text:
    2004 ND 128
    Agnes AZURE and Pete Azure, Plaintiffs and Appellants v. BELCOURT PUBLIC SCHOOL DISTRICT, Defendant and Appellee.
    No. 20030338.
    Supreme Court of North Dakota.
    June 30, 2004.

      Timothy Q. Purdon (argued), Thomas A. Dickson, and Justin D. Roness of Dickson & Purdon, Bismarck, N.D., for plaintiffs, and appellants.
    Jason R.,.Vendsel (argued) of McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Agnes Azure and Pete Azure (“Azures”) appeal from the district court’s grant of summary judgment, dismissing their negligence action against the Bel-court Public School District (“School District”) for injuries Agnes Azure received while employed at the Turtle Mountain Community Middle School (“Middle School”). Because the Azures failed to raise a genuine issue of material fact precluding summary judgment, we affirm.

I

[¶ 2] Agnes Azure was employed by the United States Bureau of Indian Affairs (“BIA”) as a special education teacher at the Middle School. On March 29, 2000, Agnes Azure was performing lunchroom supervisory duty in the Middle School’s cafeteria. A fight began between two students and Agnes Azure intervened, assisted by Tim Johnson, a BIA employee also performing lunchroom supervisory duty. During the altercation,' Agnes Azure was injured, suffering a traumatic brain injury that resulted in an inability to return to work.

[¶ 3] The lunchroom is located in a building adjacent to the Middle School. The lunchroom building and the building that houses the Middle School are both BIA-owned buildings. The Middle School is a state-accredited school, operated jointly by the School District and the BIA. The BIA teachers had supervised the lunchroom since 1981 under a BIA team concept plan established through a collective bargaining agreement between the BIA and its employees.

[¶ 4] At the time of the incident, approximately 400 students were enrolled at the Middle School. Approximately 370 of those students were American Indian. The Middle School received funds from the BIA and from the State of North Dakota through the School District, a political subdivision. The BIA provided funds for the American Indian students, and the State provided funds for all of the students. Approximately half of the 60 Middle School teachers were BIA employees and half were School District employees. Louis Dauphinais, the principal of the Middle School, was a BIA employee who exercised control and authority over both BIA and School District employees at the Middle School through an arrangement initially established in 1991 under a cooperative agreement. Initially, the agreement was renewed annually. It had not been formally renewed for three to five years before this incident; however, the relationship between the BIA and the School District as established under the cooperative agreement was allegedly continued by the parties. Principal Dauphi-nais’s immediate supervisor was Dr. Loretta DeLong, a BIA line officer. Dr. Viola LaFountaine, Superintendent of the School District, exercised supervisory powers and responsibilities over School District employees, but had allegedly ceded those powers and responsibilities to Principal Dauphinais under the cooperative agreement. Under that de facto arrangement, Middle School teachers were accountable to Principal Dauphinais regardless of whether they were BIA or School District employees.

[¶ 5] On August 7, 2001, Agnes Azure sued the School District, alleging it had negligently failed to maintain a safe environment for her at the Middle School and, as a result of that negligence, she was injured. Pete Azure sued for loss of consortium. The Azures’ actions were contained in the same complaint.

[¶ 6] The School District moved for summary judgment on January 22, 2003, arguing it did not have control over the lunchroom where Agnes Azure was injured and, alternatively, even if the School District had control, it did not breach its duty of care. The district court determined the School District “did not have any ownership, supervision or control of the building or activities at the time of the injury,” therefore, it did not owe a duty of care to Agnes Azure, as a matter of law. The district court granted the School District’s motion and dismissed the action with prejudice.

[¶ 7] The Azures appeal, arguing the district court erred in granting summary judgment because the issues of whether the School District exercised control over the Middle School and breached its duty of care are questions of fact for a jury to determine.

II

[¶ 8] Summary judgment is a procedural device for the prompt and expeditious disposal of an action without a trial if a party is entitled to judgment as a matter of law, and no dispute exists as to the material facts or the reasonable inferences to be drawn from the undisputed facts, or if resolving disputed facts will not change the result. Groleau v. Bjornson Oil Company, 2004 ND 55, ¶ 5, 676 N.W.2d 763; N.D.R.Civ.P. 56. The moving party has the burden of showing no genuine issue of material fact exists and they are entitled to judgment as a matter of law. Groleau, at ¶ 5. This Court reviews the evidence in a light most favorable to the opposing party and gives that party the benefit of all favorable inferences. Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551. In Hurt, we stated:

In considering a motion for summary judgment, a court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate. Matter of Estate of Otto, 494 N.W.2d 169, 171 (N.D.1992). Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474-75 (N.D.1991). The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741, 746 (N.D.1991).

1999 ND 12, ¶ 8, 589 N.W.2d 551. When no pertinent evidence on an essential element of the claim is presented to the trial court in opposing a motion for summary judgment, it is presumed no such evidence exists. Koehler v. County of Grand Forks, 2003 ND 44, ¶ 9, 658 N.W.2d 741. Whether a district court appropriately granted summary judgment is a question of law subject to a de novo standard of review on the entire record. Id. at ¶ 10.

[¶ 9] Negligence actions involve issues of fact and are generally not appropriate for summary judgment. Groleau, 2004 ND 55, ¶ 6, 676 N.W.2d 763; (citing Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343). An actionable negligence “consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty.” Groleau, at ¶ 6; Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. To establish an actionable negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Groleau, at ¶ 6; Rogstad, at ¶ 12. Generally, the existence of a duty is a preliminary question of law for the court to decide. Groleau, at ¶ 6; Rogstad, at ¶ 12. When a duty does not exist, there is no negligence. Rogstad, at ¶ 12. If determining the existence of a duty depends on resolving factual issues, the facts must be resolved by the trier of fact. Groleau, at ¶ 6. However,. “[i]ssues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts”. Groleau, at ¶ 6.

in

[¶ 10] To prevail on their negligence claim, the Azures must first establish that the School District had a duty to protect Agnes Azure from injury. On appeal, the Azures and the School District both argue this case under the legal theory of premises liability. However, this case was not initially pled under a premises liability theory and premises liability issues are not presented here. The Azures’ complaint stated the basis for their negligence claim as “the Belcourt Public School District, through the acts and omissions of its employees acting within the scope of their employment, negligently failed to maintain a safe working environment for Mrs. Azure.” The conclusive issue in this case is whether the School District had a duty to provide a safe environment for Agnes Azure. “Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” 57A Am. Jur. 2d. Negligence § 89 (1989 & Supp. 2002). The Azures must show the School District had a legal obligation to provide a safe environment for Agnes Azure in the Middle School lunchroom. Whether the relation between two parties is such that it gives rise to a duty is a question of law for the court to decide. See Groleau, 2004 ND 55, ¶ 6, 676 N.W.2d 763 (holding that whether a duty exists is generally a question of law).

[¶ 11] The Azures argue the district court erred in granting summary judgment by improperly concluding the School District did not have control over the lunchroom as a matter of law and, therefore, it did not owe Agnes Azure a duty to provide a safe environment. The Azures rely on Doan v. City of Bismarck, 2001 ND 152, 632 N.W.2d 815, for the proposition that the question of control is a disputed question of fact inappropriate for summary judgment, and assert our holding in Doan controls this case. The essential facts of this case are distinguishable from those in Doan, and the Azures reliance on Doan is misplaced. Doan was a premises liability case in which the Doans sued the City of Bismarck, the owner of the property where the injury occurred, which had allegedly delegated its responsibility to an independent contractor. Doan, at ¶¶ 2-5. Because, “under premises liability law, a property owner must have had control over the property where an injury occurred in order to find the owner owed a duty to an injured party,” control was an essential prerequisite for determining premises liability. Doan, at ¶ 13. Unlike Doan, this is not a premises liability action and, here, the Azures have not sued the owner of the premises where the injury occurred. Here, the essential prerequisite is to establish a relationship through supervisory and operational controls that gives rise to the School District’s duty to protect Agnes Azure from injury in the Middle School lunchroom. Without establishing supervisory or operational control of the lunchroom, the supervision plan, or of Agnes Azure, there is no relationship between the parties rising to a duty and no liability for negligence.

