author: ROBERT H. SCHUMACHER, Judge.

text:
    Raymond SCOTT, Appellant, v. FOREST LAKE CHRYSLER-PLYMOUTH DODGE, Respondent.
    No. C3-01-1013.
    Court of Appeals of Minnesota.
    Jan. 2, 2002.

      Thomas J. Lyons, Jr., Consumer Justice Center, P.A.; and Thomas J. Lyons, Thomas J. Lyons Associates, P.A., Little Canada, MN, for appellant.

      Gregory J. Johnson, Klay C. Ahrens, Johnson Van Vliet, L.L.P., St. Paul, MN, for respondent.
    Considered and decided by SCHUMACHER, Presiding Judge, HARTEN, Judge, and FORSBERG, Judge.

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

   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Raymond Scott challenges the district court’s order granting summary judgment in favor of respondent Forest Lake Chrysler Plymouth Dodge (FLC). Scott contends that (1) the six-year statute of limitations applies to his claims; (2) FLC cannot claim a “statutory-cure defense” to the requirements of Minn.Stat. § 168.71(a)(1) (1996); (3) a de minimis exception to the requirements of Minn.Stat. § 168.71(a)(1) does not exist; and (4) the district court’s finding that FLC unintentionally violated Minn.Stat. § 168.71(a)(1) was clearly erroneous. We affirm in part, reverse in part, and remand.

FACTS

On August 11, 1994, Scott visited FLC to purchase a 1991 Dodge Caravan. Scott requested that FLC arrange financing and executed a retail installment contract (contract I) that identified all of the financing terms and Comerica Bank as the intended lending institution. FLC delivered the vehicle to Scott subject to approval of the financing terms set forth in contract I. In addition to contract I, Scott executed a “conditional delivery agreement” wherein he acknowledged that, if financing was not approved, contract I would be null and void.

Comerica Bank did not approve the financing. Consequently, Scott executed a second retail installment contract (contract II) on August 23, 1994, and financing was arranged with Chrysler Credit. Contract II contained all of the credit disclosures required by the Minnesota Motor Vehicle Retail Installment Sales Act (MMVRISA).

On November 24, 1995, Scott returned to FLC to purchase a new 1995 Dodge Caravan and traded the 1991 Caravan as part of the transaction. He again executed a retail installment contract (contract III) containing all of the credit disclosures required by MMVRISA. The installment contract was paid off in September of 1998. There is nothing due or owing under either contract II or contract III.

During the time of Scott’s purchases, FLC sold in excess of 1,500 new and used vehicles per year. A large number of the sales were financed by the customer by having FLC arrange for financing with a lending institution that purchases the retail installment contract. The lending institutions would furnish FLC with formal installment contracts to be used by FLC when arranging financing.

At the time of Scott’s purchases, only certain persons employed by FLC had authority to sign retail installment contracts and to assign the contract to the lending institutions. Because those persons were not always available to sign the contracts, FLC’s general practice was to furnish the customer with a carbon copy of the contract that had been signed by the customer at the time the vehicle was delivered. The original contract was then forwarded to the office of an authorized dealership signer for execution upon financing approval by the lender. The fully executed original was then forwarded to the lender, and the dealership maintained a carbon copy in its file.

In the winter of 1995-96, lawsuits were threatened and commenced against local automobile dealerships by customers who had defaulted on their loans. These customers alleged that because their carbon copy of the retail installment contract did not bear the signature of the relevant dealership, the lender was not legally entitled to repossess the vehicle and the customer was consequently entitled to keep the vehicle and collect statutory penalties and attorney fees under MMVRISA.

In 1996, the Minnesota legislature amended Minn.Stat. § 168.71(a)(1) by enacting a provision allowing dealerships to cure whatever statutory liability they may have had under the pre-amended statute for not providing customers with signed copies of retail installment contracts. The amended statute provided a 120-day grace period during which dealerships could provide buyers a copy of the contract signed by the dealership.

Prior to the commencement of this case and in accordance with a district court ruling in a similar case, FLC sent Scott’s attorney a certified letter inquiring whether any of his clients, including Scott, would like to receive a copy of the retail installment contract that had been signed by the dealership. The letter stated in part:

If any of your clients purchased a motor vehicle for personal, household or family use from one of my clients prior to August 1, 1996 and financed the purchase under a retail installment sales contract which has not yet been paid off and would like to obtain a copy signed by the dealership, please fill out the enclosed request form with respect to each customer within the next thirty (30) days. After all of the forms are completed, please contact me and I will send a messenger over to pick them up.

Scott’s attorney did not respond to the letter. Instead, in July of 1997, Scott sued FLC in federal district court. The federal court declined to exercise jurisdiction over Scott’s state-law claims. Consequently, Scott refiled the suit in state court. In his complaint, Scott alleged that FLC violated MMVRISA by using a conditional-delivery agreement (conditional-delivery issue) and by failing to provide him with copies of retail installment contracts signed by FLC (non-signature issue). In addition, Scott alleged that FLC violated the Minnesota Prevention of Consumer Fraud Act. The district court granted summary judgment on all claims in favor of FLC. Scott appealed.

This court reversed and remanded the district court’s decision with respect to the conditional-delivery issue as well as the non-signature issue. Scott v. Forest Lake Chrysler-Plymouth Dodge, 598 N.W.2d 713, 720 (Minn.App.1999) (Scott I). Regarding the non-signature issue, we specifically remanded the question of whether FLC’s violation of section 168.71(a)(1) was intentional or unintentional. We also affirmed the district court’s decision regarding the consumer fraud claim. Id.

The Minnesota Supreme Court specifically denied review of the non-signature issue and granted review of the conditional-delivery issue. Scott v. Forest Lake Chrysler-Plymouth Dodge, No. C4-99-161 (Minn. Nov. 17, 1999) (unpublished order granting review in part and denying review in part). The supreme court reversed this court on the conditional-delivery issue. Scott v. Forest Lake Chrysler-Plymouth Dodge, 611 N.W.2d 346, 352 (Minn.2000) (Scott II).

After the supreme court decision, the issue of intentionality, in accordance with this court’s remand, remained before the district court. FLC, however, moved for summary judgment on other previously unconsidered issues. The district court granted summary judgment in favor of FLC, finding that (1) Scott’s non-signature claim was barred by the two-year statute of limitations; (2) Scott’s non-signature claim was barred by the statutory-cure provision because FLC took reasonable steps to comply with the provision; (3) any statutory violation was unintentional and precipitated by Scott’s actions; and (4) any violation was de minimis.

Scott appealed and the matter is again before this court. Both parties concede that because of the Minnesota Supreme Court’s decision in Scott II, any claims regarding contract I are eliminated. Consequently, we are only asked to consider Scott’s non-signature claims regarding contract II and contract III. Additionally, FLC requests that we strike portions of Scott’s brief and appendix.

ISSUES

1. Does the two-year statute of limitation found in Minn.Stat. § 541.07(2) (1994) apply to non-signature claims arising under MMVRISA?

2. Does a statutory-cure defense to the requirements of Minn.Stat. § 168.71(a)(1) (1996) exist?

3. Does a de minimis exception to the requirements of Minn.Stat. § 168.71(a)(1) exist?

4. Was the district court’s finding that FLC unintentionally violated Minn.Stat. § 168.71(a)(1) clearly erroneous?

5. Should FLC’s request to strike portions of Scott’s brief and appendix be granted?

ANALYSIS

This is an appeal from summary judgment. Summary judgment is properly granted when the pleadings, depositions, affidavits, etc. “show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). On appeal from summary judgment, this court asks two questions: “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). The evidence is viewed “in the light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761 (citation omitted). The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992). Both parties concede that there are no genuine issues of material fact. Therefore, our examination is limited to whether the district court properly applied the law to the undisputed facts.

1. Scott contends that a six-year statute of limitation applies to his non-signature claim. The district court found that the governing statute of limitations period is two years. Scott concedes that his claim regarding contract II was brought more than two years after the execution of that contract. If we find that the two-year limitation applies, Scott’s claims regarding contract II will be eliminated. The parties concede, however, that contract III was brought within the two-year time period, therefore Scott’s claims regarding that contract will still remain.

MMVRISA does not contain its own statute of limitations. Consequently, the applicable limitation period is either the two-year limitation found in Minn.Stat. § 541.07(2) (1994) or the six-year limitation found in Minn.Stat. § 541.05, subd. 1(2) (1994). There is no Minnesota appellate case law regarding which of these two statutes applies to non-signature claims under MMVRISA.

The relevant provisions of MMVRISA for purposes of determining which statute of limitations applies to Scott’s claims are the statute’s liability provisions found in section 168.75. At the time contract II was executed, the statute provided:

(b) In case of an intentional failure to comply with any provision of sections 168.66 to 168.77, the buyer shall have a right to recover from the person committing such violation, to set off or counterclaim in any action by such person to enforce such contract an amount as liquidated damages, the whole of the contract due and payable, plus reasonable attorneys’ fees.
(c) In case of a failure to comply with any provision of sections 168.66 to 168.77, other than an intentional failure, the buyer shall have a right to recover from the person committing such violation, to set off or counterclaim in any action by such person to enforce such contract an amount as liquidated damages equal to three times the amount of any time price differential charged in excess of the amount authorized by sections 168.66 to 168.77 or $50, whichever is greater, plus reasonable attorneys’ fees.

Minn.Stat. § 168.75(b)-(c) (1994). These provisions have not been amended.

