Command Center v. Renewable Resources

                                                                              FILED
                                                                      IN THE OFFICE OF THE
                                                                   CLERK OF SUPREME COURT
                                                                          MARCH 24, 2021
                                                                    STATE OF NORTH DAKOTA



                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                

Command Center, Inc.,                                              Plaintiff
     v.
Renewable Resources, LLC,                           Defendant and Appellee
     and
Shawn Kluver and Little Knife
Disposal, LLC,                                   Defendants and Appellants
     and
Renewable Resources, LLC,                 Third-Party Plaintiff and Appellee
     v.
Shawn Kluver and Little Knife
Disposal, LLC,                       Third-Party Defendants and Appellants



                                No. 20200017

Appeal from the District Court of Dunn County, Southwest Judicial District,
the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Jonathan P. Sanstead, Bismarck, ND, for defendant and appellee Renewable
Resources, LLC.

Ariston E. Johnson, Watford City, ND, for defendants and appellants Shawn
Kluver and Little Knife Disposal, LLC.
               Command Center v. Renewable Resources
                          No. 20200017

VandeWalle, Justice.

[¶1] Shawn Kluver and Little Knife Disposal, LLC (“Little Knife”), appealed
from an amended judgment entered after a bench trial that awarded Command
Center, Inc., monetary damages, interest, attorney’s fees and costs against
Renewable Resources, LLC, and Kluver, jointly and severally. The amended
judgment also awarded Renewable Resources damages and interest against
Kluver and Little Knife, jointly and severally, and ordered them to indemnify
Renewable Resources for all damages, interest, attorney’s fees, and costs
awarded to Command Center. We affirm.

                                      I

[¶2] Command Center is a Washington corporation authorized to do business
in North Dakota and provides temporary labor services. Renewable Resources
is a North Dakota limited liability company that had previously engaged in the
treatment of oilfield waste until the loss of its permit and decommissioning of
its plant in September 2016. Little Knife is a North Dakota limited liability
company engaged in the operation of a treatment plant near Mandaree, North
Dakota, and Kluver is the sole owner of Little Knife.

[¶3] In September 2018, Command Center commenced this action against
Renewable Resources in small claims court, claiming unpaid amounts totaling
$14,631.20, which included principal of $13,423.12 and interest of $1,208.08,
relating to temporary labor services that Command Center provided under
agreements with Renewable Resources. Renewable Resources removed the
case to district court and answered the claim affidavit.

[¶4] Command Center obtained leave of court to file an amended complaint,
also naming Kluver and Little Knife as additional defendants. Kluver had been
the manager of Renewable Resources. The amended complaint alleged claims
against the various defendants for breach of contract, quantum meruit, and
unjust enrichment. Although Renewable Resources was billed and had paid
Command Center $20,000 for the temporary labor services, Renewable

                                      1
Resources alleged that the temporary labor services were provided for the
benefit of Little Knife, which was Kluver’s company, and that Kluver did not
have authority to contract on behalf of Renewable Resources for the temporary
labor services that benefited Little Knife.

[¶5] Renewable Resources, Kluver, and Little Knife answered the amended
complaint. Renewable Resources also brought a third-party complaint against
Kluver and Little Knife, alleging claims for indemnification, unjust
enrichment, and breach of duty of loyalty. While the third-party defendants
served and filed an answer, Renewable Resources did not file its third-party
complaint in the district court. The third-party complaint was, however, filed
as an exhibit to Command Center’s motion to amend its complaint.

[¶6] In June 2019, the district court held a bench trial. After trial, the court
issued an opinion finding in favor of Command Center on its claims and in
favor of Renewable Resources on its third-party claims. The court made
extensive findings supporting its decision.

[¶7] The district court found that, in December 2016, Kluver contacted Miles
Vondra, a former safety manager at a sister company of Renewable Resources,
directing Vondra to hire temporary labor from Command Center to assist in
the cleanup at the Branch Energy/Little Knife Disposal (“Branch Energy”) site.
The court found that Kluver had instructed Vondra to use Renewable
Resources’ name when contracting with Command Center and that the Branch
Energy site was being managed by Kluver or leased by his company Little
Knife. On December 21, 2016, Vondra entered into written agreements with
Command Center in the name of Renewable Resources, the terms of which
established the finance charge on balances that remained unpaid and an
agreement to pay Command Center “all attorneys’ fees, court costs and any
other costs incurred in the process of collection” of unpaid balances.

