author: NEUMANN, Justice.

text:
    2001 ND 35
    David John WETZEL, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20000186.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Andrew Moraghan, Assistant Attorney General, Bismarck, ND, for respondent and appellant.
    Joe A. Johnson, of Nelson, Blumer & Johnson, PLLP, Fargo, ND, for petitioner and appellee.
   NEUMANN, Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appeals from a district court judgment reversing the Department’s one-year revocation of David John Wetzel’s driver’s license for refusing to take a chemical test. Because Wetzel was given a reasonable opportunity to consult with an attorney, we reverse.

I

[¶ 2] On January 7, 2000, at 1:18 a.m., ' Fargo police officer Charles Sullivan arrested Wetzel for driving under the influence. Following the arrest, Officer Sullivan recited the implied consent advisory and asked Wetzel to submit to a blood-alcohol concentration test. Wetzel said he did not understand the advisory, and Officer Sullivan explained the advisory. Wet-zel said he still did not understand. Officer Sullivan' asked him what part he did not understand. Wetzel replied he did not understand the legal language. Wetzel asked to call his wife. Officer Sullivan called Wetzel’s wife on Officer Sullivan’s cellular telephone and allowed Wetzel to speak with her. After the conversation, Officer Sullivan again asked Wetzel if he would submit to a blood test. Wetzel said he wanted to talk to an attorney. At 1:25 a.m., Officer Sullivan gave Wetzel the cellular telephone and a telephone book to try to contact an attorney. It is disputed whether Wetzel was handcuffed at the time.

[¶ 3] Officer Sullivan testified Wetzel complained about his job and his life for a few minutes before calling and speaking to his wife again at 1:80 a.m. At 1:35 a.m., Wetzel called an attorney’s office, but received no answer. Officer Sullivan testified he called the attorney’s residence, trying to help Wetzel, but again received no answer. Wetzel called a second attorney’s office at 1:39 a.m., but received no answer. Officer Sullivan dialed the second attorney’s residential number, but received no answer. Wetzel resumed telling Officer Sullivan about his life and his job. Officer Sullivan tried to focus Wetzel on his current situation. Wetzel testified Officer Sullivan had been trying to help him contact an attorney. Officer Sullivan again recited the implied consent advisory and asked Wetzel if he understood it. Wetzel indicated he did. Officer Sullivan asked Wetzel if he would submit to the blood test, and Wetzel again stated he wanted to talk to an attorney.

[¶ 4] At 1:48 a.m., Wetzel recited another phone number. Officer Sullivan dialed the number, believing it was an attorney’s number. There was no answer. Officer Sullivan told Wetzel he had been given a reasonable amount of time to contact an attorney. Officer Sullivan told Wetzel he could have one more call, but then Wetzel would have to indicate whether he would submit to the blood test. Wetzel recited another number at 1:50 a.m. Officer Sullivan dialed the number. Again, there was no answer.

[¶ 5] Officer Sullivan told Wetzel he would have to indicate whether he would submit to the blood test. Wetzel again said he wanted to talk to an attorney. Officer Sullivan stated he was going to ask Wetzel one final time whether he would submit to the blood test and that if Wet-zel’s response was anything other than a “yes,” it would be considered a refusal. Wetzel asked Officer Sullivan what he meant by “refusal.” Officer Sullivan explained the term and again asked Wetzel whether he would submit to a blood test. Wetzel said he wanted to talk to an attorney. Officer Sullivan told Wetzel he would be deemed to have refused to submit to the blood test. At this point, Officer Sullivan had given Wetzel 25 minutes, from 1:25 a.m. to 1:50 a.m., to consult an attorney.

[¶ 6] Officer Sullivan began driving Wetzel to the county jail. A hospital was near the route they were traveling. Officer Sullivan again told Wetzel he had one final opportunity to consent to the blood test, but any reply other than a “yes” would be deemed a refusal. Wetzel said he wanted to talk to an attorney. Officer Sullivan told Wetzel his reply would be deemed a refusal. During the rest of the trip to the police station, Wetzel said he wanted to talk to an attorney and insisted he had not refused anything. The record is silent as to what happened after they reached the jail, except at 2:20 a.m., Officer Sullivan issued a report and notice to Wetzel, notifying him of the Department’s intent to revoke his driving privileges.

[¶ 7] Wetzel requested an administrative hearing on the proposed revocation. After the administrative hearing, the hearing officer concluded Wetzel was given a reasonable opportunity to contact an attorney before deciding whether to take the test and Wetzel refused to submit to the test. The hearing officer revoked Wetzel’s driving privileges for one year.

[¶ 8] Wetzel appealed the revocation of his driving privileges to the district court. The district court concluded Wetzel was not afforded a reasonable opportunity to contact an attorney before deciding whether to submit to a blood test and therefore did not refuse testing. Accordingly, the district court reversed the revocation of Wetzel’s license. The Department appeals.

II

[¶ 9] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative decision to suspend or revoke a driver’s license. Houn v. N.D. Dep’t of Transp., 2000 ND 131, ¶ 5, 613 N.W.2d 29. Our standard of review is the same standard applied by the district court. N.D.C.C. § 28-32-21. We review the record compiled by the agency and affirm the agency’s decision unless:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practice Act were not complied with in the proceedings before the agency; 4) the agency’s rules or procedures have not afforded the appellant a fair hearing; 5) the agency’s findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency’s decision are not supported by its findings of fact. N.D.C.C. § 28-32-19.

Id. at ¶ 5. We give great deference to administrative agency rulings. Presteng v. Dir., N.D. Dep’t of Transp., 1998 ND 114, ¶ 5, 579 N.W.2d 212. When reviewing the findings of an administrative agency, we do not substitute our own judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual conclusions were proven by the weight of the evidence presented. Morrell v. N.D. Dep’t of Transp., 1999 ND 140, ¶ 6, 598 N.W.2d 111.

[¶ 10] Whether a person has been afforded a reasonable opportunity to con-suit with an attorney is a mixed question of law and fact. See, e.g., Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn.Ct.App.2000) (stating that once the facts are established, their significance becomes a question of law.) We review mixed questions of law and fact under the de novo standard of review. State v. Torgerson, 2000 ND 105, ¶ 3, 611 N.W.2d 182.

Ill

[¶ 11] Wetzel argues he was not afforded a reasonable opportunity to contact an attorney. Specifically, Wetzel argues he was denied a reasonable opportunity to contact an attorney because he was not provided a reasonable amount of time to contact an attorney and because the back seat of a police car is an inherently coercive environment not conducive to consulting an attorney.

[¶ 12] In Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 290 (N.D.1987), we held that an arrested person has a limited statutory right under N.D.C.C. ch. 39-20 to consult with counsel before deciding whether to submit to a chemical test. However, if an arrestee is unsuccessful in contacting an attorney by telephone within a reasonable amount of time, the arrestee must nevertheless make an election to take or refuse the chemical test. Bidder v. N.D. State Highway Comm’r, 423 N.W.2d 146, 147 (N.D.1988). The arrestee’s right to consult privately with counsel must be balanced against society’s strong interest in obtaining important evidence. State v. Sadek, 552 N.W.2d 71, 73 (N.D.1996); City of Mandan v. Jewett, 517 N.W.2d 640, 642 (N.D.1994). If a person arrested for driving under the influence is asked to submit to a chemical test and responds with any affirmative mention of a need for an attorney, the failure to allow the arrested person a reasonable opportunity to contact an attorney prevents the revocation of his or her license for refusal to take the test. Baillie v. Moore, 522 N.W.2d 748, 750 (N.D.1994). The reasonableness of the opportunity to consult with counsel is tested objectively, focusing on the totality of the circumstances. Jewett, at 642.

A

[¶ 13] Wetzel argues he was denied a reasonable opportunity to consult an attorney because of the short time Officer Sullivan allowed him to attempt to contact an attorney.

[¶ 14] At 1:50 a.m., Officer Sullivan deemed Wetzel to have refused testing. Approximately one hour remained during which the test could have been administered. Wetzel argues that because of the remaining hour, coupled with the increased difficulty of contacting an attorney because of the time of his arrest, 25 minutes was not a reasonable amount of time to contact an attorney. At oral argument on appeal, counsel for Wetzel maintained that if an arrestee indicates he or she wants an attorney, the officer is required to wait the full statutory two hours before deeming the driver to have refused testing in order to satisfy reasonableness.

[¶ 15] Under North Dakota law, a chemical test to determine a driver’s blood-alcohol concentration must be given within two hours of driving if it is to be used to support imposition of an administrative sanction or as evidence of a “per se” violation under N.D.C.C. § 39-08-01(l)(a), and a driver’s refusal to submit to a test will result in the revocation of driving privileges for up to three years. Houn, 2000 ND 131, ¶ 8, 613 N.W.2d 29; City of Grand Forks v. Risser, 512 N.W.2d 462, 465 (N.D.1994); see N.D.C.C. §§ 39-20-01, 39-20-04, 39-20-04.1.

[¶ 16] In Boyce v. Baches, 488 N.W.2d 45, 47 (N.D.1992), Boyce similarly argued the statutory two hours must be the benchmark to measure the reasonableness of the opportunity to contact an attorney. Boyce contended, “[I]f a test can reasonably be performed in ten minutes, there is no reason why an arrestee would not have one hour and fifty minutes to consult with an attorney.” Id. at 47. We disagreed, stating:

It is not appropriate to measure the reasonableness of an accused’s opportunity to contact an attorney by the maximum amount of time that the police may have to administer the most useful test to prove a licensee’s intoxication. In some cases, to do so would unduly delay and extend the booking, observation, and testing processes.

Id. Because circumstances vary, we declined to fix a certain amount of time for contacting an attorney. Id. Rather, we articulated the standard is reasonableness under the circumstances. Id.

