author: HALBROOKS, Judge.

text:
    William STEWART, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.
    No. A06-759.
    Court of Appeals of Minnesota.
    Feb. 27, 2007.

      Raymond R. Peterson, McCoy, Peterson <& Jorstad, Ltd., Minneapolis, MN, for respondent.
    Roger H. Gross, Timothy J. Crocker, Gislason & Hunter, LLP, Minneapolis, MN, for appellant.

      Considered and decided by STONEBURNER, Presiding Judge; HALBROOKS, Judge; and HUSPENI, Judge.

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

   OPINION

HALBROOKS, Judge.

Appellant insurer challenges the district court’s denial of summary judgment based on the district court’s determination that appellant’s policy exclusion is invalid and unenforceable against respondent. Appellant argues that respondent is precluded from recovering excess uninsured-motorist (UM) benefits because (1) appellant’s spouse’s policy with appellant contains an exclusion that bars coverage for owned-but-not-insured vehicles and (2) respondent is an “insured” under his employer’s insurance policy for purposes of the Minnesota No-Fault Automobile Insurance Act (no-fault act), Minn.Stat. §§ 65B.41-.71 (2006). Because we conclude that appellant’s policy exclusion is unenforceable under these circumstances and that respondent is not an “insured” under his employer’s policy for purposes of the no-fault act, we affirm.

FACTS

On August 2, 2001, respondent William Stewart was injured in a motor-vehicle accident when the driver of another vehicle ran a red light and struck Stewart’s vehicle. At the time of the accident, Stewart was driving in the course and scope of his employment as a courier for Quicksilver Express. Stewart brought a workers’ compensation claim against his employer and a third-party liability claim against the at-fault driver, who was subsequently determined to be uninsured. Stewart owned the vehicle that he was driving at the time of the accident, but it was insured under his employer’s policy with United States Fire Insurance Company (USFIC), which had a UM coverage limit of $50,000 per person.

Stewart’s wife owned a vehicle that was not involved in the accident; that vehicle was insured by appellant Illinois Farmers Insurance Company. Stewart’s wife was the named insured on the Illinois Farmers policy. It is undisputed that, under the terms of the Illinois Farmers policy, Stewart is an additional insured as a spouse. The Illinois Farmers policy provided UM coverage of $100,000 per person and $300,000 per occurrence.

Stewart received the $50,000 UM benefit limit from USFIC. Because his damages exceeded that amount, Stewart sought excess UM benefits from Illinois Farmers. Illinois Farmers denied Stewart’s claim on the ground that the policy excluded coverage for vehicles that the insured owned but did not insure. Stewart brought a declaratory-judgment action to determine coverage, and Illinois Farmers moved for summary judgment.

The district court determined that the Illinois Farmers policy exclusion is invalid and unenforceable against Stewart and denied Illinois Farmers’ motion for summary judgment and its subsequent motion for reconsideration. The parties then entered into a stipulation for entry of judgment in favor of Stewart and against Illinois Farmers for UM benefits in the amount of $50,000, and judgment was entered. This appeal follows.

ISSUE

Is the exclusion in the Illinois Farmers policy valid and enforceable against Stewart so as to preclude his recovery of excess uninsured-motorist benefits?

ANALYSIS

The underlying issues in this case involve the interpretation of an insurance contract and Minn.Stat. §§ 65B.41-.71 (2006) (the no-fault act), which we review de novo. See Dohney v. Allstate Ins. Co., 632 N.W.2d 598, 600 (Minn.2001) (stating that appellate courts review statutory interpretation and interpretation of insurance contracts de novo); see also Nelson v. Am. Family Ins. Group, 651 N.W.2d 499, 503 (Minn.2002) (holding that interpretation of the no-fault act is a question of law, which appellate courts review de novo).

The no-fault act was adopted for the purpose of relieving the severe economic distress of uncompensated automobile-accident victims. Minn.Stat. § 65B.42(1). “[T]he purpose of the no-fault act is to fully compensate the insured to the extent of the mandated insurance.” Scheibel v. Ill. Farmers Ins. Co., 615 N.W.2d 34, 39 (Minn.2000). “[PJolicy terms that conflict with the.No-Fault Act will be held invalid.” Kwong v. Depositors Ins. Co., 627 N.W.2d 52, 55 (Minn.2001). The no-fault act requires every vehicle owner to carry, and every insurance policy to provide, certain first-party benefits, including UM coverage. Minn.Stat. § 65B.49, subds. 2, 3a.

UM coverage provides for the “protection of persons insured under that coverage who are legally entitled to recover damages for bodily injury from owners or operators of uninsured motor vehicles.” Minn.Stat. § 65B.43, subd. 18. Uninsured vehicles are defined as “motor vehicle[s] ... for which a plan of reparation security ... is not in effect.” Minn.Stat. § 65B.43, subd. 16. But “as long as insurance is available to cover the vehicle at the time of accident, the vehicle is not uninsured.” Wilson v. State Farm Mut. Auto. Ins. Co., 451 N.W.2d 216, 220 (Minn.App.1990) (citing Sorbo v. Mendiola, 361 N.W.2d 851, 853 (Minn.1985)), review denied (Minn. Mar. 22,1990).

The Illinois Farmers policy included what is known as a “family-owned-vehicle” exclusion, which stated that UM “coverage does not apply to bodily injury sustained by a person ... [wjhile occupying any vehicle owned by you or a family member for which insurance is not afforded under this policy....” In addition, the Illinois Farmers policy included a “commercial-use” exclusion, which stated that coverage did not apply to “your insured car when used to carry persons or property for a charge.”

I.

Illinois Farmers argues that Stewart is barred from recovering excess UM benefits from Illinois Farmers based on the family-owned-vehicle exclusion. Stewart argues, and the district court held, that the exclusion does not apply here because the vehicle was insured and, thus, satisfied the no-fault statutory scheme. This is a case of first impression; in our review of the caselaw, we have not found a ease factually similar where an individual seeking excess UM benefits was injured while operating a vehicle that he owned and that was insured, albeit by a different entity.

When insurance policy language is clear and unambiguous, “the language used must be given its usual and accepted meaning.” Lobeck, 582 N.W.2d at 249 (quotation omitted). “[EJxclusions in a policy ... are as much a part of the contract as other parts thereof and must be given the same consideration in determining what is the coverage.” Id. (quotation omitted). “As long as an insurance policy does not omit coverage that is required by law and the policy does not violate applicable statutes, the extent of the insurer’s liability is governed by the contract entered into.” Id. (quotation omitted). Therefore, before we may enforce a coverage exclusion, we must determine whether that exclusion “omits coverage required by law or violates an applicable statute.” Id.

Here, the district court concluded that the Illinois Farmers’ family-owned-vehicle exclusion was unenforceable because it precluded excess UM coverage to which Stewart was entitled. Illinois Farmers challenges the district court’s conclusion, relying on current caselaw, including Wintz v. Colonial Ins. Co. of Cal., 542 N.W.2d 625 (Minn.1996), to support its argument that the exclusion is enforceable.

As the supreme court noted in Wintz, in 1985, “the legislature amended [the no-fault act] to allow insurance companies to exclude certain vehicles from uninsured motorist coverage if the vehicle was owned by the policyholder, but not insured by the policyholder.” Id. at 626 (citing Minn.Stat. § 65B.49, subd. 3a(7) (Supp. 1985)). Specifically, the amendment stated that “uninsured ... motorist coverages required by this subdivision do not apply to bodily injury of the insured while occupying a motor vehicle owned by the insured, unless the occupied vehicle is an insured motor vehicle.” Minn.Stat. § 65B.49, subd. 3a(7). Thus, UM coverage on one vehicle does not apply “to bodily injury suffered by the insured while occupying a second vehicle he owns, unless the occupied vehicle is itself insured.” Perfetti v. Fid. & Cas. Co. of N.Y., 486 N.W.2d 440, 443 (Minn.App.1992) (citing Minn.Stat. § 65B.49, subd. 3a(7)).

