author: VANDE WALLE, Chief Justice.

text:
    2005 ND 40
    Jared LOCHTHOWE, Plaintiff and Appellant, v. C.F. PETERSON ESTATE, Peterson Farm Properties, Douglas Thompson, Defendants and David Thompson, Defendant and Appellee.
    No. 20040159.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, N.D., for plaintiff and appellant.
    Robert J. Lamont, Lamont Law Firm, Minot, N.D., for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Jared Lochthowe appealed from a judgment dismissing his action against C.F. Peterson Estate, Peterson Farm Properties, Douglas Thompson and David Thompson, and awarding David Thompson $28,894.36 in damages on his counterclaim against Lochthowe. We conclude the district court did not abuse its discretion in refusing to allow Lochthowe to amend his complaint to allege a claim for unjust enrichment against David Thompson because, under the circumstances, unjust enrichment is unavailable as a matter of law. We further conclude the district court’s award of damages to David Thompson on his claim of unlawful interference with a business relationship is not clearly erroneous. We affirm.

I

[¶ 2] In 1999 Lochthowe leased 611.2 acres of Ward County farmland on a cash rent basis from the C.F. Peterson Estate for $35 per acre. At the time they entered into the lease, Douglas Thompson, the personal representative of the Estate, told Lochthowe the land would be sold in 2000 and that he would be given an opportunity to bid on it. Because of heavy and persistent rains during the spring of 1999, Lo-chthowe was able to plant only 160 of the 611.2 acres, and the crop on those 160 acres was subsequently destroyed by hail early in the season. Lochthowe had purchased crop insurance for the 160 acres and, to collect the insurance proceeds, he had tó plow under this acreage. Afterward, Lochthowe again asked Douglas Thompson what the Estate’s plans were for the farmland in 2000. Douglas Thompson advised Lochthowe that he could lease the land for the same price, and if the land would be offered for sale, he could bid on the property. Douglas Thompson also informed Lochthowe he would be reimbursed for any work he did on the farmland. Lochthowe subsequently applied $3,800 in chemicals to the land and summer fallowed the property.

[¶ 3] During the spring of 2000, Lo-chthowe learned that the Estate was offering the land for sale to the highest bidder. Lochthowe and his father submitted the highest bids. However, the Estate informed Lochthowe and his father that, because of a right of first refusal contained in the Peterson Farm Properties partnership agreement, they would have to post an additional $20,000 before their bids could be accepted. The Estate also informed them that, in the alternative, they could lease the property for $46 per acre, more than the $35 per acre Douglas Thompson had promised Lochthowe the previous summer. Lochthowe made a counteroffer to the Estate to cash rent the land for $35 per acre or have the Estate reimburse him $30,560 for applying chemicals to and summer fallowing the land. The Estate, through Douglas Thompson, refused Lo-chthowe’s offer and instead allowed David Thompson, an heir of the Estate, to lease the land for $30 per acre. David Thompson later purchased the 611.2 acres plus additional property from the Estate for the amount Lochthowe and his father had bid.

[¶ 4] After Lochthowe’s demand for payment was rejected, he filed an agricultural supplier’s lien in September 2000 against the Estate and Peterson Farm Properties. David Thompson’s name was also written on the lien. Lochthowe hand delivered the lien to Cargill, Inc., where David Thompson stored his grain, informed Cargill he had a lien on the grain, and told Cargill any check for sales of grain by David Thompson had to have Lochthowe’s name on it. Lochthowe later visited Cargill on two occasions to see if David Thompson had sold any grain.

[¶ 5] Lochthowe sued the Estate, Peterson Farm Properties, Douglas Thompson and David Thompson seeking $30,560 because “Defendants terminated the Plaintiff[’]s lease and did not reimburse him for the summer fallow on said property.” David Thompson counterclaimed for unlawful interference with business relations, asserting Lochthowe had filed an illegal lien against him which damaged his credit, made it impossible for him to sell his grain, delayed his ability to pay creditors, and increased his interest costs.

[¶ 6] Before trial, the parties informed the court that Lochthowe had settled and entered into a “P[i]erringer type release” with Douglas Thompson, the Estate and Peterson Farm Properties for payment of $8,000, and the court dismissed those defendants from the lawsuit. The court held a bench trial on Lochthowe’s claim against David Thompson and David Thompson’s counterclaim against Lochthowe. After the trial, Lochthowe moved under N.D.R.CivJP. 15(b) to amend his pleadings to include a claim for unjust enrichment against David Thompson. The court denied the motion because “the evidence offered at trial was relevant to pled and unpled claims of recovery.” The court dismissed Lochthowe’s claim against David Thompson, concluding “joint and several liability” could not exist between David Thompson and the other dismissed defendants to support Lochthowe’s action because David Thompson was not “a party to a lease agreement that was clearly between Locht[h]owe and P.R. Douglas Thompson.” The court further ruled in favor of David Thompson on his counterclaim against Lochthowe for unlawful interference with business relations and awarded him $28,894.36 in damages.

II

[¶ 7] On appeal, Lochthowe argues the district court erred in refusing to allow him to amend his complaint against David Thompson so the court could consider the doctrine of unjust enrichment in arriving at its decision.

[¶ 8] Under N.D.R.Civ.P. 15(b), a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings. Mann v. Zabolotny, 2000 ND 160, ¶ 12, 615 N.W.2d 526. Amendment of pleadings by implication may only arise when the evidence introduced is not relevant to any issue pleaded in the case. Id. Whether an issue is tried by the implied consent of the parties is a matter within the district court’s discretion and will not be reversed on appeal absent an abuse of discretion. Tarnavsky v. Tarnavsky, 2003 ND 110, ¶ 13, 666 N.W.2d 444. An abuse of discretion occurs only when the district court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Gonzalez v. Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653. We conclude the district court did not abuse its discretion in denying Lochthowe’s motion to amend the pleadings because, as a matter of law under the undisputed facts in this case, Lo-chthowe cannot show David Thompson was unjustly enriched.

[¶ 9] Unjust enrichment is an equitable doctrine, applied in the absence of an express or implied contract, to prevent a person from being unjustly enriched at the expense of another. Apache Corp. v. MDU Res. Group, Inc., 1999 ND 247, ¶ 13, 603 N.W.2d 891. To recover under a theory of unjust enrichment, one must prove (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of a justification for the enrichment and impoverishment; and (5) an absence of a remedy provided by law. Zuger v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 135, 138 (N.D.1992). A determination of unjust enrichment is a conclusion of law fully reviewable by this Court. Ritter, Laber and Assoc., Inc. v. Koch Oil, Inc., 2004 ND 117, ¶ 26, 680 N.W.2d 634.

[¶ 10] When an impoverishment results from a valid contractual arrangement made by a party, the result is not contrary to equity and there has been no unjust enrichment. BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55, ¶ 23, 642 N.W.2d 873. Therefore, we have said unjust enrichment generally applies only in the absence of a contract between the parties, and there can be no implied-in-law contract when there is an express contract between the parties relative to the same subject matter. Id. at ¶ 37. Moreover, although a third party may benefit from a contractual arrangement between others, respect for that contractual arrangement requires that courts refuse restitution between parties who did not contract with each other. Apache Corp., 1999 ND 247, ¶ 14, 603 N.W.2d 891; D. Dobbs, Law of Remedies § 4.9(4) (2nd ed.1993). Consequently, a third party who derives gain from an agreement between others has not necessarily been unjustly enriched, unless the third party has participated somehow in the transaction through which the benefit is obtained. Zuger, 494 N.W.2d at 139; Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 558 (N.D.1981). In Home Ins. of Dickinson v. Speldrich, 436 N.W.2d 1, 3 (N.D.1989) (quoting Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 154-55 (1966)), we explained:

“Indisputably, where one is afforded recovery from the person with whom he has a contract, he cannot also recover from third persons incidentally benefited by his performance. In such a case it could hardly be said that the retention of the benefit by the third party is unjust as to the furnisher. However, the situation is dissimilar where a person furnishes materials and labor under a contract for the benefit of a third party, and that contract becomes unenforceable or invalid. In that situation there is certainly no reason to preclude the fur-nisher or subcontractor from seeking recovery against the third person on the theory of quantum meruit [i.e., unjust enrichment].”

[¶ 11] The situation in this case is somewhat analogous to the facts in D.C. Trautman Co. v. Fargo Excavating Co., Inc., 380 N.W.2d 644 (N.D.1986). In D.C. Trautman Co., Fargo Excavating contracted with the City of Fargo to demolish and remove structures in preparation for a new building to be' constructed by Dakota Bank & Trust Company. A common wall separated Royal Jewelers from one of the buildings to be demolished. The common wall was extensively damaged during the demolition and Fargo Excavating, under a directive from the City, entered into an oral agreement with Trautman to have Trautman repair and strengthen the common wall. After completing the task and spending more than $36,000 on the project, Trautman received no payment and sued Fargo Excavating, Great American Insurance Company, Dakota Bank & Trust Company, the City and Royal Jewelers seeking compensation. Before trial, Trautman entered into a settlement agreement with all defendants except Royal Jewelers and the other defendants assigned any rights they may have had against Royal Jewelers to Trautman. Trautman proceeded to trial against Royal Jewelers on the theory of unjust enrichment, and at the close of Trautman’s case, the district court dismissed Trautman’s claim on the ground that it had failed to establish the elements necessary for recovery.

[¶ 12] This Court affirmed, relying in part on the principle that a party is not entitled to equitable relief in the form of unjust enrichment if there is an adequate remedy provided by law:

Trautman had such a remedy in this case. The trial court found that Traut-man had an oral agreement with Fargo Excavating to perform the repair work and that Fargo Excavating, pursuant to that agreement, was liable to Trautman for the.entire amount of the project, together with interest. Those findings by the trial court are supported by the evidence in the record and are not clearly erroneous. Accordingly, Trautman had an adequate remedy at law for breach of contract which precludes alternative equitable relief.

D.C. Trautman Co., 380 N.W.2d at 645-46. Trautman’s settlement did not diminish the adequacy of Trautman’s legal remedy of a breach of contract action against Fargo Excavating.

