author: NEUMANN, Justice.

text:
    2004 ND 198
    Virgil ROTT, Shirley H. Rott, and Dwight D. Rott, Plaintiffs and Appellants v. CONNECTICUT GENERAL LIFE INSURANCE CO., Defendant and Appellee.
    No. 20040172.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      Dwight Rott (argued), pro se, Dawson, N.D.; Virgil Rott (appeared), pro se and Shirley H. Rott (on brief), pro se, Jamestown, N.D., plaintiffs and appellants.
    Howard D. Swanson, Letnes, Marshall, Swanson & Warcup, Ltd., Grand Forks, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Virgil Rott, Shirley Rott, and Dwight Rott appealed from an order denying their motion for a default judgment and dismissing their request for relief from a foreclosure judgment and sale of land. Because the Rotts have conveyed their claimed interest in the land by quitclaim deed to an entity that has not been substituted as a party to this appeal, we dismiss the Rotts’ appeal.

[¶ 2] In 1983, Connecticut General Life Insurance Company obtained a foreclosure judgment against Virgil and Shirley Rott. During the foreclosure proceedings, the Rotts filed bankruptcy proceedings on more than one occasion, and the foreclosure proceedings resulted in protracted litigation. See Rott v. Jaeger, 510 N.W.2d 651 (N.D.1994); Rott v. Connecticut Gen. Life Ins. Co., 478 N.W.2d 570 (N.D.1991) cert. denied 504 U.S. 959, 112 S.Ct. 2313, 119 L.Ed.2d 233 (1992); Connecticut Gen. Life Ins. Co. v. Rott, 422 N.W.2d 98 (N.D.1988). Connecticut General ultimately purchased the property at a foreclosure sale. The Rotts did not redeem the property, and Connecticut General obtained a sheriffs deed and eventually sold the property to third parties.

[¶ 3] In 2004, the Rotts brought this proceeding, styled as a “complaint to void judgments and their actions” under N.D.R.Civ.P. 60(b)(iv). Rotts sought relief from the foreclosure judgment and the sale of the property, which they claimed were void because the judgment and the sale occurred while bankruptcy proceedings were pending and the bankruptcy court had exclusive jurisdiction. Connecticut General did not answer, and the Rotts moved for a default judgment. The trial court denied the Rotts’ motion for a default judgment and dismissed their proceeding, concluding it was barred by lach-es, by res judicata and collateral estoppel, and by N.D.C.C. § 28-01-15(2) and (3).

[¶ 4] After the Rotts filed their notice of appeal, they filed documentation with this Court, stating they had deeded their interest in the land by quitclaim deed to the Pembina Nation Little Shell Band of North America. The Rotts’ documentation includes the quitclaim deed, which indicates it was notarized and recorded in the Kidder County Recorder’s Office in August 2004, and conveyed the Rotts’ interest in the land to the Pembina Nation Little Shell Band of North America. During oral argument to this Court, the Rotts acknowledged the quitclaim deed had been executed and recorded. The quitclaim deed transferred the Rotts’ interest, if any, in the land to “the Pembina Nation Little Shell Band of North America.” See Gajewski v. Bratcher, 221 N.W.2d 614, 637 (N.D.1974). The Pembina Nation Little Shell Band of North America has not been substituted as a party to this appeal under N.D.R.App.P. 43(b). If no action has been taken to substitute the appropriate entity as a party to this appeal, the appeal may be dismissed. See N.D.R.App.P. 43(a)(1) and (b).

[¶ 5] We dismiss the Rotts’ appeal.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2004 ND 203
    Trinh Thi (Leelee) ROBERSON, Plaintiff and Appellee v. Rowdy T. ROBERSON, Defendant and Appellant.
    No. 20040125.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      Theresa L. Zimmerman (argued), American Legal Services, Bismarck, N.D., for defendant and appellant.
    Charles R. Isakson (on brief), Chapman and Chapman, P.C., Bismarck, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Rowdy Roberson (“Roberson”) appeals from a trial court amended judgment granting custody of his and Leelee Rath’s (“Rath”), two minor children to Rath. We affirm.

I

[¶ 2] Roberson and Rath’s five-year marriage ended in 2001. The couple has two children, Taylor, age 7, and Lily Anne, age 3. The terms of their divorce stipulated a joint custody arrangement, with the couple alternating custody of the children each week and holiday. In July 2003, Roberson filed a motion for a change of custody, requesting that he be granted full custody of the children. Roberson claimed that Rath was not properly caring for the children and that she was not exhibiting proper concern for their well-being and safety. In December 2003, Rath responded with a counter-motion requesting that a change of custody be granted in her favor. An evidentiary hearing was held where affidavits and testimony in support of both parties were received. The trial court granted full custody to Rath, finding a material change in circumstances necessitating a change of custody had occurred. Specifically, the court found Roberson had failed to comply with the terms of the original custody arrangement, attempted to willfully alienate the minor children from Rath, and a change in custody in favor of Rath was necessary to promote the best interests of the children. Roberson appeals.

II

[¶ 8] Roberson argues on appeal that the trial court erred in finding that the best interests of the children were served by granting Rath full custody. Roberson contends that had the trial court applied his version of the facts to the best interests and welfare factors contained in N.D.C.C. § 14-09-06.2, custody would have been awarded to him.

III

[¶ 4] A party seeking modification of a custody order bears the burden of showing a change in custody is required, and the trial court’s decision on the issue is a finding of fact subject to the clearly erroneous standard of review. See Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182; Damron v. Damron, 2003 ND 166, ¶ 5, 670 N.W.2d 871; Lanners v. Johnson, 2003 ND 61, ¶ 4, 659 N.W.2d 864; Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38 (citing Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480). A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. N.D.R.Civ.P. 52(a); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d 390.

IV

[¶ 5] Section 14-09-06.6(6), N.D.C.C., provides:

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

[¶ 6] Once a motion for change of custody has been made, the trial court must decide if a prima facie case warranting an evidentiary hearing has been established. Section 14-09-06.6(4), N.D.C.C., outlines the methodology a court should utilize in considering a motion for change of custody. It reads as follows:

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

A trial court should determine “whether a party has established a prima facie case by accepting the truth of the moving party’s allegations and may not weigh conflicting allegations.” Mock v. Mock, 2004 ND 14, ¶ 10, 673 N.W.2d 635.

V

[¶ 7] Both Roberson’s original motion and Rath’s counter-motion for a change in custody were brought under N.D.C.C. § 14-09-06.6(6). The trial court found Roberson’s initial motion did establish a pri-ma facie case justifying modification of the custody judgment and, under N.D.C.C. § 14-09-06.6(4), held an evidentiary hearing.

[¶8] At the hearing, Roberson and Rath each presented their version of the facts through personal testimony, witness testimony, and witness affidavits. At the close of the evidentiary hearing, the trial judge asked both parties to prepare concluding documents to include: proposed findings of fact, conclusions of law, and an order for amended judgment. In his memorandum order, the trial judge found in favor of Rath and stated he was adopting her concluding documents. The trial court found that Roberson had failed to comply with the terms of the original custody judgment and attempted to willfully alienate the minor children from Rath. The trial court concluded a change of custody in favor of Rath was necessary to promote the best interests of the children.

[¶ 9] Roberson contends that the trial court’s adoption of Rath’s version of the facts is in error and that applying his version of the facts to the best interests and welfare factors under N.D.C.C. § 14-09-06.2 results in an award of full custody to him. We disagree.

VI

[¶ 10] In effect, Roberson is asking this Court to reweigh the evidence, thereby ignoring precedent and applying a de novo standard of review. We decline to do so. We continue to hold that when two parties present conflicting testimony on material issues of fact, as in the instant case, we will not redetermine the trial court’s findings based upon that testimony. See McDowell v. McDowell, 2003 ND 174, ¶ 16, 670 N.W.2d 876. “In a bench trial, the trial court is the ‘determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.’ We do not reweigh evidence or reassess credibility, nor do we reexamine findings of fact made upon conflicting testimony. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.” Id. (quoting Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 24, 646 N.W.2d 681 (citations omitted)).

[¶ 11] We have previously noted our disapproval of the wholesale adoption of one party’s proposed findings of fact. See Smith Enterprises v. In-Touch Phone Cards, 2004 ND 169, ¶ 11, 685 N.W.2d 741; Warner v. Johnson, 213 N.W.2d 895, 898-99 (N.D.1973). However, although we prefer trial courts prepare their own findings of fact, if the adopted findings adequately explain the basis of the trial court’s decision, we will uphold them unless clearly erroneous. See McDowell v. McDowell, 2003 ND 174, ¶ 8, 670 N.W.2d 876; Hendrickson v. Hendrickson, 553 N.W.2d 215, 218 (N.D.1996). While this Court does not require a separate finding for each factor, a trial court should state its findings with sufficient enough specificity to enable a reviewing court to understand the factual basis behind the decision. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 4, 657 N.W.2d 255. Here, the trial court explicitly noted that Roberson had failed to comply with the terms of the original custody arrangement, frequently disallowed exercise of Rath’s visitation rights, attempted to willfully alienate the minor children from Rath, and a change in custody in favor of Rath is necessary to promote the best interests of the children.

