text:
    2000 ND 124
    Thomas DOUVILLE, remainder interest, and Nettie Douville, life estate; Estate of Howard Hughes and Doreen Hughes, c/o H. Frank Hughes, P.R.; Jeffrey Hughes; Stanley Hughes and Lois Hughes; Albert D. Johnson and Vernon L. Johnson; Gordon E. Kollack and Roy Kollack; Kathleen Kollack; Roy Morris; William J. Newell and Donna C. Newell; Ralph Stegman and Jacqueline Stegman; Perry A. Svenson and Susan J. Svenson; William Symington and Lillian Symington, individually and as trustee of Garnet E. Symington Trust; Vernon Symington and Phyllis Symington; Walter Symington and Sharon Symington; Randall Wagner and Marion Wagner; Irene Weiss; and Larry R. Trenbeath, Trustee of the Allen Dale Trenbeath Trust, Petitioners and Appellants, v. PEMBINA COUNTY WATER RESOURCE DISTRICT, Respondent and Appellee, and Tim Wilwand, Richard Margerum, Larry Wilwant, Cameron Wilwand, and Bert Warner, Intervenors and Appellees.
    No. 990307.
    Supreme Court of North Dakota.
    June 14, 2000.

      Duane R. Breitling, Ohnstad Twichell, Fargo, for petitioners and appellants.
    Neil W. Fleming, Fleming & DuBois, Cavalier, for respondent and appellee.
    Kermit E. Bye (argued) and Tami L. Norgard (appearance), Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for intervenors and appellees.
    Julie A. Krenz (on brief), Attorney General’s Office, Bismarck, for amicus curiae State of North Dakota.
   VANDE WALLE, Chief Justice.

[¶ 1] Thomas Douville and numerous other landowners (“the landowners”) appealed from a judgment affirming the decision of the Pembina County Water Resource District (“the District”) ordering removal of dikes on their land. We affirm.

I

[¶ 2] This case involves a long-standing dispute over dikes built along the Pembina River more than twenty-five years ago. Between 1969 and 1974, several landowners in the Neche area built dikes on their land to control flooding from the Pembina River. The landowners did not seek nor obtain permits or approval to construct the dikes. In years of high run-off, the Neche-area dikes have caused flooding of downstream land.

[¶ 3] In 1996, complaints were filed with the District alleging the landowners’ dikes were illegal and should be removed. After lengthy hearings and presentation of extensive documentary evidence, the District determined the dikes were illegal and ordered them removed. The landowners appealed to the district court, which affirmed the decision of the District.

[¶ 4] In the appeal to this Court, the landowners raise two issues:

Did the Pembina County Water Resource District Board of Managers misinterpret the laws relating to the removal of unauthorized dikes, and thus arbitrarily, capriciously, and unreasonably order the removal of dikes on land owned by the appellants?
Did the Pembina County Water Resource District Board of Managers misapply the law of prescriptive easement so that its order for the removal of dikes on land owned by the appellants was arbitrary, capricious, and unreasonable?

II

[¶ 5] We recently outlined our standard of review in appeals from a decision of a water resource district:

In an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court’s and is very limited. Our function is to independently determine the propriety of the decision, without according any special deference to the district court’s decision, and unless the Board acted arbitrarily, capriciously or unreasonably, or there is not substantial evidence to support the decision, it must be affirmed. A decision is not arbitrary, capricious or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.

Graber v. Logan County Water Resource Board, 1999 ND 168, ¶ 7, 598 N.W.2d 846 (citations omitted). Interpretation of a statute is a question of law, which is fully reviewable by this Court. Wanstrom v. North Dakota Workers Compensation Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860.

Ill

[¶ 6] The District has the authority under N.D.C.C. § 61-16.1-53 to order removal of unauthorized dikes:

Removal of a noncomplying dike or dam — Notice and hearing — Appeal—Injunction. Upon receipt of a complaint of unauthorized construction of a dike, dam, or other device for water conservation, flood control, regulation, watershed improvement, or storage of water, the water resource board shall promptly investigate and make a determination thereon. If the board determines that a dam or other device, capable of retaining, obstructing, or diverting more than twelve and one-half acre-feet [15418.52 cubic meters] of water, has been established or constructed by a landowner or tenant contrary to the provisions of this title or any rules promulgated by the board, the board shall notify the landowner by registered or certified mail at the landowner’s post-office address of record.... The notice must specify the nature and extent of the noncompliance and must state that if the dike, dam, or other device is not removed within such period as the board shall determine, but not less than thirty days, the board shall cause the removal of the dike, dam, or other device and assess the cost thereof, or such portion as the board shall determine, against the property of the landowner responsible.

[¶ 7] The parties agree the relevant statutory provision governing the legality of these dikes is N.D.C.C. § 61-16-15 as it existed at the time the dikes were constructed. At all relevant times that statute provided, in part:

No dams or other ■ devices for water conservation, flood control regulation, watershed improvement or storage of water which are capable of retaining more than twelve and one-half acre-feet of water shall be constructed within any water management district exceptan accordance with the provisions of this chapter.

The statute required application to, and approval by, the Water Resource Board and the State Water Commission before any such water control device could be built. N.D.C.C. § 61-16-15.

[¶ 8] The landowners concede they never sought a permit or other approval for the dikes in question. They argue, however, that dikes were not covered by N.D.C.C. § 61-16-15 and therefore no such authorization was required. Thus, they assert, the dikes were not illegal when constructed and cannot be ordered removed under N.D.C.C. § 61-16.1-53.

[¶ 9] The landowners specifically contend that, because N.D.C.C. § 61 — 16— 15 mentions dams but not dikes, the legislature did not intend that dikes be covered by the statutory provision. Resolution of this issue requires interpretation of the statutory language. The primary purpose of statutory construction is to ascertain the intent of the legislature. Ash v. Traynor, 2000 ND 75, ¶ 6, 609 N.W.2d 96; Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Ash, at ¶ 6; Berg, at ¶ 24. When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05; Lawrence v. North Dakota Workers Compensation Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254.

[¶ 10] We believe N.D.C.C. § 61-16-15 is clear and unambiguous on its face and, giving the words of the statute their plain, ordinary, and commonly understood meaning, demonstrates the legislature’s intent that dikes are included in the statute’s provisions. The statute does not apply only to dams; it also applies to “other devices for ... flood control regulation.” A “dike” is defined as “an embankment or dam made to prevent flooding by the sea or by a river,” Webster’s New World Dictionary 395 (2d Coll, ed.1982), or “a bank usu. of earth constructed to control or confine water.” Webster’s Third New International Dictionary 632 (1971). There is no dispute the dikes in this case were constructed for the express purpose of controlling flooding of the landowners’ property by the Pembina River. A dike is clearly a “device for ... flood control regulation.”

[¶ 11] The landowners argue the legislative history of a 1979 amendment to N.D.C.C. § 61-16-15 indicates that dikes were not included in the pre-1979 version of the statute. However, when the letter of the law is clear and free of ambiguity, we need look no further than the statutory language, Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585, and “it is neither necessary nor appropriate to delve into legislative history to determine legislative intent.” Born v. Mayers, 514 N.W.2d 687, 689 (N.D.1994).

[¶ 12] If we were to consider the history of the 1979 amendment, it clearly indicates that dikes were included in the pre-1979 version of the statute. The 1979 amendment specifically added the word “dike” to the types of devices regulated under the statute. See 1979 N.D. Sess. Laws ch. 642, § 1. The landowners argue that, because it is presumed the legislature does not perform idle acts, the addition of the word “dike” must mean dikes were not included prior to the amendment.

[¶ 13] Although generally it is presumed a legislative enactment is intended to change existing law, when analyzing an amendment we must consider whether the purpose was to clarify or alter the law. Scott v. North Dakota Workers Compensation Bureau, 1998 ND 221, ¶ 15, 587 N.W.2d 153; Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691, 693 (N.D.1994). In this case, the legislative history demonstrates the word “dike” was added to merely clarify the law, and was not an indication dikes were not previously covered by the statute.

[¶ 14] The 1979 amendment was drafted by the State Water Commission. In a written summary of the bill presented by Michael Dwyer, counsel for the Water Commission, the purpose of the amendment was explained:

The word “dike” was inserted in line 12 on page 1 for clarification purposes only. Many individuals, on their first reading of Section 61-16-15, do not understand that dikes are included in the phrase “other devices for water conservation, flood control regulation, watershed improvement or storage of water”. An express reference to dikes should prevent future confusion concerning the applicability of Section 61-16-15 to dikes.

[¶ 15] It is hard to imagine a clearer expression that the 1979 amendment was intended to merely clarify existing law. The landowners argue, however, that in his oral testimony before the House Natural Resources Committee Dwyer, responding to a question, indicated dikes which had been previously erected without approval could not be removed. They contend this testimony conflicts with the written explanation of the bill. A careful reading of Dwyer’s testimony, however, shows he was merely explaining that the 1979 amendment did not give the State Engineer administrative authority to remove dikes, as a bill proposed in the 1977 Legislative Assembly had.

[¶ 16] The landowners also argue dikes are not within the statute because N.D.C.C. § 61-16-15 applied only to devices or structures capable of “retaining” water. The landowners contend dikes merely divert water, and do not retain water, and thus a dike is not capable of “retaining” water as required by the statute.

[¶ 17] The landowners’ suggested interpretation of N.D.C.C. § 61-16-15 is contrary to the plain language of the statute. “Retain” is defined as: “to hold secure or intact (as in a fixed place or condition),” Webster’s Third New International Dictionary 1938 (1971); “to keep in a fixed state or condition,” Webster’s New World Dictionary 1213 (2d Coll, ed.1982); “To keep or hold in a particular place, condition, or position,” The American Heritage Dictionary of the English Language 1109 (1973). The very purpose of a dike is to keep or hold water in a particular place or position, i.e., to “retain” it within its banks or channel. Applying the plain, ordinary, and commonly understood meaning of the statutory language, a dike is capable of “retaining” water.

