author: NEUMANN, Justice.

text:
    2002 ND 209
    Dale HILTON, Plaintiff and Appellant, v. NORTH DAKOTA EDUCATION ASSOCIATION; Claudia Albers, Michael Barnhart, Bart Brackin, Julie Curren, Wade Curren, Tim Erhardt, Janet Fagerland, Harold Fass, Lynette Fitterer, Judy Fryslie, Fayette Harrison, Jane Jacobson, Remae Kuehn, Milissa Meckle, Chad Rolandson, Duane Schmidt, Carole Sherwin, Dave Sherwin, Walter Wolf, and Kiley Yates, individually and collectively as the Center Education Association, Defendants and Appellees. and Center Public School District No. 18, Defendant.
    No. 20020054.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      Steven L. Latham (argued), Wheeler Wolf, Bismarck, N.D. and Clifton Roden-burg (on brief), Johnson, Rodenburg & Lauinger, Fargo, N.D., for plaintiff and appellant.
    Michael Geiermann, Rolfson Schulz Ler-vick & Geiermann Law Offices, Bismarck, N.D., for defendants and appellees.
   NEUMANN, Justice.

[¶ 1] Dale Hilton appealed from a judgment dismissing his action against the North Dakota Education Association (“N.D.E.A.”), the Center Education Association (“C.E.A.”), and the twenty individual members of the C.E.A. for breach of a duty of fair representation, intentional interference with contract, intentional infliction of emotional distress, and negligent infliction of emotional distress. We hold Hilton was a teacher and was bound by a negotiated agreement between the C.E.A. and the Center School District (“School District”). We affirm.

I

[¶ 2] The C.E.A. is affiliated with the N.D.E.A., and at all times relevant to this action, the School District recognized the C.E.A. as the exclusive appropriate negotiating unit under N.D.C.C. ch. 15-38.1 for “all certificated teaching personnel employed, or to be employed by the [School District] (except Superintendent, Principals and Aids).” The C.E.A. and the School District had reached a negotiated agreement for the 1998-1999 school year for all certificated teaching personnel. In 1998, the School District hired Hilton as a counselor for two days per week for the 1998-1999 school year. Hilton was certified under N.D.C.C. ch. 15-36, and he had several degrees, including a Ph.D. in counseling. Hilton separately negotiated his contract with the School District, and his salary was higher than the negotiated agreement for the School District’s certificated teaching personnel.

[¶ 3] In 1999, the C.E.A. petitioned to be recognized as the appropriate negotiating unit for all certificated teaching personnel employed, or to be employed by the School District. Hilton did not sign the C.E.A. petition. The School District recognized the C.E.A. as the exclusive appropriate negotiating unit for all certificated teaching personnel, and the C.E.A. and the School District ultimately reached a negotiated agreement for the 1999-2000 school year. The School District tendered Hilton a contract for three days per week with a per day salary less than his salary for the previous year. Hilton submitted a counteroffer with the same per day salary as the previous year. During this process, the School District learned its tendered salary and Hilton’s counteroffer did not comply with the negotiated agreement. The School District asked the C.E.A. to reopen negotiations for Hilton, but the C.E.A. declined. In September T999, Hilton accepted the School District’s contract for the 1999-2000 school year for three days per week at a per day salary equal to his salary for the previous year. As a result, Hilton’s salary for the 1999-2000 school year did not comply with the negotiated agreement.

[¶ 4] In October 1999, the C.E.A. filed a mandamus action against the School District, seeking to require it to issue Hilton a contract within the parameters of the negotiated agreement. Hilton was not named as a party in the mandamus action. The C.E.A. and the School District settled the mandamus action, agreeing the School District would nonrenew Hilton’s contract for the 2000-2001 school year and offer him a contract within the parameters of the negotiated agreement for that year. The settlement agreement between the C.E.A. and the School District did not affect Hilton’s salary for the 1999-2000 school year.

[¶ 5] In the spring of 2000, the School District sent Hilton a notice of nonrenewal. Hilton did not request a hearing or formally object to the nonrenewal. Instead, he found another job and sued the N.D.E.A., the C.E.A., and the twenty individual members of the C.E.A. for (1) breach of a duty of fair representation, (2) intentional interference with contract, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress. Hilton moved to amend his complaint to seek punitive damages. The N.D.E.A., the C.E.A., and the twenty individual defendants moved for summary judgment.

[¶ 6] The trial court denied their motion for summary judgment on Hilton’s claim for breach of a duty of fair representation, concluding Hilton was part of the C.E.A. negotiating unit and there were disputed issues of fact about whether the C.E.A. breached its duty of fair representation to him. The court also concluded there were disputed issues of fact regarding Hilton’s claim for negligent infliction of emotional distress. However, the court granted summary judgment dismissal of Hilton’s claim for intentional interference with contract, concluding the C.E.A. was the appropriate negotiating unit for all the School District’s certificated teachers under N.D.C.C. ch. 15-38.1, and Hilton was subject to the negotiated agreement and had no authority to separately negotiate with the School District. The court also granted summary judgment dismissal of Hilton’s claim for intentional infliction of emotional distress, concluding there was no evidence the N.D.E.A. or the C.E.A. intentionally meant to harm Hilton. The court dismissed Hilton’s claims against the twenty individual defendants, concluding the C.E.A. was the appropriate negotiating unit for the School District’s certificated teaching personnel and the individuals were not authorized to separately bargain once the School District recognized the C.E.A. as the appropriate negotiating unit. The court also denied Hilton’s motion to amend his complaint to seek punitive damages.

[¶ 7] After a bench trial, the court dismissed Hilton’s claims for breach of a duty of fair representation and for negligent infliction of emotional distress. The court found the C.E.A.’s mandamus action sought to align Hilton’s contract with the negotiated agreement, Hilton knew he was governed by the negotiated agreement, and the C.E.A. and the N.D.E.A. did not breach their duty of fair representation to him. The court also dismissed Hilton’s claims for negligent infliction of emotional distress. Hilton appealed.

II

A

[¶ 8] Hilton argues the trial court erred in deciding, as a matter of law, he was a member of the C.E.A. negotiating unit. Hilton argues his counselor job did not involve classroom teaching, and he was not a “teacher” as defined by N.D.C.C. § 15-38.1-02(6). He therefore argues he was not part of the “appropriate negotiating unit” for teachers, as defined by N.D.C.C. § 15-38.1-02(3), and he was not bound by the negotiated agreement between the C.E.A. and the School District.

[¶ 9] During the relevant time, contract negotiations between teachers and school districts were governed by N.D.C.C. ch. 15-38.1. Under N.D.C.C. § 15-38.1-08, “representative organizations” were authorized to represent an “appropriate negotiating unit” in matters of employee relations with a school board. Section 15-38.1-02(4), N.D.C.C., defined a “representative organization” as any organization authorized by an “appropriate negotiating unit” to represent the members of the unit in negotiations with a school board, and N.D.C.C. § 15-38.1-02(3) defined an “appropriate negotiating unit” as a group of teachers having common interests, common problems, a common employer, or a history of common representation, which warranted representation by a single representative organization in negotiations with a school board. Section 15 — 38.1— 02(6), N.D.C.C., said “ ‘teachers’ means and includes all public school employees certificated under chapter 15-36 and employed primarily as classroom teachers.” Chapter 15-38.1, N.D.C.C. also authorized an appropriate negotiating unit for “administrators,” which were defined as all public school employees employed primarily for administration of the school or schools of a school district and devoting at least fifty" percent of their time in any one year to the duties of administration of the school or schools of a school district. N.D.C.C. § 15-38.1-02(1) and (2).

[¶ 10] Here, the primary issue is whether Hilton, a counselor who was certified under N.D.C.C. ch. 15-36, was a “teacher” within the meaning of N.D.C.C. ch. 15-38.1. The interpretation of a statute is a question of law, fully reviewable on appeal. McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. In construing N.D.C.C. ch. 15-38.1, our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language. Barnes County Educ. Ass’n v. Barnes County Special Educ. Bd., 276 N.W.2d 247, 249 (N.D.1979). If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature’s intent is presumed clear from the face of the statute. Id. However, if statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 325 (N.D.1985). A statute is ambiguous when it is subject to different, but rational meanings. Kroh v. American Family Ins., 487 N.W.2d 306, 307 (N.D.1992).

[¶ 11] In other contexts, we have said N.D.C.C. ch. 15 38.1 was ambiguous and subject to judicial interpretation. Loney v. Grass Lake Pub. Sch. Dist., 322 N.W.2d 470, 472-73 (N.D.1982) (stating N.D.C.C. ch. 15-38.1 ambiguous regarding whether or not school district’s only certified teacher-employee was appropriate negotiating unit entitled to negotiate with school district); Fargo Educ. Ass’n v. Fargo Pub. Sch. Dist., 291 N.W.2d 267, 271-72 (N.D.1980) (recognizing ambiguity in N.D.C.C. ch. 15-38.1 regarding subjects of negotiation); Barnes County, 276 N.W.2d at 250-51 (concluding N.D.C.C. ch. 15-38.1 ambiguous and applicable to county special education boards).

[¶ 12] The definition of teacher “means and includes all public school employees certificated under chapter 15-36 and employed primarily as classroom teachers.” Generally, a definition that uses the word “means” is exhaustive, while a definition that uses the word “includes” is partial and non-exclusive. North Dakota Legislative Drafting Manual 95 (2001). See Americana Healthcare v. North Dakota Dep’t. Human Serv., 510 N.W.2d 592, 594-95 n. 2 (N.D.1994). The use of both terms in the definition of teacher creates an internal inconsistency in that definition because an exhaustive and a non-exclusive definition can not be contemplated at the same time. See Bryan A. Garner, A Dictionary of Modem Legal Usage, 258 (2nd ed.1995) (citing G.C. Thorton, Legislative Drafting 166 (2nd ed.1979)). See also G.C. Thorton, Legislative Drafting 175 (3rd ed.1987). The definition of teacher also does not define the activities that constitute teaching and is not clear about its applicability to counselors who are certificated public school employees. We therefore conclude the definition of teacher in N.D.C.C. § 15-38.1-02(6) is subject to different rational interpretations and is ambiguous.

