author: KAPSNER, Justice.

text:
    2006 ND 111
    Dan CARPENTER, Plaintiff, Appellant and Cross-Appellee v. Mark ROHRER, personally and in his professional capacity doing business as Mark Rohrer, LICSW; Defendant, Appellee and Cross-Appellant and Darveaux, Eaton, & Associates; Dion X. Darveaux, Timothy T. Eaton, and Thomas J. Eick, each in their professional capacities, Defendants and Appellees.
    No. 20050127.
    Supreme Court of North Dakota.
    May 17, 2006.

      Lynn M. Boughey (argued), Boughey Law Firm, Minot, ND, for plaintiff, appellant, and cross-appellee.
    Michael C. Waller (argued), Fleck, Mather & Strutz, Bismarck, ND, for defendant, appellee, and cross-appellant Mark Rohrer.
    Steven A. Storslee (argued), Storslee Law Firm, P.C., Bismarck, ND, for defendants and appellees Darveaux, Eaton, & Associates, Dion X. Darveaux, and Timothy T. Eaton.
    James S. Hill (argued) and Paul R. Sanderson (on brief), Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellee Thomas J. Eick.
   KAPSNER, Justice.

[¶ 1] Dan Carpenter appealed from an amended judgment entered upon a jury verdict awarding him no damages and no costs from the malpractice of social worker Mark Rohrer; a February 10, 2005 judgment in favor of Thomas Eick; and a February 16, 2005 judgment in favor of Darveaux, Eaton, & Associates, Dion Dar-veaux, and Timothy Eaton. Only a partial transcript was filed by Carpenter. Rohrer cross-appealed claiming he was entitled to costs because he was the prevailing party at trial. Rohrer also filed a motion to strike certain information included in Carpenter’s brief on appeal. We affirm the February 10, 2005 and February 16, 2005 judgments, reverse the amended judgment, and remand with instructions to reinstate the February 25, 2005 judgment in favor of Carpenter. We grant Rohrer’s motion to strike. We award costs on appeal in favor of appellees and award an additional $350 in costs in favor of appel-lees as a sanction for Carpenter’s failure to comply with the North Dakota Rules of Appellate Procedure.

I

[¶ 2] Carpenter, a homosexual man with a history of being abused, sought the professional services of Rohrer as a licensed social worker. During therapy sessions, Rohrer would occasionally hug Carpenter and say “love you, man” to him. The parties dispute the exact nature of the hugs and the context in which the words “love you” were used. Rohrer believed the hugs and words “love you” were used in an appropriate manner. Carpenter found Rohrer’s actions inappropriate and sued him for professional malpractice. Carpenter also sued Darveaux, Eaton & Associates (“the association”), psychologists Dion Darveaux and Timothy Eaton, and psychiatrist Thomas Eick. These parties were included under various agency and negligence theories. Rohrer rented office space from the association, and Carpenter believed the association and the individuals in the association should be held liable for the acts of Rohrer. Psychiatrist Eick also treated Rohrer and Carpenter asserted Eick had a duty to supervise Rohrer. The district court judge dismissed all the parties except for Rohrer at the close of plaintiffs case.

[¶ 3] Following a week-long jury trial, a jury found Rohrer to be 30% at fault for Carpenter’s injuries. Carpenter was found to be personally responsible for 20% of his injuries, and other parties or persons not listed were found to be 50% at fault for Carpenter’s injuries. While the jury believed Rohrer to be partially at fault, the jury awarded Carpenter zero dollars for his injuries.

[¶ 4] Carpenter filed this appeal raising the following four main issues: (1) the jury verdict was inconsistent and he should receive a new trial; (2) irregularity in the proceedings — a juror being dismissed for reading a law book — requires a new trial; (3) the district court abused its discretion in refusing to allow a psychologist to testify to a psychiatrist’s standard of care; and (4) the psychologists Dr. Darveaux and Dr. Eaton, the psychiatrist Dr. Eick, and the association, were improperly dismissed under N.D.R.Civ.P. 50. Carpenter argues the dismissal of the association, Dr. Dar-veaux, Dr. Eaton, and Dr. Eick, was improperly granted because an ostensible agency relationship existed between Rohrer and Drs. Darveaux and Eaton, Medicaid rules required Dr. Eick to supervise Rohrer, and the statute of limitations had not run on any party because of the agency relationships and a continuing tort theory.

[¶ 5] Rohrer argues the verdict was consistent and irregularities do not require a new trial. He also cross-appealed arguing that he should be entitled to costs because he was the prevailing party at trial. The association and the individual psychologists and psychiatrist argue they were properly dismissed from the case. Carpenter filed a partial transcript with this Court. All appellees have objected to this incomplete transcript. After Carpenter filed his brief on appeal, Rohrer filed a motion to strike certain information that was included in Carpenter’s brief but was not in the evidence presented to the jury.

II

[¶ 6] Carpenter argues the jury verdict was inconsistent because the special verdict form stated Rohrer was the proximate cause of Carpenter’s damages, but the jury awarded no damages to Carpenter. The relevant portion of the special verdict form states:

3. Was the fault of Mark Rohrer a proximate cause of the plaintiff Dan Carpenter’s damages?
Answer: Yes x No_
9. What amount of money, if any, will fairly compensate plaintiff Dan Carpenter for:
a. Past economic damages $ 0
b. Past non-economic damages $ 0

[¶ 7] Carpenter argues this verdict is inconsistent because the jury found Carpenter had been damaged, but then provided the value of those damages as zero. He claims if the value of his damages was really zero, then he was not really damaged. Rohrer argues the special verdict was not inconsistent. Rohrer believes the jury must have concluded Carpenter failed to prove the amount of his damages by a preponderance of the evidence. Rohrer claims Carpenter did not present any credible evidence on damages and thus this verdict is proper.

[¶ 8] We uphold special jury verdicts whenever possible, setting them aside only if it is shown they were perverse and clearly contrary to the evidence. Fontes v. Dixon, 544 N.W.2d 869, 871 (N.D.1996). We reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable. Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553. The presumption on appeal is that jurors do not intend to return conflicting answers. 75B Am.Jur.2d Trial § 1853 (1992). When a party challenges an award of damages, we generally defer to a jury verdict because damages are in the province of the jury and the matter rests largely in the jury’s sound discretion. Vallejo v. Jamestown College, 244 N.W.2d 753, 759 (N.D. 1976). There is no certain or definite rule by which the amount of damages can be measured, and each case must be determined on its merits. Id.

[¶ 9] Carpenter cites Haley v. Dennis, 2004 ND 96, 679 N.W.2d 263 and Moszer v. Witt, 2001 ND 30, 622 N.W.2d 223, for the proposition that if a jury’s special verdict form provides for monetary damages, but provides that a party is both negligent and not negligent, the verdict form is inconsistent and the case should be remanded for a new trial. But these cases are not dispositive of the issue in this case. The question in this case is whether a jury’s verdict of no amount of monetary damages, when a defendant is found to be the proximate cause of the plaintiffs damages, renders a jury’s verdict inconsistent.

[¶ 10] We addressed an analogous issue in McCommon v. Hennings, 283 N.W.2d 166 (N.D.1979). In McCommon, a jury determined Hennings “was responsible for the accident” between McCom-mon’s car and Henning’s tractor-mower, but awarded damages to McCommon in the “sum of ‘none’ dollars.” Id. at 167. McCommon asserted the jury verdict assessing no damages was contrary to the evidence and requested a new trial. Id. We held that the trial court did not abuse its discretion in denying a new trial on damages. Id. at 170. In affirming the denial of a new trial, we reviewed the testimony on damages and concluded the injuries were “uncertain and based upon opinion” and in such a situation having a court determine the amount of damages “would be an invasion of the jury’s function.” Id. at 169; see also Belinskey v. Hansen, 261 N.W.2d 390, 392 (N.D.1977) (affirming denial of new trial where minor rear-end collision ⅞4⅛ claimed serious injuries and disability resulted in jury finding that other driver negligently caused collision but jury awarded nothing for damages).

[¶ 11] Conversely in Massey-Ferguson Credit Corp. v. Orr, 420 N.W.2d 1 (N.D. 1988), this Court reversed and remanded a special jury verdict form that included the following findings: a security agreement existed between a debtor and a secured creditor; no agreement existed that would waive a deficiency judgment upon repossession of collateral; and a finding of no damages. Id. at 2. The record clearly showed a deficiency of nearly $20,000 existed. Id. We concluded the evidence did not support the verdict and the damages verdict was so inadequate that a reversal was required. Id.

[¶ 12] The common thread in our cases is the adequacy of the evidence of damages. If an award of no monetary damages is completely unsupported by the evidence, as in Orr, a new trial on damages would be proper. But if an award of no damages is supported by the evidentiary record, a perceived inconsistency does not require a reversal. See McCommon, 283 N.W.2d at 170; Belinskey, 261 N.W.2d at 392.

[¶ 13] In this case, Carpenter has not provided us with a transcript of the damages section of the trial. It is thus impossible to determine if the jury determination on damages was unsupported by the evidence. We have often warned that an appellant has the duty to provide this Court with a transcript sufficient to allow “a meaningful and intelligent review of the alleged error.” Sabot v. Fargo Women’s Health Org., Inc., 500 N.W.2d 889, 892 (N.D.1993) (quoting Bye v. Elvick, 336 N.W.2d 106, 109 (N.D.1983)). “An appellant ‘assumes the consequences and the risk for the failure to file a complete transcript.’ ” City of Fargo v. Erickson, 1999 ND 145, ¶ 16, 598 N.W.2d 787 (quoting Sabot, 500 N.W.2d at 892). “If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue.” Sabot, at 892 (quoting Lithun v. DuPaul, 447 N.W.2d 297, 300 (N.D.1989)).

