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

text:
    2003 ND 55
    MaLaura SCHMIDT, Plaintiff and Appellant, v. Warren A. SCHMIDT, Defendant and Appellee.
    No. 20020202.
    Supreme Court of North Dakota.
    April 15, 2003.

      Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, ND, for plaintiff and appellant.
    Chad C. Nodland, Chad C. Nodland, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] MaLaura Schmidt (“Lauri”) appealed from the judgment entered in her divorce action against Warren A. Schmidt. We conclude the trial court’s findings of fact on child custody and visitation are not clearly erroneous, and we affirm.

[¶ 2] The parties married in 1996. The family lived on a farm near Max. Warren farmed throughout the marriage. Lauri worked part-time at a Max bank after the parties married and later worked in a Minot law office. Lauri stayed home for about eight weeks after their son, Trevor, was born in 1998. While the parties were working, Trevor went to a daycare provider near Max, but spent one day a week with Warren’s mother.

[¶ 3] Lauri sued for a divorce in August of 2001, and moved out of the marital home in September. At an interim order hearing, Lauri testified she had leased a home at Prairie View Heights 15 miles south of Minot. The trial court issued an interim order providing, in part: (1) the parties had custody of Trevor on alternating weekends; (2) Warren had custody of Trevor during the daytime Monday through Friday, while Lauri had custody of Trevor in the evenings; and (3) “Daycare for Trevor shall remain with his previously established daycare provider unless the parties otherwise jointly agree.” The judgment granted the parties a divorce, awarded primary physical custody of Trevor to Warren, provided Lauri with visitation, ordered Lauri to pay child support, awarded Lauri spousal support for 30 months, and divided the parties’ marital property and debts.

[¶ 4] On appeal, Lamí contends the trial court erred in its custody and visitation determinations. She also requests attorney fees.

I

[¶ 5] We exercise a limited review of child custody awards in divorce cases. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 638 N.W.2d 142. A custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Id. Before we can determine if findings of fact are clearly erroneous, we must understand the basis for the trial court’s decision. In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. A trial court’s findings of fact are presumptively correct, and we view the evidence in the fight most favorable to the findings. Stoppler, at ¶ 7.

[¶ 6] Under N.D.C.C. § 14-09-06.1, the trial court must award the custody of an unmarried minor child “to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child.” In making an initial custody determination, a trial court must consider all of the factors specified in N.D.C.C. § 14-09-06.2(1) and base its decision on the best interests and welfare of the child. Stoppler, 2001 ND 148, ¶ 5, 633 N.W.2d 142. Section 14-09-06.2(1), N.D.C.C., provides, in part:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
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 child 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....
k. The interaction and interrelationship, or the potential for 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. The court shall consider that' person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

Although a separate finding is not required for each factor under N.D.C.C. § 14-09-06.2(1), the trial court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court’s decision. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶ 7] In considering the factors specified by N.D.C.C. § 14-09-06.2(1), the trial court found one, factor c, slightly favored Lauri; found factors a and e favored Warren; found factor k strongly favored Warren; and found the other factors favored neither party, or were not factors in the court’s decision. Because Lauri contends the trial court’s custody award is clearly erroneous, we quote the court’s findings on the factors favoring Warren at length:

a. The love, affection and other emotional ties existing between the parents and child.
Several witnesses testified about the relationship between Trevor and each of his parents. Some of the more convincing testimony came from Agnes Dobow-ey, a retired elementary teacher, who now operates a day care facility. Ms. Dobowey started taking care of Trevor in 1998 during the month of December and now cares for him an average of four days a week.
Ms. Dobowey testified that Trevor has bonded well with' his father — that Trevor warmly receives his father — but that he does not show the same warm reception toward his mother. Ms. Dobowey testified that when Trevor comes back from Warren’s weekend visitation, Trevor talks about what he did with his dad, but when Trevor comes back from Lauri’s weekend, Trevor never talks about it. Primarily because of Ms. Dobowey’s experience with small children, I find that she likely possesses more insight than some of the other witnesses.
In addition to her added training, I find ... Ms. Dobowey to be a more impartial witness than the relatives or close personal friends of either parent. This factor is not about which parent fixes the most meals or washes the most clothes. This factor is about bonding. At this point in his life, there appears to be a greater bonding between Trevor and his father. I find that this factor favors Warren Schmidt.
e. The permanence, as a family unit, of the existing or proposed custodial home.
Both Warren and Lauri were raised in North Dakota, and both have been gainfully employed in North Dakota for the past several years. The impact of remarriage by either parent would be a matter of speculation. Warren’s situation may be more permanent than that of Lauri because of his investment in farming and his strong family ties in North Dakota. I find that this factor favors Warren.
Jc. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who reside[s] in, is present or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physi cal harm, bodily injury or assault on other persons.
Marian Schmidt, Warren’s mother, says that she sees Warren nearly every day. Warren has taken over operation of the family farm after the fairly recent death of his father. Marian Schmidt says that she takes care of Trevor one day a week and that she also sees Warren’s brother and his family every week.
Michelle Schmidt is Warren’s sister-in-law. Michelle says that Trevor runs to his Uncle Kendal and refers to him as “Uncle”.
Lauri was placed in foster care as a child and does not know her father. Lauri’s mother and her spouse live in Vancouver, Washington. Lauri has a half sister in Apple Valley, Minnesota. Lauri also has another half sister but Lauri doesn’t know where she lives. Lauri has an aunt and uncle in North Dakota but there does not exist a strong relationship. However, Lauri does have a grandmother who resides in a Garrison nursing home. Neither Warren nor Lauri appear to have “significant others” in their lives at this time.
It is to Lauri’s credit that she appears to recognize the importance to Trevor of Warren’s extended family by liberally allowing contact. However, I find that this criteria strongly favors Warren.

[¶ 8] The trial court concluded Trevor’s interests would be best served by granting Warren custody of Trevor:

Determining a child’s best interests involves more than adding up legislatively enacted “best interest factors” although, arguably, the greater numbers of factors seem to favor Warren. Because of Trevor’s age, I am convinced that bonding is of particular importance. Although there is obviously love between Trevor and Lauri, I am impressed by the degree of bonding between Trevor, Warren and Warren’s extended family. Both Lauri and Warren are good parents. Each has their strengths and weaknesses. However, after considering all of the evidence, I am of a conviction that Trevor’s interests would be best served if he were placed in the physical custody of Warren Schmidt.

[¶ 9] Lauri asserts:

In this case, the trial court found that Lauri was the equivalent of the primary caregiver in as much as she “has provided for most of Trevor’s physical requirements” .... Yet with abundant testimony as to what Lauri provided and did for this preschooler for years and while her husband was a distant and generally an out of the home parent, custody was awarded to the absent parent.

“Both care and support are important functions of any family situation.” Porter v. Porter, 274 N.W.2d 235, 242 (N.D.1979). Neither a working mother nor a working father is disqualified for custody of a child, “but where each parent works outside of the home and where each has the ability and desire to care for their children, the trial court must necessarily weigh the circumstances on a fine and delicate scale.” Landsberger v. Landsberger, 364 N.W.2d 918, 920 (N.D.1985). Thus, being a child’s primary caretaker does not guarantee a custody award in a divorce action for, while a child’s primary caretaker is a factor for the trial court to consider, “the primary caretaker rule has not been given presumptive status in this state.” DesLauriers v. DesLauriers, 2002 ND 66, ¶ 8, 642 N.W.2d 892.

[¶ 10] Lauri contends a trial court cannot consider a party’s extended family as a basis for child custody; custody decisions have nothing to do with a child’s bonding with third parties; and the legislative history of factor k shows “the framers of this provision were concerned, not with extended families and a positive influence they might have, but rather third parties that were negative influences on the children.” However, in addition to containing twelve specific factors for a trial court to consider in determining a child’s best interests and welfare, N.D.C.C. § 14-09-06.2(1) contains a broad additional provision: “m. Any other factors considered by the court to be relevant to a particular child custody dispute.” In our view, that catch-all category, is sufficiently broad to encompass those matters. See In re Annexation of Part of Unity Pub. Sch. Dist. No. 80, 540 N.W.2d 393, 397 (N.D.1995) (construing N.D.C.C. § 15-27.2-04(3)(o), authorizing consideration of “other relevant factors”); In re Annexation of Part of Donnybrook Pub. Sch. Dist. No. 21, 365 N.W.2d 514, 524 (N.D.1985) (construing N.D.C.C. § 15-53.1-06(3)(o), authorizing consideration of “other relevant factors”).

[¶ 11] Courts may consider a child’s interaction and interrelationship with any other person who may significantly affect the child’s best interest. 2 Sandra Morgan Little, Child Custody and- Visitation, § 10.09[1] (2002). While “[m]any aspects of a child’s existence necessarily change as the result of the break-up of the nuclear family ... commentators, legislators and the courts have recognized the importance to the child of maintaining stability and continuity to the greatest extent possible.” Id. at § 10.09[2]. “It is generally thought that the child’s best interest is served if his or her accustomed mode of living or home environment is not abruptly changed.” Id. “[T]he relationship of the child with any person who may significantly affect the child’s best interest may be considered by the court. Thus, the interaction and interrelationship of the child with secondary caretakers, stepparents, and other relatives as well as nonrelatives could be involved.” Id. at § 10.09[4].