[¶ 18] We conclude it was the legislature’s clearly expressed intent that the provisions of N.D.C.C. § 61-16-15 apply to dikes. Accordingly, the District did not err in determining these dikes were unauthorized and subject to removal because the dikes were constructed without proper authorization under N.D.C.C. § 61-16-15.

IV

[¶ 19] The landowners assert the District erred in refusing to hold they had acquired a prescriptive easement to flood downstream land, and therefore the dikes should not be removed.

[¶ 20] In Nagel v. Emmons County North Dakota Water Resource District, 474 N.W.2d 46, 48-50 (N.D.1991), we recognized a landowner could acquire a flow-age easement by prescription. See also Graber v. Logan County Water Resource Board, 1999 ND 168, ¶ 17, 598 N.W.2d 846. What the landowners seek in this case, however, goes beyond a mere flowage easement upon the land of downstream owners. They assert the right to keep in place dikes which were erected in violation of state law.

[¶ 21] The question presented in this administrative proceeding was whether the dikes were authorized under N.D.C.C. chs. 61-16 and 61-16.1. The District is authorized to order removal of any dike which “has been established or constructed ... contrary to the provisions of this title or any rules promulgated by the board,” irrespective of any private right to flood downstream land. N.D.C.C. § 61-16.1-53. This issue implicates the police powers of the state, and is wholly separate from the competing private rights of upstream and downstream landowners.

[¶ 22] Whether or not the landowners had acquired a prescriptive right vis-a-vis the downstream landowners, they cannot acquire a prescriptive right to prevent the State from exercising its authority to regulate and control the use of public waters for the benefit of the public. See People v. Shirokow, 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, 866 (1980); 4 Herbert T. Tiffany, Law of Real Property § 1192 (3d ed.1975); cf. Mountrail County v. Hoffman, 2000 ND 49, ¶ 8, 607 N.W.2d 901 (no lapse of time can legalize a public nuisance amounting to an obstruction of public right); City of Benton City v. Adrian, 50 Wash.App. 330, 748 P.2d 679, 683 (1988) (prescriptive right may not be acquired to a public nuisance, including obstructing or encroaching public streets and public ways, or threatening water supply). As the court explained in Shirokow, at 866:

What is being challenged is the state’s governmental interest in regulating the use of public waters rather than any proprietary interest in the water claimed by defendant. The stipulated facts do not reveal that the state was using the water; indeed,- defendant admits the state, if successful in obtaining the injunction, will not make use of the water. Thus it is undisputed that the state’s interest here at stake is nonproprietary.

[¶ 23] The legislature has expressly granted the District the authority to regulate water management, including the construction of dikes, to promote the health, safety, and welfare of the public:

Legislative intent and purpose. The legislative assembly of North Dakota recognizes and declares that the general welfare and the protection of the lives, health, property, and the rights of all people of this state require that the management, conservation, protection, development, and control of waters in this state, navigable or nonnavigable, surface or subsurface, the control of floods, the prevention of damage to property therefrom, involve and necessitate the exercise of the sovereign powers of this state and are affected with and concern a public purpose. To realize these objectives it is hereby declared to be the policy of the state to provide for the management, conservation, protection, development, and control of water resources and for the prevention of flood damage in the watersheds of this state and thereby to protect and promote the health, safety, and general welfare of the people of this state.
The legislative assembly further recognizes the significant achievements that have been made in the management, conservation, protection, development, and control of our water and related land resources, and declares that the most efficient and economical method of accelerating these achievements is to establish water resource districts encompassing all of the geographic area of the state, and emphasizing hydrologic boundaries.

N.D.C.C. § 61-16.1-01. The landowners cannot defeat the State’s authority to protect the health, safety, and welfare of the public by claiming a prescriptive right to maintain dikes which were constructed in violation of state law.

[¶ 24] We conclude the District did not misapply the law of prescriptive easements when it ordered removal of the dikes.

V

[¶ 25] The judgment affirming the District’s decision ordering removal of the dikes is affirmed.

[¶ 26] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., and DONALD L. JORGENSEN, D.J., concur.

[¶ 27] The Honorable DONALD L. JORGENSEN, D. J., sitting in place of KAPSNER, J., disqualified.

      . This statute was amended in 1999. See 1999 N.D. Sess. Laws ch. 540, § 2.

      . The current provision governing construction of water control devices is codified at N.D.C.C. § 61-16.1-38.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2000 ND 125
    In the Matter of DISCIPLINARY ACTION AGAINST Sylvian Ross ROYBAL, 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. Sylvian Ross Roybal, Respondent.
    No. 20000085.
    Supreme Court of North Dakota.
    June 19, 2000.
   DISBARMENT ORDERED.

PER CURIAM.

[¶ 1] Sylvian Ross Roybal was disbarred in the state of Colorado on December 17, 1997. Under Rule 4.4, N.D.R. Lawyer Discipl., governing reciprocal discipline, a certified copy of the disbarment was filed with the Disciplinary Board of the Supreme Court on January 13, 1998. Notice and Order pursuant to Rule 4.4(B), N.D.R. Lawyer Discipl., was filed January 20, 1998. Service of the Notice and Order by publication was complete on March 31, 1999. Mr. Roybal did not respond.

[¶ 2] This matter was referred to a Hearing Body of the Disciplinary Board and on September 22, 1999, the Hearing Body filed its Report recommending the disbarment of Mr. Roybal, the identical discipline as that imposed in Colorado. On November 12, 1999, the Hearing Body Report was served on Mr. Roybal by mail at his last known address. Mr. Roybal’s mail was returned, unopened, and marked “ATTEMPTED NOT KNOWN.”

[¶ 3] The Disciplinary Board considered the matter at its regularly scheduled meeting on March 20, 2000, and filed its Report on March 27, 2000, adopting the Report of the Hearing Body. The Report of the Disciplinary Board was served on Mr. Roybal by mail at his last known address. Again, Mr. Roybal’s mail was returned, unopened, and marked “ATTEMPTED NOT KNOWN.”

[¶ 4] The Report of the Disciplinary Board is submitted to the Court under Rule 4.4(D), N.D.R. Lawyer Discipl. No briefs have been filed in this matter. The Court considered the matter, and

[¶ 5] ORDERED, the Report of the Disciplinary Board is ADOPTED.

[¶ 6] IT IS FURTHER ORDERED, Mr. Roybal receive the identical discipline as imposed by the state of Colorado, disbarment, effective immediately.

[¶ 7] Dated at Bismarck, North Dakota, this June 7, 2000.

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


text:
    2000 ND 126
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Jon C. STEVENSON, 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. Jon C. Stevenson, Respondent.
    No. 20000089.
    Supreme Court of North Dakota.
    June 19, 2000.
   SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] Jon C. Stevenson was suspended from the practice of law in the state of Colorado for a period of 60 days. Under Rule 4.4, N.D.R. Lawyer Discipl., governing reciprocal discipline, a certified copy of the suspension was filed with the Disciplinary Board of the Supreme Court on May 7, 1999. Notice and Order under Rule 4.4(B)(2), N.D.R. Lawyer Discipl., was personally served on Mr. Stevenson on June 23, 1999. Mr. Stevenson did not respond.

[¶ 2] The Disciplinary Board considered this matter at its regularly scheduled meeting on March 20, 2000, and on March 27, 2000, filed its Report recommending Mr. Stevenson receive the same discipline, 60 days suspension, as imposed by the state of Colorado. The Disciplinary Board further recommended that Mr. Stevenson be required to petition for reinstatement under Rule 4.5, N.D.R. Lawyer Discipl. The Report of the Disciplinary Board is submitted to the Court under Rule 4.4(D), N.D.R. Lawyer Discipl. No briefs have been filed in this matter. The Court considered the matter, and

[¶ 3] ORDERED, the Report of the Disciplinary Board is ADOPTED.

[¶ 4] IT IS FURTHER ORDERED, Mr. Stevenson be immediately suspended from the practice of law for 60 days upon his application for reinstatement under Rule 4.5, N.D.R. Lawyer Discipl.

[¶ 5] Dated.at Bismarck, North Dakota, this June 7, 2000.

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


text:
    2000 ND 127
    In the Matter of the Application for REINSTATEMENT OF Bruce R. MONTGOMERY. Bruce R. Montgomery, Petitioner, v. Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent.
    No. 990278.
    Supreme Court of North Dakota.
    June 23, 2000.

      Carl 0. Flagstad, Minot, N.D., for petitioner.
    Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for respondent.
   PER CURIAM.

[¶ 1] Bruce Montgomery has petitioned for reinstatement to the bar. We adopt the recommendation of the Disciplinary Board and deny Montgomery’s petition.

I

[¶ 2] Montgomery was disbarred in 1988 for misconduct occurring while he was a partner in a Minot law firm. See In re Montgomery, 418 N.W.2d 789 (N.D.1988). Montgomery consented to disbarment based upon misapplication of funds from clients Cynthia Bossert and Leroy and Lola Sondrol. Additional disciplinary complaints filed against Montgomery in 1988 and 1994 were dismissed without prejudice because Montgomery had already been disbarred.

[¶ 3] In 1995 Montgomery sought reinstatement to the bar. A hearing was held on September 29, 1995, before a hearing panel appointed by the Disciplinary Board. The hearing panel issued findings and recommended Montgomery be reinstated. The Board adopted the hearing panel’s recommendation and submitted its report to this Court. Concluding the hearing panel and the Board had failed to properly consider Montgomery’s pre-disbarment misconduct, we remanded for further proceedings. In re Montgomery, 1997 ND 148, 566 N.W.2d 426.

