author: KAPSNER, Justice. VANDE WALLE, Chief Justice, SANDSTROM, Justice,

text:
    2005 ND 124
    STATE of North Dakota, Plaintiff and Appellee v. Scott N. SEGLEN, Defendant and Appellant.
    No. 20040094.
    Supreme Court of North Dakota.
    July 13, 2005.

      David T. Jones (argued), Assistant State’s Attorney, Thomas H. Falck, Jr. (on brief), Assistant State’s Attorney, and Kelly D. Crammer (appeared), appearing under the Rule on the Limited Practice of Law by Law Students, Grand Forks, ND, for plaintiff and appellee.
    Larry J. Richards, Grand Forks, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Scott Seglen appealed a criminal judgment based on his conditional guilty plea entered after the district court’s denial of his motion to suppress evidence in his minor-in-possession case. He argues the evidence was obtained during an unconstitutional search and seizure. We find the pat-down search by a University of North Dakota police officer was unconstitutional. We reverse and remand to allow Seglen an opportunity to withdraw his guilty plea.

I.

[¶ 2] Seglen, a 20-year-old University of North Dakota student, attended a college hockey game at Ralph Engelstad Arena (“REA”) in Grand Forks on November 8, 2003. The game was between the University of North Dakota and the University of Minnesota, and the governors of both states were in attendance. The privately owned and operated arena had extra security measures in place because the games between these rivals are historically sold-out and highly competitive. University of North Dakota police officers were placed inside the student entrance and students were subjected to pat-down searches. Signs inside the arena warned patrons they were subject to search. Arena officials asked the officers to pay special attention to entrants wearing bulky jackets because REA officials had determined bulky jackets were a primary means for bringing unauthorized items into the arena. There have been incidents of animal carcasses being thrown onto the ice at these games, but there is no record of injury to players, officials, or spectators. Likewise, there is no record of any other violence by, or injury to, spectators.

[¶ 3] Officer Inocencio, a member of the University of North Dakota Police Department, observed and physically searched Seglen as he entered the arena. Inocencio saw and felt a “bulge” in Se-glen’s jacket and asked him to remove the item creating the bulge. Seglen removed a can of Coors Light from his jacket. Ino-cencio determined Seglen’s age and identity, at which point Seglen produced a second can of Coors Light. Seglen was cited with Minor in Possession of an Alcoholic Beverage and asked to leave the premises.

[¶ 4] Seglen filed a motion to suppress the evidence at his minor-in-possession trial, arguing the search and seizure were unreasonable under Fourth Amendment standards. The district court denied the motion, finding the security measures taken by the arena that evening were reasonable because the game was between the University of North Dakota and the University of Minnesota, the governors of both states were present, signs inside the arena warned entrants they were subject to search, and similar pat-down searches were conducted on all persons wearing bulky jackets who entered through that particular gate. Seglen entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion.

II.

[¶ 5] The following standard of review is applied when a district court decides a motion to suppress:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1 (quoting State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811). Questions of law are fully reviewable. Heitzmann, at ¶ 8.

[¶ 6] Unreasonable searches and seizures are prohibited by the Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and by Article I, § 8 of the North Dakota Constitution. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. The Fourth Amendment only applies to government action; “a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment.” Walter v. U.S., 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); see also State v. Ronngren, 361 N.W.2d 224, 228 (N.D.1985); State v. Rode, 456 N.W.2d 769, 770 (N.D.1990). Inocencio was acting in his capacity as a University of North Dakota police officer, so the Fourth Amendment applies even though REA is privately owned and operated.

[¶ 7] “Warrantless searches are unreasonable unless they fall within a recognized exception to the requirement for a search warrant.” Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. When the State alleges a warrantless search falls within an exception, the State bears the burden of proving the purported exception applies. State v. Mitzel, 2004 ND 157, ¶ 12, 685 N.W.2d 120. Recognized exceptions include: consensual searches, stop and frisk searches, hot pursuit, border searches, and airport and courthouse searches. Jacobsen v. City of Seattle, 98 Wash.2d 668, 658 P.2d 653, 655 (1983) (citations omitted). The State argued the search of Seglen at REA could be classified as a stop and frisk search, an airport/courthouse-type search, or a consensual search.

A.

[¶ 8] The United States Supreme Court established the “stop and frisk” exception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry case involved a police officer who conducted a pat-down search of two men he suspected were planning an armed robbery of a store. Id. at 5-8, 88 S.Ct. 1868. He testified the search was conducted because he had a reasonable suspicion the men were armed and an imminent fear for his own safety and the safety of those around him. Id. at 8, 88 S.Ct. 1868. The Court found the search was not a violation of Terry’s Fourth Amendment rights, but urged that its holding be narrowly applied:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. 1868. The Court further stated “in determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 19-20, 88 S.Ct. 1868.

[¶ 9] Inocencio testified he did not believe Seglen was hiding a weapon, and the object spotted in Seglen’s coat “appeared to be some sort of beverage container.” Under the Terry exception, “a law enforcement officer may conduct a frisk, or a pat-down search, of a person only when the officer ‘possesses an articu-lable suspicion that an individual is armed and dangerous.’ ” Heitzmann, 2001 ND 136, ¶ 11, 632 N.W.2d 1 (quoting State v. Haverluk, 2000 ND 178, ¶ 22, 617 N.W.2d 652). Because Inocencio admitted he did not believe Seglen was armed, the search does not fall within the Terry exception.

B.

[¶ 10] Limited searches of persons entering airports and courthouses have been found constitutional in light of “unprecedented airport bombings, aircraft piracy and courtroom violence.” Collier v. Miller, 414 F.Supp. 1357, 1362 (S.D.Tex.1976). The State argues the security needs at large arenas and sporting events are similar to airports and courthouses, especially in recent years. Other courts have rejected this argument when asked to extend the warrant exception to rock concerts. See generally Jacobsen, 98 Wash.2d 668, 658 P.2d 653; Collier, 414 F.Supp. 1357.

[¶ 11] The Jacobsen case involved pat-down searches as patrons entered a rock concert. The Seattle Police Department conducted the searches and confiscated unmarked heart medicine, removed an unopened pack of cigarettes from a purse, opened the pack and inspected the individual cigarettes. Jacobsen, 658 P.2d at 654. Patrons were unaware they were subject to search prior to entering the concert. Id. The court found “highly intensive pat-down searches by police officers” to be “unconstitutional.” Id. at 656. The court refused to analogize the rock concert searches to airport and courthouse searches and found they are not exempt from constitutional protection. Id.

[¶ 12] In Collier, the plaintiffs purse was seized and searched by an on-duty officer of the University of Houston’s Traffic and Security Department upon entering a rock concert in Houston, Texas. Collier, 414 F.Supp. at 1359. Her three companions were not searched. Id. at 1360. The purported purpose of the search was to prevent “alcoholic beverages, bottles, grass and weapons” from entering the facility. Id. There were no signs informing patrons of the search policy. Id. at 1366. The court expressed concern because the decision of whom to search, and the degree of the search, was left entirely to the officer’s discretion. Id. at 1364. The court found the searches were conducted “without any definitive basis for suspicion” and “eonsti-tute[d] serious intrusions which can be both annoying and humiliating.” Id. at 1365. The court further stated, “[t]his Court does not read Terry v. Ohio to sanction wholesale searches of the general public in the absence of exigent circumstances, regardless of the searching official’s valid interest in preventing potential injuries.” Id.

[¶ 13] With the exception of the presence of signs, the Jacobsen and Collier cases are factually similar to Seglen’s. Both courts found- rock concerts did not require the same level of security as airports and courthouses.

[¶ 14] The State argues the country has a greater need for security now than when the cases were decided in 1983 and 1976, respectively, and the presence of the governors only increased that need. The Eleventh Circuit rejected this argument in a case involving protestors at a United States military school at Fort Benning, Georgia. Bourgeois v. Peters, 387 F.3d 1303 (11th Cir.2004). Approximately 15,-000 people gather annually to protest the United States government’s funding of the school where military leaders from other Western Hemisphere countries are trained. Id. at 1306. No weapons have been found at the protest site and no protestors have been arrested for acts of violence during the protests’ thirteen-year history. Id. The city where the school is located instituted a policy in 2002 requiring all protestors to submit to a magnetometer search, providing as reasons: the Department of Homeland Security threat level was “elevated”; protestors had “demonstrated a history of ‘lawlessness’ ” by engaging in “frenzied dancing,” lingering after the conclusion of the scheduled protest, and “ ‘forming] a “global village” from large debris’ some protestors in past years had ignited smoke bombs and entered Fort Benning to peacefully march on the school; and several “affinity groups” who had allegedly instigated violence at other, unrelated protests had been invited. Id. at 1307.