[¶ 12] The record on appeal supports the trial court’s decision granting custody to Rath. There is evidence to indicate that Roberson took advantage of Rath’s language limitations by convincing her the judgment indicated that he should have custody weekdays and holidays. Rath testified that Roberson, with the cooperation of his family, made the weekly exchange of the children very difficult. One of Taylor’s teachers testified that Roberson spoke poorly about Rath in front of Taylor and told Taylor to “tell your mother you don’t want to go home with her.” Another teacher testified that Roberson’s girlfriend and her children on several occasions pressured Taylor to leave school with them, even though it was Rath’s week to have custody. When the teacher intervened and explained that it was Rath’s week to have the children, Roberson wrote a note to the teacher and phoned the principal complaining that they should allow Taylor to do as he wished.

[¶ 13] “The right of the children to visitation is presumed to be in their best interests.” Hendrickson v. Hendrickson, 2000 ND 1, ¶ 19, 603 N.W.2d 896. We have recognized that “visitation problems may justify a change in custody when a court finds such problems have worked against a child’s best interests.” Id. at ¶ 18 (citation omitted). The trial court’s findings make it clear that Roberson attempted to disrupt and deny Rath’s contact with the children, actions detrimental to their best interests. The record supports the trial court’s basis for its conclusions of law. We conclude the trial court’s decision to change custody to Rath was not clearly erroneous.

VII

[¶ 14] We affirm the trial court’s amended judgment granting full custody of Roberson and Rath’s two minor children to Rath.

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

      . Leelee Roberson has remarried and is now known as Leelee Rath.


author: KAPSNER, Justice.

text:
    2004 ND 202
    In the Interest of E.R., a Child Lisa Johnson, L.S.W., Petitioner and Appellee v. Director, Cass County Social Services, M.R., R.R., John Doe, E.R., and Jared Simonson, Guardian ad Litem, Respondents M.R., Respondent and Appellant.
    No. 20040122.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      Constance Louise Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner and appellee.
    Douglas W. Nesheim, Johnson, Ramstad & Mottinger, Fargo, N.D., for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] M.R. (“Martha,” a pseudonym) appealed from a judgment terminating her parental rights to her daughter, E.R. (“Elsie,” a pseudonym). We hold the trial court’s findings that there is clear and convincing evidence Elsie is deprived, the causes and conditions of the deprivation are likely to continue and, as a result of the continued deprivation, Elsie will probably suffer serious physical, mental, or emotional harm if parental rights are not terminated, are not clearly erroneous. We affirm.

I. Facts

[¶ 2] Elsie was born in January 2001. Martha and Elsie’s father, R.R. (“Robert,” a pseudonym) married shortly thereafter. About two months after Elsie’s birth, Robert was incarcerated on multiple convictions of reckless endangerment, and he continued to be imprisoned at the time of the termination hearing. Martha was arrested for possession of methamphetamine and drug paraphernalia in February 2003, and Elsie was at that time removed from her home and placed with Robert’s half brother and wife, where she currently resides.

[¶ 3] Martha has a lengthy history of drug use starting at the age of 14. She has been diagnosed with dependencies on amphetamines, cannabis, and nicotine. Lisa Johnson, a licensed social worker with Cass County Social Services, was assigned as case manager for this family. She testified that Martha has “some pretty good parenting skills” and during visitations things went well. However, Martha was again arrested on May 13, 2003, on charges that she sold fake methamphetamine to an undercover informant. Martha was convicted on those charges and at the time of the hearing was incarcerated, with a release date of October 25, 2005.

II. Standard of Review

[¶ 4] Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside unless clearly erroneous. When existing rules of procedure are amended or new rules are added we will apply them to actions then pending unless their application would not be feasible or would work an injustice. In re T.F., 2004 ND 126, ¶ 8, 681 N.W.2d 786. In this case, Martha requested a review of the referee’s decision by the district court. Under these circumstances, we will apply N.D.R.Civ.P. 52(a) as amended, and we will not set aside the court’s findings of fact unless they are clearly erroneous. See In Interest of T.J.L., 2004 ND 142, ¶ 2, 682 N.W.2d 735.

III. Parental Termination

[¶ 5] Under N.D.C.C. § 27-20-44(1)(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) by reason thereof 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 K.S., 2002 ND 164, ¶ 6, 652 N.W.2d 341.

A. Deprivation

[¶ 6] 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 time of the termination proceedings both parents were incarcerated, resulting in Elsie not having available parental care or control by either parent. The definition of a deprived child is broad enough to encompass a child whose parent is shown to be presently incapable of providing proper parental care or control. In re T.F., 2004 ND 126, ¶ 11, 681 N.W.2d 786. On March 4, 2003, Martha admitted Elsie is a deprived child, and Martha has not raised this element of parental termination as an issue on appeal.

B. Continued Deprivation

[1Í 7] Martha asserts there is not clear and convincing evidence to support a finding that the deprivation is likely to continue. In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough, and there must be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation. In re T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38.

[¶ 8] Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, a probability of serious mental and emotional harm to the child may be established by prognostic evidence that a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated. In re T.F., 2004 ND 126, ¶ 12, 681 N.W.2d 786. Although Martha is hoping for an earlier release date, her scheduled date of release is October 25, 2005. By her own testimony she admits that upon release she would not be able to immediately take custody of Elsie and that the child would have to be gradually returned to Martha’s care and custody. Johnson testified Martha has not changed the nature of her social group to one which would encourage Martha toward the direction of stability, sobriety, and being in a position to care for and nurture her child. Will Brink, a licensed addiction counselor with the Southeast Human Services Center, testified that while Martha agreed to attend “NA” meetings, she rejected the aftercare program with the service center, designed to change the behavior that led her to chemical dependency. He testified that without aftercare there is less chance of recovery. Failure to follow the recommendations for addiction recovery demonstrates an indifference toward one’s obligations and responsibilities as a parent. In re S.F., 2000 ND 161, ¶ 11, 615 N.W.2d 511.

[¶ 9] Martha’s history of drug use does not bode well for her to stay clean of drugs and out of prison. She admits that she has been a heavy user of methamphetamine since the age of 19, and although she claims to have quit using drugs during her pregnancy with Elsie, she thereafter relapsed into some usage. At the very least, she has continued to associate herself with persons involved in illegal drug use. The juvenile court made the following findings:

The deprivation of the child is likely to continue, due to the chronic nature of the mother’s chemical usage and dependency and the father’s chronic criminal behavior.
While the mother testified that she may be released from her incarceration early, and is eligible for programs that would make community placement available, those are only possibilities that have not yet been realized. It is not in the child’s best interests to continue in foster care in order to determine whether these options will ever materialize. Even if these opportunities were immediately available, this does not put the mother in a position to offer stability and parenting to the child any time soon.

When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life. In re C.R., 1999 ND 221, ¶ 12, 602 N.W.2d 520. The evidence supports the trial court’s finding there is clear and convincing evidence the deprivation is likely to continue, and we conclude that finding is not clearly erroneous.

C. Harm to the Child

[¶ 10] To terminate parental rights, the evidence must also show that as a result of the continued deprivation, the child is 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. Johnson testified that Elsie is a young child who needs permanency and stability, and harm will come to the child if termination is not granted, because she will not receive the stability and permanency that she now needs. Johnson testified by affidavit that “it is not in [Elsie’s] best interest to remain in a long term relative placement nor guardianship without the permanency afforded by adoptive status.”

[¶ 11] Assisting a parent to establish an adequate environment for the child by offering long term and intensive treatment is not mandated if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care. In re T.K., 2001 ND 127, ¶ 15, 630 N.W.2d 38. Regarding this issue the juvenile court found:

The child is likely to suffer serious physical, mental, or moral, or emotional harm as she is not afforded the stability necessary to form appropriate emotional bonds with her care providers if she is forced to linger in foster care until her parents are available to re-establish themselves in parental roles.

The record supports the trial court’s finding there is clear and convincing evidence Elsie will likely suffer harm if parental termination is not granted, and we conclude that finding is not clearly erroneous.

IV. Support Services

[¶ 12] Under N.D.C.C. § 27-20-32.2(2), reasonable efforts must be made to preserve and to reunify families, absent aggravated or other specified circumstances. Martha asserts there is not clear and convincing evidence to support a finding of aggravated circumstances which would obviate the need for Cass County Social Services to make reasonable efforts to preserve this family. Although the juvenile court made a finding there were aggravated circumstances, there was record evidence that Cass County Social Services did make efforts to reunite and preserve this family. Johnson testified it was Martha’s arrest on May 13, 2003, and her subsequent incarceration, which got the assistance plan by the social workers “off track.”

