author: MARING, Justice. NEUMANN, Justice,

text:
    2002 ND 162
    Larry KIMBALL, Jr., Plaintiff and Appellant, v. Jack LANDEIS and Justin Gram, Defendants and Appellees.
    No. 20020100.
    Supreme Court of North Dakota.
    Oct. 15, 2002.
    Rehearing Denied Nov. 5, 2002.

      Thomas V. Omdahl, Grand Forks, N.D., for plaintiff and appellant.
    Howard D. Swanson, Letnes, Marshall, Swanson & Warcup, Ltd., Grand Forks, N.D., for defendant and appellee Jack Landeis.
    Jay H. Fiedler, Pearson Christensen, Grand Forks, N.D., for defendant and ap-pellee Justin Gram.
   MARING, Justice.

[¶ 1] Larry Kimball, Jr., appealed from a summary judgment dismissing his negligence claims against Justin Gram and Jack Landeis. We conclude Kimball’s claim against Landeis is barred by the statute of limitations, but Kimball has raised a genuine issue of material fact in his claim against Gram. We affirm in part, reverse in part, and remand.

I

[¶ 2] On February 17, 1995, Kimball and Landeis were seriously injured when snowmobiles they were operating were involved in a head-on collision. The accident occurred in a ditch adjacent to a county road near Grand Forks. Kimball and Landeis both suffered closed head injuries, and they have no recollection of the accident. Gram was the only other person present at the accident. According to Gram, he and Landeis were traveling east on their snowmobiles in the ditch on the north side of the road shortly after 1 a.m. when Gram saw headlights of another snowmobile, which turned out to be Kim-ball, approaching in the ditch from the east. According to Gram, when he saw Kimball’s approaching snowmobile, he pulled up on the slope of the ditch near the shoulder of the road. According to Gram, Kimball’s snowmobile and Landeis’s snowmobile collided head-on to Gram’s left. In June 1995, Landeis’s mother, Gayle Lan-deis, was appointed as guardian for him, and she has continuously served as his guardian since then.

[¶ 3] In February 2001, Kimball individually served Gram and Jack Landeis with a summons and complaint, alleging they negligently caused his injuries. Jack Landeis answered, claiming insufficient service of process and denying liability. Landeis also cross-claimed against Gram and counterclaimed against Kimball. Lan-deis’s answer, cross-claim, and counterclaim did not refer to the guardianship. In July 2001, however, Landeis’s cross-claim and counterclaim were dismissed by a stipulation of the parties, and that stipulation stated Landeis was acting through his guardian. This record also includes a separate February 12, 2001 complaint by Landeis, acting through his guardian, against Kimball and Gram, but the record does not reflect when, or if, that complaint was served on Kimball. In November 2001, Landeis moved to dismiss Kimball’s action, claiming insufficient service of process because Kimball had not served Lan-deis’s guardian. Gram also moved for summary judgment, claiming Kimball had failed to provide any evidence that Gram caused Kimball’s injuries.

[¶ 4] The trial court treated Landeis’s motion to dismiss as a motion to quash service, and the court quashed the service on Landeis. The court also granted Gram’s motion for summary judgment, concluding Kimball had failed to provide any competent evidence that Gram had any legal duty to protect Kimball from his injuries, or that Gram’s conduct in any way contributed to Khnball’s injuries. On January 24, 2002, Kimball personally served the summons and complaint on Landeis’s guardian. Landeis then moved for summary judgment, asserting . Kim-ball’s claim against him was barred by the statute of limitations. The court granted Landeis’s motion for summary judgment, and Kimball appealed.

rf

[¶ 5] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a 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 reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. E.g. Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 17, 606 N.W.2d 908. In Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991) (citations omitted), we outlined the duty of a party opposing a motion for summary judgment:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial. Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241. When no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Van Valkenburg, at ¶ 27.

Ill

[¶ 6] Kimball argues the trial court erred in granting summary judgment on his negligence claim against Gram. The trial court decided Kimball had failed to provide any competent and admissible evidence that Gram had any legal duty to protect Kimball from his injuries, or that Gram’s conduct in any way contributed to Kimball’s injuries. Kimball argues he provided sufficient evidence to raise a genuine issue of material fact that Gram negligently operated his snowmobile on February 17, 1995, and that Gram’s negligence caused the accident. Kimball argues Gram had a duty to puh over earlier, or to warn Landeis about the danger, and Gram did neither, which resulted in insufficient time for Kimball and Landeis to see each other and avoid the collision.

[¶ 7] Actionable negligence consists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996). For negligence actions, an actor has a duty to exercise reasonable care under the circumstances. Doan ex rel. Doan v. City of Bismarck, 2001 ND 152, ¶ 25, 632 N.W.2d 815. A proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred. Jones v. Ahlberg, 489 N.W.2d 576, 581 (N.D.1992). The negligence of two or more persons may contribute concurrently as the proximate cause of an injury, and to be a proximate cause of an injury, a person’s conduct need not be the last cause nor the sole cause of an injury. Id. To warrant a finding that a person’s conduct is the proximate cause of an injury, the injury must be the natural and probable result of the conduct and must have been foreseen or reasonably anticipated by that person as a probable result of the conduct. Id. at 581-82. Proximate cause is generally a question of fact. Moszer v. Witt, 2001 ND 30, ¶ 13, 622 N.W.2d 223. Although negligence actions ordinarily involve questions of fact and generally are not appropriate for summary judgment, issues of fact may become questions of law if reasonable persons could reach only one conclusion from the facts. Diegel, at 370.

[¶ 8] We initially consider the evidence presented in Gram’s motion for summary judgment. Kimball’s complaint alleged

III. Gram was carelessly, recklessly, and negligently traveling the wrong way when prior to meeting Larry, he braked and pulled over to the right side to allow Larry to go by, however, because of Justin “kicking up” snow, Larry’s and Jack’s visions were obstructed thereby preventing Larry from seeing Jack and Jack from seeing Larry.

[¶ 9] In support of his motion for summary judgment, Gram submitted answers to interrogatories by Kimball and Landeis in which they both stated they had no recollection of the accident. Gram also submitted his affidavit, which described the accident

6.As Jack Landeis and I were riding side by side in the ditch, we saw another snowmobile approaching from the east. We were going about 40 mph. I could see the approaching snowmobile from a long ways off. When I saw the other snowmobile approaching, I immediately slowed and pulled upon [sic] the side slope of the ditch. In fact, I went up onto the shoulder of the road so that one ski was on the shoulder and one ski on the slide [sic] slope of the ditch. At the same time, Jack Landeis slowed his snowmobile. The reason that I moved all the way to the top of the ditch was because there were 3 snowmobiles in it and I wanted to give the other two drivers as much room as I could. I recall the conditions that night and know that nothing I did obscured anyone’s vision. I moved up on [sic] to the shoulder of the road in plenty of time. It was a routine maneuver. My snowmobile was not creating any kind of “snow fog” or the like. I moved up the slope of the ditch and onto the shoulder of the road well before the accident. There was plenty of room in the ditch for the Plaintiff and Jack Landeis to pass by one another. I have attached copies of two photographs of the accident scene. While I did not take the photographs, I have examined them and they accurately illustrate the condition of the ditch at the time of the accident.
7. I did not actually see the collision. I looked down at the ditch a moment after it happened. The collision between the other two snowmobiles occurred to my left. I am aware that Jack Landeis slowed down from his original speed of about 40-50 mph but do not know how fast Plaintiff was going. At the time of the accident, Plaintiff was driving a Polaris 600XCR snowmobile. It is an aggressive, fast sled.
8. Jack Landeis was an experienced snowmobile rider. Plaintiff had begun riding snowmobiles about 2 years before the accident.
9. I have reviewed the description of the accident contained in paragraph 3 of Plaintiffs Complaint. It is inaccurate and it does not correctly describe how the accident occurred. My snowmobile was not “kicking up” snow. There was nothing that would have obstructed the vision of either the Plaintiff or Jack Landeis. In fact, I was never driving ahead of Jack Landeis; until I slowed and pulled up onto the shoulder of the road, Jack Landeis and I were driving side by side.

