author: LANSING, Judge.

text:
    In the Matter of the CIVIL COMMITMENT OF Terrance John GIEM.
    No. A06-1588.
    Court of Appeals of Minnesota.
    Feb. 13, 2007.

      Mary Margaret Huot, Huot and Span-gler, PLLP, St. Paul, MN, for appellant Terrance John Giem.
    Susan Gaertner, Ramsey County Attorney, Margaret Gustafson Samec, Special Assistant County Attorney, St. Paul, MN, for respondent Ramsey County.
    Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and DIETZEN, Judge.
   OPINION

LANSING, Judge.

Terrance Giem appeals from the district court’s order denying his motion to dismiss for lack of subject-matter jurisdiction, the county’s petition to commit him as a sexually dangerous person and a sexual psychopathic personality. Because we conclude that Minn.Stat. § 253B.08 (Supp.2005) does not define or limit subject-matter jurisdiction but does confer statutory rights subject to waiver, and because the district court did not err in its findings or conclusion that Giem’s conduct waived his statutory rights, we affirm.

FACTS

Ramsey County petitioned for civil commitment of Terrance Giem as a sexually dangerous person and a sexual psychopathic personality. The initial hearing was held on October 26, 2005, shortly before Giem’s supervised-release date from prison. At the hearing, Giem’s attorney stated that Giem “does not agree with the petition,” but “would like to have insight into where he’s at right now and, as a result of that, he is willing to go to the security hospital, and we’re just going to set it on for an exam at this time.” Giem’s attorney expressly stated that Giem was waiving the preliminary hearing. When asked by the district court whether he understood what his attorney had said and agreed with this choice, Giem responded, “Yes.”

Giem’s attorney and the county attorney outlined the arrangements for Giem to meet with medical examiners, and the district court then asked Giem’s attorney whether she wanted to set a trial date. The attorney replied, “[WJe’d like to wait with that until after the exam, actually.” Giem and his attorney both signed a waiver of the right to a preliminary hearing, and the district court ordered Giem held at the Minnesota Security Hospital pending a decision on the merits of the commitment petition.

In early November 2005, a second district court judge signed an order appointing a medical examiner selected by Giem’s attorney and an order appointing a medical examiner selected by the court. The county attorney arranged for an independent medical examiner. The first medical examiner conducted an examination on November 18, 2005, and filed his report on April 27, 2006. The second examiner conducted his examination on December 30, 2005, and filed his report on April 4, 2006. The county attorney’s independent medical examiner conducted his examination on December 2, 2005, and completed it on December 6, 2005.

On February 23, 2006, before the two court-appointed examiners had completed their reports, the district court held a scheduling hearing. At the beginning of the hearing, Giem’s attorney served the county with a motion to dismiss the petition because 125 days had passed since the petition was filed or, in the alternative, to schedule an immediate trial under Minn. Stat. § 253B.08, subd. 1 (Supp.2005). The county attorney indicated surprise, reported that she had been working with Giem’s attorney to set a trial date, and said that the court-appointed examiners had not completed their reports. After a brief off-the-record conference, the district court stated:

In our discussions off the record it has really been quite clear that since the petition was filed [Giem] was in full agreement with the course of this case in that he was agreeable to not setting a trial date until some time after the completion of the examinations^] ... The record should finally reflect that it is only today that [Giem] demands a hearing pursuant to rule 253B.08, subdivision 1.

The district court noted that Giem’s initial request to defer the scheduling of the commitment trial until after completion of the examinations made the current demand for immediate trial impracticable for the attorneys, the examiners, and the court. It was undisputed that neither the court-selected examiner nor the examiner selected by Giem had completed his report. The district court denied both motions on the record, explaining to Giem’s attorney that Giem’s initial request to defer scheduling resulted in a waiver of the statutory time limitations. The district court stated that under ordinary circumstances Giem would have been entitled to a trial within ninety days after the filing of the petition and that a timely trial was still important. The district court then attempted to schedule a trial date, taking into account the attorneys’ schedules, the completion of the reports, and a notice of removal that had been filed on the assigned judge. On March 6, 2006, the district court filed a written order “by agreement of the Court and counsel” continuing the trial to May 8.

On March 22, 2006, Giem filed an appeal from the February order. In an April 11, 2006 special-term order of this court, the panel dismissed the appeal as taken from a nonappealable order of a denial of a motion for dismissal that was neither certified as important and doubtful nor based on a lack of subject-matter jurisdiction. In re Civil Commitment of Giem, No. A06-570 (Minn.App. Apr. 11, 2006).

Following the dismissal of the appeal, Giem filed a motion in the district court to dismiss the petition for lack of subject-matter jurisdiction. The motion hearing was consolidated with the May 1 pretrial hearing. At that hearing, conducted by a third district court judge, Giem’s attorney requested that the motion and the commitment trial scheduled for May 8 be continued to enable Giem to present a proposal for a less-restrictive alternative to long-term commitment but did not withdraw her motion for dismissal based on lack of subject-matter jurisdiction. The district court specifically admonished Giem and his attorney that Giem had a May 8 trial date with an absolute right to go to trial on that day and that his request for a continuance would place the trial in the June 26, 2006 trial block. Giem and his attorney confirmed that they were requesting that the trial be taken off the May 8 calendar. With the agreement of Giem, his attorney, and the county attorney, the district court set the trial for June 26, 2006.

On the morning of June 26, Giem’s attorney reported that she was unable to formulate a less-restrictive alternative because Ramsey County had not appointed a case manager for Giem. The county attorney contended that a case manager could not be appointed unless Giem admitted the petition. Giem’s attorney requested a further continuance and an order requiring Ramsey County to appoint a case manager. The district court questioned whether Giem’s request for affirmative relief was inconsistent with his pending motion to dismiss for lack of subject-matter jurisdiction. Giem’s attorney responded that if the court would not grant her motion to order Ramsey County to appoint a case manager, then she wanted the district court to dismiss for lack of subject-matter jurisdiction. The county attorney then stated that if the district court dismissed for lack of subject-matter jurisdiction, the county was prepared to file a new commitment petition. The district court, in an attempt to impose a rational structure on the meandering proceedings, denied Giem’s contingent request for a further continuance, without prejudice, and advised the attorneys that the district court would issue an order within four days on Giem’s subject-matter-jurisdiction motion.

The following day the district court issued an order denying Giem’s motion to dismiss for lack of subject-matter jurisdiction. In the order, filed on June 28, the district court reasoned that, under Minnesota law, the district court had subject-matter jurisdiction over sexually dangerous-person and sexual-psychopathic-personality commitments, that the time restrictions in the statute did not define or limit subject-matter jurisdiction, that the restrictions were subject to waiver, and that Giem “waived and continues to waive his right to an immediate [trial] by asking the court for relief inconsistent with his demand.” The district court further ordered that “[t]o the extent [Giem] can be said to be demanding an immediate [trial] pursuant to Minn.Stat. [§ ] 253B.08, subd. 1, that demand is granted.”

The district court conducted a trial on the commitment petition on July 5, 6, and 7, 2006. On August 18 the district court issued findings of fact, conclusions of law, and an order committing Giem to the Minnesota Security Hospital as a sexually dangerous person. The findings of fact and conclusions of law also addressed and denied Giem’s constitutional claims of due process violations. Giem has not appealed the district court’s commitment order or the determination that he failed to demonstrate a deprivation of his rights to due process.

Instead, Giem appeals the district court’s June 28, 2006 order, contending that he is entitled to immediate release from the Minnesota Security Hospital because the district court lacked subject-matter jurisdiction over his commitment petition. Giem bases his argument on the time limitations governing civil-commitment procedures in Minn.Stat. § 253B.08, subd. 1.

ISSUES

I. Did the district court have subject-matter jurisdiction to hear and decide the petition to commit Giem as a sexually dangerous person?

II. Did the district court err in its findings or determination that Giem waived his right to a hearing within the time limitations of Minn.Stat. § 253B.08, subd. 1 (Supp.2005)?

ANALYSIS

It is readily apparent that the legislature did not intend to create a commitment procedure in which more than eight months would elapse before a person could obtain a trial on a commitment petition. It is also apparent that confusion over subject-matter jurisdiction injects unnecessary complexity into district court proceedings and appellate review. But it is not apparent that Giem, on the strength of his conflicting requests in the district court, is entitled to a dismissal of his commitment petition for lack of subject-matter jurisdiction.

Giem rests his claim for the district court’s lack of subject-matter jurisdiction on the time limits for civil-commitment proceedings in Minn.Stat. § 253B.08, subd. 1 (Supp.2005). Although Giem has not in this appeal raised a constitutional due process issue, we recognize that the time constraints provided in subdivision 1 relate to the “core of the liberty protected by the Due Process Clause.” Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 2079, 138 L.Ed.2d 501 (1997); see also Kansas v. Crane, 534 U.S. 407, 409-10, 122 S.Ct. 867, 869, 151 L.Ed.2d 856 (2002) (confinement imposed by involuntary civil commitment must provide proper procedures). The procedures in subdivision 1 provide an expedited schedule for commitment hearings. First, the hearing on a sexually dangerous-person or a sexual-psychopathic-personality commitment petition

shall be held within 90 days from the date of the filing of the petition. For good cause shown, the court may extend the time of hearing up to an additional 30 days. The proceeding shall be dismissed if the proposed patient has not had a hearing on a commitment petition within the allowed time.

Minn.Stat. § 253B.08, subd. 1. Second, “at any time,”

[t]he proposed patient, or the head of the treatment facility in which the person is held, may demand in writing ... that the hearing be held immediately. Unless the hearing is held within five days of the date of the demand, exclusive of Saturdays, Sundays and legal holidays, the petition shall be automatically discharged if the patient is being held in a treatment facility pursuant to court order. For good cause shown, the court may extend the time of hearing on the demand for an additional ten days.

Id. To analyze Giem’s claim, we must first address whether the time limitations that govern the civil-commitment proceedings define or limit the district court’s subject-matter jurisdiction. And, if the time limits do not determine subject-matter jurisdiction, we must then analyze whether the district court properly determined that Giem’s conduct resulted in waiver of their strict provisions.