[¶ 12] In addition to consideration under factor m, these matters may appropriately be considered under factors d and e. Although not necessarily controlling, a “trial court’s concerns about ... allowing the child to attend the same school and live in the same house are all valid considerations under factor d.” Shaw v. Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693. “[F]actor d addresses past stability of environment, including a consideration of place or physical setting” and “the prior family unit and its lifestyle as part of that setting.” Stoppler v. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142. However, even a child’s preference to remain in its existing physical setting may have to give way to maintain a relationship with one of the child’s parents. Klose v. Klose, 524 N.W.2d 94, 97 (N.D.1994). “Under factor e, trial courts are to weigh all facts that have a bearing on the permanance of the family unit that will exist in the proposed custodial home of each parent.” Shaw, at ¶ 9. As Justice Levine noted in her dissenting opinion in Dinius v. Dinius, 448 N.W.2d 210, 218 (N.D.1989), in adopting what is now factor e, “the Legislature surely had in mind something more than a physical structure or a geographical location.” Factor e deals with future prospects for permanence as a family unit and is focused on the child’s prospects for a stable family environment. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142.

[¶ 13] This Court has recognized that “[c]hildren need interaction and interrelationship with their parents, siblings, and other persons who may significantly affect the child’s best interests.” Lapp v. Lapp, 293 N.W.2d 121, 130 (N.D.1980). A child’s interaction and interrelationships with relatives and others may assist in determining the desirability of maintaining a stable satisfactory environment to the extent possible and in assessing a child’s prospects for a stable family environment. We conclude a trial court determining the best interest and welfare of a child in making a custody decision may appropriately consider such things as the child’s interaction and interrelationships with a party’s extended family and other people, such as childcare providers and others who may significantly affect the child’s best interests. We conclude the trial court’s custody decision is not clearly erroneous.

II

[¶ 14] Lauri contends the trial court erred in its visitation determination, because she, “as primary caregiver was given minimal visitation time by the trial court,” which “resulted in a harm to the minor child.” Section 14-05-22(2), N.D.C.C., provides:

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

Visitation is presumed to be in the best interest of a child and is a right of the child. Berg v. Berg, 2002 ND 69, ¶ 9, 642 N.W.2d 899. The primary purpose of visitation is to promote the best interests of children. Id. A trial court’s decision on visitation is a finding of fact that will not be reversed unless it is clearly erroneous. Id. at ¶4. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Id.

[¶ 15] The judgment contains the following visitation provisions:

Warren is awarded primary physical custody of Trevor. MaLaura Schmidt (hereinafter “Lauri”) shall have visitation the second and fourth weekends of each month beginning 6 p.m. on Friday and lasting until 6 p.m. on Sunday. Lauri shall have one overnight visitation per week between 4 p.m. and 9 a.m. (Some adjustment may be necessary when Trevor becomes of school age).
The parties shall alternate holidays of Thanksgiving, Easter, Fourth of July, Memorial Day, Labor Day, Christmas Eve and Christmas Day. Christmas Eve is defined as beginning at 7 p.m. on December 18th and ending at 7 p.m. on December 24th. Christmas Day is defined as beginning at 7 p.m. on December 24th and ending at 7 p.m. on December 30th. Once Trevor becomes of school age, Christmas vacation shall begin the day following school adjournment and ending the day prior to commencement of school with the vacation split as noted above. Warren shall always have visitation on Father’s Day and Lauri shall always have visitation on Mother’s Day. It is recommended that Warren and Lauri jointly plan and participate in Trevor’s birthdays. In the event that they cannot otherwise agree, the parties shall alternate custody of Trevor on his birthdays. Holidays and other specified special days shall take priority over weekend and summer vacation.
Lauri shall have Trevor for a minimum of 30 days during the summer and shall notify Warren of a reasonable time in advance of the days she selects so as to accommodate vacation plans for both parties.
Each party shall have telephone contact with Trevor whenever he is in the care of the other parent. Telephone calls shall be at reasonable times and duration.

Thus, Lauri has not been “given minimal visitation time.” The trial court afforded Lauri an opportunity to exercise visitation amounting to nearly one-third of the total time available. We conclude the trial court has afforded Lauri visitation that will enable her and Trevor to maintain a parent-child relationship that will be beneficial to Trevor. Although Lauri has asserted the trial court’s visitation determination “resulted in a harm to the minor child,” she has not made any showing of harm. We conclude the trial court’s visitation determination is not clearly erroneous.

Ill

[¶ 16] Lauri has “requested that there be an award of attorney fees for trial and appellate proceedings.” Section 14-05-23, N.D.C.C., provides, in part: “During any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order ... for the payment of attorney fees.”

[¶ 17] In an interim order issued October 3, 2001, the trial court ordered Warren to pay partial attorney fees of $1,000 to Lauri’s attorney. In the judgment issued July 3, 2002, the trial court granted Lauri an additional partial attorney fee award of $1,000. Warren has asserted that Lauri’s Capital One credit card debt, which the judgment required him to pay, included additional attorney fees.

[¶ 18] ‘We have concurrent jurisdiction with the trial court to award attorney fees on appeal.” Harger v. Harger, 2002 ND 76, ¶ 16, 644 N.W.2d 182. The key factors in determining the propriety of an attorney fee award in a divorce action are one party’s needs and the other’s ability to pay. Pearson v. Pearson, 2000 ND 20, ¶ 25, 606 N.W.2d 128. We ordinarily prefer the trial court to make the initial determination of an attorney fee award on appeal, because it is in a “better position to consider special factors relevant under N.D.C.C. § 14-05-23 relating to the financial status of the parties and the need for and ability to pay attorney’s fees.” Myers v. Myers, 1999 ND 194, ¶ 14, 601 N.W.2d 264. However, from our review of the record and arguments presented in this case, we conclude Lauri has not shown a need for an additional attorney fee award, and we deny the request.

IV

[¶ 19] Warren moved for an order striking a copy of an Internet article Lauri included in an addendum to her appellate brief, but which was not in the trial court record on appeal, and, as a sanction, an award of “attorney fees and costs of at least $253.00 for having to bring this motion to strike the items for the record on appeal.” In response, Lauri asserted “[o]ne of the issues raised was the safety of the farm setting for the child in question,” and the challenged article, which dealt with the drowning risk pools pose for children, “was other source material clearly within the framework of Rule 28(f), NDRAP.”

[¶ 20] In seeking custody, Lauri attempted to show that Warren’s farm was a dangerous place for Trevor. Lauri testified: “There is a lot of water surrounding the farm that isn’t very far away if he would wander off that’s a concern.” Warren testified “that body of water” was there “[m]ost of the time” when he was “growing up” and “I keep it in mind when I know [Trevor] is outside.” The trial court addressed Lauri’s argument the farm was too dangerous to award custody of Trevor to Warren in its analysis of factor d, which “addresses past stability of environment, including a consideration of place or physical setting,” Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142:

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
Lauri contends that a farm can be a dangerous place to raise a young child. Trevor has spent his young life on the Schmidt family farm. It would appear that the experience has served him well. It is reasonable to conclude that children raised on a farm have many advantages. Ease of transportation increasingly provides opportunities to farm children previously available only by children in more populated communities, i.e. cultural events, educational opportunities and sports. Lauri expressed concern about the safety issues of raising a child on a farm. More than a few North Dakota residents have been raised on a farm without measurable negative results. Safety should always be a matter of concern whether on farms or in a large metropolitan area. This factor does not significantly favor either parent over the other.

As the trial court observed in Stoppler:

Prior to the parties’ separation, the farm was a good, stable and satisfactory environment in which to raise a child. Just because one of the parties has chosen to leave the farm does not suddenly turn the farm into an unsatisfactory and dangerous place in which to raise a child.

Stoppler, 2001 ND 148, ¶ 8, 633 N.W.2d 142.

[¶ 21] When Lauri filed her appellate brief, Rule 28(f), N.D.R.App.P., provided: “If determination of the issues presented requires the study of statutes, rules, regulations, other sources, or relevant parts thereof, they must be reproduced in the brief or in an addendum thereto, or they may be supplied to the court in pamphlet form.”

[¶ 22] A party may include in a brief materials not in the record if they “are judicially cognizable apart from the record as authorities marshaled in support of a legal argument.” Military Toxics Project v. E.P.A, 146 F.3d 948, 954 (D.C.Cir.1998). In PSC v. Central States Grain, Inc., 371 N.W.2d 767, 781 (N.D.1985), this Court said it “will not take cognizance of evidence by affidavit presented for the first time after the appeal is perfected,” and did not consider a non-record affidavit presented in an addendum to an appellate brief. See also Hicks v. Mickelson, 835 F.2d 721, 724 (8th Cir.1987), where the appellate court refused to consider non-record materials, stating: “As then Judge Blackmun succinctly stated, ... ‘[t]he appeal is to be determined upon the record below.’ Stearns v. Hertz Corp., 326 F.2d 405, 408 (8th Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964).” We have said “inappropriate attempts to supplement the evidentiary record at the appellate level cannot be condoned.” VanDyke v. VanDyke, 538 N.W.2d 197, 203 (N.D.1995) (dealing with allegations not supported by the record and failing to conform with N.D.R.App.P. 28(a)(4), (5)). In Bublitz v. Tsang, 2000 ND 100, ¶ 4, 617 N.W.2d 131, we awarded double costs on appeal to one party because the other included in his brief materials that were not part of the district court’s record.

