author: KALITOWSKI, Judge.

text:
    Martin GARCIA, Relator, v. ALSTOM SIGNALING INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A06-660.
    Court of Appeals of Minnesota.
    April 3, 2007.
    Department of Employment and Economic Development File Nos. 17703 05, Richard A. Williams, Jr., Williams <& Iver-sen, P.A., Roseville, MN, for relator.
    Alstom Signaling Inc., Henrietta, NY, for respondent.
    Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
    Considered and decided by STONEBURNER, Presiding Judge; KALITOWSKI, Judge; and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

KALITOWSKI, Judge.

Relator Martin Garcia challenges the decision by the unemployment law judge of the Department of Employment and Economic Development that he is ineligible to receive unemployment benefits from the date he was placed on furlough status because his employer subsequently terminated him and, upon termination, he was entitled to severance pay. Relator contends the unemployment law judge erred in concluding that the severance payments constituted payments that delay unemployment benefits under Minn.Stat. § 268.085, subd. 3 (Supp.2005), and that relator is obligated to repay the unemployment benefits he received.

FACTS

Relator Martin Garcia worked as an engineer for Alstom Signaling Inc. (Alstom) beginning on March 3, 1971. Alstom placed relator on furlough status on May 26, 2005. The record indicates that Al-stom often uses furlough as a staffing tool. Furloughed employees do not receive a salary during the furlough period, but they remain active on Alstom’s payroll and continue to receive full medical and dental benefits.

After being placed on furlough, relator established a benefit account with the Department of Employment and Economic Development (DEED), effective June 5, 2005. Relator received unemployment benefits in the amount of $493 per week for the weeks ending June 18, 2005, through November 11, 2005. During this period, relator received no W-2 earnings from his employer and collected unemployment benefits totaling $10,353.

On November 9, 2005, Alstom revoked relator’s furlough status and terminated his employment. Relator appropriately informed DEED that his employment had been terminated and that pursuant to his employment agreement with Alstom he was entitled to receive severance pay. Relator’s severance pay totaled $86,859.12 (the equivalent of 61 weeks of wages) to be paid prospectively after November 9, 2005, on a bi-weekly basis. It is undisputed that relator did not receive any unemployment compensation for the same period that he received severance pay from the employer.

On December 5, 2005, DEED determined that relator was ineligible for unemployment benefits for the weeks ending June 5, 2005, through November 11, 2005, and that relator had been overpaid $10,353 in unemployment benefits during this period. DEED based its determination on the fact that relator received severance pay in an amount greater than his weekly unemployment benefit beginning after November 9, 2005. Relying on Minn.Stat. § 268.085, subd. 3 (Supp.2005), DEED determined that although relator did not receive severance pay during the furlough period while he was receiving unemployment benefits, the severance pay that he began receiving after November 9, 2005, should relate back to his last day of non-furloughed employment, May 25, 2005, and offset the unemployment benefits received during the furlough period.

Relator appealed DEED’S ineligibility and overpayment determinations and the appeal was heard by an unemployment law judge who upheld DEED’S ineligibility and overpayment determinations. On reconsideration, the determinations of the unemployment law judge were affirmed. We granted relator’s petition for writ of certio-rari.

ISSUE

Does Minn.Stat. § 268.085, subd. 3, deny unemployment benefits to an individual who never received, filed to receive, or was entitled to severance pay at the time he was collecting unemployment benefits?

ANALYSIS

The determination that a person is ineligible to receive unemployment compensation is a question of law, which we review de novo. Roloff v. Comm’r of Dep’t of Employment & Econ. Dev., 668 N.W.2d 12, 14 (Minn.App.2003), review denied (Minn. Nov. 18, 2003). “The unemployment compensation statute is remedial in nature and must be liberally construed to effectuate the public policy set out in Minn.Stat. § 268.03_ We have stated that this policy urges us to narrowly construe the disqualification provisions.” Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 289 (Minn.2006) (emphasis added) (quotation omitted).

The issue in this case involves the proper construction of Minn.Stat. § 268.085, subd. 3, titled “Payments that delay unemployment benefits.” Subdivision 3 states:

(a) An applicant shall not be eligible to receive unemployment benefits for any week with respect to which the applicant is receiving, has received, or has filed for payment, equal to or in excess of the applicant’s weekly unemployment benefit amount, in the form of:
(2) severance pay ... paid by an employer because of, upon, or after separation from employment, but only if the money payment is considered wages at the time of payment[.]
(b) This subdivision shall apply to all the weeks of payment and shall be applied to the period immediately following the last day of employment.

Minn.Stat. § 268.085, subds. 3(a)(2), 3(b).

Under subdivision 3(a)(2), an applicant is not eligible for unemployment benefits for any week in which (1) the applicant received or filed for severance pay, if (2) it was paid by the employer “because of, upon, or after separation from employment” and (3) the payment is “considered wages at the time of payment.” Minn. Stat. § 268.085, subd. 3(a)(2).

Here, it is undisputed that relator’s severance pay was paid upon his separation from employment and was considered wages at the time of payment. But relator argues that subdivision 3 does not apply to him because he never received or filed for severance pay while collecting unemployment benefits. Moreover relator never simultaneously collected both unemployment benefits and severance pay, and during the furlough period, when relator collected unemployment benefits, he was not entitled to, nor did he receive, severance pay.

Respondent does not dispute relator’s contention, but argues that relator’s situation is nevertheless controlled by subdivision 3(b) which states that “[t]his subdivision shall apply to all the weeks of payment and shall be applied to the period immediately following the last day of employment.” Minn.Stat. § 268.085, subd. 3(b). Applying this language, respondent takes the position that it is required to retroactively apply relator’s entitlement to severance pay to relator’s last day of employment, May 25, 2005, thereby making him retroactively ineligible for unemployment benefits.

Respondent further supports its interpretation by arguing that:

If the statute did not explicitly provide for application of severance to the weeks following separation, employers and employees would easily circumvent the requirements avoiding double payment of severance and unemployment by delaying payment of severance until after some months of unemployment benefits were collected. Employers could simply write up severance agreements stating that employees would not receive severance until three months after their separation, allowing employees to collect three months of unemployment benefits before their severance started and avoiding the application of the statute.

But the record here does not contain any evidence of improper manipulation by relator or his employer.

The undisputed facts in this record indicate that (1) relator’s employer has adopted the furlough status as a method by which it can retain access to employees who have key skill sets; (2) during the furlough period relator received full medical and dental benefits and was deemed active on his employer’s payroll; (3) relator was placed on furlough status on May 26, 2005; (4) relator’s employer determined that there was not likely to be business available and permanently terminated relator on November 9, 2005; (5) under the employer’s separation plan, relator was not entitled to severance pay while on furlough, but became eligible when he was permanently terminated; and (6) pursuant to the separation plan, relator did not receive a lump-sum severance but was paid on a bi-weekly basis beginning after November 9, 2005.

The Minnesota Supreme Court has recently noted that:

[t]he unemployment compensation statute is remedial in nature and must be liberally construed to effectuate the public policy set out in Minn.Stat. § 268.03, which states that the unemployment benefits provisions are to be used for the benefit of persons unemployed through no fault of their own. We have stated that this policy urges us to narrowly construe the disqualification provisions.

Jenkins, 721 N.W.2d at 289 (emphasis added) (quotation omitted). Because the policy reasoning supporting the narrow construction of disqualification provisions also applies to ineligibility provisions, we construe subdivision 3 narrowly.

We reject respondent’s interpretation of the statute as applied to the facts here. Respondent’s interpretation ignores the application of the term “payment” as used in both subdivision 3(a) and 3(b). As applied to these facts, the term “payment” in subdivision 3(a) specifically refers to severance that has been received or filed for which is equal to or greater than unemployment benefits received for the same period of time. It follows that the term “payment” in subdivision 3(b) also refers to severance that is received or filed for simultaneous to the collection of unemployment benefits. Thus, when subdivision 3(b) states “[t]his subdivision shall apply to all the weeks of payment ...” it is properly interpreted to mean all the weeks of payment in which a person receives or files for severance pay while simultaneously collecting unemployment benefits.

Here, relator’s last day of work for Al-stom was May 25, 2005, prior to the furlough period. Relator received unemployment benefits for the period from the weeks ending June 18, 2005, through November 11, 2005. As a result of his permanent termination, relator became entitled to receive severance payments after November 9, 2005. Because these severance payments were not received or applied for while relator was receiving unemployment benefits, Minn.Stat. § 268.085, subd. 3, does not apply to make relator retroactively ineligible for unemployment benefits. Relator neither received nor filed for severance pay during this period. Nor under the undisputed terms of his employment agreement was he entitled to receive severance pay while he was on furlough.

DECISION

The unemployment law judge erred by determining that relator was ineligible to receive unemployment benefits and requiring relator to repay the unemployment benefits he had received. Minn.Stat. § 268.085, subd. 3, does not apply to an individual who did not file for or receive severance pay and who was not entitled to receive severance pay while simultaneously collecting unemployment benefits.

Reversed.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2007 ND 36
    RIVERWOOD COMMERCIAL PARK, L.L.C., and Tom S. Freidt, Plaintiffs and Appellants, v. STANDARD OIL COMPANY, INC., a/k/a BP, and Tesoro Refining and Marketing Company, Defendants and Appellees.
    No. 20060122.
    Supreme Court of North Dakota.
    March 5, 2007.