[¶ 12] The Azures assert the facts and inferences to be drawn raise genuine material, issues regarding the School District’s control of the lunchroom and its duty of care in providing a safe working environment. The Azures contend the School District had a duty to provide Agnes Azure with a safe environment because the School District had a non-delegable responsibility to exercise ordinary care to keep the lunchroom in a safe condition for its foreseeable use, and the School District exercised control over the Middle School, the teachers, and the students at the time of the incident. In support, the Azures rely on evidence of certain facts they allege raise a genuine issue of material fact: (1) the School District admitted in its answer that it administers and operates a school at the Middle School; (2) the Middle School was a state-accredited school through the School District; (3) the Middle School received per-pupil state funding; (4) the Middle School’s principal acted as the de facto representative of the School District at the Middle School in exercising control over the Middle School teachers, students, and facilities; (5) the School District exercised direct control over the lunchroom through Tim Johnson who, at the time of the incident, it considered a School District agent; and, (6) the remedial measures established after the incident utilize School District employees, which supports the School District was involved with the control over the lunchroom.

[¶ 13] For purposes of summary judgment, we review the evidence in a light most favorable to the Azures. Therefore, without deciding, we will assume the School District, as a state entity receiving state accreditation and funding, maintains control over some operational aspects of the Middle School and we assume, again without deciding, that it fulfills its operational responsibilities through Principal Dauphinais under a de facto arrangement. However, resolution of those factual issues in the Azures’ favor does not alter the result. On this record, there is still no evidence presented that establishes the School District’s control over some of the Middle School operations included the lunchroom, the lunchroom supervision plan, or BIA employee Agnes Azure.

[¶ 14] Agnes Azure was a BIA employee performing lunchroom supervisory duties established through an agreement between the BIA and its employees. The incident occurred in the Middle School lunchroom located in a BIA-owned building. Since 1981, the BIA maintained exclusive control over the lunchroom supervision plan. There is no evidence to show the School District ever had operational control over the lunchroom supervision plan or that the BIA ever relinquished operational control over the activities and supervision of the lunchroom to the School District. At the time of Agnes Azures’ injury, the lunchroom supervision plan was produced and managed exclusively by the BIA, and the supervisory responsibilities were performed exclusively by BIA teachers under the 1981 collective bargaining agreement. There is no evidence showing the School District or School District employees participated in the operational management or control of the lunchroom supervision plan.

[¶ 15] The Azures allege the School District’s direct control in the lunchroom was established by the presence and actions of Tim Johnson, a BIA employee whom the School District considered its employee or agent. The Azures rely on the School District’s answer to an interrogatory which stated: “Please list ... all employees/agents who were present at the time the [sic] Agnes Azure was injured.” The School District responded that Tim Johnson was present during the incident. Johnson’s deposition evidenced he was present during the incident but that he was not an employee of the School District. He was an employee of the BIA and was performing lunchroom supervisory responsibilities in that capacity. The evidence does not support that School District employees participated in the lunchroom supervision plan, nor does it support the Azures’ assertion of direct control in the lunchroom at the time of the incident through Johnson’s presence or actions.

[¶ 16] The Azures assert the remedial measures established after the incident that allegedly now utilize School District employees somehow permit an inference that the School District was involved with supervisory control over the lunchroom at the time of the incident. The evidence in the record does not support that assertion. Again, the record does not contain facts or support an inference evidencing the School District had a responsibility to provide, manage, or participate in the operational control of the lunchroom or the lunchroom supervisory plan when Agnes Azure was injured.

[¶ 17] The Azures have failed to raise a genuine issue of fact establishing a relationship between Agnes Azure and the School District that imposed a legal obligation on the School District to provide a safe environment for Agnes Azure in the Middle School lunchroom. Because the Azures have failed to show the School District ever owed a duty to Agnes Azure, we need not decide whether the School District’s duty was non-delegable. Viewing the evidence and all reasonable inferences to be drawn in a light most favorable to the Azures, we conclude no triable issues of fact exist.

IV

[¶ 18] The Azures also argue the School District breached its duty of care. Because we have determined the School District did not owe Agnes Azure a duty of care, we do not reach this issue.

V

[¶ 19] Whether the School District had a duty to provide a safe environment in the Middle School lunchroom for Agnes Azure is a question of law. After reviewing the facts in a light most favorable to the Azures, we conclude the Azures have not presented facts or drawn reasonable inferences from the undisputed facts that would allow a fact finder to reasonably find that the School District had a duty to protect Agnes Azure from injury in the lunchroom.

[¶ 20] The Azures failed to raise a genuine issue of material fact precluding summary judgment; therefore, we affirm the district court’s grant of summary judgment in favor of the School District.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2004 ND 136
    STATE of North Dakota, Plaintiff and Appellee v. Susan K. KROUS, Defendant and Appellant.
    No. 20030372.
    Supreme Court of North Dakota.
    June 30, 2004.

      Susan Schmidt, Bismarck, N.D., for defendant and appellant.
    Julie Ann Lawyer, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Susan Krous appeals a second amended criminal judgment entered when her probation for a drug related conviction was revoked. She also appeals the trial court’s order denying her motion to suppress. We affirm, concluding the search of Krous’s residence was a valid probationary search.

I

[¶ 2] Krous pled guilty to two counts of Delivery of a Controlled Substance and one count of Conspiracy to Deliver a Controlled Substance. She was sentenced to imprisonment and probation. Once released and on probation, she was subject to the following conditions:

Condition (2)(g) Defendant shall submit to a medical examination or other reasonable testing including the Breathalyzer, Intoxilyzer, blood samples or urine samples for the purpose of determining the use of alcohol or controlled substances whenever requested by any probation officer.
Condition (2)(h) Defendant shall submit to search of her person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant.

Upon meeting with her probation officer, Krous initialed next to each condition of probation.

[¶ 3] Krous’s initial probation officer was Brian Weigel. However, she was transferred to another probation officer, Sheila Schaefer. Around May 2003, an anonymous caller informed Weigel that Krous was altering her urinalysis in violation of condition (2)(g) of her probation. On April 29, 2003, Detective Kenen Kaizer of the Bismarck Police Department notified Weigel that Krous had been seen in a car with Shawn Barth in the late hours of April 28, 2003, or early hours of April 29, 2003. Detective Kaizer told Weigel that Krous had hindered the capture of Barth by stating that no one had been in the vehicle with her, when Barth had actually gotten out of the car and fled on foot. The next day, a witness positively identified Barth as the man in the car with Krous. At the time, Barth was a known drug user and drug trafficker and was wanted on warrants. After hearing Krous was seen with Barth, Weigel called Schaefer who informed him that Krous had not reported, that she could not get in contact with Krous, and that Krous was not returning her calls. Weigel took Krous’s file back from Schaefer.

[¶ 4] The same morning Krous was seen with Barth, Weigel and the detective conducted a probation search of Krous’s residence using the Special Incidents Unit of the Bismarck Police Department because of Barth’s history of violence and weapons and because he was a fugitive from justice. Parked outside Krous’s residence was the car in which Krous was seen with Barth. Weigel attempted to telephone Krous, but she would not answer the call. The special incidents team knocked on Krous’s door. When she answered the door, they “took her to the ground” and verified no one else was in the home. They did not ask her for permission to search her residence. Krous was then allowed up. An extensive search was conducted, and illegal drugs and drug paraphernalia were found.

[¶ 5] Based on the evidence discovered in the search and Krous’s probation violations, the State petitioned to revoke Krous’s probation. Under N.D.R.Ct. 3.2, Krous moved to suppress the evidence obtained in the search, arguing officers must first ask her permission to search and if she withheld that permission to search, her probation could be revoked. She argues that officers had no authority to perform a warrantless search of her residence if she denied them permission to search.