[¶ 17] Wetzel invites this Court to adopt the nonexclusive factors applied by the Minnesota Court of Appeals in Kuhn v. Commissioner of Public Safety, 488 N.W.2d 838, 842 (Minn.Ct.App.1992), for determining whether a driver was afforded a reasonable amount of time to consult an attorney. These factors include whether the driver made a good faith and sincere effort to contact an attorney, the time of day when the driver is trying to contact an attorney, and the length of time the driver has been under arrest. Kuhn, at 842.

[¶ 18] In North Dakota, we have held there is only a limited statutory right under N.D.C.C. ch. 39-20 to consult with a lawyer prior to deciding whether to take a blood-alcohol test. Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 290 (N.D.1987). Minnesota, on the other hand, has held there is a limited state constitutional right under Minn. Const, art. 1, § 6, to consult with a lawyer prior to taking a blood-alcohol test. Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 835 (Minn.1991).

[¶ 19] The Minnesota Court of Appeals stated the Kuhn factors are a nonexclusive list of relevant facts for determining whether a given amount of time to consult an attorney was reasonable. Kuhn, 488 N.W.2d at 842. The ultimate determination must take into consideration not only the facts such as those found in Kuhn, but also the totality of the circumstances. Id. Accordingly, we decline the invitation to adopt a list of factors. In the final analysis, it is from the totality of the circumstances that we determine whether Wetzel was afforded a reasonable opportunity to contact an attorney.

[¶ 20] The record shows Wetzel was arrested at 1:18- a.m.; Officer Sullivan lent Wetzel his personal cellular telephone to contact an attorney; Wetzel was given 25 minutes to contact an attorney; Wetzel made six telephone calls during the 25 minutes, including twice calling his wife; Officer Sullivan also dialed the residential telephone numbers of two attorneys for Wetzel; Wetzel testified Officer Sullivan was helpful when Wetzel was trying to contact an attorney; during the time he was allowed to try to contact an attorney, Wetzel discussed various aspects of his life with Officer Sullivan; and approximately one hour remained in which to secure a chemical test. Considering the totality of these circumstances, a reasoning mind could certainly find Wetzel was afforded a reasonable amount of time to contact an attorney.

B

[¶ 21] Wetzel argues the back seat of a police car is an inherently coercive environment not conducive to contacting an attorney, particularly because the only telephone available was Officer Sullivan’s personal cellular telephone. In support of this argument, Wetzel emphasizes cellular telephones “are not secure ..., they frequently do not work, they lose power quickly, and they do not always provide a clear signal or reception.” Because Officer Sullivan arrested Wetzel fourteen blocks from a hospital en route to the county jail, Wetzel argues it would have been reasonable for Officer Sullivan to take Wetzel to either the hospital or the jail to provide him a secure, private telephone.

[¶ 22] Wetzel did not ask Officer Sullivan to take him to another telephone, nor did he ask Officer Sullivan to leave the car while he made the telephone calls. Although we agree it would have been reasonable for Officer Sullivan to take Wetzel to either the hospital or the jail to use the telephone, we refuse to hold as a matter of law that a police officer must take an arrestee to a facility with a secure, private telephone to attempt to contact an attorney. The record does not support the argument that the circumstances were inherently coercive to the point that Wetzel was denied a reasonable opportunity to contact an attorney.

IV

[¶ 28] Having concluded Wetzel was afforded a reasonable time to contact an attorney and the environment in which he was allowed to try to contact an attorney was not inherently unreasonable, we discuss the remaining factors relevant to our totality of the circumstances analysis.

[¶ 24] First, Wetzel had ample opportunity to cure his refusal to take the test by consenting to testing. In Houn, 2000 ND 131, ¶ 9, 613 N.W.2d 29, we stated:

An arrestee who refuses to submit to a chemical test may cure that refusal by consenting to a test within a reasonable time after the prior refusal if the subsequent test would still be accurate, testing equipment or facilities are still available, the subject has been in police custody and under observation for the whole time since arrest, and the subsequent test will result in no substantial inconvenience or expense to law enforcement.

The record is devoid of any evidence suggesting Wetzel tried to contact an attorney from jail, renewed his request to contact an attorney, or subsequently consented to a test.

[¶ 25] Further, the record is also silent regarding how long it would have taken to administer a chemical test if Wetzel had consented either initially or by curing his refusal. Cf Horn, 2000 ND 131, ¶ 3, 613 N.W.2d 29 (discussing the hearing officer’s factual findings regarding the amount of time necessary to administer alternative types of testing under ideal situations). This fact is important because part of the totality of the circumstances is the length of time needed to administer the test. Clearly this fact has an impact on the determination of whether a reasonable opportunity to contact an attorney was afforded.

[¶ 26] On this record, we cannot say Wetzel was not provided a reasonable opportunity to contact an attorney.

V

[¶ 27] Wetzel’s limited statutory right to contact an attorney was not denied. We reverse the district court’s judgment and reinstate the Department’s revocation of Wetzel’s driver’s license.

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


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2001 ND 34
    Malcolm R. PEEK, Plaintiff and Appellant, v. Kimberly J. BERNING, Defendant and Appellee.
    No. 20000056.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Brenda A. Neubauer, Neubauer & Oster, Bismarck, ND, for plaintiff and appellant.
    Thomas M. Tuntland, Mandan, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Malcolm R. Peek appeals from the district court’s judgment finding the best interests of the child supported an award of joint legal and physical custody with a schedule of rotating physical custody. We reverse and remand for further proceedings in accordance with this opinion.

I

[¶ 2] Malcolm R. Peek and Kimberly J. Berning were never married, but in February 1997 they had one child together. Berning also has two other children who reside with her. When Peek and Bern-ing’s child was born, Berning was employed as a registered nurse in North Dakota, and Peek was working on a doctoral degree in Arizona but returned to North Dakota two weeks before the child’s birth and stayed for two weeks after her birth. In May 1997, Peek returned from Arizona and lived with Berning until July 1997. From July to September 1997, Peek only lived with Berning on weekends. After Peek took a job at an elementary school in Bismarck and purchased a house in New Salem, Berning took a nursing position in Bismarck and moved in with Peek in November 1997. In September 1998, Bern-ing moved out and took their child with her. Two weeks later, when Berning attended an Alcoholics Anonymous conference out of town, she left their child with Peek. While Berning attended the conference, Peek filed for custody, requesting an ex parte interim order due to an alleged threat of imminent emotional and physical danger to their child. Peek’s affidavit testified he was the primary caretaker since their child’s birth, and Berning had a history of alcohol and drug abuse, had a violent temper, repeatedly struck her children, and repeatedly spanked their child causing her to cry hysterically. As a result of the interim order, Peek got custody of the child for 14 months until trial. The trial court denied Berning’s request to vacate the interim order, reasoning the best interests of the child required continuation of the interim order. The trial court stated, “The child is in a stable and healthy situation now and should not be shuffled back and forth while this matter is pending.”

[¶ 3] In December 1999, the trial court concluded the best interests of the child factors favored Peek, but both parties are good parents, and spending as much time as possible with each parent is in the child’s best interests. The trial court awarded the parties joint physical and legal custody of their child, giving a 28-day schedule of rotating shared custody before the child starts kindergarten, after which custody alternates on a monthly basis. Peek appeals.

II

[¶ 4] An award of custody is a finding of fact which will not be set aside unless clearly erroneous, that is, if induced by an erroneous view of the law, if no evidence exists to support the finding, or if the reviewing court, on the entire evidence, has a definite and firm conviction the trial court made a mistake. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100.

[¶ 5] Custody is awarded to the parent who will, in the opinion of the judge, promote the best interests and welfare of the child. N.D.C.C. § 14-09-06.1. For the purpose of custody, the best interests and welfare of the child are determined by the court’s consideration of several factors:

a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the chid love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence_If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a ■dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child....
k. The interaction and interrelationship ... of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests....
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child....
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

N.D.C.C. § 14-09-06.2.

[¶ 6] The district court has substantial discretion in making custody determinations, but it must consider all the best interests factors. Cox v. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. A separate finding is not required for each factor, but the court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the district court’s decision. Id. We will not retry a custody case or substitute our judgment for that of the trial court, if the trial court’s determination is supported by evidence in the record. Id. at ¶ 9.

Ill

[¶ 7] Peek argues all the best interests factors should have favored him, so the trial court erred in weighing the best interests factors.

[¶ 8] Under factor (a), Peek claims all his witnesses stated the child is the focus of his household, and no witness gave a similar opinion about Berning, yet the court found this factor favors neither party. However, we note that the trial court indicated both parties love and show affection to the child, and each parent said the other loves the child and is a good parent. Accordingly, the trial court did not clearly err in finding this factor favors neither party.

[¶ 9] Under factor (c), Peek contends he assumed most of the responsibility for the child, but the court found this factor favored neither party. However, the trial court’s findings indicate Peek returned to Arizona on March 1, 1997, two weeks after the child’s birth, until May-1997. From May to about July 1997, Peek lived with Berning, who was working full-time, and Peek provided much of the child care. From July to September 1997, Peek was only in town on weekends, so Berning provided most of the child care. The court’s findings show Peek only lived with the child full-time for three months out of her first nine months. Then both parents worked full-time until March 1998 when Berning began working a 24-hour week so she could spend more time with the child, a schedule which she continued until the parties separated in September 1998. Moreover, we have stated a parent’s commitment to a child may be measured by “noncaretaking” conduct showing devotion to parenting. Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100. Thus, the trial court’s finding on this factor was not clearly erroneous.