[¶ 13] If a statute is ambiguous, we may resort to extrinsic evidence, including legislative history, to interpret that statute, see County of Stutsman, 371 N.W.2d at 325, and we may also give weight to a contemporaneous construction placed upon the statute by an attorney general’s opinion. United Hosp. v. D’Annunzio, 514 N.W.2d 681, 684 (N.D.1994). Although we are not bound by an attorney general’s opinion interpreting a statute, we will follow that opinion if it is persuasive. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 47, 598 N.W.2d 820 (citing D’Annunzio, at 685). We may give additional weight to an attorney general’s opinion implicitly approved by the Legislature. See D’Annunzio, at 684; Horst v. Guy, 219 N.W.2d 153, 159 (N.D.1974).

[¶ 14] In 1974, the attorney general issued an opinion which addressed whether counselors were considered teachers under N.D.C.C. ch. 15-38.1. The attorney general’s opinion concluded counselors certificated under N.D.C.C. ch. 15-36 were generally considered teachers for purposes of the teachers’ representation and negotiation law:

I assume that guidance counselors are certificated as provided by Chapter 15-36 of the North Dakota Century Code. If they are not so certified they would not, of course, be considered as teachers for purposes of the negotiations law. Assuming they are certified, however, we note the definition of teacher adds another criteria, i.e., they must be employed primarily as classroom teachers. Both criteria must be met. However, we believe the purpose of the second criteria was to distinguish the teacher from the administrator, i.e., a person who had some administration duties but was primarily a classroom teacher would be classified with the teachers rather than the administrators. A person who was employed for the purpose of devoting at least fifty percent of his time to the duties of administration would, on the other hand, be classified as an administrator even though he had some classroom duties. Thus, it appears to me the requirement of being employed primarily as a classroom teacher was to distinguish the individual from the administrator. A guidance counselor, although he might not teach in the classroom as that function is ordinarily considered would still be considered a teacher (unless he devoted fifty percent or more of his time to administration in which case he would be considered an administrator) for purposes of the negotiation law.

[¶ 15] The 1974 attorney general’s opinion is consistent with the Legislature’s statement of intent that N.D.C.C. ch. 15-38.1 was intended to “promote the improvement of personnel management and relations between school boards of public school districts and their certificated employees by providing a uniform basis for recognizing the right of public school certificated employees to join organizations of their own choice and be represented by such organization in their professional and employment relationships with the public school districts.” N.D.C.C. § 15-38.1-01.

[¶ 16] The attorney general’s opinion is also supported by the legislative history for N.D.C.C. ch. 15-38.1, which was enacted in 1969 N.D. Sess. Laws ch. 172. As introduced, “teacher” was defined to “mean[] and include!] all public school employees certificated under chapter 15-36 of the North Dakota Century Code,” without a reference to the phrase “and employed primarily as classroom teachers.” As introduced, the legislation also did not define “administrators,” or an “appropriate negotiating unit” for administrators. During the legislative process, Kenneth Underwood, the Fargo Superintendent of Schools, and George Dynes of the Dickinson School Board opposed the proposed legislation. Hearing on H.B. 175 Before the House Education Committee, 41st N.D. Legis. Sess. (Jan. 27, 1969) [“Hearing on H.B. 175”]. Underwood questioned the lack of an appropriate negotiating unit for administrators. Hearing on H.B. 175, supra (testimony of Kenneth Underwood, Fargo Superintendent of Schools). Dynes submitted a suggested amendment for the definition of teacher which added the phrase “and employed primarily as classroom teachers.” Hearing on H.B. 175, supra (written testimony of George Dynes). Dynes’ written testimony stated:

This would clearly provide that administrators would not be included in negotiating units. Also it avoids including a certified person who is no longer actually working as a classroom teacher. For example, in Dickinson, James Randall is employed as business manager in the Superintendent’s office although he is a certified teacher. This type of legislation should not include that type of personnel.

Id.

[¶ 17] Although the remaining legislative history for H.B. 175 is sparse, the Legislature ostensibly combined the suggestions from Dynes and Underwood, which resulted in the applicable definition for “teacher” and separate definitions for “administrators” and “appropriate negotiating unit” for administrators. See 1969 N.D. Sess. Laws ch. 172, § 2.

[¶ 18] The Legislature’s action during the 1969 legislative process is consistent with the attorney general’s conclusion that the purpose of the “employed primarily as classroom teachers” element in the definition of teacher was to distinguish a teacher from an administrator, and that although counselors might not teach in the classroom as that function is ordinarily understood, they are considered teachers for purposes of the negotiation law unless they devote fifty percent or more of their time to administration. Since the 1974 attorney general’s opinion, the Legislature has not changed the definition of teacher. The Legislature’s implied approval of the attorney general’s opinion gives even greater weight to the attorney general’s interpretation of teacher for purposes of the teachers’ representation and negotiation law. See D’Annunzio, 514 N.W.2d at 684; Horst, 219 N.W.2d at 159-60. We conclude the attorney general’s opinion is persuasive and comports with the stated purpose and legislative history of N.D.C.C. ch. 15-38.1. We hold counselors who are certificated under N.D.C.C. ch. 15-36 and who do not devote more than fifty percent of their time to administration duties are teachers for purposes of the teachers’ representation and negotiation law.

[¶ 19] Hilton was a counselor who was certificated under N.D.C.C. ch. 15-36, Teachers’ Certification. See N.D.C.C. § 15-36-11 (1993). He has not claimed he devoted any time to administration duties. Hilton therefore was a teacher for purposes of the teachers’ representation and negotiation law, and we conclude the trial court correctly decided Hilton was a member of the C.E.A. appropriate negotiating unit. Because Hilton was a member of the C.E.A. appropriate negotiating unit, he was bound under N.D.C.C. ch. 15-38.1 by the negotiated agreement between the C.E.A. appropriate negotiating unit and the School District.

B

[¶ 20] Hilton argues the trial court erred as a matter of law in holding he was precluded by the result in the mandamus action from arguing he was not in the appropriate negotiating unit. Because we have concluded Hilton was part of the C.E.A. appropriate negotiating unit, it is not necessary to address this issue.

III

[¶ 21] Hilton has not specifically raised an issue regarding the trial court’s dismissal of his claim for breach of a duty of fair representation. Hilton claimed the C.E.A. had a duty to fairly represent him and to bargain in good faith on his behalf in negotiations with the School District. The trial court decided this claim after trial, ostensibly finding the C.E.A. did not breach a duty of fair representation to Hilton. We review a trial court’s findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). We are not left with a definite and firm conviction the trial court made a mistake in finding the C.E.A. did not breach a duty of fair representation to Hilton. We therefore conclude the court’s finding is not clearly erroneous.

IV

[¶ 22] Hilton argues the trial court erred in granting summary judgment dismissal of his claim for intentional interference with contract. Hilton alleged the defendants’ assertion he was part of the appropriate negotiating unit and their mandamus action against the School District intentionally interfered with his contract with the School District.

[¶ 23] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 17, 606 N.W.2d 908. Issues of fact may become questions of law if reasonable persons could reach only one conclusion from the facts. Mandan Educ. Ass’n v. Mandan Pub. Sch. Dist., 2000 ND 92, ¶ 6, 610 N.W.2d 64. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial. Dahlberg v. Lutheran Soc. Serv., 2001 ND 73 ¶¶ 11, 42, 625 N.W.2d 241.

[¶ 24] To establish a prima facie case for intentional interference with contract, a plaintiff must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) the defendant instigated the breach without justification. Tracy v. Central Cass Pub. Sch., 1998 ND 12, ¶ 9, 574 N.W.2d 781 (citing Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 642 (N.D.1984)). See Messiha v. State, 1998 ND 149, ¶ 10, 583 N.W.2d 385; Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991); Hennum v. City of Medina, 402 N.W.2d 327, 336 (N.D.1987). See also Fankhanel v. M & H Const. Co., Inc., 1997 ND 20, ¶8, 559 N.W.2d 229 (applying Minnesota law).

[¶ 25] In Fankhanel, 1997 ND 20, ¶¶ 7-8, 559 N.W.2d 229, we applied similar Minnesota law for intentional interference with contract to an analogous factual situation. In Fankhanel, at ¶ 2, Fankhanel refused to pay M & H Construction for work on Fankhanel’s home, claiming the work was defective. Fankhanel was an independent trucker with a written contract to deliver construction products for Kost. Id. at ¶ 3. M & H Construction informed Kost that M & H Construction might take its business elsewhere if Fankhanel delivered construction products to M & H Construction’s job sites. Id. at ¶ 4. After Kost told Fankhanel to resolve his dispute with M & H Construction, Fankhanel still refused to pay M & H Construction, and Kost quit using Fankhanel to deliver construction products. Id. at ¶ 4.

[¶ 26] Fankhanel sued M & H Construction for tortious interference with Fankhanel’s contract with Kost. Fankha-nel, 1997 ND 20, ¶ 5, 559 N.W.2d 229. The trial court granted M & H Construction summary judgment on Fankhanel’s claim for tortious interference with contract, holding M & H Construction was justified in imposing a condition on future delivery contracts with Kost. Id. We affirmed the summary judgment, concluding M & H Construction had a legitimate business reason and was justified in refusing to accept Kost products delivered by Fankha-nel. Id. at ¶¶ 13-14. We recognized that ordinarily justification is a question of fact, but justification can be decided as a matter of law by showing a defendant was justified by a lawful object which he had a right to assert. Id. at ¶ 13.

[¶ 27] Hilton has not suggested any argument that would preclude application of the rationale from Fankhanel to our law for intentional interference with contract, and we apply that rationale to this case. Cf. Security Nat’l. Bank v. Wald, 536 N.W.2d 924, 927 (N.D.1995) (stating that in determining whether an actor’s conduct is extreme and outrageous for purposes of intentional infliction of emotional distress, actor is not liable for insisting upon legal rights in permissible way even though actor is aware that insistence is certain to cause emotional distress).