      Chad C. Nodland (argued), Chad C. Nodland, P.C., Bismarck, N.D., for plaintiffs and appellants.
    John C. Kapsner (argued) and Kari R. Reichert (appeared), Vogel Law Firm, Bismarck, N.D., for defendant and appellee Standard Oil Company, Inc.
    Michael J. Geiermann (argued), Schulz Geiermann & Bergeson Law Offices, P.C., Bismarck, N.D., for defendant and appel-lee Tesoro Refining and Marketing Company.
   MARING, Justice.

[¶ 1] Riverwood Commercial Park, LLC, and Tom Freidt (collectively “River-wood”) have appealed from a judgment dismissing their action against Standard Oil Company (“Standard”) and Tesoro Refining and Marketing Company (“Tesoro”) for trespass, breach of contract, slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance. We reverse, concluding (1) the district court erred in holding Riverwood’s claims for slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance were barred by res judicata, collateral estoppel, and law of the case, and (2) the district court erred in dismissing with prejudice Riverwood’s claims for trespass and breach of contract for failure to join indispensable parties.

[¶ 2] We outlined the historical background of the parties’ disputes in Riverwood Commercial Park, LLC v. Standard Oil Co., 2005 ND 118, ¶¶ 2-3, 698 N.W.2d 478:

In 1953, Standard owned an oil refinery in Mandan, and the Northern Pacific Railway Company (“NP”) owned land between the refinery and the Heart River. On March 23, 1953, NP executed a written permit granting Standard permission to “construct, operate, and maintain” a sewer pipeline along NP’s right-of-way from the refinery to the Heart River. The permit provided that Standard could not transfer or assign the permit without NP’s written consent. A twenty-two inch underground sewer pipeline, including a large manhole, was constructed across NP’s property from the refinery several miles south to the Heart River.
In 1998, NP sold a portion of its property containing the sewer pipeline to Marmot Properties. Since 1953, Standard has gone through a series of name changes and eventually became British Petroleum (“BP”). In 2001, BP sold the Mandan refinery to Tesoro. On May 17, 2004, Tesoro filed a “Notice of Permit,” with a copy of the 1953 permit attached, with the Morton County Recorder’s Office. On June 15, 2004, Marmot Properties sold the property involved in this case, with the sewer pipeline running beneath it, to Riverwood.

[¶ 3] In August 2004, Riverwood brought a summary eviction action under N.D.C.C. ch. 33-06 against Standard and Tesoro, contending that the existence of the pipeline on its property constituted a trespass. Riverwood sought immediate removal of the pipeline, claiming its presence interfered with Riverwood’s ability to develop and market its property. On Te-soro’s motion for judgment on the pleadings under N.D.R.Civ.P. 12(b)(vi) for failure to state a claim upon which relief could be granted, the district court concluded that the 1953 permit did not create a lease and Standard and Tesoro did not have a possessory interest in the property, and eviction via the summary procedure under N.D.C.C. ch. 33-06 was therefore not available. Riverwood appealed from the judgment dismissing the eviction action and this Court affirmed, concluding the 1953 permit “at best” created a license or an easement, not a lease, and subsections (4), (7), and (8) of N.D.C.C. § 33-06-01, which specifically apply only to lessees, were inapplicable. Riverwood, 2005 ND 118, ¶¶ 10-11, 698 N.W.2d 478.

[¶ 4] While the appeal in Riverwood I was pending, Riverwood brought this action against Standard and Tesoro, alleging trespass, breach of contract, slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance. Standard and Tesoro moved to dismiss the complaint under N.D.R.Civ.P. 12(b)(vi) and (vii) for failure to state a claim upon which relief could be granted and failure to join indispensable parties under N.D.R.Civ.P. 19. Riverwood responded to the motions to dismiss and moved to amend the complaint to add a claim for exemplary damages. The district court dismissed the slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance claims, finding they were barred by res judicata, collateral estoppel, and law of the case. The court initially did not dismiss Riverwood’s claims for trespass or breach of contract, expressly concluding they were not barred by res judicata, collateral estoppel, or law of the case, but ordered that Burlington Northern Santa Fe Railroad (NP’s successor) and Marmot Properties were indispensable parties and granted Riverwood fifteen days to join them as defendants. When Riverwood failed to join the additional parties, the district court ordered dismissal with prejudice of the trespass and breach of contract claims, and judgment was entered dismissing Riv-erwood’s complaint in its entirety.

[¶ 5] Riverwood has appealed, arguing its claims in this case were not barred by the result in Riverwood I, it was not required to join additional parties, and the district court erred in failing to grant Riv-erwood’s motion to amend the complaint to include a claim for exemplary damages.

II

[¶ 6] Our review of the judgment dismissing the complaint is complicated by the uncertain procedural posture of this case. Standard and Tesoro moved for judgment on the pleadings under N.D.R.Civ.P. 12(b)(vi) and (vii) for failure to state a claim upon which relief could be granted and failure to join indispensable parties. The parties thereafter presented to the district court evidentiary matters, including affidavits and documentary evidence, in support of their respective arguments. Rule 12(c), N.D.R.Civ.P., applies when matters outside the pleadings are presented to the court:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in N.D.R.Civ.P. 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by N.D.R.Civ.P. 56.

[¶ 7] In this case, it is unclear whether the district court disposed of the motions under Rule 12 or Rule 56. Although the court did not expressly exclude the additional matters presented by the parties, the court did not reference any of those additional materials in its order granting the motion to dismiss. Nor did the court explain whether it was applying the standards governing judgment on the pleadings or the summary judgment standards in resolving the motions. The determination of which procedure the district court employed affects the applicable standards and the scope of our review on appeal.

[¶ 8] In Kouba v. State, 2004 ND 186, ¶¶ 4-6, 687 N.W.2d 466, we outlined the standards governing judgment on the pleadings under N.D.R.Civ.P. 12:

“A trial court’s decision for granting judgment on the pleadings under Rule 12(c), N.D.R.Civ.P., is reviewed de novo.” Tibert v. Minto Grain, 2004 ND 133, ¶ 6, 682 N.W.2d 294....
When our Court reviews the dismissal of a complaint after a judgment on the pleadings under Rule 12(c), N.D.R.Civ. P-,
we recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court’s inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.
Tibert, 2004 ND 133, ¶ 7, 682 N.W.2d 294 (citation omitted).
A trial court’s decision granting judgment of dismissal for failure to state a claim upon which relief can be granted under Rule 12(b)(vi), N.D.R.Civ.P., will be affirmed by our Court if we cannot “discern a potential for proof to support it.” Vandall v. Trinity Hospitals, 2004 ND 47, ¶ 5, 676 N.W.2d 88 (quoting Towne v. Dinius, 1997 ND 125, ¶ 7, 565 N.W.2d 762).

[¶ 9] The standards governing summary judgment under N.D.R.Civ.P. 56, while similar to those for judgment on the pleadings, allow a somewhat broader procedure and review:

Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. The party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. A party resisting a motion for summary judgment cannot merely rely on the pleadings or other unsupported conclu-sory allegations. A resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. A district court’s decision on a motion for summary judgment is a question of law that we review de novo on the record.

Trinity Hosps. v. Mattson, 2006 ND 231, ¶ 10, 723 N.W.2d 684 (citations omitted).

[¶ 10] Under the circumstances in this case, we find it unnecessary to determine whether the district court’s decision was premised upon Rule 12 or Rule 56. Based upon our review of the substantive issues on the merits, we conclude that, applying either standard of review, the district court erred in dismissing River-wood’s claims against Standard and Teso-ro.

Ill

[¶ 11] Riverwood contends the district court erred in concluding that its claims for slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance were barred by res judicata, collateral estoppel, and law of the ease.

A

[¶ 12] The district court’s determination that Riverwood’s claims were barred by the law of the case doctrine was erroneous. Under the law of the case doctrine, if an appellate court has ruled on a legal question and remanded the case to the lower court for further proceedings, the legal question thus determined becomes the law of the case and will not be differently determined on a subsequent appeal in the same case where the facts remain the same. Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, ¶ 10, 721 N.W.2d 43; Jundt v. Jurassic Res. Dev., N. Am., L.L.C., 2004 ND 65, ¶ 7, 677 N.W.2d 209; Tom Beuchler Constr., Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987); Poyzer v. Amenia Seed & Grain Co., 409 N.W.2d 107, 108-09 (N.D.1987). By its terms, the law of the case doctrine applies only in a subsequent appeal in the same case. See Peoples State Bank, at ¶ 10; Jundt, at ¶ 7; Tom Beuchler Constr., at 339; 18 James W. Moore, Federal Practice §§ 131.13[3] and 134.20[1] (3d ed.2006). As explained in 18 Moore, supra, at § 131.13[3], “the law of the case doctrine operates only until a final judgment is obtained, after which it has no relevance.” The doctrine does not apply to bar claims or issues in a subsequent, separate lawsuit.