[¶ 10] Under factors (d) and (h), Peek asserts the trial court erred in finding these factors favored neither party, when the child lived with Peek in a stable satisfactory environment for 14 months. However, we have stated that relying on a parent’s primary caretaking pursuant to an interim order might be improper. See Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100. Furthermore, the trial court expressly found Peek, in his affidavit supporting his request for an interim order, had “exaggerated, and at worst lied, in order to gain the tactical advantage of having custody of [the child] until trial.” The court found no evidence Berning was a perpetrator of abuse or had a violent temper, and Peek did not testify to seeing Berning repeatedly strike her older children and only saw her spank their child once on the bottom and a couple of times on the hands, but did not describe hysterical crying. Therefore, the court stated there was “no compelling evidence that maintaining continuity of [the child’s] present living arrangement is essential to her best, interest.”

[¶ 11] Under factor (e), Peek claims he is more settled since Berning has sent job applications to a new town and had only been at her place of employment four months at the time of trial, whereas Peek plans to remain with his current employer. Because the trial court considered both parties lived in several different places and had several different jobs, but now both are purchasing homes, have secure jobs, and are planning on staying in state, we conclude the trial court did not clearly err in finding this factor favors neither party.

[¶ 12] Under factor (g), we reject Peek’s argument that this factor should favor him when no evidence showed his social drinking and past drug use affected his parenting ability, but Berning suffered from depression, has a history of substance abuse, and rates sobriety over her children. Juxtaposed to the trial court’s findings that Berning has successfully completed alcoholism treatment, maintained sobriety for ten years, and sought help for her depression are the court’s findings that Peek drinks every night, recently used marijuana, and consumed alcohol while driving with the children in the car. We have affirmed a custody award to a parent who drank in a social manner but did not place the children in danger. Kjelland, 2000 ND 86, ¶ 14, 609 N.W.2d 100. However, Peek drank while driving with the children, and the teal court indicated Peek’s possession and use of marijuana is illegal and “not in the best interests of a child, even if the child is not aware of its presence and use.” The trial court’s neutral finding under this factor was based on a consideration of relevant evidence. We cannot conclude the trial court’s finding was clearly erroneous.

[¶ 13] Under factor (j), Peek claims the trial court should have found the domestic violence presumption was triggered by Berning’s pattern of striking her children. We conclude the trial court did not clearly err in determining the presumption was not created as to either party as there was no evidence of an incident of domestic violence causing serious bodily injury, involving the use of a dangerous weapon, or of a pattern of domestic violence within a reasonable time proximate to the proceeding. The court found Bern-ing and Peek agreed not to spank the child, and there was no evidence Berning had done so since that agreement. See Brown v. Brown, 1999 ND 199, ¶¶ 15-16, 600 N.W.2d 869 (determining several minor skirmishes between the parties, where neither was seriously injured, did not establish a pattern of domestic violence).

[¶ 14] Under factor (k), Peek argues this factor should favor him since Berning’s older son left a loaded pellet gun accessible to their child. We conclude the trial court’s neutral finding for this factor was not clearly erroneous, as the court stated the son’s behavior can be addressed by appropriate education and discipline.

[¶ 15] Under factor (l), Peek insists the record is full of testimony supporting the allegations in his affidavit in support of the interim order, so he did not make false allegations against Berning. For this factor, the trial court referenced its discussion under factor (d), finding that Peek “exaggerated, and at worst lied, in order to gain the tactical advantage of having custody of [the child] until trial.” The trial court stated: “In a different case, the fact that Peek -misled the Court would likely be of major significance. Here, however, it does not make a great deal of difference in practical terms because of [the child’s] age. The younger the child is, the.more likely she can adapt to changes.” Notwithstanding a child’s age, we have held a parent’s intentional presentment of false evidence to a court of law could be relevant to a child’s best interests and to a parent’s fitness for custody. Aus v. Carter, 1999 ND 246, ¶ 14, 603 N.W.2d 885. We stated such deception could involve false or misleading evidence of an environment that may endanger the child’s physical or emotional health. Id. Although the trial court did not make a specific separate finding on this factor, it is clearly implied from the court’s reference that this factor does not favor Peek. Such an implied finding was not clearly erroneous.

[¶ 16] Under factor (m), Peek argues the trial court “brushed over” Peek’s allegation that Berning expressed relief her son was not sexually abusing her older daughter, and the court’s conclusion the child’s young age will help her adapt to changes is unsupported because the child’s behavior changed to being moody, clingy, and possessive of Peek during her summer visitation with Berning. The trial court indicated Berning denied saying she was relieved about no sexual abuse between her older children. The court also listed the child’s young age as important for adapting to changes. The trial court properly evaluated relevant factors and did not “brush over” Peek’s allegations.

[¶ 17] On the basis of the trial court’s findings, we reject Peek’s claim that the best interests factors all weigh in his favor. Rather, the factors are virtually in equipoise: Factors (a), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (m) favor neither parent. Factor (b) favors Peek “slightly,” but factor (l) does not favor Peek. In other cases, we have concluded the trial court did not clearly err in selecting one parent for custody when the evidence does not weigh heavily on either side. See, e.g., Hurt v. Hurt, 2001 ND 13, ¶ 7, 621 N.W.2d 326 (supporting an award of custody to the mother, even though many best interests factors favored neither parent, and the father was better able to continue the children’s education); Ackerman v. Ackerman, 1999 ND 135, ¶ 9, 596 N.W.2d 332 (affirming an award of custody to one parent, although this was a close decision between two equally suitable parents, with only factor (m) as the deciding factor).

IV

[¶ 18] Peek argues the trial court clearly erred in awarding joint physical and legal custody because the child’s stability will be jeopardized and splitting custody will exacerbate conflicts between the parents. Peek contends stability is essential for a child’s development and may be attained best by undivided custody which prevents the child from being confused by being bandied back and forth between parents. Peek asserts the parties disagree on virtually every aspect of parenting and are unable to communicate without conflict regarding day care, clothing, medical, discipline, and very likely choosing an elementary school since Peek lives in New Salem and Berning in Bismarck. Conversely, Berning argues the parties are able to cooperate and have agreed neither would spank the child, agreed to use the same daycare, follow nearly the same bedtime schedule for the child, share religion, and agree on which elementary school the child will attend, except for Berning’s concerns about the possibility of discrimination against the child at that school.

[¶ 19] Stability is desirable in custody arrangements, so we have an aversion to changing custody when a child has been living happily in one place for a substantial period. Silseth v. Levang, 214 N.W.2d 361, 364 (N.D.1974). Generally, it is not in the best interests of the child to bandy the child back and forth between parents in a rotating physical custody arrangement. Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 15, 575 N.W.2d 921.

[¶20] Rotating physical custody is not clearly erroneous when supported by a district court’s findings that alternating custody is in the best interests of a child. Kasprowicz, 1998 ND 68, ¶ 15, 575 N.W.2d 921. For example, in Lapp v. Lapp, 293 N.W.2d 121, 128 (N.D.1980), we affirmed a physical custody award rotating on a six-month basis. We noted both disadvantages and advantages of this Solomonic arrangement. Id. at 130. On the one hand, frequent shifting of a child from home to home affects the child’s emotional stability. Id. But on the other hand, children need interaction with both parents. Id. We noted several viable alternatives to rotating custody, such as awarding sole custody to one parent and liberal visitation to the other. Id. at 129. Ultimately, the paramount consideration in custody determinations is the best interests of the child. Id. at 130.

[¶21] Nevertheless, in Kasprowicz, 1998 ND 68, ¶ 15, 575 N.W.2d 921, we remanded for reconsideration of a rotating custody arrangement. Because the trial court had not made a specific finding that alternating physical custody was in the child’s best interests, we suspected this arrangement was made either to “punish or reward the parents.” Id. Similarly, in In re Lukens, 1998 ND 224, ¶¶ 3, 17, 587 N.W.2d 141, we reversed and remanded when a trial court did not make findings indicating the child’s best interests warranted rotating physical custody monthly until the child was a year and a half and then alternating every four months until school age. We indicated rotating custody orders are often disapproved by the courts and presumptively not in the interests of very young children. Id. at ¶ 15. The trial court’s purposes in ordering rotating custody were to force the parents to assume parental responsibility, encourage them to reopen direct communication, and allow equal sharing of the child’s upbringing; but we concluded these goals could be substantially achieved with less disruption by granting one of the parents primary physical custody and the other liberal visitation. Id. at ¶ 16.

[¶22] Generally, rotating custody arrangements are only in the child’s best interests if parents are able to cooperate and set aside their differences and conflicts in their role as parents. Jarvis v. Jarvis, 1998 ND 163, ¶ 36, 584 N.W.2d 84. In Jarvis, we affirmed the trial court’s denial of a father’s request for alternating joint physical custody because of the father’s anger, hostility, and lack of communication. Id. at ¶ 37. We explained the parents would need to communicate frequently in such a custody arrangement, and under these circumstances splitting custody and authority over decisions affecting the children could only continue the animosity between the parents and the innocent child would most surely suffer. Id. at ¶¶ 36-37.

[¶ 23] Here, the trial court found the child’s best interests would be served by a 28-day schedule of rotating shared custody before the child starts kindergarten, after which custody alternates on a monthly basis. The trial court justified this custody arrangement because the child’s best interests involve spending as much time as possible with each parent. However, the court did not make a specific finding that Peek and Berning could communicate and cooperate sufficiently to set aside their differences. The trial court’s scant findings of cooperation between the parties are contradictory. For example, under the best interests factor (a) the trial court found Peek and Berning “disagree on discipline methods,” but under factor (j) found Berning “agreed to not spank [the child], and there is no evidence she has done so since the discussion.” The trial court also stated Berning is concerned the child will face racial discrimination at the elementary school of Peek’s choice, yet the court also stated Berning “described the school as excellent.” We remand for the trial court to make definitive findings regarding the ability of Peek and Berning to cooperate and communicate before awarding rotating physical custody. See Jarvis, 1998 ND 163, ¶ 36, 584 N.W.2d 84 (stating as a general rule, rotating custody arrangements are only in the child’s best interests if parents are able to cooperate and set aside their differences and conflicts in their role as parents). If the trial court is unable to make such findings, the trial court may need to revisit the issues of custody and visitation.