[¶ 10] In response to Gram’s motion for summary judgment, Kimball submitted an unsworn statement by Gram to Joe Whalen on April 6, 1995; an unsworn statement by Deputy Kelly McLean of the Grand Forks Sheriffs Department to A1 Kuhn; an affidavit of Kimball’s father; excerpts from Gram’s deposition; and an excerpt from North Dakota All Terrain Vehicle & Snowmobile Laws as revised in November 1994 by the North Dakota Parks and Recreation Department.

[¶ 11] At the hearing on the motion for summary judgment, Gram submitted an excerpt from Kimball’s deposition; Kim-ball’s answers to interrogatories; and Kimball’s answers to requests for production of documents which stated “none” in response to Gram’s request for “[a]ny and all statements relating to claims, defenses and damages in the above-entitled matter, whether given or taken by parties or non-parties.”

[¶ 12] In Stewart v. Ryan, 520 N.W.2d 39, 43-44 (N.D.1994), this Court considered the use of an unsworn statement in the context of a motion for summary judgment. This Court said trial courts generally may consider only materials which would be admissible at trial and unsworn, uncertified or otherwise inadmissible documents may be considered in a motion for summary judgment only if no timely objection is made. Id. at 43. In Stewart, at 44, this Court held an unsworn statement, which was objected to, was not an affidavit and did not qualify as other comparable means for raising a disputed factual issue.

[¶ 13] Here, Gram objected to the unsworn statements by Gram to Whalen and by Deputy McLean to Kuhn. The trial court said it relied on competent and admissible evidence to decide Gram’s motion for summary judgment. We conclude the unsworn statements submitted by Kimball were not affidavits or other comparable means for purposes of raising a disputed factual issue. Although Gram also claims Kimball’s father’s affidavit should not be considered because Kimball did not disclose that statement during discovery, this record does not reflect that the trial court specifically ruled on that issue. In the absence of a specific ruling on that issue, we conclude Kimball’s father’s affidavit may be considered to determine whether there are any disputed issues of material fact. We therefore consider the affidavits of Kimball’s father and Gram and the excerpt from Gram’s deposition in deciding this issue.

[¶ 14] Kimball’s father’s affidavit stated that Gram told Kimball’s father “Jack [Landeis] and [Gram] were traveling east in the ditch and that Jack [Landeis] was behind [Gram]. [Gram] said Larry [Kim-ball] went by him and that by the time he stopped and turned around, the accident had happened. [Gram] said he did not see the accident.” Gram’s affidavit and deposition indicates visibility was clear on the night of the accident and he was not aware of any condition that reduced the visibility. Gram stated he, Landeis, and Kimball had all activated the headlights on their snowmobiles. According to Gram, he and Lan-deis were driving their snowmobiles side by side between 40 and 50 miles per hour when Gram saw an approaching snowmobile from a “long ways off.” In his deposition, Gram stated he saw Kimball’s snowmobile about “a half mile off, or roughly several hundred yards.” Gram stated he immediately slowed down to approximately 30 miles per hour and pulled up on the side slope of the ditch. Gram stated he “did not actually see the collision,” but he “looked down at the ditch a moment after it happened [and][t]he collision between the two other snowmobiles occurred to [his] left.” An exhibit attached to Gram’s deposition reflected the accident occurred immediately to Gram’s left.

[¶ 15] Gram and Landeis were driving their snowmobiles the wrong way in the ditch. See N.D.C.C. § 39-24-09(7). The violation of a statutory duty is evidence of negligence and not negligence per se. Ebach v. Ralston, 510 N.W.2d 604, 611 (N.D.1994). Gram’s violation of that statutory duty is not necessarily disposi-tive of Kimball’s negligence claim, because actionable negligence requires an injury proximately caused by the breach of a duty. Diegel, 546 N.W.2d at 370. Kim-ball’s father’s affidavit and Gram’s affidavit and deposition raise a disputed issue of fact about whether Landeis and Gram were operating their snowmobiles side-by-side, or whether Gram was operating his snowmobile in front of Landeis. Moreover, although Gram stated he saw an approaching snowmobile from “a half mile off, or roughly several hundred yards,” or a “long ways off’ and he immediately slowed down to approximately 30 miles per hour and pulled up on the side slope of the ditch, Gram also stated he did not actually see the collision, but he looked down at the ditch a moment after the accident happened and the collision occurred immediately to his left. In our view, if Gram was operating his snowmobile in front of Lan-deis, Gram’s description of the location of the collision supports a permissible inference the accident happened momentarily after Gram “pulled up onto the side slope of the ditch,” which in turn supports an inference that, despite seeing an approaching snowmobile from “a half mile off’ or a “long ways off,” Gram pulled up onto the side of the ditch at the last minute precluding Landeis and Kimball from seeing each other and avoiding the collision. The disputed facts and Gram’s description of where the accident occurred support a permissible inference that Gram failed to exercise reasonable care in operating his snowmobile and that the accident was the natural and probable result of his conduct. We agree with Gram that “[m]ere speculation will not defeat a motion for summary judgment.” Ellingson v. Knudson, 498 N.W.2d 814, 818 (N.D.1993). In our view, however, reasonable persons could reach different conclusions from the facts and permissible inferences in this case. We therefore conclude the trial court erred in granting summary judgment for Gram.

IV

[¶ 16] Kimball argues the trial court erred in granting summary judgment for Landeis on the ground that Kimball’s claim against Landeis was barred by the statute of limitations.

[¶ 17] Kimball concedes the statute of limitations for his claim against Landeis is six years. See N.D.C.C. § 28-01-16; Lang v. Barrios, 472 N.W.2d 464, 466 (N.D.1991). The accident happened on February 17, 1995, and Kimball had six years from then to commence an action against Landeis. See Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D.1990) (stating when there is a perceptible personal injury caused by an accident, the statute of limitations starts to run at the time of the injury). Under N.D.R.Civ.P. 3, a civil action is commenced by the service of a summons. Under N.D.R.Civ.P. 4(d)(2)(C), personal service upon an individual for whom a guardian has been appointed is accomplished by serving the individual’s guardian.

[¶ 18] Kimball personally served the summons and complaint on Landeis on February 6, 2001, but Kimball did not serve Landeis’s guardian then. This record reflects Landeis, through counsel but without his guardian, prepared an answer dated February 16, 2001, and a cross-claim and counterclaim dated February 17, 2001. The record also includes an affidavit of mailing stating Landeis’s answer, cross-claim, and counterclaim were mailed to Kimball on February 17, 2001. Landeis’s answer raised insufficient service of process under N.D.R.Civ.P. 12. In November 2001, Landeis moved to dismiss the action, claiming Kimball had not properly served him under N.D.R.Civ.P. 4(d)(2)(C). On January 7, 2002 the trial court quashed the service on Landeis because his guardian was not served in compliance with N.D.R.Civ.P. 4. On January 24, 2002, Kim-ball personally served the summons and complaint on Landeis’s guardian. Landeis then moved for summary judgment, and the trial court granted Landeis’s motion, concluding Kimball’s action was barred by the statute of limitations.

A

[¶ 19] Kimball argues his improper service was cured because Landeis had actual notice of the complaint and made a general appearance in the action.

[¶ 20] This Court has said that absent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant. Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D.1996). Under our rules of procedure, a special appearance is no longer necessary to contest personal jurisdiction if the lack of jurisdiction is raised in a defendant’s answer. Moon v. Moon, 499 N.W.2d 597, 600-01 (N.D.1993) (stating civil rules no longer require special appearances and effectively overruling Petition of Village Bd. of Wheatland, 77 N.D. 194, 42 N.W.2d 321 (1950)). Under those authorities, we conclude Landeis properly preserved the issue of improper service of process in his answer, and in the absence of valid service of process on his guardian, actual knowledge of Kimball’s action did not confer personal jurisdiction over Landeis until his guardian was served.