[¶ 4] On remand, a new hearing panel was appointed, and a hearing was held on December 11, 1998. The hearing panel issued findings and recommended Montgomery’s petition for reinstatement be denied. The Board adopted the findings and recommendation of the hearing panel and submitted its report to this Court. We have jurisdiction under N.D. Const, art. VI, § 3, and N.D.R. Lawyer Discipl. 4.5.

II

[¶ 5] We set out the standard for review of a petition for reinstatement in our prior opinion in this matter:

We review disciplinary proceedings against attorneys de novo on the record under a clear and convincing standard of proof. We accord due weight to the findings, conclusions, and recommendations of the hearing panel as adopted by the Board. Each disciplinary ease must be judged on its own facts and merits.
A disbarred attorney petitioning for reinstatement bears a heavy burden of proof:
“The petitioner has the burden of establishing the averments of his application for readmission by clear and convincing evidence. The proof must be of a satisfactory character and of sufficient weight to overcome the former adverse judgment as to the petitioner’s character.”
Application of Christianson, 215 N.W.2d 920, 923 (N.D.1974); see also Rule 4.5(F), N.D.R.L.D.

Montgomery, 1997 ND 148, ¶¶ 5-6, 566 N.W.2d 426 (citations omitted).

III

[¶ 6] Montgomery argues the Board and the hearing panel exceeded the scope of our remand. Montgomery contends our prior opinion limited the remand only to give disciplinary counsel the opportunity to produce evidence from new “victims or family members” of pre-disbarment misconduct. He argues the hearing panel and the Board erred in considering on remand evidence relating to the Bossert and Sondrol matters for which he was originally disbarred. Montgomery concludes, because the first hearing panel recommended reinstatement and no evidence relating to new victims was produced on remand, disciplinary counsel has failed to rebut Montgomery’s evidence of rehabilitation as established at the first hearing.

[¶ 7] Montgomery has misinterpreted our prior opinion in this matter. The first hearing panel had construed N.D.R. Lawyer Discipl. 4.5(F)(7) as prohibiting consideration of pre-disbarment misconduct when determining rehabilitation and reinstatement. We did not limit the remand to consideration only of new, additional allegations of misconduct, Rather, our opinion clearly indicated the hearing panel and Board had misinterpreted N.D.R. Lawyer Discipl. 4.5(F)(7) and had failed to give proper consideration to evidence of Montgomery’s pre-disbarment conduct, including the conduct for which he was disbarred:

The hearing panel and the Board have misconstrued Rule 4.5(F), N.D.R.L.D., and have ignored our precedent regarding the proper scope of inquiry on a petition for reinstatement of a disbarred attorney. The language “Notwithstanding the conduct for which the petitioner was disciplined” in Rule 4.5(F) does not mean pre-disbarment conduct is irrelevant to the issue of reinstatement. Rather, it requires the petitioner to prove by clear and convincing evidence he currently has the requisite honesty and integrity to practice law, in spite of the misconduct committed in the past. The rule envisions a balancing of the evidence of the petitioner’s current good character with the seriousness of the prior misconduct.
To fully- protect the public, all evidence of past conduct of the disbarred attorney should be considered when determining whether the attorney has the requisite honesty and integrity to be reinstated to the bar. Evidence of the misconduct leading to the disbarment, and other pre-disbarment misconduct, will have a great bearing on that determination. The more culpable the disbarred attorney’s prior misconduct, the greater the burden upon the attorney to prove worthiness for reinstatement.

Montgomery, 1997 ND 148, ¶¶ 10, 13, 566 N.W.2d 426.

[¶ 8] The remand was not limited to new evidence from new victims, but directed the hearing panel and the Board to properly consider all evidence of pre-disbarment misconduct. We conclude the hearing panel and the Board did not exceed the proper scope of the remand.

IV

[¶ 9] Montgomery argues he has met his burden of proving rehabilitation and should be reinstated to the practice of law upon successful completion of the bar exam.

[¶ 10] Much of Montgomery’s argument is depen<3,ent upon his assertion that the hearing panel and the Board should have limited the remand to evidence from new victims, should have ignored the testimony of Cynthia Bossert, and should have only considered evidence of his post-disbarment conduct. A proper reading of our prior opinion disposes of those contentions.

[¶ 11] A disbarred attorney applying for reinstatement bears the burden of proving by clear and convincing evidence he currently has the requisite honesty and integrity to practice law. Montgomery, 1997 ND 148, ¶ 10, 566 N.W.2d 426; N.D.R. Lawyer Discipl. 3.5(C), 3.5(D), 4.5(F). In determining whether the attorney has adequately proven rehabilitation, we must balance evidence of his qurrent good character with the seriousness of the prior misconduct. Montgomery, at ¶ 10.

[¶ 12] As to the seriousness of his prior misconduct, the record demonstrates Montgomery misappropriated funds from clients and lied to the clients, the opposing counsel, and disciplinary authorities about his use of the funds. The amount of funds involved was substantial — $175,000 in the Bossert matter and $7,000 in the Sondrol matter. We have repeatedly said a lawyer’s conversion of client funds is impossible to condone and is one of the least excusable acts of misconduct for which a lawyer can be disciplined. See, e.g., In re Nassif, 547 N.W.2d 541, 544 (N.D.1996); In re Rau, 533 N.W.2d 691, 695 (N.D.1995); In re Dosch, 527 N.W.2d 270, 273 (N.D.1995).

[¶ 13] As to his current character, the record reflects that Montgomery has engaged in good works since his disbarment. The record also reflects continuing problems and cause for concern. In In re McKinnon, 264 N.W.2d 448, 449-50 (N.D.1978), this Court recognized other appropriate factors to consider when a disbarred attorney applies for reinstatement, including “[e]vidence of unimpeachable character,” “[e]vidence of lack of malice and ill feeling toward those involved in bringing the disciplinary proceedings,” and “[r]esti-tution of funds.”

[¶ 14] Montgomery has not acknowledged the seriousness of his past misconduct. In determining whether a disbarred attorney has demonstrated the requisite honesty and integrity to practice law, we must consider whether he recognizes the wrongfulness and seriousness of the conduct for which he was disbarred. N.D.R. Lawyer Discipl. 4.5(F)(5). Montgomery testified he did not believe he had injured or taken advantage of people when he was in practice, and he felt it was possible, in light of changes to the disciplinary rules and later cases where attorneys had avoided disbarment after converting client funds, that he would not be disbarred if his conduct in the Bossert and Sondrol matters occurred today. Montgomery’s own character witnesses testified he led them to believe he had been disbarred because of acts of “omission rather than commission,” “guilt by association,” or a “vendetta” by persons in the disciplinary system. The record demonstrates Montgomery has yet to fully acknowledge the wrongfulness and seriousness of, or take full responsibility for, his misconduct.

[¶ 15] Montgomery still has not made full restitution to his clients, twelve years after his disbarment.

[¶ 16] Montgomery seeks to blame the disciplinary system for his problems. At the first hearing, Montgomery complained he had been “vilified by the disciplinary counsel constantly for the past 8 years, 10 years, 12 years.” The record in this case, including the testimony of his own character witnesses, further demonstrates Montgomery continues to blame his disciplinary problems upon animosity from persons within the disciplinary system.

[¶ 17] Montgomery was not truthful in the reinstatement process. In the first hearing he misstated his employment history by failing to disclose a past employer — Charles Dahl — with whom Montgomery had disputes. In a deposition, shortly before the second hearing, the employer testified as to the employment and to Montgomery’s threats when the employment ended. At the second hearing, Montgomery offered a clarification: “The fact of the matter is, I probably worked with two or three other individuals who possibly categorized me as an employee for some of their business records. One of those would be Charles Dahl, who had a placement firm.... ” But Montgomery himself had clearly considered himself an employee. The record establishes that he filed for unemployment benefits when the relationship with Dahl ended. His claim was denied, not because he was not an employee, but because he had voluntarily left the employment.

[¶ 18] Upon review of the record, and giving due weight to the findings, conclusions, and recommendations of the hearing panel as adopted by the Board, we conclude Montgomery has failed to carry the heavy burden placed upon him.

V

[¶ 19] Montgomery complains our interpretation of N.D.R. Lawyer Discipl. 4.5(F)(7), allowing consideration of the conduct for which he was disbarred, creates a standard for reinstatement that is impossible to meet. In assessing a petition for reinstatement, our primary concern is not the difficulty faced by the disbarred attorney, but the protection of the public. Montgomery, 1997 ND 148, ¶ 12, 566 N.W.2d 426; McKinnon, 264 N.W.2d at 452. Montgomery is not applying as a new candidate for admission to the bar; having once been disbarred, he must establish sufficient proof of good character to outweigh the evidence of his former misconduct. Montgomery, at ¶ 11; In re Christianson, 202 N.W.2d 756, 759 (N.D.1972). Montgomery has been once entrusted with the privilege of practicing law, and he abused that privilege and caused substantial harm to his clients and the public.

[¶ 20] A disbarred attorney seeking reinstatement does not start with a clean slate, but carries the baggage of his prior misconduct with him. The standards for reinstatement are intentionally set very high, in order to ensure the public is protected. Once disbarred, an attorney will be -reinstated only when he can establish by clear and convincing evidence that, in spite of his prior misconduct, he is now worthy of the public trust inherent in the office of licensed attorney. Montgomery has failed to meet that standard.

[¶ 21] We adopt the recommendation of the Board. The petition for reinstatement is denied. Montgomery is ordered to pay the costs of these proceedings in the amount of $7,032.63-.

[¶ 22] GERALD W. VANDER WALLE, C.J., DALE Y. SANDSTROM, CAROL RONNING KAPSNER, MARY .. MUEHLEN MARING, JJ., RALPH R. ERICKSON, D.J., concur.

