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nd/10595269.json

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+"{\"id\": \"10595269\", \"name\": \"STATE of North Dakota, Plaintiff and Appellant, v. Thomas E. HANSON, Defendant and Appellee\", \"name_abbreviation\": \"State v. Hanson\", \"decision_date\": \"1990-03-01\", \"docket_number\": \"Cr. No. 890299\", \"first_page\": 329, \"last_page\": \"331\", \"citations\": \"452 N.W.2d 329\", \"volume\": \"452\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T21:57:11.823759+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and LEVINE, VANDE WALLE and GIERKE, JJ., concur.\", \"parties\": \"STATE of North Dakota, Plaintiff and Appellant, v. Thomas E. HANSON, Defendant and Appellee.\", \"head_matter\": \"STATE of North Dakota, Plaintiff and Appellant, v. Thomas E. HANSON, Defendant and Appellee.\\nCr. No. 890299.\\nSupreme Court of North Dakota.\\nMarch 1, 1990.\\nTom M. Henning (argued), Asst. States Atty., Dickinson, for plaintiff and appellant.\\nWilliam G. Heth (argued), Dickinson, for defendant and appellee.\", \"word_count\": \"1168\", \"char_count\": \"7153\", \"text\": \"MESCHKE, Justice.\\nThe State of North Dakota appealed from an order of the district court reducing a criminal sentence. We reverse because the district court acted too late.\\nThomas E. Hanson pleaded guilty to two counts of gross sexual imposition, class B felonies, following a plea agreement which dismissed four counts of gross sexual imposition, class A felonies. On November 10, 1988, Hanson was sentenced to serve concurrent six-year terms in the penitentiary with two years suspended.\\nOn February 8, 1989, Hanson timely moved to reduce his sentence pursuant to NDRCrimP 35(b). Eight days later, the State opposed the motion. On July 20, more than 250 days after the sentence was imposed, the trial court granted Hanson's motion and suspended an additional two years on each count. The effect was to reduce Hanson's six-year sentence to two years in the penitentiary and four years suspended. The trial court denied the State's motion to reconsider, explaining that it had awaited \\\"receipt of critical information\\\" and reasoning:\\nIf a motion is filed within the 120 day period, then the time limit is directory only, rather than jurisdictional, and the Court may consider and act upon the motion at any reasonable time, including after the 120 day period has expired.\\nThe State appealed.\\nThe State argued that NDRCrimP 35(b)\\nrequire[d] any reduction of sentence in this case to have been completed within 120 days from date of imposition of sentence, and, that failure to make such a reduction within 120 days left the sentencing court without any jurisdiction with which to effect a modification of the sentence.\\nThe State pointed to the explanatory note with NDRCrimP 35: \\\"It should be noted that the period is not defined as the time in which the motion may be made, but is rather the time in which the court may act. Technically, this permits the court's failure to act upon a motion, to preclude relief. (8A Moore's, supra, \\u00b6 35.02(2).)\\\" 'According to the State, the plain language of the rule allows a sentencing court to reduce a sentence only \\\"within 120 days after the sentence is imposed....\\\"\\nHanson responded that the trial court must have continuing jurisdiction beyond the 120-day time when a timely motion has been made. He cited a quotation by this court in State v. Jensen, 429 N.W.2d 445, 447 (N.D.1988), which seemed to say that time was important for filing the motion: \\\" 'Rule 35 is intended to establish \\\"clear lines of demarcation so that all concerned would know exactly when the time for filing would expire.\\\" ' \\\" Since his motion was made timely, Hanson argued that the trial court had power to reduce his sentence.\\nHanson's reliance on dictum in Jensen is misplaced. Jensen dealt with an untimely Rule 35(b) motion which was made long after the 120-day time limit imposed by the rule. The quoted phrase in Jensen was imprecise and our use of it was not intended to alter the meaning of Rule 35(b).\\nWe explained in Jensen that \\\"Rule 35(b) was derived from the corresponding federal rule.[ ] We may therefore look to . interpretive federal caselaw for guidance in construing our rule.\\\" 429 N.W.2d at 446. Jensen summarized the jurisdictional effect of Criminal Rule 35(b) as federally interpreted: \\\"The 120 day time limitation stated in Rule 35(b) is not discretionary but jurisdictional and cannot under any circumstances be extended by the court. United States v. Gonzalez-Perez, 629 F.2d 1081, 1083 (5th Cir.1980).\\\" Id. at 446-47. The plain language of NDRCrimP 35(b), emphasized in its explanatory note, means that the failure of a sentencing court to act within 120 days forecloses its power to reduce a criminal sentence. See also State v. Rueb, 249 N.W.2d 506 (N.D.1976); State v. Meier, 440 N.W.2d 700, 703 (N.D.1989). By acting to reduce Hanson's sentence more than 120 days after sentencing, the trial court's interpretation of the rule was incorrect.\\nWhile our ruling negates the trial court's power to reduce Hanson's penitentiary sentence, there remains another, nonjudicial, and specialized body with power to shorten his penitentiary time. The parole board must consider Hanson's sentence within one year after his incarceration in the penitentiary and \\\"at such intervals thereafter as it may determine.\\\" NDCC 12-59-05. Also, Hanson may apply to the parole board at any time. NDCC 12-59-08. Unless a mandatory minimum term of imprisonment has been imposed (for example, see NDCC 12.1-32-02.1), the parole board has broad powers to release a penitentiary inmate on parole.\\nWe reverse the trial court and reinstate Hanson's criminal sentence of November 10, 1988.\\nERICKSTAD, C.J., and LEVINE, VANDE WALLE and GIERKE, JJ., concur.\\n. NDRCrimP 35(b):\\nReduction of Sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this subdivision. Relief under this Rule may be granted by the court only upon motion of a party or its own motion and notice to the parties. If the sentencing court grants relief under this Rule, it shall state its reasons therefor in writing.\\n. NDCC 12-59-05:\\nConsideration by board \\u2014 Guarantee. At a meeting to be determined by the parole board, within one year after a prisoner's admission to the penitentiary, or within six months after the prisoner's admission to the state farm, at such intervals thereafter as it may determine and by application pursuant to section 12-59-08, the board may deny or grant parole or continue consideration to another meeting. The board shall consider all pertinent information regarding each prisoner, including the circumstances of the offense, the presentence report, the previous social history and criminal record, the conduct, employment, and attitude in prison, and the reports of such physical and mental examinations as have been made.\\n. NDCC 12-59-08:\\nApplication for parole \\u2014 Hearing\\u2014Emergency paroles. All applications for parole shall be filed with the clerk of the board. Applications may be heard at a meeting to be determined by the parole board, after the initial consideration guaranteed by section 12-59- 05. In the event of an emergency application, the ex officio members of the board of pardons, acting as authorized by section 12-55-04, may, in accordance with section 12-55-19, grant such emergency parole. Thereafter the parolee shall be under the supervision and jurisdiction of the parole board.\"}"

nd/10596909.json

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+"{\"id\": \"10596909\", \"name\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST H. Holland GALLOWAY, a Member of the Bar of the State of North Dakota\", \"name_abbreviation\": \"In re Disciplinary Action Against Galloway\", \"decision_date\": \"1990-09-19\", \"docket_number\": \"No. 900288\", \"first_page\": 155, \"last_page\": \"155\", \"citations\": \"465 N.W.2d 155\", \"volume\": \"465\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T22:01:03.917884+00:00\", \"provenance\": \"CAP\", \"judges\": \"RALPH J. ERICKSTAD, Chief Justice\", \"parties\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST H. Holland GALLOWAY, a Member of the Bar of the State of North Dakota.\", \"head_matter\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST H. Holland GALLOWAY, a Member of the Bar of the State of North Dakota.\\nNo. 900288.\\nSupreme Court of North Dakota.\\nSept. 19, 1990.\", \"word_count\": \"194\", \"char_count\": \"1221\", \"text\": \"ORDER OF PUBLIC REPRIMAND\\nOn July 30, 1990, a Report of the Disciplinary Board and Report, Findings and Recommendations of the Hearing Panel were filed in this matter.\\nSubsequently on September 14, 1990, a Petition signed by Mary Norum Hoberg, Special Disciplinary Counsel; a Stipulation to Issue Public Reprimand signed by Ms. Hoberg and Mr. H.H. Galloway, Respondent Attorney; and Affidavit of H.H. Galloway were filed. The parties requested this Court to enter an Order publicly reprimanding Respondent Attorney, H.H. Galloway.\\nA Petition to Order Costs and Affidavit of Ms. Hoberg regarding costs were subsequently filed September 18, 1990.\\nAfter consideration, the Supreme Court accepted the Petition and Stipulation, and\\nORDERED, that H.H. Galloway, a member of the Bar of the State of North Dakota, be publicly reprimanded.\\nIT IS FURTHER ORDERED, that Mr. Galloway pay costs in the amount of $421.71.\\nRALPH J. ERICKSTAD, Chief Justice\\nGERALD W. VANDE WALLE, Justice\\nHERBERT L. MESCHKE, Justice\\nBERYL J. LEVINE, Justice\"}"

nd/10605347.json

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+"{\"id\": \"10605347\", \"name\": \"Roger CADY, James Bergo and Thomas Jundt, d/b/a Cady, Bergo, Jundt Enterprises, L.N. Fletcher and Roberta Fletcher, and Roger Behm, Plaintiffs, Webber Barlow Stores, Incorporated, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION and City of Minot, Defendants and Appellees\", \"name_abbreviation\": \"Cady v. North Dakota Department of Transportation\", \"decision_date\": \"1991-06-25\", \"docket_number\": \"Civ. No. 910044\", \"first_page\": 467, \"last_page\": \"471\", \"citations\": \"472 N.W.2d 467\", \"volume\": \"472\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T18:06:43.135036+00:00\", \"provenance\": \"CAP\", \"judges\": \"VANDE WALLE, LEVINE, MESCHKE and GIERKE, JJ., concur.\", \"parties\": \"Roger CADY, James Bergo and Thomas Jundt, d/b/a Cady, Bergo, Jundt Enterprises, L.N. Fletcher and Roberta Fletcher, and Roger Behm, Plaintiffs, Webber Barlow Stores, Incorporated, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION and City of Minot, Defendants and Appellees.\", \"head_matter\": \"Roger CADY, James Bergo and Thomas Jundt, d/b/a Cady, Bergo, Jundt Enterprises, L.N. Fletcher and Roberta Fletcher, and Roger Behm, Plaintiffs, Webber Barlow Stores, Incorporated, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION and City of Minot, Defendants and Appellees.\\nCiv. No. 910044.\\nSupreme Court of North Dakota.\\nJune 25, 1991.\\nMcGee, Hankla, Backes & Wheeler, Ltd., Minot, for plaintiff and appellant; argued by Orlin W. Backes. Appearance by Robert A. Wheeler.\\nNevin Van de Streek (argued), City Atty. and Sp. Asst. Atty. Gen., Eaton, Van de Streek & Ward, Minot, for defendants and appellees.\", \"word_count\": \"2259\", \"char_count\": \"13805\", \"text\": \"ERICKSTAD, Chief Justice.\\nWebber Barlow Stores, Inc., (Barlow) appeals from the decision of the District Court for the Northwest Judicial District dated January 17, 1991, dismissing Barlow's action against the North Dakota Department of Transportation and the city of Minot (defendants). We reverse and remand.\\nIn the fall of 1978, the new Highway 2 and 52 Bypass (Bypass) was opened in Minot, North Dakota. The section of the Bypass in question runs primarily east and west and is a four-lane, semi-controlled access, divided highway. The Bypass is intersected by Tenth Street, a road which extends primarily north and south. Barlow owns property which is located in the northeast corner of the Tenth Street and Bypass intersection. The northern bound ary of Barlow's property is Twentieth Avenue, the former Highway 2 and 52 Bypass, which runs roughly parallel to the section of the Bypass in question.\\nInitially, the intersection of the Bypass and Tenth Street was controlled by stop signs. In 1980, the city of Minot installed temporary barriers to prevent left-hand turns off of Tenth Street onto the Bypass. The result of this action was to allow vehicles traveling in either direction on the Bypass to access and travel in either direction on Tenth Street, while traffic traveling south on Tenth Street was forced to travel west on the Bypass and traffic traveling north on Tenth Street was forced to travel east on the Bypass. No through traffic on Tenth Street was thereafter permitted. In late 1982, or early 1983, the temporary barriers were made permanent. Finally, in the fall of 1988, the north half of the intersection was completely sealed off and only right-hand turns onto and off of the Bypass on the south part of the intersection remained. Direct access from Barlow's property to the Bypass, at the intersection of Tenth Street and the Bypass, has therefore been eliminated.\\nPresently, Barlow's most direct route to the Bypass is to first access Twentieth Avenue, which abuts the north edge of the property. Once on Twentieth Avenue, Barlow may travel either east to Broadway [Highway 83] or west to Sixteenth Street, a distance of approximately six blocks in either direction. Both Broadway and Sixteenth Street intersect the Bypass and allow complete access to and from the Bypass. The intersection of Broadway and the Bypass is a cloverleaf interchange. The intersection of Sixteenth Street and the Bypass is, in the words of the defendants \\\"a bizarre and bewildering array of access roads which presents all the good order of an upset bowl of spaghetti.\\\"\\nWe have previously recognized that a property owner has a right of access to abutting highways and streets. E.g., Yegen v. City of Bismarck, 291 N.W.2d 422, 424 (N.D.1980). Section 24-01-01.1(35), N.D.C.C., defines the \\\"right of access\\\" as \\\" 'the right of ingress to a highway from abutting land and egress from a highway to abutting land.' \\\" See also, Yegen, 291 N.W.2d at 424. The \\\"right of access\\\" is a private right which entitles the abutting land owner just compensation if that right is impaired or destroyed. Id. However, the property owner's \\\"right of access\\\" to an abutting highway or street\\n\\\"[d]oes not entitle the landowner to direct access at any and all points between the subject property and the highway. The State, in the exercise of its police powers, may impose regulations and restrictions, or even prevent access at certain points, where such control is done in the interests of public safety. Thus, while an abutter has a right to access to an adjoining highway, such right is subject to the superior interests of the state. King v. Stark County, supra. [66 N.D. 467, 266 N.W. 654 (1936) ].\\\"\\nFiller v. City of Minot, 281 N.W.2d 237, 239 (N.D.1979).\\nThe initial determination of whether or not there has been a taking of or damage to private property is a question of law. Id. United Power Association v. Heley, 277 N.W.2d 262, 267 (N.D.1979); Guerard v. State, 220 N.W.2d 525, 527 (N.D.1974). Generally, once there has been a determination that a private property right has been disturbed the only remaining question for the trier of fact is the extent of the damage. Filler, 281 N.W.2d at 242; United Power Association, 277 N.W.2d at 267. However, in Filler we said:\\n\\\"In situations where restrictions and regulations have been imposed upon the access of abutting owners, the question becomes one of whether or not, under the existing facts and circumstances, a reasonable means of access remains. If the abutter has free and convenient access to his property, and his means of ingress and egress are not substantially interfered with, he has no cause of complaint. See Johnson v. United States, 479 F.2d 1383, 202 Ct.Cl. 405 (1973); Balog v. State, Department of Roads, 177 Neb. 826, 131 N.W.2d 402 (1964); 2A Nichols on Eminent Domain \\u00a7 6.444[2]; 4A Nichols on Eminent Domain \\u00a7 14.-2431; Annot. 42 A.L.R.3d 13.\\\"\\nFiller, 281 N.W.2d at 240. See generally, 7A Nichols on Eminent Domain \\u00a7 12.04; 8A Nichols on Eminent Domain \\u00a7 16.-03[2][b][iii]. Therefore, even though a taking or damage to private property has been determined as a matter of law, a second question concerning whether or not reasonable access to an abutting roadway remains must also be addressed. Filler, 281 N.W.2d at 242 (citing Guerard v. State, 220 N.W.2d 525 (N.D.1974)). If free and convenient access to the abutting roadway remains, and the landowner's means of ingress and egress are not substantially impaired, the landowner has not suffered any compensable injury. Filler, 281 N.W.2d at 240.\\nThe question of whether or not reasonable access to an abutting roadway remains is a question of fact. Id. at 242. Our review of the district court's findings of fact is governed by the clearly erroneous standard of Rule 52(a), N.D.R.Civ.P. On appeal, after reviewing the entire record, a finding of fact will be overturned only when we are left with a definite and firm conviction that a mistake has been made. E.g., In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973). We will not reverse the trial court's determination merely because we may have viewed the facts differently, and we are not permitted to substitute our judgment for that of the trial court. E.g., Check Control, Inc. v. Shepherd, 462 N.W.2d 644, 647 (N.D.1990) (citing Miller Enterprises v. Dog N' Cat Pet Ctrs., 447 N.W.2d 639, 644 (N.D.1989)).\\nBarlow asserts the district court erred in determining that reasonable access to and from the Bypass remained following the closing of the Tenth Street intersection. The district court made the following finding of fact:\\n\\\"XXIII.\\nTwentieth Avenue, being directly accessible to traffic from 16th Street and Broadway, the two primary north-south arteries in the City of Minot, provides the Webber Barlow property at Block 1, Highway Subdivision, with reasonably convenient access to and from the Bypass.\\\"\\nIn Filler, we said that loss of traffic, loss of business, and circuity of travel are not themselves compensable. 281 N.W.2d at 243. However, we do recognize that loss of traffic, loss of business, and circuity of travel are factors to be considered in determining the reasonableness of the remaining access to and from an abutting roadway. Id.\\nThe Filler case involved many of the same roadways which are involved in the case at hand. In Filler, the plaintiff complained that the access from his property to Broadway [Highway 83] had been impaired by the construction of the Broadway and Bypass cloverleaf interchange. Prior to construction of the interchange, Filler had access to Broadway 300 feet north and 875 feet south of his property. In order to reach Broadway following the construction of the interchange, Filler had to navigate a circuitous route of 1060 feet. After evaluating a number of factors such as loss of traffic, loss of business, and the circuity of travel, we concluded that access to Broadway from Filler's property had been substantially impaired.\\nIn the instant case, prior to the closing of the Tenth Street intersection, Barlow had direct access to and from the Bypass. In order to reach the Bypass now, Barlow must travel approximately six blocks either east to Broadway, or west to Sixteenth Street. Broadway is a four-lane controlled access highway which intersects the Bypass through the use of a cloverleaf interchange. As noted earlier, the intersection of Sixteenth Street and the Bypass is \\\"a bizarre and bewildering array of access roads.\\\" In addition, evidence at trial established that there has been a large decrease in the traffic flow on Tenth Street.\\nUpon considering the circuity of travel which is now necessary to maintain Barlow's right to access the Bypass, and the decrease in traffic flow on Tenth Street, we conclude that Barlow's access to and from the Bypass has been so substantially impaired that he no longer has reasonable access. Therefore, we are left with the definite and firm conviction that a mistake was made in the district court's finding that reasonable access between Barlow's property and the Bypass remains.\\nThe defendants assert that, even if the remaining access is found to be unreasonable, Barlow's claims are barred by the statute of limitations. An action for damages resulting from inverse condemnation must be brought within six years of the time the cause of action accrues. Maragos v. City of Minot, 191 N.W.2d 570, 572 (N.D.1971).\\nThere is no factual dispute concerning the statute of limitations question. The plaintiffs commenced this action on November 1, 1988. The defendants assert that the action began to accrue when the temporary barriers were erected in 1980. Barlow asserts that the action began to accrue no earlier than late 1982 when construction of the permanent barriers was completed. The district court made no conclusions of law on the issue of the statute of limitations, but in its findings of fact said: \\\"Permanent barricades were installed in late 1982 or early 1983, but in any event within six years before commencement of this action.\\\" We interpret this to be a denial of the defendant's statute of limitations defense.\\nAt trial, the evidence disclosed that, while the temporary barriers were in place, there was a continuing debate over how to control the traffic congestion at the Tenth Street intersection. The suggested solutions ranged from closing the intersection completely to installing signalization. The district court made a finding of fact that it was not until 1988 that access between Barlow's property and the Bypass was completely eliminated. In addition, we have previously said:\\n\\\"[A] city may do many things which are not compensable to an abutting property owner, such as re-routing or diverting traffic; constructing a traffic island; installing a median strip prohibiting or limiting crossovers from one lane to another; using traffic control devices; prescribing one-way traffic; placing restrictions on u-turns, left and right turns; restricting the weight, size, and speed of traffic on the street; or installing 'no parking' signs.\\\" (Emphasis added.)\\nYegen, 291 N.W.2d at 425. The effect of the temporary barriers was to restrict left turns off of Tenth Street onto the Bypass, and eliminate all through traffic on Tenth Street. The temporary barriers did not cut off right turns from Tenth Street onto the Bypass, nor did they cut off the exit of traffic on the Bypass to the Barlow property, nor did they cut off entry onto Tenth Street from the west, permitting traffic to proceed directly to the Barlow Property.\\nThe 1988 construction prevented all access to and from the Bypass on the north half of the intersection. Only right-hand turns onto and off of the intersection remain on the south half of the intersection. Therefore, access between the Barlow property and the Bypass was completely eliminated at the Tenth Street intersection when the 1988 construction was complete.\\nConsidering these circumstances, we conclude that Barlow's action for inverse condemnation did not begin to appreciably and permanently accrue at least until the permanent barriers were in place. Accordingly, we find the defendant's assertions that Barlow's claim is barred by the statute of limitations to be without merit.\\nFor the reasons stated in the opinion, the decision of the district court is reversed, and this case is remanded for a determination of appropriate damages.\\nVANDE WALLE, LEVINE, MESCHKE and GIERKE, JJ., concur.\\n. Property owners have a right to continued access to abutting roadways. E.g., Filler v. City of Minot, 281 N.W.2d 237, 239 (N.D.1979). The relevant question in the case at hand is whether or not reasonable access to and from the abutting roadway remains. While reasonable access to and from the Barlow property exists without access to the Bypass, that is not relevant to the determination of whether or not reasonable access to the Bypass remains. It may be a proper consideration in a determination of the amount of damages. \\\"Other means of access may mitigate damages, [citation omitted] but [that] does not constitute a defense to the action however.\\\" Balog v. State, Department of Roads, 131 N.W.2d 402, 410, 177 Neb. 826 (1964).\"}"