[¶ 23] Lauri’s attorney said at oral argument that the purpose of the article presented in the addendum was to show that ponds are dangerous. The challenged article is evidentiary material calculated to establish that water on Warren’s farm posed a danger to Trevor. The challenged material is not a judicially cognizable authority marshaled in support of a legal argument. Rule 28(f), N.D.R.App.P., was not designed to be a license to introduce additional evidence on appeal which was not contained in the record. We grant Warren’s motion to strike the article from Lauri’s addendum and we award Warren double costs as a sanction under N.D.R.App.P. 13 for Lauri’s inclusion of material not in the record and not authorized by N.D.R.App.P. 28(f).

[¶ 24] Affirmed.

[¶ 25] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 26] I concur in the result only. I continue to be of the opinion that when applying factor (d), a trial court must examine not only past stability of environment, including a consideration of place or physical setting, but a consideration of the prior family unit and its lifestyle as part of that setting. See Stoppler v. Stoppler, 2001 ND 148, ¶¶ 26-31, 633 N.W.2d 142 (Maring, J., concurring in part and dissenting in part). This includes consideration of the continuity of the relationship with the parent who had cared for the children on a daily basis. Id. at ¶28.

[¶ 27] I also continue to be of the opinion that factor (e) “deals with future prospects for permanence as a family unit.” Id. at ¶ 9. As we stated in Stoppler, “the trial court must weigh all the facts bearing on which parent can best provide their child ‘the benefits of a custodial home that is marked by permanence, as a family unit.’ ” Id. (citation omitted). In Stop-pler, we voiced our concern when the trial court in applying factor (e) spoke to place and the continuity of physical environment rather than the nature of the family unit of the proposed custodial home and the likely relative permanence of the family unit. Id. at ¶ 11. I continue to be troubled by the emphasis on the continuity of the child’s physical setting over the importance of the continuity of the parent-child relationship in both factors (d) and (e). I am concerned we still have vestiges of the philosophy that the parent who receives the home where the children have grown up will get custody of the children.

[¶ 28] Despite the fact that I believe the trial court erred on its application of factor (e), I cannot say its ultimate decision based on all the facts of this case was clearly erroneous.

[¶ 29] I, therefore, concur in the result.

[¶ 30] MARY MUEHLEN MARING, J.

      . This is now addressed in N.D.R.App.P. 28(g), which provides: "If the court’s determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end of the brief.”


source: Caselaw Access Project

author:
SANDSTROM, Justice.
      MARING, Justice,

license: Public Domain

text:
    2003 ND 64
    Vee Ann KOAPKE, Plaintiff and Appellant, v. David A. HERFENDAL, DDS, Defendant and Appellee, and Gerard F. Koorbusch, DDS, MBA, Defendant.
    No. 20020177.
    Supreme Court of North Dakota.
    April 17, 2003.

      William E. McKechnie, McKechnie Law Office, P.C., Grand Forks, for plaintiff and appellant.
    Brenda L. Blazer, Vogel Law Firm, Bismarck, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Vee Ann Koapke is appealing from a Northwest Judicial District Court summary judgment dismissing her malpractice claim against a Minot dentist, David Herfendal, for providing her a negligent treatment plan and failing to obtain proper informed consent. We affirm.

I

[¶ 2] Koapke visited Dr. Herfendal on September 3, 1998, for a cleaning and a checkup because of pain in some of her teeth. Prior to her appointment with Dr. Herfendal, Koapke’s last visit to a dentist was in April 1994 when, as best as she can remember, she was diagnosed with gingivitis. Upon Koapke’s arrival at Dr. Herfen-dal’s office, her teeth were stained and yellowed from coffee and cigarettes. Koapke testified she generally brushed her teeth once a day and flossed approximately once a month.

[¶ 3] Dr. Herfendal testified at Ms deposition that when Koapke arrived, she was very distraught and emotional and there were tears rolling down her face. Koapke discussed with Dr. Herfendal the pain she was experiencing and the embarrassment she felt about the condition of her mouth. Dr. Herfendal examined Koapke’s teeth and gums. He testified he diagnosed Koapke with carious lesions and gave her two treatment options: full extraction of every tooth, or partial extraction, saving only one to three teeth around which partial dentures could be hooked. Koapke testified in her deposition that Dr. Herfendal informed her that her teeth were going to fall out in five years regardless, and explained to her only one option, which was a full-mouth extraction and dentures. Koapke testified that Dr. Herfen-dal mentioned there were other options but told her the other options would be expensive, and he did not specifically explain any other option to her.

[¶ 4] Dr. Herfendal testified in his deposition that based on his examination and their discussions about both Koapke’s financial situation and what she wanted out of her teeth, Dr. Herfendal recommended Koapke proceed with a full-mouth extraction and dentures. Koapke testified at her deposition that Dr. Herfendal did not discuss his diagnosis with her nor did he discuss any of the risks of his recommended treatment plan.

[¶ 5] Dr. Herfendal referred Koapke to an oral and maxillofacial surgeon, Dr. Gerald Koorbusch. Dr. Herfendal retained a $750 deposit from Koapke for half of the cost of the final dentures he would fit for her after her surgery. Dr. Herfendal and Dr. Koorbusch both testified at their depositions that they do not have, and never have had, an agency relationship or a partnership.

[¶ 6] Upon Dr. Herfendal’s referral, Koapke saw Dr. Koorbusch on September 29, 1998, for an initial evaluation. At this initial visit, Dr. Koorbusch took her dental history and conducted a clinical examination of her teeth and gums. He testified at his deposition that he informed Koapke she had options other than a full-mouth extraction but warned her the other options would be more expensive.

[¶ 7] Dr. Koorbusch testified at his deposition that at Koapke’s initial visit, she exhibited signs of pain and discomfort. He testified that his diagnosis after his clmical examination was Koapke “presented with both dental caries, tooth decay, and advanced periodontal disease throughout both dental arches, complete bony im-pactions of her upper right and lower left third molars and a soft tissue impacted lower right third molar, which was infected at the time of examination.” Dr. Koor-busch testified at his deposition that he talked to Koapke about his diagnosis. He testified that his medical records reflect that after their discussion, Koapke was interested only in a full-mouth extraction rather than an alternative treatment. He recommended she have a full-mouth extraction under intravenous sedation or local anesthesia because of her advanced periodontal disease and painful infection.

[¶ 8] Koapke testified at her deposition she told Dr. Koorbusch that getting her teeth extracted and getting dentures was her preferred procedure and treatment plan. Koapke admits Dr. Koorbusch did an examination; however, she argues he was relying on Dr. Herfendal’s recommended treatment plan. She further testified at her deposition that the significant amount of discussion with Dr. Koorbusch was spent only on the informed consent regarding the surgical procedure. The surgery was performed on November 5, 1998. Koapke returned to Dr. Koor-busch’s office for two follow-up visits with a different oral surgeon. On November 19, 1998, Koapke returned to Dr. Herfen-dal’s office. Dr. Herfendal took the impression of Koapke’s mouth to fit her dentures. Koapke testified at her deposition that Dr. Herfendal informed her that he would be unable to fit dentures for her bottom gums because of problems with her bone and that she should return to Dr. Koorbusch for implants. Koapke returned to Dr. Herfendal’s office on November 24, 1998. Koapke testified at her deposition that during this visit she informed Dr. Herfendal she did not want to go to Dr. Koorbusch for implants, she asked for another referral, and she asked for her $750 deposit back. Dr. Herfendal referred her to another dentist and refunded her deposit. Koapke subsequently visited another oral surgeon for a second surgery to smooth out more of her bone and visited another dentist for dentures.

[¶ 9] On May 17, 2000, Koapke sued both Dr. Herfendal and Dr. Koorbusch. On September 4, 2001, Koapke dismissed Dr. Koorbusch on the merits, with prejudice, and without cost to either party. On February 28, 2002, Dr. Herfendal moved for summary judgment. Koapke presented expert testimony from retired professor Dr. Myer Leonard, who taught oral and maxillofacial surgery at the University of Minnesota and was head of oral and maxil-lofacial at Hennepin County Medical Center in Minneapolis for 25 years. Dr. Leonard testified at deposition that Dr. Herfendal’s treatment of Koapke fell below the standard of care for a dentist. He testified that Dr. Herfendal should not have given Koapke a treatment plan, referred her to an oral surgeon, or accepted her $750 deposit, considering her emotionally distraught state of mind. He testified that in his opinion, Dr. Herfendal should have asked Koapke to come back a few days later when she was more calm and then should have recommended she see a periodontist. He testified it was his opinion that Dr. Herfendal did not obtain Koapke’s informed consent for the treatment plan of a full-mouth extraction and dentures. On May 20, 2002, the district court granted summary judgment in favor of Dr. Herfendal.

[¶ 10] The district court had jurisdiction under N.D. Const, art. VI, § 8, and 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

[¶ 11] We review this appeal under our standard for summary judgment, a procedure allowing for prompt resolution of a controversy on the merits without a trial if the evidence demonstrates no dispute as to either a genuine issue of material fact or the inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545; Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. “Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.” Knight v. North Dakota State Industrial School, 540 N.W.2d 387, 388 (N.D.1995). Whether a district court properly has granted summary judgment is a question of law, which we review de novo on the entire record. Fetch, at ¶ 8. The party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. That party, however, must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record demonstrating a genuine issue for trial. N.D.R.Civ.P. 56(e). We explained in Earnest v. Garcia:

Judges, whether trial or appellate, are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant’s position. Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶ 25, 559 N.W.2d 204. In Umpleby By and Through, Umpleby v. State, 347 N.W.2d 156, 160 (N.D.1984), this Court explained:

A party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, and, if appropriate, drawing the court’s attention to evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising a material factual issue, or from which the court may draw an inference creating a material factual issue.
In summary judgment proceedings the trial court has no legal obligation or judicial duty to search the record for evidence opposing the motion for summary judgment. This principle is equally applicable, if not more so, to appellate proceedings because the appellate court, except for jurisdictional matters and the taking of judicial notice, generally considers only those issues raised in the trial court.