[¶ 13] It is not enough that a parent indicates a desire to improve behavior; rather, the parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent. McBeth v. M.D.K., 447 N.W.2d 318, 322 (N.D.1989). Whether there are aggravated circumstances which would obviate the need for providing assistance is not dispositive here. The record evidence shows that assistance was offered. Martha, by her voluntary conduct in breaking the law resulting in her incarceration, derailed that assistance. She cannot now complain that assistance was not made available to her.

V. Conclusion

[¶ 14] We hold the trial court’s finding that there is clear and convincing evidence to support the termination of Martha’s parental rights to Elsie is not clearly erroneous. Judgment affirmed.

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


text:
    2004 ND 204
    Debora HENG, Plaintiff and Appellant v. ROTECH MEDICAL CORPORATION and PSI Healthcare, Inc., d/b/a Arrowhealth Medical Supply, Defendants and Appellees.
    No. 20040082.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      Patricia R. Monson (argued) and Kirsti Broeder Hourigan (appeared), Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, ND, for plaintiff and appellant.
    Adele Hedley Page, Page Law Firm, L.L.C., Fargo, ND, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Debora Heng appealed from a summary judgment dismissing her retaliatory discharge and breach of contract claims against Rotech Medical Corporation and PSI Healthcare, Inc., doing business as Arrowhealth Medical Supply (hereafter collectively “Arrowhealth”), and ordering her to pay Arrowhealth’s attorney’s fees. We affirm in part and reverse in part, concluding the trial court correctly dismissed Heng’s breach of contract claim but erred in dismissing her retaliatory discharge claim.

I

[¶ 2] Arrowhealth provides respiratory therapy and medical equipment to patients in their homes. On August 10, 2001, Heng was hired to manage Arrowhealth’s Fargo office.

[IT 3] Arrowhealth allowed its service technicians, who were not licensed healthcare specialists or respiratory therapists, to assemble oxygen delivery systems and instruct patients in their use. Arrow-health’s job description for service technicians specifically provided service technicians were to deliver and set up equipment in customers’ homes and educate customers in proper use and care of the respiratory equipment. In November 2001 Heng hired a new service technician, who informed Heng that he believed Arrow-health’s practice violated North Dakota law. Heng reported this information to Arrowhealth’s Regional Manager, Adam Blumenshein, who assured her that Arrow-health’s practices were in accordance with all applicable laws and regulations.

[¶ 4] On December 19, 2001, Heng met in Duluth with Blumenshein and Arrow-health’s Corporate Compliance Coordinator, Julie Johnson. Heng again expressed concern over the legality of Arrowhealth’s practices, and they obtained a copy of the relevant regulation, N.D. Admin. Code § 105-03-01-02, which provides:

Home medical equipment and delivery. North Dakota Century Code chapter 43-42 prohibits the setup and instruction of medical devices related to the practice of respiratory care, gases, and equipment by a nonlicensed health care professional. The delivery and maintenance of medical devices related to the practice of respiratory care, gases, and equipment by a nonlicensed health care professional for the expressed purpose of self-care by a patient or gratuitous care by a friend or family member in the home or extended care facility is permitted.
This maintenance or delivery by the nonlicensed person does not include performing patient assessment, having direct patient contact or patient care relating to home respiratory care, or representing oneself as a certified or registered respiratory care practitioner.

Blumenshein told Heng he interpreted the regulation as allowing Arrowhealth’s practices. At the Duluth meeting, Blumen-shein also discussed with Heng personality conflicts and other personnel problems in the Fargo office.

[¶ 5] After returning to Fargo from the meeting, Heng anonymously contacted the North Dakota Respiratory Care Board. She was specifically told that the regulation prohibited service technicians from assembling oxygen delivery systems and instructing patients on their use. Heng read Arrowhealth’s service technician job description to the Board representative, and he advised her that allowing service technicians to perform those functions would be illegal.

[¶ 6] Heng then contacted Johnson, who told her to stop having the service technicians do set ups and patient instruction for the time being. Heng claims Johnson also told her not to tell anyone else about the issue, and Johnson would contact Blumenshein for further clarification. Heng subsequently called Blumen-shein, who was vacationing out of state, to further discuss the issue.

[¶ 7] On January 3, 2002, Blumenshein and Johnson met with Heng in the Fargo office. Heng claims she sought further guidance on the regulation but was given none. They also discussed ongoing personnel problems in the Fargo office, and Heng was advised that the situation would have to improve for the Fargo office to be successful. On January 18, 2002, Blumen-shein fired Heng.

[¶ 8] Heng brought this action alleging retaliatory discharge, breach of contract, and intentional infliction of emotional distress. The trial court granted Arrow-health’s motions for summary judgment dismissal of Heng’s retaliatory discharge and breach of contract claims, and Heng voluntarily dismissed her intentional infliction of emotional distress claim. Arrow-health moved for an award of attorney’s fees under N.D.C.C. § 34-01-20(3) as the prevailing party on the retaliatory discharge claim, and the court ordered Heng to pay $57,707.00 to Arrowhealth for its defense of the retaliatory discharge claim. Judgment was entered and Heng appealed.

II

[¶ 9] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly and expeditiously disposing of an action without a trial if 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 alter the result. Investors Real Estate Trust Props., Inc. v. Terra Pacific Midwest, Inc., 2004 ND 167, ¶ 5, 686 N.W.2d 140; Groleau v. Bjornson Oil Co., 2004 ND 55, ¶ 5, 676 N.W.2d 763. Whether summary judgment was properly granted is a question of law that we review de novo. Investors Real Estate Trust, at ¶ 5; Muhammed v. Welch, 2004 ND 46, ¶ 8, 675 N.W.2d 402. The party seeking summary judgment has the burden of showing that there is no genuine issue of material fact and that, under applicable principles of substantive law, the party is entitled to judgment as a matter of law. Groleau, at ¶ 5.

[¶ 10] In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, and that party must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Groleau, 2004 ND 55, ¶ 5, 676 N.W.2d 763; Muhammed, 2004 ND 46, ¶ 8, 674 N.W.2d 402. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Groleau, at ¶ 5; Muhammed, at ¶ 8. If, however, reasonable persons could reach only one conclusion from the facts, issues of fact may become issues of law. Groleau, at ¶ 6; Muhammed, at ¶ 8. Summary judgment is appropriate against a party who fails to establish the existence of a genuine issue of material fact on an essential element of a claim on which she will bear the burden of proof at trial. Investors Real Estate Trust, 2004 ND 167, ¶ 5, 686 N.W.2d 140.

Ill

[¶ 11] Heng contends the trial court erred in dismissing her breach of contract claim against Arrowhealth. Ar-rowhealth’s employee policy manual provided for a progressive discipline procedure and prohibited retaliation against an employee for reporting suspected violations of healthcare regulations. Heng argues that the manual created an employment contract, and that Arrowhealth breached that contract by failing to follow the progressive discipline policy and by firing her for reporting suspected violations.

[¶ 12] Employment for an indefinite term is governed by N.D.C.C. § 34-03-01:

Termination of employment at will— Notice required. An employment having no specified term may be terminated at the will of either party on notice to the other, except when otherwise provided by this title.

[¶ 13] We outlined the application of this statute in the context of employee policy manuals in Dahlberg v. Lutheran Soc. Servs. of North Dakota, 2001 ND 73, ¶¶ 13-14, 625 N.W.2d 241 (citations omitted):

Under N.D.C.C. § 34-03-01, employment without a definite term is presumed to be at will, and an at-will employee may be terminated with or without cause. By contract, however, the parties may modify the at-will presumption and define their contractual rights regarding termination. An employer may contractually modify the at-will presumption with an employee handbook or personnel policy manual.
The construction of an employment contract to determine its legal effect is a question of law, and on appeal, we will independently examine and construe the contract to determine if the trial court erred in its interpretation. We construe employment contracts, including handbooks and policies, as a whole to determine the parties’ intent. An explicit and conspicuous disclaimer in an employee personnel policy manual, stating no contract rights exist or the policies are not intended to create contractual rights, demonstrates the employer’s intent that the manual is only a guide for the employee.

When provisions in the employee policy manual expressly state that it does not create a contract, the employee is put on clear notice that the manual preserves the presumption of employment at will. Olson v. Souris River Telecomms. Coop., Inc., 1997 ND 10, ¶ 16, 558 N.W.2d 333.

[¶ 14] Arrowhealth’s employee policy manual and other employment documentation explicitly and conspicuously disclaim any contract rights and repeatedly declare that employment is at will. The “Introductory Statement” to the policy manual provides in part:

Nothing in this handbook is intended to create nor should be construed as an employment contract. As always, employees can decide to end their employment with Rotech at any time; and, likewise, the Company can end such employment at any time for any reason that the Company, in its sole discretion, may deem appropriate.