V

[¶ 24] Peek argues the trial court erred in excluding the opinion of his expert witness when three weeks before trial Peek had disclosed his intent to call this witness in supplemental interrogatories explaining the expert’s testimony. Peek claims this case has no complicated issues, so it is unrealistic to think Berning was surprised by the expert’s testimony and opinion. If the schedule of Berning’s counsel did not allow time to depose the expert, Peek argues Berning should have requested a continuance. Peek contends he was prejudiced because the expert’s excluded opinion would have assisted the' court in making a custodial determination and Peek’s counsel was limited in the scope of direct examination. We are not persuaded.

[¶ 25] A trial court has discretionary authority in determining appropriate sanctions for a party’s failure to supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert’s testimony. Dewitz v. Emery, 508 N.W.2d 334, 339 (N.D.1993). According to N.D.R.Civ.P. 26(e):

(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to
(B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony.

We have explained Rule 26(e) does not establish a fixed time prior to trial for supplementing interrogatories seasonably. Dewitz, at 339. The trial court has discretion to determine seasonableness on a case-by-case basis. Id. However, to be seasonable the supplemental response must be made a reasonable time before trial, mindful of the purpose of the rule which is to eliminate surprise at trial. Id. In Dewitz, we held the trial court did not abuse its discretion by excluding one of the defendant’s experts from testifying at trial, as the interrogatory answer was given only 39 days before trial, was incomplete, listed the same testimony as two other defense experts, and the defendant was not materially prejudiced by the exclusion since he could present two other experts. Id. at 338-39; see also Kjonaas v. Kjonaas, 1999 ND 50, ¶ 16, 590 N.W.2d 440 (holding supplementation of discovery with an expert appraisal the afternoon before trial did not occur a reasonable period before trial).

[¶ 26] Peek’s supplementation to Bern-ing’s interrogatory only stated the expert would testify about the present custody arrangement and whether such arrangement was in the child’s best interests. Peek was not prejudiced by the exclusion of this expert’s opinions because the expert’s testimony regarding his observations and home study report were received into evidence. The trial court did not abuse its discretion in excluding the opinion of the expert witness.

VI

[¶ 27] Therefore, we affirm the trial court’s exclusion of the opinions of Peek’s expert witness, but we reverse and remand because we conclude the trial court clearly erred in awarding rotating physical custody without a specific finding the parents could communicate and cooperate sufficiently to ensure the child’s best interests would not be jeopardized.

[¶ 28] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A NEUMANN, and DALE V. SANDSTROM, JJ„ concur.


text:
    2001 ND 28
    Nancy GREENWOOD, Plaintiff and Appellant, v. PARACELSUS HEALTH CARE CORP. OF NORTH DAKOTA INCORPORATED CORPORATION, d/b/a Heartland Medical Center, and Dr. Gary Lindemoen, Defendants and Appellees.
    No. 20000175.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      James D. Hovey (argued), Alexander Reichert (appeared), Richard A. Clapp (on brief) and Margaret Moore .Jackson (on brief), Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.
    Bernard E. Reynolds, Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, MN, for defendant and appellee Paracelsus Health Care Corp.
    Joel A. Flom (argued) and Aaron J. Dorrheim (on brief), Jeffries, Olson <& Flom, PA, Fargo, ND, for defendant and appellee Dr. Gary Lindemoen.
   NEUMANN, Justice.

[¶ 1] Nancy Greenwood appeals from district court judgments dismissing her medical malpractice actions against Paracelsus Health Care Corporation of North Dakota and Dr. Gary Lindemoen. We affirm the judgment dismissing the action against Paracelsus, reverse the judgment dismissing the action against Dr. Linde-moen, and remand for a new trial against Dr. Lindemoen.

I

[¶ 2] In 1993 Greenwood consulted Dr. Lindemoen, an oral maxillofacial surgeon, about problems she was having with .her temporomandibular joint (“TMJ”). Dr. Lindemoen performed TMJ surgery on Greenwood in March 1994. The surgery was performed at Heartland Medical Center, which was owned and operated by Paracelsus. During the surgery Dr. Linde-moen placed a “bunched-up” piece of gauze in or at the outside of Greenwood’s left ear to prevent blood from draining into the ear.

[¶ 3] After the surgery Greenwood began experiencing discomfort in her ear. She felt a fullness in her ear, and felt like there was water in her ear that she could not get out. At her follow-up visit four weeks after surgery, Greenwood told Dr. Lindemoen of the ear problems she had been experiencing. Dr. Lindemoen told her the discomfort was normal and the ear was just healing. It is not clear from the record whether Dr. Lindemoen actually looked into Greenwood’s ear during that visit.

[If 4] Greenwood continued to experience intermittent pain and discomfort, and her ear developed a foul odor. In February 1996 she went to see her regular physician, Dr. James Burrell, complaining that her ear had felt plugged up for months. Dr. Burrell examined her ear and noticed a cloth-like object covered with wax. He then used a curette to remove the object from Greenwood’s ear. Dr. Burrell testified the object was a gauze-like material, consistent with surgical packing, which appeared to have been in Greenwood’s ear for a long time. Greenwood’s ear problems, including the foul odor, improved after the object was removed. She continues to have some earaches and swelling in her ear caused by eczema.

[¶ 5] In December 1997, Greenwood brought this action against Dr. Lindemoen and Paracelsus, alleging they had negligently left gauze in her ear during the surgery. A jury trial was held on April 25-26, 2000. At the close of Greenwood’s case-in-chief, Dr. Lindemoen and Paracelsus moved for judgment as a matter of law. The trial court granted the motions, and separate judgments dismissing the actions against Dr. Lindemoen and Paracelsus were entered. Greenwood appealed.

II

[¶ 6] We have recently summarized our standard of review of a trial court’s determination of a motion for judgment as a matter of law:

The standard of review on a motion for judgment as a matter of law under N.D.R.Civ.P. 50 is the same as the standard applied to motions for directed verdict before the rule was modified in 1994. The trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to grant or deny judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In determining whether the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence. A trial court’s decision on a motion for judgment as a matter of law is fully renewable on appeal.

Peterson v. Traill County, 1999 ND 197, ¶ 7, 601 N.W.2d 268 (citations omitted); see also Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450.

III

[¶ 7] The defendants based their motions for judgment as a matter of law upon N.D.C.C. § 28-01-46, and the trial court based its dismissal of Greenwood’s claims upon that statute. Section 28-01^6 provides:

Expert opinion required to maintain an action based upon alleged medical negligence except in obvious cases. Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice on motion unless the claimant has obtained an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court for good cause shown by the plaintiff. The expert’s affidavit must identify the name and business address of the expert, indicate the expert’s field of expertise, and contain a brief summary of the basis for the expert’s opinion. This section does not apply to alleged lack of informed consent, unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.

[¶ 8] We have addressed the legislative intent underlying the statute in a number of prior cases. Section 28-01-46 was specifically designed to dispose of frivolous or nuisance medical malpractice actions at an early stage of the proceedings. Larson v. Hetland, 1999 ND 98, ¶ 12, 593 N.W.2d 785; Ellefson v. Earnshaw, 499 N.W.2d 112, 114 (N.D.1993); Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D.1993); Fortier v. Traynor, 330 N.W.2d 513, 516 (N.D.1983). The statute provides for preliminary screening of totally unsupported claims, and seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim. Larson, at ¶ 12; Ellefson, 499 N.W.2d at 114; Larsen, 498 N.W.2d at 192. The statute was enacted to prevent the necessity of an actual trial in such cases. Larsen, 498 N.W.2d at 192; Fortier, 330 N.W.2d at 516; Weasel v. St. Alexius Medical Center, 230 F.3d 348, 351 (8th Cir.2000).

[¶ 9] Section 28-01-46 is clearly intended to apply only pre-trial. The defendants had over two years between the commencement of the action and the beginning of trial to seek dismissal based upon the statute, but failed to do so. They waited until the close of the plaintiffs case, on the second day of trial, to move for judgment as a matter of law under N.D.R.Civ.P. 50.

[¶ 10] Section 28-01-46 does not apply once the trial has begun. At that point, the plaintiffs burden is to establish a prima facie case, with appropriate expert testimony if required. In order to establish a prima facie medical malpractice case, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the harm complained of. E.g., Larsen, 498 N.W.2d at 192; Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D.1989); Peterson v. Kilzer, 420 N.W.2d 754, 755 (N.D.1988); Winkjer v. Herr, 277 N.W.2d 579, 583 (N.D.1979). The dispositive issue on appeal is whether, when viewing the evidence in the light most favorable to Greenwood, accepting the truth of all of her evidence, and giving her the benefit of all reasonable inferences to be drawn from the evidence, the jury could reach only one conclusion with no reasonable difference of opinion. See Peterson v. Traill County, 1999 ND 197, ¶ 7, 601 N.W.2d 268.

IV

[¶ 11] We will first address this standard as it applies to Greenwood’s claims against Dr. Lindemoen.

[¶ 12] The parties devote much of their arguments to N.D.C.C. § 28-01-46 and res ipsa loquitur. Dr. Lindemoen argues that, even if N.D.C.C. § 28-01-46 is not directly applicable, it is still essentially a definition of the doctrine of res ipsa loquitur in medical malpractice cases. See Larsen, 498 N.W.2d at 194. Accordingly, Dr. Linde-moen argues Greenwood’s claim fails because it does not fit under traditional res ipsa loquitur concepts nor within one of the exceptions in N.D.C.C. § 28-01-46. We find it unnecessary to address these issues because we conclude Greenwood established a prima facie case without relying upon res ipsa loquitur or upon the exceptions to N.D.C.C. § 28-01-46.