nd/10607765.json

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+"{\"id\": \"10607765\", \"name\": \"NORWEST BANK NORTH DAKOTA, NATIONAL ASSOCIATION, Plaintiff and Appellee, v. James D. CHRISTIANSON, Christopher A. Carlson, and James P. Beck, Defendants and Appellants\", \"name_abbreviation\": \"Norwest Bank North Dakota, National Ass'n v. Christianson\", \"decision_date\": \"1992-12-22\", \"docket_number\": \"Civ. No. 920208\", \"first_page\": 165, \"last_page\": \"169\", \"citations\": \"494 N.W.2d 165\", \"volume\": \"494\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T20:54:25.791245+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEVINE, MESCHKE and JOHNSON, JJ., concur.\", \"parties\": \"NORWEST BANK NORTH DAKOTA, NATIONAL ASSOCIATION, Plaintiff and Appellee, v. James D. CHRISTIANSON, Christopher A. Carlson, and James P. Beck, Defendants and Appellants.\", \"head_matter\": \"NORWEST BANK NORTH DAKOTA, NATIONAL ASSOCIATION, Plaintiff and Appellee, v. James D. CHRISTIANSON, Christopher A. Carlson, and James P. Beck, Defendants and Appellants.\\nCiv. No. 920208.\\nSupreme Court of North Dakota.\\nDec. 22, 1992.\\nLawrence R. Klemin of Bucklin & Kle-min, P.C., Bismarck, for plaintiff and appel-lee.\\nIrvin B. Nodland of Nodland & Dickson, Bismarck, for defendants and appellants.\", \"word_count\": \"2315\", \"char_count\": \"14823\", \"text\": \"VANDE WALLE, Justice.\\nJames D. Christianson, Christopher A. Carlson, and James P. Beck appealed from a judgment finding them liable on guaranties to Norwest Bank North Dakota, N.A., in the amount of $132,654.90. We affirm.\\nIn 1985, Soo Hotel Associates [Soo], a limited partnership in which Christianson, Carlson, and Beck [Partners] are general partners, executed a promissory note in favor of Norwest Bank North Dakota, N.A., [Norwest] in the amount of $132,-500.00. The note was secured by a mortgage in the amount of $132,500.00 on real property owned by Soo in downtown Bismarck. Both the note and the mortgage were signed by Partners. Additionally, at the time the loan was negotiated, Partners were asked to sign personal and unconditional guaranties in the event Soo, as the mortgagor, defaulted. Partners claimed that at the time of the loan negotiation, Thomas Gietzen, a loan officer with Nor-west, advised them that there was sufficient equity in the real estate for which the bank was taking the mortgage to cover the indebtedness, and regardless, Norwest would only pursue the personal guaranties if the real estate value turned out to be less than the balance due on the note. Partners claimed they were assured that Norwest would only pursue the personal guaranties if a deficiency existed after sale of the real estate. Gietzen, by way of affidavit, denies any such conversation took place, and the guaranty agreements signed individually by Partners make no provisions which would support Partners' contention.\\nAfter several renewals, the note became due in late 1991. In early 1992, Norwest commenced an action against Partners on their personal guaranties without foreclosing on the real estate on which Soo's note was secured.\\nPartners admitted Soo's default in repayment, admitted signing the personal guaranties, and attested to the genuineness of the guaranties as proffered by Norwest. The trial court resolved the legal issues against Partners and granted Norwest's motion for summary judgment.\\nPartners raises these issues for our consideration:\\n(1)In a direct real estate mortgage action, if a bank pursues personal guaranties of general partners of a limited partnership without first foreclosing the mortgage, is its recovery limited to the difference between the amount owed and the fair market value of the real estate as determined by a jury?\\n(2) Are the guaranty agreements sufficiently vague, ambiguous, or inconsistent so as to permit Partners to introduce parol evidence to vary their terms?\\n(3) Do the guaranty agreements contain illegal and unconscionable provisions that should prevent or impair their enforceability?\\nGuaranty Limitations\\nPartners contend that after a mortgagor's default, a mortgagee may sue the guarantors of the mortgagor's debt, but the recovery is limited to the difference between the amount owed and the fair market value of the mortgaged real estate if the mortgagee does not first foreclose on the real estate.\\nIn First Interstate Bank of Fargo v. Larson, 475 N.W.2d 538 (N.D.1991), we held that the anti-deficiency statute, NDCC \\u00a7 32-19-07, applies to general partners who guaranty their partnership's notes which are secured by a mortgage. Because a general partner's guaranty is not a separate obligation from the underlying note, the general partner's liability is not founded on the guaranty, but on the note itself. Therefore, a mortgagee suing on a general partner's guaranty after the partnership's (mortgagor's) default, is subject to the rights and limitations enumerated in the anti-deficiency statute. Larson would have been dispositive of this appeal, but we specifically held that its application would be applied prospectively only. As the mortgage, note, and guaranties were signed by Partners in 1985, Larson, decided in 1991, has no bearing on their case. Larson, supra, at 545 citing State v. Klein, 63 N.D. 514, 249 N.W. 118 (1933) [\\\"The rights and obligations of contracting parties cannot be altered by subsequent legislation or judicial decision.\\\"].\\nIn 1985, the law with respect to the liability of general partners as a result of their guaranties of the partnership's mortgage, was controlled by the Court's decision in Mandan Sec. Bank v. Heinsohn, 320 N.W.2d 494 (N.D.1982) overruled by Larson, supra. In Heinsohn, the majority of this Court held that a general partner who personally guaranteed payment of a partnership note secured by a mortgage, changed the nature of the partner's obligation on the debt \\u2014 and as a result the partner was not only jointly liable on the note, but was jointly and severally liable on the guaranty. Because the liability of the general partner on the guaranty was not founded on the underlying note secured by the mortgage, the anti-deficiency statute did not preclude recovery on the individual guaranty and the creditor could collect on the guaranty without first foreclosing on the real property. See also Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640 (N.D.1980) [shareholder's personal guaranty of corporation's note secured by mortgage was a separate and distinct obligation as opposed to their obligations as shareholders, so creditor not bound by anti-deficiency statute and may sue on guaranty without first foreclosing].\\nPartners' reliance on Stewart v. Henning, 481 N.W.2d 230 (N.D.1992) and First Nat'l Bank & Trust of Williston v. Ashton, 436 N.W.2d 215 (N.D.1989) is misplaced. In Ashton, individuals executed a promissory note secured by a mortgage and simultaneously executed personal guaranties on the mortgage debt. Upon default, the mortgagee sued the individuals on their personal guaranties, and we concluded that the individuals had not executed \\\"guaranties\\\" as defined under section 22-01-01, NDCC, because the signers were both the principal debtors and guarantors. Therefore, the anti-deficiency statutes were applicable. In Partners' case, Partners were not the principal debtors on the mortgage under the majority holding in Hein-sohn.\\nIn Stewart, two shareholders, as individuals, and a corporation executed a promissory note in favor of Stewart. The corporation, as security for the note, gave Stewart a mortgage on real property and a security interest on personal property. After default on the promissory note, Stewart sued the individuals for its balance. The notes were secured by a mortgage on real property and a security interest on personal property. Relying on First State Bank of Cooperstown v. Ihringer, 217 N.W.2d 857 (N.D.1974), we held that a creditor may proceed against the personal property or the real property in no particular order. Because the shareholders were not mortgagors, the creditor could also proceed on the debt before foreclosing on the properties, but if that option is taken, the anti-deficiency statute, NDCC \\u00a7 32-19-07, limited the creditor's recovery to the difference between the amount due on the note plus cost and the fair market value of the property as determined by a jury. Stewart is factually inapposite to Partners' case. Partners guaranteed the partnership's note, the guaranties were separate obligations from the note, and so the anti-deficiency statutes do not apply.\\nApplying the law at the time the contract was entered into, Partners' obligation of repayment is not founded on the note, but on their personal guaranties. Heinsohn, supra. Therefore, the anti-deficiency statutes do not apply to this action, and Nor-west is not bound by their limited options upon the default of the mortgagor. See NDCC \\u00a7 32-19-07; Ihringer, supra. Nor-west is free to collect the entire amount guaranteed jointly and severally by Partners without first resorting to foreclosing on the real estate, and without limiting its recovery to the difference between the fair market value of the real estate and the amount due on the note.\\nParol Evidence\\nPartners, by way of sworn affidavit, contended that Gietzen assured them that the guaranties were merely additional security and that Partners had little to worry about because the equity in the real estate on which the bank had taken a mortgage was more than sufficient to cover the debt. Furthermore, Partners contended that they were assured by Gietzen that, even if Soo did go into default, Norwest would first foreclose on the mortgage and Partners would only be liable for the deficiency. Gietzen, also by way of sworn affidavit, denied these assertions.\\nPartners did not allege that entering into the guaranties was a result of fraud, mistake, or accident \\u2014 thereby perhaps opening the door for the introduction of parol evidence. Rather, to elucidate the parties's intentions and to determine the meanings attached to the guaranties by all parties, Partners attempted to admit parol evidence on the grounds that the guaranties were ambiguous. We have held that extrinsic evidence can be considered to clarify the intent of the parties if a contract is ambiguous. E.g., First Nat'l Bank & Trust Co. of Williston v. Scherr, 456 N.W.2d 531 (N.D.1990). Partners alleged that Paragraph No. 8 and Paragraph No. 9 of the guaranty agreements are inconsistent. The relevant parts of the guaranties read:\\n\\\"8. . The undersigned expressly agree(s) that the undersigned shall be and remain liable for any deficiency remaining after foreclosure of any mortgage or security interest securing indebtedness, whether or not the liability of Borrower or any other obligor for such deficiency is discharged pursuant to statute or judicial decision.\\\"\\n\\\"9. . The Bank shall not be required first to resort for payment of the Indebtedness to Borrower or other person or their properties, or first to enforce, realize upon or exhaust any collateral security for Indebtedness, before enforcing this guaranty.\\\"\\nWe see no ambiguities or inconsistencies between these two paragraphs. The two paragraphs, read together, simply state that the guarantors shall be liable for the whole indebtedness; and while Norwest need not first sue on the mortgage, if they do, the guarantors are only responsible for the deficiency.\\nWe recognize that a written agreement supercedes any prior oral agreements or negotiations between the parties in the absence of any ambiguities. Parol evidence in this case is inadmissible to vary or contradict the terms of that agreement, or to clarify the intent of the parties. See B.W.S. Investments v. Mid-Am Restaurants, 459 N.W.2d 759 (N.D.1990); National Bank of Harvey v. International Harvester, 421 N.W.2d 799 (N.D.1988); Graber v. Engstrom, 384 N.W.2d 307 (N.D.1986).\\nIllegality or Unconscionability\\nIn view of the law at the time the guaranty agreements were entered into, it was neither illegal nor unconscionable for lenders to seek personal guaranties as additional mortgage security. Lenders were allowed to enforce personal guaranties after a mortgagor's default in lieu of foreclosing on the real property. Heinsohn, supra; Mueller, supra. Partners presented a list of alleged illegal and unconscionable provisions in the guaranties. However, Partners have not suffered harm by any of them. Because Partners' argument is based upon factual instances not existing in this case, we do not decide the merits of the allegations.\\nThe judgment of the trial court is affirmed.\\nLEVINE, MESCHKE and JOHNSON, JJ., concur.\\n. In Mandan Sec. Bank v. Heinsohn, 320 N.W.2d 494 (N.D.1982) and Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640 (N.D.1980), the mortgagee foreclosed on the real property before attempting to collect on the personal guaranties. Partners contend that these cases are not analogous and thereby inapplicable, as Norwest first attempted to collect on the personal guaranties. But in Mueller, we cited to State Bank of Burleigh County v. Porter, 167 N.W.2d 527 (N.D.1969) for the proposition that where the obligation of the guarantors was absolute and there was a guaranty of payment, the guarantors could not require the creditor to proceed against the principal debtor on the notes before bringing an action against the guarantors. We did not thereby imply that a mortgagee must follow a particular chronological order in which to collect what is due. Partners unconditionally guaranteed the Soo debt and made a promise of repayment, so Norwest was allowed to sue on the personal guaranties of Partners without first foreclosing on the underlying real estate as mortgaged by Soo.\"}"

nd/10616302.json

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+"{\"id\": \"10616302\", \"name\": \"MIDWEST PROCESSING COMPANY, A SUBSIDIARY OF ARCHER DANIELS MIDLAND COMPANY, Plaintiff and Appellant, v. McHENRY COUNTY, acting By and Through the McHENRY COUNTY BOARD OF COMMISSIONERS, Defendant and Appellee\", \"name_abbreviation\": \"Midwest Processing Co. v. McHenry County ex rel. McHenry County Board of Commissioners\", \"decision_date\": \"1991-04-02\", \"docket_number\": \"Civ. No. 900377\", \"first_page\": 895, \"last_page\": \"902\", \"citations\": \"467 N.W.2d 895\", \"volume\": \"467\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:50:28.885783+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIERKE and LEVINE, JJ., and VERNON R. PEDERSON, Surrogate Justice, concur.\", \"parties\": \"MIDWEST PROCESSING COMPANY, A SUBSIDIARY OF ARCHER DANIELS MIDLAND COMPANY, Plaintiff and Appellant, v. McHENRY COUNTY, acting By and Through the McHENRY COUNTY BOARD OF COMMISSIONERS, Defendant and Appellee.\", \"head_matter\": \"MIDWEST PROCESSING COMPANY, A SUBSIDIARY OF ARCHER DANIELS MIDLAND COMPANY, Plaintiff and Appellant, v. McHENRY COUNTY, acting By and Through the McHENRY COUNTY BOARD OF COMMISSIONERS, Defendant and Appellee.\\nCiv. No. 900377.\\nSupreme Court of North Dakota.\\nApril 2, 1991.\\nPringle & Herigstad, P.C., Minot, for plaintiff and appellant, argued by David J. Hogue.\\nLyle Gregory Witham (argued), State\\u2019s Atty., Towner, for defendant and appellee.\\nAppearance by Robert W. Wirtz, Asst. Atty. Gen., State Tax Dept., Bismarck, ami-cus curiae on behalf of State Tax Dept.\", \"word_count\": \"3667\", \"char_count\": \"23057\", \"text\": \"ERICKSTAD, Chief Justice.\\nMidwest Processing Company, a subsidiary of Archer Daniels Midland Company (Midwest), appeals following a judgment of the District Court for the Northeast Judicial District, dated August 15, 1990, which affirmed the decision of the McHenry County Board of Commissioners (Board), dated June 5,1990, which denied Midwest's request for an abatement of its taxes. We affirm.\\nOn August 16, 1988, Midwest was purchased by Archer Daniels Midland Company. The property had an assessed value of $6,963,320, which was based upon an appraisal performed by the State Tax Commissioner's Office, dated March 24, 1988.\\nIn February of 1989, Midwest requested an abatement of its 1988 taxes. Subsequent to a recommendation for denial of the abatement request by the Governing Board of Brown Township, the McHenry County Board of Commissioners held a hearing to consider Midwest's application for abatement. The hearing was conducted on February 27, 1989, and was scheduled to be continued on May 2,1989. However, because both parties failed to provide additional evidence concerning the value of the plant, the hearing was continued until such material could be provided. On May 18, 1989, additional materials were provided by the State Tax Commissioner's appraiser. During July 1989, Midwest provided its additional material. On August 21, 1989, the Board made an on-site inspection of the plant.\\nOn August 28, 1989, the Board reconvened to conclude the hearing. At the close of the evidence, the Board requested both sides to provide additional evidence concerning the issue of economic obsolescence. The State Tax Commissioner's appraiser provided supplemental evidence in the form of a letter on September 8, 1989. Midwest provided additional evidence on September 18, 1989. On November 7, 1989, the Board signed its findings of fact and conclusions of law, and determined the value of the property to be $6,948,694.\\nMidwest appealed the decision of the Board to the District Court for the Northeast Judicial District. On March 21, 1990, the district court remanded the case to the Board for the consideration of additional evidence.\\nIn early 1990, Midwest initiated a request for an abatement of its 1989 taxes. A hearing was subsequently held on April 30, 1990, before the Board. At that time, both parties agreed that any evidence provided during either the 1988 or 1989 hearings would be considered in both requests for abatement.\\nOn June 5, 1990, the Board determined that the value of the property for both requests, considering an economic obsolescence factor of 35%, to be $6,948,694. The two requests were combined for appeal. On August 1, 1990, the district court affirmed the Board's decision. This appeal followed.\\nOur standard of review, when considering the decision of a local taxing authority, is limited to determining whether or not the Board acted in an arbitrary, capricious, or unreasonable manner. Koch Hydrocarbon v. Bd. of Equalization, 454 N.W.2d 508 (N.D.1990); Riverview Place, Inc. v. Cass County, 448 N.W.2d 635 (N.D.1989); Ulvedal v. Board of County Commissioners, 434 N.W.2d 707 (N.D.1989); Shaw v. Burleigh County, 286 N.W.2d 792 (N.D.1979).\\nMidwest makes the following two assertions on appeal:\\n\\\"I. McHENRY COUNTY ARBITRARILY RELIED ON ECONOMIC OBSOLESCENCE AT THE RATE OP 35 PERCENT WITHOUT ANY EVIDENCE\\nII. THE JOHNSON \\u2014 SOO LINE\\u2014 SHAW STANDARD OF REVIEW SHOULD NOT APPLY TO VALUATION OF UNIQUE INDUSTRIAL PROPERTY\\\"\\nI. Economic Obsolescence.\\nMidwest asserts that the state appraiser (Barry Hasti) failed to adequately explain how he determined the amount of economic obsolescence. Mr. Hasti asserted that there are at least three methods of calculating the amount of economic obsolescence: 1) the amount of available production resources divided by the amount of production capacity; 2) the actual rate of return divided by the projected rate of return; and, 3) the original cost of the plant divided by the sales price of the plant. Mr. Hasti's appraisal, adopted by the Board, utilized the first of the above methods; i.e., the available supply of sunflower seeds was divided by the available processing capacity. The following table was provided by Mr. Hasti to illustrate his calculation of economic obsolescence under this method:\\n\\\"Table II\\nSUNFLOWER PRODUCTION AS PERCENT OF CRUSH CAPACITY\\nNorth Dakota Percent of\\nProduction, North Dakota\\nYear metric tons_Crushing Capacity\\n(000)\\n1985 892 73.4%\\n1986 731 60.2\\n1987 814 66.9\\n1988 499 41.0\\nThese calculations are based upon an optimum crushing capacity of 1,215,450 metric tons per year.\\nMidwest contends that Mr. Hasti subjectively determined the amount of economic obsolescence as opposed to utilizing an accepted mathematical formula. We disagree.\\nWhen we consider the table, the following estimates of economic obsolescence are shown: 1985 \\u2014 26.6% (100% \\u2014 73.4% = 26.6%); 1986 - 39.8% (100% - 60.2% = 39.8%); 1987 - 33.1% (100% - 66.9% = 33.1%); 1988 \\u2014 a discussion of Mr. Hasti's exclusion of 1988 figures from his estimate can be found in the following section of this opinion. An average of the years 1985-1987 yields an economic factor of 33.17%. Estimates of economic obsolescence necessarily involve appraisal judgment and the very nature of economic obsolescence defies measurement. See generally, Truitt Bros., Inc. v. Department of Revenue, 302 Or. 603, 732 P.2d 497, 502 (1987); Appeal of Colonial Pipeline Co., 318 N.C. 224, 347 S.E.2d 382, 389 (1986). We cannot conclude Mr. Hasti acted subjectively in estimating economic obsolescence at 35% when that figure only varies 1.83% from the average of the calculations provided in the above table. The above table, which was included within a three-page memorandum concerning economic obsolescence, submitted to the Board by Mr. Hasti at the request of the Board, adequately shows that Mr. Hasti did not \\\"subjectively\\\" determine the amount of economic obsolescence.\\nMr. Hasti's memorandum does raise two related questions. Our first question is whether or not it was proper for the state appraiser to ignore the low level of production in 1988 on the basis that the low production during that year was due to dry weather conditions; the above table indicates that in 1988 only 41% of the crushing capacity was used which appears to indicate an economic obsolescence factor of 59%.\\nMidwest, in a letter to the McHenry Board of County Commissioners dated September 18, 1989, defines economic obsolescence as:\\n\\\"Economic Obsolescence may be defined as follows: 'Impairment of desirability or useful life arising from factors external to the property, such as economic forces or environmental changes which affect supply-demand relationships in the market. Loss in the use and value of a property arising from the factors of economic obsolescence is to be distinguished from loss in value from physical deterioration and functional obsolescence, both of which are inherent in the property. Also referred to as Locational or Environmental Obsolescence.' Boyce, Byrl N., Real Estate Appraisal Terminology\\\"\\nA similar definition was provided by the Supreme Court of Kansas:\\n\\\" 'The loss in usefulness of an asset, occasioned by the approach to the stage of economic uselessness through progress of the arts; economic inutility arising from external causes. Obsolescence refers to disappearing usefulness resulting from invention, change of style, legislation, or other causes having no physical relation to the object affect-ed_' (Emphasis added.)\\\"\\nNorthern Natural Gas Company v. Dwyer, 208 Kan. 337, 492 P.2d 147, 163 (1971) (quoting E.L. Kohler, \\\"A Dictionary for Accountants\\\" (3rd Ed.)). See Ames v. C.I.R., 626 F.2d 693, 696 (9th Cir.1980); Governours Square Apts. v. State Bd. of Tx Com'rs, 528 N.E.2d 864, 866 (Ind.Tax 1987); Meridian Hills Country Club v. State Bd. of Tax Com'rs, 512 N.E.2d 911, 915 (Ind.Tax 1987); Truitt Bros., Inc. v. Dept. of Revenue, 302 Or. 603, 732 P.2d 497, 502 (1987); Anaconda Co. v. Property Tax Dept., 94 N.M. 202, 207, 608 P.2d 514, 519 (N.M.App.1980); Piazza v. Town Assessor of Town of Porter, 16 A.D.2d 863, 228 N.Y.S.2d 397, 398 (1962). Essentially, economic obsolescence is a form of depreciation which may be applicable when physical depreciation fails to adequately recognize the decline in value. Anaconda, 94 N.M. at 207, 608 P.2d at 519 (quoting 4 Martens, Law of Federal Income Taxation \\u00a7 23.104 (1973)). Like physical depreciation, economic obsolescence provides a method for determining the remaining value of the useful life of an asset. Id.; Ames, 626 F.2d at 695.\\nEconomic obsolescence may result from a number of different factors, but an element of incurable or permanent impairment prevails throughout all of the potential causes. See Governours Square Apts., 528 N.E.2d at 866; Meridian Hills Country Club, 512 N.E.2d at 915; Anaconda, 94 N.M. at 207, 608 P.2d at 519. As we noted above, Mr. Hasti's calculations appear to indicate that in 1988 the economic obsolescence factor was 59%; i.e., only 41% of the crushing capacity was utilized. However, Mr. Hasti also added the following note:\\n\\u00ab production was down in 1988 compared to 1987 in spite of an increase in the number of acres planted. The cause of the decrease may be attributed to the dry weather conditions for the 1988 crop year.\\\"\\nWe do not believe that dry weather conditions during one growing season constitute incurable or permanent impairment of the useful life of the plant. Therefore, Mr. Hasti did not act arbitrarily by not basing his calculation of economic obsolescence on the 1988 growing season.\\nOur second question concerning Mr. Hasti's appraisal is how the unprofitability of the current operations affects the calculation of economic obsolescence. Although it may be considered as a factor in determining the amount of obsolescence, unpro-fitability absent an impairment of useful life is not sufficient to establish economic obsolescence. In this respect, the Ninth Circuit Court of Appeals has said:\\n\\\"[I]t is clear that useful life should not be revised to reflect competitive failure of the venture in which the asset is used, to which it is perhaps uniquely adapted, but for whose failure in the market place its condition and design are blameless. The deduction is not intended to bail out business efforts that fail in the market place. Thus, the unprofitability of an asset is insufficient to establish obsolescence. Detroit & Windsor Ferry Co. v. Woodworth, 115 F.2d 795 (6th Cir.1940); State Line & Sullivan R. Co. v. Phillips, 98 F.2d 651 (3d Cir.), Cert. denied, 305 U.S. 635, 59 S.Ct. 103, 83 L.Ed. 408 (1938); Zimmerman, supra, 67 T.C. [94] at 107.\\\" [(1976)]\\nAmes, 626 F.2d at 697. Similar reasoning has also been expressed by the Kansas Supreme Court:\\n\\\" ' . It thus becomes apparent that while the rental value of the property fluctuated, its life is in no wise diminished, and to grant taxpayer the relief it here seeks would be the equivalent of aiding it to recoup fluctuation losses. Manifestly, the life of the property has many years to run, and it can be used throughout its normal life. The unprofitable nature of a business or the mere shrinkage in value of commodities is not a sufficient basis upon which to predicate an allowance for obso-lescence_' [Emphasis provided.]\\\"\\nNorthern Natural Gas Co., 492 P.2d at 163 (quoting Southeastern Bldg. Corp. v. Commissioner of Int. Rev., 148 F.2d 879, 880 (5th Cir.1945)). We agree that unpro-fitability, absent an impairment of useful life, does not establish economic obsolescence.\\nMr. Hasti was correct in his determination that the year in which crop production declined as a result of temporary dry conditions should not form the basis for his calculation of economic obsolescence. Although the supply of sunflower seeds was reduced as a result of the dry conditions, the useful life of plant was not impaired by the temporary reduction in supply. We also agree that unprofitability that does not affect the useful life of an asset should not increase the level of economic obsolescence.\\nMidwest, through professional appraiser Andrew Runge, submitted evidence that Mr. Hasti had acted arbitrarily. During deposition testimony, Mr. Runge said that in his opinion Mr. Hasti's valuation of economic obsolescence was arbitrary. Mr. Runge testified that he believed the 35% estimate of economic obsolescence was arrived at through a compromise in a similar case involving Cargill Plant, Riverside, North Dakota, where Mr. Hasti had determined economic obsolescence of 5% and Mr. Runge had estimated it to be closer to 55%. A compromise figure of 35% was agreed upon. In light of what we have previously said of Mr. Hasti's estimate, we cannot agree that the Board's acceptance of Hasti's estimate was arbitrary, capricious, or unreasonable.\\nMidwest also asks this Court to consider the decision of the District Court for the Southeast Judicial District in National Sun Industries, Inc. v. Ransom County, Civ. No. 90-054. Midwest contends that in National Sun the economic obsolescence factor was determined to be much higher. Midwest is bound on appeal to the record it made below. See Evenson v. Hlebechuk, 305 N.W.2d 13, 16 (N.D.1981). We therefore decline to consider the district court's decision in National Sun.\\nIn summary, if, for the sake of argument only, we were to consider that Midwest has submitted an estimate of 67% or 68% economic obsolescence by reference to National Sun, the Board was presented with two conflicting estimates of economic obsolescence.\\n\\\"Our limited scope of review does not permit a court to weigh conflicting evidence to determine which version is more convincing. The Board, not a court, is responsible for weighing factual material for tax purposes.\\\"\\nKoch, 454 N.W.2d at 513. Issues of economic obsolescence involve elements of appraisal judgment which may result in differing results by reasonable appraisers. See generally, Appeal of Colonial Pipeline Co., 347 S.E.2d at 389. The Supreme Court of Oregon recently described economic obsolescence as:\\n\\\" '[T]hat ghostly apparition, [a] spirit whose presence may be discerned but whose intangible nature defies measurement, it confuses and chills the marketplace.' [Citation omitted.]\\\"\\nTruitt Bros., Inc., 732 P.2d at 502.\\nThe Board made a determination that Mr. Hasti provided an accurate assessment of economic obsolescence rather than acting subjectively as Mr. Runge contended for Midwest. Having reviewed the findings of the Board in light of the record, we conclude that there is no basis for determining that the Board acted arbitrarily, capriciously, or unreasonably.\\nMidwest, in a footnote and in its statement of facts, contends that the Board's appraisal of the plant is arbitrary because it is 250% higher than the purchase price; we note that Midwest in its statement of facts claims the purchase price was 5.5 million but the applications for abatement state that the purchase price was $6,750,-000. Actually, the entire plant was built in 1980-1982 at a cost of approximately 58 million. Midwest's main thrust in this appeal is that the Board erred in deducting only 35% for economic obsolescence, but it buttresses its argument by saying that any appraisal that values the real property of the plant at 250% of the purchase price of the entire plant (including the real and personal property) must be arbitrary.\\nWe have previously recognized that there are three methods of valuating real property: (1) comparable sales; (2) the cost approach; and (3) the income approach. Ulvedal v. Board of County Commissioners, 434 N.W.2d 707, 711, n. 3 (N.D.1989). Mr. Hasti used the cost approach in determining the value of the plant, and provided a detailed letter describing his determination.\\nMidwest appears to contend that an appraisal of 250% of the purchase price indicates arbitrariness in and of itself. We have previously said that a board is free to adopt the cost method of valuation. Id. at 711. As in Ulvedal, the Board had a range of values to consider and elected to rely upon Mr. Hasti's cost approach, which included his estimates of economic obsolescence, rather than Midwest's purchase price and its contended economic obsolescence based upon the findings of a trial court not before us. Id. In Koch Hydrocarbon v. Bd. of Equalization, 454 N.W.2d 508, 513 (N.D.1990), we recently said that a board may even rely on hearsay for evidence of why the purchase price does not accurately reflect the true value of the property. In light of the fact that the Board relied upon an accepted method of valuating the plant, and Midwest offers no support for its position other than the general assertion that a valuation 250% above purchase price must be arbitrary, we cannot conclude that the Board's valuation, although significantly higher than purchase price, was arbitrary. As we said in Ulvedal:\\n\\\"We can understand the taxpayers disappointment, but we are not convinced that the Board abused its authority by acting arbitrarily and unreasonably.\\\"\\n434 N.W.2d at 711.\\nII. Standard of Review.\\nMidwest contends that because of the unique nature of the industry involved, we should apply a heightened scrutiny in our review of the Board's decision. The core of Midwest's argument for the application of heightened scrutiny is that although a Board of County Commissioners is well-suited for determining the value of farmland and local commercial properties, it lacks the requisite knowledge and skill necessary for valuing unique and complex industries. Midwest cites no authority for its proposition.\\nIt is well established that our review of the decisions of local taxing authorities is limited, under the separation of powers, to determining whether or not the decisions are arbitrary, capricious, or unreasonable. Koch Hydrocarbon v. Bd. of Equalization, 454 N.W.2d 508 (N.D.1990); Riverview Place, Inc. v. Cass County, 448 N.W.2d 635 (N.D.1989); Ulvedal v. Board of County Commissioners, 434 N.W.2d 707 (N.D.1989). We disagree with Midwest's contention that it is necessary to impose a \\\"heightened\\\" standard of review. In the case at bar, the Board took approximately nine months to determine the value of the plant. On several occasions the Board requested and received additional evidence and it made an on-site inspection of the plant. In our opinion the Board recognized its limitations and then proceeded to compensate for those limitations by receiving additional evidence. Applying a heightened scrutiny in cases such as this would not comport with our view of the need to recognize the division of powers between the legislative and the judicial branches of our government. We have previously noted:\\n\\\"[T]hat the scope of judicial review of non-judicial decisionmaking is, under the separation of powers, limited to whether the decision is arbitrary, capricious, or unreasonable.\\\"\\nKoch, 454 N.W.2d at 511.\\nFor the reasons stated above, the judgment is affirmed.\\nGIERKE and LEVINE, JJ., and VERNON R. PEDERSON, Surrogate Justice, concur.\\nVERNON R. PEDERSON, Surrogate Judge, sitting in place of MESCHKE, J., disqualified.\\nProduction was down in 1988 compared to 1987 in spite of an increase in the number of acres planted. The cause of the decrease may be attributed to the dry weather conditions for the 1988 crop year.\\\"\\n. The state appraiser based his calculations upon North Dakota sunflower production and the crushing capacity available in North Dakota. The state appraiser calculated the available North Dakota crushing capacity as follows:\\nCrush Capacity Plant_metric tons/day\\nCargill, Riverside, ND 1,200\\nMPC, Velva, ND 1,000\\nNSI, Enderlin, ND 1,500\\nND crush capacity 3,700 MT/day\\n*\\nThe total annual crush capacity, of the three plants in North Dakota, is 3,700 MT/day times 365 days = 1,350,500 MT. Optimum efficiency has been expressed as 90% of the capacity because of downtime for maintenance. Annual optimum crush capacity is 1,350,500 MT times 90% = 1,215,450 MT.\\n. We recognize that an increase in the future production of sunflower seeds may result in a reduction or even the elimination of economic obsolescence. See also, Ames v. C.I.R., 626 F.2d 693, 697 (9th Cir.1980). While this may seem contrary to what we have just noted concerning incurable permanent nature of obsolescence, it is not so when we consider that the initial determination is based upon a reasonable belief that the economic obsolescence is incurable. The state appraiser has reasonably concluded that the plant's useful life has been incurably impaired by approximately 35%.\"}"

