author: HUSPENI, Judge.

text:
    STATE of Minnesota, Respondent, v. Thomas E. O’MEARA, Appellant.
    No. A07-0825.
    Court of Appeals of Minnesota.
    Aug. 26, 2008.

      Lawrence Hammerling, Chief Appellate Public Defender, St. Paul, MN; and Charles F. Clippert, Special Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN; and Brian Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney, Moorhead, MN, for Respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; MINGE, Judge; and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

In this appeal from his convictions of pattern of harassing conduct, harassment, multiple violations of a harassment restraining order, and falsely reporting a crime, appellant challenges his convictions and sentence. We affirm.

FACTS

Appellant Thomas O’Meara and R.O. were married in 1999. They separated in September 2003, and O’Meara moved out of the home they had shared. On March 1, 2006, R.O. obtained a harassment restraining order that prohibited O’Meara from harassing R.O. or having any contact with her, directly or indirectly. The order also required that O’Meara “stay away” from both R.O.’s residence and her place of employment. Although the restraining order did not prohibit contact with the couple’s children, it mandated exchanges for parenting time through an organization called Rainbow Bridge.

A decree dissolving the parties’ marriage was issued on June 12, 2006. During the following month, O’Meara repeatedly contacted R.O. in person, by telephone and e-mail, and indirectly, by relaying messages and requests through others.

On June 21, 2006, O’Meara reported tó police that a male friend of R.O. had sexually assaulted their four-year-old daughter. R.O.’s friend was staying at her residence that evening, and responding officers interviewed both R.O. and her friend. Concluding that the report was unsubstantiated, the officers left without taking any further action. Later that night, R.O. received a telephone call from a taxicab company asking whether she was ready for her cab. She had not requested one.

On June 23, 2006, R.O. received a telephone call from the children’s daycare provider, notifying her that O’Meara was planning to pick up the children. R.O. advised the provider that a restraining order required all parenting-time exchanges to be made through Rainbow Bridge.

The next day, R.O. was grocery shopping when O’Meara came into the store with the children. He repeatedly attempted to talk to ’ R.O. and followed her throughout the store. R.O. then confronted him about his report to the police, and he replied, “I saw [R.O.’s friend] in my living room, what was I supposed to do?” O’Meara’s response frightened R.O. because she inferred that he had been looking through her windows.

On June 26, 2006, R.O. received a telephone call from a Mend of O’Meara who was calling on behalf of O’Meara regarding picking up some of O’Meara’s possessions. The friend called R.O. two more times the next day. The first time, R.O. recognized the telephone number on her caller identification and did not answer the telephone. The second time, R.O. answered the telephone and promptly hung up when she identified the caller as O’Meara’s friend.

On June 27, 2006, R.O. was driving when O’Meara approached her on his bicycle and attempted to talk to her. Later that evening, he called R.O. at home, again saying that he wanted to talk to her, but she hung up. O’Meara called two more times that evening. R.O. did not answer. O’Meara called again on June 28 and 29. And on June 29, 2006, R.O. advised the police of O’Meara’s actions.

O’Meara again tried to speak with R.O. on June 30, 2006, when she was with one of their children at a park. He also called her home three times on July 1, 2006. O’Meara e-mailed R.O. once on July 6, three times on July 6, and once on July 16, 2006. And on at least two occasions during the summer of 2006, while the restraining order was in place, O’Meara sent R.O. flowers with notes referring to his “insane jealousy.”

O’Meara was eventually charged with pattern of harassing conduct (Minn.Stat. § 609.749, subds. 1, 5 (2004)); harassment (Minn.Stat. § 609.749, subds.2(4), (5), 4 (2004)); four counts of violation of a harassment restraining order (Minn.Stat. § 609.748, subd. 6(c) (2004)); and falsely reporting a crime (Minn.Stat. § 609.505 (2004)). The complaint originally alleged that the charged offenses were committed during late June and early July 2006. But shortly before trial, the district court permitted the state to amend the pattern-of-harassing-conduct and harassment charges to state that the alleged conduct occurred “on or about November 3, 2004, to July 5, 2006.”

The complaint also separately identifies two prior convictions — an April 2004 domestic-assault conviction and a September 2004 conviction of interference with an emergency call, arising out of an incident in which R.O. attempted to call police during a domestic altercation with O’Meara. The complaint also refers to two incidents in March 2006 involving telephone calls by O’Meara to R.O., and for which O’Meara had been charged with two counts of violating a harassment restraining order. But O’Meara was acquitted on both counts after trial in September 2006.

At his November 2006 jury trial, O’Meara stipulated to the April 2004 conviction for purposes of the five counts involving harassment and violation of a restraining order, but moved the district court to prohibit the state from introducing relationship evidence pursuant to Minn.Stat. § 634.20 (2004). The district court denied O’Meara’s motion, and the state was permitted to introduce relationship evidence from the period between November 3, 2003, and the date of trial. Because of the amendment to the complaint, O’Meara also specifically requested that the state be prohibited from introducing evidence of “the prior contacts [in March 2006] which the jury said that [O’Meara] was not guilty of.” The district court decided that, notwithstanding O’Meara’s acquittal of charges based on the March 2006 incidents, the evidence was admissible relationship evidence. The district court also advised the parties that it would provide cautionary instructions regarding all relationship evidence.

The state presented evidence of numerous contacts between O’Meara and R.O. between November 2003 and August 2006. R.O. testified about all the incidents described above between June 12, 2006, and July 16, 2006, as well as the telephone contacts in mid-March 2006, for which O’Meara had been acquitted. R.O. also testified about the incident in November 2003, which led to O’Meara’s April 2004 conviction, and the incident in June 2004, which led to the September 2004 conviction. O’Meara chose to testify and agreed that most of the contacts to which R.O. had testified did occur but disputed the nature of those contacts.

The jury found O’Meara guilty on all counts in the complaint except for one of the alleged violations of the harassment restraining order. The district court imposed stayed sentences of 28 months for pattern of harassing conduct and 21 months for harassment. The district court dismissed all four counts for violation of a restraining order and entered a conviction on the false report of a crime, but did not sentence on that offense. This appeal followed.

ISSUES

I. Did the district court err by admitting relationship evidence pursuant to Minn.Stat. § 634.20 (2004)?

II. Did the district court erroneously instruct the jury regarding the charge of pattern of harassing conduct?

III. Did the district court err by imposing sentences for O’Meara’s conviction of pattern of harassing conduct and his conviction of harassment?

ANALYSIS

I.

O’Meara argues that the district court erred by admitting relationship evidence pursuant to Minn.Stat. § 634.20 (2004). Evidentiary rulings ordinarily rest within the sound discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). When challenging a district court’s evidentiary ruling, an appellant must establish both that the district court abused its discretion and that, as a consequence, the appellant was prejudiced. Id.

Pursuant to Minn.Stat. § 634.20, the state may introduce evidence of the history of the relationship between a defendant and the victim of domestic abuse. State v. McCoy, 682 N.W.2d 153, 159 (Minn.2004). Section 634.20 provides as follows:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Thus, evidence of the defendant’s prior conduct is admissible under section 634.20 if (1) it is similar conduct, (2) it is perpetuated against the victim of domestic abuse or against another family or household member, and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. State v. Meyer, 749 N.W.2d 844, 849 (Minn.App.2008).

O’Meara first argues that the district court erred by admitting relationship evidence without weighing the probative value of that evidence against the danger of unfair prejudice. While the district court did not make an express finding on probative value versus prejudicial impact, it did state: “The legislature has clearly provided that this type of evidence in romantic relationships is admissible even though it’s prejudicial to a defendant.” Although this comment does not clearly recite the required balancing test, it was made in the context of a discussion that was explicitly centered on weighing the probative value of this evidence against its potential for unfair prejudice. Failing to more explicitly address the balancing test on the record is not erroneous. State v. Bell, 719 N.W.2d 635, 640-41 (Minn.2006).

O’Meara also argues that the district court erred by admitting evidence of the two incidents occurring in March 2006 because he was acquitted of the charges arising from those incidents. Existing Minnesota caselaw does not specifically address the issue of admission of relationship evidence after a defendant has been acquitted of charges based on the similar conduct at issue. O’Meara cites State v. Wakefield, 278 N.W.2d 307 (Minn.1979), in support of his argument. In that case, the supreme court held that “under no circumstances is evidence of a crime other than that for which a defendant is on trial admissible when the defendant has been acquitted of that other offense.” Wakefield, 278 N.W.2d at 309. Wakefield involved evidence of a prior crime, admitted pursuant to Minn. R. Evid. 404(b), and State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Id. at 308. But O’Meara argues that the holding in Wakefield is broad and that the rationale offered in support of the holding is equally applicable to relationship evidence admitted pursuant to section 634.20. There is merit in O’Meara’s argument.

The Wakefield court acknowledged that a judgment of acquittal does not signify innocence and that it is possible that the evidence of prior conduct, while insufficient to convict, would be sufficient to meet the clear-and-convincing standard required for admission of Spreigl evidence. 278 N.W.2d at 308. Nonetheless, the Wakefield court unequivocally concluded that when one jury has already found reasonable doubt that a defendant committed the alleged criminal conduct, it is “fundamentally unfair” to permit a subsequent jury to hear evidence of that criminal conduct “under any circumstances,” even if it is not offered as substantive evidence and, therefore, cannot itself be the basis of a conviction. Id. at 308-09 (emphasis added). Although section 634.20 relationship evidence is distinct from Spreigl evidence, “the purpose of each type of evidence is similar.” State v. Meldrum, 724 N.W.2d 15, 20 (Minn.App.2006), review denied (Minn. Jan. 24, 2007).

The state counters that Wakefield is in-apposite because it predates section 634.20. which was originally enacted six years later in 1985. 1985 Minn. Laws ch. 159, § 3, at 439. But the legislature presumably was aware of Wakefield’s unequivocal holding when it enacted section 634.20. See Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 809 (Minn.App.2000) (holding that we presume that the legislature acts with full knowledge of existing caselaw), review denied (Minn. Sept. 26, 2000). Further, when the Minnesota Supreme Court adopted section 634.20 as a rule of evidence in 2004, it held only that relationship evidence is admissible under the statute without the necessity of affording the defendant the same procedural safeguards applicable to the admission of Spreigl evidence. McCoy, 682 N.W.2d at 161 (holding that relationship evidence is admissible “without requiring that [it] first be established by clear and convincing evidence”).