[¶ 23] RALPH R. ERICKSON, D.J., sitting in'place of NEUMANN, J., disqualified.

      . Montgomery's partners, William Teevens and Kent Johnson, also have disciplinary histories culminating in disbarment. See In re Teevens, 499 N.W.2d 887 (N.D.1993); In re Johnson, 481 N.W.2d 225 (N.D.1992); In re Johnson, 472 N.W.2d 914 (N.D.1991); In re Johnson, 418 N.W.2d 790 (N.D.1988); In re Teevens, 418 N.W.2d 789 (N.D.1988).


author: NEUMANN, Justice.

text:
    2000 ND 133
    Iola RUSCHEINSKY, Director, Grant County Social Service Board, as assignee for Joely Will, f/k/a Joely Hauck, and Joely Will, f/k/a Joely Hauck, Plaintiffs and Appellants, v. Timothy L. ULRICH, Defendant and Appellee.
    No. 990388.
    Supreme Court of North Dakota.
    June 29, 2000.

      Lloyd C. Suhr, Special Assistant State’s Attorney, Child Support Enforcement, Bismarck, N.D., for plaintiffs and appellants.
    Timothy Ulrich, pro se, Elgin, N.D., no appearance.
   NEUMANN, Justice.

[¶ 1] Iola Ruscheinsky, Grant County Social Services Board Director, as assign-ee for Joely Will, formerly known as Joely Hauck, and Joely Will, formerly known as Joely Hauck (“Social Services”) appeal from the trial court’s judgment finding Timothy Ulrich’s child support arrears totaled $733.10. We reverse and remand.

[¶ 2] On August 1, 1983, the trial court entered a default paternity judgment against Ulrich. The judgment awarded Social Services $1,502.10 for recovery of public assistance expended for the child and ordered Ulrich to pay a $150 per month child support obligation beginning August 10, 1983. On July 19, 1993, Social Services renewed the 1983 judgment for public assistance with a remaining balance of $883.10, but did not enter or renew any other judgments.

[¶ 3] On August 27, 1998, and October 4, 1999, the trial court held order to show cause hearings because Ulrich failed to pay his child support arrearage. Social Services introduced a certified copy of the State Disbursement Unit ledger (“SDU ledger”) showing a $4,733.10 child support arrearage. The trial court found the total arrearage was $733.10, the balance due on the renewed public assistance judgment, minus Ulrich’s subsequent payments. Social Services moved for reconsideration. The trial court denied the motion. Social Services appeals.

[¶ 4] Social Services argues the trial court’s finding that Ulrich’s arrears totaled $733.10 was clearly erroneous as it was based on an erroneous view of the law and was not supported by the record. Social Services submitted an SDU ledger showing the child support arrears totaled $4,733.10, and now argues none of the arrears have been barred by the statute of limitations or canceled.

[¶ 5] A trial court’s findings of fact will not be set aside unless clearly erroneous. N.D.R.Civ.P. 52(a). 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 there is a definite and firm conviction a mistake has been made. Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541.

[¶ 6] To determine whether the trial court erred, we must review the statutory history of child support orders and judgments for child support. Before 1987, a due and unpaid child support order did not constitute a judgment until it was adjudicated through a motion proceeding or separate action. Fuson v. Schaible, 494 N.W.2d 593, 595, 597 (N.D.1992). In 1987, the North Dakota Legislative Assembly enacted N.D.C.C. § 14-08.1-05, providing that any child support order is a judgment by operation of law on and after the date it is due and unpaid, and becomes recordable in the judgment book under Rule 58, N.D.R.Civ.P.1987 N.D. Sess. Laws ch. 181, § 1. The statute became effective March 23, 1987; it was not retroactive. 1987 N.D. Sess. Laws ch. 181, § 9; Baranyk v. McDowell, 442 N.W.2d 423, 424 (N.D.1989). The requirement for entry under Rule 58, N.D.R.Civ.P., was enacted to avoid an automatic docketing of the judgment. Hearing on S.B. 2432 Before the Human Services and Veteran Affairs Committee, 50th N.D. Legis. Sess. (January 29,1987) (testimony of Blaine L. Nord-wall, N.D. Dept, of Human Services). Automatic docketing would have created “an onerous imposition of numerous monthly docket entries for the State’s clerks of court” and the need to find the “multitudinous docket entries in each and every real estate transaction.” Id.

[¶ 7] In 1997, the legislature amended N.D.C.C. § 14-08.1-05, providing any child support order constitutes a judgment by operation of law on and after the date it is due and unpaid, whether accrued before or after the effective date of the amendment. 1997 N.D. Sess. Laws ch. 404, § 5. The amendment also replaced the requirement that the judgment be entered under Rule 58, N.D.R.Civ.P., with a requirement that the order “must be entered in the judgment docket, upon filing by the judgment creditor or the judgment creditor’s assign-ee of a written request accompanied by a verified statement of arrearage or certified copy of the payment records of the clerk of district court maintained under section 14-09-08.1 and an affidavit of identification of the judgment debtor.” Id. This amendment was intended “to permit timely enforcement of the judgment” and address “problems with the current practice of some clerks and judges which require advance notice to the delinquent obligor before permitting enforcement of the judgment.” Hearing on H.B. 1226 Before the Human Services Committee, 55th N.D. Legis. Sess. (January 21, 1997) (testimony of William Strate, Director of Child Support Enforcement, N.D. Dept, of Human Services). The amendment became effective July 1, 1997. 1997 N.D. Sess. Laws ch. 404, § 87.

[¶ 8] In 1999, the legislature again amended N.D.C.C. § 14-08.1-05, providing: “[t]he due and unpaid payments and any judgment entered in the judgment docket pursuant to this section are not subject to the statutes of limitations provided in chapter 28-01, nor may such judgment be canceled pursuant to section 28-20-35.” 1999 N.D. Sess. Laws ch. 140, § 1. This amendment was intended to “allow collection of unpaid child support throughout the life of the person who fails to pay his or her support and then through the probate of that person’s estate.” Hearing on S.B. 2288 Before the Human Services Committee, 56th N.D. Legis. Sess. (January 27, 1999) (testimony of Senator Wayne Stenehjem). The amendment became effective April 2, 1999. 1999 N.D. Sess. Laws ch. 140, § 2.

[¶ 9] Ordered, due and unpaid child support, therefore, falls into one of four historical categories: (1) before March 23, 1987, ordered child support that was due and unpaid did not constitute a judgment until adjudicated through a motion proceeding or separate action, and was subject to the statute of limitations and to cancellation under N.D.C.C. § 28-20-35; (2) ordered support that became due after March 23, 1987, constituted a judgment by operation of law, was recordable in the judgment book under Rule 58, N.D.R.Civ. P., and was subject to the statute of limitations and cancellation; (3) after July 1, 1997, all ordered child support, regardless of when it became due, constituted a judgment by operation of law upon filing a written request and documentation, and was subject to the statute of limitations and cancellation; and (4) after April 2, 1999, all ordered support, regardless of when it became due and unpaid, constituted a judgment by operation of law upon filing a written request and documentation, and the statute of limitations and cancellation were expressly inapplicable.

[¶ 10] Prior to March 23, 1987, Ul-rich’s ordered, due and unpaid child support did not constitute a judgment because Social Services had not initiated an enforcement motion proceeding or separate action to reduce the unpaid obligations to judgment. Ulrich’s obligations that became due and unpaid after March 23, 1987, did constitute judgments by operation of law under N.D.C.C. § 14-08.1-05. And, finally, on July 1, 1997, all his ordered, due and unpaid child support, regardless of when it had become due, constituted a judgment by operation of law. However, simply because Ulrich’s obligations constituted judgments by operation of law does not necessarily mean Social Services can now collect on the judgments. We must still determine whether any of the claims have been barred by the statute of limitations or canceled by N.D.C.C. § 28-20-35.

[¶ 11] Generally, a child support claim is “[a]n action upon a judgment or decree of any court of the United States or of any state or territory within the United States” and subject to a ten-year statute of limitations. See N.D.C.C. § 28-01-15; Fuson, at 597. The limitation period begins when the duty to support terminates, not on each individual payment’s due date. Fuson, at 598-99, Levine, J., dissenting (dissenting opinion became the majority opinion on the statute of limitations issue); see id. at 594. Ulrich’s child support duty terminated when the child reached the age of majority on October 18, 1989, and the limitations period normally would have run on October 18, 1999. The latest order to show cause hearing in this case was held on October 4, 1999, before the statute of limitations would have run. Additionally, after April 2, 1999, ordered, due and unpaid child support was exempted from the statute of limitations under N.D.C.C. § 14-08.1-05(l)(a). See 1999 N.D. Sess. Laws ch. 140, §§ 1, 2. Therefore, none of Ulrich’s child support obligations are barred by the statute of limitations.

[¶ 12] Non-renewed judgments are canceled ten years after their entry. N.D.C.C. § 28-20-35. “After ten years after the entry of a judgment that has not been renewed, or after twenty years after the entry of a judgment that has been renewed, the judgment must be canceled.” Id. Judgment entry under N.D.C.C. § 14-08.1-05 was performed under Rule 58, N.D.R.Civ.P., until the July 1, 1997, amendment when the entry procedure was changed to require only the filing of a written request and the listed documentation. 1997 N.D. Sess. Laws ch. 404, § 5; 1987 N.D. Sess. Laws ch. 181, §§ 1. Here, the original $1,502.10 judgment for public assistance was entered on August 1, 1983, and the $883.10 remaining balance was renewed on July 19, 1993. We cannot find any entered or renewed judgments for child support in the record. Section 28-20-35, N.D.C.C., therefore, would apply only to the renewed 1983 judgment for public assistance. That judgment was renewed within the ten-year period and it has not been twenty years since entry. Thus, the renewed 1983 judgment has not been canceled and, on the trial record, there are no child support judgments entered that could have been canceled. Cancellation under N.D.C.C. § 28-20-35 also will not apply to any judgments for child support that may be entered in the future. N.D.C.C. § 14-08.l-05(l)(a); 1999 N.D. Sess. Laws ch. 140, §§ 1, 2 (eliminating application of N.D.C.C. § 28-20-35 to all child support order judgments, effective April 2, 1999).