[¶ 14] There was a week-long trial in this case. On appeal, Carpenter furnished this Court with less than 250 pages of the trial transcript. Needless to say, our review is severely hampered on appeal. The limited facts we do have on Carpenter’s damages appear in a district court order stating: “Carpenter testified that money was not important to him .... it appears the Jury took him at his word.” The failure to file a transcript relating to the damages portion of the trial means Carpenter cannot demonstrate the verdict was inconsistent with the evidence. Thus, the lack of an evidentiary record precludes us from determining that the jury verdict requires a new trial.

Ill

[¶ 15] Carpenter claims he should receive a new trial because a juror was dismissed for reading a law book in the hallway during a recess from the trial. Carpenter did include a transcript of the dismissal of the juror. The record shows the district court dismissed the juror on its own motion. The bailiff discussed how this incident happened and apologized, assuring the incident would not happen again. An alternate juror replaced the dismissed juror.

[¶ 16] Carpenter’s attorney did not object, nor has he claimed on appeal that other jurors were aware of this occurrence or adversely influenced by the dismissed juror reading the law book. We have repeatedly declined to address issues raised for the first time on appeal. Chapman v. Chapman, 2004 ND 22, ¶ 7, 673 N.W.2d 920. Carpenter has failed to demonstrate any reversible error from the actions of the district court, and we have similarly found none.

IV

[¶ 17] Carpenter argues the district court abused its discretion in refusing to allow Dr. Stephen Podrygula, a psychologist, to testify about the standard of care owed by Dr. Eick, a psychiatrist, to Carpenter. He claims Dr. Podrygula had the expertise to provide expert opinions relating to other mental health professionals, including psychiatrists. Dr. Podrygula stated in an affidavit that he was competent to testify on the basic counseling issues that were disputed in this case, and the educational differences that differentiate a psychologist from a psychiatrist were not at issue. Dr. Eick asserted that as a psychologist, Dr. Podrygula was not qualified to give expert testimony relating to a psychiatrist. In the district court’s “Order on Motions in Limine,” the court precluded Dr. Podrygula from testifying about all “matters involving medication,” billing for Medicaid/Medicare on behalf of a social worker, and the “standard of care for a psychiatrist through Medicaid rules, regulations, or memorandum.”

[¶ 18] A witness’s qualification to testify as an expert is left to the sound discretion of the trial court and is not reversed on appeal absent an abuse of discretion. Langness v. Fencil Urethane Systems, Inc., 2003 ND 132, ¶ 9, 667 N.W.2d 596. It is incumbent upon a district court to ascertain whether proposed expert testimony is reliable and relevant. Id.

[¶ 19] Dr. Podrygula’s testimony was not provided on appeal. The pretrial limits on Dr. Podrygula’s testimony were within the district court’s discretion. From the record we have, we do not know if Carpenter offered, elicited, or tried to elicit a broader expert opinion from Po-drygula at trial. We do not know if the district court refused to allow Dr. Po-drygula to testify or merely limited his testimony pursuant to the pretrial order. From the exiguous record we have before us, it is impossible to determine what happened below. Thus, we decline to address this issue on appeal.

V

[¶ 20] Carpenter argues psychologists Darveaux and Eaton, psychiatrist Eick, and the association of Darveaux, Eaton & Associates, were improperly dismissed under N.D.R.Civ.P. 50. Carpenter claims judgment as a matter of law was improper because an ostensible agency or partnership relationship existed between Rohrer and the members in the association, Medicaid rules imposed a duty to supervise Rohrer on Dr. Eick, and the statute of limitations had not run on any party because a continuing tort theory applies.

[¶ 21] A district court’s decision to grant a motion, under N.D.R.Civ.P. 50, for judgment as a matter of law is fully reviewable on appeal. Estate of Dion, 2001 ND 53, ¶ 33, 623 N.W.2d 720. In determining if the evidence is sufficient to create an issue of fact, a district court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence supporting the verdict. Case Credit Corp. v. Oppegard’s, Inc., 2005 ND 141, ¶ 5, 701 N.W.2d 891. A judgment as a matter of law is appropriate if the evidence leads to but one conclusion about which there can be no reasonable difference of opinion. Id. It is under this rubric that we review the district court’s decision to dismiss the doctors and the association as a matter of law.

A

[¶ 22] Carpenter claims, under a theory of ostensible agency or ostensible partnership, the association and the individuals in the association, Darveaux and Eaton, should be held liable for the acts of Rohrer.

[¶ 23] Under a theory of ostensible agency, a party must show “the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent, who really is not employed by him.” N.D.C.C. § 3-01-03. An apparent or ostensible agency must rest upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe that the agent has authority to act for and on behalf of the principal. Krank v. A.O. Smith Harvestore Products, Inc., 456 N.W.2d 125, 128 (N.D.1990). Agency is never presumed and, if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence. Hector v. Metro Centers, Inc., 498 N.W.2d 113, 118 (N.D.1993); see also Argabright v. Rodgers, 2003 ND 59, ¶ 6, 659 N.W.2d 369.

[¶ 24] In Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 360 (N.D.1987), we identified the elements of ostensible partnership as follows:

As to third persons, there may be an ‘ostensible partnership’ whereby persons who are not in fact partners may be held liable as such by reason of their conduct if the conduct justifies a third party in believing that the partnership exists and justifies him in relying on that belief in acting to his detriment. But to establish an ostensible partnership, the person claiming the existence of it must prove that the persons to be charged as partners either held themselves out to be partners or knowingly or negligently permitted others to do so. Circumstantial evidence to establish such an ostensible partnership must be inconsistent with any other reasonable hypothesis than the existence of a partnership.

Id. (quoting Schlichenmayer v. Luithle, 221 N.W.2d 77, 82 (N.D.1974)).

[¶ 25] Carpenter does not claim an express partnership or agency relationship existed between Rohrer and the association or its members. To determine whether there was an ostensible agency, we must look to Dr. Darveaux and Dr. Eaton’s actions to decide whether there is clear and convincing evidence that their conduct or communications caused Carpenter to reasonably believe there was an agency relationship. To determine whether there was an ostensible partnership relationship, Carpenter must show Dr. Darveaux and Dr. Eaton either held themselves out to be partners of Rohrer or permitted others to do so.

[¶ 26] Again, our review of this issue is limited by the partial transcript we have before us. Without citation to the record and thus in violation of N.D.RApp.P. 28(b)(6), Carpenter makes certain allegations to support the ostensible agency: the association advertised as a full service mental health group, the association provided billing services to Rohrer, and processed Rohrer’s receipts keeping a portion of those receipts. However, the full evi-dentiary record on these allegations is not before us.

[¶ 27] While no transcript of Carpenter’s testimony was provided to this Court, Carpenter did state in an earlier deposition that he understood Rohrer was an independent social worker and only rented space from the association. In the limited portion of Dr. Darveaux and Dr. Eaton’s testimony that we do have, it is clear that they did not knowingly hold themselves out as partners of Rohrer. From the record before this Court, we cannot determine by clear and convincing evidence that Dr. Darveaux and Dr. Eaton’s actions caused Carpenter to believe there was an agency relationship between Rohrer and the association, or that there was a partnership between Rohrer and the psychologists.

B

[¶ 28] Carpenter argues Dr. Darveaux, Dr. Eaton, Dr. Eick, and the association were improperly dismissed on statute of limitations grounds. Carpenter apparently concedes this case was outside of the statute of limitations period for all individuals except Rohrer. He argues this Court should adopt a continuous treatment tort rule for all medical malpractice cases, and, under agency principals and a continuous tort theory, the acts of Rohrer should be imputed to all other defendants. Thus, he argues the statute of limitations should not be tolled until the latest tort is committed by any individual in a group.

[¶ 29] The continuous treatment doctrine is premised upon an ongoing and continuous relationship between patient and physician. Hoffner v. Johnson, 2003 ND 79, ¶ 31, 660 N.W.2d 909. It is the special trust relationship between patient and physician that may make discovery of a claim difficult and the continuous treatment rule necessary. Id.

Under the “continuous treatment” doctrine, the running of the statute of limitations is tolled when a course of treatment that includes wrongful acts or omissions has run continuously and is related to the original condition or complaint. Stated another way, the statute does not commence running until treatment by the physician or surgeon has terminated, where the treatment is continuing and of such nature as to charge the physician or surgeon with the duty of continuing care and treatment which is essential to recovery until the relationship ceases. However, where the medical services rendered are intermittent, rather than continuous, the statute of limitations under a medical malpractice statute will begin to run from the date of the alleged individual incident of malpractice and not from the date of the last services rendered.

61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 299 (2002).

[¶ 30] We have not adopted the continuous treatment rule in medical malpractice cases, although we have alluded to the rale in several of our past decisions. See, e.g., Hoffner, 2003 ND 79, ¶34, 660 N.W.2d 909; Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶21, 599 N.W.2d 253; Wheeler v. Schmid Lab., Inc., 451 N.W.2d 133, 139 (N.D.1990); Froysland v. Altenburg, 439 N.W.2d.797, 799-801 (N.D.1989).

[¶ 31] In this case, the district court found the summons and complaint were served on Rohrer, Dr. Darveaux, Dr. Eaton, Dr. Eick, and the association on August 30, 2001. There is a two-year statute of limitations in medical malpractice actions under N.D.C.C. § 28-01-18(3). Rohrer treated Carpenter in September 1999; thus, he was inside the limitations period. But Dr. Eick’s last professional visit with Carpenter was on August 27, 1999, outside of the statute of limitations period. There was no treatment with Dr. Eick inside the two-year limitations period. Thus, even if we were to adopt the continuous treatment rule, Carpenter’s claim against Eick would not fall within the rule.