[¶ 15] The Eleventh Circuit declared the searches unconstitutional, finding “[w]hile the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment’s protections in any large gathering of people .... the Fourth Amendment embodies a value judgment by the Framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security.... September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.” Id. at 1311-12.

[¶ 16] We agree with our colleagues in the Eleventh Circuit. There was no history of injury or violence presented in this case and nothing in the record supports a suspicion-less search of all patrons by a University of North Dakota police officer.

C.

[¶ 17] The State argues Se-glen consented to the search because signs are posted inside the arena notifying patrons they will be “Subject to Search” “For [Their] Safety.” Consent is a recognized exception to the warrant requirement. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120; see also State v. Guthmiller, 2004 ND 100, ¶ 5, 680 N.W.2d 235.

The trial court needs to determine whether the consent was voluntary under the totality of the circumstances. To be voluntary, the consent must not be coerced by explicit or implicit means or by implied threat or covert force. Although the existence or absence of certain factors concerning the characteristics and condition of the person at the time of consent and the details of the setting in which the consent was obtained are significant in deciding volun-tariness, no one factor in and of itself is determinative.

State v. DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579 (quoting State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410) (internal citations omitted).

[¶ 18] The State must show “affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions” to prevent the search. Avila, 1997 ND 142, ¶ 17, 566 N.W.2d 410 (citing U.S. v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (consent cannot be inferred from silence and failure to object when police do not expressly or implicitly request consent); Ingram v. State, 364 So.2d 821, 822 (Fla.Ct.App.1978) (submission to apparent authority of officer is not necessarily consent to search, and a showing of acquiescence without at least tacit consent is not sufficient to prove consent) (citations omitted)).

[¶ 19] The trial court noted signs were “conspicuously posted” at REA entry points warning persons entering REA that they are “subject to search.” The existence of conspicuously posted signs does not establish Seglen’s consent to a search. There is no evidence of affirmative conduct by Seglen to consent to the search. The State did not meet its burden of establishing Seglen’s consent; therefore, the consent exception to the warrant requirement is not applicable.

III.

[¶ 20] The State urges consideration of a Michigan case that upheld searches of fans entering a sporting event. Jensen v. City of Pontiac, 113 Mich.App. 341, 317 N.W.2d 619 (1982). The Jensen plaintiff was entering the stadium to attend a professional football game when a security officer asked her to open her purse so he could look inside. Id. at 620. The officer did not touch her or her property. Id. Large signs warned patrons they may be subject to search and stated they could refuse inspection and risk being refused entry. Id. The plaintiff challenged the constitutionality of the procedure. Id.

[¶ 21] The Jensen court found the procedure used was minimally invasive because only visual searches were conducted. Id. at 620-21. The court stated, in dicta, “[a] physical pat-down search by a guard is more intrusive than a limited visual search.” Id. at 624. The court further ordered: patrons are to be asked to consent to the search, not ordered, and patrons must be told they do not need to consent to the search and their ticket price may be refunded if they do not consent. Id. The record does not indicate any of these steps are part of REA’s search policy.

[¶ 22] The State alleges, without citing legal authority, the pat-down search used on Seglen was “but an extension of the visual observations, justified by patrons’ ability to conceal items in oversized clothing and the facility’s heightened need to protect not only hockey game patrons, but the Minnesota and North Dakota Governors as well.” Because a pat-down search is very intrusive, see generally Jensen, 317 N.W.2d at 624; State v. Zearley, 444 N.W.2d 353, 356 (N.D.1989), this argument, without pointing this Court to any legal authority, is not persuasive.

IV.

[¶ 23] We reverse and remand to allow Seglen an opportunity to withdraw his guilty plea.

[¶ 24] MARY MUEHLEN MARING, J., concurs.

[¶ 25] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 26] I concur in the result reached by the majority opinion. I write separately because I am concerned that Part II C of the majority opinion, in its terse disposition of the issue of consent to search, leaves an impression with which I do not agree, i.e., that the operators of a facility of this nature are helpless to prevent a violation of the rules of the facility. After citing cases to the effect that the State must show affirmative conduct by the person alleged to have consented to the search, cases with which I agree, and observing that signs were posted at the entries to REA warning persons they are subject to search, the majority concludes this issue with the statements that the existence of conspicuously posted signs does not establish Seglen’s consent to search, there is no evidence of affirmative conduct by Seglen to consent to the search, that the State did not meet its burden of establishing Seglen’s consent and that the consent exception to the warrant requirement is therefore not applicable.

[¶ 27] In the first instance it is not clear to me that the issue of consent was raised in the trial court or, if it was raised, if it was decided. In the trial court’s memorandum decision denying the motion to suppress, the trial court stated:

It must also be noted that conspicuously posted prior to the REA entry points are written warnings that persons seeking entry into REA are subject to search. Defendant argues that despite the warnings of potential pre-entry searches, any fruits of such a search cannot be used in a criminal prosecution, but rather should simply be used to deny access to the facility.

Following those statements, the trial court framed the issue: “Whether, under the facts and circumstances of this particular case, Officer Inocencio’s stop of the Defendant was reasonable under the Fourth Amendment and the subsequent seizure of evidence permissible.” In resolving that issue the trial court held the stop was reasonable because “There were security concerns; there were posted signs advising entrants of possible searches if they sought entry into REA; and the Defendant was not singled out, but rather the subject of a pat down because of the apparel he was wearing.” It thus appears to me that the trial court concluded the signs were but one of the factors which made the stop “reasonable” rather than concluding the signs and Seglen’s apparent lack of resistance to the pat down were a consent to search and an exception to the warrant requirement.

[¶ 28] More significantly, however, I believe the conspicuously posted signs may serve to warn persons such as Seglen that they may be required to consent to the search or be denied admission to the facility. Although persons seeking entrance may complain that such a Hobson’s choice is no choice at all and is not the voluntary consent required under the exception-to-the-warrant requirement, I believe the facility, particularly a private facility, may impose such a requirement for legitimate purposes. No one has argued that the purposes which prompted the search were improper or invalid. Indeed, Seglen conceded as much at the trial court when he argued that despite the warnings of potential pre-entry searches, any fruits of the search could not be used to prosecute him but simply be used to deny him access to the facility. Thus, because of the nature of the bulky clothing he was wearing, I believe Seglen could have been affirmatively given the choice of consenting to a search or being refused admission to the facility and, had he chosen to consent to the search, such consent would have been voluntary.

[¶ 29] However, I agree with the majority that on this record it is not clear Seglen was, in fact, given such a choice. The most that could be gleaned is that Seglen impliedly consented to the search by not protesting or by not leaving. But, as the majority observes, that is not sufficient. Absent evidence that Seglen was told he could consent to the search or he could leave, I agree with the conclusion reached by the majority. The signs do not give the officers the right to search. They could only serve as a warning that a person may be asked to submit to a search. If facilities are going to use this method to enforce their rules I suggest the sign should include a statement that would-be entrants dressed in bulky clothing may be asked for their permission to search or may leave without entering.

[¶ 30] Gerald W. VandeWalle, C.J.

SANDSTROM, Justice,

dissenting.

[¶ 31] Although I agree with much of what the Chief Justice has written in his separate opinion, I dissent because the majority reverses on a basis not raised to the district court by the defendant.

[¶ 32] In the district court, the defendant’s issue was what could be done with evidence, not whether he consented to the search.

[¶ 33] At the suppression hearing, the defendant’s lawyer argued that “the sign just says they may be subject to search. Again does not indicate specifically that this evidence could be used in a court of law against them.” And, “So it’s again a matter of what can we do with this evidence once it’s seized. Can we use it in a court of law.”

[IT 34] After the State’s argument, the court asked whether there was any response. The defense again argued, “Just, Your Honor, this is the type of thing that could be cured. I mean, I think if. you did a properly noticed sign which spelled out clearly the consequences that the subject to search that it is subject to arrest or seizure for items prohibited by law.”

[¶ 35] The defendant’s argument in the district court was not that he did not consent to the search, but that he did not consent to the evidence being used in a court of law.

[¶ 36] The defendant’s failure to dispute in the district court his consent to search precludes him from raising it here. State v. Steffes, 500 N.W.2d 608, 615 (N.D.1993); Gonzalez v. Tounjian, 2003 ND 121, ¶ 31, 665 N.W.2d 705.

[¶ 37] I would affirm the district court judgment.