[¶8] Command Center began providing temporary labor under its
agreements with Renewable Resources in December 2016. Under Command
Center policy, each Command Center laborer was required to have a work
ticket signed by a supervisor confirming the performance of the requested


                                       2
work. The work tickets introduced at trial were signed by either John Ryan or
Miles Vondra. The court found both Ryan and Vondra testified that the work
performed by the Command Center laborers was performed at the Branch
Energy site. Ryan and Dave Lees were employees of Renewable Resources and
testified that they, along with Command Center laborers, were directed by
Kluver to perform work at the Branch Energy site.

[¶9] In late December 2016, Courtney Grapentine, who is Kluver’s daughter,
began having Command Center laborers use an online time card application to
designate the hours and the location of the work, which was forwarded to
Command Center. The district court found the time cards for the Command
Center laborers clearly showed that “all of the work” was performed at the
Branch Energy site. The court further found that the work tickets, electronic
time cards, and the testimony of Vondra, Ryan, Lees, and Michelle Horn, a
Command Center branch manager, established that “all work” performed by
the Command Center laborers was performed at and for the benefit of the
Branch Energy site near Mandaree.

[¶10] The district court found that, while work was being done to make the
Branch Energy site functionable, Kluver was negotiating with the owner of the
treatment site for a lease agreement with an option to purchase. Under the
terms of the draft lease, Kluver’s limited liability company Little Knife was to
be the lessee. The court also found that to offset the cost of the site cleanup
performed by the Renewable Resources employees and Command Center
laborers, the lease included various rent waivers and reductions in favor of
Little Knife.

[¶11] In January 2017, Grapentine sent an email to Gary Pilgrim, the
accountant for the owners of Renewable Resources, requesting payment to
various vendors including Command Center. The district court found
Grapentine did not mention to Pilgrim that Command Center labor was for the
benefit of Branch Energy or that Kluver owned Little Knife. In February 2017,
Horn visited the offices of Renewable Resources demanding Command Center
be paid the $33,423.12 due and owing for the services provided.



                                       3
[¶12] The district court found that after some communications between
Grapentine and Pilgrim, Pilgrim sent an email to Grapentine authorizing a
$20,000 payment to Command Center. On receipt of Pilgrim’s email, a
Renewable Resources check payable to Command Center for $20,000 was
signed by Kluver and delivered to Horn. The court found that Command Center
remained due and owing the sum of $13,423.12 and subsequently commenced
the small claims court action against Renewable Resources.

[¶13] In November 2019, the district court entered its findings of fact,
conclusions of law, and order for judgment. Because the case had been removed
from small claims court, the court awarded Command Center its attorney’s
fees. In December 2019, the court entered an amended judgment. The amended
judgment held Renewable Resources and Kluver jointly and severally liable to
Command Center for $41,254.29, plus post-judgment interest; held Kluver and
Little Knife liable to Renewable Resources for $20,000, plus interest from
February 24, 2017; and held Kluver and Little Knife jointly and severally to
indemnify Renewable Resources “for all damages, interest, attorney’s fees, and
costs” awarded to Command Center against Renewable Resources.

                                        II

[¶14] Our standard of review after a bench trial in the district court is well
established:

      In an appeal from a bench trial, the trial court’s findings of fact are
      reviewed under the clearly erroneous standard of N.D.R.Civ.P.
      52(a) and its conclusions of law are fully reviewable. 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 reviewing all
      the evidence, we are left with a definite and firm conviction a
      mistake has been made. 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.

Brash v. Gulleson, 

, 

 (quotation marks and
citations omitted); see also Titan Mach., Inc. v. Renewable Res., LLC, 

, 

. The district court’s findings of fact are


                                        4
“presumptively correct.” Brash, at ¶ 10 (quoting Tweeten v. Miller, 

 (N.D. 1991)).

                                      III

[¶15] At the outset, Kluver and Little Knife argue that the district court erred
by entering judgment on a pleading that was never filed.