This issue turns'on the nature of the MMVRISA liability provisions. A two-year limitations period will apply if the provisions provide for a penalty or forfeiture. Minn.Stat. § 541.07(2). Otherwise, a six-year limitation period will apply. Minn.Stat. § 541.05, subd. 1(2). Scott argues that the district court erroneously ignored the plain wording of the MMVRI-SA liability provisions by determining that the provisions provided for a penalty.

When the words of a statute are clear and unambiguous, a court must give effect to the plain meaning of the language. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). A court may look beyond a statute’s plain language, however, when a party demonstrates the statute’s plain language violates a clearly expressed goal of the legislature. Anker v. Little, 541 N.W.2d 333, 337 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). Though the liability provisions clearly speak in terms of liquidated damages, there are several indications that the statute imposes a penalty.

First, the Minnesota Supreme Court has noted that one of MMVRISA’s several purposes was to prescribe penalties for violations of its provisions:

Undoubtedly the Motor Vehicle Retail Installment Sales Act was enacted by the 1957 legislature to protect the purchasers of automobiles from the activities of a few individuals who had been guilty of inequitable practices in particular situations. It thereby sought to regulate the credit charge for the purchase of an automobile over a contractually specified period of time. The usury laws did not protect a person purchasing an automobile on a retail installment contract, commonly referred to as a conditional sales contract, inasmuch as the courts had long since come to recognize the right of a merchant to sell at one price for cash and at another price if payments were to be made on an installment basis. Our legislature stated in the title to the foregoing act the purposes thereof as follows:
“An act defining and regulating certain installment sales of motor vehicles; prescribing the conditions under which such sales may be made and regulating the financing thereof; regulating and licensing persons engaged in the business of financing such sales; prescribing the form, and contents used in connection ■with such sales and the financing thereof; prescribing certain rights and obligations of buyers, sellers, persons financing such sales and others; limiting incidental charges in connection with such instruments and fixing maximum charges for delinquencies, extensions and time sale differentials; authorizing investigations and examinations of persons engaged in the business of making or financing such sales; prescribing penalties for violations, and providing for enforcement of compliance by injunction.”

Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 70-71, 93 N.W.2d 690, 696-97 (1958) (emphasis added).

Second, while Minnesota appellate courts have not determined the statute of limitations issue at hand, the Minnesota Supreme Court, when determining the constitutionality of MMVRISA’s liability provisions, characterized MMVRISA, in dictum, as a penalty-providing statute:

Defendant contends that Minn. St. 168.75(c) was not intended to authorize a penalty of liquidated damages, plus attorneys’ fees, for the retail seller’s unintentional failure to furnish his buyer with a copy of the retail installment sales contract, absent proof of prejudice or damage to the buyer, and that the imposition of so severe a penalty for a “totally innocent act” is so shockingly unreasonable and unfair as to deprive it of property without due process of law.
The statute, we hold, is unambiguous in its expression of legislative intent. Minn. St. 168.75(b) clearly refers to intentional failure to comply, with severe penalties for such violation, whereas § 168.75(c) just as clearly provides for nonintentional violations, but with substantially lesser penalties. Prejudice to the automobile buyer in being denied the written disclosure of his finance costs is presumed, and such prejudice is not affected by the motivation of the seller. Judge Fosseen expressed the obvious legislative intent in these words:
“Only a law providing for penalties in failure to furnish the buyer of an automobile with a copy of the installment contract would compel compliance. To require a showing of wilfullness or damages in order to authorize a recovery would invite non-compliance on the part of the seller. Many automobile dealers would consider it a good business risk to withhold the contract, rendering the act ineffectual.”
The statute, we hold, does not violate either the Constitution of Minnesota or the Constitution of the United States. It is well settled that penalties, including attorneys’ fees, imposed by statute must be moderate and reasonably sufficient to accomplish a proper legislative purpose and that the imposition of penalties or conditions that are plainly arbitrary and oppressive violate due process. It is equally well settled, however, that the states possess a wide latitude of discretion in prescribing penalties for violation of their laws.

O’Brien v. Phillips Motors Excelsior, Inc., 288 Minn. 183, 186-87, 179 N.W.2d 158, 160-61 (1970) (quotation and citations omitted).

Third, the language of the liability provisions fits the definition of a penalty for statute of limitations purposes. Scott argues that this court should adopt the test used by the Ohio Supreme Court in determining whether a statute provides for a penalty. See Cosgrove v. Williamsburg of Cincinnati Mgmt. Co., Inc., 70 Ohio St.3d 281, 638 N.E.2d 991, 996 (1994) (stating that three factors are considered in determining whether statute is penal or remedial: (1) whether statute redresses individual wrongs or wrongs to public; (2) whether recovery runs to individual or to public; and (3) whether authorized recovery is unrelated to harm suffered). Minnesota, however, already has a test for determining such issues.

The Minnesota Supreme Court held that Minn.Stat. § 181.75, subd. 4 (1986) constitutes a non-penalty-type statute, subject to the six-year limitation period, because the statute does not impose liability apart from actual damages. Freeman v. Q Petroleum Corp., 417 N.W.2d 617, 619 (Minn.1988). The court stated:

The plain language of the applicable statutes shows that the relevant inquiry is whether the liability created by the statute is or is not in the nature of a penalty. We believe it is not. Freeman is suing for his actual losses in this case as authorized by the statute. Unlike the penalty cases cited, his recovery is inextricably tied to his actual loss. If his recovery were a fixed amount arising solely from a violation, it would more closely resemble a penalty. However, here he can only recover if he can prove damages. Consequently, we hold that the trial court erred in its application of the statute of limitations

Id.

Similarly, this court, following Freeman, held that the Consumer Fraud Law is subject to the six-year statute of limitations because it does not impose an arbitrary monetary penalty but, rather, allows recovery only by persons injured by a violation. Estate of Riedel by Mirick v. Life Care Ret. Communities, Inc., 505 N.W.2d 78, 82 (Minn.App.1993).

A statute is considered penal for limitations purposes if it punishes an offense against the public rather than redresses a private wrong. A statute is for a penalty where liability is imposed as a consequence of a violation of the law, even though the injured party has not suffered any real loss. Penalty embraces something other than damages or pecuniary loss. Courts also consider whether the statutory liability is measured by or related to the injury.

Id. (quotations and citations omitted).

Unlike Freeman and Riedel, liability here is not dependent on or measured by actual, sustained damages. Instead, liability is imposed solely as a consequence of violating MMVRISA. This liability is imposed whether or not a person has suffered any actual, substantive loss as a result of a violation. Consequently, the liability provisions embrace something other than damages or pecuniary loss. Also, while recovery under the provisions run to the individual, the Minnesota Supreme Court has characterized MMVRISA as protecting a public interest. See O’Brien, 288 Minn. at 187, 179 N.W.2d at 161 (“public interest in compelling undeviating compliance with the simple act of giving the automobile buyer a copy of his retail installment contract, as a matter of consumer protection, is manifest”).

Furthermore, other jurisdictions with statutes similar to MMVRISA have found the liability imposed to be penal in nature. See, e.g., Stone v. James, 142 Cal.App.2d 738, 299 P.2d 305, 306-07 (1956) (holding that liability provisions allowing buyer to recover from seller total amount paid on contract balance to be “clearly those of a section enforcing a penalty or forfeiture”); Young v. S.S. Wilder, 77 So.2d 604, 605-06 (Fla.1955) (holding that statute requiring person who willfully violated statute to lose claim to interest charged to be penal in nature); Lynch v. Signal Fin. Co. of Quincy, 367 Mass. 503, 327 N.E.2d 732, 734 (1975) (finding one-year statute of limitations applicable to liability provision because provision did not require actual harm and damages were not proportional to harm).

It cannot be denied that the language of the statute clearly classifies liability in terms of liquidated damages. The above factors considered in their totality, however, demonstrate that the liability provisions, despite their language, provide for a penalty. We conclude that a two-year statute of limitations applies to Scott’s non-signature claim.

Scott argues that such a conclusion is absurd and contrary to the purposes of consumer protection because financing agreements normally encompass a time period greater than two years. Thus, circumstances could arise where a consumer, who is still bound to fulfill the obligations of a contract, is no longer able to seek a judicial remedy.

Scott’s argument in the context of his claim lacks merit. His claim is based on not receiving a contract signed by the dealership. One knows or reasonably should know within a week of the purchase whether or not he or she has a contract signed by the dealership. The length of the financing agreement is irrelevant. Two years gives a potential plaintiff more than enough time in which to bring a non-signature claim.

2. Scott also contends that FLC cannot claim a “statutory-cure defense” because it failed to provide Scott a copy of the retail installment contract signed by the dealership. The district court found as follows:

This Court finds [FLC’s] efforts to comply with the statutory cure provision and the Order for Declaratory Relief to be reasonable. The Court further finds [Scott’s] failure to reply to the April 2, 1997 letter to be unreasonable.

Essentially, the district court found that, because FLC provided a letter to Scott’s attorney stating that he could request a signed copy and such a request was never made, FLC complied with the terms of the statute. The statutory-cure provision reads as follows:

With respect to any contract executed prior to August 1, 1996, which has not been paid in full by the retail buyer, the retail seller shall provide such retail buyer a copy signed by both the retail buyer and retail seller within 120 days after August 1,1996.

Minn.Stat. § 168.71(a)(1) (1996).

