author: LANSING, Judge. RANDALL, Judge

text:
    HANS HAGEN HOMES, INC., Respondent, v. CITY OF MINNETRISTA, Appellant.
    No. A05-1686.
    Court of Appeals of Minnesota.
    May 16, 2006.

      Gary A. Van Cleve, Jessica B. Rivas, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, MN, for respondent.
    George C. Hoff, Amanda Morken, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and RANDALL, Judge.
   OPINION

LANSING, Judge.

On cross-motions for summary judgment, the district court granted Hans Ha-gen Homes’ petition for mandamus to enforce MinmStat. § 15.99, subd. 2, (2004), and directed the City of Minnetrista to approve Hagen Homes’ application for rezoning and for expanding the metropolitan-urban-service area. The city appeals, and, because we conclude that the district court properly construed the requirements of section 15.99, subdivision 2(c), as mandatory, we affirm.

FACTS

Hans Hagen Homes, Inc., filed a petition for a writ of mandamus to compel the City of Minnetrista to approve Hagen Homes’ application for rezoning and for amending the city’s comprehensive plan that would adjust the metropolitan-urban-service-area (MUSA) line. On cross-motions for summary judgment, the district court denied the city’s motion, granted Hagen Homes’ motion in part, and directed the city to approve the application. The district court denied Hagen Homes’ mandamus request to approve its conceptual site plan, and this denial is not disputed on appeal.

Hagen Homes and the city agree on the essential facts. Hagen Homes owns approximately 220 acres of land, divided into six parcels, within the city. In May 2004 Hagen Homes submitted a rezoning application to the city, requesting that the city rezone its parcels from rural agricultural to R-4-PUD and amend its comprehensive plan to adjust the MUSA line to provide Hagen Homes’ parcels with public services. The city asked for an extension of the sixty-day statutory time limit to approve or deny the application; Hagen Homes eventually agreed to a November 30, 2004 deadline.

On October 4, 2004, the city council held a public hearing on the application. A Minnetrista city planner presented information on Hagen Homes’ request, and a company representative described the project in further detail. After hearing the presentations and public comments, the city denied the application, finding that Hagen Homes’ requests were inconsistent with the city’s comprehensive plan and that further traffic studies were necessary. The city did not adopt written findings until its October 18, 2004 meeting when it passed a resolution formally denying Ha-gen Homes’ request. Hagen Homes did not have a representative at this meeting.

The city posted minutes of the October 4 and 18 meetings on its website before the November 30, 2004 deadline for action on the application. Copies of the resolution were also available at city hall within forty-eight hours after its adoption. The city did not, however, provide Hagen Homes with a copy of the resolution until December 9, 2004, when Hagen Homes requested a copy from the city.

In March 2005 Hagen Homes filed a petition for mandamus, contending that it was entitled to approval of its application as a matter of law because the city did not provide Hagen Homes with a written statement of denial and the reasons for denial before November 30, 2004, as required by Minn.Stat. § 15.99, subd. 2 (2004). The city appeals from the district court’s summary judgment granting Ha-gen Homes’ mandamus petition.

ISSUE

Did the district court err by concluding that a city’s failure to provide an applicant with a written statement of its reasons for denying an application for rezoning and extending a MUSA line before the expiration of the Minn.Stat. § 15.99 deadline for action resulted in approval as a matter of law?

ANALYSIS

To obtain a writ of mandamus, a petitioner must establish that the law clearly requires the performance of the mandatory or purely ministerial act for which the writ will issue. Minn.Stat. § 586.01 (2004); McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989). Whether a petitioner has established the grounds necessary to support the issuance of a writ is a question of law. McIntosh, 441 N.W.2d at 118.

The district court’s summary judgment granting the mandamus petition and directing the city to approve Hagen Homes’ application is based solely on the city’s failure to provide Hagen Homes with a written statement of the city’s reasons for denial before expiration of the response deadline as required by Minn.Stat. § 15.99, subd. 2(c) (2004). Because Hagen Homes and the city do not dispute the material facts, we exercise independent review to determine whether the district court erred in its application of the statutory language to the undisputed facts. See Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002) (stating that application of statute to undisputed facts is reviewed de novo).

Hagen Homes’ and the city’s respective arguments focus narrowly on the structure and text of the second and third subdivisions of section 15.99. The first subdivision, which has no provisions in contention, consists of definitions. See Minn.Stat. § 15.99, subd. 1 (2004) (defining agency, request, and application). The term “agency” includes all statutory and home-rule cities. Id., subd. 1(b). The city does not dispute that it is an agency governed by the time deadlines for agency action. The second subdivision has three subparts addressing the deadline for responding to requests. Id., subd. 2 (2004). The first and last of these subparts are at the core of this dispute. The third and final subdivision provides the requirements for applications and extensions. Id., subd. 3 (2004) (relating to applications and extensions for agency action). Hagen Homes and the city do not dispute that, at the city’s request, Hagen Homes extended the deadline for the city’s response to November 30, 2004. But they dispute the significance of subpart (c) of the third subdivision, which provides that an agency that sends its response within sixty days of the written request meets the deadline for agency action. See id., subd. 3(c) (allowing agency to prove compliance by documenting response sent within sixty days of written application).

The first of the core provisions in dispute, subdivision 2(a), contains the operative language that transforms an agency’s failure to respond to an application within sixty days into an approval:

Except as otherwise provided in this section, section 462.358, subdivision 3b, or chapter 505, and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

Id., subd. 2(a) (emphasis added). The second of the core disputed provisions, subdivision 2(c), lists the actions that a city council, as a multimember body, must complete to deny effectively an application:

If a multimember governing body denies a request, it must state the reasons for denial on the record and provide the applicant in writing a statement of the reasons for the denial. If the written statement is not adopted at the same time as the denial, it must be adopted at the next meeting following the denial of the request but before the expiration of the time allowed for making a decision under this section. The written statement must be consistent with the reasons stated in the record at the time of the denial. The written statement must be provided to the applicant upon adoption.

Id., subd. 2(c) (emphasis added). The final provision at issue, contained in subdivision 3(c), provides the deadline for sending a response:

An agency response meets the 60-day time limit if the agency can document that the response was sent within 60 days of receipt of the written request.

Id., subd. 3(c).

The city argues that because subpart (c) of subdivision 2, unlike subpart (a), does not contain a penalty clause, the violation of a requirement in subpart (c) does .not result in automatic approval of the application. Specifically, the city argues that a violation of the requirement to “provide the applicant in writing a statement of the reasons for the denial” within the sixty-day deadline, or an authorized extension, does not result in automatic approval. Hagen Homes counters that the requirements of subdivision 2 are mandatory and that the penalty clause of subpart (a) applies to a violation of any of the requirements in subdivision 2.

In ascertaining the meaning of a statute, our goal is to effectuate the legislative intent. Minn.Stat. § 645.16 (2004). If the language of the statute is unambiguous, we apply its plain meaning. Id.; Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000). If the statutory language is unclear, however, we consider other factors that would reveal the legislative intent, including the need for the law, the circumstances of its enactment, the purpose of the statute, the consequences of a particular interpretation, and the contemporaneous legislative history. Minn. Stat. § 645.16; State v. Loge, 608 N.W.2d 152,155 (Minn.2000).

We determine whether a statute has a plain meaning by reviewing its content and framework. Genin v.1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn.2001). Reviewing statutory language for plain meaning requires us to analyze the language in the full context of the act or provision. Christensen v. Dep’t of Conservation, Game & Fish, 285 Minn. 493, 499-500, 175 N.W.2d 433, 437 (1970) (observing that statute must be read as whole and that meaning should be ascertained from context). We must consider sections of a statute together to determine plain meaning. Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 339 (Minn.1984); see also Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944) (instructing that statute must be considered as whole to harmonize and give effect to all provisions).

Determining the integrated plain meaning requires us to “read a particular provision in context with other provisions of the same statute in order to determine the meaning of the particular provision.” ILHC of Eagan, LLC v. County of Dakota, 693 N.W.2d 412, 419 (Minn.2005); see also Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989) (recognizing that sections of statute must be read together because arrangement of sections may provide plain meaning); Kollodge v. F. & L. Appliances, Inc., 248 Minn. 357, 360, 80 N.W.2d 62, 64 (1956) (stating that particular provision of statute cannot be read out of context).

The Supreme Court has recognized that, in discerning plain meaning, a provision that seems ambiguous in isolation may be clarified by the remainder of the statute because “the same terminology [may be] used elsewhere in a context that makes its meaning clear or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988) (citation omitted). Thus, statutory construction includes not only attention to the specific words, but also “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). Finally, looking at the statute as a whole and reading each section in context with all other sections, satisfies the statutory presumption that the legislature intends an entire statute to be effective and certain. Minn. Stat. § 645.17(2) (2004).