[¶ 28] Under N.D.C.C. ch. 15-38.1, Hilton was part of the C.E.A. appropriate negotiating unit and was bound by the negotiated agreement between the C.E.A. and the School District. The C.E.A. was justified, as a matter of law, in requiring the School District to issue Hilton a contract in compliance with the negotiated agreement and in bringing a mandamus action to achieve a lawful object which it had a right to assert. We conclude Hilton’s claim for intentional interference with contract fails because the C.E.A. was justified, as a matter of law, in requiring compliance with the negotiated agreement. We therefore affirm the summary judgment dismissal of Hilton’s claim for intentional interference with contract.

V

[¶ 29] Hilton claims the trial court erred in dismissing the individual defendants from the action. The trial court concluded the N.D.E.A. and the C.E.A. were the appropriate negotiating units for the School District’s certificated teaching personnel, and the individual defendants were not part of the negotiating process once the School District recognized the C.E.A. as the exclusive negotiating unit for the School District’s certificated teachers. Because we have concluded the C.E.A. was the exclusive negotiating unit for the School District’s certificated teaching personnel and Hilton has not established the C.E.A. was liable under any of his claims for relief against the C.E.A., we conclude the trial court did not err in dismissing Hilton’s claims against the individual members of the C.E.A.

VI

[¶ 30] Hilton claims the trial court erred in denying his motion to amend his pleading to allege punitive damages.

[¶ 31] Punitive damages are not allowed in the absence of compensatory damages. See Blair v. Boulger, 336 N.W.2d 337, 341 (N.D.1983); Riele v. Riebe, 252 N.W.2d 175, 178 (N.D.1977). Because Hilton failed to establish he was entitled to compensatory damages, he was not entitled to punitive damages.

[¶ 32] Moreover, a motion to amend a pleading to add a claim for punitive damages is submitted to the discretion of a trial court, and we will not reverse an order denying a motion to amend absent an abuse of discretion. First Trust Co. v. Scheels Hardware & Sports Shop Inc., 429 N.W.2d 5, 11 (N.D.1988). A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner. Bertsch v. Duemeland, 2002 ND 32, ¶ 33, 639 N.W.2d 455. We conclude the trial court did not act arbitrarily, capriciously, or unreasonably in denying Hilton’s motion to amend his complaint to include a claim for punitive damages. The court therefore did not abuse its discretion.

VII

[¶ 33] We affirm the judgment dismissing Hilton’s action.

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

      . Chapter 15-38.1, N.D.C.C., was repealed by 2001 N.D. Sess. Laws ch. 181, § 21, and the current provisions for teacher representation and negotiation were reenacted at N.D.C.C. ch. 15.1-16.


source: Caselaw Access Project

license: Public Domain

text:
    2002 ND 211
    ESTATE OF John T. GLEESON, Deceased. Bryan L. Giese, Personal Representative, Petitioner and Appellee v. George J. Gleeson, Respondent and Appellant. Margaret Ann Weekes, Kathleen Mary Gleeson, Respondents v. Jerome M. Gleeson, Respondent and Appellee.
    No. 20020117.
    Supreme Court of North Dakota.
    Dec. 30, 2002.

      David Boeck, Bismarck, ND, for respondent and appellant.
    Bryan L. Giese, pro se, Mandan, ND, petitioner and appellee.
    Benjamin C. Pulkrabek, Mandan, ND, for respondent and appellee Jerome M. Gleeson.
   NEUMANN, Justice.

[¶ 1] George J. Gleeson appeals from the trial court’s March 19, 2002, final order closing the estate, and the February 3, 2002, order approving sixth and final account. We affirm.

I

[¶ 2] John T. Gleeson died January 28, 1992. The trial court appointed Jerome M. Gleeson, a son, as personal representative of the estate. John’s Last Will and Testament provided only one specific devise: that John’s car go to Jerome’s older child. After settlement of claims, the remainder of the estate was to go to residuary devisees. The four residuary devisees were John Gleeson’s four children: Jerome M. Gleeson, George J. Gleeson, Margaret Gleeson Weekes, and Kathleen M. Gleeson. A codicil provided that Jerome could occupy John’s residence until Jerome’s youngest son completed high school or reached nineteen years of age, whichever occurred first. Jerome was also allowed $3,000 per year to help with taxes, insurance, and maintenance of the residence. In 1996, the four residuary devi-sees sold the residence to Jerome’s dependent minor children, Matthew and Patrick Gleeson. All four residuary devisees signed a quitclaim deed transferring their interest in the residence to Jerome’s children. At the time George signed the quitclaim deed, George had a court-appointed conservator. The conservator did not sign the quitclaim deed or any other document that would have transferred George’s interests.

[¶ 3] In April of 1999, George petitioned the trial court for an order to show cause regarding the administration of the estate. The trial court ordered Jerome to provide a complete accounting of estate business, to show why the court should not appoint an expert to audit the estate business, and to show why Jerome could not distribute the remaining estate assets and close the estate by June 1, 1999. On February 9, 2000, the trial court upheld the sale of the residence and dismissed Jerome as personal representative. Attorney Bryan Giese was appointed successor personal representative on April 27, 2000. The trial court, in its sixth and final account, declined to require Jerome to produce additional financial records and ordered the estate to pay the fees of the successor personal representative. The estate closed March 19, 2002, after distribution of assets. George appeals, arguing the trial court improperly held the sale of the residence was valid, erred by refusing to require personal representative Jerome Gleeson to produce additional financial records, and abused its discretion by ordering the estate to pay the successor representative’s fees.

II

[¶ 4] Regarding the sale of the residence, the dispositive issue is whether, under North Dakota’s Uniform Probate Code, George possessed the capacity to quitclaim his interest in the residence while he was a protected person under a conservatorship.

[¶ 5] George argues the sale of the residence was improper because he was under a conservatorship and did not possess the capacity to sign the quitclaim deed transferring his interest in the residence. Alternatively, George argues the order creating the conservatorship gave his conservator powers similar to that of a guardian, creating a de facto guardianship. Therefore, he did not have authority to contract away his interests.

[¶ 6] The trial court ruled George’s signature on the quitclaim deed was valid and the sale of the residence was proper because George’s conservator accepted the proceeds of the sale, did not object to the sale, never sought to rescind the sale of George’s interest, and North Dakota’s Uniform Probate Code allowed George to transfer his interest in the property while he was protected by a conservatorship.

[¶ 7] The interpretation and application of a' statute is a question of law, fully reviewable on appeal. In the Matter of the Estate of Zimmerman, 1998 ND 116, ¶ 13, 579 N.W.2d 591. “We interpret uniform laws in a uniform manner, and we may seek guidance from decisions in other states which have interpreted similar provisions in a uniform law.” In re Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594. We may look to the Editorial Board Comments of the Uniform Probate Code to interpret its provisions. Id.

[¶ 8] In North Dakota, a court order finding a basis for appointment of a conservator has no effect on the capacity of the protected person. N.D.C.C. § 30.1-29-08(2)(e) (U.P.C.5^08). While “[t]he appointment of a conservator vests in the conservator title as trustee to all property of the protected person ..., [tjhe appointment ... is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation. ...” N.D.C.C. § 30.1-29-20 (U.P.C.5-420). While the title to all the protected party’s property may have vested in the conservator, a protected person can still enter into contracts: “Unlike a situation involving appointment of a guardian, the appointment of a conservator has no bearing on the capacity of the disabled person to contract or engage in other transactions.” Id., Editorial Board Comment.

[¶ 9] The courts of Maine and Montana, states adopting versions of the Uniform Probate Code similar to ours, interpret these statutes to provide that a person, while under the protection of a conservatorship, retains the capacity to contract or engage in other transactions. Taylor v. Kennedy, 719 A.2d 525, 528 (Me.1998); Matter of Estate of Clark, 237 Mont. 179, 772 P.2d 299, 303 (1989).

[¶ 10] In Taylor, the trial court had construed a conservatorship as limiting the ability of the protected person to exercise control over employees because the protected person lacked the capacity to be an employer. 719 A.2d at 528. The Supreme Judicial Court of Maine stated, “[n]othing in the Probate Code, however, states that a person under a conservatorship cannot be an employer. Indeed, the Code suggests the opposite.” Id. Relying on 18-A M.R.S.A. §§ 5-408(5) and the Editorial Board Comment to 5-420 from Maine’s Uniform Probate Code, the Maine Court concluded the statutes did not limit the protected person’s capacity to be an employer and to control his employees. Id.

[¶ 11] In Clark, the Supreme Court of Montana interpreted Mont.Code Ann. § 72-5-421(5): “[t]he institution of a con-servatorship is not an adjudication of competency and has no effect on the protected person’s capacity. The protected person is therefore presumed to have the capacity to contract with third parties.” 772 P.2d at 303 (citation omitted). Clark involved an additional complication; the sale in that case was between the protected persons and their conservator. However, we find persuasive the Montana Court’s interpretation of the conservatorship statutes as to the capacity of protected persons.

[¶ 12] In the case at bar, Jerome, Margaret, and Kathleen knew George was a protected person subject to a conservator-ship at the time of the transfer. George and the other residuary devisees signed the quitclaim deed transferring title of the residence to Matthew and Patrick Gleeson. George’s conservator accepted the proceeds of the sale, did not object to the sale, and did not seek to rescind or void the sale. Nothing in our statutes suggests George could not quitclaim his interest in the residence. Indeed, the code suggests the opposite. Because our conservatorship statutes do not limit a protected person from engaging in transactions and a protected person is presumed to have the capacity to contract with third persons, we conclude George had the capacity to sign the quitclaim deed and transfer his interest in the residence.

[¶ 13] Alternatively, George argues he was under a de facto guardianship at the time he signed the quitclaim deed and, therefore, he had no authority to contract away his interest in the residence. In support, George contends his conservator was a de facto guardian because the trial court’s order appointing the conservator (1) gave the conservator full legal authority over George, which is allowed under the guardianship statutes but not under the conservatorship statutes; (2) referred to George as a “ward,” the term used for an incapacitated person under our guardianship statutes but not under the conservatorship statutes; (3) found George to be “incapacitated,” a finding not required under the conservatorship statutes but required under the guardianship statutes; and (4) allowed the conservator limited authority over George’s place of residence, a power only allowed under the guardianship statutes. We disagree.

