hearing on the summary judgment motion was held on April 28, 2003. On May 30, 2003, the district court issued its memorandum opinion granting Gailfus’s motion. The district court held that a jury could not reasonably find Gailfus had breached a duty to Delima Jaste. The district court based its decision on the “open and obvious danger” doctrine. The “open and obvious danger” doctrine limits the duty of landowners when the dangerous condition is known or obvious to the entrant. See Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 17, 676 N.W.2d 763. The district court held that a reasonable person should have been able to view and negotiate the step without difficulty. It also held there was nothing about the character, location, or surrounding conditions that would require the owner of the land to do more. It held that no facts had been presented to show the steps posed an unreasonable risk of harm.

[¶ 7] On June 4, 2003, Karen Jaste moved for reconsideration so she could address the “open and obvious danger” issue. Neither party had raised the “open and obvious danger” doctrine in the summary judgment briefs or oral argument. Karen Jaste filed a supplemental brief and attached an affidavit from her expert witness, Terry Grisim. The district court treated the motion as an application for relief from judgment under Rule 60(b) of the North Dakota Rules of Civil Procedure.

[¶ 8] A hearing on the motion for reconsideration was held on July 3, 2003. On August 20, 2003, the district court denied the relief requested. The district court did not consider Terry Grisim’s affidavit or Jaste’s supplemental brief, because they were untimely. The court held, “in the case at hand the affidavit of Mr. Terry Grisim is untimely and the Court does not need to consider it.” The district court also held that Karen Jaste’s choice not to include her legal position relative to the “open and obvious danger” doctrine in her response to the motion for summary judgment did not justify relief from judgment under her Rule 60(b) motion. The judgment for dismissal was entered on August 27, 2003.

[¶ 9] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 10] Karen Jaste argues the district court erred in granting summary judgment on a ground other than those raised in the summary judgment motion. She argues she was not provided with any notice or opportunity to address the doctrine of open and obvious danger.

Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a 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 reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result.

Fish v. Dockter, 2003 ND 185, ¶7, 671 N.W.2d 819. Summary judgment is appropriate when a party fails to establish the existence of a factual dispute on an essential element of his claim on which he will bear the burden of proof at trial. Id.

[¶11] Rule 56(c), N.D.R.Civ.P., provides: “Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” In determining whether summary judgment is appropriate, the court is not confined to the particular propositions of law advanced by the parties on a motion for summary judgment. 10A Charles A. Wright et ah, Federal Practice and Procedure § 2725 (3d ed.1998).

[¶ 12] Courts should be cautious, however, when granting summary judgment on propositions of law that were not advanced by the parties. 10A Charles A. Wright et al., Federal Practice and Procedure § 2725 (3d ed.1998). There is a greater possibility for error when the party opposing the summary judgment motion may be able to show that a genuine issue exists but has not done so because the facts relating to the particular legal principles were not in issue. Id. A court should notify the parties when it intends to rely on a legal doctrine or precedents other than those briefed and argued by the litigants. Id.; see also James Wm. Moore, Moore’s Federal Rules Pamphlet § 56.4[2] (2004) (a court must give the party against whom the court is considering granting the judgment an opportunity to respond when the judgment is considered on a sua sponte basis) (citing Walker v. Missouri Department of Corrections, 138 F.3d 740, 742 (8th Cir.1998) (the district court’s grant of summary judgment on a ground not raised in the summary judgment motion was reversed because the plaintiff was not given notice and opportunity to contest the issues)). In this case, Jaste was not notified that the district court intended to rely on the “open and obvious danger” doctrine.

[¶ 13] The failure of the court to provide notice can be excused if the error was harmless under the circumstances. James Wm. Moore, Moore’s Federal Rules Pamphlet § 56.4[2] (2004). Parties are not harmed if they were not surprised by the court’s consideration of summary judgment on the court’s raised grounds and could not have presented additional evidence had they been given notice and opportunity. Id. (citing Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir.2000)). If a party had no additional evidence to bring, it cannot argue it was prejudiced by a lack of notice and opportunity to address the issue. See generally id.

[¶ 14] In this case, Karen Jaste moved for reconsideration and requested an opportunity to address the “open and obvious danger” doctrine. Along with her motion, Karen Jaste provided an affidavit from her expert, Terry Grisim. The court stated, “in the case at hand the affidavit of Mr. Terry Grisim is untimely and the Court does not need to consider it.” Without considering the affidavit, the district court denied the motion for reconsideration.

[¶ 15] When granting summary judgment on the “open and obvious danger” doctrine, the district court stated, “there is no evidence presented by the plaintiff to support the allegations that the absence of the handrails and warnings, and the design of the step posed an unreasonable risk of harm.” The district court held Karen Jaste had not presented sufficient factual issues for a jury to conclude that the step posed an unreasonable risk of harm. In the affidavit provided, Karen Jaste’s expert stated: 1) the kind of step entrance found outside of the Gailfus Office Building, a single-step entrance, is recognized in safety literature as being extremely hazardous; 2) the safer and preferred alternative is a ramp; and 3) the building entrance would be safer if warning signs and handrails were installed and if the edges were marked with stair tread having a single inlaid or painted stripe that contrasts with the remainder of the tread in color and texture. Gailfus argues the information contained in the affidavit from Karen Jaste’s expert merely restates the same allegations made by Karen Jaste throughout the action. The expert affidavit she provided, however, contains evidence regarding her allegations that the type of step at issue in this case posed an unreasonable risk of harm.

[¶ 16] We conclude Karen Jaste was harmed in this case by the district court’s failure to give her notice and opportunity to address the “open and obvious danger” doctrine. Karen Jaste, by providing the district court with an affidavit from her expert, has shown that she could have presented additional evidence had she been given notice and opportunity. Under these circumstances, it was unfair for the district court to grant summary judgment on a ground that was not asserted by the parties. We conclude the district court improperly granted summary judgment.

Ill

[¶ 17] Both parties ask this Court to decide the merits of the grounds initially stated in the summary judgment motion. The parties argue that it would be proper for this Court to consider whether summary judgment should be granted on the initial grounds stated, because this issue will likely arise on remand. Schlossman & Gunkelman, Inc. v. Tollman, 1999 ND 89, ¶30, 593 N.W.2d 374. Although we can review issues likely to arise on remand, we believe it would be beneficial for the district court to address the issue first. We conclude the better practice under the circumstances is to remand for further proceedings. See State Farm Fire & Casualty Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993) (remand is required to rule on remaining summary judgment grounds when court has specified the ground on which it was granting summary judgment); Bishop v. State Farm Mut. Auto Ins., 360 Md. 225, 757 A.2d 783, 787-88 (2000) (court will not speculate that summary judgment might have been granted on other grounds; the proper procedure is to reverse and remand for further proceedings). We therefore decline the request to address the merits of the initial grounds for summary judgment.

