author: STONEBURNER, Judge.

text:
    EDUCATION MINNESOTA-GREENWAY, LOCAL 1330, et al., Appellants, v. INDEPENDENT SCHOOL DISTRICT NO. 316, Coleraine, Minnesota, et al., Respondents.
    No. A03-684.
    Court of Appeals of Minnesota.
    Jan. 20, 2004.

      Christina L. Clark, Education Minnesota, St. Paul, MN, for appellants.
    James E. Knutson, Knutson, Flynn & Deans, P.A., Mendota Heights, MN, for respondents.
    Considered and decided by HALBROOKS, Presiding Judge, STONEBURNER, Judge, and PORITSKY, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellants Education Minnesota Green-way, Local 1330, and Gary Greniger challenge the district court’s grant of summary judgment dismissing appellants’ claims that respondents Independent School District No. 316, Coleraine, Minnesota, et al., violated the Minnesota Public Employment Labor Relations Act (PELRA), Minn.Stat. §§ 179A.01-179A.25 (2002), by refusing to meet and negotiate in good faith and by failing to provide financial information when requested. Appellants also allege that the district court abused its discretion by failing to strike from the record an unsworn, unverified statement that respondents submitted to the district court. Respondents moved to dismiss part of the appeal, arguing that appellants’ brief failed to address one of the grounds for dismissal, appellants failed to exhaust administrative remedies, and the appeal is moot because the parties have now signed a collective bargaining agreement. We affirm in part, reverse in part, and remand, and deny respondent’s motion to dismiss.

FACTS

Appellant Education Minnesota-Green-way, Local 1330, is the exclusive representative under PELRA for a bargaining unit of public school teachers employed by respondent Independent School District No. 316, Coleraine. Appellant Gary Greniger is a teacher and member of the union, and the remaining respondents are the superintendent and school board members of ISD. In this opinion, appellants will be collectively referred to as “the union,” and respondents will be collectively referred to as “ISD.”

When this lawsuit started in September 2002, the parties were operating under a collective bargaining agreement (CBA) for the two-year term beginning July 1, 1999, and ending June 30, 2001. By law and by its terms, that CBA remained in effect until the parties reached a new agreement. See Minn.Stat. § 179A.20, subd. 6 (2002). The CBA provided for step increases (based on years of service), lane changes (based on educational achievement), credit pay, longevity pay, and payment of 95% of insurance premiums.

In April 2001, the union notified ISD of its intent to begin bargaining for the 2001-2003 CBA, but neither the union nor ISD pursued negotiations until late June 2002, at which time a negotiations session was scheduled for August 7, 2002. The union submitted its written proposal on July 12, 2002. ISD submitted its written proposal at the negotiation session. ISD proposed a retroactive freeze on wages and benefits already paid for the 2001-2002 school year, and, for the 2002-2003 school year, a 5% salary reduction, plus a freeze on step increases and lane changes, and a freeze on ISD’s monetary contribution to health insurance premiums. ISD explained that the proposal was necessary because it was in statutory operating debt.

Nine days after the first negotiating session, the superintendent sent a letter to all ISD teachers informing them that, effective at the beginning of the 2002-2003 school year, ISD was unilaterally implementing certain monetary aspects of its bargaining proposal. Specifically, the step increases, lane changes, and contributions to health insurance premiums were frozen and would continue at the dollar amounts paid in the 2001 2002 school year. The union forwarded a demand to bargain over the freeze and filed a grievance challenging the freeze as a breach of the CBA.

ISD did not respond to the demand to bargain on the unilateral imposition of the freeze and implemented the freeze. The parties had a second negotiation session on September 13, 2002, and continued to negotiate the 2002-2003 CBA, but ISD kept the freeze in place throughout the negotiations. The union started this lawsuit in late September 2002, alleging two counts of unfair labor practices. Count 1 alleged that the unilateral implementation of the freeze violated ISD’s duty to meet and negotiate in good faith. Count 2 related to ISD’s failure to provide the union with requested financial information. The parties filed cross-motions for summary judgment on count 1 and ISD moved for summary judgment on count 2. The district court granted ISD’s motions and denied the union’s motion. This appeal followed. In July 2003, the parties reached agreement on a CBA for the 2001-2003 school years that includes dismissal of the union’s grievance. ISD moved to dismiss this appeal, arguing that the union failed to address one of the grounds for summary judgment, the union failed to exhaust administrative remedies, and the case is moot.

ISSUES

1. Did the district court grant summary judgment in favor of ISD on the basis that the union failed to exhaust its administrative remedies?

2. Is the union’s appeal from dismissal of its claim that ISD failed to meet and negotiate in good faith moot after the parties adopted a new collective bargaining agreement?

3. Did ISD violate MinmStat. § 179A.13, subd. 2(5) (2002), and engage in the unfair labor practice of refusing to meet and negotiate in good faith when it unilaterally changed the terms and conditions of the controlling collective bargaining agreement during negotiations?

4. Is there a genuine issue of material of fact as to whether the school district committed an unfair labor practice when it failed to immediately provide the union with requested financial information?

5. Should the unsworn, unverified statement of the Department of Children, Families and Learning’s financial manager be stricken from the record?

ANALYSIS

I. Administrative remedies issue

ISD argues in its appeal brief that the district court lacked subject-matter jurisdiction even to hear the union’s PELRA claims because the union did not exhaust its administrative remedies under the CBA before proceeding to district court. ISD, in its motion to dismiss the union’s appeal from dismissal of count I, asserts that the district court dismissed count I for failure to exhaust administrative remedies, and that the union’s failure to address this ground for dismissal in its appellate brief requires this court to dismiss that part of the union’s appeal.

The union, in its reply brief, contends that the district court decided the PELRA claims on the merits and did not dismiss count 1 based on failure to exhaust administrative remedies. We agree.

The district court dismissed count 1, the union’s claim that ISD failed to meet and negotiate in good faith, on the merits, and did not dismiss the claim based on lack of jurisdiction for failure to exhaust administrative remedies. The district court noted only that the issue of whether ISD’s unilateral freeze also violated the CBA must be resolved by the grievance process set out in the CBA. The existence of a grievance procedure under a CBA does not deprive the district court of subject-matter jurisdiction to decide whether the same conduct constituted a violation of PELRA. See Edina Educ. Ass’n v. Bd. of Educ. of Indep. Sch. Dist. No. 273, 562 N.W.2d 306, 310 (Minn.App.1997) (holding that, although the CBA provided concurrent grievance procedure, plaintiff was not required to exhaust that remedy because the cause of action did not derive solely from contract but also derived from state law), review denied (Minn. June 11, 1997).

Because the district court did not expressly rule on the exhaustion of administrative remedies issue, ISD appropriately raised the issue on appeal as an alternate ground for affirmance. The union’s response to ISD’s assertion of this alternate ground on appeal was properly raised in its reply brief. Therefore, we deny ISD’s motion to dismiss the union’s appeal from dismissal of count 1 based on the union’s failure to address this issue in its brief on appeal.

II. Mootness

ISD contends that no actual controversy remains as to count 1, failure to meet and negotiate in good faith, because the parties signed a CBA on July 16, 2003, resolving all issues, including wages and benefits for the 2001-2003 school years.

The general rule is that an appeal should be dismissed as moot when, pending appeal, an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible. In re Application of Minnegasco, 565 N.W.2d 706, 710 (Minn.1997). To determine whether a live, resolvable controversy exists, the mootness doctrine suggests that a comparison be made between the relief demanded and the circumstances of the case at the time of decision. Id.

The union notes that its prayer for relief in the complaint requests a judgment declaring that ISD has committed unfair labor practices in violation of PELRA and an injunction to prevent ISD from committing such practices in the future. The union argues that, even though the grievance regarding the current CBA has been resolved, there is still a justiciable issue regarding whether ISD’s actions violated PELRA and, without an appellate determination of this issue, the controversy will repeat itself in future negotiations.

An appeal is not moot where the issue raised is capable of repetition yet evades review or where collateral consequences attach to the judgment. In re McCaskill, 603 N.W.2d 326, 327 (Minn.1999). An issue is capable of repetition yet evades review if it does not remain a live controversy until the completion of appellate review but, due to its nature, may reoccur. Id.

If the union’s appeal is dismissed as moot and ISD takes similar unilateral action during future negotiations, the union could again seek an injunction under PEL-RA. An action may be brought for injunc-tive relief and for damages caused by an unfair labor practice in the district court of the county in which the practice is alleged to have occurred. Minn.Stat. § 179A.13, subd. 1 (2002). But, as in this case, contract negotiations could be completed before that action is decided on appeal, giving rise to another dismissal of the claim as moot.

The supreme court has stated that the mootness doctrine is a “flexible discretionary doctrine, not a mechanical rule that is invoked automatically.” State v. Rud, 359 N.W.2d 573, 576 (Minn.1984). And the reviewing court has discretion to decide issues that are technically moot when the issue is functionally justiciable and one of public importance and statewide significance that should be decided immediately. Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 439 (Minn.2002).