[¶ 14] Procedures outlined in our statutes for appointing a guardian and a conservator are very different; the bar for appointment of a guardian is higher than that for appointment of a conservator. The appointment of a guardian requires the participation of a physician or clinical psychologist, while a trial court “may” have a physician participate in conserva-torship proceedings. Compare N.D.C.C. § 30.1-28-03(3) and (5) with N.D.C.C. § 30.1-29-07(2). Nothing in the record indicates a physician or clinical psychologist participated in the appointment of George’s conservator.

[¶ 15] While the appointment order found George to be “incapacitated,” incapacity under the guardianship statutes must be found by clear and convincing evidence, while the conservatorship statutes merely require the trial court to appoint a conservator after a basis for the appointment “has been established.” Compare N.D.C.C. § 30.1 — 28—04(2)(b) with N.D.C.C. § 30.1-29-07(3). The order does not indicate what kind of ‘incapacity” George was found to have, and we cannot presume the nature of the incapacity based on the record. Furthermore, the order appointing George’s conservator states “[t]he conservator’s authority is limited by Chapter 30.1-28 of the North Dakota Century Code,” the guardianship chapter. Because we conclude George was a protected person under a conservatorship and not a de facto guardianship, George possessed the capacity to contract regarding his interest in the residence.

[¶ 16] George next argues the sale of the residence was voidable because Jerome sold the residence to Jerome’s children at a price below fair market value creating a conflict of interest and violating Jerome’s fiduciary duty as personal representative.

[¶ 17] Whether a personal representative breached a fiduciary duty is a question of fact. Matter of Estate of Peterson, 1997 ND 48, ¶ 36, 561 N.W.2d 618. A trial court’s finding of fact will not be set aside unless it is clearly erroneous. Id. A finding of fact is clearly erroneous if the finding is induced by an erroneous view of the law, if there is no evidence to support the finding, or if, after reviewing all evidence, we are left with a definite and firm conviction a mistake has been made. In re Estate of Howser, 2002 ND 33, ¶ 10, 639 N.W.2d 485. On appeal, a trial court’s findings of fact are presumed to be correct and the complaining party bears the burden of showing a finding is clearly erroneous. Id.

[¶ 18] Here, the trial court ruled because the heirs had signed the quitclaim deed, they had impliedly agreed to the sale price. Therefore, the price was proper, even though it was below fair market value. Essentially, the trial court found because all heirs had notice of and consented to the price, Jerome did not breach a fiduciary duty to them. In making its ruling, the trial court distinguished Matter of Estate of Thomas, 532 N.W.2d 676, 687 (N.D.1995) (holding a personal representative breached his fiduciary duty by selling stock for par value when the stock could have been sold at a higher price) and Cudworth v. Cudworth, 312 N.W.2d 331, 336 (N.D.1981) (holding the sale of land in an estate by a personal representative to his son, without notification of heirs, was breach of a fiduciary duty). The record shows the four residuary devisees had notice of the sale price and, without objection, freely signed the quitclaim deed transferring their interest in the residence. George has not shown the trial court’s ruling was clearly erroneous. The trial court considered the applicable case law and record evidence in arriving at its ruling. The trial court’s ruling is therefore affirmed.

III

[¶ 19] George next argues the trial court erred when it refused to order Jerome to produce “additional financial records.” While George maintained there were more financial records than those provided by Jerome as personal representative during probate, this issue was presented to the trial court in George’s “statement of unresolved issues.” The trial court did not address George’s “statement of unresolved issues” because it had not been filed or served as a motion and no hearing had been scheduled for it. The trial court therefore held the matters contained in the statement were not properly before it for review or consideration. It is well settled that an issue not properly raised before the trial court cannot be brought for the first time before this Court. Unser v. N.D. Workers Comp. Bureau, 1999 ND 129, ¶ 14, 598 N.W.2d 89.

IV

[¶ 20] Finally, George argues the trial court abused its discretion when it ordered the estate to pay successor personal representative Giese for fees attributable to procrastination in performing his duties.

[¶ 21] “A personal representative is entitled to reasonable compensation for services rendered.” Matter of Estate of Flaherty, 484 N.W.2d 515, 520 (N.D.1992). The determination of attorney fees is left to the sound discretion of the trial court. Id. at 521. We will not overturn a trial court’s determination absent a showing of abuse of discretion, and the trial court’s underlying findings of fact will be upheld unless clearly erroneous. Id.

[¶ 22] George claims Giese had a duty to prepare an inventory of the estate within the appropriate amount of time after his appointment, to prepare a supplementary inventory when required, and take possession of estate property when required. George argues because Giese failed in these duties, Giese invited contact from devisees for which he could bill the estate, thereby increasing the fees he could charge.

[¶ 23] The trial court approved Giese’s fees when it denied George’s objection in its order approving the sixth and final account of the estate. Because a trial court is considered an expert in determining the value of reasonable attorney fees for services rendered to an estate, see Peterson, 1997 ND 48, ¶29, 561 N.W.2d 618, the trial court did not abuse its discretion in determining Giese’s fees were fair and reasonable.

V

[¶ 24] For the above-stated reasons, the trial court’s decisions are affirmed.

[¶ 25] KAPSNER, MARING, JJ., MICHAEL O. McGUIRE, District Judge, and KIRK SMITH, Surrogate Judge, concur.

[¶ 26] The Honorable MICHAEL O. McGUIRE, District Judge, and the Honorable KIRK SMITH, Surrogate Judge, sitting'in place of VANDE WALLE, C.J., and SANDSTROM, J, disqualified.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 1
    George T. DUEMELAND, Plaintiff and Appellee, v. Judith NORBACK, Defendant and Appellant.
    No. 20020124.
    Supreme Court of North Dakota.
    Jan. 3, 2003.

      Randall J. Bakke (argued), Smith Bakke Hovland & Oppegard, Bismarck, N.D., and Garry A. Pearson (on brief), Pearson Christensen, Grand Forks, N.D., for plaintiff and appellee.
    Timothy D. Lervick, Rolfson Schulz Ler-vick & Geiermann Law Offices, P.C., Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Judith Norback appealed from a summary judgment declaring George Duemeland to be the sole beneficiary under a Trust Agreement creating the Olga Duemeland Irrevocable Trust and under Lorin Duemeland’s will. We hold the Trust Agreement and Lorin Duemeland’s will are ambiguous, and we reverse and remand for further proceedings.

I

[¶ 2] Norback and George Duemeland are the children of Lorin and Olga Dueme-land, and the question in this case involves the distribution of property in the Olga Duemeland Irrevocable Trust, which requires the interpretation of the Trust Agreement creating that trust and a power of appointment contained in Lorin Dueme-land’s will.

[¶ 3] On August 21, 1984, Olga Dueme-land, the settlor, executed a Trust Agreement which created the Olga Duemeland Irrevocable Trust and named George Duemeland and Lorin Duemeland as Trustees. The Trust Agreement stated Olga Duemeland transferred property described in an attached exhibit to the Trustees contemporaneously with the execution and delivery of the Trust Agreement to the Trustees, and it authorized future additional transfers of property to the Trustees. The exhibit attached to the Trust Agreement acknowledged the Trustees had received $20,000 in cash from Olga Duemeland. The Trust Agreement designated the property described in the attached exhibit and any other property that may be transferred to the Trustees as the “Trust Estate.” This record includes a one million dollar life insurance policy designating Olga Duemeland as the insured and the Trustees as the policy owner and beneficiary.

[¶ 4] Norback and George Duemeland agree the trust was intended to keep life insurance proceeds out of Olga Dueme-land’s gross estate for federal estate tax purposes. The Trust Agreement contemplated the Trust Estate would not be in-cludible in Olga Duemeland’s gross estate for federal estate tax purposes and provided whatever part of the Trust Estate not includible in Olga Duemeland’s gross estate for federal estate tax purposes would be administered and distributed under Article 8. Paragraph 8.1 of the Trust Agreement said “[wjhatever remains of the Trust Estate after the Settlor’s death and after complying with the foregoing terms and provisions of this Trust Agreement (hereinafter for convenience called the ‘FAMILY TRUST’) shall be held by the Trustees, UPON TRUST, however, to be by them managed, administered and distributed as hereinafter set forth.” Paragraph 8.2 authorized certain payments during Lorin Duemeland’s lifetime. Paragraph 8.3 authorized distribution of the Family Trust and granted Lorin Dueme-land a special testamentary power of appointment over the Family Trust, but said if he failed to exercise that power of appointment, the Family Trust would be distributed equally to Norback and George Duemeland.

[¶ 5] After a family disagreement, Lorin Duemeland executed a July 7, 1993 will that ostensibly disinherited Norback. See Estate of Duemeland, 528 N.W.2d 369, 370 (N.D.1995). Lorin Duemeland’s will stated that, under paragraph 8.3 of the Trust Agreement creating the Olga Duemeland Irrevocable Trust, he exercised the special testamentary power of appointment over the principal and undistributed income of the Family Trust and directed the “principal and undistributed income of the FAMILY TRUST remaining at my death be paid over and distributed” to George Duemeland.

[¶ 6] Lorin Duemeland died on September 22, 1993, and Norback challenged his will on the grounds of lack of testamentary intent and undue influence. Estate of Duemeland, 528 N.W.2d at 370. She argued that although Lorin Duemeland executed the will, he “really didn’t mean it; he was merely bluffing.” Id. On appeal, we upheld the will, concluding because Nor-back conceded the will was properly executed and unambiguous, Lorin Dueme-land’s testamentary intent must be derived from the will and not from extrinsic evidence. Id. at 371. We said the consequence of Lorin Duemeland executing an unambiguous will was that it had a legal effect on his death, and it was irrelevant whether he harbored a secret intention that his actions would have no effect on the disposition of his estate. Id.

[¶ 7] Olga Duemeland died on April 27, 2001. Although this record does not include an inventory of the assets of the Trust Estate, the parties apparently agree that when she died, the Trust Estate included the one million dollar life insurance policy and minority interests in two businesses. George Duemeland brought this declaratory judgment action against Nor-back, claiming he was the sole beneficiary of the property in the Olga Duemeland Irrevocable Trust by virtue of Lorin Duemeland’s will. Norback answered, claiming she and George Duemeland were each entitled to one-half of the principal and undistributed income of the Olga Duemeland Irrevocable Trust. The trial court granted George Duemeland summary judgment, declaring him to be the sole beneficiary of the Olga Duemeland Irrevocable Trust under the unambiguous language of the Trust Agreement and the power of appointment exercised by Lorin Duemeland in his will.