Reading the subdivisions of section 15.99 together reveals a plain meaning that is evident in the interdependent functioning of the subdivisions. Subdivision 2(c) interrelates with subdivision 2(a) by providing additional and more specific explanation of its requirements. The district court correctly reasoned that because sub-part (c) refers back to subpart (a), the same penalty applies even though the legislature did not insert it a second time into subpart (c). In a subdivided section that focuses successively on various aspects of the response deadline, a presumption that the contents of each subdivision must be restated in the parallel subdivisions would defeat the obvious purpose of the serial division. The context and the coordinated effect establish that the penalty in subdivision 2(a) is interrelated with, and applies to, the requirements in subdivision 2(c). Importantly, if subdivision 2(a)’s penalty did not apply to subdivision 2(c), the statute would provide no penalty for violating the mandatory requirements in subdivision 2(c).

Finally, unless subdivisions 2(a) and 2(c) combine to provide the penalty of automatically granting the application if the agency does not provide a written response to the applicant within sixty days, the language of subdivision 3(c) would not make sense. Subdivision 3(c) provides that an “agency response meets the 60-day time limit if the agency can document that the response was sent within 60 days of the written request.” Unless the failure to provide a written response to the applicant triggers the automatic-issuance penalty, the reference to the sixty-day limit would be superfluous and subdivision 3(c) would have no effect. See ILHC, 693 N.W.2d at 419 (stating that “[wjhenever possible, no word, phrase, or sentence should be deemed superfluous, void, or insignificant” (quotation omitted)).

The city’s spirited argument for reversal does not assert that the statute is ambiguous but argues for a plain meaning that would isolate rather than harmonize subdivisions 2(a) and 2(c). To accept the city’s argument, we would have to reject the contextual plain meaning that inheres in the interdependent sections, divide rather than harmonize the text, and constrain or void the effect of subdivision 3(c). We would also have to reject appellate caselaw that explicitly or implicitly interprets the requirements in section 15.99, subdivision 2, as mandatory and necessary to complete within the deadline for agency action.

In Manco of Fairmont, Inc. v. Town Board of Rock Dell Township, 583 N.W.2d 293, 295 (Minn.App.1998), review denied (Minn. Oct. 20, 1998), this court determined that the requirements of subdivision 2, were mandatory because the statute “expresses the consequences of a failure to comply with its provisions.” In Demolition Landfill Services, LLC v. City of Duluth, 609 N.W.2d 278, 281-82 (Minn.App. 2000), review denied (Minn. July 25, 2000), we again characterized the requirements of subdivision 2 as mandatory and essential to an effective denial. After this court issued Manco and Demolition Landfill, the legislature amended subdivision 2 by adding subparts (b) and (c). 2003 Minn. Laws ch. 41, § 1 at 322. Although the amendments do not directly impact our analysis, the legislature notably did not include in the amendments any indication that the provisions of subdivision 2 were not mandatory. Id.; see Minn.Stat. § 645.17(4) (2004) (stating presumption that, after court has construed statute, legislature intends same construction in subsequent laws); State v. Anderson, 666 N.W.2d 696, 700 (Minn.2003) (“[Wjhen the legislature does not amend our construction of a statute, the court’s construction stands.”). Finally, earlier this year we concluded that the simultaneous-written-reason requirements in subdivisions 2(a) and 2(c) are mandatory and must be completed within the sixty-day deadline, or an authorized extension, for agency action. Veit Co. v. Lake County, 707 N.W.2d 725, 730 (Minn.App.2006), review denied (Minn. Apr. 18, 2006).

Significantly, Veit presented an issue that also required a hybrid application of subdivisions 2(a) and 2(c) because both subparts (a) and (c) address the writing requirement. In Veit, the county planning commission initially denied Veit’s application within the deadline, but failed to provide written reasons for the denial. Id. at 727. The county argued that it fulfilled the purpose of the statute because it provided a written denial within the time limit for agency action, and the public-hearing transcript demonstrated that the county had a reasonable basis for denying the application. Id. at 727-28. We concluded that, even if the transcript had been sufficient to satisfy the writing requirement of subdivision 2(a), the record contained no evidence that the county provided the applicant with a copy before the deadline expired, as required by subdivision 2(c). Id. at 730. Consequently, we held that the application was approved as a matter of law. Id.

The plain meaning of subdivision 2 is that the agency must provide the applicant a written statement of the reasons for denying an application within the sixty-day statutory deadline, or an authorized extension, and that failing to do so results in approval of the application as a matter of law. Minn.Stat. § 645.16; Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995).

Plain meaning is the governing principle in applying all statutory language. Yet, Minnesota courts will not give effect to plain meaning if it produces an absurd or unreasonable result that is plainly at variance with the policy of the legislation as a whole. Minn.Stat. § 645.17(1) (2004); see also Olson v. Ford Motor Co., 558 N.W.2d 491, 495 (Minn.1997) (discussing need to avoid absurd result); Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993) (discussing need to avoid unreasonable result at variance with statute’s purpose). This court has previously determined that the underlying purpose of section 15.99 is to “establish[ ] time deadlines for local governments to take action on zoning applications.” Tollefson Dev., Inc. v. City of Elk River, 665 N.W.2d 554 (Minn.App.2003) (citing Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001)). Thus our determination of the statute’s plain meaning is consistent with the manifest purpose of section 15.99.

The city contends that the automatic approval of the application is a disproportionate sanction for a technical failure to mail the resolution to Hagen Homes, particularly because Hagen Homes does not dispute that it had actual notice of the application’s denial. We agree that the penalty is harsh, and we share the observations of the special concurrence that a prejudice requirement would temper the risk of public injustice. But when a statutory provision is clear on its face and consistent with the manifest purpose of the legislature, courts do not subject the statute to further analysis because without deference to clear statutory language, “legislators will have difficulty imparting a stable meaning to the statutes they enact.” Krzalic v. Republic Title Co., 314 F.3d 875, 879-80 (7th Cir.2002) (recognizing that deference to plain meaning keeps branches of government in equilibrium and “preserve[s] language as an effective medium of communication from legislatures to courts”).

We must presume that the legislature understood the effect of its words and intended the language of the statute to be effective and certain. Minn.Stat. § 645.17(2); Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 74, 93 N.W.2d 690, 698 (1958). “While automatic approval of a permit application is an extraordinary remedy, Minnesota appellate courts have shown no reluctance to grant this remedy and enforce the provisions of section 15.99[if] a city has failed to satisfy its clear requirements.” N. States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 925 (Minn.App.2002), review denied (Minn. Sept. 25, 2002); see also Moreno v. City of Minneapolis, 676 N.W.2d 1, 6 (Minn.App.2004). (holding that application was approved as matter of law even though it was harsh and extraordinary remedy). When a statute’s language is plain, the function of the courts is to enforce it according to its terms. Minn.Stat. § 645.16. We therefore affirm the district- court’s summary judgment on the petition for mandamus.

DECISION

Because the city failed to provide Hagen Homes with a written statement of the reasons for denying its application within the agreed-on extension of the sixty-day deadline, the district court did not err by granting summary judgment in the mandamus action and determining that the application was approved as a matter of law.

Affirmed.

RANDALL, Judge

(concurring specially)-

The court today correctly interprets the express language of Minn.Stat. § 15.99 (2004). Today’s decision represents the present legislative intent of section 15.99, which requires municipalities to provide written notice of a decision to the petitioning party within (a strict) 60 days. Am. Tower v. City of Grant, 636 N.W.2d 309,' 313 (Minn.2001), Veit Co. v. Lake County, 707 N.W.2d 725, 728-29 (Minn.App.2006), review denied (Minn. Apr. 18, 2006). Today’s finding is in accordance with the plain language of section 15.99. I write separately to underscore the inherent danger in this rigid legislative, scheme. I suggest this issue must be revisited by the Minnesota Supreme Court or the legislature to make the changes needed to protect municipalities and their citizenry from unnecessary negligence liability, while not interfering with the right of aggrieved parties to pursue remedies.

Municipalities, like Minnetrista, find themselves in a difficult situation. When Hans Hagen asked for a variance, Minne-trista deemed such a variance injurious and ultimately sought to deny the request. The decision this court reaches today, based on a rigid application of the statute, cannot take into consideration the type of variance sought by Hans Hagen, and the failure of Hans Hagen to exhibit any actual prejudice.

For instance, had Hans Hagen sought to construct a tire-burning industrial unit, a coal-fired power plant, a monstrous metal-shredder plant, a car battery/freon disposal plant, etc., today’s decision would grant and allow a potential injurious business too operate in residential Minnetrista. Anyone seeking a variance for something they have no chance to get, but are willing to pay the application fee and “take a shot” could file for a variance just to see what happens. With an administrative slip of the pen, as we have here, and with no showing of actual prejudice (with candor, respondent agrees that the short time-lapse caused none) it looks like the law mandates granting that variance.