Because (1) the union sought injunctive relief; (2) the action of ISD can be repeated; (3) the issue is one of statewide significance; and (4) the mootness doctrine is flexible, we conclude that the union’s claims of PELEA, violations should be reviewed even though there are no current collective bargaining issúes between the parties. ISD’s motion to dismiss the appeal of dismissal of count 1 as moot is denied. And because ISD has not shown a substantive basis for an award of attorney fees incurred in bringing the motion to dismiss, ISD’s request for such an award is also denied.

III. Unilateral change in terms and conditions of employment was unfair labor practice

On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The parties agree that there are no issues of material fact surrounding ISD’s unilateral action of changing the terms and conditions of employment during negotiations. When summary judgment is granted based on the application of a statute to undisputed facts, the result is a legal conclusion, which this court reviews de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The legal issue to be resolved is whether ISD engaged in an unfair labor practice under MinmStat. § 179A.13, subd. 2(5) (2002), when it unilaterally froze wages and benefits under the existing CBA after meeting only one time with the union, despite continuing to subsequently participate in negotiations. A public employer has engaged in an unfair labor practice by “refusing to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit.” Minn.Stat. § 179A.13, subd. 2(5).

A unilateral change by an employer in the terms and conditions of employment is a prima facie violation of the employees’ collective bargaining rights. Foley Educ. Ass’n v. Indep. Sch. Dist. No. 51, 353 N.W.2d 917, 920-21 (Minn.1984) citing NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). A unilateral change is not, however, per se an unfair labor practice. Id. at 921. “The crucial inquiry in such event is whether the employer’s unilateral action deprived the union of its right to negotiate a subject of mandatory bargaining.” Id. If the employer gave the union an opportunity to bargain, or if the CBA authorized the change, there is no bad faith refusal to bargain on the part of the employer. Id. The CBA did not authorize the change, but ISD argues that, because it continued to negotiate about the new contract, it did not commit an unfair labor practice. And ISD asserts that the Minnesota law that requires structurally balanced school budgets insulates it from having committed an unfair labor practice. See Minn.Stat. § 123B.749 (2002). We first address ISD’s arguments relating to the structural balance law.

a. The structural balance law and the duty to meet and negotiate

Minn.Stat. Ch. 123B (2002) sets out the powers and duties of school districts, including managing operating debt. Minn. Stat. §§ 123B.75-83. A school district’s operating debt is defined as “the net negative undesignated fund balance in all school district funds other than capital expenditure, building construction, debt service, and trust and agency.” Minn.Stat. § 123B.81, subd. 1. A district is in statutory operating debt “[i]f the amount of the operating debt is more than 2-1/2 percent of the most recent fiscal year’s expenditure amount for the funds” listed in subdivision 1. Id., subd. 2. A school district must eliminate any statutory debt. Id., subd. 4. Eliminating statutory operating debt requires a school district to submit a special operating plan to the Commissioner of the Department of Children, Families and Learning (DCFL) and have it approved. Minn.Stat. § 123B.83, subd. 4.

ISD had statutory operating debt for several years, including at the beginning of the 2002-2003 school year, but the school board did not approve a five-year special operating plan to submit to DCFL until September 18, 2002. The record does not reflect if, or when, DCFL approved the plan.

Chapter 123B provides that:

(a) Prior to approving a collective bargaining agreement ..., a school board must determine by board resolution that the proposed agreement will not cause structural imbalance in the district’s budget during the periods of the agreement.
(b) A school board may only determine that an agreement will not cause structural imbalance if expenditures will not exceed available funds[;]
(c)All projections and calculations required by this section must be made available to the public prior to and at the meeting where the resolution is adopted in a manner consistent with state law on public notice and access to public data.
(g) Compliance with this section by itself is not an unfair labor practice under section 179A.13, subdivision 2.

Minn.Stat. § 123B.749. This section was added to the statutes in 2001 (2001 Minn. Laws, 1st Spec. Sess, ch. 6, art. 2, § 61) and has not been interpreted in relation to section 179A.13, subd. 2, which defines unfair labor practices. ISD asserts that it did not engage in an unfair labor practice because it imposed the unilateral freeze in order to eliminate its statutory operating debt. But under the facts of this case, we conclude that Minn.Stat. § 123B.749(g) does not protect ISD from an unfair labor practice charge because ISD had not reached the stage of having a proposed collective bargaining agreement to present to the school board, and nothing in section 123B.749 excuses a public employer from its statutory duty to meet and negotiate in good faith.

ISD complied with none of the procedural aspects of the statute, and the plain language of section 123B.749(g) requires a school district to comply with the entire section in order to claim that compliance is not an unfair labor practice. Although a school district must balance its budget or risk a decrease or loss in state funding, it is not required to balance the budget by the means employed in this case. We reject ISD’s reliance on section 123B.749(g) to justify its act of unilaterally changing and implementing the terms and conditions of employment of an existing CBA at the beginning of negotiations.

b. Did ISD refuse to meet and negotiate in good faith.

No Minnesota eases have squarely addressed the issue of whether a unilateral freeze of wages and benefits provided in an existing CBA is an unfair labor practice when the employer continues to meet and negotiate on a future contract. The Minnesota Supreme Court, however, has recognized the reasoning of the United States Supreme Court that, “even in the absence of subjective bad faith, an employer’s unilateral change of a term and condition of employment circumvents the statutory obligation to bargain collectively ... in much the same manner as a flat refusal to bargain.” Foley, 353 N.W.2d at 921 (citing Katz, 369 U.S. at 743, 82 S.Ct. at 1111).

Foley involved, in part, an alleged unfair labor practice for a unilateral change in teaching assignments. 353 N.W.2d at 919. The supreme court held that the union in that case waived its right to demand negotiation on the unilateral change by failing to demand that the school district meet and negotiate prior to implementation of the change. Id. at 922. In the case before us, however, the union immediately demanded bargaining over the freeze, and ISD ignored that demand. We rely on the reasoning in Katz and conclude that ISD’s unilateral change in the terms and conditions of employment in this case, coupled with its failure to respond to the union’s demand to bargain regarding the freeze, constituted a refusal to bargain. See Katz, 369 U.S. at 743, 82 S.Ct. at 1111.

We are further persuaded by the reasoning of the New Jersey Supreme Court in a case very similar to the case before us. In Galloway Township Bd. of Educ. v. Galloway Township Educ. Ass’n, 78 N.J. 25, 393 A.2d 218 (1978), the New Jersey Supreme Court determined that the failure of a school board to pay increments at the beginning of a school year in conformity with the schedule set forth for the prior year amounted to a refusal to bargain and was an unfair labor practice. In that case, the parties continued to negotiate and reached a new agreement before the matter reached the supreme court. Id. at 221. After determining that the issue was not moot, the New Jersey Supreme Court concluded that the school board’s unilateral act constituted an unlawful refusal to negotiate in good faith and an unlawful interference with its employees’ exercise of their statutory rights in violation of New Jersey’s version of PELRA. Id. at 232. Relying in part on federal labor law, to the extent applicable, as a guide in unfair labor practice cases in the public sector, the New Jersey Supreme Court stated that a unilateral change prior to impasse is unlawful because of its coercive effect on employees and because of its chilling effect on employees’ statutory right to bargain:

A settled principle of private sector labor law under the LMRA is that an employer’s unilateral alteration of the prevailing terms and conditions of employment during the course of collective bargaining concerning the affected conditions constitutes an unlawful refusal to bargain, since such unilateral action is a circumvention of the statutory duty to bargain.“Unilateral” in this regard refers to a change in the employment conditions implemented without prior negotiations to impasse with the employee representative concerning the issue. The basis of the rule prohibiting unilateral changes by an employer during negotiations is the recognition of the importance of maintaining the then-prevailing terms and conditions of employment during this delicate period until new terms and conditions are arrived at by agreement. Unilateral changes disruptive of this Status quo are unlawful because they frustrate the “statutory objective of establishing working conditions through bargaining.”....
Indisputably, the amount of an employee’s compensation is an important condition of his employment. If a scheduled annual step increment in an employee’s salary is an “existing rul[e] governing working conditions,” the unilateral denial of that increment would constitute a modification thereof without the negotiation mandated by [statute] and would thus violate [that statute]. Such conduct by a public employer would also have the effect of coercing its employees in their exercise of the organizational rights guaranteed them by the Act because of its inherent repudiation of and chilling effect on the exercise of their statutory right to have such issues negotiated on their behalf by their majority representative.

Id. at 230 (citing Katz, 369 U.S. at 743-47, 82 S.Ct. 1107; NLRB v. J.P. Stevens & Co., Inc., Gulistan Div., 538 F.2d 1152, 1162 (5th Cir.1976)).