[Citations omitted]. The party opposing the summary judgment motion “must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.” Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991).

1999 ND 196, ¶ 10, 601 N.W.2d 260.

[¶ 12] On appeal, Koapke argues Dr. Koorbusch did not do an independent exam but relied on Dr. Herfendal’s treatment plan, and Dr. Herfendal’s treatment plan was not only negligent in its design but was also devised without Koapke’s informed consent. Koapke testifies, in her deposition, her injury is that her dentures were ill-fitted, and had she known this could happen, she would not have gone through with the full-mouth extraction plan.

[¶ 13] Other jurisdictions that have considered a dentist’s duty to his patients have held a dentist owes the same duty to a patient as a physician owes to a patient. Donathan v. McConnell, 121 Mont. 230, 193 P.2d 819, 825 (1948); O’Neal v. Hammer, 87 Hawai‘i 183, 953 P.2d 561, 565 (1998); LeBeuf v. Atkins, 28 Wash.App. 50, 621 P.2d 787 (1980); Petterson v. Lynch, 59 Misc.2d 469, 299 N.Y.S.2d 244, 245 (1969). We conclude the law on physicians’ duties to their patients also applies to dentists, and the law on a physician’s duty to obtain informed consent from a patient in North Dakota will likewise apply to a dentist.

[¶ 14] The doctrine of informed consent is essentially the duty of a physician to disclose sufficient information to permit a patient to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure. Jaskoviak v. Gruver, 2002 ND 1, ¶ 13, 638 N.W.2d 1. If a physician fails to obtain a patient’s informed consent, the physician may be held negligent. Id. “A plaintiff in an informed-consent case must establish breach of a physician’s duty of disclosure, causation, and injury.” Id. A plaintiff must show the existence of a material risk that the physician failed to disclose, as well as causation and an injury. Id. Along with establishing nondisclosure of required information, causation, and actual damage resulting from the undisclosed risk, a plaintiff must also show that “reasonable persons, if properly informed, would have rejected the proposed treatment.” Id. (citing 1 Dan B. Dobbs, The Law of Torts § 250 (2001)). “ ‘A causal connection exists only when adequate disclosure would have caused the patient to withhold consent to the particular course of treatment or procedure.’ ” Id. (quoting Buzzell v. Libi, 340 N.W.2d 36, 40 (N.D.1983)).

[¶ 15] For proper informed consent, a physician must disclose the diagnosis, the nature of the contemplated procedure, the material risks involved, the probability of success, and the existence and risks of any alternatives. Id. at ¶ 17. Determining whether a risk is material requires “(1) ‘an examination of the existence and nature of the risk and the probability of its occurrence’; and (2) ‘a determination by the trier of fact of whether the risk is the type of harm which a reasonable patient would consider in deciding on medical treatment.’ ” Id. at ¶ 18 (quoting Guidry v. Neu, 708 So.2d 740, 744 (La.Ct.App.1997)). A physician need not disclose all possible risks and dangers of a proposed procedure, but must disclose those that are serious and likely to occur. Id. There is no need to disclose risks that are remote or of little consequence or so inherent in the treatment, they are common knowledge. Id.

[¶ 16] The duty of a referring physician to obtain informed consent generally arises only if there is an agency relationship between the referring physician and the surgeon or if there is negligence in the referral, or, in some jurisdictions, if there is some retention of control over the surgery or course of treatment. Stovall v. Harms, 214 Kan. 835, 840, 522 P.2d 353, 356-57 (1974); Graddy v. New York Medical College, 19 A.D.2d 426, 428-29, 243 N.Y.S.2d 940, 943 (1963).

[¶ 17] The majority of jurisdictions considering this issue have held a referring physician does not have the duty to obtain a patient’s informed consent. See Hopkins v. Mills-Kluttz, 77 S.W.3d 624 (Mo.Ct.App.2002); Estate of Tranor v. Bloomsburg Hosp., 60 F.Supp.2d 412, 414 (1999); Logan v. Greenwich Hospital Ass’n, 191 Conn. 282, 465 A.2d 294, 306 (1983); Davis v. St. Charles General Hosp., 598 So.2d 1244, 1246 (La.Ct.App.1992); Herrara v. Atlantic City Surgical Group, 277 N.J.Super. 260, 649 A.2d 637, 640 (1994); Shaw v. Kirschbaum, 439 Pa.Super. 24, 653 A.2d 12, 15 (1994); Johnson v. Whitehurst, 652 S.W.2d 441, 445 (Tex.Ct.App.1983).

[¶ 18] These jurisdictions hold that it clearly is not necessary for every physician or health care provider who becomes involved with a patient to obtain informed consent for every medical procedure to which the patient submits. Rather, it is the responsibility of a physician to obtain informed consent for those procedures and treatments that the physician formally prescribes or performs. Logan, 465 A.2d at 306 (referring physician had no obligation to inform patient of alternative procedures); Stovall, 522 P.2d at 359 (in the absence of unusual circumstances, a general practitioner who referred a patient to a psychiatric specialist had no duty to advise patient of risks and dangers incident to psychiatric treatment); Davis, 598 So.2d at 1246 (only the medical professional actually performing the procedure, not the referring physician, must provide informed consent); Herrara, 649 A.2d at 641 (treating physician, not referring physician, had duty to explain options and risks involved in course of treatment); Shaw, 653 A.2d at 17 (referring physician has no duty to provide information to patient to aid patient in giving informed consent to surgeon); Johnson, 652 S.W.2d at 445 (a physician who did not participate in surgery had no duty to inform of possible risks and complications); Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710 (1983) (a referring physician who examined the patient and recommended a test but did not formally order the test was not held liable for injury caused by the test).

[¶ 19] Other jurisdictions, such as New York and Hawaii, look at whether there is some degree of control retained by the referring physician over the patient’s treatment.

Where the referring physician neither performs the procedure nor retains control over the patient’s treatment, that physician does not have a duty to obtain informed consent. On the other hand, where a physician orders a specific procedure or otherwise retains control over the treatment of the patient, the physician is subject to a duty to obtain informed consent.

O’Neal v. Hammer, 87 Hawai'i 183, 953 P.2d 561, 565 (1998) (citing Prooth v. Wallsh, 105 Misc.2d 603, 432 N.Y.S.2d 663 (N.Y.Sup.Ct.1980); Nisenholtz v. Mount Sinai Hospital, 126 Misc.2d 658, 483 N.Y.S.2d 568 (N.Y.Sup.Ct.1984); Koshkin v. Mount Sinai Medical Center, 142 Misc.2d 863, 538 N.Y.S.2d 686 (N.Y.Sup.Ct.1989)).

[¶20] In O’Neal, the Hawaii Supreme Court was faced with the issue of whether a dentist who recommends and participates in a treatment plan of orthodontics and surgery, but does not perform the surgery, should warn of the surgical risks. O’Neal v. Hammer, 87 Hawai'i 183, 953 P.2d 561 (1998). The Hawaii Supreme Court held that to find the referring dentist owed a duty to obtain informed consent from a patient, the dentist must have had some degree of control over the surgical procedure or the patient’s treatment plan. Id. at 566. In O’Neal, the dentist coordinated all phases of the treatment. Id. He prepared the dental molds, took the photographs, ordered the x-rays, rendered the tracings, diagnosed O’Neal’s jaw problem, and recommended orthodontics, extractions, and surgery. Id. at 567. He also scheduled the extractions, installed and adjusted the braces, and received half the fees. Id. Most important, the dentist removed O’Neal’s bicuspids, which was the first irrevocable step in the treatment plan. Id. The Hawaii Supreme Court held the dentist in this case had a continuing responsibility to properly advise his patient of the risks and alternatives to the proposed surgery. Id.

[¶ 21] In the jurisdictions that consider the degree of control retained by the referring physician over the patient’s treatment, the amount of control is the determinative factor. Id. at 566. In these jurisdictions, less control is found when the referring physician does not have the training or expertise to explain the inherent risks involved in the treatment or surgery to be performed by a specialist. Id. In some cases, however, a slight degree of participation or the retention of some control may obligate the referring physician to obtain informed consent. Id. at 566; Prooth v. Wallsh, 105 Misc.2d 603, 432 N.Y.S.2d 663 (N.Y.Sup.Ct.1980); Kashkin v. Mount Sinai Medical Center, 142 Misc.2d 863, 538 N.Y.S.2d 686 (N.Y.Sup.Ct.1989) (the referring doctor owed a duty to his patient to obtain informed consent when the physician not only referred the patient but also scheduled the procedure and made hospital arrangements).

[¶ 22] Some jurisdictions have held a referring physician’s duty may be discharged if the chain of causation is broken and another physician procures an informed consent from the patient prior to surgery. O’Neal, 953 P.2d at 567 (citing Shkolnik v. Hospital for Joint Diseases, 211 A.D.2d 347, 627 N.Y.S.2d 353, 355 (N.Y.App.Div.1995)).

[¶ 23] We agree with the majority of jurisdictions that for liability to arise, the referring physician must do more than retain “a degree of participation.” The referring physician can be held liable only when that physician has formally ordered a procedure or actually participated in the treatment or procedure. Here, Dr. Herfendal neither formally ordered nor performed the surgery; therefore, as a matter of law, he was under no duty to obtain Koapke’s informed consent.