[¶ 13] During the trial in this case, Lochthowe argued he had an agreement with Douglas Thompson, the personal representative of the Estate, and Peterson Farm Properties to either be reimbursed for his improvement to the farmland or be allowed to lease or purchase the land the following year. Lo-chthowe testified that he had no agreement of any kind with David Thompson and conceded there is no evidence in the record to show that David Thompson participated in the termination of his lease. Indeed, David Thompson, although an heir of the Estate, testified he “didn’t get along” with Douglas Thompson. Lo-chthowe settled with all defendants except David Thompson through a “P[i]erringer type release” which is not included in the record on appeal. Generally, a Pierringer release releases the settling defendants’ liability but allows the plaintiff to proceed against nonsettling defendants for their percentage of causal negligence. See Pierringer v. Roger, 21 Wis.2d 182, 124 N.W.2d 106 (1963); Bartels v. City of Williston, 276 N.W.2d 113, 119 (N.D.1979). The district court found Lo-chthowe had an agreement concerning reimbursement for summer fallow work with Douglas Thompson on behalf of the Estate. As in D.C. Trautman Co., Lochthowe had a legal remedy for breach of contract against Douglas Thompson, the Estate and Peterson Farm Properties, but settled with them before trial. See Tong v. Borstad, 231 N.W.2d 795, 800 (N.D.1975) (custom and usage authorized tenant to be compensated by landlord for summer fallow work).

[¶ 14] We conclude Lochthowe had an adequate legal remedy which precluded him from pursuing an unjust enrichment action against David Thompson as a matter of law. Consequently, we conclude the district court did not abuse its discretion in refusing to allow Lochthowe to amend his complaint under N.D.R.Civ.P. 15(b).

Ill

[¶ 15] Lochthowe argues the district court erred in awarding David Thompson $28,894.36 on his counterclaim for unlawful interference with a business relationship.

[¶ 16] In Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 36, 628 N.W.2d 707, we said:

[I]n order to prevail on a claim for unlawful interference with business, a plaintiff must prove the following essential elements: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof that the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.

See also Smith Enter., Inc. v. In-Touch Phone Cards, Inc., 2004 ND 169, ¶ 19, 685 N.W.2d 741; Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 25, 651 N.W.2d 625. We review a district court’s findings on a claim of unlawful interference with a business relationship under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Smith Enter., Inc., 2004 ND 169, ¶ 21, 685 N.W.2d 741. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 9.

[¶ 17] David Thompson’s counterclaim against Lochthowe for unlawful interference with a business relationship was based on Lochthowe filing the agricultural supplier’s lien against the Estate and Peterson Farm Properties in September 2000 and Lochthowe’s actions with Cargill regarding that lien. David Thompson’s name was handwritten on the lien document as an additional person to whom Lochthowe had furnished supplies. Lo-chthowe testified it was his attorney at the time who added David Thompson’s name to the document. Lochthowe personally delivered the lien to a Cargill employee, Larry Rapp, and told him that his name was required to be on any check for grain sold in the name of David Thompson, Douglas Thompson, the Estate or Peterson Farm Properties. Rapp checked with Cargill’s legal department and was advised to include Lochthowe’s name on any check written to David Thompson for the sale of grain. Lochthowe later stopped at Cargill on two occasions to ask Rapp whether David Thompson had sold any grain. Because of the lien, David Thompson did not sell his grain.

[¶ 18] Lochthowe argues David Thompson should not have prevailed on his counterclaim because under N.D.C.C. § 35-31-02(5), the social security number or taxpayer identification number of the person to whom supplies were furnished must appear on the lien to be valid and enforceable, and only the taxpayer identification number of the Estate appeared on the document. Lochthowe argues the lien was actually ineffective against David Thompson and Cargill should have been aware of this fact.

[¶ 19] Although the lien may arguably have been invalid as against David Thompson personally, Lochthowe treated the lien as valid against David Thompson at all relevant times in this case. Rapp testified that he would not have required that Lo-chthowe’s name be included on checks for the sale of David Thompson’s grain if Lo-chthowe, the person filing the lien, had not personally delivered the lien to him and informed him that the lien applied to everyone listed on the document. Although Lochthowe admitted David Thompson was the wrong person to name on the lien, Lochthowe refused to remove his name from the lien after David Thompson requested that he do so. Rapp also testified that David Thompson wanted to sell some of his grain but did not when Rapp informed him Lochthowe’s name would be included on the check. As the district court noted:

From his hand delivery of the agricultural supplier’s lien to Cargill and his follow up discussions with Mr Rapp, Locht[h]owe knew full well how Cargill was going to ... view his lien in regard to Thompson. Locht[h]owe knew his lien was holding up Thompson’s grain sales. Back in December 2000, Locht[h]owe (or his then legal counsel) could have easily told Rapp and/or Thompson that the lien was not meant to apply to Thompson personally.

Under the circumstances of this case, the district court was not precluded from finding that Lochthowe unlawfully and intentionally interfered with David Thompson’s business relationships even though the lien was legally invalid against him.

[¶ 20] The district court found that the first two elements for unlawful interference with a business relationship were satisfied because “the evidence was unequivocal that Thompson had a business relationship with Cargill and that Locht[h]owe had knowledge of [the] relationship.” The court found the third element was satisfied by Lochthowe’s actions regarding the lien. The court also found the fourth and fifth elements, harm and actual damages, were satisfied based on evidence that David Thompson incurred interest expenses of $13,037.28 and storage expenses of $15,857.08 because his operating loan was continued beyond April 1, 2001 due to his inability to sell a sufficient amount of grain to pay the loan. We conclude the district court’s finding that Lochthowe unlawfully and intentionally interfered with David Thompson’s business relationships is not clearly erroneous.

[¶ 21] Lochthowe argues that David Thompson failed to mitigate his damages. Lochthowe contends David Thompson either could have sold the grain in both names at a better price than he ultimately received without incurring the storage charges, or could have deposited $30,560 with the clerk of court to minimize the damages. One who is injured by the wrongful acts of another has a duty to minimize or lessen the resulting damage and must “ ‘protect himself if he can do so with reasonable exertion or at trifling expense, and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided.’ ” Schneidt v. Absey Motors, Inc., 248 N.W.2d 792, 797 (N.D.1976) (quoting Nicola v. Meisner, 84 N.W.2d 702, 705 (N.D.1957)). The district court found that “[n]o credible evidence was presented that Thompson had ready resources to avoid or mitigate the damages from the lien. Any mitigation or avoidance of damages Thompson could have done was dependant on Locht[h]owe’s cooperation.” We conclude the district court’s finding that David Thompson did not have sufficient resources to mitigate the damages is not clearly erroneous.

IV

[¶ 22] The judgment is affirmed.

[¶ 23] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEH-LEN MARING and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2005 ND 39
    In the Interest of D.P.O. D.P.O., A.D.O., the parent and natural mother of D.P.O., G.O., grandparent of D.P.O., Plaintiffs and Appellees and The Grand Forks County Social Service Board, Assignee for A.D.O. and G.O., Plaintiff v. N.H., Defendant and Appellant.
    No. 20040176.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Thomas V. Omdahl, Omdahl Law Office, Grand Forks, ND, for defendant and appellant.
    G.O., pro se, plaintiff and appellee.
   KAPSNER, Justice.

[¶ 1] N.H. (“Nathan”) appeals from the district court order denying his motion to obtain a passport for his minor daughter, D.P.O. (“Donna”), finding her maternal grandparents had standing to object to his motion, and refusing to combine the grandparents’ visitation with Donna’s mother’s visitation. We dismiss the first two issues as moot and affirm .the decision on visitation.

I.

[¶ 2] Nathan and A.O. (“Allison”) are the parents of a minor child, Donna. Nathan has primary custody of the child, Allison has visitation one weekend each month, and her parents, Donna’s maternal grandparents, have visitation one weekend each month. The grandparents, G.O. (“Greg”) and L.O. (“Lisa”), have been found to be psychological parents to Donna. See Interest of D.P.O., 2003 ND 127, ¶¶ 8, 12, 18, 667 N.W.2d 590.

[¶ 3] Nathan, a Syrian citizen with a work visa, is employed by the University of North Dakota. His visa is renewable at his employer’s request, and Nathan testified the visa would be renewed upon expiration in 2004. He further testified he has begun the process to obtain United States citizenship.

[¶ 4] The relationship between Nathan and the grandparents is strained. Nathan claims Greg has made racist comments based on Nathan’s Middle Eastern heritage. He also claims the grandparents have interfered with his relationship with Donna by criticizing him in her presence, removing her from daycare without his permission, and filing complaints with Social Services.

[¶ 5] Nathan would like to take Donna to Egypt for a vacation to meet his family. Both parents must sign for a child under the age of 14 to receive a United States passport unless there is a court order stating one parent has “sole” physical custody and is not prohibited from traveling outside the United States with the child. Allison refuses to sign so Donna can have a passport, and Nathan cannot obtain one without her consent because the custody-order states Nathan is the “designated physical custodial parent” and is silent regarding international travel.

[¶ 6] Nathan filed a motion to obtain a passport, requesting a court order stating he was granted sole physical custody and is not prohibited from traveling outside the United States with the child. Such an order would enable him to obtain a passport for Donna without Allison’s consent. Allison and the grandparents opposed Nathan’s motion. Nathan alleged the grandparents did not have standing to challenge his motion. He also requested Allison’s and the grandparents’ visitation be combined instead of each party having separate visitation.

[¶ 7] The district court denied the motion on the grounds that Egypt and Syria have not ratified or adopted the Hague Convention on International Child Abduction. The court expressed concern about enforcement should Nathan decide not to return to the United States with Donna. The court found the grandparents had standing to object to Nathan’s motion because they have been declared psychological parents. The court further found separate visitation with Allison and the grandparents was in Donna’s best interest, and Nathan had failed to prove visitation with the grandparents is adversely affecting his parent-child relationship with Donna. Nathan appealed.

II.