[¶ 38] Dale V. Sandstrom


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2005 ND 131
    Francisco GONZALEZ, Plaintiff and Appellee v. Jessica GONZALEZ, Defendant and Appellant.
    No. 20040374.
    Supreme Court of North Dakota.
    July 13, 2005.

      Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for plaintiff and appellee.
    Faron E. Terry, Terry Law Office, Minot, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Jessica Gonzalez appealed from a divorce decree awarding custody of the parties’ minor son to his father, Francisco Gonzalez, with reasonable visitation for Jessica Gonzalez. We hold the trial court’s custody decision is not clearly erroneous, and we affirm.

I

[¶ 2] Jessica and Francisco Gonzalez were married in 2001 and have one son who was born in September 2001. In December 2003, Francisco Gonzalez brought an action seeking dissolution of the marriage on the ground of irreconcilable differences and requesting custody of the parties’ son. Jessica Gonzalez filed an answer and counterclaim also seeking a dissolution of the marriage and custody of the parties’ child. After a bench trial, the court granted the parties a divorce and awarded custody of the child to Francisco with reasonable visitation for Jessica Gonzalez.

II

[¶ 3] Jessica Gonzalez asserts the trial court’s custody decision is clearly erroneous, because the court adopted nearly verbatim the findings of fact proposed by Francisco Gonzalez’s attorney without providing any oral decision or written memorandum on the issue.

[¶ 4] Rule 52(a), N.D.R.Civ.P., provides, in relevant part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.... Requests for findings are not necessary for purposes of review.... It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.

The purpose of this rule is to enable the appellate court to understand the factual determinations made by the trial court as the basis for its conclusions of law and the judgment entered. In re Griffey, 2002 ND 160, ¶ 6, 652 N.W.2d 351. Even though the initial draft of the court’s findings is prepared by trial counsel, the findings become the findings of the court when it affixes its signature to them. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995). Although we prefer that trial courts prepare their own findings of fact, the court’s adoption of proposed findings by counsel is not reason, by itself, to reverse the court’s decision. Foster v. Foster, 2004 ND 226, ¶ 10, 690 N.W.2d 197.

[¶ 5] While the trial judge in this case did not prepare a written memorandum or announce findings orally from the bench, he requested proposed findings by trial counsel and, upon receiving them, reviewed them and made additions and corrections to them before affixing his signature to those findings. It appears the trial court carefully considered the findings proposed by counsel and did not “rubber stamp” them or sign them without giving due regard to all of the relevant factors involved in reaching a custody decision. We, therefore, reject Jessica Gonzalez’s argument the trial court’s custody decision is clearly erroneous because the court adopted as its own the proposed findings of fact submitted by opposing counsel.

Ill

[¶ 6] Jessica Gonzalez asserts the trial court erred in not finding domestic violence committed by Francisco Gonzalez sufficient to raise a presumption against awarding custody of the parties’ minor child to him. Under N.D.C.C. § 14-09-06.2(1)(j), a presumption arises against awarding custody to the perpetrator of domestic violence, if the court finds there is an instance of violence resulting in serious bodily injury or there is a pattern of domestic violence within a reasonable time proximate to the custody proceeding:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

A trial court’s determination whether the presumption is applicable under this subsection is a finding of fact which will not be reversed unless it is clearly erroneous. Tulintseff v. Jacobsen, 2000 ND 147, ¶ 16, 615 N.W.2d 129. When a trial court addresses whether evidence of domestic violence triggers the presumption under this statute, we require specific factual findings and conclusions regarding the presumption so we are not left guessing as to the trial court’s reasoning for applying or not applying the presumption. Reeves v. Chepulis, 1999 ND 63, ¶ 14, 591 N.W.2d 791. Specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption. BeauLac v. BeauLac, 2002 ND 126, ¶ 19, 649 N.W.2d 210. However, a trial court cannot ignore evidence of family abuse, and when the trial court fails to address the evidence of domestic violence it may be necessary to reverse and remand the case for a redetermination of the custody issue. Helbling v. Helbling, 532 N.W.2d 650, 653 (N.D.1995).

[¶ 7] Regarding the issue of domestic violence, the trial court made the following specific finding of fact:

j. As to the evidence of domestic violence, the Court does not find any credible evidence of a pattern of domestic violence or any credible evidence that would support a finding of domestic violence as to either individual, although there have been allegations (made by both individuals) of each acting in a less than perfect fashion.

(Emphasis in original.) There was some conflicting evidence about family abuse introduced in this case. Jessica Gonzalez asserted that on one occasion their son suffered a cut lip when his father struck him in the mouth. Francisco Gonzalez denies ever having struck the child. Jessica Gonzalez also testified that on various occasions Francisco was abusive to her by pushing and shoving her and by grabbing her hair. Francisco Gonzalez testified that there were some incidents of the parties being involved in physical skirmishes but Jessica Gonzalez was the aggressor. Jessica Gonzalez introduced photographic evidence of a bruise on her stomach, which she testified was caused by Francisco. He denies that he caused any bruising to her, but concedes that on one instance he attempted to push her away with his open hands after she had struck him. While the trial court’s finding on this issue is not extensive, we are able to glean from it that the trial court did not believe the evidence of abusive behavior in this case demonstrates a pattern of domestic violence by either party or an incident of violence which resulted in serious bodily injury so as to trigger the presumption under N.D.C.C. § 14-09-06.1(j) against awarding one of the parties custody. We, therefore, hold the trial court did not err in refusing to apply the presumption under the statute in this case.

rv

[¶ 8] Jessica Gonzalez asserts the trial court’s award of custody is clearly erroneous, because the court inappropriately weighed the relevant factors and viewed more favorably Francisco Gonzalez’s ability to have custody of the child. We exercise a limited review of child custody awards in divorce cases. Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196. A custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Id. The trial court’s findings of fact are presumptively correct, and we view the evidence in the light most favorable to those findings. Id. In making an initial custody determination, the trial court must consider all the factors specified in N.D.C.C. § 14-09-06.2(1) and base its decision on the best interests and welfare of the child. Id. at ¶ 6. The trial court’s choice between two permissible views of the evidence is not clearly erroneous. Tishmack v. Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204.

.[¶ 9] In this case, the trial court made specific findings with respect to each factor under the statute. The trial court found that seven of the best interest factors favored Francisco Gonzalez, none of the factors favored Jessica Gonzalez, and six of the factors were neutral and did not favor either party. The court clearly considered and carefully weighed all the relevant factors in deciding this issue.

[¶ 10] 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. McDowell v. McDowell, 2003 ND 174, ¶ 16, 670 N.W.2d 876. In this case, the trial court’s “Findings of Fact, Conclusions of Law and Order For Judgment and Judgment” is 29 pages in length. We note that 14 of the 29 pages contain a mere recitation of the evidence presented at trial. A trial court’s recitation or summary of testimony presented at trial does not satisfy the requirement that findings of fact must be stated with specificity. Smith Enterprises, Inc. v. In-Touch Phone Cards, Inc., 2004 ND 169, ¶ 14, 685 N.W.2d 741.

[¶ 11] However, the court also made specific factual findings on each of the relevant factors in N.D.C.C. § 14-09-06.2 for making a custody decision. The trial court found that both parents have love, affection, and emotional ties to their son. However, the court found Francisco Gonzalez’s general stability and disposition make him better able to provide for his son’s material needs. The court also found that Jessica Gonzalez has had numerous instances of being unable to tell the truth which resulted in her being involuntarily separated from the Air Force. The court found that from the standpoint of mental and physical health as well as moral fitness Francisco Gonzalez is the more fit parent. The court also expressed concern that if Jessica Gonzalez were awarded custody she would probably make visitation between the child and Francisco Gonzalez difficult, but the court found that Francisco Gonzalez recognizes the importance of the child’s visitations with the noncustodial parent.

[¶ 12] We conclude the record evidence supports the court’s findings. The trial court’s choice for custody between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the trial court where, as here, its determination is supported by the evidence. Krank v. Krank, 2003 ND 146, ¶ 14, 669 N.W.2d 105. We hold the trial court properly considered the relevant factors for deciding custody and its decision to award custody to Francisco Gonzalez is not clearly erroneous.

V

[¶ 13] Affirmed.

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


author: SANDSTROM, Justice.

text:
    2005 ND 125
    STATE of North Dakota, Plaintiff and Appellee v. Brian J. HATLEWICK, Defendant and Appellant.
    No. 20040336.
    Supreme Court of North Dakota.
    July 13, 2005.

      Thomas E. Merrick, Merrick & Schaar Law Firm, Jamestown, N.D., for defendant and appellant.
    Frederick R. Fremgen, State’s Attorney, Jamestown, N.D., for plaintiff and appellee.
   SANDSTROM, Justice.