I

“Jurisdiction,” the United States Supreme Court has recently emphasized, “is a word of many, too many, meanings.” Arbaugh v.Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1242, 163 L.Ed.2d 1097 (2006) (quotation omitted). Courts have used the word “jurisdiction” to describe a variety of legal issues, ranging from constitutional limits on the power of federal courts to statutory time limits on appeals. Carlisle v. United States, 517 U.S. 416, 434-35, 116 S.Ct. 1460, 1470, 134 L.Ed.2d 613 (1996) (Ginsburg, J., concurring). Recognizing that the less-than-meticulous use of “jurisdiction” has generated significant confusion, the Court has clarified that time prescriptions, however emphatic, “are not properly typed ‘jurisdictional.’ ” Scarborough v. Principi 541 U.S. 401, 414, 124 S.Ct. 1856, 1865, 158 L.Ed.2d 674 (2004); accord Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 406-07, 163 L.Ed.2d 14 (2005) (per curiam). The Court has particularly noted that classifying “time prescriptions, even rigid ones, under the heading ‘subject-matter jurisdiction’ can be confounding.” Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 915, 157 L.Ed.2d 867 (2004) (quotation omitted). Consequently, the Court has urged courts and litigants to use “the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Id.

Minnesota appellate courts have similarly observed that the use of the word “jurisdictional” to refer to a statute of limitations does not carry the same meaning as it does when used to refer to a constitutional grant of judicial power or a legislative classification of a court’s power to adjudicate a class of cases. See Bode v. Minn. Dep’t. of Natural Res., 594 N.W.2d 257, 259-60 (Minn.App.1999) (cautioning against misuse of term subject-matter jurisdiction), aff'd, 612 N.W.2d 862 (Minn.2000). In Rubey v. Vannett, the supreme court held that the sixty-day time limit in Minn. R. Civ. P. 59.03 “is a procedural tool and does not divest the district court of jurisdiction.” 714 N.W.2d 417, 422 (Minn.2006). In so holding, the supreme court recognized that “case law in this area has, at best, been confusing.” Id. Because, in Rubey, the sixty days was a time prescription, not a termination of jurisdiction, the court analyzed whether the time prescription had been waived. Id.; see also Breza v. City of Minnetrista, 725 N.W.2d 106, 113-14 (Minn.2006) (characterizing Minn. Stat. § 15.99 (2000) as timing statute that does not preempt substantive law); Tischer v. Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426, 430 (Minn.2005) (rejecting argument that opinion’s reference to procedural law incorporated subject-matter jurisdiction because subject-matter jurisdiction is “fundamentally different” from procedural rules). We, therefore, conclude that the time restrictions in subdivision 1 are rigid time prescriptions for constitutionally significant purposes, but these restrictions do not define or limit subject-matter jurisdiction.

Reflecting the gravity of the liberty interest at stake, the time prescriptions in subdivision 1 are rigidly fixed and provide for dismissal or discharge if hearings do not occur within the allowable time periods. Minn.Stat. § 253B.08, subd. 1. But even the most basic constitutional rights are subject to waiver. New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 663, 145 L.Ed.2d 560 (2000). We have twice held that the right to a hearing within the statutory time limit may be waived. We first held that a proposed patient who failed to attend two scheduled commitment hearings waived his right to a hearing within the statutory time period. In re May, 477 N.W.2d 913, 915 (Minn.App.1991) (construing predecessor provision requiring hearing on petition within forty-four days). Relying on the holding of May, we affirmed the district court’s finding of waiver in a case in which the proposed patient failed to object to the state’s request for a continuance that extended the hearing beyond the statutory time restrictions. In re Buckhalton, 503 N.W.2d 148, 151 (Minn.App.1993) (waiver of forty-four-day period provided under predecessor statute), aff'd, 518 N.W.2d 531 (Minn.1994). Relying on May and Buckhalton, we conclude that the statutorily prescribed time periods are subject to waiver.

II

Three district court judges determined that Giem had waived his right to a hearing under the statutory time prescriptions at three different points. In his appeal from the district court’s June 28 order, Giem does not directly challenge the first or the last waiver, but contends that the denial of his demand for a trial or dismissal at the February 23 pretrial hearing entitles him to immediate release. Although Giem has not specifically appealed the February 23 order, we recognize that this is an “order affecting the order from which the appeal is taken,” and we consider it in our review of the June 28 order. Minn. R. Civ.App. P. 103.04.

We review the district court’s factual findings for clear error. Rubey, 714 N.W.2d at 423. The court’s denial of Giem’s motion to discharge him is reviewed for an abuse of discretion. See id. at 424 (reviewing district court’s dismissal of new trial motion as untimely). Giem argues that his February 23 demand entitled him to an immediate trial despite “any previous waiver the court may construct.” He contends that his conduct was irrelevant and that, under the statute, his demand alone required the district court to provide an immediate trial or dismiss the petition and discharge him. We do not agree that Giem’s conduct was irrelevant.

Waiver is “[t]he voluntary relinquishment or abandonment — express or implied — of a legal right or advantage.” Black’s Law Dictionary 1611 (8th ed.2004). A defendant in a criminal case may waive a constitutional right by intentionally relinquishing or abandoning a known right or privilege. Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). An implied waiver may arise when a person’s course of conduct evidences an intention to waive a right or when his conduct is inconsistent with any other intention than to waive it. See Hedged Inv. Partners, L.P. v. Norwest Bank Minn., N.A., 578 N.W.2d 765, 771-72 (Minn.App.1998) (stating that course-of-conduct waiver is based on theory of estoppel and requires detrimental reliance).

The third district court judge found that Giem’s conduct was inconsistent with an immediate hearing on the petition. The record reflects that at the May 1 hearing, Giem requested a continuance to prepare and present a less-restrictive alternative to commitment. At the June 26 hearing, Giem requested another continuance in order to have a case manager appointed and to have more time to develop a less-restrictive alternative. The record is unequivocal that, on June 26, Giem expressly waived his right to a scheduled trial. And, when Giem attempted to make this waiver contingent on the district court’s ruling, the judge commendably took charge of the proceedings, issued a written order resolving the subject-matter jurisdiction issue, and ordered the commitment trial to proceed within five days despite the county attorney’s request for a continuance.

Giem’s waiver before the second district court judge is less explicit. That judge found that Giem’s conduct before his February 23 demand for an immediate trial was inconsistent with the relief he had requested. The record reflects that, at the outset, Giem expressly agreed not to set a trial date until after the examinations. The record at the time of the February demand reflects that all three examiners had met with Giem, but only the county attorney’s independent examiner had completed his report. Giem’s attorney provided no information on the anticipated filing date for the report of the examiner that Giem had requested or for the examiner selected by the court. Giem’s attorney also did not dispute the county attorney’s statement that she had been attempting to schedule the trial and, that prior to the February 23 hearing, Giem’s attorney had not requested that the trial be scheduled before the reports were completed. The district court found that Giem waived an expedited schedule and acquiesced in the progress of the proceedings from the time of the October hearing until the February 23 demand. Based on Giem’s conduct and acquiescence throughout that time period, the court concluded that the examinations and preparation for trial could not be concluded within a five-day period and that Giem had waived his right to have a trial within ninety days after the petition filing.

Although the February 23 waiver is less explicit than the others and holding an immediate trial might have been more consistent with the intent of subdivision 1, Giem and his attorney cannot now distance themselves from the course of conduct that resulted in the delay. The actions taken in reliance on a proposed patient’s waiver of the ninety-day time limit may reasonably create a direct conflict with a patient’s subsequent demand for an immediate trial. The proposed patient may benefit from the option to waive the expedited process, but may not peremptorily attempt to change the course of the proceeding to the detriment of the court and parties who have proceeded in reliance on the waiver.

The record supports the district court judges’ findings, which, in turn, support the conclusion that Giem waived his right to an expedited trial schedule and his right to demand, prior to June 26, an immediate trial. The district court did not abuse its discretion.

DECISION

MinmStat. § 253B.08, subd. 1 (Supp. 2005), providing hearing procedures for civil commitments, does not define or limit the district court’s subject-matter jurisdiction. Because the rights conferred on the patient by the statute may be waived and the record establishes a waiver of an immediate trial, the district court correctly denied Giem’s motion to dismiss the petition and initial motions demanding an immediate trial.

Affirmed.


source: Caselaw Access Project

author: EAPSNER, Justice.

license: Public Domain

text:
    2007 ND 14
    John Joseph LEFTBEAR, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20060244.
    Supreme Court of North Dakota.
    Feb. 1, 2007.

      William Kirschner (argued), Fargo, ND, for petitioner and appellant.
    Lonnie Olson (argued), State’s Attorney, Devils Lake, ND, for respondent and ap-pellee.
   EAPSNER, Justice.

[¶ 1] John Leftbear appeals from the district court’s denial of a motion to extend the time for filing a notice of appeal. We affirm, concluding Leftbear failed to show excusable neglect or an abuse of discretion.

I

[¶ 2] Leftbear was charged with aggravated assault on February 17, 2004, in Ramsey County. Leftbear was appointed counsel, and a jury trial was set. In open court, Leftbear waived his right to a jury trial. The district court heard the matter on November 18, 2004, and found Leftbear guilty of aggravated assault. The court concluded Leftbear was a habitual offender and sentenced him to prison for ten years. Leftbear appealed, claiming there was insufficient evidence to convict him. We summarily affirmed the conviction. State v. Leftbear, 2005 ND 163, 704 N.W.2d 573.

[¶ 3] Leftbear filed a pro se application for post-conviction relief. The district court summarily denied Leftbear’s application on January 25, 2006. Leftbear wrote a letter to the district court on February 27, 2006, asking it to reconsider its ruling. The court denied Leftbear’s request. Eighty-eight days after filing his letter, Leftbear filed a notice of appeal from the order denying his application for post-conviction relief. Leftbear was informed his notice of appeal was untimely and that he must request an extension of time from the district court. The district court denied his motion for an extension of time on August 11, 2006.

