text:
    NORTHWESTERN EQUIPMENT, Inc., Plaintiff and Appellant, v. Leo J. TENTIS, Defendant and Respondent.
    No. 7550.
    Supreme Court of North Dakota.
    Feb. 3, 1956.

      Nilles, Oehlert & Nilles, Fargo, for plaintiff and appellant.
    J. K. Murray, Bismarck, for defendant and respondent.
   MORRIS, Judge.

This is an action upon two conditional sales contracts for the replevin of two tractors and some equipment connected therewith. The defendant answered denying plaintiff’s right to possession of the property; alleged a rescission of the contracts of sale; and counterclaimed for repairs in the sum of $6,000 on the item known as the International Harvester tractor and for repairs and labor in the sum of $5,000 on the item known as the Allis-Chalmers tractor. He also alleged that he is entitled to all the purchase price paid, together with all moneys paid out in attempting to make the tractors and equipment work, and that in addition he lost $6,500 by reason of lost time and money paid out for a stand-by crew by reason of the tractors not being fit to operate and work, making an overall total of $32,468.75, upon which he would allow the plaintiff $3,000 for net benefits to the defendant, thereby leaving a net balance due from the plaintiff to the defendant of $29,-468.75, for which the counterclaiming defendant prays judgment. To this counterclaim the plaintiff filed a reply.

The jury found in favor of the plaintiff with respect to the Allis-Chalmers tractor. It is thereby eliminated from consideration on this appeal.

On September 26, 1952, the plaintiff, as ' lessor, entered into a rental agreement with the defendant, as lessee, whereby the lessor rented to- the lessee for a minimum term of four months

“One Used reconditioned International TD-24 Crawler Tractor. Tractor Serial Number #876. Engine Serial Number #910.
“One New Bucyrus Erie 24 G Bull-grader for rear mounted Winch less A Frame and Blade. Bullgrader Serial Number #98807.
“One new Bucyrus Erie P-29 Winch double drum rear mounted. Winch Serial Number #92889.”

The lessee agreed to pay an aggregate rental of $7,958.48. The agreement also provided that at any time within the four month period and while the lessee was not in default he should have

“the option to purchase said equipment for the sum of $19,896.23 less any and ’ all rentals that have been paid by Lessee, plus an interest charge of 6% simple interest on deferred payments on ' the unpaid balances of the purchase price from date of delivery.”

On the date of this agreement the property therein described was delivered to the defendant at Fargo. He transported it to Mandan and used it on various jobs in that vicinity until it was repossessed, except for about a month when it was in a shop for repairs.

According to defendant’s evidence defects in the tractor became apparent shortly after delivery. On October 5, 1952, he complained to the plaintiff’s sales representative, Miller, about the clutch and clutch housing. Emil Tentis, brother of the defendant, operated the tractor in October 1952. He testified that the final drive and rollers were leaking, the clutch was sticking, and it was hard to shift. After the motor had been warmed up it had a loud knock. The seals on the rollers were worn out and would not hold grease. The steering apparatus leaked and the clutch was dragging. He knew of these defects after he had operated the machine for one eight hour shift and told the defendant about it.

Despite defendant’s knowledge of the defects in the tractor he exercised his option and bought it on December 29, 1952. He entered into a conditional sale contract whereby he agreed to pay $22,817.05, upon which he was credited with the sum of $7,-958.48 as an initial payment. This was the amount of rental provided in the rental agreement. The balance of $14,858.57 he agreed to pay in twelve monthly installments of approximately $1,235 on the fifteenth of each month from June to November inclusive of 1953 and from June to November inclusive of 1954. Title was retained by the plaintiff. Above the defendant’s signature at the end of the contract appears this statement in black type :

“No oral agreement; guaranty, representation, or warranty, past, present or future, respecting said equipment or our obligations hereunder, shall bind you or your assigns.”

The defendant paid to the plaintiff various sums from time to time, the last pay- , ment being a major portion of the monthly installment due August IS, 1953. It was stipulated that the total amount that the defendant paid the plaintiff was $12,214.83. The defendant also contends that he paid substantial amounts for repairs and labor on this tractor. The evidence shows that the repairs that he made were extensive. However, the exact cost is difficult to determine because of the failure of the record to show which of the parts furnished and repairs made apply to the International tractor and which apply to the Allis-Chalm-ers tractor.

After purchasing the property under the conditional sale contract the defendant continued to complain that the operation of the tractor was unsatisfactory. However, he continued to use it until in August 1953, at which time he was in default. On August 12, 1953, the parties entered into a further agreement in writing wherein the plaintiff, in consideration of certain specified assignments totaling $4,610.20, stated:

“We agree to make the following necessary repairs on one (1) International TD-24 tractor now in your possession.
“1 — Replace old radiator
2 — Replace three (3) fan pulleys
3 — Agree to absorb labor cost on clutch installation already performed
4 — Agree to absorb labor and parts cost on repairs previously made on the right final drive
5 — Agree to make necessary repairs on left final drive
6 — Agree to absorb cost on complete set of pins and bushings which are now in your possession
7 — Agree to absorb labor and parts cost on hydraulic steering system already performed.”

Pursuant to this agreement the tractor was taken to the Schultz machine shop in Bismarck where the repairs were made at the expense of the plaintiff. When the tractor left the machine shop it was in good working order. It was released to the defendant about September 28, 1953. The defendant started to use the tractor on a job at the Delzer Cement Plant where it was seized in this action by the sheriff of Morton County on October 6, 1953. At the time of seizure the September 15th installment was in default and also a slight additional amount, making in all $1,350.57 as of October 1, 1953.

The case was tried and the jury was instructed upon the theory that the defendant claimed to have rescinded the contract of sale and to be entitled to a return of the payments that he had made, plus the cost of repairs and labor expended by the defendant in attempting to make the tractor work. The court read Section 51-0707, NDRC 1943 to the jury. It found for the defendant

“for a rescission of the contract in favor of the defendant and assess his damages and the amount he is entitled to recover in the sum of Seven Thousand Nine Hundred & Fifty Eight 4%oo ($7958.48) Dollars, on the International TD-24 tractor and equipment.”

The amount found by the jury was the exact amount shown by the conditional sale contract as the initial payment. This in turn was the exact amount of the aggregate rental for four months provided in the rental agreement.

Defendant bases is claim to the right to rescind on Section 51-0707 which provides that any person purchasing a gas or oil burning tractor for his own use shall have a reasonable time after delivery for the inspection and testing of the same, and if it does not prove to be reasonably fit for the purpose for which it was purchased may rescind the sale by giving notice within a reasonable time after delivery to the seller or the agent who negotiated the sale or made delivery, or his successor, and by placing the same at the disposal of the seller. It further states that any provision in a written order or contract of sale or other contract which is contrary to the provisions of this section is declared to be against public policy and void.

The defendant testified that within three or four days after receiving the tractor under the rental agreement he discovered defects in the motor, the rollers, the final drive, and the clutch and about a week later notified the plaintiff. He says that a representative of the plaintiff came to see the defendant and told him that the plaintiff would repair the tractor or take it back and refund the defendant’s money. He also testified that similar promises were made by the representatives of the plaintiff, both before and after the defendant exercised his option and purchased the tractor under the conditional sale contract on December 29, 1952.