[¶ 1] Brian Hatlewiek appeals from a criminal judgment convicting him on three counts of willfully permitting livestock to run at large in violation of N.D.C.C. § 36-11-01. We affirm the convictions.

I

[¶ 2] Hatlewiek was charged with four counts of stock running at large through failure to maintain a lawful fence. At the bench trial, Hatlewiek’s neighbors testified that his cattle had been loose on their property on more than one occasion, destroying crops and various other items. Hatlewiek presented evidence that the fences complied with the definition of a legal fence and that as soon as he was notified, the fences were fixed where the cattle had gone through. The trial court found Hatlewiek guilty on three counts of willfully permitting livestock to run at large and entered a criminal judgment on November 2, 2004. Hatlewiek appealed on November 24, 2004. On January 26, 2005, after a hearing, the trial court issued a restitution order.

[¶ 3] The trial court had jurisdiction under N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06(2).

.II

[¶ 4] Hatlewiek argues there was insufficient evidence to convict him, because the State did not prove his fence was illegal. Hatlewick’s case was tried before a judge in a bench trial. Our standard of review for a defendant’s challenge to the sufficiency of the evidence is the same in' a bench trial and a jury trial. State v. Johnson, 425 N.W.2d 903, 906 (N.D.1988). The standard of review is well-established:

In reviewing the sufficiency of the evidence to convict, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

State v. Schill, 406 N.W.2d 660, 660 (N.D.1987) (citations omitted).

[¶ 5] Hatlewick was convicted of allowing his livestock to run at large in violation of N.D.C.C. § 36-11-01.

Livestock running at large prohibited — Penalty. No livestock may be permitted to run at large. Any owner or possessor of livestock who willfully permits the livestock to run at large through failure to maintain a lawful fence as provided in section 47-26-01, except in grazing area as provided in section 36-11-07, is guilty of a class B misdemeanor.

A legal fence is defined as:

A barbed wire fence consisting of at least three barbed wires with at least number twelve and one-half gauge wire, the wire to be fastened firmly to posts which shall be not more than twenty feet [6.10 meters] or not more than forty feet [12.19 meters] and three stays apart. The top wire shall be not less than forty inches [101.6 centimeters] high, the bottom wire shall be not more than sixteen inches [40.64 centimeters] above the ground, and no two adjacent wires shall be separated by more than sixteen inches [40.64 centimeters].

N.D.C.C. § 47-26-01(5).

[¶ 6] The State presented testimony that the cattle simply pushed down the wires on the fence involved in counts three and four. Deputy Mayer testified the wires were on the wrong side of the posts, allowing the cattle to easily push against the wires, loosen the fasteners, and walk over the fence. Hatlewick argues the statute does not specify to which side of the posts the wire needs to be attached. However, that issue does not need to be decided. The statute requires “the wire to be fastened firmly to posts.” When cattle merely push against the wire and push the fence down, the wire is not “fastened firmly” to the posts, and the fence does not comply with N.D.C.C. § 47-26-01(5). Therefore, Hatlewick’s cattle were running loose as the result of an illegal fence. The record also contains neighbors’ testimony that the cattle had been out on several occasions during June and August. Hat-lewick testified he knew the fence needed to be fixed in certain areas where cattle were getting through. Viewing the evidence in a light most favorable to the State and giving the State the benefit of all inferences reasonably to be drawn in its favor, the evidence would allow a rational fact finder to determine Hatlewick was guilty beyond a reasonable doubt. Schill, 406 N.W.2d at 660. Hatlewick’s convictions are supported by sufficient evidence.

Ill

[¶ 7] Hatlewick argues the trial court erred by admitting into evidence Hatlewick’s prior conviction for permitting livestock to run at large. Hatlewick argues the conviction’s probative value was outweighed by the danger of unfair prejudice. The State argues the conviction was properly admitted because part of Hatlew-ick’s defense was that the cattle escaped by accident or by mistake.

[¶ 8] Rule 404(b), N.D.R.Ev., governs the admissibility of prior crimes evidence. Rule 404(b), in relevant part, states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ....

We have explained the rationale of Rule 404. “Evidence of prior acts or crimes is generally not admissible unless it is substantially relevant for some purpose other than to point out the defendant’s criminal character and thus to show the probability that he acted in conformity therewith.” State v. Biby, 366 N.W.2d 460, 463 (N.D.1985). The rule acknowledges the inherent prejudicial effect prior bad act evidence may have on the trier of fact and limits its use under specifically recognized exceptions. State v. Micko, 393 N.W.2d 741, 744 (N.D.1986). The rule “does not authorize automatic admission merely because the proponent advances a proper purpose for the evidence”; instead, the relevance and probative value of the evidence must be demonstrated. Id.

[¶ 9] When using Rule 404(b), a trial court is to apply a three-step analysis, which considers:

1) the purpose for which the evidence is introduced, 2) the evidence of the prior act or acts must be substantially reliable or, “clear and convincing,” and, 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant’s guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts. Following this analysis, the trial court must finally determine if, under Rule 403, the probative value of the evidence outweighs any possible prejudicial effect.

State v. Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631 (citations omitted). We review a trial court’s evidentiary ruling under an abuse-of-discretion standard. “A trial court abuses its discretion in eviden-tiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498 (citations omitted).

[¶ 10] Unfortunately, the trial court did not make specific findings regarding this analysis. However, the record supports the trial court’s decision to admit the prior conviction into evidence. The State gave notice that the purpose for introducing Hatlewick’s prior conviction was to rebut his claim that the cattle running loose was a mistake or an accident. Rule 404(b) clearly allows the admission of prior crime evidence for other purposes such as “absence of mistake or accident.” The proposed evidence was a criminal judgment, which is “clear and convincing.” Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631. As we previously noted, the trial court also had adequate proof of the crimes charged, satisfying the initial three-step analysis.

[¶11] Under Rule 403, N.D.R.Ev., the trial court must also decide whether the probative value of the prior conviction outweighs any possible prejudicial effect. Rule 403, N.D.R.Ev., states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The State notified Hatlewick it would be using the evidence for a proper purpose under Rule 404(b), N.D.R.Ev. However, “Rule 404(b) does not authorize automatic admission merely because the proponent advances a proper purpose for the evidence”; instead, the relevance and probative value of the evidence must be demonstrated. Micko, 393 N.W.2d at 744 (citation omitted). We have recently explained a trial court’s ability to exclude evidence under Rule 403:

A trial court should exercise its power to exclude evidence under Rule 403 sparingly, recognizing that “any prejudice due to the probative force of evidence is not unfair prejudice.” State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325 (citation omitted). “In determining whether to exclude evidence under Rule 403, courts should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439. Rule 403 applies to unfairly prejudicial evidence, not simply evidence that is prejudicial. State v. Zimmerman, 524 N.W.2d 111, 116 (N.D.1994). “Indeed, no verdict could be obtained without prejudicial evidence.” Id. (citing United States v. Noland, 960 F.2d 1384, 1387 (8th Cir.1992)).

Ramsey, 2005 ND 42, ¶ 27, 692 N.W.2d 498. Hatlewiek presented a defense of mistake or accident because he was sick during the period of time his cattle were loose and was unable to maintain the fences. The State offered the prior conviction to prove his cattle escaping was not just a one-time event. Under these circumstances, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Therefore, the trial court did not abuse its discretion by admitting Hatlewick’s prior conviction into evidence.

IV

[¶ 12] Hatlewiek argues the trial court did not retain jurisdiction to enter a restitution order after he filed his notice of appeal.

[¶ 13] On November 2, 2004, the trial court entered a criminal judgment against Hatlewiek, stating in relevant part: “The conditions of probation are as follows: (X) The State may move the court for a restitution hearing within 60 days.” On November 24, 2004, Hatlewiek filed a notice of appeal from the criminal judgment. On January 26, 2005, the trial court entered an Order for Restitution, noting “the Court reserved the right to amend the Criminal Judgments to include payment of restitution if an amount was determined.”

[¶ 14] Section 12.1-32-08(1), N.D.C.C., governing restitution, states in relevant part:

Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence it may impose, shall order that the defendant make restitution to the victim or other recipient as determined by the court

N.D.C.C. § 12.1-32-08(1). “Section 12.1-32-08, N.D.C.C., makes the ordering of restitution mandatory.” State v. Vick, 1998 ND 214, ¶ 6, 587 N.W.2d 567. In accordance with section 12.1-32-08, the trial court reserved the right to amend the criminal judgment to include restitution and did so after notice and hearing.