We find the New Jersey Supreme Court’s reasoning persuasive in the case before us. The union and ISD were not at impasse when ISD unilaterally imposed a freeze on wages and benefits provided under the existing CBA. The union immediately demanded negotiations about the freeze. ISD presents no explanation of why the freeze was not subject to bargaining, or why it ignored the union’s demand to negotiate the freeze. The union was placed in the position of having to bargain for wages and benefits that were already in place. We conclude that ISD’s unilateral freeze on wages and benefits violated its statutory duty to meet and negotiate in good faith under PELRA and therefore constituted an unfair labor practice. We remand for the district court to make a determination on the union’s request for injunctive relief.

IV. No material fact question on production of documents

The union alleged in count 2 of the complaint that ISD violated Minn.Stat. § 179A.13, subd. 2(11) (2002), which prohibits public employers from “refusing to provide ... all information pertaining to the public employer’s budget.” Because all requested data had been provided to the union before initiation of this lawsuit, the district court granted summary judgment to ISD on this claim.

Under the [National Labor Relations Act], the duty to bargain collectively is defined as “the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” ... The obligation to meet and confer in good faith includes the obligation to honor a good-faith request by a union to furnish the union with the information necessary to the union’s intelligent functioning, as a collective bargaining agent. If the employer refuses to supply requested information and that refusal materially hampers the union, the employer is guilty of an unfair labor practice.

Int’l Union of Operating Eng’rs, Local 49, 233 N.W.2d at 752.

In this case, the union argues that there are “fact issues [that] must be developed before the court can fairly determine whether [ISD] met its obligations.” The union asserts that it began requesting financial data near the beginning of 2002 and that ISD’s affidavits and documents show that it did not provide all of the requested information until several months after the request. The union claims that “these unresolved factual disputes show that [ISD] has failed to show the absence of an issue of material fact.” Despite the union’s numerous references to material fact disputes, viewing the record in the light most favorable to the union, it is undisputed that all of the information requested was provided before the union brought this action. The parties have now entered into a CBA and there is no evidence in the record that the delay in production of the information materially hampered the union. We conclude that the district court did not err by granting summary judgment to ISD on the union’s claim that delay in production of requested information constituted an unfair labor practice.

Y. Union’s request to strike the un-sworn statement

ISD submitted an unverified and unsworn statement of Charles Speiker, Financial Manager of DCFL, to the district court in support of its motion for partial summary judgment. In the union’s memorandum in district court in response to ISD’s motion for dismissal and partial summary judgment, the union asked the district court to strike this document from the record. The district court, however, failed to address the union’s request in the order now being appealed. And it is not apparent from the record whether the district court even considered the statement. On appeal, we will reverse the district court’s evidentiary ruling only if we find a clear abuse of discretion. State Farm Fire & Cas. Co. v. Wicka, 461 N.W.2d 236, 241 (Minn.App.1990). On a motion for summary judgment, the district court may consider only the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Minn. R. Civ. P. 56.03; Kay v. Fairview Riverside Hosp., 531 N.W.2d 517, 520 (Minn.App.1995), review denied (Minn. July 20, 1995). Because the Speiker statement is not in the form of a deposition or affidavit, the district court abused its discretion by failing to strike the Speiker statement.

DECISION

The union’s claim that ISD committed an unfair labor practice under PELRA by unilaterally freezing wages and benefits after one negotiation session is subject to the jurisdiction of the court and is not moot despite the parties’ subsequent successful negotiation of a collective bargaining agreement. Under the facts of this case, the unilateral freeze on wages and benefits due under the existing contract at the beginning of negotiations for a new contract was a refusal to meet and negotiate in good faith, which constitutes an unfair labor practice under PELRA. On remand, the district court shall enter judgment in favor of the union on count 1 of the complaint and consider the union’s request for injunctive relief. The district court did not err by granting summary judgment to ISD on the union’s claim of an unfair labor practice by refusing to provide financial information on the union’s request because ISD provided the requested information. The district court abused its discretion by failing to strike the Speiker statement because a statement that is not in the form of an affidavit or deposition cannot be considered in connection with a summary judgment motion and should have been stricken from the record.

Affirmed in part, reversed in part, and remanded; motion to dismiss denied.

      . The CBA included a salary grid for teachers based on years of teaching experience (the vertical axis) and extent of graduate education (the horizontal axis). Each year, until they reach the top of the eight-step schedule, teachers who complete a year of service are entitled to a "step" increase and move to the next salary step on the vertical axis for the following year. And, during any given year, teachers who submit timely documentation showing completion of the required amount of additional graduate credits are entitled to a "lane change” increase, and move to the next salary lane on the horizontal axis. The CBA also provided for "credit” pay for teachers who have completed continuing education credits and "longevity” pay (an additional amount of salary after ten, fifteen, twenty, and twenty-five years of service).

      . The union also alleged a violation of the open-meeting law, but that count was voluntarily dismissed.

      . The Minnesota Supreme Court has recognized that "[i]n interpreting provisions of the PELRA, it is often instructive to refer to decisions interpreting the National Labor Relations Act (NLRA), 29 U.S.C.A. §§ 151 to 168.” Int’l Union of Operating Eng’rs, Local No. 49 v. City of Minneapolis, 305 Minn. 364, 233 N.W.2d 748, 752 (1975) (citation omitted).


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    Roy E. GERBER, Respondent, v. Phyllis EASTMAN, Appellant.
    No. A03-811.
    Court of Appeals of Minnesota.
    Jan. 20, 2004.

      Amber Ahola, Anishinabe Legal Services, Inc., Red Lake, MN, for appellant.
    Ronald S. Cayko, Fuller, Wallner, Cayko & Pederson, Ltd., Bemidji, MN, for respondent.
    Considered and decided by SCHUMACHER, Presiding Judge; RANDALL, Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

On appeal in this custody dispute between appellant-Indian-custodialgrand-mother and respondent-non-Indian-father, grandmother challenges the district court’s determinations that (1) the Indian Child Welfare Act does not apply where a non-Indian father seeks permanent custody of his biological child; (2) the district court has continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act where the district court initially granted custody to grandmother; and (3) the child’s mother is not an indispensable party who must be joined in this proceeding.

FACTS

The parties do not dispute the underlying facts in this case, which arise out of a proceeding in state district court for a child in need of protective services (CHIPS). The minor child, I.E., was born in 1999 to Joy Eastman, an Indian member of the Red Lake Band of Chippewa Indians, and respondent Roy Gerber, a non-Indian. I.E. lived with her mother when she was born, but was placed in foster care in February 2000 because of Joy Eastman’s mental illness and her inability to care for the child. After reunification efforts failed, the county placed I.E., in September 2000, with her maternal grandmother, appellant Phyllis Eastman, who is a member of the Red Lake Band of Chippewa Indians and who lives on the reservation. Joy Eastman now resides in a traumatic brain injury group home in Duluth.

After I.E. was placed in foster care, the county contacted respondent, who first became involved in I.E.’s life in March 2001. On appellant’s motion in state district court for permanent custody of I.E., the court, in July 2001, granted permanent sole legal and physical custody of I.E., an Indian child, to appellant.

In March 2003, respondent filed a motion in district court for a modification of custody, seeking sole legal and physical custody of I.E. The court granted respondent an evidentiary hearing, at which appellant did not appear, and granted respondent some parenting time with I.E. Appellant did not allow respondent to exercise his parenting time, and the police on the reservation declined to enforce the district court’s order. Ultimately, the county sheriffs office assisted respondent in obtaining I.E. one time during his specified parenting time when appellant took I.E. off of the reservation.

The Red Lake Tribal Court issued an order noting that appellant had custody under the district court’s July 2003 order and recognizing the permanent custody placement, stating that the order had been entered when I.E. was living outside of the reservation. But the tribal court then determined that it had current exclusive jurisdiction over all present and future issues relating to I.E.’s custody, care, and visitation because the child has been living on the reservation with her grandmother since September 2000.

The state district court determined that the Federal Indian Child Welfare Act (ICWA) does not apply where a non-Indian biological father seeks custody of his own child and the state district court exercised continuing exclusive jurisdiction under Minnesota’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Appellant now challenges the district court’s determination that the ICWA does not apply and the court’s exercise of exclusive continuing jurisdiction.

ISSUES

1. Does the federal Indian Child Welfare Act apply when a non-Indian father seeks permanent sole legal and physical custody of his biological child after the state district court has granted permanent sole legal and physical custody to the child’s Indian maternal grandmother who resides with the child on the reservation?

2. Did the district court err in determining that it had continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act?

3.Is the biological mother of the minor child an indispensable party who must be joined in this action, where the mother has no custodial or parenting time rights as a result of her mental illness and possible traumatic brain injury?

ANALYSIS

A reviewing court is not bound by and need not defer to a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Jurisdiction is a legal issue, which this court reviews de novo. Podvin v. Jamar Co., 655 N.W.2d 645, 648 (Minn.App.2003) Interpretation of a statute is also a legal question, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

I

Appellant first argues that this case involves a child custody proceeding and, therefore, the federal Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (2002), applies and vests jurisdiction in the tribal court.