[¶ 13] The trial court’s finding that the arrearage totaled $733.10 was clearly erroneous. The statute of limitations under N.D.C.C. § 28-01-15 has not barred recovery of ordered support that is due and unpaid, and the support was not canceled under N.D.C.C. § 28-20-35. The certified SDU ledger showing Ulrich owed a child support arrearage of $4,733.10 was prima facie evidence of the state records maintained by the SDU registry. N.D.C.C. § 14-08.1-08. Ulrich did not introduce any evidence rebutting this prima facie evidence. Normally, that should have been sufficient proof of a child support arrearage separate and apart from the 1983 judgment for public assistance. In this case, however, appellants’ trial counsel, introducing the SDU ledger, stated: “The total obligation in this case is an arrearage of $4,733. This reflects a balance of fifteen hundred two dollar judgment that was entered, I believe, it was in 1983. This was the original judgment, plus there was $1,915 owed in back support to the obligee in this case, and $2,818.” This statement suggests the ar-rearage is comprised of three different items totaling $4,733, one of which is the 1983 judgment. In fact, the SDU ledger makes no clear reference to the 1983 judgment. The ledger contains only two numbers, $1,915 and $2,818.10, which total the arrearage balance $4,733.10. That arrear-age balance is clearly labeled “child support” on page 1 of the ledger. The two numbers, $1,915 and $2,818.10, are found on page 2 of the ledger and are cryptically labeled “TRANCODE DE” and “TYPE CA.” Without counsel’s confusing reference to the 1983 judgment it would have been reasonable for the trial court to construe the ledger as showing nothing but child support arrearage, even though the reason for the two separate figures on page 2 is unexplained. However, the existence of two separate unexplained figures on page 2 of the ledger, combined with trial counsel’s confusing suggestion that the balance of the 1983 judgment is somehow incorporated in the arrearage balance, effectively impeached appellants’ own exhibit.

[¶ 14] In light of the confusion caused by appellants’ exhibit with its unexplained entries, and counsel’s statement that the balance due on the 1983 judgment was somehow incorporated in those entries, it is easy to understand how the trial court’s focus was diverted from the child support arrearage appellants were seeking to collect, to the balance due on the 1988 judgment for public assistance.

[¶ 15] We reverse and remand the ease for an evidentiary hearing to determine the composition of the $4,733.10 arrearage, and for further proceedings consistent with this opinion.

[¶ 16] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ„ concur.

      . N.D.C.C. § 28-20-35 provides for cancellation of unrenewed judgments ten years after entry, and renewed judgments twenty years after entry.


author: AMUNDSON, Justice.

text:
    2000 SD 77
    CITY OF RAPID CITY, Plaintiff and Appellant, v. William ANDERSON, Stanley W. Scheurer, Individually, and Marlys Faber, in her capacity as Register of Deeds, Pennington County, South Dakota, Defendants and Appellees, Marlys Faber, in her capacity as Register of Deeds, Pennington County, Third Party Plaintiff and Appellee, v. City of Box Elder, a municipal corporation of the State of South Dakota, Third Party Defendant and Appellee.
    No. 21095.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided June 14, 2000.

      Robert R. Jackson, City Attorney, Rapid City, for appellant.
    Robert M. Nash of Wilson, Olson, Nash & Becker, Rapid City, for appellees Anderson and Scheurer.
    Glenn A. Brenner and Ronald D. Busk-erud, Pennington Couhty States Attorney, Rapid City, for appellee Faber.
    Rexford A. Hagg of Whiting, Hagg & Hagg, Rapid City, for appellee City of Box Elder.
   AMUNDSON, Justice.

[¶ 1.] City of Rapid City, South Dakota (Rapid City) appeals the declaratory judgment holding that the City of Box Elder, South Dakota (Box Elder) had jurisdiction to approve a subdivision plat. We affirm in part, reverse and remand in part.

FACTS

[¶ 2.] In July of 1998, William Anderson (Anderson) and Stanley Scheurer (Scheurer) filed a plat to subdivide seven acres of their real property into five lots. The property, Paradise Estates, is located approximately 2.8 miles from the city limits of Box Elder, 2.9 miles from the city limits of Rapid City, and .7 miles from the Rapid City Airport. Around July 20, 1998, Anderson and Scheurer submitted their plat to the City Council of Box Elder for approval. The approved plat was then submitted to the Pennington County Register of Deeds, who reviewed, accepted, and filed the plat on July 22,1998.

[¶ 3.] After filing, Anderson and Scheurer applied for a building permit through Pennington County Planning and Zoning Commission. At this time, Rapid City became aware of the plat. Rapid City believed that the property was within its jurisdiction. Rapid City thereafter commenced a declaratory judgment action against Anderson, Scheurer, and the Pennington County Register of Deeds Marlys Faber (Faber), to have the plat held invalid. Rapid City claimed that under SDCL 11-6-26 Box Elder did not have subdivision jurisdiction -over the subject property. Anderson and Scheurer counterclaimed alleging Rapid City’s annexation -of its airport was not valid under SDCL Chapter 9-4. A third-party action was also initiated by Faber against Box Elder claiming it had no platting jurisdiction because Box Elder “does not have a major street plan for the subject property nor has it filed a certified copy with the Register of Deeds of Pennington County.”

[¶ 4.] The trial court found that the annexation of the Rapid City airport was invalid. Further, the trial court found that, based upon the invalid annexation, under SDCL 11-6-26 Box Elder has platting jurisdiction by virtue of its one-tenth of a mile closer proximity to the subject property. Ultimately, the trial court dismissed both Rapid City’s declaratory judgment action and the third-party action against Box Elder.

[¶ 5.] Rapid City appeals the following issues:

1. Whether the trial court erred in holding that Rapid City’s annexation of its airport was invalid?
2.' Whether the trial court erred in holding that Box Elder could validly approve a subdivision plat within three miles of its corporate limits, but which was not covered by its major street plan as required by SDCL 11-6-26?

STANDARD OF REVIEW

[¶ 6.] We have often stated that “ ‘[i]n [reviewing] declaratory judgment actions, this Court “has an obligation to reach its legal conclusions independent from the conclusions reached by the trial court.” ’ ” ’ Agar Sch. Dist. No. 58-1 v. McGee, 1997 SD 31, ¶ 10, 561 N.W.2d 318, 321 (quoting Reis v. Miller, 1996 SD 75, ¶ 5, 550 N.W.2d 78, 79-80 (quoting Black Hills Novelty Co. v. South Dakota Comm’n on Gaming, 520 N.W.2d 70, 72 (S.D.1994) (quotations omitted))). In addition, we review a trial court’s findings of fact “under a clearly erroneous standard and its conclusions of law under a de novo standard.” Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 4, 562 N.W.2d 888, 890 (citing Northwestern Bell Tel. Co., Inc. v. Stofferahn, 461 N.W.2d 129, 134 (S.D.1990)).

[¶ 7.] This appeal requires us to examine the statutes governing filing of subdivision plats and the extension of municipal boundaries by annexation. In discussing the rules of statutory construction, we have often stated:,

“Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover, the true intention ■ of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.”

Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Utilities Comm’n, 505 N.W.2d 115, 122-23 (S.D.1993) (citations omitted))).

DECISION

[¶ 8.] 1. Whether the trial court erred in holding that Rapid City’s annexation of its airport was invalid.

[¶ 9.] Initially, it is also important to note that Rapid City fails to cite any authority to support its argument that the trial court erred in finding the annexation was invalid. Instead, Rapid City only asserts that the discussion of the validity of the airport annexation is irrelevant and the trial court improperly placed the burden upon it to prove that the annexation was valid. In fact, Rapid City contends in its brief that the issue of the validity of Rapid City’s annexation of the Rapid City airport is a “five hundred pound red herring, entirely distracting attention from the very simple, unequivocal, and dispositive question of whether Box Elder’s approval of the subject plat was valid.” The trial court clearly did not find this issue a “distraction” based upon its substantial discussion about the invalidity of Rapid City’s annexation. While it is true that under our de novo standard of review in a declaratory judgment action, this Court does not have to accept the trial court’s conclusions of law hook, line, and sinker, we do not agree with Rapid City that this issue is a “five hundred pound red herring.” A review of the record shows that a majority of the trial court’s decision was devoted to the annexation issue; therefore, we will address this issue first.

[¶ 10.] The requirements for annexation by a municipality are identified in SDCL 9-4-1. The statute provides:

The governing body of a municipality, upon receipt of a written petition describing the boundaries of any territory, contiguous to that municipality sought to be annexed to that municipality, may by resolution include such territory or any part thereof within such municipality if the petition is signed by not less than three-fourths of the registered voters and by the owners of not less than three-fourths of the value of the territory sought to be annexed to the municipality.
For purposes of this section, “contiguous ” includes territory separated from the municipality by reason of intervening ownership of land used as a golf course or any land owned by the State of South Dakota or any subdivisions thereof.

SDCL 9-4-1 (emphasis added). A review of SDCL 9^4-1 clearly shows that one element of a valid annexation is that the territory sought to be annexed must be contiguous to the annexing municipality. Therefore, in this case, the airport property must be contiguous to Rapid City. In discussing the importance of contiguity, this Court noted in Krebs v. City of Rapid City, 364 N.W.2d 128, 130 (S.D.1985) (citing Big Sioux Township v. Streeter, 272 N.W.2d 924 (S.D.1978)), that “the territory [must] be contiguous to the annexing city and ... contiguity encompasses more than physical touching of boundaries but also encompasses the requirement of the community of interests which necessitates that the annexation be natural and reasonable.”