[¶ 15] “The right to appeal is statutory in nature.” State v. Wika, 1998 ND 33, ¶ 6, 574 N.W.2d 831. We have discouraged piecemeal appeals in civil cases. See Nodak Mut. Farm Bureau v. Kosmatka, 2000 ND 210, ¶ 5, 619 N.W.2d 852 (noting our policy against piecemeal appeals in granting N.D.R.Civ.P. 54(b) certifications). However, we have never extended this policy to criminal cases. Furthermore, under N.D.C.C. § 29-28-06(2), Hatlewiek had the right to appeal from the judgment of conviction, and under N.D.C.C. § 29-28-06(5), Hatlewiek may appeal the order for restitution. Although we prefer that all relevant issues be raised in a single appeal, we recognize the constitutional dimensions present in many criminal appeals and the importance of determining restitution when witnesses are available and the evidence is still fresh. In any event, if separate appeals were filed, under the timelines of this case and other cases in which the restitution hearing is held shortly after conviction, the cases would have been consolidated on appeal and would not, as a practical matter, offend our policy against piecemeal appeals. We conclude the trial court retained jurisdiction over the issue of restitution.

V

[¶ 16] ‘ We affirm the convictions and conclude the trial court retained jurisdiction to issue the restitution order.

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


author: PER CURIAM.

text:
    2005 ND APP 8
    Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20050028CA, 20050029CA.
    Court of Appeals of North Dakota.
    June 30, 2005.

      Susan Schmidt, Bismarck, N.D., for petitioner and appellant.

      Jeffrey R. Ubben (argued), third-year law student, Lloyd Clayton Suhr (appeared), Assistant State’s Attorney, and Richard James Riha (on brief), State’s Attorney, Bismarck, N.D., for respondent and appellee.
   PER CURIAM.

[¶ 1] Robert L. Johnson appealed from an order denying his applications for post-conviction relief from convictions entered upon pleas of guilty to two charges of class C felony endangering by fire. We conclude the trial court did not abuse its discretion in refusing to allow Johnson to withdraw the guilty pleas or in rejecting his claim of ineffective assistance of counsel. We affirm.

I

[¶ 2] On October 6, 1997, Johnson pled guilty to charges that he started two fires at the North Dakota State Penitentiary where he was incarcerated. In the first incident, Johnson admitted that he threw ignited toilet paper into another inmate’s cell. In the second incident, which occurred one week later, Johnson admitted that he started a fire in his own cell. The trial court accepted the guilty pleas and sentenced Johnson to concurrent 18-month terms of imprisonment to be served after he had completed the sentences for which he was incarcerated.

[¶ 3] In July 1999, Johnson filed a pro se application for post-conviction relief only from his conviction on the charge arising from the first incident. He claimed his plea was “unlawfully induced” and was not made voluntarily because of medications he was taking for his mental illness; the conviction was obtained through a “coerced confession;” the conviction was obtained in “violation of the privilege against self-incrimination” because he was questioned by prison officials without his attorney being present; and the prosecutor failed to disclose evidence favorable to him. Johnson’s trial attorney was appointed to represent him in the post-conviction proceeding. The trial court granted the State’s motion for summary disposition, and Johnson did not appeal. In November 1999, Johnson again filed a pro se application for post-conviction relief only from his conviction on the charge arising from the first incident. Johnson’s allegations mirrored those made in his July 1999 application. The trial court summarily dismissed the second application because it “alleges nothing new.” Johnson did not appeal.

[¶ 4] In October 2004, Johnson filed two pro se applications for post-conviction relief. In the application challenging the charge arising from the first incident, Johnson again claimed his conviction was obtained by use of a “coerced confession;” the conviction was obtained in violation of his privilege against self-incrimination because he was questioned without his attorney present; the prosecution failed to disclose evidence favorable to him; and he was under medication and did not understand the charges against him. Johnson also alleged that “evidence not previously present[ed] and heard exists requiring vacation of the conviction.” For the first time, Johnson also filed an application for post-conviction relief challenging the conviction on the charge arising from the second incident. In this application, Johnson contended that he was denied effective assistance of counsel because his attorney “failed to confer adequately” with him before he pled guilty; the conviction was obtained through use of a “coerced confession;” and the conviction was obtained in violation of his privilege against self-incrimination. After the sentencing judge recused himself, the trial court appointed counsel to represent Johnson and held an evidentiary hearing on the allegations.

[¶ 5] At the hearing, Johnson claimed he was not responsible for setting the fires, he confessed because he was threatened by correctional officers after he had asked for an attorney, and he pled guilty because he was under the influence of medication he was taking for his mental illness. He also testified his trial attorney was ineffective because he did not request a second psychological evaluation after the first evaluation found Johnson was not suffering from mental disease or defect at the time of the fires and was competent to stand trial. Another inmate testified Johnson was in the inmate’s cell when the first fire was started. Johnson’s trial attorney testified that he had experience representing people on medications and that he tries his best to make sure they understand the nature of their legal proceedings. The attorney testified that he believed Johnson understood the guilty plea proceedings. The trial court denied both applications, reasoning:

A review of the allegations of Robert L. Johnson and the proceedings held on October 6,1997, establish that the issues previously raised by Robert L. Johnson were addressed by this Court in prior applications for post-conviction relief and denied.
Notwithstanding said prior decisions, a review of the transcript of the arraignment, change of plea and sentencing of Robert L. Johnson reflects the Defendant’s confirmation of his knowledge of the pending charge, potential penalties, and process of the Court which ensured the Defendant’s voluntary and knowing entry of said pleas.

II

[¶ 6] On appeal, Johnson argues he should be allowed to withdraw his guilty pleas in both cases because he was adversely affected by medications he was taking at the time the pleas were entered and because his confessions were coerced. Johnson further claims he is entitled to post-conviction relief from his conviction on the charge arising from the second incident because he received ineffective assistance of counsel.

A

[¶ 7] Johnson’s application .challenging the conviction based on the charge stemming from the first incident was his third application for post-conviction relief from that conviction. Under N.D.C.C. § 29-32.1-12(1) and (2), an application for post-conviction relief may be denied on the grounds of res judicata and misuse of process. A claim is res judicata if it was fully and finally determined in a previous proceeding, and misuse of process occurs when the applicant presents a claim for relief that the applicant inexcusably failed to raise in the proceeding leading to conviction or in a previous post-conviction proceeding. Jensen v. State, 2004 ND 200, ¶ 9, 688 N.W.2d 374. Although Johnson did not appeal from the prior denials of his applications, the claims raised in those applications are fully and finally determined for purposes of applying res judicata. Johnson v. State, 2004 ND 130, ¶ 12, 681 N.W.2d 769. Johnson’s claims challenging the conviction on the charge stemming from the first incident are virtually identical to claims made in the two previous. applications filed and rejected by the trial court in 1999. To the extent this application differs in any relevant respect, Johnson has offered no excuse or justification for failing to raise any additional arguments in the prior proceedings. Johnson’s claims related to the conviction stemming from the first incident are barred by res judicata and misuse of process as a matter of law. See Jensen, at ¶ 10.

B

[¶ 8] The trial court held an evi-dentiary hearing and ruled on the merits of both applications. When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d). Greywind v. State, 2004 ND 213, ¶ 7, 689 N.W.2d 390. Withdrawal of a guilty plea is allowed when necessary to correct a manifest injustice, and whether there has been a manifest injustice supporting withdrawal of the plea lies within the trial court’s discretion. Id. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when the exercise of its discretion is not the product of a rational mental process. Bell v. State, 2001 ND 188, ¶ 21, 636 N.W.2d 438. Furthermore, because post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure, a trial court’s findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 9] In this case, it is apparent the trial court simply did not believe Johnson’s testimony that he was coerced into his confessions or that the medications affected his understanding of the guilty plea proceedings, and chose instead to believe the record of the guilty plea proceedings and Johnson’s trial attorney, who testified he believed Johnson understood those proceedings. The sentencing judge advised Johnson of the charges against him, the possible sentences, the option to plead guilty or not guilty, and his right to counsel, and assured himself that the pleas were voluntary and not the result of threats or coercion. Johnson answered all questions in an appropriate manner, provided the factual bases for the guilty pleas, and acknowledged his understanding of the proceedings. The task of weighing the evidence and judging the credibility of witnesses belongs exclusively with the trier of fact, and an appellate court does not reweigh credibility or resolve conflicts in the evidence. Greywind, 2004 ND 213, ¶ 22, 689 N.W.2d 390. We conclude the trial court’s findings are not clearly erroneous and the court did not abuse its discretion in refusing to allow Johnson to withdraw his guilty pleas.