Currently, there are two recognized scenarios in which a family-owned-vehicle exclusion will be enforced: (1) a policyholder attempts to recover UM benefits under his own policy when injured in an accident involving another family-owned vehicle that is uninsured; and (2) the insured attempts to convert coverage from first-party to third-party benefits. Wintz, 542 N.W.2d at 626-27; Perfetti, 486 N.W.2d at 443-44. Illinois Farmers is not arguing that Stewart is attempting to convert first-party to third-party benefits. Rather, Illinois Farmers argues that because Stewart owned but did not, himself, insure the vehicle involved in the accident, he is precluded from recovering excess UM benefits as a result of the family-owned-vehicle exclusion.

We agree with the district court that the family-owned-vehiele exclusion is not enforceable here because of the unique circumstances that are present. Cases such as Wintz involve vehicles that were uninsured. In Wintz, Linda Wintz was injured while riding as a passenger on an uninsured motorcycle that her husband owned and was operating. 542 N.W.2d at 626. The insurer of Wintz’s husband’s automobile denied UM benefits. Id. The district court granted the insurer’s summary-judgment motion. Id. This court reversed on the ground that, because Linda Wintz had not failed to insure the motorcycle, the UM coverage should follow the person. Id. The supreme court reversed this court, concluding that an exclusion that precluded coverage for vehicles that were owned by or available for the regular use of the policyholder but not insured by the policyholder was valid. Id. at 627. The supreme court stated that allowing the wife to recover benefits would essentially “allow a policyholder to insure only one vehicle, and gain [liability] coverage on any/all other uninsured vehicles?’ Id.

This case is distinguishable from cases like Wintz for two reasons. First, Stewart is not attempting to convert first-party coverage into third-party liability coverage. Second, and more importantly, Stewart’s vehicle was insured at the time of the accident. The no-fault act allows for the exclusion of vehicles that are owned but uninsured. MinmStat. § 65B.49, subd. 3a(7). But as long as insurance is available to cover a vehicle at the time of accident, the vehicle is not uninsured. Wilson, 451 N.W.2d at 220 (citing Sorbo, 361 N.W.2d at 853). Also, the language of Minn.Stat. § 65B.49, subd. 3a(7), does not specify the manner in which a vehicle must be insured, and it does not specify whether the insured must pay the premiums.

Here, Stewart owned the vehicle that was involved in the accident. And although he did not insure it directly, the vehicle was insured. As a result, the terms of Minn.Stat. § 65B.49, subd; 3a(7), are met. Under these circumstances, we conclude that precluding Stewart from receiving excess UM coverage would violate the no-fault act’s purpose of ensuring that victims of automobile accidents receive adequate compensation for their injuries.

Illinois Farmers further argues that subdivision 3a(7) ties UM coverage to a particular vehicle and not to an individual, under cases such as Turner v. Mut. Serv. Cas. Ins. Co., 675 N.W.2d 622, 624 (Minn.2004) (citing Hanson v. Am. Family Mut. Ins. Co., 417 N.W.2d 94, 96 (Minn.1987)). But, like Wintz, these cases are factually distinguishable from the present case. Hanson is another case involving a vehicle that was owned by the policyholder but was uninsured. 417 N.W.2d at 96. Turner is distinguishable because it involved a rental car. 675 N.W.2d at 626. Moreover, these cases do not stand for the proposition that an individual can be precluded from recovering first-party benefits because of the vehicle he is occupying. The cases simply recognize that, under the no-fault act’s statutory framework, an injured party must first look to the UM coverage provided on the occupied vehicle. See id. at 624, 626 (holding that although the injured parties were not entitled to UM coverage under a rental car company’s insurance policy, they still had access to UM coverage under their personal insur-anee policy). Here, Stewart first looked to his employer’s policy and recovered the maximum amount of UM benefits that he could through the coverage on his vehicle. Only then did he attempt to recover UM benefits from Illinois Farmers.

Ultimately, Illinois Farmers is arguing that the present caselaw stands for the proposition that vehicle owners must obtain coverage for their vehicles. We agree. We recognize that there is a “legislative interest in requiring owners of motor vehicles in this state to maintain insurance policies to compensate for losses associated with maintenance or use of a motor vehicle.” Am. Nat’l Prop. & Cas. Co. v. Loren, 597 N.W.2d 291, 294 (Minn.1999) (footnote and quotation omitted). But Illinois Farmers fails to recognize that Stewart did obtain coverage for his vehicle. Stewart had insurance coverage on his vehicle through his employer, and he is not attempting to convert first-party coverage into liability coverage. On this record, we conclude that the district court did not err in determining that the Illinois Farmers’ family-owned-vehicle exclusion is unenforceable against Stewart.

II.

Illinois Farmers argues that Stewart is barred from recovering excess UM benefits under its policy because Stewart was an insured under his employer’s policy with USFIC. Generally, if an “injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured.” Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 745 (Minn.2001) (quoting Minn.Stat. § 65B.49, subd. 3a(5)). The no-fault act provides explicit guidance, stating:

If at the time of the accident the injured person is occupying a motor, vehicle, the limit of liability for uninsured ... motorist coverage[ ] available to the injured person is the limit specified for that motor vehicle. However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured. The excess insurance protection is limited to the extent of covered damages sustained ....

Minn.Stat. § 65B.49, subd. 3a(5).

The Minnesota Supreme court recently interpreted subdivision 3a(5) as follows:

The first sentence of subdivision 3a(5) directs injured occupants to seek UM7 UIM coverage initially from the insurer of the motor vehicle they occupied at the time of the accident and establishes as limits of liability those specified in the policy on the occupied vehicle. The second sentence of the subdivision provides that if the injured person is not an insured of the occupied motor vehicle, the injured person may then be entitled to seek excess insurance protection through another automobile insurance policy in which the injured person is insured.

Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7, 11 (Minn.2000) (citations omitted).

According to the no-fault act, an “insured” is defined as

the named insured [on the policy] and the following persons not identified by name as an insured while (a) residing in the same household with the named insured and (b) not identified by name in any other contract for a plan of reparation security complying with sections 65B.41 to 65B.71 as an insured:
(1) a spouse,
(2) other relative of a named insured, or
(3) a minor in the custody of a named insured or of a relative residing in the same household with a named insured.

Minn.Stat. § 65B.43, subd. 5. For the purposes of subdivision 3a(5), the correct interpretation of “insured” is those persons specifically listed in section 65B.43, subdivision 5. Becker, 611 N.W.2d at 13.

Here, Stewart’s employer, Quicksilver Express Courier of Minnesota, was the named insured on the USFIC policy. Stewart’s vehicle was listed as a covered auto, and Stewart was identified as the vehicle owner in a separate endorsement section so that he was not excluded from liability coverage. Illinois Farmers argues that because Stewart is identified in his employer’s policy, he may not seek excess UM benefits from Illinois Farmers. In support of its argument, Illinois Farmers relies on Jensen v. United Fire & Cas. Co., 524 N.W.2d 536 (Minn.App.1994), review denied (Minn. Feb. 3, 1995), and LaFave v. State Farm Mut. Auto. Ins. Co., 510 N.W.2d 16 (Minn.App.1993). But those cases are distinguishable.