[¶ 6] The State failed to respond to Krous’s motion to suppress. Due to that failure, Krous sent a letter to the trial court requesting that it cancel the hearing and grant her motion to suppress. She argued that according to Rule 3.2, the evidence should have been suppressed because the State failed to provide a timely brief in opposition to her motion.

[¶ 7] The trial court chose to discuss Krous’s request to cancel the hearing at the beginning of the hearing on the motion to suppress. The trial court allowed each side to present an argument regarding the Rule 3.2 issue. Ultimately, the trial court allowed the State to present its case opposing the motion to suppress and assured the parties it would decide the Rule 3.2 issue after doing further research. In its Memorandum Opinion and Order, the trial court concluded that while a non-response is acknowledgment that the motion is meritorious, it does not mean the motion must be granted. Based on the merits of the pleadings and the hearing, the trial court denied Krous’s motion to suppress. Krous appeals that order, the subsequent second amended criminal judgment, and the order revoking her probation for a drug related conviction.

II

[¶ 8] On appeal, Krous argues the evidence obtained in the probationary search of her residence should have been suppressed.

A

[¶ 9] Krous argues that because the State failed to provide a timely brief in opposition to her Rule 3.2 motion to suppress, her motion should have been granted. We disagree.

[¶ 10] Rule 3.2 states:

(a) ... Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion. If any party who has timely served and filed a brief requests oral argument, the request must be granted.... The court may require oral argument and may allow or require testimony on the motion....
(b) Failure to File Briefs. Failure to file a brief by the moving party may be deemed an admission that, in the opinion of party or counsel, the motion is without merit. Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.

N.D.R.Ct. 3.2(a)—(b) (emphasis added). Our Court specifically amended N.D.R.Ct. 3.2 to include the discretionary language emphasized above. See Memo to Joint Procedure Committee 93-97 (January 16, 1996); Memo to Joint Procedure Committee 34-39 (March 23, 1984). Effectively, the decision to allow a hearing on a Rule 3.2 motion is discretionary even if the opposing party failed to file a brief. Therefore, the issue in this case becomes whether the trial court abused its discretion when it allowed the State to put on evidence at the motion to suppress hearing and when it considered the merits of that evidence after the State failed to file a brief. A trial court judge “may require oral argument and may allow or require testimony on” a Rule 3.2 motion. N.D.R.Ct. 3.2(a).

[¶ 11] The trial court heard arguments from both sides as to whether the State should be allowed to present evidence at the hearing. In addition, the trial court deferred its decision until it could do more research regarding Rule 3.2. Failure to file a brief in response to a Rule 3.2 motion does not automatically grant the relief requested in the motion. Hartman v. Hartman, 466 N.W.2d 155, 156 (N.D.1991). It is within the trial court’s discretion whether to allow the State to put on evidence during the motion to suppress hearing and whether to consider the State's evidence when deciding the merits of the motion to suppress. We conclude the trial court did not abuse its discretion.

B

[¶ 12] Krous argues the word “submit” in condition (2)(h) of her conditions of probation requires a person conducting a probationary search to first ask the probationer’s permission to search. She argues that if a probationer denies permission to search, probation may be revoked, but she argues that the person conducting a probationary search may not then execute a warrantless search. Therefore, she argues that because no one asked her permission to search, the evidence obtained in this warrantless search should be suppressed. We disagree.

[¶ 13] Condition (2)(h) of Krous’s conditions of probation states that she “shall submit to search of her person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant.” Section 12.1-32 — 07(4)(n), N.D.C.C., expressly provides that the conditions of probation may require the probationer to “[s]ubmit the defendant’s person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant.”

[¶ 14] On appeal Krous requests this Court to interpret the word “submit” in her condition of probation and in N.D.C.C. § 12.1-32-07(4)(n). Issues of interpretation and application of statutes are questions of law fully reviewable by this Court. State v. Norman, 2003 ND 66, ¶ 14, 660 N.W.2d 549 (quoting Overboe v. Farm Credit Servs., 2001 ND 58, ¶ 9, 623 N.W.2d 372). Krous does not argue in the alternative, that the underlying search was unconstitutional even if we disagree with her interpretation of the word “submit.” Therefore, interpretation of her condition of probation is a question of law.

[¶ 15] Krous requests that we adopt Oregon authority supporting her argument. See State v. Gulley, 324 Or. 57, 921 P.2d 396 (1996); State v. Hindman, 125 Or.App. 434, 866 P.2d 481 (1993); State v. Davis, 133 Or.App. 467, 891 P.2d 1373 (1995). Oregon courts hold that the word submit “leaves in the hands of the probationer the power to resist a search that the probation officer may wish to make,” but that the probationer then risks potential probation revocation. Gulley, 921 P.2d at 398; see also Hindman, 866 P.2d at 483; Davis, 891 P.2d at 1378-79. Oregon courts also hold that a probationer’s consent to search is not prospective consent and must be asked for or given before the search is conducted. Id.

[¶ 16] In State v. Schlosser, 202 N.W.2d 136 (N.D.1972), we held that a virtually identical condition of probation was reasonable under the Fourth Amendment to the United States Constitution. Id. at 139. In Schlosser, we concluded that a probationer’s Fourth Amendment rights were limited by his status as a probationer. Id. In addition, we concluded the courts have a responsibility to regulate a probationer’s activities to help in his rehabilitation. Id. We held the condition was an element of a regulatory program, which does not require the probationer’s consent. Id. We decline to adopt Oregon’s interpretation of this condition of probation including the word “submit,” and we interpret this condition of probation to include prospective consent to reasonable searches.

[¶ 17] We find support for our conclusion in numerous other jurisdictions. The Alaska Court of Appeals stated, “[i]t appears, however, that Oregon stands alone in their interpretation of the disputed language.” State v. James, 963 P.2d 1080, 1083 (Alaska Ct.App.1998). The Alaska Court of Appeals cited numerous jurisdictions that were presented with the interpretation of conditions requiring a probationer to “submit” to a search and that held such conditions authorize a warrant-less probationary search. See id. (citing Owens v. Kelley, 681 F.2d 1362 (11th Cir.1982); People v. Kasinger, 57 Cal.App.3d 975, 129 Cal.Rptr. 483 (1976); People v. Turner, 54 Cal.App.3d 500, 126 Cal.Rptr. 652 (1976); State v. Peters, 130 Idaho 960, 950 P.2d 1299 (Ct.App.1997); State v. Benton, 82 Ohio St.3d 316, 695 N.E.2d 757 (1998); Himmage v. State, 88 Nev. 296, 496 P.2d 763 (1972); People v. Fortunato, 50 A.D.2d 38, 376 N.Y.S.2d 723 (N.Y.App.Div.1975); State v. Martinez, 811 P.2d 205 (Utah Ct.App.1991); Anderson v. Commonwealth, 25 Va.App. 565, 490 S.E.2d 274 (1997)).

[¶ 18] The rationale provided, when rejecting the assertion that the word “submit” requires submission to a search only when requested to do so, is that such a construction would render the condition meaningless and would defeat the purposes of such conditions to deter further offenses by the probationer and to determine compliance with the terms of probation. See Himmage, 496 P.2d at 765.

[¶ 19] We agree with the courts allowing warrantless probationary searches when the conditions of probation include a condition such as in (2)(h) or in N.D.C.C. § 12.1-32-07(4)(n), and we hold the condition of probation in this case which includes the word “submit” means that the probationer consents to reasonable warrantless searches without any request for consent by officers. Krous consented to having her Fourth Amendment rights limited when she accepted the conditions of probation.

III

[¶ 20] Finally, Krous argues the manner of the search was unreasonable in violation of the Fourth Amendment, because she argues the officers took her to the ground when she opened the door.