[¶ 32] Dr. Darveaux and Dr. Eaton did not have a doctor-patient relationship with Carpenter and could only be reached through agency principles. Having concluded Carpenter failed to establish the existence of an ostensible agency, we determine the district court did not err in dismissing Dr. Darveaux, Dr. Eaton, or the association as a matter of law. Because the district court had adequate grounds to dismiss the parties under N.D.R.Civ.P. 50, we decline to address Carpenter’s other arguments for being improperly dismissed.

VI

[¶ 33] Rohrer has cross-appealed claiming he should be entitled to costs because he was the prevailing party at trial. The district court initially awarded costs to Carpenter as the prevailing party. Rohrer objected to the award of costs. Subsequently, the district court determined that neither party should be awarded costs as neither party was the prevailing party.

[¶ 34] Determining who is a prevailing party for an award of disbursements under N.D.C.C. § 28-26-06 is a question of law, subject to de novo review, while the question of the amount to be allowed for disbursements and costs is one of fact, subject to an abuse of discretion standard. Nesvig v. Nesvig, 2006 ND 66, ¶ 34, 712 N.W.2d 299. The determination of who is a prevailing party entitled to recover necessary disbursements under N.D.C.C. § 28-26-06 is based upon success on the merits, not damages. Dowhan v. Brockman, 2001 ND 70, ¶ 11, 624 N.W.2d 690 (citing Lemer v. Campbell, 1999 ND 223, ¶9, 602 N.W.2d 686). If opposing litigants each prevail on some issues, there may not be a single prevailing party for whom disbursements may be taxed. Dowhan, at ¶ 11. A prevailing party is one “in whose favor a judgment is rendered, regardless of the amount of damages awarded.” Black’s Law Dictionary 1154 (8th ed.2004).

[¶35] “Generally, the prevailing party to a suit, for the purpose of determining who is entitled to costs, is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue, in other words, the prevailing party is the one in whose favor the decision or verdict is rendered and the judgment entered.” Dowhan v. Brockman, 2001 ND 70, ¶ 11, 624 N.W.2d 690.

[¶ 36] A judgment dated February 25, 2005 was originally rendered in favor of Carpenter against Rohrer for Carpenter’s costs and disbursements in the amount of $2,648.00. An amended judgment vacated the taxation of costs against Rohrer determining that neither Carpenter or Rohrer was the prevailing party. This is contrary to our law. “A prevailing party is one ‘in whose favor a judgment is rendered, regardless of the amount of damages awarded.’” Dowhan, 2001 ND 70, ¶ 11, 624 N.W.2d 690 (citing Black’s Law Dictionary 1145 (7th ed.1999)). The jury verdict found the fault of Rohrer was a proximate cause of Carpenter’s damages. Thus, to be consistent with our past case law, costs should be awarded to Carpenter as the prevailing party because the February 25, 2005 judgment was rendered in his favor.

VII

[¶ 37] Rohrer filed a motion to strike certain information in Carpenter’s brief on appeal. In his motion, Rohrer argues Carpenter’s reference to information that was excluded through a motion in limine and not available to the jury, should not be considered by this Court and that he should be awarded costs for bringing the motion. Carpenter is not appealing the evidentiary ruling which excluded the information.

[¶ 38] We agree with Rohrer that the inclusion of the information in Carpenter’s brief was inappropriate and irrelevant to any issue presented on appeal. But the information included in the brief was referenced in the record below; Rohrer brought a motion in limine explicitly to exclude its introduction to the jury. Information included in the record can be referenced on appeal when it relates to an issue on appeal. Because the information has not been shown to be pertinent to any issue on appeal and because the trial court specifically excluded it from jury consideration, we grant Rohrer’s motion to strike the unnecessary references.

[¶ 39] Further, the stricken information was asserted as fact in Carpenter’s brief, without a citation to the record. The entire fact section of Carpenter’s brief is completely devoid of any citation to the record. Judges are not “obligated to engage in unassisted searches of the record.” Vandeberg v. State, 2003 ND 71, ¶ 7, 660 N.W.2d 568. Rule 28(b)(6), N.D.R.App.P., requires the statement of facts to have appropriate references to the record. Under N.D.RApp.P. 13, this Court has the authority to “take appropriate action against any person failing to perform an act required by rule or court order.” We apply sanctions sparingly, when it is necessary to protect the appellate process from abuse. Schmidt v. Schmidt, 325 N.W.2d 230, 232 (N.D.1982). The determination to impose sanctions for noncompliance with the rules rests with the discretion of this Court. Hurt v. Freeland, 1997 ND 194, ¶ 13, 569 N.W.2d 266. We award appellees $350 in costs as a sanction for non-compliance with the North Dakota Rules of Appellate Procedure.

VIII

[¶ 40] We affirm the February 10, 2005 and February 16, 2005 judgments, reverse the amended judgment, and remand with instructions to reinstate the February 25, 2005 judgment in favor of Carpenter. We grant Rohrer’s motion to strike. We award costs to the appellees for the appeal and further award $350 in additional costs as a sanction against Carpenter.

[¶ 41] GERALD W. VANDE WALLE, C.J., JOHN C. McCLINTOCK, JR., D.J., DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.

[¶ 42] The Honorable JOHN C. McCLINTOCK, JR., D.J., sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2006 ND 110
    Bank Center First, Bismarck, North Dakota, Plaintiff v. R.C. TRANSPORT, LLC, Mandan, ND; and Charlene Spotts, Individually as Personal Guarantor, and Collection Center, Inc., Jeff Swanson d/b/a Black Diamond Transport, State of North Dakota, F-M Forklift, Great West Casualty Co., Frontier Electric, Inc., Pioneer Construction Inc., Job Service North Dakota, Fronteer Personnel Service Inc., Federal Express Revenue Recovery, Brown & Brown of North Dakota Inc., State of ND by Workers Compensation Bureau, Metro Collision Center, Inc., First State Bank of Wilton, Robin Moos, United Accounts, Inc., Burleigh County Tax Equalization, Credit Collections Bureau, Mack & Associates, Inc., Jeff Swanson d/b/a Black Diamond Transport, any and all persons unknown, claiming any estate, lien or encumbrance upon the real estate described in the complaint, Defendants Brad Gebeke, as assignee to the State of North Dakota by Worker’s Compensation Bureau k/n/a Workforce Safety and Insurance, Defendant and Appellant v. David Wisdom and Steve Thilmony, as assignees of Brown & Brown of North Dakota Inc., Appellees.
    No. 20050299.
    Supreme Court of North Dakota.
    May 17, 2006.
    Rehearing Denied July 7, 2006.

      John M. Olson, Bismarck, N.D., for ap-pellees.
    Marnell Ringsak (argued) and Kent M. Morrow (on brief), Severin, Ringsak & Morrow, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Brad Gebeke, as assignee of the State of North Dakota by Workforce Safety and Insurance, appealed from three district court orders stemming from his attempt to redeem foreclosed property. We conclude the court correctly ruled that David Wisdom and Steve Thilmony’s re-demptions were valid and that Gebeke’s last attempt to redeem the property was untimely. We further conclude the court erred in ruling Gebeke was not entitled to be reimbursed for the maintenance costs he paid for the property as a redemption-er. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] In December 2000, R.C. Transport, LLC, and Charlene Spotts executed a promissory note to Bank Center First for $173,200 secured by a mortgage on real property located in Mandan. R.C. Transport defaulted on its payments and Bank Center First obtained a foreclosure judgment on August 28, 2003. Gebeke, who claimed to have a vendor’s lien against the property, waived his right to answer and consented to the bank proceeding with the foreclosure. The bank assigned its interest in the foreclosure judgment to Gebeke and he received a sheriffs certificate to the property after purchasing it for $178,284.05 at the sheriffs sale on November 4, 2003. On October 22, 2004, before the one-year redemption period expired, Gebeke sent the Morton County sheriffs office a letter declaring “the amount a proper redeemer would have to pay by certified check according to my calculations is $215,827.28 (principal, interest, taxes and insurance pursuant to NDCC § 28-24-02).”

[¶ 3] On November 4, 2004, the last day of the redemption period, Wisdom and Thilmony, as assignees of Brown and Brown, Inc., which had a judgment against R.C. Transport and Spotts in Burleigh County, redeemed the property for $190,505.99. On November 15, 2004, Ge-beke filed a motion to vacate the redemption, arguing Wisdom and Thilmony’s redemption was untimely and they had failed to pay the correct amount to redeem. Ge-beke claimed they owed $215,827.83, a figure which included taxes, utilities and other bills paid by Gebeke to protect the premises during the one-year redemption period. The motion was accompanied by Gebeke’s affidavit which, for the first time, detailed the bills he had paid and included copies of the bills and checks. On January 14, 2005, the court denied Gebeke’s motion to vacate Wisdom and Thilmony’s redemption because “the letter from Mr. Ringsak given to the Sheriff prior to the redemption concerning redemption costs did not include adequate itemization and verification of expenses incurred by Brad Gebeke and it is not clear at this time exactly what expenses Gebeke incurred for the period of redemption.” The court, however, granted Gebeke, as a senior redemptioner, an extension of 15 days from the date of the order to redeem the property.

[¶ 4] On January 26, 2005, Gebeke, as assignee of F-M Forklift, which had a Burleigh County judgment against R.C. Transport and Spotts, redeemed the property. On January 28, 2005, Gebeke redeemed the property as an assignee of Collection Center, Inc., which also had a Burleigh County judgment against R.C. Transport and Spotts. In February 2005, Gebeke filed and served the Morton County Sheriff with an affidavit claiming a vendor’s lien against the property in addition to the amounts he claimed for taxes, utilities, and insurance, and asserted the amount required from a judgment creditor who attempted to redeem the property as of February 1, 2005, was $341,466.70, plus interest at $108.52 per day. The affidavit included copies of bills and checks relating to maintenance of the property. On March 18, 2005, Wisdom and Thilmony redeemed the property as assignees of Brown and Brown, Inc., by paying $196,124.15. On April 5, 2005, Gebeke filed a motion to vacate the March 18 redemption, again claiming Wisdom and Thilmony had paid an incorrect amount. On April 28, 2005, the court denied the motion, concluding that “Gebeke was a redemptioner and that Wisdom and Thil-mony paid the correct amount in making their redemption on March 18.”