B

[¶ 21] Relying in part on N.D.C.C. § 28-01-38, Kimball argues Lan-deis’s codefendant, Gram, was properly served within the limitations period, which, coupled with Landeis’s actual notice of the action, precludes summary judgment dismissal of Kimball’s claim against Landeis.

[¶ 22] Kimball did not raise an issue about N.D.C.C. § 28-01-38 in the trial court and is precluded from raising it for the first time on appeal. Estate of Peterson, 1997 ND 48, ¶ 34, 561 N.W.2d 618. Moreover, N.D.C.C. § 28-01-38, provides that an action is commenced as to each defendant when the summons is served on that defendant, or on a code-fendant who is a joint contractor or otherwise united in interest with that defendant. In Gessner v. City of Minot, 1998 ND 157, ¶ 10, 583 N.W.2d 90, we concluded two parties were united in interest when they were in such relation to each other with regard to the subject matter of the plaintiffs action that they would necessarily stand or fall together, a judgment against one would necessarily result in liability upon the other, and neither could reasonably raise a defense which was unavailable to the other. Kimball has not alleged any facts that demonstrate Landeis and Gram were united in interest within the meaning of N.D.C.C. § 28-01-38, and that statutory definition of when an action is commenced does not preclude summary judgment for Landeis.

C

[¶ 23] Kimball also argues the trial court erred in failing to apply the doctrine of equitable tolling. The trial court concluded equitable tolling did not apply because Kimball failed to establish reasonable and good faith conduct on his part.

[¶ 24] This Court has never adopted the doctrine of equitable tolling. See Reid v. Cuprum SA, de C. U., 2000 ND 108, ¶¶ 1, 16, 611 N.W.2d 187; Braaten v. Deere & Co., 1997 ND 202, ¶¶ 12, 19, 569 N.W.2d 563; Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 910 (N.D.1992). In Reid, at ¶ 10, Braaten, at ¶ 14, and Burr, at 910, we cited Addison v. State, 21 Cal.3d 313, 146 Cal.Rptr. 224, 578 P.2d 941, 943-44 (1978), for the California formulation for equitable tolling, which requires a plaintiff to satisfy three criteria for application of the doctrine: 1) timely notice, 2) lack of prejudice to the defendant, and 3) reasonable and good-faith conduct by the plaintiff.

[¶ 25] In Reid, 2000 ND 108, ¶ 15, 611 N.W.2d 187, we said “Addison and subsequent California decisions have said the equitable tolling doctrine operates to protect the claim of a plaintiff who has several legal remedies and, reasonably and in good faith, pursues one of the remedies thereby tolling the limitation for the other remedies.” We said the plaintiffs’ failure to commence their action against the defendant, a foreign corporation with no registered agent in North Dakota and principal place of business in Mexico, within the statute of limitations was not the result of their timely pursuit of one of several other available legal remedies which may have tolled the statute of limitations for that action. Id. at ¶ 16. Rather, we concluded the plaintiffs’ failure to commence their action within the statute of limitations resulted from their failure to effectuate timely service of process on the defendant in Mexico. Id. We concluded the plaintiffs’ failure was the result of their imprudent legal practice, and their conduct was not reasonable. Id.

[¶ 26] In Braaten, 1997 ND 202, ¶¶ 19-20, 569 N.W.2d 563, we concluded the trial court did not abuse its discretion in refusing to apply the doctrine of equitable tolling, because the plaintiff failed to establish reasonable and good-faith conduct for equitable tolling. We said the plaintiff did not act in good faith in initially claiming federal diversity jurisdiction and filing the action in federal court, because there was no arguable issue of federal jurisdiction under federal law and the plaintiffs imprudent legal practice was not reasonable conduct which would invoke equitable tolling. Id. at ¶ 16. We said the plaintiff should have been aware of severe jurisdictional problems when the defendants moved to dismiss the federal action for lack of jurisdiction, and, instead of trying to protect the lawsuit by immediately filing a state claim, the plaintiff waited over a month for certain dismissal of the federal action. Id. at ¶ 18.

[¶ 27] In Burr, 492 N.W.2d at 910-911, the plaintiff initially sued both government and medical defendants in federal court. After the plaintiff settled with the government defendants, the medical defendants moved to dismiss the federal action, claiming the federal court lacked diversity jurisdiction and pendent party jurisdiction. Id. The federal court dismissed the claim against the medical defendants without prejudice, and three months later, the plaintiff sued the medical defendants in state court. Id. This Court affirmed the dismissal of the action as time barred, concluding the plaintiffs failure to commence their action in a timely manner was not reasonable and disclosed a lack of diligence. Id.

[¶ 28] Kimball claims he was not aware Landeis had a guardian and had no reason to believe Landeis was not competent. He claims he acted reasonably and in good faith when he served Landeis personally and did not serve the guardian until after the expiration of the statute of limitations.

[¶ 29] Statutes of limitation protect important interests of certainty, accuracy, and repose, and equitable tolling is an exception to a statute of limitations, which should be used only in exceptional circumstances. Motley v. United States, 295 F.3d 820, 824 (8th Cir.2002). A party who claims the benefit of an exception to a statute of limitations bears the burden of showing the exception. Id.

[¶ 30] Here, as in Reid, 2000 ND 108, ¶ 16, 611 N.W.2d 187, Kimball’s failure to commence his action by serving Landeis’s guardian within the statute of limitations was not the result of his timely pursuit of one of several other available legal remedies which may have tolled the statute of limitations for this claim. Rather, Kim-ball’s failure to commence his action against Landeis resulted from his failure to effectuate timely service of process on Landeis’s guardian. According to Kimball, he and Landeis were “best friends.” Although Kimball claims Landeis is not incompetent, Kimball admits that, as a result of the accident, Landies cannot speak, he has some difficulty walking, and he gets meals on wheels. Landeis’s guardianship is a matter of public record, and Kimball has not demonstrated the guardianship could not have been ascertained by a timely diligent inquiry. See Motley, 295 F.3d at 824 quoting Gonzalez v. United States, 284 F.3d 281, 291 (1st Cir.2002) (involving determination of status of defendants as federal employees for purposes of Federal Tort Claims Act). Landeis was not obligated to inform Kimball of the guardianship before the expiration of the statute of limitations, and nothing in this record suggests Landeis or his guardian failed to comply with any legal requirements regarding the guardianship. See generally N.D.C.C. ch. 30.1-28 (Guardians of Incapacitated Persons).

[¶ 31] Landeis’s February 16, 2001 answer should have reflected the guardianship status, and we do not condone that failure. The order appointing Gayle Lan-deis as Jack Landeis’s guardian gave her “full” guardianship over legal matters. Under the official comments to N.D.R.Prof. Conduct 1.14

where a legal representative has been appointed to act in behalf of the client, it should be kept in mind that the powers and duties of such representative vary depending upon the nature and extent of the client’s disability. The lawyer in the course of representing the client should be cognizant of the powers and duties conferred upon the client’s legal representative by the appointing authority as such enumeration of powers and duties will delineate what types of decisions the client may or may not make with regard to the client’s own care and well-being, or concerning management of the client’s property.

This record, however, reflects an affidavit of mailing of Landeis’s answer by counsel for Landeis on February 17, 2001, which was the day the statute of limitations expired. Under these circumstances, Lan-deis’s failure to identify the guardianship in his answer could not have affected Kim-ball’s failure to timely serve Landeis’s guardian.