Illinois Farmers cites LaFave for the proposition that “[w]here an insured qualifies as an insured under the policy covering the vehicle in question, there is no [excess UM] coverage.” In LaFave, Sharon LaFave was injured in an accident with an uninsured motorist while riding in a pickup truck owned and operated by her husband. 510 N.W.2d at 17. Sharon La-Fave’s husband maintained insurance coverage on the truck with St. Paul Fire and Marine Insurance Companies (St. Paul Cos.). Id. After Sharon LaFave recovered UM benefits from St. Paul Cos., she sought excess UM benefits from State Farm Mutual Automobile Insurance Company (State Farm) on a policy covering another vehicle that she owned. Id. The terms of that policy excluded UM coverage if the claimant was “an insured” under a policy covering the vehicle occupied at the time of the injury. Id. at 18. Specifically, State Farm’s policy indicated that UM coverage “does not apply if the injured person is an insured under a policy covering the vehicle occupied at the time the bodily injury is sustained.” Id. The district court granted summary judgment to State Farm, id., and we affirmed on the ground that Sharon LaFave was not entitled to excess UM benefits because she was an insured under the St. Paul Cos. policy that covered the involved vehicle. Id. at 19. Here, Stewart is not a spouse, a minor in the custody of, or a resident relative of his employer. LaFave is, therefore, distinguishable.

Illinois Farmers cites Jensen for the proposition that identifying an employee in an insurance policy makes that employee an insured under that policy. In Jensen, the father and natural guardian of a child who was injured in a motor-vehicle accident sought underinsured-motorist benefits from his commercial insurer. 524 N.W.2d at 537-38. The insurance policy specifically identified the business, Eagle Excavating, as the named insured on the policy. Id. at 539. The policy also listed “Jensen Roger DBA.” Id. at 540. We affirmed the district court’s determination that the commercial policy did not cover the individual claim. Id. Therefore, identifying an individual in a policy does not automatically make that individual an insured under the policy.

Illinois Farmers fails to point to any authority indicating that identifying an individual on a policy makes that person a named insured for the purposes of Minn. Stat. § 65B.49, subd. 3a(5). Illinois Farmers also fails to cite any authority indicating that an “additional insured” is considered a named insured for the purposes of Minn.Stat. § 65B.49, subd. 3a(5). Finally, as indicated above, nothing in the language of the USFIC policy indicates that “additional insured” status is equal to “named insured” status.

We, therefore, conclude that because Stewart is not an insured under his employer’s policy, he is not barred from recovering excess UM benefits from Illinois Farmers.

DECISION

We affirm the district court’s denial of summary judgment to Illinois Farmers.

Affirmed.

      . First-party benefits, including both uninsured- and underinsured-motorist benefits, pay for an insured's own losses and expenses in the event of an accident. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 250 (Minn.1998). Third-party benefits, by contrast, compensate third parties who are injured in accidents for which the insured is liable. Id. "The No-Fault Act is primarily aimed at providing first-party benefits to the insured, thereby eliminating the need to prove liability before an injured party can recover medical or other expenses.” Id. at 249.

      . A "plan of reparation security” is a contract or other legal means under which there is an obligation to pay no-fault benefits. Minn. Stat. § 65B.43, subd. 15.

      . Illinois Farmers also argues that Stewart should have insured his own vehicle and chosen to pay a higher level of UM coverage than that afforded under his employer’s policy. But, as respondent notes, if Stewart had attempted to personally insure his vehicle with Illinois Farmers, Illinois Farmers’ commercial-use exception would have barred recovery, because Stewart was using his vehicle during the course of his employment as a courier.

      . The supreme court has consistently enforced policy exclusions that prevent insureds from converting first-party coverage into third-party liability coverage. Kelly v. State Farm Mut. Auto. Ins. Co., 666 N.W.2d 328, 332 (Minn.2003). Coverage conversion occurs when an at-fault driver attempts to use first-party benefits to substitute for or supplement inadequate third-party liability coverage. Id. at 331. In Kelly, for example, a passenger who was injured in an accident suffered damages that exceeded the amount of liability coverage purchased by the at-fault driver. Id. Therefore, the court held that the at-fault driver was personally liable for any of the passenger’s excess damages, and the court did not allow him to supplement his liability coverage with cheaper underinsured-motorist coverage that he had through a separate policy. Id.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2007 ND 27
    STOCKMAN BANK OF MONTANA, a Montana banking corporation, Plaintiff and Appellee v. AGSCO, INC., a North Dakota corporation, Capital Harvest, Inc., d/b/a Capital Harvest Finance Company, a North Dakota corporation, individually and as agent for AGSCO, Inc., Farmers Union Oil Company of Williston, a North Dakota cooperative association, MON-KOTA, Inc., a Montana corporation, Betaseed, Inc., a Minnesota corporation, Central Insurance Agency, a North Dakota corporation, Steven D. Cayko, a/k/a Steve Cayko, Perry Elletson, a/k/a Perry E. Elletson, Ron Gross, a/k/a Ronnie Gross, Edward P. Ochs, a/k/a Eddie Ochs, Tom Ochs, Mark Brunelle, Kelly Brunelle, and Bill Sheldon, Defendants and Farmers Union Oil Company of Williston, a North Dakota cooperative association, Third-party Plaintiff v. Hardy Farm, Inc., and Jim Hardy, Third-party Defendants Betaseed, Inc., a Minnesota corporation, Defendant and Appellant.
    No. 20060119.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      Garth H. Sjue (argued) and Ken G. Hedge (on brief), Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Williston, N.D., for plaintiff and appellee.
    H. Malcolm Pippin (argued), Joel M. Fremstad (on brief), and Kimberly L. Peterson (on brief), Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Williston, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Betaseed, Inc., appeals from a summary judgment dismissing its claim to proceeds from a 2002 sugar beet crop grown by Hardy Farm, Inc. Because we conclude Betaseed substantially complied with the requirements for an agricultural supplier’s lien, we reverse and remand.

I

[¶ 2] Stockman Bank of Montana, a Montana banking corporation with a branch office in Sidney, Montana, provided operating loans for the 2001 and 2002 crop years for Hardy Farm, which conducted farming operations in North Dakota and Montana during those years. As security for Stockman Bank’s loans, Hardy Farm executed security agreements granting Stockman Bank a security interest in Hardy Farm’s property, including its crops, and Stockman Bank filed financing statements for the security agreements. In 2002, Hardy Farm was unable to satisfy its financial obligations to its agricultural suppliers and to Stockman Bank.

[¶ 3] Stockman Bank thereafter sued several entities with claimed interests in Hardy Farm’s crops for the 2001 and 2002 years, alleging Stockman Bank had a perfected security interest in the proceeds from Hardy Farm’s crops and seeking to determine the parties’ respective rights to those proceeds, which had been deposited with the district court. Stockman Bank alleged Betaseed was a Minnesota corporation with a claimed agricultural supplier’s lien in the crop proceeds for sugar beet seeds provided to Hardy Farm for the 2002 growing season. Stockman Bank alleged Betaseed did not have a perfected security interest in the crop proceeds and had not otherwise filed a valid agricultural supplier’s lien under N.D.C.C. § 35-31-02. Stockman Bank claimed it had a valid and enforceable lien in the crop proceeds that was superior to Betaseed’s claimed agricultural supplier’s lien.

[¶ 4] Betaseed answered, asserting it had provided Hardy Farm with $43,941 in sugar beet seeds for the 2002 crop and had complied with the requirements of N.D.C.C. § 35-31-02 for a valid agricultural supplier’s lien against Hardy Farm for the proceeds from the 2002 crop.

[¶ 5] Both Stockman Bank and Beta-seed moved for summary judgment. The district court granted Stockman Bank’s motion for summary judgment, concluding Betaseed had not strictly complied with the filing and notice requirements of North Dakota law for an agricultural supplier’s lien. The court decided Betaseed’s claimed agricultural supplier’s lien was invalid and Betaseed was not entitled to any proceeds from the 2002 crop.