The defendant used the tractor on ten jobs during the rental period and prior to its purchase. This use included plowing, deep land plowing, putting in a culvert for Morton County, repairing a stock dam, digging a drainage ditch, land leveling, and road work. During that time he earned with the use of the tractor approximately $6,000. He accomplished this work with the tractor in its claimed defective condition, although he did some repair work on it during that time. After using the tractor for four months he exercised the option to purchase it but he contends that he did so relying on the oral promises of representatives of the plaintiff to make the tractor work. Yet he signed a conditional sale contract in which he agreed that no such oral agreement should bind the plaintiff.

Defendant also contends that similar promises were made by the plaintiff’s representatives after the conditional sales contract was entered into to either take the tractor back or make it work. This is categorically denied by plaintiff’s witnesses but the jury believed the defendant for they found there was a rescission. The defendant points to these subsequent promises to make the tractor fit to save himself from the requirement of the statute that rescission must be made within a reasonable time after delivery of the property. Under Section 51-0707 one who has the right to rescind a contract for the purchase of personal property on the ground that the same was not reasonably fit for the purposes for which it was purchased may delay the exercise of a right of rescission on condition that the property be made fit and if the condition is not complied with may thereafter rescind provided he does so within a reasonable time after the failure of the seller to comply with the conditions. Dwinnell v. Boehmer, 60 N.D. 302, 234 N.W. 655; Bratberg v. Advance-Rumely Thresher Co., 61 N.D. 452, 238 N.W. 552, 78 A.L.R. 1338. But a purchaser must have a right to rescind before it can be saved to him by a promise on the part of the seller to make fit. The defendant has pointed out no evidence and we have found none that would indicate that the tractor was less fit to do defendant’s work after December 29, 1952, than it was during the four months that it was in defendant’s possession under the rental agreement. No new or latent defects appeared. The defendant’s difficulties in operating it were much the same in the spring of 1953 as they were in the fall of 1952. He operated it on various jobs until August 1953 when the plaintiff, in consideration of the payment of certain delinquencies by the defendant, agreed in writing to make specific repairs. These repairs were made in accordance with the contract and the tractor returned to the defendant during the last days of September although a further installment had become due September 15, 1953, in the sum of $1,235. The defendant failed to meet this installment and a small sum which was due in addition and the plaintiff repossessed the tractor in this action. There is evidence regarding defects in the tractor or in its operation after it was returned to the defendant other than his general statement that it didn’t work and he told the plaintiff to take it back.

Section 51-0116 provides that:

“Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
"1. Where the buyer, expressly or . by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he is the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for that purpose; * * *
“3. If the buyer has examined the goods, there is no implied warranty as regards the defects which such examination ought to have revealed; * *.”

In Section 51-0170 we find that:

“3. Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, * * *.»

Section 51-0707 NDRC 1943 does not of itself create a warranty but assures to a purchaser of property therein described a reasonable time after delivery for the inspection and testing to determine whether or not it complies with the warranty of fitness prescribed by Section 51-0116, subd. 1. It also prohibits any agreement- waiving the implied, warranty of fitness and 'specifically provides for the remedy of rescission. This remedy it affords to the .purchaser for a reasonable time after he has had an opportunity for'inspection and testing. The statute was clearly not intended to apply to defects in machinery or failures or inadequacies in operation of which the purcháser was aware at the time of purchase.

The defendant’s claim to the right to rescind under the provisions of Section 51-0707, NDRC 1943 must fail because that section is not applicable to this transaction and the remedy of rescission provided by it is not available to him.

In Jackson v. Advance-Rumely Thresher Co., 62 N.D. 143, 241 N.W. 722, the constitutionality of this statute was challenged on the ground that it abridged freedom of contract and violated the due process law of the 14th amendment to the United States Constitution. In upholding the validity of this statute this court set forth at length the conditions and purposes, that actuated the legislature in enacting the statute. Our decision was affirmed by the United States Supreme Court in Advance-Rumely Thresher Co. v. Jackson, 287 U.S. 283, 53 S.Ct. 133, 134, 77 L.Ed. 306, 87 A.L.R. 285. The purposes of the statute were again set out by the United States Supreme Court.

“The object sought to be attained by the statute under consideration is to protect farmers in an agricultural state against losses from investments in important machines that are not fit for the purposes for which they are purchased and to guard against crop losses likely to result from reliance upon such machines. It applies only to sales made to purchasers requiring for their own use the relatively complicated and costly implements referred to in section 1. These are used on farms producing grain, and the raising of such crops is North Dakota’s principal industry. Enormous quantities of farm machinery are required in that state, and expenditures therefor constitute a large part of the total investment in farm land and equipment. Most, if not all, of the tractors, engines, harvesters, and threshers referred to are made outside North Dakota by a few manufacturers who, through their agents or dealers, sell them directly to farmers. Forms of sales contracts generally used are prepared by sellers, and, as pointed out in the opinion of the state Supreme Court, the tendency has been to restrict the rights of purchasers and to lessen the liability of sellers. Such machines can properly be tested only during seasons in which they are used, and, especially in the case of harvester and thresher combines, these periods áre short. The machine sold to plaintiff is a gas and oil-burning harvester and thresher combine. Machines designed for such purposes are necessarily complex, and even under favorable conditions their effective use requires skill, experience; and resourcefulness on the part of operators. ' In determining whether they are reasonably'suitable and fit for the purposes interred, there is involved a consideration of the kind and condition of the crops to be harvested, the periods during which they remain recoverable after becoming sufficiently ripe and’dry to be contemporaneously cut and threshed, the amount and kind of weeds and other foreign vegetation growing with the grain, the topography of the fields, and the rainfall, dew, and humidity. Such combines have not been long known or much used in the grain-raising Northwest, and undoubtedly there are ample grounds for a legislative finding that the farmers of North Dakota as a' class are not sufficiently familiar with them to be able, without actual test, to form an intelligent opinion as to their fitness to cut and thresh in a single operation or whether they safely may be regarded as dependable for use on their farms. If they were relied on generally in that state and should fail in the fields, the resulting losses would be of such magnitude and public concern as to warrant the adoption of measures calculated to guard against them.
“The regulation imposed seems well calculated to effect the purposes sought to be attained. The evils aimed at do not necessarily result from misrepresentation or' any fraud on the part of sellers, and at least one of the purposes of the legislation is to lessen losses resulting from purchasers’ lack of capacity, without opportunity for inspection and trial, to decide whether the machines are suitable. The statute prevents waiver of the warranty of fitness implied by the state law. Such warranties tend to restrain manufacturers from selling unfit or defective machines and also from selling any— even those of appropriate design and construction for operation in some regions — for use in places or under conditions not permitting effective service. And the right of inspection, test, and rescission that the statute assures to purchasers enables them, free from peril of serious mistakes, deliberately to consider whether such machines are reasonably suitable or fit for the purposes for which they want to use them. There is nothing in this case to suggest that, under the guise of permissible regulation, the state unreasonably deprives sellers of such machines of their right freely to contract or that in its practical operation the statute arbitrarily burdens their business. [Jay] Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813, 32 A.L.R. 661; Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L. Ed. 654. The state, in order to ameliorate the evils found incident to waivers of implied warranties of fitness, merely declares that such agreements in respect of the sale of the designated machines are contrary to public policy, ’ and holds the parties to the just and reasonable rule prescribed by section 15(1) of the Sales Act. Upon the question of due process more need not he said.
“The character of the machines, the need of tests to determine their fitness, the serious losses that ensue if in actual use they prove unfit and the other considerations alluded to plainly warrant the classification and special regulation of sales prescribed by the statute.”