I suggest there is precedent for examining an extremely short statute of limitations to see whether any actual prejudice has resulted, and, if not so, to work that into a common-sense reading of the law.

The Minnesota Supreme Court held that arbitrary deadlines are sometimes “unduly harsh.” Terrell v. State Farm Ins. Co., 346 N.W.2d 149, 152 (Minn.1984). In Terrell the supreme court conducted a similar analysis as this court does today regarding a strictly worded legislative scheme. Id. The supreme court noted that absent such direct statutory direction, public policy would require an avoidance of injustice through requiring actual prejudice. Id. at 151. In recognizing disfavor on forfeiture of decisions or policies due to the passing of arbitrary deadlines, the legislature amended the statute at issue in Terrell to require a showing of actual prejudice. 1984 Minn. Laws ch. 592, § 55, at 1282. Subsequent decisions from this court then did not apply the same strict scrutiny administered by the supreme court in Terrell partly due to the legislature’s change in heart. See, e.g., LaFriniere v. State Farm Mut. Auto. Ins. Co., No. C5-88-1582, 1989 WL 23535, at *2 (Minn.App. Mar.21,1989). In general, actual prejudice need be shown or there may be a limit to recovery. L & H Transport, Inc. v. Drew Agency, Inc., 369 N.W.2d 608, 611 (Minn.App.1985), aff'd 384 N.W.2d 435 (Minn.1986) ...

Respondents responsibly admit that Minnetrista’s decision was not arbitrary and capricious and that actual oral notice of the rejection was received at the October 9, 2005 meeting.

If the supreme court and legislature maintain the strict interpretation of Minn. Stat. § 15.99, that we see today, the inherent right of a municipality to fulfill its duty to protect the citizenry from unhealthy variances is emasculated. Normal statutes of limitation are commonly two, three, or six years to allow individuals and organizations the ability to adequately protect themselves from liability. See, e.g., Minn. Stat. § 541.07 (2004) (imposing two-or-three-year limitations on certain claims), Minn.Stat. § 17.9441, subd. 5 (2004) (imposing six-year statute of limitations on agricultural contract violations). The time limit here is 60 days. Hans Hagen admits that they were given constructive knowledge that the variance request was rejected after the vote at the first meeting. Without a showing of any actual prejudice, Hans Hagen’s request for relief should be — ideally—scrutinized and the interests of the public weighed against those of Hans Hagen.

The relatively short delay, nine days, to Minnetrista’s actual notice of denial in this case highlights the flaw within the harsh interpretations required by Minn.Stat. § 15.99. I believe that the supreme court or the legislature needs to reexamine the automatic approval of a variance to require a showing of at least some actual prejudice before overriding a municipality’s right to safeguard itself from harm. Hans Hagen was unable to show any prejudice suffered because of the nine day delay. If Minne-trista’s letter had not arrived after six months, or one year, a showing of actual prejudice could be doable. That is a case for another day based on those facts.

The second huge “bear in the kitchen” is the potential unlimited liability of Minne-trista and other similarly situated municipalities for classic ministerial negligence and easily provable damages. With the right noxious plant in place in a neighborhood because of a nine-day delay, or a six-day delay, or a one-day delay, every abutting landowner, residential or commercial, and possibly every homeowner within a strong wind’s smelling distance of a plant would be able to show through independent appraisal that the value of their property was reduced by ministerial negligence of the municipality.

The doctrine of common-law official immunity protects municipalities from liability arising from discretionary decisions. Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn.1988). That is boilerplate law and needs no elaboration. But it is also equally clear that municipalities are subject to claims for ministerial negligence. An act is ministerial “when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991) (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)). Whether a given action is discretionary or ministerial is a question that turns on the facts of each case. Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn.App.1990), review denied (Minn. Feb. 28, 1990). Minnetrista has the protection of discretionary immunity to debate an ordinance, to pass or not pass one, and to grant or not grant zoning variances. Municipalities are shielded when they balance the standard laundry list, economic, social, political, etc. Nusbimm v. County of Blue Earth, 422 N.W.2d 713, 720 (Minn.1988). With regard to ministerial duties required of a public official, the Supreme Court has stated that if “he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. A mistake as to his duty and honest intentions will not excuse the offender.” Amy v. Supervisors, 11 Wall. 136, 78 U.S. 136,138, 20 L.Ed. 101 (1870).

Once Minnetrista formally denied Hans Hagen’s request, the instructions to the clerk to follow the statutory instructions for mailing were purely ministerial. After receiving a directive from the city council, there is no “discretion” in an employee not to put something in the mail within a clearly delineated statutory time-line. That directive is absolute, is not debatable, involves no economic balancing of interests (other than the expenditure of a $.39 stamp), and without giving an advisory opinion, it is difficult to conjure up a decent argument that the failure here to observe the 60-day deadline (albeit just nine days late) was anything but purely ministerial. A case could be built by a competent lawyer that failure to do so within the unambiguous statutory time constitutes at least enough “slight negligence” to build a cause of action on.

This is the apocalyptic scenario that, like tax day, April 15, is never too far off. In a hypothetical involving a coal-fired power plan or a metal-shredder, etc., etc., it would be difficult for a municipality to defend a claim of actual damages by owners of real property anywhere within sight-lines, or the wind-blown areas, or the entire community.

I strongly suggest that with section 15.99, some showing of actual prejudice should be determinative of the issue before us. In determining whether actual prejudice can be shown, the lapse of time would assist in determining liability on a case-by-case basis.

When determining the scrutiny necessary in matters like this, judges need the flexibility to balance the harshness of the penalty in relation to the shortness of the time limit in relation to actual prejudice shown. In the case of the minor delay involved here, Minnetrista should be given some latitude in their ability to make a decision that will severely impact those the municipality is charged to protect.

This is not to infer that Hans Hagen will not be a good neighbor; it is to state unequivocally that a bad neighbor would be in the same shoes as Hans Hagen is today, and it appears the courts are powerless to do any justice.

If municipalities are forced into bonding to exercise their power of eminent domain (to buy out affected homeowners, similar to excessive “airport noise”), or face the possibility of multiple lawsuits for devalued property, the taxpayer will be hollering for justice.

I respectfully concur but point out what I believe to be a serious flaw in what we are compelled to do today.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2006 ND 105
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Mark R. HELLERUD, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Mark R. Hellerud, Respondent.
    No. 20050354.
    Supreme Court of North Dakota.
    May 11, 2006.

      Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, ND, for petitioner.
    Mark R. Hellerud, pro se, Ada, MN, respondent.
   REPRIMAND ORDERED.

PER CURIAM.

[¶ 1] Mark Hellerud objects to a report by a hearing panel of the Disciplinary Board which recommended he be reprimanded, refund fees of $9,220.00, and pay costs of $3,030.25, plus the costs of the transcript for violation of N.D.R. Prof. Conduct 1.5(a) (excessive fees) & N.D.R. Prof. Conduct 1.5(b) (not adequately communicating fees). We conclude there is clear and convincing evidence Hellerud negligently violated those rules, and we adopt the hearing panel’s recommendation that Hellerud be reprimanded and pay costs. We disagree with the hearing panel’s recommendation on the amount of fees to be refunded and conclude Hellerud should be required to refund fees of $5,651.25.

I

[¶ 2] This disciplinary case arose out of a fee dispute over the administration of an estate. Hellerud was hired by Edward Kraft, an eighty-year-old man from Illinois, to administer the estate of his deceased brother, Earl Kraft. Edward Kraft signed a retainer agreement agreeing to pay Hellerud “$275 per hour for all attorney’s time and services expended.” Helle-rud’s normal hourly rate is between $150-$175, but he generally charges more for probate matters, usually a little over $200. The retainer agreement did not specify he would bill for the legal assistant’s time. Hellerud stated he told Edward Kraft the total fees would likely be between $10,000 and $15,000 because he was not very familiar with North Dakota probate work and would have to make all new forms for this probate. Hellerud also stated he told Edward Kraft to think about the arrangement overnight before signing the retainer agreement. Edward Kraft signed the agreement and has not disputed the fees charged.

[¶ 3] In the probate action, Hellerud sought approval from the district court of approximately $15,000 in attorney fees for an estate that totaled approximately $65,000. The district court refused to allow for the proposed distribution of the estate without a detailed accounting of the hours billed. A niece and heir of Earl Kraft contacted Hellerud about the high amount of attorney fees. The fees would have been deducted from the total estate thus reducing the niece’s share of her inheritance. The niece and Hellerud discussed reaching a settlement agreement. After communications between the two broke down, the niece filed a complaint with the Disciplinary Board. After receiving notice of the complaint, Hellerud entered into a stipulation with disciplinary counsel to receive a reprimand, to refund fees in the amount of $5,000, and to be assessed costs in the amount of $500. The stipulation was rejected by the hearing panel.