[¶ 11.] In the present case, Rapid City annexed the Rapid City Airport, which is approximately 3.7 miles from Rapid City at Jolly Lane in a straight line or approximately 4.7 miles from Rapid City at Race Track Road. According to the annexation, Rapid City would have a 200-foot-wide right-of-way and railway frontage along Highway 44 ,for 4.7 miles to the airport. The trial court found that this annexation was not contiguous to Rapid City.

[¶ 12.] A review of cases in other jurisdictions reveals that the issue of “contiguity” of annexed property has arisen on numerous occasions. Contiguity has often been found to be synonymous with “adjacent” or “adjoining.” See, e.g., Johnson v. City of Hastings, 241 Neb. 291, 488 N.W.2d 20, 23 (1992) (noting that “[t]he terms ‘contiguous’ and ‘adjacent’ are used synonymously and interchangeably”); State v. City of Milford, 576 A.2d 618, 621 (Del.Ch.1989) (agreeing with the argument that “the boundaries of the annexed land and of the City should either touch at every point, or, at the very least, should share a substantial common boundary”); Freeport Fire Protection Dist. v. City of Freeport, 58 Ill.App.3d 314, 15 Ill.Dec. 871, 374 N.E.2d 479, 482 (1978) .(holding that “[a]ny ‘reasonable interpretation’ of ‘contiguous,’ ... ‘must mean contiguous in the sense of adjacent to and parallel to the existing municipal limits’ ”); Wescom, Inc. v. Woodridge Park Dist., 49 Ill.App.3d 903, 7 Ill.Dec. 560, 364 N.E.2d 721, 723 (1977) (noting that “the courts have generally held adjoining to be synonymous with contiguous, both terms meaning touching or adjoining in a reasonably substantial physical sense”); Village of Plainfield v. American Nat’l Bank & Trust, 25 Ill.App.3d 1026, 323 N.E.2d 841, 844 (1975) (finding “[statutory requirements of contiguity mean contiguous in the sense of adjacent and parallel to existing municipal boundaries”).

[¶ 13.] The type ’ of annexation shown in this case is commonly referred to as “corridor,” “strip,” “shoestring,” or “long lasso” annexations and have been disallowed by a majority of courts. See City of Milford, 576 A.2d at 621-22 (citing numerous cases interpreting the meaning of “contiguous”). This Court was faced with an irregular shaped annexation in Big Sioux Township, 272 N.W.2d at 926-27, where the township brought a declaratory judgment action to challenge the annexation of the McCook Lake area by North Sioux City, South Dakota. In discussing annexation by municipalities, this Court noted:

[W]e interpret the terminology in the annexation statutes to require not only common boundaries but also a community of interest. The terms “contiguous” and “adjoining” regarding annexation indicate a touching in the physical sense with a common border of reasonable length or width. Factors involved in this consideration include significant physical barriers, irregular shapes, such as narrow corridors and gerrymandering, and unjustified enclaves or islands of unannexed territory entirely surrounded by the municipal corporation, [citation omitted]. In the annexation context, “contiguity” and “best interest” include more than common boundaries, [citations omitted]. There must also be a showing of a community of interest flowing from one of the justifications for a natural and reasonable annexation discussed above. (Emphasis added).

Id. In declaring the' annexation in Big Sioux Township void, we noted that the annexation sought by North Sioux City created-an island of unannexed territory. Id. at 927. Further, “[t]he interstate highway is a' physical barrier running lengthwise and providing two access points between the McCook Lake area and the populated portion of [North Sioux City].” Id.

[¶ 14.] A review of Big Sioux Township and case authority from other jurisdictions reveals that Rapid City’s annexation of the Rapid City Airport via a 200 foot right-of-way for 4.7 miles is not “contiguous.” See Johnson, 488 N.W.2d at 22-25 (finding a 120-foot-wide saucepan-shaped tract of land that ran for three-quarters of a mile in length from the city limits was not contiguous or adjacent to the boundary of the city); City of Milford, 576 A.2d at 620 (opining that none of the questioned properties are contiguous and “only a narrow, few-feet-wide portion physically touches existing City boundaries”); Wescom, 7 Ill.Dec. 560, 364 N.E.2d at 723-24 (holding that a corridor or strip of right-of-way running 120.5 feet wide and one-half mile long to the plaintiffs land was not contiguous or adjoining to the district); Village of Plainfield, 323 N.E.2d at 843 (finding that the annexed properties, based upon their irregular shapes and distances from the Village, clearly lacked contiguity); People ex rel. Marre v. Countryside Sanitary Dist., 5 Ill.App.3d 747, 284 N.E.2d 308, 313 (1972) (holding that a tract of annexed land fifty feet wide and 1,580 feet in length was not contiguous because it was not “adjacent to and parallel to” the district, nor was it “touching or adjoining ... ‘in a reasonably substantial physical sense’ ”).

[¶ 15.] Under SDCL 9^-1, annexed property must be contiguous; here, it is clearly not. In Big Sioux Township, this Court noted:

The basic concept of a municipal corporation is that of a homogeneous entity and, in a territorial sense, the entity is “one of unity, and not of plurality; of compactness or contiguity, not separation or segregation.” [quotations omitted.] In order to maintain and preserve this concept of homogeneity and unity, any annexation to a municipal corporation must necessarily be natural and reasonable.

272 N.W.2d at 926. To allow the use of “corridor” annexations would be to defeat the basic concept of a municipal corporation, that of unity and compactness. Rapid City’s annexation of the Rapid City Airport by a 200 foot-wide, 4.7 mile-long corridor does not “indicate[ ] a touching in the physical sense with a common border of reasonable length or width.” See Big Sioux Township, 272 N.W.2d at 926. The trial court did not err in declaring the annexation of the Rapid City Airport invalid due to the lack of contiguity between Rapid City and the annexed airport.

[¶ 16.] 2. Whether the trial court erred in holding that Box Elder could validly approve a subdivision plat within three miles of its corporate limits, but which was not covered by its major street plan as required by SDCL 11-6-26.

[¶ 17.] In determining where to submit a subdivision plat, SDCL 11-6-26 applies and provides which municipality has jurisdiction to consider the plat and approve the same. Under SDCL 11-6-26,

[f]rom and after the time when the city council of any municipality shall have adopted a comprehensive plan which includes at least a major street plan or shall have progressed in its comprehensive planning to the stage of making and adoption of a major street plan, and shall have filed a certified copy of such major street plan in the office of the register of deeds of the county in which the municipality is located, no plat of a subdivision of land lying within the municipality, or of land within three miles of its corporate limits and not located in any other municipality, shall be filed or recorded until it shall have been submitted to and a report and recommendations thereon made by the planning and zoning commission to the city council and the council has approved the plat. This provision shall be applicable to land within three miles of the corporate limits of the municipality and not located in any other municipality only if the comprehensive plan or major street plan includes such land. However, in the case of such extra municipal land lying within three miles or more than one first or second class municipality, the jurisdiction of each municipality shall terminate at a boundary line equidistant from the respective corporate limits of such municipalities, unless otherwise agreed to by a majority vote of the governing body of each such municipality. Such plats shall, after report and recommendations of the commissions are made and filed, be approved or disapproved by the city council. The commission shall make its recommendation to the council within sixty days of submission.

This is the first time that we have been called upon to interpret this statute.

[¶ 18.] Rapid City contends that under SDCL 11-6-26, “only if the comprehensive plan or major street plan” of the municipality “includes such land” shall the three mile extra territorial jurisdiction apply. Rapid City further argues that “[i]t is un-controverted that the major street plan which the City of Box Elder had on file with the Register of Deeds of Pennington County did not include [Anderson’s and Scheurer’s] property.” (Emphasis added.) Rapid City contends that because Box Elder’s comprehensive plan or major street plan did not include Paradise Estates, Box Elder does not have jurisdiction to file the plat.

[¶ 19.] The record shows that the trial court, while not required to, interpreted the statute in the following manner:

Both Box Elder and Rapid City had [a major street plan] in place when Defendants sought platting approval in Box Elder. If the three mile jurisdictions of two municipalities overlap, “the jurisdiction of each municipality shall terminate at a boundary line equidistant from the respective corporate limits of such municipalities ...” [SDCL 11-6-26], As a result, if the airport annexation is nullified, Box Elder has platting jurisdiction by virtue [of] its one tenth of a mile closer proximity to the subject property.

[¶ 20.] Under our rules of statutory construction, we must read the statute as a whole to interpret its meaning. See Dahn, 1998 SD 36, ¶ 14, 576 N.W.2d at 539. To further assist this Court in interpreting the meaning of a statute, we must also review other enactments relating to the same subject. See id. Such statutory review reveals that SDCL 11-6-11 establishes a municipality’s territorial zoning powers within three miles of its corporate limits (extra territorial jurisdiction). See SDCL 11-6-11. Further, this statute also includes the “equidistant rule” when this extra territorial land is located within three miles of more than one first or second class municipality. See id. SDCL 11-6-26 shows that when a municipality has jurisdiction to approve a plat on property within its three mile zone, the municipality needs a comprehensive plan or major street plan covering the property.

[¶ 21.] The thrust of Rapid City’s argument is it had jurisdiction to approve the plat of Paradise Estates because it was first to file a major street plan covering the subject property. The statute does not provide that the first to file in the register of deeds wins the race to control platting. The issue is, does Box Elder have authority to approve the Paradise Estates Plat.

