                Filed 04/06/20 by Clerk of Supreme Court

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 2020 ND 75

Tarryl Joyce, individually, and as Special
Administrator of the Estate of Vera Mitchell,
aka Vera Delores (Kilen) Joyce, aka Vera Delores
Joyce, aka Vera Delores Kilen, aka Vera K. Mitchell,
aka Vera J. Mitchell, aka Vera Joyce Mitchell and
aka Vera D. Mitchell, and First International Bank
& Trust, Personal Representative of the Estate of
Vera Mitchell                                          Plaintiffs and Appellants
      v.
Steven R. Joyce,                                       Defendant and Appellee



                                No. 20190224

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Richard L. Hagar, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Dan D. Plambeck (argued), and Peter E. Karlsson (on brief), Moorhead, MN,
for plaintiff and appellant Tarryl Joyce.

Timothy G. Richard (on brief), Fargo, ND, for plaintiff and appellant First
International Bank & Trust.

Brian W. Hankla, Minot, ND, for defendant and appellee.
                               Joyce v. Joyce
                                No. 20190224

VandeWalle, Justice.

      Tarryl Joyce appealed from a district court judgment granting Steven
Joyce’s motion for dismissal of Tarryl Joyce’s claims against him for actions he
took while acting as Vera Mitchell’s attorney-in-fact. We affirm.

                                       I

      This litigation involves a dispute over mineral interests located in
Mountrail County and other property owned by Vera Mitchell and her estate.
On October 10, 2006, Mitchell executed a durable power of attorney appointing
her son, Steven Joyce, as attorney-in-fact. Mitchell executed a last will and
testament the same day. In 2008, due to dementia and declining mental health,
Steven Joyce moved Mitchell from an assisted living facility in Grand Forks,
North Dakota, to a memory care facility in Carrolton, Texas, near his home.

      On September 16, 2011, Steven Joyce, as Mitchell’s attorney-in-fact,
executed and recorded a quit claim deed transferring all of Mitchell’s mineral
interests to himself. Steven Joyce also wrote several checks to himself and
others and made purchases using Mitchell’s Wells Fargo checking account as
Mitchell’s attorney-in-fact. Additionally, Tarryl Joyce alleges Steven Joyce
made investments and purchased property using Mitchell’s assets.

      Vera Mitchell died on December 19, 2017. Tarryl Joyce was appointed by
the district court for Mountrail County as special administrator of Mitchell’s
estate. Tarryl Joyce requested an accounting from Steven Joyce of Mitchell’s
assets, specifically including Mitchell’s mineral interests. Steven Joyce told
Tarryl Joyce that he had sold Mitchell’s mineral interests and that Mitchell’s
assets were depleted due to costs incurred for Mitchell’s stay at the memory
care facility.

      In March 2018, Tarryl Joyce commenced suit against Steven Joyce
claiming the quit claim deed transferring Mitchell’s mineral interests to
Steven Joyce was invalid, Tarryl Joyce was entitled to an accounting of


                                       1
Mitchell’s estate from Steven Joyce, and Steven Joyce breached his duty of
trust and loyalty. Steven Joyce answered and counterclaimed. In October 2018,
Tarryl Joyce moved to amend her complaint to assert a claim for exemplary
damages and for partial summary judgment. Tarryl Joyce’s appointment as
special administrator was terminated due to conflicts of interest. First
International Bank & Trust was appointed to be the personal representative
of Mitchell’s estate.

      On November 20, 2018, the parties attended mediation and reached a
settlement agreement. The settlement agreement read in its entirety:

           The parties agree that the matter entitled Tarryl Joyce
     individually and First International Bank & Trust as Personal
     Representative of the Estate of Vera Mitchell, plaintiffs, v. Steven
     R. Joyce, defendant, is settled on the following basis:

           a.    The defendant shall pay to Tari Joyce the sum of
                 $600,000 in accordance with the payment schedule
                 below. Defendant shall convey to Tari Joyce an
                 undivided one-half interest in all mineral interests.

           b.    This settlement is a full and complete resolution of all
                 of the issues between the parties in this action.

           c.    This settlement is a binding agreement between the
                 parties. The terms of the settlement shall be kept
                 confidential by the parties.

           d.    It is understood by the parties that the mediator has
                 no duty to protect their interests; further, that the
                 agreement may adversely affect their rights; and the
                 parties should consult an attorney before signing this
                 agreement, if they are uncertain of their rights. The
                 parties understand that certain additional mutually
                 acceptable documents shall be required.