[¶ 13] Our caselaw generally requires that the plaintiff establish through expert testimony the degree of care and skill required of a physician, and whether specified acts fall below that standard of care. See Heimer, 434 N.W.2d at 359; Winkjer, 277 N.W.2d at 585. In this case Dr. Lindemoen provided the necessary expert testimony when he testified that the applicable standard of care would require gauze placed in the ear during surgery to be removed, and if a physician left gauze in a patient’s ear after surgery it would fall beneath the standard of care for an oral maxillofacial surgeon. A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician. Peterson, 420 N.W.2d at 756; Winkjer, 277 N.W.2d at 586. Dr. Lindemoen’s testimony established the standard of care in this case.

[¶ 14] Having established that leaving gauze in the ear would fall below the standard of care, Greenwood was next required to prove Dr. Lindemoen did in fact leave gauze in her ear after the surgery. We conclude Greenwood presented sufficient evidence from which the jury could draw that inference. At one point Dr. Lindemoen testified he placed a bunched-up piece of gauze at the outside of Greenwood’s ear during the surgery. At other times he testified he placed the gauze in the ear. He also testified it would have been his responsibility, not one of the nurses’ responsibility, to remove the gauze. He testified he did not specifically remember removing the gauze from Greenwood’s ear, and there were no records indicating the gauze had been removed. Greenwood testified she felt pain and fullness in her ear after the surgery, and those symptoms continued until February 1996, when Dr. Burrell removed gauze-like material from her ear. Dr. Burrell testified the item he removed was gauze-like, consistent with surgical packing, and looked like it had been in Greenwood’s ear for a long time. Greenwood testified neither she nor anyone else other than Dr. Lindemoen had placed anything in her ear. This evidence, when viewed as the law requires in the light most favorable to Greenwood, was sufficient to allow the jury to draw an inference that Dr. Lindemoen left gauze in Greenwood’s ear after surgery which remained there until removed by Dr. Burrell in 1996.

[¶ 15] Dr. Lindemoen argues Greenwood was required to establish breach of the standard of care by expert testimony. Under the facts of this case, it is unclear what the substance of such an expert’s testimony would have been. It was not necessary to call an expert to testify it was more likely than not that Dr. Lindemoen left gauze in Greenwood’s ear. Whether Dr. Lindemoen actually left gauze in Greenwood’s ear was an ordinary fact question for the jury, and an expert’s opinion would not have assisted the jury in resolving that question. See N.D.R.Ev. 702.

[¶ 16] Medical malpractice cases typically involve a complex jumble of medical, technical, and ordinary fact questions. While expert testimony may be necessary to assist the jury in sorting out the medical and technical issues, the ordinary fact questions are for the jury to decide. For example, in Bader v. Johnson, 732 N.E.2d 1212 (Ind.2000), the plaintiffs brought a medical malpractice action alleging the defendant doctor had negligently failed to provide them with the results of an ultrasound test. After first establishing the doctor had a duty to disclose the results of the test, the court concluded expert testimony was not required to establish the doctor had in fact failed to provide the results:

As for a breach of duty, expert medical testimony is usually required to determine whether a physician’s conduct fell below the applicable standard of care. This is generally so because the technical and complicated nature of medical treatment makes it impossible for a trier of fact to apply the standard of care without the benefit of expert opinion on the ultimate question of breach of duty. Here, however, we doubt whether expert testimony is required to determine whether Healthcare [P]roviders breached its duty. If Healthcare Providers did not provide the Johnsons with the result of the ultrasound, then Healthcare Providers breached its duty. It does not appear to us that expert testimony is required on this point.

Bader, 732 N.E.2d at 1217-18 (citations omitted). Similarly, in this case expert testimony was not required to apply the relevant standard of care. The question whether Dr. Lindemoen actually left gauze in Greenwood’s ear was a pure, ordinary fact issue for the jury to decide based upon the direct and circumstantial evidence, and no expert testimony on the issue was needed.

[¶ 17] Finally, Dr. Lindemoen contends that, even if Greenwood has established a breach of the relevant standard of care, she failed to prove the injuries complained of were caused by that breach. We disagree.

[¶ 18] It is undisputed Greenwood underwent a procedure in 1996 in which Dr. Burrell removed an object from her ear with a curette. Dr. Burrell testified the procedure would have caused pain and discomfort for Greenwood. Greenwood testified the procedure was painful, and that she bore the expense of the procedure. If the jury finds that the object removed from Greenwood’s ear was gauze negligently left there by Dr. Lindemoen after her earlier surgery, at a minimum Greenwood has established causation of the pain and expense of the 1996 procedure to remove it.

[¶ 19] There is also other evidence supporting a finding of causation. When Dr. Lindemoen was asked about Greenwood’s ear problems, and what might occur if gauze were left in a patient’s ear for an extended period of time, he testified:

A medicated ointment dressing like this would prevent any kind of infection unless it was left for years. I mean, then you would probably get something.

In addition, Greenwood testified, without objection, about what Dr. Burrell believed had caused her ongoing ear problems:

Q. In 1999 did Dr. Burrell indicate to you that you had a problem with your left ear?
A. And what was that? I’m sorry.
Q. Is Dr. Burrell — have you gone to see Dr. Burrell about your ear?
A. Yes, I have.
Q. And do you have an understanding as to what is wrong with your ear?
A. He — according to what was told to me I have eczema in my ear and that it was caused from the mesh being left in my ear.

From all of this evidence, viewed as a whole, the jury could have found at least some of Greenwood’s claimed harm was caused by gauze being left in her ear by Dr. Lindemoen.

[¶ 20] Viewing the evidence in the light most favorable to Greenwood and giving her the benefit of all reasonable inferences from that evidence,*we conclude Greenwood presented a prima facie case of medical malpractice against Dr. Lindemoen. Accordingly, the trial court erred in granting Dr. Lindemoen’s motion for judgment as a matter of law.

V

[¶ 21] We reach a different result on Greenwood’s claim against Paracelsus. Greenwood did not present evidence that Dr. Lindemoen was an employee or agent of the hospital, nor advance any other theory to hold the hospital responsible for Dr. Lindemoen’s actions.

[¶ 22] Thus, to recover against the hospital, Greenwood would have to establish negligence by one of the hospital’s own employees. The record indicates the hospital provided a scrub nurse and a circulating nurse, but the actual surgical procedure was performed entirely by Dr. Lindemoen and his surgical nurse, who was his own employee and not affiliated with the hospital. In order to base liability upon the actions of the scrub nurse or surgical nurse, Greenwood would have to present evidence of the appropriate standard of care and skill for such nurses, a violation of that standard, and a causal connection between the violation and the harm complained of. See, e.g., Larsen, 498 N.W.2d at 192. Greenwood presented no evidence establishing the applicable standard of care for nurses. Accordingly, she failed to establish a prima facie case of medical malpractice against the hospital, and the trial court did not err in granting Paracelsus’s motion for judgment as a matter of law.

VI

[¶ 23] We affirm the judgment dismissing Greenwood’s action against Paracelsus, reverse the judgment dismissing Greenwood’s action against Dr. Lindemoen, and remand for a new trial against Dr. Linde-moen.

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


author: SANDSTROM, Justice.

text:
    2001 ND 36
    Donald SCHROEDER and Evelyn A. Schroeder, Plaintiffs and Appellees, v. Dennis BUCHHOLZ, Defendant and Appellant, and Donna Buchholz, Defendant and Appellee.
    No. 20000191.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Don R. Krassin (argued), Krassin Law Office, Wahpeton, ND, for plaintiffs and appelleqs Donald Schroeder and Evelyn A. Schroeder.
    Samuel S. Johnson, Wahpeton, ND, for defendant and appellee Donna Buchholz.
    John D. Bullis (argued), Lies & Bullís, Wahpeton, ND, and Tracey R. Lindberg, Lindberg Law Firm, Breckenridge, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Dennis Buchholz appeals from a district court order imposing a constructive trust in favor of Donald and Evelyn Schroeder. Concluding the elements of a constructive trust were sufficiently established but the district court’s remedy was improper, we affirm in part, reverse in part, and remand for farther proceedings.

I

[¶ 2] In 1981 Dennis and Donna Buch-holz, along with Donna Buchholz’s parents — Donald and Evelyn Schroeder, inspected a 23-acre tract of land for sale near Colfax, North Dakota. Prior to closing the purchase, the Schroeders gave the Buchholzes a paper bag containing $19,750 in cash, which, along with the Buchholzes’ assumption of a note, was used to purchase the property for $39,500. The Buchholzes were deeded the property as joint tenants.

[¶ 3] The Buchholzes moved into a house on the property, and the Buchholzes and Schroeders jointly improved the house and property. In 1984 a second house was moved onto the property and has since been occupied by the Schroeders. In 1998 the Buchholzes sought a divorce and separated. Donna Buchholz moved away, while Dennis Buchholz remained on the property and continued to run his business that is collocated on the property. The Schroeders sued Dennis and Donna Buch-holz, seeking partition of the property and the right to remain on the property and in the home.

[¶ 4] The district court granted the Schroeders a lifetime right to reside in their home and lifetime use of 1.03 acres surrounding the house. The district court’s order provided that upon the death of the Schroeders, the property and house will revert to Dennis and Donna Buchholz. Dennis Buchholz timely appealed. The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] “An implied trust is one that is created by operation of law.” N.D.C.C. § 59-01-05. There are two types of implied trusts: resulting and constructive. Loberg v. Alford, 372 N.W.2d 912, 915 (N.D.1985). A constructive trust is an equitable remedy to compel a person “who unfairly holds a property interest to convey such interest to the rightful owner.” Id. (quoting Scheid v. Scheid, 239 N.W.2d 833, 837-38 (N.D.1976)). A constructive trust is imposed to prevent the unjust enrichment of the person wrongfully interfering with the owner’s possession of the property. Id. (citations omitted). An implied trust, whether resulting or constructive, must be established by clear and convincing evidence. McCarney v. Knudsen, 342 N.W.2d 380, 385 (N.D.1983); Scheid, 239 N.W.2d at 838.