[¶ 4] Hellerud admitted to billing both his time and his legal assistant’s time at the rate of $275 per hour. According to Hellerud, only a few hours of the legal assistant’s time was billed at the rate of $275 an hour. He admitted to not distinguishing the legal assistant’s time from his time on his billing sheet, but explained his billing system did not allow for the different rates to be separated.

[¶ 5] A hearing panel of the Disciplinary Board found Hellerud violated the North Dakota Rules of Professional Conduct. The hearing panel concluded Helle-rud violated N.D.R. Prof. Conduct Rule 1.5(a) requiring an attorney’s fee to be reasonable and violated N.D.R. Prof. Conduct Rule 1.5(b) requiring an attorney to provide the basis, rate, or amount of an attorney’s fee to be communicated to the client before or within a reasonable time after commencing the representation. The hearing panel found he violated these rules by charging excessive fees and by not adequately communicating to Edward Kraft how the fees would be charged. The hearing panel recommends this Court reprimand Hellerud, that Hellerud be required to refund fees to the estate of Earl Kraft in the amount of $9,220.00, and that Helle-rud be required to pay the costs of the disciplinary proceedings in the amount of $3,030.25, plus the costs of the transcript.

[¶ 6] Hellerud objects arguing the fees were not unreasonable because they were agreed upon by the client after full disclosure of the rate he was to bill and the likely amount of hours that would be billed. He also argues this matter is properly addressed with the district court and not the Disciplinary Board because his client has not objected to the rate of fees, and finally, that the assessment of costs is inappropriate.

II

[¶ 7] The primary purpose of the disciplinary process is to protect the public and the integrity of the profession. Disciplinary Bd. v. Nassif, 547 N.W.2d 541, 544 (N.D.1996). We review disciplinary proceedings de novo. Disciplinary Bd. v. Ward, 2005 ND 144, ¶ 6, 701 N.W.2d 873. Due weight is given to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a “mere rubber stamp.” Id. Disciplinary counsel must prove each alleged violation by clear and convincing evidence. Id.

A

[¶ 8] The hearing panel recommends Hellerud be reprimanded and be required to refund fees for violating N.D.R. Prof. Conduct Rule 1.5(a) & (b). Hellerud argues the fees were agreed upon after full disclosure with the client and the fees were reasonable.

[¶ 9] Our Rules of Professional Conduct require an attorney’s fee to be reasonable. N.D.R. Prof. Conduct Rule 1.5(a). Our Rules also require the “basis, rate, or amount of the fee” to be adequately communicated to a client within a reasonable time after commencing representation. N.D.R. Prof. Conduct Rule 1.5(b). Violating the Professional Conduct Rules can subject an attorney to discipline. Disciplinary Bd. v. Dooley, 1999 ND 184, ¶¶ 32-33, 599 N.W.2d 619.

[¶ 10] We agree with the hearing panel that there appears to be an excessive amount of hours billed for a simple administration of a cash estate, combined with a higher than average hourly rate. While attorneys are free to bill at different rates for different clients and different projects, the hearing panel was correct in concluding it is counterintuitive to charge a higher hourly rate for knowing less about North Dakota law.

[¶ 11] What attorneys charge for their services is generally a matter of agreement between the lawyer and the client. Disciplinary Bd. v. Dooley, 1999 ND 184, ¶ 13, 599 N.W.2d 619. But N.D.R. Prof. Conduct Rule 1.5(a) requires an attorney’s fee to be reasonable. Several factors are weighed to determine when a fee is considered reasonable. These factors include:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

N.D.R. Prof. Conduct Rule 1.5(a).

[¶ 12] Looking to the factors in N.D.R. Prof. Conduct Rule 1.5(a), factors 1 (novelty and difficulty of the questions involved), 3 (fee customarily charged in the locality for similar legal services), and 4 (amount involved and the results obtained), weigh heavily against Hellerud’s perception that the fees were reasonable. With factor 1, there has been nothing to suggest the estate was especially novel or difficult. The estate consisted of mostly cash assets, and with similar cash estates in Minnesota, Hellerud’s legal assistant testified she could complete most of the estate work by herself. As to factor 3, charging a fee of $275 per hour is not unreasonable, but Hellerud testified it was more than he normally charges and more than he had charged any client before. Finally, under factor 4, the amount involved was small, as far as estates go, and the results obtained were not helpful to his client. The property from the estate had not been distributed at the time the panel heard the complaint.

[¶ 13] We are cognizant that, to some extent, there is a freedom of contract concern in regulating what an attorney can charge. It would be imprudent to suggest a certain dollar amount per hour is per se unreasonable. But this laissez-faire approach cannot go completely unchecked. C.f. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792-93, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (holding minimum fee schedule for attorneys published by the Fairfax County Bar Association and enforced by the Virginia State Bar violates federal antitrust lavy). Attorneys owe their clients greater duties than are owed under general contract law. See Restatement (Third) of the Law Governing Lawyers § 34 cmt. b (2000). Courts are empowered to make their own inquiries about the reasonableness of legal fees as a part of their inherent authority to regulate the practice of law. Annotated Model Rules of Professional Conduct 46 (3d ed.1996).

[¶ 14] Suspension from the practice of law is an appropriate sanction for an attorney who “knowingly” charges an excessive fee. Disciplinary Bd. v. Moe, 1999 ND 110, ¶ 18, 594 N.W.2d 317. A reprimand is an appropriate sanction for an attorney who negligently charges an excessive fee. Id. at ¶ 16; see also N.D. Stds. Imposing Lawyer Sanctions 4.43. The N.D. Stds. Imposing Lawyer Sanctions defines “knowledge” as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish ■ a particular result,” and “negligence” as “the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” N.D. Stds. Imposing Lawyer Sanctions Definitions. There is no bright line between the mental state of “knows or should know” and that of “negligence.” Disciplinary Bd. v. Gray, 544 N.W.2d 168, 172 (N.D.1996).

[¶ 15] A hearing panel of the Disciplinary Board concluded Hellerud acted negligently in violating the rules, but the panel was unable to conclude by clear and convincing evidence that Hellerud acted knowingly. The panel recommended Hellerud be reprimanded due to his negligent conduct. Having reviewed the record before us, we agree with the hearing panel’s recommendation that Hellerud’s actions were negligent and that a reprimand is an appropriate sanction under N.D. Stds. Imposing Lawyer Sanctions 4.13 and 7.3.

[¶ 16] We disagree with the hearing panel’s recommendation as to the appropriate amount of fees to refund. The hearing panel concluded the following fee reductions were necessary to bring Hellerud’s fee within the scope of what can be considered a reasonable fee under Rule 1.5(a), N.D.R. Prof. Conduct:

a. Reduction of hourly rate from $275 to $150 $6,362.50
b. Further reduction of document preparation time (14 hrs to 7 hrs) 1,050.00
c. Further reduction of time for “disclaimer” issue (3.55 hrs to 2 hrs) 232.50
d. Further reduction of time for file reviews (8.15 hrs to 5 hrs) 472.50
e. Further reduction for work of legal assistant (3 hrs @ $75 instead of $150 [previously reduced from $275]) 225.00
f. Further reduction for letters to clients (11.85 hrs to 6 hrs) 877.50
$9,220.00

[¶ 17] The hearing panel reduced Hel-lerud’s hours and billing rate. The hours were reduced by 17.55, Hellerud’s rate was reduced by $125 per hour, and his legal assistant’s rate was reduced by $200 per hour. We believe the hearing panel’s reduction of both the number of hours billed and Hellerud’s billing rate is inappropriate. Such a reduction fails to give sufficient weight to the retainer agreement contract. It has not been suggested on this record that Edward Kraft was not competent to enter into this agreement or that Hellerud misrepresented the hourly rate to him.

[¶ 18] Hellerud testified Edward Kraft made an informed consensual agreement to pay $275 per hour and was aware of the total amount that would likely be charged. Edward Kraft signed the retainer agreement and has not disputed the fees to be charged. We believe an hourly rate of $275 is not so unreasonable or out of community norms as to violate N.D.R. Prof. Conduct Rule 1.5(a).

[¶ 19] The hearing panel reduced Hel-lerud’s hours by 17.55. It also lowered his legal assistant’s rate from $275 to $75 per hour. We believe the reduction of Helle-rud’s hours is appropriate. Hellerud’s hours are reduced by 17.55 for a total reduction of $4,826.25 ($275 x 17.55).