[¶ 22.] There is no question that after the trial court found Rapid City’s annexation of the airport invalid, under the equidistant rule, the property falls within Box Elder’s jurisdiction. Rapid City argues that a municipality can only approve a plat if the municipality has a comprehensive plan or major street plan which covers the specific property. A review of the record does mention a street plan, but does not specifically determine whether Box Elder’s plan included Paradise Estates. Since inclusion within the plan is essential under SDCL 11-6-26, this matter will be returned to the trial court to determine whether there was or is a major street plan covering Paradise Estates. There is no question that under the equidistant rule, Rapid City does not have jurisdiction. Whether or not Box Elder has fully complied with SDCL 11-6-26 is not answered in this record.

[¶ 23.] We affirm the trial court’s decision declaring Rapid City’s annexation of the Rapid City airport invalid. We reverse and remand with instructions to the trial court to determine whether Box Elder’s major street plan includes Paradise Estates.

[¶ 24.] MILLER, Chief Justice and SABERS and GILBERTSON, Justices, concur.

[¶ 25.] KONENKAMP, Justice, deeming himself disqualified, did not participate.

      . Under SDCL 11-6-26, if a municipality files a comprehensive plan, which includes a major street plan or the municipality is in the process of adopting a major street plan, any plat for subdividing land within three miles of the municipality's corporate limits shall be filed with that municipality’s city council for approval. An exception to the three mile limit exists if the platted land is within more than one municipality’s three mile • jurisdic-lion. In such cases, an "equidistant” rule applies to terminate each municipality’s jurisdiction at a boundary line equidistant from the limits of the two municipalities’ corporate limits. The full text of the statute will be discussed later.

      . The statute sections under SDCL ch. 9-4 identify the requirements for changing municipal boundaries by annexation.

      . .How can the annexation be irrelevant if it impacts the equidistant rule under SDCL 11-6-26? Rapid City has provided no authority why it is irrelevant or why the trial court erred in discussing the issue. Rapid City should not be allowed to use the annexation as a springboard to garner jurisdiction under the equidistant rule.

      . Rapid City had submitted proposed findings of fact and conclusions of law which contained a proposed finding of fact that "[t]he City of Box Elder has not adopted a major street plan which covers [Paradise Estates]; the major street plan which has been filed by the City of Box Elder does not cover such property, stopping approximately one mile to the north.” Rapid City's proposed findings were ultimately denied by the trial court. In the trial court's findings of fact and conclusions of law, the court made no finding of fact or conclusion of law as to whether Paradise Estates was covered by Box Elder's street plan. In fact, the trial court found only that Box Elder had filed its major street plan on March 13, 1985. Rapid City filed no objections to the trial court's findings of fact and conclusions of law. We have often stated that " ‘ "[t]he failure of an appellant to object to findings of fact and conclusions of law or to propose his or her own findings, limits review to the question of whether the findings support the conclusions of law and judgment." ’ " Sutera v. Sully Buttes Sch. Dist., 1997 SD 27, ¶ 9, 561 N.W.2d 20, 23 (quoting Premier Bank, N.A. v. Mahoney, 520 N.W.2d 894, 895 (S.D.1994) (quoting Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991))). While Rapid City failed to object to the trial court’s findings and conclusions, proposed findings and conclusions were filed; therefore, Rapid City has preserved its argument for appeal.


author: RUSSELL A. ANDERSON, Justice.

text:
    CARE INSTITUTE, INC.-ROSEVILLE, Respondent, v. COUNTY OF RAMSEY, Relator.
    No. C7-99-1868.
    Supreme Court of Minnesota.
    June 8, 2000.
    Rehearing Denied July 17, 2000.
   OPINION

RUSSELL A. ANDERSON, Justice.

Respondent, Care Institute, Inc.-Rose-ville (CIIR), an Indiana nonprofit corporation exempt from federal and state income tax, owns and operates Rosewood Estates of Roseville (RER), an assisted living facility for the elderly. At issue in this case is whether CIIR qualifies as a purely public charity exempt from property taxes for tax years 1996, 1997, and 1998. On CIIR’s motion for summary judgment, the Minnesota Tax Court held that because it ruled in 1996 that CIIR qualified as an exempt purely public charity for tax year 1994, the doctrines of res judicata and collateral es-toppel prevented the county from relitigat-ing CIIR’s entitlement to exempt status. See Care Inst., Inc.-Roseville v. County of Ramsey, No. C9-96-10374, 1999 WL 714088, at *5 (Minn. Tax Ct. Sept. 3, 1999). The county petitioned for a writ of certio-rari and we now reverse the tax court’s grant of summary judgment to CIIR and remand for further proceedings consistent with this opinion.

The facts are taken in the light most favorable to the nonmoving party, the county. See DLH, Inc. v. Russ, 566 N.W.2d 60, 72 (Minn.1997). RER is an assisted living facility for the elderly, and part of CIIR’s mission is to meet the housing, health and financial security needs of the elderly. In the period 1996 to 1999 base rents ranged from $1,470 to $3,885 per month, considerably higher than rents at comparable facilities that have been granted exempt status. While CIIR set aside two units for reduced or no rent for people unable to pay anything beyond health care charges, and reduced rent for other residents, RER’s occupancy rate fluctuated between 83 percent and 100 percent over the period 1996-1999.

Services in the rental agreement include: the apartment, breakfast and evening meals, up to 60 minutes per week of housekeeping, laundry facilities, all utilities except long distance telephone service, basic cable television, facility security sys-tern, emergency response, social work case management, psychiatric consultation, house physician consultation, weekly nurses mini-clinic, dietary consultation, use of common space for family gatherings, and maintenance. Other services are provided at an additional fee. CIIR receives contributions in the form of volunteer work, reduced administrative and management fees and donations. According to the county, donations amounted to less than two-tenths of one percent (.2%) of total revenue and less than fifteen one-hundredths of one percent (.15%) of assessed market value. RER consistently operates at a significant deficit.

The facility’s operation is administered by Care Institute Group, Inc. (Care Group), an Indiana nonprofit corporation that provides administrative services to RER and seven affiliated Care Institute operations around the country. The director of CIIR is on the board of directors for Care Group. The director does not receive director’s fees from CIIR, but is compensated through Care Group. Several of the donations claimed by CIIR were in the form of reduced service fees from Care Group and the forgiveness of a loan from CIIR’s management company.

I.

On appeal from a grant of summary judgment, this court must determine whether any genuine issues of material fact exist and whether the lower court erred in its application of the law. See Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). In addition, we review tax court decisions to determine if the decision is supported by the evidence and in conformity with the law, and to determine if errors of law were committed. See Minn.Stat. § 271.10, subd. 1 (1998); Community Mem’l Home at Osakis, Minn., Inc. v. County of Douglas, 573 N.W.2d 83, 86 (Minn.1997) (Osakis). The application of the doctrine of res judi-cata is a question of law that we review de novo. See, e.g., BAACT Corp. v. Executive Aero, Inc., 312 Minn. 143, 145-46, 251 N.W.2d 107, 109 (1977); First & Am. Nat'l Bank v. Higgins, 208 Minn. 295, 319, 293 N.W. 585, 597 (1940). The determination of whether collateral estoppel is available presents a mixed question of law and fact also subject to de novo review. See Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn.1996).

In this case the tax court concluded that under the doctrines of res judicata and collateral estoppel the county is barred from relitigating CIIR’s status as a purely public charity. Thus, we address whether the tax court committed an error of law in ruling the county was barred from litigating the exemption issue.

II.

To evaluate the application of res judica-ta and collateral estoppel, we necessarily review the prior adjudication. In 1996, the tax court found that for tax year 1994 CIIR was a purely public charity under Minn.Stat. § 272.02 (1998). See Care Inst., Inc. v. County of Ramsey, No. C9-95-563, 1996 WL 45908, at *3 (Minn. Tax Ct. Feb. 2, 1996). That section sets out property tax exemptions for various public, academic and religious facilities, and includes “institutions of purely public charity.” Minn.Stat. § 272.02, subds. 1-8 (1998 & Supp.1999). The term is not defined in statute, but we have described the purpose and practices of a charity:

The legal meaning of the word “charity” has a broader significance than in common speech and has been expanded in numerous decisions. Charity is broadly defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons “by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.”
But it is not safe to say as a universal rule that any gift which tends to promote man’s well-being is a charity.

Junior Achievement of Greater Minneapolis, Inc. v. State, 271 Minn. 385, 390, 135 N.W.2d 881, 885 (1965) (quoting 15 Am.Jur.2d Charities § 3).

To determine whether an organization qualifies for the public charity exemption, we analyze the following six factors:

(1) whether the stated purpose of the undertaking is to be helpful to others without immediate expectation of material reward;
(2) whether the entity involved is supported by donations and gifts in whole or in part;
(3) whether the recipients of the “charity” are required to pay for the assistance received in whole or in part;
(4) whether the income received from gifts and donations and charges to users produces a profit to the charitable institution;
(5) whether the beneficiaries of the “charity” are restricted or unrestricted and, if restricted, whether the class of persons to whom the charity is made available is one having a reasonable relationship to the charitable objectives; and
(6) whether dividends, in form or substance, or assets upon dissolution are available to private interests.

North Star Research Inst. v. County of Hennepin, 306 Minn. 1, 6, 236 N.W.2d 754, 757 (1975). The fifth factor includes consideration of whether the operation diminishes the burden on government. See Osakis, 573 N.W.2d at 86-87; Junior Achievement, 271 Minn. at 392, 135 N.W.2d at 886. These factors are only guidelines and an organization may still qualify for an exemption even if all six are not satisfied. See Care Inst., Inc-Maplewood v. County of Ramsey, 576 N.W.2d 734, 738 (Minn.1998) (Maplewood). However, all property is presumed taxable; therefore, the entity seeking exemption bears the burden to prove entitlement. See Camping & Educ. Found. v. State, 282 Minn. 245, 250, 164 N.W.2d 369, 372 (1969). “[T]axation is the rule and exemption is an exception in derogation of equal rights,” and therefore exemption provisions are to be strictly construed. Id.