[¶16] Kluver and Little Knife assert that they raised applicable defenses in
their answer to the third-party complaint that they filed in the district court,
including the failure to state a claim upon which relief can be granted under
N.D.R.Civ.P. 12(b)(6). They argue it was “plain error” for the district court to
grant relief to a party that never sought such relief from the court by filing a
pleading. N.D.R.Civ.P. 8(a). They contend the judgment in favor of Renewable
Resources against Kluver and Little Knife therefore must be reversed.

[¶17] Rule 5(d), N.D.R.Civ.P., requires the filing of documents in an action.
Rule 5(d)(2)(A)(iii) specifically provides that a defendant may serve a demand
on a plaintiff to file a complaint, and Rule 5(d)(2)(A)(iv) allows the defendant
to file the summons and complaint. Under N.D.R.Civ.P. 5(d)(6), “[i]f a party
fails to comply with this subdivision, the court, on motion of any party or its
own motion, may order the documents to be filed. If the order is not obeyed,
the court may order them to be regarded as stricken and their service to be
ineffective.” Furthermore, “[a]n issue may be tried by consent when a party
introduces evidence that varies the theory of the case without objection by the
opposing party on the grounds that it is not within the issues in the pleadings.”
Stevenson v. Biffert, 

, 

; see also N.D.R.Civ.P.
15(b)(2); Aho v. Maragos, 

, 

.

[¶18] Renewable Resources concedes that it “inadvertently overlooked” filing
its third-party complaint against Kluver and Little Knife as a separate
pleading, but states that its third-party complaint was nevertheless
subsequently filed with the district court by Command Center. Because the
third-party complaint was filed and part of the record, Renewable Resources
contends the district court did not err by entering judgment.



                                       5
[¶19] Here, Kluver and Little Knife do not point out on appeal where
Renewable Resources’ “oversight” was specifically raised to the district court,
either by pretrial motion or at trial. Nor do they point to the district court’s
denial of such requested relief in the proceedings below. On our review,
Renewable Resources’ third-party complaint was filed and is contained within
the record; Kluver and Little Knife, as third-party defendants, served and filed
their answer; and the district court held a trial on the issues. On these facts
we conclude the district court did not err by entering judgment.

                                       IV

[¶20] Kluver and Little Knife argue that the district court erred in allowing
the testimony of Renewable Resources’ employees, claiming the witnesses
could not be effectively cross-examined because of nondisclosure agreements.

[¶21] Under N.D.R.Ev. 401, 402, and 403, the district court has broad
discretion on evidentiary matters. See Cass Cty. Joint Water Res. Dist. v.
Erickson, 

, ¶ 19, 

; Linstrom v. Normile, 

, 

; Nesvig v. Nesvig, 

, 

.
“The probative effect and admissibility of evidence is a matter for the trial
court’s discretion.” Erickson, at ¶ 19. This Court on appeal will not reverse the
trial court’s decision to admit or exclude evidence unless it abused its
discretion. Klein v. Estate of Luithle, 

, 

. A
district court abuses its discretion when it acts in an arbitrary, unreasonable
or unconscionable manner, or if it misinterprets or misapplies the law. 

[¶22] Under N.D.R.Ev. 103, a district court’s decision whether to allow or to
exclude evidence will not be reversible error unless the party objected to the
court’s decision and the party’s substantial rights were affected. Westby v.
Schmidt, 

, 

. “A party must object at the time
the alleged error occurs here to allow the district court to take appropriate
action to remedy any prejudice that may have resulted.” 

 “If a party fails to
object to the admission of testimony, the party waives the objection.” 

 Under
N.D.R.Civ.P. 61, “[a]t every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party’s substantial rights.” See also
Klein, 

. “This Court ‘appl[ies] this deferential standard of

                                        6
review to provide trial courts with greater control over the admissibility of
evidence.’” 

 (quoting Davis v. Killu, 

, 

).

[¶23] Kluver and Little Knife argue that Miles Vondra and John Ryan testified
at trial but were “restrained” in their responses by nondisclosure agreements
with Renewable Resources. Kluver and Little Knife broadly assert that they
were unable to obtain testimony at trial and that Renewable Resources was
able to manipulate their testimony. They assert these witnesses told a “limited
version” of the truth that benefited Renewable Resources.