The plain language of the statute clearly states that the dealership must provide a signed copy to the buyer. There is no language indicating that sending a letter to consumers allowing them to request a copy complies with the statute. The district court’s finding that FLC’s efforts to comply were reasonable is contrary to the terms of the statute. It is also clearly inconsistent with our previous decision in Scott I. There, we stated:

In construing the requirement in Minn.Stat. § 168.71(a)(1) that a buyer shall be furnished with a copy of the retail installment contract, the supreme court stated that the purpose of the provision is to inform the installment buyer of the cost of the credit extended to him. The [supreme] court also indicated that the overall purpose of the MMVRISA is broader, reflecting a legislative policy to bring both regulatory control and conformity into the field of automobile financing and to protect the purchasers of automobiles from the activities of a few individuals who had been guilty of inequitable practices in particular situations.
The signature requirement does not conflict with any of the legislative goals recognized [by the supreme court], and we find no authority indicating any other legislative goals with which the signature requirement conflicts. Although a dealership’s signature on a retail installment contract may not be necessary to further the MMVRISA’s purposes, Forest Lake Chrysler has produced no evidence and cites no authority indicating that enforcing the plain language of the signature requirement violates a clearly expressed legislative goal.
* * * By retaining the signature requirement when it amended the statute, but giving sellers 120 days to provide buyers with signed copies of previously executed contracts, the legislature, if anything, demonstrated that it considers the signature requirement to be significant. The 1996 amendment provides no basis for us to conclude that enforcing the signature requirement violates a clearly expressed legislative goal.
This is not one of those rare cases in which it is appropriate for this court to depart from a statute’s unambiguous language. We hold that Forest Lake Chrysler violated Minn.Stat. § 168.71(a)(1) by failing to provide Scott with copies of the retail installment contracts that were signed by Forest Lake Chrysler.

Scott I, 598 N.W.2d at 718-19 (quotations and citation omitted). This court’s previous decision clearly states that the unambiguous language of the statute must be followed. The statutory-cure defense is not applicable in this case.

Moreover, finding that FLC’s efforts to comply were reasonable violated the law of the case. See Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn.1987) (issues determined on appeal “will not be relitigated in the trial court nor re-examined in a second appeal”); McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn.App.1986) (appellate court decision on given issue establishes law of case that must be followed on remand to district court), review denied (Minn. Nov. 17, 1986).

3. Scott additionally contends that the district court erroneously found that FLC’s violation of MMVRISA was de min-imis because such a de minimis exception does not exist for purposes of the statute. The district court found:

The plain purpose of [the signature requirement] is to inform the installment buyer of the cost of the credit extended to him. Here, [Scott] was fully informed of the cost of the credit to him. In fact, [Scott] took delivery of two vehicles, drove them, paid for them in installments over a total period of five years or more and may still be driving one of them, all without having possession of a copy signed by [FLC]. Since the vehicle is generally delivered on day one of these transactions, there is very little, if anything, left for [FLC] to do to perform as of that day. The performance under the RIC is [Scott’s] obligation from that point forward and he has in his possession the document outlining the details. [Scott] claims to have suffered damage due to [FLC’s] failure to provide him with RICs signed by both parties. However, this Court, as diligently as it has tried, cannot discern any harm suffered by [Scott] by virtue of that failure. Here, the signature requirement amounts to a technicality with no negative consequence to [Scott] for non-conformity by [FLC]. The violation, if any, was de minimis.

(Quotation omitted.)

Minnesota courts have recognized the de minimis exception in certain cases, stating that the law does not take notice of trifling matters. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn.App.1985) (refusing to remand for de minimis technical error); see also Minn. R. Civ. P. 61 (harmless error to be ignored). Minnesota courts, however, have also declined to invoke the de minimis exception in cases involving statutory interpretation. In Flaherty v. Indep. Sch. Dist. No. 2144, Chisago Lakes Area Sch., 577 N.W.2d 229 (Minn.App.1998), review denied (Minn. June 17, 1998), this court stated:

But the legislature has authorized courts to add language to a statute only where it does not in any way affect the statute’s scope and operation. The courts also have imposed on themselves a prohibition against supplying what the legislature purposely omits or inadvertently overlooks. Because the statute plainly does not require that employment be full-time and provides no minimum requirement for a “year” of probationary employment, we conclude that we have no authority to amend the statute judicially by creating a “de minimis” exception to the requirements of section 125.12, subdivision 3. Such an amendment is properly a legislative function.

Id. at 235 (quotations omitted).

The statute here is clear and unambiguous. It specifically requires the dealership to provide a signed contract to the buyer. It does not contain language allowing for anything less. Reading a de min-imis exception into the statute would be inconsistent with our decision in Scott I and would violate the law of the case.

4. Scott further contends that the district court’s finding that FLC’s violation was unintentional was clearly erroneous. The district court found that the violation was unintentional because it was precipitated by Scott’s failure to request a copy of the signed contract after a letter was sent to Scott’s counsel stating that a copy would be submitted upon request. A district court’s finding on the issue of whether a violation of Minn.Stat. § 168.71(a)(1) was intentional or unintentional will not be set aside unless clearly erroneous. Kadlec Motors, Inc. v. Knudson, 383 N.W.2d 342, 348 (Minn.App.1986). A finding is clearly erroneous if it is demonstrated “that it is without substantial evidentiary support or that it was induced by an erroneous view of the law.” Pettibone Minn. Corp. v. Castle, 311 Minn. 513, 247 N.W.2d 52, 53 (1976) (citation omitted).

We reaffirm here that the statute requires the signed contract be given to the buyer even without a request for it. The law does not allow FLC to fulfill its responsibility by simply taking the position that the contract will be sent upon request. Instead, the law simply states that the contract shall be provided to the buyer. Because the district court’s finding is based on an erroneous interpretation of the statute’s requirements, the finding that the violation was unintentional is clearly erroneous.

Additionally, the record indicates that the parties did not have an opportunity to fully and fairly address the intentionality issue because the issue was not argued or discussed either in writing or orally during the summary judgment proceedings. Therefore, as in Scott I, we again remand the issue of intentionality to the district court for further proceedings on that issue:

Whether Forest Lake Chrysler violated Minn.Stat. § 168.71(a)(1) intentionally or unintentionally and the amount of damages are fact questions that must be resolved by the district court.

Scott I, 598 N.W.2d at 719.

5. Finally, FLC requests that parts of Scott’s brief and appendix be stricken because they refer to events and claims that are not a part of the district court record. This court granted a similar request in Scott I:

In addition, Forest Lake Chrysler requests that this court strike from the appendix to Scott’s brief documents regarding the complaint Scott filed with the Commerce Department. Forest Lake Chrysler alleges that those documents were not filed in the district court. Scott has not provided a citation to the record for any of the documents, and we did not discover any of them in our independent review of the record. We grant Forest Lake Chrysler’s motion to strike.

Scott I, 598 N.W.2d at 720 (citation omitted). Because Scott still has not provided this court with a citation to the record, we again grant FLC’s request to strike.

DECISION

The two-year statute of limitations found in Minn.Stat. § 541.07(2) (1994) applies to non-signature claims arising under the Minnesota Motor Vehicle Retail Installment Sales Act. Additionally, the clear language of Minn.Stat. § 168.71(a)(1) (1996) does not allow for a “statutory-cure” defense or a de minimis exception. Further, the district court erred by finding that FLC unintentionally violated Minn.Stat. § 168.71(a)(1) because it was induced by an erroneous view of the law. Accordingly, we affirm the district court’s decision regarding the two-year statute of limitations but reverse regarding all other issues. The issue of whether FLC’s violation of Minn.Stat. § 168.71(a)(1) is intentional or unintentional is again remanded to the district court.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2001 ND 205
    In the Interest of M.C.H. Damon Anderson, Petitioner and Appellee, v. M.C.H., a child, Respondent and Appellant, S.H., Mother, and C.H., Father, Respondents.
    No. 20010194.
    Supreme Court of North Dakota.
    Dec. 20, 2001.
    Damon E. Anderson, Assistant State’s Attorney, Grand Forks, N.D., petitioner and appellee.
    DeWayne A. Johnston, Olson Johnston Law Office, Grand Forks, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] M.C.H. appealed from a juvenile court order finding him delinquent and ordering probation and rehabilitation. Because the criminal capacity of children between the ages of seven and fourteen has been declared by statute, we conclude juveniles between the ages of seven and fourteen have no common law right to a presumption of incapacity to commit a crime, and affirm the juvenile court’s order.

I

[¶ 2] M.C.H. allegedly took a vehicle belonging to his father’s neighbor, operated the vehicle, and crashed it into vehicles parked at a neighboring residence. M.C.H. was found to have committed the delinquent acts of unauthorized use of a motor vehicle in violation of N.D.C.C. § 12.1-23-06, leaving the scene of an accident involving property damage in violation of N.D.C.C. § 39-08-07, and operating a motor vehicle without a license in violation of N.D.C.C. § 39-06-01. M.C.H. was ten years old at the time of the juvenile court hearing. On appeal, M.C.H. argues, the State failed to present evidence to overcome the common law presumption that children between the ages of seven and fourteen are incapable of committing a crime.

[¶ 3] The juvenile court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-20-02(12) and 27-20-03(1). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 4] Review of the juvenile court’s decision is governed by N.D.C.C. § 27-20-56(1). In re R.D.B., 1998 ND 15, ¶ 9, 575 N.W.2d 420. On appeal, we review “the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.” N.D.C.C. § 27-20-56(1). Appreciable weight is given to the findings of the juvenile court, because it “had the opportunity to hear the testimony and observe the demeanor of the witnesses.” In re R.D.B., at ¶ 9; see also In re C.M., 532 N.W.2d 381, 383 (N.D.1995); In re N.W., 510 N.W.2d 580, 581 (N.D.1994).