II

[¶ 4] On appeal, Leftbear argues the district court abused its discretion in failing to grant his motion for an extension of time to file a notice of appeal and that the court erred in summarily dismissing his application for post-conviction relief. Left-bear claims his failure to timely file the application was attributable to excusable neglect. The State argues the district court did not abuse its discretion when it denied Leftbear’s motion and that Left-bear’s second issue is not properly before this Court. The determinative issue is the denial of the extension of time to file a notice of appeal. Because we hold the district court did not abuse its discretion in denying Leftbear’s motion for an extension of time to file his appeal, we decline to address whether the district court erred when it summarily denied Leftbear’s application for post-conviction relief.

Ill

[¶ 5] The time limit for filing a notice of appeal is jurisdictional. McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994). “An extension of time to file an appeal based upon excusable neglect is addressed to the sound discretion of the trial court, and the court’s determination will not be set aside on appeal absent an abuse of discretion.” State v. Latendresse, 450 N.W.2d 781, 782 (N.D.1990). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Gamboa v. State, 2005 ND 48, ¶ 6, 693 N.W.2d 21. Post-conviction actions are civil in nature and are governed by the rules of civil and appellate procedure. See Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390. Rule 4(d), N.D.R.App.P., prescribes a sixty-day time limit for filing a notice of appeal from a post-conviction relief proceeding, which may be extended upon a showing of excusable neglect. See id. However, an extension of time to file a notice of appeal may not exceed thirty days beyond the sixty-day general rule. See id.

[¶ 6] Leftbear argues the set of circumstances surrounding his notice of appeal are extraordinary. He argues his neglect should be excused because he was pro se when he filed his post-conviction relief application, he was ignorant of the law, he was being given anti-psychotic medications, and he was in prison. Left-bear also claims he has limited literacy and “he has little or no experience with the legal system or how to get an attorney or file an appeal.” As support, Leftbear relies solely upon his assertions and a short affidavit. Leftbear’s affidavit, in pertinent part, provides:

3. I am not a lawyer and did not have the assistance of a lawyer in filing this application, and therefore I wasn’t aware of what I am supposed to do when the Court denied my application.
4. I understood ... that my application had been denied. However, I was not aware of the time line for filing my appeal. I wanted to appeal, but I didn’t know if I had a right to appeal, and I didn’t know how to go about it. I didn’t have a lawyer available to me at the Prison, so it took me a while to get the information that I needed that I could appeal. Then it took me longer to find out how to go about that.
5. While I am incarcerated at the prison, I am given some heavy anti-psychotic medications which make me very sleepy and cause me a great deal of difficulty remaining awake and remembering things. In addition, the medications have an impact on my judgment, and make me tired and forgetful. I even fall asleep while working and at lunch.

Leftbear’s efforts are insufficient to prove his failure to timely file a notice of appeal was attributable to excusable neglect.

[¶ 7] Leftbear failed to adequately brief the excusable neglect issue. We have warned, “a party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit.” Riemers v. City of Grand Forks, 2006 ND 224, ¶ 9, 723 N.W.2d 518 (internal quotations omitted). Leftbear cited no authorities in his motion for extension of time or in his affidavit accompanying the motion. Leftbear’s brief was devoid of legal authority regarding the excusable neglect issue. The State argues Leftbear’s failure to timely file a notice of appeal was not excusable neglect, asserting “[a]ny delays and problems in [Left-bear’s] defense are due to the lack of diligence of the defendant himself in not seeking legal counsel at a proper time.”

[¶ 8] The district court did not explicitly rule that Leftbear’s actions were not attributable to excusable neglect. Instead, the court denied Leftbear’s motion for extension of time to file his appeal by ruling:

The Defendant was represented by court appointed legal counsel at trial. The Court appointed another attorney to represent him on appeal. This Court issued an Order ... finding that the defendant’s Application for Post Conviction Relief was without merit. The defendant in this case has been afforded adequate due process.

[¶ 9] The facts in this case are insufficient to establish excusable neglect as a matter of law. Therefore, whether to grant an extension is a matter of discretion for the district court. Excusable neglect is a fluid concept, encompassing “both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Accord Pioneer Inv. Servs. Co. v. Brunswick Assocs. LP, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (discussing “excusable neglect” concept); Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 403 (8th Cir.2000). The Eighth Circuit has interpreted “excusable neglect” to mean a “ ‘good faith and some reasonable basis for noncompliance with the rules.’ ” Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir.1997) (quoting Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887 (8th Cir.1996)). In most instances, ignorance of the rules, or mistakes construing the rules, are insufficient to establish excusable neglect. Ceridian Corp., at 403. However, the rules do provide some flexibility for a court “to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” See Pioneer, at 388.

[¶ 10] In this case, no extraordinary circumstances exist. Leftbear has significant experience with the criminal justice system. He was sentenced under the habitual offender statute, with at least six felonies and three misdemeanors on his record. Leftbear also has had experience requesting an appointed attorney. He requested an attorney using the standardized “Application for Appointed Defense Services” form for his trial. After his conviction, Leftbear filed a pro se request for filing the record on appeal and a request for counsel. In preparation for his direct appeal, Leftbear drafted a letter to the district court to request a change of his court-appointed attorney. The court denied his request to change attorneys. Finally, on May 24, 2006, Leftbear completed another “Application for Appointed Defense Services” form to help him with the appeal from the denial of post-conviction relief. Leftbear did not request an attorney to assist him in the post-conviction relief proceedings, despite knowing how to do so. Leftbear was demonstrably familiar with the justice system and should have known how to seek assistance of counsel for his appeal. The district court did not abuse its discretion.

IV

[¶ 11] We conclude Leftbear failed to show excusable neglect or an abuse of discretion. Therefore, we affirm the district court’s denial of Leftbear’s motion to extend the time for filing a notice of appeal.

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

      . Rule 4(d), N.D.R.App.P., was adopted in 2001 to govern the time for appeal in a post-conviction proceeding. Previous cases addressing this issue used Rule 4(a), which governed the time to appeal in a civil case, to establish the time limitations for appeal in post-conviction proceedings. See, e.g., McMorrow, 516 N.W.2d at 283.


author: CROTHERS, Justice. MARING, Justice,

text:
    2007 ND 13
    Gary D. KLIMPLE, Plaintiff and Appellant v. Mark BAHL, Defendant and Appellee.
    No. 20060195.
    Supreme Court of North Dakota.
    Feb. 1, 2007.

      Carey A. Goetz, Farhart Wolff, P.C., Minot, N.D., for plaintiff and appellant; submitted on brief.
    Bradley J. Beehler, Morley Law Firm, Ltd., Grand Forks, N.D., for defendant and appellee; submitted on brief.
   CROTHERS, Justice.

[¶ 1] Gary D. Klimple appealed from a summary judgment dismissing his personal injury action against Mark Bahl. We affirm because Klimple presented insufficient admissible evidence to create a genuine issue of material fact on the issue of whether the motor vehicle accident proximately caused or aggravated Klimple’s Ki-enbock’s disease.

I

[¶ 2] On October 1, 2001, Klimple and Bahl were involved in a motor vehicle accident in Minot in which Bahl’s vehicle struck Klimple’s vehicle. In April 2004, Klimple sued Bahl, alleging his left wrist and palm were fractured in the accident, Bahl negligently operated his vehicle, and Bahl’s negligence proximately caused his injuries.

[¶ 3] After depositions were taken, Bahl moved for summary judgment in January 2006, claiming there were no genuine issues of material fact for trial because there was no evidence Bahl caused Klim-ple’s injuries. Evidence was presented that a physician diagnosed Klimple after the accident as having preexisting Kien-bock’s disease. Klimple also had been seeking medical treatment for pain in his left wrist before the accident. A physician testified in a deposition that he could not say “with any reasonable degree of certainty” whether the Kienbock’s disease was, or was not, caused by the car accident, but that preexisting Kienbock’s disease “[c]ould have been aggravated by the car accident.” Klimple testified in a deposition that his left wrist was thrust against the door panel during the collision and that he was healthy before the accident but was unable to work after the accident. The district court granted summary judgment in favor of Bahl, concluding Klimple “cannot prove that the automobile accident ... either caused his Kienbock’s disease or aggravated his Kienbock’s disease.”

II

[¶ 4] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no disputed issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Ramsey Fin. Corp. v. Haugland, 2006 ND 167, ¶ 12, 719 N.W.2d 346. Whether a district court properly granted summary judgment is a question of law this Court reviews de novo on the entire record. Bernabucci v. Huber, 2006 ND 71, ¶ 14, 712 N.W.2d 323. The party resisting a motion for summary judgment must present competent admissible evidence which raises an issue of material fact. Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991). The nonmoving party cannot rely on speculation, but must present enough evidence for a reasonable jury to find for the plaintiff. Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172.

[¶ 5] “Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.” Heart River Partners v. Goetzfried, 2005 ND 149, ¶ 8, 703 N.W.2d 330. To succeed in his negligence action, Klimple must prove Bahl owed him a duty, Bahl failed to discharge that duty, and Klimple suffered an injury that was proximately caused by Bahl’s negligence. Perez v. Nichols, 2006 ND 20, ¶ 6, 708 N.W.2d 884. “A proximate cause is a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred.” Rued Ins., Inc. v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D.1996). When a defendant’s negligence aggravates a preexisting injury, the defendant must compensate the victim for the full extent of the aggravation but is not liable for the preexisting condition itself. Olmstead v. First Interstate Bank, 449 N.W.2d 804, 808 (N.D.1989). Negligence involves questions of fact and is generally inappropriate for summary judgment unless the evidence is such that a reasonable factfinder can reach only one conclusion. Beckler, 2006 ND 58, ¶ 9, 711 N.W.2d 172.