Section 51-0707 was never intended to require a warranty of fitness against defects of material or performance of which the purchaser was aware at the time the contract was made to be read into the contract of purchase or to give the purchaser a right to rescind the contract because of such defects.

We would make further comment with reference to defendant’s testimony to the effect that both before and after the execution of the conditional sale contract plaintiff’s representatives promised that they would repair the defects complained of and make the tractor work or take. it back. The contract contained a specific negation of all oral agreements which we have heretofore quoted. The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the contract. Section 9-0607, NDRC 1943. Jensen v. Siegfried, 66 N.D. 222, 263 N.W. 715; Larson v. Wood, 75 N.D. 9, 25 N.W.2d 100; Clark Implement Co. v. Priebe, 52 S.D. 606, 219 N.W. 475.

Section 9-0906, NDRC 1943 provides:

“A contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise.”

These rules are not rules of evidence but of substantive law. Williston on Contracts, Revised Edition, Section 631. The jury might find as a fact that the oral promises were made but their finding in that respect could not change the contract. The legal effect of the oral testimony is for the court to determine as a matter of law. In this connection it should be noted that the plaintiff did subsequently agree in writing to make certain repairs on the tractor and performed that agreement. In that respect only was the original contract of sale modified.

The defendant challenges our right to review the sufficiency of the evidence in any respect because of claimed defects in procedure. At the close of all the evidence the plaintiff made a motion for a directed verdict and after the verdict was rendered on December 8, 1954, made a motion for a judgment notwithstanding the verdict or for a new trial. Notice of this motion was served on defendant’s attorney by mail on December 17, 1954. This notice specified January 12, 1955, as the date of hearing. It was filed with the clerk of the district court of Morton County on December 20, 1954. The motion could not be heard on the date set because the trial judge was engaged in holding a court term in another county. Instead of securing a continuance of the hearing on the motion from the time set in the notice to another. date, plaintiff served an amended notice of motion on defendant’s attorney on January 3, 1955, naming March 15, 1955, as the date on which the motion would be heard. Because of illness of defendant’s counsel it was later stipulated that the motion be heard on April 12, 1955. This stipulation provided that it was “all without prejudice to any objections of the defendant.” At the hearing on the motion on April 12, 1955, the defendant objected to the jurisdiction of the court to hear and consider the motion on the ground that it was not made within ten days after rendition of the verdict. This objection is based on Section 28-1510, NDRC 1943, as amended by Chapter 204, SLND 1951, which in part provides:

“Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict, * *

We will not lengthen this opinion by attempting to unravel this procedural snarl for if the defendant is correct in his contention that the court was without jurisdiction to hear the motion for judgment notwithstanding the verdict and that the proceedings taken thereon were void and of no avail there remains the appeal from the judgment to be considered.

The plaintiff in addition to appealing from the trial court’s order denying its motion for judgment notwithstanding the verdict has also appealed from the judgment and specified as error on that appeal the denial by the court of its motion for a directed verdict at the close of all the evidence. Therefore, if the proceedings on the motion for judgment notwithstanding the verdict are void, we will still review the court’s ruling on the motion for directed verdict on the appeal from the judgment. Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588.

The defendant further argues that the motion for directed verdict is insufficient in form and scope to warrant a review of the evidence on appeal under the rule which requires that such a motion shall point out and state the particulars wherein the evidence is insufficient. Jacobs v. Bever, 79 N.D. 168, 55 N.W.2d 512; Westerso v. City of Williston, 77 N.D. 251, 42 N.W.2d 429.

The plaintiff based its motion for directed verdict chiefly on these stated grounds: that no warranty had been shown; that if any warranty was shown the same was not breached; and that any warranty that may have been proven was waived by the failure of the defendant to give reasonable notice and return the tractor within a reasonable time after discovery of the defects. These grounds, while meager as to detail, we regard as sufficient to advise the trial court and opposing counsel of the contentions of the plaintiff with respect to the insufficiency of the evidence. See Nicholson v. Roop, N.D., 62 N.W. 2d 473, 43 A.L.R.2d 1041. In our review we have considered the evidence with respect to these grounds. As to the first ground we have concluded that there was no warranty of fitness nor could there be such a warranty under the evidence here presented with the result that Section 51-0707, NDRC 1943 is not applicable to this transaction and the defendant could not avail himself of a right of rescission thereunder.

There being no right of rescission on the part of the defendant, the verdict cannot stand and the judgment appealed from is reversed.

BURKE, C. J., and SATHRE, JOHNSON and GRIMSON, JJ., concur.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    In re the Marriage of Marjorie Mary McINTOSH, petitioner, Respondent, v. Kenneth King McINTOSH, Appellant.
    Nos. A06-1432, A06-1444.
    Court of Appeals of Minnesota.
    Oct. 16, 2007.

      Steven A. Sicheneder, Forest Lake, MN, for respondent.
    Mark A. Olson, Burnsville, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; HALBROOKS, Judge; and PARKER, Judge.

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

   OPINION

HALBROOKS, Judge.

In this consolidated matter, appellant argues that the district court erred by including, as marital property, the undistributed subchapter S corporation earnings and the rents paid to the business but owed to appellant. Respondent argues that the district court erred when it (1) determined that the proceeds from the sale of appellant’s mother’s home during the marriage constituted nonmarital property and (2) credited appellant for the amount appellant paid in federal and state tax liabilities incurred during the marriage. Because we conclude that the district court erred by treating the undistributed subchapter S earnings and the rents paid to the business as marital property, we reverse that portion of the dissolution judgment. Because we conclude that the district court did not clearly err in determining that the proceeds from the sale of appellant’s mother’s home constituted non-marital property and that appellant should be credited for the taxes that he paid, we affirm the district court on those issues.

Appellant also challenges the district court’s decision to extend the original order for protection against him, arguing that (1) because he stipulated to the original order for protection without a finding of the existence of domestic abuse, the district court must'make a finding of domestic abuse in order to extend an existing order and (2) the evidence does not support the district court’s decision to extend the order for protection. Because the district court is not required to make a finding of domestic abuse in order to extend an order for protection if the original order is based on a stipulation and because the evidence sufficiently supports the extension, we conclude that the district court did not abuse its discretion by granting respondent’s request to extend the order for protection against appellant.

We therefore affirm in part, reverse in part, and remand.

FACTS

I. Marriage Dissolution

The marriage of appellant Kenneth King McIntosh and respondent Marjorie Mary McIntosh was dissolved by judgment and decree on September 12, 2005. The parties have eight children, six of whom were minors at the time of the dissolution. The parties agreed that respondent would be awarded sole legal and physical custody of the minor children, subject to appellant’s parenting time. Appellant was ordered to pay child support in the amount of $2,474 per month and temporary monthly spousal maintenance of $8,000 for three years. The parties also agreed that the homestead, valued at $450,000, would be awarded to respondent.