[¶ 8] This Court can consider the issue of mootness in every appeal and will dismiss an appeal if the issue becomes moot. Interest of W.O., 2004 ND 8, ¶ 10, 673 N.W.2d 264. This Court will only adjudicate actual controversies, and “[i]f certain events have occurred which makes it impossible for the Court to issue relief, or when the lapse of time has made the issue moot, then no actual controversy exists.” Id. This Court will dismiss the appeal of a moot issue unless “the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.” Id. at ¶ 11.

[¶ 9] Nathan argues the district court erred in denying his request for an order allowing him to obtain a passport because there is no evidence that he would attempt to remain in Egypt with Donna. This issue is moot because Nathan’s counsel stated at oral argument that Nathan, by virtue of his Syrian citizenship, was able to obtain a Syrian passport for Donna. This passport allows Donna to travel anywhere Nathan can, including Egypt and Syria. Nathan’s attorney further represented that Nathan and Donna were in Egypt visiting Nathan’s family at the time of oral argument in this case. When asked by this Court, “[t]he child has a passport and is visiting the relatives in Egypt?” Nathan’s counsel replied, “[tjhat’s what’s happening today.”

[¶ 10] While the Syrian passport is more limited than a United States passport, so Nathan still cannot travel with Donna as freely as he would like, Nathan’s trial documents and testimony indicate he desired a passport for Donna so he could take her to Egypt to meet his family. Only once, upon the prompting of his attorney, did he testify that he wanted a United States passport. However, he repeatedly testified he wanted to take Donna to Egypt to spend time with her extended family. Nathan was able to do this when he obtained a Syrian passport and traveled with Donna to Egypt. Based on representations of Nathan’s counsel, we conclude no actual controversy exists and the issue is moot.

III.

[¶ 11] Nathan argues the district court erred in finding the grandparents had standing to oppose his motion to obtain a passport. Because we find the issue of obtaining a passport moot for reasons set forth above, we find it unnecessary to address the issue of the grandparents’ standing.

IV.

[¶ 12] Nathan claims the court’s decision to keep Allison’s and the grandparents’ visitation separate was clearly erroneous because he provided evidence the grandparent visitation was adversely affecting his parent-child relationship. A district court’s decision on grandparent visitation is a finding of fact reviewed by this Court under the clearly erroneous standard. Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191. A finding is clearly erroneous if it is induced by an erroneous view of the law, it is not supported by any evidence, or this Court concludes, upon a review of the entire record, that a mistake has been made. Id.

[¶ 13] Grandparent visitation is provided for by N.D.C.C. § 14-09-05.1, which states, in part, “[t]he grandparents and great-grandparents of an unmarried minor may be granted reasonable visitation rights to the minor by the district court upon a finding that visitation would be in the best interests of the minor and would not interfere with the parent-child relationship.” This Court previously affirmed a district court decision finding visitation with her grandparents, who have been recognized as psychological parents, is in Donna’s best interest. Interest of D.P.O., 2003 ND 127, ¶ 19, 667 N.W.2d 590. However, this Court also stated, “[t]he trial court can revisit the matter of grandparent visitation if there is evidence of interference with the parent-child relationship.” Id. at ¶ 20. Nathan alleges such interference has occurred.

[¶ 14] Nathan testified Donna’s behavior is altered after visitation with her grandparents. Her sleep pattern is disrupted, she wants to eat only candy, she uses vulgar language, she acts aggressively, and she has regressions in her toilet training, even though she has been fully trained. Nathan further testified Donna tells him he is stupid and she hates him. He claims the grandparents, especially the grandfather, make racist comments about him and say things such as Nathan should not spend the Fourth of July with Donna because he is not an American and she should be with an American family. The grandfather testified he has never made racist comments about Nathan.

[¶ 15] The district court made findings explaining its decision to allow grandparent visitation to continue:

As noted above, this has been a contentious case. [Nathan] claims that the [grandparents] are racially prejudiced against him and that they are trying to alienate [Donna] from him. The Court does not find any evidence of this alleged prejudice. It is true that the parties have had a contentious relationship, and that dysfunctional relationship continues to the present time. Nothing in that regard has changed since the Judgment was entered.... [T]he charge of parental alienation by the [grandparents] is not persuasive to the Court. In fact, the clinical impressions reached by Northeast Human Service Center, through Dr. Myron Veenstra, indicated that: “[the grandfather] appears able to separate his feelings towards the biological father in contact with the child. He appears able to have unsupervised contact with the granddaughter and not act in a manner that alienates the biological father. He appreciates the importance of the granddaughter’s need to develop a clear relationship with the father, although [the grandfather] would still prefer his getting custody.”
[Nathan] is the parent who has had [sic] been held in contempt of court for his failure to follow the visitation schedule in the Judgment. He denied [the grandparents] their weekend visitation without adequate cause and the Court ordered on March 19, 2004 that the twelve days missed ... be made up on every other weekend.... [Nathan] seems to interpret Court orders to suit himself, with the result that he is in continuing contempt of court for failure to make up the weekends that were lost by the [grandparents].... [Nathan] does not follow the visitation provisions in the Judgment and that is a very disturbing indication to the Court that if there is parental alienation in this case, the alienation may very well be on [Nathan’s] part.
As indicated above, the circumstances have not changed since the Judgment was entered. [Donna] apparently still uses bad language on occasion, according to [her daycare provider], as was the case before the Judgment was entered. [Donna] still shows some aggressive behaviors, and adjustment problems when going between households.... There is a difference between the homes that make adjustments problematic. But the parties must work together to establish as much consistency in the home environments as possible to achieve a uniform comfort level for [Donna],
The bad relationship is a two-way street, and each side must be able to put aside past feelings and work together for the good of [Donna]. Conversely, [Nathan] needs to recognize the right of the [grandparents] to continue their role, especially in view of the fact that the [grandparents] were the parent figures for [Donna] a few days after her birth until shortly before the Judgment was entered.... Each party must share the blame for [Donna’s] acting out behaviors, which is really [Donna’s] reaction to the stress that she feels because of the bad relationship between her father and the [grandparents]. The parties, as parents and grandparents, are the most important people in [Donna’s] life. Any alienation of [Donna] by any party from any other party is very damaging to [Donna].... All parties must be able to recognize and correct the terrible toll that the current situation takes from [Donna].

[¶ 16] The district court considered and weighed the evidence presented by both Nathan and the grandparents and concluded there was insufficient evidence of interference with the parent-child relationship to discontinue the child’s monthly visitation with her grandparents. From a review of the record, we conclude the court’s findings are not clearly erroneous. We affirm the decision to keep the grandparents’ and mother’s visitations separate, and recognize the district court’s continuing jurisdiction over this matter if there is evidence of interference with the parent-child relationship in the future.

. V.

[¶ 17] We dismiss as moot Nathan’s claims that the district court erred by denying his motion to obtain a passport for Donna and finding her maternal grandparents had standing to object to his motion. We affirm the district court’s decision to allow the grandparents to continue exercising visitation separate from the mother.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.

      . The names of the parties are pseudonyms.

      . Under N.D.R.App.P. 42(c), which states "[w]hen an issue before the court may have become moot due to a change in circumstance, the parties shall advise the court in writing and explain why appeal of tire issue should or should not be dismissed,” this information should have been provided to the Court in writing.


text:
    2005 ND 34
    Melvin TIBERT, Cathy Tibert, Mark Tibert, and Suzi Tibert, Plaintiffs and Appellants, v. Bill SLOMINSKI & Kathy Slominski, individually, and as they have done business as the sole shareholders of Minto Grain, LLC, a North Dakota limited liability company, Defendants and Appellees.
    No. 20040198.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      David C. Thompson, David C. Thompson, P.C., Grand Forks, N.D., for plaintiffs and appellants.
    Zenas Baer, Zenas Baer & Associates, Hawley, MN, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Melvin Tibert, Cathy Tibert, Mark Tibert, and Suzi Tibert appeal a grant of summary judgment in favor of Bill and Kathy Slominski, individually and as members of Minto Grain, LLC. We affirm.

I.

[¶ 2] Melvin Tibert, Cathy Tibert, Mark Tibert, and Suzi Tibert (“Tiberts”) own homes on neighboring lots in Minto, North Dakota. Minto Grain, LLC (“Minto Grain”), a North Dakota limited liability company, owns property adjacent to the Tiberts. Bill and Kathy Slominski (“Slom-inskis”) are the only members of Minto Grain. Minto Grain owns and operates a grain elevator on its property. The Ti-berts purchased their homes in 1987. The Slominskis purchased the elevator in 2000. The elevator has been in operation, under various owners and names, since 1881.

[¶ 3] A road known as Kilowatt Drive has existed along the eastern portion of Minto Grain’s property since at least 1980. This dirt and gravel road borders the Ti-berts’ properties and has been the subject of previous litigation. The road is used by the Tiberts, Minto Grain customers, and the general public. Nowling v. BNSF Railway, 2002 ND 104, 646 N.W.2d 719.

[¶ 4] The Slominskis had a survey conducted in 1999 or 2000 which indicated that Minto Grain actually owned several feet of what had previously been assumed by the Tiberts to be part of their properties. Minto Grain plans to expand Kilowatt Drive to make more room for trucks entering the elevator. These parties have been involved in numerous lawsuits involving boundary disputes and Minto Grain’s plans to expand the road. See Tibert v. City of Minto, 2004 ND 97, 679 N.W.2d 440; Minto Grain, LLC v. Tibert, 2004 ND 107, 681 N.W.2d 70; Tibert v. Minto Grain, LLC, 2004 ND 133, 682 N.W.2d 294.

[¶ 5] Bill Slominski and Minto Grain employees, using spot lights and chain saws, cut down evergreen trees in front of Mark and Suzi Tibert’s home shortly after midnight on November 13, 2003. The trees were located on the property the Tiberts had believed to be theirs before the survey. There is some dispute as to the age of the trees, but they were at least 20 years old. The trees formed a barrier between Mark and Suzi Tibert’s home and Kilowatt Drive and helped control the dust and noise from the road. Since the trees were on Minto Grain’s property, Minto Grain’s attorney advised Bill Slominski he could remove them in the process of expanding Kilowatt Drive.