[¶ 21] The Alaska Court of Appeals recognized the ability of a probation officer to abuse this grant of authority by searching a probationer’s person, vehicle, or place of residence to harass a probationer. James, 963 P.2d at 1083-84. We also recognize this potential abuse. Any search conducted under a condition of probation must be conducted in a reasonable manner. U.S. Const. amend. IV. The terms of the condition do not authorize searches conducted in an unreasonable manner.

[¶ 22] Krous’s brief on appeal states, “... the use of force to accomplish the search was an unacceptable intrusion upon her privacy in these circumstances.” That part of one sentence is her entire argument on this issue. Krous cites no authority to support her conclusion that the use of force in this case was unreasonable. We have repeatedly stated a party that wishes to make a constitutional argument must fully brief the issue. State v. Causer, 2004 ND 75, ¶ 56, 678 N.W.2d 552. In addition, Krous did not raise this argument to the' trial court. We have also repeatedly stated that we will not address arguments raised for the first time on appeal. See, e.g., State v. Kelly, 2001 ND 135, ¶ 29, 681 N.W.2d 167. Therefore, we will not address this argument on appeal.

IV

[¶ 23] We affirm Krous’s second amended criminal judgment, the order denying suppression of the evidence discovered in the probationary search, and the order revoking her probation.

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


text:
    2004 ND 135
    Paul GARTNER, Petitioner and Appellant v. JOB SERVICE NORTH DAKOTA, Respondent and Appellee.
    No. 20040038.
    Supreme Court of North Dakota.
    June 30, 2004.

      Bradley D. Peterson (argued) and Thomas M. Jackson (appeared), Legal Services of N.D., Bismarck, N.D., for petitioner and appellant.
    Kevin McCabe, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] Paul Gartner appeals from a judgment affirming an order by Job Service North Dakota which denied him unemployment benefits while he was enrolled at and attending the North Dakota State College of Science. We hold Job Service’s finding there was reasonable and suitable employment available to Gartner when he voluntarily left his seasonal employment to attend college is supported by a preponderance of the evidence. We affirm.

I

[¶ 2] Gartner had been employed for five years as a seasonal employee installing lawn sprinklers when he decided to enroll in a program for small engine repair at the North Dakota State College of Science. According to Gartner, the season for installing lawn sprinklers normally runs from the middle to the end of April until freeze up in October, and he typically received unemployment benefits when he was not installing lawn sprinklers. Gart-ner left his job installing lawn sprinklers at the end of August 2002 to attend school. While attending school, Gartner also began working as a full-time production welder, but he was dismissed from that job on October 1, 2002. Thereafter, on October 7, 2002, while he was enrolled in school, Gart-ner applied for unemployment benefits. Job Service denied Gartner’s request for benefits because he was attending school and failed to meet the necessary requirements for an approved training program under N.D. Admin. Code § 27-03-08-04(1). The district court affirmed Job Service’s decision.

II

[¶ 3] When an administrative agency decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the decision of the district court, although the district court’s analysis is entitled to respect if its reasoning is sound. Baier v. Job Service North Dakota, 2004 ND 27, ¶ 6, 673 N.W.2d 923. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s decision if (1) its findings of fact sufficiently address the evidence presented by the claimant and are supported by a preponderance of the evidence, (2) its conclusions of law and order are supported by its findings of fact, (3) its decision is supported by its conclusions of law, (4) its decision is in accordance with the law and does not violate the claimant’s constitutional rights, (5) its rules or procedures have not deprived the appellant of a fair hearing, (6) its conclusions of law and order sufficiently explain its rationale for not adopting any contrary recommendation by an administrative law judge, and (7) the provisions of N.D.C.C. ch. 28-32 have been complied with in proceedings before the agency. Baier, at ¶ 6. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency; rather, we determine whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence. North Dakota Dept. of Human Servs. v. Ryan, 2003 ND 196, ¶ 8, 672 N.W.2d 649.

Ill

[¶ 4] Under N.D.C.C. § 52-06-02(6), an individual may not receive unemployment benefits if the “individual is a student registered for full attendance at and is regularly attending an established school, college, or university, except as provided in subdivision a of subsection 3 of section 52-06-01.” Section 52-06-01(3)(a), N.D.C.C., provides that an unemployed individual is eligible for benefits if the individual is able to'' work and is available for suitable work and actively seeking work, provided “[t]hat notwithstanding any other provisions in this section, no otherwise eligible individual may be denied benefits for any week because the individual is in training with the approval of the Bureau by reason of the application of provisions of this subsection relating to availability for work and to active search for work.”

[¶ 5] Chapter 27-03-08, N.D. Admin. Code, “governs the administration of the North Dakota Unemployment Compensation Law as it relates to payment of benefits to persons in approved training.” N.D. Admin. Code § 27-03-08-01. Under N.D. Admin. Code § 27-03-08-04, approval of a training or retraining program requires:

1. Reasonable and suitable work opportunities for which the individual is fitted by training, experience, and physical capabilities do not exist in the individual’s locality.
2. The training course is commensurate with the individual’s abilities and is designed to prepare the individual for available employment.
3. The training is conducted by an agency, educational institution, or employing unit which has been approved for such training by the bureau in consultation with the state department of vocational education, when necessary, to conduct training programs.
4. The training is vocational in nature or short-term academic training vocationally directed to an occupation or skill for which there are, or are expected to be, reasonable work opportunities available to the individual.

[¶ 6] Gartner argues he is entitled to unemployment benefits under the retraining exception in N.D. Admin. Code § 27-03-08-04. He claims seasonal employment installing lawn sprinklers is unavailable in North Dakota from October until April, and he is entitled to unemployment benefits while he is enrolled in the vocational training program at the North Dakota State College of Science. Gartner argues Job Service’s decision is not in accordance with the law, because N.D.C.C. § 52-06-01(3)(a) and N.D. Admin. Code § 27-03-08-04(1) allow an unskilled worker who is otherwise entitled to unemployment benefits to acquire a skill during periods of unemployment without a loss of benefits regardless of the existence of other unskilled employment opportunities.

[¶ 7] We construe related statutory provisions and administrative regulations together to harmonize and give meaning to each provision. See Ryan, 2003 ND 196, ¶ 11, 672 N.W.2d 649. Under the plain language of N.D.C.C. § 52-06-02(6), except as provided in the retraining exception, an individual may not receive unemployment benefits if the individual is a student registered for full attendance at and is attending an established college. When that plain language is construed together with the plain language in the retraining exception in N.D.C.C. § 52-06-01(3)(a) and N.D. Admin.Code § 27-03-08-04, those provisions do not permit an unskilled, unemployed worker to receive unemployment benefits while attending college regardless of other unskilled employment opportunities. We conclude the plain language of our unemployment compensation law reflects a policy determination that unskilled, unemployed workers are not entitled to unemployment benefits while enrolled at and attending college regardless of other unskilled employment opportunities. Any change in the policy reflected by the plain language of our law is best directed to the Legislature.

[¶ 8] Gartner argues Job Service’s finding that there were reasonable and suitable work opportunities for which he was qualified in his locality is not supported by a preponderance of the evidence.

[¶ 9] Job Service found Gartner was not entitled to unemployment benefits because reasonable and suitable work opportunities for which he was fitted by training, experience, and physical capabilities existed in his locality:

The intent of the payment of job insurance benefits is to provide a means of income to those individuals who are unemployed through no fault of their own. The exception that was established for vocational training programs was devised to extend training opportunities to otherwise unemployable individuals. There is no indication the exception was intended to invite all insured workers to enhance their employability by leaving their employment to acquire academic degrees. To do so would signify only another form of scholarship program.
The facts of this case show that the claimant left his full-time seasonal employment to attend school. Although seasonal in nature, the claimant has deemed this employment suitable by returning to work for the past five years prior to attending school. The suitability of the employment is further evidenced by the fact that the claimant has returned to this employment during the 2003 summer recess. Thus, the record does not establish that there are not reasonable and suitable work opportunities, albeit seasonal in nature; for which the claimant is fitted by his training, experience, and physical capabilities.
Additionally, it has not been established that the claimant is largely unemployable and thus fits within the class of individuals for which an application to receive benefits while enrolled in a training program is intended. Stated another way, the claimant has not established that, but for the training program, he is without a supportive means of employment opportunities.