A

[¶ 6] The district court considered only the constructive-trust theory because the court concluded the plaintiffs withdrew their resulting-trust theory. Although a constructive trust must be proven by clear and convincing evidence, whether a relationship of personal confidence exists need be proven only by a preponderance of the evidence. Matter of Estate of Bendickson, 353 N.W.2d 320, 323 (N.D.1984); Loberg v. Alford, 372 N.W.2d 912, 915 (N.D.1985); Estate of Zins by Kelsch v. Zins, 420 N.W.2d 729, 733 (N.D.1988).

[¶ 7] The existence of a confidential relationship and the existence of an implied trust are questions of fact. Black v. Peterson, 442 N.W.2d 426, 428 n. 1 (N.D.1989). Findings of fact are subject to a clearly erroneous stándard of review. N.D.R.Civ.P.. 52(a). A finding of fact is clearly erroneous only if the reviewing court is left with a definite and firm conviction that a mistake has been made. Nastrom v. Nastrom, 284 N.W.2d 576, 580 (N.D.1979) (citations omitted).

[¶8] Buchholz argues the trial court’s findings are insufficient because they are not based upon the implied-trust elements identified in N.D.C.C. § 59-01-06. A constructive trust has two essential elements: unjust enrichment and a confidential relationship. Paulson v. Meinke, 389 N.W.2d 798, 801 (N.D.1986). A confidential relationship “may exist although there is no fiduciary relation; it is particularly likely to exist where there is a family relationship.” Id. (citation omitted).

[¶ 9] “A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another, and that such relationship is a fact to be established in the same manner and by the same kind of evidence [as] any other fact is proven.” Estate of Wenzel-Mosset by Gaukler v. Nickels, 1998 ND 16, ¶ 25, 575 N.W.2d 425 (citations omitted).

[¶ 10] Among the district court’s 124 findings of fact are numerous findings evidencing a confidential relationship. The Sehroeders provided' one-half of the money to purchase the property. The parties jointly improved the property. Shortly after the purchase, the Schroe-ders, assisting the Buchholzes, spent “nearly every weekend” improving the property, including “trimming and removing brush, trimming and removing trees, general cleanup, remodeling of the house, removal of old out buildings and eventually remodeling of a barn into a shop.” The district court classified Donald Schroeder’s work on the property as extensive.

[¶ 11] Later, the parties collectively prepared the property for addition of a second home. A house was moved onto the property, and the Sehroeders lived in it from 1987 until the trial. The district court found “Donald Schroeder paid for various items that went into maintenance” of the farmstead, including a well and pressure tank system to service both houses. Later, Dennis Buchholz paid for improvements and replacements to those systems. The parties worked together on remodeling projects. The district court found Donald Schroeder “obtained at his expense and effort most of the lumber used for raising the barn” that subsequently housed a business for Dennis Buchholz.

[¶ 12] The district court found the parties’ “mutual cooperation was demonstrated by the fact that they hunted together, gardened together, and canned together over the years.” Further, Donald Schroeder assisted in the operation of Dennis Buchholz’s business. The district court found, although the parties exchanged labor, Donald Schroeder “greatly exceeded the reciprocal work provided by Dennis Buchholz.”

[¶ 13] Although included in the district court’s conclusions of law, the district court found, “During the transactions that are pertinent to these proceedings Dennis Buchholz was in a confidential relationship with the Sehroeders, primarily as a result of the family relationships that existed.” The existence of a confidential relationship is a question of fact subject to the clearly erroneous standard of review. Black v. Peterson, 442 N.W.2d 426, 428 n. 1 (N.D.1989). We conclude the district court’s findings aptly set forth a confidential relationship, we are not left with a definite and firm conviction that a mistake has been made, and we therefore hold the district court did not err in finding a confidential relationship.

B

[¶ 14] The determination of unjust enrichment is a conclusion of law and is fully reviewable on appeal. Matter of Estate of Zent, 459 N.W.2d 795, 798 (N.D.1990); Opp v. Matzke, 1997 ND 32, ¶ 8, 559 N.W.2d 837. Unjust enrichment is an equitable doctrine applied in the absence of a contract and used to prevent one person from being unjustly enriched at another’s expense. Apache Corp. v. MDU Resources Group, Inc., 1999 ND 247, ¶ 13, 603 N.W.2d 891 (citing Zuger v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 135, 138 (N.D.1992)). “The essential element in recovering under a theory of unjust enrichment is the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value.” Zuger v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 135, 138 (N.D.1992) (citation omitted).

[¶ 15] Five elements must be established to prove unjust enrichment:

1. An enrichment; 2. An impoverishment; 3. A connection between the enrichment and the impoverishment; 4. Absence of a justification for the enrichment and impoverishment; and 5. An absence of a remedy provided by law.

Apache Corp. v. MDU Resources Group, Inc., 1999 ND 247, ¶ 13, 603 N.W.2d 891 (citations omitted). Although review would be easier if the district court had outlined these elements, after fully reviewing the record, we hold the district court did not err in concluding Buchholz would be unjustly enriched.

[¶ 16] The value of the Buchholz property has increased, due in large part to the efforts and contributions of the Schroeders. The Schroeders assisted Dennis Buchholz with his business, which was operated on the property. The Schroeders shared costs, expenses, and labor for improvements with Buchholz. The Schroeders’ purchase of a well and pressure tank system to service both houses, the jointly installed and serviced heating system, and the Schroeders’ purchase of lumber and materials to convert the barn into a shop are evidence of an impoverishment. The time, labor, and materials provided by the Schroeders for the overall improvement of the whole property are further evidence of an impoverishment. We conclude the district court’s findings and conclusions aptly set forth an enrichment of Dennis Buchholz, an impoverishment of the Schroeders, and a connection between the enrichment and impoverishment.

[¶ 17] Unjust enrichment requires a finding by the court of the absence of a justification for the enrichment. The district court concluded the Schroeders expected a right to reside on the property for life. Although a reasonable interpretation of the facts may suggest the Schroeders’ efforts and contributions were a token of familial love and affection, the district court’s conclusion, is equally sustainable. In light of the Schroeders’ payment of half the purchase price, their contributions to the improvement of the property, the testimony indicating the Schroeders did not provide substantial gifts to their other children, and all the evidence before the court, we conclude the absence of a justification for the enrichment is supported by the district court’s findings.

[¶ 18] Finally, for unjust enrichment, there must be the absence of a remedy provided by law. Apache Corp. v. MDU Resources Group, Inc., 1999 ND 247, ¶ 13, 603 N.W.2d 891 (citations omitted). If, for example, there had been a contract to jointly purchase the property, there would be a concomitant remedy at law for enforcement of the contract or damages flowing from any contractual breach. See id. at ¶ 12 (“Unjust enrichment is an equitable doctrine, applied in the absence of an express or implied contract, to prevent a person from being unjustly enriched at the expense of another.”) (citations omitted). The district court, however, specifically held that because there was no agreement to jointly purchase the property, there existed no express or implied contract rights between the parties. The district court’s findings and conclusions illuminate no other basis from which the Schroeders could seek a legal remedy, and neither party raised the issue of absence of a legal remedy. We conclude the final element of unjust enrichment — the absence of a remedy at law — is adequately demonstrated by the record.

C

[¶ 19] We conclude the district court did not err in holding the elements of a constructive trust were sufficiently proven..

Ill

[¶ 20] Having concluded the elements of a constructive trust exist, we next address the district court’s remedy. The district court held there was “no agreement between the parties to have equal ownership of the 23 acres.” The court held the $19,750 provided by the Schroe-ders was “by law a gift.” The court found if the Schroeders were evicted, Dennis Buchholz would be unjustly enriched, and if the Schroeders were awarded “one-half of the property or even a smaller portion of the 23 acres,” they would be unjustly enriched. The district court imposed a constructive trust, awarding Donald and Evelyn Schroeder “a joint life estate in their home and surrounding areas for each of their respective natural lives.”

A

[¶ 21] The district court imposed a “life estate” in favor of Donald and Evelyn Schroeder. The district court held, “Upon the death of the later to die of Donald Schroeder or Evelyn Schroeder the property described by the life estate shall then become the sole property of the defendants, and the constructive trust is automatically terminated and extinguished.” Even though the court imposed a “life estate” in favor of the Schroeders, in stating Dennis Buchholz would “be back in Court before the ink is even dry on his paperwork” if the Schroeders attempted to rent the house, the court implied the Schroeders’ interest was not alienable. It is well-settled, a life estate holder “is entitled to both the possession and the use of the property ... including the right to rents, issues, and profits generated by the parcel during the tenant’s life.” 51 Am. Jur.2d Life Tenants and Remaindermen § 32 (2000). A life tenant “is entitled to possession and enjoyment of the property as long as the estate endures; he or she may convey or lease his or her interest, but may not disregard the rights of those who take when the life estate ends.” Id.

[¶ 22] Discussing whether the Schroe-ders could rent their property, the court stated:

Mr. Bullís has raised some questions about do they have the right to rent it out? You have to remember something here. Mr. and Mrs. Buchholz are trustees of the Life Estate. I mean I’m finding a constructive trust? What does that mean? That means that right now Mr. and Mrs. Buchholz are trustees concerning a Life Estate that’s held by Mr. and Mrs. Schroeder for each of their lives. I mean let’s take some of the examples. I mean I know they’re extreme. I mean they let the house go. They try to rent it out. I’m assuming if that happens Mr. Buchholz is going to be back in Court before the ink is even dry on his paperwork saying look, this is a violation of the constructive trust.