[¶ 32] Moreover, this record also includes a separate complaint, dated February 12, 2001, by Laqdeis, through his guardian, against Gram and Kimball regarding the same accident, but this record does not reflect when, or if, that complaint was served on Kimball. The record is not clear about when Kimball actually learned about the guardianship. Landeis’s answer alleged insufficient service of process and raised a potential problem about service of process. The record reflects Kimball had actual knowledge of the guardianship at least by June 14, 2001, when his counsel stipulated to dismiss Landeis’s cross-claim and counterclaim in a stipulation that stated counsel for Landeis was acting for Lan-deis individually and for Gayle Landeis as his legal guardian. Despite that documentation in June 2001 and Landeis’s earlier answer, Kimball took no steps to serve Landeis’s guardian until January 24, 2002, after the trial court quashed service of the summons on Landeis. Kimball’s failure to demonstrate Landeis’s status could not have been ascertained by diligent inquiry, and his belated effort to serve Landeis’s guardian is not indicative of reasonable and good faith action.

[¶ 33] On this record, we conclude Kimball failed to establish reasonable and good faith action which would entitle him to equitable tolling. Under these circumstances, we conclude even if we were to adopt the doctrine of equitable tolling, Kimball has not met the requirements for application of the doctrine.

V

[¶ 34] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

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

NEUMANN, Justice,

dissenting.

[¶ 36] I respectfully disagree with the majority. On the record presented to the trial court, I would affirm the grant of summary judgment. I do not agree reasonable persons could reach different conclusions as to the possibility that Gram’s actions caused the collision between Kim-ball and Landeis.

[¶ 37] WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ, concur.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2002 ND 164
    In the Interest of K.S. and A.S., Minor Children. L.J. Bernhardt, Petitioner and Appellee v. K.S., a child, A.S., a child, the Executive Director of the North Dakota Department of Human Services, Respondents, T.S., their mother, Respondent and Appellant, K.S., Sr., their father, Respondent and Appellee.
    No. 20010315.
    Supreme Court of North Dakota.
    Oct. 15, 2002.

      Owen K. Mehrer, Assistant State’s Attorney, Dickinson, N.D., for petitioner and appellee.
    Gary D. Ramsey, Greenwood & Ramsey, PLLP, Dickinson, N.D., for respondent and appellant.
    Sandra K. Kuntz, Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] T.S. (“Tammy”) appealed from an order terminating her parental rights to her children, K.S. (“Ken”) and A.S. (“Allen”). We hold there is clear and convincing evidence the children are deprived, the causes and conditions of the deprivation are likely to continue, and, as a result of the continued deprivation, the children will probably suffer serious physical, mental, or emotional harm if Tammy’s parental rights are not terminated. We affirm.

I

[¶ 2] K.S., Sr., (“Kip”) is from Dickinson. He moved to Flagstaff, Arizona, met Tammy, and married her on July 18,1997. While living in Arizona they together had Ken, who was born in 1997, and Allen, who was born in 1998. Shortly after Allen’s birth the family moved to Dickinson.

[¶ 3] Since 1999, Stark County Social Sendees has received numerous abuse and neglect complaints against Tammy and Kip. Tammy admits she is an alcoholic who has also used methamphetamines, cocaine, and marijuana. She testified that Kip also abused drugs and alcohol and that he was physically, verbally, and emotionally abusive of her and would beat her in front of the children. Tammy testified she has had a drinking problem since 1998. She admits that twice a month she would drink until she passed out and that in the year 2000 she started drinking daily. Tammy testified that during the summer of 1999 she met a male neighbor and, after Kip moved out of the parties’ home, Tammy and the neighbor began a relationship and lived together between February 2000 and March 2001. Tammy and Kip were divorced in May 2000. Tammy testified she and her new male companion abused alcohol and together would drink heavily and often.

[¶ 4] Ken and Allen were removed from Tammy’s custody on October 26, 2000, when Tammy was found intoxicated and unconscious, lying on the floor of her home, while the children were in another room with the door closed. Since that time the boys have been in foster care. A petition alleging the children were deprived was filed, and a hearing was held on November 27, 2000. Kip failed to appear or contest the petition. Tammy conceded the children were deprived and surrendered custody of them to social services personnel.

[¶ 5] After many failed attempts to rehabilitate Tammy, the director of Stark County Social Services filed a petition on July 26, 2001, to terminate Kip and Tammy’s parental rights to the children. When the termination hearing began in October 2001, Kip was 31 years old and Tammy was 25 years old. Kip did not contest the petition to terminate his parental rights but, through an attorney, appeared at the hearing to support the termination of his and Tammy’s parental rights so the children could be placed in an appropriate adoptive home. Tammy contested the petition. After a hearing, the juvenile court granted the petition, terminated Kip and Tammy’s parental rights, and transferred custody of the children to the Executive Director of the North Dakota Department of Human Services for adoption placement. Tammy appealed.

II

[¶ 6] Under N.D.C.C. § 27-20-44(l)(b)(l) a juvenile court may terminate parental rights if: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm. The party seeking parental termination must prove all elements by clear and convincing evidence. In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412. On appeal, we review the juvenile court’s decision and examine the evidence in a manner similar to a trial de novo. Id. We review the files, records, and transcript of the evidence in the juvenile court, and although we are not bound by the findings of the juvenile court, we give those findings appreciable weight and give deference to the juvenile court’s decision, because that court had an opportunity to observe the candor and demeanor of the witnesses. Id.

A. Deprivation

[¶ 7] To terminate parental rights the court must first find the child is a deprived child. In re T.K., 2001 ND 127, ¶ 2, 630 N.W.2d 38. A deprived child is statutorily defined under N.D.C.C. § 27-20-02(8)(a), as one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” At the November 2000 deprivation hearing, Tammy conceded the children were deprived and voluntarily surrendered their temporary care to social services personnel.

[¶ 8] At the termination hearing, commencing October 11, 2001, the juvenile court received into evidence and took judicial notice of the court’s November 28, 2000 findings of fact, conclusions of law, and order of disposition, wherein the court found the children were deprived and temporarily removed custody of the children from their parents. After the termination hearing, the juvenile court made the following written finding:

[T]he factual basis for the adjudication that the children were deprived is set forth in paragraphs 111(a) through (i) of the Findings of Fact, Conclusions of Law and Order of Disposition dated November 28, 2000, (Petitioner’s Exhibit # 3) and the Court finds these allegations to be true and not contested in this proceeding.

[¶ 9] An order finding a child deprived and temporarily transferring custody of the child is not res judicata for purposes of determining whether the child is a deprived child in proceedings to terminate parental rights. In Interest of R.H., 262 N.W.2d 719, 723 (N.D.1978). In parental termination proceedings, due process and notice requirements prohibit the juvenile court from taking judicial notice of testimony in proceedings where termination was not an issue; however, when the termination hearing is a culmination of prior proceedings, the court need not operate in a vacuum as to the results of those proceedings. In Interest of R.M.B., 402 N.W.2d 912, 917 (N.D.1987). Tammy did not expressly stipulate to a finding of deprivation for purposes of the termination hearing. Although a court can take judicial notice of its prior orders, the result of the November 2000 temporary custody proceeding, standing alone, is not sufficient to constitute clear and convincing evidence of deprivation for the purpose of terminating Kip and Tammy’s parental rights.

[¶ 10] After the termination hearing, the juvenile court also made written findings that:

[Kip] has admitted that he cannot provide proper care for the children ... and that his parental rights should be terminated ... the children are deprived because [Tammy] is unable to provide them with proper parental care necessary for their physical, mental, or emotional health and the deprivation is not due to the lack of financial means.

[¶ 11] In our de novo review of an order to terminate parental rights we only consider testimony and evidence introduced at the termination hearing for the resolution of the issues on appeal. See In Interest of M.R., 334 N.W.2d 848, 853 (N.D.1983). Error not affecting substantial rights of the parties must be disregarded. N.D.R.Civ.P. 61; Huesers v. Huesers, 1998 ND 54, ¶ 11, 574 N.W.2d 880. Nonprejudicial mistakes by the lower court constitute harmless error and are not grounds for reversal. Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 26, 643 N.W.2d 29; see also In re R.O., 2001 ND 137, ¶ 22, 631 N.W.2d 159 (any deficiency in lower court’s procedure in admitting testimony of addiction counselor did not affect the outcome of the case and was harmless error where the appellate court, after de novo review, concluded there was clear and convincing evidence supporting parental termination, without the addiction counselor’s testimony).