[¶ 10] Job Service found there was suitable employment available to Gartner when he voluntarily decided to quit his seasonal job in August 2002 to attend school. There was evidence Gartner quit working as a lawn sprinkler installer during the installation season when there was suitable work available. There was also evidence Gartner returned to his seasonal job installing lawn sprinklers in the spring of 2003. The evidence establishes Gartner did not meet all the requirements necessary to receive benefits while enrolled in a vocational training school. We conclude a reasoning mind could reasonably conclude, as Job Service did, that reasonable and suitable work opportunities existed for Gartner in his locality and for which he was suited by training, experience, and physical capabilities. We therefore conclude Job Service’s findings are supported by a preponderance of the evidence and support its conclusion that Gartner was not entitled to unemployment benefits while he was enrolled at and attending the North Dakota State College of Science.

IV

[¶ 11] We affirm the judgment affirming Job Service’s order.

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


text:
    2004 ND 137
    STATE of North Dakota, Plaintiff and Appellee v. Christopher GILL, Defendant and Appellant.
    No. 20030279.
    Supreme Court of North Dakota.
    June 30, 2004.

      Julie Ann Lawyer, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Todd A. Schwarz, Schwarz Law Office, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Christopher Gill appealed from an amended order deferring imposition of sentence on his plea of guilty to class C felony theft of property. We conclude the district court did not abuse its discretion in ordering that Gill pay $4,120 in restitution, and we affirm.

I

[¶ 2] In January 2002, Gill became assistant manager of gaming operations for the North Dakota Association for the Disabled (“Association”) at Chips Casino & Lounge in Bismarck. During March 2002, the chief financial officer for the Association began noticing large discrepancies in the amount of money taken in from gaming operations at Chips, and Gill was eventually charged with theft of property valued in excess of $500. On May 19, 2003, Gill pled guilty to the charge, and he received a deferred imposition of sentence. Following a restitution hearing on September 10, 2003, Gill was ordered to make restitution in the amount of $4,120 “with monthly payments to be determined by the probation officer based on the Defendant’s ability to pay.” Gill appealed.

II

[¶ 3] On appeal, Gill argues the district court erred in setting the amount of restitution at $4,120.

[¶ 4] Under N.D.C.C. § 12.1-32-08(1), courts have the authority to order a criminal defendant to pay restitution:

1. Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence it may impose, shall order that the defendant make restitution to the victim or other recipient as determined by the court, unless the court states on the record, based upon the criteria in this subsection, the reason it does not order restitution or orders only partial restitution. In determining whether to order restitution, the court shall take into account:
a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action....
b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property.
c. The likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilita-tional purpose in the case of the particular offender considered.
The court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance of any condition or conditions of probation established pursuant to this subsection.

[¶ 5] Our court’s review of a restitution order is limited to whether the district court acted within the limits set by statute, which is similar to the abuse of discretion standard. State v. Bingaman, 2002 ND 210, ¶ 4, 655 N.W.2d 57; State v. Kensmoe, 2001 ND 190, ¶ 7, 636 N.W.2d 183. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Bingaman, at ¶ 4; Kensmoe, at ¶ 7.

A

[¶ 6] Although “there must exist an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered,” State v. Pippin, 496 N.W.2d 50, 53 (N.D.1993), N.D.C.C. § 12.1-32-08 does not specify the burden of proof required to establish restitution, and we have not addressed the question.

[¶ 7] The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment allows different standards of proof to establish guilt at a criminal trial and to sustain a sentencing order, and that application of the preponderance of the evidence standard at sentencing generally satisfies due process. See United States v. Watts, 519 U.S. 148, 156-57, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Courts have overwhelmingly concluded that restitution may be based on facts which are established by a preponderance of the evidence. See, e.g., Noffsinger v. State, 850 P.2d 647, 650 (Alaska App.1993); In re Stephanie B., 204 Ariz. 466, 65 P.3d 114, 118 (2003); People v. Baumann, 176 Cal.App.3d 67, 222 Cal.Rptr. 32, 39 (1985); Benton v. State, 711 A.2d 792, 797 (Del.1998); Bakos v. State, 698 So.2d 943, 944 (Fla.App.1997); Law-renz v. State, 194 Ga.App. 724, 391 S.E.2d 703, 704 (1990); State v. Wagner, 484 N.W.2d 212, 216 (Iowa App.1992); Landes v. Commonwealth, 37 Va.App. 710, 561 S.E.2d 37, 40 (2002); Renfro v. State, 785 P.2d 491, 493 (Wyo.1990); see also 5 W. LaFave, J. Israel, N. King, Criminal Procedure § 26.6(c) (2d ed.1999). In some jurisdictions, courts have noted the preponderance of the evidence standard is dictated by statute. See, e.g., United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985); Commonwealth v. Nawn, 394 Mass. 1, 474 N.E.2d 545, 550 (1985); State v. Terpstra, 546 N.W.2d 280, 281 (Minn.1996). Compare N.D.R.Crim.P. 32(f) (providing prosecution shall establish violation of a condition of probation by a preponderance of the evidence). We conclude the State has the burden in a restitution hearr ing to prove the amount of restitution by a preponderance of the evidence.

B

[¶ 8] Gill argues the evidence was insufficient to support the $4,120 in restitution he was ordered to pay.

[¶ 9] A restitution hearing was held after Gill pled guilty to the crime. The chief financial officer for the Association testified that in March 2002 she began noticing unusual discrepancies between the amount of money reported to have been taken in and the amount actually collected in the drop boxes by dealers on the paddlewheel and blackjack tables at the Chips gaming site. Although it was not unusual to see $20 discrepancies in the amounts reported and actually collected, the chief financial officer found that between February 28, 2002, and March 22, 2002, hundreds of dollars were missing from the drop boxes on various days. She testified $300 was missing on February 28, $304 was missing on March 9, $568 was missing on March 11, $681 was missing on March 12, $796 was missing on March 15, $814 was missing on March 16, $982 was missing on March 18, and $674 was missing on March 22.

[¶ 10] Hidden video surveillance cameras revealed Gill, on March 22, turning off the regular video surveillance system, accessing the safe, and taking money from the drop boxes. Surveillance videos also showed Gill walking into Chips on two occasions and the videotape of the safe room turned off shortly thereafter. Video surveillance cameras did not record anyone else taking money out of the safe. After seeing the tape showing Gill removing money from the drop boxes, police were contacted and Gill was called in for questioning. At that time Gill turned over $1,000 to the police, even though only $674 was reported to be missing on that date.

[¶ 11] Gill testified that he had taken the $1,000 for the purpose of using the money to make up differences discovered in the pull tab jars, which “were not meeting state standards for percentage.” Gill claimed that he took only $1,000 and that other Association employees with access to the money must have taken the remainder of the missing funds. After Gill was terminated from employment with the Association, no other unusual discrepancies were discovered.

[¶ 12] The Association claimed a total of $5,120 had been taken during the relevant time period. The district court found Gill had taken the total amount of $5,120 and ordered that he make restitution of $4,120, accounting for the $1,000 he had already returned to the police. We conclude there is sufficient circumstantial and direct evidence to support the court’s order requiring Gill to pay $4,120 in restitution.

C

[¶ 13] Gill also argues the district court erred in failing to make a finding that he had the financial ability to pay the $4,120 amount of restitution.