nd/10644148.json

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+"{\"id\": \"10644148\", \"name\": \"NORTH DAKOTA PUBLIC SERVICE COMMISSION, Petitioner and Appellee, v. WOODS FARMERS COOPERATIVE ELEVATOR COMPANY, Leonard, North Dakota, Respondent and Appellee, and Farmland Mutual Insurance Company, Respondent and Appellant\", \"name_abbreviation\": \"North Dakota Public Service Commission v. Woods Farmers Cooperative Elevator Co.\", \"decision_date\": \"1992-06-11\", \"docket_number\": \"Civ. No. 910209\", \"first_page\": 860, \"last_page\": \"867\", \"citations\": \"488 N.W.2d 860\", \"volume\": \"488\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:45:57.030885+00:00\", \"provenance\": \"CAP\", \"judges\": \"MESCHKE and LEVINE, JJ., and LAWRENCE E. JAHNKE, District Judge, concur.\", \"parties\": \"NORTH DAKOTA PUBLIC SERVICE COMMISSION, Petitioner and Appellee, v. WOODS FARMERS COOPERATIVE ELEVATOR COMPANY, Leonard, North Dakota, Respondent and Appellee, and Farmland Mutual Insurance Company, Respondent and Appellant.\", \"head_matter\": \"NORTH DAKOTA PUBLIC SERVICE COMMISSION, Petitioner and Appellee, v. WOODS FARMERS COOPERATIVE ELEVATOR COMPANY, Leonard, North Dakota, Respondent and Appellee, and Farmland Mutual Insurance Company, Respondent and Appellant.\\nCiv. No. 910209.\\nSupreme Court of North Dakota.\\nJune 11, 1992.\\nWilliam W. Binek (argued), Asst. Atty. Gen., Public Service Com\\u2019n, State Capitol, Bismarck, for petitioner and appellee North Dakota Public Service Com\\u2019n.\\nKaler Law Office, Fargo, for respondent and appellee Wayne Drewes, as Bankruptcy Trustee for Woods Farmers Co-op. Elevator Co.; argued by Kip M. Kaler.\\nMcNair, Larson & Carlson, Ltd., Fargo, for respondent and appellant Farmland Mut. Ins. Co.; argued by Bruce H. Carlson. Appearance by David J. Hauff.\\nSerkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for amicus curiae St. Paul Bank for Cooperatives; argued by Roger J. Minch.\\nLowell P. Bottrell, Anderson & Bailly, Fargo, for amicus curiae Roesler Land & Cattle, Roger McDonald & Carman Lynnes d/b/a Lynnes Farms & Brian McDonald. Brief filed.\\nDavid T. DeMars and Jay D. Carlson, DeMars & Turman, Fargo, for amicus curiae James E. Nygard. Brief filed.\", \"word_count\": \"4146\", \"char_count\": \"25390\", \"text\": \"ERICKSTAD, Chief Justice.\\nFarmland Mutual Insurance Company (Farmland), the surety on a warehouseman's bond for Woods Farmers Cooperative Elevator Company (Woods), appealed from a district court judgment requiring it to pay to the North Dakota Public Service Commission (PSC) the sum of $780,000 for the payment of claims in accordance with the PSC's report and recommendation, as amended by the district court. We affirm in part and modify the judgment.\\nWoods, a licensed grain warehouse, filed a petition for liquidation under Chapter 7 of the Bankruptcy Code on April 13, 1989. Wayne Drewes was appointed trustee of the bankruptcy estate. On May 22, 1989, the bankruptcy court lifted the automatic stay of 11 U.S.C. \\u00a7 362 to permit the PSC to pursue claims against Woods' warehouseman's bond. On June 7, 1989, the bankruptcy court authorized Drewes to sell the grain in Woods' facilities and to incur reasonable and necessary expenses in selling the grain. Drewes sold the grain for $1,603,459.94. The bankruptcy court authorized Drewes to distribute monies in the grain fund and to withhold fees and expenses totaling $118,781.86, which included trustee fees, attorney fees, a fee to Chaf-ee-Lynchberg Farmers Elevator for assisting in the liquidation of grain, transportation expense, and storage fees.\\nOn November 13, 1989, the district court appointed the PSC as statutory trustee un der Ch. 60-04, N.D.C.C., for the purpose of proceeding against the warehouseman's bond and distributing the proceeds. The PSC issued its report and recommendation on August 27, 1990. Farmland, claimant James E. Nygard, and Drewes objected to the PSC's report and recommendation. After a hearing on December 21, 1990, the trial court issued findings of fact, conclusions of law, and an order on May 7, 1991. The trial court found that the grain on hand in the elevator at insolvency was sufficient to pay the claims against it; that the costs of $118,781.86 that Drewes deducted from the grain proceeds were reasonable and necessary; and that James E. Nygard was a grain claimant and was also a debtor because of an unpaid check he had issued to Woods for $48,948.00. The court also found:\\n\\\"4. The Report and Recommendation of the Trustee allows Mr. Nygard a claim for 11,689 bushels of durum for a total ticket claim of $63,938.83. However, this claim is reduced by a contract advance of $48,948.00, leaving a proposed allowed claim of $14,990.83, with interest for a proposed total distribution of $17,088.10. Mr. Nygard and the Bankruptcy Trustee, Wayne Drewes, object to any setoff of liabilities owed by Mr. Nygard to the Woods Elevator.\\n\\n\\\"6. The PSC and Farmland were involved and participated in the process in Bankruptcy Court. Farmland specifically objected to Mr. Nygard's claim in Bankruptcy Court. Nevertheless, the full claim of $63,938.83 was allowed without any setoff. Neither the PSC or Farmland has appealed that Order, nor have they obtained relief from the automatic stay to perform a setoff.\\\"\\nThe trial court made the following conclusions of law:\\n\\\"1. Farmland is liable on its bond for all claims, including Trustee's fees, expenses, and costs.\\n\\\"2. The United States Bankruptcy Court has exclusive jurisdiction to resolve setoff and issues determining claims against property belonging to a debtor in Bankruptcy proceedings.\\n\\\"3. The United States Bankruptcy Court's Orders regarding the claims of James E. Nygard are res judicata.\\\"\\nThe trial court ordered: (1) that the PSC's report and recommendation \\\"is ordered amended to allow a claim for James E. Nygard for durum in the amount of $63,-938.83, together with interest on that amount without setoff for $48,948.00 or any reduction\\\"; (2) that Farmland \\\"deposit the total amount of the bond, $780,000.00, with the [PSC] for inclusion in the trust account\\\"; and (3) that the PSC \\\"pay all claims as established in the Report and Recommendation of the Trustee as amended.\\\" Judgment was entered accordingly and Farmland appealed.\\nFarmland contends that its \\\"liability on the bond is determined by State Law irrespective of how the grain was handled by the Bankruptcy Court\\\" and that \\\"[t]he Trial Court erred in holding that the Bankruptcy Court's determination of the claim of James E. Nygard was res judicata.\\\"\\nOne of the primary disputes in this appeal is with regard to Nygard's durum claim for $63,938.83, which the bankruptcy court allowed, but which the bankruptcy trustee did not pay because there was no durum on hand at the time of Woods' insolvency, and with regard to whether that claim should be paid in full or reduced by an offset of $49,948.00 for an unpaid check Nygard had issued to Woods. The bankruptcy court allowed the claim and did not order an offset. The trial court found, however, that the bankruptcy court \\\"provided that when the claim was paid, Mr. Nygard would pay the $48,948.00 check.\\\" The trial court concluded that the bankruptcy court's orders \\\"regarding the claims of James E. Nygard are res judicata\\\" and ordered that Nygard's durum claim for $63,938.83 be paid \\\"without setoff for $48,-948.00 or any reduction.\\\"\\nAlthough we need not determine, as the trial court did, that the bankruptcy court's orders regarding Nygard's claim and debt are res judicata, we believe that deference to the bankruptcy court's orders in this warehouseman's bankruptcy proceedings is appropriate. As a result of bankruptcy court rulings, other rights have intervened. The St. Paul Bank for Cooperatives has a perfected security interest in Woods' accounts receivable, including Ny-gard's unpaid check to Woods for $48,-948.00. Nygard's durum was subject to a government loan when he sold it to Woods. Nygard gave Woods a check for $48,948.00 to purchase spring wheat to replace the durum. The spring wheat was then subject to the government loan and has been forfeited to the Commodity Credit Corporation. Such intervening equities suggest the desirability of deference to the bankruptcy court's decisions. Further suggesting the appropriateness of such deference is a need for comity among coordinate courts called upon to resolve disputes arising upon the insolvency of a public warehouseman. Litigation in state court and in bankruptcy court raises the possibility of inconsistent rulings on similar issues. We will ordinarily give effect to bankruptcy court decisions as a matter of comity to avoid the prospect of \\\"the state and federal courts . reaching different results, ultimately resulting in unseemly and unnecessary conflict as each properly sought to enforce its determinations\\\" [NoDak Bancorporation v. Clarkson, 471 N.W.2d 140, 144 (N.D.1991) ]. Thus, we will not pass judgment anew on decisions made in the bankruptcy proceedings by deciding the issues raised in this appeal as though the PSC had liquidated the grain in Woods' facilities and there had been no bankruptcy proceedings.\\nThe trial court found that the grain on hand at Woods elevator at insolvency was sufficient to pay the grain claims against it. However, Drewes did not distribute approximately $200,000 of the grain proceeds to grain claimants and Farmland argues that it is entitled to a credit in the amount of grain proceeds not distributed to grain claimants. The trial court's decision makes Farmland liable for $118,781.86 withheld from the grain proceeds by the bankruptcy trustee for costs and fees. Farmland argues that \\u00a7 60-04-09, N.D.C.C., authorizes the deduction from trust fund assets of expenses incurred by the PSC, but that \\\"[tjhere is no requirement that the bonding company be liable for any other fees or costs other than those incurred by the PSC.\\\" Farmland argues that the trial court erred in accepting the PSC's report and recommendation, which did not provide for offsets under \\u00a7 60-04-09, N.D.C.C., other than as to the Nygard claim. Farmland is essentially arguing that its liability is limited to what it would have been if the PSC, rather than the bankruptcy trustee, had liquidated the grain in Woods' facilities. We disagree.\\nSection 60-02-09, N.D.C.C., requires an applicant for a public warehouseman's license to file a bond \\\"for the benefit of all persons storing or selling grain in such warehouse . conditioned [on] . faithful performance of the licensee's duties as a public warehouseman\\\" and \\\"for the specific purpose of:\\n\\\"a. Protecting the holders of outstanding receipts.\\n\\\"b. Covering the costs incurred by the commission in the administration of chapter 60-04 in the event of the licensee's insolvency.\\\"\\nSection 60-04-03.1, N.D.C.C., provides that, upon the insolvency of a warehouseman, a trust fund consisting of, among other things, grain in the warehouse or its proceeds and the warehouseman's bond, \\\"shall be established for the benefit of receipt holders of the insolvent warehouseman and to pay the costs incurred by the [PSC] in the administration of this chapter.\\\" Section 60-04-06, N.D.C.C., provides that the PSC may bring suits for the benefit of receipt holders \\\"for the purpose of marshaling all of the trust fund assets and distributing the same among the receipt holders.\\\" That section also provides the order in which the PSC shall exercise recourse against the trust fund assets: (1) grain, (2) insurers of grain, (3) the warehouseman's bond, and (4) a person honestly converting grain, unless the PSC deems it necessary to pursue all its remedies at the same time. Section 60-04-09, N.D.C.C., provides in part:\\n\\\"Upon the receipt and evaluation of claims filed with it, the commission shall file with the court a report showing the amount and validity of each claim after recognizing:\\n\\n\\\"3. Deductions therefrom by reason of advances or offsets accrued in favor of the warehouseman.\\n\\n\\\"5. In the case of scale tickets or warehouse receipts, the amount thereof based upon the market price prevailing on the date of the insolvency, with interest at the weighted average prime rate charged by the Bank of North Dakota since the date of the insolvency-\\n\\\"The report must also contain a proposed distribution of the trust fund assets, less expenses incurred by the commission in the administration of this chapter, to claimants as their interests are determined....\\n*\\n\\\"Following hearing, the court shall approve or modify the report and issue an order directing payment of the necessary bond proceeds, distribution of the trust fund, and discharge of the commission from its trust.\\\"\\nChapter 60-04, N.D.C.C., provides \\\"an insolvency procedure 'designed to provide a prompt method for receipt holders to recover their claims.' \\\" North Dakota Public Serv. Comm'n v. Jamestown Farmers Elevator, Inc., 422 N.W.2d 405, 407 (N.D.1988), quoting North Dakota Public Serv. Comm'n v. Valley Farmers Bean Ass'n, 365 N.W.2d 528, 547 (N.D.1985). \\\"[T]he trust fund exists for the benefit of all unpaid sellers of grain.\\\" North Dakota Public Serv. Comm'n v. Central States Grain, Inc., 371 N.W.2d 767, 779 (N.D.1985). As we further said in Central States Grain, supra, 371 N.W.2d at 779:\\n\\\"The overriding purpose of requiring warehouseman's bonds is to protect all persons who sell or deliver grain to a warehouseman.... A surety's liability on a bond is conditioned on the faithful performance of a public warehouseman's duties under the law. We believe it to be beyond dispute that one of a warehouseman's duties under the law is to pay for the grain that it has purchased.\\\" (Citations omitted.)\\nIn the case of stored grain, \\\"[a] public warehouseman is liable to the owner for the delivery of the kind, grade, quality, and quantity of grain called for by the warehouse receipt.\\\" Section 60-02-22, N.D.C.C. \\\"The obvious purpose of Chapter 60-04, N.D.C.C., is to aid receipt holders in redeeming their warehouse receipts by making the PSC the trustee of insolvent grain warehousemen with the duty of redeeming said receipts for as close to their full value as possible.\\\" State ex rel. Public Serv. Comm'n v. R.F. Gunkelman & Sons, Inc., 219 N.W.2d 853, 859 (N.D.1974). See also North Dakota Public Serv. Comm'n v. Valley Farmers Bean Ass'n, supra, 365 N.W.2d at 540.\\nIn Central States Grain, supra, the grain in the North Dakota facility was liquidated by a bankruptcy trustee appointed after Central States Grain filed a petition for relief under Chapter 7 of the Bankruptcy Code. The proceeds of the sale were placed in the bankruptcy account. The PSC did not recover either the grain or its proceeds for the trust fund, but proceeded against the warehouseman's bond. The bonding company [Millers National Insurance Company] argued that \\\"because there was sufficient sunflower inventory to cover all valid claims, Millers should not be liable for any amount in these proceedings.\\\" Central States Grain, supra, 371 N.W.2d at 774. This court held, however:\\n\\\"Where, as in this case, there is in effect no 'grain in said warehouse' [\\u00a7 60-04-02(1), N.D.C.C.] at the time the PSC is appointed trustee, the PSC may seek to recover the penal sum of the warehouseman's bond for inclusion in the trust fund. We conclude that under the circumstances of this case, the district court had the authority to enter judgment against Millers even though the PSC took no steps to attempt to recover the proceeds of the sale by the bankruptcy trustee of CSG's sunflower inventory.\\\"\\nUnder Central States Grain, the exposure to liability to receipt holders by a surety on a warehouseman's bond is reduced only to the extent that the receipt holders are able to recover from the bankruptcy trustee. The warehouseman's bond can be reached for any shortfall. Only through such a construction of the relevant statutes may the \\\"law's purpose of settling the legitimate demands of those producers who store or sell grain with an insolvent warehouseman\\\" be met. Central States Grain, supra, 371 N.W.2d at 779.\\nRelying on North Dakota Public Serv. Comm'n v. Jamestown Farmers Elevator, Inc., supra, Farmland contends that it should not be liable on the warehouseman's bond because \\\"the acts which precipitated the claims against the bond were those which took place subsequent to Bankruptcy and over which the warehouseman could not have placed any control or influence.\\\" Farmland's reliance on that case is misplaced. That case represents a narrow exception to the rule of liability expressed in such cases as R.F. Gunkelman & Sons, Inc., Valley Farmers Bean Ass'n, and Central States Grain. In Jamestown Farmers Elevator, Inc., supra, 422 N.W.2d at 408, we held:\\n\\\"Under \\u00a7 60-02-09 and 60-04-02, N.D.C.C., Farmland was required to insure only JFE's faithful performance of its duties as a public warehouseman. The statutes did not require that Farmland's bond insure the faithful performance of the bankruptcy trustee's duties. Farmland is, therefore, not liable for any loss suffered by CCC as a result of deterioration in the quality of the grain while it was in the custody and control of the bankruptcy trustee.\\\"\\nWe held that the bonding company was not liable for losses caused by deterioration in the quality of the grain resulting from the bankruptcy trustee's egregious neglect of the grain while it was in his custody and control. In this case, there has been no assertion of any neglect on the part of the bankruptcy trustee, and Jamestown Farmers Elevator, Inc., is inapposite.\\nTo limit bond coverage in the manner urged by Farmland \\\"would effectively reduce the protection available to producers for whose benefit and protection the statute was designed.\\\" Valley Farmers Bean Ass'n, supra, 365 N.W.2d at 539. Under our statutes governing grain warehouses, grain receipt holders are entitled to be made whole, if possible, when a warehouseman becomes insolvent. A warehouseman is required to furnish a bond to provide that protection to producers who deliver grain for sale or storage. The receipt holders in this case have not been made whole. Farmland is, therefore, liable under its bond to the extent necessary to make the receipt holders whole after deducting what they have received from the bankruptcy trustee. We conclude that the trial court properly held Farmland so liable.\\nIf Farmland believes it is entitled to a credit for the amount of grain proceeds not distributed to grain claimants, or should not be held responsible for paying the bankruptcy trustee's costs and expenses because they should not have been withheld from the grain proceeds, or is entitled to the deduction of offsets, its remedy is not to leave receipt holders unpaid but to seek relief in the bankruptcy proceedings. Once Farmland has paid the claims of receipt holders, it may seek relief in the bankruptcy proceedings. See In re Woerner, 19 B.R. 708, 711 (Bkrtcy.D.Kan.1982):\\n\\\"Section 509(a) recognizes this arrangement and grants to the third party a right to subrogation to the creditor's claim when payments on behalf of the debtor are actually made. The subrogation rights under \\u00a7 509(a) extend to both co-debtors and sureties. (Citations omitted.) Thus the surety with a right of subrogation stands in the place of one whose claim he has paid.... United States v. Munsey Trust Co., 332 U.S. 234, 242, 67 S.Ct. 1599, 1603, 91 L.Ed. 2022 (1947).\\\"\\nSee also In re Hall, 99 B.R. 425 (Bkrtcy.N.D.Iowa 1989), holding that Farmland Mutual Insurance Company, a bonding company that had paid a claim filed by a farmer who was unpaid when the grain merchant to whom he had sold grain filed a bankruptcy case, could file a claim in the bankruptcy case. The court in Hall also noted: \\\"It is the obligation of the bonding company to make good the loss to Cowan [the unpaid farmer who had sold grain to Hall.]\\\" Id., at 428.\\nWe are concerned with the dissent's assertion that \\\"the position of the bankruptcy trustee creates an inherent unfairness\\\" and its reference to the doctrine of res judicata. The fact that the bankruptcy court may have a different view of how to dispose of grain claims upon liquidation of the grain held by an insolvent warehouseman than either this court or the PSC ought not be attributed to the bankruptcy trustee. Although the trial court concluded that the bankruptcy court orders on the Nygard claims are res judicata, we have not made such a determination. In fact, we have suggested that, if it believes it is entitled to the deduction of offsets, Farmland's remedy is \\\"to seek relief in the bankruptcy proceedings.\\\"\\nFor the reasons stated, the judgment is affirmed as modified.\\nMESCHKE and LEVINE, JJ., and LAWRENCE E. JAHNKE, District Judge, concur.\\nLAWRENCE E. JAHNKE, District Judge, sitting as a member of the Court to fill the vacancy created by the resignation of Justice H.F. Gierke III. Justice Johnson, not being a member of this Court at the time this case was heard, did not participate in this decision.\\n. The judgment requires Farmland to \\\"immediately pay over to the North Dakota Public Service Commission for deposit in the Trust Fund the sum of $780,000, which is the penal sum of the bond.\\\" Less than $780,000 will be necessary to pay the claims on the bond. In its report and recommendation, the PSC reported \\\"a total payable to claimants as of August 22, 1990, of $289,066.44.\\\" The PSC also reported that interest was continuing to accrue. The PSC requested that the trial court order Farmland \\\"to immediately deposit funds necessary to pay approved claims, plus interest, into the trust fund.\\\"\\nThe PSC's report and recommendation allowed James E. Nygard's durum claim for $63,-938.83, but reduced it by an offset of $48,948.00. The trial court ordered the report and recommendation amended to allow Nygard's claim for $63,938.83, without any offset. Adjusted for that amendment, PSC's report and recommendation would show a total payable to claimants as of August 22, 1990, of $338,014.44. Instead of ordering Farmland to pay the PSC $780,000 for deposit in the trust fund, we direct that the judgment be modified to order Farmland to immediately deposit funds necessary to pay approved claims, as amended by the trial court, plus interest that has accrued since the PSC presented its report and recommendation to the trial court. This modification will provide the PSC with the funds necessary to pay the claims allowed in its report, as amended by the trial court, plus interest, and will be in accord with its request that the trial court order Farmland \\\"to immediately deposit funds necessary to pay approved claims, plus interest, into the trust fund.\\\"\\n. Although NoDak Bancorporation v. Clarkson, supra, dealt with preemption, rather than comity, both doctrines seek to avoid different results and unnecessary conflict between state and federal courts.\\n. Some of the withheld grain proceeds not distributed to grain claimants was due to fees and expenses and some was due to the manner in which the bankruptcy court allocates grain on hand to grain claimants, which is different from the procedure used by the PSC when it liquidates grain held by an insolvent warehouseman. Nygard's durum claim for $63,938.83 was not paid by the bankruptcy trustee because there was no durum on hand at the time of Woods' insolvency.\"}"