[¶ 24] In this case, Dr. Herfendal saw Koapke for a cleaning and checkup. Upon completing a routine examination, he gave her a recommended treatment plan based on the condition of her teeth and the amount of pain she was experiencing. He then referred her to a specialist surgeon, Dr. Koorbusch. Dr. Herfendal did retain a deposit from Koapke for $750 to go toward the fitting of her dentures, but subsequently refunded the money upon Koapke’s request to have another dentist fit her dentures. Koapke’s expert witness, Dr. Leonard, testified that in his opinion Dr. Herfendal should have recommended a referral to a periodontist instead of to an oral surgeon for a full-mouth extraction and, because of Koapke’s distraught state of mind, he should not have asked for a deposit. In her deposition, Koapke stated that when she arrived at Dr. Herfendal’s office, she was not crying or shaking or in extreme pain. Dr. Leonard also stated it was his opinion that Dr. Herfendal did not obtain Koapke’s informed consent for the treatment plan of full-mouth extraction and dentures. Whether Dr. Herfendal was required to obtain Koapke’s informed consent for the treatment plan or surgery is a matter of law and not of fact. Dr. Herfendal was merely a referring physician, and, as such, we conclude Koapke does not have a claim against him.

[¶ 25] Dr. Koorbusch, the oral surgeon, conducted an initial examination and subsequently performed the surgery. In this case, Dr. Koorbusch is the only physician who owed Koapke the duty to obtain her informed consent on the treatment plan and the procedures of surgery. Koapke’s case turns on whether Dr. Koor-busch disclosed the diagnosis, the nature of the contemplated procedure, the material risks involved, the probability of success, and the existence and risks of any alternatives. Having dismissed Dr. Koor-busch, Koapke has thus dismissed the physician required to obtain her informed consent.

[¶ 26] Koapke also argues Dr. Herfen-dal was negligent in his formulation of the treatment plan and, if he is not solely responsible for Koapke’s harm, the law requires apportionment in deciding what share of fault and damages he may owe. Because we have concluded that Koapke does not have a claim against Dr. Herfen-dal, we need not decide this issue.

Ill

[¶ 27] The summary judgment of the district court is affirmed.

[¶ 28] GERALD W. VANDE WALLE, C.J., JOHN C. McCLINTOCK, JR., District Judge, concur.

[¶ 29] The Honorable JOHN C. McCLINTOCK, JR., District Judge, sitting in place of KAPSNER, J., disqualified.

MARING, Justice,

dissenting.

[¶ 30] We have not had previous occasion to consider whether a physician who develops a treatment plan for a patient, which includes a referral for specific surgery and a return for completion of the treatment plan, owes a duty of informed consent to that patient.

[¶ 31] As the majority points out, a number of jurisdictions have concluded that a referring physician, who does not have an agency relationship with the surgeon; who does not participate in the surgery or treatment; or who does not retain any control over the treatment, does not have a duty to obtain a patient’s informed consent. I agree that to generally impose such a duty on a referring physician who practices general medicine would impose an “intolerable burden.” Herrara v. Atlantic City Surgical Group, 277 N.J.Super. 260, 649 A.2d 637, 640-41 (Law Div.1994) (quoting Stovall v. Harms, 214 Kan. 835, 522 P.2d 353, 359 (1974)). I am of the opinion, however, that where the facts indicate the referring physician has recommended a specific procedure, has the training to explain the results and options, and has retained control over the patient’s treatment, the physician is subject to a duty to obtain informed consent. See O’Neal v. Hammer, 87 Hawai'i 183, 953 P.2d 561, 565 (1998) (“[W]here a physician orders a specific procedure or otherwise retains control over the treatment of the patient, the physician is subject to a duty to obtain informed consent.”); see also Kashkin v. Mount Sinai Medical Center, 142 Misc.2d 863, 538 N.Y.S.2d 686 (N.Y.Sup.Ct.1989).

[¶ 32] The affidavits and depositions submitted in this case in support of the response to Dr. Herfendal’s motion for summary judgment reveal facts from which a fact-finder could infer retention of control by Dr. Herfendal over the treatment of the patient, Koapke.

[¶ 33] Koapke claims she went to Dr. Herfendal to have her teeth cleaned. He advised her that based on the condition of her teeth she should have all of her teeth pulled and dentures fabricated. His diagnosis of her was “severe periodontitis, dental caries and pericoronitis on lower right third molar.” Koapke states that Dr. Her-fendal did tell her she could have a partial extraction and partial dentures, but that in five years she would end up pulling all her teeth anyway. She then would need full-mouth dentures, and this would be more expensive. Dr. Herfendal does not dispute that this is what he told Koapke on September 3, 1998. He also does not dispute the decision was made at that appointment that Koapke would have all of her teeth pulled and would return to him for the fabrication and fitting of her dentures. The cost was discussed, and Koapke paid Dr. Herfendal one-half or $750 for the dentures. Dr. Herfendal states in his answers to interrogatories, “I referred Ms. Koapke to Dr. Koorbusch for evaluation and extractions. Ms. Koapke planned to return for denture fabrication.... On 9/29/98, my office finalized referral of Ms. Koapke to Dr. Koorbusch at Face & Jaw.”

[¶ 34] Koapke saw Dr. Koorbusch on September 29,1998. Dr. Koorbusch states in his answers to interrogatories that Dr. Herfendal referred Koapke to him for an “evaluation and eventual removal of all remaining teeth in preparation for full upper and lower dentures.” Dr. Koorbusch states he discussed with Koapke the “complications of surgery including but not limited to damage to the lower jaw nerve or persistent opening into the sinus as a result of tooth removal.” He states she was not interested in restoration of any teeth, but rather desired their removal and replacement with dentures. Koapke disputes that Dr. Koorbusch discussed treatment options with her and states that he relied on Dr. Herfendal to have discussed “options” with her.

[¶ 85] On November 5, 1998, Koapke had full-mouth dental extraction. On November 6, 1998, Koapke was seen by Dr. Shannon of the Face & Jaw Surgery Center for follow up. On November 12, 1998, she was again seen by Dr. Shannon for follow up and found to be progressing in a satisfactory manner so she was referred back to Dr. Herfendal for “denture construction.”

[¶ 86] On November 19, 1998, she saw Dr. Herfendal and he took impressions to begin fabrication. He then told her that she did not have enough bone on the bottom and very little in the back top. Koapke states Dr. Herfendal told her she would need implants or her dentures would not stay in. Koapke states that if she had been told this was a possibility, she would not have made a decision to pull all of her teeth.

[¶ 37] On November 24, 1998, Dr. Her-fendal decided to refer Koapke to Dr. McMahon because he was concerned he could not meet her expectations. He refunded her $750.

[¶ 38] Koapke claims Dr. Herfendal never told her that because of her advanced periodontal disease, she may suffer bone loss with a full-mouth extraction to an extent her dentures would be difficult to secure and she may require implants. Dr. Herfendal states he did not recall discussing with Koapke some of the common problems with dentures. He states he did not discuss the possibility of implants with her. Koapke states Dr. Koorbusch did not discuss these risks with her either.

[¶ 39] Dr. Herfendal is a dentist. He has training and knowledge to fit and fabricate dentures. He developed a treatment plan which included a full-mouth dental extraction by Dr. Koorbusch and then the fitting of upper and lower dentures by him. He received half of the cost of the dentures before referring Koapke to Dr. Koorbusch. Dr. Herfendal’s office made the referral to Dr. Koorbusch. Dr. Koorbusch states that Dr. Herfendal referred Koapke “to me for evaluation and eventual removal of all remaining teeth in preparation for full upper and lower dentures.” Dr. Koorbusch examined her oral cavity, reviewed panoramic radiographs, and arranged for the surgical removal of all her remaining teeth. He explained to Koapke he would remove all of her teeth and the possible complications of surgery. After the full-mouth extraction, he referred her back to Dr. Herfendal for the fitting and fabrication of her dentures.

[¶ 40] A fact-finder could draw the inference that Dr. Herfendal was knowledgeable and had the training to fit and fabricate dentures; that he knew of the risk of bone loss and possibility of the need for implants; that he developed a treatment plan, which was to fit and fabricate full upper and lower dentures for Koapke; that the extraction of the teeth by Dr. Koorbusch was one step in the treatment plan; and that the referral was only to complete that step with the final step being the return to Dr. Herfendal for the fitting and fabrication of the dentures. Viewing the evidence in the light most favorable to Koapke, which we must do on a motion for summary judgment, a fact-finder could find that Dr. Herfendal is a qualified physician, who had control over the course of treatment of Koapke, who exposed her to the risk and must explain that risk. I would reverse and remand this case for further proceedings.

[¶ 41] Finally, I also agree with the Hawaii and New York courts that “this duty may be discharged if another physician procures an informed consent from the patient prior to surgery, thereby breaking the chain of causation leading to the referring physician.” O’Neal, 953 P.2d at 567; Shkolnik v. Hospital For Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 627 N.Y.S.2d 353, 355 (N.Y.App.Div.1995). Accordingly, the fact-finder must determine whether Dr. Koorbusch advised Koapke of the inherent risks of full-mouth extraction in light of her advanced periodontal disease and plan to wear dentures.

[¶ 42] I would reverse and remand because I believe there are genuine issues of material fact whether Dr. Herfendal retained control of the treatment of Koapke and owed a duty to obtain informed consent from her.