II

[¶ 8] Under N.D.R.Civ.P. 56(c), summary judgment is a procedure for promptly and expeditiously disposing of an action without a trial if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result. Wahl v. County Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689. Whether a trial court properly grants summary judgment is a question of law which we review de novo on the entire record. Id.

Ill

[¶ 9] Norbaek argues the Trust Agreement creating the Olga Duemeland Irrevocable Trust unambiguously evidences Olga Duemeland’s intent that Lorin Duemeland exercise his special testamentary power of appointment only if he survived her. Nor-back argues the Family Trust did not exist when Lorin Duemeland died, and his exercise of the power of appointment in his will was ineffective. Norbaek claims she is entitled to summary judgment declaring she and George Duemeland are each entitled to one-half of the principal and undistributed income of the Olga Duemeland Irrevocable Trust.

[¶ 10] The Trust Agreement said Minnesota law governed all questions of law arising under the Olga Duemeland Irrevocable Trust, and both parties agree North Dakota law governs the interpretation of Lorin Duemeland’s will.

[¶ 11] Under Minnesota law, a court’s purpose in construing a trust is to ascertain the settlor’s intent from the instrument as a whole. In re Trusteeship Under Agreement with Mayo, 259 Minn. 91, 105 N.W.2d 900, 903 (1960). If a trust instrument is unambiguous, the settlor’s intent must be ascertained from the language of the instrument without resort to extrinsic evidence. Trust Created Under Agreement tuith McLaughlin, 361 N.W.2d 43, 44-5 (Minn.1985); In re Bush’s Trust, 249 Minn. 36, 81 N.W.2d 615, 620 (1957). A document is ambiguous when rational arguments can be made for different interpretations as to its meaning. See Current Tech. Concepts, Inc. v. Irie Enter., Inc., 530 N.W.2d 539, 543 (1995); Collins Truck Lines, Inc. v. Metropolitan Waste Control Comm’n, 274 N.W.2d 123, 126 (Minn.1979). If a trust instrument is ambiguous, extrinsic evidence is admissible-.to determine the settlor’s intent. Bush’s Trust, at 620. Whether a document is ambiguous is a question of law. Current Tech. Concepts, at 543.

[¶ 12] Not unlike Minnesota law regarding construction of a trust, under North Dakota law, our primary goal in construing a will is to ascertain the testator’s intent from the will as a whole. See Matter of Estate of Brown, 1997 ND 11, ¶¶ 15, 24, 559 N.W.2d 818. If the language of a will is clear and unambiguous, the testator’s intent must be determined from that language without resort to extrinsic evidence. Id. at ¶ 16. A will is ambiguous if, after giving effect to each word and phrase, its language is susceptible to more than one reasonable interpretation. Id. at ¶ 15. If a will is ambiguous, a court may resort to extrinsic evidence to clarify the ambiguity. Id. Whether or not a will is ambiguous is a question of law. Id.

[¶ 13] The Trust Agreement creating the Olga Duemeland Irrevocable Trust specified that contemporaneously with the execution and delivery of the Trust Agreement, Olga Duemeland delivered certain properties, described in an attached exhibit, to the Trustees. In an exhibit attached to the Trust Agreement, the Trustees acknowledged receipt of $20,000 in cash from Olga Duemeland. The Trust Agreement defined the “Trust Estate” as the property described in the attached exhibit and “any other property, rights and claims which may be transferred, assigned and delivered to the Trustees.” The Trust Agreement further provided the Trust Estate would be held and disposed of by the Trustees as thereinafter provided.

[¶ 14] Paragraph 4.3 of the Trust Agreement provided for disposition of the Trust Estate upon Olga Duemeland’s death and generally contemplated the assets of the trust would not be includible in Olga Duemeland’s gross estate for federal estate tax purposes. Paragraph 4.3 further provided the part of the Trust Estate not includible in Olga Duemeland’s gross estate for federal estate tax purposes would be administered and distributed under Article 8 of the Trust Agreement, and any part of the Trust Estate includible in her gross estate for federal estate tax purposes would be administered and distributed under Articles 5, 6, 7, and 8 of the Trust Agreement.

[¶ 15] Under Article 5 of the Trust Agreement, if Lorin Duemeland survived Olga Duemeland, the part of the Trust Estate included in Olga Duemeland’s gross estate for federal estate tax purposes was set aside in the Lorin E. Duemeland Trust and administered and managed under Article 6. Under paragraph 5.3 of the Trust Agreement, if Lorin Duemeland did not survive Olga Duemeland, the part of the Trust Estate not included in Olga Dueme-land’s gross estate for federal estate tax purposes was added to the Family Trust and held, managed, administered, and distributed under Article 8 of the Trust Agreement. Article 6 generally provided for administration of the Lorin E. Dueme-land Trust created under Article 5. Article 7 generally provided for payment of estate taxes on the part of the Trust Estate includible in Olga Duemeland’s gross estate for federal estate tax purposes.

[¶ 16] The parties agree no part of the Trust Estate was includible in Olga Duemeland’s gross estate for federal estate tax purposes, and the Trust Estate therefore was to be held, managed, administered and distributed under Article 8 of the Trust Agreement.

[¶ 17] Paragraph 8.1 of the Trust Agreement stated “[w]hatever remains of the Trust Estate after the Settlor’s death and after complying with the foregoing terms and provisions of this Trust Agreement (hereinafter for convenience called the ‘FAMILY TRUST’) shall be held by the Trustees, UPON TRUST, however, to be by them managed, administered and distributed as hereinafter set forth.” Paragraph 8.2 authorized various payments to Lorin Duemeland and to Olga Duemeland’s issue during Lorin Dueme-land’s lifetime. Paragraph 8.3 authorized payments after Lorin Duemeland’s death or after Olga Duemeland’s death if he did not survive her, and granted him a special testamentary power of appointment:

8.3 Payments after the death of the Settlors’s husband. Upon the death of the Settlor’s husband (or upon the death of the Settlor if her husband does not survive her), the Trustees shall pay over and distribute whatever then constitutes the FAMILY TRUST, including principal and all undistributed income, to or hold the same for the benefit of, such of the group consisting of the Settlor’s children and their issue, in such amounts and proportions and for such estates and interests and outright or upon such terms, trusts, conditions and limitations as the Settlor’s husband shall appoint by a will referring specifically to the power herein granted to him;

Paragraph 8.3 further provided if Lorin Duemeland failed to exercise the power of appointment, the Trustees were to distribute the principal and undistributed income of the trust equally to Norback and to George Duemeland.

[¶ 18] Lorin Duemeland’s July 7, 1993 ■will provided:

4.2 Exercise of special power of appointment. By the terms and provisions of Paragraph 8.3 of Article 8 of that certain Trust Agreement Creating the Olga Duemeland Irrevocable Trust dated August 24[sic], 1984, by and between my spouse, OLGA DUEME-LAND, as Settlor, and myself and my son, GEORGE T. DUEMELAND, as Trustees, I am given a special testamentary power of appointment over the principal and undistributed income of the FAMILY TRUST created under said Trust Agreement. Pursuant thereto, I hereby exercise said special testamentary power of appointment and direct that the principal and undistributed income of the FAMILY TRUST remaining at my death be paid over and distributed to my son, GEORGE T. DUEMELAND,

[¶ 19] Norback argues Olga Dueme-land did not intend to give Lorin Dueme-land a special testamentary power of appointment if he did not survive Olga Duemeland, and even if Olga Duemeland intended to give Lorin Duemeland that power, he did not exercise it in a manner which entitled George Duemeland to receive all the principal and income of the Family Trust remaining at Olga Dueme-land’s death. Norback argues because the “Trust Estate” did not become the “Family Trust” until after Olga Duemeland’s death, Lorin Duemeland was not given the power of appointment over the “Family Trust” until Olga Duemeland’s death, and he could not exercise that power of appointment if he predeceased her. Norback argues the phrase in paragraph 8.3, “[u]pon the death of the Settlor’s husband (or upon the death of the Settlor if her husband does not survive her),” refers to the timing of the distribution of the principal and undistributed income of the Family Trust. Norback argues even if Olga Duemeland intended to give Lorin Dueme-land a power of appointment if he predeceased her, his will unambiguously failed to exercise that power, because his will said he exercised of the power over the “principal and undistributed income of the FAMILY TRUST remaining at my death” and the Trust Agreement authorized distribution at Olga Duemeland’s death of “whatever then constituted the FAMILY TRUST.”

[¶ 20] George Duemeland responds the Trust Agreement unambiguously authorized Lorin Duemeland to exercise the power of appointment if Lorin Duemeland predeceased Olga Duemeland, and Lorin Duemeland exercised that power of appointment in his will. George Duemeland argues the phrase “[u]pon the death of the Settlor’s husband (or upon the death of the Settlor if her husband does not survive her)” evidences Olga Duemeland’s intent to grant Lorin Duemeland a power of appointment whether or not he survived her. George Duemeland argues the term “Family Trust” describes Olga Duemeland’s existing “Trust Estate” at her death, which the Trust Agreement thereafter referred to as the Family Trust for convenience. George Duemeland argues Lorin Dueme-land’s exercise of the power of appointment before Olga Duemeland’s death was not invalid merely because the assets could not be distributed until Olga Duemeland’s death.