[¶ 6] The Tiberts claim the loss of the trees and intended expansion of the roadway will create a nuisance because the trucks coming to and from the elevator will generate noise, dust and exhaust fumes that will interfere with the Tiberts’ use of their properties. The Tiberts further claim the passing trucks will generate dust particles that will settle on the Tiberts’ properties, resulting in trespass.

[¶ 7] The district court granted Minto Grain’s motion for summary judgment, finding N.D.C.C. § 42-04-02 bars the Ti-berts’ claim for nuisance and the elements of a claim for trespass were not present. The Tiberts appealed.

II.

[¶ 8] We recently outlined the standard of review for summary judgment in Grinnell Mutual Reinsurance Co. v. Lynne, 2004 ND 166, ¶ 9, 686 N.W.2d 118:

Summary judgment is a “procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result.” If the issues in the case are such that resolution of any factual dispute will not alter the result, then summary judgment is appropriate under the law. We review appeals from summary judgment de novo.

(Internal citations omitted). The party seeking summary judgment has the burden of showing no genuine issue of material fact exists, and the party opposing the motion must present competent admissible evidence, not present in the pleadings, which raises an issue of material fact. Black v. Abex Corp., 1999 ND 236, ¶ 23, 603 N.W.2d 182. “Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial.” Id.

III.

[¶ 9] The tort of nuisance is statutorily defined in North Dakota. Section 42-01-01, N.D.C.C., defines a nuisance as:

A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission:
1. Annoys, injures, or endangers the comfort, repose, health, or safety of others;
4. In any way renders other persons insecure in life or in the use of property.

“A private nuisance is one which affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public.” N.D.C.C. § 42-01-02. A private nuisance must meet the definition of nuisance as outlined in N.D.C.C. § 42-01-01. Jerry Harmon Motors, Inc. v. Farmers Union Grain Term. Ass’n, 337 N.W.2d 427, 432 (N.D.1983).

[¶ 10] The district court did not address whether Minto Gram’s activities met the elements of nuisance because it found N.D.C.C. § 42-04-02 applied and barred the Tiberts’ action. Section 42-04-02", N.D.C.C., states:

An agricultural operation is not, nor shall it become, a private or public nuisance by any changed conditions in or about the locality of such operation after it has been in operation for more than one year, if such operation was not a nuisance at the time the operation began; except that the provisions of this section shall not apply when a nuisance results from the negligent or improper operation of any such agricultural operation.

[¶ 11] The Tiberts argue Minto Grain does not meet the statutory requirements of an agricultural operation and so cannot claim immunity under N.D.C.C. § 42-04-02. Section 42-04-01, N.D.C.C., defines an agricultural operation:

As used in this chapter, “agricultural operation” means the science and art of production of plants and animals useful to people, by a corporation or a limited liability company as allowed under chapter 10-06.1, or by a corporation or limited liability company, a partnership, or a proprietorship, and including, to a variable extent, the preparation of these products for people’s use and their disposal by marketing or otherwise, and includes ... any and all forms of farm products, and farm production.

[¶ 12] The Tiberts argue Minto Grain cannot seek protection under N.D.C.C. § 42-04-02 because it does not qualify as a limited liability company authorized to engage in farming in North Dakota under chapter 10-06.1. Minto Grain admits it does not meet the requirements of chapter 10-06.1. This Court has held that a corporation which does not qualify under former chapter 10-06 (Corporate Farming Law) cannot invoke the protection of N.D.C.C. § 42-04-02. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 316 (N.D.1986).

[¶ 13] Section 42-04-01, N.D.C.C., has been amended since this Court decided the Knojf case. When Knojf was decided, N.D.C.C. § 42-04-01 read:

As used in this chapter, “agricultural operation” means the science and art of production of plants and animals useful to man, by a corporation as provided in chapter 10-06, a partnership, or a proprietorship, and including, to a variable extent, the preparation of these products for man’s use and their disposal by marketing or otherwise, and includes horticulture, floriculture, viticulture, forestry, dairy, livestock, poultry, bee, and any and all forms of farm products, and farm production.

Knoff, 380 N.W.2d at 315 (quoting N.D.C.C. § 42-04-01 (1986)). The statute has been amended three times since, and currently reads:

As used in this chapter, “agricultural operation” means the science and art of production of plants and animals useful to people, by a corporation or a limited liability company as allowed under chapter 10-06.1, or by a corporation or limited liability company, a partnership, or a proprietorship, and including, to a variable extent, the preparation of these products for people’s use and then-disposal by marketing or otherwise, and includes horticulture, floriculture, viticulture, forestry, dairy, livestock, poultry, bee, and any and all forms of farm products, and farm production.

N.D.C.C. § 42-04-01 (changes emphasized).

[¶ 14] In Knoff, this Court stated, “[w]e do not believe that it was the intent of the Legislature when it created protections for ‘agricultural operations’ to encompass remote preparation and marketing of such products by large national corporations.” Knoff, 380 N.W.2d at 316. A plain reading of the statute as it existed in 1986 supports the Court’s statement. However, the current statute, as amended, specifies limited liability companies both before the reference to chapter 10-06.1 and after the “or.” The statute is unambiguous, and can only be read to mean the nuisance shield extends to corporations and limited liability companies meeting the definition of agricultural operation in N.D.C.C. § 42-04-01, not just those that qualify under the limitations in chapter 10-06.1. The district court was correct in concluding N.D.C.C. § 42-04-02 protects Minto Grain from a nuisance claim.

IV.

[¶ 15] Civil trespass is a common law tort in North Dakota and is not statutorily defined. This Court has defined trespass as “an ‘intentional harm,’ ” where a person “intentionally and without a consensual or other privilege ... enters land in possession of another or any part thereof or causes a thing or third person so to do.” McDermott v. Sway, 78 N.D. 521, 529-30, 50 N.W.2d 235, 240 (1951). A person who commits a trespass “is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.” Id. at 530, 50 N.W.2d at 240. If there is no intent or “affirmative voluntary act” by the alleged wrongdoer, there cannot be a claim for trespass. Id.

[¶ 16] The Tiberts claim vehicles using Kilowatt Drive will cause dust particles and exhaust fumes to settle on the Tiberts’ homes and yards. Minto Grain argues the Tiberts’ claim for trespass is premature, because they have not yet suffered any harm. While actual harm is not one of the requisite elements to a claim for trespass, actual interference with another’s property is. See generally McDermott, 78 N.D. at 530, 50 N.W.2d at 240; 75 Am.Jur.2d Trespass §§ 8, 14 (1991). The trial court stated “[t]he trespass alleged is largely based on the anticipated expansion of the roadway. There is no specific scientific evidence as to how much dust will accumulate on the [Tiberts’] property or showing of actual injury.” Our review of the record indicates this statement is correct and the Tiberts have provided no evidence that trespass has occurred.

[¶ 17] “When no pertinent evidence on an essential element of the claim is presented to the district court in opposing a motion for summary judgment, it is presumed no such evidence exists.” Grinnell, 2004 ND 166, ¶ 13, 686 N.W.2d 118. Because the Tiberts presented no evidence of present interference with their properties and have not shown they can meet their burden of proof on their claim for trespass, we affirm the district court’s summary judgment.

V.

[¶ 18] We affirm.

[¶ 19] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: MARING, Justice.

text:
    2005 ND 37
    Tyler FAST, Plaintiff and Appellee v. Allyson MAYER, Defendant and Appellant.
    No. 20040200.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for defendant and appellant.
    Robert S. Thomas, Thomas & Thomas, Minot, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Allyson Mayer appeals a district court judgment granting Tyler Fast unsupervised visitation with the former couple’s six-year-old daughter. We affirm.

I

[¶ 2] Fast and Mayer, who never married, have a daughter together born in November 1998. Mayer has had custody of the child since birth, with Fast having regular unsupervised visits until mid-2001. In the summer of 2001, Mayer learned of Fast’s intimate relationship with another woman after finding an explicit videotape in his apartment. After viewing the videotape, Mayer searched the contents of Fast’s computer and alleges she found over 1200 pornographic downloads, some of which had titles indicating either underage or child pornography. Fast admits to visiting pornographic websites “five or ten” times and admits files related to those websites may be on the computer used by him and by others. From that point forward, Mayer insisted that all of Fast’s future visits with their daughter be supervised.

[¶ 3] Both parties complied with the unofficial supervised visitation arrangement until February 2003 when Fast asked the trial court for unsupervised visitation and clarification of other parental issues. Mayer requested the supervised visitation continue, alleging that during an August 2002 visit, Fast indecently exposed himself to their daughter by performing a nude sexual “dance.” At the evidentiary hearing on the matter, Mayer testified that their then three-year-old daughter had drawn pictures, orally described, and demonstrated a “dance” she learned from Fast. A licensed psychologist testified that she deemed the daughter’s story to be credible but that she could not testify as to what her credibility was at age three when she first told the story. The psychologist also indicated that while she had personally interviewed Mayer and the couple’s daughter, she did not interview Fast prior to forming her opinion.

[¶ 4] Fast denies the exposure incident, arguing it was impossible considering it would have had to occur during a supervised visit. Fast’s mother, who was present and supervising the visit where the alleged exposure took place, testified that either her or her husband were present at all times during the visit in question and that at no time did Fast expose himself.

[¶ 5] The trial court found Mayer did not establish that the alleged indecent exposure took place or that unsupervised visits with Fast would be harmful to their daughter. Consequently, the trial court granted Fast unsupervised visitation. Mayer appeals.

II

[¶ 6] Mayer argues that based on the evidence presented, the trial court’s decision allowing unsupervised visitation was clearly erroneous. Mayer contends sufficient evidence exists that Fast indecently exposed himself in the form of oral descriptions and drawings by their daughter, an expert’s conclusion that the daughter’s story was consistent and credible, and Fast’s “demonstrated lack of credibility and honesty.”

[¶ 7] A trial court’s decision on visitation is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. T.E.J. v. T.S., 2004 ND 120, ¶ 18, 681 N.W.2d 444; Litoff v. Pinter, 2003 ND 172, ¶ 11, 670 N.W.2d 860; Krank v. Krank, 2003 ND 146, ¶ 16, 669 N.W.2d 105. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the evidence, this Court has a definite and firm conviction a mistake has been made.” Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672.