[¶ 43] WILLIAM A. NEUMANN, J., concurs.


author: SANDSTROM, Justice. MARING, Justice,

text:
    2003 ND 63
    Anna Marie BACHMEIER, Personal Representative of the Estate of Randy Bachmeier, Deceased, Claimant and Appellant v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Nordic Fiberglass, Respondent.
    No. 20020270.
    Supreme Court of North Dakota.
    April 17, 2003.

      Kathryn L. Dietz, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Jacqueline S. Anderson, Special Assistant Attorney General, Nilles, Hansen & Davies Ltd., Fargo, N.D., for appellee.
   SANDSTROM, Justice.

[¶ 1] Anna Bachmeier, as personal representative of the estate of Randy Ba-chmeier, appealed from a judgment affirming an order of the Workers Compensation Bureau denying Randy Bachmeier’s reapplication for disability benefits. We affirm, concluding the Bureau correctly interpreted the law and did not err in determining Randy Bachmeier had failed to show an actual wage loss caused by a significant change in his compensable medical condition.

I

[¶ 2] In January 1994, Randy Bachmeier sustained a work-related back injury while employed by Nordic Fiberglass, Inc. Bachmeier applied for Workers Compensation benefits, and the Bureau accepted the claim and paid medical and disability benefits. Bachmeier returned to work at Nordic Fiberglass part time in November 1994, and the Bureau paid partial disability benefits until December 24,1994.

[¶ 3] In July 1995, Bachmeier had surgery for a herniated disc at L4-L5. Ba-chmeier reapplied for benefits and received temporary total disability benefits until October 1995, when he returned to work part time at Nordic Fiberglass. Ba-chmeier received vocational rehabilitation assistance, and a modified position was provided at Nordic Fiberglass. In March 1996, Bachmeier’s treating physician released him to return to work full time in the modified position at Nordic Fiberglass. Bachmeier claimed he had continuing back pain and could not perform the modified job full time. On several occasions during March and April 1996, Bachmeier was absent from work because of his back pain.

[¶ 4] On May 21, 1996, the Bureau denied further disability benefits, on the basis of Bachmeier’s return to full-time employment. Two days later, on May 23, 1996, Nordic Fiberglass fired Bachmeier for his absenteeism. Bachmeier did not seek other employment after his termination by Nordic Fiberglass. Bachmeier initially attempted to appeal the Bureau’s May 21, 1996, order denying further disability benefits, but voluntarily withdrew his appeal.

[¶ 5] Bachmeier reapplied for disability benefits in July 2000, alleging new medical evidence showed his 1995 surgery had not fully corrected his back problems and he had been disabled and unable to work at all times after his May 1996 termination by Nordic Fiberglass. Bachmeier alleged an MRI performed in April 2000 showed a herniated disc at L5-S1, and presented evidence from physicians that a “bulge” at that spot in 1994 had progressed to the eventual herniation.

[¶ 6] The Bureau denied Bachmeier’s reapplication, concluding Bachmeier had failed to show a significant change in his compensable medical condition and had failed to show an actual wage loss caused by such a change. Bachmeier filed a request for a hearing before an administrative law judge (“ALJ”). Following the hearing, but before the ALJ issued his decision, Bachmeier died of causes unrelated to the work injury. Anna Bachmeier was appointed personal representative of Randy Bachmeier’s estate and was substituted as a party.

[¶ 7] The ALJ issued his recommended findings of fact, conclusions of law, and order, finding Randy Bachmeier had sustained a significant change in his compen-sable medical condition but had failed to show an actual wage loss. The Bureau adopted the ALJ’s recommended findings, conclusions, and order denying the reapplication for benefits. Anna Bachmeier appealed to the district court, which affirmed the order of the Bureau.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. Anna Bachmeier’s appeal to this Court was timely under N.D.RApp.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 9] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from the district court ruling on an administrative decision, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32^49; Morris v. Job Service North Dakota, 2003 ND 45, ¶ 5, 658 N.W.2d 345; Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 8, 654 N.W.2d 426.

[¶ 10] We review the decision of the administrative agency, rather than that of the district court, although the district court’s- analysis is entitled to respect. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. We exercise restraint in deciding whether the agency’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 agency. Id. We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Morris, 2003 ND 45, ¶ 5, 658 N.W.2d 345; Grand Forks Prof'l Baseball, 2002 ND 204, ¶ 8, 654 N.W.2d 426.

Ill

[¶ 11] A claimant seeking benefits from the workers compensation fund has the burden of proving by a preponderance of the evidence that he is entitled to benefits. N.D.C.C. § 65-01-11; Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶ 6, 658 N.W.2d 337; Rush v. North Dakota Workers Comp. Bureau, 2002 ND 129, ¶ 6, 649 N.W.2d 207. When a claimant’s disability benefits have been discontinued and the claimant sustains a significant change in medical condition that causes further wage loss, the claimant may file a reapplication seeking further disability benefits. Gronfur, at ¶ 6. Reapplication for disability benefits is governed by N.D.C.C. § 65-05-08(1):

When disability benefits are discontinued, the bureau may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the bureau. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and
c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

[¶ 12] The Bureau found Randy Bachmeier failed to show he had sustained an actual wage loss caused by a significant change in his compensable medical condition. Anna Bachmeier concedes Randy Bachmeier never sought any further employment after he was fired by Nordic Fiberglass for absenteeism in May 1996, two days after the Bureau issued its order finding him able to work full time. Anna Bachmeier alleges she has shown an actual wage loss through medical evidence demonstrating Randy Bachmeier was disabled and unable to work at all times after his termination, resulting in a loss of earning capacity. Anna Bachmeier contends a showing of loss of earning capacity satisfies the actual wage loss requirement of N.D.C.C. § 65-05-08(1).

[¶ 13] A majority of this Court rejected an identical argument in Gronfur. Gron-fur had sustained a back injury and received temporary total disability benefits. Upon finding Gronfur was capable of performing light-duty work, the Bureau discontinued total disability benefits and awarded partial disability benefits. When his back subsequently worsened, Gronfur reapplied for total disability benefits. At the time of his reapplication, Gronfur was unemployed and had made no attempt to find employment following his initial injury. Gronfur argued his demonstrated loss of earning capacity satisfied the requirements of N.D.C.C. § 65-05-08(1). This Court rejected Gronfur’s argument, concluding loss of earning capacity and actual wage loss are distinct concepts, and a claimant who was unemployed and had not sought employment before or after the change in medical condition had not incurred an actual wage loss:

To begin payment of previously discontinued disability benefits a claimant must prove under N.D.C.C. § 65-05-08(l)(b) that the claimant has sustained “an actual wage loss caused by the significant change in the compensable medical condition.” We conclude this provision is clear and unambiguous.
Although the legislature has not defined the term “actual wage loss,” the term wages is defined under N.D.C.C. § 65-01-02(31):
“Wages” means an employee’s remuneration from all employment reportable to the internal revenue service as earned income for federal income tax purposes.
Using that definition of wages in the context of “actual wage loss” under N.D.C.C. § 65 — 05—08(l)(b), the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the internal revenue service as earned income for federal income tax purposes. The requirement is clear. To demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages.
Gronfur’s attempt to equate actual wages with earning capacity is misplaced. The distinction between those terms is clearly recognized in workers compensation law....
We conclude the Bureau interpreted and applied N.D.C.C. § 65-05-08(1) in accordance with the law. Gronfur, by choosing not to seek employment and by not earning employment wages when he sustained a change in his compensable medical condition, failed to incur an actual wage loss as a result of the change in his medical condition. Gronfur was unable, therefore, to prove the actual wage loss which is a prerequisite to reinstating discontinued disability benefits under the statute.

Gronfur, 2003 ND 42, ¶¶ 11-15, 658 N.W.2d 337 (footnote omitted).

[¶ 14] We specifically noted, because Gronfur conceded he made no attempt to find employment, we did not need to decide whether actual wage loss could be shown by a claimant’s diligent efforts to obtain wages from employment. Id. at ¶ 12 n. 2. Similarly, Anna Bachmeier concedes Randy Bachmeier made no attempt to find employment after he was fired by Nordic Fiberglass.

[¶ 15] Much of Anna Bachmeier’s argument on appeal focuses upon her contention that new medical evidence shows Randy Bachmeier was disabled and unable to work both before and after he was fired from his employment in May 1996. In effect, Anna Bachmeier’s argument challenges the accuracy of the Bureau’s May 21, 1996, order finding Randy Bachmeier was able to work full time. When Randy Bachmeier withdrew his appeal from the May 21, 1996, order, however, that order became res judicata of his medical condition at that time, subject only to reopening under N.D.C.C. § 65-05-04. See Rieniets v. North Dakota Workers’ Comp. Bureau, 512 N.W.2d 708, 710 (N.D.1994); Lass v. North Dakota Workmen’s Comp. Bureau, 415 N.W.2d 796, 800 (N.D.1987). If new medical evidence showed Randy Bachmeier was disabled and unable to work at the time of the Bureau’s May 21, 1996, order, the appropriate procedure would have been to seek a reopening of the original claim under N.D.C.C. § 65-05-04, which grants continuing jurisdiction over claims and authorizes the Bureau to award compensation that has previously been refused or discontinued.

[¶ 16] We conclude the Bureau interpreted and applied N.D.C.C. § 65-05-08(1) in accordance with the law and did not err in determining Randy Bachmeier had failed to show an actual wage loss. The district court judgment upholding the Bureau’s order denying Randy Bachmeier’s reapplication for disability benefits is affirmed.