Appellant was the owner of Unidale Insurance Agency, a subchapter S eorporation that was described as a “substandard” agency dealing with risk insurance products for people or companies unable to obtain insurance elsewhere. Appellant was the only licensed agent at Unidale and the only person to write policies and perform consulting services. He took an annual salary of $30,000 from the company and received the balance of his compensation in the form of distributions from the subchapter S corporation. Although the distribution was technically available to appellant at the end of the calendar year, his practice was to hold back much of the distribution until his income taxes were prepared the following March.

During trial, both parties presented expert testimony concerning the value of Unidale’s assets. The experts agreed that Unidale’s value had two components — the assets of the company (name reputation, good will, etc.) and the cash on hand. Stephen Dennis, respondent’s expert, testified that the value of the company was $220,861. Edward Bates, appellant’s expert, determined that the value of the agency was at most $78,330, and at the very least $67,913. The district court, concluding that “Mr Dennis’ valuation did not take adequately into account the fact that Unidale is a substandard risk agency with very . limited marketability,” determined that the fair market value of Unidale was $67,913.

The district court also examined the amount of cash in Unidale’s bank accounts. The district court found that Unidale had a bank account with University Bank carrying a balance of $101,673.26, and another account with Western Bank valued at $103,942.12. Appellant’s expert, Jeffrey Pletcher, reconciled the accounts payable and owner’s equity from the accounts and concluded that Unidale had a cash value of $65,199.12 after deducting: (1) $22,630 for undistributed subchapter S earnings; (2) $14,443 for rents collected by Unidale but owed to appellant; (3) $70,093.98 for insurance company payables; (4) $6,097.64 for regular accounts payable; (5) $7,009.40 for commissions received in 2003 for 2004; (6) $7,009.40 for policy fees received in 2003 for 2004; and (7) $13,132.84 for insurance deposits received in 2003 for policies to be issued in 2004. The district court determined that if Unidale were sold, all of the above amounts, with the exception of the undistributed subchapter S earnings and the rents paid to Unidale but owed to appellant, would be payable by Unidale from available cash. The district court-determined that the undistributed sub-chapter S earnings and rents paid to Uni-dale but owed to appellant were a marital asset and therefore would not be payable to a buyer. Accordingly, the district court declined to deduct the amounts for undistributed subchapter S earnings and rents paid, concluding that Unidale had a cash balance of $102,272.12 that constituted a marital asset.

In addition, in its analysis of “investment accounts,” the district court made the following finding:

The parties had a Certificate of Deposit at Lino Lakes State Bank with Certificate No. 3319 having a balance in the amount of $100,000.00. On June 13, 2003, [appellant] cashed in the certificate. A new certificate in the amount of $50,000.00 was purchased with [appellant] keeping $50,000.00 plus interest of $2,202.78 for himself. [Appellant] is being awarded this bank account with its. value being taken into consideration in the division of the marital estate.

Appellant subsequently brought a motion for a new trial or amended findings, requesting, in part, that the district court amend its findings with regard to: (1) the cash value of Unidale and (2) the amount of credit due appellant for marital tax liabilities paid using the $50,000 that he cashed out of the Lino Lakes certificate of deposit. The district court denied appellant’s request to amend the finding on the cash value of the Unidale accounts, finding that “the matter was fully litigated at the trial, including presentation of experts and evidence by both parties” and that the district court “properly and thoroughly considered the matter and in [its] discretion, fully and appropriately decided this matter.” But the district court granted appellant’s request to amend the finding on the Lino Lakes certificate of deposit, finding that “appropriate credit was not given to [appellant] regarding marital tax liabilities that he accounted fqr as paid from these amounts.”

II. Order for Protection

On December 27, 2002, respondent petitioned for an order for protection against appellant, alleging that appellant had “inflicted or threatened domestic abuse” upon her and stating that she “fear[ed] immediate and present danger of further acts of domestic violence.” In an accompanying affidavit, respondent stated that beginning in October 2002, appellant would wake her up during the night to lecture her, calling her names and blaming her for his troubles. Respondent alleged that appellant would grab her shoulders and shake her,' starting slowly and then speeding up before realizing what he was doing and stopping.

Respondent also stated that appellant had threátened her with his fist and that, on one occasion, he entered the kitchen and hit her with a “glancing blow” to the chin. Respondent stated that prior to December 24-25, 2002, appellant was continually “growling” at her, blaming her for his problems. On the morning of December 25, appellant was “very angry” with respondent and “raged at [her].” As a re-suit, respondent spent the night “at a safe place.” When respondent returned home the morning of December 26, appellant confronted her in the kitchen and “rammed [her] with his shoulder, causing [her] to fall to the floor with force.” When respondent called 911, appellant followed her through the house while she was on the phone, eventually forcing his way into a bathroom where respondent and the couple’s daughter had retreated, blocking their exit. Respondent stated that she was “afraid of the physical and emotional damage [appellant] could inflict on [her],” and was afraid appellant would “physically hurt” her.

On December 30, 2002, the district court issued an emergency ex parte order for protection against appellant. At a subsequent hearing, appellant stipulated to an order, and the district court issued an order for protection that was effective for one year. Specifically, paragraph 4.b. of the order states: “[appellant] does not object to an Order for Protection and understands that the Order will be enforced as if there were an admission or finding of domestic abuse.”

On January 20, 2004, respondent applied for an extension of the order for protection. The district court issued an extended order for protection on March 22, 2004, effective for two years, finding that appellant had violated the previous order, that respondent was “reasonably in fear of physical harm from [appellant],” and that appellant had “engaged in acts of harassment or stalking.” The district court subsequently amended a portion of the order for protection, stating, in part, that appellant should have no contact with respondent other than for purposes of mediation.

On February 13, 2006, respondent sought another extension of the order for protection. The district court initially entered a temporary order to extend the order for protection, pending a hearing. At the hearing, respondent testified that on December 28, 2005, she had a conversation with appellant when he answered a call she had placed to one of their children on the child’s cell phone. Respondent testified that during the conversation, appellant “raged” at her, causing her to fear him. The district court found that respondent’s testimony was “credible” and “that she evidenced an obvious fear of physical harm from [appellant].” The district court also noted that appellant had violated the previous order for protection on two occasions. While the district court recognized that these violations alone were not sufficient to extend the order for protection, the district court found that the “prior incidents, along with the incidents as recent as December 2005 taken as a whole support [respondent’s] assertion that she is in reasonable fear of physical harm from [appellant].” Accordingly, the district court granted respondent’s motion to extend the order for protection for two years, concluding that respondent was “reasonably in fear of physical harm from [appellant].”

This consolidated appeal follows.

ISSUES
1. Did the district court clearly err in determining Unidale’s cash balance?
2. Did the district court err by determining that the entire proceeds from the sale of appellant’s mother’s home during the marriage were appellant’s nonmarital property?
3. Did the district court clearly err in crediting appellant for the amounts he paid in federal and state income taxes?
4. Did the district court abuse its discretion when it extended the order for protection against appellant absent a showing of the existence of domestic abuse when the original order for protection was stipulated to?
5. Is the evidence sufficient to support the district court’s decision to grant respondent’s petition to extend the order for protection?

ANALYSIS

I.