There is also an entire section of the manual entitled “Employment at Will,” which provides:

Although Rotech hopes that employment with the Company will be long term, either the employee or the Company may end the relationship at any time, for any reason, with or without cause, prior notice or warning. Only employees with written employment contracts should have any expectations with regard to specific employment duration. In all other cases, employment with the Company is “at-will” and may be ended at any time as stated above.
No supervisor, manager, or representative of Rotech other than the President/CEO has the authority to enter into any agreement with an individual for employment for any specified period or to make any promises or commitments contrary to the foregoing. Further, any employment agreement entered into by the President/CEO will only be enforceable if in writing.
Therefore, this handbook.neither is nor should be construed as a contract, express or implied, guaranteeing employment for any specific duration, but rather is intended to serve only as a set of guidelines.
Because the Company is a growing and changing organization, it reserves full discretion to add to, modify, or delete provisions of this handbook and the policies and procedures on which they may be based, at any time without advance notice. No oral statements or representations can change or alter the provisions of this handbook.
Nothing in this handbook will limit the employee’s right or the Company’s discretionary right to end employment.

In the section entitled “Separation from Employment,” the manual states:

While it is the hope of the Company that employment with Rotech is productive and rewarding, it is understood that either the employee or the Company may end the employment relationship at any time, with or without cause or notice. This condition of employment is not subject to change unless in writing and signed by the employee and the President/Chief Executive Officer of Ro-tech. ...
Rotech may end an individual’s employment at any time and for any reason.

The final page of the manual, on which the employee signs to acknowledge receipt of the manual, contains this disclaimer:

I understand that the Employee Handbook is not an employment contract, but serves as a guideline. I understand that unless I have a written employment contract providing otherwise, my employment relationship with the Company is “at-will” and may be ended at any time by either me or the Company, with or without prior notice or warning, and with or without cause or reason. I understand that nothing in the handbook shall limit my right or the Company’s discretionary right to end such employment. I understand that no manager, supervisor or employee of the Company, or any subsidiary of the Company, has any authority to enter into any oral agreement for employment for any specified period of time, or make any oral agreement for employment other than at-will.

[¶ 15] Finally, at the time she was hired Heng signed an “Employee Corporate Compliance Acknowledgment.” Heng signed this one-page document at the bottom, and also separately initialed and dated this provision:

Neither the IHS Standards of Conduct, RoTech Code of Conduct, nor this Form:
• Create a contract for employment,
• Alter my status as an at-will employee, or
• Create a policy of progressive discipline.

[¶ 16] We conclude the employee policy manual and other employment documentation, construed as a whole, explicitly and conspicuously disclaim any employment contract and clearly evidence the parties’ intent that Heng’s employment was at will. The trial court did not err in granting summary judgment dismissing Heng’s breach of contract claim.

rv

[¶ 17] Heng contends that she presented sufficient evidence establishing a prima facie case for retaliatory discharge under N.D.C.C. § 34-01-20, and that the trial court therefore erred in granting summary judgment dismissing her retaliatory discharge claim against Arrowhealth.

[¶ 18] Although employment without a definite term is generally presumed to be at will, giving the employer the right to terminate an employee at any time with or without cause, there are limited exceptions to the at-will doctrine. Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 28, 630 N.W.2d 46. Exceptions to the at-will doctrine may occur if an employee is terminated for complying with a clear public policy or if there is a statutory exception. See Anderson, at ¶¶ 28-29; Dahlberg, 2001 ND 73, ¶¶ 32-34, 625 N.W.2d 241.

[¶ 19] North Dakota’s whistle-blower statute, N.D.C.C. § 34-01-20, provides in part:

1. An employer may not discharge, discipline, threaten discrimination, or penalize an employee regarding the employee’s compensation, conditions, location, or privileges of employment because:
a. The employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of federal, state, or local law, ordinance, regulation, or rule to an employer, a governmental body, or a law enforcement official.

The statute specifically authorizes an employee to bring a civil action against the employer for a violation of the statute. N.D.C.C. § 34-01-20(3). To establish a prima facie case for retaliatory discharge under the statute, the employee must show (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the existence of a causal connection between the employee’s protected activity and the employer’s adverse action. Anderson, 2001 ND 125, ¶ 29, 630 N.W.2d 46; Dahlberg, 2001 ND 73, ¶ 34, 625 N.W.2d 241.

[¶ 20] Arrowhealth concedes that it took adverse action against Heng when Blumenshein fired her. Thus, to establish a prima facie case for retaliatory discharge Heng was required to present evidence from which a rational factfinder could find that she engaged in protected activity and that there was a causal connection between that activity and her termination.

A

[¶ 21] Protected activity under N.D.C.C. § 34-01-20 includes a good faith report to the employer, a governmental body, or a law enforcement official of a violation or suspected violation of a federal, state, or local law, regulation, or rule. Arrowhealth argues Heng failed to show she engaged in protected activity under the statute because she did not report the suspected violations to the company’s compliance hotline or to any outside law enforcement or regulatory agency, and because at her deposition she indicated she was concerned for the Fargo employees’ jobs and careers.

[¶ 22] Both Arrowhealth and the trial court relied heavily upon Heng’s failure to report the suspected violations to any outside authority to support the conclusion that she did not make the reports to her employer in good faith. Our statute, however, specifically provides that a retaliatory discharge action may be based upon an employee’s report of a suspected violation to the employer. Heng repeatedly reported to her immediate supervisors her concerns that Arrowhealth’s practices violated state regulations. There is no requirement under the statute that the employee also report the suspected violation to a governmental body, law enforcement official, or corporate hotline. Heng’s failure to report the suspected violations to outside authorities is not conclusive evidence that she lacked good faith when making her reports.

[¶ 23] Arrowhealth also contends Heng’s reports were not made in good faith because they were not made for the purpose of exposing an illegality. At her deposition Heng indicated she was concerned the employees were being “hung out to dry” and any illegality might affect the future law enforcement career plans of one of the Fargo employees. We explained this aspect of the good faith requirement in Dahlberg, 2001 ND 73, ¶ 38, 625 N.W.2d 241:

Section 34-01-20, N.D.C.C., was obviously intended to prohibit an employer from discharging an employee because the employee makes a good faith report to the employer of a violation or suspected violation of state law. The clear purpose of N.D.C.C. § 34-01-20 is to protect employees who expose illegalities in the workplace, and we are not persuaded N.D.C.C. § 34-01-20 was intended to protect an employee who acts for a purpose other than exposing an illegality. We construe N.D.C.C. § 34-01-20 to require a “report” to be made for the purpose of blowing the whistle to expose an illegality, and the reporter’s purpose must be assessed at the time the report is made.

[¶ 24] The facts in Dahlberg differ greatly from this case. In Dahlberg, the employee complained about disparate internal discipline against employees of a residential treatment facility for troubled children and adolescents. The Court specifically noted that the employee “only incidentally implicated potential violations of state law” regarding inappropriate touching between residents. Id. at ¶ 40. We concluded “reasonable minds could only conclude Dahlberg’s statements ... were made for the purpose of questioning disparate discipline of staff for incidents of inadequate supervision and not for the purpose of reporting an illegality.” Id. at ¶ 42.

[IT 25] By contrast, Heng’s reports can hardly be characterized as “only incidentally implicat[ing] potential violations of state law.” See id., at ¶ 40. She repeatedly over the course of several weeks directly raised the question to her employer whether its practice of allowing service technicians to assemble oxygen delivery systems and instruct patients was in violation of regulations of the North Dakota Respiratory Care Board. After finally being told by Johnson to discontinue the practice “for the time being” after she received clarification from the Respiratory Care Board, Heng continued to request specific written guidelines on the issue. In the context and circumstances of this case, Heng’s statements indicating that she was concerned about her employees could be viewed as merely an additional or secondary reason for her reports.

[¶ 26] Whether an employee has made a report in good faith is a question of fact, and summary judgment is appropriate only if, after viewing the evidence in the light most favorable to Heng, reasonable minds could only conclude that Heng’s numerous reports were made solely for the purpose of protecting her employees and not for the purpose of reporting an illegality. Id. at ¶ 42. We conclude there is a genuine issue of material fact whether Heng made her reports in good faith for the purpose of exposing an illegality, and the trial court erred in concluding that, as a matter of law, Heng had failed to establish she had engaged in protected activity under N.D.C.C. § 34-01-20.

B

[¶ 27] Heng argues the trial court erred in finding there was no causal connection between her protected activity and her termination. She contends there is circumstantial evidence to support a finding that she was fired because she reported the suspected violations to Blu-menshein and pressed the issue after Blu-menshein insisted Arrowhealth’s practices were legal.

[¶ 28] Causation requires a claimant to show more than the mere fact she reported violations and was subsequently fired. Anderson, 2001 ND 125, ¶ 35, 630 N.W.2d 46. Although there must be something more than pure speculation or conjecture, circumstantial evidence may provide an inference of causation. Id. Proximity in time between the protected activity and the adverse employment action is “particularly significant.” Id.; see also Ressler v. Humane Soc’y of Grand Forks, 480 N.W.2d 429, 433 (N.D.1992). The fact that the employee’s complaints were directed toward or involved the person who ultimately fired her may also provide an inference that the adverse action was related to the protected activity. Id. at ¶ 36.