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+"{\"id\": \"10646119\", \"name\": \"Gary L. PATTEN, Plaintiff and Appellant, v. Valery GREEN, Defendant and Appellee\", \"name_abbreviation\": \"Patten v. Green\", \"decision_date\": \"1985-06-10\", \"docket_number\": \"Civ. No. 10879\", \"first_page\": 105, \"last_page\": \"109\", \"citations\": \"369 N.W.2d 105\", \"volume\": \"369\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:16:26.054761+00:00\", \"provenance\": \"CAP\", \"judges\": \"VANDE WALLE and LEVINE, JJ., concur.\", \"parties\": \"Gary L. PATTEN, Plaintiff and Appellant, v. Valery GREEN, Defendant and Appellee.\", \"head_matter\": \"Gary L. PATTEN, Plaintiff and Appellant, v. Valery GREEN, Defendant and Appellee.\\nCiv. No. 10879.\\nSupreme Court of North Dakota.\\nJune 10, 1985.\\nGary L. Patten, Bismarck, submitted on brief, pro se.\\nValery Green, pro se.\", \"word_count\": \"2358\", \"char_count\": \"14147\", \"text\": \"GIERKE, Justice.\\nGary L. Patten filed an appeal from a district court's denial of his motion to proceed in forma pauperis. We hold that the case does not require a reversal of the district court's denial of his motion.\\nIn the instant case, the instrument from which Patten attempts to appeal is a letter from Judge Graff which denied Patten's motion to proceed in forma pau-peris. The letter is not an appealable order under \\u00a7 28-27-02 of the North Dakota Century Code. Nevertheless, this court may examine a district court's decision by invoking its supervisory authority. This court exercises its supervisory authority over district courts to prevent injustice in cases where there is no right to appeal or where the remedy by appeal is inadequate. \\u00a7 27-02-04, N.D.C.C.; Lang v. Glaser, 359 N.W.2d 884, 885 (N.D.1985). The supervisory power is purely discretionary. The instant case is not, in our opinion, a proper one for the exercise of our supervisory authority.\\nThe right to sue in forma pauperis is controlled by statute in most jurisdictions. See Cook v. District Court in & for Weld County, 670 P.2d 758, 760-761 (Colo.1983) [except in the case of petitioner's bad faith or plain frivolity, a trial court's discretion consists only of a determination of whether or not the petitioner is unable to pay]; Portis v. Evans, 249 Ga. 396, 291 S.E.2d 511, 513 (1982) [a plaintiff or defendant is entitled to proceed in forma pauperis until any other party in interest contests the truth of the pauper's affidavit]; Thompson v. St. Mary's Hospital of Duluth, 306 N.W.2d 560, 563 (Minn.1981) [trial court has broad discretion in determining whether or not expenses should be paid under the in forma pauperis statute]. Under Federal law, one must allege that he is unable to pay costs and, in addition, must state the nature of his action, defense, or appeal, and his belief that he is entitled to relief. North Dakota authorizes a waiver of filing fees in civil cases under \\u00a7 27-01-07, N.D. C.C.:\\n\\\"27-01-07. Civil action fees \\u2014 Waiver. Any filing fees connected with any civil action to be heard in any of the courts of the judicial system as listed in section 27-01-01 may be waived with or without a hearing, at the court's discretion, by the filing of an in forma pauper-is petition accompanied by a sworn affidavit of the petitioner relating the pertinent information regarding indigency.\\\" [Emphasis added.]\\nThis court has not yet set forth the standard of review which is applicable to an appeal from the denial of a petitioner's request to proceed in forma pauperis in a civil action. We have, however, determined that our review of a petitioner's denial of appointed counsel in a criminal prosecution is limited to whether or not the trial court has abused its discretion. State v. Jensen, 265 N.W.2d 691, 694 (N.D.1978). The right to appointed counsel is founded in Article I, \\u00a7 12 of the North Dakota Constitution , and in Rule 44 of the North Dakota Rules of Criminal Procedure. There is, however, no constitutional right to the waiver of fees in a civil action.- We therefore rely on the language of \\u00a7 27-01-07, N.D.C.C., as the basis for our review of the trial court's decision. Section 27-01-07, N.D.C.C., states that a court may, in its discretion, waive filing fees. Incidentally, there was no provision for the waiver of filing fees in a civil action prior to the enactment of \\u00a7 27-01-07 in 1977. We assume from reading \\u00a7 27-01-07 that the Legislature intended that a court is entitled to exercise its discretion in examining a request to proceed in forma pauperis. At the same time, the Legislature contemplated that a court would not be allowed to arbitrarily deny such a request.\\nWe therefore conclude that our review of the district court's decision is limited to determining whether or not the court abused its discretion. There has been no abuse of discretion exhibited by the court in the instant case.\\nPatten asserts that the district court should have granted his motion in the instant case because a federal court has granted him leave to proceed in forma pau-peris in another matter. The significance of the federal court's granting of his motion in another matter is of minimal value to either the district court or to this court in this particular case. Patten also appears to assume that his financial status is the only factor which is considered by the trial court in examining his motion. Indigency is indeed the threshold for the granting of leave to proceed in forma pauperis. Yet, even if indigency is alleged sufficiently, the trial court still has discretion to deny a petition according to the language of \\u00a7 27-01-07, N.D.C.C. As the Supreme Court of South Dakota stated in Peck v. South Dakota Penitentiary Employees, 332 N.W.2d 714, 716 (S.D.1983):\\n\\\"Indigency, however, does not create a constitutional right to expend public funds and valuable time of the federal courts to prosecute an action which is totally without merit.\\\" [citing Collins v. Cundy, 603 F.2d 825 (10th Cir.1979)].\\nThe court in Peck, supra, examined the federal courts' interpretations of the federal in forma pauperis statute in analyzing South Dakota's provision which was enacted in 1982.\\nAccording to Patten's affidavit, his action is an attempt to make Valery recompense him for instituting a theft of property charge against him and then dropping the charge a year later. Patten requested the following relief in his complaint against Valery Green:\\n1. A declaratory judgment stating that Valery's acts constituted theft, or attempted fraud, and that she was in violation of \\u00a7 12.1-11-03, N.D.C.C., which prohibits false reporting to a law enforcement officer.\\n2. $1,400 for costs incurred by Patten in protecting himself from Valery's alleged unlawful acts and in defending himself against a class C felony charge instituted by Valery.\\n3. $2,800 to compensate Patten for Valery's \\\"bad faith conduct, harassement [sic ], mental anguish\\n4. A jury trial.\\nThe trial court, as well as this court, has been presented with numerous actions filed by Patten concerning the rights of Gary Patten as well as those of Valery Green. Based on the knowledge that the trial court possessed regarding the circumstances of the instant case, we conclude that the court did not abuse its discretion in denying Patten's motion.\\nPatten's request to overturn the trial court's decision is denied.\\nVANDE WALLE and LEVINE, JJ., concur.\\nERICKSTAD, C.J., concurs in the result.\\n. 28 U.S.C. \\u00a7 1915 provides, in pertinent part; \\u00a7 1915. Proceedings in forma pauperis\\n\\\"(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.\\n\\\"An appeal may not be taken in forma pau-peris if the trial court certifies in writing that it is not taken in good faith.\\\"\\n. Article I, \\u00a7 12 of the North Dakota Constitution provides:\\n\\\"ARTICLE I\\n\\\"DECLARATION OF RIGHTS \\\"Section 12. In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.\\\"\\n. Rule 44, North Dakota Rules of Criminal Procedure, provides:\\n\\\"RULE 44\\n\\\"RIGHT TO AND ASSIGNMENT OF COUNSEL\\n\\\"Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at the defendant's expense if the defendant is unable to secure the assistance of counsel and is not indigent.\\\"\"}"

nd/10654775.json

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+"{\"id\": \"10654775\", \"name\": \"Mary J. ANDERSON, Plaintiff and Appellant, v. Charles D. ANDERSON, Defendant and Appellee\", \"name_abbreviation\": \"Anderson v. Anderson\", \"decision_date\": \"1985-05-22\", \"docket_number\": \"Civ. No. 10752\", \"first_page\": 566, \"last_page\": \"570\", \"citations\": \"368 N.W.2d 566\", \"volume\": \"368\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T23:11:12.868183+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and MESCHKE, LEVINE and VANDE WALLE, .JJ., concur.\", \"parties\": \"Mary J. ANDERSON, Plaintiff and Appellant, v. Charles D. ANDERSON, Defendant and Appellee.\", \"head_matter\": \"Mary J. ANDERSON, Plaintiff and Appellant, v. Charles D. ANDERSON, Defendant and Appellee.\\nCiv. No. 10752.\\nSupreme Court of North Dakota.\\nMay 22, 1985.\\nVogel Law Firm, Mandan, for plaintiff and appellant; argued by Anne E. Summers, Mandan.\\nMills & Moore, Bismarck, for defendant and appellee; argued by Sherry Mills Moore, Bismarck.\", \"word_count\": \"1759\", \"char_count\": \"10687\", \"text\": \"GIERKE, Justice.\\nMary J. Anderson (Mary), appeals from a district court judgment granting her a divorce from Charles D. Anderson (Charles) and dividing the marital property. On appeal, Mary asserts that the trial court erred in making the property division. We reverse and remand for a redetermination of that issue.\\nMary and Charles were married in 1967, and they have three children of the marriage: Charles, Jr., born on June 20, 1968; Christian, born on July 31,1970; and Jennifer, born on November 20, 1974.\\nAt the time of the marriage, Charles owned a one-sixth interest in approximately 280 acres of farmland, including mineral interests, near Underwood, North Dakota, which he had inherited from his father in 1961. No interest in the inherited land was ever transferred to Mary.\\nDuring the first two years of their marriage, the couple farmed the land inherited by Charles as well as additional land near Underwood owned by Charles' family. During this time, Mary assisted Charles in running the farm. After farming for approximately two years, Charles worked as a self-employed truck driver until 1977. Mary testified that she taught school from 1971 until Jennifer was born in 1974. Thereafter, she was employed as a substitute teacher. In 1976, the couple purchased a house in Underwood, North Dakota. In 1977, Charles began working for his current employer, North American Coal, and, in 1982, he began participating in its retirement plan. At the time of trial, Charles' annual income was approximately $43,000.\\nThe district court's judgment gave Mary custody of the three minor children, and awarded her $225 per month per child for child support and $300 a month for three years for rehabilitative support. In making its division of the property, the trial court found that the equity in the home in Underwood was approximately equal to Charles' retirement account and awarded the home to Mary, subject to mortgage, and the retirement account to Charles. The court also awarded Mary personal property valued at $12,000 and Charles personal property valued at $8,200. Charles was ordered to pay Mary $1,200 as a contribution toward her attorney's fees for the divorce and to pay all the debts of the couple with the exception of the Underwood home mortgage. The evidence presented at trial reflects that the mortgage was approximately $39,000 and the remaining debts were approximately $35,-000. The district court determined that the inherited land was not a marital asset and that it was unnecessary to use it to equalize the division of the property. Accordingly, Charles was granted sole ownership of that land.\\nMary asserts that the trial court's property division was erroneous. She contends that the trial court's decision was induced by an erroneous view of the law in failing to consider the inherited farmland in making its property division.\\nThe trial court's determinations on matters of property division are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous under Rule 52(a), NDRCivP, or they are induced by an erroneous conception of the law. Schmidt v. Schmidt, 325 N.W.2d 230 (N.D.1982). Whenever a divorce is granted, Section 14-05-24, NDCC, requires the trial court to distribute the parties' real and personal property as may seem just and proper. Under Section 14-05-24, NDCC, the trial court must consider all of the real and personal property accumulated by the parties as part of their marital estate, regardless of the source. Schmidt v. Schmidt, supra; Herrick v. Herrick, 316 N.W.2d 72 (N.D.1982); Fraase v. Fraase, 315 N.W.2d 271 (N.D.1982). However, the trial court may or may not award the separate property of one spouse to the other spouse depending upon whether or not an equitable distribution so requires. Schmidt v. Schmidt, supra; Herrick v. Herrick, supra; Fraase v. Fraase, supra.\\nThe Ruff-Fischer guidelines give the trial court sufficient flexibility to consider the source of the property as one factor in arriving at an equitable distribution. Winter v. Winter, 338 N.W.2d 819 (N.D.1983). However, the separate property, whether inherited or otherwise, must initially be included in the marital estate and is subject to distribution as may be necessary to achieve an equitable distribution.\\nIn this case, the trial court made the following relevant findings of fact:\\n\\\"IX.\\n\\\"The primary assets of the marriage are the automobile, the home and the employer retirement plan of Mr. Anderson. Mr. Anderson is unable to draw the money set aside in his retirement plan; however, it has been deposited in his name and all expectation would result in the fact that this would be available for him upon his retirement. The court finds that the equity in the home is approximately equal to the retirement account of Mr. Anderson. Plaintiff [Mary] shall have the home of the parties, subject to the mortgage and the defendant [Charles] shall have his retirement account.\\n\\\"X.\\n\\\"The court finds that the farm land and mineral interests which the defendant [Charles] inherited from his father is not a marital asset and the defendant [Charles] is granted sole ownership in the mineral interest and farm land without any claim upon it by the plaintiff [Mary], The court finds that it is unnecessary to use this asset in order to equalize a division made to the properties.\\\"\\nThe trial court's findings reflect that it excluded the farmland and mineral interests from the marital estate and divided the remaining assets approximately equally.\\nThe trial court stated that the primary assets of the marriage were an automobile, the house, and the retirement account, and it did not include the farmland and mineral interests as one of the primary assets even though Charles presented evidence that those assets had a value of $62,000. The trial court further stated that the farmland and mineral interests were not marital assets and that it was unnecessary to use them to equalize the property division. The marital assets, excluding the farmland and mineral interests, were distributed approximately equally. Although the trial court indicated that it was equalizing the distribution, when all the marital assets, including the farmland and mineral interests, are considered, the distribution was not equal. We are not suggesting that the division should have been equal. However, we believe the above-mentioned factors indicate that the trial court did not include the inherited farmland and mineral interests as part of the marital estate. Consequently, we conclude that the trial court erroneously applied the law in that respect, and we reverse and remand with directions that the court make a redetermination of the property division taking into consideration that the farmland and mineral interests are part of the marital estate.\\nMary also contends that the trial court erred in refusing to allow her witness, Bill Wilson, to testify to the value of the farmland. Wilson testified that he had rented the farmland from Charles' mother, Bertha Anderson, for five years and that he also owned farmland within three miles of Charles' land. He testified that in his capacity as a member of the Federal Land Bank in Minot, he was familiar with farm values in the area. At that point, Wilson was asked if he felt the value of the surface interest of the land was $25,000 as claimed by Charles. Mary's counsel objected, apparently on the basis of insufficient foundation, and the objection was sustained. Later the court stated:\\n\\\"Counsel, I am not going to let this man testify as an expert on the land valuation. You have not established sufficient credentials and therefore I am not going to let him testify as to any purchases that were in the area that he was not a party to.\\\"\\nWhether or not a witness is qualified to testify as to the value of land is for the trial court to determine and will not be reversed on appeal unless it abused its discretion. Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355 (N.D.1969); see Holecek v. Janke, 171 N.W.2d 94 (N.D.1969); Fisher v. Suko, 98 N.W.2d 895 (N.D.1959). Ordinarily, the owner of real property, by virtue of ownership, is presumed to have special knowledge of its value and may testify thereto without any further qualification or special knowledge. Pfliger v. Peavey Co., 310 N.W.2d 742 (N.D.1981). A witness who does not own the land must demonstrate some basis of forming an intelligent judgment as to the value of the land in question. 31 Am.Jur.2d, Expert and Opinion Evidence, \\u00a7 140, p. 691. In Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 527 (N.D.1958), we stated:\\n\\\"Opinion evidence in eminent domain actions is usually admitted from persons who are not strictly experts, but who from residing and doing business in the vicinity have familiarized themselves with land values and are more able to form an opinion on the subject at issue than citizens generally. The rule is liberally applied in case of farm lands, as other evidence is often not easily obtained and neighboring farmers are able to judge values with reasonable accuracy if acquainted with the physical surroundings and the character of the soil.\\\"\\nAlthough that case involved an eminent domain proceeding, we believe that the foregoing rationale for allowing a person who is peculiarly familiar with land to testify to its value is applicable in divorce cases as well. We believe Wilson's testimony demonstrates that he was sufficiently familiar with the general level of land values in the area to enable him to judge the value of Charles' land. We conclude that the trial court abused its discretion in refusing to let Wilson testify in that regard.\\nAccordingly, we reverse and remand the case to permit the parties to present evidence on the value of the farmland and for the trial court to make a redetermination of the property division.\\nERICKSTAD, C.J., and MESCHKE, LEVINE and VANDE WALLE, .JJ., concur.\\n. See Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).\\n. The trial court's memorandum opinion states that \\\"[i]t is unnecessary for the Court to use this asset in order to equalize the division made to the parties in this case.\\\" [Emphasis added.]\\n. A property division does not have to be equal to be equitable. E.g., Schmidt v. Schmidt, 325 N.W.2d 230 (N.D.1982).\"}"