A. Valuation of Unidale

Appellant argues that the district court clearly erred because it included in its valuation of Unidale the undistributed sub-chapter S earnings and rents paid to Uni-dale but owed to appellant while also including the same amounts in appellant’s income. As a result, the undistributed subchapter S earnings and rents were treated as both a marital asset and as appellant’s income in calculating his child-support obligation.

A district court’s valuation of an item of property is a finding of fact, and it will not be set aside unless it is clearly erroneous on the record as a whole. Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn.2001); Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). An appellate court does not require the district court to be exact in its valuation of an asset; “it is only necessary that the value arrived at lies within a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn.1979) (citing Hertz, 304 Minn. at 145, 229 N.W.2d at 44).

The district court found that, as of the valuation date, Unidale had bank balances of $101,673.26, and $103,942.12. Appellant’s expert testified that, in determining Unidale’s value, those balances should be reduced by Unidale’s outstanding obligations, resulting in a net value for the accounts of $65,199.12. But the district court found that the proposed deductions in the amount of $22,630 for undistributed subchapter S earnings and $14,443 for rents paid to Unidale but owed to appellant were marital assets that would not be payable to a buyer. Therefore, the district court concluded that these amounts should not be deducted, leaving a cash value of $102,272.12 to be divided between the parties.

Appellant contends that because the undistributed subchapter S earnings and rents paid to Unidale but owed to appellant were treated by the district court as “income” for child-support purposes, the district court erred in finding that the cash amounts should not be deducted from the value of Unidale. We agree.

In determining appellant’s income, the district court found that appellant earned a yearly salary of $30,000 and “receives the rest of his compensation as distributions from the Subchapter S Corporation.” The district court also found that appellant receives social-security-retirement benefits, interest income from investment accounts, and rental income from the Unidale building. Because appellant did not provide either corporate or personal income tax records for 2004, the district court determined appellant’s income by averaging appellant’s reported earnings in 2001-2003, resulting in a gross annual income of $213,164. This amount included 2003 distributions from the subchapter S corporation and rents paid to Unidale. The district court then used appellant’s average gross annual income minus the allowable statutory deductions to determine his net income for child-support purposes. See Minn.Stat. § 518.551, subd. 5(b) (2004) (listing allowable deductions from gross income).

But when determining the amount of cash that Unidale possessed, the district court declined to deduct the relevant amounts for the undistributed earnings and rents paid that were supposed to be paid to appellant as income, instead finding that such amounts should not be deducted from the cash value of Unidale. Accordingly, the undistributed earnings and rents that were attributed to appellant as income were also included in the cash value of Unidale and, therefore, divided as a marital asset.

Based on our review of the record, we conclude that the district court’s finding of the value of Unidale’s cash assets was clearly erroneous. Pletcher testified that the undistributed subchapter S earnings should have been deducted from the cash value of Unidale because the undistributed earnings “were included in the earnings that appeared on [appellant’s] 2003 tax returns.” Similarly, Pletcher opined that the rents paid to Unidale should have been deducted from the value of the company, as the relevant amounts were included as income in appellant’s 2003 tax returns. Specifically, Pletcher stated, “[Appellant] owns the building, but [Unidale] collects some rents. And [appellant] deposited them in the [Unidale] checking book, but they belong to [appellant]. So, therefore, there is money sitting in an account that wasn’t given to [appellant] for his rents.”

Because the record supports the finding that the undistributed subchapter S earnings and the rents paid to Unidale but owed to appellant should have been deducted from the cash value of Unidale, we conclude that the district court clearly erred in determining the cash value of the business.

B. Sale proceeds from appellant’s mother’s home

Respondent argues that the district court erred when it determined that the proceeds from the sale of appellant’s mother’s home during the marriage constituted nonmarital property. While respondent concedes that the home was a gift to appellant from his mother, she contends that because appellant co-mingled the nonmari-tal funds related to the sale of the house with marital funds and did not adequately trace the funds, the funds are marital property.

The district court found:

Both parties confirmed that the monies were placed in the joint Western Bank account for a few days and then used along with joint funds to purchase the Lino Lakes Certificate of Deposit. As there is no dispute as to the source of funds as coming from a gift to [appellant] and as both parties agree that the funds were ultimately placed in the Lino Lakes Certificate of Deposit, the court awards [appellant] the sum of $47,547.96 from the Lino Lakes Certificate of Deposit as his non-marital asset.

This finding is supported by the record. Therefore, we conclude that appellant adequately traced a nonmarital interest in the certificate of deposit and we affirm the district court on this issue.

C. Federal and state income taxes

Respondent argues that the district court erred when it credited appellant for the amount he paid for the parties’ federal and state income taxes. In the judgment and decree, the district court found:

The parties had a Certificate of Deposit [CD] at Li no Lakes State Bank with Certificate No. 3319 having a balance in the amount of $100,000.00. On June 13, 2003, [appellant] cashed in the certificate. A new certificate in the amount of $50,000.00 was purchased with [appellant] keeping $50,000.00 plus interest of $2,202.78 for himself. [Appellant] is being awarded this bank account with its value being taken into consideration in the division of the marital estate.

Appellant subsequently moved for a new trial or amended findings, arguing, in part, that he used $50,000 from the CD to pay $49,729.08 in marital tax liabilities and therefore “should be given credit for those payments and be reimbursed from either the Lino Lakes certificate, or from another asset.”

The district court granted appellant’s motion to amend the finding regarding the Lino Lakes CD, concluding that “appropriate credit was not given to [appellant] regarding marital tax liabilities that he accounted for as paid from these amounts. The tax liabilities for the years 2000, 2001 and 2002 were marital obligations and due to refiling of tax returns for these years, were incurred post-separation.” Accordingly, the district court amended the finding to read:

Lino Lakes State Bank. The parties had a Certificate of Deposit at Lino Lakes State Bank with Certificate No. 3319 having a balance in the amount of $100,000. On June 13, 2003, [appellant] cashed in the certificate. A new certificate in the amount of $50,000 was purchased with [appellant] keeping $50,000 plus interest of $2,202.78 for himself. [Appellant] paid the joint marital tax obligations for the years 2000, 2001 and 2002 out of these proceeds, in a total amount of $49,728.58 following separation. One payment for this tax liability was made prior to cashing the Certificate of Deposit. The prior payment in the amount of $2,793.88 is deducted from the above tax amount that [appellant] paid. Therefore, [appellant] is entitled to be reimbursed for $46,934.70 ($49,728.58 taxes liability paid minus first payment of $2,793.88) for his payment of the marital tax obligations for the years 2000, 2001, and 2002. [Appellant] is being awarded his nonmarital interest in the certificate ($47,547.96) pursuant to Finding of Fact 31 below. The remaining balance of the certificate, $5,517.34, is being awarded to [appellant] as a marital asset.

“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.” Minn. R. Civ. P. 52.01. “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (quotation omitted).

Respondent, citing finding of fact 21 and conclusion of law 21 of the original judgment, argues that the district court erred in amending the finding because appellant had agreed to hold respondent harmless for tax liabilities in exchange for respondent’s signature on the 2002 federal and state tax returns. Respondent’s argument is belied by the plain language of the district court’s order. Finding of fact 21 states:

The parties have no marital debt, with the exception of taxes resulting from [respondent] failing to sign the joint 2002 tax return and instead filing her own return. [Respondent] agreed under oath to sign the joint 2002 return, provided that [appellant] held her harmless for any errors or mistakes in the return. [Respondent] is hereby ordered to sign the joint return, subject to the hold harmless clause.