C

[¶ 10] Johnson argues that he received ineffective assistance of counsel on the conviction based on the charge relating to the second incident because his trial attorney failed to request a second psychological evaluation after the first evaluation concluded Johnson was not suffering from mental disease or defect at the time of the fires and was competent to stand trial. Johnson testified he asked his trial attorney whether he could get another evaluation, but Johnson did not remember the attorney’s response.

[¶ 11] To succeed on a claim of ineffective assistance of counsel, a defendant must prove counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. State v. Steen, 2004 ND 228, ¶ 9, 690 N.W.2d 239. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. Eagleman v. State, 2004 ND 6, ¶ 6, 673 N.W.2d 241. The issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by an appellate court. Heckelsmiller, 2004 ND 191, ¶ 5, 687 N.W.2d 454.

[¶ 12] Johnson’s claim of ineffective assistance of counsel is without merit. The record establishes that Johnson’s psychological evaluation was conducted at the request of both the State and Johnson’s trial attorney. The State had an obligation to provide Johnson only one psychological evaluation. State v. Norman, 507 N.W.2d 522, 524 (N.D.1993). A criminal defendant has no “right to shop for a psychiatrist at public expense until he finds one who will support his theory of the case.” Id. Moreover, Johnson has not shown that a second evaluation would have benefited him or that the result of the proceedings would have been different if he had received another evaluation. Johnson has not shown deficient performance or prejudice where his trial attorney failed to request a second evaluation Johnson was not entitled to receive. We conclude the trial court did not err in rejecting Johnson’s claim of ineffective assistance of counsel.

Ill

[¶ 13] The order is affirmed.

[¶ 14] BRUCE BOHLMAN, S.J., EVERETT NELS OLSON, S.J., and NORMAN J. BACKES, S.J., concur.


author: SABERS, Justice.

text:
    2005 SD 82
    CANYON LAKE PARK, L.L.C., a South Dakota Limited Liability Company, Plaintiff and Appellee, v. LOFTUS DENTAL, P.C., Ronald J. Loftus, Cheryl A. Loftus, and Leola Loftus Allen, Defendants and Appellants.
    No. 23379.
    Supreme Court of South Dakota.
    Considered on Briefs on April 25, 2005.
    Decided June 29, 2005.

      Aaron D. Eiesland of Johnson Eiesland Law Firm Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Alan L. Smoot of Smoot & Utzman, P.C., Rapid City, South Dakota, Attorneys for defendants and appellants.
   SABERS, Justice.

[¶ 1.] Canyon Lake Park, L.L.C. (Canyon Lake) brought a declaratory action against Loftus Dental, P.C. to determine the rights of the parties under an express easement. The trial court ruled in favor of Canyon Lake. Loftus appeals and we affirm.

Facts

[¶ 2.] This case involves the interpretation of an easement affecting adjacent parcels of commercial property located along Jackson Boulevard in Rapid City, South Dakota. A fitness center existed on one parcel and a dental clinic on the other. The fitness center was owned and operated by LBM, Inc. Dr. Ron Loftus, a local dentist, was the president of LBM, Inc. and also the owner of the dental clinic, Loftus Dental. A continuous asphalt parking lot spanning both parcels provided parking for the two businesses.

[¶ 3.] After a number of years in operation, a creditor of the fitness center initiated a foreclosure action on the business. As part of negotiations with the creditor, Dr. Loftus and his business partners agreed to grant an easement just prior to LBM, Inc.’s conveyance of the property to a third party. The easement provides ingress, egress, and parking on the portion of the parking lot located on the dental clinic property for the benefit of the fitness center property. Therefore, the fitness center parcel is the dominant tenement while the dental clinic parcel is the ser-vient tenement.

[¶ 4.] The easement, dated November 25,1987, provides in relevant part:

WHEREAS, it is the desire of the parties that an agreement for a perpetual and permanent easement be placed in writing for ingress, egress and parking over, upon, and across the above-described properties;
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. That a perpetual and permanent easement for ingress, egress and parking is hereby created for the benefit of LBM, its employees, agents, customers, and tenants, as located and described on the area of the servient estate referred to as “ASPHALT PARKING” on Exhibit “A” which is attached hereto and incorporated by this reference as if fully set forth herein;
2. That the expenses of maintenance, repair and snow removal shall be allocated between the parties based upon appropriate use;
3. That this easement and agreement is superior and paramount to the rights of Anderson, Loftus, Loftus Allen and First Federal in the servient estate, and that the parties intend the easement created herein to be a covenant running with the land, binding upon the parties hereto and their heirs, executors, administrators, successors and assigns.

The “above-described” property consists of the entire property and parking lot. At the time the easement was granted, both the fitness center and the dental clinic were in compliance with the local zoning ordinances in regard to the number of parking spaces required for those types of businesses.

[¶ 5.] After the sale, the fitness center building continued to be operated as a fitness center until it was eventually sold to Canyon Lake in January, 2001. Canyon Lake converted the upper level of the building into office space. The Johnson Eiesland Law Firm (Johnson Eiesland) occupies approximately two-thirds of the upper level and leases out the remaining office space.

[¶ 6.] Canyon Lake intends to remodel the lower level of the building into additional office space. In order to obtain the necessary building permits, Canyon Lake had to demonstrate that adequate parking would be available. As the successor-in-interest of the rights of LBM, Inc., Canyon Lake argues that under the terms of the easement its rights are superior and paramount to those of Loftus Dental and it should be allowed to count as available parking that portion of the parking lot located on the dental clinic parcel. Loftus Dental disagrees, claiming that the original intent of the easement was only to grant the dominant tenement “shared use” of the servient tenement’s parking lot.

[¶ 7.] Canyon Lake initiated a declaratory action against Loftus Dental for a determination of the parties’ respective rights under the terms of the easement. The trial court concluded that Canyon Lake has superior and paramount rights over Loftus Dental in regard to ingress, egress, and parking on the servient estate. Loftus Dental appeals.

[¶ 8.] 1. Whether the appeal is barred due to Loftus’ failure to object to the trial court’s findings of fact and conclusions of law and whether this Court is bound by a limited standard of review.

[¶ 9.] Canyon Lake asserts that Loftus’ appeal is barred due to his failure to object to the trial court’s findings of fact and conclusions of law. However, Loftus contends that he did object to the trial court’s findings because he submitted his own proposed judgment. Furthermore, Loftus argues that since the parties submitted stipulated facts for the trial court to consider, the parties have waived the findings of fact and conclusions of law. Therefore, Loftus asserts that findings of fact and conclusions of law by the trial court should be considered superfluous.

[¶ 10.] The record shows that in a joint letter to Circuit Court Judge Fuller, attorneys for both parties submitted a signed stipulation of facts for his consideration. Specifically, the letter, which is dated February 12, 2004, states:

As agreed on the record at the status hearing held before you on Wednesday, February 11, 2004, at 11:00 a.m., both the counsel for the plaintiff and the counsel for the defendant agree that the attached stipulated facts are being presented to the court, along with the parties’ trial briefs and exhibits thereto, for the purpose of the court determining of the respective rights of the parties under the easement agreement, as written. Further, as also agreed to on the record at the same hearing by counsel for the parties, the easement agreement is a valid unambiguous agreement of the parties, and therefore its meaning must be found by the Court within its four corners.

(emphasis ours). Although Judge Fuller accepted the parties’ stipulated facts, he also entered his own findings of fact and conclusions of law, and invited either party to submit their own proposed findings of fact and conclusions of law in the event they objected to his findings. While both parties submitted their own proposed judgment for the trial court’s consideration, neither party specifically objected to Judge Fuller’s findings of fact or conclusions of law, nor did they submit their own findings of fact or conclusions of law.

[¶ 11.] Even if Loftus’ submittal of a proposed judgment did not effectively preserve his right to appeal, this Court has held that the failure of an appellant to object to findings of fact and conclusions of law does not require the dismissal of the appeal. GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 443 (S.D.1983). Rather, “[t]he failure of an appellant to object to findings of fact and conclusions of law and to propose his or her own findings, limits review to the question of whether the findings support the conclusions of law and judgment.” Premier Bank, N.A. v. Mahoney, 520 N.W.2d 894, 895 (S.D.1994) (quoting Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991)). See also Selway Homeowners Ass’n v. Cummings, 2003 SD 11, ¶ 14, 657 N.W.2d 307, 312 (holding that since the appellant failed to either object to findings of fact or conclusions of law proposed by the appellee, or propose findings of fact and conclusions of law of their own, this Court’s review was whether the findings supported the conclusions of law and judgment). Therefore, Canyon Lake’s assertion that Loftus’ appeal should be barred is without merit.