nd/10655073.json

@@ -0,0 +1 @@
+"{\"id\": \"10655073\", \"name\": \"Melodie A. CHINN, Plaintiff and Appellant, v. Robert Steven CHINN, Defendant and Appellee\", \"name_abbreviation\": \"Chinn v. Chinn\", \"decision_date\": \"1986-10-15\", \"docket_number\": \"Civ. No. 11141\", \"first_page\": 692, \"last_page\": \"694\", \"citations\": \"394 N.W.2d 692\", \"volume\": \"394\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T22:15:59.858652+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and MESCHKE, GIERKE, and VANDE WALLE, JJ., concur.\", \"parties\": \"Melodie A. CHINN, Plaintiff and Appellant, v. Robert Steven CHINN, Defendant and Appellee.\", \"head_matter\": \"Melodie A. CHINN, Plaintiff and Appellant, v. Robert Steven CHINN, Defendant and Appellee.\\nCiv. No. 11141.\\nSupreme Court of North Dakota.\\nOct. 15, 1986.\\nDiane P. Melbye, Dickinson, for plaintiff and appellant.\\nFreed, Dynes, Reichert & Buresh, Dickinson, for defendant and appellee; argued by Ronald A. Reichert.\", \"word_count\": \"1056\", \"char_count\": \"6395\", \"text\": \"LEVINE, Justice.\\nMelodie Chinn appeals from a divorce judgment, alleging error in the trial court's retention of jurisdiction over the ownership of the family residence, property distribution, child support, and prohibition against remarriage. We reverse as to the jurisdiction of the home and affirm the remainder of the judgment.\\nRobert Steven Chinn (Steve) and Melodie Chinn were married on January 27, 1979. They have three children, ages seven, five and four. Steve is a measurement technician whose net disposable income is approximately $2,200.00 per month. Melodie works as a blackjack dealer and brings home approximately $550.00 per month. The couple owns a house in Dickinson valued at $52,000.00 and subject to a mortgage of approximately $50,000.00.\\nIn its oral memorandum decision the trial court awarded an undivided one-half interest in the house to each party and stated:\\n\\\"I am going to reserve and keep jurisdiction of the question of the ownership of the house because of what might happen in the case and because the value of the house is so questionable relative to the sizable debt against it, and because I feel it is possible that Melodie might be able to find shelter for herself and the children that is not quite as expensive as this one.\\\"\\nMelodie was granted the exclusive right to use and occupy the house as a dwelling for herself and the three children until she remarries or cohabits with a man. The trial court ordered Steve to pay \\\"alimony\\\" of $560.00 per month, which Melodie would use for house payments.\\nMelodie argues that the trial court erred in retaining jurisdiction over the question of ownership of the house because this award is a property distribution and should be final. We agree.\\nWe applaud the trial court's attempt to minimize the disruption in the children's lives by allowing Melodie and the children to remain in the family residence. This Court has recognized that the stability of remaining in a familiar home may be important to the children of divorced parents. Kostelecky v. Kostelecky, 251 N.W.2d 400, 402 (N.D.1977). An immediate sale of the home is not favored because of the trauma a change of residence causes to minor children. See e.g., Goar v. Goar, 368 N.W.2d 348, 351 (Minn.App.1985), and cases cited therein. However, the method chosen by the trial court in this case cannot be upheld under North Dakota case law.\\nA long line of decisions rendered by this Court establishes the rule that a trial court does not retain jurisdiction to modify a final distribution of property. Wastvedt v. Wastvedt, 371 N.W.2d 142, 144 (N.D.1985); Wikstrom v. Wikstrom, 359 N.W.2d 821, 823 (N.D.1984); Harwood v. Harwood, 283 N.W.2d 144, 146 (N.D.1979); Nastrom v. Nastrom, 262 N.W.2d 487, 490 (N.D.1978). Because the award of an undivided one-half interest in the house is a property distribution, the trial court erred in retaining jurisdiction over the question of ownership. Therefore, we remand this case for the trial court to modify the provisions of the decree concerning the home.\\nMelodie also argues that the trial court erred in awarding child support in the amount of $250.00 per month for three children, an amount far below the minimum guidelines established by North Dakota Century Code \\u00a7 14-09-09.7(1).\\nThe trial court ordered Steve to pay child support of $250.00 per month and \\\"alimony\\\" of $560.00 per month. The record clearly reflects the trial court's intent that the $560.00 payment be used by Melodie to make the house payments in order to provide shelter for herself and the children. The trial court called the $560.00 payment \\\"alimony\\\" in order to give the parties more advantageous tax consequences.\\nThe term \\\"alimony\\\" means any payment to be made to the other spouse for any purpose, including payment as a part of a property division, spousal support, or child support, or a combination of any of them. Lipp v. Lipp, 355 N.W.2d 817, 820 (N.D.1984); Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984). Mortgage payments can function as child support or spousal support, and not as a property distribution. See Alexander v. Alexander, 526 P.2d 934 (Okla.1974); Cox v. Cox, 44 N.C.App. 339, 260 S.E.2d 812 (1979); McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978). In this case it is clear that the trial court intended the $560.00 payment to function as unallocated child support and spousal support. Therefore, we reject Melodie's claim that the trial court awarded only $250.00 per month for child support.\\nMelodie raises additional arguments concerning the property division. However, a property distribution will not be set aside by this Court unless it is found to be clearly erroneous. Routledge v. Routledge, 377 N.W.2d 542, 548 (N.D.1985). As the trial court observed, this marriage pro duced few assets and many debts in its six-year duration. We hold that the trial court's distribution, with the exception of the family residence, is not clearly erroneous.\\nFinally, Melodie argues that the trial court erred in prohibiting the parties from remarrying during an appeal. The divorce judgment prohibits the parties from remarrying for a period of sixty days after the entry of the judgment and, if an appeal is taken, until after the completion of the appeal.\\nSection 14-05-02, NDCC, provides:\\n\\\"It shall be the duty of the court granting a divorce to specify in the order for judgment whether either of both of the parties shall be permitted to marry, and if so, when. The court shall have jurisdiction to modify the decree of divorce at any time so as to permit one or both of the parties to marry, if in his discretion he shall deem it right.\\\"\\nMelodie did not seek to have the decree modified in accordance with this statute. The trial court thus was not called upon to exercise its discretion. Consequently, there is nothing for this Court to review.\\nThe judgment is affirmed except as to the jurisdiction of the home, and the case is remanded for proceedings consistent with this opinion. Neither party is awarded costs.\\nERICKSTAD, C.J., and MESCHKE, GIERKE, and VANDE WALLE, JJ., concur.\"}"

nd/10657146.json

@@ -0,0 +1 @@
+"{\"id\": \"10657146\", \"name\": \"Paul DUTCHUK, Plaintiff and Appellee, v. BOARD OF COUNTY COMMISSIONERS, BILLINGS COUNTY, North Dakota, Defendant and Appellant\", \"name_abbreviation\": \"Dutchuk v. Board of County Commissioners\", \"decision_date\": \"1988-05-24\", \"docket_number\": \"Civ. No. 870341CA\", \"first_page\": 21, \"last_page\": \"24\", \"citations\": \"429 N.W.2d 21\", \"volume\": \"429\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of North Dakota\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T21:48:42.609612+00:00\", \"provenance\": \"CAP\", \"judges\": \"GARAAS, C.J., and LARRY M. HATCH and WILLIAM M. BEEDE, District Judges, concur.\", \"parties\": \"Paul DUTCHUK, Plaintiff and Appellee, v. BOARD OF COUNTY COMMISSIONERS, BILLINGS COUNTY, North Dakota, Defendant and Appellant.\", \"head_matter\": \"Paul DUTCHUK, Plaintiff and Appellee, v. BOARD OF COUNTY COMMISSIONERS, BILLINGS COUNTY, North Dakota, Defendant and Appellant.\\nCiv. No. 870341CA.\\nCourt of Appeals of North Dakota.\\nMay 24, 1988.\\nGreenwood, Greenwood & Greenwood, P.C., Dickinson, for plaintiff and appellee; argued by Gary D. Ramsey.\\nJay V. Brovold (argued), States Atty., Medora, for defendant and appellant.\", \"word_count\": \"1344\", \"char_count\": \"8567\", \"text\": \"PER CURIAM.\\nThe Board of County Commissioners of Billings County [Board] appeals from a district court judgment awarding Paul Dut-chuk $5,305.11, exclusive of costs and interest, in an eminent domain action. We affirm, award attorney fees, and remand with directions.\\nPursuant to Article 1, \\u00a7 16 of the North Dakota Constitution and Chapter 32-15, N.D.C.C., the Board deposited $1,292 with the Clerk of the Billings County District Court to purchase 3.86 acres of permanent highway right-of-way easement and 1.15 acres of temporary slope easement from Dutchuk for a road improvement project. Dutchuk appealed to the district court, contending that the amount of compensation was inadequate. The parties waived a jury trial and stipulated that the fair market value of the property taken was $1,292, leaving only the issues of severance damages and attorney fees for trial.\\nAt trial Dutchuk presented the testimony of an independent fee appraiser, D.W. Knudson, to support his request for severance damages. Knudson testified that he had conducted \\\"several thousand\\\" land appraisals since 1939. Based on his experience as an appraiser and using a comparable sales approach wherein he placed a before-taking value of $250 per acre and an after-taking value of $230 per acre on the remaining property, Knudson opined that the amount of severance damages incurred because of the taking of Dutchuk's property was $3,074.75.\\nThe Board countered with the testimony of Laura Griffin, the tax director of Billings County for three and one-half years, to support its position that Dutchuk was not entitled to severance damages. Griffin testified that she did not believe that Dut-chuk was entitled to severance damages because the improved road would increase the value of his remaining property. Griffin also testified that she had never considered severance damages in any of her appraisals for Billings County because she believed that severance damages occurred only when there was a physical severing of property by a road.\\nThe district court determined that Dut-chuk was entitled to $1,292 for the stipulated fair market value of the property taken, $2,895 for severance damages to the remaining property, $962 for attorney fees, and $156.11 for his attorney's actual out-of-pocket expenses. The Board has appealed.\\nThe dispositive issue on appeal is whether the trial court's findings of fact regarding the amount of severance damages are clearly erroneous. The Board asserts that Knudson's appraisal was based on his assumption that severance damages to remaining property always occurred whenever there was a taking and that Knudson \\\"simply pulled a figure out of the air\\\" to support his opinion as to the after-taking value for the remaining property. The Board also asserts that the trial court's findings were based on an erroneous view of the law regarding the distinction between severance and consequential damages.\\nA party claiming damages in a condemnation proceeding has the burden of proof to establish the amount of damages incurred. E.g., City of Hazelton v. Daugherty, 275 N.W.2d 624 (N.D.1979). Pursuant to Section 32-15-22, N.D.C.C., the owner of property taken under the power of eminent domain is entitled to compensation for the value of the property taken, plus damages to the remaining property by reason of its severance from that taken. E.g., Wishek Investment Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417 (1950). The generally accepted measure of severance damages is the diminution in market value of the property not condemned, which is the difference in the market value of the remaining property before and after severance from the property taken. City of Hazelton v. Daugherty, supra. Although severance damages are not susceptible of precise proof and can only be approximately shown, damage to the remaining property will not be presumed and the landowner must establish by competent evidence that its value has been diminished. Id.\\nIn this case Knudson testified that he used a comparable sales approach for appraising the property and based his before-taking and after-taking appraisal of the remaining property on his years of experience as an appraiser and his opinion that, although there was presently a house about one-hundred-eighty feet from the new easement, the best location on the remaining property for a homesite was about fifty feet from the easement. Knud-son further testified that the value of the remaining property was thus diminished by the location of the best homesite in relation to the easement. We believe that Knud-son's testimony, when contrasted with Griffin's testimony about the requisites for awarding severance damages, provided sufficient competent evidence for the trial court to find that the value of Dutchuk's remaining property was diminished by the taking.\\nMoreover, we do not believe that the trial court's findings of fact were based on an erroneous conception of the law regarding the distinction between consequential and severance damages. In Little v. Burleigh County, 82 N.W.2d 603 (N.D.1957), the North Dakota Supreme Court noted the distinction between severance and consequential damages when it stated that severance damages were the diminution in market value of the remaining property caused by its severance from the part tak en whereas consequential damages were damages to the remaining property arising by reason of the use to which the property taken was put. Dutchuk presented sufficient evidence which, if believed, supports a diminution in the value of the remaining property caused by its severance from the part taken as opposed to consequential damages.\\nThe trial court's award of $2,895.00 in severance damages was less than Knud-son's appraisal of $3,074.75 and was thus within the range of severance damages testified to by Knudson. Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808 (1946). We therefore conclude that the trial court's findings of fact regarding severance damages are not clearly erroneous under Rule 52(a), N.D.R.Civ.P.\\nDutchuk also requests costs and attorney fees for defending the judgment on appeal. In support of that request, his counsel has submitted an affidavit requesting $1,853.75 in attorney fees for defending this appeal.\\nIn 1967 the North Dakota Supreme Court concluded that Section 32-15-32, N.D.C.C., did not authorize attorney fees for a trial de novo in the Supreme Court because the Legislature did not intend to extend that section to an appeal. Frederickson v. Hjelle, 149 N.W.2d 733 (N.D.1967) (On petition for rehearing). In 1969 the North Dakota Legislature amended Section 32-15-32, N.D.C.C., to authorize the award of reasonable attorney fees \\\"for all judicial proceedings.\\\" We conclude that Section 32-15-32, N.D.C.C., as amended in 1969, is broad enough to authorize reasonable attorney fees for defending this appeal by the Board. See Carlson v. Dunn County, 409 N.W.2d 111 (N.D.1987) [attorney fee award in lower court under Section 11-11-39, N.D.C.C., should not be dissipated by uncompensated attorney fees incurred in successfully defending a judgment on appeal]. We believe that reasonable attorney fees for defending this appeal are $1,200, and accordingly, we award Dutchuk $1,200 in attorney fees. Costs shall be taxed against the Board pursuant to Rule 39, N.D.R.App.P.\\nThe judgment is affirmed and attorney fees on appeal are awarded in the amount of $1,200. On remand, the trial court is directed to modify the judgment accordingly.\\nGARAAS, C.J., and LARRY M. HATCH and WILLIAM M. BEEDE, District Judges, concur.\\n. On appeal the Board has not raised any issue about the award of attorney fees by the trial court.\\n. At the time of the decision in Frederickson v. Hjelle, supra, Section 32-15-32, N.D.C.C., provided:\\n\\\"32-15-32. Costs. \\u2014 The court may in its discretion award to the defendant reasonable actual or statutory costs or both which may include reasonable attorney's fees. In all cases when a new trial has been granted upon the application of the defendant and he has failed upon such trial to obtain greater compensation than was allowed him upon the first trial, the costs of such new trial shall be taxed against him.\\\"\"}"