[¶21] We conclude both parties have made rational arguments for different interpretations of the Trust Agreement and Lorin Duemeland’s will. Paragraph 8.1 of the Trust Agreement authorizes the Trustees to distribute “[w]hatever remains of the Trust Estate after the Settlor’s death and after complying with the foregoing terms and provisions of this Trust Agreement (hereinafter for convenience called the ‘FAMILY TRUST’) ... as hereinafter set forth.” Paragraph 8.3 applies “[u]pon the death of the Settlor’s husband (or upon the death of the Settlor if her husband does not survive her)” and authorizes the Trustees to “distribute whatever then constitutes the FAMILY TRUST” in amounts and upon terms as Lorin Dueme-land shall appoint “by a will referring specifically to the power herein granted to him.” Lorin Duemeland’s will identified paragraph 8.3 of the Trust Agreement creating the Olga Duemeland Irrevocable Trust and directed the “principal and undistributed income of the FAMILY TRUST remaining at my death be paid over and distributed” to George Dueme-land. When read as a whole, those provisions reasonably can be construed to authorize Lorin Duemeland to exercise the power of appointment if he predeceased Olga Duemeland. However, we also believe those provisions reasonably can be construed to create the Family Trust from the Trust Estate “after” Olga Duemeland’s death and to preclude Lorin Duemeland from exercising the power of appointment over the Family Trust if he predeceased Olga Duemeland. The Trust Agreement and Lorin Duemeland’s will are also susceptible to more than one reasonable interpretation regarding whether or not Olga Duemeland intended to give Lorin Dueme-land a power of appointment over “whatever then constitutes the FAMILY TRUST” if he did not survive her, and if so, what Lorin Duemeland intended by directing the distribution of the Family Trust “remaining at my death” to George Dueme-land. We conclude those documents, when read together, are ambiguous, and we reject Norback’s claim that Lorin Dueme-land’s exercise of the power of appointment was ineffective as a matter of law.

[¶ 22] Even if Olga Duemeland intended to give Lorin Duemeland a power of appointment over “whatever then constitutes the FAMILY TRUST” if he did not survive her, Lorin Duemeland’s will distributed the Family Trust “remaining at my death” to George Duemeland. Although George Duemeland claims the property in the Trust Estate at Lorin Duemeland’s death is the same property in the Family Trust at Olga Duemeland’s death, this record does not include an inventory of the assets of the Trust Estate when Lorin Duemeland died, or when Olga Duemeland died. A determination of those issues may be necessary to resolve the distribution issues raised in this case.

[¶ 23] Because we conclude the Trust Agreement and Lorin Duemeland’s will, when read together, are ambiguous, we decline George Duemeland’s invitation to rule as a matter of law that extrinsic evidence in affidavits presented in the motion for summary judgment to the trial court established he was the sole beneficiary of the Olga Duemeland Irrevocable Trust. Moreover, we also decline to address any issues that may have arisen after this appeal was filed.

[¶ 24] We reverse and remand for proceedings consistent -with this opinion.

[¶ 25] DONOVAN FOUGHTY, D.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

[¶ 26] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.

      . Although Norback conceded Lorin Dueme-land's will was unambiguous in the context of her challenge to the validity of the will on the grounds of lack of testamentary intent and undue influence, issues about the interpretation of the Trust Agreement and the power of appointment in Lorin Duemeland's will were not litigated and determined in Norback's pri- or challenge to the will. See Estate of Dueme-land, 528 N.W.2d at 370-71. Our decision in Duemeland does not preclude Norback from raising issues about the interpretation of the Trust Agreement and the power of appointment in Lorin Duemeland's will. See Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D.1992) (defining res ju-dicata and collateral estoppel).


author: PER CURIAM.

text:
    2002 SD 147
    Michelle Ann Krause FORD, Plaintiff and Appellee, v. Scott Harold FORD, Defendant and Appellant.
    No. 22313.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided Nov. 26, 2002.
    Karen A. Hattervig, Sioux Falls, South Dakota, Attorney for plaintiff and appellee.
    Richard L. Johnson, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Scott Harold Ford (father) appeals an order declining jurisdiction over his motion to modify custody of his seven year old daughter, M.F. We affirm.

FACTS

[¶ 2.] Father and Michelle Anne Krause Ford (mother) were married in Sioux Falls in 1994 and divorced in 1996. One child, M.F., was born during the marriage. The parties entered into a divorce stipulation and settlement agreement granting custody of M.F. to mother with visitation rights granted to father. The stipulation was incorporated into a divorce decree entered in October 1996.

[¶ 3.] The parties engaged in series of minor legal disputes after their divorce. Most of these disputes were eventually resolved by stipulation and agreement. In August 1999, the parties entered into a stipulation permitting mother to move with M.F. from Sioux Falls to the State of Michigan. In exchange, father was granted extended summer and holiday visitations. The stipulation was approved by the circuit court on August 31, 1999. In October 2000, father filed a petition for modification of child support. The petition was referred to a referee whose recommendations were adopted in an order entered in December. In August 2001, the parties averted another child support dispute with their entry into a stipulation and agreement allowing for an abatement of a portion of father’s support obligation during his extended visitations with M.F. That stipulation was adopted by a court order also entered in August.

[¶ 4.] On November 7, 2001, father filed a motion to modify M.F.’s custody. In support of his motion, father filed an affidavit alleging that M.F. had suffered repeated bladder infections that he had. noted during his visitation periods. Father further alleged that he had obtained medical treatment for M.F., but that mother had resisted further testing. Father also alleged that mother was failing to provide proper dental care for M.F. and that M.F. was exhibiting unusual behavior patterns including anxiousness over use of the bathroom, anxiousness at discussions about returning to mother’s home and the destruction of some of her toys. Father consulted a counselor about M.F.’s behavior and the counselor conducted four therapy sessions with M.F. At the conclusion of these sessions, the counselor expressed concerns for M.F.’s safety and well being while in mother’s care. The counselor relayed these concerns to Child Protection Services in Michigan and recommended that a home study be completed at the home of M.F.’s mother and new stepfather.

[¶ 5.] Mother resisted father’s motion to modify custody and filed a “reply affidavit” and motion to dismiss for lack of jurisdiction. Mother requested that the circuit court decline jurisdiction over the case alleging that most of the evidence concerning M.F.’s best interests would be in the State of Michigan. The circuit court conducted a hearing on December 12, 2001 and later entered findings of fact, conclusions of law and an order declining jurisdiction in the case and yielding jurisdiction to Michigan pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA). Father appeals.

ISSUE

[¶ 6.] Did the circuit court abuse its discretion in declining jurisdiction over the motion to modify custody?

[¶ 7.] Father argues that the circuit court erred in declining jurisdiction under the UCCJA over his motion to modify M.F.’s custody. The standards for reviewing this argument were set forth in Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 20, 591 N.W.2d 798, 805:

A court may nonetheless decline its jurisdiction “if it finds that it is an inconvenient forum to make a custody determination ... and that a court of another state is a more appropriate forum.” SDCL 26-5A-7. Ultimately, the question comes down to whether “it is in the interest of the child that another state assume jurisdiction.” IcL In making this decision, a court should consider the following nonexclusive factors:
(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate.

This Court reviews decisions under SDCL 26-5A-7 under the abuse of discretion standard of review. See Fuerstenberg, 1999 SD 35 at If 21, 591 N.W.2d at 806.

[¶ 8.] Here, the circuit court entered the following findings pertinent to the above factors: that the allegations made by father surround M.F.’s living conditions in Michigan and the medical and dental care provided to M.F. in Michigan; that most of the witnesses and evidence needed to make a well reasoned custody determination are in Michigan; that Michigan has a closer connection to M.F., mother and M.F.’s stepfather; and, that M.F.’s contacts with South Dakota since 1999 have been for short periods of visitation with father. Based upon these findings, the circuit court determined that South Dakota is an inconvenient forum for determining custody in this matter and that Michigan provides the more convenient forum to determine father’s motion to modify custody-

[¶ 9.] Father challenges none of the circuit court’s findings as clearly erroneous and they appear1 to be supported by the record and reasonable inferences drawn from the record. Nevertheless, father argues that Fuerstenberg, supra should control this case. In Fuerstenberg, this Court upheld the circuit court’s exercise of jurisdiction over a custody modification proceeding despite the fact that the child had lived in Minnesota with his mother for ten years after the divorce. This Court reached that result largely on the basis that the circuit court had entertained, without objection, many earlier legal proceedings concerning the child even though he was living in Minnesota with his mother. Father argues a similar record of legal proceedings exists here including child support and visitation disputes.

[¶ 10.] There is an important distinction between this case and Fuerstenberg. In Fuerstenberg, the circuit court determined that it would exercise jurisdiction over the case. Here, the circuit court declined jurisdiction. This is an important distinction because of the discretion a circuit court exercises in this area. That discretion was emphasized in Fuerstenberg as follows:

[W]e recognize that this is a close question, considering that [the child’s] home state for a decade was Minnesota, and that much of the dispute in this case converged around [the child’s] care and education there. Several countervailing indicators point to Minnesota as a more convenient forum.... These matters suggest that Minnesota would have been a convenient forum to litigate these intensely contested facts. Nonetheless, there is also evidence in the record to support the court’s decision and we review judgments on whether to decline jurisdiction under SDCL 26-5A-7 pursuant to the deferential abuse of discretion standard. Therefore, finding no abuse, we affirm the trial court’s denial of [mother’s] motion to decline jurisdiction.

Fuerstenberg, 1999 SD 35 at ¶21, 591 N.W.2d at 806 (citations omitted).

[¶ 11.] In Fuerstenberg, supra, this Court yielded to the discretion of the circuit court in choosing to exercise jurisdiction on the basis of the pattern of legal proceedings that were conducted in this state subsequent to the divorce. That hardly stands for the proposition advocated by father here that a pattern of subsequent legal proceedings mandates a circuit court’s exercise of jurisdiction over a custody modification proceeding.

[¶ 12.] Rather than Fuerstenberg, this case is far more similar to Miley v. Miley, 1999 SD 96, 598 N.W.2d 228 where the circuit court also declined to exercise jurisdiction over a custody modification proceeding under SDCL 26-5A-7. In Miley, the mother requested modification of child custody where the father and three children had lived out-of-state for over four years. In upholding the circuit court’s decision to decline jurisdiction, this Court observed:

Father and the children had lived in Arizona for four years. There they had attended school and church, received counseling, participated in activities, and lived in the same household as an uncle. Evidence regarding the last four years of their life, most of it free from South Dakota court involvement, is more readily available in Arizona. Their South Dakota experience in these years was limited to a week at Christmas and eight weeks during the summer with maternal relatives.
... Up-to-date evidence of the children’s present or future care, protection, training, and personal relationships is more readily available in their home state of Arizona. There was no abuse of discretion.