[¶ 29] In this case, a fact-finder could infer Heng’s firing was reasonably proximate to her reports of suspected violations. Heng initially advised Blumenshein of suspected violations in late November and late December 2001. After Johnson told Heng in late December to have only respiratory therapists do the set ups and patient instruction “for the time being,” Heng repeatedly requested written direction on the protocol for set ups and patient instruction. In its memorandum opinion granting summary judgment on the retaliatory discharge claim, the trial court noted Heng was fired “the very same day she made her last telephonic report.” There was evidence tending to prove reasonable proximity in time between Heng’s protected activity and her termination.

[¶ 30] An inference of causation may also be drawn if the person who ultimately fires the employee was involved in the reported activity. Anderson, 2001 ND 125, ¶ 36, 630 N.W.2d 46. Although Heng did not complain directly about Blu-menshein, her reports in this case expressly questioned his stated position that Arrowhealth’s practices did not violate the regulations. Despite being told twice by Blumenshein that the regulation did not prohibit Arrowhealth’s practice of having service technicians perform set ups and patient instruction, Heng persisted and contacted the North Dakota Respiratory Care Board. After learning that the Board considered Arrowhealth’s practice illegal, Heng contacted Johnson and Ar-rowhealth changed their practice “for the time being.” Heng continued to press for definitive guidelines on the issue until she was fired. Heng’s continued questioning of Blumenshein’s interpretation of the regulation supports an inference that Blu-menshein fired her because of the protected activity.

[¶ 31] There are other factors which might lead to an inference that Heng was fired for her protected activity, and not for disciplinary and personnel problems as alleged by Arrowhealth. When Blumen-shein and Johnson met with Heng on January 3, 2002, they reportedly advised Heng that the situation in the Fargo office would have to improve. Arrowhealth has not drawn our attention to any evidence showing that Blumenshein made any attempt to learn whether conditions in the Fargo office had improved before firing Heng two weeks later on January 18, 2002. In addition, Blumenshein admittedly did not follow Arrowhealth’s progressive discipline policy in disciplining and ultimately firing Heng. Blumenshein conceded that he did not contemporaneously document the disciplinary meetings he allegedly had with Heng. When asked at his deposition whether any lawyer had subsequently told him to document what had happened at the Duluth meeting, Blumenshein candidly admitted:

A. Okay. I think the corporate office when we first got wind of this said, “Do you have documentation?” I said, “No.” “Well, you need to make documentation.”

[¶ 32] All of these factors, when considered together, are sufficient to create a genuine issue of material fact on causation.

[¶ 33] The trial court expressly found that the close proximity in time between Heng’s reports and her termination, and Blumenshein’s participation in her firing, were “strong causal connectors.” The court went on, however, to conclude that these “strong” factors were “outweighed” by evidence of the problems in Heng’s performance as manager of the Fargo office. The court then stated it “cannot find a causal connection between Heng’s activity and [Arrowhealth’s] adverse action.”

[¶ 34] On a motion for summary judgment the trial court’s role is limited to determining whether the evidence and inferences to be drawn therefrom, when viewed in the light most favorable to the party opposing summary judgment, demonstrate that there are no genuine issues of material fact. See Groleau v. Bjornson Oil Co., 2004 ND 55, ¶ 5, 676 N.W.2d 763. It is inappropriate on a motion for summary judgment for the trial court to weigh the evidence, determine credibility, or attempt to discern the truth of the matter. Schaefer v. Souris River Telecomms. Cooperative, 2000 ND 187, ¶ 8, 618 N.W.2d 175; Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101. Nor may the court draw inferences from the evidence or make findings on disputed facts. Campbell Farms v. Wald, 1998 ND 85, ¶ 11, 578 N.W.2d 96; Greenfield v. Thill, 521 N.W.2d 87, 92 (N.D.1994). Once the trial court concluded that there were “strong factors” and “strong causal connectors” showing a causal connection between Heng’s protected activity and Arrow-health’s adverse action, its inquiry should have been over. If there was evidence from which a factfinder could reasonably draw an inference of causation, Heng had established a prima facie case and the task of weighing that evidence, assessing credibility, and making findings was for the factfinder after a full trial.

C

[¶ 35] Arrowhealth contends that, even if Heng has established a prima facie case of retaliatory discharge under N.D.C.C. § 34-01-20, Arrowhealth has “carried its burden” of demonstrating a legitimate, nonretaliatory reason for firing Heng.

[¶ 36] Arrowhealth’s argument is premised upon the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as modified by our prior caselaw:

[U]nder our modification of the McDonnell Douglas/Burdine framework ... the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Establishment of the prima facie case creates a presumption that the employer unlawfully discriminated against the plaintiff. If the plaintiff meets his or her burden of persuasion, and succeeds in establishing the presumption, then, under Rule 301, NDREvid, the burden of persuasion shifts to the employer to rebut the presumption of discrimination by proving by a preponderance of the evidence that its action was motivated by one or more legitimate, nondiscriminatory reasons. If the employer fails to persuade the trier of fact that the challenged action was motivated by legitimate, nondiscriminatory reasons, the plaintiff prevails. If, however, the employer persuades the fact finder that its reasons were nondiscriminatory, the employer prevails.

Engel v. Montana Dakota Utils., 1999 ND 111, ¶ 8, 595 N.W.2d 319 (quoting Zimmerman v. Minot Pub. Sch. Dist. No. 1, 1998 ND 14, ¶ 10, 574 N.W.2d 797, and Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 229 (N.D.1993)).

[¶ 37] Arrowhealth argues that, even if Heng established a prima facie case of retaliatory discharge, it carried its burden of showing it had a legitimate, nonre-taliatory reason for terminating Heng’s employment. The burden-shifting rule of McDonnell Douglas, however, has little or no application at the summary judgment stage. The rule explicitly governs the burden of persuasion at trial and creates a presumption of wrongful employment activity if the employee presents a prima facie case. The ultimate question for the factfinder is whether the employer’s adverse action was motivated by a legitimate reason or an unlawful reason. See Engel, 1999 ND 111, ¶ 8, 595 N.W.2d 319; Schweigert, 503 N.W.2d at 229. By presenting a prima facie case of retaliatory discharge, the employee has created a genuine issue of material fact on the question of why she was fired, and the employer’s alleged nonretaliatory reasons for the termination merely go to that question of fact. Accordingly, if the employee has presented a prima facie case by presenting evidence from which the factfinder could find she engaged in protected activity, the employer took adverse action, and there was a causal connection between the activity and the adverse action, the employer’s presentation of evidence of a legitimate, nonretaliatory reason for its action merely creates an issue of fact, not a basis for summary judgment dismissal of the employee’s claim.

D

[¶ 38] We conclude the trial court erred in granting summary judgment dismissing Heng’s retaliatory discharge claim.

V

[¶ 39] We have considered the remaining issues and arguments raised by the parties and they are either unnecessary to our decision or are without merit. We affirm that part of the judgment dismissing Heng’s breach of contract claim. We reverse that part of the judgment dismissing Heng’s retaliatory discharge claim and the award of attorney’s fees based on that claim, and remand for further proceedings.

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

      . The parties apparently agreed, and therefore we will assume for purposes of reviewing the summary judgment, that the McDonnell Douglas rule applies to a retaliatory discharge claim under N.D.C.C. § 34-01-20. See Dahlherg, 2001 ND 73, ¶ 31 n. 3, 625 N.W.2d 241.


author: MEIERHENRY, Justice.

text:
    2004 SD 107
    David H. LANG, M.D., David W. Boyer, M.D., Bryan D. Den Hartog, M.D., Stephen G.J. Eckrich, M.D., Stuart E. Fromm, M.D., Timothy J. Gill, M.D., Mark Harlow, M.D., Lew W. Papendick, M.D., and Rand L. Schleusener, M.D., Petitioners and Appellees, v. WESTERN PROVIDERS PHYSICIAN ORGANIZATION, INC., Respondent and Appellant.
    No. 23113.
    Supreme Court of South Dakota.
    Argued Aug. 25, 2004.
    Decided Sept. 29, 2004.

      Jennifer K. Trucano, Patrick G. Goet-zinger of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for petitioners and appellees.
    William F. Jones, Paul F. Lewis, R. Hunter Ellington of Moye, Giles, Denver, CO, Barton R. Banks of Banks, Johnson, Colbath, Sumner & Kappelman, Rapid City, for respondent and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This case is an appeal from an Order and Writ of Mandamus issued by the trial court. The petition for mandamus was brought against Western Provider’s Physician Organization, Inc. (WPPO) by several physician members of the nonprofit corporation (Petitioners). Petitioners were granted a writ requiring WPPO to allow them full inspection of all documents, books, and records relating to the business concerns of the corporation. WPPO appeals the granting of the writ. We affirm.

FACTS

[¶ 2.] Petitioners are physicians and charter members of a non-profit corporation WPPO. WPPO has a fifty percent ownership interest in Western Providers, Inc. (Western). Western implements managed care plans for employer groups and WPPO physicians contract with Western to provide services under negotiated fee plans. Western and WPPO are independent non-profit corporations but share the same board of directors and administrative personnel.