[¶ 12] Considerable evidence was introduced at the termination hearing to support the juvenile court’s finding that these boys are deprived children. Annie Pikarski is a foster parent for the boys, who were placed in her home on January 31, 2001. Pikarski has a “therapeutic foster home,” meaning that she is capable of providing therapy for special needs children. Pikarski has a degree in education with certification in special needs children and a master’s degree in education administration and leadership. She testified that when the boys entered her home it was obvious they had been emotionally, psychologically, and physically abused. They were not able to verbalize and they were terrified. She testified Ken came to her home at age three and one-half exhibiting a physical age of one and an emotional age of an infant. He had no bonding ability and did not trust anyone. He would self-mutilate himself at times and suffered from night terrors, where he would scream for hours. She testified Allen came into her home at an emotional level of an infant and that he looked like a malnourished child with “a swollen belly and he had nothing — his skin was just falling off his bones.” She testified the boys are extremely afraid of being left alone and will scream even if she only leaves momentarily to retrieve the mail. She testified the boys’ needs are so great and they are so difficult to handle that even a specially trained sitter will not return to care for them after one time.

[¶ 13] Dr. Diedra Duchock, a licensed clinical psychologist, evaluated the boys. She diagnosed both boys as suffering from post-traumatic stress disorder, which is a reaction from severe trauma with symptoms of irritability, lack of trust, nightmares, and avoidance of things that remind them of the past and the agent of the trauma. She testified the boys’ disorders are most likely the result of them having suffered in their home from violence, abuse, being locked in their rooms, and not being fed regularly. She testified their post-traumatic stress disorder is severe and that both boys most likely experienced ongoing trauma and neglect while in their home.

[¶ 14] Dr. Duchock testified that when Ken arrived he was a highly agitated boy who was extremely fearful and often glanced at her “like a frightened animal.” She said he suffered from significant emotional delay and was unable to play or verbalize. She said he most likely never had his needs consistently met in his parents’ home and was exposed to extreme danger, making him feel unsafe and in fear of his life. Dr. Duchock testified that Allen was also a very agitated boy who was emotionally at an infantile level and was emotionally very damaged and fearful. She concluded Allen’s developmental level was significantly retarded. Dr. Duchock recommended that the boys’ visits with Tammy be suspended because the children became so traumatized by the visits.

[¶ 15] After reviewing the record and considering only the testimony and evidence presented at the termination proceedings, we conclude there is clear and convincing evidence that Ken and Allen are deprived children.

B. Continuation of Deprivation

[¶ 16] The juvenile court found that the conditions and causes of the deprivation of these children are likely to continue. Tammy’s primary contention on appeal is that there is not clear and convincing evidence that the deprivation will continue.

[¶ 17] To determine whether the conditions and causes of the deprivation are likely to continue, evidence of past or present deprivation alone is insufficient to terminate parental rights, and there must be prognostic evidence that deprivation will continue or be unremedied. In Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573. We have defined prognostic evidence as evidence that forms the basis for a reasonable prediction as to future behavior. Id. Prognostic evidence must demonstrate the parent is presently unable to provide physical and emotional care for the child, with the aid of available social agencies if necessary, and that this inability to care for the child will continue for a sufficient time to render improbable the successful assimilation of the child into a family if that parent’s rights are not presently terminated. Id. at ¶ 17. A lack of parental cooperation is pertinent in determining whether deprivation will continue. In re T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38.

[¶ 18] Tammy testified she began drinking alcohol as a teenager, that she realized she had a serious drinking problem in 1998, and that she now realizes she is an alcoholic. However, Tammy has been unable or unwilling to complete necessary treatment programs to give her a realistic chance of overcoming her alcohol addiction so she can learn to adequately parent her children. Instead, Tammy has consistently chosen to establish relationships with males who exacerbate her drinking problem. According to Tammy, Kip was physically, verbally, and emotionally abusive to her. She testified that he caused her to drink excessively on a daily basis, often until she would pass out, and also to use illegal drugs. When Kip moved from the family home, Tammy almost immediately established a relationship with another male, who also drank heavily and contributed to her drinking problem. According to Tammy, that relationship lasted until March 2001, at .which time she met another male with whom she established a relationship in May 2001. They lived together in a house in Belfield, and during that time Tammy concedes she went on a three-week drinking binge. Tammy testified this latest boyfriend has been having “an ongoing fling” with another woman while in a relationship with Tammy. She also acknowledged that this boyfriend has been previously convicted for aggravated assault upon a woman, resulting in the victim receiving a broken nose and a fractured left eye socket. Tammy testified that in the past two years she has had nine different residences, including stays in motels for extended periods of time. At one point she became so despondent she attempted suicide and was taken to the State Hospital for treatment.

[¶ 19] Ellie Papineau is a licensed addiction counselor. She scheduled an intake interview with Tammy for alcohol and drug services on November 6, 2000, after the boys had been placed in foster care. Tammy came to that meeting intoxicated. Papineau recommended that Tammy go to an addiction treatment center at Minot for women and their children or a similar one in Williston, where patients can receive alcohol addiction treatment and parental training. Tammy responded that “she would rather leave her kids than leave Dickinson” and her boyfriend who lived there. Tammy returned to inquire about the Minot and Wihiston treatment programs and was given applications for them but she never made arrangements to attend either program.

[¶ 20] On several instances Tammy made brief attempts to begin day treatment alcohol addiction programs but failed to complete them. Tammy ultimately received a certificate on March 2, 2001, for completing a day treatment program at the Badlands Human Service Center, but she failed to follow .up her treatment with necessary counseling and group therapy. There is considerable record testimony that Tammy continued to abuse alcohol through the summer of 2001.

[¶ 21] Corinne Karlin is a licensed addiction counselor at the Badlands Human Service Center and has been Tammy’s case manager since August 1999. She testified that Tammy has not made significant progress with her alcohol addiction because of her failure to complete treatment programs and aftercare. After completing the day treatment program in March 2001, Tammy agreed to do individual aftercare sessions and co-dependency weekly group sessions, but she failed to do either. Kar-lin testified that Tammy’s prognosis for addiction recovery is very poor.

[¶ 22] Terry L. Welch was appointed guardian ad htem for the boys by the juvenile court. In his August 19, 2001 report he recommended Tammy and Kip’s parental rights be terminated, and stated:

Since [Tammy] became involved with the court in 2000; she has not made a good faith effort at sobriety. In addition, she has not tried to keep in contact with her children. Because of her drive to drink; [Tammy] continues to be unable dr unwilling to meet the emotional and physical needs of her children.

In addition to her admitted alcohol addiction, Tammy testified she has disabilities which prevent her from working, consisting of “spinal damage and brain damage and slight paralysis on my right-hand side.” Tammy testified she has had this disability for 11 years.

[¶ 23] We conclude the record in this case is replete with evidence showing clearly and convincingly that Ken and Allen’s deprivation will continue. Tammy’s history of alcohol and drug abuse with numerous failed attempts at controlling her addiction, together with evidence of Tammy’s failure to fully cooperate with social service workers to receive the necessary treatment and services for her to become a fit parent, demonstrate a very poor prognosis for Tammy’s ability to provide minimally adequate care for her boys. See, e.g., In re D.F.G., 1999 ND 216, ¶ 21, 602 N.W.2d 697. Long-term and intensive treatment for a parent is not mandated if it cannot be successfully taken soon enough to enable the children to be returned to the parental home without.causing severe dislocation from emotional attachments formed during long-term foster care. In re D.N., 2001 ND 71, ¶ 12, 624 N.W.2d 686. When there has been an extensive period in which efforts have been made to overcome a parent’s inabilities to effectively parent, the courts cannot allow the children to remain in an indeterminate status midway between foster care and the obvious need for permanent placement. Id. at ¶ 14. When the mental and physical health of a child are the concerns, it is not enough that a mother indicates a desire to improve. In re T.K., 2001 ND 127, ¶ 17, 630 N.W.2d 38. To terminate parental rights, a court need not await the happening of a tragic event. Id.