[¶ 5] On May 6, 2005, Gebeke again redeemed as assignee of Pioneer Construction, Inc., and Great Western Casualty Company, both of which had judgments against R.C. Transport and Spotts. Ge-beke filed an affidavit of maintenance costs with the Morton County Recorder on May 9, 2005, and served the Morton County Sheriff with notice of the costs on May 10, 2005. On May 20, 2005, Wisdom and Thil-mony redeemed as assignees of a Burleigh County judgment in favor of First State Bank of Wilton without paying the maintenance costs. This was the first judgment involved in this litigation that had been docketed in Morton County. In June 2005, Gebeke moved to vacate Wisdom and Thilmony’s May 20 redemption, claiming they “failed to pay interest, superior judgments and additional maintenance costs” he had incurred. On July 20, 2005, the court summarily denied Gebeke’s motion.

[¶ 6] On July 29, 2005, Gebeke, as as-signee of the State of North Dakota by Workforce Safety and Insurance, which had an August 2002 judgment against R.C. Transport and Spotts, attempted to redeem the property. This judgment was docketed in Morton County. On August 4, 2005, Wisdom and Thilmony moved to vacate Gebeke’s July 29 redemption, arguing Gebeke failed to comply with the redemption time requirements under N.D.C.C. ch. 28-24. Gebeke responded with a cross-motion requesting the court to vacate Wisdom and Thilmony’s redemptions of May 20, 2005, and November 4, 2004. Gebeke argued the certificate of redemption for the May 20 redemption was not timely filed with the Morton County Recorder, and the November 4 redemption was invalid because the Brown and Brown, Inc., judgment had not been docketed in Morton County. On August 26, 2005, the court granted Wisdom and Thilmony’s motion to vacate Gebeke’s redemption because it “was not made in a timely fashion.” The court ordered the Morton County Sheriff to issue a sheriffs deed to the property to Wisdom and Thilmony.

[¶ 7] Gebeke appealed to this Court, and we ordered that the case be temporarily remanded to the district court for the limited purpose of ruling on Gebeke’s cross-motion. On September 23, 2005, the court summarily denied Gebeke’s cross-motion. Gebeke appealed from the July 20, 2005; August 26, 2005; and September 23, 2005, orders of the court.

II

[¶ 8] Gebeke argues the district court erred in denying his cross-motion to vacate Wisdom and Thilmony’s redemptions in November 2004 and March 2005 based upon the Burleigh County Brown and Brown, Inc.,‘ judgment because it had not been docketed in Morton County and did not constitute a valid lien on the Mandan property.

[¶ 9] Gebeke relies on N.D.C.C. § 28-20-13, which provides in relevant part:

On filing a judgment roll upon a judgment that directs the payment of money, the clerk of the district court in which the judgment was rendered shall docket the judgment in a separate record to be known as the “judgment docket”. The judgment may be docketed in any other county upon filing with the clerk of the district court of that county a transcript of the original judgment docket. The judgment is a lien on all the real property, except the homestead, of every person against whom the judgment is rendered, which the person may have in any county in which the judgment is docketed at the time of docketing or which the person thereafter acquires in the county, for ten years from the time of docketing the judgment in the county in which it was rendered.

[¶ 10] Under N.D.C.C. § 28-20-13, the filing of a money judgment in a county where the judgment debtor has an interest in real property is a lien on the judgment debtor’s interest in the real property. See Erway v. Deck, 1999 ND 7, ¶ 7, 588 N.W.2d 862. Wisdom and Thilmony concede that a judgment must be docketed in the county where the real property is located to constitute a valid and enforceable lien against the real property, but argue equitable principles require that the re-demptions should nevertheless be treated as valid because the parties proceeded with the numerous redemptions in this case without challenging any of them for failing to be docketed in Morton County.

[¶ 11] In Ackerman v. First-Trust Joint Stock Land Bank, 228 Iowa 275, 291 N.W. 150, 151 (Iowa 1940), the appellants argued that the defendant’s judgment did not constitute a valid lien against their property because it covered their homestead, and therefore, the defendant was not entitled to redeem from the sheriffs sale and acquired no right, title, or interest in the property through the redemption. The Iowa Supreme Court rejected the appellants’ argument:

Assuming the truth of appellants’ contention that defendant did not have a right to redeem, we hold that he is entitled to a sheriffs deed to the land as an equitable assignee. Defendant clearly thought he had a right to redeem from the sale and attempted to make a statutory redemption. The bank accepted the money that the defendant paid into the clerk’s office and surrendered the certificate to the clerk, assigning it to the defendant. As between the bank and defendant, the redemption was accomplished.

Id. at 152. See also D.S.B. Johnston Land Co. v. Mitchell, 29 N.D. 510, 525-26, 151 N.W. 23, 27 (1915) (a purchaser at a void foreclosure sale is deemed an equitable assignee of the mortgage attempted to be foreclosed, and where he takes possession of the premises with the mortgagor’s consent, the only remedy of the mortgagor or his assignee is an action in equity to redeem, and unless this remedy is timely invoked, the purchaser in possession acquires full legal title); Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792 (1906) (same).

[¶ 12] Gebeke argues Wisdom and Thilmony’s November 2004 and March 2005 redemptions should have been vacated because they failed to properly docket their judgments in Morton County and obtain judgment liens. This argument ignores that Gebeke attempted to redeem on January 26th, January 28th and May 6, 2005 with judgments not docketed in Morton County. Of the seven redemptions made by the parties, only two were made on judgments that had been docketed in Morton County. The record shows the parties treated all redemptions as not being invalid for failure to docket the judgments in Morton County. Gebeke did not raise the issue in any of the earlier proceedings in this case, and raised the issue only after Wisdom and Thilmony redeemed on May 20, 2005, with the first judgment that had been docketed in Morton County.

[¶ 13] Though chapter 28-24, N.D.C.C., requires a redemptioner to have a judgment lien in order to redeem, Gebeke cannot now rely on this factor to invalidate Wisdom and Thilmony’s redemptions. Ge-beke acquiesced to, and in fact initiated, this improper redemption procedure. His acquiescence precludes him from now objecting. Bormann v. Beckman, 73 N.D. 720, 730, 19 N.W.2d 455, 460 (1945); N.D.C.C. § 31-11-05(7). We conclude that Wisdom and Thilmony’s redemption in November 2004 and March 2005 from judgments which had not been docketed in Morton County did not, as between the parties, invalidate those redemptions or any of the redemptions that followed.

Ill

[¶ 14] Gebeke argues the district court erred in ruling his July 29, 2005, redemption was untimely.

[¶ 15] Successive redemptions are governed by N.D.C.C. § 28-24-04, which provides:

If property is redeemed by a redemp-tioner, another redemptioner, even after the expiration of one year from the day of sale, may redeem from the last redemption if the redemption is made within sixty days after such last redemption. This sixty-day limitation does not apply to any redemption made within one year after the sale by whomsoever or from whomsoever such redemption is made, but all persons entitled to redeem in all cases have the entire period of one year from the day of sale in which to redeem. The property, as often as a redemptioner is so disposed, may be redeemed again from any previous re-demptioner within sixty days after the last redemption.

Under the statute, a redemptioner is given 60 days since the last preceding redemption, or one year from the date of sale, whichever is longer, when redeeming from another redemptioner. See State ex rel. Brooks v. O’Conner, 6 N.D. 285, 288, 69 N.W. 692, 693 (1896). The right of redemption from a mortgage foreclosure sale is statutory and can be exercised only within the period of time and in the manner prescribed by law. Stevahn v. Meidinger, 79 N.D. 323, 348, 57 N.W.2d 1, 17 (1952) (on petition for rehearing).

[¶ 16] Gebeke argues his July 29, 2005, redemption was timely because Wisdom and Thilmony’s previous redemption did not occur until June 8, 2005, when they were issued a sheriffs certificate of redemption. Wisdom and Thilmony argue their redemption occurred on May 20, 2005, when they filed the redemption papers with the county recorder and the sheriff.

[¶ 17] Redemptions by redemptioners are governed by N.D.C.C. § 28-24-03, which requires a written notice of redemption:

A redemptioner making redemption shall give a written notice of redemption to the sheriff and shall record a duplicate in the office of the recorder of the county where the land is situated. The redemptioner shall state in the notice of redemption an amount that the redemp-tioner will credit on the claim against the debtor on making redemption. If the amount stated in the notice is less than the amount of the lien under which the redemptioner makes redemption, a later redemptioner may redeem from the earlier redemptioner by paying the amount paid by that redemptioner, together with the amount of any taxes, assessments, utilities, or other items paid by that redemptioner in protection of the title or premises, and interest at the same rate as provided in the original instrument on which the judgment is based, together with the amount stated by the first redemptioner in the notice. The amount stated by a redemptioner in the notice must be treated as a payment of that amount on the indebtedness, and the redemptioner shall immediately endorse that on the evidence of the claim. If the claim is a judgment, the redemp-tioner shall cause a statement of that amount to be entered by the clerk of court in the judgment docket. That credit is deemed conditional only and must be canceled on proof of a further redemption by the debtor or by a re-demptioner having a prior right, without payment of the amount credited.

[¶ 18] The paperwork required to be produced by a redemptioner is set forth by N.D.C.C. § 28-24-05, which provides:

A redemptioner shall produce to the officer or person from whom the redemp-tioner seeks to redeem and shall serve with the redemptioner’s notice to the sheriff:
1.A copy of the docket of the judgment under which the redemptioner claims the right to redeem, certified by the clerk of the district court of the county where the judgment is docketed, or, if the redemptioner redeems upon a mortgage or other lien, a note of the record thereof certified by the recorder;
2. A copy of the assignment necessary to establish the redemptioner’s claim, verified by the affidavit of the redemptioner or of a subscribing witness thereto; and
3. An affidavit by the redemptioner or the redemptioner’s agent showing the amount then actually due on the lien.