Congress enacted the ICWA in 1978, 25 U.S.C. § 1901, because of a growing concern that Indian children were being placed in non-Indian foster and adoptive homes, which deprived them of their unique culture. Sayers by Sayers v. Beltrami County, 481 N.W.2d 547, 549-50 (Minn.1992). Congress intended that the ICWA recognize the tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 35-36, 109 S.Ct. 1597, 1601, 104 L.Ed.2d 29 (1989). The purpose of the ICWA is to protect the best interests of Indian children and to preserve stability of the Indian tribe and family by preventing adoption of Indian children by non-Indians where placement in an Indian family is possible. Desjarlait v. Desjarlait, 379 N.W.2d 139, 144 (Minn.App.1985), review denied (Minn. Jan. 31, 1986).

To determine whether the ICWA applies, it must first be established that the Indian child is the subject of a “child custody proceeding,” as that term is defined in the ICWA. In re Welfare of S.N.R., 617 N.W.2d 77, 80 (Minn.App.2000), review denied (Minn. Nov. 15, 2000). Under the ICWA, a child custody proceeding is limited to foster-care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. 25 U.S.C. § 1903(1) (2002).

In this case, appellant argues that the proceeding involves a foster-care placement, which the ICWA defines as

any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

Id. (emphasis added). Under this definition, appellant contends that this case involves a child custody proceeding because, by having permanent custody of I.E., she is an Indian custodian under the ICWA and cannot have I.E. returned to her upon demand if respondent is granted permanent custody.

Appellant relies primarily on the Minnesota case of In re Custody of A.K.H., 502 N.W.2d 790 (Minn.App.1993), review denied (Minn. Aug. 24, 1993), for the proposition that the ICWA applies to this intra-family custody proceeding. In A.K.H., we held that the ICWA does not explicitly exclude intra-family custody disputes and, therefore, a child’s Indian tribe had a statutory right to intervene in a custody proceeding between the parents and a grandparent. Id. at 791. In so holding, we outlined the four prongs of the ICWA that define foster-care placement:

(1) removing the Indian child from the child’s parent or Indian custodian; (2) temporarily placing the child in a “foster home or institution or the home of a guardian or conservator” where; (3) the parent or Indian custodian cannot have the child returned upon demand; and (4) parental rights have not been terminated.

Id. at 792. We determined that the first, third, and fourth prongs had been' met, and then analyzed the second prong to determine whether the grandmother could be considered a guardian or conservator. Id.

In A.K.H., all of the parties were enrolled members of an Indian tribe and the minor child had resided with her maternal grandmother for most of her life. Id. We determined that, under the ICWA, the grandmother’s home must be considered the home of a guardian or conservator. Id. at 793. Therefore, because the four prongs defining foster-care placement were met, A.K.H. involved a child custody proceeding as defined in the ICWA. Id. Only after determining that A.K.H. involved a child custody proceeding did we broadly state that the ICWA applies to an intra-family custody dispute where all interested parties are enrolled members of an Indian tribe. Id.

In this case, the ICWA does not apply because, unlike A.K.H., there is no “child custody proceeding,” as that term is defined in the ICWA. This case does not involve “a temporary placement in a foster home or institution or the home of a guardian or conservator.” See 25 U.S.C. § 1903(1) (2002) (defining “foster-care placement”). The placement here would be to return the child to the custody of her parent and not to place her temporarily into a “foster home or institution or the home of a guardian or conservator,” as defined in the ICWA. See id.

We also decline to adopt appellant’s assertion that our holding in A.K.H. should apply to all intra-family disputes, even if the biological parent is seeking custody. A parent is considered a natural guardian. See Illinois Farmers Ins. Co. v. Reed, 662 N.W.2d 529, 530 (Minn.2003). However, the term “natural guardian” does not appear in the ICWA, and the plain language of the statute indicates that the ICWA does not apply where a parent is seeking to regain custody. The ICWA section that defines foster-care placement uses the term “parent” twice, but not in reference to a temporary placement in a foster home, institution, or home of a guardian or conservator. And, in considering Congress’s policy reason for enacting the ICWA, that Indian children placed for adoption be placed with Indian families to preserve the Indian tribe and family, we cannot conclude that the ICWA was enacted to apply to a case where a non-Indian biological “parent” is seeking to regain custody from an Indian custodian. Because this case does not involve a foster-care placement, the Indian child I.E. cannot be the subject of a child custody proceeding as defined in the ICWA. Therefore, the ICWA does not apply.

II

Appellant also argues that the tribal court has exclusive jurisdiction and is not subject to Minnesota’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). MinmStat. § 518D.101-317 (2002). Therefore, appellant contends that the tribal court’s ex parte order declaring the tribal court’s exclusive jurisdiction is entitled to full faith and credit. Appellant relies on section 1911 of the ICWA, which requires Minnesota courts to give full faith and credit to the tribal court’s custody order “to the same extent that such entities give full faith and credit to the ... judicial proceedings of any other entity.” 25 U.S.C. § 1911. Because the ICWA does not apply, however, the UCCJEA governs the current proceedings.

The UCCJEA instructs Minnesota courts to “treat a tribe as if it were a state of the United States for the purpose of applying sections 518D.101 to 518D.210,” which deal with interstate child custody determinations or disputes. Minn.Stat. § 518D.104(b). Under certain circumstances, the UCCJEA grants jurisdiction to a Minnesota state court to make an initial child custody determination. Minn. Stat. § 518D.201(a) (2002). A tribal court may also make a child custody determination under the UCCJEA. MinmStat. § 518D.104(c). However, the tribal court did not do that here.

In this case, the district court made an initial custody determination in July 2001 and granted sole legal and physical custody to appellant. At that time, Minnesota had jurisdiction to make an initial child custody determination under Minn.Stat. § 518D.201, and appellant did not dispute the state district court’s jurisdiction. Under Minn.Stat. § 518D.202, the state district court had exclusive, continuing jurisdiction over its initial custody determination.

Appellant incorrectly relies on In re Custody of K.K.S., 508 N.W.2d 813 (Minn.App.1993), for the proposition that the district court should decline jurisdiction, if it determines that it is an inconvenient forum and the tribal court is a more appropriate forum. In K.K.S., the minor child had lived on the reservation with her Indian mother for three years when her father, a non-Indian, took the child from the reservation without the mother’s consent. Id. at 814. The father sought temporary custody in state district court, alleging child endangerment. Id. After the tribal court asserted jurisdiction, the district court declined jurisdiction. Id. at 815. This court held that, because the child was born on the reservation, the controversy arose on the reservation, the child lived on the reservation, the father removed the child from the reservation without permission, and the father admitted that he fled the tribal court’s jurisdiction, the district court had concurrent jurisdiction with the tribal court and did not err in dismissing the case when the tribal court exercised its jurisdiction. Id. at 815-16.

K.K.S. thus involved an initial custody determination and a father who admittedly fled the tribal court’s jurisdiction, and this court did not want to encourage “kidnapping” by exercising jurisdiction. Id. Here, however, the district court already had jurisdiction based on the initial custody ruling, which appellant never challenged. Because the current modification is a continuation of the initial custody ruling and all parties initially subjected themselves to the district court’s original jurisdiction, we conclude that the district court properly exercised continuing, exclusive jurisdiction under the UCCJEA.

Ill

Appellant finally argues that I.E.’s biological Indian mother is an indispensable party who must be joined in this action. The district court did not address this issue, although appellant raised it in her memorandum in support of her motion to dismiss.

MinmStat. § 518.156, subd. 2 (2002), states that “[wjritten notice of a child custody ... proceeding shall be given to the child’s parent, guardian, and custodian.” Here, the mother has no parenting or custodial rights as a result of the initial CHIPS proceeding, which removed the child from her mother’s home because of the mother’s mental illness and possible traumatic brain injury and granted permanent sole legal and physical custody to appellant. Accordingly, the mother is not an indispensable party.

DECISION

The district court properly determined that the ICWA does not apply and that it had continuing, exclusive jurisdiction under the UCCJEA. Additionally, the biological mother is not an indispensable party to the proceedings.

Affirmed.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Lance Phillip WICKNER, Appellant.
    No. C4-03-215.
    Court of Appeals of Minnesota.
    Jan. 27, 2004.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Timothy R. Faver, Beltrami County Attorney, Bemidji, MN, for respondent.
    John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge, GORDON SHUMAKER, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant Lance Wickner challenges the judgment convicting him of escape. Although he acknowledges the governing statute specifically defines escape to include absconding from electronic monitoring, he contends he could not be convicted because the statute also contains an exception for parole violators. Because this exception does not deal with appellant’s conduct, we affirm. And because the record does not permit review, we decline to address appellant’s further assertion that his conviction resulted from vindictive prosecution.