B

[¶ 13] Claim preclusion or issue preclusion in a subsequent action is governed by res judicata and collateral estoppel. We have explained the application of res judi-cata and collateral estoppel, noting the distinctions between the similar doctrines:

The doctrines of res judicata and collateral estoppel bar courts from relit-igating claims and issues in order to promote the finality of judgments, which increases certainty, avoids multiple litigation, wasteful delay and expense, and ultimately conserves judicial resources. The applicability of res judicata or collateral estoppel is a question of law, fully reviewable on appeal.
“Although collateral estoppel is a branch of the broader law of res judica-ta, the doctrines are not the same.” Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies. Thus, res judicata means a valid, existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to [the] parties and their privies in all other actions. Res judicata applies even if subsequent claims are based upon a different legal theory. Collateral estop-pel, or issue preclusion, forecloses reliti-gation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or by logical and necessary implication must have been litigated, and decided in the prior action.

Ungar v. North Dakota State Univ., 2006 ND 185, ¶¶ 10-11, 721 N.W.2d 16 (citations omitted); see Witzke v. City of Bismarck, 2006 ND 160, ¶ 8, 718 N.W.2d 586; Simpson v. Chicago Pneumatic Tool Co., 2005 ND 55, ¶ 8, 693 N.W.2d 612; Cridland v. North Dakota Workers Comp. Bureau, 1997 ND 223, ¶¶ 14 and 17, 571 N.W.2d 351.

[¶ 14] The primary differences between res judicata claim preclusion and collateral estoppel issue preclusion are summarized in 18 Moore, supra, § 131.13[1] (footnotes omitted):

The basic difference between claim preclusion and issue preclusion is simply put: claim preclusion applies to whole claims, whether litigated or not, whereas issue preclusion applies to particular issues that have been contested and resolved. Claim preclusion is broader in scope than issue preclusion as to the claims that come within its purview, but narrower in scope as to the parties to whom the doctrine can be applied. While claim preclusion and issue preclusion advance the same basic principle— the need for finality in judicial proceedings — they do so in substantially different ways. Claim preclusion prevents parties and those in privity with them from raising legal theories, claims for relief, or defenses which could have been raised in the prior litigation, even though such claims were never actually litigated in the prior case. Issue preclusion, on the other hand, precludes litigation of issues actually litigated and necessary to the outcome of the prior case, even if such issues are subsequently presented as part of a different “claim.”

In analyzing these issues, we keep in mind the admonition that the doctrines should apply as fairness and justice require, and should not be applied so rigidly as to defeat the ends of justice or to work an injustice. See Wetch v. Wetch, 539 N.W.2d 309, 312 (N.D.1995); Hofsommer, 488 N.W.2d at 383; Borsheim v. O & J Props., 481 N.W.2d 590, 597 (N.D.1992).

C

[¶ 15] Standard and Tesoro argue that Riverwood’s claims in this action are barred by res judicata. As previously noted, res judicata claim preclusion prevents relitigation of claims that were raised or could have been raised in a prior action between the same parties. See, e.g., Ungar, 2006 ND 185, ¶ 11, 721 N.W.2d 16. The doctrine is premised in part upon the prohibition against splitting a cause of action. See Borsheim, 481 N.W.2d at 597; 18 Moore, supra, at § 131.20[1].

[¶ 16] Standard and Tesoro’s contention that Riverwood could have brought all of its claims in Riverwood I wholly ignores the statutory procedures and mandates for a summary eviction action. An eviction action under N.D.C.C. ch. 33-06 is a summary proceeding to recover possession of real estate. Riverwood, 2005 ND 118, ¶ 6, 698 N.W.2d 478; H-T Enters. v. Antelope Creek Bison Ranch, 2005 ND 71, ¶ 6, 694 N.W.2d 691. Section 33-06-04, N.D.C.C., expressly prohibits a plaintiff from combining the eviction action with other claims. We explained the procedure in Riverwood, at ¶ 6 (citations omitted):

Section 33-06-02, N.D.C.C., provides for an expedited procedure, with the defendant allowed between three and fifteen days to appear and defend in the action. If the court finds for the plaintiff, the court must enter judgment granting immediate restitution of the premises to the plaintiff, but the court may delay execution in case of hardship for a reasonable period not exceeding five days. N.D.C.C. § 33-06-04. The statute strictly limits the parties’ ability to combine the eviction with other claims and precludes the defendant from interposing a counterclaim, except as a setoff to the plaintiffs claim for damages, rent, or profits. N.D.C.C. § 33-06-04. The proceeding is limited to a speedy determination of the right to possession of the property, without bringing in extraneous matters. The purpose of the statute is to provide an inexpensive, expeditious, and simple means to determine possession.

[¶ 17] It is axiomatic that res judi-cata claim preclusion and rules against splitting a cause of action are inapplicable when a statute explicitly prohibits inclusion of additional claims in the original action. Our statutory scheme under N.D.C.C. ch. 33-06 envisions an expedited summary procedure to quickly restore possession of the property to the owner, without jeopardizing the owner’s right to bring subsequent claims resulting from the unlawful encroachment upon the property. The result urged by Standard and Tesoro would force a property owner who uses the summary eviction procedure to expeditiously secure its rightful repossession of the property to entirely forego any right to seek other relief or redress for the defendant’s unlawful retention of the property. We will not interpret the doctrine of res judicata in a manner which would work such an injustice. See, e.g., Wetch, 539 N.W.2d at 312. We foreshadowed this result in Riverwood, 2005 ND 118, ¶ 12, 698 N.W.2d 478, when we noted that Riv-erwood had other potential claims and remedies against Standard and Tesoro.

[¶ 18] Under res judicata claim preclusion, a judgment in a prior action is conclusive “as to all claims which, under the rules, might have been put in issue in the prior trial.” Borsheim, 481 N.W.2d at 596 (emphasis added) (quoting Perdue v. Knudson, 179 N.W.2d 416, 421 (N.D.1970)). Riverwood was expressly prohibited by statute from pleading its claims for slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance in the prior action. Accordingly, those claims are not barred by res judicata claim preclusion.

D

[¶ 19] Standard and Tesoro argue that Riverwood’s claims are barred by the doctrine of collateral estoppel. They contend the district court in Riverwood I found that the 1953 permit created a license to maintain the pipeline on the property and that the license remained in effect and was still valid. They also contend this Court did not reverse that finding on appeal, and Riverwood is therefore precluded from now basing any claim on Standard and Tesoro’s presence on the property. Standard and Tesoro’s arguments are premised upon a misperception of the procedures and result in Riverwood I and upon an erroneous view of the legal standards governing application of collateral estoppel issue preclusion.

[¶ 20] Collateral estoppel bars relitigation of issues which were necessarily litigated and decided, or which by implication must have been litigated and decided, in a prior action. E.g., Ungar, 2006 ND 185, ¶ 11, 721 N.W.2d 16; Witzke, 2006 ND 160, ¶ 8, 718 N.W.2d 586. Collateral estoppel does not apply to dicta, but applies only if the determination of the issue in the prior action was necessary and essential to support the judgment. 18 Moore, supra, at § 132.03[4][a] and [f]. The doctrine “does not apply to matters which are incidental or collateral to the determination of the main controversy.” Martin v. Rath, 1999 ND 31, ¶ 8, 589 N.W.2d 896.

[¶21] In analyzing whether an issue was “necessarily decided” in the pri- or case, collateral estoppel issue preclusion may only be applied if “the determination of the former action could not have been made without determining” the issue in question. Knutson v. Ekren, 72 N.D. 118, 125, 5 N.W.2d 74, 78 (1942). The “necessarily decided” requirement is summarized in 18 Moore, supra, at § 132.03[4][a] (footnotes omitted):

Issue preclusion operates to preclude the relitigation of only those issues necessary to support the judgment entered in the first action. Relitigation of an issue presented and decided in a prior case is therefore not foreclosed if the decision of the issue was not necessary to the judgment reached in the prior litigation....
For issue preclusion to apply, the issue must have been actually litigated and have been essential to the prior decision. Judgment in the prior action must therefore have been dependent on the determination made of the issue in question. When the jury or the court makes findings of fact, but the judgment is not dependent on those findings, they are not conclusive between the parties in a subsequent action based on a different cause of action.

The purpose of the “necessarily decided” requirement “is to prevent the incidental or collateral determination of a nonessential issue from precluding reconsideration of that issue in later litigation.” Id., at § 132.03[4][f|.

[¶ 22] In urging application of the doctrine of collateral estoppel in this case, Standard and Tesoro rely upon language in the district court’s opinion in Riverwood I suggesting that the 1953 permit was a license between Standard and NP which had never been revoked and was still in effect. Throughout their briefs on appeal, Standard and Tesoro refer to this as a “finding of fact” by the district court which was not disturbed by this Court on the appeal in Riverwood I.

[¶ 23] Riverwood I was decided in the context of a motion under N.D.R.Civ.P. 12(b)(vi) for judgment on the pleadings for failure to state a claim upon which relief could be granted. The court was therefore required to construe the complaint in the light most favorable to the plaintiff and accept as true all allegations in the complaint. E.g., Kouba v. State, 2004 ND 186, ¶ 5, 687 N.W.2d 466; Tibert v. Minto Grain, LLC, 2004 ND 133, ¶ 7, 682 N.W.2d 294. On a motion for judgment on the pleadings, the district court may not resolve disputed issues of fact or make findings of fact. The precise nature of the interest created by the 1953 permit and its continued validity were disputed issues of fact in Riverwood I. If the district court had resolved disputed factual issues and made a finding that the permit created a license which was still in effect, and if such a finding had been necessary and essential to the judgment dismissing the eviction action, we would have had to reverse the judgment in Riverwood I on that basis as well.