[¶ 20] Hellerud admitted to charging his legal assistant’s time at a rate of $275 per hour without disclosure to his client. Hellerud stated this hourly rate difference resulted from his outdated billing system and was done by mistake. The retainer agreement says nothing about charging for the time of a legal assistant. Other than attorney time, the retainer agreement provides: “I agree to pay all costs and expenses of the above matter, including filing fees, fees for service, fees for expert witnesses, and fees for any test.” The intent to charge a significant rate for the work of the legal assistant has not been adequately communicated to the client as required by Rule 1.5(b). Accordingly, we require Hel-lerud to refund $825 charged for his legal assistant’s time. Hellerud is required to refund fees to the Earl Kraft estate in the amount of $5,651.25 ($4,826.25 + $825).

B

[¶ 21] Hellerud argues this fee dispute should not be brought before the Disciplinary Board, but should be resolved between his client, the complaining party, and the district court. He argues that because his client did not complain of his services, and because the district court has the authority to reduce attorney fees, the Disciplinary Board is an improper venue for this fee dispute. We disagree. Helle-rud’s argument contradicts the purpose of the North Dakota Rules of Professional Conduct.

[¶ 22] Any person injured by the conduct of an attorney may file a complaint against an attorney for a violation of the Rules of Professional Conduct. See N.D.R. Lawyer Discipl. 3.1(A). As an heir whose portion of the estate would be reduced by the payment of an excessive legal fee, the complaining party appropriately brought this matter to the Disciplinary Board. Our standards for imposing lawyer sanctions provides that the “failure of injured client to complain” should not be considered as an aggravating or mitigating factor. See N.D. Stds. Imposing Lawyer Sanctions 9.4(f). As a licensed attorney in North Dakota, Hellerud’s duties transcend his obligation to his client. “No member of the community is charged with the exercise of a higher degree of good faith, fairness, and honesty in his dealings with others, and in his treatment of clients, than an attorney at law.” In re Walton, 251 N.W.2d 762, 764 (N.D.1977). A client’s failure to complain and the district court’s ability to lower fees does not prevent the Disciplinary Board from hearing a complaint. Nor does it prevent this Court from imposing sanctions.

C

[¶23] Hellerud argues the assessment of costs is inappropriate in this case. Hellerud points to Standard 2.7(b), N.D. Stds. Imposing Lawyer Sanctions, which states costs “may” be imposed, but are not required. We have previously held that “our disciplinary rules require assessment of costs and expenses against a disciplined attorney.” Disciplinary Bd. v. Boughey, 1999 ND 205, ¶ 13, 602 N.W.2d 268. “Costs and expenses assessed under N.D.R. Lawyer Discipl. 1.3(D) ordinarily include reasonable attorney fees for disciplinary counsel.” Id. Our Rules provide: “Unless otherwise ordered by the court or a hearing panel, costs and expenses of all disability or discipline proceedings ... must be assessed against the lawyer in any case where discipline is imposed.” N.D.R. Lawyer Discipl. 1.3(D) (emphasis added).

[¶ 24] Since we have determined Helle-rud should be sanctioned, we believe the mandatory language of N.D.R. Lawyer Discipl. 1.3(D) applies. We thus adopt the hearing panel’s recommendation that costs be assessed in the amount of $3,030.25. The transcript costs on appeal are to be added to this amount.

Ill

[¶ 25] We adopt the recommendation of the hearing panel in part. Hellerud is reprimanded and required to pay costs for the proceedings in the amount of $3,030.25, plus the costs of the transcript on appeal. Hellerud is also required to refund fees to the Earl Kraft estate in the amount of $5,651.25.

[¶ 26] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.

[¶ 27] The Honorable MARY MUEHLEN MARING disqualified herself subsequent to oral argument and did not participate in this decision.


author: SANDSTROM, Justice. KAPSNER, Justice,

text:
    2006 ND 97
    Douglas R. KNUTSON, and Linda F. Knutson, Plaintiffs and Appellants v. CITY OF FARGO, North Dakota, a municipal corporation, Defendant and Appellee.
    No. 20050355.
    Supreme Court of North Dakota.
    May 11, 2006.
    Rehearing Denied June 1, 2006.

      David A. Garaas, Garaas Law Firm, Fargo, ND, for plaintiffs and appellants.
    Patricia A. Roscoe, Assistant City Attorney, Fargo, ND, for defendant and appel-lee.
   SANDSTROM, Justice.

[¶ 1] Douglas and Linda Knutson appeal the district court’s summary judgment dismissing their inverse condemnation, intentional trespass, and negligence claims against the City of Fargo (“the City”) for damages caused to their property after a city water main broke. We affirm.

I

[¶ 2] In July 2003, a water main located under the street adjacent to the Knut-sons’ home broke. Water flowed onto their property, damaging their house foundation, sidewalk, and fence. In August 2004, the Knutsons sued the City. They claimed the flooding of their property was an inverse condemnation because their property had been taken or damaged for public use protected by the eminent domain provision of the North Dakota Constitution. They also claimed the leakage was an intentional trespass and the City was negligent in maintaining the water main.

[¶ 3] Discovery in the case reflected the water main adjacent to the Knutsons’ property was constructed in 1950. The main was made of unlined cast iron and was eight inches wide. According to the affidavit of Dennis Walaker, Director of Operations for Fargo Public Works, cast iron water mains deteriorate over time because soil corrosion will reduce the thickness of the water main’s outside wall. The wall deteriorates until a break occurs. Walaker contended no maintenance or repair procedure would have prevented the break that damaged the Knutsons’ property.

[¶ 4] According to Walaker’s affidavit and its attachments, the City had a water main replacement policy in place at the time the main broke. Under the policy, water mains in the worst condition are replaced first. Factors evaluated included breaks per city block, recent break history, age of the water main, and the type of main. If a city block experienced more than twelve breaks, replacement was recommended. If a block experienced between five and twelve breaks, the water main was replaced if the street was reconstructed, and recent break history was evaluated to decide whether replacement was needed. If a block experienced fewer than five breaks, recent break history and the type of street maintenance needed were considered. These blocks were given low replacement priority. According to Walaker, the policy has resulted in a significant reduction of water main breaks. When discovery was conducted, the City was replacing four to six miles of water main per year.

[¶ 5] Each party moved for summary judgment. The district court held that the Knutsons could not establish inverse condemnation because the City had taken no affirmative act to take or damage their property. The court also concluded the Knutsons could not establish trespass because the City had no intent for the main to break. It finally concluded the City had discretionary immunity, which barred the Knutsons’ negligence claim.

[¶ 6] On appeal, the Knutsons argue that the damage caused by the flooding was a taking or damaging for public use, that they can establish their trespass claim, and that the City is not immune from their negligence claim. The City argues the district court correctly granted summary judgment in its favor.

[¶ 7] The district 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, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 8] A grant of summary judgment is reviewed de novo, examining the evidence in a light most favorable to the opposing party. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639. All inferences must be viewed in favor of the non-moving party. Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551.

III

[¶ 9] The Knutsons argue the district court erred when it granted summary judgment on their inverse condemnation action. The eminent domain provision of article I, section 16, of the North Dakota Constitution requires that “[private property shall not be taken or damaged for public use without just compensation having been first made to ... the owner.... ” Inverse condemnation actions are a property owner’s remedy, exercised when a public entity has taken or damaged the owner’s property for a public use without the public entity’s having brought an eminent domain proceeding. Eck v. City of Bismarck, 283 N.W.2d 193, 198 (N.D.1979). To prove inverse condemnation, the property owner must prove that a public entity took or damaged his or her property for a public use and that public use was the proximate cause of the damage. Frank v. County of Mercer, 186 N.W.2d 439, 445-46 (N.D.1971).

[¶ 10] The district court concluded that to maintain an inverse condemnation claim, “Fargo must have performed some affirmative act similar to exercising the power of eminent domain.” The Knutsons argue an affirmative act similar to exercising eminent domain is not required, because a public entity can be liable not only if it acts purposely but also negligently. In Hamilton v. City of Bismarck, a claim for damages from the overflow of Bismarck’s sanitary sewer through a manhole, this Court concluded that negligence could not support an inverse condemnation claim:

[W]e distinguish between an action for damages based upon negligence and an action based upon damage to private property for public use within the purview of § 14 of the Constitution. That section of the Constitution does not bear upon damages resulting from negligence of public corporations or their agents; it deals with those damages that would normally flow from the exercise of the power of eminent domain.

71 N.D. 321, 327, 300 N.W. 631, 633-34 (1941). The district court relied on this language to conclude inverse condemnation required an affirmative act similar to eminent domain.

[¶ 11] The Knutsons rely on Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355 (N.D.1968), and Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953), as support that negligent acts by a public entity can support an inverse condemnation action. In Jamestown Plumbing & Heating, in which a street renovation resulted in excess pooling of water that caused a business’s building to settle and water to be repeatedly pushed into and under the front door of the business, this Court said:

We conclude that where a municipality purposely with due care or negligently so constructed the street improvement that it created a nuisance which resulted in damage to the property, the municipality is liable for the damage, regardless of the means employed or the intent or the lack of intent on the part of public officials.