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

II

[¶ 7] We consider the issues raised in this appeal in the posture of summary judgment, which is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45. A 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. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. A party resisting a motion for summary judgment cannot merely rely on the pleadings or unsupported concluso-ry allegations. Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172. A party resisting a motion for summary judgment must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact. Id. On appeal, we view the evidence in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551. Summary judgment, when appropriate, may be rendered against the moving party. Lire, Inc. v. Bob’s Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 435 (N.D.1995). Whether a district court properly granted summary judgment is a question of law that we review de novo on the entire record. Johnson, at ¶ 9.

Ill

[¶ 8] The issue raised in this appeal involves the validity of Betaseed’s claimed agricultural supplier’s lien. Section 35-31-01, N.D.C.C., entitles any person who furnishes seeds used in the production of crops to an agricultural supplier’s lien on the crops. An agricultural supplier’s lien filed under N.D.C.C. ch. 35-31 is effective from the date the seeds are furnished. N.D.C.C. § 35-31-01. Under N.D.C.C. § 35-31-03, an agricultural supplier’s lien obtained under N.D.C.C. ch. 35-31 has priority over all other liens except an agricultural processor’s lien filed under N.D.C.C. ch. 35-30. Section 35-31-02, N.D.C.C., outlines the procedure for obtaining an agricultural supplier’s lien:

To obtain an agricultural supplier’s lien, except an agricultural supplier’s lien for furnishing petroleum products, the person entitled to the lien, within one hundred twenty days after the supplies are furnished or the services performed, shall file a verified statement in the office of the recorder of any county in this state or in the office of the secretary of state.... The statement must contain the following information:
1. The name and address of the person to whom the supplies were furnished.
2. The name and address of the supplier.
3. A description of the crops, agricultural products, or livestock and their amount or number, if known, subject to the lien together with a reasonable description, including the county as to the location of the crops, agricultural products, or livestock and the year the crop is to be harvested or was harvested.
4. A description and value of the supplies and the first date furnished.
5. The social security number or, in the case of a debtor doing business other than as an individual, the internal revenue service taxpayer identification number of the person to whom the supplies were furnished.
The secretary of state shall prescribe one form that can be used to obtain a hen under this section or gain protection under the central notice system, or both. Before a supplier’s lien is filed, a billing statement for the supplies furnished must include notice to the agricultural producer that if the amount due to the agricultural supplier is not satisfied a lien may be filed.

(Emphasis added.)

[¶ 9] Here, the parties do not dispute that Hardy Farm ordered sugar beet seeds for the 2002 crop in November 2001; Betaseed furnished the seeds on April 3, 2002; an April 12, 2002, invoice stated the net amount for the seeds was due November 25, 2002; there was a “return” of seeds on April 23, 2002, and an “exchange” or “replacement” of seeds on April 26, 2002; and Betaseed filed a verified statement on a form prescribed by the secretary of state for an agricultural supplier’s lien in the amount of $43,941 with the McKenzie County recorder on June 21, 2002. The parties also do not dispute that Betaseed’s verified statement included the requirements of N.D.C.C. § 35-31-02(1)-(5), but before Betaseed’s lien was filed, Betaseed had not provided Hardy Farm with a billing statement that included notice to Hardy Farm that if the amount due to Betaseed was not satisfied, a lien may be filed.

[¶ 10] Betaseed argues the district court erred in concluding Betaseed’s agricultural supplier’s lien was invalid and in deciding Betaseed was not entitled to any proceeds from Hardy Farm’s 2002 crop. Betaseed argues it substantially complied with all the statutory filing and notice requirements for an agricultural supplier’s lien and its lien was not affected by Beta-seed’s failure to give Hardy Farm written notice in a billing statement before Beta-seed’s agricultural supplier’s lien was filed. Betaseed claims it substantially complied with the requirements of N.D.C.C. § 35-31-02, because Hardy Farm had actual notice that if Hardy Farm failed to pay the Betaseed bill, Betaseed could file an agricultural supplier’s lien and Hardy Farm had encouraged Betaseed to file the lien. Stockman Bank responds Betaseed failed to substantially comply with the statutory notice requirement for an agricultural supplier’s lien and Betaseed’s lien was invalid. Stockman Bank argues it has a properly perfected lien in the proceeds for the 2002 crop and was entitled to summary judgment on its claim against Betaseed.

[¶ 11] This Court has long held that a seed lien is a statutory lien and cannot be obtained or enforced unless there is substantial compliance with the statute. Agricultural Bond & Credit Corp. v. Courtenay Farmers’ Co-op. Ass’n, 64 N.D. 253, 264, 251 N.W. 881, 887 (1933); Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 732, 204 N.W. 614, 617 (1925); Chaffee v. Edinger, 29 N.D. 537, 541, 151 N.W. 223, 224 (1915); Lavin v. Bradley, 1 N.D. 291, 296, 47 N.W. 384, 385 (1890). See 51 Am. Jur.2d Liens § 56 (2000) (recognizing that, for existence of lien, some courts require strict compliance with statute while other courts hold that substantial compliance is sufficient).

[¶ 12] In granting Stockman Bank summary judgment, the district court stated, “Strict compliance with the filing and notice requirements is required by North Dakota law [and t]hat was not done in this case.” The district court’s statement reflects an error of law as to the required degree of statutory compliance for a valid seed lien.

[¶ 13] In assessing substantial compliance for a statutory lien, this Court has recognized that whether there has been substantial compliance with the statutory requirements necessitates a consideration of the “real-world situation from which the account arose.” Ask, Inc. v. Wegerle, 286 N.W.2d 290, 294 (N.D.1979). In Ask, this Court also said substantial compliance should not be decided in a vacuum and care should be taken to consider the nature of the business involved. Id. at 294-95. In assessing whether there has been substantial compliance with the requirements for a statutory lien, other courts have considered the degree of noncompliance, the underlying policy of the statutory requirement, and the prejudice suffered by the owner of the property or third parties as a result of the noncompliance. Beneficial Fin. Co., Inc. v. Wegmiller Bender Lumber Co., 402 N.E.2d 41, 45 (Ind.Ct.App.1980); McGregor Co. v. Heritage, 291 Or. 420, 631 P.2d 1355, 1357 (1981); Bell Hardware of Medford, Inc. v. Ed Szoyka Woodworking Co., 129 Or.App. 332, 879 P.2d 208, 210 (1994). See 51 Am.Jur.2d Liens, at § 56.

[¶ 14] Here, the issue involves whether Betaseed substantially complied with the requirements for an agricultural supplier’s lien, specifically the statutory language that “[bjefore a supplier’s lien is filed, a billing statement for the supplies furnished must include notice to the agricultural producer that if the amount due to the agricultural supplier is not satisfied a lien may be filed.”

[¶ 15] We have said our statutory lien laws are remedial and will be liberally construed to effectuate their purpose of protecting those who contribute labor, skill, or materials. Stockman Bank v. AGSCO, 2007 ND 26, ¶ 18; North Dakota Mineral Interests, Inc. v. Berger, 509 N.W.2d 251, 255 (N.D.1993). Statutory interpretation is a question of law, fully reviewable on appeal. GO Comm. ex rel. Hale v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865. 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. We presume the legislature intended a just and reasonable result. N.D.C.C. § 1-02-38(3). If the language of a statute is clear and unambiguous, “the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the language of a statute is ambiguous or doubtful in meaning, a court may consider extrinsic aids, including legislative history, to determine the intention of the legislation. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to different, rational meanings. Amerada Hess Corp. v. State ex rel. Tax Comm., 2005 ND 155, ¶ 12, 704 N.W.2d 8.