                 1.    $15,000 by Dec 1, 2018
                 2.    $35,000 upon dismissal of the Civil Action
                 3.    $200,000 on or before Jan 15, 2019.



                                      2
                  4.    $50,000 per year for 7 years beginning January
                        15, 2020 and continuing on the 15th day of each
                        January thereafter until January 15, 2026.
                  5.    2018 suspended royalty payments shall be paid
                        to Tari Joyce
                  6.    All payments shall be secured by 2nd mortgage
                        against Defendant’s house and Defendant’s one-
                        half interest in the mineral interests.

The settlement agreement was dated and was signed by Tarryl Joyce and
Steven Joyce and their attorneys.

      Soon after the parties agreed to the settlement, Tarryl Joyce’s attorney
contacted a Texas attorney about obtaining a second mortgage on Steven
Joyce’s home as security. The Texas attorney informed Tarryl Joyce’s attorney
that a second mortgage against Steven Joyce’s home would be unenforceable
under Texas law. After learning the second mortgage may be invalid under
Texas law, Tarryl Joyce’s attorney sent an email to Steven Joyce’s attorney
informing him of the issue. Steven Joyce’s attorney replied by letter expressing
Steven Joyce’s willingness to perform the obligations set forth in the
settlement agreement. The letter further stated:

      [T]o the extent the above items may not be accepted or resolved,
      the Settlement Agreement signed at the time of the mediation does
      provide that the settlement was a full and complete resolution of
      all of the issues between the parties and that the settlement was a
      binding agreement, and it would be Steve’s intent to enforce the
      terms of the Settlement Agreement signed by the parties.

Tarryl Joyce’s attorney replied by stating there was no binding settlement
agreement because an essential term of the agreement—the second
mortgage—was unenforceable.

      Because Steven Joyce believed the parties had reached a valid and
enforceable settlement, he moved the district court for an “Entry of Order for
Judgment of Dismissal.” In her answer brief, Tarryl Joyce argued the
settlement agreement was unenforceable because the second mortgage was
invalid under Texas law. Tarryl Joyce’s argument was based on the


                                       3
information she received from the Texas attorney. Tarryl Joyce also stated she
made Steven Joyce and his attorney aware of the situation and the parties
were involved in ongoing negotiations.

      On March 26, 2019, the district court ordered the calendar control clerk
to schedule and notice a motion hearing “at which time the Court [would] hear
oral arguments on Steven’s Motion for Entry of Order for Judgment of
Dismissal; Tarryl’s Motion for Partial Summary Judgment; and Tarryl’s
Motion to Amend Complaint.” Neither party requested a hearing, and after the
court required a hearing, neither party requested to introduce evidence at the
hearing.

      A hearing was held on May 5, 2019. The three pending motions were
argued by each party’s respective attorney. Besides having been told by a Texas
attorney that the second mortgage was invalid under Texas law, Tarryl Joyce
provided no additional evidence that the second mortgage was invalid under
Texas law and did not cite or provide the court with the applicable provisions
of Texas law. The only evidence Tarryl Joyce provided indicating the second
mortgage was a material term of the settlement agreement was that the second
mortgage was specifically negotiated. Tarryl Joyce did not present any
evidence of the value of the second mortgage, the value of the mineral interests
that also acted as security, or the extent of the negotiations involving the
second mortgage. In addition to arguing the case should not be dismissed
because the settlement was not a binding agreement, Tarryl Joyce questioned
the procedural posture of Steven Joyce’s motion for dismissal.

       No briefs were requested by the court nor did the parties request to file
briefs after the May 5 hearing. Having been presented with no evidence other
than conclusory, hearsay statements from a Texas attorney that the second
mortgage was invalid under Texas law, the court found the settlement
agreement to be a binding contract. On May 23, the district court issued an
order granting Steven Joyce’s motion to dismiss and entered judgment.

     On appeal, Tarryl Joyce argues there exists a mutual mistake of fact
between the parties as to the validity of the second mortgage requiring


                                       4
rescission of the settlement agreement. Tarryl Joyce further argues the district
court erred in holding a hearing when neither party requested a hearing, and
erred by declining to inform itself on Texas law and by not requesting the
parties inform the court on Texas law. Tarryl Joyce also argues Steven Joyce’s
motion for dismissal was procedurally improper in a number of ways.