The McCoy court was not required to address the concern expressed in Wake-field that even “[rjestricted categories and procedural safeguards ... do not eliminate prejudice to the defendant nor free him from the necessity to defend against such evidence.” Wakefield, 278 N.W.2d at 308. Because the Wakefield court found “no justification for requiring a defendant to bear these burdens when ... he has been tried and acquitted of the other charge,” id., its decision implicates the language in section 634.20 that bars admission of relationship evidence when the risk of unfair prejudice substantially outweighs its probative value. Cf. Minn.Stat. § 645.17(4) (2006) (stating presumption that the legislature intends for prior judicial constructions of a law’s language to be placed upon “subsequent laws on the same subject matter”). Thus, recognizing that section 634.20 was not enacted until several years after the release of Wakefield, we nonetheless conclude that case remains controlling precedent and bars admission of “similar conduct” of which a defendant has been acquitted. Such evidence is so unfairly prejudicial that it inherently violates the probative/prejudicial balancing test. See Wakefield, 278 N.W.2d at 308-09 (stating that burden placed on defendant by the admission of previously acquitted offense evidence contravenes the basic principle “that once the state has mustered its evidence against a defendant and failed, the matter is done”). Therefore, the district court erred by admitting evidence of the March 2006 incidents.

Our inquiry does not end, however, with our determination that the district court erred in admitting evidence of conduct when O’Meara had been acquitted of charges arising out of that conduct. When the district court erroneously admits evidence, we will nonetheless affirm unless the appellant establishes that he was prejudiced by the abuse of discretion. State v. Clark, 738 N.W.2d 316, 348 (Minn.2007). We will examine the record to determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. Id.

O’Meara does not argue that he was prejudiced by the district court’s error or even address the prejudice prong of the analysis. Moreover, our searching review of the record reveals that there was ample record evidence to support O’Meara’s convictions, and R.O.’s testimony regarding the March 2006 incidents was only a small portion of the evidence presented to the jury. We conclude that O’Meara has not carried his burden on the issue of prejudice. Therefore, despite the error in admitting evidence of conduct of which O’Meara was acquitted, reversal is not required here.

II.

O’Meara also challenges the district court’s jury instruction on the pattern-of-harassing-conduct charge, arguing that the district court erroneously permitted the jury to convict based on prior conduct for which he previously had been prosecuted and either convicted or acquitted. O’Meara incorporates into this challenge by reference the Wakefield argument he articulated with respect to the relationship evidence.

The state responds that O’Meara has waived his argument by failing to propose different jury instructions or to object to the district court’s jury instructions on the ground that they improperly permitted the jury to convict based on conduct for which he had already been convicted. O’Meara requested an instruction from the district court that would more specifically identify the dates of the alleged underlying acts of harassment and, in doing so, advised the district court that he would not object to the district court including the November 2003 incident among the alleged underlying acts of harassment. In so doing, O’Meara effectively represented to the district court that he had no objection to a jury instruction permitting the jury to consider domestic-assault conduct for which he was convicted as satisfying an element of the offense of pattern of harassing conduct. And although O’Meara argued that the jury instructions should more specifically identify the dates of the alleged conduct, he did not request an instruction cautioning the jury that it was hot permitted to consider the March 2006 evidence as substantive evidence of an element of the pattern of harassing conduct. Thus, we conclude that O’Meara failed to propose jury instructions consistent with his argument on appeal or to object on the grounds that the instructions permitted consideration of prior conduct for which he had already been convicted or acquitted.

“A defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.” State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). We will not review unobjected-to jury instructions unless they contain (1) error, (2) that is plain, and (3) the error affected the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); see also Minn. R.Crim. P. 31.02 (permitting appellate courts to consider plain errors that “were not brought to the attention of the [district] court”). If this three-prong test is satisfied, we will correct the error “only if it seriously affectfc] the fairness, integrity, or public reputation of judicial proceedings.” Meldrum, 724 N.W.2d at 20 (alteration in original) (quotation omitted).

There is superficial appeal in O’Meara’s argument that the district court’s failure to better clarify for the jury which evidence it was permitted to consider substantively and which evidence was relationship evidence, particularly in light of our conclusion that the district court erred by admitting the March 2006 incidents as relationship evidence. But O’Meara bears the “heavy burden” of persuading us that the instructions were prejudicial and affected the outcome of his case. Griller, 583 N.W.2d at 741. He is unable to meet this burden. The jury’s finding of not guilty on one of the violation-of-a-restraining-order charges suggests that it was not swayed from its obligation to acquit unless the state had proven each element of an offense beyond a reasonable doubt. Moreover, the jury’s findings of guilt with respect to the three remaining violation-of-a-restraining-order counts establish the two incidents of harassing conduct required for a conviction of pattern of harassing conduct. See Minn.Stat. § 609.749, subd. 5(b)(6) (requiring proof of two or more qualifying acts within a five-year period and including violations of a harassment restraining order among qualifying acts). O’Meara has thus failed to demonstrate that any error on the part of the district court could have affected the outcome of this case.

III.

Finally, O’Meara alleges that the district court erred by imposing sentences for both the conviction of pattern of harassing conduct and the conviction of harassment, rather than solely on the pattern-of-harassing-conduct conviction. O’Meara urges that sentencing him on both convictions violated Minn.Stat. § 609.035 (2004) because the two convictions were based on a single behavioral incident. We see no merit in O’Meara’s argument on this issue.

Under Minn.Stat. § 609.035, subd. 1 (2004), “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.” Therefore, a district court may impose only one sentence when multiple offenses are part of a single behavioral incident. State v. Schmidt, 612 N.W.2d 871, 876 (Minn.2000).

We may review whether the record supports a district court’s determination that conduct underlying two offenses did not consist of a single behavioral incident. State v. Nordby, 448 N.W.2d 878, 880 (Minn.App.1989). But the district court’s determination of whether multiple offenses constitute a single behavioral incident is a factual determination that we will not disturb unless clearly erroneous. State v. Heath, 685 N.W.2d 48, 61 (Minn.App.2004), review denied (Minn. Nov. 16, 2004). A factual determination is clearly erroneous when it is unsupported by the record. Id.

“The determination of whether multiple offenses are part of a single behavioral act under section 609.035 ... involves an examination of all the facts and circumstances.” State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). Whether multiple offenses are part of a single behavioral incident depends on factors such as the time and place of the offenses, and whether they were motivated by a single criminal objective. Schmidt, 612 N.W.2d at 876.

The district court found that the harassment conviction and the pattern-of-harassing-conduct convictions were not based on a single behavioral incident. While acknowledging that there was likely a single criminal objective underlying both offenses — “harassing his spouse” — the- court reasoned that O’Meara’s conduct involved many different forms of harassment and distinguished his case from Schmidt, which involved a single form of harassing conduct. See id. at 874, 876 (repeatedly driving down victims’ street). Rather, the district court believed that the facts and circumstances of O’Meara’s case more closely resembled those present in State v. Richardson, which involved multiple forms of harassing conduct in multiple locations over a period of years and, therefore, supported multiple sentences. 633 N.W.2d 879, 888-89 (Minn.App.2001) (distinguishing Schmidt).

Moreover, the harassment count, as alleged, focused only on telephone contact and specifically identified MinmStat. § 609.749, subd. 2(4)-(5), as the basis for the charge; by contrast, the allegations underlying the pattern of harassing conduct were not limited to any particular form of harassing behavior. See Schmidt, 612 N.W.2d at 876 (evaluating section 609.035 challenge by examining language in complaint).

Finally, although harassment can be a lesser-included offense of pattern of harassing conduct, MinmStat. § 609.749, subd. 5(b)(1), harassment was not a lesser-included offense in this case because telephone contact was only one of O’Meara’s multiple forms of harassing conduct. As discussed above, the three counts of violation of a harassment restraining order, which largely concerned non-telephone contact, support the jury’s guilty verdict as to a pattern of harassing conduct. See id., subd. 5(b)(6) (including violation of a harassment restraining order among qualifying predicate offenses). Further, the district court’s decision to dismiss the four counts of violation of a harassment restraining order is consistent with an implicit finding that the pattern of harassing conduct was based on multiple violations of the harassment restraining order, not the telephone harassment. Therefore, the district court’s decision that O’Meara’s harassment conviction and his pattern-of-harassing-conduet conviction were not a single behavioral incident is not clearly erroneous, and the district court did not err by sentencing O’Meara on both counts.

DECISION

The district court did not err by failing to more explicitly weigh the probative value of the proffered relationship evidence against its potential prejudicial effect. Although the district court erred by admitting evidence of prior “similar conduct” for which appellant had been acquitted, this record demonstrates that the error was harmless. Appellant failed to demonstrate that the district court’s jury instruction on pattern of harassing conduct constituted plain error affecting his substantial rights. The district court also did not err by sentencing appellant on both his conviction of pattern of harassing conduct and his conviction of harassment.

Affirmed.

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

      . Moreover, although O'Meara challenges the sufficiency of the district court's analysis, he does not identify any prejudice to himself resulting from the district court’s allegedly insufficient analysis.

      . The state also emphasizes that section 634.20 evidence need not be proven by clear and convincing evidence. But our decision is based on the inherently prejudicial nature of such evidence, which is unaffected by standard-of-proof considerations. Wakefield, 278 N.W.2d at 308. We discern no reason why the lack of a requirement that section 634.20 evidence be proven by clear and convincing evidence should undermine Wakefield’s applicability in this context.

      . The state does not appear to apply its waiver argument to O'Meara's claim that the instruction improperly permitted the jury to convict based on prior criminal conduct of which he had been acquitted. For clarity, however, we address the state’s waiver argument in connection with O’Meara’s claims regarding both conduct resulting in conviction and that resulting in acquittal.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2008 ND 160
    A. William LUCAS, Plaintiff and Appellant v. James E. PORTER, Shelly Porter, Leonard W. Becker, First State Bank of Wilton, First Wilton Bancshares, Ltd., Defendants and Appellees.
    No. 20070169.
    Supreme Court of North Dakota.
    Aug. 28, 2008.

      A. William Lucas, pro se, Bismarck, N.D., for plaintiff and appellant.
    Richard P. Olson, Olson & Burns, P.C., Minot, N.D., for defendants and appellees James E. Porter, Shelly Porter, First State Bank of Wilton, and First Wilton Bancshares, Ltd.
    Sheldon A. Smith, Smith Bakke Pors-borg & Sehweigert, Bismarck, N.D., for defendant and appellee Leonard W. Becker.
   KAPSNER, Justice.