IV

[¶ 18] Jaste also argues the district court erred in finding an open and obvious danger exists. Because we conclude the grant of summary judgment on the basis of the “open and obvious danger” doctrine was improper and remand for a determination of the merits of the initial summary judgment grounds, this issue is not certain to arise on remand. We need not address issues not certain to arise on remand. Trinity Health v. North Central Emergency Services, P.C., 2003 ND 86, ¶ 19, 662 N.W.2d 280. If this issue should arise on remand, however, we direct the district court to consider the doctrine in light of this Court’s recent decision in Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, 676 N.W.2d 763.

V

[¶ 19] We reverse the district court judgment and remand to the district court for further proceedings.

[¶ 20] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2004 ND 96
    Lisa HALEY, Plaintiff and Appellant v. Martin DENNIS, M.D., and Trinity Hospital, Defendants and Appellees.
    No. 20030284.
    Supreme Court of North Dakota.
    May 5, 2004.

      Ronald G. Schmidt (argued), Schmidt, Sehroyer, Moreno & Lee, P.C., Rapid City, S.D. and Jack McDonald (appeared), Wheeler Wolf, Bismarck, N.D., for plaintiff and appellant.
    Randall S. Hanson (argued), Patrick J. Maddock (appeared) and Jodi Nelson Meyer (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, N.D., for defendants and appellees.
   MARING, Justice.

[¶ 1] Lisa Haley appealed from an amended judgment dismissing her medical malpractice action against Dr. Martin Dennis and Trinity Hospital (“Trinity”). We reverse and remand for a new trial.

I

[¶ 2] Lisa Haley was pregnant in late 1999 and had been receiving medical care from her regular obstetrician. In December 1999, Haley’s obstetrician informed her that she had miscarried. On January 9, 2000, Haley experienced severe abdominal pain and her husband took her to the emergency room at Trinity Hospital in Minot. Haley was treated in the emergency room by Dr. Dennis, the obstetrician on call. When diagnostic tests showed Haley had a ruptured ectopic pregnancy, Dr. Dennis performed emergency surgery to repair the ruptured fallopian tube and stop the bleeding.

[¶ 3] Haley subsequently brought this medical malpractice action against Dr. Dennis and Trinity, alleging negligence, lack of informed consent, deceit, bad faith, and battery. The trial court granted partial summary judgment dismissing the informed consent and deceit claims, and the remaining claims were tried to a jury.

[¶ 4] After both sides had rested and the jury began its deliberations, the trial court allowed Haley’s attorney to leave Minot to attend to other business. Haley’s attorney requested that the court call him on his cell phone if there were any jury questions. During deliberations the jury submitted two written questions to the court. The first question from the jury related to the first question on the special verdict form, which asked whether Dr. Dennis was negligent in treating Haley:

Is answering No to #1 releasing him from all negligiance [sic]? How do we answer if we feel part was negligant [sic] (surgery/discharge) the other not.

The trial court, without contacting or consulting with the parties or their attorneys, answered the jury in writing: “Read carefully the Verdict Forms and related instructions.”

[¶ 5] The second question from the jury stated:

Is there an exhibit- — what book? Is there any reference to the perscription [sic] being called in to Kenmare Carlson Drug Store?
By Who—
When—

The trial court, again without contacting the parties or counsel, answered in writing: ‘You must rely on your recollection.”

[¶ 6] The jury continued deliberations, ultimately returning a verdict. The jury answered the questions on the special verdict form as follows:

1. Was Dr. Martin Dennis negligent in providing medical/surgical care and treatment to Plaintiff Lisa Haley?
ANSWER: ._Yes _/_ No
If you answered Question 1 “No”, go to Question 3. If you answered Question 1 “Yes”, then answer Question 2.
2. Did the negligence of Dr. Martin Dennis proximately cause damage or injury to Plaintiff Lisa Haley?
ANSWER: ._Yes._.No
If you answered Question 2 “Yes”, go to Question 3.
3. Taking all of the fault attributable to causing Plaintiff Lisa Haley’s injuries as 100%, please determine the proportionate percentage of fault, if any, attributable to each person below:
Dr. Martin Dennis_10_
Lisa Haley__90_
TOTAL 100%
4. What amount of money will fairly compensate the Plaintiff Lisa Haley for all damages reasonably certain to occur as defined in these instructions:
a. Past Economic Damages $_12,-000.00—
b. Past Non-Economic Damages $_0_
c. Future Economic Damages $_0_
d. Future Non-Economic Damages $_0_
5. Should the Plaintiff Lisa Haley be awarded interest on the damages?
ANSWER: _/_ Yes _No
If you answered Question 5 “No”, please sign and return this verdict. If you answered question 5 “yes”, then answer Question 6.
6. What rate of interest should be used — not to exceed a maximum rate of 6%?
ANSWER: _3_%

The trial court did not contact Haley’s attorney to advise him the jury had reached a verdict, and the verdict was accepted by the court without affording Haley’s counsel an opportunity to question the verdict.

[¶ 7] Haley moved for a new trial, arguing that the jury’s verdict was inconsistent and in disregard of the instructions and that the trial court’s communications with the jury without notice to the parties or counsel constituted an irregularity in the proceedings warranting a new trial. The trial court denied the motion for a new trial and entered judgment dismissing Haley’s claims and awarding Dr. Dennis and Trinity costs and disbursements. Haley has appealed.

II

[¶ 8] Haley contends that the jury’s verdict was inconsistent and irreconcilable, that the trial court erred in answering jury questions without first notifying and consulting with counsel, and that the trial court therefore abused its discretion when it denied her motion for a new trial.