[¶ 23] In addition to whether the life estate is alienable, the record reflects a great deal of discussion regarding boundary lines, use of common driveways, sharing of water and electrical services, and overall use and enjoyment of the property. The record demonstrates the district court did not create an actual life estate, but rather attempted to create a constructive trust with the duration to be measured by the lives of the Schroeders.

B

[¶ 24] The interest created by the district court was neither a life estate nor a constructive trust. “When equity imposes a constructive trust upon an asset of the defendant, the plaintiff ultimately gets formal legal title.” Dan B. Dobbs, Law of Remedies § 4.3(2) (2d ed.1993) (footnote omitted). The effect of a constructive trust “is to allow the plaintiff to recover the asset in specie.” Id. If a constructive trust is imposed, a defendant “must ultimately reconvey to the plaintiff.” Id.

[¶ 25] Here, the district court imposed a “constructive trust” but awarded the Schroeders only a lifetime interest in the property. After concluding a constructive trust existed, the court did not order the Buchholzes to convey legal title to the Schroeders. The district court’s notion that a constructive trust may be imposed with the Buchholzes as constructive trustees and without passing title to the trust beneficiaries, the Schroeders, has been described by at least one author as “esoteric metaphysics.” Id. at § 4.3(2) n. 1 (citing I G. Palmer, Law of Restitution § 1.4 (1978 & Supps.; criticizing the Restatement of Restitution)). The notion “that title is ultimately passed when a constructive trust is declared is accurate both factually and theoretically.” Id.

[¶ 26] Although some courts have imposed a “constructive trust” under similar circumstances, at least one author suggests the intention may have been to create an equitable lien, despite the use of constructive trust terminology. See Kuhlman v. Cargile, 200 Neb. 150, 262 N.W.2d 454 (1978) (imposing a “constructive trust”); see also Dan B. Dobbs, Law of Remedies § 4.3(3) n. 8 (2d ed.1993) (suggesting the Kuhlman court “perhaps” had an equitable lien “in mind”). An equitable lien, like a constructive trust, is imposed to prevent unjust enrichment.. Dan B. Dobbs, Law of Remedies § 4.3(3) (2d ed.1993). A lien is placed upon the property to secure restitution. Id. Essentially, a constructive trust provides the plaintiff with title to specific assets, while the equitable lien attaches to an asset as security. Id.

[¶ 27] Because a constructive trust is founded on the concept that title to property is being wrongfully held, if the district court’s remedy were truly a constructive trust, Dennis and Donna Buch-holz would be required to transfer title to the Schroeders. If the district court’s remedy were truly a life estate, the Schroeders would be able to convey their interest, rent the property, or otherwise partake in full use and enjoyment of the property.

[¶28] The construction of the remedy in this case leaves us unable to determine whether the district court has imposed a constructive trust, an equitable lien, or some other remedy. We therefore reverse and remand this matter to the district court to clarify its order.

C

[¶ 29] District courts have broad authority when fashioning an equitable remedy. See Baker v. Minot Public School Dist. No. 1, 253 N.W.2d 444, 451 (N.D.1977) (equity is flexible “and the power of a court of equity to grant such a remedy depends upon the factual situation involved and the need for a given remedy in a particular case”). “A lack of precedent is no obstacle to equitable relief which may be appropriate in a particular factual setting.” Id. The attempted precedent here, however, would confuse clearly established tenets of property law and equity. Therefore, the district court’s remedy was improper.

[¶ 30] Because we conclude the district court did not err in holding the elements of a constructive trust were sufficiently proven, a constructive trust may be imposed. Imposition of a constructive trust, however, would require Dennis and Donna Buch-holz to transfer title of the affected portion of the property to the Schroeders.

[¶ 31] Because a constructive trust was not actually imposed by the district court, on remand the district court may choose to consider other remedies that would not confuse tenets of property law and equity. For example, the court may grant the Schroeders an equitable lien with reasonable time to vacate the property. The district court may grant Dennis Buchholz’s request for eviction with corresponding restitution to the Schroeders to offset any unjust enrichment. The court may partition a portion of the property in favor of the Schroeders. The court may order the entire property sold, with a proportionate sharing of profits. Further complicating this case, property distribution from the Buchholz divorce has not been finalized by the district court — the same court that decided the present case. Therefore, the rights and obligations of Dennis and Donna Buchholz to the property also remain undecided.

IV

[¶ 32] Concluding the elements of an implied trust were sufficiently proven, we affirm in part. Because, however, the district court imposed an improper remedy that was neither a life estate nor a constructive trust, we reverse and remand for further consideration consistent with this opinion.

[¶ 33] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

      . Some dispute apparently exists as to whether the tract of land is 23 or 24 acres. The district court found it is 23 acres.

      . Donna Buchholz did not file a brief or argue on appeal, but advised this Court that she joined the Schroeders’ claim that a constructive trust was properly imposed in their favor.

      . The parties disagree about whether the $19,750 was a gift; the district court concluded, as a matter of law, the money was a gift.


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 32
    Clyde AALUND, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20000208.
    Supreme Court of North Dakota.
    Feb. 15, 2001.

      Steven L. Latham, Wheeler Wolf, Bismarck, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Clyde Aalund appealed a judgment affirming a Workers Compensation Bureau order adopting an administrative law judge’s recommendation that he willfully made material, false statements on reimbursement claims to the Bureau. We hold the Bureau did not err in admitting deposition testimony at the administrative hearing, and the Bureau’s finding Clyde willfully made material, false statements on reimbursement claims is supported by a preponderance of the evidence. We affirm.

I

[¶ 2] The Bureau accepted Clyde’s claim for benefits for a work-related injury incurred in 1990. Clyde’s brother, Paul Aalund, had suffered a work-related injury in 1987, and the Bureau also awarded Paul benefits for his injury. In the early 1990s, Clyde and Paul were both receiving treatment for their injuries from Dr. Richard Nelson in Billings, Montana. Clyde lived in Billings until 1995, when he moved to northwestern North Dakota. Paul lived in northwestern North Dakota at all times relevant to this proceeding, and he traveled to Billings to see Dr. Nelson on a monthly basis. In 1995, Clyde also began traveling to Billings to see Dr. Nelson on a monthly basis, and Clyde submitted requests for reimbursement for some of his trips to Billings. In August 1998, Paul requested reimbursement for some of his trips to see Dr. Nelson in the preceding year. Clyde had submitted some requests for mileage reimbursement for the same year. A comparison of their reimbursement requests indicated Paul and Clyde were each requesting mileage reimbursement for some trips to see Dr. Nelson on the same date.

[¶ 3] The Bureau hired a private investigator to videotape the Aalunds on a September 29, 1998 visit to Dr. Nelson in Billings. On that date, the Bureau’s investigator videotaped Clyde and Paul arriving at Dr. Nelson’s office in the same vehicle, leaving in the same vehicle, and driving out of Billings in the same vehicle. The videotape showed Paul was the driver and Clyde was a passenger in the vehicle. Clyde admits he submitted requests to the Bureau for reimbursement for the September 29 trip, and he rode back to North Dakota with Paul. The Bureau issued Clyde a notice of intention to discontinue benefits, denying him further benefits and ordering him to repay the Bureau for previously paid mileage reimbursement. Clyde requested a hearing. After a hearing, an administrative law judge issued a recommended decision finding Clyde had willfully made material false statements in claims to the Bureau for reimbursement, denying him any additional benefits for his 1990 injury, and ordering him to reimburse the Bureau for any benefits paid because of the false statements. The Bureau adopted the recommendation, and the district court affirmed the Bureau’s decision.

II

[¶ 4] On appeal, we review the decision of the Bureau. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 18, 606 N.W.2d 501. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 7, 611 N.W.2d 898. We exercise restraint in deciding whether the Bureau’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the Bureau; rather, we decide whether a reasoning mind reasonably could have decided the Bureau’s findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a Bureau decision. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 11, 608 N.W.2d 254.

Ill

[¶ 5] Clyde argues the Bureau erred in admitting into evidence two depositions that did not reflect the deponent had been given the admonition required by N.D.C.C. § 28-32-11, which provides, in part, that any hearing officer in an administrative proceeding has the power to administer oaths, and “[a]t the time the person presiding administers the oath to a witness, the person shall advise the witness of the provisions of subsection 1 of section 12.1-11-01 and of the maximum penalty for perjury.” At the administrative hearing, the Bureau offered into evidence the depositions of Cameo Aalund and Geri Anderson. Cameo Aalund is Clyde’s niece and Paul’s daughter, and Geri Anderson is Cameo’s mother and Paul’s former girlfriend. The Bureau found Cameo Aalund’s testimony presented a credible picture that Clyde traveled with Paul and Cameo on some trips to Billings to see Dr. Nelson. Clyde objected to the admission of the depositions, because both deposition transcripts did not reflect the deponents had been given the admonition required by N.D.C.C. § 28-32-11, and, instead, both deposition transcripts merely said the witness “being first duly sworn, was examined and testified as follows.” Clyde argues Cameo Aalund’s deposition testimony was “incredulous,” and without the admonition, her deposition testimony was incompetent and inadmissible.

[¶ 6] The primary objective of statutory construction is to ascertain the Legislature’s intent. E.g., Ash v. Traynor, 2000 ND 75, ¶ 6, 609 N.W.2d 96. In ascertaining legislative intent, we initially look to the words used in statutes, giving them their plain and ordinary meaning. Id. If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. Lende v. North Dakota Workers’ Comp. Bureau, 1997 ND 178, ¶20, 568 N.W.2d 755. We construe statutes as a whole to give each provision meaning. Ash, at ¶ 7.