Miley, 1999 SD 96 at 1Í1Í15 & 16, 598 N.W.2d at 231.

[¶ 13.] Most of these same factors are present here albeit that the South Dakota Circuit Court has had some involvement in M.F.’s life subsequent to the divorce. This should hardly be considered controlling, however, in view of the fact that most of this involvement was in legal proceedings resolved by stipulation and agreement that did not require significant fact finding by the court concerning M.F.’s status.

[¶ 14.] Based upon the foregoing, the circuit court order declining jurisdiction in this custody modification case is affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, participating.

[¶ 16.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.


author: KONENKAMP, Justice.

text:
    2002 SD 146
    CITY OF MARION, A South Dakota Municipality, Plaintiff and Appellee, v. Glen RAPP, Defendant and Appellant.
    No. 22355.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 7, 2002.
    Decided Nov. 26, 2002.

      James McCulloch, Vermillion, South Dakota, Attorney for plaintiff and appellee.
    Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Under South Dakota law, the lawful use of land existing at the time of the adoption of a zoning ordinance may continue as a nonconforming use, even though the use is prohibited by the zoning ordinance. Here, the owner of a house trailer, constituting a nonconforming use in an area not zoned for trailers, replaced his trailer with a larger one. He was found guilty of violating a city zoning regulation and appeals. Can an owner who removes a house trailer and replaces it with a larger one continue the nonconforming use of the property as a house trailer site? Because the city regulations clearly prohibit either moving or enlarging a nonconforming structure, and state law neither overrides nor contradicts the city’s zoning law, we affirm.

Background

[¶ 2.] For many years, Glen Rapp has had two trailer homes on his property in the City of Marion, South Dakota. In June 1997, the city adopted a comprehensive zoning plan. See SDCL 11^1-3 and SDCL 11-6-14 through 11-6-18. Then the city enacted zoning regulations effective November 1997. Rapp’s property became part of a residential district. Thereafter, the placement of a house trailer (manufactured home) outside a trailer home park was no longer permitted. Consequently, Rapp’s use of the property for a house trailer site fell under the nonconforming use provisions in the city’s zoning regulations. See Marion, SD, Zoning Ordinances & Subdivision Regulations, art. 3, ch. 3.02(D)-(F). So long as the “use or structure” was not “enlarged, moved, or structurally altered,” the regulations allowed Rapp to continue to use the property as he had in the past.

[¶ 3.] On July 19, 2000, Rapp arranged for one of the two trailers to be removed and replaced with another one. The dimensions of the replacement were 16 by 76 feet. The previous trailer was 14 by 70 feet. The larger replacement home encroached on the public right-of-way. It also violated city setback requirements and extended over the city’s only water shutoff valve on the property.

[¶ 4.] Rapp was cited for a city zoning violation. The complaint alleged that “Glen Rapp did allow the placing of a manufactured home outside an approved manufactured home park in the city of Marion, in violation of Marion Zoning Regulations 3.01.05, a class 2 misdemeanor.” Following a trial in magistrate court, Rapp was found guilty. He appealed to the circuit court on stipulated facts. That court affirmed, and Rapp now appeals to this Court on the following issues: (1) “Whether the circuit court erred in affirming the decision of the magistrate court?” (2) “Whether the circuit court erred in not applying SDCL 11-6-39 to the present case?” For ease of analysis, we examine these issues concurrently.

Analysis and Decision

[¶ 5.] In this criminal appeal, •the parties stipulated to the facts after the magistrate’s finding of guilt. Thus, we review the magistrate’s findings de novo, using the stipulated facts. We interpret zoning laws according to the rules of statutory construction and any rules of construction included in the enactments themselves. Cole v. Board of Adjustment of City of Huron, 2000 SD 119, ¶ 7, 616 N.W.2d 483, 485; Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994). The interpretation of an ordinance presents a question of law reviewable de novo. Even v. City of Parker, 1999 SD 72, ¶ 8, 597 N.W.2d 670, 673 (citations omitted).

[¶ 6.] As it relates to this case, a “nonconforming use” occurs when the size, use, or location of a structure, lawful before the adoption or amendment of a zoning ordinance, becomes out of compliance because of such adoption or amendment. Black’s Law Dictionary 1051 (6th ed.1990). Zoning laws may not operate retroactively to deprive property owners of prior vested rights by preventing a use that was lawful before the enactment of the zoning laws. Accordingly, under South Dakota law, the lawful use of property existing at the time of the adoption of a city zoning ordinance may continue, even though the use does not conform to the provisions of the new zoning ordinance. SDCL 11-6-39. Municipalities may impose restrictions on nonconforming uses, however, by limiting the change of use and prohibiting the enlargement or extension of nonconforming structures. Brown County v. Meidinger, 271 N.W.2d 15, 18-19 (S.D.1978). State law also circumscribes the duration of nonconforming uses when the use is discontinued for more than one year. SDCL 11-6-39. Marion’s zoning ordinance provides for the same one-year period. See chapter 3.02(D).

[¶ 7.] Our decision in Meidinger acknowledged that, while safeguarding the rights of property owners, nonconforming uses should inevitably end because they are inconsistent with current zoning. Id. at 18 (citations omitted). Consequently, zoning laws seek to restrict nonconforming uses and secure their eventual elimination. Id. The policy is to prevent expansion of nonconforming uses. Id.

[¶ 8.] In his findings, the magistrate ruled that when Rapp moved his house trailer off the premises, the property lost its nonconforming use status for that house trailer and any replacement trailer. Indeed, the city’s ordinance states without ambiguity that “[n]o existing nonconforming use or structure shall be enlarged, moved, or structurally altered except to change to a permitted use.” Marion, SD, Zoning Ordinances & Subdivision Regulations, art. 3, ch. 3.02(F) (emphasis added). The trailer lost its nonconforming use status after Rapp moved it off his property. When he moved another trailer onto the lot, he violated the city zoning laws.

[¶ 9.] Similarly, in Inhabitants of Town of Windham v. Sprague, 219 A.2d 548 (Me.1966), Maine’s highest court ruled that the removal of a house trailer, a nonconforming use, and the replacement of it with another trailer violated a town zoning ordinance. The court reasoned that if it were proper to replace the old trailer with a new one, the life of the nonconforming use would be indefinitely prolonged, contradicting the spirit of such ordinances, namely, the eventual elimination of the nonconforming use. Id. at 551.

[¶ 10.] Rapp argues that the replacement trailer constituted a “substantially similar” use, citing Bonaventure Intern., Inc. v. Borough of Spring Lake, 350 N.J.Super. 420, 795 A.2d 895, 902 (2002) (expanded food service seating). As we explained, however, once the old .trailer was moved off the lot, the nonconforming use ended. No nonconforming structure could replace it. Yet, even if we were to ignore the moving prohibition in Marion’s ordinance, that same ordinance also prohibits enlarging a nonconforming use or structure. Replacing the old 14 by 70 foot trailer with a 16 by 76 foot trailer is an enlargement of a pre-existing nonconforming structure. In Bixler, 188 So.2d 681, a Florida appellate court likewise ruled that the replacement of a trailer home with a larger one constituted a prohibited enlargement of a nonconforming structure. Rapp’s replacement trailer was two feet wider and six feet longer. This larger trailer encroached on the public right-of-way and extended over the city’s water shutoff valve.

[¶ 11.] Rapp nonetheless believes that he can remove a nonconforming structure and replace it with a larger structure and simultaneously preserve the nonconforming use by reliance on the one year discontinued use provision of SDCL 11-6-39. That statute provides in part:

the lawful use of land or premises existing at the time of the adoption of the zoning ordinance may be continued, even though the use, lot, or occupancy does not conform to the provisions of the zoning ordinance. If the nonconforming use is discontinued for a period of more than one year, any subsequent use, lot, or occupancy of the land or premises shall be in conformance with such regulation.

SDCL 11-6-39. Rapp interprets this statute to mean that the only way a nonconforming use can end is for the owner to discontinue it for more than a year.

[¶ 12.] SDCL 11-4-6 resolves any inconsistency between municipal zoning regulations and state statutes in favor of the provision having the more stringent regulation. The statute provides in part:

Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts, or other open spaces ... or other higher standards than are. required by the regulations made under authority of this chapter, the provisions of such statute or local ordinance or regulation shall govern.

SDCL 11-4-6. Thus, even if SDCL 11-6-39 can be read to contradict Marion’s regulations, the city regulations, being more restrictive, override state law in this instance.

[¶ 13.] Finding no error, we affirm the magistrate’s judgment that Rapp violated the zoning regulations.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 15.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . Likewise, § 2.20 of the Marion Zoning Ordinances and Regulations defines nonconforming use as "[a]ny building or land lawfully occupied by a use at the time of the passage of this ordinance or amendment which does not conform after the passage of this ordinance or amendment with the use regulation of the district in which it is situated.”

      . Generally, "in an accepted sense, a trailer house is a structure.” City of Sioux Falls v. Cleveland, 75 S.D. 548, 70 N.W.2d 62, 64 (1955). "A trailer placed on land for use as a dwelling is a structure.” Bixler v. Pierson, 188 So.2d 681, 682 (Fla.Dist.Ct.App.1966).

      . The full text of the regulations in question provide:
      (D) When a nonconforming use or structure is discontinued for a period of 1 year, it shall not be continued unless in conformance with the requirements of this ordinance.

      (F) No existing nonconforming use or structure shall be enlarged, moved, or structurally altered except to change to a permitted use. This is not to include normal repairs and maintenance which do not enlarge, move or structurally alter a nonconforming use.

        See Marion, SD, Zoning Ordinances & Subdivision Regulations, art. 3, ch. 3.02(D), (F).

        . See also Mossman v. City of Columbus, 234 Neb. 78, 449 N.W.2d 214 (1989) (replacement of original trailer home with another trailer home constituted a "structural alteration" under zoning ordinance permitting nonconforming use only if no structural alterations were made).