In 1996, the tax court found that CIIR qualified as a purely public charity. See Care Inst., Inc., 1996 WL 45908, at *3. The court found that CIIR was supported in part by donations and gifts, including contributions from affiliated entities. See id. at ⅜4. The court also found that rents were set at a level somewhat below total' cost of the benefits provided, meaning that the residents were not required' to :pay in full for the assistance they received: See id. at *5. Further, the court found that because CIIR did not charge an initiation fee, and reduced rents for those unable to pay the full amount, it did not restrict the class of its beneficiaries. See id. at *6.

Based on these findings, the tax court concluded in its 1996 decision that CIIR qualified as a purely public charity. The county did not appeal that decision. However, when all exempt properties next came up for reevaluation on the county’s three-year schedule, the county proceeded to assess property taxes against CIIR for tax years 1996, 1997 and 1998. CIIR petitioned the tax court for review and the court concluded that res judicata and collateral estoppel barred the relitigation. of CIIR’s status. .

m.

Under the doctrine of res judi-cata, parties to an action may be prohibited from raising any matter in a second suit that-was or could have been litigated in the first suit. See Youngstown Mines Corp. v. Prout, 266 Minn. 450, 466, 124 N.W.2d 328, 340 (1963). The doctrine applies when the parties to the two actions are the same, the second suit is for the same cause of action, and the original judgment was on the merits. See id. Identity of subject matter does not establish' that two claims are the same cause of action. See Maryland Cas. Co. v. Baune, 184 Minn. 550, 552, 239 N.W. 598, 599 (1931). In addition, if the right to assert the second claim did not arise at the same time as the right to assert the first claim, then the claims cannot be considered the same cause of action. See Lloyd A. Fry Roofing Co. v. City of Minneapolis, 551 F.2d 200, 201 (8th Cir.1977).

- In the instant case, res judicata is inapplicable because the county could not litigate the issue of whether CIIR was a purely public charity in tax years 1996, 1997 or 1998 when the exemption for tax year 1994 was litigated in 1995-96. While these two cases involve the same subject matter and type of cause of action, they are not the same cause of action; the county is not attempting to collect property taxes CIIR owed for tax year 1994:. Rather, the county is attempting to collect taxes for subsequent years, during which the characteristics relevant to status as a purely public charity may have ’changed. See Restatement (Second) of Judgments, § 24, cmt. d, illus. 9 (1982) (annual taxes considered separate obligation of indebtedness; separate actions may be maintained).

Specifically, the. extent to which RER is supported by donations, the extent to which residents are required to pay for the assistance received, the profitability and income-producing nature of the institution, and the nature of the beneficiaries are all characteristics that could change from year to year. See North Star, 306 Minn. at 6, 236 N.W.2d at 757. Therefore, the same evidence "will not sustain both actions. See McMenomy v. Ryden, 276 Minn. 55, 58, 148 N.W.2d 804, 807 (1967). Res judicata does not preclude the county from litigating CIIR’s entitlement to an exemption as a purely public charity for tax years 1996,1997, and 1998.

IV.

The tax court also held that the county was collaterally estopped from re-litigating the issue of CIIR’s status as a purely public charity. For the doctrine of collateral estoppel to apply, each of the following elements must be met: 1) the issue must be identical to one in a prior adjudication; 2) there was a final judgment on the merits; 3) the estopped party was a party or was in privity with a party to the prior adjudication; and 4) the es-topped party was given a full and fair opportunity to be heard on the adjudicated issue. See Maplewood, 576 N.W.2d at 737.

Our focus in this case is on the first element, whether the issue litigated is identical to the issue litigated in the prior adjudication. In tax cases, the matter in the second suit must be identical in all respects to that in the prior suit, and the controlling facts and legal principles must remain unchanged. See Tarutis v. Commissioner of Revenue, 393 N.W.2d 667, 669 (Minn.1986). In addition, estoppel is not lightly applied against the government. See Brown v. Minnesota Dept. of Public Welfare, 368 N.W.2d 906, 910 (Minn.1985).

CIIR argues that if the controlling facts changed, they did so in a manner even more favorable to the exemption than in 1994. We need not decide whether only changes in the facts detrimental to the party asserting estoppel prevent relit-igation of those facts because here the controlling legal principles have also changed. Specifically, since the 1996 tax court ruling, we have decided two cases clarifying the North Star factors as applied to assisted living facilities such as RER. See Maplewood; Osakis, supra. Because the parties have stipulated that CIIR satisfied the first, fourth and sixth North Star factors, we limit our review to legal developments relating to factors two, three and five.

The second North Star factor addresses the extent to which the entity is supported by donations and gifts. 306 Minn. at 6, 236 N.W.2d at 757. The tax court in 1996 found that donations from related entities to CIIR could be considered donations because courts in the past had not scrutinized motives in making donations. See Worthington Dormitory, Inc. v. Commissioner of Revenue, 292 N.W.2d 276, 279 (Minn.1980) (holding that cash donations from president of taxed entity were true donations). However, in 1997 in Osakis we distinguished acceptance of a true contribution from a decision to write off the difference between county grant payments and the market rate rents. 573 N.W.2d at 87. A donation from a closely-related entity to keep CIIR afloat is akin to a write-off of an operating shortfall, and this holding from Osakis is therefore relevant to the tax court’s determination of the exemption in the subsequent action.

As the tax court noted in its 1996 decision, support through donations can be satisfied with minimal contributions. See Assembly Homes, Inc. v. Yellow Medicine County, 273 Minn. 197, 201, 140 N.W.2d 336, 341 (1966) (noting that purely public charity received $66 in donations). However, in 1998 in Maplewood we indicated that the claimed donations were insufficient to satisfy this element when compared to the land and construction costs and the revenue generated by the facility. 576 N.W.2d at 739. The tax court in 1996 did not compare the contributions to the facility to its value and revenues and the county in this action presented evidence on that issue. Because the controlling legal principles have been further developed in Maplewood and Osakis, collateral estoppel as to the second North Star factor is inappropriate.

With respect to North Star factor three, whether the recipients of the charity are required to pay for the assistance they receive in whole or in part, the legal principles have also been subject to further development. Indeed, this is perhaps the factor that has been most affected by Osakis. In the context of analyzing the second North Star factor, we clarified that the decision to accept a reduced rate for rent may be more properly characterized as a business decision rather than a charitable donation or gift. See Osakis, 573 N.W.2d at 87. This development is particularly relevant here because CIIR alleges that its acceptance of reduced rent satisfies the third North Star factor in that it establishes that residents are not required to pay in full for housing and services they receive. In Osakis, we held the decision to accept a reduced rent may reflect simply that the facility is not operating at capacity, and because the alternative is to have an empty room contributing no revenue, acceptance of reduced rent is simply a prudent business decision. Id.

We also clarified in Osakis that operating at a loss is not sufficient evidence to satisfy the third North Star factor. See 573 N.W.2d at 87. This development is relevant because the tax court in 1996 relied on the facility’s operation at a loss to demonstrate that the rents charged by CIIR did not cover the costs of providing the services. See Care Inst., Inc., 1996 WL 45908, at *5. However, rents may not cover costs for a variety of reasons, not necessarily because the facility intends to charge a below-cost rent. CIIR concedes the reason RER has operated at a loss is not because CIIR planned to charge residents below-cost rents. CIIR stipulated that the financial losses were the result of low occupancy rates. Osakis clarified that operating at a loss does not establish that residents do not pay for the services they receive, which the tax court in 1996 did not address, and application of collateral estop-pel is therefore inappropriate.

Finally, Osakis also clarified the interpretation of the fifth North Star factor, which includes consideration of whether the petitioner lessens the burden on the government. In Osakis, we held the facility did not satisfy the fifth factor because the record did-not show that the facility’s intended purpose was to provide housing and services for the economically disadvantaged or that it will continue to do :so in the future. Id. at 88.

This holding is relevant to the collateral estoppel analysis because CIIR argues that it is committed to helping the elderly regardless of their financial status. CIIR points to the fact that it has set two units aside for residents who cannot afford to pay the rental price, has reduced the rent for other residents when they have been unable to pay the full rent, and has not evicted residents. While these are commendable practices, the word “purely” in “purely public charity” means “wholly,” “solely,” and “exclusively.” Camping and Educ. Found., 282 Minn. at 252, 164 N.W.2d at 374 (quoting State v. Willmar Hosp., 212 Minn. 38, 41, 2 N.W.2d 564, 566 (1942)).

The county presented evidence that suggests that CIIR’s goal is to operate RER at full capacity, and donations from affiliated entities are made on an as-needed, rather than permanent basis. From the evidence presented the tax court could find that CIIR’s long-term goal is to operate at full capacity with rents covering expenses. In Osakis we clarified that the relevant inquiry is into the long-term philosophy of providing services to the economically disadvantaged, 573 N.W.2d at 88, which is a development in the applicable law that precludes application of collateral estoppel as to the fifth North Star factor.

Because the controlling law has changed since the 1996 tax court judgment, the tax court committed an error of law in applying collateral estoppel to the issues presented.

V.

The tax court did not reach the substance of the county’s motion for summary judgment because it granted CIIR summary judgment based on res judicata and collateral estoppel. Because we reverse that decision, we leave for the tax court the application of the developments in the law described above to the county’s motion for summary judgment. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). We remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . Ramsey County also filed a motion for summary judgment. However, because the tax court found that res judicata and collateral estoppel barred the county’s claim, it did not consider the merits of the county’s motion.

      . The reason for the security system is that approximately 65 percent of RER residents suffer from Alzheimer’s or other forms of dementia.

      . The county also assessed taxes for tax year 1995, and the parties later stipulated to CIIR's exemption for that year.