[¶ 9] The jury’s verdict is, on its face, inconsistent and irreconcilable. The jury first found that Dr. Dennis was not negligent, but nevertheless assigned a percentage of fault to Dr. Dennis for Haley’s injuries and awarded damages plus interest. We recently addressed an identical issue in Moszer v. Witt, 2001 ND 30, 622 N.W.2d 223. Moszer had sued Witt for damages arising out of a car accident. The jury returned a special verdict finding Witt was not negligent and was not a proximate cause of the accident, but apportioning fault for the accident 25 percent to Witt and 75 percent to Moszer. The trial judge discussed the situation with the jury in open court, and the jury returned to deliberate further. They returned with a verdict finding Witt was not negligent, but that he was a proximate cause of the accident, and again apportioning 25 percent fault for the accident to Witt. After additional discussion with the trial court, the jury returned a third verdict which found that Witt was negligent but was not a proximate cause of the accident, and again assessed 25 percent fault to Witt. After further discussion, the trial court entered judgment dismissing Moszer’s claims against Witt because Moszer’s fault exceeded Witt’s. See id. at ¶ 9.

[¶ 10] In order to impose liability for negligence, the jury must find both a negligent act and proximate cause. Moszer, 2001 ND 30, ¶ 13, 622 N.W.2d 223. We held that a jury verdict which assesses fault to a person after finding the person was either not negligent or the person’s negligence was not a proximate cause is an inconsistent and perverse verdict requiring a new trial:

While the jury never wavered from assessing on the special verdict form 75 percent of the fault to Moszer and 25 percent of the fault to Witt, the jury never simultaneously found Witt’s conduct to constitute both negligence and a proximate cause of the accident.... The jury’s answers to the special verdict clearly demonstrate they did not understand or correctly apply the law as given to them in the case, and their confusion was not resolved during the jury’s communications with the court.
A jury verdict which assesses fault to a person after finding the person’s negligence was not a proximate cause is a “clearly inconsistent and perverse” verdict. Westfall by Terwilliger v. Kottke, 110 Wis.2d 86, 328 N.W.2d 481, 485 (1983). The jury clearly never understood in this case that to assess fault against a person who has been charged with negligent operation of a motor vehicle, the jury must find both that the person’s conduct was negligent and that it was a proximate cause of the accident. We conclude the trial court’s refusal to vacate the verdict and grant a new trial under N.D.R.Civ.P. 59(g) constituted a manifest abuse of discretion.

Moszer, at ¶¶ 14-15.

[¶ 11] Similarly, the jury in this case assessed fault to Dr. Dennis even though it specifically found he was not negligent and did not answer the special verdict question asking whether Dr. Dennis’s negligence was a proximate cause of Haley’s damage or injuries. The jury’s error, however, was created by the special verdict form, which directed in Question 1 that, if the jury found that Dr. Dennis was not negligent, the jury should go on to Question 3 and assess fault between the parties. The jury did precisely that, resulting in an inconsistent and perverse verdict.

[¶ 12] The inconsistent verdict in this case is exacerbated by the trial court’s handling of the questions from" the jury. Section 28-14-19, N.D.C.C., specifies the procedure to be followed when the jury during deliberations requests clarification of the law:

Additional information as to law. After the jurors have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the case, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the parties or counsel.

[¶ 13] The appropriate procedure in such cases was set out in Cendak Agri-Service, Inc. v. Hausman, 275 N.W.2d 326, 331 (N.D.1979):

[T]here is value in having the jury returned to the courtroom if the members have questions which they wish to submit to the court, and that this be done in the presence of counsel and the parties and upon the record, at which time counsel may, in chambers if the court deems it appropriate, present their views as to the appropriate answer or response to be given by the court to the questions, and object to responses which they believe to be inappropriate.

In Kronberger v. Zins, 463 N.W.2d 656, 658-59 (N.D.1990), this Court clarified that N.D.C.C. § 28-14-19 is mandatory and that, once the nonprevailing party establishes that the procedure required by N.D.C.C. § 28-14-19 was not followed, prejudice is presumed and the burden shifts to the prevailing party to demonstrate that the error was harmless.

[¶ 14] Dr. Dennis and Trinity argue that the failure to follow N.D.C.C. § 28-14-19 was harmless under Andrews v. O’Hearn, 387 N.W.2d 716 (N.D.1986), because the trial court’s answers were administrative in nature. In Andrews, the jury foreman during deliberations requested a dictionary be provided to the jury. The bailiff told the foreman the request would have to be given to the judge in writing and the attorneys would be brought in. The foreman then told the bailiff to “forget about it.” The bailiff told the judge about the incident, and at the end of that day’s deliberations, the, judge instructed the jurors not to use any extraneous evidence, including dictionaries or encyclopedias, when they went home. This Court concluded the instruction was merely a recitation of a prior instruction and administrative in nature, and that the failure to follow N.D.C.C. § 28-14-19 was harmless. Andrews, at 725-26; see also Kronberger, 463 N.W.2d at 659.

[¶ 15] In Kronberger, the jury sent a note to the judge asking if they were to award damages if the plaintiff and defendant were each 50 percent at fault. The trial court, without notifying the parties or counsel, answered in writing, “yes.” In concluding the trial court abused its discretion in denying a motion for a new trial, this Court applied Andreivs, noting that the trial court should consider the nature of both the question and the answer in determining whether the ex parte communication between the judge and jury was administrative:

[W]e view the jury’s question and the trial judge’s response as bearing on the law of the case and the jury’s application of that law in reaching its verdict. We cannot say that this ex parte communication did not harm Kronberger’s substantial rights.
Zins argues that the communication was harmless error under the rule of Andrews v. O’Hearn, 387 N.W.2d 716. In Andrews, we acknowledged two circumstances where communications between the judge and the jury that do not follow the procedure in section 28-14-19, N.D.C.C., are harmless error. When the trial court merely reiterates a proper instruction, or gives an instruction administrative in nature, the prevailing party may overcome the presumption of harm that attaches to ex parte communications. 387 N.W.2d at 725. An administrative instruction is one that goes to the mechanics or process of jury deliberations, as for example, the jury’s inability to use a dictionary or whether the jury’s verdict must be rendered in writing. In this case, the question and answer concern neither a reiteration of a previously given instruction nor an instruction which is merely administrative. Instead, the question and answer go directly to the jury’s consideration of the merits. Under the circumstances, Zins did not overcome the presumption of harm and the trial court abused its discretion in denying a new trial. We, therefore, reverse and grant Kronberger a new trial.

Kronberger, at 659-70; see also Moszer, 2001 ND 30, ¶ 17, 622 N.W.2d 223.

[¶ 16] We are primarily concerned here with the jury’s first question, which asked whether answering Question 1 would release Dr. Dennis from all negligence and questioning how they should answer if part of Dr. Dennis’s treatment was negligent and part was not. This question goes directly to a substantive question of law on the merits, not merely to the mechanics or process of jury deliberations, and triggered application of N.D.C.C. § 28-14-19. When the jury requests clarification or additional instruction on a substantive point of law, the court must notify the parties or counsel before responding to the jury’s request.