[¶ 16] The language and structure of the procedure for obtaining an agricultural supplier’s lien in N.D.C.C. § 35-31-02 lists five enumerated items of information a filed verified statement “must contain.” Two obvious purposes of the filed statement are to provide a mechanism for establishing priorities for validly filed liens and to provide notice of the lien to other suppliers and lienholders and to the producer. In a separate paragraph prefaced by language for a form prescribed by the secretary of state, N.D.C.C. § 35-31-02 also provides that “[b]efore a supplier’s lien is filed, a billing statement for the supplies furnished must include notice to the agricultural producer that if the amount due to the agricultural supplier is not satisfied a lien may be filed.” The five subsections setting forth the requirements of the filed verified statement do not clearly include language that the filed statement must contain language about the billing statement, and the underlying policy and purpose of the requirement for prefiling notice in a billing statement is not clear. We therefore consider legislative history to ascertain the underlying policy and purpose of that requirement in the context of considering substantial compliance.

[¶ 17] The language about the billing statement was enacted in 1997 as part of amendments to the law for agricultural processor and agricultural supplier liens in N.D.C.C. §§ 35-30-01, 35-30-02, 35-31-01, and 35-31-02. See 1997 N.D. Sess. Laws ch. 306. As originally introduced and enacted, N.D.C.C. § 35-31-01 was amended to provide that “[a]n agricultural supplier’s lien filed as a security interest created by contract to secure money advanced or loaned for any purposes is not effective to secure a priority over liens filed under section 35-05-01.” As originally introduced, the amendment to the procedure for obtaining an agricultural supplier’s lien in N.D.C.C. § 35-31-02 included proposed subsection (6), which was prefaced with language that the supplier’s filed verified statement must contain the following information, and which provided:

6. In order for an agricultural supplier’s lien to be effective and take priority over section 35-05-01 security interests, the person filing the supplier’s lien must, within ten days after it is filed, give notice of the filing and provide a copy of the verified statement to any person or firm that has filed a section 35-05-01 security interest or lien against the same growing crops, harvested or to be harvested, during that same year, and to the person to whom the supplies or services were furnished. This notice must be given in person or by certified mail with return receipt.

[¶ 18] The 1997 legislation was introduced by Senator Vern Thompson to address a problem with filing of agricultural processor’s liens and agricultural supplier’s liens:

Let me give you an example, a farmer in my district got an operating loan from the local bank, to plant the crop last spring. He also signed a line of credit at the local supplier for fertilizer, chemical, fuel, etc. Without his knowledge, an agriculture supplier’s lien was filed. He then paid off the supplier’s bill. In the fall, he purchased and applied fertilizer for the 1997 growing season. Around December, he hauled in crop to pay off his operating loan from the local bank. Much to his surprise and the bank’s, there was a lien on the grain for the 1997 fertilizer. The system needs to be fixed so the local bank can secure it’s [sic] loan proceeds for the same year’s crop.
What SB 2324 is attempting to do is to make the person or firm filing the lien within 10 days, give notice, to anyone that has filed a security interest or lien against the same growing crops, during the same year. This notice must be given in person or by certified mail with return receipt.

Hearing on S.B. 2324 Before the Senate Agriculture Comm., 55th N.D. Legis. Sess. (Feb. 6, 1997) (written testimony of Senator Vern Thompson).

[¶ 19] As introduced, the 1997 legislation was intended to attach the agricultural supplier’s lien to a specific crop year, to provide proper notification to prior perfected security holders, and to provide proper and timely notification to the farmer on whose property the lien was filed. Id. (written testimony of DeWayne Streyle, representative of Independent Community Banks of North Dakota).

[¶ 20] During the legislative process, the Senate Agriculture Committee deleted proposed subsection (6) from N.D.C.C. § 35-31-02. See Hearing on S.B. 2324 Before the Senate Agriculture Comm., 55th N.D. Legis. Sess. (Feb. 6, 7, and 13, 1997). The House Agriculture Committee thereafter proposed amending N.D.C.C. § 35-31-02 by adding (1) a clause requiring a copy of the filed verified statement be mailed to the producer and (2) a sentence after the language about the secretary of state’s prescribed form stating “[a]t least ten days before filing a lien, the person entitled to the lien shall mail to the agricultural producer a notice of intent to file a lien.” Hearing on S.B. 2324 Before the House Agriculture Comm., 55th N.D. Legis. Sess. (March 13 and 20, 1997). That language was intended to provide the farmer with notification. Id. (testimony of Representative Eugene Nicholas). The House Agriculture Committee’s amendments were ultimately changed in a conference committee to the current language to provide notice in a billing statement as a matter of fairness to the producer. See Hearing on S.B. 2324 Before the Agriculture Conference Comm., 55th N.D. Legis. Sess. (April 1, 1997) (testimony of Joel Gilbertson from the Independent Banks of North Dakota).

[¶ 21] The language and structure of N.D.C.C. § 35-31-02 and the context of the legislative history for the language about notice in the billing statement indicate a purpose to benefit the producer by providing the producer with notice as a matter of fairness. The structure of the statute and the legislative history also indicate that although the underlying purpose was to provide the producer with notice that a lien may be filed if the supplier’s bill was not paid, the supplier’s filed statement need not include a reference to notice in the billing statement. Because the notice in the billing statement is not required to be provided to other third parties, those third parties cannot be prejudiced by the supplier’s failure to give the producer notice in a billing statement. The underlying purpose of notice in the billing statement is to benefit the producer, and that purpose is satisfied when the producer has actual knowledge that a lien may be filed if the supplier’s bill is not paid. We conclude there has been substantial compliance with the prefiling notice requirement when, although there may not be notice in a billing statement, the producer has actual knowledge that a lien for the applicable crop year may be filed.

[¶ 22] Here, it is undisputed that Hardy Farm was experiencing financial difficulty during the 2002 crop season. Jim Hardy, an officer of Hardy Farm, stated in an affidavit that none of Betaseed’s billing statements to Hardy Farm contained the prefiling notice that a lien may be filed if Hardy Farm’s bill was not paid; however:

Having been a long-time farmer in Montana and North Dakota, I was well aware that if Hardy Farms did not pay its suppliers, the suppliers were certainly free to file an Agricultural Supplier’s Lien. Because Hardy Farms had advised many of its suppliers to file the Agricultural Supplier’s Lien in the first place, it was not necessary that Hardy Farms be provided with notice in a billing statement as to the ramifications of non payment — we were already well aware of that.

[¶ 23] Although Stockman Bank suggests there may be a factual dispute about when Hardy Farm was aware that a lien may be filed, Stockman Bank’s references to the record do not raise a disputed issue of fact about Hardy Farm’s knowledge. A party resisting a motion for summary judgment has an obligation to call the court’s attention to relevant admissible evidence raising a genuine issue of material fact. Beckler, 2006 ND 58, ¶ 7, 711 N.W.2d 172. On this record, we conclude, as a matter of law, Hardy Farm had actual knowledge that a lien may be filed if it did not pay Betaseed for the seed used for the 2002 crop.

[¶ 24] Stockman Bank nevertheless argues Betaseed was not entitled to an agricultural supplier’s lien, because the underlying debt was on “fall terms” and was not due until November 25, 2002, approximately five months after the lien was filed, and Betaseed could not demand payment of the account until it matured. We reject Stock-man Bank’s argument because N.D.C.C. §§ 35-31-01 and 35-31-02, when read together, require the lien to be filed within one hundred twenty days after the supplies are furnished and provide that the lien is effective from the date the supplies are furnished.