[¶ 5] Dakota Territory, at least as early as 1877, defined the criminal responsibility of children by statute. Revised Code of the Territory of Dakota, Penal Code, ch. 2, § 16 (1877). This statutory definition was included in the 1895 Revised Code of North Dakota. N.D.R.C. § 6814 (1895). N.D.R.C. § 6814 provided, in part:

All persons are capable of committing crime, except those belonging to the following classes:
(1) Children under the age of seven years.
(2) Children over the age of seven years but under the age of fourteen years, in the absence of clear proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.

The definition of the criminal responsibility of children remained unchanged until the statute was replaced effective July 1, 1975. N.D.C.C. § 12-02-01 (1973); 1973 N.D. Sess. Laws, ch. 116.

[¶ 6] This Court has stated the statute defining the criminal responsibility of children removed the confusion that existed at common law regarding the capacity of children to commit crime. State v. Fisk, 15 N.D. 589, 108 N.W. 485, 486 (1906). The Court in Fisk interpreted N.D.R.C. § 6814:

Between 7 and 14, called the dubious age of discretion, the child is still presumed to be incapable, but the presumption is not conclusive. The state may overcome the presumption, but to do so, it must show by clear proof that the accused knew the wrongfulness of the act when he committed it. In the absence of such proof the presumption of incapacity must prevail. The burden is upon the state in such cases to prove knowledge of the wrongfulness of the act as an independent fact. In this respect the rule is the same as at common law.

State v. Fisk, 15 N.D. 589, 108 N.W. 485, 486 (1906). Section 6814 was viewed as a codification and clarification of the common law. Id. The presumption existed to protect children under the age of seven from facing a criminal prosecution and to protect children between the ages of seven and fourteen from facing a criminal prosecution, unless the state could show the child knew the wrongfulness of his actions. Id.

[¶ 7] The statute defining the criminal responsibility of children remained in effect even after the first juvenile court laws were enacted. In re R.Y., 189 N.W.2d 644, 646-47 (N.D.1971). In In re R.Y., the Court described the interaction between the criminal responsibility of children and the creation of a juvenile court system:

Under the common law there was no special judicial system for juveniles. Prior to the enactment of the various juvenile codes in the United States, most jurisdictions treated juveniles as adults in criminal proceedings and accorded them all of the privileges and rights as such. However, the legislature has the power to define what acts shall constitute criminal offenses and to fix the age of criminal responsibility. It also has the power to say that an act done by a child shall not constitute a crime or be punishable as such. The legislative assembly of the Territory of Dakota fixed the age of criminal responsibility and provided that every child under the age of seven years is conclusively presumed to be incapable of committing a crime, but that “children of the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness” also are deemed incapable of committing a crime. Penal Code, Dakota Territory, 1877, Sec. 16(2). These statutory provisions are still retained in force. Section 12-02-01, N.D.C.C. If the legislature has the power to determine the age of criminal responsibility, it may also change the age and fix it conditionally as it has done in Section 27-20-34, N.D.C.C. This section provides that the juvenile court may transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if the child was sixteen or more years of age at the time of the alleged delinquent conduct.

In re R.Y., 189 N.W.2d at 646-47. The protection provided to children through N.D.C.C. § 12-02-01 was duplicated by the statutory structure of the juvenile court system. Id. Under both statutory schemes, children under the age of sixteen could not be prosecuted in a criminal court, but could face a juvenile court hearing. Id.; N.D.C.C. § 12-02-01 (1973); N.D.C.C. ch. 27-20.

[¶ 8] In 1971, the Legislative Council was directed to review and revise the criminal statutes. H.C.R. 3050, 42d N.D. Legis. Sess. (1971). The task was assigned to the Interim Committee on Judiciary “B.” Report of the N.D. Legis. Council 80 (1973). During the revision of the criminal code, N.D.C.C. § 12-02-02 was replaced with N.D.C.C. § 12.1-04-01. 1973 N.D. Sess. Laws ch. 116, § 4. Section 12.1-04-01, which became effective July 1, 1975, provided:

Persons under the age of seven years are deemed incapable of commission of an offense defined by the constitution or statutes of this state. The prosecution of any person as an adult is barred if the offense was committed while the person was less than sixteen years of age.

The 1973 Report of the North Dakota Legislative Council included a short discussion of the new section 12.1-04-01:

The fourth chapter of the main bill (12.1-04) contains defenses to criminal charges. It would replace Chapter 12-OS, which is the present chapter in Title 12 outlining criminal defenses. The first section of the new chapter continues the provision of current law that children under seven years of age are not deemed capable of commission of a criminal offense. In addition, the section provides that a person shall not be prosecuted as an adult if the offense was committed while he was under 16. This provision accords with the current provisions contained in the Uniform Juvenile Court Act, Chapter 27-20, NDCC.

Report of the N.D. Legis. Council 82 (1973). Section 12.1-04-01 was also discussed by the Interim Committee on Judiciary “B.”

The provision of the first sentence of [§ 12.1-04-01] that persons under seven years of age shall be deemed incapable of committing an offense would still prevent criminal liability from attaching to a person under seven years of age, even in a juvenile court.
The Committee Counsel noted that [§ 12.1-04-01] would replace Subsections 1 and 2 of Section 12-02-01.

Minutes of Interim Committee on Judiciary “B” 27 (March 2-3, 1972).

[¶ 9] When the law on a subject is declared by statute, there is no common law. N.D.C.C. § 1-01-06. Throughout the history of the State of North Dakota, the criminal responsibility of children has been declared by statute. See, e.g., N.D.C.C. § 12.1-04-01; N.D.C.C. § 12-02-01 (1973); N.D.R.C. § 6814 (1895); Revised Code of the Territory of Dakota, Penal Code, ch. 2, § 16 (1877). Under current statutes, while a child may be adjudicated a delinquent by the juvenile courts, a child between the ages of seven and fourteen cannot be punished as an adult for the commission of a crime. N.D.C.C. § 12.1-04-01; N.D.C.C. ch. 27-20.

Ill

[¶ 10] The State was not required to present evidence to overcome the common law presumption of incapacity. The juvenile court’s order is affirmed.

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

      . Section 12.1-04-01 was amended in 1981 to lower from sixteen to fourteen the age at which a person is barred from prosecution as an adult. 1981 N.D. Sess. Laws ch. 328, § 2.


author: NEUMANN, Justice.

text:
    2001 ND 207
    Lynetta K. GEPNER and Donald Kroll, Plaintiffs and Appellants, v. FUJICOLOR PROCESSING, INC. OF SIOUX FALLS, SOUTH DAKOTA, U.S.A., and Fuji Photo Film U.S.A., Inc., principle consolidated subsidiaries of Fuji Photo Film Co., Ltd. of Tokyo, Japan, Defendants and Appellees.
    No. 20010022.
    Supreme Court of North Dakota.
    Dec. 21, 2001.
    Rehearing Denied Jan. 25, 2002.

      Bruce A. Schoenwald, Stefanson, Plam-beck, Foss & Fisher, Moorhead, MN, for plaintiffs and appellants.
    Daniel J. Dunn, Maring Williams Law Office, Fargo, for defendants and appel-lees.
   NEUMANN, Justice.

[¶ 1] Lynetta Gepner and Donald Kroll appeal from a judgment entered upon a jury verdict awarding Gepner damages for a work-related injury, finding Fujicolor Processing, Inc. (“Fujicolor”) had not wrongfully terminated Gepner’s employment, and refusing to award damages to Kroll for loss of consortium. We affirm.

I

[¶ 2] Gepner worked as a film delivery driver for Fujicolor. Gepner picked up film at retail stores in North Dakota and Minnesota and delivered it to a relay driver, who transported the film to Fujicolor’s processing plant in South Dakota. The processed film was then returned to Gep-ner, who delivered it back to the stores. Gepner did not travel into South Dakota on her route.

[¶3] On August 4, 1998, Gepner injured her back while lifting film bags out of her car at the Wal-Mart in Grand Forks. Gepner was able to complete her route that day with assistance from her husband, Donald Kroll. Gepner subsequently advised her supervisor, Jill Campbell, about her injury. Campbell believed that Gepner would continue to deliver the route with assistance from Kroll. For the next several weeks, however, Kroll delivered Gepner’s route alone. Gepner signed and submitted route manifests and time-cards indicating she was delivering the film. Under Fujicolor’s policies for its delivery drivers, an employee may receive assistance from a non-employee, but the employee must personally deliver the film, interact with customers, and sign the route manifests documenting delivery of the film.

[¶ 4] On August 20, 1998, Gepner contacted Campbell about her injury, and Campbell filled out a form entitled “South Dakota Employer’s First Report of Injury.” Campbell sent the form to Gepner for her signature, but Gepner returned it unsigned because it contained the wrong date of her injury.

[¶ 5] At some point, Fujicolor learned Kroll was delivering the route alone. On September 11, Kroll met the Fujicolor relay driver in Fargo. The relay driver was supposed to deliver Gepner’s paycheck, but had forgotten it in Sioux Falls. Kroll refused to complete the deliveries without Gepner’s paycheck, and Campbell was notified. Campbell called Gepner and asked her to arrange to have the film delivered. Gepner told Campbell she was physically unable to deliver the film. Campbell then told Gepner she was fired.