[¶ 19] Gebeke has cited no authority for his assertion that the 60-day limit under N.D.C.C. § 28-24-04 begins to run only after the sheriff issues a certificate of redemption. Indeed, although there is reference in our prior caselaw to issuance of a certificate of redemption by a sheriff, there is no statutory reference in N.D.C.C. ch. 28-24 to execution of a certificate of redemption by a sheriff upon a redemption by a redemptioner. Moreover, this Court has indicated the 60-day limit begins to run when the written notice of redemption is filed with the office of the county recorder. In Bank of Steele v. Lang, 399 N.W.2d 293, 297 (N.D.1987), this Court quoted with approval from Fox v. Nelson, 30 N.D. 589, 594-95, 153 N.W. 395, 397 (1915), and its analysis of the predecessor statute to N.D.C.C. § 28-24-03:

“ ‘The notice to be filed by a redemp-tioner,’ says the Supreme Court of South Dakota, in construing a similar statute, .‘is for the benefit of the person filing it, as its filing is the beginning of the brief period of limitations, of which he may take advantage, as against other redemptioners. But under this statute the redemption and the filing of the notice of redemption are distinct acts. As against the person from whom the redemption is made, no notice is necessary. The notice is only operative and necessary as against other redemption-ers, and their right to redeem can be barred only by filing the notice of redemption, as required by the statute. The failure to file the notice of redemption does not render the redemption itself irregular or illegal. It merely leaves the rights of other redemptioners unaffected. It does not extend the limitations of 60 days, because that period begins only when the notice is filed.’ Spademan v. Gross, 25 S.D. 244, 126 N.W. 389.

(Emphasis added).

[¶ 20] The record reflects that Wisdom and Thilmony filed the notice of redemption with the county recorder on May 20, 2005. This filing commenced the 60-day period for others to redeem. The date the sheriff issued a certificate of redemption did not extend the 60-day period. Because Gebeke’s subsequent redemption on July 29, 2005, was more than 60 days after May 20, 2005, we conclude the district court correctly ruled Gebeke’s redemption was untimely.

IV

[¶ 21] Gebeke argues the district court erred in failing to require Wisdom and Thilmony to reimburse him for the taxes, assessments, utilities, and insurance premiums he paid for maintenance of the property.

[¶ 22] The “redemption statutes are remedial in nature and are intended not only for the benefit of creditors holding liens subsequent to the lien being foreclosed, but are also for the purpose of making the property of the debtor pay as many of his debts as it can be made to pay and to prevent its sacrifice.” Mehlhoff v. Pioneer State Bank, 124 N.W.2d 401, 407 (N.D.1963) (on petition for rehearing). Redemptions are encouraged, id., and in order to redeem, the redemptioner “need pay only the purchase price with interest, plus amounts which have been paid to protect the premises.” Lang v. Bank of Steele, 415 N.W.2d 787, 791 (N.D.1987); see also N.D.C.C. § 28-24-02 (“redemp-tioner may redeem the property from the purchaser by paying the purchaser the amount of the purchase with interest at the rate provided in the original instrument on which the judgment is based, plus the amount of any insurance premiums, assessments, taxes, utilities, or other items paid by the purchaser in protection of the title or the premises, which the purchaser may have paid after the purchase, and interest at the same rate on that amount”); N.D.C.C. § 28-24-03 (“a later redemption-er may redeem from the earlier redemp-tioner by paying the amount paid by that redemptioner, together with the amount of any taxes, assessments, utilities, or other items paid by that redemptioner in protection of the title or premises”).

[¶ 23] The procedure for claiming amounts paid for protection of the premises is detailed in N.D.C.C. §§ 28-24-07, 28-24-08, and 28-24-10, which provide:

28-24-07. Protection of premises during period of redemption. In all cases where a sale of real estate is made under execution or upon mortgage foreclosure, the purchaser at the sale or the purchaser’s successors in interest, in case of the expiration during the period of redemption of any insurance policy on the premises sold, may pay the premium necessary to procure a renewal of that policy, and, if any taxes or assessments become delinquent, or if any installment of interest or principal on any prior or superior mortgage becomes due during that period of redemption, and any utilities or other items to be paid by the purchaser in protection of the title or premises, the purchaser may pay those charges. The amount so paid, with interest at the same rate as provided in the original instrument on which the judgment is based, is part of the sum necessary to be paid for the redemption from the sale. The payments may be proved by a written notice verified by affidavit of the purchaser, the purchaser’s agent or attorney, stating the items and describing the premises. That notice may be recorded in the office of the recorder and a copy of the notice served on the sheriff of the county. After that service the sheriff, before permitting a redemption, shall collect the full amount specified in the notice in addition to the amount which would otherwise be due in redemption from the sale, and shall pay over that amount to the purchaser at the sale, or the purchaser’s assignee.
28-24-08. Protection of debtor. In case any mortgagor, redemptioner, or judgment debtor objects to the payment of any insurance premium, taxes, or pri- or liens on account of the incorrectness or invalidity thereof, he may file with the sheriff an indemnity bond, in an amount and with sureties to be approved by the judge of the district court, and thereupon the sheriff shall permit redemption to be made without the payment of such insurance premiums, taxes, or prior liens so excepted to, and the purchaser may determine the correctness or validity thereof and may collect the same by an action directly upon such bond, which action must be brought within one year next following such redemption.
28-24-10. Notice of additional lien. If any taxes, assessments, insurance premiums, utility charges, or other items are paid by the purchaser or by a redemptioner, or if the purchaser or re-demptioner has or acquires any lien other than that on which the sale or redemption was made, written notice of that item must be given to the sheriff and if that notice is not given to the sheriff, the property may be redeemed without paying that tax, assessment, lien, utility, or other item.

Under the predecessors to these statutes, this Court has held that “where a prior redemptioner or purchaser has paid taxes since the foreclosure of the mortgage, such redemptioner, in case of an attempted redemption from him, is entitled to the payment, not merely of the principal debt, but of the taxes also, and the issuance of a certificate by the sheriff without such payment and without the knowledge of and ratification by the said prior redemptioner will not be binding upon him.” Heitsch v. Minneapolis Threshing Mach. Co., 29 N.D. 94, 150 N.W. 457 Syll. 2 (1914).

[¶ 24] Gebeke argues these statutes entitled him to be reimbursed at this time for all of the taxes and other expenses he paid as the original purchaser and as a subsequent redemptioner. However, the statutory scheme does not support his claim regarding expenses paid as the original purchaser at the sheriffs sale. First, Gebeke’s October 22, 2004, letter to the Morton County sheriffs office did not comply with the written notice requirements of N.D.C.C. § 28-24-07, as the district court ruled in its unappealed January 14, 2005, order. Second, N.D.C.C. § 28-24-10 specifically provides that written notice of those expenses “must be given to the sheriff and if that notice is not given to the sheriff, the property may be redeemed without paying that tax, assessment, lien, utility, or other item.” Obviously, a legally sufficient written notice must be given to the sheriff in a timely manner before the redemption period expires and a redemption occurs, because the property may be redeemed without paying those expenses if no written notice is given. See generally Heitsch, 29 N.D. at 109-10, 150 N.W. at 458-59. We conclude Gebeke’s legally insufficient written notice of expenses to the sheriff before Wisdom and Thilmony redeemed the property on November 4, 2004, allowed them to redeem thé property without paying those expenses incurred by Gebeke prior to November 4, 2004.

[¶ 25] Gebeke argues that Wisdom and Thiimony are not entitled to a sheriffs deed to the property because they did not comply with N.D.C.C. § 28-24-08 by filing an indemnity bond with the sheriff when they disagreed with and refused to pay maintenance costs outlined in his February and May 2005 affidavits filed and served upon the sheriff. Words used in a statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, N.D.C.C. § 1-02-02, and 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. Section 28-24-08, N.D.C.C. allows “any mortgagor, redemptioner, or judgment debtor” to object to payment of “any insurance premium, taxes, or prior liens” and to file an indemnity bond with the sheriff in order to redeem without paying those charges. If a mortgagor, redemp-tioner, or judgment debtor files the bond without paying the additional charges, the “purchaser” may bring an action to determine the validity of the charges. For purposes of N.D.C.C. ch. 28-24, the terms “purchaser” ■ and “redemptioner” are not synonymous. See N.D.C.C. § 28-24-01(2) (defining “redemptioners” as “[a] creditor having a lien by judgment, mortgage, or otherwise on the property sold, or on some share or part thereof, subsequent to that on which the property was sold”); N.D.C.C. § 28-24-02 (“judgment debtor or redemptioner may redeem the property from the purchaser”); N.D.C.C. § 28-24-09 (payments upon redemption may be made “to the purchaser or redemptioner”); N.D.C.C. § 28-24-10 (if charges are paid “by the purchaser or by a redemptioner”); N.D.C.C. § 28-24-13 (“purchaser” or “re-demptioner” entitled to sheriffs deed). The term “purchaser” refers to the purchaser at a sheriffs sale following foreclosure, and N.D.C.C. § 28-24-08 applies only to the first redemption made to the purchaser at the sale. See generally Whitbeck v. McClenahan, 40 S.D. 246, 167 N.W. 144 (1918) (similar statute applied to redemptioner redeeming from purchaser at foreclosure sale impaired obligation of contract).