[¶ 17] In addition to failing to follow the mandates of N.D.C.C. § 28-14-19 by not bringing the jury into court and not notifying the parties and counsel, the trial court exacerbated the error by answering the jury’s request for guidance with a direction they consult the ill-conceived special verdict form, which invited the jury to assess fault to Dr. Dennis even if it found he was not negligent. The trial court’s failure to follow the dictates of N.D.C.C. § 28-14-19 contributed to the jury ultimately returning an inconsistent and irreconcilable verdict.

[¶ 18] We conclude that the question and answer were not merely administrative in nature, and Dr. Dennis and Trinity failed to meet their burden of showing the error was harmless. Accordingly, the trial court abused its discretion in denying Haley’s motion for a new trial.

Ill

[¶ 19] Haley contends the trial court erred in granting partial summary judgment dismissing her deceit claims against Dr. Dennis and Trinity. We have previously said “a party waives an issue by not providing supporting argument,” and “without supportive reasoning or citations to relevant authorities, an argument is without merit.” Kautzman v. Kautzman, 2003 ND 140, ¶ 15, 668 N.W.2d 59 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶27, 643 N.W.2d 29). Haley has not provided persuasive reasoning or citations to relevant authorities, and her conclusory arguments are without merit.

IV

[¶ 20] We have considered the remaining issues and arguments raised by the parties and find they are either without merit or are unnecessary to our decision. The amended judgment and the order denying Haley’s motion for a new trial are reversed and the case is remanded for a new trial on the negligence claim.

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


text:
    2004 ND 92
    AIRPORT INN ENTERPRISES, INC., Plaintiff and Appellee v. David A. RAMAGE, Defendant and Appellant.
    No. 20040032.
    Supreme Court of North Dakota.
    May 5, 2004.

      Scott M. Knudsvig of Pringle & Herig-stad, P.C., Minot, N.D., for plaintiff and appellee.
    Grant H. Shaft of Shaft, Reis and Shaft, Grand Forks, N.D., for defendant and appellant.
   SANDSTROM, Justice.

1] David Ramage agreed to purchase the International Inn in Williston, North Dakota, from Airport Inn Enterprises, Inc., paying $25,000 in earnest money. The district court granted summary judgment for Airport Inn and awarded it the earnest money on the basis of the contract clause providing for liquidated damages if Ramage failed to complete the purchase. Because the buyer’s obtaining financing acceptable to the buyer was a condition precedent to a binding contract, we reverse and remand for the entry of judgment in favor of Ramage.

I

[¶ 2] On March 15, 2000, Ramage and Airport Inn entered into an earnest-money contract and purchase agreement for the purchase of the International Inn located in Williston, North Dakota. Airport Inn owns the International Inn. The price of the hotel was to be $800,000. Ramage paid $25,000 in earnest money, which was deposited in the trust account of Shaft, Reis & Shaft, Ltd. The agreement provided for liquidated damages if the purchaser for any reason failed, neglected, or refused to complete the purchase. The liquidated-damages clause contained in paragraph 6 of the agreement provided:

If owner’s title is not insurable or free of defects and cannot be made so within sixty (60) days after notice containing a written statement of defects is delivered to owner(s), then said earnest money shall be refunded and all rights of the purchaser(s) terminated except that purchaser(s) may waive defects and elect to purchase. However, if said sale is approved by the purchaser(s) and the owner(s) title is insurable or marketable and the purchaser(s) for any reason fails, neglects, or refuses to complete purchase and to make payments promptly, as above set forth, then the owner(s) shall be paid the earnest money so held in escrow as liquidated damages for such failure to consummate the purchase.

[¶ 3] The agreement also contained a financing contingency in paragraph 14, which provided:

This Agreement is contingent upon Buyer(s) approval of an ALTA survey at Buyer(s) expense, Phase I Environmental Assessment at Buyer(s) expense, and title insurance commitment as referenced in paragraph 5 above. Further, this Agreement is contingent upon Buyer(s) obtaining financing acceptable to Buyer(s).

Ramage was unable to obtain satisfactory financing. His agent faxed a letter to Airport Inn’s selling agent, indicating that after a due-diligence analysis, Ramage decided against purchasing the hotel, because certain factors resulted in his inability to obtain satisfactory financing.

[¶4] After being notified about Ram-age’s inability to obtain satisfactory financing, Airport Inn demanded that Ramage relinquish the earnest money. Ramage failed to do so. On October 2, 2000, Ram-age applied to the district court, under N.D.C.C. § 32-11-02(2), to have the earnest money deposited into an interest-bearing account. On October 10, 2000, the district court ordered that the money be deposited into an interest-bearing account under the name of “District Court, Grand Forks County, North Dakota, as Trustee.” On February 22, 2001, the district court issued a notice of deposit.

[¶ 5] On March 15, 2001, Airport Inn sued Ramage, claiming he breached the agreement when he failed to purchase the property. On June 25, 2002, Ramage filed an answer and counterclaim denying he breached the agreement and asserting he was entitled to the earnest money on deposit with the district court. In November 2003, both parties moved for summary judgment. Airport Inn claimed the plain language of the contract entitled it to the earnest money. It claimed the clause “for any reason” within the liquidated-damages provision of the agreement included failure to obtain financing. Ramage argued that the financing contingency acted as a condition precedent to the agreement and that the provisions of the contract would not become effective until financing was obtained.

[¶ 6] On December 9, 2003, the district court granted summary judgment in favor of Airport Inn. The district court concluded the liquidated-damages clause of the agreement entitled Airport Inn to the earnest money. On December 15, 2003, Ram-age moved for reconsideration, and the motion was denied. On January 8, 2004, the district court entered a judgment for Airport Inn in the amount of $25,000 with interest. Proceedings to enforce the judgment were stayed pending the disposition of this appeal.

[¶7] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 8] Ramage argues the district court erred in granting Airport Inn’s summary judgment motion and in awarding it $25,000 in earnest money. He argues the district court erred as a matter of law in interpreting the agreement between the parties, failing to give effect to the financing contingency. He argues the financing contingency in the agreement was a condition precedent to the agreement, thus rendering the contract, including the liquidated-damages provision, unenforceable until the financing contingency was met. Airport Inn argues that the language of the liquidated-damages clause entitles it to the earnest money even though the financing contingency was not met.