[¶ 24] The district court’s language in Riverwood I must be viewed in context. Standard had moved for judgment on the pleadings, arguing that the 1953 permit created a license, not a lease, and that the eviction statute applied only if there was a lease. The district court, quoting definitions of “license” and “lease,” concluded that, as a matter of law, the permit did not create a lease and the eviction statute did not apply. The court’s further characterization of the permit as a license, and its suggestion that the license remained in effect, was not necessary or essential to the judgment.

[¶ 25] Our opinion in Riverwood I bears out this interpretation of the district court’s opinion. We were careful to avoid any reliance upon the precise nature of the interest created by the 1953 permit or upon its continued validity. In essence, the dispositive issue in Riverwood I was not what the permit was, but rather what it was not. If it was not a lease, the eviction statute did not apply and it was wholly irrelevant whether the permit created a license or whether such a license was still valid. See N.D.C.C. § 33-06-01(4), (7), and (8). On appeal, we clearly indicated we were not relying upon a finding that a valid license existed when we held that the eviction statute would only apply if the 1953 permit created a lease, but “[t]he 1953 permit created, at best, a license or easement, not a lease.” Riverwood, 2005 ND 118, ¶ 10, 698 N.W.2d 478 (emphasis added).

[¶ 26] Even if the district court could have made findings of fact, this Court has held that a trial court’s finding of fact which is not passed upon by the appellate court because it is not necessary for the appellate court’s decision does not render that finding conclusive between the parties in a subsequent action. Poyzer v. Amenia Seed & Grain Co., 409 N.W.2d 107, 108 (N.D.1987); Nodland v. Nokota Co., 314 N.W.2d 89, 92 (N.D.1981). In Riverwood I, we did not pass upon nor rely upon any finding of fact that the 1953 permit created a license which was still valid. Any such finding was not necessary or essential to the district court’s judgment or to our resolution of the appeal in Riverwood I, and collateral estoppel issue preclusion therefore does not apply. Accordingly, the district court’s alleged “finding” that the 1953 permit created a license which was still valid does not preclude litigation of that issue in this case.

E

[¶ 27] We conclude the district court erred in holding that Riverwood’s claims for slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance were barred by res judicata, collateral estoppel, or law of the case.

IV

[¶ 28] In ruling on Standard and Tesoro’s motions to dismiss under N.D.R.Civ.P. 12, the district court expressly concluded that Riverwood’s claims for trespass and breach of contract were not precluded by res judicata, collateral estop-pel, or law of the case, and the court therefore refused to dismiss those claims. The court further concluded, however, that Burlington Northern Santa Fe Railroad (“BNSF”) and Marmot Properties (“Marmot”) were indispensable parties to those claims under N.D.R.Civ.P. 19(a) and granted Riverwood fifteen days from the date of the court’s order to join BNSF and Marmot as defendants. When Riverwood failed to join BNSF and Marmot as parties, the district court ordered that River-wood’s trespass and breach of contract claims be dismissed with prejudice, and a judgment dismissing the entire complaint with prejudice was entered.

[¶ 29] Riverwood contends BNSF and Marmot were not indispensable parties and Standard and Tesoro should have been required to bring a third party action if they believed BNSF and Marmot had interests which might be affected by the lawsuit. Standard and Tesoro argue that BNSF and Marmot were indispensable parties and the district court did not err in ordering dismissal of the complaint in its entirety with prejudice when Riverwood failed to join them as defendants. We find it unnecessary to address whether BNSF and Marmot were indispensable parties under N.D.R.Civ.P. 19(a) because we conclude that, even if BNSF and Marmot were indispensable parties to Riverwood’s trespass and breach of contract claims, the district court was not authorized to order dismissal of Riverwood’s claims with prejudice for failure to join them.

[¶ 30] Involuntary dismissal of an action is governed by N.D.R.Civ.P. 41(b):

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

[¶ 31] This Court, construing Rules 19 and 41(b), has expressly held that “when a dismissal is granted based upon ... failure to join a party under Rule 19, the dismissal does not operate as an adjudication on the merits and cannot be granted with prejudice.” Associated Gen. Contractors of North Dakota v. Local No. 580 of Laborers Int’l Union of N. Am., 278 N.W.2d 393, 400 (N.D.1979); see also Johnson v. Boyd-Richardson Co., 650 F.2d 147, 148—49 (8th Cir.1981); Transit Cas. Co. v. Security Trust Co., 396 F.2d 803 (5th Cir.1968); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 2373 (1995). The rationale for requiring that a dismissal for failure to join a party under Rule 19 be without prejudice was thoughtfully explained in Bonneville Tower Condo. Mgmt. Comm. v. Thompson Michie Assocs., Inc., 728 P.2d 1017, 1020 (Utah 1986) (citations omitted):

Dismissal with prejudice under Rule 41(b) is a harsh and permanent remedy when it precludes a presentation of a plaintiffs claims on their merits. Our rules of procedure are intended to encourage the adjudication of disputes on their merits.
Dismissal for failure to join an indispensable party is only an abatement of that particular action and does not bar an action on the merits. Plaintiffs failure to bring all parties before the court prevents it from properly reaching the merits of plaintiffs claim. The deficiency may be overcome by joining the party required or by asserting only those alternative claims for relief that do not require the presence of other parties. If the appropriate amendment is not made, the action is subject to dismissal, but not with prejudice, because the defense operates only to abate the particular action being dismissed.
Referring to its Federal Rules of Civil Procedure, the United States Supreme Court has stated that Rule 41(b) is not intended to change the common law principles with respect to dismissals in which the merits cannot be reached for failure of the plaintiff to satisfy a precondition requisite to consideration of the merits. Costello v. United States, 365 U.S. 265, 285-87, 81 S.Ct. 534, 544-46, 5 L.Ed.2d 551 (1961). We find nothing in the record below that would support any exception to the principle stated in Costello or to the intent of Rule 41(b) by imposing the drastic remedy of dismissal with prejudice in this case. The lower court’s reason for dismissal was plaintiffs failure to join indispensable parties defendant. No other basis for dismissal was given. Under Utah Rule of Civil Procedure 41(b), a dismissal for failure to comply with Rule 19(a) is not an adjudication on the merits. Not having considered the merits of plaintiffs claims, there was no reason for the court to dismiss with prejudice and prevent future consideration .of the claims should the defect be corrected.

[¶ 32] We agree that a dismissal for failure to join a party under N.D.R.Civ.P. 19 is not an adjudication on the merits, and the district court erred in ordering dismissal of Riverwood’s claims with prejudice.

V

[¶ 33] Riverwood contends the district court committed reversible error by failing to grant its motion to amend the complaint to seek exemplary damages. Under N.D.C.C. § 32-03.2-11(1), a plaintiff may not seek exemplary damages in its initial complaint, but must subsequently move the court to allow amendment of the complaint to seek exemplary damages:

In any action for the breach of an obligation not arising from contract, when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice, the court or jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant. Upon commencement of the action, the complaint may not seek exemplary damages. After filing the suit, a party may make a motion to amend the pleadings to claim exemplary damages. The motion must allege an applicable legal basis for awarding exemplary damages and must be accompanied by one or more affidavits or deposition testimony showing the factual basis for the claim. The party opposing the motion may respond with affidavit or deposition testimony. If the court finds, after considering all submitted evidence, that there is sufficient evidence to support a finding by the trier of fact that a preponderance of the evidence proves oppression, fraud, or actual malice, the court shall grant the moving party permission to amend the pleadings to claim exemplary damages. For purposes of tolling the statute of limitations, pleadings amended under this section relate back to the time the action was commenced.

[¶ 34] In this case, Riverwood moved to amend its complaint to seek exemplary damages after Standard and Tesoro had moved for judgment on the pleadings. The district court ultimately ordered entry of judgment dismissing Riverwood’s complaint without ruling on the motion to amend the complaint. Because we are reversing the judgment dismissing River-wood’s complaint, we direct the district court on remand to consider and determine Riverwood’s motion to amend the complaint to seek exemplary damages.

VI

[¶ 35] The judgment dismissing the complaint is reversed, and we remand for further proceedings consistent with this opinion.

[¶ 36] GERALD W. VANDE WALLE, C.J., and ALLAN L. SCHMALENBERGER, D.J., we concur in the result'. DANIEL J. CROTHERS and DALE V. SANDSTROM, JJ., concur.

[¶ 37] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of KAPSNER, J., disqualified.

      . We will refer to the eviction action as River-wood I.

      . We strongly urge district courts, when presented with material outside the pleadings on a Rule 12 motion, to expressly state whether they are considering the additional materials and deciding the motion as one for summary judgment, or are excluding the additional matters and deciding the motion as one for judgment on the pleadings.

      . Although the Court in Martin used the term “res judicata,” it is clear from the context of the case that the Court was applying the doctrine of issue preclusion, which we now denominate as collateral estoppel.

      . Although the Court in Poyzer and Nodland used the term "res judicata," it is clear from the context of the cases that the Court was applying collateral estoppel issue preclusion.


author: KAPSNER, Justice.

text:
    2007 ND 38
    STATE of North Dakota, by and through WORKFORCE SAFETY, AND INSURANCE Petitioner, Appellant and Cross-Appellee v. ALTRU HEALTH SYSTEMS, Respondent, Appellee and Cross-Appellant.
    No. 20060107.
    Supreme Court of North Dakota.
    March 8, 2007.

      Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, N.D., for petitioner, appellant and cross-appellee.
    Randall S. Hanson (argued), Scott D. Jensen (on brief), and Joel L. Larson (on brief), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, N.D., for respondent, appellee and cross-appellant.
   KAPSNER, Justice.

[¶ 1] Workforce Safety and Insurance (“WSI”) appeals and Altru Health Systems (“Altru”) cross-appeals from a district court order denying WSI’s motion for contempt, permitting WSI to take depositions of a claimant’s treating physician and physician’s assistant in connection with a fraud investigation, and prohibiting WSI from requiring either the physician or physician’s assistant to review videotaped surveillance of the claimant. Because we conclude that the district court did not abuse its discretion under N.D.C.C. § 65-02-11, we affirm.

I

[¶ 2] As a part of a fraud investigation, WSI asked Altru to permit an investigator from WSI’s special investigations unit to meet with a claimant’s treating physician and physician’s assistant. Altru denied WSI’s request, and WSI issued an administrative subpoena on July 30, 2005, to take depositions of the claimant’s physician and physician’s assistant. The physician and physician’s assistant resisted the depositions, and WSI thereafter commenced a proceeding in district court under N.D.C.C. § 65-02-11 to enforce the administrative subpoenas.

[¶ 3] On September 1, 2005, the district court issued an “Order on Application for Enforcement of Administrative Subpoena,” which allowed WSI to take the depositions of the claimant’s physician and physician’s assistant without notice to the claimant and required the physician and physician’s assistant to appear and answer questions. The order also provided that neither the treating physician nor physician’s assistant would be required to review videotaped surveillance “in preparation for appearing for the depositions.” The order limited WSI’s inquiries to facts relating to the investigation of possible violations of N.D.C.C. § 65-05-33 in the time period covered by WSI’s investigation.

[¶ 4] After the district court’s September 1, 2005, order, WSI again issued administrative subpoenas under N.D.C.C. § 65-02-11, and depositions were scheduled for the physician and physician’s assistant. At the October 27, 2005, deposition of the physician’s assistant, WSI’s counsel advised the physician’s assistant that she was going to be asked questions relating to her treatment of the injured worker and that she would be shown videotaped surveillance and asked some questions relating to the videotape. The physician’s assistant refused to view the videotaped surveillance, and her deposition proceeded without her watching the videotape. The deposition of the claimant’s treating physician, which also had been scheduled for the same day, was canceled.

[¶ 5] On November 4, 2005, WSI filed a contempt motion with the district court, seeking enforcement of the court’s September 1, 2005, order. On February 9, 2006, the district court issued an order denying both parties’ requests for sanctions and clarifying its previous order.

2. Neither of the requested deponents, [claimant’s treating physician and physician’s assistant], shall be required to review any videotape surveillance in the possession of WSI in preparation for or in connection with their depositions. The court specifically finds that it is irrelevant whether the videotape would be shown to the witnesses prior to the deposition or at the time of the depositions, and neither shall be allowed.
3. The Court specifically finds that NDCC Section 65-02-11 allows WSI to be able to examine witnesses and subpoena records, among other things, but that it does not require that the requested deponents become expert witnesses for WSI. To require the treating physician and the physician’s assistant to be turned into expert witnesses is beyond the scope of 65-02-11. If WSI requires an expert witness on these issues, it certainly has an outside expert that would be available to not only look at the record that was obtained from Altru but also to review the videotape referred to in its entirety.
4. The Court will stand by its original Order in which it was ordered that [claimant’s treating physician and physician’s assistant] shall not be required to review videotape surveillance.

[¶ 6] WSI appealed and Altru cross-appealed from the court’s February 9, 2006, order.

II

[¶ 7] WSI argues the district court erred in limiting its ability to question the claimant’s physician and physician’s assistant regarding WSI’s videotaped surveillance of the claimant.

[¶ 8] WSI asserts the district court erred as a matter of law in concluding that N.D.C.C. § 65-02-11 does not permit the deponents to become WSI’s expert witnesses and ordering that the treating physician and physician’s assistant not be required to review videotaped surveillance of the claimant. WSI contends the deponents’ potential testimony relates to the issue of whether the claimant’s activities were inconsistent with the claimant’s statements to his treating physician and physician’s assistant and whether the claimant’s activities demonstrated a willful misrepresentation of physical ability or condition under N.D.C.C. § 65-05-33.

[¶ 9] Section 65-02-11, N.D.C.C., which authorizes WSI to examine witnesses and issue subpoenas to compel the attendance of witnesses, states:

Except as otherwise provided by this title, process and procedure under this title is governed by chapter 28-32. The organization may make investigation as in its judgment is best calculated to ascertain the substantial rights of all the parties. Any member of the organization, and any person specifically designated by the organization may examine witnesses and records, with or without subpoena, examine, investigate, copy, photograph, and take samples at any pertinent location or facility, administer oaths to witnesses, require the attendance of witnesses without fee whenever the testimony is taken at the home, office, or place of work of those witnesses, and generally to do anything necessary to facilitate or promote the efficient administration of this title. The organization may issue a subpoena to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and any other records deemed necessary by the organization. Subpoenas may be enforced by applying to a judge of the district court for an order requiring the attendance of a witness, the production of all documents and objects described in the subpoena, or otherwise enforcing an order. Failure to comply with the order of the district court is contempt as provided in chapter 27-10. The organization shall pay the costs of any medical examination, scientific investigation, medical or expert witness appearance or report, requested or approved by the organization, relating to a claim for benefits, from the organization’s general fund.

(Emphasis added.)

[¶ 10] WSI asserts that the phrase “generally to do anything necessary” in N.D.C.C. § 65-02-11 permits it to show the videotaped surveillance to the claimant’s treating physician and physician’s assistant and compel them to respond to WSI’s questions regarding the videotape.

[¶ 11] We have not addressed the scope of judicial inquiry and our standard of review under N.D.C.C. § 65-02-11. In a similar context, however, this Court has explained that the scope of judicial inquiry for applications for enforcement of administrative discovery orders, protective orders, and subpoenas is limited. Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 300 (N.D.1995). The district court’s inquiry in proceedings for enforcing an administrative subpoena is limited to whether: “(1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant to the inquiry of the administrative proceeding; (3) the subpoena is reasonably specific; and (4) the subpoena is not unduly broad or burdensome.” Id. at 300-01 (citations omitted). In Medical Arts Clinic, this Court held:

[J]udicial review of administrative discovery decisions regarding trade secrets, whether in the context of an application for enforcement ..., an appeal from a final agency decision, or in the limited circumstances where a writ of prohibition is available, is restricted by the doctrine of separation of powers. In those situations, a reviewing court may not insert itself into the agency’s administrative role. Rather, the hearing officer, like a trial judge in a civil action, is responsible in the first instance for exercising the wide range of his or her discretion in ruling on discovery issues, ... and those rulings are subject to judicial review under the narrow standard of abuse of discretion.

Id. at 301.

[¶ 12] Here, the district court was not reviewing an administrative hearing officer’s decision relating to administrative discovery, nor has the court refused to order enforcement of WSI’s subpoena. Rather, the court issued its initial order enforcing WSI’s ex parte, investigatory subpoena, but restricted WSI’s use of surveillance videotape. Upon WSI’s subsequent motion for contempt, the court issued an order denying WSI’s motion and clarifying the court’s previous order, restricting WSI from using the videotaped surveillance both before and during the depositions. Both parties have appealed from the court’s subsequent “Order on Motion for Contempt.” On appeal, WSI asks this Court to reverse the district court’s subsequent order “as it pertains to the prohibition of review of videotaped surveillance in connection with the depositions of’ the claimant’s treating physician and physician’s assistant.

[¶ 13] The court’s order imposing the restriction on WSI’s subpoena is in the nature of a protective order. Courts have reviewed a district court’s decision to issue a protective order imposing restrictions on an administrative subpoena for an abuse of discretion. See, e.g., United States v. Chevron U.S.A., Inc., 186 F.3d 644, 650 (5th Cir.1999) (reviewing district court’s protective order entered in conjunction with enforcement of administrative subpoenas for an abuse of discretion); see also McLaughlin v. Service Employees Union, AFL-CIO, Local 280, 880 F.2d 170, 174 (9th Cir.1989); Federal Trade Comm’n v. Shaffner, 626 F.2d 32, 38 (7th Cir.1980). Cf. Kramer v. Kramer, 2006 ND 64, ¶¶ 19-21, 711 N.W.2d 164 (holding district court’s issuance of protective order limiting discovery not an abuse of discretion). We review the district court’s order restricting WSI from showing the videotaped surveillance for an abuse of discretion. “A court abuses its discretion when it acts in an arbitrary, unreasonable, or [unjconsciona-ble manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law.” Kramer, at ¶ 20.

[¶ 14] WSI argues the district court erred because N.D.C.C. § 65-02-11 provides for broad investigatory powers, allowing WSI to do “anything necessary to facilitate or promote the efficient administration of [Title 65].” The district court, however, concluded that requiring the treating physician and physician’s assistant to be turned into expert witnesses for WSI is beyond the scope of N.D.C.C. § 65-02-11. In reviewing whether the district court misinterpreted or misapplied N.D.C.C. § 65-02-11, we look to the language of the statute.