[¶24] Renewable Resources responds that the district court did not err in
allowing Renewable Resources to present testimony from witnesses subject to
nondisclosure agreements. Renewable Resources asserts their arguments are
a red herring and Kluver and Little Knife did not object to either Vondra or
Ryan testifying at trial. Renewable Resources contends they have not provided
proof of prejudice or harm, particularly since Vondra and Ryan answered all of
the questions asked by counsel for Command Center and Kluver.

[¶25] Kluver and Little Knife’s argument on appeal is broadly stated, and they
do not provide specific instances where they were prevented from any
particular line of questioning. They have not provided this Court with
examples of where they had objected or sought the district court to compel any
testimony from the witnesses. They also have not made any showing of
prejudice. We conclude the district court did not abuse its discretion by
allowing the testimony of the witnesses.

                                      V

[¶26] Kluver and Little Knife argue the district court erred in its findings of
fact. As discussed, the district court’s findings are “presumptively correct.”
Brash, 

; Tweeten, 

. Moreover, “[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.” Erickson v. Olsen,

, 

 (citation omitted).



                                      7
[¶27] Kluver and Little Knife argue that Command Center provided its labor
for Renewable Resources, rather than for the interests of Kluver or Little
Knife, pointing to invoices showing Command Center’s labor was performed at
a site called “Stevens Pad.” They contend the evidence showing work
performed at a “Branch Energy” facility does not support the district court’s
finding that “all” of Command Center’s work was done for the benefit of Little
Knife. They contend that Renewable Resources obtained Command Center’s
labor for its own benefit, Command Center provided its labor to Renewable
Resources, and Renewable Resources knew the Command Center invoice was
a Renewable Resources obligation. They assert the court’s various findings to
the contrary are clearly erroneous.

[¶28] Renewable Resources responds, however, that “overwhelming evidence”
supports the district court’s findings. They assert the evidence at trial shows
that Renewable Resources did not obtain Command Center’s labor for its own
benefit; that Command Center provided its labor to benefit Kluver and Little
Knife, not Renewable Resources; and that Renewable Resources was unaware
that Kluver owned Little Knife and payment of the Command Center invoice
would benefit only Kluver and his company.

[¶29] On our review, we conclude that evidence presented at trial supports the
district court’s findings of fact and, further, that Kluver and Little Knife are
rearguing the evidence and challenging the district court’s weight and
credibility determinations. From its findings of fact, the district court was
clearly troubled both by Kluver’s failure to testify at trial, drawing a negative
inference, and by evidence showing Kluver’s daughter Grapentine’s efforts to
secure payment of the Command Center invoices, without disclosing Little
Knife’s ownership or indicating where the liability had been incurred.

[¶30] We will not second-guess the district court’s clear findings on appeal. On
this record, we conclude the district court’s findings are not clearly erroneous.

                                      VI

[¶31] Kluver and Little Knife argue the district court erred in admitting
hearsay. Although they objected at trial to the admission into evidence of


                                       8
exhibits 7 through 14 containing Command Center invoices on grounds they
contain hearsay, the court overruled their objection.

[¶32] The district court may properly admit business records into evidence
under the business records exception to the hearsay rule. See N.D.R.Ev. 803(6);
N.D.C.C. § 31-08-01; see also Sanford v. Sanden, 

 (N.D.
1984); Endicott Johnson Corp. v. Golde, 

 (N.D. 1971).
“Both N.D.C.C. § 31-08-01 and N.D.R.Ev. 803(6) provide an exception to the
hearsay rule for records of regularly conducted business activity.” Pizza
Corner, Inc. v. C.F.L. Transp., Inc., 

, ¶ 9, 

. The
foundational elements for a business record must be “shown by the testimony
of the custodian or another qualified witness.” N.D.R.Ev. 803(6). Rule 803(6)
does not require that an employee from the company that created the record
provide the foundation for a business record. Pizza Corner, at ¶ 12.