[f 17] GERALD W. VANDE WALLE, C.J., ROBERT O. WEFALD, District Judge, concur.

[¶ 18] The Honorable ROBERT O. WEFALD, District Judge, sitting in place of KAPSNER, J., disqualified.

MARING, Justice,

dissenting.

[¶ 19] I respectfully dissent.

[¶ 20] The Bureau argues that there is no “actual wage loss” because “there is no evidence of any attempt to seek or obtain employment at any point after he was terminated from his job....” Again the Bureau argues “actual wage loss” can be established by showing an inability to obtain employment, which in turn can be proven by a job search and evidence of failure to secure a job based on the physical impairment caused by the work injury. As I stated in my dissent in Gronjur, it seems reasonable that an inability to obtain employment also can be proven by medical evidence that the employee is totally disabled from performing any work as a result of the physical impairment caused by the work injury. Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶¶ 17-20, 658 N.W.2d 337 (Maring, J., dissenting).

[¶ 21] The Bureau concluded Bachmeier had sustained a significant worsening of his compensable work condition sometime after his benefits were discontinued on March 20, 1996, and more than 30 days prior to his reapplication on July 13, 2000. The medical evidence in the record to support this finding of the Bureau includes a new L5-S1 disc herniation noted on the MRI and changes of degenerative disc disease attributable to the work injury and subsequent surgery, both of which can explain Bachmeier’s increased symptomatol-ogy. The Bureau, however, never addressed the medical evidence establishing that Bachmeier was totally disabled as a result of his work injury and was unable to return to any work. Dr. Rayer testified Bachmeier was not capable of any full-time work and Dr. Bergom at Altru Clinic in Grand Forks, who performed a thorough evaluation for Social Security on May 26, 1999, concluded “[t]his gentleman is disabled for any job requiring prolonged standing, lifting, pushing, or pulling.” Dr. Martire, in his letter of April 9, 2001, said there was no herniation at L5-S1 disc level on the 8/9/94 report, but there was a bulge. In his opinion, the difference between a bulge versus a herniation is just a matter of degree of protrusion of the disc. He stated that the fact Bachmeier never had any significant relief of his left leg pain after surgery on 7/3/95 raised the possibility that his referred leg pain could have all along been due to an L5-S1 disc bulge, which has now herniated causing left SI radiculopathy.

[¶ 22] I remain of the opinion that if an employee is unable to obtain employment because of total disability resulting from a work injury it can be proven through medical evidence and a job search is not required.

[¶ 23] I, therefore, dissent and would reverse the denial of total disability benefits.

[¶ 24] WILLIAM A. NEUMANN, J., joins the dissent.


author: NEUMANN, Justice.

text:
    2003 ND 65
    Thomas SPAGNOLIA, M.D., Plaintiff and Appellee, v. Mark S. MONASKY, M.D., Defendant and Appellant. and Dakota Neurosurgical Associates, P.C. (“DNA”), a North Dakota professional corporation, Defendant, Third-Party Plaintiff and Appellant, v. Bismarck Neurosurgical Associates, P.C., Third-Party Defendant.
    No. 20020203.
    Supreme Court of North Dakota.
    April 22, 2003.
    Rehearing Denied June 9, 2003.

      Rebecca S. Thiem (argued) and James S. Hill, Zuger Kirmis & Smith, Bismarck, ND, for plaintiff and appellee.
    Clark J. Bormann, Bormann & Myer-chin, LLP, Bismarck, ND, for appellants.
   NEUMANN, Justice.

[¶ 1] Dakota Neurosurgical Associates, P.C. (“DNA”) and Mark S. Monasky, M.D., have appealed from the judgment in an action brought by Thomas Spagnolia, M.D., and from an order allowing costs and fees, denying a motion to unseal court records, and denying a motion for judgment as a matter of law, for a new trial, and to amend the findings and judgment. We affirm in part, and reverse in part.

[¶ 2] In 1996, Monasky, a Bismarck neurosurgeon and sole shareholder, director, and officer of DNA, contacted Spagnolia, a Kentucky neurosurgeon, about practicing in Bismarck. Spagnolia met with Monasky and DNA’s accountant in November 1996. On .behalf of DNA, a Bismarck attorney drafted an employment agreement, which was reviewed by Spag-nolia’s Kentucky attorneys. Monasky and Spagnolia made some changes to the draft agreement and executed it on January 17, 1997.

[¶ 3] The agreement, which specified Spagnolia’s employment was to run from January 13, 1997, until May 31, 1998, provided:

9. Revenues for Professional and Other Services: All revenues and collected receivables which result from any direct patient care or other professional services of [Spagnolia] rendered through [Spagnolia’s] practice of medicine shall be the property of [DNA].... All revenues derived from the services provided by [Spagnolia] pursuant to Paragraph 7 above shall be subject to the provisions of Exhibit “A”.
14. Compensation: In consideration of the services provided by [Spagnolia] under this Agreement, [DNA] shall compensate [Spagnolia] through the payments of the salary and compensation as set forth in detail on Exhibit “A” which is attached hereto and incorporated herein by reference.
17. Effect of Termination: Unless [Spagnolia] agrees otherwise, upon termination of this Agreement for any reason, [DNA] shall pay to [Spagnolia] the actual compensation due under the terms of this Agreement and the attached Exhibit “A” subject to any withholding or deductions as provided for herein, or as may be required by law, if any. Any amounts due to [Spagnolia] shall be calculated by [DNA] and paid to [Spagnolia] as soon as practicable after the Termination Date. The amounts due, if any, to [Spagnolia] upon termination shall be subject to any adjustments provided for by this Agreement, and any such amounts shall be paid within one hundred twenty (120) days of the date of termination of this Agreement.
24. General Provisions:
E. Entire Agreement. This Agreement supersedes any other agreements, oral or written, between the parties with respect to the employment of [Spagnolia].

[¶ 4] Exhibit “A,” outlining determination and payment of Spagnolia’s compensation, provided:

For all services rendered by [Spagnolia] under this Physician Employment Agreement, [DNA] shall pay [Spagnolia] a salary which is based upon the “Net Cash Receipts” of [DNA] received as the result of [Spagnolia’s] total production. The actual compensation level for [Spag-nolia], during the term of this Agreement, shall be determined under the formula which is authorized, adopted and declared by the Board of Directors of [DNA] from time to time.... “Net Cash Receipts” shall mean the amount of cash which is actually received by [DNA] resulting from patient services performed as provided by [Spagnolia] and resulting from the allowable gross billings generated by [Spagnolia] for such patient services. In determining the “Net Cash Receipts” under this compensation formula, the allowable gross billings of [Spagnolia] shall be reduced by all necessary adjustments, discounts and other reductions in determining the “Net Cash Receipts” by [DNA].... [DNA] herein guarantees that [Spagnolia] shall be entitled to receive Seventy-five Percent (75%) of “Net Cash Receipts,” which follow the reduction formula for the administrative expenses set forth above.

In July 1998, Monasky and Spagnolia discussed, but did not execute, a supplemental employment agreement.

[¶ 5] Monasky began a leave of absence from the practice of neurosurgery on March 15, 1999. Spagnolia’s employment with DNA terminated on March 15, 1999, and he began employment with his new corporation, Bismarck Neurosurgical Associates, P.C. (“BNA”), in the same quarters. DNA paid $50,000 to Spagnolia on Spagno-lia’s last day of employment with DNA.

[¶ 6] Spagnolia sued DNA and Mona-sky for additional compensation alleged to be due for medical services provided while he was employed by DNA, but for which payment was not collected until after termination of his employment agreement. Monasky and DNA answered and counterclaimed, seeking dismissal of the complaint, and damages for overpayment of compensation to Spagnolia, for the reasonable value of DNA assets used by Spagno-lia and BNA, unjust enrichment, breach of contract, misappropriating trade secrets, and interference with contract.

[¶ 7] The jury returned a verdict finding DNA owed Spagnolia $98,714.54, and BNA owed DNA $5,000. Judgment was entered in favor of Spagnolia against DNA and Monasky, jointly and severally, for $124,583.90, plus costs and disbursements, and in favor of DNA against BNA for $5,000. The court denied motions by DNA and Monasky to unseal court records of the jury deliberations, for judgment as a matter of law, for a new trial, and to amend the court’s findings and judgment.

[¶ 8] Monasky and DNA appealed the judgment and the court’s order allowing costs and fees and denying their post-trial motions.

I

[¶ 9] Monasky and DNA contend, “because this express contract was clear and unambiguous, and nowhere entitled Spagnolia to the relief he claims, the trial court erred when it refused to enforce the contract as it was written,” and erred in allowing the jury to consider parol evidence and construe the contract.

[¶ 10] “If the intent of the parties can be ascertained from the agreement alone, interpretation of the contract is a question of law.” Garofalo v. Saint Joseph’s Hosp., 2000 ND 149, ¶ 7, 615 N.W.2d 160. “Whether a contract is ambiguous is a question of law for the court to decide.” Gawryluk v. Poynter, 2002 ND 205, ¶ 9, 654 N.W.2d 400. “On appeal, we independently review a contract to determine if it is ambiguous.” Id. “A contract is ambiguous when rational arguments can be made for different interpretations.” Id. at ¶ 9. “A determination of ambiguity is but the starting point in the search for the parties’ ambiguously expressed intentions, which are questions of fact to be determined with the aid of extrinsic evidence.” Bohn v. Johnson, 371 N.W.2d 781, 788 (N.D.1985). “[I]f the terms of the contract are ambiguous, extrinsic evidence regarding the parties’ intent may be considered, and terms of the contract and parties’ intent become questions of fact.” Garofalo, at ¶ 7. “A contract is interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting” and “may be explained by reference to the circumstances under which it was made and the matter to which it relates. N.D.C.C. § 9-07-12.” Id. at ¶ 8.