[¶ 26] Gebeke was the purchaser in this case, and after Wisdom and Thiimony redeemed in November 2004, Gebeke did not retain his status as a purchaser, but became a redemptioner through his assignments from judgment creditors. See N.D.C.C. § 28-24-01(2) and 28-24-04. The indemnity bond requirement does not apply in the case of successive redemp-tions by redemptioners. Although Wisdom and Thiimony did not file an indemnity bond with the sheriff when redeeming the property in November 2004, we have concluded Gebeke’s October 22, 2004, notice of expenses was legally insufficient, and therefore, the failure to file the indemnity bond at that time is inconsequential. We conclude Wisdom and Thiimony were not required to file an indemnity bond with the sheriff in connection with their March 18, 2005, and May 20, 2005, redemptions.

[¶ 27] The district court, however, denied without explanation Gebeke’s request for expenses he incurred protecting the property as a redemptioner after Wisdom and Thilmony’s initial redemption on November 4, 2004. The record shows Gebeke, on February 2, 2005, served the Morton County Sheriff with an affidavit listing expenses he had incurred for the property through February 1, 2005, and on May 9 and 10, 2005, filed an affidavit of maintenance costs through May 5, 2005, with the Morton County Recorder and served the sheriff with notice of those costs. Although the affidavit summaries of the various costs included amounts dating back to November 4, 2003, through November 4, 2004, which Gebeke was no longer entitled to receive, the copies of bills and checks accompanying the affidavits permits an assessment of allowable costs Gebeke incurred for protection of the premises while he was a redemptioner. The court summarily denied his request for reimbursement without any explanation. We conclude that, under N.D.C.C. §§ 28-24-03 and 28-24-10, Gebeke is entitled to reimbursement of allowable costs he incurred in protecting the property as a redemptioner after November 4, 2004.

V

[¶28] We have considered the other issues raised by the parties and deem them to be without merit or unnecessary to address in view of our disposition of this case. We affirm the August 26, 2005, and September 23, 2005, orders of the court. We reverse the July 20, 2005, order of the court and remand for a determination of the amount of reimbursement to which Gebeke is entitled as a redemptioner for expenses to protect the property. Wisdom and Thilmony are not entitled to a sheriffs deed to the property until that determination is made.

[¶ 29] DONOVAN FOUGHTY, D.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

[¶ 30] The Honorable DONOVAN FOUGHTY, D.J., sitting in place of SANDSTROM, J., disqualified.


text:
    2006 ND 114
    Tracy GUST, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050381.
    Supreme Court of North Dakota.
    June 1, 2006.

      Wayne D. Goter, Bismarck, ND, for petitioner and appellant.
    Cynthia M. Feland, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Tracy Gust appeals from an order denying his application for post-conviction relief in which he sought credit for 203 days as time served rather than the 9 days of time served that was credited on his criminal judgment. We affirm.

I

[¶2] On May 18, 2004, Gust was arrested for possession with intent to manufacture methamphetamine and possession of drug paraphernalia. At the time of his arrest, Gust was on parole from an earlier offense. On May 19, 2004, Gust made his initial appearance. Bond for pretrial release was set at $10,000.00. Gust did not post bond and remained in custody. Gust had his parole on the earlier offense revoked on May 27, 2004, and began serving time for his parole revocation.

[¶ 3] On December 9, 2004, Gust pled guilty to possession with intent to manufacture methamphetamine and possession of drug paraphernalia and was sentenced to a mandatory minimum of five years in prison. The criminal judgment gave Gust credit for 9 days as time served from the period between his arrest on May 18, 2004, until his parole revocation on May 27, 2004.

[¶ 4] On May 6, 2005, Gust filed an application for post-conviction relief arguing he should be entitled to credit for time served in the amount of 203 days and that he received ineffective assistance of counsel because his attorney did not request credit for time served. A hearing was held on August 31, 2005. Gust withdrew his claim for ineffective assistance of counsel, but continued in his request to receive credit for 203 days as time served. Gust testified he had “always presumed” he would receive credit on his current charge from the date of his arrest on May 18, 2004, to sentencing. The court denied Gust credit for the additional days concluding the time being served between the revocation of Gust’s parole and the date of his sentence applied to separate, earlier charges. Gust appeals, arguing the district court erred in calculating the number of days he should be credited. The State argues Gust failed to affirmatively establish he was entitled to relief.

II

[¶ 5] A defendant has the burden to affirmatively show he is entitled to additional credit for time served in custody. Cue v. State, 2003 ND 97, ¶ 12, 663 N.W.2d 637. Under our statute, a criminal defendant must be credited for time served in custody. State v. Sckrum, 2006 ND 18, ¶ 5, 709 N.W.2d 348. But a defendant is not to be credited for time spent in custody for a wholly unrelated charge. Id. (citing State v. Trudeau, 487 N.W.2d 11, 14 (N.D.1992)).

[¶ 6] Section 12.1-32-02(2), N.D.C.C., provides:

Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed or as a result of the conduct on which such charge was based. “Time spent in custody” includes time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal.

[¶ 7] For purposes of crediting time spent in custody, our statute unambiguously refers to “conduct on which such charge was based.” N.D.C.C. § 12.1-82-02(2). “[S]uch charge” refers to the “charge for which the sentence was imposed.” Id. Thus, it is inappropriate to receive credit on a sentence following a probation revocation relating to an earlier criminal conviction and receive additional credit for a separate criminal offense because the two charges are for separate conduct. State v. Eugene, 340 N.W.2d 18, 35 (N.D.1983).

[¶ 8] This case is governed by Eugene. In' Eugene, a defendant was arrested for burglary on July 11, 1982, released on bond the following day, and had his suspended sentence for an earlier conviction of stolen property and negligent homicide revoked on August 23, 1982. Id. He remained in custody from August 23, 1982, until February 23, 1983, when Eugene was sentenced to four years imprisonment for his burglary charge. Id. He received credit for time served of one day on his burglary charge for the time he was incarcerated before he was released on bond. Id. Eugene argued his burglary sentence should include credit for time served for the entire time of his pre-sentence incarceration. ‘ Id. We rejected his argument because only one day of his incarceration was a “direct result of the burglary charge.” Id. The remaining incarceration was for his probation revocation. Id.

[¶ 9] Applying the logic of Eugene to this case, credit for time served is required for the 9 days from May 18, 2004 until May 27, 2004 that Gust was incarcerated before his parole was revoked. The court correctly gave Gust credit for this time. But from May 27, 2004 until December 9, 2004, Gust was in custody for his parole revocation. To grant Gust credit for time served in both cases would constitute double credit. We have held — in the context of consecutive sentences — double credit should not be allowed. State v. Arcand, 403 N.W.2d 23, 24 (N.D.1987) (holding in context of consecutive sentences that jail credit should only be applied to the first consecutive sentence, because to do otherwise would constitute double credit).

[¶ 10] Gust argues our recent holding in State v. Schrum, 2006 ND 18, 709 N.W.2d 348, alters our past caselaw and the outcome in this case. We disagree. Schrum did not change the legal landscape for calculating time served in custody; rather, Schrum dealt with the narrow issue of a clearly erroneous calculation of credit. Id. at ¶ 6. Schrum involved credit for custody regarding charges of attempted robbery and felonious restraint. Id. at ¶ 2. While the State argued Schrum was incarcerated on earlier charges, we did not base our holding on the State’s argument. Id. at ¶ 5. Instead, we held the incarceration records supported Schrum’s calculation of the time spent and his calculation of which charges such time related to. Id. at ¶ 6. Schrum met his burden of showing entitlement to additional credit. In Schrum, the record did not show his time spent in custody was credited toward an unrelated charge. See, e.g., State v. Trudeau, 487 N.W.2d 11, 15 (N.D.1992) (when time spent in custody is credited toward an unrelated charge, a defendant is not entitled to credit in another sentence); State v. Sorensen, 482 N.W.2d 596, 599 (N.D.1992) (same).

Ill

[¶ 11] We affirm the district court’s order denying Gust credit for an additional 203 days of time served.

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


text:
    2006 ND 115
    LeRoy K. WHEELER, Petitioner v. Tim SCHUETZLE, Warden of North Dakota State Penitentiary, Leann K. Bertsch, Director of Department of Corrections & Rehabilitation, and Wayne K. Stenehjem, Attorney General, Respondents.
    No. 20060074.
    Supreme Court of North Dakota.
    June 1, 2006.

      LeRoy K. Wheeler, pro se, Bismarck, ND.
    Ken R. Sorenson,. Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondents.
   VANDE WALLE, Chief Justice.

[¶ 1] LeRoy Wheeler, an inmate at the North Dakota State Penitentiary (Penitentiary) seeks a writ of prohibition from this Court prohibiting the Penitentiary from enforcing a North Dakota statute which Wheeler argues is unconstitutional, prohibiting the Penitentiary from requiring indigent inmates to pay postage and copying costs for legal documents, and prohibiting the Penitentiary from requiring Wheeler to give the Penitentiary his legal documents for one week when he asks to have copies made. We decline to exercise our original jurisdiction to issue a writ of prohibition and deny the requested writ.

I

[¶ 2] Wheeler is serving a life sentence, with opportunity for parole, at the Penitentiary after being convicted of the class A felony of gross sexual imposition and sentenced as a habitual offender. Wheeler entered the Penitentiary in August of 2005. Later that month, multi-disciplinary staff recommended Wheeler undergo an evaluation for the sex offender treatment program, an anger-batterers assessment, and an addiction-severity index assessment. Wheeler refused to participate in the evaluations. After an adjustment committee recommendation to stop Wheeler’s performance-based sentence reduction, Wheeler is no longer able to earn performance-based sentence reduction time under N.D.C.C. § 12-54.1-01(1) because he refused to participate in the evaluations. Wheeler maintains he refused to participate in the evaluations because the evaluations and subsequent treatment programs would require him to admit guilt to the offense for which he was convicted after he pled not guilty at trial, maintains his innocence, and is in the process of appealing his convictions.