nd/10658116.json

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+"{\"id\": \"10658116\", \"name\": \"David WAHLSTROM, Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent and Appellant, and Twin City Construction Co., Inc., Respondent\", \"name_abbreviation\": \"Wahlstrom v. Job Service North Dakota\", \"decision_date\": \"1987-05-28\", \"docket_number\": \"Civ. No. 11377\", \"first_page\": 693, \"last_page\": \"696\", \"citations\": \"406 N.W.2d 693\", \"volume\": \"406\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-11T00:22:20.779505+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEVINE and GIERKE, JJ., concur.\", \"parties\": \"David WAHLSTROM, Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent and Appellant, and Twin City Construction Co., Inc., Respondent.\", \"head_matter\": \"David WAHLSTROM, Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent and Appellant, and Twin City Construction Co., Inc., Respondent.\\nCiv. No. 11377.\\nSupreme Court of North Dakota.\\nMay 28, 1987.\\nLeslie Johnson-Soetebier, Fargo, for petitioner and appellee.\\nSidney Hertz Fiergola, Asst. Atty. Gen., Job Service North Dakota, Bismarck, for respondent and appellant.\", \"word_count\": \"1953\", \"char_count\": \"12097\", \"text\": \"MESCHKE, Justice.\\nWe consider whether an employee, who quits for self-employment after his regular job is made tentative and temporary, can later qualify for unemployment benefits. We hold that he can. Accordingly, we affirm the district court's reversal of the denial of benefits to the employee.\\nTwin City Construction employed David Wahlstrom as a cabinet builder in 1981. In March 1985, Twin City closed its cabinet shop but kept Wahlstrom on to do other carpentry work and odd jobs.\\nIn July 1985 talk about layoff began. Wahlstrom testified:\\n\\\"A. . They talked about it a couple of times and it never came about and never came about, because they always found more cleaning to do.\\n\\\"Q. They had already told you that you'd be laid off in two weeks?\\n\\\"A. Yes. Well, they'd been talking about it for weeks, actually. But then every time it came down to the last day, then they found some other cleaning or something to do so, you know, then me and my co-worker would be staying on.\\\"\\nHis supervisor testified that he had discussed layoff with Wahlstrom \\\"the last couple months\\\":\\n\\\"Q. Did you tell him when that would occur?\\n\\\"A. It was never really definite. I said it could happen in a couple weeks or it may happen, you know, at the end of this week. It's \\u2014 it's hard to say, you know, with time being it is that maybe something would have came up and we would have kept right on working for awhile longer, but the way it was looking here \\u2014 that he was going to get laid off.\\n\\\"Q. They [Wahlstrom and a co-worker] really had temporary work with you then?\\n\\\"A. Yeah.\\n\\\"Q. And you kept telling them that it was temporary?\\n\\\"A. Yeah.\\\"\\nOn November 1, 1985, Wahlstrom left Twin City for self-employment as a carpenter. When that venture was unsuccessful, Wahlstrom sought unemployment benefits. Job Service denied benefits, ruling that Wahlstrom \\\"had voluntarily left his employment for reasons which were not attributable to the employer.\\\"\\nAfter hearing, a Job Service referee found:\\n\\\"Beginning in July of 1985, the company did tell the claimant that they did not know how long his employment would last but that he would be laid off in the near future. The claimant was more or less working from week to week. On November 1, 1985, the claimant quit his employment when he had lined up some work as a self-employed carpenter. Approximately December 15, 1985, the claimant filed for benefits when he could no longer find work in self-employment. \\\"The company did have further employment available for the claimant but would have discontinued his employment sometime during the month of November.\\\"\\nThe referee denied benefits, saying:\\n\\\"The claimant voluntarily quit his employment because he believed he had found better employment. The company had additional employment available to the claimant. The employer did not cause the claimant's unemployment and, therefore, under North Dakota law he is not entitled to benefits.\\\"\\nOn Wahlstrom's appeal of the Job Service ruling, the district court recognized it was \\\"a particularly hard case\\\" but initially affirmed. Within two weeks, the district court reconsidered in the light of our then recent decision in Carlson v. Job Service North Dakota, 391 N.W.2d 643 (N.D.1986), reversed Job Service, and held that Wahlst-rom was eligible for unemployment benefits. The district court reasoned:\\n\\\"It is clear that the Petitioner in this case would not have resigned but for the fact that he was being terminated or laid off. Since his layoff was then certain, the Petitioner was forced to try his hand at self-employment which lasted approximately 45 days. He quit a temporary job in an attempt to avoid unemployment.\\n\\\"He should not be penalized for acting in good faith. Petitioner's allegation that he quit his employment for reasons attributable to the employer is accurate, and the agency's decision is not supported by its findings of fact and is not in accordance with the law. Petitioner acted in good faith and with no choice. He did not leave to seek better work; he left to be able to continue work. The Referee's finding that '[t]he company did have further employment available for the claimant but would have discontinued his employment sometime during the month of November,' and that he was 'more or less working from week to week,' makes it clear that his layoff or discharge was certain and that he quit before being terminated or laid off. Hence, the factual finding indicating that the company had further employment available for him as a finding of fact and reason for the decision does not support the conclusion that the Petitioner voluntarily quit.\\\"\\nJob Service appeals, asking reinstatement of its ruling that Wahlstrom was not eligible for unemployment benefits. Job Service argues that since Wahlstrom left employment for self-employment, his reason for leaving was not attributable to his employer.\\nAn employee who leaves employment \\\"voluntarily without good cause attributable to the employer\\\" is not entitled to unemployment benefits. N.D.C.C. \\u00a7 52-06-02(1). We observed in Carlson v. Job Service North Dakota, 391 N.W.2d 643, 645 (N.D.1986) that \\\"whether a person left employment 'voluntarily' is a mixed question of fact and law, where the evidence must support findings of fact which, in turn, must sustain the conclusion of 'voluntariness.' \\\" But, \\\"it is not possible to determine accurately whether the act of a worker in leaving his job was voluntary unless one takes account of the causes which led to his action.\\\" Crum, \\\"Constructive Voluntary Quit\\\" Disqualification \\u2014 A Study in Employment Security, 44 N.D.L.Rev. 309, 311 (1968). To fairly apply the statutory disqualification, the findings and conclusions of Job Service, as the administrative agency responsible for administering unemployment benefits, must accurately identify the principal cause of an employee leaving employment. N.D.C.C. \\u00a7 28-32-19.\\nThus, in Carlson, supra, we ruled that a planned firing for job failings other than disqualifying misconduct was \\\"good cause attributable to the employer,\\\" which made a quit involuntary. On the other hand, in Ewert v. Job Service North Dakota, 403 N.W.2d 4 (N.D.1987), we held that a worker who quit \\\"for purely personal reasons\\\" before a planned seasonal layoff \\\"left his most recent employment voluntarily without a good cause attributable to the employer.\\\" In Ewert, we recognized that \\\"[tjhere may be circumstances where a quit in advance of a layoff would be for 'good cause attributable to the employer'.\\\"\\nThe findings show that the transformation of Wahlstrom's once permanent and regular employment to something tentative and temporary was caused by his employer, not by his own doing. The employer changed the \\\"rules\\\" of his employment in the middle of the \\\"game.\\\" Thus, Wahlst-rom's leaving his employment at Twin City was plainly and principally brought about by this pronounced uncertainty, \\\"from week to week,\\\" a reason attributable to the employer.\\nSince Wahlstrom left for self-employment, his conduct was consistent with a genuine desire to continue to work. There is nothing in the findings to suggest that he was trying to take advantage of unemployment benefits \\\"for purely personal reasons\\\" as in Ewert.\\nThe administrative decision failed to take into account the unfavorable action of the employer, although the agency's findings identified that action. An administrative agency must base its decision upon the record as a whole. Roberts v. North Dakota Workmen's Compensation Bureau, 326 N.W.2d 702 (N.D.1982).\\nTherefore, we conclude, as the district court did, that the findings do not support the agency's decision and that Wahlstrom left his employment at Twin City for a \\\"good cause attributable to the employer,\\\" which made his leaving involuntary.\\nAccordingly, the district court correctly reversed the denial of unemployment benefits to Wahlstrom.\\nLEVINE and GIERKE, JJ., concur.\"}"

nd/10662287.json

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+"{\"id\": \"10662287\", \"name\": \"COLDWELL BANKER-FIRST REALTY, INC., Plaintiff and Appellee, v. MEIDE & SON, INCORPORATED, Jerry L. Meide and Sandra A. Meide, Defendants and Appellants\", \"name_abbreviation\": \"Realty v. Meide & Son, Inc.\", \"decision_date\": \"1988-03-29\", \"docket_number\": \"Civ. No. 870109\", \"first_page\": 375, \"last_page\": \"381\", \"citations\": \"422 N.W.2d 375\", \"volume\": \"422\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T18:13:24.894035+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and VANDE WALLE, GIERKE and MESCHKE, JJ., concur.\", \"parties\": \"COLDWELL BANKER-FIRST REALTY, INC., Plaintiff and Appellee, v. MEIDE & SON, INCORPORATED, Jerry L. Meide and Sandra A. Meide, Defendants and Appellants.\", \"head_matter\": \"COLDWELL BANKER-FIRST REALTY, INC., Plaintiff and Appellee, v. MEIDE & SON, INCORPORATED, Jerry L. Meide and Sandra A. Meide, Defendants and Appellants.\\nCiv. No. 870109.\\nSupreme Court of North Dakota.\\nMarch 29, 1988.\\nDeMars, Turman & Johnson, Ltd., Fargo, for plaintiff and appellee; argued by Joseph A. Turman.\\nGunhus, Grinnell, Klinger, Swenson & Guy, Fargo, for defendants and appellants; argued by Craig R. Campbell.\", \"word_count\": \"3307\", \"char_count\": \"20622\", \"text\": \"LEVINE, Justice.\\nThis case involves the validity of a liquidated damages clause in an exclusive real estate listing agreement. Meide & Son appeals from a judgment of the Cass County district court which enforced the clause and awarded Coldwell Banker \\u2014 First Realty, Inc. (Coldwell Banker) $232,780.00 plus interest and costs. We affirm.\\nMeide & Son is a construction company based in Wahpeton, North Dakota. Jerome Meide (Meide) joined his father's construction business in 1962 and is now president of Meide & Son. Fargo Insurance Agency (Fargo Insurance) enjoyed a long-standing business relationship with Meide & Son. In the summer of 1977, the Fargo Insurance real estate division contacted Meide about developing a tract of south Fargo land, owned by Meide & Son. The parties negotiated an agreement to develop the south Fargo tract, known as the South Meadows division. The development agreement provided that Meide & Son would develop the property and the Fargo Insurance real estate subdivision would exclusively sell and manage the developed land. The agreement provided for damages in the event of breach as follows:\\n\\\"This agreement may be terminated only in accordance with the following terms and conditions:\\n\\\"C. By Developer, upon giving Broker written notice thereof at least thirty days in advance of the termination date. In the event of termination by Developer, Broker shall be entitled to liquidated damages as follows:\\n1) If the termination is effected prior to full execution of the development plan and sale of those buildings intended to be sold, Broker shall receive an amount equal to the Sales Commissions which would have been earned if the agreement had been fully executed, less the amount of promotional and advertising expenses budgeted but unexpended;\\nMeide was given time to examine the agreement, and several changes were made at his request. Meide and Fargo Insurance signed the development agreement October 14, 1977.\\nIn the spring of 1978 the city of Fargo approved a planned unit development (PUD) plat for the South Meadow subdivision. Meide & Son and Fargo Insurance approved and adopted the PUD plat as the development plan. Meide & Son followed the PUD plat in constructing those buildings which were completed. The PUD plat was renewed upon expiration, and with minor cosmetic changes was complied with even after the termination of the development agreement.\\nOn September 20,1978, Fargo Insurance assigned its interest in the development agreement to Coldwell Banker, with the consent of Meide & Son.\\nFrom 1980 until late 1982, marketing success was minimal due to a severe depression in the housing market and escalation of interest rates. However, in the latter part of 1982 through the early months of 1983 there was a strong rebound in the commercial apartment housing market.\\nWhen the housing market improved, Meide & Son prepared cost estimates for unbuilt units and applied for and received minor changes in the PUD plat. It also applied for and received building permits, and proposed to the Fargo Housing Authority sale of the remaining South Meadows property as HUD-subsidized housing.\\nOn March 30, 1983, Meide & Son's attorney sent Fargo Insurance a letter terminating the development agreement. Within two months, Meide & Son sold all remaining units of the South Meadows subdivision. Coldwell Banker sued Meide & Son for liquidated damages for breach of the development agreement.\\nAfter a bench trial, the trial court determined that although Meide's experience with development agreements and listing properties with a realtor was \\\"somewhat minimal,\\\" he was a sophisticated businessman capable of reading and understanding the terms of the development agreement, had negotiated and performed many government contracts and public and private housing projects, and was generally aware of the business of contracting, developing and selling property. The court found that Meide & Son terminated the development agreement in order to avoid paying commissions to Coldwell Banker.\\nThe court found that as a result of the breach, Coldwell Banker suffered \\\"probable loss of good will and continuing business relationships,\\\" \\\"loss of revenue from management fees,\\\" \\\"loss of future sales as a result of potential sale referrals from managing the contracts, and resultant contact with the individuals who would rent the apartments in the various units during the time of management,\\\" and \\\"potential damage to the reputation of the plaintiff due to his failure to complete the project in the community.\\\" The court found that these damages were difficult, if not impossible, to estimate. The court also determined that Coldwell Banker had substantially performed under the development agreement and that Meide had accepted the benefits of that performance.\\nJudgment was entered against Meide & Son for damages under the liquidated damages clause of the development agreement. Meide & Son appealed, raising three issues: (1) whether Coldwell Banker failed to prove that the amount stipulated as damages for breach of the development agreement bears a reasonable relation to the probable damages and is not disproportionate to any damages reasonably to be anticipated; (2) whether the liquidated damages clause is vague and ambiguous for lack of a sum certain and, therefore, unenforceable; (3) whether the trial court clearly erred in finding that Coldwell Banker did not act fraudulently or exercise undue influence.\\nI. REASONABLE RELATION TO PROBABLE DAMAGES\\nA party seeking to enforce a liquidated damages clause bears the burden of proving that the claim is valid as an exception to the general prohibition of \\u00a7 9-08-04, NDCC. Federal Land Bank v. Woell, 415 N.W.2d 500 (N.D.1987); City of Fargo v. Case Development Co., 401 N.W.2d 529 (N.D.1987). Section 9-08-04, NDCC, states:\\n\\\"Every contract by which the amount of damages to be paid, or other compensation to be made, for a breach of an obligation is determined in anticipation thereof is to that extent void, except that the parties may agree therein upon an amount presumed to be the damage sustained by a breach in cases where it would be impracticable or extremely difficult to fix the actual damage.\\\"\\nSection 9-08-04, NDCC, contains a rebuttable presumption that the amount set forth as liquidated damages constitutes the actual loss or damage sustained by breach of the contract. Eddy v. Lee, 312 N.W.2d 326 (N.D.1981). In order to raise the presumption, the party wishing to rely upon it must introduce credible evidence. Eddy v. Lee, 312 N.W.2d at 330. The foundational facts necessary to establish the existence of the presumption are: (1) that it appears that at the time the contract was made the damages in the event of breach will be incapable or very difficult of accurate estimation; (2) that there was a reasonable endeavor by the parties to fix their compensation; and (3) that the amount stipulated bears a reasonable relation to the probable damages and is not disproportionate to any damages reasonably to be anticipated. Ibid; Bowbells Public School Dist. v. Walker, 231 N.W.2d 173, 175, 176 (N.D.1975); Hofer v. W.M. Scott Livestock Co., 201 N.W.2d 410 (N.D.1972).\\nThe trial court found that all three foundational facts of Eddy v. Lee were established. While conceding the existence of the first two foundational facts, Meide & Son argues that Coldwell Banker failed to establish the third foundational fact, thereby making the liquidated damages provision void as a penalty under \\u00a7 9-08-04, NDCC.\\nWhether a foundational fact exists is a question of fact subject to the clearly erroneous standard of review. Eddy v. Lee, 312 N.W.2d at 331. Findings of fact are not clearly erroneous unless there is no support in the evidence or, although there may be some supporting evidence for it, this court is left with a definite and firm conviction that a mistake has been made. Tom Buechler Constr. v. City of Williston, 413 N.W.2d 336 (N.D.1987). It has been suggested that the greater the difficulty encountered by the parties in estimating the damages which might arise from a breach, the greater should be the range of estimates which the court should uphold as reasonable. Better Food Markets, Inc. v. American Dist. Tel. Co., 253 P.2d 10 (Cal.1953) (cited with approval in Hofer v. W.M. Scott Livestock Co., 201 N.W.2d at 415); 3 Restatement (Second) of Contracts \\u00a7 366 comment b (1981).\\nThere is evidence to support the trial court's finding that the amount of liquidated damages was reasonably related to the probable damages and not disproportionate to any damages reasonably anticipated, when viewed from the time of contracting. The trial court found the amount of damages stipulated to be $232,780, a sum equal to the sales commissions due under the contract, or \\\"gross sales commissions,\\\" calculated upon a reasonable selling price for the unsold units established by uncontroverted testimony. There was testimony that Coldwell Banker would have received $352,000 in management fees had Meide performed the contract. Thus, Coldwell Banker produced evidence showing that the amount of liquidated damages was not excessive when compared to reasonably anticipated and probable damages. We conclude that the trial court did not clearly err in finding the establishment of the third foundational fact of Eddy v. Lee.\\nMeide & Son, relying on \\u00a7 32-03-36, argues that the trial court erred in awarding greater damages than would have been realized by full performance of the contract. It contends that without a breach, Coldwell Banker would have been entitled only to its net sales commissions in the amount of $34,917.00. However, Meide & Son overlooks other damages, extremely difficult or impracticable to ascertain, yet flowing from the breach. Coldwell Banker suffered damages for loss of management fees, sales referrals, business contact with tenants, and goodwill, according to the trial court's findings. We are therefore unpersuaded that the only actual damages arising from the breach would be loss of the net sales commissions.\\nII. VAGUENESS\\nA. Sum Certain\\nMeide & Son argues that a valid liquidated damages clause must state as stipulated damages a sum which is definite or certain and which needs no extrinsic evidence for its determination. This argument calls upon us to interpret the language of our liquidated damages statute, NDCC \\u00a7 9-08-04. Under the statute, contractual provisions which determine damages in the event of breach, are void\\n\\\"except that the parties may agree therein upon an amount presumed to be the damage sustained by a breach in cases where it would be impracticable or extremely difficult to fix the actual damage.\\\" NDCC \\u00a7 9-08-04. [Emphasis added.]\\nMeide & Son asserts that, because the liquidated damages clause provides a formula for calculating damages instead of a certain sum of money, it does not set forth \\\"an amount\\\" as required by \\u00a7 9-08-04 and is, therefore, void.\\nWhere the legislature's intent is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for construction thereof, and the court will follow the rule of literal interpretation in applying the words of the statute. State for Benefit of Workmen's Compensation Fund v. E.W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76 (1953). In interpreting a statute, words must be given their plain, ordinary and commonly understood meaning, and consideration should be given to the ordinary sense of statutory words, the context in which they are used, and the purpose which prompted their enactment. Stutsman County v. State Historical Society, 371 N.W.2d 321 (N.D.1985); NDCC \\u00a7 1-02-02.\\nWe cannot discern from the term \\\"amount\\\" whether the legislature intended to except from its prohibition of liquidated damage provisions, use of a formula for calculating damages in the event of breach. The ordinary meaning of \\\"amount\\\" as garnered from Webster's Unabridged Dictionary does not resolve the problem:\\n\\\"1 a: the total number or quantity: aggregate <the [amount] of the fine is doubled >: sum, number <add the same [amount] to each column > <the [amount] of the policy is 10,000 dollars >\\\" Webster's Third New International Dictionary.\\nThis \\\"ordinary meaning\\\" leaves uncertain whether \\\"an amount\\\" may be stated in terms of a formula.\\nSince a plain reading of the statute according to the ordinary meaning of its terms fails to resolve the question, we conclude the statute is ambiguous and in need of interpretation. See Barnes City Education Association v. Barnes City Special Education Board, 276 N.W.2d 247, 251 (N.D.1979). When the meaning of a word in a statute is doubtful, it is appropriate to refer to related legislation to determine the sense in which the word was employed in the particular statute. Grabow v. Bergeth, 229 N.W. 282, Syl. 3 (N.D.1930); Matter of Estate of Knudsen, 342 N.W.2d 387, 390 (N.D.1984).\\nNDCC \\u00a7 41-02-97(1) (UCC 2-718) is a comparable liquidated damages statute governing contracts for the sale of goods between merchants. It states:\\n\\\"1. Damages for breach by either party may be liquidated in the agreement but at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.\\\" [Emphasis added.]\\nIn Farmers Union Grain Terminal Ass'n v. Nelson, 223 N.W.2d 494 (N.D.1974) we at least implicitly construed the word \\\"amount\\\" in NDCC \\u00a7 41-02-97(1) as authorizing a liquidated damages clause to provide a formula for calculating damages, not a precise sum. We upheld the clause despite its use of a formula and not a dollar amount, and despite the need for extrinsic evidence. We relied on \\u00a7 41-02-97 in concluding that the liquidated damages clause was \\\"designed to provide an agreed method of computing loss in the event of breach. See Section 41-02-97, N.D.C.C. (Section 2-718, U.C.C.).\\\" Farmers Union Grain Terminal Ass'n v. Nelson, 223 N.W.2d at 498.\\nWe discern no legislative intent to restrict the meaning of \\\"amount\\\" to a sum certain in \\u00a7 9-08-04, while giving it a more expansive meaning in \\u00a7 41-02-97(1), NDCC. Because we believe the legislature used the word \\\"amount\\\" in the same sense in \\u00a7 9-08-04 as it did in \\u00a7 41-02-97, we construe \\u00a7 9-08-04 as authorizing the use of an agreed method of computing loss in the event of breach.\\nFurther, we note that when the legislature meant \\\"sum certain\\\" it used that term, rather than \\\"amount.\\\" On the one hand, the legislature used the word \\\"amount\\\" in \\u00a7 9-08-04 instead of the term \\\"sum certain.\\\" On the other hand, the term \\\"sum certain,\\\" not \\\"amount,\\\" is found in NDCC \\u00a7 41-02-06 (UCC 3-106) as a requirement for negotiable instruments, while \\\"amount,\\\" rather than \\\"sum certain,\\\" is the standard for liquidated damages provisions in \\u00a7 41-02-97(1) (UCC 2-718). The legislature thus has differentiated between the two terms and we give effect to that distinction.\\nWe consider, finally, the usefulness and efficacy of liquidated damages provisions in general, and in particular, the great difficulty presented by this case in estimating the damages suffered from such elements as good will and lost business opportunity. It would be ludicrous to conclude that the legislature, after making the extreme difficulty of ascertaining damages a prerequisite for valid liquidated damages, would then insist upon a specific or precise quantification of those damages without resort to a more reliable method of computation. We construe a statute to avoid absurd results. Stutsman County v. State Historical Society, 371 N.W.2d at 325. We hold, therefore, that under NDCC \\u00a7 9-08-04, a liquidated damages provision need not state a sum certain, but may provide for damages to be calculated with the aid of extrinsic evidence. Accord, Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968); Twentieth Century-Fox Film Corp. v. Woods Amusement Corp., 304 F.Supp. 23 (N.D.Ill.1969).\\nB. Agreement to Agree\\nMeide & Son also argues that the liquidated damages clause is void and unenforceable as an agreement to agree in the future. It contends that the liquidated damages provision refers to buildings and sale prices, the plans and values of which were not agreed upon at the time the contract was executed.\\nMeide & Son's reliance on the principle that \\\"agreements to agree\\\" are void, is misplaced. In those cases where agreements to agree were invalidated, the parties failed to agree in the future. See Super Hooper, Inc. v. Dietrich & Sons, Inc., 347 N.W.2d 152 (N.D.1984); Opdyke Investment Co. v. Norris Grain Co., 413 Mich. 354, 320 N.W.2d 836 (1982); and Deadwood Lodge No. 508 v. Albert, 319 N.W.2d 823 (S.D.1982).\\nIn the present case, however, the parties fulfilled their promises to agree. The PUD plat removed any uncertainty about the buildings to be sold. Nor does the clause fail as an unfulfilled agreement to agree on a price term. NDCC \\u00a7 9-07-08 states:\\n\\\"A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.\\\"\\nSection 9-05-07, NDCC, states:\\n\\\"When a contract does not determine the amount of the consideration nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract reasonably is worth.\\\"\\nSee Drees Farming Ass'n v. Thompson, 246 N.W.2d 883 (N.D.1976) (option to renew lease for unspecified rent enforceable for a reasonable rental value). Based upon the evidence, the trial court determined a reasonable sale price for the buildings at each phase of the development plan. We thus conclude the liquidated damage clause is not unenforceably vague as an agreement to agree.\\nMeide & Son's final argument is that the trial court clearly erred in finding neither fraud nor undue influence. Our review of the record does not convince us that a mistake was made.\\nThe judgment of the district court is affirmed.\\nERICKSTAD, C.J., and VANDE WALLE, GIERKE and MESCHKE, JJ., concur.\\n. In Kruger v. Soreide, 246 N.W.2d 764 (N.D.1976), this court held that real estate agents claiming damages under exclusive listing agreements are required to prove consideration for the contract by performance of services. See also Bismarck Realty v. Foldert, 354 N.W.2d 636, 641 (N.D.1984).\\n.The trial court used the percentages in paragraph 3D of the development agreement to arrive at the amount of damages. Under paragraph 3D of the development agreement, Cold-well Banker was to receive \\\"as compensation for its efforts in the sale of each part of the property . a commission of 6% of the gross sales price for each condominium and a commission of 5% of the gross sales price for each apartment building.\\\"\\n. Evidence of a probable amount of actual damages is relevant to consider when assessing the reasonableness of a liquidated damages clause at the time of contracting. Dobbs, Remedies \\u00a7 12.5 at 822 (1973).\\n. Coldwell Banker does not claim actual damages, but seeks relief only under the liquidated damages clause.\\n. NDCC \\u00a7 32-03-36 reads:\\n\\\"Notwithstanding the provisions of this chapter, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases wherein exemplary damages or penal damages are authorized, and in the cases specified in sections 32-03-19, 32-03-26, and 36-21-13.\\\"\\n. There was testimony that 85-95% of the gross sales commissions received by Coldwell Banker does not constitute profit, but constitutes expenses incurred by performance. Meide argues, therefore, that the amount payable under the liquidated damages provision is the commissions after expenses were paid, i.e., 15% of the gross sales commissions.\\n. So did this court. Rule 55(a)(1), NDRCivP, authorizes default judgment in certain circumstances when the claim is \\\"for a sum certain or for a sum which can by computation be made certain.\\\"\"}"