[¶ 8] The trial court’s decision granting Fast unsupervised visitation with the couple’s daughter is supported by the record and is not clearly erroneous. Section 14-05-22(2), N.D.C.C., sets forth the legal standard for granting visitation to the noncustodial parent:

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

N.D.C.C. § 14-05-22(2).

[¶ 9] When a trial court considers restrictions on a noncustodial parent’s visitation rights, the standard of proof required is a preponderance of the evidence. See Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986). Our Court has provided further guidance on noncustodial visitation:

District courts have the authority to allow a noncustodial parent visitation rights. Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parents. Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81. Visitation with the noncustodial parent is presumed to be in the child’s best interests and is not merely a privilege of the noncustodial parent, but a right of the child. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. A noncustodial parent should be deprived of visitation only if “visitation is likely to endanger the child’s physical or emotional health.” N.D.C.C. § 14-05-22(2); Ackerman, at ¶ 13. Denying a noncustodial parent visitation with a child is an onerous restriction, such that physical or emotional harm resulting from the visitation must be demonstrated in detail before it is imposed. Hendrickson, at ¶ 21.

Schiff v. Schiff, 2000 ND 113, ¶ 9, 611 N.W.2d 191.

[¶ 10] Considering the aforementioned standards, Mayer’s burden at the trial court level was to establish, by a preponderance of the evidence, that physical or emotional harm will likely result from allowing Fast unsupervised visitation with the couple’s daughter. The trial court, in its judgment, indicated that after a full day of testimony, Mayer did not establish by a preponderance of the evidence that unsupervised visitation by Fast would be harmful to their daughter. The court noted that there were many “unresolved questions as the validity, setting, and circumstances” as to both the statement and drawings produced by the child. The court also indicated it was unpersuaded by the psychologist’s testimony because her interview of the child took place several years after the alleged indecent exposure incident and because the psychologist had indicated three-year-olds have difficulty separating reality from fantasy. Additionally, the court found certain testimony by Mayer and her mother regarding the child’s repetition of the story “unpersuasive.”

[¶ 11] Mayer argues that the testimony of herself, her husband, her mother, and her sister reiterating the child’s descriptions of the “dance” Fast is alleged to have performed, combined with the testimony of the psychologist noting that the child’s story did not appear to be coached, and the “demonstrated lack of credibility and honesty” of Fast, supports her contention that the trial court decision allowing Fast unsupervised visitation is clearly erroneous.

[¶ 12] In effect, Mayer is requesting that our Court reassess the credibility of the witnesses and reweigh the testimonial evidence. We decline to do so. We will not redetermine the trial court’s findings based upon conflicting testimony on material issues. Roberson v. Roberson, 2004 ND 203, ¶ 10, 688 N.W.2d 380. “In a bench trial, the trial court is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations. 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.” Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256 (quoting Moen v. Thomas, 2001 ND 95, ¶ 20, 627 N.W.2d 146). The decision of the trial court on the issue of unsupervised visitation is not clearly erroneous and we affirm.

III

[¶ 13] Mayer contends that the trial court abused its discretion by not compelling Fast to submit his computer for examination. Mayer asserts that given her testimony and Fast’s admissions that pornography is on his computer, Fast should have been compelled to produce the computer so a forensic examination could be conducted.

[¶ 14] Trial courts have broad discretion in setting the scope of discovery, and discovery orders will not be reversed unless there is an abuse of discretion. Nastrom v. Nastrom, 1998 ND 142, ¶ 7, 581 N.W.2d 919. “A 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.” Id.

[¶ 15] The trial court did not abuse its discretion when it did not compel Fast to submit his computer for examination. Mayer argues that given her testimony regarding the number and titles of the files she claims to have witnessed, Fast’s admission to having pornography on his computer, and the allegation that Fast exposed himself to their daughter, she has established a prima facie case warranting access to Fast’s computer. Mayer relies on O’Neill v. O’Neill, 2000 ND 200, 619 N.W.2d 855. In O’Neill, this Court said that “[allegations, supported by affidavit, demonstrating a custodial environment which may be endangering the childrens’ physical or emotional health, are sufficient to raise a prima facie case for change of custody, entitling the movant to an eviden-tiary hearing.” Id. at ¶ 8. O’Neill did not deal with a discovery motion in a visitation case. However, the O’Neill requirement that an evidentiary hearing be held when a prima facie case is established was fulfilled on June 20, 2003. At that hearing, the trial court addressed the computer and other evidentiary issues and orally denied access to Fast’s computer stating:

And in terms of the computer, the custody of that, again in light of the fact I feel that the mechanism, it’s complicated, counsel, in terms of being able to have a proper forensic search done on it. And I don’t think it’s as easy as you make it out to be. I think you can make your arguments, and that, without the computer, and that. So I am going to deny the computer. I just see that being a whole bottle of aspirin, if not more.

[¶ 16] While the reasoning behind the court’s oral ruling may not be completely clear, it does not appear that the trial court acted in an “arbitrary, unreasonable, or unconscionable manner” or that the court’s decision was not “the product of a rational mental process,” which must be established for an abuse of discretion. Nastrom, 1998 ND 142, ¶7, 581 N.W.2d 919. Rather, as Fast points out in his opposing argument, the trial court was correct in not compelling discovery of the computer because Mayer presented no evidence that their daughter had seen any of the pornography contained on the computer and because other adults used the computer and certain components were salvaged from other computers, it would be virtually impossible to definitively attribute the contents to Fast. We conclude the trial court did not abuse its discretion by denying Mayer’s motion to compel access to Fast’s computer.

IV

[¶ 17] Mayer argues the trial court’s failure to award her attorney fees is an abuse of discretion. According to Mayer, attorney fees are warranted because the court granted Mayer’s motion to compel discovery and because Fast repeatedly failed to answer basic questions or provide requested documentation.

[¶ 18] “Under N.D.R.Civ.P. 37(b)(2), a district court has a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the district court abused its discretion.” Dietz v. Kautzman, 2004 ND 164, ¶ 13, 686 N.W.2d 110. “A 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.” Nastrom, 1998 ND 142, ¶ 7, 581 N.W.2d 919.

[¶ 19] Mayer’s argument that the trial court abused its discretion by not awarding her attorney fées is unpersuasive. The record indicates that Mayer twice filed motions to compel discovery. The first motion, filed on May 5, 2003, only requested access to Fast’s computer. The second motion, filed May 28, 2003, requested access to Fast’s computer and answers to deposition questions (the motion does not specify what questions Mayer would like answered). At a June 20, 2003, hearing on evidentiary issues, the trial court heard arguments and denied the motion to compel access to Fast’s computer, denied several of Mayer’s deposition requests, and granted Mayer’s request for Fast’s tax and school records. Mayer argues that under N.D.R.Civ.P. 37(a)(4)(A), she is entitled to attorney fees because her motion to compel discovery was granted. Rule 37(a)(4)(A) provides:

If the motion is granted or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising the conduct, or both of them, to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the opposing party’s response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.

N.D.R.Civ.P. 37(a)(4)(A).

[¶ 20] The facts, however, indicate that the pertinent Rule is N.D.R.Civ.P. 37(a)(4)(C) because Mayer’s motion was granted in part and denied in part. Rule 37(a)(4)(C) provides:

If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

N.D.R.Civ.P. 37(a)(4)(C).

[¶ 21] The trial court did not rule specifically on this issue at the evidentiary hearing, saying only that “I am just going to hold that in abeyance for the rest of the case. And, frankly, it may be an incentive to counsel.” The issue was not dealt with again, either at the visitation hearing held September 24, 2003, or in the Memorandum and Order for Judgment issued May 21, 2004. Rule 37(a)(4)(C), N.D.R.Civ.P., instructs that a court “may” apportion expenses in these situations. Mayer’s argument fails to establish how the trial court’s decision not to apportion expenses, in accordance with the discretion allowed under N.D.R.Civ.P. 37(a)(4)(C), reaches the arbitrary, unreasonable, unconscionable, or irrational level required to find an abuse of discretion. The trial court did not abuse its discretion when it did not award Mayer attorney fees for her discovery motions.

V

[¶ 22] We affirm the trial court’s judgment granting Fast unsupervised visitation with his daughter.

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

      . Mayer’s appellant brief does not indicate which of the two motions to compel she is asking this Court to review. Presumably, it is the second motion because the first only asked for access to Fast’s computer which was clearly denied by the trial court.


text:
    2005 ND 35
    David W. BRANDT, John A. Brandt, and Roy Brandt, Plaintiffs, Appellants and Cross-Appellees v. Dean S. SOMERVILLE, Margaret D. Somerville, and Posilock Puller, Inc., Defendants, Appellees and Cross-Appellants.
    No. 20040112.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Roger J. Minch, Serkland Law Firm, Fargo, N.D., for plaintiffs, appellants and cross-appellees.

      Robert G. Hoy (argued) and Sean M. Fredricks (on brief), Ohnstad Twichell, P.C., West Fargo, N.D., for defendants, appellees and cross-appellants.
   KAPSNER, Justice.

[¶ 1] David Brandt, John Brandt, and Roy Brandt appealed and Dean Somer-ville, Margaret Somerville, and Posilock Puller, Inc., cross-appealed from a judgment and post-judgment order in Brandts’ shareholder action against Somervilles seeking damages for breaches of fiduciary duties and seeking an order requiring Somervilles to buy Brandts’ shares of Posi-lock for fair market value. We hold the trial court’s findings of fact about the Brandts’ claims for breaches of fiduciary duties are not clearly erroneous, the court did not err in applying the book value provision of a stock transfer agreement to Somervilles’ buyout of Brandts’ shares of Posilock, and the court did not abuse its discretion in determining a remedy for Somervilles’ misappropriation of Posilock’s corporate opportunity. We affirm.