164 N.W.2d at 361. The Jamestown Plumbing & Heating Court relied on Kin-nischtzke. Id. In Kinnischtzke, in which the city negligently maintained a sewage system that discharged sewage into a creek, damaging the private owner’s property and livestock, this Court said:

Negligence may or may not result in the creation of a nuisance, and, on the other hand, a nuisance may be created wholly without negligence....
We reach the conclusion that where a municipality purposely or negligently so operates a sewage disposal plant that it becomes a nuisance which results in injury to property, the municipality is liable for damages in an amount sufficient to compensate for the injury.

79 N.D. at 510, 511, 57 N.W.2d at 596-97. On rehearing, this Court said:

Negligence constitutes no exception to [the eminent domain provision of the North Dakota Constitution], nor is tort of any kind made an exception. If private property is taken or damaged for public use, compensation must be made in all eases, regardless of the means employed or the intent or the lack of intent on the part of public officials. There may be instances where private property is injured through the negligence of municipal officials acting in a governmental capacity which would not amount to damaging the property for public use within the meaning of Section 14 of our constitution. See Hamilton v. City of Bismarck, 71 N.D. 321, 300 N.W. 631. But that is not the case here. The facts set out in the complaint indicate that damage to property resulted from a governmental activity negligently conducted over a considerable period of time and in such a manner that it became a nuisance.

Id. at 515, 57 N.W.2d at 599.

[¶ 12] The Knutsons also rely on Pacific Bell v. City of San Diego, 81 Cal.App.4th 596, 96 Cal.Rptr.2d 897 (2000). Pacific Bell, however, supports the argument that some governmental act, whether done purposefully or negligently, is required to claim inverse condemnation. See id. at 909. The California Court of Appeals stated, “Damage caused by the public improvement as deliberately conceived, altered or maintained may be recovered under inverse condemnation and the presence or absence of fault by the public entity ordinarily is irrelevant.” Id. at 903-04 (citing Barham v. S. Cal. Edison Co., 74 Cal.App.4th 744, 88 Cal.Rptr.2d 424, 431-32 (1999); Marshall v. Dep’t of Water & Power, 219 Cal.App.3d 1124, 268 Cal.Rptr. 559, 567 (1990)). While discussing McMahan’s of Santa Monica v. City of Santa Monica, 146 Cal.App.3d 683, 194 Cal.Rptr. 582 (1983), the Pacific Bell court stated:

McMahan’s recognized inverse condemnation is the remedy only for an injury to private property caused by a deliberate act for the purpose of fulfilling one of the public objects of the project as a whole. It also recognized that negligent acts committed during the routine day-to-day operation of the public improvement or negligence in the routine operation having no relation to the functioning of the project as conceived does not create a claim in inverse condemnation.

Pac. Bell, 96 Cal.Rptr.2d at 909 (emphasis added).

[¶ 13] Reading these cases together, we conclude an inverse condemnation claim does not hinge on negligence or intent to harm. See Alan Romero, Takings by Floodwaters, 76 N.D. L.Rev. 785, 790-91 n. 35 (2000) (“a physical seizure or occupation of property is a taking regardless of whether the government does so intentionally, negligently, or even innocently”). Under the North Dakota Constitution, inverse condemnation requires a public entity’s taking or damaging an owner’s property by some deliberate act, whether done intentionally, negligently, or innocently. The district court found that the City had undertaken no deliberate act and that the Knutsons’ claim was one of negligence.

[¶ 14] The Knutsons’ reliance on Jamestown Plumbing & Heating and Kinnischtzke is not on point. Both Jamestown Plumbing & Heating and Kinnischtzke applied the eminent domain provision to a nuisance occurring repeatedly over a long period. See Jamestown Plumbing & Heating, 164 N.W.2d at 361 (“We conclude that where a municipality purposely with due care or negligently so constructed the street improvement that it created a nuisance which resulted in damage to the property, the municipality is liable for the damage, regardless of the means employed or the intent or the lack of intent on the part of public officials.”); Kinnischtzke, 79 N.D. at 515, 57 N.W.2d at 599 (on rehearing) (“The facts set out in the complaint indicate that damage to property resulted from a governmental activity negligently conducted over a considerable period of time and in such a manner that it became a nuisance.”). This is not a nuisance case like Jamestown Plumbing & Heating and Kin-nischtzke. This is a case of one flooding caused by the rupture of one water main, not damage over time. A public entity may be held liable for nuisance under N.D.C.C. ch. 42-01. See Dempsey v. City of Souris, 279 N.W.2d 418, 420 (N.D.1979) (private landowner sued city under N.D.C.C. § 42-01-01 for nuisance created by the city’s operation of a sewage lagoon). Reliance on article I, section 16, of the North Dakota Constitution is not necessary.

[¶ 15] In McMahan’s, the California Court of Appeals concluded the city’s knowledge of water main deterioration and failure to guard against breaks were deliberate acts. 194 Cal.Rptr. at 590. The Pacific Bell court agreed with McMahan’s analysis and reversed the lower court in favor of the property owner on its inverse condemnation suit. 96 Cal.Rptr.2d at 910, 913. In Pacific Bell, the court stated San Diego had no method of testing water mains before they broke, instead adopting a “wait until it breaks” method of replacing pipes. Pac. Bell, 96 Cal.Rptr.2d at 902, 908. The City’s water main replacement policy seeks to replace the worst areas first. The worst areas are found by first monitoring the number of breaks in a particular area. The City presented evidence that no normal procedure can prevent water main breaks and leaks, so the City’s policy helps it guard against breaks. The policy examines factors such as breaks per city block, recent break history, age of the water main, and the type of main. Therefore, the City’s replacement policy is more thorough than San Diego’s procedure in Pacific Bell, in which San Diego replaced water mains only when they broke. The City does what is in its power to guard against breaks by addressing the locations that need replacement the most. Therefore, Pacific Bell and McMahan’s are distinguishable, and the City has not committed any deliberate act to take or damage the Knutsons’ property. The Knutsons’ inverse condemnation claim fails as a matter of law, and summary judgment is appropriate.

IV

[¶ 16] The Knutsons argue the district court erred in dismissing their trespass claim, because they argue they can establish each element of trespass. For trespass, the plaintiff must establish the defendant intentionally entered the land of another, or caused a thing or third person to do so, without, the consent of the landowner. Tibert v. Slominski, 2005 ND 34, ¶ 15, 692 N.W.2d 133 (citing McDermott v. Sway, 78 N.D. 521, 529-30, 50 N.W.2d 235, 240 (1951)). “If there is no intent or ‘affirmative voluntary act’ by the alleged wrongdoer, there cannot be a claim for trespass.” Id.

[¶ 17] The City has not engaged in an affirmative voluntary act to enter the Knutsons’ land or to cause water to enter the Knutsons’ land. Because the City had authority to lay the water main in 1950, installing the water mains cannot support a trespass claim. The water main was installed without a system to directly monitor deterioration, but the record reflects that no maintenance or repair procedure will prevent water mains from breaking. Therefore, no- intentional act on the part of the City caused the water to enter the Knutsons’ property. Because the intent element of trespass is lacking, the trespass claim fails as a matter of law, and summary judgment is appropriate.

V

[¶ 18] The Knutsons argue the district court erred when it held our opinion in Olson v. City of Garrison, 539 N.W.2d 663 (N.D.1995), was dispositive and concluded the Knutsons’ negligence claim was barred by discretionary immunity. Section 32-12.1-03(3), N.D.C.C., provides, in part:

A political subdivision or a political subdivision employee may not be held liable under this chapter for any of the following claims:
d. The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion is abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.

Therefore, public entities cannot be sued in negligence for discretionary functions or duties. N.D.C.C. § 32-12.1-03(3)(d).

[¶ 19] In Olson, in which a water main broke and flooded the basement of a business, we held the City of Garrison’s operation and maintenance of its water mains was covered by discretionary immunity. 539 N.W.2d at 668. We adopted the discretionary immunity test applied by the United States Supreme Court in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to decide whether a governmental act was immune under the Federal Tort Claims Act: (1) “ ‘whether the action is a matter of choice for the acting ■ employee,’ ” and (2) “ ‘whether that judgment [or choice] is of the kind that the discretionary function exception was designed to shield.’ ” Olson, at 666, 667 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). Garrison considered several factors when maintaining its water mains, including “the historical performance of the water main, the cost of repairing versus replacing the water main, the ability of the City to participate in grants or federally aided projects, and the condition of overlying streets.” Id. at 667. We concluded the weighing of the factors by city officials involved a matter of judgment, and Garrison was motivated by economic and social considerations when it decided how to maintain its water mains. Id. at 667, 668. Therefore, discretionary immunity barred the Olsons’ claim that Garrison negligently maintained its water mains. Id. at 668.