[¶ 6] Gepner had filed a claim with the North Dakota Workers Compensation Bureau on September 3, 1998. The Bureau contacted Fujicolor, which advised the Bureau that Gepner was a South Dakota employee based out of Sioux Falls who made deliveries in North Dakota, South Dakota, and Minnesota, and that a claim had been filed with Great American Insurance Companies (“GAIC”), Fujicolor’s South Dakota workers compensation insurer. Based on this information, the Bureau dismissed Gepner’s claim on September 11,1998.

[¶7] GAIC denied coverage because Gepner was a North Dakota employee injured in North Dakota, and GAIC’s policy did not provide coverage in this state. Fu-jicolor concedes that it had failed to secure coverage in North Dakota through the Bureau as required by law. Gepner reapplied for benefits in North Dakota under N.D.C.C. § 65-09-02 as an employee of a noncomplying employer, and the Bureau eventually awarded benefits to her in February 1999.

[¶ 8] Gepner and Kroll commenced this action against Fujicolor, seeking damages for the work injury, wrongful termination, and loss of consortium. The summons and complaint were mailed to Fujicolor on October 6, 1998, and received on October 8. On October 21, 1998, Fujicolor sent the complaint to GAIC, where it was received by Merrick McCarthy, GAIC’s Director of Liability — Japanese Division, on October 23. Although an answer to the complaint was due within a few days, McCarthy did not refer the file to an attorney or otherwise initiate a responsive pleading.

[¶ 9] On December 11, 1998, a default judgment was entered against Fujicolor awarding Gepner $228,670.05 and awarding Kroll $51,027.40. On December 15, 1998, McCarthy, unaware a default judgment had been entered, contacted Gep-ner’s attorney to discuss the claim and was advised of the default judgment.

[¶ 10] On January 12, 1999, Fujicolor filed a motion to vacate the judgment under N.D.R.Civ.P. 60(b)(1), alleging mistake, inadvertence, and excusable neglect. The district court granted the motion and vacated the default judgment. The matter was eventually tried to a jury, which awarded Gepner $11,946.25 in damages for her work injury, found Gepner had not been wrongfully terminated, and awarded no damages on the loss of consortium claim. Judgment was entered on the jury verdict, and Gepner and Kroll appealed.

II

[¶ 11] Gepner alleges the district court abused its discretion when it vacated the default judgment against Fujicolor. We disagree.

[¶ 12] Rule 60(b), N.D.R.Civ.P., governs the trial court’s authority to vacate a judgment:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect....

[¶ 13] A motion to vacate a judgment under N.D.R.Civ.P. 60(b)(i) lies within the sound discretion of the trial court, and its decision will not be disturbed on appeal unless the court has abused its discretion. Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726; Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 10, 609 N.W.2d 90; Red River State Bank v. Reierson, 533 N.W.2d 683, 688 (N.D.1995). An abuse of discretion by the trial court is never assumed; the burden is on the party seeking relief to affirmatively establish it. US Bank Nat’l Ass’n v. Ar nold, 2001 ND 130, ¶ 23, 631 N.W.2d 150; Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904; First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794 (N.D.1986). The trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner. Kopp, at ¶ 7; Follman, at ¶ 10. A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination. Kopp, at ¶ 7. We will not overturn the trial court’s decision merely because it is not the one we may have made if we were deciding the motion. US Bank, at ¶ 23.

[¶ 14] This Court has emphasized that N.D.R.Civ.P. 60(b) is to be liberally construed and applied, and trial courts should be more lenient in granting motions to vacate default judgments than in vacating judgments in cases which have been tried on their merits. First Fed. Sav. and Loan Ass’n v. Hulm, 328 N.W.2d 837, 840 (N.D.1982); Suburban Sales & Serv., Inc. v. District Court of Ramsey County, 290 N.W.2d 247, 252 (N.D.1980). The relevant factors were summarized in CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 803 (N.D.1990) (citations omitted):

This court has long encouraged trial courts to be more lenient when entertaining Rule 60(b) motions to vacate default judgments as distinguished from “litigated” judgments, that is, judgments entered after trial on the merits. While a trial court certainly has discretion to grant or deny a Rule 60(b) motion to vacate a default judgment, the range of that discretion is limited by three important considerations. First, Rule 60(b) is remedial in nature and should be liberally construed and applied. Second, decisions on the merits are preferable to those by default. Third, as a consequence of the first two considerations, “ ‘[w]here timely relief is sought from a default judgment and the, movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.’ ” King v. Montz, 219 N.W.2d 836, 839 (N.D.1974) [quoting 7 Moore’s Federal Practice ¶ 60.19, at p. 60-156].

See also Throndset v. L.L.S., 485 N.W.2d 775, 778-79 (N.D.1992). The Court noted that, “[a]gainst this backdrop,” parties seeking to show that a trial court abused its discretion in vacating a default judgment “shoulder a heavy burden.” CUNA Mortgage, at 803.

[¶ 15] We have also cautioned that, when the inadvertence or neglect has been committed by a party’s attorney or insurer, we are reluctant to attribute the error to a client who was not personally responsible. See CUNA Mortgage, 459 N.W.2d at 803; Hulm, 328 N.W.2d at 841; King v. Montz, 219 N.W.2d 836, 840 (N.D.1974).

[¶ 16] In this case, the failure to file a timely answer to the complaint was due to the inadvertence and neglect of GAIC, Fu-jicolor’s insurer. Upon learning of the default judgment a few days after it was entered, GAIC immediately referred the matter to a North Dakota attorney, who contacted Gepner’s attorney and filed a motion to vacate the judgment. Gepner does not allege the motion was untimely.. With its motion to vacate the judgment, Fujicolor filed an answer raising meritorious defenses to claims in the complaint. Under these circumstances, we conclude the trial court did not abuse its discretion in granting the motion to vacate the default judgment.

Ill

[¶ 17] Gepner asserts the trial court erred in allowing Fujicolor to present evidence challenging Gepner’s claimed damages because the Bureau’s determinations on damages were res judicata. We disagree.

[¶ 18] Fujicolor concedes that it failed to secure workers compensation coverage for Gepner as required by North Dakota law. Proceedings by an injured employee against an uninsured employer are governed by N.D.C.C. ch. 65-09. Under that chapter, an employee of an uninsured employer may seek and recover benefits under the Workers Compensation Act, and also sue the employer in tort for damages:

An employee whose employer is in violation of section 65-04-33, who has been injured in the course of employment, ... may file an application with the bureau for an award of compensation under this title and in addition may maintain a civil action against the employer for damages resulting from the injury or death. In the action, the employer may not assert the common-law defenses of:
1. The fellow servant rule.
2. Assumption of risk.
3. Contributory negligence.
The bureau is subrogated to the recovery made in the action against the uninsured employer.... The bureau shall notify the claimant and the employer that the matter is being processed under this chapter, and subsequently shall hear and determine the application for compensation as it would for other claims before the bureau.

N.D.C.C. § 65-09-02. Gepner has availed herself of the dual remedies under the statute: she has received benefits under the Act and has filed a separate civil action against Fujicolor for damages caused by the work injury.

[¶ 19] In addition to the limitation in N.D.C.C. § 65-09-02 on common law defenses to liability, Gepner argues Fujicolor should not have been allowed to challenge or present evidence on the issue of damages. Gepner contends the Bureau’s determinations on damage issues should have been res judicata under N.D.C.C. § 65-05-03, which provides:

The bureau shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions, except as provided in chapter 65-10, are final and are entitled to the same faith and credit as a judgment of a court of record.

[¶ 20] Res judicata generally prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which were resolved by a final judgment in a court of competent jurisdiction. Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377; Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D.1992). Determinations by administrative agencies, including the Bureau, may likewise be given res judicata effect if the conventional elements of res judicata are present. See Westman v. Dessellier, 459 N.W.2d 545, 547 (N.D.1990); Vanover v. Kansas City Life Ins. Co., 438 N.W.2d 524, 526 (N.D.1989); Stine v. Weiner, 238 N.W.2d 918, 925-26 (N.D.1976); 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 127.07[2] & [5]. Under traditional res judicata principles, the doctrine is not applicable to issues not considered or decided in the prior proceeding, and the doctrine applies only when the issues in the prior and current proceedings are “substantially identical.” Nodland v. Nokota Co., 314 N.W.2d 89, 92 (N.D.1981); see also Hofsommer, 488 N.W.2d at 384 (under related doctrine of collateral estop-pel, issues must be identical).

[¶ 21] In this case, the damage issues in the current action can hardly be said to be substantially identical to the issues determined by the Bureau. The civil action created under N.D.C.C. § 65-09-02 is in the nature of a tort action, and allows the employee to recover damages resulting from the injury. The legislative history to the 1995 amendment to N.D.C.C. § 65-09-02, which created the separate civil action against the noncomplying employer, clarifies that it is a personal injury lawsuit, not limited to the remedies available under the Workers Compensation Act:

The Bill provides that an employee of an uninsured employer may file and receive workers compensation benefits and in addition may maintain a lawsuit against the uninsured employer for damages caused by the injury.... The threat of personal injury lawsuits and potentially large damage awards should provide uninsured employers with ample incentive to request and pay for the protections of workers compensation coverage and the exclusive remedy, instead of taking their chances on being uninsured.

Hearing on H.B. 1329 Before the House Industry, Business and Labor Comm., 54th N.D. Legis. Sess. (Jan. 23, 1995) (testimony of Robert W. Morris, Assistant Attorney General, representing the Workers Compensation Bureau). Accordingly, under N.D.C.C. § 65-09-02, a noncomplying employer is liable in a civil action for all damages resulting from the work injury, and those damages are to be determined under the standards and measures applicable in traditional tort-based personal injury actions.