[¶ 15] Statutory interpretation is a question of law, which is fully reviewable on appeal. Ballensky v. Flattum-Riemers, 2006 ND 127, ¶ 22, 716 N.W.2d 110; GO Comm. ex rel. Hale v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865.

The primary objective in interpreting a statute is to determine the legislature’s intent. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2).

Ballensky, at ¶ 22. In construing statutes, it is presumed that a just and reasonable result is intended. N.D.C.C. § 1-02-38(3); State v. Jackson, 2005 ND 137, ¶ 10, 701 N.W.2d 887. We interpret statutes to avoid unreasonable or absurd consequences. BASF Corp. v. Symington, 512 N.W.2d 692, 697 (N.D.1994).

[¶ 16] In this case, we believe it would be unreasonable to interpret the “anything necessary” language in N.D.C.C. § 65-02-11 as broadly as suggested by WSI. To avoid unreasonable or absurd consequences, we construe N.D.C.C. § 65-02-11 to require an element of reasonableness in determining the scope of the phrase “anything necessary.” See N.D.C.C. § 1-02-38(3); cf. Fandrich v. Wells County Bd. of County Comm’rs, 2000 ND 181, ¶ 20, 618 N.W.2d 166 (implying standard of reasonableness in applying statutory provisions relating to drainage of surface waters).

[¶ 17] Here, the district court’s only limitation on WSI’s discovery was to prohibit WSI from showing the videotaped surveillance of the claimant to the claimant’s treating physician and physician’s assistant in preparation for or during their respective depositions. The district court reasoned that compelling these witnesses to view the videotape and testify on their observations would inappropriately convert the claimant’s treating physician and physician’s assistant into expert witnesses for WSI. WSI argues that concerns about the physician-patient relationship are misplaced because the filing of a claim constitutes the claimant’s consent for WSI to use information received by the physician and hospital in connection with the claim under N.D.C.C. § 65-05-30.

[¶ 18] This Court has recognized the importance of the physician-patient relationship and the expectations of confidentiality which flow from that relationship. Tehven v. Job Serv. North Dakota, 488 N.W.2d 48, 51 (N.D.1992); see also N.D.R.Ev. 503 (physician-patient privilege). In Tehven, at 51 (citations omitted), this Court explained:

Generally, a physician may not disclose medical information acquired in treating a patient. The importance of physician-patient confidentiality is recognized in § 43-17-31(13), N.D.C.C., which provides that disciplinary action may be imposed upon a physician for “willful or negligent violation of the confidentiality between physician and patient.” Courts have generally recognized a patient’s right to recover damages from a physician for unauthorized disclosure of medical information as an invasion of privacy, a breach of the physician-patient confidential relationship, a violation of statute, or breach of the fiduciary relationship between a physician and a patient. The patient’s privilege against disclosure of medical information generally extends to hospital records. Thus, a hospital has a very important interest in maintaining the confidentiality of patients’ hospital medical records to avoid liability for unauthorized disclosure of patient medical information.

[¶ 19] Regarding the claimant’s consent for WSI to use information received by a physician, N.D.C.C. § 65-05-30 states:

The filing of a claim with the organization constitutes a consent to the use by the organization, in any proceeding by it or to which it is a party in any court, of any information, including prior and subsequent prognosis reports, medical records, medical bills, and other information concerning any health care or health care services which was received by any doctor, hospital, or clinic in the course of any examination or treatment of the claimant. The filing of such claim authorizes a doctor, hospital, or clinic to disclose any such information to the organization, its representative, or to the employer, except that any such information directly disclosed to the employer must be relevant to the employee’s work injury or to return to work issues. No physician or health care provider furnishing such reports or records incurs any liability as a result.

(Emphasis added.)

[¶20] The plain language of N.D.C.C. § 65-05-30 defines the scope of the claimant’s consent and refers to information received “in the course of any examination or treatment of the claimant.” The language does not give a claimant’s consent for the claimant’s treating physician to provide expert opinion or become an expert witness outside of the examining physician’s examination or treatment.

[¶ 21] WSI also asserts that N.D.C.C. § 65-02-24 provides immunity from civil liability for a person who assists WSI on any matter pertaining to an alleged violation of N.D.C.C. § 65-05-33 or provides information in the course of an investigation. However, the language of N.D.C.C. § 65-02-24 does not compel a claimant’s treating physician to become an expert for WSI’s investigations into alleged violations of N.D.C.C. § 65-05-33 outside of the treating physician’s or, in this case, physician’s assistant’s, examination or treatment of the claimant. Moreover, although a person may be immune from civil liability for assisting WSI under N.D.C.C. § 65-02-24, litigation could still result since the person assisting WSI must act in good faith and without malice, which may involve fact questions. See, e.g., Ballensky, 2006 ND 127, ¶ 28, 716 N.W.2d 110 (holding whether a patient’s physician acted in good faith when she made a report to a police officer created fact issues for purposes of determining whether physician was immune from liability for unauthorized disclosure).

[¶ 22] WSI argues that claimants’ treating physicians and other medical professionals are routinely asked to provide opinions that would constitute “expert opinions,” such as “the relationship of a condition to a work injury, the effect of a work injury on a pre-existing condition, the extent of a disability, maximum medical improvement, and whether an injured worker is capable of performing certain employment activities.” WSI further asserts that there are occasions when a claimant’s treating medical professional may be asked to review outside information, such as reviewing a job description or videotapes or photographs of a work station or work area, and express an opinion. While these types of requests for opinions from a claimant’s treating medical professionals would not necessarily diverge from claimant’s consent under the statute and the professional’s obligations to a patient, those circumstances are not present in this case. Here, WSI is attempting to compel the claimant’s treating physician and physician’s assistant, in the context of a fraud investigation under N.D.C.C. § 65-05-33, to observe videotaped surveillance and make new observations, which are potentially adverse to their patient and which go beyond the scope of the claimant’s consent in N.D.C.C. § 65-05-30.

[¶ 23] We have recognized that procedural due process has modest application at the investigative stage because of potential disruptions to the investigative process, such as transforming investigative hearings into trial-like proceedings and giving persons who might be indirectly affected by an investigation an absolute right to cross-examination of every witness called to testify. See, e.g., North Dakota Comm’n on Med. Competency v. Racek, 527 N.W.2d 262, 265-66 (N.D.1995).

[¶24] WSI correctly points out that this case is still in an investigative stage and has not reached an “adjudicative proceeding” as contemplated by N.D.C.C. §§ 28-32-01 and 28-32-33. However, what WSI is seeking here as a part of its investigation is not simply existing information from the claimant’s treating physician and physician’s assistant gained in the course of examination or treatment, but rather the ex parte creation of new expert opinion and testimony regarding observations of the videotape made outside of the physician-patient relationship. Cf. Brown v. Bi-Lo, Inc., 354 S.C. 436, 581 S.E.2d 836, 838 (2003) (holding statute governing disclosure of “existing” written records and documentary materials did not permit other ex parte communication between employer and claimant’s health care provider); Church’s Fried Chicken No. 1040 v. Hanson, 114 N.M. 730, 845 P.2d 824, 829 (App.1992) (holding district court’s authority to restrict ex parte discovery of worker’s treating physician supported by public policy considerations). Although the treating medical professionals’ viewing of videotaped surveillance may be appropriate at some later stage of the administrative process, such as in an adjudicative proceeding, WSI’s attempt to require the treating physician and physician’s assistant to view the videotaped surveillance and answer questions relating to the videotape at the investigatory stage seeks to interfere with the existing physician-patient relationship and goes beyond the scope of the consent granted by the claimant in N.D.C.C. § 65-05-30.

[¶ 25] On this record and under these circumstances, we conclude the district court did not act arbitrarily, unreasonably, or unconscionably, or misapply the law in placing reasonable limits upon WSI, which restricted WSI from requiring the claimant’s treating physician and physician’s assistant to review WSI’s videotaped surveillance of the claimant in preparation for or during their ex parte, investigatory depositions. We therefore conclude the court did not abuse its discretion.

III

[¶ 26] In its cross-appeal, Altru asserts this claim has reached an adjudicative stage and argues the district court erred in allowing WSI to take these depositions without requiring WSI give notice to the claimant. Because of our resolution of the issue on appeal, we deem it unnecessary to address the issue raised in Altru’s cross-appeal. Cf. Trinity Med. Ctr., Inc. v. Rubbelke, 389 N.W.2d 805, 807 n. 3 (N.D.1986) (stating unnecessary to address issues that do not influence the outcome of the case); Farmers State Bank of Leeds v. Thompson, 372 N.W.2d 862, 865 n. 3 (N.D.1985) (“[W]e need not consider issues not necessary to our decision.”).

IV

[¶ 27] The district court order is affirmed.

[¶ 28] GERALD W. VANDE WALLE, C.J., GEORGIA DAWSON, D.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ„ concur.

[¶ 29] The Honorable GEORGIA DAWSON, D.J., sitting in place of CROTHERS, J., disqualified.


author: SANDSTROM, Justice.

text:
    2007 ND 44
    CITY OF BELFIELD, Plaintiff and Appellee, v. Frederick Eugene KILKENNY, Defendant and Appellant.
    No. 20060176.
    Supreme Court of North Dakota.
    March 22, 2007.