II

[¶ 3] Article VI, Section 2 of the North Dakota Constitution provides in part that the Supreme Court “shall be the highest court of the state. It shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction.” Our case law, since Statehood, has carefully set forth the rare circumstances in which we exercise our original, as contrasted with our appellate, jurisdiction. See Thomas J. Burke, The Prerogative Jurisdiction of the Supreme Court, 82 N.D.L.Rev. 199 (1956).

[¶ 4] “A writ of prohibition is an extraordinary remedy to prevent an inferi- or body or tribunal from acting without or in excess of jurisdiction when there is not a plain, speedy, and adequate remedy in the ordinary course of law.” Old Broadway Corp. v. Baches, 450 N.W.2d 734, 736 (N.D.1990). “The decision whether to grant the writ is discretionary with the court to which the application is made.” Schneider v. Seaworth, 376 N.W.2d 49, 51 (N.D.1985). “The writ is to be employed ‘sparingly and only in cases where there is no adequate remedy by appeal or otherwise, or where other equitable principles justify the use of the extraordinary writ of prohibition.’ ” Id. This Court has stated “application for a writ of prohibition is an appropriate method of attacking the constitutionality of a statute and that it ‘can provide a convenient way of reaching the constitutional question without the expense and delay of a full trial.’ ” Id. “Nonetheless, the writ remains an extraordinary remedy whose use, especially in regard to criminal prosecutions, is not always favored.” Id.

[¶ 5] This is not an appeal of the denial of a writ of prohibition by a district court. See, e.g., Schneider v. Seaworth, 376 N.W.2d 49 (N.D.1985). Rather, Wheeler asks us to exercise our original jurisdiction by seeking a writ of prohibition directly from this Court rather than a district court. Wheeler did not apply for a writ of prohibition from a district court, but rather, applied directly to this Court asking us to exercise our original jurisdiction to issue the requested writ.

[¶ 6] It is well settled that our original jurisdiction “will not be exercised to vindicate private rights regardless of their importance.” State ex rel. Conrad v. Banger, 68 N.D. 167, 173, 277 N.W. 504, 507 (1937). The Supreme Court’s original jurisdiction “is reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises or the liberties of its people.” Id. Our original jurisdiction will not be exercised unless the interests of the state are directly affected. Id. at 507-08. An application for the issuance of original writs by this Court cannot be based only on private rights. Id. at 508. The rights of the public, the sovereignty of the state, or the liberties of its people must be affected before original jurisdiction will be exercised. Id.

[¶ 7] In declining to exercise our original jurisdiction on behalf of taxpayers seeking to compel the State Board of Equalization to take action we stated not only must the right be public, but the sovereignty of the state or the liberties of its people must also be affected. State ex rel. Conrad v. Langer, 68 N.D. 167, 277 N.W. 504 (1937). We also declined to exercise our jurisdiction in a lawsuit brought by taxpayers seeking to enjoin the action of a county government because “the case affected only the local concerns of the county and its taxpayers and was not within the class of cases in which [we] would assume original jurisdiction.” State ex rel. Amerada Petroleum Corp. v. N.D., 79 N.W.2d 297, 299 (N.D.1956) (discussing State v. Nelson Cty., 1 N.D. 88, 45 N.W. 33 (1890)). Finally, we declined to exercise our original jurisdiction where petitioners sought a writ of prohibition to prohibit the Public Service Commission from carrying out an order of the Commission because the petitioners’ private rights did not involve the public, the sovereignty of the state, or the liberties of its people. State ex rel. Amerada Petroleum Corp. v. N.D., 79 N.W.2d 297 (N.D.1956).

[¶ 8] Procedurally, the title “State ex rel.,” reflects that the application requesting the Supreme Court to exercise its original jurisdiction is reserved to the State itself and is used only to vindicate or protect its rights and prerogatives or the liberties of its people. The application for a writ addressed to the original jurisdiction of the Supreme Court must always be brought in the name of the State. Burke, 32 N.D.L.Rev. 199, 202 (1956). Furthermore, a private relator must set forth in his petition that he has called the alleged infringement upon the sovereignty of the State to the attention of the Attorney General and requested the Attorney General to institute an original proceeding but that the Attorney General has refused to do so or has unreasonably delayed doing so. Id. Wheeler has neither brought his application in the name of the State nor is it apparent on this record that he requested the Attorney General to do so. However, we do not refuse to exercise our jurisdiction solely on these procedural grounds.

[¶ 9] Wheeler’s application for a writ of prohibition addresses his right to earn good-time sentence reduction credits, his right to postage and copying costs necessary to access the courts, and his privacy rights in legal documents. Wheeler seeks to vindicate private rights. Wheeler’s grievances do not involve the public, the sovereignty of the state, nor the liberties of the. people. Wflieeler’s petition is based only on private rights and does not directly affect the state’s interests. We decline to exercise our original jurisdiction to issue a writ of prohibition and thereby deny the requested writ.

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


author: SANDSTROM, Justice.

text:
    2006 ND 122
    Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20060010.
    Supreme Court of North Dakota.
    June 1, 2006.

      Robert L. Johnson, pro se, Jamestown, N.D., petitioner and appellant; submitted on brief.
    Frederick R. Fremgen, State’s Attorney, Jamestown, N.D., for respondent and appellee; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Robert Johnson appeals a district court judgment dismissing his application for post-conviction relief, denying his motion to amend his application for post-conviction relief, and denying his request for appointment of counsel. In his application, Johnson claims his trial attorney’s representation was ineffective. He also seeks to amend his application to add a claim that his guilty plea was not entered intelligently, knowingly, and voluntarily. Johnson argues the district court erred when it granted the State’s motion to amend its response to add the affirmative defense of laches. Holding that the doctrine of laches may be used as a defense in post-conviction proceedings and that Johnson was not denied effective assistance of counsel, we affirm.

I

[¶ 2] In 1996, Johnson pled guilty to. endangering by fire. His plea was entered after the North Dakota State Hospital conducted a forensic evaluation finding that Johnson “did not lack the substantial capacity to comprehend the harmful nature or consequences of [his] conduct” and that he was fit to proceed in the case.

[¶ 3] In June 2005, Johnson applied for post-conviction relief. He argued, among other things, his counsel’s representation was ineffective because the attorney did not request a second, independent mental evaluation. Johnson also requested a lawyer be appointed to represent him. The State moved to summarily dismiss the petition, arguing Johnson presented no genuine issues of fact in the case. The district court granted the State’s motion before Johnson had an opportunity to respond. On appeal, this Court reversed in part, ordering Johnson be given an opportunity to respond to the State’s motion. Johnson v. State, 2005 ND 188, 705 N.W.2d 830.

[¶ 4] On remand, Johnson responded to the State’s motion for summary dismissal. He also renewed his request for counsel and moved to amend his petition for post-conviction relief. In his motion to amend his petition, Johnson wished to abandon his previous grounds for relief, except ineffective assistance of counsel, and to add a claim that his guilty plea was not made intelligently, knowingly, and voluntarily, as a result of mental incompetence, and was therefore invalid. The State resisted these motions, arguing that an appointment of counsel was not necessary because his petition had no merit and that the motion to amend was untimely. The State also moved to amend its response to Johnson’s petition, claiming laches as a defense to Johnson’s petition. The district court granted the State’s request to amend its response. The district court dismissed Johnson’s petition for post-conviction relief, denied his motion to amend his petition, and denied his request for counsel.

[¶ 5] On appeal, Johnson argues the district court abused its discretion when it dismissed his motion to amend his petition, contending laches does not apply to petitions for post-conviction relief, and the district court erred when it denied his petition for post-conviction relief without having made sufficient findings. The State argues the district court resolved the motions properly.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 29-32.1-03. Johnson’s appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 7] Johnson argues the district court erred when it denied his motion to amend his petition and granted the State’s motion to amend its answer on a laches rationale. “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Garcia v. State, 2004 ND 81, ¶ 6, 678 N.W.2d 568. Rule 15(a), N.D.R.Civ.P., provides, “a party’s pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” “A decision on a motion to amend a pleading under N.D.R.Civ.P. 15(a) is addressed to the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion.” Sec. Nat’l Bank v. Wald, 536 N.W.2d 924, 928 (N.D.1995). A motion to amend may be denied if the proponent has unnecessarily delayed. Crosby v. Sande, 180 N.W.2d 164, 171 (N.D.1970). “Although not binding, federal court interpretations of a corresponding federal rule of civil procedure are highly persuasive in construing our rule.” Thompson v. Peterson, 546 N.W.2d 856, 860 (N.D.1996). As the United States Supreme Court noted in Foman v. Davis, undue delay may justify a denial of a motion to amend. 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

[¶ 8] Rule 8(c), N.D.R.CivP., provides for the affirmative defense of laches. “Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay.” Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170, 174 (N.D. 1985).

[¶ 9] For post-conviction relief, N.D.C.C. § 29-32.1-03(2) provides: “An application may be filed at any time.” ' In the past, this Court has said that although laches may not be considered a defense to a constitutional attack of a conviction, long delays may be considered when deciding whether the defendant’s claims have merit:

While laches will not bar an attack upon a judgment of conviction as being void on constitutional grounds, the long delay in challenging validity, during which the prosecuting attorney and sentencing judge died, may be considered as bearing on the question of waiver, the credibility of the petitioner’s assertions, and the inferences that he seeks to draw from the showing that he has made.

State v. O’Neill, 117 N.W.2d 857, 863 (N.D. 1962). As Justice Sand noted, however, in State v. Lueder, the statute “seems to allow the filing of an application without regard to the time that may have elapsed since the conviction.” 252 N.W.2d 861, 871 (N.D.1977) (Sand, J., concurring specially). Justice Sand warned that if this were permitted, the State could be put in a position in which it could not defend against a petition for post-conviction relief. Id. He reasoned that either a legislative amendment imposing a time limit or the court’s application of the affirmative defense of laches would be appropriate. Id.