[¶ 22] By contrast, the Bureau does not assess damages under the tort measure, but determines only compensability under the statutory provisions of the Workers Compensation Act. Whether, and to what extent, damages from an injury are com-pensable under the Act is a separate and wholly distinct issue from tort damages in a personal injury action. Consequently, the issues decided by the Bureau in determining benefits under the Act are not substantially identical to the damage issues presented in the separate civil action based upon tort principles.

[¶ 23] Gepner asserts this Court’s holding in Westman supports a broad application of the doctrine of res judicata to decisions by the Bureau. Although Westman recognizes that a decision of the Bureau may have res judicata effect in a subsequent lawsuit, it does not support application of res judicata in this case. In West-man, this Court held the trial court should have given res judicata effect to the Bureau’s earlier decision that Westman was an employee at the time of his injury and was entitled to compensation under the Act. See Westman, 459 N.W.2d at 547. The relevant issue in the civil action was whether the action was barred by the exclusive remedy provision of the Workers Compensation Act. Because the issues decided by the Bureau were identical to the issues presented to the trial court in the subsequent lawsuit, res judicata applied. Westman does not hold, however, that the Bureau’s determination of the extent and amount of compensation for an injury under the Act is res judicata of the amount of damages recoverable in tort in a separate personal injury action against a noncomplying employer under N.D.C.C. § 65-09-02.

[¶ 24] Gepner also argues that State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586 (1929), requires a noncomplying employer to compensate an injured employee for the amount the employee would have received under the Act if the employer had been insured. Gepner relies upon the following language in Hughes Oil:

An employer who fails to comply with the act has imposed upon him by operation of law an absolute liability without regard to any question of fault in all cases where liability for compensation would have existed on the part of the workmen’s compensation fund in case the employer had complied with the act. An employer who has failed to comply with the act, and whose employee is injured in the course of his employment by reason of the negligence of some person other than the employer or a fellow employee, is, of course, liable to his employee for compensation under the act. Such liability exists, not on account of the wrongful conduct of the tort-feasor, but on account of his own wrongful conduct in failing to comply with the Workmen’s Compensation Act.

Hughes Oil, 58 N.D. at 598-99, 226 N.W. at 593. Gepner fails to acknowledge, however, that the Court in Hughes Oil was interpreting a statutory scheme wholly different from the current one. Under the version of the Act in effect at that time, an employee of a noncomplying employer had the option of suing the employer in tort or filing a claim with the Bureau. See 1919 N.D. Sess. Laws ch. 162, § 11; Hughes Oil, 58 N.D. at 590, 226 N.W. at 589-90. The statute specifically provided that, if the employee filed a claim with the Bureau for compensation under the Act, the employer was required to pay the employee the amount of compensation the Bureau determined was due under the provisions of the Workmen’s Compensation Act:

Any employee whose employer has failed to comply with the provisions of Sections six and seven hereof, who has been injured in the course of his employment ... may, in lieu of proceedings against his employers by civil action in the court, file his application with the Workmen’s Compensation Bureau for compensation in accordance with the terms of this Act, and the Bureau shall hear and determine such application for compensation in like manner as in other claims before the Bureau; and the amount of the compensation which said Bureau may ascertain and determine to be due to such injured employee ... shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the Bureau....

1919 N.D. Sess. Laws ch. 162, § 11; see also Hughes Oil, 58 N.D. at 590, 226 N.W. at 589-90. Hughes Oil is clearly distinguishable.

[¶ 25] We conclude the trial court did not err in refusing to hold the Bureau’s prior determinations on damages were res judicata, and in allowing Fujicolor to present evidence on the issue of damages.

rv

[¶ 26] Gepner contends the trial court erred in granting Fujicolor’s motion for an independent mental examination of Gepner. We disagree.

[¶ 27] During pretrial discovery, Fuji-color moved for an order requiring Gepner to undergo a mental examination with Dr. Susan Phipps Yonas, a licensed clinical psychologist. The trial court granted the motion and ordered Gepner to undergo the examination.

[¶ 28] Rule 35(a), N.D.R.Civ.P., governs independent physical and mental examinations of parties:

If the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner....

[¶ 29] Rule 35(a) vests wide discretion in the trial court in determining whether to require a party to submit to a physical or mental examination. Guskjolen v. Guskjolen, 391 N.W.2d 639, 641 (N.D.1986); Stroschein v. Stroschein, 390 N.W.2d 547, 549 (N.D.1986); Lucke v. Lucke, 300 N.W.2d 231, 235 (N.D.1980). The trial court’s determination will only be overturned on appeal if there has been an abuse of that discretion. See Guskjolen, at 641; Stroschein, at 549. An abuse of discretion by the trial court is never assumed and must be affirmatively established. US Bank Nat’l Ass’n v. Arnold, 2001 ND 130, ¶ 23, 631 N.W.2d 150; Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904. A trial court abuses its discretion only when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Farmers Alliance Mut. Ins. Co. v. Hulstrand Constr. Co., 2001 ND 145, ¶ 10, 632 N.W.2d 473.

[¶ 30] Gepner contends the trial court erred in ordering a mental examination under Rule 35(a) because Gepner never placed her mental condition “in controversy” as required by the rule. Gepner relies upon cases, construing the corresponding federal rule and similar state rules, which conclude that a plaintiff does not place her mental condition in controversy merely by pleading “garden variety” pain, suffering, mental anguish, or emotional distress as elements of her damages. See, e.g., Ricks v. Abbott Labs., 198 F.R.D. 647, 648-49 (D.Md.2001); Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 668-69 (S.D.Cal.2001); O’Sullivan v. State of Minn., 176 F.R.D. 325, 327-28 (D.Minn.1997); Smith v. J.I. Case Corp., 163 F.R.D. 229, 230-31 (E.D.Pa.1995); LeGendre v. Monroe County, 234 Mich.App. 708, 600 N.W.2d 78, 86-92 (1999). These cases generally conclude that a mental evaluation can be ordered under Rule 35 when the plaintiff (1) pleads a specific cause of action for intentional or negligent infliction of emotional distress; (2) pleads a specific mental or psychiatric injury or disorder; (3) claims unusually severe emotional distress; (4) offers expert testimony to support a claim of emotional distress; or (5) concedes her mental condition is in controversy. See Ricks, 198 F.R.D. at 648-49; O’Sullivan, 176 F.R.D. at 328.

[¶ 31] Most of the cases cited by Gep-ner addressed only whether inclusion in the complaint of boilerplate allegations of mental anguish or emotional distress, standing alone, placed the pleading party’s mental condition in controversy. The genesis of this reasoning is the oft-quoted language from the seminal Supreme Court case on F.R.Civ.P. 35(a), Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), stating that the “in controversy” and “good cause” requirements of the rule “are not met by mere conclusory allegations of the pleadings.” Illustrative of the cases following Schlagenhauf is O’Sullivan, in which the court, after quoting Schlagenhauf, concluded:

Here, the Complaint’s bare and boilerplate allegations of “mental anguish,” “emotional distress,” and “embarrassment and humiliation,” provide a legally insufficient basis for concluding that the Plaintiffs mental condition is “genuinely in controversy,” or that “good cause exists for ordering [the] examination.” We are mindful that some Courts have concluded that — standing alone — a plaintiffs allegation of emotional pain and distress, suffered at the instance of the defendants, is sufficient to allow a finding that her mental state has been placed in controversy, but we continue to disagree, respectfully, with such a construction of the “in controversy” element.

O’Sullivan, 176 F.R.D. at 327-28 (citation omitted).

[¶ 32] The Court in Schlagenhauf, however, made it clear that, if a party’s pleadings standing alone do not place her mental condition in controversy, that is not the end of the inquiry. Schlagenhauf recognizes that a defendant may place an opposing party’s mental condition in controversy by independent evidence:

[T]he “in controversy” and “good cause” requirements of Rule 35 ... are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination....
Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements, as the Court of Appeals in this case itself recognized, are necessarily related. This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.
... Schlagenhauf did not assert his mental or physical condition either in support of or in defense of a claim. His condition was sought to be placed in issue by other parties. Thus, under the principles discussed above, Rule 35 required that these parties make an affirmative showing that petitioner’s mental or physical condition was in controversy and that there was good cause for the examinations requested.

Schlagenhauf, 379 U.S. at 118-20, 85 S.Ct. 234 (citation omitted); see also 7 James Wm. Moore et al., Moore’s Federal Practice § 35.03[l][a] (3d ed.2001).

[¶ 33] Thus, Schlagenhauf clearly recognizes that, where a party’s pleadings do not, standing alone, place her mental condition in controversy, the opposing party may still demonstrate through other evidence that the party’s mental condition is in controversy. In this case, in support of its motion for a mental examination under N.D.R.Civ.P. Rule 35, Fujicolor presented independent evidence that Gepner was being treated for depression, had demonstrated “extreme pain behaviors” on a work tolerance assessment, had demonstrated “inappropriate illness behavior” on the McGill Pain Questionnaire administered as part of the work tolerance assessment, and had on one occasion after the work injury suffered seizure-like symptoms which an emergency room physician believed could be related to a “psychological overlay/anxiety reaction.” Fujicolor presented evidence suggesting there may have been an underlying psychological basis for, or exaggeration of, Gepner’s pain. Under these unique circumstances, it was within the trial court’s discretion to determine whether Fujicolor had adequately demonstrated Gepner’s mental condition was “in controversy” and to decide whether to order the examination.