[¶33] Under N.D.R.Ev. 803(6), the foundation for admission of a business
record can also be established using a “qualified witness,” and a qualified
witness is “someone who can explain the record keeping system of the
business.” Pizza Corner, 

, ¶ 14. “The term qualified witness is
generally given a very broad interpretation. The witness need only have
enough familiarity with the record-keeping system of the business in question
to explain how the record came into existence in the ordinary course of
business.” Id. (quotation marks and citation omitted). Courts have further held
that “a witness from one company can provide the foundation for a record
created by a third party if that company integrated the record into its own
records and relied on it, and if the record meets the other requirements of Rule
803(6).” Id. at ¶ 16.

[¶34] In a bench trial, this Court has also explained:

            In a nonjury case, a trial judge should ordinarily admit all
      evidence which is not clearly inadmissible because a trial judge
      who is competent to rule upon the admissibility of evidence can
      distinguish between admissible and inadmissible evidence when
      deliberating upon the ultimate decision. Brodersen v. Brodersen,
      

 (N.D. 1985). Therefore, in a bench trial it is


                                       9
      generally not reversible error for the court to admit incompetent
      evidence unless there is insufficient competent evidence to support
      an essential finding or unless the incompetent evidence induced
      the court to make an improper finding. Schock v. Ronderos, 

 (N.D. 1986).

Healy v. Healy, 

 (N.D. 1986).

[¶35] Kluver and Little Knife contend that the work tickets and time sheets do
not conform with any exception to the rule against hearsay and no evidence
shows these records were made at or near the time of the act or event they
purport to record by someone with knowledge. They contend no evidence shows
that the records were kept in the course of regularly conducted business
activity and that no person claiming to be Renewable Resources’ “records
custodian” testified. They argue that the time sheets and work tickets are
inadmissible hearsay and that the court erred in relying on them to conclude
“essentially all” of Command Center’s work was under its contract with
Renewable Resources for the benefit of Kluver and Little Knife. Renewable
Resources responds, however, that the Command Center time records attached
to its invoices, including the description of the location of the work, are
admissible under the business record exception to the hearsay rule.

[¶36] On this record, we conclude Kluver and Little Knife have not established
that the district court abused its discretion. Testimony from Horn, a “qualified
witness” as the branch manager for Command Center’s Dickinson office,
provided foundational testimony of the business practices and showed the time
records qualified under the business records exception. She testified that the
Command Center work tickets completed by the laborers and signed by the
supervisor on-site are used in the ordinary course of business by Command
Center to pay the labor and invoice the client. She provided testimony
regarding the business practices of accepting and using Command Center time
sheets or the client’s time sheets to enable payment to the laborers and
invoicing of the client.

[¶37] The district court did not err in admitting the exhibits under the
business records exception to the hearsay rule. In considering our standard of


                                      10
review and the deference afforded to the district court’s ability to disregard
inadmissible evidence in reaching its decision, we conclude the court did not
abuse its discretion by admitting the exhibits into evidence.

                                       VII

[¶38] Kluver and Little Knife argue the district court erred in ordering Kluver
and Little Knife to indemnify Renewable Resources for the attorney’s fees
awarded to Command Center against Renewable Resources.

[¶39] Specifically, N.D.C.C. § 27-08.1-04 allows a prevailing plaintiff to recover
attorney’s fees from a defendant who removes an action from small claims
court, stating in relevant part:

      If the defendant elects to remove the action to district court, the
      defendant must serve upon the plaintiff a notice of the removal and
      file with the clerk of the court to which the action is removed a copy
      of the claim affidavit and the defendant’s answer along with the
      filing fee, except for an answer fee, required for civil actions. If the
      defendant elects to remove the action from small claims court to
      district court, the district court shall award attorney’s fees to a
      prevailing plaintiff.

(Emphasis added.)

[¶40] In Interiors by France v. Mitzel Contractors, Inc., 

, 

, this Court construed N.D.C.C. § 27-08.1-04 and held that an
award of attorney’s fees to a prevailing plaintiff under this section “does not
extend to parties who were not part of the original small claims court
proceedings.” We therefore affirmed the district court’s judgment limiting the
plaintiff’s recovery of damages without an award of attorney’s fees from a
defendant that was added after the case had been removed from small claims
court to the district court. Id. at ¶¶ 1, 14.