[¶ 3.] As part of a routine investment review, Petitioners requested various WPPO corporate documents from the South Dakota Secretary of State. That request led Petitioners to discover WPPO had failed to file annual reports since 1999 and was not in good standing as a South Dakota corporation. Petitioners then requested an inspection of WPPO books and records. WPPO denied the initial request and further requests were made. Eventually WPPO began turning over some of the requested documents but resisted an unlimited inspection of documents.

[¶ 4.] Initially, WPPO produced minutes from meetings, a “Consent in Lieu of Annual Meeting,” and a receipt from the South Dakota Secretary of State. Upon inquiry, WPPO indicated that these documents comprised all of the corporate records. However, WPPO later indicated that additional records were found and these were also provided to Petitioners. Petitioners attempted several more times to attain further records. WPPO insisted that the few documents that had been produced represented all documents, but it refused to certify this.

[¶ 5.] Petitioners asked the circuit court for an Order and Writ of Mandamus to compel WPPO to allow review of all corporate documents. Petitioners relied on SDCL 47-24-2 as authority for their right to inspect the corporate documents. It provides:

All books and records of a corporation may be inspected by any member, or his agent or attorney, for any proper purpose at any reasonable time.

SDCL 47-24-2.

[¶ 6.] Pursuant to that statute, the court entered an Order and Writ of Mandamus:

commanding [WPPO] to immediately provide any and all documents, books and records relating to [WPPO’s] business concerns. The term “documents, books and records” is hereby intended to include without limitation, documents in written or electronic form; minutes, bylaws, dividend or other financial ledgers; all journals, books of account, cash books, subsidiary documents, subscribers’ ledgers, and real estate documents; all financial records, tax returns, and tax forms; membership lists and provider lists; and all business communications, including those to the South Dakota Secretary of State, members or owners or providers of Western Providers Physician Organization, Inc., Western Providers, Inc., and Rapid City Regional Hospital administration; all of which relate to the ongoing business concerns of [WPPO] from its inception to the present date. This writ encompasses any documents concerning [WPPO’s] business concerns held in the possession of [WPPO’s] representatives or which may be held in the files of its related entity, Western Providers, Inc. This Order is consistent with and follows the law as provided by SDCL §§ 47-24-2 and 47-30-7.

WPPO appeals the granting of the writ.

STANDARD OF REVIEW

[¶ 7.] Our standard of review for a Writ of Mandamus is abuse of discretion. Black Hills Cent. R. Co. v. City of Hill City, 2003 SD 152, ¶ 9, 674 N.W.2d 31, 34. Statutory interpretation is a question of law reviewed de novo. First Lady, LLC v. JMF Properties, LLC, 2004 SD 69, ¶ 5, 681 N.W.2d 94, 96.

ISSUES

[¶ 8.] WPPO raises the following issues on appeal:

I. Whether the trial court abused its discretion by granting an Order and Writ of Mandamus.
II. Whether the trial court erred as to the scope of the Writ in ordering:
a. the production of all documents rather than those relevant to Petitioners’ alleged proper purpose.
b. the production of documents in the possession of a non-party.
c. production of documents without regard to whether they are confidential, privileged, or otherwise protected.
d. the production of all documents where the statute provides that inspection is for “all books and records.”
e. the production of documents from the time of WPPO’s inception to date.

DECISION

[¶ 9.] Initially, we point out that the trial court did not enter findings of fact and conclusions of law. The record from which the trial court entered an Order and Writ of Mandamus consisted of the petition, a brief in support of petition, the respondent’s brief and oral argument at the motion hearing.

Grant of Order and Writ — Proper Purpose

[¶ 10.] WPPO contends the trial court failed to require Petitioners to meet their burden of proving a “proper purpose” for an inspection, thereby abusing its discretion in granting an Order and Writ of Mandamus. This proposition fails for two reasons. First, WPPO has not preserved this issue for appeal. In its response brief to the trial court, WPPO initially made a general statement that Petitioners lacked a proper purpose, but then WPPO went on to clarify this argument by saying that Petitioners “do not have a proper purpose to request any inspection beyond those documents which they have received.” This can only be understood to be an admission that Petitioners did have a proper purpose for inspecting some of the records. In fact, during the prior year WPPO had turned many documents over to Petitioners without questioning whether the purpose was proper, and WPPO has never introduced any evidence of an improper purpose. Then at the hearing before the trial court, WPPO failed to raise the issue at all. Since WPPO has not previously disputed the issue of proper purpose for an inspection, it cannot do so for the first time on an appeal before this Court. We have often held that an issue not raised in trial cannot be raised for the first time on appeal. See State v. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d 200, 203; see also Breckweg v. Knochenmus, 81 S.D. 244, 255, 133 N.W.2d 860, 866 (1965).

[¶ 11.] Although the above finding resolves the proper purpose issue, it is appropriate for this Court to address a second matter introduced by WPPO’s statement of the issue. WPPO presumes Petitioners had the burden of proving a “proper purpose” under SDCL 47-24-2. However, this Court has never addressed whether SDCL 47-24-2 places the burden of proving a proper purpose on the corporate member, here Petitioners, or whether the purpose is presumed to be a proper purpose. A presumption of proper purpose would place the burden of proving an improper purpose on the corporation resisting inspection of its documents. Since South Dakota has not addressed the issue, guidance may be helpful from other jurisdictions that have done so.

[¶ 12.] According to the New Mexico Supreme Court, the common-law majority rule is that members are presumed to have a “proper purpose” in making a document request. Schein v. Northern Rio Arriba Elec. Coop., Inc., 122 N.M. 800, 932 P.2d 490, 493 (1997). “Placement of the burden of proof in this manner requires that a corporation demonstrate strong and articulable reasons for denying a shareholder/member access to information regarding his proprietary interests and legitimate concerns.” Id. (citing 5A William M. Fletcher et ah, Fletcher Cyclopedia of the Law of Corporations § 2213 at 336 (Perm. Rev. Ed. 1995)). Consistent with this rationale, the New Mexico Supreme Court adopted the “majority common-law rule” which presumed members had a “proper purpose.” Id. (citing Fletcher, supra, § 2253.10 at 535). This Court hereby adopts the same rule. However, we recognize that a practical application of this rule requires that the party seeking inspection must first give a reason for the inspection. This avoids putting the corporation in the impossible position of speculating as to the member’s purpose. Thus a full statement of our rule is that a member must disclose his purpose for inspecting and this purpose is presumed proper. The burden is then on the corporation to prove there is an improper purpose. For this additional reason, WPPO’s first allegation of error fails.

Scope of Writ

[¶ 13.] WPPO argues that the trial court’s order far exceeded the permissible scope allowed by law. It does so on a number of grounds, all of which will be addressed separately below.

Scope — Relevant to Proper Purpose

[¶ 14.] WPPO argues that the trial court erred by not limiting the scope of production to documents relevant to Petitioners’ stated proper purpose. This argument rests on the position that the “proper purpose” language in the South Dakota inspection statute serves not only to limit the circumstances under which an inspection may be made, but also serves to limit the scope of any proper shareholder inspection. Because this Court has not previously addressed this issue, we look to other jurisdictions for guidance.

[¶ 15.] Many states have statutes similar to SDCL 4T-24-2. Illinois’ statute is nearly identical and its caselaw relating to that statute states;

The right to examine records may even extend to records for which a proper purpose has not been directly shown, so long as one has been shown for some records: “the shareholder is not required to establish a proper purpose for each record he requests. Once that purpose has been established, the shareholder’s right to inspect extends to all books and records necessary to make an intelligent and searching investigation and from which he can derive any information that will enable him to better protect his interests.”

Patel v. Illinois State Med. Soc’y, 298 Ill.App.3d 356, 232 Ill.Dec. 497, 698 N.E.2d 588, 593 n. 4 (1998) (quoting Meyer v. Board of Managers of Harbor House Condominium Ass’n, 221 Ill.App.3d 742, 164 Ill.Dec. 460, 583 N.E.2d 14,18 (1991) (additional citations omitted)). We adopt the same position; that is, as long as a member has stated a proper purpose, which is presumed, the member may inspect all books and records necessary to make an intelligent and searching investigation.

[¶ 16.] Here, Petitioners requested access to the following:

WPPO’s complete books, records, and all business documents and communications, including without limitation, those in electronic form, minutes, bylaws, dividend or other financial ledgers, all journals, books of account, cash books, subsidiary documents, subscribers’ ledgers, real estate documents, all financial records, tax returns, tax forms, membership lists, provider lists, and all business communications including those to the South Dakota Secretary of State, WPPO, Western Providers, Inc., Rapid City Regional Hospital administration, which relate to the ongoing business concerns of WPPO.