[¶ 9] In finding Airport Inn’s position more persuasive, the district court stated: “The contract written by the Defendant clearly states that if the purchaser ‘for any reason, fails, neglects, or refuses to complete purchase ..., then the owners shall be paid the earnest money so held in escrow as liquidated damages.’” Although the district court mentioned the financing contingency, it did not determine whether the contingency acted as a condition precedent, nor did it discuss the impact of a condition precedent. The district court simply stated: “The defendant points to paragraph 14 and the contingency of his obtaining ‘financing acceptable to Buyer.’ The undisputed facts are that the buyer had many plans for future development, and he decided the plans would not cash flow with the financing available.”

[¶ 10] On appeal, this Court will independently review a contract to determine whether the district court erred in its interpretation of it. Kondrad v. Bismarck Park Dist., 2003 ND 4, ¶ 6, 655 N.W.2d 411. Interpretation of a contract is a question of law if the intent of the parties can be ascertained from the agreement alone. See N.D.C.C. § 9-07-04; Garofalo v. St. Joseph’s Hospital, 2000 ND 149, ¶ 7, 615 N.W.2d 160. An unambiguous contract, therefore, is particularly amenable to summary judgment. Garofalo, at ¶ 7.

Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a 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 reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result.

Fish v. Dockter, 2003 ND 185, ¶ 7, 671 N.W.2d 819.

[¶ 11] Important in determining who is entitled to the earnest money is whether the financing contingency in paragraph 14 of the agreement was a condition precedent to the agreement’s becoming binding. “A condition precedent is one which must be performed or happen before a duty of immediate performance arises on the promise which the condition qualifies.” Kruger v. Soreide, 246 N.W.2d 764, 769 (N.D.1976) (citations omitted); see also N.D.C.C. § 9-01-11. A condition precedent may be a prerequisite to the existence of a contract. Mattco, Inc. v. Mandan Radio Ass’n, Inc., 224 N.W.2d 822, 825 (N.D.1974).

[¶ 12] The language in paragraph 14 of the agreement states: “[T]his Agreement is contingent upon Buyer(s) obtaining financing acceptable to Buyer(s).” When an agreement is conditioned upon obtaining financing, a condition precedent to performance of the agreement is created. Kruger, 246 N.W.2d at 769. When financing is a condition precedent, there is no enforceable agreement until the financing is obtained. Id.; see also Quinn Distributing Company v. North Hill Bowl, Inc., 139 N.W.2d 860, 863-64 (N.D.1966).

[¶ 13] Other states have also concluded that when an agreement is conditioned on obtaining financing, a condition precedent is created and no contract exists until that condition is met. See Parker v. Averett, 114 Ga.App. 401, 151 S.E.2d 475 (1966); Knox v. Townes, 470 S.W.2d 290 (Tex.Civ.App.1971). In Parker v. Averett, the court construed the plain meaning of a sales contract to mean that the sale was contingent upon the purchaser’s ability to obtain financing. 151 S.E.2d at 476. In Parker, the contract provided that the balance of the purchase price should be paid “from FHA loan” and that the sale was contingent on the “purchaser being able to acquire FHA financing.” Id. The court held the contract was not enforceable until the financing was obtained. Id.

[¶ 14] In Knox v. Townes, the court held the term “contingent upon purchaser obtaining satisfactory financing” to be a condition precedent. 470 S.W.2d at 292. The court concluded that unless financing satisfactory to the purchaser was obtained, there was no obligation to perform the contract. Id. In Knox, there was a forfeiture clause stating the earnest money paid would be forfeited if the purchaser failed to consummate the sale. Id. at 291. The court held, because the purchaser did not find financing, the contract and its forfeiture clause never became effective. Id. at 292.

[¶ 15] In this case, the language in paragraph 14 of the agreement states, “this Agreement is contingent upon Buyer(s) obtaining financing acceptable to Buyer(s).” No bad faith has been alleged in Ramage’s attempt to obtain acceptable financing. We conclude this financing contingency is a condition precedent to the contract’s becoming effective. Because obtaining financing is a condition precedent, the contract is conditioned upon Ramage’s obtaining financing acceptable to him, and there can be no enforceable contract until financing is obtained. Because the condition precedent in this ease never materialized, the agreement was not binding on the parties, and the liquidated-damages clause never became effective.

Ill

[¶ 16] We reverse the judgment of the district court, concluding the district court erred as a matter of law in awarding Airport Inn $25,000 in earnest money, with interest, as liquidated damages, and remand to enter a judgment in favor of Ramage for $25,000, the amount of the earnest money on deposit with the district court in Grand Forks County.

[¶ 17] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


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

text:
    2004 ND 89
    Timothy R. MEYER, Plaintiff and Appellee v. Diane L. MEYER, Defendant and Appellant.
    No. 20030214.
    Supreme Court of North Dakota.
    May 5, 2004.

      Leslie Johnson Aldrich, Johnson Law Office, P.C., Fargo, ND, for plaintiff and appellee.
    Charles A. Stock, Johannson, Rust, Fag-erlund, Yon & Stock, PA, Crookston, MN, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Diane Meyer appealed from an amended judgment modifying Timothy Meyer’s spousal support obligation from $800 per month to $300 per month. We reverse and remand.

I

[¶ 2] Timothy and Diane Meyer were divorced in February 1998. The original decree, based upon the parties’ stipulation, provided Timothy Meyer would pay $800 per month in spousal support to Diane Meyer for ten years. At the time of the decree, Timothy Meyer was earning $72,000 per year, and Diane Meyer was earning $22,000 per year.

[¶ 3] On January 1, 2003, Timothy Meyer’s employer, Krider Equipment, was sold to Titan Machinery, Inc. His income at the time of the sale was approximately $79,000. After the sale, Timothy Meyer’s salary was reduced to $50,000 per year. As a result, he moved for termination of his spousal support obligation or, in the alternative, a reduction in the amount of support. A hearing was held before a judicial referee, who determined there was a material change in circumstances and recommended the spousal support obligation be reduced to $300 per month for the remainder of the ten-year support obligation. Diane Meyer requested a review of the referee’s findings, and upon review, the district court affirmed the findings and recommendation of the referee and ordered entry of an amended judgment reducing Timothy Meyer’s support obligation to $300 per month.

II

[¶ 4] On appeal, Diane Meyer asserts the court’s modification of spousal support is clearly erroneous because Timothy Meyer’s reduction in income does not constitute a material change in circumstances; the district court did not adequately consider that the original decree was based upon a stipulation by the parties; and the reduction in Timothy Meyer’s income was contemplated by the parties in the original decree.