[¶ 6] In his deposition, Klimple agreed that the only injury he claimed was caused by the accident was to his left wrist, and during the summary judgment proceedings, the parties focused solely on the narrow question of whether the October 1, 2001, accident caused or aggravated Klimple’s Kienbock’s disease. Kienbock’s disease is the death of a small bone in the wrist from an unknown cause, and has been technically defined as “osteonecrosis of the lunate bone resulting from unknown etiology, although can occur after trauma.” PDR Medical Dictionary 516 (2nd ed.2000). Unlike professional malpractice actions, there generally is no requirement in ordinary negligence cases for expert testimony to establish the elements of the tort. See Johansen v. Anderson, 555 N.W.2d 588, 594 (N.D.1996). In some circumstances, however, expert testimony may be required to resolve issues in an ordinary negligence action. See Bachmeier v. Wallwork Truck Ctrs., 507 N.W.2d 527, 535 (N.D.1993); Day v. General Motors Corp., 345 N.W.2d 349, 358 (N.D.1984). This Court has indicated expert testimony is required if the issue “is beyond the area of common knowledge or lay comprehension,” Leno v. Ehli, 339 N.W.2d 92, 99 (N.D.1983), or the issue “is not within the ordinary experience of the jurors.” Holecek v. Janke, 171 N.W.2d 94, 103 (N.D.1969). Klimple has not argued the causal relationship between the accident and his Kienbock’s disease is a matter within the common knowledge or comprehension of a layperson. See, e.g., 11A Blashfield Automobile Law and Practice: Trial Evidence § 431.5, at 384 (4th ed.2004) (footnote omitted) (“Blashfield ”) (“Opinions on most matters related to bodily injury are naturally beyond the ken of the factfinder, and thus are properly stated by qualified medical experts.”). Consequently, expert medical testimony was required to establish proximate cause in this case.

[¶ 7] The record reflects Klimple has owned a tree service in Minot since 1998 and he and his wife trim and remove trees and grind tree stumps for customers. On September 11, 2001, Klimple went to the clinic complaining of discomfort in his left wrist. He “denie[d] any direct trauma”; the doctor diagnosed him with tendonitis and prescribed heat, rest, and medication. On September 19, 2001, Klimple returned to the clinic, again complaining of pain in his left wrist. The doctor assessed Klimple as having tendonitis and stated in the clinic note that “I do not believe there is any reason for x-rays without any evidence of trauma.”

[¶ 8] When the accident occurred on October 1, 2001, Klimple was driving with his left hand on the steering wheel and, upon impact, his left wrist “kind of bounced against the door and the steering wheel.” Klimple did not perceive any injuries at the scene of the accident and did not report any to the police. Klimple testified that, on the following day, his left wrist was “stiff’ and he “couldn’t even move my hand to speak of.” Klimple made an appointment to meet with an orthopedic surgeon, Dr. Uthus, on October 8, 2001. After reviewing an X-ray, Dr. Uthus .diagnosed a fracture in Klimple’s left wrist and the presence of “[preexisting Kienbock’s disease.” After placing Klimple’s wrist in a cast until December 2001 and ordering physical therapy, Dr. Uthus determined Klimple needed surgery to repair the injury and referred him to Dr. Jeffery Keim, a plastic surgeon and hand specialist. Dr. Keim ordered an MRI of Klimple’s wrist which confirmed Dr. Uthus’s diagnosis of Kienbock’s disease, and Dr. Keim performed surgery in January 2002.

[¶ 9] In his deposition, Dr. Keim testified about the nature of Kienboek’s disease and whether the accident caused or aggravated Klimple’s condition:

Q. Okay. What’s the cause of Kien-bock’s?
A. It’s avascular necrosis, loss of the blood supply felt to be due to fractures and nonunion of fractures.
Q. Is this something that a person like Mr. Klimple could get in a car accident?
A. Yes. One of the main theories is trauma and fractures in the lunate.
Q. Okay. And this car accident was on October 1, 2001, and you first saw him December of that same year?
A. Yeah. The car accident was October 1, 2001, and I saw him in December.
Q. Is that enough time for the Kien-bock’s disease to develop to Stage 3?
A. Well, Dr. Uthus felt that he had preexisting Kienbock’s.
Q. And you agreed to that diagnosis?
A- At the time that I saw him, yes.
Q. Doctor, would you agree with me that patients can have Kienbock’s disease months or years before seeking treatment?
A. Yes.
Q. Would you agree that it’s more prevalent in people that use their hands for work? Heavy labor?
A. I wouldn’t say that. It’s more prevalent in men and it’s more commonly related to trauma, repeated trauma, repetitive type trauma.
Q. Doctor, is it possible that the motor vehicle accident may have caused the increase in Mr. Klimple’s pain complaints?
A. Yes.
Q. Is it also possible that that — this increase in his pain complaints reflect progress of his preexisting Kienbock’s disease?
A: Possibly, yes.
Q. Does the lunate fracture precede the Kienbock’s disease?
A. Yes.
Q. He must have had a broken lu-nate at some point?
A. Well, the fractures of the lunate are a part of the diagnosis of Kienbock’s because the fractures interrupt the blood supply and that results in the necrosis, or dying of the bone.
Q. So I can understand, I think what you’re saying is the lunate is fractured and cuts off the blood supply?
A. Right.
Q. And that’s how the Kienbock’s develops?
A. Yes.
Q. If he had preexisting Kienbock’s disease, he must have fractured the lu-nate at some time before the car accident?
A. Yes.
Q. Let me ask it to you this way then. Can you say with any reasonable degree of certainty whether Kienbock’s disease was caused in the car accident or not?
A. No.
Q. You just don’t know; right?
A. No.
Q. You’re kind of the repairman after the fact; right?
A. Right.
Q. And I’m not trying to degrade your profession by saying that.
A. No. No. I can’t say whether it was caused in the car accident. Essentially he has a diagnosis of Kienbock’s. Could have been aggravated by the car accident.
Q. You just don’t know; correct?
A. Right.
Q. And at Stage 3, I think you told me that he’s going to need surgery, anyway; right?
A. Right.
Q. So he would have been at Stage 3 without the car accident, he still would have needed surgery; right?
A. Yes. Yes.

[¶ 10] In his deposition, Klimple testified his condition became worse after the accident:

Q. Okay. Mr. Klimple, are you able to perform all your daily and customary activities?
A. No.
Q. What can’t you do?
A. Run a saw for a full day.
Q. Again, you’re talking about chain saw?
A. Chain saws, yes.
Q. And you were able to do that before the accident?
A. Yes.
Q. How long — before the accident how often did you have to run a chain saw all day?
A. Every day.
Q. Anything else that you can’t do now that you could do before the accident?
A. Well, like I said, I used to be able to hold onto branches and — out of the bucket and control them and just let them down, but I can’t do that anymore. I use a rope now.
Q. Anything else?
A. I can’t climb. I used to climb. I can’t do that anymore. Because I won’t trust it with one hand.
Q. Climb what?
A. Trees. In a tight yard where you can’t get a truck in, I used to climb and take them down.

[¶ 11] Bahl argues, and the district court ruled, Klimple cannot establish the causation element of negligence because the record lacks medical testimony stating “to a reasonable degree of medical certainty” that Klimple’s Kienbock’s disease was either caused by or aggravated by the accident.

[¶ 12] This Court has long required that expert medical opinions be expressed in terms of reasonable medical certainty, not mere possibilities. See, e.g., Kunnanz v. Edge, 515 N.W.2d 167, 172 (N.D.1994); Nelson v. Trinity Med. Ctr., 419 N.W.2d 886, 892 (N.D.1988); Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 763-64 (N.D.1980); Dehn v. Otter Tail Power Co., 251 N.W.2d 404, 412 (N.D.1977); Holecek, 171 N.W.2d at 100; Grenz v. Werre, 129 N.W.2d 681, 689 (N.D.1964); Vaux v. Hamilton, 103 N.W.2d 291, 295 (N.D.1960); 11A Blashfield § 431.5, at 394-95 (footnotes omitted) (“The opinion of causation must be adequately founded, and generally must be stated in terms of reasonable medical certainty.”). Although hy-pertechnical words are not necessary for admission of expert medical testimony, the test for admissibility “is whether the expert’s testimony demonstrates the expert is expressing a medical opinion that is more probable, or more likely than not.” Kunnanz, 515 N.W.2d at 173. Here, Dr. Keim testified only that the accident “[p]ossibly” caused or “[c]ould have” aggravated Klimple’s Kienbock’s disease. Dr. Keim’s testimony does not constitute an admissible medical opinion that the Ki-enbock’s disease was, more likely than not, caused by or aggravated by the accident.

[¶ 13] Klimple acknowledges the “equivocal" nature of Dr. Keim’s testimony on causation, but argues that the doctor’s testimony, considered together with his own testimony of the condition of his wrist before and after the accident, raises a genuine issue of material fact on proximate causation. Klimple relies on cases from other jurisdictions holding proximate cause in an ordinary negligence case may be established by medical evidence of “possible” causation combined with other evidence, including plaintiffs’ testimony about them physical condition before and after an accident. See, e.g., Guyer v. Mayor and Aldermen of the City of Savannah, 162 Ga.App. 598, 292 S.E.2d 445, 448 (1982) (medical testimony that injury “may be causally related” to collision coupled with plaintiffs testimony about effect on her work precluded summary judgment dismissal); Roberson v. Hicks, 694 N.E.2d 1161, 1163 (Ind.Ct.App.1998) (internal citations omitted) (“Standing alone, an expert opinion which lacks reasonable probability is not sufficient to support a verdict ... However, ‘an expert’s opinion that something is “possible” or “could have been” may be sufficient to sustain a verdict or award’ when rendered in conjunction with other, probative evidence establishing the material factual question to be proved.”); see also 11A Blashfield § 431.5, at 396-97 (footnotes omitted) (“it has been held that [medical] opinions may be stated in terms such as ‘might have caused’ or ‘could have caused’, where supported by other competent proof of causation”). We decline to adopt the reasoning of these cases because it conflicts with our caselaw on the admissibility of expert medical testimony and the competency of layperson testimony.

[¶ 14] In Asch v. Washburn Lignite Coal Co., 48 N.D. 734, 735, 186 N.W. 757, Syll. 6 (1922) (emphasis added), this Court held that “[t]he injured person is a competent witness to testify to his feelings, pains, and symptoms, as well as to all the characteristics of the injury, so far as the same are perceptible to the senses, and do not require the exercise of scientific skill and knoivledge.” See also Cain v. Stevenson, 218 Mont. 101, 706 P.2d 128, 131 (1985) (“lay testimony is not sufficient to establish cause for those aspects of an injury not apparently related to the accident in question”). We conclude the causal relationship between the accident and Klimple’s Kienbock’s disease is not a matter within the common knowledge or comprehension of a layperson. The incongruity of allowing equivocal medical testimony combined with layperson testimony to prove causation when the causation issue requires admissible expert testimony is explained in Palace Bar, Inc. v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 864 (1978):

A doctor’s testimony can only be considered evidence when he states that the conclusion he gives is based on reasonable medical certainty that a fact is true or untrue. A doctor’s testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury’s own speculation as to what is or is not possible. Almost anything is possible, and it is thus improper to allow a jury to consider and base a verdict upon a “possible” cause of death.