FACTS

Appellant was released from the St. Cloud correctional facility under the intensive-supervised-release program in early November 2000. Because he was released earlier than originally scheduled, appellant was placed in a motel room that was not modified to allow the electronic monitoring to fully function. Robert Christie, appellant’s supervising agent, plugged the base unit into the phone jack knowing that while it would still monitor appellant’s whereabouts, it would not notify the central computer if he exceeded the specified distance from the base unit or if he removed the bracelet.

On November 9, 2000, Christie stopped in to check on appellant, but appellant was not in his room, and Christie determined that appellant had cut his bracelet. Appellant had not been given permission to leave his room or to cut the bracelet. Christie obtained an arrest warrant.

Nineteen months later, appellant was charged with one count of escape from lawful custody under Minn.Stat. § 609.485 (2000). After a jury found him guilty, the trial court sentenced appellant to a 13-month commitment, to run consecutively to another sentence.

ISSUE

Did the trial court err when it concluded, as a matter of statutory construction, that the parole exception in Minn.Stat. § 609.485 was not applicable to this case?

ANALYSIS

Appellant argues that the evidence cannot sustain his conviction of escape under Minn.Stat. § 609.485 because he was on supervised release, a form of parole, and persons on parole are specifically exempted from the escape statute. Although he states his argument, at least in part, in terms of sufficiency of the evidence, the argument ultimately rests on the assertion that the trial court improperly construed Minn.Stat. § 609.485, subd. 3. Construction of a criminal statute is a question of law this court reviews de novo. State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002).

Under the governing statute, a person is guilty of escape if the individual “escapes while held ... in lawful custody.” Minn. Stat. § 609.485, subd. 2 (2000). A clause of the same subdivision added in 1994 provides that “ ‘escapes while held in lawful custody’ includes absconding from electronic monitoring or absconding after removing an electronic monitoring device from the person’s body.” Id.

Appellant rests his case on another subdivision of the escape statute, which declares that unless a person is in actual custody, the escape statute does not apply “to a person who is free on bail or who is on parole or probation, or subject to a stayed sentence • or stayed execution of sentence.” Id., subd. 3. Appellant argues that because intensive supervised release is a form of parole, his situation falls under the exception.

“When the words of a law in their application to an existing situation are clear and free from ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing -the spirit.” Minn.Stat. § 645.16 (2002). In the event of irreconcilable conflicts between statutory provisions, the special provision prevails over the general provision unless the general provision is enacted later and with manifest intention that it should prevail. Minn.Stat. § 645.26, subd. 1 (2002).

Appellant has correctly cited authorities declaring that supervised release constitutes parole. See State v. Schwartz, 628 N.W.2d 134, 139 (Minn.2001) (stating that supervised release “is the current term for the release practice formally [sic] known as parole”). Yet subdivision 2 states that absconding from electronic monitoring or removing an electronic monitoring bracelet is escape. Minn.Stat. § 609.485, subd. 2. Insofar as appellant was both on parole and on electronic monitoring, the two provisions are irreconcilable. But the electronic monitoring provision, which was enacted in 1994, much later than the parole exception, is the most specific of the two provisions. In addition, the evident intent of the parole exception is to apply to persons free of custody; whether or not supervised release is a modern equivalent of parole, a person on electronic monitoring as part of intensive supervised release does not enjoy the freedom others on parole or probation enjoy.

Appellant contends the issue is significantly affected by a 2002 amendment that added language to subdivision 3 declaring that the exception does not apply to a person who is subject to electronic monitoring as a condition of parole, probation, or supervised release. Minn.Stat. § 609.485, subd. 3 (2002). Appellant contends this amended statute does not govern his conduct, which occurred before the amendment was enacted, but indicates instead that the former statute did not apply to his conduct. He cites a general presumption that the legislature intends to change the law when they enact an amendment. Gruening v. Pinotti, 392 N.W.2d 670, 673 (Minn.App.1986), review denied (Minn. Oct. 29, 1986).

The presumption of legislative change is rebutted “[wjhen the language of an amendatory statute is intended to clarify rather than enlarge the powers of the original statute.” State, ex rel. Spannaus v. Coin Wholesalers, Inc., 311 Minn. 346, 353-54, 250 N.W.2d 583, 587-88 (1976). It is evident on its face that the 2002 amendment reconciled a conflict between existing statutory provisions and did not create a new rule of law. See State v. Lilleskov, 658 N.W.2d 904, 908 (Minn.App.2003) (stating “an amendment that merely clarifies the legislature’s intent may be applied retroactively”). Because the amendment merely clarified the meaning of prior enactments, it does not significantly affect appellant’s circumstances.

For the reasons just stated as to the proper construction of the statute, there is no merit in appellant’s additional contention that he was entitled to an instruction on the parole exception to the escape statute.

Appellant also contends he could not abscond from electronic monitoring that was not fully functional. A complete installation of electronic monitoring would have included telephonic communication between the base unit in appellant’s room and a central state computer, a facet of electronic monitoring that had not been completed when respondent absconded. Appellant’s conduct was detected because the agent entered appellant’s room to check on him.

Appellant exaggerates the operating deficiencies in his monitoring system. The bracelet still sent a signal to the base unit and the base unit still detected whether the bracelet was attached and whether it exceeded the allowed distance from the base unit. Also, the statute states it is escape from lawful custody if a person “abscond[s] after removing an electronic monitoring device from the person’s body.” Minn.Stat. § 609.485, subd. 2 (2000) (emphasis added). The state presented evidence that appellant violated that portion of the statute.

Finally, appellant contends that the state’s decision to charge him with escape constituted vindictive prosecution in the aftermath of this court’s earlier reversal of convictions for appellant’s conduct after he absconded. This issue was not raised at trial, and the state had no opportunity to respond to the assertion. See State v. Christian, 657 N.W.2d 186, 195 (Minn.2008) (deciding not to reach merits of appellant’s ineffective assistance of counsel claim where record did not provide sufficient basis for review). As a result, we affirm the conviction without comment on the vindictive prosecution issue, which appellant can raise in postconviction proceedings.

DECISION

Under Minn.Stat. § 609.485 (2000), appellant, who absconded from electronic monitoring, was properly convicted of escaping lawful custody notwithstanding he was on an intensive supervised-release program.

Affirmed.

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

      . Appellant's earlier conviction was reversed in State v. Wickner, No. C0-01-1020, 2002 WL 977313 (Minn.App. May 14, 2002). Subsequent to the trial in the case reviewed here, appellant was again convicted for conduct occurring after he absconded from electronic monitoring, and appeal proceedings on that conviction are pending.


author: KAPSNER, Justice.

text:
    2004 ND 24
    David GROSS, Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 20030224.
    Supreme Court of North Dakota.
    Jan. 28, 2004.

      Richard R. LeMay, Legal Services of North Dakota, Minot, N.D., for appellant.
    Jean R. Mullen, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for appellee.
   KAPSNER, Justice.

[¶ 1] David Gross appealed from a district court judgment affirming a North Dakota Department of Human Services’ decision finding Gross had misutilized medical sendees and placing him in the medicaid lock-in program under N.D. Admin. Code § 75-02-02-11. We conclude the Department’s findings are supported by a preponderance of the evidence, and its findings support its decision to place Gross in the lock-in program. We affirm.

I

[¶ 2] Medicaid is a cooperative federal-state program designed to furnish financial assistance to needy persons for their medically necessary care. Allen v. Wessman, 542 N.W.2d 748, 752 (N.D.1996). Each state electing to participate in the medicaid program is required to establish a plan to implement the program in that state. 42 U.S.C. § 1396a. North Dakota has elected to participate in the program and has designated the Department to implement a medicaid plan. See N.D.C.C. ch. 50-24.1. In implementing a medicaid plan, the Department must “provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services.” 42 U.S.C. § 1396a(a)(30)(A). Under 42 U.S.C. § 1396n(a)(2), the Department’s plan may restrict a medicaid recipient from obtaining medicaid services from designated providers for a reasonable period of time if the individual has utilized services at a frequency or amount not medically necessary as determined in accordance with state utilization guidelines. The Department has adopted a lock-in program for medicaid recipients who have misutilized medical services to limit those recipient’s medical care and treatment to a single physician to prevent continued mi-sutilization of services. See N.D. Admin. Code § 75-02-02-11.

[¶ 3] Gross is a medicaid recipient; he has received medical services from many providers for an assortment of medical problems. In December 1999, his treating physician at that time, Dr. Melissa Hall, recommended Gross for the lock-in program. After a medical utilization review of medical services provided to Gross from October 1, 1998, through January 31, 2000, the Department withdrew a recommendation to place Gross in the lock-in program and recommended reviewing his utilization in January 2001. In October 2000, Gross’s treating physician at that time, Dr. Michael Sheaffer, recommended Gross for the lock-in program. In January 2001, the Department conducted a utilization review of medical services provided to Gross from February 1, 2000, through January 2, 2001.