[¶ 1] A. William Lucas appeals from a judgment dismissing his action against James E. Porter, Shelly Porter, Leonard W. Becker, First Wilton Bancshares, Ltd., and First State Bank of Wilton. Lucas argues the district court erred in deciding this action constituted the improper splitting of a cause of action. We hold Lucas’s prior action, Lucas I, and this action, Lucas II, arose out of the same facts and circumstances, and this action constitutes the improper splitting of a cause of action. We affirm.

I

[¶ 2] In Lucas I, Lucas initially sued James Porter, Bancshares, and First State Bank in a complaint dated December 11, 2003, regarding the sale of Bancshares’ stock and the ownership of First State Bank. Lucas subsequently amended his complaint to name only Bancshares and First State Bank as defendants. Lucas alleged Bancshares was created as a holding company to own stock in First State Bank; Lucas and James Porter each owned thirty percent and Becker owned forty percent of Bancshares’ stock; Lucas and James Porter had agreed to maintain equal ownership of Bancshares’ stock and made a joint written offer to purchase Becker’s shares of Bancshares, but James Porter later individually purchased Becker’s shares without Lucas’s knowledge; and James Porter thereafter used Banc-shares as a “vehicle of oppression” to effectively freeze Lucas out of his shareholder rights in First State Bank. Lucas alleged that, at all relevant times, Banc-shares and First State Bank were acting through James Porter as their agent, employee, president, chief executive officer, and director and that each corporation was hable for James Porter’s actions. In Lucas I, Lucas sought: (1) involuntary dissolution of Bancshares under N.D.C.C. § 10-19.1-115; (2) an order directing Bancshares to deliver to Lucas thirty percent of its stock in First State Bank; (3) damages for conversion of Lucas’s stock of First State Bank; (4) an order allowing Lucas to vote his shares of stock of First State Bank held by Bancshares; (5) an order prohibiting First State Bank from conducting a 2004 shareholder meeting until the court decided the procedure for voting First State Bank’s stock held by Bancshares; and (6) an award of attorney’s fees.

[¶ 3] In October 2006, shortly before trial in Lucas I, Lucas sued James and Shelly Porter, Becker, Bancshares, and First State Bank in this action, Lucas II, alleging Lucas and James Porter offered to jointly purchase Becker’s stock in Banc-shares, but James Porter separately purchased Becker’s stock and James Porter thereafter voted his shares of stock of Bancshares in a manner that prevented Lucas from engaging in the management of Bancshares and First State Bank. Lucas claimed James Porter was “grossly mismanaging” First State Bank “to serve [Porter’s] own personal interests, including the oppression of [Lucas’s] shareholder rights.” Lucas’s complaint in Lucas II alleged: (1) a claim against James Porter for breach of a contract to purchase Becker’s Bancshares’ stock in equal shares; (2) claims against James Porter and Becker for breach of fiduciary duty, fraud, and tortious interference with Lucas’s contractual rights regarding the purchase of Becker’s stock; (3) a claim against James and Shelly Porter and Becker for oppression of a minority shareholder for freezing Lucas out as a minority shareholder of Bancshares and First State Bank; (4) claims against James Porter and Banc-shares for a constructive trust and for specific performance of the alleged agreement to equally purchase Becker’s Banc-shares’ stock; (5) a claim against James and Shelly Porter for conversion; (6) a claim against James Porter, Bancshares, and First State Bank for removal of James Porter as director and shareholder of First State Bank and Bancshares; (7) a claim against First State Bank and Bancshares for vicarious liability; (8) and claims against all the defendants for attorney’s fees, an accounting, and for recission of the transactions between James Porter and Becker.

[¶ 4] The Lucas I trial was held on October 18 and 19, 2006. On October 24, 2006, the Porters, Bancshares, and First State Bank moved to dismiss the Lucas II complaint, arguing the allegations in that action were identical or similar to Lucas I and arose out of the same facts and circumstances. They claimed the allegations in Lucas II constituted the improper splitting of a cause of action. Becker subsequently answered and also claimed Lucas II constituted the improper splitting of a cause of action.

[¶ 5] At an April 3, 2007, hearing on the defendants’ motion to dismiss Lucas II, the district court orally directed counsel for the defendants to prepare an order dismissing that action. On April 9, 2007, the court signed an order for judgment of dismissal of Lucas II, concluding it constituted an improper splitting of a cause of action under Farmers Ins. Exch. v. Arlt, 61 N.W.2d 429 (N.D.1953).

[¶ 6] Although not part of the record in Lucas II, the parties do not dispute the Lucas I court issued findings of fact and a judgment in Lucas I on April 6, 2007. The Lucas I judgment denied Lucas’s request to involuntarily dissolve Bancshares, but granted him other equitable relief. The Lucas I court found: (1) Bancshares had not converted Lucas’s stock in First State Bank; (2) Porter had discharged his duties as officer and director of Bancshares in good faith and in a manner reasonably believed to be in the best interests of Bancshares and First State Bank; (3) the officers and directors of Bancshares had not acted fraudulently or illegally towards Lucas; (4) the actions by the directors and those in control of Bancshares and First State Bank, in effectively freezing Lucas out, were unfairly prejudicial to Lucas; and (5) the assets of Bancshares and First State Bank were not being misapplied or wasted. The Lucas I court recognized Lucas II had recently been filed, which “complicate[d] the Court’s ability to fashion an appropriate resolution,” and “[u]lti-mately how the ownership and operation of both corporations will turn out depends in part on whether there is any legally mandated change in the [corporate] ownership interests of Lucas and Porter” in Lucas II. The Lucas I court recognized it could order shareholders to sell their shares of Bancshares to achieve a fair and equitable result, but James Porter was no longer a defendant in Lucas I. The Lucas I court thus decided it could only order the sale of Lucas’s shares and said:

[A]t this time it is not appropriate to make such a final determination since there is the other pending lawsuit [, Lucas II,] which is unresolved.... However, the Court reserves the right to consider such an equitable remedy after [Lucas II ] is resolved and upon proper motion being filed in this case by [Banc-shares] or a shareholder in [Bancshares] within 120 days after that case is finalized. If such motion is filed the Court would then consider in its discretion and after notice and hearing whether such an order would be fair and equitable to all parties under the circumstances.

[¶ 7] The Lucas I court refused to order the involuntarily dissolution of Banc-shares, but because Lucas had been unfairly prejudiced, the court found Lucas was entitled to other equitable relief, including:

A. The court’s reserved right to have Lucas bought out at a fair value as contemplated in [N.D.C.C. § 10 — 19.1— 115],
B. [Bancshares] shall distribute one share of common stock of [First State] Bank to Lucas.
C. While Lucas remains a shareholder of [Bancshares] he shall be permitted to vote at [First State] Bank Shareholder meetings his 30% of the 2,200 shares of Bank common stock held by [Banc-shares], less the one share distributed directly to Lucas as noted above.
D. While Lucas remains a shareholder of [Bancshares] he shall have all rights granted to shareholders in North Dakota as provided by North Dakota law, including cumulative voting, inspection of records, and the ability to bring direct and derivative actions.
E. The parties to this action are free to and encouraged by the Court to consider negotiating a mutually acceptable remedy other than noted by the Court in these conclusions of law which both parties mutually find will resolve the differences which presently exist between Lucas and the other shareholder, Porter, and [First State] Bank and [Banc-shares],
F. Lucas is awarded attorney’s fees against [Bancshares] in an amount to be approved by the Court and is also awarded statutory costs and disbursements as provided by North Dakota law.

II

[¶8] Although the defendants moved to dismiss this action under N.D.R.Civ.P. 12, the defendants presented exhibits to the district court outside the pleadings in this action. Under N.D.R.Civ.P. 12(c) “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” The district court did not explicitly exclude the defendants’ exhibits, and because the court received exhibits that were outside the pleadings in this action, we consider the issues raised in this appeal in the posture of summary judgment. Witzke v. City of Bismarck, 2006 ND 160, ¶¶ 5-6, 718 N.W.2d 586. In Witzke, at ¶ 7 (citations omitted), we outlined our standards for review of a summary judgment:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. On appeal, we view the evidence in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. We review a district court’s decision to grant summary judgment de novo on the entire record.

III

[¶ 9] Lucas argues although Lucas I and Lucas II involve similar background facts, they have different operative facts, different parties, different law, different remedies, different causes of action arising at different times, and different issues. Lucas claims Lucas I was for the dissolution of Bancshares and Lucas II is for breach of fiduciary duties regarding his alleged agreement with James Porter to equally purchase Becker’s shares of Bane-shares. Lucas asserts the purpose of the rule against splitting a cause of action, the protection of a defendant, is not applicable to this case because the defendants in Lucas I and Lucas II are not the same. He claims he did not improperly split his cause of action and seeks a reversal and remand for trial of Lucas II, or for consolidation with Lucas I.

[¶ 10] A party with a single cause of action generally may not split that cause of action and maintain several lawsuits for different parts of the action. Knaebel v. Heiner, 645 P.2d 201, 204 (Alaska 1982); Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., Inc., 189 Ill.App.3d 638, 136 Ill.Dec. 957, 545 N.E.2d 481, 493 (1989); Kessler v. Old Guard Mut. Ins. Co., 391 Pa.Super. 175, 570 A.2d 569, 573 (1990). See 1A CJS Actions § 224 (2005); 1 Am.Jur.2d Actions § 103 (2005). The doctrine of res judicata claim preclusion is premised upon the prohibition against splitting a cause of action. Riverwood Commercial Park, L.L.C. v. Standard Oil Co., Inc., 2007 ND 36, ¶ 15, 729 N.W.2d 101; see also Farmers Ins. Exch., 61 N.W.2d at 434-38; 18 James Wm. Moore, Moore’s Federal Practice § 131.20[1] (3rd ed.2008). The rule against splitting a cause of action is in part a rule of abatement and in part a rule of res judicata. Hamilton v. Asbestos Corp. Ltd., 22 Cal.4th 1127, 95 Cal.Rptr.2d 701, 998 P.2d 403, 414 (2000). The rule against splitting a cause of action prevents splitting under a rule of abatement if the first action is pending when the second action is begun, and prevents splitting under a rule of res judicata if the first action has terminated in a judgment on the merits when the second action is brought. Id.

[¶ 11] In Plott v. Kittelson, 58 N.D. 881, 886-87, 228 N.W. 217, 218-19 (1929), this Court explained a rule of abatement:

“If the court, upon a consideration of the proof adduced, finds that another action is pending between the same parties and for the same cause, its judgment should be that the action abate * * *. But the defense of another action pending does not authorize a judgment on the merits of the case. Hence the court should not give a general judgment in favor of the defendant, nor a judgment that the plaintiff take nothing by his action. * * * ” jn words, if it appears from the showing made that there is another action pending, the action abates. If the other action is tried and judgment is entered, it is a bar to the subsequent action. If it is dismissed without prejudice, the abated action may be revived.