See also Oxendine v. State, 528 A.2d 870, 873 (Del.1987) (same); Topp v. Leffers, 838 N.E.2d 1027, 1036 (Ind.Ct.App.2005) (plaintiffs testimony in conjunction with expert medical opinions was not sufficient to prove causation because plaintiffs testimony merely established the possibility of causation and the doctor’s opinions lacked reasonable medical certainty); Baughman v. Pina, 200 Or.App. 15, 113 P.3d 459, 460 (2005) (“When the element of causation involves a complex medical question, as a matter of law, no rational juror can find that a plaintiff has established causation unless the plaintiff has presented expert testimony that there is a reasonable medical probability that the alleged negligence caused the plaintiffs injuries.... The rule prevents jurors from speculating about causation in cases where that determination requires expertise beyond the knowledge and experience of an ordinary lay person.”).

[¶ 15] Dr. Keim’s deposition testimony, considered together with Klimple’s deposition testimony, raise no more than speculation and conjecture about the cause or aggravation of Klimple’s Kienbock’s disease. Based on the narrow issue presented in this case, we agree with the district court that Klimple failed to raise a genuine issue of material fact that the accident proximately caused or aggravated Klim-ple’s Kienbock’s disease.

Ill

[¶ 16] The summary judgment is affirmed.

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

MARING, Justice,

concurring in part and dissenting in part.

[¶ 18] I, respectfully, concur in part and dissent in part.

[¶ 19] The issue is whether summary judgment was proper. Rule 56(c), N.D.R.Civ.P., provides that, if a motion for summary judgment is made,

Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Rule 56(e) provides:

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. If a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.

Summary judgment is a procedural device for deciding a case when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Charles McCauley P’ship v. Tyrone Twp., 2004 ND 214, ¶ 3, 689 N.W.2d 410.

A party moving for summary judgment has the initial burden of showing that there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts. In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, and he must be given the benefit of all favorable inferences which can be reasonably drawn from the evidence.

Id. (citations omitted).

[¶ 20] Our Court has held, under Rule 56(e), N.D.R.Civ.P., that “ ‘the burden on the moving party may be discharged by “showing” — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.’ ” Steinbach v. State, 2003 ND 46, ¶ 12, 658 N.W.2d 355 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In Black v. Abex Corp., 1999 ND 236, ¶ 19, 603 N.W.2d 182 (citing Celotex, at 325, 106 S.Ct. 2548), we said:

If the record, after discovery, contains no evidence to support an essential element of the plaintiffs claim, there is no “evidence” the defendant can point to in support of its assertion there is no such evidence. In such a case the rule allows the defendant to put the plaintiff to its proof, without the necessity of a full trial, by merely “pointing out” to the trial court the absence of evidence to support the plaintiffs case.

[¶ 21] In support of his motion for summary judgment, Bahl submitted the discovery depositions of Dr. Jeffery R. Keim and Klimple, and copies of Dr. Carey Welsh’s notes recorded on September 11, 2001, and on September 19, 2001, which were attached as exhibits A and B to his Reply Brief Regarding Defendant’s Motion for Summary Judgment. Bahl contends that the testimony given in these two depositions establishes as a matter of law there is no competent admissible evidence that the automobile accident caused or aggravated Klimple’s Kienbock’s disease.

[¶ 22] The first question is whether the movant has made a showing that demonstrates without regard to the opposing party’s response, there is no genuine issue of material fact, and he is entitled to judgment as a matter of law. Sagmiller v. Carlsen, 219 N.W.2d 885, 891 (N.D.1974); see also Brown v. North Dakota State Univ., 372 N.W.2d 879, 881 (N.D.1985).

[¶ 23] Dr. Keim’s deposition was taken as a discovery deposition by Bahl. Dr. Keim was asked numerous questions by Bahl concerning his medical opinions about Klimple’s Kienbock’s disease. Our Court has an established rule regarding expert testimony in a medical context, which is that “[a] medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities only, but not an opinion based on mere possibilities.” Vaux v. Hamilton, 103 N.W.2d 291, 295 (N.D.1960); Nelson v. Trinity Med. Ctr., 419 N.W.2d 886, 892 (N.D.1988); Dehn v. Otter Tail Power Co., 251 N.W.2d 404, 412-13 (N.D.1977); Kunnanz v. Edge, 515 N.W.2d 167, 172-73 (N.D.1994). Therefore, our decisions have held that the evi-dentiary standard for admission of an expert medical opinion does not require it be couched to a “reasonable degree of medical certainty,” but is satisfied if the medical expert opinion is expressed to a reasonable degree of probability. Our Court has held that it is not necessary to continually repeat these evidentiary standards if the expert testimony demonstrates the opinion is stated, at least, that it is more probable, or more likely than not. Kunnanz, 515 N.W.2d at 173.

[¶ 24] A careful reading of Dr. Keim’s deposition reveals that Dr. Keim was never asked to state his opinions to a reasonable degree of medical certainty or a reasonable degree of medical probability. Therefore, none of his opinions regarding the cause of Klimple’s Kienbock’s disease, whether it was caused by the automobile accident or whether it was aggravated by the automobile accident are admissible in evidence. In fact, Bahl’s attorney asked Dr. Keim for “possibilities” or to speculate:

Q. Doctor, is it possible that the motor vehicle accident may have caused the increase in Mr. Klimple’s pain complaints?
Q. Is it also possible that that — this increase in his pain complaints reflect progress of his preexisting Ki-enbock’s disease?

The majority of Bahl’s attorney’s questions eliciting an expert medical opinion have no stated evidentiary standard:

Q. ... What’s the cause of Kienbock’s?
Q. Is this something that a person like Mr. Klimple could get in a car accident?
Q. Is that enough time for the Kien-bock’s disease to develop to Stage 3?
Q. Does the lunate fracture precede the Kienbock’s disease?
Q. If he had preexisting Kienbock’s disease, he must have fractured the lunate at some time before the car accident?

Only at one point in Bahl’s attorney’s questioning did he get even close to properly asking for a medical expert opinion when he asked:

Q Let me ask it to you this way then. Can you say with any reasonable degree of certainty whether Kien-bock’s disease was caused in the car accident or not?

This question was not asked to a reasonable degree of “medical” certainty and clearly left out the question of whether the doctor could state an opinion to a reasonable degree of medical probability. With regard to whether the doctor had an opinion whether the automobile accident aggravated Klimple’s Kienbock’s disease, caused pain, or caused the fracture of the lunate to a reasonable degree of medical certainty or medical probability, the questions were never asked.

[¶ 25] Bahl’s attorney also took the deposition of Klimple. In his deposition, Klimple testified he had not sustained any trauma to his left wrist before the automobile accident; he saw Dr. Welsh twice in September 2001, for pain in his left wrist, and was told he had tendonitis; that he was able to do all of his work for his tree business; that, at the time of the accident, his left wrist bounced against the door and the steering wheel; that the very next day, his left wrist was stiff and he could not even move his hand; that he had to quit working that day; that he made an appointment with Dr. David Uthus and told the nurse his wrist injury was caused by a car accident; and that Dr. Uthus diagnosed a longitudinal fracture of his lunate bone of his left wrist and the presence of Kienbock’s disease. Klimple testified at his deposition:

Q. He said it was Kienbock’s disease?
A. He mentioned Kienbock’s disease was there and it was aggravated when this fracture came in that I want to call the lunate bone? I don’t know.
Q. It sounds right to me, but I don’t know, either.

Klimple’s complaint alleges he sustained an injury to his left wrist, including a fracture. Klimple testified the day after the accident he could not even move his left wrist and could not work. Before the accident he was able to work, lifting heavy branches and chainsaws. There is no evidence that Klimple had a fracture of the lunate bone before the automobile accident. Bahl attached to his Reply Brief Regarding Defendant’s Motion for Summary Judgment as exhibits A and B, Dr. Welsh’s notes of Klimple’s visits on September 11, 2001, and September 19, 2001. Dr. Welsh’s diagnosis was tendonitis, and he specifically noted that there was no evidence of trauma to the wrist. Furthermore, the note on September 11, 2001, stated that Klimple’s range of motion was intact and that there was tenderness of the dorsal wrist along the extensor tendons. “Dorsal” means “pertinent to the back;” “extensor” means “[a] muscle that extends a part;” and “tendon” means “[f|ibrous connective tissue serving for the attachment of muscles to bones and other parts.” Am.Jur.3d Proof of Facts, Taber’s Cyclopedic Medical Dictionary 525, 639, 1831 (16th ed.1989). On September 19, 2001, Dr. Welsh noted that Klimple had a “dull ache” and that it was at the left upper hand and base of the second metacarpal area, which is the second finger starting with the thumb as number one. Klimple had “tenderness” “proximal to the thenar eminence.” “Thenar” means “[c]oncerning the palm” and “thenar eminence” means “[a] prominence at the base of the thumb.” Am.Jur.3d Proof of Facts, Taber’s Cyclopedic Medical Dictionary, at 1846. These notes do not refer to any pain or tenderness over the “lunate bone.” The notes are inconsistent with a longitudinal fracture of the lunate bone. The diagnosis was “tendonitis,” which is defined as inflammation of the tendon. Id. at 1831.