[¶ 10] The literal reading of N.D.C.C. § 29-32.1-03(2) allows a post-conviction petitioner to file an application at any time. ' As our current caselaw notes, however, an application may be denied if it is untimely. O’Neill, 117 N.W.2d at 863. By way of analogy, we will outright dismiss an appeal when it is filed after the deadline. See N.D.R.App.P. 4(d) (“A notice of appeal must be filed with the clerk of district court within. 60 days of service of notice of entry of the judgment or order being appealed.”). Therefore, although the statutes governing post-conviction procedures do not provide for a time bar allowing outright dismissal of an application for post-conviction relief, N.D.C.C. § 29-32.1-03(2) does not bar denial of an application if it is the product of undue delay.

[¶ 11] The Rhode Island Supreme Court recently decided a case involving Rhode Island’s post-conviction relief statute and the affirmative defense of laches. Raso v. Wall, 884 A.2d 391, 395 (R.I.2005). As the court concluded, allowing petitions for post-conviction relief at any time without a reasonableness rule would lead to an absurd result:

Section 10-9.N3 provides that “An application [for postconviction relief] may be filed at any time.” Although on its face, this language provides that there is no statutory limitation on the time in which an applicant may file an application for postconviction relief, the existence of such language does not preclude the application of the doctrine of laches. In our judgment,. it would be absurd to read “at any time” as constituting a limitless “Open Sesame” in which an applicant could file, an application for postconviction relief at literally any time without weight being given to the possible prejudice to the state wrought by the passage of time. Accordingly, we construe the statutory term as meaning at any reasonable time.

Id. We are persuaded by the Rhode Island Supreme Court’s reasoning. .

[¶ 12] Other jurisdictions have applied either laches or a diligence rule to post-conviction cases. See United States v. Darnell, 716 F.2d 479, 480 (7th Cir.1983) (“There -is no apparent reason why the same equitable considerations that prompted revision of the Rules Governing [28 U.S.C.] § 2254 and § 2255 Cases to incorporate the doctrine of ‘laches’ should not apply with equal force to Rule 32(d) motions.”); Gaulke v. State, 296 Minn. 487, 206 N.W.2d 652, 652 (1973) (“We hold that the district court properly denied the petition on the ground that petitioner, who knew about the allegedly newly discovered evidence in late 1946 and yet did not petition for relief on that basis until 1971, did not act with due diligence in seeking relief.”); McElrath v. State, 276 S.C. 282, 277 S.E.2d 890, 890 (1981) (“We concur with the trial judge’s finding that laches bars appellant’s claim for collateral relief from a conviction and sentence now more than twenty years old.”).

[¶ 13] A laches defense alone does not destroy legitimate post-conviction applications for convictions that occurred many years in the past, because laches requires more than mere delay. Williams County Soc. Servs. Bd., 367 N.W.2d at 174; Oliver v. United States, 961 F.2d 1339, 1342 (7th Cir.1992). The State must prove, by a preponderance of the evidence, that (1) the petitioner has unreasonably delayed in seeking relief, and that (2) the delay has prejudiced the State. Williams County Soc. Servs. Bd., at 174; Kirby v. State, 822 N.E.2d 1097, 1100 (Ind.Ct.App. 2005). “A petitioner can seldom be found to have unreasonably delayed unless he or she has knowledge of a defect in the conviction.” Kirby, 822 N.E.2d at 1100 (citing McCollum v. State, 671 N.E.2d 168, 170 (Ind.Ct.App.1996)); see also Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 767 (N.D.1996) (“In addition to the passage of time, parties against whom a claim of laches is sought to be invoked must be actually or presumptively aware of their rights and must fail to assert those rights against parties who in good faith changed their position and cannot be -restored to their former state.”). For prejudice, the State must show that it is unlikely to be -able to re-prosecute:

[Prejudice exists when the unreasonable delay operates to materially diminish a reasonable likelihood of successful re-prosecution. Armstrong [v. State], 747 N.E.2d [1119,] 1120 [ (Ind.2001) ]. “The inability to reconstruct a case against a petitioner is demonstrated by unavailable evidence such as destroyed records, deceased witnesses, or witnesses who have no independent recollection of the event.” Taylor v. State, 492 N.E.2d 1091, 1093 (Ind.Ct.App. 1986). The State has an obligation to use due diligence in its investigation of the availability of evidence and witnesses. McCollum [v. State], 671 N.E.2d [168,] 172 [ (Ind.Ct.App.1966]) (quotations omitted).

Kirby, 822 N.E.2d at 1100.

[¶ 14] Laches prevents a litigant from raising issues the litigant unreasonably delayed claiming through a failure to exercise due diligence. Williams County Soc. Servs. Bd., 367 N.W.2d at 174; Kirby, 822 N.E.2d at 1100. The logic of preventing claims that are stale because of undue delay is implicit in N.D.C.C. § 29-32.1-12(2), which provides for the misuse-of-process affirmative defense:

A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

See also Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329 (“misuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings, and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application”) (internal citations omitted). Laches and misuse of process both require a litigant to raise issues in a proper, timely fashion. Compare Kirby, 822 N.E.2d at 1100, with Clark, at ¶ 23.

[¶ 15] We are persuaded that laches is a proper defense to prevent abuse of post-conviction proceedings. We hold that laches is a defense the State may use in defending against applications for post-conviction relief. For the defense to prevail, the State must prove, by a preponderance of the evidence, that (1) the petitioner has unreasonably delayed in seeking relief, and that (2) the delay has prejudiced the State. Williams County Soc. Servs. Bd., 367 N.W.2d at 174; Kirby, 822 N.E.2d at 1100. To the extent our past cases hold to the contrary, including State v. O’Neill, 117 N.W.2d 857, 863 (N.D.1962), they are overruled.

[¶ 16] The district court granted the State’s motion to amend its answer but denied Johnson’s petition for post-conviction relief and motion to amend the petition. In its memorandum opinion, the district court stated:

As pointed out by the State’s brief, issues that could reasonably have been raised on prior occasions, such as the case here, are not and should not be allowed when the opportunity to raise them was readily available at a prior time and the defendant either chose not to raise them or failed to raise them through his own neglect. In other words, Mr. Johnson has waited too long to raise the issues he now seeks to present.

[¶ 17] Johnson waited eight and a half years to challenge his guilty plea, claiming ineffective assistance of counsel. He waited another half year before challenging his plea as not having been made intelligently, knowingly, and voluntarily. Johnson knew his mental condition was an issue at the time he pled guilty, but delayed bringing his application for eight and a half years. Therefore, the State has met the first prong of laches—unreasonable delay as a result of Johnson’s lack of diligence.

[¶ 18] As to prejudice, the record reflects that the judge who took the plea and sentenced Johnson in 1996 has died and that Dr. Dennis Kottke, who performed the psychiatric evaluation, appears to be no longer available. Therefore, the State’s ability to defend against the petition for post-conviction relief and potentially against an insanity defense at trial have been materially diminished, and the State has been prejudiced. The district court did not abuse its discretion when it allowed the State to amend its answer to allege the defense of laches, and it did not abuse its discretion when it denied Johnson’s motion to amend his petition as untimely.

HI

[¶ 19] Johnson argues the district court erred when it summarily dismissed his petition for post-conviction relief. Johnson claims his counsel’s representation was ineffective because his counsel did not move for a second, independent mental evaluation. Section 29-32.1-09(1), N.D.C.C., allows for summary disposition when the petition presents no genuine issues of material fact. When a petition for post-conviction relief is summarily denied, this Court applies the same review used for summary judgments, with all inferences drawn in favor of the nonmoving party. Heyen v. State, 2001 ND 126, ¶6, 630 N.W.2d 56.

[¶ 20] “To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.” Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). For the first element, counsel’s representation is objectively measured by prevailing professional norms. Id. The petitioner has a heavy burden to meet because counsel’s performance is presumed to be reasonable, and courts attempt to avoid the effects of hindsight. DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (citing Lange v. State, 522 N.W.2d 179, 181 (N.D.1994)). To meet the second element of prejudice, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

[¶ 21] We have held that a psychiatric evaluation is not deficient merely because a State Hospital employee has conducted it. State v. Norman, 507 N.W.2d 522, 524 (N.D.1993). In Norman, we concluded the district court did not err by denying a second evaluation, and a defendant could not shop around until he or she found a favorable conclusion. Id. The North Dakota Court of Appeals followed Norman when it concluded Johnson could not sustain a petition for post-conviction relief for ineffective assistance of counsel when counsel did not move for a second evaluation on a separate criminal charge. Johnson v. State, 2005 ND APP 8, ¶ 12, 700 N.W.2d 723.

[¶ 22] In his criminal case, Johnson was entitled to one competent evaluation at public expense. That evaluation was completed by Dr. Kottke of the North Dakota State Hospital. Counsel’s actions did not fall below an objective standard of reasonableness, because Johnson was entitled to and received one evaluation.

[¶ 23] Johnson argues the district court’s memorandum opinion does not meet the requirement of N.D.C.C. § 29-32.1-11(1) that the district court make explicit findings of fact and conclusions of law, thus resulting in reversible error. The district court’s memorandum opinion was one and a half pages long. The court does state that Johnson’s claims of ineffective assistance of counsel and of an involuntary guilty plea were both unreasonably delayed and without merit. The record of this case demonstrates that the lack of more specific findings of fact and conclusions of law was harmless. See State v. Raulston, 2005 ND 212, ¶ 19, 707 N.W.2d 464 (“While we do not encourage district courts to engage in such a ‘minimalist’ approach, we conclude based on the record before us that the failure to make more explicit findings and conclusions was harmless error.”). The district court’s summary dismissal of Johnson’s petition for post-conviction relief is affirmed.

IV

[¶ 24] The judgment of the district court is affirmed.

[¶ 25] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.