[¶ 12] In Plott, 58 N.D. at 887, 228 N.W. at 219, the prior action had been dismissed, and this Court held the district court did not err in denying the defendant’s plea of abatement. See First State Bank v. Osborne-McMillan Elev. Co., 53 N.D. 551, 556-57, 207 N.W. 37, 39 (1926) (dismissing prior case without prejudice did not operate as a bar to subsequent case).

[¶ 13] In Meagher v. Quale, 77 N.W.2d 878, 880 (N.D.1956) (emphasis in original), this Court discussed identity of action requirements for a plea of abatement in a case in which this Court held a prior pending action was not a bar to a subsequent action:

“The usual tests of identity of actions are whether a final judgment or decree in the one action would operate as a bar to the other; or whether the same evidence will support both actions. * * One test that is usually employed is whether a final judgment or decree in the prior action would be conclusive between the parties and operate as a bar to the second action; or, in other words, whether a final judgment or decree in the prior action, pleaded in abatement, would support a plea of res judicata of the issues involved in the second action.” 1 C.J.S., Abatement and Revival, § 42, b, p. 69.
“All courts agree that the cause of action must be the same in order that a pending suit abate one subsequently commenced, but difficulty is often encountered in determining whether the two causes are the same, and the authorities are not entirely harmonious. In many cases much the same test is used in determining what is the same cause of action for the purpose of abatement that is used in determining when a matter is res judicata. The ultimate inquiry seems to be whether the judgment in the first, if one is rendered, would be conclusive upon the parties in respect of the matters involved in the second. In other words, if a judgment in the first action would bar the other action, then the subsequent action will abate; but if such judgment would constitute no bar to the action, there is nothing to prevent the latter action from being maintained. Another test of identity is whether the same evidence will support both. Still another recognized test is whether the same full and adequate relief could be had in the prior action as in the one sought to be abated.” 1 Am.Jur., Abatement and Revival, Section 28, p. 35.

[¶ 14] In Meagher, 77 N.W.2d at 879-82, the plaintiff in a prior pending action, Quale, sought damages in the prior action from Meaghers for negligently raising an apartment building, and Meaghers denied liability and counterclaimed for the amount claimed due for their work. While that action was pending, Meaghers sued Quale to foreclose on a mechanic’s lien for the amount due for their work, and Quale alleged the prior pending lawsuit as a defense and also counterclaimed for damages from Meaghers’ alleged negligence. Id. at 879. This Court said the actions were not by the same plaintiff, were not for the same purposes and relief, and were not identical, and this Court held the prior pending action did not bar the second action. Id. at 881-82. See McLain v. Nurnberg, 16 N.D. 138, 141, 112 N.W. 245, 246-47 (1907) (holding prior pending action was bar to second action and stating “unless the issues are identical in the two actions, an answer pleading the pendency of the former action must fail. If, however, the issues are the same, the answer setting forth the pendency of the former action will be sustained, as litigants are not to be harassed by a multiplicity of suits, or even two suits involving the same issues”). The principles for abatement are intended to preclude harassment or oppression of a defendant by the pendency of two actions against the defendant at the same time by a plaintiff who has a complete remedy with one action. See 1 CJS, Abatement and Revival, at § 19; 1 Am.Jur.2d Abatement, Survival, and Revival, at § 6.

[¶ 15] Meagher supports the principle that a prior pending action may be pleaded as a bar to a subsequent action where a final judgment in the prior action, pleaded in abatement, would support the application of res judicata to the issues involved in the second action. 77 N.W.2d at 880. See 1 CJS Abatement and Revival, at § 37 (2005); 1 Am.Jur.2d Abatement, Survival, and Revival, at § 29. We conclude that rule is applicable to abatement, and we apply it to this case.

[¶ 16] Res judicata claim preclusion bars courts from relitigating claims in order to promote finality of judgments, which increases certainty, avoids multiple litigation, wasteful delay and expense, and ultimately conserves judicial resources. Riverwood Commercial Park, at ¶ 13; Borsheim v. O & J Properties, 481 N.W.2d 590, 596-97 (1992). Claim preclusion “prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.” Riverwood Commercial Park, 2007 ND 36, ¶ 13, 729 N.W.2d 101 (quoting Ungar v. North Dakota State Univ., 2006 ND 185, ¶ 11, 721 N.W.2d 16). Claim preclusion applies even if subsequent claims are based upon different legal theories. Riverwood, at ¶ 13; Ungar, at ¶ 11; Simpson v. Chicago Pneumatic Tool Co., 2005 ND 55, ¶ 11, 693 N.W.2d 612; Borsheim, at 597; Wolf v. Anderson, 422 N.W.2d 400, 401-02 (N.D.1988). The application of claim preclusion is a question of law, fully reviewable on appeal. Id.; Ungar, 2006 ND 185, ¶ 10, 721 N.W.2d 16; Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D.1992).

[¶ 17] In Farmers Ins. Exch., 61 N.W.2d at 434-38, an appeal from the second of two separate lawsuits for damages from one automobile accident, this Court held that a judgment against an insured in the insured’s prior action against the alleged tortfeasor for property damages and personal injury was a complete bar to the second action by the insured’s insurer against the alleged tortfeasor for property damages in the automobile accident. This Court discussed the requirements of a “cause of action” for purposes of splitting a cause of action and the preclusive effect of the judgment in the prior action:

In Brevick v. Cunard S.S. Co., 63 N.D. 210, 213, 247 N.W. 373, 375, this court held that it is the act done “which gives the plaintiff his cause of action”. In Durham v. Spence, L.R. Exch. 46, cited in Brevick v. Cunard, S.S. Co., supra, the court says: “I understand by ‘cause of action’ that which creates the necessity for bringing the action.” In Harvey v. Parkersburg Insurance Co., 37 W.Va. 272, 16 S.E. 580, it is held: “ ‘Cause of action’ generally means the breach of duty”.
“A right of action at law arises from the existence of a primary right in the plaintiff and an invasion of that right by some act or omission on the part of the defendant. The facts which establish the existence of that right and its violation constitute the cause of action.”
This court has repeatedly held that a cause of action cannot be divided; that when there is a single cause of action, although there may be different kinds of damages, only one suit can be brought.
In Jacobson v. Mutual Ben. Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442, 446, this court said:
“It is a familiar doctrine ‘that causes of action may not be divided, and that one who has availed himself of a part of a single claim or obligation in an action or defense is estopped thereafter from enforcing the remainder of it.’ In the later case it is said: ‘A party cannot in one action sue for a part of that to which he is entitled, and in a subsequent action sue for the remainder, when the right or recovery rests on the same state of facts.’ ”
The principle that causes of action cannot ordinarily be divided is also upheld in Albaugh v. Osborne-McMillan Elevator Co., 53 N.D. 113, 205 N.W. 5; Reineke v. Commonwealth Ins. Co., 52 N.D. 324, 202 N.W. 657; Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747.

61 N.W.2d at 434-35 (citations omitted).

[¶ 18] Under Farmers Ins. Exch., 61 N.W.2d at 434, the facts that establish the existence of a right in a plaintiff and an invasion of that right by the defendant constitute a cause of action, and if a right of recovery rests on the same state of facts, the cause of action may not be split. In Simpson, 2005 ND 55, ¶ 11, 693 N.W.2d 612 (quoting Morgan Consultants v. American Tel. and Tel. Co., 546 F.Supp. 844, 848 (S.D.N.Y.1982)), we also explained a cause of action is “ ‘the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.’ ” See Restatement (Second) of Judgments § 24 (1982) (stating valid final judgment on plaintiffs claim extinguishes all rights of plaintiff to remedies against defendant with respect to all or any part of transaction, or series of connected transactions out of which action arose and explaining in comment b that transaction connotes a natural grouping or common nucleus of operative facts); 18 Moore’s Federal Practice at § 131.20[2] (stating most federal courts generally follow Restatement approach and apply same transaction analysis, which considers whether claims involve natural grouping or common nucleus of operative facts, rather than type of relief requested, substantive theories advanced, or types of rights asserted).

[¶ 19] Lucas argues Lucas I involved dissolution of Bancshares, and relying on Triple Five, Inc. v. Simon, 404 F.3d 1088 (8th Cir.2005), he asserts Lucas II involves claims for breach of fiduciary duties and his alleged agreement with James Porter to equally purchase Becker’s shares of Bancshares. However, Triple Five involved an alleged breach of a fiduciary duty and usurpation of a partnership opportunity, and it did not involve an issue about splitting a cause of action or claim preclusion. Id. at 1095-1100. The issue here is whether Lucas II constitutes the improper splitting of a cause of action, which requires consideration of whether the claims in each action arise out of the same underlying operative facts that establish the existence of Lucas’s rights and the invasion of those rights by the defendants.

[¶20] Lucas I involved Lucas’s claim for involuntary dissolution of Bancshares, a closely-held corporation, under N.D.C.C. § 10-19.1-115, which provides a broad range of remedies for minority shareholders in closely-held corporations. See Brandt v. Somerville, 2005 ND 35, ¶¶ 9-10, 692 N.W.2d 144. Section 10—19.1—115(1)(b),(2),(3), and (5), N.D.C.C., authorize a court to dissolve a closely-held corporation or grant any just and reasonable equitable relief in a shareholder action when the shareholder establishes the directors, or those in control of the corporation, have acted fraudulently or illegally, or in a manner unfairly prejudicial toward the shareholder, or if corporate assets are being misapplied or wasted. The court may order the sale of shares in a manner that is fair and equitable to all parties under the circumstances of the case. N.D.C.C. § 10-19.1-115(3). In deciding whether to dissolve a closely-held corporation or order other equitable relief, the court shall consider the shareholders’ duty to one another to act in an honest, fair, and reasonable manner in the operation of the corporation and the shareholders’ reasonable expectations, and any buy-sell agreement among shareholders is presumed to reflect the parties’ reasonable expectations. N.D.C.C. § 10-19.1-115(4). In deciding whether to dissolve a corporation, the court also shall consider whether lesser relief would be adequate to permanently relieve the circumstances established in N.D.C.C. § 10-19.1-115(l)(b). N.D.C.C. § 10-19.1-115(5).