[¶ 25] We conclude Betaseed substantially complied with the statutory requirements for an agricultural supplier’s lien and its lien is valid.

rv

[¶ 26] We reverse the judgment and remand for proceedings consistent with this opinion.

[¶ 27] GERALD W. VANDEWALLE, C.J., ROBERT 0. WEFALD, D.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 28] The Honorable ROBERT 0. WEFALD, D.J., sitting in place of CROTHERS, J., disqualified.


author: VANDE WALLE, Chief Justice. CROTHERS, Justice,

text:
    2007 ND 22
    STATE of North Dakota, Plaintiff and Appellee, v. Paul A. FISCHER, Defendant and Appellant.
    No. 20060153.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Paul A. Fischer, James River Correctional Center, Jamestown, ND, Pro se.
   VANDE WALLE, Chief Justice.

[¶ 1] Paul A. Fischer appealed from a district court order denying his motion for an extension of time to file the notice of appeal and quashing his notice of appeal filed on May 2, 2006. We conclude the district court abused its discretion when it denied Fischer’s motion for an extension of time, and we reverse.

I

[¶ 2] On November 30, 2004, the State charged Fischer with three drug-related felonies and criminal trespassing. After his arrest on these charges, Fischer applied for and received a court-appointed attorney. Several days later, Fischer requested the withdrawal of his court-appointed attorney and sought to represent himself. The district court denied this request and required Fischer to be represented by counsel. Over the course of the next nine months, Fischer discharged three court-appointed attorneys, claiming that they were ineffective and failed to communicate with him. At this point, the district court permitted Fischer to proceed without counsel, but it required him to retain a court-appointed attorney in an advisory capacity.

[¶ 3] On February 23, 2006, Fischer was tried before a jury and convicted of manufacture of a controlled substance, possession of a controlled substance with intent to deliver, and possession of methamphetamine-related drug paraphernalia. On March 3, 2006, the district court sentenced Fischer to lengthy prison terms on each of the three counts. Fischer was sentenced to twenty years in prison, with eleven years suspended for a period of five years, on the manufacturing count. He was sentenced concurrently to twenty years in prison, with eleven years suspended for a period of five years, for possession with intent to deliver. Finally, he was sentenced concurrently to five years in prison for possession of drug paraphernalia. After the criminal judgment was entered, Fischer was transferred to the North Dakota State Penitentiary in Bismarck.

[¶ 4] After his transfer to the State Penitentiary, Fischer continued to represent himself with the apparent intention of appealing his conviction. On April 19, 2006, the clerk of district court filed Fischer’s amended order for transcripts. The State moved to quash the amended order for transcripts, arguing that Fischer never filed a notice of appeal with the clerk of district court as required to initiate the appeal process. In its motion to quash, the State acknowledged it had received a notice of appeal from Fischer dated March 28, 2006. On April 24, 2006, the district court denied Fischer’s request for transcripts because no notice of appeal had been filed with the clerk before the time for appeal expired.

[¶ 5] On April 28, 2006, Fischer mailed a motion to the district court requesting an extension of time to file the notice of appeal under N.D.R.App.P. 4(b)(4). In his motion requesting an extension, Fischer claimed that, if given additional time, he could prove that he had mailed the notice of appeal to the clerk of district court from the State Penitentiary on March 28, 2006. Specifically, Fischer claimed that an employee at the State Penitentiary had notarized his documents and could verify that a copy of the notice of appeal had been made for the clerk. However, because he had recently been moved to another correctional center in Jamestown, Fischer did not have immediate access to the State Penitentiary employees who had helped him. Fischer also served a new notice of appeal with the motion requesting an extension. On May 2, 2006, the clerk of district court filed the motion requesting an extension and the new notice of appeal. On May 5, 2006, the district court issued an order denying Fischer’s motion for an extension of time to file the notice of appeal and quashing the notice of appeal that was filed on May 2. The district court did not provide any explanation for its denial of Fischer’s motion.

II

[¶ 6] We review a district court’s decision on a motion to extend the time to file an appeal for an abuse of discretion. State v. Jones, 2002 ND 163, ¶ 5, 652 N.W.2d 369. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Redfield v. Bittennan, 2000 ND 217, ¶ 7, 620 N.W.2d 570. Appellate courts often give more leeway to a district court’s decision to grant an extension of time than they give to a district court’s refusal to do so. Midwest Employers Cas. Co. v. Williams, 161 F.3d 877, 879 (5th Cir.1998) (citing 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (2d ed.1996)); cf. Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D.1992) (stating that an order granting a new trial is subject to more limited appellate rewew than an order denying a new trial). An order granting an extension is entitled to more deference because it does not terminate the proceeding. Cf. Ceartin, at 865.

[¶ 7] “In a criminal case, a defendant’s notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.” N.D.R.App.P. 4(b)(1)(A). However, the district court may extend the time to file the notice of appeal in a criminal case under N.D.R.App.P. 4(b)(4). Rule 4(b)(4) provides:

Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Therefore, the district court must find that either excusable neglect or good cause exists before granting an extension of the time for appeal. See Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369.

[¶ 8] Under this Court’s precedent, the “excusable neglect” standard is well established. See, e.g., Redfield, 2000 ND 217, ¶ 7, 620 N.W.2d 570; State v. DuPaul, 527 N.W.2d 238, 243 (N.D.1995). In order to establish excusable neglect, a party must show that unique or extraordinary circumstances caused the delay in filing the notice of appeal. Redfield, at ¶ 7, 620 N.W.2d 570; see also Leftbear v. State, 2007 ND 14, ¶ 9, 727 N.W.2d 252 (explaining the excusable neglect standard).

[¶ 9] However, we have never addressed the “good cause” standard, which is an alternate basis for granting an extension of time under the plain language of the rule. See N.D.R.App.P. 4(b)(4). Because N.D.R.App.P. 4 is derived from Rule 4 of the Federal Rules of Appellate Procedure, we may look to the interpretation of “good cause” under the federal rule as a guide. See Hagert v. Hatton Commodities, 421 N.W.2d 473, 475 (N.D.1988). Although no federal court has explicitly defined the meaning of good cause under Rule 4, the good cause standard is generally seen as more lenient than the excusable neglect standard. See 20 James Wm. Moore et al., Moore’s Federal Practice ¶ 304.14[2][b] (3d ed.2006); 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (3d ed.1999). The most helpful discussion of the good cause standard is found in the Advisory Committee Notes to Rule 4, F.R.App.P. The Advisory Committee states:

The good cause and excusable neglect standards have “different domains.” Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir.1990). They are not interchangeable, and one is not inclusive of the other. The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.
Thus, the good cause standard can apply to motions brought during the 30 days following the expiration of the original deadline. If, for example, the Postal Service fails to deliver a notice of appeal, a movant might have good cause to seek a post-expiration extension. It may be unfair to make such a movant prove that its “neglect” was excusable, given that the movant may not have been neglectful at all. Similarly, the excusable neglect standard can apply to motions brought prior to the expiration of the original deadline. For example, a mov-ant may bring a pre-expiration motion for an extension of time when an error committed by the movant makes it unlikely that the movant will be able to meet the original deadline.

Advisory Committee Notes, 2002 Amendments, F.R.App.P. 4.

[¶ 10] Whether the movant seeks an extension for excusable neglect or good cause, we have generally held that the movant must support the request for an extension with affidavits or other evidence. See State v. Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369 (holding that the district court did not abuse its discretion in denying Jones’s motion for an extension because of his complete failure to make any showing of excusable neglect); Nastrom v. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215 (holding that the district court did not abuse its discretion in denying the mov-ant’s request for an extension because her claim of excusable neglect was not reasonably supported by the evidence). However, in Jones and Nastrom, the movants were not self-represented prisoners. See Jones, at ¶ 7, 652 N.W.2d 369 (involving a criminal defendant represented by counsel); Nastrom, at ¶ 7, 576 N.W.2d 215 (involving a party in a civil case who was represented by counsel).