I

[¶ 2] In 1978, David Brandt and Dean Somerville incorporated Posilock as a closely-held corporation to manufacture and market a bearing puller developed and patented by Dean Somerville and David Brandt’s deceased father, Paul Brandt. Contemporaneously with Posilock’s incorporation, David Brandt and Dean Somer-ville executed a written stock transfer agreement that restricted the transfer of any Posilock stock by providing the other shareholders with an option to purchase the stock for book value. Posilock’s stock certificates included language subjecting the certificates to the stock transfer agreement and stating the certificates were transferrable only in accordance with that agreement. David Brandt and Dean Som-erville each received half of the Posilock stock, and David Brandt ultimately divided his Posilock stock with his brothers, John, Herman, and Roy Brandt.

[¶ 3] The Somerville and the Brandt families initially did most of the work to manufacture and sell the bearing pullers, and Posilock operated out of a building in McHenry, North Dakota. After a 1984 fire destroyed that building, Somervilles purchased property in Cooperstown, which they leased to Posilock to continue operations. Although the Brandts collectively retained half of Posilock’s stock and David Brandt served as a director and secretary for Posilock, Brandts’ involvement with the day-to-day operations of Posilock gradually diminished after the 1984 fire and move to Cooperstown. During the same period, Dean Somerville served as a director and president of Posilock, and he became more involved in running Posilock. Dean Som-erville eventually started other family-owned businesses, including DMI and Dynamics 360, which share office space with ■ Posilock in the Cooperstown facility. The Brandts do not have any ownership interest in DMI or Dynamics 360. DMI is a teleservices firm that was incorporated in 1992. Dynamics 360 was incorporated in 1992 and provides Posilock with some marketing and human resource services. Dynamics 360 consists of three divisions, a gift basket division, a sales division, and PL MFG.

[¶ 4] In 1998, Posilock’s supplier of component parts for the bearing puller announced a large price increase for those parts, and Somervilles formed PL MFG as a division of Dynamics 360 to produce the component parts for the bearing puller. PL MFG also makes products for other manufacturers, but about half of its production consists of the parts for Posilock’s bearing puller. The startup cost for PL MFG included a $450,000 loan to Posilock from Sheyenne Valley Electric Cooperative under the Rural Electric Development Loan and Grant Program. The loan process required a Cooperstown bank to guarantee the loan, and the bank, in turn, required a personal guarantee by Dean and Margaret Somerville. The necessary loan documents were executed by Posilock, and Posilock endorsed a $450,000 check to Dynamics 360, which then deposited the check into Dynamics 360’s account. In 2000, Posilock’s accountant discovered the loan had been made to Posilock, not Dynamics 360, and recommended listing the loan as a liability for Posilock and as a receivable from Dynamics 360. PL MFG thereafter executed a formal promissory note to Posilock.

[¶ 5] In October 2000, Brandts sued Somervilles and Posilock, alleging Somer-villes operated Posilock without regard to their duties and obligations to the corporation and to Brandts, and Somervilles breached numerous fiduciary duties to Brandts in violation of N.D.C.C. §§ 10-19.1-50, 10-19.1-51, and 10-19.1-60. Brandts alleged Somervilles failed to provide them with appropriate corporate records and disclosure of information about Posilock and its relationship with Somer-villes’ other family-owned corporations; paid excessive salaries to family members; used Posilock’s resources and good standing to obtain the $450,000 loan for Dynamics 360; stopped making royalty payments to Brandts for a patent on the bearing puller and never paid them dividends for Posilock; took numerous steps to freeze out Brandts and render their shares of Posilock valueless; and misappropriated Posilock’s business opportunities. Brandts sought an equitable remedy, including an accounting and a fair value buyout of their shares of Posilock, and other damages for Somervilles’ breaches of their fiduciary duties and their duty of good faith. Som-ervilles denied breaching any fiduciary duties to the Brandts and counterclaimed to buy Brandts’ Posilock stock for book value under the terms of the stock transfer agreement.

[¶ 6] After a bench trial, the court found Somervilles did not act fraudulently or illegally toward Brandts. In language tracking N.D.C.C. § 10-19.1-115(l)(b)(3), the court found Somervilles’ involvement with PL MFG was conducted in a manner “unfairly prejudicial” to Brandts and constituted a wrongful appropriation of Posi-lock’s corporate opportunity to produce its own parts. The court determined the stock transfer agreement was binding on the parties, the terms of the agreement were not unreasonable, and Brandts’ shares of Posilock stock were subject to a buyout for book value as calculated under a formula in the agreement. The court concluded Posilock’s opportunity to manufacture its own parts was an available business opportunity for Posilock, and with the personal guarantee of Dean Somerville, Posilock had the financial ability to manufacture the parts. The court found Dean Somerville did not act in bad faith in expanding Dynamics 360 at the expense of Posilock. However, the court concluded, except as to the gift basket division of Dynamics 360, the activities of Dynamics 360 constituted a wrongful appropriation of Posilock’s corporate opportunity, but the activities of DMI were not an appropriation of Posilock’s corporate opportunity. In placing a value on Somervilles’ wrongful appropriation of Posilock’s corporate opportunity, the court applied the formula in the stock transfer agreement to Dynamics 360. The court ultimately ordered Somer-villes to pay Brandts $930,344, plus interest, for Brandts’ shares of Posilock stock and for the wrongful appropriation of Posi-lock’s corporate opportunity.

II

[¶ 7] We analyze Brandts’ claims within the framework of N.D.C.C. ch. 10-19.1, the North Dakota Business Corporation Act. See Lonesome Dove Petroleum, Inc. v. Nelson, 2000 ND 104, ¶ 29, 611 N.W.2d 154 (applying N.D.C.C. ch. 10-19.1 to claims that majority shareholders and officers breached fiduciary duties to minority shareholder and holding there was no separate common law fiduciary duty). We have recognized that N.D.C.C. ch. 10-19.1 provides significant protection for minority shareholders in a close corporation. Fisher v. Fisher, 546 N.W.2d 354, 358 (N.D.1996). In Lonesome Dove, at ¶ 30, we said N.D.C.C. ch. 10-19.1 “imposes a duty upon officers, directors, and those in control of a corporation to act in good faith, and affords remedies to minority shareholders if those in control act fraudulently, illegally, or in a manner unfairly prejudicial toward any shareholder.” See also Fisher v. Fisher, 1997 ND 176, ¶ 20, 568 N.W.2d 728; Grinaker v. Grinaker, 553 N.W.2d 200, 202-03 (N.D.1996); Fisher, 546 N.W.2d at 358; Schumacher v. Schumacher, 469 N.W.2d 793, 797 (N.D.1991); Balvik v. Sylvester, 411 N.W.2d 383, 385-89 (N.D.1987).

[¶ 8] Sections 10-19.1-50, 10-19.1-51, and 10-19.1-60, N.D.C.C., generally outline standards of conduct for officers and directors of corporations. Sections 10-19.1-50 and 10-19.1-60, N.D.C.C., require officers and directors of a corporation to discharge them duties in good faith, in a manner reasonably believed to be in the best interest of the corporation, and with the care an ordinary prudent person in a like position would exercise under similar circumstances. Section 10-19.1-51, N.D.C.C., outlines standards for conflicts of interests in transactions between a corporation and its directors or their families. Shareholders have a broad right of access to corporate documents under N.D.C.C. §§ 10-19.1-84 and 10-19.1-85, see Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, ¶ 27, 676 N.W.2d 752, and those in control of a corporation may not freeze out minority shareholders, or fail to provide them with adequate information about the corporation. See Grinaker, 553 N.W.2d at 202-03; Balvik, 411 N.W.2d at 385-89.

[IT 9] Under N.D.C.C. § 10-19.1-85.1, in an action brought by a shareholder, a court may grant equitable relief it considers just and reasonable under the circumstances, if a corporation, or officer or director of the corporation violates N.D.C.C. ch. 10-19.1. Under N.D.C.C. § 10-19.1-115(l)(b), in an action by a shareholder, a court may dissolve a corporation or grant any equitable relief it deems just and reasonable under certain specified conditions, including when the directors or those in control have acted fraudulently or illegally to the shareholders, or in a manner unfairly prejudicial to the shareholders. In deciding whether to order equitable relief or dissolution, a court shall consider the corporation’s financial condition, but may not refuse to grant equitable relief or dissolution solely because the corporation has accumulated or current operating profits. N.D.C.C. § 10-19.1-115(2). In granting equitable relief or dissolution, the court shall take into consideration shareholders’ duties to one another to act in an honest, fair, and reasonable manner in the operation of the corporation and the reasonable expectations of the shareholders. N.D.C.C. § 10-19.1-115(4). In Balvik, 411 N.W.2d at 388-89, under a prior statute identifying dissolution as the only remedy for oppressive conduct by those in control of a corporation, we concluded a trial court abused its discretion in ordering the extreme and unduly harsh remedy of dissolution. We cited several alternative remedies and concluded the appropriate remedy in that case was ordering one of the shareholders to buy the other shareholder’s stock for fair value. Id. at 388-89.

[¶ 10] Section 10-19.1-115(3), N.D.C.C., specifically authorizes the court to order the sale of shares of a closely-held corporation if one of the conditions in N.D.C.C. § 10 — 19.1—115(l)(b) is met and the court determines, in its discretion, the order would be fair and equitable under the circumstances. The purchase price of any shares of stock that the court orders sold must be the fair value of the shares, unless the shares are subject to a shareholder control agreement, in which case the court shall order the sale for the price set forth in that agreement unless the court determines that price is unreasonable under all the circumstances. N.D.C.C. § 10-19.1-115(3)(a). Any buy-sell agreement between the shareholders is presumed to reflect the parties’ reasonable expectations about the matters in the agreement. N.D.C.C. § 10-19.1-115(4).

A

[¶ 11] Brandts claim Somervilles breached numerous fiduciary duties of good faith and loyalty to Brandts, and the trial court erred in failing to address their claims for breach of those fiduciary duties and for actual fraud. Brandts assert the trial court failed to adequately address the $450,000 loan. Brandts claim two of Somervilles’ family-owned corporations, Dynamics 360 and DMI, appropriated Po-silock’s corporate opportunities. They argue Dynamics 360, through its PL MFG division, misappropriated Posilock’s corporate opportunity to manufacture parts for the bearing puller and DMI misappropriated Posilock’s corporate opportunity for marketing products. Brandts claim they should have been awarded damages for both misappropriations, or the court should have granted them equitable relief for Somervilles’ actions.