                                       II

     Tarryl Joyce argues that the district court erred by holding a hearing
and granting Steven Joyce’s motion to dismiss, which Tarryl Joyce contends
was improperly noticed, improperly served, and procedurally defective.

                                       A

      Tarryl Joyce contends the district court erred by holding a hearing when
no party requested a hearing. Under N.D.R.Ct. 3.2(b): “After reviewing the
parties’ submissions, the court may require oral argument and may allow or
require evidence on a motion.” A plain reading of Rule 3.2(b) allows the district
court to require a hearing be held even if no party requests a hearing. See
Anton v. Anton, 442 N.W.2d 445, 446 (N.D. 1989) (interpreting previous
version of Rule 3.2 containing substantively similar language as the current
version of Rule 3.2). A district court’s decision whether to require a hearing is
discretionary, which we review for an abuse of discretion. See State v. Krous,
2004 ND 136, ¶ 10, 681 N.W.2d 822.

      In opposing Steven Joyce’s motion to dismiss, Tarryl Joyce argues the
settlement agreement was unenforceable because of the parties’ mutually
mistaken belief that a material term of the settlement agreement was valid.
Provided with Tarryl Joyce’s opposition to Steven Joyce’s motion to dismiss
and her reasons for opposing the motion, the district court did not abuse its
discretion by requiring a hearing.

                                       B

      Tarryl Joyce argues Steven Joyce’s motion to dismiss was improperly
noticed because he did not file and serve a reply brief. Under N.D.R.Ct.
3.2(a)(2), “The moving party may serve and file a reply brief within seven days

                                       5
after service of the answer brief.” Tarryl Joyce concedes that Steven Joyce was
under no obligation under Rule 3.2(a)(2) to file and serve a reply brief.
However, Tarryl Joyce contends that because Steven Joyce did not file and
serve a reply brief, she was “unfairly surprised” at the May 5 hearing that
Steven Joyce rebutted her argument concerning the validity of the second
mortgage in the settlement agreement.

      Prior to the hearing, the parties’ attorneys had exchanged letters
concerning the validity of the second mortgage under Texas law. After Tarryl
Joyce’s attorney initially raised the issue of the validity of the second mortgage,
Steven Joyce’s attorney sent a reply letter stating “the settlement was a full
and complete resolution of all of the issues between the parties and that the
settlement was a binding agreement”; “it would be Steve’s intent to enforce the
terms of the Settlement Agreement signed by the parties”; and Steven Joyce
was willing to perform his obligations set forth in the settlement agreement.
Steven Joyce did not withdraw his motion to dismiss after the validity of the
second mortgage had become an issue or after the parties had discussed the
issue. Rather, he maintained that the settlement agreement was valid and
enforceable. Tarryl Joyce was provided sufficient notice that Steven Joyce
believed the settlement agreement was a valid, final, and enforceable
agreement. Tarryl Joyce was not “unfairly surprised” or prejudiced by Steven
Joyce’s decision not to file and serve a reply brief, which he was under no
obligation to do.

                                        III

      We next consider whether the district court was required to inform itself
of Texas law or erred by not requesting counsels’ aid in obtaining the applicable
Texas law. To address Tarryl Joyce’s arguments, we must interpret N.D.C.C.
§ 31-10-03, the controlling authority on the issue, in light of its intended
purpose. Interpretation of statutes is a question of law, which we review de
novo on appeal. State v. Chacano, 2012 ND 113, ¶ 10, 817 N.W.2d 369 (citing
State v. Ebertz, 2010 ND 79, ¶ 8, 782 N.W.2d 350).

      Under N.D.C.C. § 31-10-03:



                                        6
      Every court of this state shall take judicial notice of the common
      law and statutes of every state, territory, and other jurisdiction of
      the United States. Such court may inform itself of the laws in such
      manner as it may deem proper and may call upon counsel to aid it
      in obtaining such information. The determination of such laws
      shall be made by the court and not by the jury and shall be
      reviewable.