[¶ 11] Spagnolia argues he was entitled to be paid a minimum of 75 percent of the net cash receipts resulting from his patient services. DNA and Monasky argue Spagnolia was not entitled to be paid for receipts collected after the termination of the agreement for medical services performed during the term of the agreement. DNA and Monasky further argue that Spagnolia’s assertion he is entitled “to receive all funds, whenever they may be paid to the corporation, less a calculated deduction ... is flatly contrary to provisions of the contract which require him to be paid ‘within 120 days’, or final compensation, reconciliation and distribution to be completed at the end of the term of the Agreement.” (Record references omitted.) Section 9-07-06, N.D.C.C., provides: “The whole of a contract is to be taken together so as to give effect to every part if reasonably practicable. Each clause is to help interpret the others.” As this Court noted in Vanderhoof v. Gravel Products, Inc., 404 N.W.2d 485, 491 (N.D. 1987), “[t]he intention of the parties to a contract must be gathered from the entire instrument and not from isolated clauses.”

[¶ 12] In its special verdict, the jury found it was “the intention of the parties to the employment contract that DNA pay Spagnolia ‘Net Cash Receipts’ collected after March 15, 1999.” Thus, the jury agreed with Spagnolia’s construction of the parties’ agreement. From our review of the contract in light of the parties’ arguments, we conclude that the parties have posited rational arguments for different interpretations. We, therefore, conclude the contract is ambiguous, thus creating an issue of fact about the parties’ intentions, which the trial court properly submitted to the jury. Further, considering the whole of the contract together, and the circumstances under which it was made, we find no error in the interpretation of the contract.

II

[¶ 13] DNA and Monasky contend the trial court erred in permitting imposition of an implied trust.

[¶ 14] Sitting in an advisory capacity on Spagnolia’s equitable claims, the jury found “DNA and Monasky violate[d] an implied trust with Spagnolia by failing to retain and pay him Net Cash Receipts collected after March 15, 1999.” The trial court adopted that finding, “based on” several additional findings the court made, including the following:

A. A confidential relationship of trust and confidence existed between Spagnolia and Monasky.
G. DNA and Monasky became implied trustees of the Net Cash Receipts owed to Spagnolia by wrongfully detaining such Net Cash Receipts and then expending such Net Cash Receipts for the sole benefit of Mona-sky and his wife.

Spagnolia relies on N.D.C.C. §§ 59-01-06 and 59-01-08. N.D.C.C. § 59-01-06 provides in part:

An implied trust arises in the following cases:
1. One who wrongfully detains a thing is an implied trustee thereof for the benefit of the owner.
2. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless the person has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have it.

N.D.C.C. § 59-01-08 provides, in part: “Everyone who voluntarily assumes a relation of personal confidence with another is deemed a trustee.”

[¶ 15] “There are two types of implied trusts: resulting and constructive.” Schroeder v. Buchholz, 2001 ND 36, ¶ 5, 622 N.W.2d 202. “An implied trust, whether resulting or constructive, must be established by clear and convincing evidence.” Id. A resulting trust is “based on the implied intention of the parties,” McCarney v. Knudsen, 342 N.W.2d 380, 385 (N.D.1983) (quoting Manikowske v. Manikowske, 136 N.W.2d 465, 480 (N.D.1965)), and “exists where the acts or expressions of the parties indicate an intent that a trust relation resulted from their transaction,” Loberg v. Alford, 372 N.W.2d 912, 915 (N.D.1985) (quoting Scheid v. Scheid, 239 N.W.2d 833, 837 (N.D.1976)). A constructive trust is an equitable remedy to compel a person who unfairly holds a property interest to convey it to the rightful owner. Schroeder, at ¶ 5.

[¶ 16] “A constructive trust has two essential elements: unjust enrichment and a confidential relationship.” Schroeder v. Buchholz, 2001 ND 36, ¶ 8, 622 N.W.2d 202. “A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another.” Id. at ¶ 9 (quoting Estate of Wenzel-Mosset by Gaukler v. Nickels, 1998 ND 16, ¶ 25, 575 N.W.2d 425 (N.D.1998) (citations omitted)). “[W]hether a relationship of personal confidence exists need be proven only by a preponderance of the evidence.” Id. at ¶ 6. “The existence of a confidential relationship and the existence of an implied trust are questions of fact.” Id. at ¶ 7. “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.” Apache Corp. v. MDU Resources Group, Inc., 1999 ND 247, ¶ 13, 603 N.W.2d 891 (quoting Zuger v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 135, 138 (N.D.1992)). “The determination of unjust enrichment is a conclusion of law and is fully reviewable on appeal.” BTA Oil Producers v. MDU Resources Group, Inc., 2002 ND 55, ¶ 37, 642 N.W.2d 873, cert. denied, — U.S.-, 123 S.Ct. 436, 154 L.Ed.2d 331 (2002). One of the elements necessary to prove unjust enrichment is the absence of a remedy provided by law. Schroeder, at ¶ 15. Parties to a contract have a “remedy at law for enforcement of the contract or damages flowing from any contractual breach.” Id. at ¶ 18. “[T]here can be no implied-in-law contract” to prevent unjust enrichment “when there is an express contract between the parties relative to the same subject matter.” BTA Oil Producers, at ¶ 37. “[W]here, as here, the parties have voluntarily entered into an express written contract which defines the rights of each, unjust enrichment is a non sequi-tur.” Id. at ¶ 38 (quoting JN Exploration & Prod. v. Western Gas Res., Inc., 153 F.3d 906, 910 (8th Cir.1998)).

[¶ 17] Spagnolia employed two Kentucky attorneys to assist him in negotiating the employment agreement with DNA. One of those attorneys testified in a deposition that Spagnolia told him on December 16, 1996, that “Monasky is employer and I am an employee” and that the contract was “[s]tacked in [Monasky’s] favor” and Spagnolia asked the attorney to “go over [the] document with a fine tooth comb.” Thus, it is clear Spagnolia was relying on his attorneys to protect his interests in negotiating the contract, not any trust and confidence he reposed in Mona-sky. We conclude there was no evidence a confidential relationship existed between Spagnolia and Monasky, and the trial court’s finding of such a relationship is clearly erroneous. We further conclude there was no confidential relationship between Spagnolia and Monasky as a matter of law.

[¶ 18] DNA did not acquire or detain the revenues flowing from Spagno-lia’s medical services wrongfully, as DNA owned the revenues under the terms of the parties’ employment agreement. Although DNA contracted to pay Spagnolia net cash receipts reduced by administrative expenses, Monasky, as an employee of DNA, has not been shown to have acquired money by fraud, accident, mistake, undue influence, violation of trust, or other wrongful act. There was no confidential relationship between the parties in reaching their agreement, and there was a remedy at law for its breach. We conclude there was no constructive trust. We conclude there was no evidence indicating the parties intended a trust relation, and we conclude there was no resulting trust.

[¶ 19] We conclude the trial court erred in ruling DNA and Monasky were implied trustees of the net cash receipts left after collection of revenues after the termination of the contract and in ordering a judgment against Monasky jointly and severally with DNA.

Ill

[¶ 20] DNA and Monasky contend they were denied a fair trial and have asserted fourteen ways in which the trial court erred or abused its discretion in not sequestering witnesses, in admitting or excluding evidence, in denying motions to unseal court records and for a new trial, and in its ruling on interest and costs.

[¶ 21] Without citing to specific references in the trial transcripts, DNA and Monasky assert: “Spagnolia’s witnesses were permitted to make numerous references to settlement negotiations conducted by DNA’s and Monasky’s attorney, Robert Udland, and Spagnolia’s then-attorney, Sean 0. Smith.” This Court is not “obligated to engage in unassisted searches of the record for evidence to support a litigant’s position.” Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. DNA and Monasky contend Exhibit 25, a calculation of compensation through June 30, 1999, and the last page of Exhibit 26 containing handwritten notes by Monasky about settlement discussions, should have been excluded from evidence by N.D.R.Ev. 408. We need not determine if admission of those items was error, however, as DNA and Monasky have not attempted to demonstrate that admission of the exhibits was prejudicial. “An appealing party has the burden ‘of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.’ ” Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 26, 643 N.W.2d 29 (quoting Filloon v. Stenseth, 498 N.W.2d 353, 356 (N.D.1993)).

[¶ 22] We have examined the other issues raised by DNA and Monasky and conclude they have not demonstrated the trial court committed any reversible errors of law or abused its discretion.

IV

[¶ 23] The judgment in favor of Spag-nolia and against DNA is affirmed. The portion of the judgment holding Monasky jointly and severally liable with DNA is reversed. The judgment in favor of DNA and against BNA is affirmed.

[¶ 24JDALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., KIRK SMITH, S.J., and DONOVAN J. FOUGHTY, D.J., concur.

[¶ 25] The Honorable DONOVAN JOHN FOUGHTY, D.J., and the Honorable KIRK SMITH, S.J., sitting in place of VANDEWALLE, C.J., and MARING, J., disqualified.