      . Rapp also contends that res judicata applies because of a previous decision in 1995 regarding a different trailer home and different zoning regulations. We find this argument meritless.


text:
    2002 SD 149
    Martin RANDALL, Petitioner and Appellant, v. Douglas WEBER, Respondent and Appellee.
    No. 22248.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 8, 2002.
    Decided Dec. 4, 2002.

      John R. Murphy, Rapid City, Attorney for appellant.
    Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, Attorneys for appellee.
   PER CURIAM.

[¶ 1.] Martin Randall (petitioner) was convicted of aggravated assault for the vicious beating of Leighton Rich with a baseball bat. Petitioner is currently serving a fifteen-year prison sentence in the South Dakota State Penitentiary. Through a writ of habeas corpus, petitioner asserts that his conviction was obtained in violation of his constitutional right to effective assistance of counsel. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On December 22, 1996, Rich was at a Rapid City motel room with three friends. At some point during the evening four other individuals came to the room: Petitioner; his brother, Thomas Randall; Ardene Pawnee Leggins; and, Butter Mouseaux. An altercation ensued and petitioner, his brother and Mouseaux left the motel room. The three men then returned and Rich was beaten with a baseball bat and tire iron. Rich suffered severe injuries including a fractured skull and brain damage. Petitioner was charged with aggravated assault for his role in the altercation; specifically, he was alleged to have hit the victim with the baseball bat. Initially, petitioner was tried alone because of a statement he made that was admissible against him but not his brother. Shortly before the first trial petitioner’s counsel, Timothy Rensch, learned that Mouseaux had bragged to another person, Ken Chapman, that he had hit Rich with the bat. Rensch attempted to introduce this statement through Chapman as a declaration against penal interest. The trial court found the statement inadmissible: defense counsel had not been able to demonstrate that Mouseaux was unavailable, and the trustworthiness of the statement had not been sufficiently shown. SDCL 19-16-32 (Rule 804(b)(3)). Proceeding without the admission of this hearsay statement, petitioner’s first trial resulted in a hung jury.

[¶ 3.] Petitioner was then tried a second time; however, his trial was joined with that of his brother, Thomas. Significantly, at the second trial the State added Leggins as a witness, who was present at the time of the incident but had previously been unavailable. State also relied on two other eyewitness statements, including the victim’s, that identified petitioner as the assailant with the bat. In the second trial, petitioner’s counsel Rensch, did not attempt to introduce the out of court statement from Mouseaux to Chapman. Petitioner was convicted following his second trial. He asserts that the failure of his counsel to present this hearsay statement during the second trial constituted ineffective assistance of counsel in violation of both state and federal constitutional guarantees.

ISSUE

[¶ 4.] Was counsel ineffective for failing to offer into evidence the hearsay statement.

DISCUSSION

[¶ 5.] Ineffective assistance of counsel is a mixed question of fact and law upon which this Court can substitute its own judgment on whether counsel’s representation was ineffective. See Lykken v. Class, 1997 SD 29, ¶ 6, 561 N.W.2d 302, 304. In determining whether a defendant suffered from ineffective assistance of counsel, this Court has adopted the two prong test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Those two prongs are: (1) whether trial counsel made errors that were so serious that he was not functioning as counsel guaranteed by the constitution; and, (2) whether those errors seriously prejudiced the defendant to the extent that they deprived him of a fair trial.

Relying on Strickland, [the Court in] Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987), held that prejudice exists when there is a reasonable probability that, but for counsel’s unprofessional errors, the proceeding would have been different. It is not enough for the petitioner to show that the verdict would have been different, he must show ‘that the counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Fast Horse v. Leapley, 521 N.W.2d 102, 104 (S.D.1994). See also Mitchell v. Class, 524 N.W.2d 860, 862 (S.D.1994); Luna v. Solem, 411 N.W.2d 656, 658 (S.D.1987).

[¶ 6.] Effective assistance of counsel is not equated with a successful result. Jenner v. Leapley, 521 N.W.2d 422, 425 (S.D.1994); State v. McBride, 296 N.W.2d 551, 554 (S.D.1980). This Court presumes that an attorney is competent until a showing to the contrary is made, so a petitioner alleging ineffective assistance of counsel carries a heavy burden. Lykken, 1997 SD 29 at ¶ 20, 561 N.W.2d at 307; State v. Walker, 287 N.W.2d 705, 706 (S.D.1980).

Further, there is a strong presumption that counsel’s performance falls within the wide range of professional assistance and the reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances and the standard of review is highly deferential. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Bradley v. Weber, 1999 SD 68, ¶ 19, 595 N.W.2d 615, 621.

[¶ 7.] It is well settled that “[i]n reviewing trial counsel’s performance, it is not this Court’s function to second guess the decisions of experienced trial attorneys regarding matters of trial tactics unless the record shows that counsel failed to investigate and consider possible defenses and to exercise their good faith judgment thereon.” Sprik v. Class, 1997 SD 134, ¶ 24, 572 N.W.2d 824, 829. The determination does not rest on whether this Court finds the tactics or strategy employed to be the most advantageous but, instead, whether counsel satisfied the Strickland standard of competence. In reviewing whether counsel acted reasonably we analyze counsel’s performance in light of the circumstances then existing. Neither the result reached nor second-guessing with the benefit of hindsight determine the reasonableness of counsel’s performance.

While this court will not compare counsel’s performance to that of some idealized “super-lawyer” and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession.

Roden v. Solem, 431 N.W.2d 665, 667 n. 1 (S.D.1988). “An attorney must make a reasonable investigation and must make reasonable decisions to forego particular investigations.” In re Application of Deserly, 507 N.W.2d 905, 907 (S.D.1993). A difference in trial tactics does not amount to ineffective assistance of counsel. Fast Horse, 521 N.W.2d at 106.

[¶ 8.] “No two trial lawyers approach the same case from the same perspective, nor do they always develop the same trial strategy; thus, what to one appears to be sound, may to another appear unwise. A reviewing court must always be alert to distinctions between disagreement over tactic and valid complaints of inadequate counsel.” Myrick v. Maschner, 799 F.2d 642, 647 (10thCir.1986). “Furthermore, trial strategy cannot be used as a basis for establishing constitutionally deficient counsel.” Ice v. Weber, 2002 SD 4, ¶ 23, 638 N.W.2d 557, 562. Petitioner must “show more than that the trial strategy of the defense counsel backfired or that another attorney would have prepared and tried the case in a different manner.” Knecht v. Weber, 2002 SD 21, ¶ 21, 640 N.W.2d 491, 500.

[¶ 9.] The facts demonstrate that defense counsel was both aware of and had attempted to introduce this statement at the first trial. In this regard, counsel did investigate and discover this statement and made a conscious decision not to introduce the same. Compare Hadley v. Groose, 97 F.3d 1131, 1136 (8th Cir.1996) (granting habeas relief for failing to investigate and present exculpatory evidence). Petitioner now challenges counsel’s decision not to attempt to infero^-duce the statement again at the second trial after properly remedying any problems with its admissibility. Instructively, defense counsel testified:

In the first trial it played into my theory of defense because Lisa Randall (witness) said whoever threw the beer was the one who hit [Rich] with the baseball bat. So I wanted to tie her down and argue to the jury that she said [Mous-eaux] threw the beer can, so he had to have been the one who hit [Rich] with the baseball bat, and because of that, [petitioner] shouldn’t be convicted of this offense.

Whereas, to the contrary:

At the time of the second trial, that wasn’t really available. That wasn’t really something I could do. Here’s the reason. In the first trial they didn’t have the person named [Leggins] to testify. He was an eyewitness. In the second trial they had [Leggins] testifying. And he put [Mouseaux] there. He put them all there and he put the Randall boys clubbing [Rich] over the head.
After I’ve got him putting [Mouseaux] there and making this all one act, it’s kind of combined so to speak, the presence of [Mouseaux] I think at that second trial would have been something that would have taken away my ability to argue that there was doubt as to these identifications, and it would have put the Randall boys in a situation of being aiders and abettors and it would have weakened my strongest argument. And the strongest argument on the case was hey; you don’t know really what happened here, you don’t know who did it. These people say somebody else did it in the beginning. The physical description that Lisa Randall and the other witnesses provided in the beginning of five-foot eleven totally and completely excludes [petitioner] because he was the biggest guy in the courtroom. He was six-foot five. He was much heavier than they previously stated when they were witnesses.

Additionally, defense counsel believed there were facts showing that Leggins may have been involved somehow and therefore “wanted the jury to draw their own conclusion that the perpetrator in this case was [Leggins]. And so the presence of [Mouseaux] would have hurt that.”

[¶ 10.] We have recognized that “the selection of a defense is a trial strategy which this Court will seldom reevaluate.” Sprik, 1997 SD 134 at ¶32, 572 N.W.2d at 831. In this case, the addition of Leggins as an eyewitness bolstered State’s case. The decision not to present this hearsay witness was trial strategy. The record reveals that counsel considered and rejected the course the petitioner now asserts as appropriate: “Looking back on it and reading the transcript again, the doubt that was created by the misidentifications was a lot better defense than trying to utilize a de facto third-party perpetrator defense.” The introduction of a competing theory offered by a hearsay witness could have weakened defense counsel’s attempts to challenge the identification and the attempt to portray Leggins as the possible assailant.

[¶ 11.] As recognized by the habeas court, defense counsel is an experienced attorney and made a decision concerning trial strategy. Counsel’s decision not to corroborate the testimony of prosecution witnesses by offering this statement, the same witnesses that counsel intended to challenge as unreliable to thwart their identification of petitioner, was reasonable. See e.g., Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir.1989) (“[T]he decision not to use alibi testimony may reflect the reasonable exercise of judgment in view of the attorney’s concern that the testimony would be conflicting.”). This is particularly so in light of the fact that all the eyewitnesses had previously given inconsistent identifications of the assailants.

[¶ 12.] This tactical decision was not ineffective assistance of counsel and we affirm the. denial of habeas corpus relief.

[¶ 13.] Affirmed.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, participating.

[¶ 15.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . Neither Mouseaux nor Chapman testified at the habeas hearing.

      . The eyewitnesses were all subject to credibility attacks based on prior inconsistent statements identifying the assailants.

      . In analyzing Petitioner’s claim we assume this testimony would have been admissible in the second trial.