concurring specially.
[¶ 19] It seems inherently unfair to allow Delkamp to appear by telephone, cross-examine Lawrence and, in so doing, make statements that appear to be testimonial, but disallow Lawrence to, in turn, cross-examine Delkamp. It is particularly disturbing when one of the reasons given by the court is that there was no one onsite to verify the identity of Delkamp on the telephone. I assume that the identity of Delkamp was verified to the satisfaction of the trial court or the court would not have allowed her to cross-examine Lawrence. Section 28-14-10, N.D.C.C., and *458N.D.R.Ct. 6.3 establish the order of trial in a civil case and refer only to the plaintiff and defendant or the parties as persons entitled to participate in the proceedings. If the trial court did not know it was Delkamp on the telephone cross-examining Lawrence this order should be reversed.
[¶ 20] Rule 3.2, N-D.R.Ct., under which the motion for contempt was brought, provides at 3.2(b) that “[i]f permitted by the court, a hearing may be held using electronic means, including telephonic conference or interactive television.” However, when evidence is to be taken and the hearing is not merely for the purpose of hearing oral argument, there must be compliance with N.D.R.Civ.P. 43(a). Rule 3.2 and Rule 43(a) both require approval of the trial court. Lawrence gave no notice to Delkamp that her testimony would be taken by contemporaneous transmission and the approval of the trial court was not obtained as required by N.D.R.Civ.P. 43(a). Had that notice been given and approval obtained, the trial court would have been in a position to determine the proper administration of the oath to Del-kamp.
[¶ 21] I am persuaded that the result in this case is the correct result notwithstanding the apparent unfairness. Lawrence may have been misled by the trial court’s approval of Delkamp’s request to “appear” by telephone, but approval of a party’s “appearing” by telephone is not coterminous with testifying by telephone. The words “appear,” “appearing,” or “appearance” are words of art in the legal sense. Black’s Law Dictionary 94 (7th ed.1999) defines “appearance” as “[a] coming into court as a party or an interested person, or as a lawyer on behalf of a party or interested person.” There are a number of cases in which this Court has written on whether or not a party has made an “appearance” for purposes of requiring notice before default judgment may be entered. Generally we have broadly construed the term “appearance” for that purpose. See State v. $38,000 U.S. Currency, 2008 ND 96, 748 N.W.2d 420, and cases cited therein. It is apparent that consent to an “appearance” by telephone is not synonymous with a more limited and focused requirement in Rule 43(a) to obtain the trial court’s consent before a witness may testify by telephone.
[¶ 22] Under the circumstances of this case had I been the trial judge I might have allowed Lawrence to cross-examine Delkamp after having placed her under oath. However, in view of N.D.R.Civ.P. 43(a), I cannot conclude the trial court abused its discretion in refusing to do so when there was no prior notice or request by Lawrence.
[¶ 23] DANIEL J. CROTHERS, J., concurs.