[¶ 24] Tammy has been given considerable time and numerous chances to cope with her addictions, to change her priorities, to improve her parenting abilities and to insure a safe home for her children. She has continuously failed to take advantage of the opportunities to change. We commend Tammy for having successfully completed a day treatment program for her alcohol addiction. Unfortunately, Tammy did not avail herself of the necessary aftercare sessions and counseling, and perhaps, in part, as a consequence of this failure, she has continued to abuse alcohol. By her own admission Tammy has not taken parenting classes or special educational classes. She has not otherwise significantly improved her living situation or parenting abilities to enable her to provide necessary care and affection to her boys on a consistent basis. The trial court specifically found that the conditions and causes of the boys’ deprivation are likely to continue or will not be remedied because Tammy “has not taken meaningful steps to address her alcoholism and to receive appropriate treatment, continues to be involved in unstable relationships with alcoholic and/or abusive men, continues to be unable to provide a stable and safe environment because of frequent changes in her residence, and continues not to cooperate and work with social services including social workers and other professionals in a meaningful way in order to receive the services she needs to meet the minimum needs of her children.” After carefully reviewing the record, we conclude there is clear and convincing evidence to support the trial court’s finding that the conditions and causes of Ken and Allen’s deprivation are likely to continue and will not be remedied.

C. Harm to the Children

[¶ 25] A showing of parental misconduct without a showing there is a resultant harm to the children is not sufficient in parental termination cases. In Interest of L.F., 1998 ND 129, ¶ 27, 580 N.W.2d 573. To terminate parental rights, the evidence must show that as a result of the continued deprivation the children are suffering or will in the future probably suffer physical, mental, moral, or emotional harm. In re D.R., 2001 ND 183, ¶ 18, 636 N.W.2d 412. The trial court found that as a result of the deprivation the boys have suffered and will continue to suffer physical, mental, or emotional harm and concluded “[t]he children are suffering from post traumatic stress disorder and without an appropriate level of care including a stable, consistent and nurturing environment they will not be able to live functional lives.” The record supports this finding.

[¶ 26] The boys’ foster mother, Annie Pikarski, after testifying about the boys’ malnourished condition, emotional fear and trauma exhibited by the boys, and developmental delays manifested by the boys when they entered her home, explained:

You have to take every single baby step with those children. You have to take them back to infancy and bring them to the age that they are at. They have progressed. It has been wonderful to see the progression, but they have so far to go.

[¶ 27] Dr. Duchock testified that these boys have been very emotionally damaged and have suffered significant retardation in development. She testified the boys need “a stable, consistent, nurturing environment ... therapy ... continuing speech and language services ... [and] medical attention.” Dr. Duchock testified that if the boys do not receive this type of care “they’ll be lost” and they will be unable to live functional lives. She testified that for at least two more years these boys are going to need “therapeutic intervention” with consistent reassurances that they are safe and with people they can trust. She testified the prognosis for Tammy’s ability to adequately parent these children is very poor.

[¶ 28] While there is evidence Tammy has taken some steps to overcome her alcohol addiction, there is also considerable evidence showing that, at the time of the termination hearing, Tammy had continued to abuse alcohol, had continued to associate in abusive alcohol-dependent relationships, had failed to take parenting courses, and has failed to achieve consistency and stability in her life which would allow her to care for these two young children. While we recognize the steps Tammy has taken to improve her life and to conquer her addiction, in view of the length of the time the deprivation of these children has occurred, the severity of the harm incurred by them, and the high degree of special care required for these boys to overcome their injuries and to live productive happy lives, we cannot allow these children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement. We hold there is clear and convincing evidence that as a result of their deprivation the boys have suffered serious physical, mental, and emotional harm and that, if Tammy’s parental rights are not now terminated, these boys will in the future continue to suffer serious physical, mental,' and emotional harm.

Ill

[¶ 29] The record in this case shows by clear and convincing evidence that Ken and Allen are deprived children, the deprivation of these children is not due to a lack of their parents’ financial resources, the causes and conditions of the boys’ deprivation will likely continue, and, as a result of the deprivation, the boys have and will likely continue to suffer serious physical, mental, and emotional harm. We, therefore, affirm the juvenile court’s decision to terminate Tammy and Kip’s parental rights to these children.

[¶ 30] VANDEWALLE, C.J., MARING, KAPSNER and SANDSTROM, JJ., concur.

      . The names of the parties, except the State, are pseudonyms.

      . The trial court found Kip and Tammy were married on July 18, 1996, but Tammy testified they were married in 1997.


author: KAPSNER, Justice.

text:
    2002 ND 160
    In the Interest of Shaleen Marie GRIFFEY. Marcy Noel Huntress, Plaintiff and Appellee, and Daniel P. Richter, Director of Ward County Social Service Board, Plaintiff, v. Wayne Allen Griffey, Defendant and Appellant.
    No. 20020063.
    Supreme Court of North Dakota.
    Oct. 15, 2002.

      Carrie L. Francis, Legal Assistance of North Dakota, Minot, ND, for plaintiff and appellee Marcy Noel Huntress.
    Paul M. Probst, Probst Law Firm, Minot, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Wayne Griffey appeals from the trial court’s amended order, challenging the trial court’s denial of his motion for custody. The trial court erred when it failed to make any findings of fact regarding its custody determination. We reverse and remand for further proceedings consistent with this opinion.

I.

[¶ 2] Marcy Huntress and Wayne Grif-fey are the parents of a child born on September 6, 2000. Huntress and Griffey have never been married. On September 7, 2000, Griffey and Huntress executed a North Dakota Acknowledgment of Paternity. Prior to the instant case, no formal custody determination had been issued by a court.

[¶ 3] With the exception of two occasions, custody of the minor child has been with Huntress since the child was born. By agreement of the parties, custody was informally changed from Huntress to Griffey while Huntress was completing chemical dependency treatment. While Huntress was in treatment, Griffey filed a complaint, in a proceeding separate from this action, seeking custody of the child due to Huntress’ participation in a drug treatment program. Griffey initiated the proceeding to determine custody. However, the judge (not the same judge who presided in the matter on appeal) held that Griffey did not have standing to bring the custody action. The judge concluded that prior to contesting custody, Griffey must initiate a paternity action under N.D.C.C. § 14-17-05, to determine the father and child relationship. No appeal was taken from the trial court’s order in the earlier proceeding. As a result of the order, the child returned to Huntress after Huntress completed the treatment program. On another occasion, Huntress’ sister cared for the child while Huntress was in the hospital after an adverse reaction to a prescription drug. At this time, Huntress had physical custody of the child and Griffey was permitted reasonable visitation upon reasonable notice.

[¶ 4] On June 1, 2001, a complaint was filed by the Ward County Social Services Board on behalf of Huntress against Grif-fey for support of the child. Griffey filed a motion for custody on October 3, 2001. Griffey’s motion for custody was denied on December 19, 2001, without the trial court issuing any findings of fact in its memorandum opinion. On January 4, 2001, Griffey requested, by letter to the court, that the court issue factual findings regarding its custody determination. The order formally awarding Huntress custody was signed on January 10, 2002, without containing any findings of fact. On January 11, 2002, the Regional Child Support Enforcement Unit informed the court, also by letter, that the order of January 10, 2002, omitted several elements required by statute. The trial court entered an amended order on January 14, 2002, to comply with the statute.

II.

[¶ 5] The standard the trial court must apply in the initial custody determination is the best interests and welfare of the child. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 5, 642 N.W.2d 892. To determine the best interests and welfare of the child, the court is required to apply the factors set forth in N.D.C.C. § 14-09-06.2. Id. A trial court’s determinations concerning child custody are treated as findings of fact that are subject to the clearly erroneous standard of review on appeal. Id. at ¶ 6. A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support the decision, or if, although there is some evidence to support the decision, the Court is left with a firm and definite conviction based on all the evidence that a mistake has been made. Ramstad v. Biewer, 1999 ND 23, ¶ 10, 589 N.W.2d 905.