[¶ 4] In May 2001, the Department notified Gross it had determined he had mi-sutilized medical services and was being placed in the lock-in program. The Department notified Gross it had found he had sought second opinions for the same condition from a large number and variety of physicians, he had failed to comply with physician recommendations, he had switched primary care physicians when an attempt had been made to address addiction issues, and his decision to switch primary care physicians had detrimentally affected the care of his addiction and other issues. The Department informed Gross he would be required to select one physician and one pharmacy for 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. See N.D. Admin. Code § 75-02-02-11(5). The Department advised Gross he would be responsible for payment of any medical services received without a referral from his lock-in physician. Id.

[¶ 5] Gross requested a hearing. After a formal hearing, an administrative law judge (“ALJ”) recommended affirming the decision to place Gross in the lock-in program. The Department adopted the ALJ’s recommendation, and Gross appealed to the district court. The district court dismissed Gross’s appeal, but this Court reversed the district court’s decision and remanded to that court for a decision on the merits. Gross v. North Dakota Dep’t of Human Servs., 2002 ND 161, ¶¶ 1, 12, 652 N.W.2d 354. On remand, the district court affirmed the Department’s decision.

II

[¶ 6] When an administrative agency decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the decision and findings of the district court, although the district court’s analysis is entitled to respect if its reasoning is sound. New Town Pub. Sch. Dist. v. State Bd. of Pub. Sch. Educ., 2002 ND 127, ¶ 5, 650 N.W.2d 813; Feist v. North Dakota Workers Compensation Bur., 1997 ND 177, ¶ 8, 569 N.W.2d 1. Under N.D.C.C. §§ 28-32-46 and 28-32^19, we affirm an agency’s decision if its findings of fact sufficiently address the evidence presented by the appellant and are supported by a preponderance of the evidence, its conclusions of law and order are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law and does not violate the claimant’s constitutional rights, its rules or procedures have not deprived the appellant of a fair hearing, its conclusions of law and order sufficiently explain its rationale for not adopting any contrary recommendation by an ALJ, and the provisions of N.D.C.C ch. 28-32 have been complied with in proceedings before the agency. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. New Town, at ¶ 5. Rather, we determine only whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Id.

[¶ 7] Gross argues the Department failed to meet its burden of showing he misutilized medical services under N.D. Admin. Code § 75-02-02-11, which provides, in part:

1. For purposes of this section:
a. “Lock-in” means the process used to limit a recipient’s medical care and treatment to a single physician or other provider in order to prevent the continued misutilization of services.
c. “Misutilization” means the incorrect, improper, or excessive utilization of medical services which may increase the possibility of adverse effects to a recipient’s health or may result in a decrease in the overall quality of care.
2. Lock-in may be imposed by the department on a recipient who has mi-sutilized services, including:
a. Securing excessive services from more than one provider when there is little or no evidence of a medical need for those services;
b. Drug acquisition in excess of medical need resulting from securing prescriptions or drugs from more than one provider; or
c. Excessive utilization of emergency services when no medical emergency is present.
4. The following factors must be considered in determining if lock-in is to be imposed:
a. The seriousness of the misutilization;
b. The historical utilization of the recipient; and
c. The availability of a lock-in physician or provider.

Gross concedes he received medical services on numerous occasions, but he claims it is undisputed he was in need of those services. He argues the Department must show more than frequent use of medical services to establish misutilization under N.D. Admin. Code § 75-02-02-11. He argues he did not misutilize medical services, because he had valid medical reasons for each of his visits to doctors. We reject Gross’s narrow interpretation of N.D. Admin. Code § 75-02-02-11.

[¶ 8] We construe administrative regulations, which are derivatives of statutes, under well-established principles for statutory construction. North Dakota Dep’t of Human Servs. v. Ryan, 2003 ND 196, ¶ 11, 672 N.W.2d 649. Misutilization means “excessive utilization of medial services which may increase the possibility of adverse effects to a recipient’s health or may result in a decrease in the overall quality of care.” N.D. Admin. Code § 75-02-02-ll(l)(c). Under N.D. Admin. Code § 75-02-02-11(2), the Department may impose a lock-in on a recipient who has misutilized services, including securing excessive services from more than one provider when there is little or no evidence of a medical need for those services. A definition that uses the word “includes” is partial and non-exclusive. See Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 12, 655 N.W.2d 60. The plain language of N.D. Admin. Code § 75 — 02—02—11(1)(c) and (2) authorizes the Department to place a medicaid recipient in the lock-in program for excessive utilization of medical services from more than one provider when those excessive medical services may increase the possibility of adverse effects to the recipient’s health or may result in a decrease in the overall quality of care to the recipient and when there is little or no evidence of a medical need.

[¶ 9] Although Gross claims he had a medical reason for each visit to various doctors, the Department’s decision recognized Gross’s history of seeing many physicians and switching physicians. Two of Gross’s primary care physicians, Dr. Hall and Dr. Sheaffer, recommended he be placed in the lock-in program. Dr. Hall expressed concerns about Gross’s “addiction to benzodiazepines,” and Dr. Sheaffer expressed concerns about getting Gross into the lock-in program to “help him to abide by physicians’ recommendations.” The Department found Gross had experienced adverse health problems as a result of uncoordinated medical care. The Department’s first utilization review in February 2000 indicated Gross had seen seventeen different physicians from October 1, 1998, through January 31, 2000, with seven physicians prescribing medications, and out of thirty-eight prescriptions, twenty-one were considered addicting. The Department’s second utilization review was conducted in January 2001 and covered from February 1, 2000, through January 2, 2001. The Department found that during that time, Gross saw sixteen different physicians, with four prescribing medications, and out of sixty-nine prescriptions, thirty-five were considered possibly addicting. The Department also found Gross saw “a large number of physicians for opinions concerning the same condition, problems with his eyes.”

[¶ 10] The Department found the decision to place Gross in the lock-in program was supported by a preponderance of the evidence, stating the testimony and documentary evidence shows “the decision was made as a result of concern for Mr. Gross’s health to address his addiction to medication, and to halt his pattern of going from doctor to doctor seeking one who might have an opinion which may be in better agreement with what he thinks might be done to correct his problem.” The Department concluded Gross’s “excessive utilization of medical services for the same condition and switching physicians to avoid addressing his addiction to certain medications amounts to misutilization” under N.D. Admin. Code § 75-02-02-ll(l)(c).

[¶ 11] Under this Court’s deferential standard of review of agency decisions, we do not make independent findings of fact or substitute our judgment for that of the Department. We conclude a reasoning mind could reasonably conclude from the entire record that Gross’s excessive use of medical services constituted misutilization under N.D. Admin. Code § 75-02-02-11. We therefore conclude the Department’s findings are supported by a preponderance of the evidence, and its findings support its decision to place Gross in the lock-in program.

Ill

[¶ 12] We affirm the judgment affirming the Department’s decision.

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


author: MARING, Justice.

text:
    2004 ND 26
    William A. PIERCE and Carol Pierce, Plaintiffs and Appellants v. B.P.O. OF ELKS LODGE NO. 1214, Defendant and Appellee.
    No. 20030017.
    Supreme Court of North Dakota.
    Jan. 28, 2004.

      William A. Herauf (argued), Reichert & Herauf, P.C., Dickinson, N.D., and Gary L. Jackson, Sidney, MT, for plaintiffs and appellants.
    H. Malcolm Pippin (argued), Nilles, Hansen & Davies, Ltd., Williston, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] William A. and Carol Pierce appealed from judgments dismissing their action against B.P.O. of Elks Lodge No. 1214 (“Elks”) for breach of a business lease agreement and related damages. We conclude genuine issues of material fact exist which precluded the district court from dismissing the Pierces’ claims through summary judgment. We reverse and remand for further proceedings.

I

[¶ 2] In the fall of 1994, the Elks in Williston leased part of its premises to the Pierces for the purpose of establishing a dining room and lounge business. The written lease agreement ran from October 1, 1994, through September 30, 1995. Under the agreement, the Pierces had an option to renew the lease for two additional one-year periods if they were current with the rent and complied with other obligations, and if lease renewal negotiations were commenced “at least 30 days prior to the expiration of the initial one year term of this lease.” The Pierces were also required to give the Elks a $1,000 security deposit; The Pierces began to conduct business in the Elks during October 1994, and later negotiated with the Elks and renewed the lease from October 1, 1995, through September 30, 1996. This lease also gave the Pierces an option to renew for two additional one-year terms, provided the Pierces complied with their obligations under the lease agreement.