[¶ 5] When there has been an initial award of spousal support, the trial court retains jurisdiction and may modify the award at least as long as support continues. Bellefeuille v. Bellefeuille, 2001 ND 192, ¶ 19, 636 N.W.2d 195. The party seeking modification of spousal support bears the burden of showing a material change in circumstances warrants modification. Quamme v. Bellino, 2002 ND 159, ¶ 14, 652 N.W.2d 360. The trial court’s determination regarding a material change in circumstances warranting a modification of spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Lohstreter v. Lohstreter, 2001 ND 45, ¶ 10, 623 N.W.2d 350. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Id. Not every financial change in circumstances justifies a modification, and if a change is self-induced no modification is warranted. Schmitz v. Schmitz, 2001 ND 19, ¶ 8, 622 N.W.2d 176. A material change in circumstances means something that substantially affects the parties’ financial abilities or needs, and the reasons for changes in income must be examined as well as the extent to which the changes were contemplated by the parties at the time of the initial decree. Schmalle v. Schmalle, 1998 ND 201, ¶ 12, 586 N.W.2d 677. A contemplated change is one taken into consideration by the district court in fashioning its original decree. Quamme, at ¶ 14.

A.

[¶ 6] The record supports the trial court’s finding Timothy Meyer was earning $72,000 per year while Diane Meyer was earning $22,000 per year when the original decree was entered, resulting in an annual income differential of $50,000 between them. The record also supports the trial court’s finding that Timothy Meyer’s income had been reduced to $50,000 when he moved for modification as a result of the sale of his employer. Since the divorce, Diane Meyer has experienced an increase of income to $32,000 per year, resulting in an income differential between her and Timothy Meyer of $18,000 per year.

[¶ 7] Timothy Meyer’s current salary is 30.6% less than his annual income when the original decree was entered. This constitutes a significant decrease. Diane Meyer asserts the parties originally contemplated that Timothy Meyer might voluntarily change jobs with a resulting reduction of income, and therefore, his reduced salary should not be considered in finding a material change in circumstances. But, while the parties may have contemplated a reduction in Timothy Meyer’s income if he voluntarily changed jobs, they did not contemplate an involuntary reduction of his income resulting from the sale of his employer. Timothy Meyer had considered, but did not voluntarily make, a change of employment resulting in reduced income. More importantly, the parties did not contemplate the extent to which Timothy Meyer’s income has ultimately been reduced by the sale of his employer. The change was not voluntarily incurred by Timothy Meyer, nor was it contemplated by the parties or considered by the district court in fashioning the original decree. We conclude the trial court did not err in factoring Timothy Meyer’s reduction in income as relevant to its finding that a material change in circumstances existed.

B.

[¶ 8] Diane Meyer also asserts the trial court did not adequately consider that the original spousal support obligation was based upon a stipulation of the parties and should not be changed. This Court encourages spousal support awards based upon agreements between the divorcing parties and has recognized changing a stipulated support amount should only be done “with great reluctance by the trial court.” Toni v. Toni 2001 ND 193, ¶ 11, 636 N.W.2d 396. However, we have also recognized that a spousal support award based upon a stipulation by the parties can be modified upon a showing of a material change in circumstances. Id.; see also Wheeler v. Wheeler, 419 N.W.2d 923, 925 (N.D.1988) (‘Wheeler /”). We are not persuaded the trial court failed to adequately consider that the original decree was based upon the parties’ stipulation. The court determined the change in the parties’ incomes sufficiently affected Timothy Meyer’s ability to pay and Diane Meyer’s need for support to warrant modification of the stipulated amount. Under the circumstances, we conclude the trial court’s finding is not clearly erroneous.

[¶ 9] We reverse, however, because we are concerned with the lack of any explanation regarding the amount of the reduction in support compared to the reduction in Timothy Meyer’s income. See Wheeler v. Wheeler, 548 N.W.2d 27, 30 (N.D.1996) (“Wheeler II”) (“Findings of fact should be sufficiently stated so we are able to understand the factual basis for the trial court’s decision, particularly in view of our standards for modification” of spousal support). In addressing whether Timothy Meyer’s change in circumstances warrants a modification, the trial court only stated:

In this case, [Timothy Meyer] has experienced a material and substantial reduction in income. [Diane Meyer] has increased her income and assets since the divorce, but opines she must continue to save for retirement and pay off the mortgage on her home in order to be rehabilitated by the end of the ten-year period of spousal support. The Referee’s decision to lower the monthly spousal support from $800 per month to $300 per month is a balance between the greater burden of [Timothy Meyer] and the lesser need of [Diane Meyer], and is not clearly erroneous.

Although Diane Meyer asserts the trial court erred in finding that she abandoned her rehabilitative goal or that she was rehabilitated, the trial court, in essence, concluded her rehabilitation was not complete and she continues to have a disadvantage as a result of the divorce, entitling her to continue receiving some spousal support. However, the trial court did not provide sufficient analysis regarding Diane Meyer’s current need for support or Timothy Meyer’s current ability to pay spousal support. Instead, it only concluded Diane Meyer’s needs had changed and so had Timothy Meyer’s ability to pay. Therefore, while we understand the trial court’s rationale for reducing the amount of spousal support, we cannot discern its rationale for reducing Timothy Meyer’s spousal support obligation from $800 per month to $300 per month. See Wheeler II at 30 (the Court will not remand for clarification if, through inference or deduction, we can discern the rationale for the result reached by the trial court). In Wheeler I, this Court stated:

If a supported spouse is not to be penalized “for her initiative and ... incentive for self betterment,” Lipp v. Lipp, [355 N.W.2d 817, 819 (N.D.1984) ], her agreed support should not be reduced simply because she has improved her financial ability. Her standard of living and needs, as well as those of the paying spouse, must be weighed along with their relative financial abilities.

419 N.W.2d at 927. On remand, the trial court must evaluate Timothy Meyer’s current ability to pay along with Diane Meyer’s current need for support, and must award support in an amount that is adequately proportional to the reduction in Timothy Meyer’s income in light of Diane Meyer’s need for support. In doing so, the trial court will continue to give sufficient credence to the fact the original decree was based upon a stipulated agreement by the parties while recognizing a material change in circumstances has occurred.

[¶ 10] We reverse and remand for reconsideration of the amount of support in accordance with this opinion.