[¶ 12.] As to Loftus’ argument that this Court is not bound to a limited review due to the fact that the parties submitted stipulated facts to the trial court, state law provides that findings of fact and conclusions of law are waived “by entering into a stipulation of facts for consideration by the court.” SDCL 15-6-52(b): This Court has held that when the matter is presented to the trial court on a written stipulation of facts entered into by all parties, any findings of fact or conclusions of law entered by the trial court are superfluous. Asmussen v. Schmidt, 87 S.D. 53, 55, 202 N.W.2d 857, 858 (1972). See also Cary v. City of Rapid City, 1997 SD 18, ¶ 3, 559 N.W.2d 891, 892; Dave Gustafson & Co., Inc. v. South Dakota State Highway Commission, 88 S.D. 557, 558, 225 N.W.2d 594, 595 (1975) (noting that findings are superfluous in a stipulated case); State v. Western Surety Co., 26 S.D. 170, 178, 128 N.W. 173, 176 (1910) (“Clearly where all the facts are stipulated, and there is no issue to be tried by the court, no findings of fact are necessary, as there are no facts to be found; the parties having agreed and stipulated as to the facts.”).

[¶ 13.] SDCL 15-6-52(a) as amended provides that “[fjindings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Here, the parties presented stipulated facts thereby waiving their rights to findings of fact and conclusions of law and the trial court nonetheless entered findings of fact. The court’s findings of fact are superfluous and no deference need be given to them on review. Therefore, our review is not limited.

[¶ 14.] 2. Whether the trial court erred in interpreting the terms of the easement.

[¶ 15.] Loftus argues that the trial court erred: a) in holding that under the terms of the easement Canyon Lake’s rights to use the servient tenement’s parking lot were superior and paramount to Loftus’ rights; b) in failing to construe the easement narrowly against Canyon Lake; and c) in failing to specifically rule on the issue whether the easement allows Canyon Lake to the full count of the parking spaces for zoning compliance purposes.

a. Interpretation of the term, “superior and paramount”

[¶ 16.] The trial court held that under the terms of the easement, Canyon Lake’s rights to use the dental clinic’s parking lot were “superior and paramount” to Loftus’ rights to use the parking lot. Loftus argues that this ruling is erroneous in that the term “superior and paramount” is not found in the “grant clause” of the easement, rather it is a separate reference to the strength of the easement. Therefore, Loftus argues, the easement does not give Canyon Lake any more than just a “shared right” of ingress/egress and parking. In other words, Loftus claims that they both have “shared” or equal rights to use the parking lot.

[¶ 17.] This Court has held:

The terms and extent of an easement by grant are ascertained either by the “words clearly expressed, or by just and sound construction” of the easement document. We look first to the language of the grant itself to discover the extent and nature of the easement agreement and its terms. We review the language used by giving terms their plain and ordinary meaning, and utilize no additional interpretation in the absence of ambiguity. If the terms of the agreement are specific in nature, the terms are “decisive of the limits of the easement.”

Picardi v. Zimmiond, 2005 SD 24, ¶ 20, 693 N.W.2d 656, 662 (internal citations omitted). Furthermore, “[i]n order to ascertain the terms and conditions of a contract, we must examine the contract as a whole and give words their ‘plain and ordinary meaning.’ ” Gloe v. Union Ins. Co., 2005 SD 30, ¶ 29, 694 N.W.2d 252, 260.

[¶ 18.] Ambiguity is a question of law for a court to determine. Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D.1990). When the terms of this easement are given their plain and ordinary meaning and the easement instrument is examined as a whole, it is clear that neither the language nor the intent of the easement is ambiguous. In fact, the cover letter to the stipulation provides in part that “the easement agreement is a valid unambiguous agreement of the parties, and therefore its meaning must be found by the Court within its four corners.” The easement provides that Canyon Lake has superior and paramount rights over Loftus Dental in regard to ingress, egress and parking on the parking lot.

b. Whether the trial court erred in failing to construe the easement narrowly against Canyon Lake and, if so, was it prejudicial

[¶ 19.] The trial court specifically found that Loftus drafted the easement. Loftus claims that this finding was erroneous. He asserts that the easement was entered at the request of the creditor in the foreclosure action, who was being represented by Johnson Eiesland at the time. Loftus contends that they were the actual drafters of the easement instrument. Therefore, he asserts that the easement should be construed narrowly against Canyon Lake. As authority for his argument, Loftus relies on case law establishing that ambiguities in a contract should be construed against the scrivener. See Production Credit Ass’n of the Midlands v. Wynne, 474 N.W.2d 735, 740 (S.D.1991); Clements v. Gabriel, 472 N.W.2d 480, 483 (S.D.1991); Forester v. Weber, 298 N.W.2d 96, 97 (S.D.1980).

[¶ 20.] The record is not clear as to the identity of the author of the agreement. Regardless, we have found that the easement language is unambiguous and therefore the terms are afforded their plain and ordinary meanings. See Gloe, 2005 SD 30, ¶ 29, 694 N.W.2d at 260. When the language is unambiguous, the identity of the drafter is inconsequential. As indicated above at paragraph 10, the cover letter stipulates that the agreement is valid and unambiguous. Even though the trial court erred in finding that Loftus drafted the easement, it was harmless error in that it “does not affect the substantial rights of the parties.” See SDCL 15-6-61. Therefore, Loftus’ argument and supporting authority are unpersuasive as there was no prejudice.

c. Whether the trial court erred in not deciding whether Canyon Lake can count the parking spaces as their own

[¶ 21.] Loftus asserts that the trial court erred in not deciding whether the easement allows Canyon Lake the full count of Loftus’ parking spaces. He argues that it would have been proper for the trial court to decide this issue as the matter was raised by the parties.

[¶ 22.] Canyon Lake’s Complaint provides in part:

WHEREFORE, Plaintiff requests that this court issue an order:
1. Declaring the rights of the parties to the Easement;
2. Requiring Defendants to cease and desist from any interference with Plaintiffs use of the Easement;
3. Permanently enjoining Defendants from interfering with Plaintiff in the full use, enjoyment and improvement of the Easement;
4. For costs including attorney fees; and
5. For such other relief as the court deems just.

Loftus’ Answer provides in part:

WHEREFORE, Defendant requests that this court issue an order:
1. Declaring the rights of the parties to the Easement;
2. Requiring Plaintiff to cease and desist from interfering with Defendant’s use of Defendant’s Parking Area;
3. Permanently enjoining Plaintiff from interfering with Defendant’s right to use of Defendant’s Parking Area, reconstruction, re-stripping of Defendant’s Parking Area, or other development of Defendant’s Parking Area without Defendant’s written approval;
4. For costs including attorney’s fees and sales tax; and
5. For such other and further relief as the Court deems just and equitable in the premises.

[¶ 23.] This issue was addressed by Judge Fuller when Loftus’ attorney asked him about it directly after the trial court made its ruling:

MR. SMOOT: Your Honor, you probably have just said it, but there wasn’t any specific conclusion as to the count, of the parking spaces.
THE COURT: I don’t think that’s before me. The easement is what it says. Plaintiff[]s may park upon the property denoted as Loftus.
MR. SMOOT: Okay.
THE COURT: And Dr. Loftus granted [that to] himself, LBM, and now the plaintiff[]s; is that right?
MR. SMOOT: (Nods head up and down.)
THE COURT: So I am determining what I have declared what the easement says. I believe that was my job and that’s what I just did.
MR. SMOOT: Thanks, Your Honor.

[¶ 24.] In considering the relief requested in the Complaint and the Answer, the trial court did what was asked of it. Therefore, Loftus’ argument is without merit and it has not been shown that the trial court erred in interpreting the terms of the easement in the manner it did. We affirm Issue 2.

[¶ 25.] 3. Whether Canyon Lake is attempting to expand the easement.

[¶ 26.] Loftus argues that the trial court erred in not finding that Canyon Lake is attempting to expand the easement beyond the terms of the grant of the easement. He asserts that by remodeling the building into office space, Canyon Lake is expanding the use of the easement far beyond its historical use.

[¶ 27.] This Court has held that:

the holder of a private easement has the right to limited use or enjoyment of the property only if it is consistent with the general use of the property by the owner, and “neither the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement.”

Selway, 2003 SD 11, ¶ 28, 657 N.W.2d 307, 315. See also SDCL 43-13-5 (“The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.”); Knight v. Madison, 2001 SD 120, ¶ 6, 634 N.W.2d 540, 542 (“Under [SDCL 43-13-5,] neither the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement.”).