[¶ 3] According to Elks officials, they became concerned about the Pierces’ business during the summer of 1996 because the premises was not being properly maintained, the business was operating with irregular hours, utility and rent bills were not being paid in a timely manner, and William Pierce had received unfavorable publicity in the newspaper. According to William Pierce, lease negotiations took place before the lease ran out, but the Elks was renovating and remodeling parts of the building and was proposing changes about how the club would be run, and he was concerned how the changes would affect the business. William claimed that during September and October 1996, he asked an Elks official “when the new lease was going to be ready on a couple of different occasions and was always told that the lease was in the process of being prepared.” No new lease was signed by October 1, 1996. According to William, he did not receive a copy of the proposed 1996-1997 lease until October 1996, but various changes had been made to the lease terms and the Pierces would not sign it.

[¶ 4] In mid-October 1996, the Elks decided to lease the premises to other persons. According to the Elks, officials met with William Pierce, all agreed to terminate the lease, and the Elks had an attorney prepare a document titled “Mutual Voluntary Termination of Business Lease and Assignment of Liquor and Beer Licenses and Rights in Charitable Gaming Permits,” setting forth the terms the parties had agreed upon. The document required the Pierces to sell their existing food and beverage inventory to the new tenants, transfer the liquor and beer licenses and rights under charitable gaming permits to the new tenants for a certain price, and forfeit the $1,000 security deposit in lieu of cleaning the carpets and repairing Elks property. The Pierces did not sign the mutual termination agreement, but did vacate the premises, sell their inventory, and transfer the licenses and permits as called for by the written mutual termination agreement.

[¶ 5] In December 1998, the Pierces sued the Elks, claiming it breached the lease agreement by failing to honor the option to renew. The Pierces also sought return of their security deposit and payment for services, food and beverages that they supplied to the Elks trustees. The Elks claimed the parties had voluntarily terminated the lease, the security deposit was forfeited for the Pierces’ failure to clean the carpet and make required repairs to the property, and the payment for additional services to the trustees was not the responsibility of the Elks. The district court granted the Elks’ motion for summary judgment dismissing the complaint. The court held:

Only one conclusion can reasonably be drawn from the evidence in this case: Despite the fact that Pierces did not sign the Mutual Termination Agreement, they nevertheless fully 'performed their obligations under that agreement and accepted the benefits thereof. Likewise, the Elks did all that was required of that entity under the agreement. According to the terms of the Mutual Termination Agreement, the business (i.e., lessor/lessee) relationship between the parties terminated effective November 1, 1996. Under the circumstances, the Court finds — as a matter of law — that Pierces have no claim against the Elks for breach of contract.

[¶ 6] The court did not address the Pierces’ claim for payment for additional services, but dismissed the complaint in its entirety, as well as the Elks’ counterclaims.

II

[¶ 7] The Pierces argue the district court erred in granting summary judgment dismissing their breach of contract claim against the Elks.

[¶ 8] Our standard of review for summary judgments was recently summarized in Weiss v. Collection Ctr., Inc., 2003 ND 128, ¶ 8, 667 N.W.2d 567:

Summary judgment is a procedural device which promptly resolves an action on the merits without a trial if the evidence shows either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not change the result. Hoffner v. Johnson, 2003 ND 79, ¶ 5, 660 N.W.2d 909. If reasonable persons could reach only one conclusion from the facts, issues of fact may become issues of law. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357: “Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts.” Meide v. Stenehjem, 2002 ND 128, ¶ 6, 649 N.W.2d 532. When reviewing a summary judgment, this Court views the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Hoffner, at ¶ 5. We review de novo the question of law whether the trial court properly granted summary judgment. Id.

[¶ 9] The Pierces argue the court erred in ruling they had consented to the termination of their option to renew the lease, because they did not sign the mutual termination agreement and because their actions, although in conformity with the written agreement, were attempts to mitigate damages. The Elks argues the Pierces communicated their consent to the written agreement by performing its terms and accepting its benefits, and thereby surrendered the lease by operation of law. See, e.g., Sanden v. Hanson, 201 N.W.2d 404, 409 (N.D.1972).

[¶ 10] It is well-settled that parties to a lease of real property may by mutual consent terminate, alter, or amend their agreement. Moen v. Thomas, 2001 ND 95, ¶ 18, 627 N.W.2d 146; N.D.C.C. § 47-16-14(2). In Sanden, 201 N.W.2d at 409, this Court said:

The mutual consent of the parties required by § 47-16-14 may be express or implied from the conduct of the parties. Thus a lease may be terminated or surrendered either by express agreement or by operation of law, whereby the surrender results from acts of the parties to the lease which imply mutual consent to the termination.

Whether a surrender and acceptance has occurred is a question of fact. See Signal Management Corp. v. Lamb, 541 N.W.2d 449, 451 (N.D.1995).

[¶ 11] It is equally well-settled that, “if there is a breach of a lease agreement, there is a duty on the nonbreaching party to minimize the damages.” Tweeten v. Miller, 477 N.W.2d 822, 825 (N.D.1991); see also 49 Am.Jur.2d Landlord and Tenant § 97 (1995) (stating “[a] lessee is required to make a reasonable effort to mitigate damages resulting from a lessor’s breach”). Therefore, the Pierces in this case had a duty to mitigate damages if the Elks breached the lease agreement as they claim.

[¶ 12] In Lamb, 541 N.W.2d at 452, this Court noted the “obvious tension between the common law doctrine of surrender by operation of law and the lessor’s obligation to mitigate damages.” In Lamb, the lessor sued the lessee for unpaid rents after the lessee had breached the lease and vacated the premises. After the lessee vacated the premises, the lessor leased to a new tenant. Following a trial, the court dismissed the action, ruling the lessor had accepted the lessee’s surrender of the premises by operation of law which extinguished the leasehold. This Court reversed and remanded for further consideration under the appropriate legal standard:

The trial court’s decision lacks any analysis of mitigation of damages. Although the trial court noted at the outset that “a landlord has the option to accept surrender of the premises or enforce the lease and attempt to mitigate damages,” the court’s decision did not further consider mitigation of damages. Many of the facts relied on by the court are as consistent with mitigation of damages as they are with surrender and acceptance of the lease. However, the MAR-SON [, Inc. v. Terwaho Enterprises, Inc., 259 N.W.2d 289 (N.D.1977) ] holding is not applied, and there are no findings about whether any of Signal’s actions were taken in a good faith or a bad faith effort to mitigate damages. See also Ruud v. Larson, 392 N.W.2d 62 (N.D.1986).
We conclude the trial court’s finding that Signal accepted surrender of the premises was induced by an erroneous view of the law as to the interrelationship of surrender and acceptance and mitigation of damages. We do not hold that the trial court’s finding would necessarily be clearly erroneous if it were reached after the trial court had properly viewed the doctrine of surrender and acceptance in conjunction with a lessor’s duty to mitigate damages. See, e.g., Reid [v. Mutual of Omaha Ins. Co., 776 P.2d 896, 900 n. 2 (Utah 1989) ]. Rather, the law of leases is “a blend of property concepts and contractual doctrines .... ” 2 R. Powell, [The Law of Real Property, at p. 16-10 (1994) ]. As one court explained, “[wjhether contract principles, property principles, or a blend of both control the resolution of a particular case depends largely on the intent of the parties, the interests of society, and the relative fairness of the results to be achieved through selection among the potentially applicable principles.” Schneiker [v. Gordon, 732 P.2d 603, 607 (Colo.1987) ]. See also Sommer v. Kridel, 74 N.J. 446, 378 A.2d 767 (1977).

Lamb, 541 N.W.2d at 453.

[¶ 13] The Pierces dispute that they mutually agreed to termination of the lease. According to William Pierce’s affidavit, he “understood that we had the right to automatically renew the lease if we wanted to continue the lease with the same terms and that the renewals would only have to be renegotiated if we wanted to change something like pay less rent or pay less than all the utilities.” William stated that in July 1996 he was invited to a meeting of the Elks board and was informed of plans to renovate and remodel the main floor of the Elks building, and a board member “approached me about the concept of returning the Elks lounge to its former status ... of Elks members only and allowing the terms of our lease to stand as originally signed.” William said that “[i]n September and early October 1996, I asked Jerry LeDosquet [then Exalted Ruler] when the new lease was going to be ready on a couple of different occasions and was always told that the lease was in the process of being prepared.” The Pierces also claim they were current on their lease payments and all other lease obligations as of September 30, 1996, and received no written or oral notice from the Elks of any default or forfeiture under the provisions of the lease.