nd/10670098.json

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+"{\"id\": \"10670098\", \"name\": \"Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant and Appellant, and Elden Brady, Defendant; Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant, and Elden Brady, Defendant and Appellant\", \"name_abbreviation\": \"Fischer v. Knapp\", \"decision_date\": \"1983-04-04\", \"docket_number\": \"Civ. Nos. 10292, 10306\", \"first_page\": 76, \"last_page\": \"86\", \"citations\": \"332 N.W.2d 76\", \"volume\": \"332\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-11T00:29:04.482917+00:00\", \"provenance\": \"CAP\", \"judges\": \"PEDERSON and SAND, JJ., concur.\", \"parties\": \"Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant and Appellant, and Elden Brady, Defendant. Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant, and Elden Brady, Defendant and Appellant.\", \"head_matter\": \"Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant and Appellant, and Elden Brady, Defendant. Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant, and Elden Brady, Defendant and Appellant.\\nCiv. Nos. 10292, 10306.\\nSupreme Court of North Dakota.\\nApril 4, 1983.\\nJames A. Wright (argued) and Cecelia A. Wikenheiser, of Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for plaintiffs and appellees.\\nJames S. Hill, Sp. Asst. Atty. Gen., Bismarck, for Richard Knapp.\\nB. Timothy Durick, Sp. Asst. Atty. Gen., Bismarck, for Elden Brady.\", \"word_count\": \"5797\", \"char_count\": \"34204\", \"text\": \"VANDE WALLE, Justice.\\nThe defendants, Richard Knapp and Elden Brady, have filed separate appeals from a judgment of the district court of Stutsman County dated September 16,1981, and from separate orders of that court, dated August 2, 1982, denying motions by Knapp and Brady for relief from the judgment and for a new trial. By stipulation of the parties the appeals have been consolidated for disposition by this court. We reverse the orders denying a new trial.\\nOn August 31,1979, fifteen live red foxes were confiscated from Donald and Maurice Fischer, brothers, who are the plaintiffs in this case, by Knapp, a district game warden employed by the North Dakota State Game and Fish Department. Knapp confiscated the foxes in the belief that the Fischers had dug the foxes out of their natural den in violation of State law. Knapp took the foxes to the Spiritwood Lake field station pending disposition of criminal charges filed against the Fischers for unlawful possession of furbearers. Brady, employed as a caretaker at the Spiritwood facility by the State Game and Fish Department, testified that although he was not instructed by anyone to care for the foxes he did so. Knapp testified that although he was unaware that anyone had been instructed by the Department to take care of the foxes he looked at the fox cages \\\"approximately once a week\\\" but he did not feed the foxes or clean the cages.\\nOn December 6, 1979, the Fischers entered guilty pleas for \\\"illegal possession of furbearers.\\\" As part of the sentence, they were each fined $50 and were ordered to pay $100 to reimburse the State Game and Fish Department for the feeding and care of the confiscated foxes. On that same date the foxes were returned to the Fisch-ers.\\nThereafter, the Fischers filed this civil action against Knapp and Brady seeking compensatory and punitive damages for injuries to the foxes allegedly caused by the willful or grossly negligent failure of the defendants to provide proper care for the foxes during the three-month confiscation period. The case was tried before a jury, which returned a special verdict in favor of the Fischers awarding compensatory damages against Knapp and Brady in the amount of $1,976.95, as well as punitive damages against Brady in the amount of $250 and punitive damages against Knapp in the amount of $2,500. Judgment was entered by the district court on September 16, 1981, in the amount of the jury verdict together with costs and disbursements. On November 30, 1981, through separate counsel, Knapp and Brady filed separate motions requesting relief from the judgment and for a new trial. By separate orders, both dated August 2,1982, the district court denied the motions. Knapp and Brady have appealed to this court from the judgment dated September 16, 1981, and from the court's orders dated August 2, 1982.\\nWith the exception of one issue which has been raised only by Knapp on appeal, Knapp and Brady have raised the same issues and have taken substantially identical positions with regard to those issues.\\nThe issue raised by Knapp alone is: Whether or not the district court abused its discretion in denying a new trial on the ground that defendant Brady communicated with the jury during a trial recess.\\nThe following issues have been raised by both Knapp and Brady on appeal:\\n1. Whether or not the district court abused its discretion in refusing to grant a new trial on the following grounds:\\na. That the State of North Dakota, through the State Game and Fish Department, and not Knapp or Brady, is the real party in interest and that the lawsuit therefore is barred because the State is immune from liability under the doctrine of sovereign immunity.\\nb. That there is newly discovered evidence requiring a new trial under Rule 59(b)(4), N.D.R.Civ.P.\\nc. That there is not substantial evidence in the record to support the jury verdict.\\nd. That the convictions of Donald and Maurice Fischer for illegally digging out furbearing animals in violation of Section 20.1-07-05, N.D.C.C., were improperly excluded as evidence by the district court.\\n2. Whether or not the district court erred in denying Knapp's and Brady's motions for a directed verdict under Rule 50, N.D.R.Civ.P.\\n3. Whether or not the district court erred in denying Knapp's and Brady's motions to dismiss, under Rule 12(b), N.D.R. Civ.P., for failure to state a claim upon which relief could be granted.\\n4. Whether or not the district court erred in denying Knapp's and Brady's motions for relief from the judgment under Rule 60(b), N.D.R.Civ.P.\\nOne of the grounds raised by Knapp in support of his motion for a new trial was that defendant Brady, after the jury had been sworn, engaged in a conversation with one or more of the jurors during a trial recess. Knapp asserts that neither he nor counsel for the defendants became aware of the contact until after the judgment was entered. In denying the request for a new trial on this ground the district court stated, in relevant part, in its memorandum decision:\\n\\\"The Court finds that the contact in this case was the mere exchange of simple pleasantries as is indicated by the affidavits of those who were best able to observe the contact and hear what was going on.\\n\\\"The affidavits clearly reflect that the contact was minimal. It was in the nature of a greeting and it was properly terminated by the bailiffs when it occurred.\\n\\\"It is clear from all the affidavits that the contact was minimal and there is not the slightest hint that any of the contact had to do with conversing on the subject of the trial or in forming any opinions with reference thereto.\\\"\\nIt is within the sound discretion of the trial court to determine whether or not a new trial should be granted, and the trial court's determination in this regard will not be overturned on appeal unless a manifest abuse of discretion is shown. Basin Electric Power Co-op. v. Paulson, 289 N.W.2d 548 (N.D.1980).\\nPursuant to Section 28-14-16, N.D. C.C., the jurors are to be admonished by the court that \\\"it is their duty not to converse with or suffer themselves to be addressed by any person on any subject of the trial, .\\\" Although it was not recorded, the court, through its memorandum decision, states that the jury was admonished as required by statute. None of the affidavits submitted by Knapp in support of his motion indicate that there was conversation between defendant Brady and the jurors on any subject of the trial. Upon reviewing those affidavits, we do not believe the trial court erred in concluding that the contact between defendant Brady and the jurors was \\\"minimal\\\" and was quickly terminated by one of the bailiffs.\\nIn Schoenrock v. Eib, 75 S.D. 613, 71 N.W.2d 82 (1955), one of the two defendants held a conversation with jurors during a recess consisting of a comparison of farming conditions in the defendant's home State of Kansas with those in South Dakota. In upholding the trial court's denial of a motion for a new trial, the South Dakota Supreme Court stated:\\n\\\"Of course the respondent should have avoided all contact with jurors but for this court to hold that the trial court abused its discretion in holding that the record facts cast no just suspicion upon the verdict would be simply opening the door for setting aside verdicts because of some whimsey or fanciful notion conceived after an adverse verdict.\\\" 75 S.D. at 616, 71 N.W.2d at 83.\\nWe are well aware that the law with regard to jury conduct must be strictly followed in order to keep the conduct of jurors and jury verdicts above suspicion. See James Turner & Sons v. Great Northern Railway Company, 67 N.D. 347, 272 N.W. 489 (1937). Nevertheless, under the circumstances of the alleged jury misconduct in this case and on the basis of the affidavits presented before the district court, we conclude that the trial court did not abuse its discretion in refusing to grant a new trial because defendant Brady's contact with the jury was \\\"minimal\\\" and did not relate to any subject matter of the trial. We believe, as did the South Dakota Supreme Court in Schoenrock, supra, that to overturn the trial court's ruling for abuse of discretion would constitute setting aside a verdict on a \\\"whimsey or fanciful notion\\\" that prejudicial misconduct occurred.\\nKnapp and Brady assert that this lawsuit is, in effect, an action against the State of North Dakota which is barred under the doctrine of sovereign immunity. We disagree with Knapp and Brady's analysis of the nature of this lawsuit.\\nThis action is not against the State of North Dakota but rather is against Knapp and Brady, as individuals, for willful or grossly negligent conduct in failing to properly care for foxes in their possession. That Knapp and Brady may have been acting in the scope of their employment as employees of the State Game and Fish Department while the foxes were in their possession does not transform the Fischers' lawsuit into one against the State nor does it shield Knapp or Brady from liability under the cloak of sovereign immunity for wrongful acts committed by them. Spielman v. State, 91 N.W.2d 627 (N.D.1958).\\nIn Spielman, supra, the plaintiff brought a personal-injury action against the State of North Dakota, Sivert W. Thompson, as State Highway Commissioner for the State Highway Department, and John M. Weber, an employee of the State Highway Department who was driving a motor vehicle within the scope and course of his employment when a collision occurred which allegedly caused injuries to the plaintiff. The complaint did not allege that Thompson had personally committed any negligent acts, and this court concluded that because Thompson was made a defendant only in his official capacity as State Highway Commissioner he was subject to the same defenses and immunities as the State of North Dakota. However, the complaint did allege specific acts of negligence against Weber, an employee of the State Highway Department, for which, this court concluded, Weber-was subject to liability without the protection of governmental immunity:\\n\\\"He [Weber] is alleged to be an employee of the State Highway Department whose negligence directly resulted in the plaintiff's injury. The mantle of governmental immunity does not protect an employee of the government from liability for negligent acts of commission by the employee.\\\" 91 N.W.2d at 630. The complaint in this action, like the complaint with regard to Weber in Spielman, supra, alleges specific wrongful acts on the part of Knapp and Brady. Consequently, the complaint states a cause of action against Knapp and Brady as individuals for which they are subject to liability without the protection of sovereign immunity.\\nRelative to this issue, Knapp and Brady also assert that any duty to care for the foxes during the period of confiscation was held by the State Game and Fish Department and not by them as individuals. They assert that the trial court erred when it impliedly determined, by submitting the case to the jury, that Brady and Knapp had assumed a duty of care for the foxes. Upon reviewing the record, we conclude that the trial court did not err in determining that Knapp and Brady had assumed a duty of care for the foxes under the circumstances of this case. Brady conceded on the witness stand that although he was not instructed to do so, he assumed the function of caring for the foxes during their period of confiscation. Knapp testified that he was unaware that anyone had been instructed by the Department to care for the foxes but that he looked at the cages \\\"approximately once a week.\\\" We conclude that the trial court did not err in determining that, under the circumstances, Knapp and Brady both had assumed a duty of care for the foxes. We further conclude that this lawsuit was properly brought against Knapp and Brady as individuals and that it is not an action against the State of North Dakota or the State Game and Fish Department, as Knapp and Brady have asserted. Accordingly, we conclude that the district court did not abuse its discretion in refusing to grant a new trial on this ground.\\nOf the remaining issues, we believe one is dispositive of the appeal from the order denying the motion for a new trial, i.e., the assertion that the trial court abused its discretion in refusing to grant a new trial on the ground that the court improperly excluded evidence that Donald and Maurice Fischer were convicted in Logan County of illegally digging out furbearing animals during June of 1979. The fifteen foxes which were seized on August 31,1979, were returned to the Fischers on December 6, 1979, as part of a negotiated plea agreement under which the Fischers pleaded guilty, before the Stutsman County court of increased jurisdiction, to the crime of \\\"illegal possession of furbearers.\\\" Although the record does not disclose the factual basis upon which the guilty pleas were entered, the Fischers assert that the Stutsman County convictions were based upon the Fischers' failure to have proper health certificates when the foxes they purchased in South Dakota were transported to North Dakota. Approximately two weeks after the foxes were returned as part of the Stutsman County plea negotiations, the Fischers were convicted in Logan County, upon guilty pleas, to the crime of illegally digging out furbearing animals during June, 1979, in violation of Section 20.1-07\\u2014 05, N.D.C.C.\\nA review of the record reveals that plaintiffs filed a motion in limine to prevent the defendants from introducing evidence of the conviction. Defendants resisted the motion in limine in a written response and brief to the trial court. The morning of trial the trial judge announced:\\n\\\"Last week \\u2014 and I can't recall the day, I guess it was Thursday, the Court took under advisement a Motion to Strike and Motion in Limine. At that time the Court expressed its thoughts but told both of you that I would reserve my ruling until today. I am under the assumption that we weren't going to have the claim for fox that were dug up. If there is a mistaken assumption then I would like to know.\\n\\\"MR. WRIGHT: No, Your Honor, we are not.\\n\\\"THE COURT: It is just for, apparently, purchased fox? Then I am going to rule that the evidence of things that happened in Logan County with respect to digging up fox are irrelevant and any testimony with regard thereto would be irrelevant to that extent I think. I will make the ruling that I will grant the Motion in Limine for that portion of charges relating to any fox that were dug up since that's illegal under the law to take them that way. You can't acquire possession illegally.\\n\\\"MR. ADKINS: I just want to make sure I have this all straight. Because I don't want to do anything to cause a mistrial. I cannot talk about what happened in Logan County?\\n\\\"THE COURT: Right.\\n\\\"MR. ADKINS: Can I talk about what was \\u2014 as far as the Game and Fish people did investigating out at the Fisher [sic] farm and those events?\\n\\\"THE COURT: That's where the fox were?\\n\\\"MR. ADKINS: That's where they were discovered.\\n\\\"THE COURT: I think I am not going to say that. You can bring that up. I don't want any talking about conviction. . But I don't want to hear anything about convictions in Logan County. That's all for sure.\\\"\\nAdditionally, in discussing the jury instructions with counsel in chambers the trial judge stated:\\n\\\"I felt the theme of the lawsuit, although I weigh them differently than the jury, I felt that one of the themes was a legitimate question was whether these fox were dug up or whether they were purchased. In the event that the jury finds that these are dug up, which would answer that first special question, if they answer no, I feel that as a matter of law, since they would be in illegal possession, they would not be entitled to recover anything even though they got back ille gal fox. There is some evidence in that regard.\\\"\\nThe first question in the special-verdict form submitted to the jury read:\\n\\\"Do you find from a preponderance of the evidence that the fox in question were purchased by the plaintiffs?\\\"\\nThe trial court was, of course, correct in its observation that if the foxes were illegally dug the plaintiffs would not be entitled to recover anything. Section 20.1-01-03, N.D.C.C., provides, in part, that the \\\"ownership of and title to all resident . wild animals within this state shall be in the state for the purpose of . maintaining action for damages as herein provided. Any person catching, killing, taking, trapping, or possessing any . . wild animals protected by law . shall be deemed to have consented that the title thereto shall remain in this state for the purpose of regulating the taking, use, possession, and disposition thereof. The state, through the office of attorney general, may institute and maintain any action for damages against any person who unlawfully causes, or has caused within this state, the death, destruction, or injury of . wild animals, except as may be authorized by law.\\\" [Emphasis supplied.]\\nFurthermore, Section 20.1-10-01, N.D. C.C., provides, in part, that: \\\"The commissioner, deputy commissioner, or any bonded game warden shall seize all . wild animals, . taken, killed, or possessed, or transported contrary to law, . All property so seized shall be held subject to the order of a court of competent jurisdiction.\\\"\\nIf the animals illegally dug were the foxes in question it is clear that the Fischers had no ownership interest in them that would entitle them to damages for mistreatment of the animals, at least prior to the time of the plea agreement wherein the foxes were returned to the Fischers.\\nThe defendants moved for a new trial alleging as one of the errors the error they now raise in this court. In its memorandum opinion denying the motion for new trial, the trial court indicated that there was sufficient evidence in the record to establish that the foxes were purchased by the plaintiffs in South Dakota. That, of course, is the threshold issue in this case, i.e., were the foxes purchased or dug up illegally?\\nThe relevance and probative value of the evidence of the conviction was obvious. The filing of the motion in limine by the plaintiffs, the defendants' response thereto, the statements of the trial judge referred to previously herein, and the wording of the first question of the special-verdict form all demonstrated the relevance and probative value of the evidence of the conviction. It is apparent that all parties, as well as the trial judge, were aware of the significance of that evidence.\\nA party need not make formal objection or exception to a court ruling or order to preserve the right of appeal if the party appeared and resisted the subject matter, which was the situation in the instant case. Rule 46, N.D.R.Civ.P. The right to appeal was preserved by the defendants.\\nRule 404(b), N.D.R.Ev., provides:\\n\\\"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.\\\"\\nRelevancy is the key factor in determining whether or not a prior conviction or evidence relating thereto may be admissible. See footnote 3 in State v. Forsland, 326 N.W.2d 688 (N.D.1983), which states, in part:\\n\\\"Rule 404(b) is a specialized rule of relevancy. Accordingly, as with any determination pursuant to Rule 401, counsel must be prepared to 1) identify the consequential fact to which the proffered evidence of other crimes, wrongs or acts is directed (see \\u00b6 404[09]), 2) prove the other crimes, wrongs or acts (see \\u00b6 404[10]), and 3) articulate precisely the evidential hypothesis by which the consequential fact may be inferred from the proffered evidence (see \\u00b6 404[11]). Evidence which passes muster up to this point must, in addition, satisfy the balancing test imposed by Rule 403 which requires the probative value of the other crimes evidence to outweigh the harmful consequences that might flow from its admission.\\\"\\nIn the instant case the title to and the right of possession was and is of prime concern to the proper disposition of the action. See 18 Am.Jur.2d, Conversion, \\u00a7 156, p. 250. See also 29 Am.Jur.2d Evidence, \\u00a7 446, p. 506.\\nThis court, in State v. Hastings, 77 N.D. 146, 41 N.W.2d 305 (N.D.1950), held that no person can acquire the right to sell muskrat pelts unless such pelts are those of animals taken in open season, and those taken out of season are subject to seizure by the State as contraband.\\nThe issues in this lawsuit make ownership, possession, and manner of acquisition a prime concern and as such evidence how and in what manner the animals were acquired is relevant if not necessary. This includes any acquisition by any unlawful means. Rules of law and rules of evidence subject to construction must be interpreted to promote and foster the ends of justice.\\nEven the privilege between doctor and patient, formerly established by statute and now by Rule 503, North Dakota Rules of Evidence, contains an exception. Rule 503(d)(3), N.D.R.Ev., in substance provides that if the patient in a proceeding relies upon a physical condition as either a claim or defense, the privilege is waived. Sagmiller v. Carlsen, 219 N.W.2d 885 (N.D.1974), held that a patient who brings a malpractice action waives the privilege. Similarly, in this case the plaintiffs rely upon proper possession or ownership and thus the manner in which plaintiffs acquired or came into possession of the animals (foxes in question) becomes relevant, and under Rule 609 the facts relating to the conviction would be admissible even if the conviction per se would not be conclusive of the issue. The conviction and the facts upon which it was founded constitute evidence for the jury to consider in resolving the disputed facts of this case.\\nThe jury in its special verdict found that the plaintiffs acquired the foxes by purchase. The big question, however, remains and exists: Would the jury have made this finding if.it had been able to consider the evidence relating to the conviction? The evidence rejected by the court was not intended to be used as character evidence [Rule 404, N.D.R.Ev.], but was directly related to the question as to whom the foxes belonged and how they were acquired. If the jury is given evidence in only one side of an issue, in all probability and logically the jury will form a conclusion only in accordance with the evidence submitted.\\nThe instant case is a civil, not a criminal, case and the issues are quite different. In criminal cases, because the defendant has the option to not testify, prior convictions are more difficult to be admitted. Consequently, in this respect the application of the rules of evidence in criminal cases is not the same as in civil cases, where the parties do not have that option. Furthermore, the parties against whom the evidence was proposed to be used were the plaintiffs.\\nUnder the ruling, by excluding the evidence of prior conviction and the facts leading up to it, a convicted plaintiff is in a better position than a nonconvicted plaintiff. A rule or a rule of law should not be interpreted so as to benefit or reward the wrongdoer or to shield the perpetrator. See Beck v. Lind, 235 N.W.2d 239 (N.D.1975).\\nAlthough the proffered evidence of other crimes has probative value in proving something other than the convicted person's criminal propensity, the evidence is not admissible as a matter of course. Dahlen v. Landis, 314 N.W.2d 63 (N.D.1981). However, because the issue of legal ownership of the foxes was crucial to the central issue of the case, i.e., whether or not the Fischers are entitled to compensation for the wrongful treatment of the foxes, and because this issue was presented to and recognized by the trial court, we believe it was error to exclude that evidence. Nor can we conclude that the error in admitting evidence of the conviction was not prejudicial because other evidence as to the digging of foxes was admitted. Rule 62, N.D. R.Civ.P., provides that no error in the exclusion of evidence is ground for granting a new trial unless refusal to take such action appears to the court inconsistent with substantial justice. The evidence of the conviction is the evidence of the illegal digging of the foxes and, as we have already noted, is directly concerned with the issue of ownership of the foxes and the resulting entitlement to damages for the negligent care of the foxes. Under these circumstances it was prejudicial error to reject the evidence of the conviction. Dugas v. Felton, 249 N.W.2d 215 (N.D.1976); Aim Construction Company v. Vertin, 118 N.W.2d 737 (N.D.1962).\\nAs their last three issues, Knapp and Brady assert: (1) that the district court erred in denying their motions for a directed verdict under Rule 50, N.D.R.Civ.P.; (2) that the district court erred in denying their Rule 12(b), N.D.R.Civ.P., motions to dismiss for failure to state a claim; and (3) that the district court erred in denying their motions for relief from the judgment under Rule 60(b), N.D.R.Civ.P. The reasons given by Knapp and Brady in support of the foregoing motions were also raised in support of their motions for a new trial, all of which have been previously discussed in this opinion. We conclude that further discussion of those matters is unnecessary.\\nIn accordance with this opinion, the orders of the district court of Stutsman County dated August 2, 1982, denying a new trial, are reversed.\\nPEDERSON and SAND, JJ., concur.\\nLECLERC, District Judge, sitting in place of PAULSON, J., disqualified.\\n. One of the issues raised by the appellants which we believe is unnecessary to discuss in view of our disposition of this matter concerns the sufficiency of the evidence to support the jury verdict. The record is replete with evidence that the foxes were not properly cared for after they were confiscated by the defendants and before they were returned to the plaintiffs as a result of the plea agreement. Our remand for a new trial should not be construed as an indication that the foxes should not have been properly cared for. However, there are provisions to punish those who do not treat animals humanely (see Chapter 36-21.1, N.D.C.C.) other than rewarding those who may have no possessory interest in the foxes.\"}"