[¶ 21] In Lucas I, Lucas initially named James Porter as a defendant. After amending the complaint, Lucas ultimately claimed Bancshares and First State Bank were acting through James Porter, and the underlying factual circumstances involving James Porter’s actions for the corporations were litigated in Lucas I. Although James Porter ultimately was not a named party in Lucas I and there is some difference in Lucas’s legal theories of recovery in Lucas I and Lucas II, Lucas’s claims in each action involve the same underlying common operative facts and alleged wrongful conduct by the corporations or its agents in buying Bancshares’ stock and effectively freezing Lucas out of his shareholder rights in the corporations. Lucas’s characterization of operative facts is another way of characterizing alternative legal theories or remedies for the same common nucleus of facts that established the existence of his rights in Lucas I. However, claim preclusion applies if the subsequent claims are based on the same underlying factual circumstances even if the subsequent claims are based on different legal remedies or theories. See Riverwood, 2007 ND 36, ¶ 13, 729 N.W.2d 101, Ungar, 2006 ND 185, ¶ 11, 721 N.W.2d 16; Simpson, 2005 ND 55, ¶ 11, 693 N.W.2d 612; Wolf, 422 N.W.2d at 401-02; Farmers Ins. Exch., 61 N.W.2d at 434-38. We conclude the allegations in Lucas I and Lucas II arose out of the same common operative facts that established the existence of Lucas’s rights and those facts constitute the same cause, of action for purposes of the prohibition against splitting a cause of action.

[¶ 22] Lucas nevertheless argues Lucas I and Lucas II involve different parties. This Court has adopted an “expanded” version of privity for claim preclusion. Ungar, 2006 ND 185, ¶ 12, 721 N.W.2d 16 (citing Simpson, 2005 ND 55, ¶ 10, 693 N.W.2d 612). “[P]rivity exits if a person is ‘so identified in interest with another that he represents the same legal right.’ ” Hofsommer, 488 N.W.2d at 384 (quoting 46 Am.Jur.2d Judgments, § 532 (1969)). In Hofsommer, at 384 (quoting Stetson v. Investors Oil, Inc., 176 N.W.2d 643, 651 (N.D.1970)), we said:

“The strict rule that a judgment is operative, under the doctrine of res judi-cata, only in regard to parties and privies, is sometimes expanded to include as parties, or privies, a person who is not technically a party to a judgment, or in privity with him, but who is, nevertheless, connected with it by his interest in the prior litigation and by his right to participate therein, at least where such right is actively exercised by prosecution of the action, employment of counsel, control of the defense, filing of an answer, payment of expenses or costs of the action, the taking of an appeal, or the doing of such other acts as are generally done by parties.”

Fundamental fairness underlies the determination of privity. Ungar, at ¶ 12. A judgment on the merits exonerating a party from liability precludes a subsequent action against a party whose liability, if any is derivative of or secondary to the exonerated party. Id.

[¶ 23] Here, Bancshares and First State Bank were named defendants in both Lucas I and Lucas II, and Lucas’s claims against both corporate defendants in each action arose out of the same underlying factual circumstances for purposes of splitting a cause of action. James Porter was initially a named defendant in Lucas I, but Lucas subsequently amended his complaint to allege the corporate defendants in that action were acting through James Porter and Lucas’s claims against James Porter in this action are derivative of his claims against the corporations in Lucas I. Lucas’s claims against Shelly Porter in this action include oppression of a minority shareholder, conversion, attorney’s fees, an accounting, and recission of the transactions between James Porter and Becker. Those claims all involve allegations stemming from Shelly Porter’s involvement with the corporate defendants and are also derivative of Lucas’s claims against the corporations in Lucas I. In Lucas II, Lucas did not sue Becker for breach of a contract regarding Becker’s sale of Banc-shares’ stock to James Porter. Lucas’s claims against Becker in Lucas II alleged: (1) Becker breached a fiduciary duty regarding his duties as a shareholder, director, officer, and person in control of Bancshares and First State Bank; (2) Becker was guilty of fraud for failing to disclose information he was required to disclose by his fiduciary relationship with Lucas; (3) Becker tortiously interfered with Lucas’s contractual rights by breaching fiduciary agreements and duties to Lucas; (4) Becker breached fiduciary duties of good faith and fair dealing to Lucas, thereby entitling Lucas to rescind the stock sale and unwind the transactions; and (5) Becker oppressed a minority shareholder. Lucas’s claims against Becker in Lucas II arise out of the same factual circumstances as the claims in Lucas I and also are derivative of Lucas’s claims against the corporations in that action.

[¶ 24] We conclude Lucas’s claims against Becker and the Porters in this action arose out of the same underlying factual circumstances that established the existence of Lucas’s rights in Lucas I and are derivative of his claims against the corporations in Lucas I. Under these circumstances, we conclude there is a sufficient identity of common interests of the corporate defendants in Lucas I with the individual defendants in Lucas II for purposes of claim preclusion and splitting a cause of action. We therefore conclude Lucas II involves an action against the same parties or their privies as in Lucas I for purposes of splitting a cause of action.

[¶ 25] Lucas argues the defendants waived the defense of splitting a cause of action because they allowed Lucas I to proceed to trial before raising that defense in Lucas II.

[¶ 26] This Court has recognized that parties may agree or acquiesce to splitting a claim. See Zueger v. Carlson, 542 N.W.2d 92, 97 (N.D.1996) (party expressly consented to splitting dram shop and common law claims); Klem v. Greenwood, 450 N.W.2d 738, 742-43 (N.D.1990) (citing Restatement of Judgments (Second) § 26(l)(a) (1982) and stating parties agreed to split claim for malpractice from claim for attorney’s fees). See also 18 Moore’s Federal Practice at § 131.24[1], Here, however, the defendants’ motion to dismiss Lucas II was made within the time for answering the complaint in that action, and Lucas has not cited any other evidence to show an agreement or acquiescence for purposes of splitting a cause of action. We therefore reject Lucas’s claim about waiver.

[¶ 27] We conclude that, for purposes of splitting a cause of action, Lucas II arose from the same underlying operative facts that established the existence of Lucas’s rights in Lucas I and Lucas I has been tried on the merits. We therefore conclude the district court did not err in dismissing Lucas’s complaint in Lucas II.

IV

[¶ 28] Becker argues he is entitled to attorney’s fees and costs on appeal under N.D.R.App.P. 38, because Lucas’s appeal is frivolous. Under N.D.R.App.P. 38, if this Court determines an appeal is frivolous, “damages and single or double costs, including reasonable attorney’s fees” may be awarded. “An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.” Witzke, 2006 ND 160, ¶ 19, 718 N.W.2d 586 (quoting Riemers v. O’Halloran, 2004 ND 79, ¶ 16, 678 N.W.2d 547). We conclude Lucas’s appeal is not flagrantly groundless, devoid of merit, and does not demonstrate persistence in the course of litigation which can be seen as evidence of bad faith. We therefore decline to award Becker attorney’s fees under N.D.R.App.P. 38.

V

[¶ 29] We affirm the district court judgment.

[¶ 30] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS and DALE V. SANDSTROM, JJ., concur.


text:
    2008 ND 153
    CITY OF GRAND FORKS, Plaintiff and Appellee v. Roland C. RIEMERS, Defendant and Appellant.
    No. 20070379.
    Supreme Court of North Dakota.
    Aug. 28, 2008.

      Kristen Sue Pettit, City Prosecutor, Grand Forks, ND, for plaintiff and appel-lee.
    Roland C. Riemers, Emerado, ND, pro se, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Roland Riemers appealed from a district court order finding him guilty of speeding in violation of a municipal ordinance. We conclude we do not have jurisdiction, and we dismiss the appeal.

I

[¶ 2] On July 6, 2007, Riemers received a traffic citation charging him with traveling 50 miles per hour in a 40-mile-per-hour zone, in violation of a Grand Forks municipal ordinance. Riemers filed with the municipal court a written response to the citation, in which he (1) objected to posting bond, (2) requested a written complaint, (3) requested a delay of the initial hearing, (4) demanded a jury trial, and (5) objected to “improper service and procedures.” Riemers did not, however, seek a transfer of the matter to district court in accordance with N.D.C.C. § 40-18-15.1. The municipal court issued a written order denying Riemers’ demand for a jury trial. The matter was tried to the municipal court on August 30, 2007, and the court found Riemers guilty and imposed a fine of $51 and a $15 hearing fee.

[¶ 3] On August 31, 2007, Riemers filed a written notice of appeal seeking trial de novo in the district court and requesting a jury trial. The district court denied Riem-ers’ request for a jury trial, and the matter was tried to the court on October 18, 2007. The court found Riemers had violated the municipal ordinance and imposed a $51 fine and a $15 hearing fee. Riemers has attempted to appeal to this Court, alleging he had a right to a jury trial.

II

[¶ 4] The City contends this Court lacks subject matter jurisdiction over an appeal from a district court’s decision after a trial anew on a noncriminal traffic violation. Riemers argues that he has a constitutional right under N.D. Const, art. VI, § 2, to appeal to this Court and that “this Court has the inherent right to discretionary review of any matter.”

[¶ 5] Riemers has misconstrued the nature and extent of this Court’s appellate jurisdiction. Under N.D. Const, art. VI, § 6, “[ajppeals shall be allowed from decisions of lower courts to the supreme court as may be provided by law.” Accordingly, this Court has consistently held that the right to appeal in this state is “purely statutory.” E.g., State v. Keilen, 2002 ND 133, ¶ 7, 649 N.W.2d 224; State v. Bell, 2000 ND 58, ¶ 17, 608 N.W.2d 232; Whitaker v. Century 21, 466 N.W.2d 114 (N.D.1991). There is no federal or state constitutional right to an appeal. E.g., State v. Causer, 2004 ND 75, ¶¶ 22, 25, 678 N.W.2d 552; Bell, at ¶ 17; State v. Robideaux, 475 N.W.2d 915, 916 (N.D.1991); Reub’s Minot Camera, Inc. v. General Elec. Credit Corp., 201 N.W.2d 877, 879 (N.D.1972). The right of appeal is governed solely by statute, and if there is no statutory basis for an appeal we must take notice of the lack of jurisdiction and dismiss the appeal. State v. Grager, 2006 ND 102, ¶ 4, 713 N.W.2d 531; In re A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75.

[¶ 6] In this case, not only is there no statutory authority for an appeal to this Court, but there is an express statutory provision prohibiting an appeal. The procedures for prosecuting a noncriminal traffic offense are set out in N.D.C.C. § 39-06.1-03. Subsection (5)(a) of the statute provides for an appeal from the municipal court to the district court for trial anew, but prohibits any further appeal:

If a person is aggrieved by a finding that the person committed the violation, the person may, without payment of a filing fee, appeal that finding to the district court for trial anew. If, after trial in the appellate court, the person is again found to have committed the violation, there may be no further appeal.