This Court has decided a limited number of cases involving § 31-10-03. We
have held that when a party offers no proof of the law of another state and does
not ask the court to take judicial notice thereof, the law of other states will be
presumed to be the same as the law of North Dakota. See State v. Red Arrow
Towbar Sales Co., 298 N.W.2d 514, 516 (N.D. 1980); Schnoor v. Meinecke, 77
N.D. 96, 102, 40 N.W.2d 803, 807-08 (1950); Haggard v. First Nat’l Bank of
Mandan, 72 N.D. 434, 444, 8 N.W.2d 5, 9 (1942). Additionally, we have held a
copy of the foreign law need not be in evidence before it is judicially noticed.
City of Mandan v. Mertz, 399 N.W.2d 298, 299 (N.D. 1987); Walter v. N.D. State
Highway Comm’r, 391 N.W.2d 155, 158 (N.D. 1986).

       Section 31-10-03 is a modified version of the Uniform Judicial Notice of
Foreign Law Act. North Dakota Century Code provisions that are part of a
uniform statute “must be so construed as to effectuate its general purpose to
make uniform the law of those states which enact it.” N.D.C.C. § 1-02-13. The
intended purpose of the Uniform Act was to eliminate the common law rule
that foreign laws must be formally proved and could not be judicially noticed.
C. T. Drechsler, Annotation, Uniform Judicial Notice of Foreign Law Act, 23
A.L.R.2d 1437 § 1 (originally published in 1952). The Uniform Act includes
provisions identical to those in § 31-10-03 stating that “[e]very court of this
state shall take judicial notice of” the laws of other states and that “[t]he court
may inform itself of such laws in such manner as it may deem proper, and the
court may call upon counsel to aid it in obtaining such information.” See
Drechsler, supra, § 2. Because the applicable language in § 31-10-03 is identical
to the language of the Uniform Act, we may look to the decisions of other states
that have adopted the Uniform Act for guidance in our interpretation of § 31-
10-03.



                                        7
      The question becomes whether § 31-10-03 imposes an obligation on
courts to take judicial notice of foreign laws on their own initiative. Other state
courts interpreting the language of the Uniform Act have decided this precise
question. “The general rule seems to be that the act merely removes the
requirement of proving the foreign law but does not require the court to take
judicial notice of foreign law suo moto.”1 Drechsler, supra, § 10. In other words,
the language in the Uniform Act eliminates the need for the foreign law to be
proven, but the foreign law must still be pleaded or presented by the party
relying on the foreign law. See id. (and cases cited therein); 29 Am. Jur. 2d
Evidence § 117 (2020); 1 Clifford S. Fishman & Anne T. McKenna, Jones on
Evidence § 2:74 (7th ed. 2019); 2 Robert P. Mosteller et al., McCormick on
Evidence § 335 (8th ed. 2020).

       The decisions of other states are consistent with our decisions in Red
Arrow, Schnoor, and Haggard. That is, unless pleaded or presented, § 31-10-
03 does not require courts to take judicial notice of foreign law on their own
initiative. As this Court has previously decided, foreign laws will be presumed
to be the same as the laws of North Dakota unless a party asks the court to
take judicial notice of the foreign law or unless proven otherwise. Such a rule
does not interfere with the intended purpose of § 31-10-03 and the Uniform
Act, which is to eliminate the common law rule that foreign laws must be
formally proven and may not be judicially noticed.

       How a party must request a court to take judicial notice is a separate
question.2 As we have previously noted, North Dakota courts presume that
foreign law is the same as the law of North Dakota when no proof of the foreign
law is offered and the court is not asked to take judicial notice of the foreign law.
Other states have similarly decided cases. See Drechsler, supra, §§ 11-13 (and



1 “Suo moto” literally means “on its own motion.” See Asma T. Uddin, Free Speech and Public Order
Exceptions: A Case for the U.S. Standard, 2015 BYU L. Rev. 727, 731 n.24 (2015).
2 Under N.D.C.C. § 31-10-04, which was also adopted from the Uniform Act, a party is required to give

adverse parties notice either in the pleadings or otherwise that the foreign law will be presented to
the court or that the court will be asked to take judicial notice of the foreign law. Steven Joyce did not
raise the issue of insufficient notice here, and the record indicates Steven Joyce had notice that Tarryl
Joyce may have presented the foreign law to the court or asked the court to take judicial notice of the
foreign law at the May 5 hearing.