Conclusion of law 21 orders respondent “to sign the joint 2002 federal and state tax returns,” and further states that appellant “shall be solely responsible and hold [respondent] harmless for any resulting liabilities thereon.”

As the district court noted, this finding and conclusion indicate that appellant would hold respondent harmless for any errors or mistakes that appellant may-make in preparing the tax returns. But they do not provide that appellant is solely responsible for paying the parties’ tax obligations. Accordingly, we conclude that the district court did not clearly err by amending the finding, thereby crediting appellant for the amount he paid on behalf of the parties for their federal and state income tax liabilities.

II.

Appellant argues that because he stipulated to the original order for protection without an explicit finding of the existence of domestic abuse, respondent must show domestic abuse in order to extend the existing order for protection. Whether to grant relief under the Domestic Abuse Act (Minn.Stat. ch. 518B) is discretionary with the district court. Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn.App.2005) (citing Mechtel v. Mechtel 528 N.W.2d 916, 920 (Minn.App. 1995)); Hall v. Hall, 408 N.W.2d 626, 629 (Minn.App.1987), review denied (Minn. Aug. 19, 1987).

In order to obtain an order for protection, the petition for relief must allege the existence of domestic abuse. Minn.Stat. § 518B.01, subd. 4(b) (2006). “Domestic abuse” includes physical harm, bodily injury, assault, or “the infliction of fear of imminent physical harm, bodily injury, or assault,” if committed by a family member against another family member. Minn. Stat. § 518B.01, subd. 2(a) (2006). Minn. Stat. § 518B.01, subd. 6a (2006), which sets forth the requirements for the extension of an existing order for protection, states that

[t]he court may extend the terms of an existing order or, if an order is no longer in effect, grant a new order upon a showing that:
(1)the respondent has violated a pri- or or existing order for protection;
(2) the petitioner is reasonably in fear of physical harm from the respondent;
(3) the respondent has engaged in acts of harassment or stalking within the meaning of section 609.749, subdivision 2; or
(4) the respondent is incarcerated and about to be -released, or has recently been released from incarceration.

Section 518B.01, subdivision 6a, further provides that “[a] petitioner does not need to show that physical harm is imminent to obtain an extension or a subsequent order under this subdivision.” Thus, while section 518B.01, subdivision 4(b), requires a petitioner to allege the existence of domestic abuse to obtain an order for protection, a petitioner seeking the extension of an existing order for protection under section 518.01, subdivision 6a, “does not need to show that- physical harm is imminent,” but instead must show only that, among other alternatives, the individual is reasonably in fear of physical harm.

Appellant has two arguments. He first contends that because he stipulated to the original order for protection and, therefore, the district court never made a finding of domestic abuse, respondent must now show the existence of domestic abuse in order to obtain an extension of the existing order for protection. Statutory construction is a question of law, which this court reviews de novo. Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003); Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The goal of statutory interpretation is to effectuate the intent of the legislature. Educ. Minn.-Chisholm, 662 N.W.2d at 143. “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one-reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). If the meaning of a statute is unambiguous, we interpret the statute’s text according to its plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004); see also Minn.Stat. § 645.08 (2006). “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Schroedl, 616 N.W.2d at 277 (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). And “[w]e are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

Minn.Stat. § 518B.01, subd. 6a, is clear and unambiguous. Its plain language states that the district court may extend an existing order for protection if the petitioner shows that (1) respondent has violated the order for protection; (2) petitioner is reasonably in fear of physical harm; (3) respondent has engaged in acts of harassment or stalking; or (4) respondent is incarcerated and about to be released or has recently been released. The provisions of section 518B.01, subdivision 6a, do not require a present showing.of domestic abuse. In fact, the express language of the statute provides that a petitioner does not need to show imminent physical harm to obtain an extension of an order for protection. Accordingly, we reject appellant’s argument that a petitioner must show domestic abuse in order to obtain an extension of an order for protection under section 518B.01, subdivision 6a, when a respondent has stipulated to the original order for protection.

Paragraph 4.b. of the original order for protection against appellant states: “[Appellant] does not object to an Order for Protection and understands that the Order will be enforced as if there were an admission or finding of domestic abuse.” Because appellant did not object to the order and understood that the order would be enforced as if the district court had made a finding of domestic abuse, the district court does not now have to find the existence of domestic abuse when considering an application for extension of the existing order for protection. By its explicit terms, the stipulation operates as if the district court already made such a finding.

Appellant also contends that the evidence does not support the district court’s decision to grant respondent’s request to extend the order for protection, and thus the district court’s order extending the order for protection must be reversed. A district court’s broad discretion in crafting and issuing orders for protection has been consistently recognized by this court. See, e.g., Mechtel, 528 N.W.2d at 920; Hall, 408 N.W.2d at 629. This court will reverse a district court’s decision to issue an order for protection under the Minnesota Domestic Abuse Act if it lacks sufficient evidentiary support. Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn.App.1986). But “[a] district court’s findings of fact will not be set aside unless they are clearly erroneous.” Tagliente, 693 N.W.2d at 489; see also Minn. R. Civ. P. 52.01. On review, we view the evidence in the light most favorable to the district court’s findings and give special deference to findings that are made upon conflicting evidence. Minn. R. Civ. P. 52.01; see Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (stating that appellate courts defer to district court credibility determinations). A district court’s factual findings will be reversed only if, after reviewing the entire record, we are “left with the definite and firm conviction that a mistake has been made.” Gjovik v. Sirope, 401 N.W.2d 664, 667 (Minn.1987).

In respondent’s application to extend the order for protection, she asserted that appellant violated the prior order for protection on two occasions. Respondent testified that the first violation occurred in the spring of 2005, when appellant pulled into her driveway to pick up one of the children. The second violation occurred when appellant allegedly called respondent’s home on an unapproved phone line. Both of those incidents were reported to the police, but the charges were later dismissed.

Respondent also indicated in the application for extension that she was fearful of physical harm from respondent as a result of a phone conversation she had with him. Specifically, respondent claims that on one occasion she called one of her children on the child’s cell phone but appellant answered and proceeded to “raged” at her and demand that she “repent.” At the subsequent hearing on respondent’s motion to extend the order, respondent similarly stated that when she called the child’s phone, appellant “answered and ... went into a big rage ... telling [her] to start repenting.” Respondent testified that when she was speaking with appellant, she “felt afraid” and that she still has fear of physical harm from appellant. Appellant denied that he “raged” at respondent or told her to “repent.”

The district court granted respondent’s motion to extend the order for protection against appellant, finding that “the prior incidents,” along with the telephone incident that occurred on December 28, 2005, “taken as a whole support [respondent’s] assertion that she is in reasonable fear of physical harm from [appellant].” While the district court noted respondent’s allegation that appellant had violated the previous order for protection, the district court did not extend the order for protection on the basis of the alleged violations. Instead, the district court extended the order based only on the conclusion that respondent “is reasonably in fear of physical harm from [appellant].”