[¶ 14] Under N.D.C.C. § 12.1-32-08(1), a court “shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay.” Other jurisdictions, either by statute or by judicial decision, place the burden upon the defendant to raise and prove an inability to pay restitution. See, e.g., United States v. Castner, 50 F.3d 1267, 1277 n. 9 (4th Cir.1995); United States v. Morrison, 938 F.2d 168, 172 (10th Cir.1991); Benton, 711 A.2d at 800; Dickens v. State, 556 So.2d 782, 785 (Fla.App.1990); State v. Goeller, 276 Kan. 578, 77 P.3d 1272, 1276 (2003); State v. Hval, 174 Or.App. 164, 25 P.3d 958, 968 (2001); State v. Boffer, 158 Wis.2d 655, 462 N.W.2d 906, 910 (1990). Courts have further held that the defendant bears the burden of proving inability to pay in revocation proceedings based on failure to pay the ordered restitution. See, e.g., People v. McPherson, 897 P.2d 923, 927 (Colo.App.1995); State v. Jones, 78 N.C.App. 507, 337 S.E.2d 195, 197 (1985); Stanfield v. State, 718 S.W.2d 734, 737 (Tex.Crim.App.1986); Keselica v. Commonwealth, 34 Va.App. 31, 537 S.E.2d 611, 613 (2000). Gill has not cited any authority to the contrary. We conclude Gill had the burden to raise and prove an inability to pay the restitution ordered.

[¶ 15] Gill neither claimed inability to pay nor offered any evidence of his financial resources in the district court. We, therefore, conclude Gill cannot now complain that the district court erred in failing to consider his financial circumstances. See Benton, 711 A.2d at 800; Dickens, 556 So.2d at 785; Goeller, 77 P.3d at 1276; Boffer, 462 N.W.2d at 910.

[¶ 16] We conclude the district court did not abuse its discretion in ordering Gill to pay restitution in the amount of $4,120.

Ill

[¶ 17] The amended order deferring imposition of sentence is affirmed.

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


author: SABERS, Justice.

text:
    2004 SD 76
    Richard C. FLUGGE, Plaintiff and Appellant, v. Barbara A. FLUGGE, Defendant and Appellee.
    Nos. 22989, 23001.
    Supreme Court of South Dakota.
    Considered on Briefs April 26, 2004.
    Decided June 2, 2004.

      John R. Pekas, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
    David Alan Palmer, Sioux Falls, South Dakota, Attorneys for defendant and ap-pellee.
   SABERS, Justice.

[¶ 1.] Richard Flugge brought a lawsuit against his former wife, Barbara Flugge, claiming abuse of process, barra-try, unlawful eviction and punitive damages. Barbara counterclaimed for intentional infliction of emotional distress and malicious prosecution. Each party moved for summary judgment and the circuit court granted the motions. Both parties appeal.

FACTS

[¶ 2.] Richard and Barbara were married on February 16, 1969 and were contemplating divorce in 1998. During the unpleasantness that surrounded the parties’ separation, Barbara filed for a temporary restraining order against Richard on an allegation that Richard assaulted her and threatened violence with a handgun. That restraining order was later extended. As a result of the protection order, Richard was required to leave the marital home. Barbara subsequently obtained another protection order against Richard based on allegations by their minor child that Richard hit him.

[¶ 3.] On January 26, 2000, the parties entered into a Stipulation and Agreement in anticipation of divorce which purported to settle all of the parties’ claims against one another. On January 31, 2000, the parties were divorced. On October 26, 2001, Richard filed a motion for change of custody. That motion was denied after a custody trial which ended on May 1, 2002. Richard initiated the present case on August 16, 2002. Barbara counterclaimed.

[¶ 4.] The trial court granted both parties’ motions for summary judgment. Richard appeals raising five issues, which we consolidate into two:

1. Whether the circuit court erred in granting Barbara’s motion for summary judgment on Richard’s claims arising out of her petitions for protection orders.
2. Whether the circuit court erred in refusing to grant Richard’s motion to strike under SDCL 15 — 6—12(f) for violation of Local Rule 11(A).

By notice of review, Barbara raises one issue:

3. Whether the circuit court erred in granting Richard’s motion for summary judgment on Barbara’s counterclaim for intentional infliction of emotional distress and malicious prosecution.

STANDARD OF REVIEW

[¶ 5.] Summary judgment is proper where,

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

SDCL 15-6-56(c).

We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. We view all reasonable infer-enees drawn from the facts in the light most favorable to the non-moving party. In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343(internal citations and quotations omitted).

[¶ 6.] 1. Whether the circuit court erred in granting Barbara’s motion for summary judgment on Richard’s claims arising out of her petitions for protection orders.

[¶ 7.] Richard’s claims are based on the protection orders obtained in 1998 and 1999 by Barbara on the allegation that Richard had been physically abusive. Richard now claims that the protection orders were falsely obtained. Although Barbara denies the allegation, she states in her brief, “for purposes of there being no genuine issues of material fact, the Court may assume, arguendo, that Richard’s assertion is true.”

[¶ 8.] Barbara filed the first petition for a protection order on September 14, 1998. The petition alleged that Richard caused, attempted to cause and inflicted fear of physical harm or bodily injury. The magistrate entered an ex parte temporary order of protection which was to expire on October 13, 1998. On September 21, 1998, the circuit court entered an order of protection. The order stated that the parties were present and represented by counsel. The court found, “without admitting to the allegations in the petition, [Richard] waives further hearing, findings of fact and conclusions of law, and stipulates to the entry of an order of protection [.] ” (Emphasis supplied.) The order was effective for one year. Among the terms stipulated by Richard were: “[Barbara] shall have sole possession of the residence” and “[Richard] shall immediately leave the residence.” Richard did not appeal entry of the protection order.

[¶ 9.] Barbara filed a second verified petition for a protection order on January 5, 1999. The second order was based on the allegation of the parties’ ten year old son that Richard hit him. The petition indicated that the child’s counselors recommended that the child not be left alone with Richard until Richard underwent a psychiatric evaluation. The petition requested an order that Richard be restricted to supervised visitation with the child and that Richard undergo psychiatric evaluation. An ex parte protection order was entered that day and set to expire on January 12, 1999. The parties, who were both represented by counsel, entered into a stipulation on January 14, 1999 that each party and the child were to undergo mental health evaluations. The court incorporated the stipulation into an order “pursuant to hearing held January 12, 1999,” that continued the order that visitation between Richard and the child be supervised. Richard did not attempt to set aside the order and there is no indication in the record that he refuted the allegation of abuse. Several months later, the minor child indicated to his counselors that his allegation that Richard hit him was false.

[¶ 10.] The January 26, 2000 Stipulation and Agreement purported, among other things, to settle custody of the minor child. Contrary to the spirit of the agreement, Richard made a motion to change custody without any showing of a substantial change in circumstances. The trial court denied the motion, finding it “frivolous.” Undeterred, Richard brought the present action within weeks of settling payment of Barbara’s attorney fees from the action that was determined to be frivolous.

[¶ 11.] The circuit court granted both motions for summary judgment, finding that the parties’ claims were “entirely derivative of the initial divorce proceeding” and “the sheer number of times the parties have attempted to litigate the same issues in this judicial circuit is also determinative as a matter of res judicata.” The court also found that the parties “again attempt to use the judicial system for the insincere purpose of dragging out divorce hostility.”

[¶ 12.] The circuit court came to its conclusion by “synthesizing the principle of res judicata with the holding in [Christians v. Christians, 2001 SD 142, 637 N.W.2d 377].” The court noted that this Court had recognized in Christians that a cause of action by a former spouse against the other spouse “requires the existence of a tort independent from the divorce proceeding.” The circuit court went on to note that the parties’ claims were completely derivative of the initial divorce proceeding and concluded, “both doctrinally and [as] a matter of common sense, res judicata bars issues previously litigated to a final result from being re-litigated in a subsequent and distinct lawsuit.”