                                                    8
cases cited therein); 31A C.J.S. Evidence § 30 (2020). Based on our decisions in
Red Arrow, Schnoor, and Haggard, and the guidance offered by cases from other
states, a party must plead or present the foreign law by providing the authority
to be relied upon, or a party must request the court take judicial notice of the
foreign law. Without pleading or presenting the foreign law or requesting the
court take judicial notice of the foreign law, courts are not required to take judicial
notice of the foreign law.

       The question then becomes in what manner and to what extent a court
must inform itself of foreign law after a party has pleaded or presented foreign
law or requested the court take judicial notice of foreign law. Section 31-10-03
states a court “may inform itself of the laws in such manner as it may deem
proper and may call upon counsel to aid it in obtaining such information.” The
plain language of the statute gives the court wide discretion in how it informs
itself of the foreign law, to what extent it informs itself of the foreign law, and
whether it seeks counsel’s assistance in obtaining the foreign law. A court may
rely on the authority provided to it by the parties, or a court may rely on any
additional authority it deems proper to obtain the foreign law. See Drechsler,
supra, § 14 (and cases cited therein). But no matter how the court chooses to
inform itself of the foreign law, once a party has pleaded or presented the
foreign law or asked the court to take judicial notice of the foreign law, it is the
court’s duty to inform itself of the foreign law. See Revlett v. Louisville & N. R.
Co., 51 N.E.2d 95, 98 (Ind. App. 1943). If the court determines the information
presented by the parties is incomplete or inadequate, the court may call upon
counsel to assist it in obtaining the foreign law. Furthermore, consistent with
the purpose of § 31-10-03 and the Uniform Act, a party may present the foreign
law to the court, and a court may take judicial notice of the foreign law, without
the foreign law being in evidence or without the foreign law being submitted
in conformance with the rules of evidence. Mertz, 399 N.W.2d at 299; Walter,
391 N.W.2d at 158; Drechsler, supra, § 15(b).

      Tarryl Joyce argues “the District Court made no apparent effort to
determine the law of Texas concerning the issue before dismissing the action,”
and “the Court should have, at a minimum, requested the parties to submit
briefs on the issue of Texas law and mortgages before making its decision.”


                                          9
Under § 31-10-03, the district court was under no obligation to apprise itself of
Texas law. Rather, it was Tarryl Joyce’s obligation to present the applicable
Texas law to the court. Tarryl Joyce’s counsel simply informed the court that
a Texas attorney informed him the second mortgage was invalid under Texas
law. Tarryl Joyce did not plead or present the applicable Texas law to the court
and did not request the court take judicial notice of the applicable Texas law.
Our review of the entire record of the proceedings below indicates the
applicable provisions of Texas law were not once cited or otherwise provided to
the district court. Because Tarryl Joyce did not bring the applicable Texas law
to the attention of the court, the court did not err by declining to, on its own,
delve into whether the second mortgage was invalid under Texas law. And
given the scant information Tarryl Joyce provided to the court on the Texas
law, and the fact that she did not ask the court to take judicial notice of the
Texas law, the district court did not err by declining to request counsels’ aid in
obtaining the applicable Texas law.

      Tarryl Joyce contends she did not believe she could present the
applicable Texas law to the court at the May 5 hearing because the court
ordered a hearing at which time it would hear “oral argument,” and she
believed the applicable provision of Texas law was “evidence.” But, as
previously discussed, the foreign law need not be in evidence before it may be
judicially noticed, and a party presenting foreign law to the court under the
statute need not do so in conformity with the rules of evidence.

       Because Tarryl Joyce did not plead or present the applicable Texas law
to the court, and did not request the court take judicial notice of the applicable
Texas law, the district court did not err by declining to inform itself of Texas
law. For the same reasons, the district court did not err by declining to request
counsels’ aid in obtaining the applicable Texas law.

                                       IV

      Tarryl Joyce argues the district court erred in finding the settlement
agreement between the parties to be a binding contract and dismissing her
claims based on there being a settlement agreement in place. Tarryl Joyce
alleges the parties were mutually mistaken as to the validity of the second

                                       10
mortgage and the settlement agreement was not intended as a final settlement
agreement. Whether a contract is intended to be a complete, final, and binding
agreement is a question of fact, which we review under the clearly erroneous
standard. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, ¶ 7, 636 N.W.2d
189. “[A] finding of fact is clearly erroneous if it is induced by an erroneous
view of the law, if no evidence exists to support it, or if, on the entire record,
we are left with a definite and firm conviction a mistake has been made.” Id.
(quoting Lonesome Dove Petroleum, Inc. v. Nelson, 2000 ND 104, ¶ 15, 611
N.W.2d 154).