While appellant disputes the extent of respondent’s reasonable fear of physical harm, on this record, we cannot say that the district court’s factual finding is clearly erroneous. Respondent’s application for extension and her testimony at the hearing both sufficiently support the district court’s findings. The record evidence also supports the district court’s conclusion that respondent “is reasonably in fear of physical harm from [appellant].” Accordingly, we conclude that the district court did not abuse its discretion when it granted respondent’s request to extend the order for protection pursuant to MinmStat. § 518B.01, subd. 6a(2).

DECISION

We conclude that the district court did not clearly err in determining that (1) the proceeds from the sale of appellant’s mother’s home constituted nonmarital property and (2) appellant should be credited for the amounts he paid for state and federal income tax liabilities incurred during the marriage. We also conclude that the district court did not abuse its discretion in granting respondent’s request to extend the existing order for protection against appellant. We therefore affirm in part. But because we conclude that the district court clearly erred by including in the value of Unidale the amounts for undistributed earnings and rents paid to Unidale while also including those amounts in appellant’s income, we reverse that portion of the judgment and remand for a recalculation of the property division.

Affirmed in part, reversed in part, and remanded.


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 162
    STATE of North Dakota, Plaintiff and Appellee v. Scott FASTEEN, Defendant and Appellant.
    No. 20070046.
    Supreme Court of North Dakota.
    Oct. 16, 2007.

      Lloyd Clayton Suhr, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Jodi L. Colling, Dickson Law Office, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Scott Fasteen appealed from a criminal judgment entered upon his conditional plea of guilty to driving under the influence of intoxicating liquor in violation of N.D.C.C. § 39-08-01. We affirm, concluding the district court did not err in denying Fasteen’s suppression motion, because there was sufficient competent evidence to establish the arresting officer had a reasonable and articulable suspicion Fasteen had violated the law to justify a valid investigative stop.

I

[¶ 2] On November 5, 2006, a law enforcement officer patrolling on Highway 1804 clocked a pickup traveling 39 miles per hour in a 55 mile per hour zone. The officer followed the vehicle which was driven by Fasteen. When Fasteen turned left onto a side road without using his.turn signal, the officer stopped the vehicle. The officer ultimately performed field sobriety tests on Fasteen and then arrested him for driving under the influence. Fasteen was taken to the hospital for a blood alcohol test and was subsequently charged with driving under the influence.

[¶ 3] Fasteen moved to suppress “all the evidence in this matter,” alleging the officer did not have a valid reason to stop his vehicle. The district court denied the motion and Fasteen then entered a conditional guilty plea under N.D.R.Crim.P. 11(a)(2), preserving his right to appeal the district court’s denial of his motion to suppress.

II

[¶ 4] In reviewing a district court’s decision on a motion to suppress evidence, we defer to the district court’s findings of fact and resolve conflicts in favor of affirmance. State v. Demars, 2007 ND 145, ¶ 7, 738 N.W.2d 486. Generally, a district court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the district court’s findings, and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion for a valid investigative stop, are fully reviewable on appeal. State v. Olson, 2007 ND 40, ¶ 7, 729 N.W.2d 132.

[¶ 5] Fasteen asserts the arresting officer did not have a reasonable and articulable suspicion that Fasteen had violated the law to support the officer’s investigative stop of Fasteen’s vehicle. Fasteen asserts his failure to signal a left turn did not, under the circumstances, constitute a violation of the law and did not, therefore, constitute a ground upon which the officer could make a valid investigative stop.

[¶ 6] Unreasonable search and seizures are prohibited by the Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and by Article I, § 8 of the North Dakota Constitution. State v. Seglen, 2005 ND 124, ¶ 6, 700 N.W.2d 702. Warrantless searches are unreasonable unless they fall within a recognized exception to the requirement for a search warrant. Id. at ¶ 7. Under the doctrine announced by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police may, in appropriate circumstances, detain an individual for investigative purposes when there is no probable cause to make an arrest if the police have a reasonable and articulable suspicion that criminal activity is afoot. State v. Torkelsen, 2006 ND 152, ¶ 11, 718 N.W.2d 22. For a valid investigative stop of a vehicle under the Terry doctrine, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. Zimmerman v. North Dakota Dep’t of Transp., 543 N.W.2d 479, 481 (N.D.1996). Probable cause to believe a motorist has violated a traffic law renders the stop reasonable and the evidence obtained from the stop admissible. State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. Even minor traffic violations provide officers with the requisite grounds for conducting investigatory vehicle stops. Id. at ¶ 7.

[¶ 7] The arresting officer in this case made an investigative stop of Fasteen’s vehicle after observing Fasteen make a left-hand turn without signaling. Under N.D.C.C. § 39-10-38:

1. No person may turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety without giving an appropriate signal in the manner hereinafter provided.
2. A signal of intention to turn or move right or left when required must be given continuously during not less than the last one hundred feet [30.48 meters] traveled by the vehicle before turning.

[¶ 8] Interpretation of a statute is a question of law fully renewable on appeal. State v. Jackson, 2005 ND 137, ¶ 8, 701 N.W.2d 887. Our primary goal in statutory construction is to ascertain the intent of the legislature, and we first look to the plain language of the statute and give each word of the statute its ordinary meaning. N.D.C.C. § 1-02-02; Shiek v. North Dakota Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721. When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05. If, however, the statute is ambiguous or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, a court may resort to extrinsic aids, such as legislative history, to interpret the statute. Shiek, 2002 ND 85, ¶ 12, 643 N.W.2d 721. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted. Id.

[¶ 9] Fasteen urges us to interpret N.D.C.C. § 39-10-38(1) to permit a vehicle to turn left or right on a roadway without giving an appropriate signal if the turn can be made safely without signaling. Fasteen’s interpretation would prohibit any right or left turn upon a roadway unless and until the turn could be made safely without giving an appropriate signal. That labored interpretation leads to the result of the statute not authorizing any “signaled” turns. We presume the legislature did not intend such an absurd result.

[¶ 10] While the statute is not a shining example of good draftsmanship, we, nevertheless, conclude the language is sufficiently clear to allow a reasonable interpretation which gives meaning to every word. We construe N.D.C.C. § 39-10-38(1) to mean that no person may turn a vehicle or move right or left upon a roadway without giving an appropriate signal and unless and until such turn or movement can be made with reasonable safety. Under N.D.C.C. § 39-10-38(2), the phrase “when required” refers to the giving of a signal as an intention to turn or move right or left “upon a roadway” as required under subsection (1). Under this interpretation of the statute, prior to executing a right or left turn upon a roadway, a driver must give an appropriate signal and must ascertain that the turn can be made with reasonable safety. This interpretation comports with prior cases in which we have applied N.D.C.C. § 39-10-38 to the particular facts of the case. See Wolf v. Estate of Seright, 1997 ND 240, ¶ 8, 573 N.W.2d 161 (driver has statutory duty to signal an intention to turn and failure to activate signal before passing a car is evidence of negligence); Neset v. North Dakota State Highway Comm’r, 388 N.W.2d 860, 862 n. 1 (N.D.1986) (failure to signal when turning off the roadway is a violation of N.D.C.C. § 39-19-38(1)).