[¶ 28.] It has not been shown that the physical size and condition of the easement has been altered or expanded or that the use of the easement has been for anything other than ingress, egress, and parking. Furthermore, despite Loftus’ assertions, the easement is not contingent on Canyon Lake’s use of the building as a fitness center. In fact, the easement is silent as to the use of the dominant tenement and expressly applies to “successors and assigns,” which contemplates other future uses. Therefore, in this instance, the nature of the business occupying the dominant tenement is irrelevant to the scope of the easement.

[¶ 29.] Based on the above, it has not been shown that the trial court erred in holding that Canyon Lake was not attempting to expand the scope of the easement beyond the express language of the written easement agreement. We affirm Issue 3.

[¶ 30.] 4. Whether Canyon Lake’s actions are barred by either judicial or promissory estoppel.

[¶ 31.] Loftus contends that the trial court erred in hot finding that Canyon Lake was estopped from attempting to enforce the terms of the easement. Canyon Lake argues that while the issue was briefly addressed at the March 10, 2004 status hearing, the issue was not pleaded as required by SDCL 15 — 6—8(c).

[¶ 32.] It is clear that in his Answer to Canyon Lake’s Amended Complaint, Lof-tus fails to specifically plead the defense of estoppel. However, during the status hearing, Judge Fuller directly addressed the issue in acknowledging that estoppel and several other equitable doctrines had not been raised, nor had either party briefed him on those particular issues. Judge Fuller then invited the parties to brief and argue those issues. Subsequently, Loftus specifically argued the issues of judicial and promissory estoppel in the trial brief that he submitted to Judge Fuller. Despite this, Judge Fuller failed to specifically rule on either issue.

[¶ 33.] “All pleadings shall be construed as to do substantial justice.” SDCL 15 — 6—8(f). Even though Loftus failed to plead estoppel as a defense in his complaint, Judge Fuller invited him to argue the issue and he did that. Therefore, this Court will address the issues of judicial estoppel and promissory estoppel on their merits.

a. Judicial Estoppel

[¶ 34.] This Court has stated:

Judicial estoppel cannot be reduced to an equation, but courts will generally consider the following elements in deciding whether to apply the doctrine: the later position must be clearly inconsistent with the earlier one; the earlier position was judicially accepted, creating the risk of inconsistent legal determinations; and the party taking the inconsistent position would derive an unfair advantage or impose an unfair detriment to the opponent if not estopped.

Watertown Concrete Products, Inc. v. Foster, 2001 SD 79, ¶ 12, 630 N.W.2d 108, 112-13 (citing New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 1814-15, 149 L.Ed.2d 968, 977). See also Gesinger v. Gesinger, 531 N.W.2d 17, 21 (S.D.1995); State v. St. Cloud, 465 N.W.2d 177, 180 (S.D.1991). “Unlike collateral estoppel or equitable estoppel, judicial estoppel requires neither privity between parties in the two proceedings nor detrimental reliance by the other party.” Id. at 180 (quoting Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, 80 NwULRev 1244, 1249 (1986) (“The gravamen of judicial estoppel is not privity, reliance, or prejudice. Rather it is the intentional assertion of an inconsistent position that perverts the judicial machinery.”)).

[¶ 35.] Loftus asserts that at a Rapid City Zoning Board of Adjustment (Board) meeting held on January 15, 2002, Rich Huffman, a representative of Canyon Lake, stated that if they were going to do anj future expansion or remodeling of the building, that they would first have to buy additional parking space. Loftus claims that he relied on this statement and therefore Canyon Lake should now be judicially estopped from enforcing the easement.

[¶ 36.] First, it is unclear as to exactly what was said by Canyon Lake’s representative at the Board meeting and whether his statements are inconsistent with their current position. Canyon Lake argues that it never took the position they would not seek to enforce the easement. This is reinforced by the fact that Canyon Lake corresponded with Dr. Loftus regarding the enforcement of the easement both before and after the Board meeting.

[¶ 37.] It also cannot be said that the earlier position was judicially accepted, creating the risk of inconsistent legal determinations. There is no showing that the Board relied on Rich Huffman’s statements or that the statements were even considered by the Board in their decision to grant the variance.

b. Promissory Estoppel

[¶ 38.] This Court has held that “[promissory estoppel may be invoked where a promisee alters his position to his detriment in the reasonable belief that a promise would be performed.” Garrett v. BankWest, Inc., 459 N.W.2d 833, 848 (S.D.1990) (citing Minor v. Sully Buttes School Dist. No. 58-2, 345 N.W.2d 48, 51 (S.D.1984)). The elements of promissory estop-pel are: 1) the detriment suffered in reliance must be substantial in an economic sense; 2) the loss to the promisee must have been foreseeable by the promisor; and 3) the promisee must have acted reasonably in justifiable reliance on the promise made. Id.

[¶ 39.] Although Loftus asserts that promissory estoppel should bar Canyon Lake from enforcing the easement, it has not been shown that Dr. Loftus altered his position in reliance on the statements made by Rich Huffman at the January 15, 2002 Board meeting. In fact, the meeting minutes indicate that Dr. Loftus raised his concern about Canyon Lake’s efforts to enforce the easement after Mr. Huffman’s statements concerning the need to buy additional parking “down the road.” Dr. Loftus then left the meeting, choosing not to listen to the continuing discussion about the easement dispute and whether a variance should be granted. Furthermore, there is nothing in the meeting minutes to suggest that Dr. Loftus’ relinquishment of five of his parking spaces to Canyon Lake, at the time the variance was granted, was contingent upon Canyon Lake not enforcing the easement.

[¶ 40.] Based on the above, it has not been shown that Canyon Lake’s attempt to enforce the easement is barred by either judicial or promissory estoppel.

[¶ 41.] We affirm.

[¶ 42.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . The city of Rapid City requires five parking spaces for every 1,000 square feet of finished office space. Rapid City, SD Code § 17.50.270(D).

      . The evidence presented to the trial court regarding the drafter of the easement was an affidavit of Dr. Loftus. In the affidavit, he states that counsel for the creditor involved in the foreclosure action drafted the easement language but he does not identify the author. However, counsel for the creditor represented a party adverse to Loftus, and the creditor’s successor in interest is Canyon Lake. This is sufficient to conclude that the trial court erred in determining that Loftus authored the document and therefore, if it were ambiguous, it should have been construed against Canyon Lake.

      . In his appellate brief, Loftus also claims equitable estoppel applies in this situation, but his argument focuses exclusively on judicial and promissory estoppel.

      . SDCL 15-6-8(c) provides:
      In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

      . In response to this discussion, Judge Fuller stated:
      Well, I, I just, I don’t want to try things over again. I mean if we could get all the issues before me, I would certainly appreciate it. If those equitable doctrines are going to be argued, I'd like to get 'em argued, like to get 'em briefed. You both seem to have good documentation and then I know I can — if I have those letters, I know that I can apply the law to those doctrines, there is no doubt about it in my mind.

      . At the time, Canyon Lake wanted to renovate the remaining portion of the upper level of their building so that they could lease it out as office space. In order to obtain the necessary building permit, Canyon Lake had to show that they would remain in compliance with the zoning regulations regarding the required amount of available parking. Based on the size of the area that they wanted to renovate into office space, it was determined that Canyon Lake would need eight additional parking spaces. Because the interpretation and scope of the easement was in dispute, Canyon Lake went before the Board to request a variance. Dr. Loftus attended that meeting and agreed to allow Canyon Lake to use five of his parking spaces (the dental clinic parking lot had a total of 21 spaces and only 16 spaces were required in order for the dental clinic to be in compliance). Based on this arrangement; the Board found that special circumstances existed to warrant the granting of the variance.

      . As opposed to a verbatim transcript of the Board meeting, Loftus offers the minutes from the meeting, which only paraphrases what was said and what transpired at the meeting. The minutes indicate that Rich Huffman, a representative of Canyon Lake, stated that "they just want to develop one [of] two levels of the building, understanding that the other level will be empty, unless they can buy someone out for parking down the road.” (emphasis added). Canyon Lake now wants to renovate the lower level of the building into office space and is seeking to enforce the easement in order to obtain additional parking that will be required. Loftus asserts this is inconsistent with Canyon Lake's prior position that they would buy additional parking.

      . The meeting minutes indicate that the Board granted the variance "finding the special circumstances existing to be the most reasonable use of the property; that the variance grant will be in harmony with the general intent because of the General Commercial Zoning; that the variance granted will not be detrimental to the public welfare or in conflict with the comprehensive plan; and will not be injurious to the neighborhood.” The Board also noted that "the variance granted is the minimum adjustment necessary; and the variance is for a use allowed in the zoning district.”