[¶ 13.] In Christians, we acknowledged that conduct leading to the dissolution of a marriage does not constitute grounds for a claim of intentional infliction of emotional distress. However, we noted that independent torts are actionable. Christians, 2001 SD 142 at ¶ 21, 637 N.W.2d at 382 (citing Henry v. Henry, 534 N.W.2d 844, 846 (S.D.1995); Scotvold v. Scotvold, 68 S.D. 53, 55, 298 N.W. 266, 269 (1941)). We held that to recover for a claim of intentional infliction of emotional distress, the claimant must establish the necessary elements of the tort separate from the grounds for divorce. In a special concurrence, Justice Konenkamp stated, “to ensure that these tort claims are not conceived out of petty spite or as leverage for concessions on divorce issues, trial courts [ ] must sift out unmeritorious suits.” Christians, 2001 SD 142 at ¶ 41, 637 N.W.2d at 385 (Konenkamp, J., concurring specially).

[¶ 14.] The elements we consider when determining whether an issue is res judicata are well settled. They are:

1) whether the issue decided in the former adjudication is identical with the present issue;
2) whether there was a final judgment on the merits;
3) whether the parties are identical; and
4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication.

Faulk v. Faulk, 2002 SD 51, ¶ 17, 644 N.W.2d 632, 635 (additional citations omitted). The only element apparently disputed by Richard is whether he had a full and fair opportunity to litigate his claims. He asserts that since Christians was not decided until after the divorce was finalized, element four was not satisfied. However, since 1941, this Court has acknowledged the right of one spouse to bring a civil suit against the other spouse. Scotvold, 68 S.D. at 55, 298 N.W. at 269. See also, Gassman v. Gassman, 296 N.W.2d 518, 522 (S.D.1980); Henry, 534 N.W.2d at 847. Richard’s assertion that he did not have a full and fair opportunity to litigate his current claims because the law did not allow it at the time is without merit.

[¶ 15.] Every one of Richard’s claims is based on the argument that the protection orders were falsely obtained. Richard was present and represented by counsel when the orders regarding both petitions for protection orders were entered. In both cases, he stipulated to entry of orders and did not raise the substantive argument that the orders were falsely obtained. He did not request reconsideration of either order. He did not appeal either order. The primary question at a hearing on whether to enter a protection order is whether there are legitimate grounds to enter the order. At no time during those proceedings did Richard dispute the grounds to enter the order. He points to no procedural or legal barrier preventing him from arguing the validity of the orders and to no barrier erected by the circuit court to raising such arguments. In short, element (4) of res judica-ta is satisfied because Richard had a full and fair opportunity to raise the argument that the protection orders were based on false premises. He declined to do so and now in a collateral lawsuit he wishes to re-litigate the precise question to which he stipulated, satisfying element (1). Principles of res judicata and judicial economy mitigate against allowing such litigation.

[¶ 16.] The remaining elements of res judicata are likewise met. There was a(2) final judgment on the merits with regard to both protection orders and (3) the parties are identical. The trial court did not err in granting summary judgment on Richard’s claims.

[¶ 17.] Even assuming Richard did not have a full and fair opportunity to litigate these claims, he has waived the claims through the Stipulation and Agreement he entered into with Barbara on January 26, 2000. The Stipulation and Agreement recites in part:

Whereas plaintiff and defendant contend that it is the purpose of their Stipulation and Agreement to make a complete and final settlement of all rights and claims that each may have against the other, to provide fairly and adequately for their support and maintenance, to memorialize the separation of the parties and their Agreement, to finalize the division of property owned by them or either of them, and all other rights of property otherwise growing out of the marriage relationship that either of them now has or may hereafter have or claim to have in any property of every kind, nature, and description, real or personal, now owned or which may hereafter be acquired by either of them, and acknowledgment by the parties that this Agreement is subject to the approval of the Court, and that if the Court finds grounds for and makes a decree of divorce for either party, the conditions.of this agreement, or any part thereof, may be incorporated in the Judgment and Decree of Divorce, as the Court shall deem neeessary[.]

(Emphasis supplied.) Richard argues, “there is no language in this phrase, or anywhere else in this document, that can be construed as a total release.” We disagree. The first clause of this recital makes clear that the parties’ intent in making the Stipulation and Agreement was to “make a complete and final settlement of all rights and claims that each may have against the other.”

[¶ 18.] We have held that waiver occurs when:

[O]ne in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the exercise of the right.

Action Mechanical, Inc. v. Deadwood Historic Preservation Com’n., 2002 SD 121, ¶ 18, 652 N.W.2d 742, 749 (additional citations omitted). Richard argues that the doctrine of waiver does not apply because “[Barbara] fails to show that ‘full knowledge’ was present” until she acknowledged that the protection orders were falsely obtained. This argument is without merit. One must presume that if Barbara lied in either petition, Richard would have known at the moment he saw the petitions since both were based on allegations about his own conduct.

[¶ 19.] In Henry, we held that a Stipulation and Agreement containing a clause that released the spouses “from any and all rights, claims, demands or obligations arising out of or by virtue of the marital relation” was sufficient to preclude the wife from suing the husband for pre-di-vorce tortious conduct. Henry, 534 N.W.2d at 847. Likewise, the language agreed to in this Stipulation and Agreement was sufficient to waive claims between the parties accruing prior to the signing of the Stipulation and Agreement.

[¶ 20.] Because Richard is not entitled to compensatory damages under any of the foregoing claims, his claim for punitive damages must also fail. Schaffer v. Edward D. Jones & Co., 521 N.W.2d 921, 928 (S.D.1994) (“this Court has consistently held that punitive damages are not allowed absent an award for compensatory damages.”).

[¶21.] 2. Whether the circuit court erred in refusing to grant Richard’s motion to strike under SDCL 15-6-12(f) for violation of local rule 11(A).

[¶22.] Richard asserts that the trial court erred in refusing to strike Barbara’s motion for summary judgment under SDCL 15 — 6—12(f). Richard contends that the court should have stricken the motion because Barbara failed to comply with local rule 11(A) which provides:

A party moving for summary judgment must attach to the motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Each material fact in this local rule’s required statement must be presented in a separate, numbered statement and with appropriate citation to the record in the case.

Barbara’s counsel did not file her statement of undisputed material facts along with the motion for summary judgment. The statement was delivered to opposing counsel approximately four hours before the hearing. Richard claims he was “sandbagged” at the hearing and therefore “lost his case.”

[¶ 23.] Richard does not cite a reference to the settled record wherein he requested a motion to strike the summary judgment motion. In its memorandum opinion, the trial court inserted a footnote which provided in part:

Plaintiff additionally moved to strike defendant’s counterclaim for intentional infliction of emotional distress pursuant to 15 — 6—12(f). As plaintiff moved for summary judgment as to the matter of intentional infliction of emotional distress, plaintiffs Motion to Strike need not be addressed.

(Emphasis supplied.)

[¶ 24.] The trial court addressed the motion to strike:

In regard to the plaintiffs motion to strike, the court will normally not strike a pleading or impose sanctions until a party first brings a motion to compel[,] which is then not followed. Additionally, plaintiff only filed his motion to strike at the time of the hearing in this matter and did not notice this issue for hearing. Therefore, motion to strike is denied.

[¶ 25.] Richard argues on appeal that the court’s failure to grant his motion to strike the summary judgment (not the counterclaim) is his basis for asserting error. His argument is that the trial court erred in refusing to enforce the local rule requiring filing of the statement of undisputed material facts. It is somewhat unclear whether the trial court is referring to the same motion to strike as Richard is relying upon in this appeal. Richard does not point to any place in the settled record wherein he made a motion to strike Barbara’s summary judgment motion, nor has one been found on our review of the record. Regardless, the discussion with the trial court regarding Barbara’s failure to file the statement reveals no error by the trial court.