      Robert A. Keogh, City Attorney, Keogh Law Office, Dickinson, N.D., for plaintiff and appellee.
    N. Robert Pesall, Flandreau, S.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Frederick Kilkenny appeals the district court judgment finding him guilty of violating a Belfield city ordinance that prohibits a nuisance in the form of excessive, continuous, or untimely dog barking. Concluding that the ordinance provides minimum guidelines for the reasonable police officer, judge, or jury charged with its enforcement and provides a reasonable person with adequate and fair warning of the prohibited conduct, we affirm.

I

[¶ 2] The municipal court found Kilken-ny guilty, and he appealed to the district court. At the district court trial, a neighbor testified that he called the police to complain about Kilkenny’s two dogs barking loudly enough to be heard inside his house “off and on all day,” “continuous[ly],” and “after hours” one evening between 8 and 9 p.m. The investigating officer testified that he heard the dogs barking and looked for whatever might be causing the dogs to bark. The officer testified he found nothing awry, so he did not issue a citation at that time. Upon receiving another complaint by the same neighbor thirty minutes later, the officer testified, he returned to the residence, confirmed that the dogs were barking again, and issued a citation, leaving it in the screen door. The officer testified he knew Kilkenny was not at home but had hired Melissa Gjermundson to care for his dogs. The neighbor testified that another law enforcement officer had also investigated Kilkenny’s dogs on a different occasion. According to the neighbor’s testimony, that officer made Kilkenny keep the dogs locked in the house from 7 p.m. to 7 a.m., but told him the dogs could be outside in the fenced yard the rest of the time. Gjer-mundson testified she knew people had complained about the dogs in the past and a schedule had been established to prevent further complaints about barking. She testified that she failed to put the dogs inside by 7 p.m. because her work shift lasted until 9:00 that night. She testified a police officer notified her of the neighbor’s complaint at 8:50 p.m. and she arrived in Belfield at 9:45 p.m. to put the dogs inside; however, she decided to take the dogs to her home because she “just didn’t want to deal with it anymore.”

[¶ 3] At a bench trial, the district court found Kilkenny guilty, imposed a $20 fine, and placed him on thirty days’ probation. Kilkenny appealed.

[¶ 4] The municipal court had jurisdiction under N.D.C.C. § 40-18-01. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06(4). This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 5] Kilkenny argues that the city ordinance violates his right to substantive due process guaranteed by the Fourteenth Amendment to the United States Constitution and article I, section 12 of the North Dakota Constitution, because the ordinance is unconstitutionally vague on its face.

[¶ 6] Kilkenny was convicted of violating the following municipal ordinance:

11.0204 Nuisance — When: Excessive, continuous, or untimely barking, molesting passers by, chasing vehicles, habitually attacking other domestic animals,. trespassing upon school grounds, or trespassing upon private property or damaging property by a dog or cat is hereby declared to be a nuisance. Further, any dog or cat without a valid license and collar is a nuisance.

Belfield, N.D., Rev.Code § 11.0204 (emphasis added). Under section 11.0201, Belfield Revised Code, dogs older than one month must be licensed “to be or remain in the City....” Further, section 11.0202, Belfield Revised Code, requires “[a]ll dogs and cats kept in the City shall be registered as to sex, breed, name and address of the owner and name of dog or cat” and imposes a $2.50 license fee for male dogs and $5.00 fee for female dogs. “Any violation of the terms of this Chapter constitutes an infraction” punishable by “a fine not to exceed $100 or ... imprisonment not exceeding thirty (30) days, or by both.... ” Belfield Revised Code § 11.0301.

[¶ 7] Under the Fourteenth Amendment, no State may “deprive any person of life, liberty or property, without due process of law....” U.S. Const, amend. XIV, § 1. Article I, section 12 of the North Dakota Constitution also provides: “No person shall ... be deprived of life, liberty or property without due process of law.” Although the words of the federal due process clause might suggest that it governs only the procedures by which a State may deprive persons of life, liberty, or property, it has been interpreted to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them ... it serves to prevent governmental power from being used for purposes of oppression.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986) (internal quotations and citations omitted).

[¶ 8] The standard of review for a claimed violation of a constitutional right is de novo. State v. Campbell, 2006 ND 168, ¶ 6, 719 N.W.2d 374. “Generally, the rules of construction applicable to state statutes apply in the construction of municipal ordinances.” Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131, 141 (N.D.1984). We construe statutes to avoid constitutional infirmities. Leet v. City of Minot, 2006 ND 191, ¶ 13, 721 N.W.2d 398. “ ‘Any doubt must be resolved in favor of the constitutionality of the statute.’ ” State v. Tweed, 491 N.W.2d 412, 418 (N.D.1992) (quoting N.D. Council of Sch. Adm’rs v. Sinner, 458 N.W.2d 280, 285 (N.D.1990)).

[¶ 9] The United States Supreme Court has distinguished between two doctrines used to challenge laws claimed to be facially unconstitutional:

First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Kilkenny’s failure to prevent his dogs from barking excessively, continuously, or at the wrong time does not reach a substantial amount of constitutionally protected conduct. See Nicchia v. People of New York, 254 U.S. 228, 230, 41 S.Ct. 103, 65 L.Ed. 235 (1920) (“Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right.”); Village of Litchville v. Hanson, 19 N.D. 672, 676, 124 N.W. 1119, 1120 (1910) (owning dogs is a privilege subject to licensing and fees); but see, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (the presumption of constitutionality is narrowed when a law impinges on the rights enumerated in the Bill of Rights, restricts participation in political processes, or discriminates against “discrete and insular minorities”). Because the ordinance at issue regulates citizens’ control over their dogs and cats, we apply the test set forth in Kolender and its progeny.

[¶ 10] All laws must meet two requirements to survive a void-for-vagueness challenge: (1) the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and (2) the law must provide a reasonable person with adequate and fair warning of the proscribed conduct. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); accord Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); State v. Eldred, 1997 ND 112, ¶ 24, 564 N.W.2d 283. “We review the statute to determine if these two dictates are clear under a ‘reasonable person’ standard.” Eldred, at ¶ 24 (quoting State v. Mertz, 514 N.W.2d 662, 668 (N.D.1994) (“In determining whether the meaning of a statute is fairly ascertainable or adequate warning is given, we view the statute from the standpoint of the reasonable person who might be subject to its terms.”)).

[¶ 11] “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender, 461 U.S. at 358, 103 S.Ct. 1855 (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)). “For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noneriminal statutes. This is simply because it would be unthinkable to convict a man for violating a law he could not understand.” Barenblatt v. United States, 360 U.S. 109, 137, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

[¶ 12] Although Kilkenny tries to suggest some difference between the state and federal constitutions, the essence of his argument is that residents of a small town in a farming and ranching area of the state have a different idea of what is reasonable noise, than people of the United States as a whole. This is essentially not an argument of law, but of fact to be decided by the fact finder.

A

[¶ 13] A law will be found “unconstitutionally vague on its face because it encourages arbitrary enforcement.” Kolender, 461 U.S. at 361-62, 103 S.Ct. 1855; Eldred, 1997 ND 112, ¶ 24, 564 N.W.2d 283.

[¶ 14] In this case, Kilkenny was convicted of violating the City ordinance that prohibits a nuisance in the form of excessive, continuous, or untimely dog barking. See Belfield Revised Code § 11.0204. A nuisance “[a]nnoys, injures, or endangers the comfort, repose, health, or safety of others ... or [i]n any way renders other persons insecure in life or in the use of property.” N.D.C.C. § 42-01-01(1), (4).

[¶ 15] “To adjudge excessive or unusual noise, officers must rely on then-sense of hearing just as they must rely on their sense of sight for speeding violations or their sense of smell for DUI violations.” State v. Beyer, 441 N.W.2d 919, 922 (N.D.1989) (upholding a car muffler ordinance designed “to prevent excessive or unusual noise and annoying smoke”). “[T]he law does not require that every police officer have with him ... a decibel counter to verify what he ... hears.” Id. (citation omitted). “After all, a police officer is not simply an emotionless, faceless enforcer, but is also a person whose peace is important since he represents the public.” Wolf v. N.D. Dep’t of Transp., 523 N.W.2d 545, 547 (N.D.1994). “An officer’s observations based upon his sense of hearing are subject to the same type of trial scrutiny, through cross examination and introduction of rebuttal evidence, as are all other observations made by an officer.” Beyer, 441 N.W.2d at 922. The Beyer Court upheld the constitutionality of this anti-noise statute:

Every motor vehicle must at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise and annoying smoke, and no person may use a muffler cutout, bypass, or similar device upon a motor vehicle on a highway.

Beyer, 441 N.W.2d at 920 (quoting N.D.C.C. § 39-21-37(1)). The law enforcement officer stopped Beyer because his “vehicle was ‘louder than most vehicles driving around’ and was ‘backfiring quite loud.’ ” Beyer, 441 N.W.2d at 920. The Beyer Court quoted with approval cases from other jurisdictions that found the phrase “excessive noise or unusual noise” not impermissibly vague in the context of automobile regulation, including this New York case:

The evil sought to be prevented is “excessive or unusual noise”. What is unusual noise in the operation of a car has become common knowledge and anything in excess of that is excessive or unusual and any ordinary motorist should have no difficulty in ascertaining whether or not excessive or unusual noise accompanied the operation of his vehicle.

Id. at 921 (quoting People v. Byron, 17 N.Y.2d 64, 268 N.Y.S.2d 24, 26, 215 N.E.2d 345 (1966)).