[¶ 14] According to William, in October 1996 the Exalted Ruler of the Elks gave him a copy of the proposed 1996-1997 lease, but the lease contained several amendments. William said, “I stated the lease should stand as originally written, but was agreeable to a change in the operation plan as I had discussed with Ron Stenson in July, 1996.” William said that during the middle of October 1996, he was informed by Elks officials that they would not renew the lease and had obtained another lessee. According to William, “[w]hen I asked why our lease was not being renewed I was told they didn’t want to get into it, but they had someone coming November 1, 1996, and I had to be out by then. I was not given any other reason at that time, or previous to that time, as to why our lease would not be renewed.” William further explained:

In the week following th[is] conversation ... Jerry LeDosquet and David Slais delivered to me a document entitled “Mutual Voluntary Termination of Business Lease and Assignment of Liquor and Beer Licenses and Rights in Charitable Gaming Permits”. At the time the document was delivered to me nothing was said. A couple days later, Jerry LeDosquet came back into the kitchen and asked me if I had signed “it”. I replied that I had not because I didn’t agree with it. Neither I nor Carol ever signed the Mutual Voluntary Termination agreement, nor have either of us ever agreed to its terms verbally or otherwise.
Carol and I believed we had performed all of the terms and conditions of our lease and that we had a right to automatically renew our lease for an additional term. However, the Elks was giving us no choice but to begin to remove our property from the premises and look for another location to continue our business.
Since it was clear to me I had no choice but to leave and I had no other location readily available to move to, I also had no choice but to sell my food inventory, liquor inventory and liquor license. It was originally agreed with the Elks officers that the Elks would purchase these assets from Carol and I for $22,500.00.
One week before the end of October, 1996, I met with Ron Stenson and Dorothy (Dot) Balbinot, the Elks new lessee. Dot Balbinot told me she would not pay $22,500.00 for our inventory and licenses. I said that I wasn’t leaving then until I received a written notice of termination of our Lease. Ron Stenson told me the Mutual Voluntary Termination was a 30 day notice and that the Elks lawyer would have Carol and I removed with no problems. The end result was that Carol and I felt forced into selling our inventory and licenses for $17,500.00. At that time we did not have anywhere to store or take our inventory to. We believed there was no other choice.
At no time did either Carol or I agree to the termination of rights and obligations under the Business Lease dated October 1,1995.

[¶ 15] As in Lamb, the facts relied on by the district court to determine the Pierces had fully performed their obligations and accepted the benefits under the unsigned written termination agreement and thereby voluntarily surrendered the lease are equally consistent with the Pierces mitigating their damages for the Elks’ alleged breach of the lease agreement. Compare Felco v. Doug’s N. Hill Bottle Shop, 1998 ND 111, ¶ 16, 579 N.W.2d 576 (holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent “only ” with the existence of the alleged oral contract). The Pierces’ vacation of the premises, sale of the inventory, and transfer of the licenses and permits can be viewed as wholly consistent with a good faith effort to minimize the damages caused by the Elks’ alleged unilateral termination of the lease agreement on short notice. The district court did not address mitigation of damages in its decision and described the issues as being solely whether the Pierces took “any action consistent with the terms of the agreement,” and whether they “accept[ed] any benefits under the agreement.” The district court applied an inappropriate legal standard in this case. Viewing the evidence in the light most favorable to the Pierces, we conclude they have raised a genuine issue of material fact on whether they surrendered the lease and the Elks accepted the surrender by operation of law. A jury must make a factual finding on this issue after being properly instructed on the doctrine of surrender and acceptance in conjunction with a lessee’s duty to mitigate damages. See Lamb, 541 N.W.2d at 453.

[¶ 16] The Elks argues summary judgment is nevertheless appropriate. The Elks claims the Pierces had no right to renew after September 30, 1996 because they breached the lease by failing to make rental payments and comply with other lease obligations, and because the Pierces had not renegotiated the lease by August 30, 1996, as required under the terms of the lease. However, the Pierces have alleged that they were current in their lease payments “and all other obligations under the lease.” Furthermore, viewed in the light most favorable to the Pierces, the evidence suggests that the Elks simply delayed providing the Pierces a written lease agreement during September and October 1996, even though an agreement had been informally reached during the prior summer discussions between the parties. A jury will have an opportunity to address these disputed factual questions, if necessary, on remand.

Ill

[¶ 17] The district court dismissed the Pierce’s complaint in its entirety. The Pierces requested compensation for an outstanding balance due them for services, food and beverages supplied to the Elks trustees, but this claim was dismissed without explanation. On remand, the issue of whether the Pierces are entitled to this claimed compensation should be addressed.

IV

[¶ 18] The judgments are reversed and the case is remanded for further proceedings.

[¶ 19] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ„ concur.


author: NEUMANN, Justice. GERALD W. VANDE WALLE, C.J.

text:
    2004 ND 22
    Doreen T. CHAPMAN, Plaintiff and Appellant, v. Benton Dewayne CHAPMAN, Defendant and Appellee.
    No. 20030094.
    Supreme Court of North Dakota.
    Jan. 28, 2004.
    Rehearing Denied Feb.25, 2004.

      Jonathan Peter Anderson (argued), Special Assistant Richland County State’s Attorney, Fargo, for plaintiff and appellant.
    Benton Dewayne Chapman. No appearance.
   NEUMANN, Justice.

[¶ 1] The Southeast Regional Child Support Enforcement Unit (the “Unit”) appealed district court orders temporarily reducing the amount to be withheld from Benton Chapman’s wages for child support. We dismiss the appeal.

[¶ 2] The amended judgment entered in 1997 in the parties’ Cavalier County divorce action granted physical custody of the parties’ three children to Doreen Chapman, and ordered Benton Chapman to pay child support of $418 per month. An amended judgment entered in Cavalier County district court in 2000 increased Benton Chapman’s child support obligation to $690 per month. On December 31, 2002, the district court in Cavalier County ordered that the support order be transcribed and filed with the district court in Richland County, where Benton Chapman had become a resident, for enforcement of the support order.

[¶ 3] The district court in Richland County held a hearing on a matter which “came before the Court on the 23rd of January, 2003, pursuant to an Order to Show Cause, which had not yet been served or signed, for failure to pay child support on a timely basis.” After a hearing, which was attended by Ronald W. McBeth, Richland County Assistant State’s Attorney, and Benton Chapman, the district court found an accrued arrear-age in Benton Chapman’s child support obligation of $16,987.08, he “has had a cut in hours due to the winter months,” he had requested “a temporary decrease in child support while his hours are cut,” and he “does not have the current ability to pay” his child support obligation of $690 per month. The court ordered, in part:

The Defendant shall continue to pay current child support of Six Hundred Ninety Dollars ($690.00) per month on or before the 1st day of the month until further notice of this Court.
Further, for the next three (3) months ... withholding will be reduced to One Hundred Twenty Dollars ($120.00) per week with the remaining amount accruing as arrearages and in May, 2003 the withholding will return to One Hundred Ninety-one Dollars ($191.00) per week[.]

The district court also issued an order providing:

IT IS HEREBY ORDERED that the Richland County Clerk of court notify the Southeast Regional Child Support Enforcement Unit, PO Box 2806, Fargo North Dakota 58108-2806, that it will enforce this Court’s ability to pay child support order of January 27, 2003, in the above matter. The Southeast Regional Child Support Enforcement Unit will order wage withholding from the Defendant’s employer only in the amount indicated in the ability to pay order for February, March and April, 2003. Beginning May 2003, the original child support order will again be enforced for wage withholding.

[¶ 4] The Unit appealed the district court’s orders, raising several issues with regard to whether the district court had authority to temporarily modify or suspend the amount of child support collected through income withholding.

[¶ 5] “A party is entitled to have a court decide the merits of a dispute only after demonstrating standing to litigate the issues placed before the court.” Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, ¶ 13, 627 N.W.2d 379. “To be entitled to appeal a district court order to this Court, the party must be aggrieved by the order by having some legal interest that may be enlarged or diminished by the order.” Id. To appeal a district court decision, “a party must be injuriously affected by the decision.” Bernhardt v. Rummel, 319 N.W.2d 159, 160 (N.D.1982) (quoting State v. Bakke, 117 N.W.2d 689, 696 (N.D.1962)). “A contractual assignment of rights may confer standing to pursue an appeal.” Triple Quest, Inc., at ¶ 13.

[¶ 6] The Unit was not a party to the litigation before the district court, has not shown it has a contractual assignment of rights which might confer upon it standing to appeal the district court’s orders, and has not shown it has been injuriously affected by the district court’s orders. We conclude the Unit lacks standing to pursue this appeal. Thus, anything we might say about the issues raised would be purely advisory, and we do not render advisory opinions. In re Shatzka, 2003 ND 147, ¶ 8, 669 N.W.2d 95. See also Nodak Mut. Farm Bureau v. Kosmatka, 2000 ND 210, ¶ 10, 619 N.W.2d 852; Hurt v. Freeland, 1997 ND 194, ¶ 6, 569 N.W.2d 266; Sickler v. Kirkwood, 1997 ND 40, ¶ 5, 560 N.W.2d 532.

[¶ 7] The issues raised by the Unit were not raised in the district court. “[W]e will not address issues raised for the first time on appeal.” Bay v. State, 2003 ND 183, ¶ 14, 672 N.W.2d 270. “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205. “The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories.” Gonzalez v. Tounjian, 2003 ND 121, ¶ 31, 665 N.W.2d 705.

[¶ 8] The appeal is dismissed.

[¶ 9] MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

GERALD W. VANDE WALLE, C.J.

I concur in the result.