[¶ 6] Rule 52(a), N.D.R.Civ.P., in part, provides:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; ... Requests for findings are not necessary for purposes of review.... It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.

(Emphasis added). The purpose of this rule is to enable the appellate court to understand the factual determination made by the trial court as the basis for its conclusions of law and the judgment entered. DeForest v. DeForest, 228 N.W.2d 919, 924 (N.D.1975).

[f 7] In the interest of judicial economy, we have affirmed judgments based upon mislabeled findings. Skoglund v. Skoglund, 333 N.W.2d 795, 796 (N.D.1983) (citing Jahner v. Jacob, 233 N.W.2d 791, 798 (N.D.1975)). In addition, we have said that a transcribed oral opinion may be the source of findings. Soby Constr., Inc. v. Skjonsby Truck Line, 275 N.W.2d 336, 341 (N.D.1979). However, we have never sanctioned avoidance of the requirements of Rule 52(a), N.D.R.Civ.P. Skoglund, 333 N.W.2d at 796.

III.

[¶ 8] Before we can make a determination of whether the findings of fact are clearly erroneous, we must understand the basis for the trial court’s decision. DeForest, 228 N.W.2d at 924. Although a separate finding is not required for each factor under § 14-09-06.2, N.D.C.C., the court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the trial court’s decision. Peek v. Berning, 2001 ND 34, ¶ 6, 622 N.W.2d 186. Even when the trial court does not fully explain its decision, the decision should not be upset when valid reasons are fairly discernible, either by deduction or inference. Gould v. Miller, 488 N.W.2d 42, 44 (N.D.1992) (citing Ness v. Ness, 467 N.W.2d 716, 718 (N.D.1991)).

[¶ 9] The record does not reflect what the trial court considered when it made its custody determination. The trial court’s amended order contains the following language with respect to custody of the child:

1. That the Defendant’s motion for custody is denied.
2. That the plaintiff Marcy Huntress shall have the continued care, custody, and control of the minor child and the Defendant shall have reasonable visitation rights upon reasonable notice including the following:
Saturday and Sunday visitation on alternating weekends commencing at 10:00 a.m. on Saturday, January 5, 2002, and continuing until Sunday, January 6, 2002, at 6:00 p.m. The Defendant will also have his child with him on Father’s Day, Memorial Day, and Labor Day. If these weekends are long weekends he will have the child from Saturday until 6:00 p.m. on Monday. The parties will alternate the Thanksgiving and the Easter weekends with the Plaintiff having those holidays in 2002. Until the child reaches school age (kindergarten) the Plaintiff will have the child with her at Christmas time until 10:00 a.m. on Christmas Day when the Defendant will have his daughter with him until 6:00 p.m. on December 26th.

The trial court’s findings of fact are inadequate with regard to the question of the best interests of the child. The record, in its entirety, does not reflect the basis for the trial court’s determination regarding custody, thus we are unable to properly review the trial court’s decision. See Gould, 488 N.W.2d at 44 (stating that although the trial court’s findings and conclusions “are hardly a model of clarity or completeness,” the trial court’s decision will not be upset when the court’s oral comments convey an adequate comprehension of its reasoning).

[¶ 10] Because Rule 52(a), N.D.R.Civ. P., was not complied with, it is impossible for us to determine whether the trial court’s determination of custody of the child is clearly erroneous. Accordingly, we reverse and remand with directions to make findings of fact concerning the custody determination.

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

      . N.D.R.Civ.P. 7(b), provides, an application to the court shall be made by motion and Rule 3.2, N.D.R.Ct., requires that notice be served with a motion. The informality and improper procedure of conversing with the court by letter rather than by motion creates problems of notice and uncertainty about what is expected of the other side. Such improper procedure ought not to be encouraged by the trial court.

      . The original order failed to set a date when the child support payments were due and failed to state when child support will terminate. In addition, the original order did not calculate the arrearage due, the arrearage payment amount, or how to make and send child support payments. Further, the original child support obligation did not indicate it was subject to immediate income withholding.


author: SANDSTROM, Justice.

text:
    2002 ND 161
    David GROSS, Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 20020086.
    Supreme Court of North Dakota.
    Oct. 15, 2002.

      Andrea H. Smith, Minot, ND, for appellant.
    Jean R. Mullen, Bismarck, ND, for ap-pellee.
   SANDSTROM, Justice.

[¶ 1] David Gross, a medicaid recipient, appealed from a district court judgment dismissing his appeal from a decision by the North Dakota Department of Human Services to place him in the lock-in program under N.D.- Admin. Code § 75-02-02-11. We conclude the Department’s decision is an appealable order under N.D.C.C. §§ 28-32-42 and 28-32-01(7). We reverse and remand to the district court for a decision on the merits of the appeal.

I

[¶ 2] In January 2001, the Department’s Medical Services Division conducted a medicaid utilization review of medical services provided to Gross. In May 2001, the Medical Services Division notified Gross it- was placing him in the lock-in program under N.D. Admin. Code § 75-02-02-11. The Medical Services Division informed Gross he would be required to select one physician and one pharmacy to manage his medical care, and before he could receive any medical services from other physicians, he would have to receive a referral from his lock-in physician. The Medical Services Division advised Gross he would be responsible for payment of any medical services received without a referral from his lock-in physician. Gross requested a hearing. An administrative law judge recommended the Department uphold the decision by the Medical Services Division to place Gross in the lock-in program, and the Department adopted the administrative law judge’s recommendation.

[¶ 3] Gross appealed to the district court. The district court dismissed his appeal, concluding the Department’s order was not a final appealable order under N.D.C.C. § 28-32-42(1), because it did not determine the legal rights, duties, privileges, immunities or other legal interests of Gross. Gross appealed to this Court.

[¶ 4] Gross’s appeal to this Court is timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49. The district court’s jurisdiction, however, is a disputed issue.

II

[¶ 5] Section 28-32-42(1), N.D.C.C., authorizes appeals to the district court from final orders of an administrative agency, see Raboin v. North Dakota Dep’t of Human Services, 552 N.W.2d 329, 332 (N.D.1996), and provides “[a]ny party to any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order within thirty days after notice of the order has been given as required by section 28-32-39.” Section 28-32-01(7), N.D.C.C., defines “order” as “any agency action of particular applicability which determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.”

[¶ 6] The Department does not argue its lock-in decision is declared final by any other statute. The Department admits its internal procedures for evaluating a medicaid recipient’s lock-in status provided Gross with an opportunity for an administrative hearing at which he could attempt to show the decision to place him in the lock-in program was arbitrary. The Department, however, argues its order issued after review of a medicaid recipient’s lock-in status is not an appealable order, because its

action to place Gross in the Lock-In Program did not affect any substantive Medicaid privileges. It did not terminate, suspend, or reduce either his Medicaid eligibility or any services he may need. It merely requires him to have one primary physician or provider. N.D. Admin. Code § 75-02-02-ll(l)(a). As necessary, the physician can refer Gross to specialists for services. N.D. Admin. Code § 75-02-02-ll(8)(b).... The imposition of lock-in is time limited. See 42 C.F.R. § 431.54(e) (providing the agency may restrict an individual’s access to designated providers “for a reasonable period of time”).
For this reason, the Supreme Court should uphold the dismissal of the appeal because there is no statutory right to appeal the Department’s decision under N.D.C.C. ch. 28-32 and, therefore, the district court had no jurisdiction over this action.

[¶ 7] The dispositive issue is whether the Department’s decision “determines the legal rights, duties, privileges, immunities, or other legal interests of’ Gross under the definition of “order” in N.D.C.C. § 28-32-01(7).