This Court has interpreted N.D.C.C. § 39-06.1-03(5)(a) to confer appellate jurisdiction upon the district court, not this Court, and once a new trial is held in the district court there is no further appeal. State v. Walch, 499 N.W.2d 602, 603 (N.D.1993). The Court expressly concluded: “We read the prohibition against a further appeal to wholly exclude the North Dakota Supreme Court from the appeal process,” and “a noncriminal traffic case may not be appealed to this court.” Id.; see also Bland v. Commission on Med. Competency, 557 N.W.2d 379, 384 (N.D.1996); State v. Silkman, 317 N.W.2d 124, 125 (N.D.1982).

[¶ 7] The municipal court found that Riemers had violated the municipal ordinance. Riemers then invoked the appellate jurisdiction of the district court by appealing to that court for trial anew under N.D.C.C. § 39-06.1-03(5)(a). By the clear language of the statute there is no further appeal. Accordingly, we conclude that we do not have jurisdiction and must dismiss the appeal. See Grager, 2006 ND 102, ¶ 4, 713 N.W.2d 531; A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75.

[¶ 8] Although we conclude that we lack jurisdiction over Riemers’ attempted appeal, we note that an appropriate procedure was available for him to challenge the denial of a jury trial. If Riemers believed he had a right to a jury trial on the charged offense, he should have immediately sought a transfer of the matter from the municipal court to the district court under N.D.C.C. § 40-18-15.1, which provides in part: “A matter may be transferred to district court for trial only if within twenty-eight days after arraignment the defendant has requested in writing to transfer the case to district court and to exercise the defendant’s right to a jury trial.” This Court has clarified that unless the defendant makes a timely request under the statute to transfer the matter to district court “the right to a jury trial is lost.” City of Bismarck v. Fettig, 1999 ND 193, ¶ 13, 601 N.W.2d 247. If Riemers had filed a timely request to transfer the matter to district court under N.D.C.C. § 40-18-15.1, and the municipal court had denied the transfer or the district court, after transfer, had denied Riemers’ request for a jury trial, Riemers could then have sought a supervisory writ from this Court. See Silkman, 317 N.W.2d at 125 n. 1. This would have been the appropriate procedure to seek this Court’s review of whether a defendant has a right to a jury trial in a noncriminal traffic case. Riemers did not follow this procedure, and never sought a supervisory writ from this Court. Rather, he made a demand for a jury trial in municipal court and, after being found guilty in a municipal court bench trial, invoked the appellate jurisdiction of the district court for a trial anew. At that point, further appellate review by this Court was precluded by N.D.C.C. § 39-06.1-0S(5)(a).

Ill

[¶ 9] We conclude that we are without jurisdiction, and we dismiss the appeal.

[¶ 10] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


author: CROTHERS, Justice.

text:
    2008 ND 157
    STATE of North Dakota, Plaintiff and Appellee v. Shane RODRIQUEZ, Defendant and Appellant.
    Nos. 20070349, 20070350.
    Supreme Court of North Dakota.
    Aug. 28, 2008.
    Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Shane Phillip Rodriquez, pro se, Bismarck, ND, defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Shane Rodriquez appeals from district court orders denying his motions for credit for time served in custody. We conclude the district court did not err in denying the motions because Rodriquez was granted credit for time served on one of his sentences; therefore he is not entitled to have that time applied to another sentence. We affirm.

I

[¶ 2] On July 1, 2002, Rodriquez was charged in Burleigh County with one count of class C felony terrorizing. He posted bond and was released. On July 12, 2002, the district court revoked Rodriquez’s bond and issued a bench warrant for his arrest based on new charges filed against him in Burleigh County. He was charged with one count of class A misdemeanor possession of marijuana by a driver and one count of class C felony possession of drug paraphernalia. Rodriquez was apprehended and placed in custody. On August 26, 2002, Rodriquez pled guilty to previously filed Morton County charges of possession of a controlled substance with intent to deliver. On the Morton County charges, Rodriquez was sentenced to eight years in prison with four years of the sentence suspended for five years. He also was placed on supervised probation.

[¶ 3] On January 7, 2003, Rodriquez pled guilty to the three Burleigh County charges. On the terrorizing charge, Rodriquez was sentenced to five years in prison, with four years suspended and five years of supervised probation. This sentence was ordered to run concurrently with the sentence on the other two Bur-leigh County charges “and with sentence currently serving.” On the charge of possession of marijuana by a driver, Rodriquez was sentenced to one year in prison. On the charge of possession of drug paraphernalia, Rodriquez was sentenced to five years in prison, with four years suspended and five years of supervised probation. The court ordered the sentences to “run concurrently with each other and currently to the sentence presently serving” and granted Rodriquez credit for 38 days served in custody. Rodriquez served his prison sentence and was. released and placed on probation.

[¶ 4] On June 16, 2006; Rodriquez’s probation officers filed an incident report claiming Rodriquez had committed fraudulent practices in urine testing, a class A misdemeanor, which was a violation of probation conditions in the criminal judgment entered in Morton County and in the two Burleigh County criminal judgments. Rodriquez was placed in the Morton County Detention Center. Petitions to revoke Rodriquez’s probation were filed in Bur-leigh and Morton counties. Rodriquez posted bond and was released from custody.

[¶ 5] On August 8, 2006, the district court in Burleigh County issued a bench warrant for Rodriquez’s arrest. Rodriquez’s bond had been revoked because he had been in custody in Williams County since August 6, 2006, where he ultimately faced charges for class C felony driving under the influence and class A misdemeanor menacing. Amended petitions to revoke his probation were filed in Burleigh and Morton counties.

[¶ 6] In early November 2006, Rodriquez was sentenced on the charge of fraudulent practices in urine testing to one year in prison with six months suspended and was granted credit for time served in custody. On November 22, 2006, Rodriquez appeared in district court in Burleigh County and admitted to the probation violations. At that time, he was in custody in Morton County. On the possession of drug paraphernalia charge, Rodriquez was sentenced to four years in prison and was granted credit for one year in custody. On the terrorizing charge, Rodriquez was sentenced to four years in prison and was granted credit for one year in custody. The court ordered both sentences to run concurrently. The transcript of the Bur-leigh County revocation hearing indicates Rodriquez was scheduled to appear at a probation revocation hearing regarding the Morton County criminal judgment later the same day.

[¶ 7] Rodriquez subsequently filed motions for credit for time served in both Burleigh County cases. Rodriquez accompanied the motions with copies of one page from what he asserted was the criminal judgment in the Morton County case indicating he had been given credit on his Morton County sentence for the time he spent incarcerated from August 6, 2006 to November 22, 2006. Rodriquez asserted he was legally entitled to receive credit for the 108 days he was in custody between August 6, 2006 and November 22, 2006 on his Burleigh County sentences as well. The district court denied the motions.

II

[¶ 8] On appeal, Rodriquez argues the district court erred in failing to grant him credit on the Burleigh County sentences for the 108 days he served in custody between August 6, 2006 and November 22, 2006. Rodriquez bears “the burden of showing he is entitled to additional [ ] credit for time served in custody.” Cue v. State, 2003 ND 97, ¶ 12, 663 N.W.2d 637; see State v. Schrum, 2006 ND 18, ¶ 6, 709 N.W.2d 348.

[¶ 9] Rodriquez contends he was given credit for the 108 days spent in custody on the Morton County sentence and should likewise be given 108 days credit on the Burleigh County sentences. Rodriquez complains that the failure to grant the 108-day credit in the Burleigh County cases results in “ ‘two’ release date[ ]s,” and he “would like just ‘one.’ ” On the record before us, we reject Rodriquez’s argument.

[¶ 10] Although N.D.C.C. § 12.1-32-02(2) requires that a defendant receive credit for time served in custody, “a defendant is not to be credited for time spent in custody for a wholly unrelated charge.” Gust v. State, 2006 ND 114, If 5, 714 N.W.2d 826; see also State v. Eugene, 340 N.W.2d 18, 35-36 (N.D.1983). In this case, the record does not enable us to determine whether the time Rodriquez served in custody between August 6, 2006 and November 22, 2006 was attributable to the Williams County charges, the Morton County revocation charges, the Burleigh County revocation charges, or a combination of them all.

[¶ 11] However, Rodriquez does not dispute that he was given credit on the Morton County sentence for the 108 days spent in custody, and he does not contend, nor does the record establish, that he received the 108-day credit on the wrong sentence. “[W]hen time spent in custody is credited toward an unrelated charge, a defendant is not entitled to credit in another sentence.” See Gust, 2006 ND 114, ¶ 10, 714 N.W.2d 826; State v. Trudeau, 487 N.W.2d 11, 15 (N.D.1992); State v. Sorensen, 482 N.W.2d 596, 599 (N.D.1992); State v. Arcand, 403 N.W.2d 23, 24 (N.D.1987). “[T]o do otherwise would constitute double credit.” Arcand, at 24. Rodriquez admits he received the 108-day credit on the Morton County sentence. Therefore, he was not entitled to have the 108-day credit also applied to the Burleigh County sentences.

[¶ 12] We conclude the district court did not err in denying Rodriquez’s motions for credit for time served in custody.

III

[¶ 13] The orders are affirmed.

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


author: KONENKAMP, Justice.

text:
    2008 SD 78
    Marvin E. TRIPP and Donna Tripp De Schepper, a/k/a Donna De Schepper, Plaintiffs and Appellants, v. F & K ASSAM FAMILY, LLC, a South Dakota limited liability company; Samuel R. Assam and Lori R. Dewitt, As Co-trustees of the Assam Credit Trust Established under the Fred Assam Revocable Inter Vivos Trust Agreement dated July 29, 1987, as amended; Samuel R. Assam, Trustee of the Kay Assam Trust, Defendants and Appellees, and Viola Lape; Marquita Chavez and Rita R. Chavez; John T. Lape a/k/a John Lape and Janet C. Lape; City of Sioux Falls, South Dakota, a municipal corporation, The Illinois Central Railroad Company, f/k/a Illinois Central Gulf Railroad Company; The Unknown Heirs, Devisees, Legatees, Executors, Administrators or Creditors of H.C. Aldrich, Deceased; and all persons unknown who have or claim to have interest of Estate in or lien or encumbrance upon the premises described in the Complaint, Defendants.
    No. 24580.
    Supreme Court of South Dakota.
    Argued April 22, 2008.
    Decided Aug. 6, 2008.