Petitioners’ stated purpose for requesting access to these documents was to investigate suspected administrative negligence that potentially placed WPPO at risk “as well as jeopardize^] its officers, directors, and members for personal liability.” Petitioners specifically stated in their Affidavit in Support of Petition for Writ of Mandamus that they had grave concerns the following deficiencies existed:

a. WPPO was administratively dissolved by the SOS [Secretary of State] office.
b. WPPO failed to file statutorily mandated annual reports.
c. WPPO failed to hold annual meetings of members and directors.
d. WPPO bylaws have not been signed.
e. Meetings of WPPO members were not properly noticed.
f. WPPO did not file the annual tax returns required of nonprofit corporations.
g. WPPO failed to maintain an accurate list of its members.
h. WPPO has discriminated in the payment of distributions to its members.
i. WPPO’s corporate books and records were in deplorable condition.
j. WPPO’s corporate books and record [sic] were not available at the address of the principal place of business listed in state filings.
k. The corporate documents incorrectly listed WPPO’s registered agent and the address of RCRH [Rapid City Regional Hospital] as its principal place of business.
l. WPPO had not [sic] corporate minutes until our inquiries began.
m. WPPO’s non-profit status is unclear as no IRS determination letter or Form 1023 was found in the corporate records. Form 1120’s, not Form 990’s, were filed by WPPO. Form 1120’s are filed by for profit corporations, and non-profits who have not yet achieved non-profit status.

Additionally, the hearing record reflects other concerns. The concerns and suspected deficiencies could affect not only the members’ investments but also their status as medical practitioners. Such concerns are not without merit and only a very broad and unlimited inspection would serve to satisfy Petitioners’ concerns of administrative negligence. The requested documents, although sweeping in breadth, are necessary to make an intelligent and searching investigation into whether administrative negligence was occurring at WPPO. We find no error.

Scope — Documents held by Non-party

[¶ 17.] WPPO contends that the trial court’s order is too broad in that it extends to documents in the possession of a non-party entity. The order states:

This Writ encompasses any documents concerning [WPPO’s] business concerns held in the possession of [WPPO’s] representatives or which may be held in the files of its related entity, Western Providers, Inc.

(emphasis added). WPPO cites Carapico v. Philadelphia Stock Exch., Inc., 791 A.2d 787 (Del.Ch.2000) to support its contention. In Carapico, the plaintiff requested books and records from the parent corporation of which he was a shareholder and from the parent corporation’s wholly owned subsidiaries. The court held that there was “nothing in the record to justify ignoring the separate existence of the subsidiaries,” and therefore limited the final order “to books and records of the [parent corporation] in its possession, custody, or control.” Id. at 793.

[¶ 18.] Initially, the trial court’s order appears to be as broad as the Carapico writ WPPO compares it to. However, a review of the record indicates the limits contemplated by the trial court. Western Providers and WPPO are independent corporations, yet both corporations operate together and share the same board of directors and administrative personnel. WPPO’s sole administrator, Rick Strac-qualursi, was also the chief executive officer of Western Providers and executive director of marketing for Rapid City Regional Hospital (RCRH). Stracqualursi’s office was at RCRH. At the trial court hearing WPPO’s attorney was asked, “Does your organization have an office?” The attorney responded, “No it does not maintain a separate infrastructure office. They use the hospital.” Moreover, WPPO admitted that its recordkeeping was in disarray. Here, documents continued to be found up to the day of the hearing. Finally, at the hearing the court stated:

I will issue that writ, but it pertains to WPPO. I perceive that to the extent that they have knowledge of documents that are responsive to it that may be filed someplace else, they will get those documents. I think they are within your control. But to direct them to respond in lieu of Western Providers, Inc., I think, is beyond my power at this point.

[¶ 19.] Our interpretation of the Order is that if WPPO documents are located in Western Providers’ files or locations, by either being purposely or negligently placed there, then WPPO is to locate them and allow Petitioners’ inspection. The trial court made it clear that it did not have jurisdiction to order documents belonging to a non-party. Under the unique facts of this case, the trial court did not err in ordering WPPO to produce documents located outside WPPO’s files. It goes without saying that WPPO cannot shield documents by storing them in the offices of related corporations.

Scope — Protected Documents

[¶ 20.] WPPO asserts that certain documents are privileged and cannot be released. It also asserts that releasing certain other documents would be a violation of federal antitrust laws. While the writ does not specifically restrict Petitioners’ right to inspect specific documents, the hearing transcript indicates that Petitioners are not asking for disclosure of documents in violation of federal law nor are they asking for release of privileged documents. At the hearing, Petitioners requested only a log of the privileged documents. We interpret the court order to be in accord with the stipulations and agreements of the parties at the hearing. Consequently, WPPO only needs to produce a log of the privileged documents and a log of documents or portions of documents which are protected by the anti-competitive and antitrust laws.

Scope — All Books and Records

[¶ 21.] WPPO claims the language “all books and records” as contained in SDCL 47-24-2, does not encompass all documents but has a more limited meaning. However, WPPO did not raise this issue prior to this appeal. In fact, at the hearing WPPO argued that all WPPO material had been produced and that no other documents existed except for privileged documents and documents protected by federal law. Further, the trial court asked WPPO counsel, “Is there a problem with a writ as to all?” Counsel replied, “No, Your Hon- or, there is not a problem with the writ as to all.” We have often held that an issue not raised in trial cannot be raised for the first time on appeal. See Hays, 1999 SD 89, ¶ 16, 598 N.W.2d at 203; see also Breckweg, 81 S.D. 244, 255, 133 N.W.2d at 866 (1965). WPPO has not preserved this issue for appeal.

Scope — Time Period

[¶ 22.] WPPO asserts that the trial court erred by not restricting documents to a specific period of time. WPPO failed to raise this issue before the trial court and may not raise it for the first time here.

[¶ 23.] The Order and Writ of Mandamus are affirmed.

[¶ 24.] GILBERTSON, Chief Justice and SABERS and ZINTER, Justices, and MILLER, Retired Justice, concur.

[¶ 25.] MILLER, Retired Justice, sitting for KONENKAMP, Justice, disqualified.

      . "Mandamus has traditionally been the method of enforcement of shareholders' inspection rights.” Annotation, Debra T. Lan-dis, J.D., What Corporate Documents Are Subject To Shareholder’s Right To Inspection, 88 A.L.R.3d 663, § 2 (1978).

      . South Dakota law adopts the Model Business Corporation Act. The official comment to 16.02(c) (formerly 52), which is similar to SDCL 47-24-2, addresses the meaning of proper purpose as follows:
      A 'proper purpose’ means a purpose that is reasonably relevant to the demanding shareholder's interest as a shareholder.
      Model Bus. Corp. Act § 16.02 cmt. c (1986 supp.).

      . Alabama, Ala.Code § 10-3A-43 (1975); Alaska, ALASKA STAT. § 10.20.131 (2003); Arkansas, ARK. CODE ANN. § 4-28^218 (West 2003); District of Columbia, D.C. CODE ANN. § 29-301.26 (2001); Florida, FLA. STAT. ANN. § 617.2103 (West 2004); Illinois, 805 ILL. COMP. STAT. ANN. 105/107.75 (West 2004); Iowa, IOWA CODE ANN. § 504A.25 (West 1999); Kentucky, KY. REV. STAT. ANN. § 273.233 (Banks-Baldwin 2003); New Mexico, N.M. Stat. Ann. § 53-8-27 (West 2004); Rhode Island, R.I. GEN. LAWS § 7-6-30 (1956); Washington, WASH. REV. CODE ANN. § 24.06.160 (West 1994).

      .“All books and records of a corporation may be inspected by any member entitled to vote, or that member’s agent or attorney, for any proper purpose at any reasonable time.” 805 ILCS 105/107.75.

      . Rapid City Regional Hospital settled a case under the False Claims Act on December 18, 2002. Various federal health law violations were alleged against the hospital. United States v. Rapid City Reg'l Hosp., 252 F.Supp.2d 892.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 114
    AMERICAN FAMILY MUTUAL INSURANCE GROUP, Plaintiff and Appellee, v. Lawrence J. KOSTANESKI, Defendant, and Jona Kulesza, Defendant and Appellant.
    No. 23139.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Oct. 13, 2004.

      Michael A. Henderson, Douglas M. Dei-bert of Cadwell, Sanford, Deibert & Garry Sioux Falls, South Dakota, Attorneys for appellee.

      Michael J. Simpson of Julius & Simpson, Rapid City, South Dakota, Attorneys for appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] American Family Mutual Insurance Group brought a declaratory action against its insured contending the policy’s “criminal law exclusion” precluded coverage for injuries to a third party. The trial court determined there were no genuine issues of material fact and granted American Family’s motion for summary judgment. Kulesza, the injured third party, appealed contending the trial court erred in 1) finding the “criminal law exclusion” unambiguous and enforceable; 2) refusing to apply the reasonable expectations doctrine; and 3) not finding the insurance exclusion violates public policy. Affirmed.