[¶ 26] As recognized by the majority, an injured person can testify as to his health before an automobile accident and to his health after an automobile accident. See Asch v. Washburn Lignite Coal Co., 48 N.D. 734, 755-56, 186 N.W. 757, 765 (1922); see also State v. Miller, 530 N.W.2d 652, 656 (N.D.1995) (holding that “[witnesses who are not experts in medicine may still testify regarding the seriousness of wounds when the facts testified to are such that ‘[a]ny reasonable person with common sense is capable of expressing a view on such matters without first having to be qualified or treated as an expert witness’ ” (quoting State v. Schimetz, 328 N.W.2d 808, 815 (N.D.1982))). In the present case, Klimple himself and Dr. Welsh’s notes provide evidence that Klim-ple did not have a fractured lunate bone before the accident. The evidence is that Klimple had a fractured lunate bone after the accident. Klimple believes the fracture was caused by his wrist striking the car door and steering wheel.

[¶ 27] The question presented is: When is lay opinion testimony permissible on the question of causation and expert opinion testimony not required? We should decline to adopt an absolute rule which would make expert medical testimony necessary on proximate cause of a party’s injuries when such causation is within the usual and ordinary experience of the average person. Each case will differ and should be evaluated on its facts. To the extent that the majority opinion can be read broadly to require medical testimony on the proximate cause of a party’s injuries, which are within the common experience and knowledge of laypersons, sustained in an automobile accident, I disagree.

[¶ 28] I agree with the courts that have concluded plaintiffs’ and other lay witnesses’ testimony is competent to establish causation regarding various illnesses and injuries. Choi v. Anvil, 32 P.3d 1 (Alaska 2001); Dodge-Farrar v. American Cleaning Services Company, Inc., 137 Idaho 838, 54 P.3d 954 (Ct.App.2002); see 2 Wigmore, Evidence § 568(1), at 780-83 (Chadbourn Rev.1979); see also 66 A.L.R.2d 1082, 1126 § 8 (1959). The Alaska Supreme Court held: “Our case law requires expert testimony only when the nature or character of a person’s injuries require the special skill of an expert to help present the evidence to the trier of fact in a comprehensible format.” Choi, 32 P.3d at 3. The Idaho Court of Appeals held: “[W]e conclude that a layperson may testify to the causation of medical symptoms or of injuries where such causation is within the usual and ordinary experience of the average person, and also satisfies I.R.E. 701.” Dodge-Farrar, 54 P.3d at 958.

[¶ 29] “Whether a breach of a duty is the proximate cause of an injury depends on the facts and circumstances of each case and is a question of fact for the trier of fact.” Rued Ins., Inc., v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D.1996). “The existence of proximate cause is a fact question unless the evidence is such that reasonable minds can draw but one conclusion.” Id. at 774. Issues of negligence, proximate cause, and comparative fault are therefore questions of fact for the trier of fact. Butz v. Werner, 438 N.W.2d 509, 516 (N.D.1989). Summary judgment is rarely appropriate on the issue of proximate cause which is so dependent on the development of the facts and the evidence. See Kimball v. Landeis, 2002 ND 162, ¶ 7, 652 N.W.2d 330.

[¶ 30] I do agree with the majority, that a layperson is not a competent witness when the injury or disease requires the exercise of scientific skill and knowledge. I also agree that the issue of whether Klimple’s Kienbock’s disease was caused or aggravated by the automobile accident is the type of issue requiring expert medical testimony. However, the majority opinion appears to hold that the movant Bahl has proven a factual negative with regard to all of Klimple’s left wrist injuries — no proximate cause. The focus of this summary judgment is whether there is evidence that the automobile accident caused Klimple’s left wrist injuries. All inferences from the facts are to be drawn in favor of the nonmoving party. Charles McCauley P’ship, 2004 ND 214, ¶ 3, 689 N.W.2d 410. It is accurate that Klimple has not provided any admissible medical expert evidence that his Kien-bock’s disease was caused or aggravated by the automobile accident. On that issue, I agree with the majority’s conclusion summary judgment is appropriate.

[¶ 31] The majority, however, overlooks the evidence in the deposition of Klimple.

Q. What happened, in your opinion, in the accident that caused your wrist to be injured?
A. Well, when you hit, it kind of bounced against the door and the steering wheel. Right here on this part.
Q. Was your hand on the steering wheel at the time or on the door?
A. On the steering wheel.
Q. Okay. How did it bounce then?
A. Just kind of slapped off and hit the door.
Q. So it wasn’t like the steering wheel spun around or anything?
A. No.
Q. So it came off the steering wheel and hit the side of the door?
A. Yeah.
Q When did you first see a doctor after this accident?
A. I tried to — the first time I seen the doctor was the 8th of October, but I had tried to get an appointment with Dr. Uthus and he was booked up. That was the first open date. But you know how it is when you don’t have insurance, you think, well, it’s just a sprain, it’s going to be all right, nothing big.
Q. Now, is the only injury you’re claiming in this accident to your left wrist?
A. Correct.
Q. Did your left wrist bother you at the scene of the accident?
A. No.
Q. Okay. When did it start bothering you?
A. I went to work the next morning and I was going to pick up one of those seven and a half pound chain saws and do some cutting, and I couldn’t even move my hand to speak of. It was stiff, but I picked it up and it started bothering so I just thought, well, it’s just sprained, it will be all right and went home.
Q. And then I think you told me you went in to Dr. Uthus a week later?
A. The 8th, yes.
Q. Okay. What kind of problems did you tell Dr. Uthus you had?
A. I told him what had happened and everything, and he took an x-ray of it and found that there was — I can’t pronounce these.
Q. Neither can I.
A. Something about a lateral bone or— I don’t know. Anyway, it was fractured in there. And he put it in a cast and said that it should be hopefully better in four weeks. He said that it was Kien-bock’s disease, it’s called, and the finger was slipping down and he said he had to cast it to immobilize it. And he casted it and I had it on for I think probably roughly two weeks and went back in and had it x-rayed again. And he recasted it again; the fracture hadn’t done anything.
After he did that, it was into December already, and he took the cast off and he had me go to therapy three times a week. And that wasn’t doing anything. When I went back to see him again, he said, no, it’s not doing nothing; I’m going to turn you over to Dr. Keim. He’s a plastic surgeon and great hand specialist, and he said he could take care of it and do the surgery.
Q. That’s my understanding, too. The first time you went in to see Dr. Uthus, U-t-h-u-s, this is a patient assessment form that you completed; correct?
A. Yes.
Q. And it’s a two-page document; right?
A. Correct.
Q. And the reason for the visit today was you put in left wrist; correct?
A. Correct.
Q. Is that your handwriting that says auto accident?
A. That’s the nurse.
Q. And then the date of onset, 10-1-01, did you fill that in or the nurse?
A. No, the nurse.
Q. You just put in “left wrist” and you didn’t put in the date of onset; correct?
A. No. I told her.
Q. And that was on the 8th; correct?
A. Correct.
Q. But he did cast it the first day?
A. Yes.
Q. He said it was Kienbock’s disease?
A. He mentioned Kienbock’s disease was there and it was aggravated when this fracture came in that I want to call the lunate bone? I don’t know.
Q. And Uthus referred you to Keim?
A. Correct.
Q. K-e-i-m. Okay. He does the surgery?
A. Yes.
Q. And there’s a screw or something put in your hand, I think I read someplace?
A. Yes.
Q. Is that screw still in there?
A. Yes.
Q. Is that ever going to come out?
A. No.
Q. Do you know what the screw is in there for?
A. He did a bone graft on that fracture and put a screw in there for support.
Q. To hold the bone in place while it was grafting on?
A. Yes.

Klimple’s deposition exhibit 8 lists all of his treatment and the costs for the treatment. With regard to his work, Klimple testified he owns a tree service, which involves the trimming, stump removal, and the taking down of big trees. He testified he is right-handed, but that in his work he uses both hands.

[¶ 32] Klimple explained in his deposition that he used to be able to use his left hand to hold a branch while cutting it off, and he no longer has the strength to do that. He also testified that when he carries anything heavy his left wrist “[j]ust knots up” and he gets “writer’s cramps.” He has stiffness in the mornings in the left wrist and cannot pick up anything thin from a flat surface. He testified that since the surgery, the pain is gone but he still has some swelling in the wrist.

[¶ 33] I am of the opinion that Klim-ple’s testimony about the trauma to his left wrist at the time of the accident and the symptoms in his left wrist immediately the next day of pain, stiffness, immobility, and lack of strength are within the usual and ordinary experience of the average person. I also am of the opinion that Klimple’s testimony that he was able to use his equipment and take down trees using his left wrist before the accident and that the day after the accident he could not is evidence from which a reasonable inference can be drawn that the automobile accident proximately caused the symptoms of pain, stiffness, immobility, and lack of strength which he perceived in his left wrist. The further away in time the symptoms and treatment become, the more tenuous the causal relationship. However, I am of the opinion that there is enough evidence of the injury proximate enough to the automobile accident. Just where the line should be drawn requiring expert testimony in this case is a decision for the trial court. However, the symptoms and treatment that occurred shortly after the traumatic event, are within the common knowledge and experience of the average person and Klimple’s cause of action should survive summary judgment.

[¶ 34] I would affirm the summary judgment on the issue of proximate cause or aggravation of Kienbock’s disease because its cause or aggravation requires medical expert evidence and there is none in this record. I would reverse the summary judgment, however, with respect to Klimple’s claim for compensation for symptoms and medical treatment immediately following the automobile accident and subsequently unrelated to the Kienbock’s disease.

[¶ 35] Mary Muehlen Maring


author: SANDSTROM, Justice.

text:
    2007 ND 12
    B.J. KADRMAS, INC., Plaintiff and Appellee v. OXBOW ENERGY, LLC, Defendant and Appellant.
    No. 20060137.
    Supreme Court of North Dakota.
    Feb. 1, 2007.

      Gary D. Ramsey, Greenwood & Ramsey, PLLP, Dickinson, ND, for plaintiff and appellee.
    Timothy A. Priebe (argued) and Jennifer Grosz (on brief), Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Oxbow Energy, LLC, appeals from a district court judgment ordering it to pay for services under an implied contract with B.J. Kadrmas, Inc. Concluding that the facts and surrounding circumstances, as well as the district court’s resolution of conflicting testimony, support the conclusion that the parties mutually intended to form a binding legal obligation, we affirm.