      James E. Moore of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    Timothy Grande, Patrick J. Summers of Mackall, Crounse & Moore, PLC, Minneapolis, Minnesota, Thomas J. Von Wald, John P. Mullen of Bangs, McCullen, Butler, Foye & Simmons, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees F & K Assam Family, LLC, Samuel R. Assam & Lori R. DeWitt.
   KONENKAMP, Justice.

[¶ 1.] Two landowners dispute title on two parcels of land, a 100-foot strip and a 33-foot strip. One landowner claims title based on two deeds and the other through adverse possession and reversionary interests. After several motions and cross motions for summary judgment, the circuit court quieted title to both parcels in favor of the deed holder. We affirm in part, reverse in part, and remand.

Background

[¶ 2.] Marvin and Donna Tripp dispute title to two parcels of land in Sioux Falls, South Dakota, held by F & K Assam Family, LLC. One parcel is a 100-foot strip of land originally deeded to the Cherokee and Dakota Railroad in 1888, by Eunice and Herbert Aldrich through an instrument entitled “Right of Way Deed.” In a separate deed, also from 1888, the Aldrichs conveyed to the railroad a 33-foot strip adjacent to the 100-foot strip. At some point, the Cherokee and Dakota Railroad became the Illinois Central Gulf Railroad Company. Then, in 1984, Illinois Central conveyed to Assam by special warranty deed several parcels of land in Minnehaha County, including the land conveyed by the two 1888 deeds from the Aldrichs to the Cherokee and Dakota Railroad.

[¶ 3.] In 2002, the Tripps brought an action against various defendants to quiet title to a portion of the 100-foot strip and 33-foot strip adjacent to their land. They asserted title to the portion of the 100-foot strip based on their claim that the Aldrichs conveyed to the railroad an easement in 1888, and when the railroad abandoned its easement interest in 1984, ownership reverted to the Tripps as adjacent landowners. The Tripps claimed title to the 33-foot strip by adverse possession. Although the Tripps’ suit was against various defendants, this appeal only concerns Assam. In response to the Tripps’ quiet title action, Assam counterclaimed to quiet title to the same property. Because Illinois Central conveyed to Assam a fee interest in the properties in 1984, Assam asserted fee ownership of both parcels.

[¶4.] The parties filed cross motions for summary judgment. On January 23, 2003, the circuit court issued a memorandum decision. As to the 100-foot strip, the court declared that Illinois Central conveyed to Assam fee title in 1984, and therefore, nothing reverted to the Tripps. It then found that the Tripps could not adversely possess the 33-foot strip because the 1888 deed contained language indicating that the property was for public use. In an order incorporating the memorandum decision, the court denied the Tripps’ motion for summary judgment and granted Assam’s motion to the extent that the railroad conveyed to Assam fee simple title.

[¶ 5.] The Tripps’ petition for an intermediate appeal was denied. The parties then requested a decision from the circuit court on whether the 1888 deed, related to the 33-foot strip, could be judicially modified because it failed to convey a bounded parcel. It is undisputed that the 1888 deed from the Aldrichs to the Chicago and Dakota Railroad purporting to convey a 33-foot strip of land did not convey a bounded parcel. Assam asserted that the parties intended the deed to convey the disputed 33-foot strip and requested the necessary reformation. The Tripps, on the other hand, argued that the statute of limitations expired on Assam’s right to reformation. The Tripps further asserted that if the court were to reform the deed, it should only change one word in the deed’s language, which would then suffice to describe a bounded parcel, but not the disputed 33-foot strip they claimed title to by adverse possession.

[¶ 6.] In a memorandum decision, the circuit court refused to reform the deed at that time. It concluded that there was an issue of fact on when Assam discovered that the 1888 deed failed to describe a bounded parcel, and therefore, whether the statute of limitations expired. The court ordered a trial on the merits. In response, the parties stipulated that the mistake was discovered by Assam in 2000. Thereafter, the court incorporated all previous memorandum decisions and orders and held that the statute of limitations had not expired on Assam’s request for reformation. The court then reformed the deed to describe a bounded parcel. According to the court, the reformed deed identified a parcel consistent with that described by the Tripps’ complaint and Assam’s counterclaim. Because the court previously declared that the deed conveying the 33-foot strip “makes clear the [33-foot] strip was intended for public use, thereby negating the hostility element necessary for adverse possession prior to 1984” the court quieted title in favor of Assam to the newly described 33-foot strip. The court also quieted title in favor of Assam on the 100-foot strip.

[¶ 7.] On appeal, the Tripps contend that (1) the 1888 right-of-way deed only conveyed an easement, not fee title, (2) ownership of that easement property reverted to the Tripps on abandonment by the railroad, (3) the circuit court abused its discretion when it reformed the 1888 deed, related to the 33-foot strip, without evi-dentiary support, (4) the statute of limitations expired, thus precluding reformation, and (5) the Tripps established that they adversely possessed the 33-foot strip.

Analysis and Decision

1. The 100-Foot Strip

[¶ 8.] We first address the Tripps’ claim that the 1888 deed from the Aldrichs to the Cherokee and Dakota Railroad conveyed only an easement interest in the 100-foot strip. According to the Tripps, since the deed is entitled “Right of Way Deed” and contains limiting language, the Aldrichs intended only to convey an easement interest. Assam, on the other hand, asserts that this Court’s precedent supports the circuit court’s conclusion that a conveyance of fee title was intended. In particular, Assam points to the absence of reversionary language and the warrant of title the Aldrichs gave on. the property.

[¶ 9.] A grant of real property presumes fee simple title “unless it appears from the grant that a lesser estate was intended.” SDCL 43-25-15; see also Meyerink v. Nw. Pub. Serv. Co., 391 N.W.2d 180, 182 (S.D.1986). We examine the instrument as a whole to determine what type of conveyance was intended. Meyerink, 391 N.W.2d at 182 (citing Northwest Realty Co. v. Jacobs, 273 N.W.2d 141, 144 (S.D.1978)). “[0]nly when construction of the instrument as a whole leaves the intention of the parties in doubt should consideration be given to the situation and circumstances of the parties at the time of the execution of the deed.” Id. (citing Northwest Realty, 273 N.W.2d at 145).

[¶ 10.] In 1888, the Aldrichs executed a deed entitled “Right of Way Deed” conveying a strip of land 100 feet wide “to have and to hold to said [Railroad] Company and its successors and assigns forever, the aforementioned strip of land for all purposes connected with the construction, maintenance and operation of a steam railroad over the same.” (Emphasis added). The deed used right of way language in describing the railroad’s right “to go outside of said right of way on the land above described to borrow material therefrom for embankment or to waste dirt thereon, and agree that the price to be paid for the land that may be so used, shall be in proportion to the price paid for said aforementioned right of way,-” (Emphasis added). The Aldrichs warranted “the title to said strip of land against all persons whomsoever.” They received $875 for the conveyance.

[¶ 11.] In Sherman v. Sherman, the parties disputed whether an instrument conveyed to the railroad an easement or fee title. 23 S.D. 486, 122 N.W. 439, 442-43 (1909). The challenged deed conveyed real property to the Cherokee and Dakota Railroad “for the purpose of station grounds, tracks, side tracks, switches, and the location, construction, and convenient use of its railroad, but for no other purpose[.]” Id. at 441. The deed indicated that the railroad “discharge[d] and forever releasefd]” the grantors “from all claims whatsoever[.]” Id. at 442: Despite the deed’s language limiting the purpose to use as a railroad, the Court held that fee title was intended. When the deed was considered as a whole, it was evident that a lesser estate was not intended. In particular, there was no provision reserving a right in the grantor to reenter if the property ceased its use for railroad purposes. Id. Moreover, full market value was paid in consideration, and the grantors were released from all claims. Id. at 444.

[¶ 12.] Similarly, in Nystrom v. State, the Court construed the following language to pass an “unqualified title in fee and not an easement:”

‘all the estate, right, title, interest, claim and demand whatsoever’ of the grantor ‘either in law or in equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. To have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, its successors and assigns forever.... And the said party of the first part hereby expressly waives and releases ... all damages to the lands of said party of the first part which have been or may hereafter be caused by reason of the construction, maintenance and operation of a railroad on said granted premises or by reason of any lawful use whatever of said granted premises by said party of the second part, its successors or assigns’.

78 S.D. 498, 499-500, 104 N.W.2d 711, 712 (1960) (emphasis added). In concluding that a fee title was conveyed, the Court noted that “[t]he conveyance is not limited by its terms to [a] railroad right of way or tracks and there is no reverter clause or conditions.” Id.

[¶ 13.] In Meyerink, this Court again examined a deed to a railroad company that contained right of way language. 391 N.W.2d at 182. The deed was captioned “right-of-way deed,” but the Court held that when considered as a whole “it is clear that transfer of fee title, not a lesser estate, was intended.” Id. at 182-83. The Court noted “that the landowners ‘will forever Warrant and Defend the title to the premises hereby conveyed’ ” and that this language “is clearly the language of a conveyance in fee or, more specifically, a warranty deed.” Id. at 183.

[¶ 14.] As in Sherman, Nystrom, and Meyerink, we conclude that the limiting language in the Aldrich deed is insufficient to establish that a lesser estate was intended. True, the deed is entitled “Right of Way Deed” and contains language purporting to limit the railroad’s use of the property. But this language must be contrasted with the provisions in the deed indicating that a permanent conveyance was intended. First, the deed conveyed the property to the railroad “to have and to hold ... [along with] its successors and assigns forever.” Second, the deed did not reserve a right to reenter if the property ceased to be used for railroad purposes. Third, the deed warranted the railroad’s title to the property “against all persons whomsoever.” Reading the language of the deed in its entirety, we conclude that the 1888 deed from the Aldrichs to the Cherokee and Dakota Railroad conveyed fee title to the 100-foot strip.

[¶ 15.] Nevertheless, the Tripps insist that Northwest Realty Co., 273 N.W.2d at 144 and Tibbitts v. Anthem Holdings Corp., 2005 SD 26, 694 N.W.2d 41 would support a finding that an easement was intended. The Tripps’ reliance on Tibbitts is misplaced. That case involved a conveyance of property to a county for use as a highway, implicating a different analysis. See 2005 SD 26, ¶ 7, 694 N.W.2d at 44. When this Court reviews a conveyance to the State or a county for highway purposes, we do not presume fee title. See Pluimer v. City of Belle Fourche, 1996 SD 65, ¶ 15, 549 N.W.2d 202, 205 (the general presumption does not apply). On the contrary, “in the absence of express statutory authorization otherwise, when the state acquires private property for highway right of way it merely acquires an easement and fee title remains in the abutting landowner.” Cuka v. State, 80 S.D. 232, 236, 122 N.W.2d 83, 85 (1963) (citing Edmison v. Lowry, 3 S.D. 77, 52 N.W. 583 (1892); Meek v. Meade County, 12 S.D. 162, 80 N.W. 182 (1899); Sweatman v. Bathrick, 17 S.D. 138, 95 N.W. 422 (1903); Henle v. Bodin, 54 S.D. 46, 222 N.W. 492 (1928)).