FACTS AND PROCEDURE

[¶ 2.] The facts in this case are not in dispute. On July 18, 1999, 19-year-old Lawrence J. Kostaneski fired a paintball gun in the general direction of a group of teenagers with whom he had engaged in a verbal altercation earlier that evening. Kostaneski’s action resulted in a permanent eye injury to a bystander, 15-year-old Jona Kulesza. Kulesza suffered a fifty percent loss of vision in her right eye as a result of the injury.

[¶ 3.] Kostaneski was charged with four counts of assault, including one count of aggravated assault (felony) under SDCL 22-18-1.1(4). Kostaneski ultimately pleaded guilty to the single count of aggravated assault (felony) in exchange for a dismissal of the remaining three counts and to avoid a habitual criminal conviction under SDCL 22-7-7. Kostaneski was convicted and sentenced to twelve years in the South Dakota State Penitentiary.

[¶ 4.] As a result of the eye injury, the victim Kulesza filed suit against Kostane-ski for personal damages. American Family, which provided homeowner’s insurance for Kostaneski’s father, considered Kos-taneski an insured under the policy at the time of the incident. On August 25, 2003, American Family filed a declaratory judgment action in the Circuit Court for the Seventh Judicial Circuit of the State of South Dakota, the Honorable Merton B. Tice presiding.

[¶ 5.] The question raised by American Family’s declaratory judgment action was whether the policy’s “criminal law exclusion” disallowed coverage for Kostaneski’s conduct. On November 14, 2003, American Family moved for summary judgment contending it had no obligation to defend or indemnify Kostaneski under the language of the policy. On December 12, 2003, Kulesza filed a cross-motion for summary judgment on the issue of whether American Family had a duty to defend or indemnify Kostaneski.

[¶ 6.] The Kostaneski policy contained a “criminal law exclusion” that stated: “We will not cover bodily injury or property damage arising out of: a. violation of any criminal law for which any insured is convicted.” Following a hearing on the matter on December 19, 2003, the trial court determined that the policy language in question was unambiguous and excluded coverage for Kostaneski’s criminal conduct. Accordingly, the trial court held that American Family had no duty to defend or indemnify and that it was entitled to summary judgment.

STANDARD OF REVIEW

[¶ 7.] Our standard of review for the grant or denial of a motion for summary judgment is well settled. Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). “We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided.” Holzer, 2000 SD 65, ¶ 8, 610 N.W.2d at 791 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Id. (citing Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)).

[¶ 8.] In addition, “[wjhen interpreting insurance contracts, we have uniformly held them renewable as a matter of law under the de novo standard.” Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 3, 566 N.W.2d 487, 489 (citations omitted). “This includes determining whether an insurance contract is ambiguous.” Id. (citing Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 616 (S.D.1994)).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether the trial court erred in finding the “criminal law exclusion” clause was unambiguous and enforceable.

[¶ 10.] We first address Kules-za’s argument that the “criminal law exclusion” is ambiguous. Language in an insurance contract is ambiguous when it “is fairly susceptible to two constructions.” National Sun Industries, Inc. v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶ 18, 596 N.W.2d 45, 48 (quoting American Family Mut. Ins. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994)) (citations omitted). Ambiguity will not be created merely by one party offering a different interpretation of the contract language. Alverson v. Northwestern Nat. Cas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 235-36 (citation omitted). Nor will the Court seek out a “strained or unusual meaning for the benefit of the insured.” Id. (citing Johnson v. Johnson, 291 N.W.2d 776, 778-79 (S.D.1980)). Instead, ambiguity is “determined with reference to the policy as a whole and the plain meaning and effect of its words.” National Sun, 1999 SD 63, ¶ 18, 596 N.W.2d at 48 (citation omitted).

[¶ 11.] The policy issued by American Family provides in part:

We will not cover bodily injury or property damage arising out of: a. violation of any criminal law for which any insured is convicted; b. violation of any building or housing code for which any insured is convicted; or c. violation of any criminal law for which any insured is not convicted due to mental incapacity-

The “criminal law exclusion” is fairly typical in the insurance industry, with minor language variations encountered in the pertinent case law.

[¶ 12.] Kulesza argues the exclusion should only apply to criminal conduct in which the defendant intended the results of his actions. Kulesza contends that because Kostaneski did not intend to specifically injure her or anyone else at the time he shot the paintball gun, his actions were negligent rather than intentional in nature. However, Kulesza’s argument fails to take into account the plain meaning of the contract language at hand.

[¶ 13.] The policy language does not limit the exclusion to intentional criminal conduct. The language excludes coverage for damage arising out of a violation of any criminal law for which an insured is convicted. Contract language is not ambiguous unless rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct. Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235 (citations omitted). There is no ambiguity in the contract language at hand. The difference between intentional criminal conduct and negligent criminal conduct is irrelevant on the facts of this case.

[¶ 14.] This is further supported by a provision in the insurance contract that excludes coverage for intentional injury: “We will not cover bodily injury or property damaged caused intentionally by or at the direction of any insured even if the actual bodily injury or property damage is different than that which was expected or intended from the standpoint of any insured.” The fact that intentional and criminal acts are enumerated as separate and distinct exclusions, and that the criminal exclusion does not contain language of intent, leads to the conclusion that intent is not required in order to activate the criminal conviction exclusion.

[¶ 15.] Other jurisdictions that have addressed the issue have held that a “criminal conviction exclusion” is not ambiguous. See American Family Mut Ins. Co. v. White, 204 Ariz. 500, 65 P.3d 449 (Ct.App.2003); American Family Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 (2002). In Hadley, the Nebraska Supreme Court addressed the issue in the context of a conviction for negligent child abuse. 648 N.W.2d at 774. Despite the lack of intent under the negligent child abuse statute NebRevStat § 28-707(3), that court held the use of the phrase “any criminal conviction” in an identical exclusion was not ambiguous and did include both negligent and intentional criminal convictions. Id. at 778.

[¶ 16.] ■ Kostaneski’s criminal conviction for felony aggravated assault is sufficient to trigger 'the contract exclusion. Whether or not Kostaneski intended the results of his actions is not at issue given the contract language.

[¶ 17.] 2. Whether the trial court erred in refusing to apply the reasonable expectations doctrine.

[¶ 18.] Kulesza argues alternatively that the doctrine of reasonable expectations applies' in this case and that we should adopt that doctrine. The doctrine of reasonable expectations directs that the objectively reasonable expectations of the insured at the time of application and the intended beneficiaries regarding the terms of the insurance contract must be given effect, despite policy provisions that would negate those expectations. Alverson, 1997 SD 9, ¶ 13, 559 N.W.2d at 236 (citing Dairyland Ins. Co. v. Wyant, 474 N.W.2d 514, 516 (S.D.1991)). Although the doctrine governs interpretation of insurance contracts in other states, it is not the declared law in South Dakota. Id. (citations omitted).

[¶ 19.] As was the case in Alver-son, we are not confronted with the issue of whether the doctrine might apply to an insurance contract which contained ambiguous language. See Id. Mr. Kostaneski himself conceded at trial that he never expected his American Family policy to cover Kulesza’s injury. Due to the lack of ambiguity in the American Family criminal law exclusion, the doctrine of reasonable expectations simply does not apply under the circumstances of this case. The plain meaning of the “criminal conviction exclusion” and the policy read as a whole, exclude coverage for the injuries which resulted from the acts for which Kostaneski was criminally convicted.

[¶20.] 3. Whether the trial court erred in not finding the insurance exclusion violates public policy.

[¶ 21.] Finally, Kulesza contends that the “criminal conviction exclusion” violates public policy, in that it denies the opportunity of recovery to innocent, injured third parties. Kulesza cites generally to SDCL Title 58 (Insurance) to support this proposition.

[¶ 22.] However, South Dakota public policy precludes extending coverage to an individual who intentionally harms others. State Farm Mutual Automobile Insurance Co. v. Wertz, 540 N.W.2d 636, 640 (S.D.1995) (citing Raphtis v. St. Paul Fire & Marine Co., 86 S.D. 491, 494, 198 N.W.2d 505, 507 (1972)). “It is contra bonos mores to allow a man to insure against the consequences of his own ras-cality or recover for a loss resulting from his own criminal conduct.” Id. (citation omitted). The legislative expression of this public policy is contained in SDCL 53-9-3, which provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or from violation of law whether willful or negligent, are against the policy of the law.”

[¶ 23.] While Kulesza’s loss of vision is undeniably tragic, it does not negate the fact that the loss occurred as a result of Kostaneski’s criminal conduct and for which a proper conviction was entered. The “criminal conviction exclusion” is in accord with South Dakota’s public policy, which does not support rewriting an insurance contract after the fact based on sympathy for an injured third party.

[¶ 24.] Because of the unambiguous meaning of the criminal conviction exclusion and the public policy of this state against insuring intentional wrongdoers, we hold American Family had no duty to defend or indemnify Kostaneski for damages he inflicted upon Kulesza and for which he was criminally convicted.

[¶ 25.] Affirmed.

[¶ 26.] SABERS, ZINTER and MEIERHENRY, Justices, concur.

[¶ 27.] KONENKAMP, Justice, deeming himself disqualified, did not participate.