      Tarryl Joyce contends the settlement agreement was not intended as a
final settlement agreement because of the handwritten provision in the
agreement stating, “The parties understand that certain additional mutually
acceptable documents shall be required.” However, the agreement also states:
“This settlement is a full and complete resolution of all of the issues between
the parties in this action”; “This settlement is a binding agreement between
the parties”; and cautions the parties “the agreement may adversely affect
their rights.” Tarryl Joyce provided no explanation to the district court why
the handwritten provision requiring additional documents was significant or
required the denial of Steven Joyce’s motion. Additionally, Tarryl Joyce
provided no evidence that the parties did not intend the agreement to be a
complete, final, and binding agreement. The only evidence provided by Tarryl
Joyce was conclusory, hearsay statements from a Texas attorney who informed
her attorney that the second mortgage was invalid under Texas law. There
being no evidence provided by Tarryl Joyce to the contrary, the district court
found the settlement agreement was a complete, final, and binding contract.

      Tarryl Joyce also argues the settlement agreement is unenforceable
because of a mutually mistaken belief between the parties that a material
provision in the agreement—the second mortgage—was valid. In addition to
providing no evidence that the second mortgage was invalid under Texas law,
Tarryl Joyce provided no evidence that the second mortgage was a material
provision of the settlement agreement besides claiming the second mortgage
was specifically negotiated. She provided no evidence of the value of the second
mortgage or the value of the mineral interests that acted as security. Without

                                       11
knowing the value of the second mortgage or the mineral interests acting as
security, or the extent of the negotiations for the second mortgage, the district
court was not provided with sufficient evidence to determine the materiality of
the second mortgage. Steven Joyce’s attorney informed Tarryl Joyce’s attorney
by letter that he believed the settlement was a binding agreement, and it was
Steven Joyce’s intent to enforce the agreement. Being advised of Steven Joyce’s
position, Tarryl Joyce should have requested an evidentiary hearing to prove
the materiality of the second mortgage in addition to providing the court with
the applicable Texas law.

      Because Tarryl Joyce offered no evidence in support of her arguments,
all the district court was left with to rely on was a copy of the settlement
agreement that was filed with Steven Joyce’s motion for dismissal. The
agreement explicitly states it was a full and complete resolution of all of the
issues between the parties and was a binding agreement between the parties.
The handwritten provision requiring additional documents did not state what
documents were required and did not make the agreement contingent on the
procurement of the additional documents. Having to rely solely on the
agreement, without any evidence offered by Tarryl Joyce to support her
position, the district court found the settlement agreement was a binding
contract. The district court’s findings of fact are not clearly erroneous.

       We decline to address whether there was a mutual mistake of fact3
between the parties. Whether a mistake of fact or law exists is a question of
fact, which we review under the clearly erroneous standard of review. In re
Matthew Larson Tr. Agreement, 2013 ND 85, ¶ 9, 831 N.W.2d 388; see also In
re Estate of Vaage, 2016 ND 32, ¶ 28, 875 N.W.2d 527 (“Reformation on the
basis of fraud or mistake is a question of fact subject to the clearly erroneous
standard of review.”). Because Tarryl Joyce presented no evidence to the
district court that the second mortgage was invalid under Texas law, we are




3   “Mistake of foreign laws is a mistake of fact.” N.D.C.C. § 9-03-15.


                                                     12
not left with a definite and firm conviction the district court erred in not finding
the presence of a mutual mistake of fact.

                                         V

     The parties’ additional arguments are either without merit or
unnecessary to our decision, and we decline to address them.

                                        VI

      The judgment is affirmed.

      Gerald W. VandeWalle
      Daniel J. Crothers
      Jerod E. Tufte
      Carol Ronning Kapsner, S.J.
      Jon J. Jensen, C.J.


       The Honorable Carol Ronning Kapsner, S.J., sitting in place of McEvers,
J., disqualified.




                                        13