[¶ 16.] In Northwest Realty Co., the Court examined an instrument containing language purporting to convey fee simple title, while identifying the grant as a right of way. 273 N.W.2d at 144. After the Court considered the instrument as a whole, it could not determine the intent of the parties. 273 N.W.2d at 144-45. Therefore, the Court applied a seven-factor test to assess the circumstances and situation of the parties at the time the deed was executed. The factors include:

(1) the amount of consideration; (2) the particularity of the description of the property conveyed; (3) the extent of the limitation upon the use of the property; (4) the type of interest which best serves the manifested purpose of the parties; (5) the peculiarities of wording used in the conveyance document; (6) to whom the property was assessed and who paid the taxes on the property; and (7) how the parties to the conveyance, or the heirs or assigns, have treated the property.

Id. at 145 (citing Sohio Petroleum Co. v. Hebert, 146 So.2d 530, 535 (La.Ct.App.1962)) (additional citations omitted). Applying this test, the circumstances surrounding the grant led the Court to conclude that a lesser estate was intended. Id.

[¶ 17.] Although Northwest Realty Co. did not involve a conveyance to a railroad company, a review of the seven factors in this case supports a conclusion that fee title was intended by the Aldrichs and the Cherokee and Dakota Railroad in 1888. The railroad paid the Aldrichs $375 for 3.03 acres of land. The deed described the land with particularity, as evinced by the fact that its exact location can be determined. See id. (“[e]asements do not require a definite statement of their width, dimensions, or exact location”). It is true that the parties limited the conveyance “for all purposes connected with the Construction, Maintenance and operation of a steam railroad[.]” However, the extent of the limitation supports the inference that the Aldrichs intended to pass fee title. This is because the Aldrichs imposed no conditions on the grant and did not reserve an interest or a right to reenter if the land ceased being used for railroad purposes. See Sherman, 23 S.D. 486, 122 N.W. at 444 (“There is nothing in the instrument in question reserving in the grantors any use of or dominion over the land, nor any provision whereby the grantors might reenter or resume possession in case it was not used for railway purposes.”).

[¶ 18.] While the type of interest that would best serve the manifest purpose of the parties is not determinative either way, and the peculiarities of the wording used in the conveyance are not helpful, because the deed warrants title “against all persons whomsoever,” this is additional support that the Aldrichs intended to convey fee title. See Meyerink, 391 N.W.2d at 183-84; see also Sherman, 23 S.D. 486, 122 N.W. at 443. Finally, no evidence was presented to demonstrate that the parties’ heirs and assigns treated the property as if a limited interest was conveyed. In fact, both the Cherokee and Dakota Railroad and its successor, the Illinois Central Gulf Railroad Company, treated the property as if they held it in fee. Indeed, Illinois Central conveyed fee title to Assam in 1984. Thus, the parties’ reasonable commercial expectations in holding and transferring property were maintained.

[¶ 19.] Because the 1888 deed conveyed to the railroad fee title to the 100-foot strip, Assam became the fee owner of that strip with the deed from Illinois Central. And because Assam is the fee owner, there is no need to address the Tripps’ claim that the property reverted to them as the adjacent landowners when the railroad abandoned its interest.

2. The 33-Foot Strip

[¶20.] We next address the Tripps’ claim that the statute of limitations precluded reformation of the second 1888 deed, which Assam argues intended to convey the disputed 33-foot strip. Assam asked the circuit court to reform the 1888 deed from the Aldrichs to the Cherokee and Dakota Railroad to describe a bounded parcel. The Tripps do not dispute that the deed failed to describe a bounded parcel, but contend that the ten-year statute of limitations expired on Assam’s right to request reformation. According to the Tripps, Assam was constructively aware of the defect in the deed when the instrument was recorded in 1984.

[¶ 21.] Wflien an error or mistake has been made, equity allows a court to reform a written instrument to reflect the real intention of the parties. Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 152 (S.D.1986); Burke v. Bubbers, 342 N.W.2d 18, 20 (S.D.1984); Garber v. Haskins, 84 S.D. 459, 464, 172 N.W.2d 721, 723 (1969); Essington v. Buchele, 79 S.D. 544, 548, 115 N.W.2d 129, 131 (1962); Craig v. Nat’l Farmers Union Auto. & Cas. Co., 76 S.D. 349, 354, 78 N.W.2d 464, 466 (1956). A party’s right to reformation, however, is subject to the limitation that “such relief cannot be granted against a bona fide purchaser or incumbrancer for value and without notice.” Farmers’ & Merchants’ Bank v. Citizens’ Nat’l Bank of Sisseton, 25 S.D. 91, 125 N.W. 642, 644 (1910) (citations omitted); see also SDCL 21-11-1.

[¶ 22.] Here, there is no bona fide purchaser or encumbrancer for value protesting Assam’s request for reformation. Therefore, whether Assam was constructively aware of the defect in the 1888 deed is immaterial. Because the Tripps are not bona fide purchasers for value, they are in no position to complain of or prevent the reformation of the 1888 deed. See Nash Finch Co. v. Rubloff Hastings, L.L.C., 341 F.3d 846, 850 (8thCir.2003) (the party opposing reformation has the burden of proving that it is a bona fide purchaser for value). There being no intervention by an innocent purchaser, the circuit court did not err when it acted to reform the deed. See Enchanted World Doll Museum, 398 N.W.2d at 152; see also Owens v. Owens, 16 La.App. 588, 135 So. 87, 89 (1931); Michigan Trust Co. v. Land Owners Ass’n, 288 Mich. 323, 284 N.W. 894, 900 (1939).

[¶ 23.] Lastly, the Tripps assert that even if the statute of limitations does not preclude reformation, the reformed deed does not describe the disputed 33-foot strip, and therefore, the court erred when it did not quiet title in favor of them based on their claim of adverse possession. According to the Tripps, Ernest Carlsen’s affidavit and deposition testimony prove that the deed should have been reformed to change only one word, and that if so reformed, the deed would describe a parcel immediately southwest of the disputed 33-foot strip. Assam, however, asserts that “the legal description in the January 1888 Deed and a comparison with the 1889 Plat shows that the deed as reformed by the [court] is supported by the record.”

[¶ 24.] While we review a circuit court’s decision to reform a deed under the abuse of discretion standard, the court’s finding on the intent of the parties and resulting reformation must be supported by the record. Burke, 342 N.W.2d at 21. Moreover, plaintiffs seeking reformation must prove their “cause of action by clear, unequivocal and convincing evidence.” Northwestern Nat’l Bank of Sioux Falls v. Brandon, 88 S.D. 453, 458-59, 221 N.W.2d 12, 15 (S.D.1974) (citing Craig, 76 S.D. at 354, 78 N.W.2d at 466; Brooks, Inc. v. Brooks, 86 S.D. 676, 679, 201 N.W.2d 128, 129 (1972)).

[¶ 25.] The 1888 deed originally contained the following legal description:

Commencing at a point Nine Hundred and Fifty (950) feet west and Eighty three (83) feet north of the Southeast Corner of the Southwest Quarter (1/4) of Section Thirteen (13), Township One Hundred and One (101) North, Range Forty-Nine (49) West of the 5th P.M.; thence North Thirty-Three (33) Feet; thence Southeasterly parallel to the center line as now located of the line of Railroad of the Cherokee and Dakota Railroad Company, Six Hundred & Thirty-two feet, thence South Thirty-Three (33) Feet; thence Northeasterly along the North Line of the Right-of-Way of said Six Hundred & Thirty-to feet to place of beginning.

The circuit court reformed the deed as follows:

Commencing at a point Six Hundred and Thirty-Two (682) feet west and One Hundred Twenty-Six and One-Half (.126⅜) feet north of the Southeast Corner of the Southwest Quarter (1/4) of Section Thirteen (13), Township One Hundred and One (101) North, Range Forty-Nine (49) West of the 5th P.M.; thence North Thirty-Three (33) Feet; thence Southwesterly parallel to the center line as now located of the line Railroad of the Cherokee and Dakota Railroad Company, Nine Hundred and Fifty (950), thence South Thirty-three (33) Feet; thence Northeasterly along the North Line of the Right-of-Way of said Railroad Nine Hundred and Fifty Feet (950) to place of Beginning.

(Emphasis to note reformations).

[¶ 26.] The court noted that the reformed “deed describes the same property referred to as the ‘Tripp Property’ in Count 1 of [the Tripps’] amended complaint and is the same property for which the Assam Defendants seek to quiet title in their name as set forth in paragraph 2 of the Assam Defendants counterclaim for quiet title.” Based on our review of the record, including the complaint, counterclaim, affidavits, plats, exhibits, and transcripts, there is nothing to support the proposition that the reformed deed describes the parcel intended by the Aldrichs in 1888, or describes the disputed 33-foot strip the Tripps claim title to by adverse possession.

[¶27.] Assam asserts that a railroad map created at the time of the 1888 deed and a plat filed on April 25, 1889, provide evidentiary support for the reformation by the court. According to Assam, the “strip begins 632 feet west of the section line and continues in a southwesterly direction along the north side of the railroad right of way.” What “section line” Assam is referring to, where on that section line, and what constitutes “632 feet west” cannot be determined from the record. While there are multiple plats and diagrams in the record, none contain a drawing or any other marking identifying the reformed bounded parcel. Moreover, there is nothing to assist us in determining how the reformed parcel relates to the disputed 33-foot strip.

[¶ 28.] There being no evidence to support the court’s finding that the reformed deed describes the same property the Tripps assert title to by adverse possession, we reverse for the taking of further evidence and remand the court’s decision quieting title in the disputed 33-foot strip in favor of Assam. Thereafter, depending on the court’s findings, the Tripps’ claim for adverse possession may be addressed.

[¶ 29.] Affirmed in part, reversed in part, and remanded.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

       The Tripps asked us to take judicial notice of, or supplement the record with, a plat recorded in the office of the Minnehaha County Register of Deeds on April 26, 1889. We will take judicial notice of the plat. However, this plat, like the rest of the evidence in the record, does not assist us in determining where the property in the reformed deed is located.