[¶ 12] A trial court’s findings about claims for breaches of fiduciary duties under N.D.C.C. ch. 10-19.1 are governed by the clearly erroneous rule of N.D.R.Civ.P. 52(a). See Lonesome Dove, 2000 ND 104, ¶ 34, 611 N.W.2d 154. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction the trial court made a mistake. Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court. Id. On appeal, we do not reweigh conflicts in the evidence, see Center Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶ 20, 618 N.W.2d 505, and we give due regard to the trial court’s opportunity to judge the credibility of the witnesses. N.D.R.Civ.P. 52(a). A trial court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the trial court’s decision. In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶ 13] The trial court explicitly found Somervilles did not act fraudulently, illegally, or in bad faith towards Brandts. See N.D.C.C. § 10-19.1-115(l)(b)(2). However, the court found some of Somer-villes’ actions regarding Posilock’s corporate opportunity were conducted in a manner that was “unfairly prejudicial” toward Brandts under N.D.C.C. § 10 — 19.1— 115(l)(b)(3). The trial court’s findings indicate Somervilles’ conduct regarding the $450,000 loan formed a significant part of the court’s decision that Somervilles’ conduct was “unfairly prejudicial” toward Brandts. The court analyzed those claims as a misappropriation of Posilock’s corporate opportunity, and the court effectively found a breach of Somervilles’ fiduciary duties for the misappropriation of Posi-lock’s corporate opportunity. See Jundt v. Jurassic Res. Dev., 2003 ND 9, ¶ 25, 656 N.W.2d 15 (stating fiduciary obligation imposed upon corporate officers and directors precludes them from appropriating business opportunity that belongs to corporation). The court decided the marketing business engaged in by DMI did not constitute an appropriation of Posilock’s corporate opportunity. The court’s findings effectively explain Somervilles did not breach fiduciary duties to Brandts except for the misappropriation of Posilock’s corporate opportunity, and the court awarded damages for that claim under the formula in the stock transfer agreement.

[¶ 14] We conclude the trial court’s findings on fiduciary duties and fraud are stated with sufficient specificity to understand the basis for its decision and those findings address Brandts’ fiduciary claims within the context of N.D.C.C. ch. 10-19.1. We do not condone conduct by those in control of a close corporation which constitutes a freeze out of shareholders, or a failure to provide appropriate corporate information to those not in control of the corporation. David Brandt testified that before Brandts commenced this action, they had been provided with monthly financial statements from ’Posi-lock. There was evidence that after Brandts commenced this action, they were provided information about Posilock as required by the corporate bylaws. David Brandt further testified that Dean Somer-ville never refused to provide him information when he asked, and he often did not ask Dean Somerville about what was going on with Posilock. According to Dean Somerville, he provided the Brandts with opportunities to make decisions about Po-silock, and they declined. There was also evidence David Brandt was the spokesperson for, and represented, his family’s interest in corporate meetings with Dean Somerville, which were often informally conducted as meetings between David Brandt and Dean Somerville. Although those in control of a close corporation have an obligation to provide disclosure to those not in control of the corporation, see N.D.C.C. §§ 10-19.1-84 and 10-19.1-85, Brandts’ claims in this case involve allegations that were addressed by the trial court under the rubric of illegal or fraudulent actions, or conduct that was unfairly prejudicial to shareholders. We decline Brandts invitation to reweigh or conduct a de novo review of the evidence and the trial court’s findings on Brandts’ claims. We are not persuaded the trial court’s findings on the claims for breach of fiduciary duty and fraud were induced by an erroneous view of the law, and we are not left with a definite and firm conviction the trial court made a mistake in its findings on those claims. We therefore conclude the court’s findings on those issues are not clearly erroneous.

B

[¶ 15] Brandts argue the trial court erred in concluding the stock transfer agreement was binding and in calculating the value of their Posilock stock at book value under that agreement instead of at fair value under N.D.C.C. § 10 — 19.1— 115(3). They argue the court should have disregarded the stock transfer agreement because it was not a valid contract, or because the price in the agreement, book value, was unreasonable under N.D.C.C. § 10-19.1-115(3)(a). Brandts claim the stock transfer agreement was not an enforceable contract, because a condition precedent for the agreement was “suitable by-laws [being] adopted and kept in force by the corporation to make this agreement effective” and Posilock’s bylaws made no reference to the agreement.

[¶ 16] We agree with the trial court’s conclusion that the requirement for bylaws stated in the stock transfer agreement was satisfied by the adoption of Posilock’s bylaws. Nothing in the plain language of the stock transfer agreement requires that the bylaws refer to the agreement, and the bylaws are not inconsistent with the agreement. We therefore reject Brandts’ argument that the stock transfer agreement was invalid because of a failure of a condition precedent.

[¶ 17] Under N.D.C.C. § 10-19.1-70, a restriction on the transfer of a corporation’s stock may be imposed by an agreement among the shareholders, and a conspicuous written restriction on the face of a stock certificate, which is not manifestly unreasonable, may be enforced against the certificate holder. In a shareholder action, N.D.C.C. § 10 — 19.1—115(3)(a) authorizes a court to order the sale of shares of a close corporation for fair value. However, if the shares are subject to a shareholder control agreement, the court shall order the sale under the terms of the agreement unless the court determines the price or terms are unreasonable under all the circumstances of the case. Id.

[¶ 18] In Sorlie v. Ness, 323 N.W.2d 841, 842 (N.D.1982), we considered the interpretation of a “Stock Transfer Agreement With Option” that provided for the sale of stock at the “established book value.” The parties stipulated the book value of the stock was $322.75 per share, but contemporaneous sales of the stock ranged from $1800 to almost $2000 per share. Id. at 843-44. Although the case involved issues about the interpretation of other provisions of the agreement, we said “ ‘stockholders’ agreements restricting sale of corporate stock ... will be construed so as to give the widest range of choice permissible under the language used in the agreement.’ Id. at 844 (quoting Kutchera v. Kutchera, 189 N.W.2d 680, 685 (N.D.1971)). We said courts may not rewrite a shareholders’ agreement under the guise of relieving one of the parties from the apparent hardship of an improvident agreement, and we recognized the general proposition that, in close corporations, a majority of courts have sustained restrictions that are determined to be reasonable in light of the relevant circumstances. Sorlie, at 844-45.

[¶ 19] Here, David Brandt testified he recommended using an attorney who had initially done work for the Brandt family to prepare Posilock’s documents of incorporation, which included the stock transfer agreement. David Brandt testified he was aware the agreement placed some restrictions on the transfer of Posi-lock stock, and there was some discussion about the reason for the agreement. Any claim by David Brandt that he may not have read or fully understood the agreement does not excuse ignorance of the terms of the agreement. See Wallwork Lease and Rental Co., Inc. v. Decker, 336 N.W.2d 356, 357 n. 1 (N.D.1983). The trial court found the stock transfer agreement was conspicuously noted on Posilock’s stock certificates and enforcement of the book value provision in the agreement would not be unreasonable. See N.D.C.C. §§ 10-19.1-70 and 10-19.1-115(3). The agreement is presumed to reflect the parties’ reasonable expectations. N.D.C.C. § 10-19.1-115(4). Although Brandts’ claim that the agreement is unreasonable in light of Somervilles’ conduct, we have concluded the trial court did not clearly err in its findings about Brandts’ claims for fraud and bad faith, and we further conclude the court did not err in calculating the value of Brandts’ shares of Posi-lock stock at book value under the terms of the agreement.

[¶ 20] The Brandts’ reliance on Pedro v. Pedro, 489 N.W.2d 798 (Minn.Ct.App. 1992) and Matter of Villa Maria, Inc., 312 N.W.2d 921 (Minn.1981) is misplaced. In Villa Maria, at 921-23, the Minnesota Supreme Court affirmed a trial court decision granting the involuntary dissolution of a close corporation, or in the alternative, a buyout of a shareholder’s fifty per cent interest in the corporation at market value. In considering whether the trial court erred in ordering the buyout at market value rather than at book value as provided in a restrictive shareholder agreement, the court recognized the shareholder conduct in that case justified granting involuntary dissolution of the corporation. Id. at 923. The court therefore concluded the shareholder’s rights were not controlled by the agreement, but were governed by statutory provisions authorizing dissolution and liquidation of assets. Id. Here, the Brandts did not specifically seek dissolution of Posiloek,. and the trial court did not order that remedy.

[¶ 21] In Pedro, 489 N.W.2d at 800-02, the Minnesota Court of Appeals affirmed a trial court decision that awarded a minority shareholder $766,582.33 for his one-third interest of a close corporation under the terms of a stock retirement agreement, and an additional $563,417.67 as damages for breaches of fiduciary duties, which represented the difference between the fair market value of the shareholder’s stock and the value provided in the stock retirement agreement. In Pedro, at 801-02, the court allowed recovery under the terms of the stock retirement agreement and also awarded the minority 'shareholder additional .damages for breaches of fiduciary duties by the majority shareholders, which included hiring a private investigator to follow the minority shareholder, fabricating accusations of neglect and malfeasance, falsely informing employees the minority shareholder had a nervous breakdown, and threatening termination of employment if the minority shareholder did not forget about financial irregularities. Here, the trial court’s findings about Somervilles’ conduct are not as egregious as the conduct in Pedro, and the court allowed recovery under the terms of the stock transfer agreement and awarded additional damages for the misappropriation of Posilock’s corporate opportunity.

[¶ 22] The Brandts nevertheless claim the trial court’s award of damages was insufficient, because Somervilles’ misconduct required the court to award them a fair value' buyout under N.D.C.C. § 10-19.1-115(3) for Posiloek, Dynamics 360, and DMI.