[¶20] The Knutsons’ case is almost identical to Olson. The City is charged with operating and maintaining its water mains. As part of the water main maintenance plan, the City has developed a policy to help decide when it should replace a water main. Regarding day-today maintenance, the City presented undisputed evidence that no normal procedure can prevent water main breaks and leaks. Factors the City considers when deciding what mains to replace include breaks per city block, recent break history, age of the water main, and the type of main. Economic resources are also evaluated in the decision. The City’s maintenance program balances economic and social costs and benefits such as cost of replacement, street conditions, the public’s disruption, and the public’s cost to find the most appropriate time to replace mains. Therefore, the City exercises its judgment when deciding what mains to replace. As in Olson, this operation and maintenance is the kind of function that discretionary immunity is designed to shield from second-guessing. Discretionary immunity bars the Knutsons’ negligence claim, so summary judgment is appropriate.

VI

[¶ 21] The judgment of the district court is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and. MARY MUEHLEN MAKING, JJ., concur.

KAPSNER, Justice,

concurring in the result.

[¶ 23] I concur in the result reached by the majority opinion. I am troubled with the Court’s conclusion in ¶ 15 that a policy deciding when to make replacements of unlined cast iron pipes does not constitute a deliberate act. Such a policy was clearly made after considerable deliberation and was then acted upon. Damages caused when such a policy fails could subject a city to liability under a theory of inverse condemnation. See, e.g., California State Auto. Ass’n v. City of Palo Alto, 138 Cal.App.4th 474, 41 Cal.Rptr.3d 503, 509 (2006) (discussing Pacific Bell v. City of San Diego, 81 Cal.App.4th 596, 96 Cal.Rptr.2d 897 (2000) and concluding damage caused from sewage backup was recoverable under inverse condemnation theory despite deliberately conceived policy of sewer maintenance).

[¶ 24] Instead of concluding a maintenance policy is not a deliberate act, I would follow our past cases. As the majority opinion correctly points out, our cases require a showing that a municipality’s actions, in maintaining a public utility or improvement, reach a level of nuisance before a municipality is liable for damage to property under inverse condemnation. See majority opinion supra, at ¶ 11 (citing Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355 (N.D.1968); Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953)). Although nuisance may be a separate cause of action, a nuisance will also support a claim of inverse condemnation.

[¶ 25] The City of Fargo’s actions did not rise to the level of a nuisance. This claim was based upon a single instance of flooding. Therefore, I concur with the result but not the legal analysis of the majority opinion.

[¶ 26] Carol Ronning Kapsner


author: MARING, Justice.

text:
    2006 ND 100
    STATE of North Dakota, Plaintiff and Appellant v. Krystal HAIBECK, Defendant and Appellee.
    No. 20050367.
    Supreme Court of North Dakota.
    May 11, 2006.

      Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellant.
    Michael R. Hoffman, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] The State appeals from a trial court’s judgment dismissing an information charging Krystal Haibeck with four counts of possession of drugs and drug paraphernalia. The State argues the trial court erred in dismissing the charges after the State inadvertently destroyed physical evidence. We reverse and remand.

I

[¶ 2] Haibeck was charged with four counts of possession of drugs and drug paraphernalia following a July 5, 2003, traffic stop. In State v. Haibeck, 2004 ND 163, 685 N.W.2d 512, this Court reversed a trial court order granting Haibeck’s motion to suppress evidence and remanded. A more detailed description of the facts surrounding Haibeck’s arrest can be found in our previous opinion, but are largely irrelevant to the issue in this case. See id.

[¶ 3] On remand, during the final pretrial conference in chambers on the morning of the jury trial, the State informed the trial court and Haibeck’s counsel that the physical evidence the State had intended to present had been destroyed. That evidence consisted of a quantity of marijuana and methamphetamine and a razor blade and pipe, both alleged to contain drug residue. According to the State, the evidence had been destroyed inadvertently due to the age of the case. After announcing the evidence had been destroyed, the State said it was prepared to go forward with the case and would present a lab report and testimony from the arresting officer and the author of the lab report in support of its case. Haibeck’s counsel immediately orally moved for a judgment of acquittal. In support of the motion for judgment of acquittal, Haibeck’s counsel cited the right to confront, right of due process, fair trial, and generally constitutional grounds.

[¶ 4] After argument by counsel for both sides, but without briefing on the issue, the trial court said it was granting the motion and dismissing all four counts:

[B]ecause there’s not — as a matter of law, there simply is not going to be enough evidence to get the case to the jury, and it’s not going to be fair to Ms. Haibeck’s due process rights not to be able to fully confront the case against her ... she does have a right in court to have those items present.

The trial court then went into open court, called in the jury, and ordered dismissal of all four counts. The trial court stated that, under the Sixth Amendment’s Confrontation Clause, a person has a right to be confronted with all the evidence against them and that Haibeck would be deprived of her Sixth Amendment Confrontation Clause rights if the trial went forward.

[¶ 5] On appeal, the State argues the trial court erred by ordering the dismissal of the charges without any showing that the evidence had been destroyed in bad faith. Haibeck argues the trial court’s decision should be upheld in the interest of judicial economy and because the absence of the evidence would make a trial on the charges of possessing the destroyed evidence fundamentally unfair.

II

[¶ 6] Questions of law decided at a preliminary hearing are fully reviewable on appeal. State v. Perreault, 2002 ND 14, ¶ 6, 638 N.W.2d 541. The trial court dismissed the charges on the grounds that Haibeck’s confrontation rights would be violated by going forward. In doing so, the trial court erred as a matter of law. We have never applied a Sixth Amendment Confrontation Clause analysis to the State’s destruction of evidence. The United States Supreme Court has recently addressed the meaning, history, and purpose of the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court stated that: “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id. at 50, 124 S.Ct. 1354. The second purpose of the amendment was the framers’ intent not to allow: “statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 54, 124 S.Ct. 1354.

[¶ 7] Our Court set forth what evidence is required to implicate a due process violation in State v. Steffes, 500 N.W.2d 608 (N.D.1993) (quoting Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)).

“[Ujnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”

Id. at 613. This, as we recognized in Stejfes, is the federal constitutional test for evidence that is potentially useful as compared to evidence that is plainly exculpatory. Id. Haibeck admits that in her case there is no evidence of bad faith by the police and that therefore, under the United States Constitution, there was no violation of her due process rights. The trial court erred in concluding otherwise.

B

[¶ 8] Haibeck encourages us to affirm, however, based on dicta in Stejfes that leaves open the possibility that the North Dakota Constitution affords greater protection than the federal in this area. See Stejfes, 500 N.W.2d at 611 n. 3. In Stejfes, we said:

Relying upon state constitutional law, some states hold that even in situations where defendants cannot show bad faith on the part of the state in failing to preserve material evidence, defendants may nonetheless be entitled to an adverse-inference instruction, dismissal, or new trial if they can make a sufficient showing of substantial prejudice. These states take authority from Justice Stevens’s concurring opinion in Arizona v. Youngblood wherein he wrote: “there may well be cases in which the defendant is unable to prove that the State acted in bad, faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.”

Id. (quoting Youngblood, 488 U.S. at 61, 109 S.Ct. 333 (Stevens, J. concurring)). Haibeck admits that the evidence destroyed here was only potentially useful. Further, Haibeck did not raise the issue of the North Dakota Constitution at trial, nor were the protections afforded by the North Dakota Constitution the basis of the trial court’s decision. “[Ijssues not raised below, even constitutional issues, generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).” State v. Parisien, 2005 ND 152, ¶ 17, 703 N.W.2d 306.

[¶ 9] In addition, Haibeck only directs us to Stejfes and to Article I, Section 12 of the North Dakota Constitution to support her contention that our constitution affords greater protection than does the federal constitution in this area. Hai-beck does not address from where her contention arises that the North Dakota Constitution affords greater protection under these circumstances other than to simply cite Article I, Section 12. Haibeck points only to what other jurisdictions have done under their state constitutions. Our Court will not consider an argument that is not adequately articulated, supported, and briefed. State v. Holzer, 2003 ND 19, ¶ 15, 656 N.W.2d 686.

B

[¶ 10] Haibeck also encourages us to affirm on the basis of judicial economy. Haibeck cites to the trial court’s statement that, without the destroyed evidence “as a matter of law, there simply is not going to be enough evidence to get the case to the jury.” This was also error.

[¶ 11] After learning that the evidence had been destroyed, Haibeck moved for a judgment of acquittal. Under Rule 29(a), N.D.R.Crim.P., as it currently reads, a defendant may move for acquittal:

After the prosecution closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for judgment of acquittal at the close of the prosecution’s evidence, the defendant may offer evidence without having reserved the right to do so.