[¶ 11] CAROL RONNING KAPSNER, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

dissenting in part

and concurring in part.

[¶ 12] I respectfully dissent from Part IIA and paragraph 8 of Part IIB and concur in the remainder of the majority opinion. I would reverse the order and amended judgment modifying Timothy Meyer’s spousal support obligation from $800 per month to $300 per month and remand for further proceedings. I believe the trial court- clearly erred in its application of the law.

[¶ 13] Timothy Meyer and Diane Meyer were divorced in February 1998 pursuant to a stipulated settlement. The stipulated settlement provided that Timothy Meyer would pay Diane Meyer $800 per month in spousal support for ten years after the sale of the marital home. After incurring a reduction in income, Timothy Meyer moved to terminate or reduce his spousal support obligation. The trial court granted his motion and reduced his spousal support obligation from $800 per month to $300 per month.

[¶ 14] A trial court’s determination concerning spousal support is treated as a finding of fact which we will not reverse on appeal unless clearly erroneous. Shields v. Shields, 2003 ND 16, ¶ 6, 656 N.W.2d 712. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made.” Id. In Toni v. Toni, this Court emphasized that it encourages “spousal support awards based on agreements between the divorcing parties, and noted those agreements ‘should be changed only with great reluctance by the trial court.’ ” 2001 ND 193, ¶ 11, 636 N.W.2d 396 (quoting Huffman v. Huffman, mi N.W.2d 594, 597 (N.D.1991)).

I

[¶ 15] Timothy Meyer, the party who sought modification of his spousal support obligation, bore the burden of showing a material change of circumstances warranting or justifying a modification. Schmalle v. Schmalle, 1998 ND 201, ¶12, 586 N.W.2d 677. In Wheeler v. Wheeler, this Court explained the standard for a material change of circumstances:

To modify spousal support, circumstances must have changed materially. Slight, or even moderate, changes in the parties’ relative incomes are not necessarily material. “Material change” means something which substantially affects the financial abilities or needs of a party.

419 N.W.2d 923, 925 (N.D.1988) (internal citations omitted).

[¶ 16] We stated in Schmalle, “the reasons for changes in income must be examined as well as the extent the changes were contemplated by the parties at the time of the initial decree or a subsequent modification.” 1998 ND 201, ¶ 12, 586 N.W.2d 677. The divorce decree in Schmalle was based on a stipulated agreement. Id. at ¶ 2. In Schmalle, our Court recognized that the alleged change of circumstances cannot constitute a material change of circumstances if they “were reasonably contemplated by the parties when the initial decree was entered.” Id. at ¶ 14. In addition, this Court has repeatedly stated that “[a] trial court cannot ‘consider issues of property division and spousal support separately in a vacuum, but must examine those issues together.’ ” Sommer v. Sommer, 2001 ND 191, ¶ 16, 636 N.W.2d 423 (quoting Ketelsen v. Ketelsen, 1999 ND 148, ¶6, 598 N.W.2d 185). Therefore, spousal support and property division are intertwined. The trial court must consider the obligor’s assets as well as income in determining his financial ability to pay.

[¶ 17] The trial court erred in applying the law applicable to modifications of spousal support obligations. The record establishes that Timothy Meyer stipulated to paying $800 per month in spousal support even though he was considering a reduction of his income and that he agreed to the stipulated divorce settlement to avoid a trial highlighting his marital infidelity. The majority emphasizes the fact that, after the divorce, Timothy Meyer did not voluntarily reduce his income. Regardless of whether the reduction in income was voluntary or involuntary, Timothy Meyer and Diane Meyer contemplated a reduction in Timothy Meyer’s income when agreeing to his spousal support obligation of $800 per month and to a division of their marital property.

[¶ 18] In Schmitz v. Schmitz, we said that a circumstance that was contemplated and known at the time of the judgment cannot be a material change of circumstances. 1998 ND 203, ¶9, 586 N.W.2d 490 (stating “[cjhanges in the parties’ financial conditions which were in fact considered by the court in the original divorce judgment do not constitute a material change of circumstances warranting a modification of spousal support”). In the present case, there is no dispute that the parties contemplated a reduction in Timothy Meyer’s income when they entered into their stipulation for spousal support. To disregard this undisputed evidence will discourage, not encourage, settlements. Our Court’s policy of encouraging parties to settle these matters must be promoted by requiring adherence to the judgment when the evidence is undisputed that the alleged material change of circumstances was contemplated by the parties at the time of entry of judgment.

[¶ 19] The trial court and the majority opinion do not acknowledge that Timothy Meyer has voluntarily taken the reduction in his income. He did testify he applied for a manager position with Titan, but it was given to one of the former owners of Krider. He has only applied for one $24,000 a year job and has not attempted to find another job at his previous income level. Our Court has said that “earned income is not the sole consideration in determining a party’s ability to pay support. Rather, the court must consider a party’s net worth, including the extent of his assets and his earning ability as demonstrated by past income.” Schmitz v. Schmitz, 2001 ND 19, ¶ 10, 622 N.W.2d 176 (citations omitted); see also McDowell v. McDowell, 2001 ND 176, ¶ 13, 635 N.W.2d 139; Walker v. Walker, 2002 ND 187, ¶ 14, 653 N.W.2d 722.

[¶ 20] This Court has stated:

While it is true that the ‘change of circumstances’ necessary to warrant modification is one based primarily on a change in financial circumstances, ... it is also true that not every change in financial circumstances justifies a modification .... When the change is voluntary or self-induced, no modification is warranted because the obligor, by voluntarily placing herself or himself in a less financially secure position, is without clean hands and precluded from seeking equity. Even though the law never requires impossibilities, NDCC § 31 — 11— 05(22), one who voluntarily dissipates or reduces income is not protected either from the consequences of such conduct or by equitable maxims.

Wheeler v. Wheeler, 548 N.W.2d 27, 31 (N.D.1996) (quoting Koch v. Williams, 456 N.W.2d 299, 301 (N.D.1990)). Because the alleged change of circumstances was contemplated by the parties when they entered into the agreement to settle their spousal support and property division issues and because there is no evidence Timothy Meyer’s ability to earn is impaired, there is no material change of circumstances.