[¶ 7] Section 28-32-11, N.D.C.C., specifically authorizes hearing officers to administer oaths to witnesses, and “[a]t the time the person presiding administers the oath to a witness, the person shall advise the witness of the provisions of subsection 1 of section 12.1-11-01 and of the maximum penalty for perjury.” The plain language of N.D.C.C. § 28-32-11 says the “person presiding” shall advise the witness about the penalty for perjury. The “person presiding” at an administrative proceeding is the hearing officer, see N.D.C.C. § 28-32-01(5), and hearing officers are not usually present at discovery depositions. Construing N.D.C.C. § 28-32-11 to require the “person presiding” to be present and administer this admonition at a discovery deposition would impose an impractical administrative burden on hearing officers and unduly limit the use of depositions at administrative hearings. Section 28-32-06, N.D.C.C., specifically says the admissibility of evidence in any administrative proceeding is governed by the rules of evidence and all testimony must be made under oath or affirmation. See also N.D.R.Evid. 603. Section 28-32-09(1), N.D.C.C., contemplates discovery for administrative hearings in accordance with the North Dakota Rules of Civil Procedure. Under N.D.R.Civ.P. 30(c), the officer taking a deposition shall put a witness “on oath.” Rule 32(a)(3)(B), N.D.R.Civ.P., authorizes the use of depositions at trials and hearings so far as admissible under the rales of evidence, and depositions may be used against any party who was present at the taking of the deposition if the witness is more than 100 miles from the place of trial or hearing. When these provisions are construed together, they do not preclude the introduction into evidence of otherwise admissible depositions which do not contain the admonition specified in N.D.C.C § 28-32-11.

[¶ 8] Here, Clyde does not argue the depositions were otherwise inadmissible as evidence at the administrative hearing. Rather, his argument is based on the failure of the depositions to reflect the witnesses had been advised of the provisions of N.D.C.C. § 12.1-11-01(1) and the maximum penalty for perjury. We conclude, however, N.D.C.C. § 28-32-11 does not prevent the introduction into evidence at an administrative hearing of otherwise admissible depositions which do not contain the admonition specified in N.D.C.C. § 28-32-11. The Bureau adopted the administrative law judge’s decision holding the depositions were admissible under N.D.R.Civ.P. 32(a)(3)(B), because Clyde was present when the depositions were taken and the two witnesses resided more than 100 miles from the place of the hearing. We conclude the Bureau did not err in admitting into evidence the depositions of Geri Anderson and Cameo Aadlund.

IV

[¶ 9] Clyde argues the Bureau erred in using the preponderance of evidence standard to find a violation of N.D.C.C. § 65-05-33. He argues the Bureau must prove a civil violation of N.D.C.C. § 65-05-33 by clear and convincing evidence.

[¶ 10] In Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, ¶ 15, 575 N.W.2d 436, a claimant argued the Bureau was required to prove a civil violation of N.D.C.C. § 65-05-33 by clear and convincing evidence. We said we had previously applied the preponderance-of-the-evidence standard to N.D.C.C. § 65-05-33. Hopfauf, at ¶ 15 (citing Hausauer v. North Dakota Workers Compensation Bureau, 1997 ND 243, ¶ 13, 572 N.W.2d 426). In Hopfauf, at ¶ 15, we declined to decide whether the Bureau must prove a civil violation of N.D.C.C. § 65-05-33 by clear and convincing evidence, because the claimant had failed to argue for the heightened standard of proof at the administrative hearing or in his specifications of error to the district court.

[¶ 11] Here, during Clyde’s opening statement at the administrative hearing, he said the Bureau’s burden was to prove he “made an intentional, false statement to obtain a benefit to which he would not otherwise be entitled, that burden is by clear and convincing evidence.” During closing argument at the administrative hearing, Clyde argued the Bureau had “not shown by clear and convincing evidence that he intentionally attempted to, defraud the Bureau.” Clyde did not otherwise raise this issue in proceedings before the Bureau, and his specifications of error to the district court did not identify this issue. Clyde’s brief to the district court included a superficial argument on this issue, but the district court’s decision did not address it.

[¶ 12] In Matter of Boschee, 347 N.W.2d 331, 334-35, we said in appeals from administrative agency decisions, courts may consider only those grounds identified in specifications of error under N.D.C.C. § 28-32-15, and the grounds specified must come within the provisions of N.D.C.C. § 28-32-19. See Dodds v. North Dakota State Highway Comm’r, 354 N.W.2d 165, 169 n. 4 (N.D.1984); Cf., Application of Otter Tail Power Co., 354 N.W.2d 701, 702-04 (N.D.1984) (stating under certain circumstances constitutional issue may be raised for the first time on appeal of administrative agency decision). Clyde did not raise this issue in his specifications of error to the district court. Vetter v. NoHh Dakota Workers Comp. Bureau, 554 N.W.2d 451, 453-54 (N.D.1996) (holding specifications of error in appeal from administrative agency decision must be reasonably specific and calculated to identify the matters truly at issue sufficient to fairly apprise the agency, other parties and the court of the particular issues claimed). Moreover, he has not postured his argument in terms of a constitutional issue. See Renault, 1999 ND 187, ¶¶ 11-14, 601 N.W.2d 580 (declining to address claimant’s perfunctory argument that due process requires Bureau to prove civil violations of N.D.C.C. § 65-05-33 by clear and convincing evidence). Under these circumstances, we conclude Clyde has failed to properly preserve this issue for our review, and we decline to further consider it.

V

[¶ 13] Clyde argues the Bureau failed to establish he willfully made material false statements in claims to the Bureau for reimbursement.

[¶ 14] In Hausauer, 1997 ND 243, ¶¶ 12-13, 17-18, 572 N.W.2d 426 (citations omitted), we outlined the requirements for proving a false statement under N.D.C.C. § 65-05-33:

To trigger the statutory consequences under § 65-05-33 for a false claim or false statement by a person claiming benefits or payment of services, the Bureau must prove: (1) there is a false claim or false statement; (2) the false claim or false statement is willfully made; and (3) the false claim or false statement is made in connection with any claim or application under this title. We additionally require the Bureau to prove the false statement is material.... We have defined “willfully” in the context of this statute’s civil penalties as conduct engaged in intentionally, not inadvertently. ...
Once triggered, N.D.C.C. § 65-05-33 provides for both criminal and civil penalties. The civil penalties include reimbursement to the Bureau “for any benefits paid based upon the false claim or false statement” and “forfeit[ure of] any additional benefits relative to that injury.” ... In order to trigger the civil penalties, the Bureau must prove the elements of N.D.C.C. § 65-05-33 by a preponderance of the evidence.
If the Bureau is seeking reimbursement for benefits paid, materiality requires the Bureau to prove the false claim or false statement caused the benefits to be paid in error.
If the Bureau is seeking forfeiture of future benefits, a false claim or false statement is sufficiently material if it is a statement which could have misled the Bureau or medical experts in a determination of the claim.

[¶ 15] An individual’s state of mind can rarely be proven directly and usually must be inferred from conduct and circumstantial evidence. E.g. Renault, 1999 ND 187, ¶ 18, 601 N.W.2d 580. The Bureau is responsible for assessing the credibility of witnesses and resolving conflicts in the evidence. Theige v. North Dakota Workers Comp. Bureau, 1997 ND 160, ¶ 9, 567 N.W.2d 334.

[¶ 16] Here, the Bureau adopted the administrative law judge’s recommendation that the greater weight of the evidence showed Clyde traveled with Paul on several of their trips to Billings to see Dr. Nelson; both Clyde and Paul submitted requests for reimbursement for mileage and meals for some of those trips; and Clyde willfully made false statements on one or more reimbursement forms he submitted to the Bureau. Clyde claims he did not willfully make false and material statements in his requests for reimbursement. However, the Bureau adopted the administrative law judge’s findings that Cameo Aalund was a better witness and more credible than either Clyde or Paul Aalund; Clyde’s assertion that misstatements in his reimbursement requests were inadvertent was not credible; Cameo Aalund’s answers to questions were thoughtful and straightforward; and she identified specific dates when Clyde and Paul traveled to Billings together. Cameo Aalund’s testimony and the circumstantial evidence support the Bureau’s decision that Clyde willfully made material false statements to the Bureau in requests for reimbursement. The record supports the Bureau’s findings and conclusions, and we do not substitute our judgment for the Bureau’s decision. Renault, 1999 ND 187, ¶ 22, 601 N.W.2d 580. We conclude a reasoning mind reasonably could conclude Clyde willfully made material false statements in claims to the Bureau for reimbursement. The Bureau’s findings are supported by a preponderance of the evidence.

VI

[¶ 17] Clyde argues his forfeiture of all benefits denies him sure and certain relief under N.D.C.C. § 65-01-01. He argues because of a “minor mistake, whether intentional or not, in filling out his mileage reimbursement forms, he has now lost all [disability, medical, and vocational rehabilitation] benefits and the law has denied him any other form of compensation for his injuries.” Clyde argues there must be “some proportionality between the offense committed by a claimant and the penalty imposed by the Bureau, otherwise the claimant is denied the sure and certain relief which has been promised to him.” He claims he “received the death penalty for a minor traffic offense.”

[¶ 18] We reject Clyde’s characterization of this case. Under N .D.C.C. § 65-05-38(3), the legislature has authorized the forfeiture of “any additional benefits” for any person who willfully files a false claim or makes a false statement to the Bureau. We have construed that statute to require claimants to forfeit any additional benefits for willfully making material false statements to the Bureau. Hausauer, 1997 ND 243, ¶ 12, 572 N.W.2d 426. The Bureau found Clyde willfully made false statements in connection with a claim and those false statements were material and misled the Bureau in awarding him benefits. The record supports the Bureau’s finding that Clyde forfeited any additional benefits because he willfully made material false statements in his claims for reimbursement and not because he made a minor or innocent mistake.

V

[¶ 19] We affirm the judgment.

[¶ 20] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ concur.