Rule 29(a) was amended effective March 1, 2006 in response to a revision of the Federal Rules of Criminal Procedure. N.D.R.Crim.P. 29(a), Explanatory Note. The revision did not change the substance of the rule but rather was intended to “make the rule more easily understood and to make style and terminology consistent throughout the rules.” Id. The prior version read:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or- complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right.

N.D.R.Crim.P. 29(a) (2005). Under either version, the result is the same and the trial court was in error to grant the motion before the State had the opportunity to present its case.

[¶ 12] Even were we to read Haibeck’s motion for acquittal as a pretrial motion under Rule 12(b), N.D.R.Crim.P., the trial court was in error. Under Rule 12(b)(2): “A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” However:

The purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered. The court is obliged to confine itself to the face of the information. Further, for purposes of the motion, all well-pleaded facts are taken to be true.

State v. Perreault, 2002 ND 14, ¶ 7, 638 N.W.2d 541 (quoting State v. Howe, 247 N.W.2d 647, 652 (N.D.1976)). “[W]e have cautioned against converting a Rule 12 motion into a summary trial that would deprive the fact-finder of its exclusive function of determining factual questions.” State v. Davenport, 536 N.W.2d 686, 689 (N.D.1995). “A pretrial motion to dismiss cannot be converted into a summary trial of evidence, thereby depriving the fact finder, whether jury or judge, of its exclusive function of determining factual questions which have a bearing on a defendant’s guilt or innocence.” State v. Hammond, 498 N.W.2d 126, 129 (N.D.1993). Here, the trial court went beyond the face of the information and therefore a dismissal ' under Rule 12(b), N.D.R.Crim.P., would also have been error.

Ill

[¶ 13] The trial court erred in dismissing the charges against Haibeek. We reverse and remand'for trial.

[¶ 14] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING EAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2006 ND 101
    Erin Kathleen LAUSEN, Plaintiff and Appellee v. Kary Jay HERTZ, Defendant and Appellant.
    No. 20050371.
    Supreme Court of North Dakota.
    May 11, 2006.
    Mark V. Larson (on brief), Larson Law Firm, P.C., Minot, N.D., for plaintiff and appellee.
    Rodney E. Pagel, Pagel Weikum Law Firm, Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Kary Jay Hertz appeals from an order denying his request for an evidentia-ry hearing on his motion for a change of custody of his minor child. We conclude Hertz was not entitled to an evidentiary hearing on his motion for change of custody, because the language in the original judgment authorized the custodial parent, Erin Kathleen Lausen, to remove the child from North Dakota. We affirm.

I

[¶ 2] Hertz and Lausen have never been married, but have a child together. In 2001, in the context of Lauseris action against Hertz for custody of the child and for support, the district court awarded both parties joint legal custody of the child, designated Lausen as primary caretaker of the child, awarded Hertz visitation, and ordered Hertz to pay Lausen child support. In a memorandum opinion, the district court said Hertz would be responsible for transportation costs for visitation “unless [Lausen] relocates out of the State of North Dakota.” A proposed judgment prepared by Lauseris counsel authorized Lausen to remove the child from North Dakota. Hertz objected to that language, but an October 8, 2001, judgment was entered, which provided that Lausen “may remove the child from the state of North Dakota.” Hertz again objected to that language, citing N.D.C.C. § 14-09-07 and claiming an issue about an out-of-state move had not been raised. The court reviewed Hertz’s objection, but did not change the language authorizing Lausen to remove the child from North Dakota. Hertz did not appeal that judgment. In October 2002, a second amended judgment was entered, which incorporated a stipulation delineating the parties’ “custody and visitation rights and duties,” but did not alter the language authorizing Lausen to remove the child from North Dakota. There was no appeal from that judgment.

[¶ 3] In June 2005, Hertz moved for a change of custody, asserting Lausen intended to relocate with the child to Michigan. Hertz submitted an affidavit in support of his motion in which he said Lauseris out-of-state move would be devastating to his relationship with the child and would not be in the child’s best interests. The district court cited the language from the 2001 judgment authorizing Lausen to remove the child from North Dakota and decided Hertz had failed to establish a prima, facie case for change of custody under N.D.C.C. § 14-09-06.6. The court concluded an eviden-tiary hearing was not warranted and denied Hertz’s motion for change of custody.

II

[¶ 4] Hertz argues he established a prima facie case for an evidentiary hearing on his motion for change of custody under N.D.C.C. § 14-09-06.6(4), because relocation to Michigan is prima facie evidence for an evidentiary hearing. He claims the move is a material change in circumstances which meets his burden of showing a prima facie case for modification under N.D.C.C. § 14-09-06.6(4). Lausen responds Hertz’s motion for change of custody, which was based solely on Lausen’s relocation to Michigan, failed to recognize that permission to move from North Dakota had been granted in the 2001 judgment and repeated in the 2002 amended judgment. She argues Hertz presented no new facts for the court to consider.

[¶ 5] Under N.D.C.C. § 14-09-06.6(4), a party seeking a modification of custody must serve and file moving papers and the court will consider the motion on briefs without an evidentiary hearing and deny the motion unless the court finds the moving party has established a prima facie case justifying modification. A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law; rather, a prima facie case only requires facts which, if proved at an evidentiary hearing, would support a custody determination that could be affirmed on appeal. Lagro v. Lagro, 2005 ND 151, ¶¶ 17, 28, 703 N.W.2d 322. A prima facie case is a bare minimum and is merely enough evidence to allow the trier of fact to infer the fact at issue and rale in the party’s favor. Id.

[¶ 6] As relevant to Hertz’s motion for change of custody, N.D.C.C. § 14-09-06.6(6) provides:

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

[¶ 7] In Lagro, 2005 ND 151, 703 N.W.2d 322, this Court, with four justices participating, recently considered the standard of review for the denial of an eviden-tiary hearing on a motion for a change of custody under N.D.C.C. § 14-09-06.6. Two justices applied an abuse-of-discretion standard for review of the denial of an evidentiary hearing, concluding the movant had not established a prima facie case. Id. at ¶¶ 14, 25. One justice concurred in the result. Id. at ¶ 25. A dissent said it was improper to change what had previously been a question of law into a matter of discretion. Id. at ¶¶ 34-35 (Kapsner, J., dissenting).

[¶ 8] Under N.D.C.C. § 14-09-06.6(6) and either standard of review, we conclude Lausen’s contemplated move out-of-state, as recognized by the unappealed initial judgment and amended judgment, was not a material change in circumstances and was a fact that existed and was known to the court at the time of the prior order. Hertz’s reliance on Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924 and Hanson v. Hanson, 1997 ND 151, ¶¶ 10-11, 567 N.W.2d 216, for the proposition that an out-of-state move is a material change in circumstances is misplaced. Those cases do not involve language similar to the provision in the 2001 judgment in this case.

[¶ 9] Hertz nevertheless claims the language in the 2001 judgment authorizing Lausen to remove the child from North Dakota is not controlling, because N.D.C.C. § 14-09-07 requires her, at the time of the contemplated relocation, to obtain the court’s permission to relocate from North Dakota. Section 14-09-07, N.D.C.C., provides that a custodial parent may not relocate to another state with the child “except upon order of the court or with the consent of the noncustodial parent.” Hertz effectively claims the language in the 2001 judgment is not controlling and Lausen must obtain court permission at the time of her move before relocating out-of-state.

[¶ 10] Although res judicata has limited application in child custody cases, see Wetch v. Wetch, 539 N.W.2d 309, 312 (N.D.1995), this Court has said an unappealed judgment may be res judicata as to an issue decided in the original judgment. Schnell v. Schnell, 252 N.W.2d 14, 19 (N.D.1977) (unappealed original judgment included provision for child support after child reached majority and was attending college and that provision was res judicata). Here, there is a court order authorizing Lausen to relocate to another state under N.D.C.C. § 14-09-07. Permission to relocate was sought by Lausen, opposed by Hertz and granted by the court. Neither the original judgment nor the amended judgment reiterating that permission were appealed by Hertz. The authorization is not a fact that has arisen since the prior order or which was unknown to the court at the time of the prior order within the meaning of N.D.C.C. § 14-09-06.6(6). Hertz’s motion for change of custody was based solely on Lausen’s contemplated move out-of-state, which was raised and specifically decided in the initial proceeding. Hertz has cited no other new facts to justify a change of custody, and within the context of his motion for change of custody, the original unappealed judgment is res judicata and is a court order authorizing Lausen to relocate to another state.

[¶ 11] Under the plain language of N.D.C.C. § 14-09-06.6(4) and the provision in the unappealed 2001 judgment, we conclude Hertz has not established a prima facie case justifying modification of custody either as a matter of law or under the abuse-of-discretion standard.

Ill

[¶ 12] We affirm the order.

[¶ 13] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

I concur in the result. DALE V. SANDSTROM, J.