[¶ 11] Although Fischer proceeded without counsel by choice, a right granted by the United States Constitution, see, e.g., State v. Ochoa, 2004 ND 43, ¶ 15, 675 N.W.2d 161, his case nevertheless illustrates the difficulty that self-represented prisoners may have in gathering evidence to support a motion for an extension of time. At the time Fischer moved for an extension, he was being housed at a correctional facility in Jamestown. In his motion, he requested additional time to collect evidence because he did not have easy access to the State Penitentiary employees who assisted him when he prepared his first notice of appeal. The district court denied Fischer’s request for additional time to gather evidence without explanation. Therefore, Fischer was able to offer only his own account of the events that led to his delayed filing of the notice of appeal. However, Fischer’s claim that he attempted to file a notice of appeal within the original 30-day deadline is supported by the State’s admission that it received a notice of appeal from Fischer dated March 28, 2006.

[¶ 12] Based on Fischer’s account of events and the State’s receipt of a notice of appeal, there are at least two logical possibilities. The first is that Fischer mailed a notice of appeal to the clerk of district court at the time he mailed a notice of appeal to the State’s Attorney, but the notice sent to the clerk was lost in the mail. The second is that Fischer mailed a notice of appeal only to the State’s Attorney because he thought that would be sufficient to initiate the appeal. Without a contrary finding by the district court, we are inclined to believe Fischer’s claim that the notice of appeal intended for the clerk was lost in the mail, especially in light of the fact that Fischer previously appealed from an order denying a motion to dismiss in this same case, which shows familiarity with the proper procedure for filing an appeal. Under the facts of this case, we conclude the district court abused its discretion when it denied Fischer’s motion for an extension under the good cause standard, and we do not reach the excusable neglect issue.

[¶ 13] Fischer’s status as a self-represented prisoner is an important fact in this case. Although we have held that a person acting as his own attorney is equally bound by the rules of procedure, see, e.g., State v. DuPaul, 527 N.W.2d 238, 243-44 (N.D.1995), we also recognize the unique situation presented by self-represented prisoners seeking to appeal their criminal convictions. See Houston v. Lack, 487 U.S. 266, 270-72, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston v. Lack, the United States Supreme Court explained the process that self-represented prisoners must follow:

Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped “filed” or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation.... Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.

Id.

[¶ 14] As a self-represented prisoner, Fischer had no choice but to rely on mail delivery of his notice of appeal. If Fischer mailed his notice of appeal to the clerk of district court, as he claims, but the notice was lost in the mail, this was good cause for granting an extension based on circumstances beyond Fischer’s control. Indeed, the “lost in the mail” scenario is specifically mentioned in the Advisory Committee Notes to F.RApp.P. 4 explaining the good cause standard. In light of Fischer’s status as a self-represented prisoner and his dependence on mail delivery of the notice of appeal, the district court unreasonably denied Fischer’s motion for an extension based upon good cause.

[¶ 15] We do not hold that service on the State’s Attorney was sufficient to initiate the appeal. However, because Fischer is a self-represented defendant serving a considerable prison term, the district court should have considered the notice of appeal received by the State as evidence of Fischer’s intent to appeal. Faced with this evidence that Fischer, on his own behalf, attempted to file an appeal of his conviction within the original 30-day deadline, the district court unreasonably denied Fischer’s motion for an extension. The district court should not lightly deny a self-represented prisoner’s request for an extension to file a direct appeal in a criminal case, particularly when the prisoner has been sentenced to a lengthy prison term and has filed the motion for an extension within the 30-day extension period. See United States v. Simms, 46 Fed.Appx. 63, 65-66 (3d Cir.2002).

[¶ 16] Importantly, we note the district court summarily denied Fischer’s motion for an extension without any explanation. If the district court does not provide an explanation for its decision to grant or deny an extension, we are more likely to find that the district court abused its discretion. See Schaan v. Magic City Beverage Co., 2000 ND 71, ¶¶ 26-27, 609 N.W.2d 82 (finding that the district court abused its discretion in granting an extension of time to file the notice of appeal when the court’s order contained no reasoning in support of its conclusion); see also In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir.2005) (holding that the district court abused its discretion when it found no excusable neglect without any reasoning). Here, the district court’s order did not refer to the good cause or excusable neglect standards, much less explain why it found that those standards were not met in this case. Furthermore, the district court did not explain why Fischer was not given additional time to collect evidence of good cause or excusable neglect in support of his motion. We conclude this was not a proper exercise of the district court’s discretion, especially in light of the fact that Fischer is a self-represented prisoner and the district court had some evidence before it of Fischer’s previous unsuccessful attempt to file an appeal.

[¶ 17] Other considerations also support our conclusion that the district court abused its discretion in denying Fischer’s motion for an extension. First, the State is not prejudiced because it was aware of Fischer’s intent to appeal when it received a copy of the first notice of appeal in the mail. Second, when Fischer learned that his first notice of appeal was not filed, he expeditiously filed a motion for an extension under N.D.RApp.P. 4(b)(4). Third, the district court’s order denying an extension terminates the appeal, and thus it is reviewed more closely than an order granting an extension. Cf. Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D.1992). Finally, we generally prefer to hear appeals on their merits, and a review of the substantive issues is warranted here in light of the seriousness of the conviction and the sentence imposed. See State v. Lewis, 300 N.W.2d 206, 209-10 (N.D.1980); Liebelt v. Saby, 279 N.W.2d 881, 884 (N.D.1979).

Ill

[¶ 18] Based on the particular facts of this case, we conclude the district court’s denial of Fischer’s motion for an extension of time to file the notice of appeal was an abuse of discretion under the good cause standard. The district court’s order is reversed.

[¶ 19] CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concurs.

CROTHERS, Justice,

dissenting.

[¶ 20] I respectfully dissent.

[¶ 21] The time limit for filing a notice of appeal is mandatory and jurisdictional, and cannot be waived by the supreme court. See, e.g., State v. Guthmiller, 497 N.W.2d 407 (N.D.1993). The supreme court may not extend the time to file a notice of appeal in this case. N.D.R.App.P. 26(b); cf. N.D.C.C. § 27-20-05 (supreme court may extend time for appeal under Juvenile Court Act). Here, the district court has exclusive jurisdiction to act on all motions for extensions of time to file the notice of appeal. N.D.R.App.P. 26(b).

[¶ 22] “In a criminal case, a defendant’s notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.” N.D.R.App.P. 4(b)(1)(A). The district court may extend the time to file the notice of appeal under these circumstances:

Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

N.D.R.App.P. 4(b)(4).

[¶ 23] Prior to this case, we have not addressed the “good cause” standard for granting an extension of time (adopted in the 2003 amendment to Rule 4). In this case of first impression, I expected the majority would require affidavits or other competent evidence to support Fischer’s request for an extension of time, just as such evidence is required to establish “excusable neglect.” See Redfield v. Bitterman, 2000 ND 217, ¶ 7, 620 N.W.2d 570. This Court has rejected claims of excusable neglect when the movant failed to offer affidavits or evidence in support of that claim. See State v. Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369 (holding that the district court’s denial of Jones’s motion for an extension of time was not an abuse of discretion because of his complete failure to make any showing of excusable neglect); Nastrom v. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215 (holding that the district court did not abuse its discretion in denying the movant’s request for an extension because her claim of excusable neglect was not reasonably supported by the evidence).