[¶ 11] Here, the arresting officer made an investigative stop of Fasteen’s vehicle after observing Fasteen violate N.D.C.C. § 39-10-38(1) by making a left turn without first giving an appropriate signal. We conclude the officer had the requisite grounds to make a valid investigative stop of Fasteen’s vehicle, because Fasteen had violated the law by failing to signal his turn. We hold the district court’s findings are supported by competent evidence and its decision is not contrary to the manifest weight of the evidence.

Ill

[¶ 12] We affirm the judgment.

[If 13] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


author: YANDE WALLE, Chief Justice.

text:
    2007 ND 159
    STATE of North Dakota, Plaintiff and Appellee v. Rockwell Dean SKARSGARD, Defendant and Appellant.
    No. 20070034.
    Supreme Court of North Dakota.
    Oct. 16, 2007.
    Rehearing Denied Nov. 14, 2007.

      Mark A. Flagstad, Assistant State’s Attorney, Minot, ND, for plaintiff and appel-lee.
    Mark S. Douglas, N.D. Public Defender’s Office, Williston, ND, for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] Rockwell Skarsgard appealed from a criminal judgment and sentence entered after a jury found him guilty of driving under the influence (“DUI”) and driving under suspension (“DUS”). Skars-gard argued criminal judgments on appeal to this Court are not “convictions” for the purpose of sentence enhancement from a DUI to a DUI-5th, a class C felony, nor for the purpose of sentence enhancement from a DUS to a DUS-4th, a class A misdemeanor. We affirm the judgment and sentence of the district court.

I.

[¶ 2] In October 2006, Skarsgard was found guilty by a jury of DUI and DUS. He appealed those criminal judgments to this Court in October 2006. Skarsgard was found guilty by a jury in December 2006 of additional charges of DUI and DUS stemming from another incident. His appeal of the October judgments was pending in this Court at the time of Skars-gard’s trial and sentencing. See State v. Skarsgard (Docket No. 20060304).

[¶ 3] The district court delayed until after trial its determination of whether Skarsgard’s DUI and DUS sentences should be enhanced by the appealed October judgments. If considered by the district court, Skarsgard’s October convictions would be his fourth DUI and third DUS within the statutory time periods, requiring increased DUI and DUS sentences. See N.D.C.C. §§ 39-08-01(4) and 39-06-42(1). After post-trial briefing by both parties, the district court held the October DUI and DUS criminal judgments could be used against Skarsgard. Accordingly, the district court increased Skars-gard’s sentence for the December convictions to a DUI-5th, a class C felony, and a DUS — 4th, a class A misdemeanor. The district court based its decision on legislative history surrounding a 1993 change from the word “conviction” to “offense” in N.D.C.C. § 39-08-01(2), which specifies the penalties for DUI offenses. The district court interpreted the legislative history to indicate an intent to allow use of “offenses” rather than “convictions” to enhance DUI sentences and treated Skars-gard’s October criminal judgments as “offenses.”

II.

[¶ 4] The issue on appeal is whether the district court erred in considering criminal judgments on appeal to this Court for enhancement of a DUI and DUS. Specifically, Skarsgard argues criminal judgments on appeal to this Court are not “convictions” as that term is defined in N.D.C.C. § 39-06-30 and therefore cannot be used. A conviction is defined in N.D.C.C. § 39-06-30 as “a final order or judgment of conviction by the North Dakota supreme court, any lower court having jurisdiction, a tribal court, or a court in another state provided that no appeal is pending and the time for filing a notice of appeal has elapsed.... ” The State argues the district court’s decision was appropriate based on the use of the word “offense” instead of “conviction” in the applicable statute, N.D.C.C. § 39-08-01(2). Skars-gard alternatively argues the term “offense” nevertheless requires a conviction, according to North Dakota statutory and case law.

[¶ 5] “Construction of statutes is a question of law and therefore fully reviewable.” State v. Bachmeier, 2007 ND 42, ¶ 16, 729 N.W.2d 141 (citing State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645). Our primary goal in interpreting statutes is to ascertain the legislature’s intent, and we first look to the statutory language and give that language its plain, ordinary, and commonly understood meaning. State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105 (citations omitted); N.D.C.C. § 1-02-02. Statutes are construed to give meaning and effect to every word, phrase, and sentence. See N.D.C.C. §§ 1-02-02 and 1-02-03; see also State v. Zahn, 2007 ND 2, ¶ 9, 725 N.W.2d 894 (citations omitted). Only if the language of a statute is ambiguous will extrinsic aids be used to ascertain the legislature’s intent. Southeast Cass Water Resource Dist. v. Burlington Northern R. Co., 527 N.W.2d 884, 888 (N.D.1995) (citations omitted).

[¶ 6] We do not need to go beyond the meaning of “offense” in N.D.C.C. §§ 39-08-01(2) or 39-06-42 because it is defined in N.D.C.C. § 12.1-01-04(20). Unless a different meaning plainly is required, an “offense” is defined as “conduct for which a term of imprisonment or a fine is authorized by statute after conviction.” N.D.C.C. § 12.1-01-04(20). While the statute states the definition applies to Title 12.1 of the Code, this Court has held Title 12.1 is an appropriate source to look to in determining definitions used elsewhere in the Code. State v. Benson, 376 N.W.2d 36, 41 (N.D.1985). Furthermore, we have applied Title 12.1 to other sections of the Code when those sections are construed as “penal in nature.” See Snortland v. Crawford, 306 N.W.2d 614, 622 (N.D.1981) (applying Title 12.1 to N.D.C.C. § 16-20-17.3, formerly known as the Corrupt Practices Act). The Court of Appeals of North Dakota has construed N.D.C.C. § 39-08-01 as penal in nature. See State v. Smith, 2005 ND App 5, ¶ 5, 697 N.W.2d 368 (describing N.D.C.C. § 39-08-01 as a penal statute).

[¶ 7] We hold the definition of “offense” in N.D.C.C. § 12.1-01-04(20) applies to N.D.C.C. §§ 39-08-01 and 39-06-42. Title 39 does not provide its own definition of “offense” and there is no expressed intent to use a different definition for N.D.C.C. §§ 39-08-01 or 39-06-42. Skarsgard’s DUI and DUS convictions by a jury trial meet the definition of offense as both driving under the influence and driving under suspension are conduct for which a term of imprisonment or fine is authorized by statute after conviction. The district court correctly considered Skarsgard’s October offenses when it enhanced his DUI to a DUI-5th and enhanced his DUS to a DUS — 4th.

[¶ 8] Skarsgard also argues use of judgments on appeal to this Court for enhancement purposes is inappropriate because the absence of appellate review renders the criminal judgments unreliable. Skarsgard cites this Court’s decision in State v. Orr, 375 N.W.2d 171 (N.D.1985), as the basis for his argument. The Orr case involved a DUI conviction which resulted from an uncounseled guilty plea without evidence of waiver of counsel by the defendant. Id. at 174. We decline to find that the same reliability concerns expressed in Orr exist when a DUI conviction follows a jury trial where the defendant was represented by counsel. We also decline to find a judgment unreliable simply because a defendant has exercised his right to appellate review and a decision by the appellate court has not yet been rendered.

III.

[¶ 9] We affirm the judgment and sentence of the district court.

[¶ 10] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.