[¶ 16] Other jurisdictions’ dog-barking statutes with exact or similar language either were sufficiently definite to survive a void-for-vagueness challenge or were unchallenged on substantive due process grounds. See, e.g., Patterson v. City of Richmond, 39 Va.App. 706, 576 S.E.2d 759, 762 (2003) (finding sufficient evidence for a violation of an ordinance that prohibited dogs from barking “in an excessive, continuous, or untimely fashion”); Town of Baldwin v. Carter, 794 A.2d 62, 66 (Me.2002) (finding the term “continued or repeated” not impermissibly vague); State v. Taylor, 128 N.C.App. 616, 495 S.E.2d 413, 416 (1998) (“The terms ... ‘habitually,’ ‘repeatedly,’ ‘excessive,’ ‘annoy,’ ‘disturb,’ ... have common ordinary meanings by which to understand and measure the noise of a particular animal.”); Commonwealth v. Ferreri, 30 Mass.App.Ct. 966, 572 N.E.2d 585, 587 (1991) (finding the phrase “excessive barking” not impermissibly vague); State v. Olson, 8 Conn.App. 188, 511 A.2d 379, 380 (1986) (finding sufficient evidence of “excessive barking”).

[¶ 17] Here, the Belfield police officer who issued the citation testified that he could hear the dogs barking “quite a ways down the street” and when he arrived at Kilkenny’s' property. When asked what excessive meant, the officer testified: “excessive is anything that disturbs the peace and tranquility of a neighborhood.” He also said he understood the dog-barking ordinance to mean that a dog could be barking excessively, continuously, and at the wrong time and still not violate the ordinance if, for example, the owner’s house were on fire. We think this approach imports a degree of common sense present in any reasonable law enforcement officer. Any reasonable judge or jury could infer that at least two of Kilkenny’s purposes for owning two large dogs could be for property protection and warning, because he admitted that he travels frequently for extended periods. Although Kilkenny argues the City ordinance fails to narrow the almost limitless set of possibilities that could combine to constitute a violation — such as the dog’s breed, time of day, type of bark, loudness of bark, location of bark, number of barks, number of dogs, distance from neighbors — -we expect law enforcement, judges, and juries to weigh numerous factors all the time. Citizens notify the police when they observe suspicious, dangerous, or potentially illegal behavior. Law enforcement investigates a citizen’s allegation by dispatching an officer who must rely on his or her individual knowledge of the law, experience, training, and moral character. Kilkenny implied that his neighbor’s complaint was the product of an ongoing feud, although the record does not reveal this alleged vindictiveness. Once again, we rely on police officers to discern motives and judge credibility when investigating complaints. In this case, the officer investigated the neighbor’s complaint. The record fails to disclose the reason for the officer’s decision not to issue a citation during the first visit to Kilkenny’s property. A second complaint thirty minutes later by the same neighbor resulted in a citation because the dogs were barking. While it is certainly reasonable to surmise that the dogs started barking again only because the officer arrived, the neighbor’s testimony demonstrates that the dogs had been barking absent such stimulus. We conclude this is circumstantial evidence of excessive or continuous barking. Given the time of day of the complaint, the district court could have reasonably found it to be untimely barking. Furthermore, Kilkenny hired a keeper who knew about the schedule established because of past complaints about the two large-breed dogs. Even had there been no such schedule, the fact that the dogs were barking from 8:00 p.m. to 9:45 p.m. certainly could be found to be “untimely barking.”

[¶ 18] As this Court said in Beyer, we do not require police officers to carry decibel meters to judge excessively loud car mufflers; therefore, we certainly will not require them to scientifically test the loudness of a yip, yowl or bark. The reasonable police officer will “know it when [he hears] it.” See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring) (“[T]he Court ... was faced with the task of trying to define what may be indefinable.... But I know it when I see it....”).

B

[¶ 19] “[A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited....” Kolender, 461 U.S. at 357, 103 S.Ct. 1855. Moreover,

because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Grayned, 408 U.S. at 108, 92 S.Ct. 2294; accord Eldred, 1997 ND 112, ¶ 24, 564 N.W.2d 283. “The mere use of general language does not support a vagueness challenge: ‘The test of defmitiveness of a statute is met if the meaning of the statute is fairly ascertainable by reference to similar statutes or to the dictionary, or if the questioned words have a common and generally accepted meaning.’ ” Olson v. City of West Fargo, 305 N.W.2d 821, 828 (N.D.1981) (quoting State v. Woodworth, 234 N.W.2d 243, 246 (N.D.1975)).

1

[¶ 20] “Excessive” means “being too much or too great; immoderate; inordinate.” Webster’s New World Dictionary 488 (2d ed.1980). Another source defines “excessive” as “exceeding the usual, proper, or normal ... very large, great, or numerous ... greater than usual ... describes whatever notably exceeds the reasonable, usual, proper, necessary, just, or endurable.... ” Webster’s Third New International Dictionary of the English Language Unabridged 792 (16th ed.1971). When construed in the context of a public nuisance, “excessive” likely includes noise that affects health, quality of life, or enjoyment of property. See Lindteigen v. City of Bismarck, 1997 ND 123, ¶ 8, 565 N.W.2d 47 (concluding that the potential for excessive noise, danger to the public, and depreciation of neighboring properties exceeded the private benefit of allowing a person to build a private' airport on his land zoned for agriculture). In the context of automobile anti-noise statutes, this Court held the adjective “excessive” not impermissibly vague because its meaning is “within the common knowledge of drivers.” State v. Beyer, 441 N.W.2d 919, 921-22 (N.D.1989) (collecting cases from other jurisdictions that found automotive noise laws using the phrase “excessive or unusual noise” not unconstitutionally vague).

[¶ 21] Kilkenny’s neighbor testified he could hear the dogs barking while he was inside his home. Gjermundson, the dogs’ keeper, testified that Kilkenny often traveled for extended periods and hired her to take care of his dogs during his absences. Had Gjermundson failed to close the gate and allowed Kilkenny’s dogs to roam the City, the dogs would still have been subject to being impounded and, according to another Belfield ordinance, destroyed if not claimed after three days. See Belfield Revised Code § 11.0206. Therefore, a reasonable person would hire a responsible caretaker not only to feed and water the dogs, but also to prevent the dogs, as far as reasonably possible, from harming others in any way, which includes creating a nuisance by their barking. Gjermundson failed to make other arrangements to put the dogs inside Kilkenny’s home — where they apparently do not bark or cannot be heard by the neighbors.

[¶ 22] People have owned dogs longer than they have owned cars. If “excessive” is easily understood by automobile owners, so too is that term understood by reasonable dog owners and their neighbors. As such, the term “excessive” is not impermis-sibly vague.

2

[¶ 23] “Continuous” means “going on or extending without interruption or break; unbroken; connected.” Webster’s New World Dictionary 308 (2d ed.1980). It is “characterized by uninterrupted extension in time or sequence ... continuing without intermission or recurring regularly after minute interruptions.... ” Webster’s Third New International Dictionary of the English Language Unabridged 493-94 (16th ed.1971).

[¶ 24] Here, Kilkenny’s neighbor testified about how the two dogs were barking:

Q. And how many dogs were there?
A. Two.
Q. And what were they doing?
A. Just barking.
Q. I mean, was it one bark, two barks?
A. Continuous, both of them, one would quit, the other would start.
Q. For what period of time did you listen to this?
A. Before I called?
Q. Yes.
A. Oh, just a matter of minutes.
Q. So they barked continuously for minutes and then you called?
A. Oh yes.
Q. Had they been quiet before that?
A. They would bark off and on all day long.

[¶ 25] A reasonable person would not think “continuous” means merely one or two barks in sequence or believe that a dog would have to bark without interruption for hour upon hour. As the neighbor explained, “one [dog] would quit, [and] the other would start.” Under a reasonable person standard, the term “continuous” is not impermissibly vague.

3

[¶ 26] “Untimely” means “done ... before the usual or expected time; at the wrong time.” Webster’s New World Dictionary 1558 (2d ed.1980). “ ‘The gravity of the harm from noises that disturb a person’s sleep, for example, is ordinarily much greater when the noises occur at night than it is when the noises occur in the daytime.’” Rassier v. Houim, 488 N.W.2d 635, 640 (N.D.1992) (Meschke, J., concurring and dissenting) (quoting Restatement (Second) of Torts § 827 cmt. b (1979)). The prohibition of “untimely barking” likely means at hours when most people are seeking peace and quiet.

[¶ 27] Kilkenny’s neighbor complained to the police after the two dogs allegedly had been barking between 8 and 9 p.m. The dog’s keeper testified that she arrived at Kilkenny’s residence at 9:45 p.m. and then took the dogs to her home to avoid any further complaints by the neighbor. The neighbor testified that the dogs were barking during the day, but he did not complain until that evening.

[¶ 28] Because the words excessive, continuous, or untimely have come within the knowledge and understanding of dog owners and their neighbors, they are not unconstitutionally vague. Additional objective standards are unnecessary to warn citizens of the prohibited conduct. Kilken-ny’s claim that he lacked notice of the prohibited conduct was further damaged by the fact that he hired a person not only to take care of his dogs but also to ensure the dogs were inside by a certain time every night to prevent complaints about their barking. Only when the dogs were outside and barking after that time did the neighbor complain.

III

[¶ 29] We affirm the judgment.

[¶ 30] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.