[¶ 34] Our decision in this case should not be viewed as an open invitation for defendants to attempt psychiatric fishing expeditions under Rule 35 in run-of-the-mill personal injury cases. The Court in Schlagenhauf expressly cautioned against such a result:

The Federal Rules of Civil Procedure should be liberally construed, but they should not be expanded by disregarding plainly expressed limitations. The “good cause” and “in controversy” requirements of Rule 35 make it very apparent that sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident — or, as in this case, two accidents — and a general charge of negligence is lodged. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule. To hold otherwise would mean that such examinations could be ordered routinely in automobile accident cases. The plain language of Rule 35 precludes such an untoward result.

Schlagenhauf, 379 U.S. at 121-22, 85 S.Ct. 234 (footnote omitted). The court in Smith, 163 F.R.D. at 232, expressed it more bluntly:

The practice seems to be more and more in vogue of late for defendants to seek to partake of the in terrorem tactic of visiting upon a plaintiff a particularly intrusive incursion: examination by a psychiatrist, and other psychological delvings.
In so stating, I by no means suggest — even though it is beyond the factual ambit before me — that psychiatric and psychological exams are never called for. The rules expressly call for them, and properly so. Many is the situation when they are a necessary and proper tool for fingering the mental malingerer, exposing the hyper-emotional charlatan. I only suggest that in cases such as this one — your basic garden-variety tort quest for damages, to include pain and suffering — psychiatric examination should be the exception, not the rule.

[¶35] We conclude the trial court did not abuse its discretion in ordering Gepner to undergo a mental examination under N.D.R.CÍV.P. 35(a).

V

[¶ 36] Gepner argues the trial court erred in denying her motion under N.D.R.Civ.P. 50 for judgment as a matter of law on the wrongful termination claim.

[¶ 37] We recently summarized our standard of review of a trial court’s determination on a Rule 50 motion:

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

Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶ 6, 622 N.W.2d 195 (quoting Peterson v. Traill County, 1999 ND 197, ¶ 7, 601 N.W.2d 268).

[¶ 38] Gepner argues she presented a prima facie case of wrongful termination through evidence establishing the proximity in time between her filing of a workers compensation claim and her termination. In reviewing a trial court’s denial of a plaintiffs Rule 50 motion, however, our inquiry is not whether the plaintiff has established a prima facie case. Rather, our standard of review in this case requires that we look at all of the evidence presented, view all of the evidence and reasonable inferences therefrom in the light most favorable to Fujicolor as the nonmoving party, and determine if the evidence leads to only “one conclusion as to the verdict about which there can be no reasonable difference of opinion.” Greenwood, at ¶ 6 (quoting Peterson, at ¶ 7).

[¶ 39] There was conflicting evidence presented on the reason for Gepner’s termination. Gepner’s supervisor, Jill Campbell, testified that on August 26, 1998, she learned Kroll was delivering Gepner’s route alone, in violation of Fujicolor’s company policy. Campbell also testified Gep-ner falsified route manifests and time-cards, indicating Gepner was delivering the route when Kroll was in fact delivering it. Campbell testified she discussed the situation with the human resources manager in the Sioux Falls office and ultimately with other Fujicolor corporate managers, and on September 9, 1998, she was authorized to terminate Gepner’s employment for her violations of company policy.

[¶ 40] On this record, viewing the evidence in the light most favorable to Fujico-lor, the evidence does not lead to only one conclusion about which there could be no reasonable difference of opinion. We therefore conclude the trial court did not err in denying the motion for judgment as a matter of law and submitting the issue to the jury.

VI

[¶ 41] We have considered the remaining issues raised by Gepner and Kroll and find them to be without merit. The judgment is affirmed.

[¶ 42] GERALD W. VANDEWALLE, C.J., LAURIE A. FONTAINE, D.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 43] The Honorable LAURIE A. FONTAINE, D.J., sitting in place of MARING, J., disqualified.


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 208
    Mark DIMOND, Plaintiff and Appellant, v. STATE of North Dakota, by and through the STATE BOARD OF HIGHER EDUCATION, Defendant and Appellee.
    Nos. 20010154, 20010155.
    Supreme Court of North Dakota.
    Dec. 24, 2001.
    Rehearing Denied Jan. 18, 2002.

      Lynn M. Boughey, Boughey Law Firm, Minot, for plaintiff and appellant.
    Monte L. Rogneby (argued), and John C. Kapsner, Vogel Law Firm, Bismarck, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Dr. Mark Dimond appealed a summary judgment dismissing his breach of contract action against the State of North Dakota, by and through the State Board of Higher Education (“Board”). We conclude Dimond’s action against the Board is barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and we affirm.

I

[¶ 2] Dimond was a tenured music professor at Minot State University, a public university under the Board’s control. In May 1994, Dr. Joseph Hegstad, Chair of the Music Division at the university, advised Dimond that Hegstad intended to recommend Dimond’s dismissal for cause to the university president, Dr. Eric Shaar. In May 1994, Shaar notified Dimond of his dismissal for adequate cause under the Board’s personnel policies. Shaar informed Dimond the cause for dismissal was demonstrated incompetence in teaching, substantial and manifest neglect of duty, and personal conduct which substantially impaired Dimond’s fullfillment of institutional responsibilities. Dimond exhausted the procedures for internal administrative review of his dismissal, and in May 1996, the Board adopted an administrative law judge’s recommendation to uphold the dismissal.

[¶ 3] In August 1997, Dimond commenced a breach of contract and tort action against the Board. The trial court denied the Board’s motion to dismiss. In Dimond v. State ex rel. State Bd. of Higher Educ., 1999 ND 228, ¶¶ 18, 20-23, 603 N.W.2d 66, we exercised our supervisory jurisdiction and held (1) the trial court lacked subject matter jurisdiction to hear Dimond’s breach of contract claim because he failed to first present it to the Board as required by N.D.C.C. § 32-12-03, and (2) Dimond’s tort claim was barred either by sovereign immunity or by his failure to present it to the office of management and budget within one hundred and eighty days after the alleged injury as required by N.D.C.C. § 32-12.2-04. We directed the trial court to dismiss Dimond’s breach of contract claim without prejudice and his tort claim with prejudice. Dimond, at ¶ 26.

[¶ 4] In May 2000, after Dimond presented his contract claim to the Board as required by N.D.C.C. § 32-12-03, he initiated this breach of contract action against the Board. The Board moved for summary judgment, claiming Dimond’s action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and sufficient undisputed facts established, as a matter of law, the Board terminated Dimond for adequate cause. Dimond resisted the Board’s motion, arguing the six-year statute of limitations for contract claims in N.D.C.C. § 28-01-16 applied to his action and there were disputed issues of material fact about whether he was terminated for adequate cause. The parties agreed to consolidate this action with the prior action for purposes of the summary judgment motion to allow the parties to use the testimony at the administrative hearing in lieu of affidavits. The trial court granted the Board summary judgment, concluding (1) Dimond’s action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and, (2)o reasonable minds could reach only one conclusion from the undisputed facts-Di-mond was both insubordinate and lacking in his institutional responsibilities, and as a matter of law, there was adequate cause for his dismissal.

[¶ 5] Dimond moved for reconsideration, arguing his May 2000 complaint was a supplemental pleading that related back to his August 1997 complaint for purposes of the statute of limitations. Dimond also moved to amend his August 1997 complaint. The court denied Dimond’s mo- • tions to reconsider and to amend his August 1997 complaint.

II

[¶ 6] We review Dimond’s appeal in the posture of summary judgment under N.D.R.Civ.P. 56, which

is a method for promptly and expeditiously disposing of a controversy without trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts, or the inferences to be drawn from undisputed facts, or if resolving factual issues would not alter the results. A district court deciding a motion for summary judgment is required to view the evidence in the light most favorable to the resisting party. Although the party seeking summary judgment bears the initial burden of showing there is no genuine issue of material fact, the party opposing the motion may not simply rely upon the pleadings or unsupported allegations. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means raising an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the^record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact. Whether the district court properly granted summary judgment is a question of law subject to de novo review.

Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 10, 623 N.W.2d 382 (citations omitted).

Ill

[¶ 7] Dimond argues the trial court erred in deciding his breach of contract action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, which provides:

When not otherwise specifically provided by law, an action against the state or its employees and officials acting within the scope of their employment or office must be commenced within three years after the claim for relief has accrued. For purposes of this section, the claim for relief is deemed to have accrued at the time it is discovered or might have been discovered in the exercise of reasonable diligence. This may not be construed as a waiver of immunity-

Dimond argues N.D.C.C. § 28-01-22.1 does not apply to his breach of contract action, and the applicable statute of limitations for his claim is six years under N.D.C.C. § 28-01-16. Relying on Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, Dimond argues the “[w]hen not otherwise specifically provided by law” language in N.D.C.C. § 28-01-22.1 means that statute does not apply if another statute provides a statute of limitations for the action, and N.D.C.C. § 28-01-16(1) provides &t six-year statute of limitations for an action upon a contract. He argues if there is a question about which statute of limitations applies, the longer time generally applies.

[¶ 8] The interpretation of a statute is a question of law, which is fully reviewable on appeal. Matter of Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594. The primary purpose of statutory construction, including the interpretation of statutes of limitation, is to ascertain legislative intent. See O’Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D.1988). Whenever fairly possible, we construe statutes relating to the same subject matter to give effect to both. Id. In construing statutes of limitation, we have often relied on the canon of construction that a specific statutory provision controls a more general provision. See Olson v. University of North Dakota, 488 N.W.2d 386, 390 (N.D.1992); O’Fallon, at 811.