I

[If 2] At trial, Robert Angerer of Oil For America (“OFA”) testified that he met with Bev Kadrmas in December 2003 to discuss having her company perform title searches on lands whose mineral rights had multiple owners. Angerer refers to these tracts as “pro-splits.” Angerer testified that OFA had developed a new method of finding oil through the use of aerial photography. Another oil exploration company, Petrosearch, had used OFA’s technology to drill a successful well in the Williston Basin. According to An-gerer, OFA had mapped over a million acres in its search for new oil and gas deposits. OFA had already leased large portions of these mapped areas, but had skipped tracts Angerer thought might be difficult to lease — mostly the tracts with fractionalized mineral right ownership. Angerer explained that it had a contract with Petrosearch and Oxbow to allow those companies to drill wells on land OFA had leased or sought to lease. Angerer said that a failure to drill on leased lands would ultimately result in a loss of the right to explore for oil there. As such, OFA agreed to provide some of its mapped acreage to Petrosearch and Oxbow in exchange for a share of any resulting profits from wells those two companies drilled. Because this acreage had multiple mineral right ownership, Angerer planned to have an experienced title company organize and streamline the title search process to reduce duplicative analysis for those tracts whose mineral ownership overlapped or “ran common” among the three oil companies. Angerer testified that he asked Kadrmas to make separate agreements with him on behalf of OFA, Dan Denton for Petrosearch, and Tony Martin for Oxbow. OFA and Petrosearch both signed contracts with Kadrmas in December 2003 and later paid Kadrmas for their portion of the title work, which included a preliminary assessment of the tracts to organize the overall undertaking; however, Oxbow did not.

[¶ 3] Kadrmas testified that Martin told her to proceed with Oxbow’s share of the title work during a telephone conversation on January 10, 2004. Later that same day, Kadrmas sent Martin a letter that she says memorialized her conversation with him. She also testified that she enclosed a contract for Martin to sign. Martin denies giving Kadrmas the order to proceed; instead, he testified, he only asked for a cost estimate. Martin testified that he received the Kadrmas contract but that he disagreed with its terms and shredded it. He also testified that he notified Kadrmas that he found the contract “not acceptable” and “too generic.” Kadrmas testified that it was not until March 2004 that she realized the Oxbow contract had never been returned.

[¶ 4] The district court found that the factual accounts presented by both parties “could not be further apart” but that Kadrmas presented “the most consistent and credible” evidence. It found that “[t]he letters, emails, and other documentation make [Kadrmas’s] testimony more believable and consistent” and concluded that “the facts would at least support the conclusion of an implied contract if not an expressed contract.” The district court ordered Oxbow to pay Kadrmas $17,613.38 plus interest.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] Oxbow argues that there was no contract and that the district court erred by including work done before it communicated with Kadrmas about the project and after it told Kadrmas to stop all title work on its behalf.

A

[¶ 7] In Lonesome Dove Petroleum, Inc. v. Nelson, we explained the standard of review for the resolution of contract issues on appeal:

The existence of a contract is a question of fact for the trier of fact. Stout v. Fisher Industries, Inc., 1999 ND 218, ¶ 11, 603 N.W.2d 52; Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 842 (N.D.1996). The trier of fact determines whether a contract is intended to be a complete, final, and binding agreement. Jones, at 842. Our review of these questions is governed by the “clearly erroneous” standard under N.D.R.Civ.P. 52(a). Jones, at 842. Under that standard, a finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Bleth v. Bleth, 2000 ND 52, ¶ 8, 607 N.W.2d 577.

2000 ND 104, ¶ 15, 611 N.W.2d 154. Furthermore, in a bench trial, the district court determines credibility issues, which we will not second-guess on appeal. Buri v. Ramsey, 2005 ND 65, ¶ 10, 693 N.W.2d 619 (internal quotations and citation omitted). “ We do not reweigh evidence or reassess credibility, nor do we reexamine findings of fact made upon conflicting testimony. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.’ ” Id. (quoting Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256).

[¶ 8] Oxbow’s representative, Tony Martin, presented a factual account that could be construed as a mere negotiation. From his perspective, it could be inferred that he had rejected all of Kadrmas’s offers, because he never signed the contract, or had made a counteroffer by requesting a cost estimate. Martin testified that upon receipt of the Kadrmas cost estimate on February 7, 2004, he told Kadrmas on February 9, 2004, that “she was not to proceed with any work for Oxbow Energy, LLC. Period. Period. ‘Do not proceed. Do not do any work for Oxbow Energy.’ Not, you know, industry standards and you can keep doing what’s ever out there, or anything else. No. Do not do anything— any work for Oxbow Energy, LLC.”

[¶ 9] On the other hand, Kadrmas testified that Oxbow agreed to her terms over the telephone on January 10, 2004. The record contains a letter Kadrmas sent to Oxbow and Petrosearch that same day that reiterated the terms of their agreement. Martin admitted receiving the Kadrmas contract; therefore, the district court could have reasonably inferred that Martin also received the accompanying letter. In that letter, Kadrmas also included invoices for the preliminary work done to organize her efforts to avoid duplicative title searches. As such, Martin likely knew Kadrmas was working on Oxbow’s behalf and did nothing to stop her.

[¶ 10] Because the district court was given a choice between two permissible views of the evidence, its findings of fact are not clearly erroneous. Our analysis then turns to the law of contract formation, to which we will apply Kadrmas’s version of the facts.

B

[¶ 11] • “To create an enforceable contract, there must be a mutual intent to create a legal obligation.” Lire, Inc. v. Bob’s Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 434 (N.D.1995) (citing N.D.C.C. §§ 9-01-02; 9-03-01). “The parties’ mutual assent is determined by their objective manifestations, not their secret intentions.” Lire, Inc., 541 N.W.2d at 434 (citing Nat'l Bank of Harvey v. Int’l Harvester Co., 421 N.W.2d 799, 804 (N.D.1988); Amann v. Frederick, 257 N.W.2d 436, 439 (N.D.1977)). “A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.” N.D.C.C. § 9-06-01; cf. Estate of Zent, 459 N.W.2d 795, 798 (N.D.1990) (A contract implied in law or a claim of unjust enrichment is a fiction of law adopted to achieve justice where no true contract exists.). “Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.” Bismarck Hospital Ass’n v. Burleigh County, 146 N.W.2d 887, 893 (N.D.1966) (internal citations and quotations omitted).

[¶ 12] “Where the parties have agreed on the essential terms of a contract, the fact they contemplated a further writing memorializing the agreement does not prevent enforcement of the contract.” Lonesome Dove Petroleum, Inc., 2000 ND 104, ¶ 18, 611 N.W.2d 154. Essential contract terms depend on the context of the agreement. See, e.g., Lire, Inc., 541 N.W.2d at 434-35 (“a non-competition agreement for the selling of Italian type foods for a period of 5 years and within a radius of 60 miles of Rugby ... completely describe the type of business restriction, the duration of the restriction, and the geographic limitation for the restriction”); Union State Bank v. Woell, 434 N.W.2d 712, 717 (N.D.1989) (“Essential terms of an oral contract to continue lending money in the future include the amount and duration of the loans, interest rates, and, where appropriate, the methods of repayment and collateral for the loans, if any.”). “[I]t is the intent of the parties which controls, and a binding agreement is created unless the parties intended there be no agreement until a writing is signed.” Lonesome Dove Petroleum, Inc., at ¶ 19.

[¶ 13] “It is a general rulé of law that silence and inaction, or mere silence or failure to reject an offer when it is made, do not constitute an acceptance of the offer. However, under some circumstances, silence and inaction operate as an acceptance, as where, under the circumstances, an inference of assent is warranted, or at least where, under the circumstances, such an inference is required or is necessary.” 17A Am.Jur.2d Contracts § 103 (1991) (footnotes omitted) (citing Lechler v. Montana Life Ins. Co., 48 N.D. 644, 186 N.W. 271 (1921)). “[Wjhere the relations between parties have been such as to justify the offerer in expecting a reply, or where the offeree has come under some duty to communicate either a rejection or acceptance, his failure to communicate his rejection or to perform this duty may result in a legal assent to the terms of the offer.” Lechler, 48 N.D. at 653, 186 N.W. at 274. “A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the facts are known or ought to be known to the person accepting.” N.D.C.C. § 9-03-25.

[¶ 14] Because there is no physical record of the January 10, 2004, telephone conversation between Martin and Kadr-mas, and because both parties offered materially different accounts of what was discussed, we cannot say that the district court clearly erred in finding mutual assent. The order of the communications is critical to an accurate analysis of offer, counteroffer, acceptance, modification, and the like. The district court concluded that an implied in fact contract existed between the parties, rather than an express oral contract. The surrounding circumstances and conduct of the parties were relevant to ascertaining whether they intended to form a binding legal agreement.

[¶ 15] Oxbow argues that Kadrmas’s use of written contracts establishes that the district court erred. Kadrmas testified that she explained to Martin her daily labor rate, additional expenses charged, and the land tracts to be searched in the written contract she sent to Oxbow. By her own testimony she believed that Oxbow had signed the contract and returned it. It was March 2004 before she realized this had not happened. Therefore, it would be reasonable to conclude, solely from Kadrmas’s testimony, that she intended that the written contract was to be the final expression of her intent to form a binding agreement with Oxbow. On the other hand, Kadrmas testified that her company did not have a system established to check for the return of signed contracts. Therefore, the fact that the other companies, Petrosearch and OFA, both signed and returned contracts does not necessarily weigh against Kadrmas, because she may not have known those contracts had been returned either. Kadrmas hired additional workers and incurred substantial expenses based on the circumstances of this arrangement and the conduct of the parties.