[¶ 26.] At the hearing, Richard’s counsel stated that he “would like to discuss [ ] the local rules” in light of Barbara’s untimely submissions. He argued that Local Rule 11(c) should apply. The trial court stated:

[T]he Rule does provide it can be dismissed; however, one provision, which is always considered by the court on such a Rule to dismiss, which is considered a drastic measure, is whether or not you are prejudiced by the failure to submit, and if there are other remedies which— such as continuance, which can be used to remedy, a default for a failure to comply, short of dismissal.

Local Rule 11(c) does not directly provide for dismissal, but rather provides:

All material facts set forth in the statement that the moving party must serve shall be admitted unless controverted by the statement required to be served by the opposing party.

Regardless, the trial court was correct in its statement that the court could consider less drastic measures, such as a continuance. Local Rule 6 provides, “[a] judge [ ] may dispense with a circuit civil rule of practice as a matter of discretion.” In accord with this grant of discretion, the court inquired whether Richard was prejudiced by the late filing. His counsel responded that he did not know, but that he wanted to proceed with the hearing. He indicated that he would go through the submissions “later on” and requested that “if there is something that I have to bring back up to the court, I would like to have the opportunity to do that.” He then proceeded to present arguments on his motion for summary judgment. At the close of the hearing, the court asked whether Richard would like additional time to file responses to Barbara’s submissions. Richard requested a week, stating, “if I need to file anything, I’m sure it would be very, very short.” There is no indication in the record that Richard brought anything to the court. Nonetheless, Richard argues that he lost his case because of “sandbagging” by opposing counsel.

[¶ 27.] Richard’s bare assertion of prejudice is insufficient to support a holding that the trial court abused its discretion in refusing to strike the motion or dismiss the counterclaim. Richard declined to accept the offered continuance, and fails to direct the Court to any statement within Barbara’s submission that came as a surprise or prejudiced his ability to proceed at the summary judgment motion hearing. Counsel made no attempt for any relief under SDCL 15-6-56(f).

[¶ 28.] Finally, we note that SDCL 15-6-12, by its terms does not provide grounds for striking Barbara’s motion for summary judgment. The statute provides:

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

SDCL 15 — 6—12(f). A motion for summary judgment is not a pleading. See SDCL 15-6-7(a). Even assuming the motion qualified as a pleading, Richard fails to assert that the motion sets forth “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” SDCL 15 — 6—12(f). The trial court’s denial of Richard’s motion to strike is affirmed.

[¶ 29.] 3. Whether the circuit court erred in granting Richard’s motion for summary judgment on Barbara’s counterclaim for intentional infliction of emotional distress and malicious prosecution.

[¶ 30.] Barbara argues by notice of review that the trial court should not have granted Richard’s motion for summary judgment on her counterclaims for intentional infliction of emotional distress and malicious prosecution. She asserts “she had to fight back” because Richard initiated this suit approximately seventeen days after signing a stipulation agreement and paying her attorney fees from the last frivolous action. The trial court used the same analysis to grant Richard’s summary judgment motion as it did to grant Barbara’s motion, ie. that her claims were derivative of the divorce action and res judicata.

[¶ 31.] Barbara’s counterclaims for malicious prosecution and intentional infliction of emotional distress cannot be deemed “derivative” of the divorce proceeding. Both claims are based on torts alleged to have occurred post-divorce, therefore, the trial court’s application of Christians to her claims was misplaced. Likewise, the claims raised by Barbara are not res judicata because they could not have been litigated prior to her bringing the counterclaim in this action. Similarly, the trial court could not have granted summary judgment on the grounds asserted by Richard.

[¶ 32.] Barbara’s first claim is that Richard committed intentional infliction of emotional distress by bringing the change of custody motion and the present case. In his summary judgment motion, Richard asserted that since Barbara did not intend to present expert testimony and had not seen a professional to treat her emotional distress, she cannot prove any damages. Richard cites no authority for the proposition that one claiming intentional infliction of emotional distress must provide medical evidence of emotional distress to overcome a summary judgment motion. In fact, Justice Amundson’s writing in Christians indicates the contrary:

Here, whether demonstrated by physical symptoms or not, the severity of [the plaintiffs] distress could have been proven with expert testimony from a psychiatric expert, or it could simply have been proven by lay witness testimony. See Uebelacker v. Cincom Sys., Inc., 48 Ohio App.3d 268, 549 N.E.2d 1210, 1220 (1988) (citation omitted) (stating that expert opinions may be used to show severe emotional distress, but they are not “indispensable,” as lay persons may testify to significant changes in the plaintiffs emotional well being).

Christians, 2001 SD 142 at ¶ 59, 637 N.W.2d at 389-90. Summary judgment would be inappropriate on the grounds Richard alleged. The trial court did not consider whether there were genuine issues of material fact regarding Barbara’s claims, nor did it address the legal sufficiency of her claims. Richard’s conduct was post divorce conduct and the issue raised by Barbara is not res judicata. Therefore, the trial court’s grant of summary judgment on Barbara’s intentional infliction of emotional distress claim cannot be sustained and is reversed.

[¶ 33.] Barbara’s second claim was for malicious prosecution. Richard asserted in his summary judgment motion that the claim was barred by the affirmative defense of satisfaction and accord. He based this assertion on the fact that he and Barbara had reached an agreement whereby he would pay most of her costs and fees arising from the change of custody motion.

[¶ 34.] The elements of malicious prosecution are:

(1) The commencement or continuance of an original criminal or civil judicial proceeding;
(2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceedings;
(3) its bona fide termination in favor of the present plaintiff;
(4) the absence of probable cause for such proceeding;
(5) the presence of malice; and
(6) damages conforming to legal standards resulting to plaintiff.

Leisinger v. Jacobson, 2002 SD 108, ¶ 12, 651 N.W.2d 693, 697 (citing Kaarup v. St. Paul Fire and Marine Ins. Co., 485 N.W.2d 802, 804 (S.D.1992)). Barbara’s claims of malicious prosecution are based on both the change of custody motion and this proceeding. The trial court did not test the legal or factual sufficiency of the malicious prosecution claims or Richard’s defense to the claims, and as noted above, the trial court’s reason for granting summary judgment (that they were derivative of the divorce action and res judicata) is not correct as to Barbara’s claims. Therefore, summary judgment should not have been granted with regard to the claim of malicious prosecution based on the change of custody motion.

[¶ 35.] Barbara cannot establish a claim for malicious prosecution based on the present action until there is a “bona fide termination” of the suit in her favor. Therefore, at the time Barbara brought her malicious prosecution claim based on the present action, her claim was legally insufficient. Although its reasoning was erroneous, the court did not err in granting summary judgment on Barbara’s claim for malicious prosecution based on the present case. Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D.1994) (noting, “A trial court may still be upheld if it reached the right result for the wrong reason.”) (additional citation omitted).

[¶ 36.] The summary judgments in favor of Barbara are affirmed. The summary judgment in favor of Richard on Barbara’s malicious prosecution claim with regard to the present case is affirmed. The remaining summary judgments in favor of Richard are reversed and remanded for further proceedings.

[¶ 37.] 4. Attorney’s Fees.

[¶ 38.] Barbara brought a motion requesting appellate attorney fees of $5,274.82 pursuant to SDCL 15-17-51. SDCL 15-17-51 provides:

If a civil action or special proceeding is dismissed and if the court determines that it was frivolous or brought for malicious purposes, the court shall order the party whose cause of action or defense was dismissed to pay part or all expenses incurred by the person defending the matter, including reasonable attorneys’ fees.

For the reasons set forth in, the opinion, we conclude that Richard’s actions for abuse of process, barratry, unlawful eviction and punitive damages are frivolous and we award Barbara attorney fees of $3,000.

[¶ 39.] GILBERTSON, Chief Justice, and, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

       For the emotional well-being of the parties and their remaining child, this litigation should come to an end. The fighting between these parties has been before the courts since at least 1998. In that time, not only has the family been tom apart, they have also lost their eldest child to suicide. Among the issues that had to be addressed in the Stipulation and Agreement was an apparent dispute over the design and installation of their child’s headstone.