[¶ 24] In any proceeding “we have consistently held that a person acting as his own attorney is equally bound by applicable rules of procedure, even if that person lacks understanding of those rules or the correct procedures.” State v. DuPaul, 527 N.W.2d 238, 243-44 (N.D.1995). “ ‘A defendant’s pro se status does not relieve him of the requirement of strict compliance with procedural rules.’ ” Id. (quoting State v. Neigum, 369 N.W.2d 375, 377 (N.D.1985)).

[¶ 25] One rule applicable to Fischer and all others who attempt to appeal is N.D.R.App.P. 30(a)(1), which provides: “Only items in the record may be included in the appendix.” Items not in the district court’s record but placed in the appendix and brought before this Court are not considered. Oien v. Oien, 2005 ND 205, ¶ 11, 706 N.W.2d 81. Because an appeal is to be determined upon the district court’s record, we do not consider evidence or arguments presented for the first time on appeal. Id.

[¶ 26] Notwithstanding our unambiguous rule and clear case law, Fischer’s appendix contains important documents that were not part of the record below and, therefore, were not seen by the district court. The documents include:

1. June 30, 2006 letter from Attorney Thomas J. Glass to Fischer regarding untimely notice of appeal and services provided to Fischer
2. Notice of appeal dated March 28, 2006, and stamped “Received March 30, 2006” by the State’s Attorney’s office
3. Fischer’s order for transcripts dated March 28, 2006
4. Attorney’s Certificate of Service dated March 28, 2006 and signed by Fischer regarding service of Notice of Appeal and Order for Transcripts on State’s Attorney

[¶ 27] The record — or more accurately, the lack of record — is highly problematic for Fischer because it does not include a copy of the first notice of appeal which Fischer claims to have mailed to the clerk of court but was never received. The record does not contain any form of proof of service of the first notice of appeal on the clerk of court. Indeed, those documents are not even present in Fischer’s improperly augmented Appendix.

[¶ 28] The record does contain the State’s admission that it received a notice of appeal from Fischer dated March 28, 2006. However, the State’s copy of the notice of appeal was not part of the district court’s record. The result is that the district court had no evidence of the date on which the State’s Attorney received Fischer’s first notice of appeal or the order for transcript.

[¶ 29] I do not condone the district court’s failure to explain why it denied Fischer’s requested relief. Nevertheless, looking only at the documents available to the district court when it denied Fischer’s Motion for Extension of Time on May 9, 2006, we are left with Fischer’s April 19, 2006 Notice of [Motion for] Amended Order for Transcripts and the Stipulation to Amend Order for Transcripts and Certificate of Service; the State’s April 21 Motion to Quash Order for Transcripts; Fischer’s Motion and Brief for an Extension of Time and his [second] Notice of Appeal and Certificate of Service by Mail filed on May 2, 2006; and the State’s May 3, 2006 Brief resisting Fischer’s motion for extension of time. As indicated above, the State admits in its May 3 brief that it received Fischer’s first notice, but it did not say when the document was received. Those details were supplied in Fischer’s un-sworn filings.

[¶ 30] North Dakota law has long held that motions cannot be granted without the support of competent evidence and that statements in motions or briefs do not constitute evidence. Medd v. Fonder, 543 N.W.2d 483, 486-87 (N.D.1996). We are therefore required in this case to disregard Fischer’s arguments and use only proper evidence to measure whether the district court abused its discretion. Doing so, we are left with the bare fact that on an unknown date the State received a notice of appeal dated March 28, 2006, and that on April 19, 2006 Fischer filed a motion or purported “order” relating to transcripts.

[¶ 31] This record simply does not support a conclusion the district court abused its discretion. After stripping away the improper records in Fischer’s appellate appendix, and after disregarding the argument in Fischer’s brief, the scant remaining evidence provides no basis for finding Fischer’s failure to timely file his notice of appeal should be excused for good cause. Instead, we have the unexplained conclusion that a notice of appeal dated March 28 was sent to the State’s Attorney and that the Clerk of the District Court did not receive the same notice. Without more, I cannot agree the district court’s actions were arbitrary, unreasonable or unconscionable.

[¶ 32] Finally, the Majority makes much of Fischer’s status as an unrepresented prisoner and the resulting difficulties Fischer might have in complying with the requirements for perfecting an appeal. I am mindful of the constraints placed on a self-represented inmate, but do not agree that they can become a lawful justification which excuses compliance with the Rules of Appellate Procedure and our case law. To the contrary, not only are pro se criminal defendants held to the same standard as practicing attorneys, but those defendants are required to have been warned of the dangers and disadvantages of self-representation. This Court has addressed the issue by stating:

In Faretta v. California, 422 U.S. 806, 818-21, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held criminal defendants have a corollary right under the Sixth Amendment to conduct their own defense. [City of Fargo v.] Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406; [State v.] Poitra, 1998 ND 88, ¶ 8, 578 N.W.2d 121; [State v.] Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635; State v. Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451. Criminal defendants who proceed pro se necessarily relinquish many of the benefits associated with the right to counsel, and in order to proceed pro se, they must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. Rockwell, at ¶ 8, 597 N.W.2d 406. A defendant need not have the skill and experience of a lawyer to competently and intelligently choose self-representation, but the defendant should be aware of the dangers and disadvantages of self-representation so the record establishes the choice is made with eyes open. Faretta, at 835, 95 S.Ct. 2525.
An unavoidable tension exists between the right to counsel and the right to self-representation, because asserting one right necessitates a waiver of the other. In recent years, we have become increasingly involved with the tension between those mutually exclusive rights. In Harmon, 1997 ND 233, ¶ 23 n. 1, 575 N.W.2d 635, we acknowledged increasing problems with defendants who proceed pro se, and suggested “[tjrial courts should be careful to make specific on-the-record determinations about whether a defendant unequivocally, knowingly, and intelligently waived either his right to counsel or self-representation. Such a determination should make clear the dangers and disadvantages of self-representation.”

State v. Dvorak, 2000 ND 6, ¶¶ 10-11, 604 N.W.2d 445.

[¶ 33] In addition to the “dangers and disadvantages of self-representation” outside a penal institution, inmate litigants are subject to even greater constraints once inside prison. Of course, our starting point is that an inmate must be provided with “ ‘meaningful access’ to the courts.” Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Yet, a prison “may place reasonable restrictions on an inmate’s right to legal materials or legal assistance based on the institution’s legitimate interest in security.” Cooper v. Corderman, 809 S.W.2d 11, 13-14 (Mo.App.1991) (citing Williams v. Wyrick, 747 F.2d 1231, 1232 (8th Cir.1984)). And an inmate’s “right to present and prepare legal matters is one which he must exercise in a reasonable manner, and within the institution’s rules concerning inmates’ possessions.” Konigsberg v. Ciccone, 285 F.Supp. 585, 599 (D.Mo.1968), aff'd 417 F.2d 161 (8th Cir.1969), cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 (D.Mo.1970). The ability to prepare and present legal matters is also hindered by the very real limitation that an inmate does not have a free and unfettered ability to call the court, and does not have any ability to personally deliver papers to the court or to personally examine documents and records at the courthouse.

[¶ 34] These are all limitations Fischer knew about and accepted when he exercised his right to proceed pro se. Having made the decision to represent himself after conviction and after incarceration, Fischer cannot complain now he has been prejudiced by the limitations on his ability to conduct his legal affairs that exist exclusively due to his physical confinement in a penal institution. As a result, and based on the record in this case, I am compelled to conclude the district court did not abuse its discretion by denying Fischer’s motion for an extension of time to file his notice of appeal. I would affirm the district court’s order.

[¶ 35] DALE V. SANDSTROM, J., concurs.