[IT 23] Chapter 10-19.1, N.D.C.C. grants courts broad equitable powers to remedy breaches of duties by corporate officers and shareholders. N.D.C.C. §§ 10-19.1-85.1, and 10-19.1-115. See Grinaker, 553 N.W.2d at 202-03. See also Balvik, 411 N.W.2d at 388-89. Our decisions recognize that a trial court has discretion to fashion remedies for violations of N.D.C.C. ch. 10-19.1, and we review a trial court’s determination about remedies under the abuse-of-discretion standard. Grinaker, at 203; Balvik, at 389. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Gonzalez v. Tounjian, 2003 ND 121, ¶ 37, 665 N.W.2d 705.

[124] The trial court found that other than the gift basket division, the activities of Dynamics 360 were so integrated into the activities of Posiloek that even the employees of PL MFG referred to it as Posiloek Manufacturing; Dynamics 360 constituted a wrongful appropriation of a Posilock corporate opportunity, except as to the gift basket division of Dynamics 360; the business engaged in by DMI was not due to an appropriation of a Posilock corporate opportunity; and in awarding damages for Somervilles’ appropriation of Posilock’s corporate opportunity, it was appropriate to apply the formula in the stock transfer agreement to Dynamics 360 because if PL MFG had been set up under the corporate business of Posilock, it would be part of Posilock and would be subject to the stock transfer agreement.

[¶ 25] We conclude the trial court’s findings about the other Somerville businesses are not clearly erroneous, and the court’s remedy for the misappropriation of Posilock’s business opportunity was the product of a rational mental process and was not arbitrary, unreasonable, or unconscionable, or a misapplication of the law. We therefore conclude the court did not abuse its discretion in determining the remedy for Somervilles’ conduct.

IV

[IT 26] Brandts claim the court should have allowed them to amend their complaint to seek punitive damages because they clearly showed oppression, fraud, or actual malice by Somervilles.

[¶ 27] A motion to amend a complaint lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Murphy v. Murphy, 1999 ND 118, ¶ 33, 595 N.W.2d 571. In denying Brandts’ pretrial motion to amend their complaint, the court explained the defendants alleged actions did not rise to the level of oppressive or malicious conduct. After the Brandts rested their case at trial, the court denied their renewed motion to amend their complaint to include punitive damages, concluding there had not been a sufficient showing of conduct that would warrant exemplary damages. Moreover, the court ultimately found Somervilles did not act fraudulently, illegally, or in bad faith towards Brandts. We have concluded those findings are not clearly erroneous, and we further conclude the court’s denial of Brandts’ motions to amend their complaint to seek punitive damages was the product of a rational mental process and was not arbitrary, unreasonable, or unconscionable, or a misapplication of the law. We therefore conclude the trial court did not abuse its discretion in denying Brandts’ motions to amend their complaint.

V

[¶ 28] Brandts claim the trial court should have allowed them discovery about DMI and should have compelled Dean Somerville to produce his financial statement at trial.

[¶ 29] Discovery decisions are subject to review under the abuse-of-discretion standard. Smith v. Smith, 538 N.W.2d 222, 230 (N.D.1995). The court denied Brandts’ request for discovery about DMI, concluding the request lacked specificity and was overly broad. The court ultimately ruled the business engaged in by DMI was not a misappropriation of Posilock’s corporate opportunity. We conclude the court did not abuse its discretion in ruling on Brandts’ discovery request for information about DMI.

[¶ 30] During trial, the court sustained Somervilles’ relevancy objection to Brandts’ request for Dean Somerville to produce his financial statement at trial. A trial court is given broad discretion to determine relevancy of evidence. Wolf v. Estate of Seright, 1997 ND 240, ¶ 14, 573 N.W.2d 161. We conclude the trial court did not abuse its discretion in ruling on Brandts’ request for Dean Somerville’s financial statement.

VI

[¶ 31] Brandts claim the trial court erred in altering its award of interest on the judgment. The judgment initially awarded Brandts interest at 7 per cent, as provided under the stock transfer agreement. In a post-judgment order, the court allowed Somervilles to deposit the money awarded to Brandts with the clerk of court under N.D.C.C. § 10-19.1-115'(3)(d) and N.D.R.Civ.P. 67. Under N.D.C.C. § 10-19.1-115(3)(d), the purchase price for stock must be paid in one or more installments as agreed upon by the parties, or, if no agreement can be reached, as ordered by the court. If the court orders the sale of shares of a corporation and an adequate bond is posted so the court is satisfied that the full purchase price, plus any additional costs, expenses, and fees, will be- .paid, the selling shareholders no longer have any rights or status as shareholders, except the right to receive the money for their shares plus any other amounts awarded,N.D.C.C. § 10 — 19.1—115(3)(d). This case involved an effective buyout of Brandts’ stock by Somervilles, and under these circumstances, we conclude the court did not err in allowing Somervilles to deposit the money awarded to Brandts, plus the interest accrued to that point, with the clerk of court.

VII

A

[¶ 32] In their cross-appeal, Somer-villes assert the trial court erred as a matter of law in concluding they wrongfully appropriated Posilock’s corporate opportunity. Somervilles argue there was no corporate opportunity that Posilock had the financial ability to pursue. They claim, as a matter of law, Posilock did not have the financial ability to pursue the opportunity to manufacture parts for the bearing puller and would have had to rely on the personal guarantee of Dean Somerville to pursue that opportunity.

[¶ 33] In Jundt, 2003 ND 9, ¶¶ 25-26, 656 N.W.2d 15, we discussed the misappropriation of a corporate opportunity:

,“[T]he fiduciary obligation of undivided loyalty imposed upon directors and officers precludes them from appropriating a business opportunity which belongs to the corporation.” Joseph W. Bishop, Jr., The Law of Corporate Officers and Directors § 3.05 (2002). “The law has long recognized the doctrine of corporate opportunity which prohibits one who occupies a fiduciary relationship to a corporation from acquiring, in opposition to the corporation, property in which the corporation has an interest or tangible expectancy or which is essential to its existence.” 3 Fletcher Cyc. Corps. § 861.10 (2002 Rev. Perm. Ed.).
“What constitutes the usurpation of a corporate ‘opportunity’ is the subject of considerable litigation.... [H]owever, a single definitive test has not yet emerged.” ' Joseph W. Bishop, Jr., The Law of Corporate Officers and Directors § 3.05 (2002).
Four tests have been established as standards for identifying a corporate opportunity: the “line of business” test, the “interest or expectancy” test, the “fairness” test, and the “ALI” test. Under any test, a corporate opportunity exists when a proposed activity is reasonably incident to the corporation’s present or prospective business and is one in which the corporation has the capacity to engage. Whether or not a given opportunity meets the requisite relationship is largely a question of fact to be determined from the objective facts and surrounding circumstances existing at the time the opportunity arises. Whether or not an officer has misappropriated a corporate opportunity does not depend on any single factor.
3 Fletcher Cyc. Corps. § 861.10 (2002 Rev. Perm. Ed.). “[A] director is not required to use his or her own money or credit to finance the business of the company.” Id. at § 862.10.

[¶ 34] In Jundt, 2003 ND 9, ¶ 27, 656 N.W.2d IS, it was not necessary to adopt any of the four tests for determining if there has been a misappropriation of a corporate opportunity, because we concluded, under any of the four prevailing tests, the claimant case had failed to meet his burden. We concluded because of the percentage of corporate ownership, the defendants, the majority owners of the corporation, had the power to control the corporation’s business decisions, and they impliedly disclosed to themselves and the corporation all of the relevant facts about the corporation’s asserted opportunity to purchase property and elected to forego that opportunity. Id. We also said the corporation’s debts exceeded the appraised value of its assets, and the claimant made no showing the corporation had the financial ability to take the opportunity without additional investment of money or credit by the owners. Id. We said whether proposed activity meets the requisite relationship to the corporation’s business is largely a fact question, and we concluded, as a matter of law, the claimant had made no showing that the corporation had the financial ability to pursue the opportunity. Id.

[¶ 35] Here, the trial court concluded Posilock had a corporate opportunity to manufacture its own parts, which was reasonably incident to its present or prospective business, and it had the capacity to engage in that opportunity. As in Jundt, 2003 ND 9, ¶ 27, 656 N.W.2d 15, it is not necessary to adopt any one of the four prevailing tests for misappropriation of a corporate opportunity, because the court’s findings satisfy each of those tests. The court also found Posilock, with the personal guarantee of Dean Somerville, had the financial ability to expend necessary capital to manufacture its own parts as demonstrated by the fact that Posilock obtained the $450,000 loan, the proceeds of which were transferred to Dynamics 360. In Jundt, at ¶ 27, the corporation’s debts exceeded the appraised value of its assets. Here, there was evidence Posilock was substantially debt free and was profitable and had been experiencing growth. There was also evidence Posilock was a financially stable company and had sufficient accounts receivable and cash reserves to pursue this corporate opportunity. According to Dean Somerville, Posilock was a very successful business. According to Tamara Tibor, Dean Somerville’s daughter and part owner of Dynamics 360, Posilock could have grown and expanded to pursue new opportunities just like Dynamics 360 expanded. We are not persuaded the Somervilles’ personal guarantee of the loan to Posilock controls its ability to engage in this opportunity, because there is evidence Posilock was financially able to pursue the opportunity. We reject Somervilles’ request to essentially reweigh the evidence, and we conclude the court did not clearly err in finding Somervilles misappropriated Posilock’s corporate opportunity to manufacture its own parts.

B

[¶ 36] Somervilles alternately argue the court erred in computing the amount to be added back to Posilock to determine the monetary award to Brandts for the misappropriation of Posilock’s corporate opportunity. They argue the court erred in combining all of Dynamics 360 into Posilock, because the record supports combining only the PL MFG division of Dynamics 360.

[¶ 37] The trial court found the activities of Dynamics 360 were closely integrated with Posilock. There was evidence Dynamics 360 also provided Posilock with services for marketing and human resources, which could have been done by Posilock. The court has discretion in determining the appropriate remedy under N.D.C.C. ch. 10-19.1. We conclude the court did not clearly err in finding Dynamics 360 was closely integrated with Posilock, and the court did not abuse its discretion in determining a remedy for Somervilles’ misappropriation of Posilock’s business opportunity.

VIII

[¶ 38] We affirm the judgment and the post-judgment order.

[¶ 39] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.