[¶ 9] In Burr, 1997 ND 98, ¶ 12, 564 N.W.2d 631 (Burr II), we held the seven-year statute of limitations in N.D.C.C. § 12.1-06.1-05(7), rather than the three-year statute of limitations in N.D.C.C. § 28-01-22.1, applied to a plaintiffs action under North Dakota’s Racketeer Influenced and Corrupt Organizations Act against state employees acting in then-personal capacities. In Burr v. Kulas, 532 N.W.2d 388, 394 (N.D.1995) (Burr I), an earlier appeal in the same case, we had held the plaintiffs claims against the State and the named individuals, in their official capacities, were barred by the doctrine of sovereign immunity. We remanded the plaintiffs claims against the named defendants, in their personal capacities, for further proceedings. Id. On remand, the trial court concluded the plaintiffs claims .against the named defendants, in then-personal capacities, were barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1. Burr II, at ¶ 7. In Burr II, at ¶ 10, we said the only claims remaining after Burr I were claims against the named defendants acting in their personal capacities and not within the scope of their employment. Because the plaintiff alleged the defendants were acting outside the scope of their employment and N.D.C.C. § 28-01-22.1 applies only to state employees “acting within the scope of •their employment,” we concluded the three-year statute of limitations in N.D.C.C. § 28-01-22.1 did not apply to the plaintiffs claim against the defendants in their personal capacities. Burr II, at ¶¶ 10-12.

[¶ 10] In O’Fallon, 427 N.W.2d at 810-11, we considered whether a two-year statute of limitations for assault, battery, and false imprisonment actions, or a three-year statute of limitations for actions against political subdivisions applied to an assault, battery, and false imprisonment action against officers of a political subdivision. We concluded:

It would stand the legislative intent on its head to conclude that the enactment of the three-year statute of limitation under Section 32-12.1-10, N.D.C.C., was intended to extend the time in which actions could be brought against a political subdivision although a shorter statute of limitation applied to other defendants. Section 32-12.1-10, N.D.C.C., specifies the maximum time in which an action may be brought against a political subdivision. It does not apply where a more restrictive statute of limitation is applicable.
Thus, we conclude, as did the trial court, that the two-year statute of limitation, under Section 28-01-18(1), N.D.C.C., which specifically applies to assault and false-imprisonment actions, constitutes the applicable statute of limitation in this case. That specific two-year statute-of-limitation provision, which falls within the three-year parameter for bringing actions against political subdivisions or sheriffs and constables under Section 32-12.1-10, N.D.C.C., and Section 28-01-17(1), N.D.C.C., respectively, must prevail.

O’Fallon, at 811.

[¶ 11] In Olson, 488 N.W.2d at 387, a personal injury claimant sued the University of North Dakota, arguing the general six-year statute of limitations in N.D.C.C. § 28-01-16 applied to her negligence action. We concluded the plaintiffs action was governed by the specific three-year statute of limitations for actions against political subdivisions in N.D.C.C. § 32-12.1-10, because the obvious purpose of N.D.C.C. ch. 32-12.1 was to limit political subdivisions exposure to potential liability and a reduced three-year limitation period furthered that purpose. Olson, at 390-91.

[¶ 12] Our decisions in Olson, O’Fallon, Burr I, and Burr II stand for the proposition that breach of contract actions against the State are governed by the specific three-year statute of limitations for actions against the State in N.D.C.C. § 28-01-22.1, rather than the general six-year period for an action upon a contract in N.D.C.C. § 28-01-16(1). When N.D.C.C. § 28-01-22.1 and N.D.C.C. § 28-01-16(1) are construed together to give meaning to each, we construe the specific language of N.D.C.C. § 28-01-22.1 for actions against the State, rather than the general language of N.D.C.C. § 28-01-16(1) for actions upon a contract, to apply to contract actions against the State and to require those actions to be commenced within three years after the claim for relief accrued.

[¶ 13] Here, Dimond commenced this breach of contract action against the Board in May 2000. Assuming Dimond’s cause of action accrued at the latest possible date, in May 1996 when the Board adopted the administrative law judge’s recommendation to uphold his dismissal, his May 2000 action was not commenced within the three-year statute of limitations in N.D.C.C. § 28-01-22.1. Dimond nevertheless suggests several arguments to support his claim the May 2000 action is timely under N.D.C.C. § 28-01-22.1.

[¶ 14] Dimond first argues his May 2000 complaint relates back to his August 1997 complaint because the May 2000 complaint is properly considered a supplemental pleading under N.D.R.Civ.P. 16(d).

[¶ 15] Under N.D.R.Civ.P. 15(d), the court, upon motion of a party, may permit the party to serve a supplemental pleading setting forth events that have happened since the date of the pleading sought to be supplemented. See 3 James W. Moore, et al, Moore’s Federal Practice ¶ 15.30 (3rd Ed.2001); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure Civil 2nd § 1504 (1990). A supplemental pleading is considered an addition to or continuation of the earlier pleading and requires leave of the court. See 3 Moore’s Federal Practice at ¶ 15.30; 6A Wright, Miller & Kane, at § 1504.

[¶ 16] Rule 15, N.D.R.CivJP., is adopted from Fed.R.Civ.P. 15, and interpretations of the corresponding federal rule by federal courts are highly persuasive in interpreting our rule. Wayne-Juntunen Fertilizer Co. v. Lassonde, 456 N.W.2d 519, 525 (N.D.1990). Under Fed. R.Civ.P. 15(d), federal courts have held that defects in a plaintiffs case, even jurisdictional defects, can be cured while the case is pending if the plaintiff obtains leave to file a supplemental pleading reciting post-filing events that have remedied the defect. See Mathews v. Diaz, 426 U.S. 67, 75, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Black v. Secretary of Health and Human Servs., 93 F.3d 781, 790 (Fed.Cir.1996).

[¶ 17] Here, Dimond’s first action was dismissed without prejudice because he failed to comply with the jurisdictional requirement for bringing a breach of contract action against the State. See Dimond, 1999 ND 228, ¶ 20, 603 N.W.2d 66. Dimond then satisfied that jurisdictional requirement, and he brought this second action against the Board. In response to the Board’s motion for summary judgment, Dimond argued the six-year statute of limitations in N.D.C.C. § 28-01-16(1) applied to his breach of contract action against the Board, and he did not argue his second complaint was a supplemental pleading. Dimond first suggested his second complaint could be considered a supplemental pleading in his motion for reconsideration of the trial court’s determination that his action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1. When Dimond made that suggestion in his motion for reconsideration, his August 1997 action was not pending so as to support a motion to file a supplemental pleading, and he did not move to file a supplemental pleading. Under these circumstances, we conclude the trial court did not abuse its discretion in rejecting Dimond’s belated suggestion to consider his May 2000 complaint a supplemental pleading under N.D.R.Civ.P. 15(d). See Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 12, 609 N.W.2d 90 (concluding trial court did not abuse discretion in denying motion for reconsideration of summary judgment in which party made untimely submission of additional evidence to support claim action not barred by statute of limitations).

[¶ 18] Dimond argues his May 2000 complaint is not barred by N.D.C.C. § 28-01-22.1, because the parties agreed to consolidate the May 2000 action with the August 1997 action. The record reflects, however, the parties agreed to consolidate the two actions only for the purpose of using the administrative record filed in the first action in lieu of affidavits in the motion for summary judgment in the second action. We agree with the trial court’s conclusion that the parties’ agreement to consolidate the two actions for this limited purpose did not revive Dimond’s August 1997 complaint for purposes of the statute of limitations.

[¶ 19] Dimond argues the time from when the original complaint was filed until this Court’s decision in Dimond, 1999 ND 228, 603 N.W.2d 66, should not be included in the running of the statute of limitations. Dimond claims “when an original Complaint is filed in a timely matter, and then is subsequently dismissed without prejudice almost two and one-half years later by the North Dakota Supreme Court, that time should not be included in the running of the statute of limitations.” Dimond also argues the time for commencing this action is extended under N.D.C.C. § 28-01-28, which provides “[i]f an action is commenced within the time prescribed therefor and the judgment therein is reversed on appeal, the plaintiff ... may commence a new action within one year after the reversal.” Dimond did not raise these issues in the trial court in response to the Board’s motion for summary judgment or in his motion for reconsideration, and he is precluded from raising these assertions for the first time on appeal. See Robert v. Aircraft Inv. Co. Inc., 1998 ND 62, ¶ 14, 575 N.W.2d 672.

[¶ 20] We conclude Dimond’s action is barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and we affirm the summary judgment.

[¶ 21] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and WILLIAM F. HODNY, S.J., concur.

[¶ 22] The Honorable WILLIAM F. HODNY, S. J., sitting in place of KAPSNER, J., disqualified.

      . Section 28-01-16, N.D.C.C., provides, in part
      The following actions must be commenced within six years after the claim for relief has accrued:
      1. An action upon a contract, obligation, or liability, express or implied, subject to the provisions of sections 28-01-15 and 41-02-104.

      . Because we conclude Dimond’s action is barred by the three-year statute of limitations even if it accrued at the latest possible date after he exhausted his administrative remedies in May 1996, we need not address his argument that the statute of limitations did not begin to run until he exhausted his administrative remedies.

      . Because we conclude Dimond's action is barred by the statute of limitations, we need not address his argument that the trial court erred in deciding, as a matter of law, there was adequate cause for his dismissal.