[¶ 8] The interpretation of a statute is a question of law, fully reviewable on appeal. In re Juran and Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 503. Our primary objective in construing a statute is to ascertain legislative intent by looking first at the language of the statute and giving it its plain, ordinary, and commonly understood meaning. Lende v. North Dakota Workers’ Comp. Bureau, 1997 ND 178, ¶¶ 12, 19, 568 N.W.2d 755. We read statutes as a whole to give meaning to each word and phrase, whenever fairly possible, juran and Moody, at ¶ 6. If the statutory language is clear and unambiguous, the legislative intent is pre7 sumed clear from the face of the statute. Id. In other contexts, this Court has recognized the right to appeal is an important right and statutes conferring that right must be liberally construed. First Trust Co. v. Conway, 345 N.W.2d 838, 840-41 (N.D.1984) (citing State v. Howe, 247 N.W.2d 647, 651 (N.D.1976)).

[¶ 9] The plain ordinary meaning of a “right” is something to which a person has a just claim, such as a privilege that belongs to a person by law. Webster’s New World Dictionary 1225 (2nd coll, ed.1980). The same source defines “interest” as a right or claim to something, and a “privilege” as a right, advantage, favor or immunity specially granted to one; especially a right held by a certain individual, group, or class and withheld from others. Id. at 734, 1131.

[¶ 10] The Department’s decision to place Gross in the lock-in program, limits his rights as a medicaid recipient in the sense that he is treated differently from other medicaid recipients who are not in the lock-in program. Under the lock-in program, Gross is required to have one primary physician and one pharmacist, and he is precluded from getting second medical opinions without referrals from his designated primary care physician. Medicaid recipients who are not in the lock-in program are not restricted in that manner. The Department’s decision treats Gross differently from other medicaid recipients. The Department’s decision to place Gross in the lock-in program limits his choices for medical care in a manner that affects his legal rights, interests, and privileges within the plain and ordinary meaning of an order, as defined in N.D.C.C. § 28-32-01(7). See Raboin, 552 N.W.2d at 332 (filing of report of probable cause of child abuse could trigger actions by others that might result in future proceedings affecting legal interests of parties involved, and constitutes appealable final order under N.D.C.C. ch. 28-32). We conclude the Department’s decision is an appealable order under N.D.C.C. §§ 28-32-42 and 28-32-01(7).

Ill

[¶ 11] Although Gross asks us to decide the merits of his appeal, in cases with similar procedural contexts, this Court has remanded to the district court for a decision on the merits of the administrative agency’s decision. See Juran and Moody, 2000 ND 136, ¶ 28, 613 N.W.2d 503 (reversing district court’s dismissal of Securities Commissioner’s appeal from final decision of Administrative Law Judge and remanding to district court for decision on merits); Boger v. North Dakota Workers Comp. Bureau, 1998 ND 131, ¶¶ 1, 20, 581 N.W.2d 463 (reversing district court’s dismissal of claimant’s appeal as untimely and remanding to district court for consideration of merits); Lende, 1997 ND 178, ¶ 35, 568 N.W.2d 755 (reversing district court’s dismissal of claimant’s appeal and remanding to district court for decision on merits); Cahoon v. North Dakota Workers Comp. Bureau, 482 N.W.2d 865, 868-69 (N.D.1992) (reversing district court’s dismissal of claimant’s appeal and remanding to district court for review under appropriate standard of review of agency decision); Hammond v. North Dakota State Pers. Bd., 332 N.W.2d 244, 252 (N.D.1983) (reversing district court’s dismissal of state employee’s appeal from decision of State Personnel Board and remanding to district court for proceedings on merits). We, therefore, decline the request to address the merits of this appeal.

IV

£¶ 12] We reverse the district court judgment and remand to that court for a decision on the merits.

[¶ 13] VANDEWALLE, C.J., NEUMANN, MARING, and KAPSNER, JJ., concur.


author: PER CURIAM.

text:
    2002 ND 155
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Mark J. BUTZ, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Mark J. Butz, Respondent.
    No. 20020210.
    Supreme Court of North Dakota.
    Oct. 15, 2002.
   PER CURIAM.

[¶ 1] Mark J. Butz was admitted to practice law in the courts of North Dakota on July 12, 1963, and since that time his name has appeared on the roll of attorneys.

[¶ 2] A Petition for Discipline was served on Butz on April 2, 2002. Butz acknowledged all but one of the facts alleged in the Petition. The Report of the Hearing Panel was filed August 13, 2002, and referred to the Supreme Court under N:D.R. Lawyer Discipl. 3.1F(2).

[¶ 3] Between July and September 1999, Butz was hired by Howard Wanna to represent him in a quiet title action brought by the North Dakota Department of Transportation. Wanna paid Butz a $500 retainer.

[¶ 4] In September 1999, Butz obtained two continuances from the trial court to respond to a summary judgment motion. On October 1, 1999, Butz informed the trial court “We are not going to respond to this 3.2 motion.” The trial court entered judgment against Wanna.

[¶ 5] Butz did not inform Wanna that a response to the motion had not been filed, nor did he give Wanna copies of motions, orders, judgments, correspondence or other documents throughout the matter. Rather, Butz told Wanna that he shouldn’t worry about it and that it looks good.

[¶ 6] By September 2001, Butz would not take Wanna’s phone calls.. Wanna learned through inquiry at the courthouse that judgment had been entered against him. On October 12, 2001, Wanna went to see Butz; Butz apologized for doing a poor job and Wanna asked for his retainer back. Butz gave Wanna a postdated check on the back of which Butz had written “Endorsement constitutes full and complete satisfaction of all claims against each other.” Wanna did not seek advice regarding the disclaimer nor did he endorse the check.

[¶ 7] Butz’s conduct violated N.D.R. Prof. Conduct 1.3, Diligence, 1.4, Communication, 1.8(h), Conflict of Interest: Prohibited Transactions, and N.D.R. Lawyer Discipl. 1.2A(3), which provides that it is misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

[¶ 8] Under N.D. Stds. Imposing Lawyer Sanctions 9.32(c), personal or emotional problems may be considered as a mitigating factor. Butz has significant personal and emotional problems resulting from a 1999 automobile accident. Under N.D. Stds. Imposing Lawyer Sanctions 9.32, full and free disclosure to disciplinary board or cooperative attitude toward proceedings, character or reputation, and remorse may also be considered in mitigation. Butz has a good reputation in his community, has shown remorse, has indicated a willingness to make restitution, and has made free and full disclosure and been cooperative in this matter.

[¶ 9] Under N.D. Stds. Imposing Lawyer Sanctions 9.22(a), prior disciplinary offenses may be considered as an aggravating factor. In 1993, Butz received a private reprimand for violating DR 6-101(2) and (3), Code of Professional Responsibility, and in 1996, Butz was admonished for violating N.D.R. Prof. Conduct 3.5(a). Under N.D. Stds. Imposing Lawyer Sanctions 9.22, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law may also be considered in aggravation. Butz’s history reflects prior offenses, and he has substantial experience in the practice of law.

[¶ 10] Under N.D. Stds, Imposing Lawyer Sanctions 4.32, suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client. Under N.D. Stds. Imposing Lawyer Sanctions 4.42, suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. Under N.D. Stds., Imposing Lawyer Sanctions 4.62, suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.

[¶ 11] ORDERED, the Report of the Hearing Panel of the Disciplinary Board is adopted, and Mark J. Butz is SUSPENDED from the practice of law for a period of 30 days, effective January 1, 2003.

[¶ 12] FURTHER ORDERED, Mark J. Butz pay restitution in the amount of $500 to Howard Wanna.

[¶ 13] FURTHER ORDERED, Mark J. Butz pay the costs and expenses of the disciplinary proceedings in the amount of $1,929.16, payable to the Secretary of the Disciplinary Board.

[¶ 14] FURTHER ORDERED, Mark J. Butz comply with N.D.R. Lawyer Dis-cipl. 6.3F.

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

[¶ 16] Justice WILLIAM A. NEUMANN, deeming himself disqualified, did not participate in this decision.