II

[¶ 21] Even if Timothy Meyer’s reduction in income is a change of circumstances, the trial court failed to make any findings that it “substantially affects the financial abilities or needs of a party.” Wheeler, 419 N.W.2d at 925. Timothy Meyer must establish more than just a change of circumstances. He must establish the change of circumstances was material. The financial ability of each party is a principal concern; however, the trier of fact must go beyond comparing the parties’ incomes. Penuel v. Penuel, 415 N.W.2d 497, 500 (N.D.1987). A trial court must consider the disadvantaged spouse’s needs and the supporting spouse’s ability to pay. Shields, 2003 ND 16, ¶ 10, 656 N.W.2d 712. Timothy Meyer must establish that his ability to pay his spousal support obligation has been affected by his change of circumstances in order to be material. See Id.

[¶ 22] When addressing whether Timothy Meyer’s change of circumstances warrants a modification, the trial court stated only that:

[i]n this case, Plaintiff has experienced a material and substantial reduction in income. Defendant has increased her income and assets since the divorce, but opines she must continue to save for retirement and pay off the mortgage on her home in order to be rehabilitated by the end of the ten-year period of spousal support. The Referee’s decision to lower the monthly spousal support from $800 per month to $800 per month is a balance between the greater burden of the Plaintiff and the lesser need of the Defendant, and is not clearly erroneous.

It is impossible to determine the basis for the trial court’s reduction of Timothy Meyer’s spousal support obligation because it did not provide any analysis of Diane Meyer’s needs or Timothy Meyer’s financial ability to continue paying $800 per month in spousal support.

[¶ 23] This Court has said, “[it] will not set aside the trial court’s determinations on property division or spousal support for failure to explicitly state the basis for its findings if that basis is reasonably discernible by deduction or inference.” Routledge v. Routledge, 377 N.W.2d 542, 545 n. 1 (N.D.1985) (citations omitted); see also Heinz v. Heinz, 2001 ND 147, ¶ 12, 632 N.W.2d 443. In this case, however, there is no analysis of Timothy Meyer’s assets, earning ability or needs. The trial court provides no discernible basis for reducing Timothy Meyer’s spousal support obligation, other than an income comparison and a conclusory statement that Diane Meyer has a “lesser need.”

III

[¶ 24] Finally, even if there was a material change of Timothy Meyer’s circumstances warranting a modification of his spousal support obligation, I would reverse and remand because the trial court provided no analysis explaining why $300 per month is an appropriate modification of Timothy Meyer’s spousal support obligation. The trial court arbitrarily chose $300 per month as Timothy Meyer’s monthly spousal support obligation.

[¶ 25] Timothy Meyer’s income has decreased from $72,000 per year to $50,000 per year or 30.6 percent. The trial court ordered his spousal support obligation reduced from $800 per month to $300 per month or 62.5 percent. The only alleged material change of circumstances is Timothy Meyer’s 30.6 percent reduction in income. It is impossible to determine from the trial court’s order its reasons for reducing his monthly spousal support obligation by double his actual percent decrease in his salary.

IV

[¶ 26] For these reasons, I respectfully dissent and concur. I would reverse the order and amended judgment reducing Timothy Meyer’s spousal support obligation from $800 per month to $300 per month and remand for further proceedings.

[¶ 27] MARY MUEHLEN MARING

SANDSTROM, Justice,

dissenting.

[¶ 28] As the majority opinion recognizes, the trial court’s “determination regarding a material change in circumstances warranting a modification of spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.” Lohstreter v. Lohstreter, 2001 ND 45, ¶ 10, 623 N.W.2d 350. “While helpful, detailed findings of fact are not required for spousal support orders if we can satisfactorily determine the reasons for the court’s decision.” Mahoney v. Mahoney, 1997 ND 149, ¶24, 567 N.W.2d 206. We can do that on this record; therefore, I respectfully dissent.

[¶ 29] The majority concludes the trial court did not provide sufficient analysis regarding Diane Meyer’s current need for support or Timothy Meyer’s current ability to pay spousal support, and remands for the trial court to reconsider the amount of support awarded. By reviewing the record along with the trial court’s explanation for its decision to reduce the support obligation, we can readily discern the rationale for the result reached by the trial court. Consequently, a remand is not necessary.

[¶ 30] As the majority opinion recognizes, Timothy Meyer was earning $72,000 per year when the divorce decree was entered, and Diane Meyer was earning $22,000 per year, for a difference in incomes of $50,000. Now, Timothy Meyer is earning only $50,000 per year, and Diane Meyer is earning $32,000 per year, for a difference of $18,000. Consequently, the difference in income between these parties has narrowed by 64 percent since entry of the original decree. The trial court, recognizing the narrowed income gap constitutes a substantial change of circumstances, reduced Timothy Meyer’s support obligation by 62.5 percent. The math speaks for itself. The majority states that the trial court “must award support in an amount that is adequately proportional to the reduction in Timothy Meyer’s income.” That is precisely what the trial court has done. The evidentiary figures provide the basis and justification for the court’s reduction in support from $800 per month to $300 per month.

[¶ 31] The trial court has provided additional insight and explanation for its decision to reduce the support amount from $800 per month to $300 per month. The trial court reasoned that if the spousal support remained at the $800 per month level, Diane Meyer’s gross income would exceed Timothy Meyer’s gross income, and the court stated that the amended support obligation “is a balance between the greater burden of [Timothy Meyer] and the lesser need of [Diane Meyer].”

[¶ 32] Timothy Meyer’s reduction in income of 30.6 percent was an involuntary reduction caused by the sale of his business. Meanwhile, Diane Meyer has continued to improve her financial situation and has realized a 45 percent increase in her annual income. These substantial changes in the incomes of both parties support the trial court’s decision to reduce Timothy Meyer’s support obligation from $800 to $300 per month. The trial court has the authority to equitably balance the burden of an obligor against the needs of the obligee. Sommer v. Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423. That is precisely what the trial court has done in this case. In my view, the trial court’s rebalancing of the parties’ abilities and needs is readily discerned by the record evidence and does not need additional clarification.

[¶ 33] Here, the trial court’s findings are supported by the record and are not clearly erroneous. The evidence contains specific numbers showing the changes in income of both parties between entry of the original decree and the present. The court, using these numbers, recognized that the support obligation must balance the needs and abilities of both parties. The trial court offered a cogent and reasonable explanation for its decision. That explanation is, in my view, adequate for this Court to understand the purpose and reasoning for the support amount awarded by the trial court. The remand for additional findings and explanation is neither necessary nor warranted, and for that reason I would affirm the judgment.

[¶ 34] DALE V. SANDSTROM

      . There is dispute as to whether Timothy Meyer's income at the time of divorce was $69,000 or $72,000. However, the trial court found his income to be $72,000.