[¶41] Kluver and Little Knife essentially argue that Renewable Resources, as
the defendant that removed the case from small claims court to the district
court, caused the attorney’s fees to be awarded under the small claims court



                                        11
statutes and that they therefore should not be assessed for items assessable to
Renewable Resources.

[¶42] Renewable Resources responds that the district court did not err by
ordering Kluver and Little Knife to indemnify Renewable Resources, including
its liability for Command Center’s attorney’s fees. See Mann v. Zabolotny, 

, 

 (“Indemnification is a remedy which allows a
party to recover reimbursement from another for the discharge of a liability
which, as between them, should have been discharged by the other.”).
Renewable Resources argues that to allow Kluver to shift any portion of the
loss to Renewable Resources, who was merely vicariously liable, would
unjustly enrich Kluver and Little Knife and would be contrary to the purpose
of indemnification.

[¶43] Generally, “[i]ndemnity is an equitable remedy which permits a party to
recover reimbursement from another for the discharge of a liability that, as
between the two parties, should have been discharged by the other.” Titan
Mach., 

 (quoting Superior, Inc. v. Behlen Mfg. Co., 

, 

). “As an equitable doctrine, indemnity is not
amenable to hard and fast rules, and the application of indemnity depends on
the facts of each case.” 

 “A right of indemnity may arise by express
agreement or by implication.” 

 at ¶ 11 (quoting Grinnell Mut. Reinsurance
Co. v. Ctr. Mut. Ins. Co., 

, 

). Even when there
is no express contractual duty for indemnification, “indemnity nonetheless
may be recovered if the evidence establishes an implied contract or if one party
is exposed to liability by the action of another party who, in law or in equity,
should make good the loss of the other.” 

[¶44] Here, in its September 2019 memorandum opinion, the district court
considered Interiors by France, 

, and held that while
Command Center, as prevailing plaintiff on its breach of contract claim, was
entitled to attorney’s fees under N.D.C.C. § 27-08.1-04, Kluver could not be
held responsible for Command Center’s attorney’s fees since he was not an
original small claims court defendant and did not initiate the removal from



                                      12
small claims court. However, the court made findings that Kluver’s liability for
fees and costs was based on principles of indemnification.

[¶45] In its subsequent findings of fact, the district court found Kluver
breached duties to Renewable Resources to act in its best interests and not to
undertake any wrongful acts for the benefit of himself and to the detriment of
Renewable Resources. The court concluded Kluver breached a duty to use
ordinary diligence to keep Renewable Resources informed of his acts. The
court, relying on these breaches, concluded Kluver and Little Knife were
required to indemnify Renewable Resources for the award of damages,
interest, attorney’s fees and costs to Command Center. While they may not
have removed the case from small claims court, Kluver and Little Knife could
be required to indemnify Renewable Resources to make it whole.

[¶46] Here, in awarding attorney’s fees, the district court held Command
Center was entitled to an award of attorney’s fees from Renewable Resources
under N.D.C.C. § 27-08.1-04 and under the parties’ agreement for services,
which allowed for attorney’s fees and court costs and any other costs it incurred
in the process of collection. The court also held that Kluver’s liability for
Command Center’s fees and costs arose from the parties’ agreement for
services, which was imposed on him under N.D.C.C. § 3-04-02(2) and (3).

[¶47] The district court concluded that because Renewable Resources had
requested Kluver and Little Knife to indemnify it from “all or any portion of
the sums due and owing” Command Center, and Command Center’s attorney’s
fees award resulted directly from Kluver’s actions, Kluver was responsible for
indemnifying Renewable Resources for all attorney’s fees and any costs
awarded against Renewable Resources in favor of Command Center.

[¶48] The district court awarded attorney’s fees to Renewable Resources from
Kluver and Little Knife specifically to indemnify Renewable Resources for the
attorney’s fees awarded to Command Center. We conclude our decision in
Interiors by France does not control because the court’s attorney’s fees award
to Renewable Resources was not primarily based on N.D.C.C. § 27-08.1-04, but




                                       13
rather principles of indemnification. We therefore affirm the court’s attorney’s
fee award.

                                    VIII

[¶49] We have considered the remaining arguments and conclude they are
either unnecessary to our decision or do not affect the outcome of the appeal.
The amended judgment is affirmed.

[¶50] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




                                      14