[¶ 16] Kadrmas began work on the project in December 2003, about one month before she spoke with Martin; however, she dutifully kept Martin informed on the progress of the work she was doing on his company’s behalf. These communications began as early as January 10, 2004, evidenced by the letter Kadrmas sent with the unsigned contracts and invoices for work her company had already done to organize the title search project. The contract, dated December 15, 2003, contained two exhibits: one listing the tracts to be searched and another providing Kadrmas’s daily rate plus a lengthy list of additional expenses, such as motel costs, meals, mileage, phone/fax/cell, internet, notary fees, postage, photocopies, title fees, maps, transportation costs, and miscellaneous office supplies. The attached invoices included charges under many of these categories and provided a detailed accounting of wage rates, additional expenses, and dates for work performed. One party’s billing another for work done prior to any communication with the other party might seem unusual; however, in this case, An-gerer coordinated the leasing project to reduce all three companies’ costs. Angerer sent Denton an e-mail dated December 10, 2003, which copied Martin, that explained the concept:

There are 12 or 13 pro-splits. [Kadr-mas] has had to deal with the pros many times and knows their idiosycracies [sic] ... I would do no moré than identify the quarter section or half section as needed. [Kadrmas] is also working with 20 odd pro-splits that Tony [Martin] is paying to have done and working with him directly. I also gave her 7 odd pro-splits for OFA. With all these pro-splits it will make it easier for her to aggregate and deal. I only asked her to tell me the status of her leasing so I may continue to map what we have under option or lease. She will take her instructions from you, Tony, and me as to our individual prospects.

Doubt on Martin’s part could have been eliminated by contacting Kadrmas or An-gerer with questions regarding the attached invoices or the nature of the leasing project. The record contains two e-mail messages from Martin to Kadrmas dated January 12 and 13, 2004, that confirm Martin had Kadrmas’s correct contact information. On January 21, 2004, Kadrmas sent another letter to Martin that detailed a January 14, 2004, meeting she had with Angerer. In that letter, Kadrmas explained that she had hired additional land-men and notified Martin that he would be receiving title reports “soon.” This letter also included invoices for the January 1-15, 2004, pay period. The next communication by Martin was an e-mail dated January 26, 2004, updating Kadrmas with his contact information.

[¶ 17] The record contains no evidence that Martin or any other Oxbow representative ever notified Kadrmas via letter or e-mail that it had not accepted the terms of the contract or that it had a question about the contract, nor did anyone dispute the steady flow of invoices detailing the work Kadrmas was doing. This placed resolution of the conflicting testimony with the district court. At no time prior to February 9, 2004, did Oxbow respond to Kadrmas in writing to dispute the invoices, the daily wage rate, the additional expenses, the list of land tracts, or the method of organizing or executing the title searches. Oxbow sat by until the bulk of the work had been done. Martin testified that he never opened the reports he received from Kadrmas; however, the district court could reasonably conclude that his company benefited from the title work: Oxbow used Kadrmas to aid it in a feasibility study for the oil exploration project. The very estimate Kadrmas provided to Oxbow on February 7, 2004, was based on substantial work already completed on Oxbow’s behalf — which began in December 2003. According to Kadrmas’s testimony, an estimate for this type of work was difficult, because a tract of land could have hundreds of mineral owners. That fact would not be known until the title documents were analyzed. Kadrmas had previously explained this to Martin, but she provided a rough estimate anyway. In an e-mail to Martin dated February 7, 2004, Kadrmas estimated the future monthly billing based on a previous billing period: “I combined the total of OFA, Petrosearch and Oxbow billings for this pay-period and doubled it (2 pay-periods per month) and divided it by 3 and I think that the statements will run about $10,000 per month with the landmen I have present.” Martin was apprised once again that Kadrmas was working on Oxbow’s behalf. By February 7, 2004, Kadrmas had billed Oxbow over $17,000. Kadrmas testified that on February 9, 2004, Martin put the title work “on hold”; however, she also testified that Martin told her to finish the work on tracts in progress. Because the district court found Kadrmas’s testimony more consistent and credible than Martin’s, it concluded that Oxbow owed Kadrmas for work done as late as February 16 and 27, 2004, reflecting that it found Martin had told Kadrmas to complete the work on tracts in progress.

[¶ 18] The district court’s findings of fact are not clearly erroneous, and its conclusions of law are supported by its findings.

Ill

[¶ 19] We affirm the district court judgment.

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


author: CROTHERS, Justice.

text:
    2007 ND 19
    Brandan HENTZ and Troy Hentz, Appellants v. ELMA TOWNSHIP BOARD OF SUPERVISORS, acting as the Elma Township Zoning Commission, Appellee.
    No. 20060198.
    Supreme Court of North Dakota.
    Feb. 5, 2007.

      John D. Bullís, Lies & Bullís, Wahpeton, ND, for appellants.
    Tami L. Norgard (argued) and Kari R. Reichert (appeared), Vogel Law Firm, Fargo, ND, for appellee.
   CROTHERS, Justice.

[¶ 1] Brandan and Troy Hentz (“the Hentzes”) appealed from the district court’s dismissal of their appeal from the Elma Township Zoning Commission’s (“the Township”) findings that they violated a zoning ordinance by planting trees too close to county roads. We reverse the district court’s judgment after concluding the Township’s decision was unreasonable, and we remand to the Township to vacate its February 12, 2006 Order.

I

[¶ 2] The relevant facts are undisputed. The Hentzes are tree farmers who own trees planted for the purposes of tree farming. Some of the trees were planted within 120 feet of the center of two county roads bordering the north and west sides of the NW1/4 of Section 15 in Elma Township, Richland County. Neither party contends these trees are part of a “shelter-belt.” The Township notified the Hentzes in March 2005 that the trees violated Section 3.8 of the township ordinances, requiring trees be planted at least 120 feet from the center of roads. The Township conducted a hearing on January 30, 2006, but failed to preserve, and could not file, the original or a certified copy of the entire proceedings. The Township issued its Findings of Fact and Order in February 2006, ordering the Hentzes either to destroy or remove all trees within 120 feet of the center of adjacent county roads or to submit an alternative plan for compliance within thirty days. The Hentzes appealed to the district court, which affirmed the Township’s findings and dismissed the Hentzes’ appeal with prejudice. This appeal followed.

II

[¶ 3] The Hentzes argue the Township erred in finding them in violation of the zoning ordinance.

[¶ 4] When considering an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court’s and is very limited. Tibert v. City of Minto, 2006 ND 189, ¶ 8, 720 N.W.2d 921 (citing Pic v. City of Grafton, 1998 ND 202, ¶¶ 6, 8, 586 N.W.2d 159). This Court’s function is to independently determine the propriety of the Township’s decision without giving special deference to the district court decision. Tibert, at ¶ 8. The Township’s decision must be affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision. Id. (citing Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846). “A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.” Tibert, at ¶ 8 (citing Klindt v. Pembina County Water Res. Bd., 2005 ND 106, ¶ 12, 697 N.W.2d 339). ‘We fully review the interpretation of an ordinance, and a governing body’s failure to correctly interpret and apply controlling law constitutes arbitrary, capricious, and unreasonable conduct.” City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D.1996) (citing Gullickson v. Stark County Comm’rs, 474 N.W.2d 890, 892 (N.D.1991)).

[¶ 5] The Hentzes contend the Township acted arbitrarily, capriciously, or unreasonably in determining they were in violation of the zoning ordinance because they have a tree farm which is specifically exempted by the zoning ordinances. We agree because the Township did not correctly construe its ordinances.

[¶ 6] The Township adopted its zoning ordinances in 1997 with enumerated express purposes, one of which is “[t]o preserve and protect farming operations, farm lands and natural resources of the township.” Elma Township Zoning Regulation 1997, § 1.2.3. The Township specified “the most restrictive shall govern unless otherwise specifically stated” in its rule for interpreting regulations at variance with “other lawfully adopted rules, regulations, [or] ordinances.” Elma Township Zoning Regulation 1997, § 1.5.

[¶ 7] Section 1.8 provides an exception for agriculture: “These regulations shall not apply to the use of land and buildings for agriculture as defined herein.” The Township defined agriculture in Section 2.2.2 to include “tree farming”:

‘Agriculture’ means the process of producing food and fiber including, but not limited to the land, facilities, structures, and buildings for operation and maintenance thereof. It includes all types of general farming, crop and vegetable farming, dairying, livestock and poultry raising, apiaries, fur farming, horticulture, pasturing, tree farming and related land based food and fiber producing facilities.

[¶ 8] The Hentzes were found in violation of Section 3.8 governing “Road and Highway Setback — Tree Plantings, Shel-terbelts.” It requires:

All buildings and structures and trees shall be placed at least 100 (one hundred) feet from county, state highway and township road rights-of-way for the purpose of preventing hazardous accumulations of snow and to allow for future widening of public right-of-ways [sic]. Tree plantings and shelterbelts shall be planted 120' from center of roads.

Section 3.8 prohibits “tree plantings” and “shelterbelts” within 120 feet of a road centerline. Because there was no factual dispute in this case, the remaining legal question is whether Hentzes’ “tree farm” falls within the prohibitions.

[¶ 9] We interpret ordinances as we would any statute. GO Committee v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865 (citations omitted). Ordinance interpretation, like statutory interpretation, is a question of law subject to full review upon appeal. Id. (citation omitted). “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “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. In construing a statute, we ascertain the enacting body’s intent by giving the statutory language its plain, ordinary, and commonly understood meaning. GO Committee, at ¶ 9. “ ‘We construe statutes as a whole and harmonize them to give meaning to related provisions.’” Id. (quoting Larson v. Larson, 2005 ND 67, ¶ 8, 694 N.W.2d 13).

[¶ 10] Here, we read Sections 1.8 and 3.8 together and harmonize them to conclude the Township erred when interpreting its ordinances. Section 1.8 exempted “agriculture” from any of the zoning regulations. “Agriculture” specifically included “tree farms.” Because “tree farms” are exempt from regulation under Section 1.8, Section 3.8 can only be harmonized with Section 1.8 by concluding that the setback requirements for “tree plantings” or “shel-terbelts” mean something other than “tree farms.” Otherwise, the exception in Section 1.8 would be nullified by the regulation in Section 3.8, which is contrary to the plain words of Section 1.8. We therefore reject the Township’s construction because it would make “tree farms” synonymous with “tree plantings” and “shelterbelts” and render meaningless the “tree farm” and “agriculture” exemption in Section 1.8.

Ill

[¶ 11] We reverse the district court’s judgment after concluding the Township’s decision was unreasonable, and we remand to the Township to vacate its February 12, 2006 Order.

[¶ 12] GERALD W. YANDEWALLE, C.J., EVERETT NELS OLSON, S.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 13] The Honorable EVERETT NELS OLSON, S.J., sitting in place of KAPSNER, J., disqualified.