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+"{\"id\": \"10672595\", \"name\": \"Robert KELLER, Plaintiff and Appellee, v. John HUMMEL, Jr., Defendant and Appellant\", \"name_abbreviation\": \"Keller v. Hummel\", \"decision_date\": \"1983-05-26\", \"docket_number\": \"Civ. No. 10350\", \"first_page\": 200, \"last_page\": \"204\", \"citations\": \"334 N.W.2d 200\", \"volume\": \"334\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:16:09.441494+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and SAND, VANDE WALLE, and PAULSON, JJ., concur.\", \"parties\": \"Robert KELLER, Plaintiff and Appellee, v. John HUMMEL, Jr., Defendant and Appellant.\", \"head_matter\": \"Robert KELLER, Plaintiff and Appellee, v. John HUMMEL, Jr., Defendant and Appellant.\\nCiv. No. 10350.\\nSupreme Court of North Dakota.\\nMay 26, 1983.\\nFreed, Dynes, Reichert & Buresh, Dickinson, for plaintiff and appellee; argued by George T. Dynes, Dickinson.\\nVogel Law Firm, Mandan, for defendant and appellant; argued by Jos. A. Vogel, Mandan.\", \"word_count\": \"2053\", \"char_count\": \"12155\", \"text\": \"PEDERSON, Justice.\\nJohn Hummel, Jr. appeals from a partial summary judgment interpreting a contract for the sale of a quonset building. We reverse and remand for trial.\\nIn April 1979 the parties entered into a written agreement whereby Hummel agreed to sell a quonset-type building to Robert Keller. The contract provided for a purchase price of $3,500, with $2,000 to be paid April 25, 1979, and the balance of $1,500 to be paid before the structure was moved or by April 15,1980, whichever came first. The terms of the contract set the rate of interest for the unpaid amount at 5%. The contract also provided that Keller could use the quonset for storage of grain until the time of its removal from the premises and that the building could be removed anytime, but no later than April 15, 1982.\\nKeller paid the $2,000 down payment and subsequently stored approximately 10,000 bushels of wheat from his 1979 crop in the quonset. It is not disputed that Keller failed to pay the balance due on the contract by April 15, 1980. Hummel contends that Keller informed him that he no longer had any use for the building and that, therefore, Hummel was justified in treating the contract as cancelled. Keller disputes Hummel's contention and says that he informed Hummel, shortly after he had missed payment on April 15, 1980, that he intended to remove and sell his grain in the summer of 1980 and use the proceeds to pay the balance due on the contract, but that Hummel denied him access to the quonset.\\nIn April 1982, following unsuccessful attempts to settle the dispute, Keller commenced this action seeking an injunction to restrain Hummel from interfering with the removal of the grain from the quonset and for compensatory and punitive damages. Hummel counterclaimed, alleging cancellation of contract and seeking an equitable storage lien on Keller's wheat from April 15, 1980. In April 1982 Keller tendered to Hummel the sum of $1,725 which represented the balance due on the contract, plus interest at the contract rate of 5%. Hum-mel refused to accept payment and the money was then deposited in the district court where it remains pending the final outcome of this action.\\nThe district court entered a restraining order prohibiting Hummel from interfering with the removal of Keller's grain. Keller's subsequent motion for partial summary judgment was granted. The district court interpreted the contract and determined ownership of the quonset in favor of Keller, leaving for trial the issue of damages. It is from this partial summary judgment that Hummel appeals.\\nHummel states the issues on appeal as follows:\\n1. Did the plaintiff breach the contract, thus entitling defendant to cancel the same pursuant to Chapter 9-09, NDCC?\\n2. Is the defendant entitled to a storage lien on the grain stored by the plaintiff in the quonset after April 15,1980, the date of breach, until its removal in June 1982?\\n3. Is summary judgment appropriate in the instant case?\\nSummary judgment will be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. Rule 56(c), NDRCivP. Summary judgment is not appropriate if the moving party is not entitled to judgment as a matter of law, nor is summary judgment appropriate if it appears from the record that there is an unresolved issue of material fact or if reasonable differences of opinion exist as to the inference to be drawn from undisputed facts. Hadland v. Schroeder, 326 N.W.2d 709 (N.D.1982); Benson Cty. Co-op., Etc. v. Central Livestock, 300 N.W.2d 236 (N.D.1980).\\nSummary judgment is not appropriate in the instant case because there are genuine issues as to a number of material facts. The material facts involve such questions as whether time of performance of the contract is of the essence and, if time is not of the essence, whether Keller tendered payment within a reasonable time after the date specified in the contract.\\nIn Sorlie v. Ness, 323 N.W.2d 841, 844 (N.D.1982) this court stated:\\n\\\"The construction of a written contract to determine its legal effect is a question of law for the court to decide. Metcalf v. Security International Ins. Co., 261 N.W.2d 795 (N.D.1978). The determination of whether or not a contract is ambiguous is also a question of law for the court to decide. Schulz v. Hauck, 312 N.W.2d 360 (N.D.1981); Grove v. Charbonneau Buick-Pontiac, Inc., 240 N.W.2d 853 (N.D.1976). Pursuant to Section 9-07-04, N.D.C.C., the intention of the parties under a written contract is to be ascertained from the writing alone if possible. If the parties' intentions can be ascertained from the writing alone, without reference to extrinsic evidence, then the interpretation of the contract is entirely a question of law, and this court will independently examine and construe the contract to determine whether or not the district court erred in its interpretation of it. Metcalf v. Security International Ins. Co., supra; Stetson v. Blue Cross of North Dakota, 261 N.W.2d 894 (N.D.1978). But, if the parties' intentions cannot be determined from the writing alone and reference must be made to extrinsic evidence, then those questions in regard to which extrinsic evidence is adduced are questions of fact to be determined by the trier of fact. Farmers Elevator Company v. David, 234 N.W.2d 26 (N.D.1975); Stetson v. Investors Oil, Inc., 140 N.W.2d 349 (N.D.1966).\\\"\\nSee also Ray Co., Inc. v. Johnson, 325 N.W.2d 250 (N.D.1982).\\nUnder the circumstances of this case it was error for the court to conclude, as a matter of law, that the contract was not ambiguous. The parties' intentions as to whether or not time was of the essence cannot be determined from the writing alone. Unless the intent that time is of the essence is manifest from the face of the contract, it is a question to be determined by the trier of fact and summary judgment should not be granted if reasonable men could differ on the issue. Farmers Elevator Company v. David, supra. Although the quonset sale agreement provided that the balance of the purchase price was to be paid by April 15, 1980, it did not contain the words \\\"time is of the essence,\\\" and some of the words used and the conduct of the parties do not support an intent that time was of the essence. If time was of the essence, Keller's failure to pay the balance due on time discharged Hummel from further obligation under the contract, and therefore Keller would not be entitled to summary judgment on the question of ownership of the quonset. E.E.E., Inc. v. Hanson, 318 N.W.2d 101 (N.D.1982). The trial court should have permitted the case to go to trial so that extrinsic evidence could have been received and weighed by the jury.\\nFurthermore, if it is determined that time is not of the essence, did Keller tender payment within a reasonable time after the specified date? Keller admittedly did not make the final payment by the date specified in the contract. Where time is not of the essence, a reasonable delay in performance does not constitute a breach of contract; however, an unreasonable delay constitutes a breach and justifies the remedy of cancellation. Tower City Grain Co. v. Richman, 262 N.W.2d 22 (N.D.1978). What constitutes a reasonable time within the facts of a given case is a question of fact. Mott Equity Elevator v. Svihovec, 236 N.W.2d 900 (N.D.1975). Whether or not Keller tendered performance within a reasonable time under the circumstances is a question of fact upon which reasonable men could differ, and therefore is not an appropriate issue for summary judgment.\\nFor the reasons stated, the summary judgment is reversed and the case is remanded for trial on the merits. Because the summary judgment is reversed, the issues raised by the parties will be addressed at trial and, accordingly, it becomes unnecessary for us to discuss those issues. Ordinarily, however, a mere dispute regarding an incidental portion of a contract which involves only the payment of money does not justify a rescission of contract. Langer v. Lemke, 78 N.D. 383, 49 N.W.2d 641 (1951). See also 17 Am.Jur.2d Contracts \\u00a7 441, 503 and 504.\\nReversed and remanded.\\nERICKSTAD, C.J., and SAND, VANDE WALLE, and PAULSON, JJ., concur.\\n. The \\\"Quonset Sale Agreement\\\" provided as follows:\\n\\\"This agreement made and entered into this 25th day of April, 1979, by and between John Hummel, Jr. of Mott, North Dakota, party of the first part, and Robert Keller, of Mott, North Dakota, party of the second part.\\n\\\"Party of the first part, agrees to sell as is to Robert Keller, party of the second part a 36' X 96' quonset type building of wood construction. The structure is on the SE 'A of 18-137-92, and is to be moved anytime, but no later than April 15, 1982. The responsibility and cost of moving the structure are that of the purchaser, and will be in addition to the purchase price. Purchase price is the sum of $3500.00, two thousand dollars ($2000.00) paid down on April 25, 1979, and a balance of $1500.00 to be paid before the structure is moved or by April 15, 1980, whichever comes first. Rate of interest for the unpaid amount will be 5%.\\n\\\"It is also understood that the cement slab and stanchions not be damaged in the process of removing the structure. Purchaser may use the structure for the storage of grain at its present location until such time when it must be removed from the premises.\\\"\\n. Partial summary judgment is provided for by Rule 56(d), NDRCivP.\\n. The partial summary judgment decreed as follows:\\n\\\"1. That the written agreement between the parties, dated April 25, 1979, is clear and unambiguous and is properly construed and enforced by the Court.\\n\\\"2. Under said Agreement of April 25, 1979, the Plaintiff is entitled to have and remove the quonset building from the premises owned by the Defendant, having already tendered into Court for the Defendant the sum of $1,725.00, which is the full amount owing under the Contract, plus interest as provided in the written contract.\\n\\\"3. There is no genuine issue as to any material fact concerning the ownership of the quonset building, concerning which the Plaintiffs claim is herewith in all respects granted, and the Defendant's claim is herewith denied, as a matter of law.\\n\\\"4. Under said written agreement between the parties, the Plaintiff was entitled to store his wheat in the building without cost to him, other than the payment of the purchase price for the building, and therefore the Defendant has no cause of action and is not entitled to any claim of compensation for the storage of the Plaintiffs wheat in the building, which is the subject of the April 25, 1979, agreement.\\n\\\"5. The Defendant had no right to cancel, or otherwise terminate, the April 25, 1979, agreement, or any of its various provisions.\\n\\\"6. In reaching its determination on the issues herein decided, the Court has determined certain of the issues between the parties, leaving several other issues undecided. The remaining issues, including all of the claims of damage made by the Plaintiff, remain for trial to the jury.\\n\\\"7. The Court has expressly found that there is no just reason for delay and that this Partial Summary Judgment is to be a final judgment on the matters herein determined, notwithstanding the fact that fewer than all of the claims between the parties are being determined by this Partial Summary Judgment.\\\"\\n.In an action involving multiple claims, a partial summary judgment entered pursuant to Rule 54(b), NDRCivP on one or more but fewer than all the claims upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment is a final judgment for the purposes of appeal.\"}"

nd/10672672.json

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+"{\"id\": \"10672672\", \"name\": \"Vernon BAHM, Plaintiff and Appellee, v. Reuben EISENBARTH, Defendant and Appellant\", \"name_abbreviation\": \"Bahm v. Eisenbarth\", \"decision_date\": \"1983-10-31\", \"docket_number\": \"Civ. No. 10489\", \"first_page\": 568, \"last_page\": \"569\", \"citations\": \"339 N.W.2d 568\", \"volume\": \"339\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T21:14:03.706619+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and VANDE WALLE, SAND and H.F. GIERKE III, JJ., concur.\", \"parties\": \"Vernon BAHM, Plaintiff and Appellee, v. Reuben EISENBARTH, Defendant and Appellant.\", \"head_matter\": \"Vernon BAHM, Plaintiff and Appellee, v. Reuben EISENBARTH, Defendant and Appellant.\\nCiv. No. 10489.\\nSupreme Court of North Dakota.\\nOct. 31, 1983.\\nRosenberg, Evans, Moench & Baird, Bismarck, for plaintiff and appellee; argued by Dale W. Moench, Bismarck.\\nCalvin Hoovestol, Bismarck, for defendant and appellant; argued by Calvin Hoo-vestol, Bismarck.\", \"word_count\": \"377\", \"char_count\": \"2333\", \"text\": \"PEDERSON, Justice.\\nClaiming that he had sold Eisenbarth $882 worth of hay and had not been paid, Bahm proceeded with an action in small claims court (Ch. 27-08.1, NDCC). Eisen-barth elected to remove the action to county court and, in his answer and counterclaim, admitted the purchase but alleged that the quality of the hay was intentionally and mailiciously misrepresented. Eisen-barth asked for $1,500 exemplary damages, plus storage and shipping costs.\\nTrial was to the court without a jury, after which findings of fact, conclusions of law and order for judgment were made by the court (Rule 52(a), NDRCivP). There were special findings that some of the hay was \\\"bad\\\"; that the quality of the hay was \\\"average\\\"; and that there was no intentional or malicious misrepresentation of the quality. By separate conclusions of law the court determined that Bahm was entitled to recover the sum of $786, plus statutory costs, and that Eisenbarth's counterclaim should be dismissed with prejudice.\\nThere is no transcript' of the testimony received at the trial, and the alternatives provided by Rule 10(f) or (g), NDRAppP have not been followed. We must accordingly accept the findings of fact as correct.\\nEisenbarth appeals and argues (if we understand correctly) that, as a matter of law, he had a right to reject the hay; he did seasonably reject it; he had a right to revoke his acceptance of the hay; he did seasonably revoke his acceptance; and that he had no obligation to return the rightfully rejected hay. These rights, he asserts, are available to him under \\u00a7 41-02-65,41-02-71, and 41-02-65(2)(e), NDCC, the Uniform Commercial Code.\\nThere were no findings of fact made that would provide the required support for conclusions compatible with Eisenbarth's assertions. It would have been error had the trial court made conclusions of law not justified by the findings of fact.\\nThe judgment is affirmed.\\nERICKSTAD, C.J., and VANDE WALLE, SAND and H.F. GIERKE III, JJ., concur.\"}"

nd/10673784.json

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+"{\"id\": \"10673784\", \"name\": \"In the Interest of Frieda RIEDEL\", \"name_abbreviation\": \"In the Interest of Riedel\", \"decision_date\": \"1984-08-22\", \"docket_number\": \"Civ. No. 10776\", \"first_page\": 773, \"last_page\": \"776\", \"citations\": \"353 N.W.2d 773\", \"volume\": \"353\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:45:39.893519+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., VANDE WALLE and SAND, JJ., and WALLACE D. BERNING, District Judge, concur.\", \"parties\": \"In the Interest of Frieda RIEDEL.\", \"head_matter\": \"In the Interest of Frieda RIEDEL.\\nCiv. No. 10776.\\nSupreme Court of North Dakota.\\nAug. 22, 1984.\\nDaniel E. Buchanan, Jamestown, attorney for petitioner R.A. Aligada; argued by Daniel E. Buchanan, Jamestown.\\nHjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for respondent Riedel; argued by Cecelia Ann Wiken-heiser, Jamestown.\", \"word_count\": \"1650\", \"char_count\": \"10211\", \"text\": \"PEDERSON, Justice.\\nThis is an expedited appeal (and an expedited opinion) pursuant to commitment procedures (Chapter 25-03.1, NDCC), from a continuing treatment order requiring that Riedel be continued in hospitalization and treatment for mental illness for an indefinite period or until further order of the court. The matter is remanded for preparation of findings. Jurisdiction is not retained as authorized by Rule 35(b), NDRAppP.\\nRiedel, having been twice before committed, was committed for hospitalization and treatment at the North Dakota State Hospital on a 90-day order from the Williams County Court (\\u00a7 25-03.1-22(1), NDCC). More than 14 days prior to the expiration of the 90 days, the superintendent of the State Hospital petitioned the Stutsman County Court for an order of continuing treatment (\\u00a7\\u00a7 25-03.1-21 and 25-03.1-22(2), NDCC).\\nThe petition alleged that: (1) Riedel is mentally ill; (2) alternative treatment is not in Riedel's best interest; (3) Riedel continues to be agitated, physically aggressive and demanding; (4) Riedel's condition has not improved; and (5) Riedel's treatment program consists of \\\"Neuroleptic medication \\u2014 Navane, Dilantin 300 mg BID for her epilepsy; ward milieu; thyroid replacement therapy.\\\" The petition also included a clinical estimate that indefinite further treatment was required. The certificate of Dr. Fe Cabuso, a licensed physician-psychiatrist, in support of the petition was attached (\\u00a7 25-03.1-23, NDCC).\\nAn independent expert examiner, Dr. Richard J. Moser, clinical psychologist, was appointed by the court as authorized and required by \\u00a7 25-03.1-19, NDCC. After examining Riedel, Dr. Moser filed a report with the court that included Dr. Moser's opinion that Riedel is a mentally ill person in need of hospitalization and treatment. The report indicated that a serious risk and substantial likelihood existed that Riedel would harm herself, others, or property and that alternative treatment is not in Riedel's best interest.\\nA hearing was held at which only testimony from Dr. Cabuso and Frieda Riedel was received. Dr. Cabuso described her contacts with and examination of Riedel and stated her opinion that Riedel is suffering from a mental illness known as \\\"organic personality syndrome.\\\" Dr. Cabuso expressed her view that hospitalization is required to prevent injury to Riedel and others, and that alternative treatment is not, at this time, indicated.\\nRiedel, on the other hand, stated that she \\\"is not that kind of a person\\\" and \\\"is not mentally ill.\\\" She very soon refused to be guided by counsel in her remarks, demonstrating a minimal self-control, and provoked an abrupt termination of the hearing.\\nThe court did not prepare and label \\\"findings of fact\\\" (Rule 52(a), NDRCivP) but, using a preprinted form, determined that Riedel is a mentally ill person requiring hospitalization and further treatment and, accordingly, ordered continuation thereof at the State Hospital for an indefinite period or until further order of the court.\\nThe concluding paragraph of \\u00a7 25-03.1-19, NDCC provides:\\n\\\"If, upon completion of the hearing, the court finds that the petition has not been sustained by clear and convincing evidence, it shall deny the petition, terminate the proceeding, and order that the respondent be discharged if he has been hospitalized prior to the hearing.\\\" [Emphasis added.]\\nSection 25-03.1-29, NDCC, relating to the appeal to this court from orders of involuntary commitment, including continuing treatment orders, describes the scope of review as follows:\\n\\\"The hearing [in the Supreme Court] shall be limited to a review of the procedures, findings, and conclusions of the lower court.\\\" [Emphasis added.]\\nIt is obvious that this court must have \\\"findings\\\" to review if we are to fulfill the requirements of this statute. The fact that \\u00a7 25-03.1-19, NDCC requires that the petition be denied unless it is sustained by \\\"clear and convincing\\\" evidence, does not abolish the requirement that \\\"findings\\\" be prepared.\\nRecently, in Estate of Bendickson, 353 N.W.2d 320 (N.D.1984), we stated:\\n\\\"In an ordinary case tried to the court without a jury we review findings of fact under the standard specified in Rule 52(a), NDRCivP. Since the above quoted statutes [\\u00a7\\u00a7 30.1-31-04(1) and 30.1-31-04(3)(b), NDCC] require 'clear and convincing' evidence to overcome the statutorily expressed presumption, Rule 52(a) has a very limited application in the instant case. Where the judging of credibility of witnesses is involved, we still acknowledge the advantage of the trial judge. See Zundel v. Zundel, 278 N.W.2d 123, 130 (N.D.1979). And, as we have often said, findings which are induced by an erroneous view of the applicable law are clearly erroneous, e.g., Winter v. Winter, 338 N.W.2d 819, 822 (N.D.1983).\\\"\\nThe State Hospital argues that the type of review in civil commitment cases in the Supreme Court is analogous to that done in juvenile cases \\u2014 that is \\\"akin to de novo review,\\\" and that, accordingly, \\\"findings made by the trial court (or even the absence of findings) lose significance in that review process.\\\"\\nThe statute (\\u00a7 27-20-29, NDCC) applicable to juvenile court matters provides in subsection (2) for \\\"proof beyond a reasonable doubt\\\" and in subsection (3) for \\\"clear and convincing evidence.\\\" This court has not relied in juvenile court cases upon these provisions in describing the scope of Supreme Court review as \\\"in the nature of trial de novo.\\\" Rather, a provision in \\u00a7 27-20-56(1), NDCC has been the basis of our statement.\\nDistrict Judge O'Keefe, sitting as a member of this court, authored a unanimous opinion by this court, In Re A.N., 201 N.W.2d 118 (N.D.1972), and quoted from \\u00a7 27-20-56(1), NDCC:\\n\\\"The appeal shall be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.\\\"\\nJudge O'Keefe then concluded that because \\u00a7 27-20-56(1), NDCC was in conflict with Rule 52(a), NDRCivP, the Legislature, which had abolished trial de novo on appeal by the repeal of \\u00a7 28-27-32, NDCC, had provided for a return \\\"to old ways\\\" for juvenile court cases. See also In Re J.Z., 190 N.W.2d 27, 29 (N.D.1971) and In Re Walter, 172 N.W.2d 603, 604 (N.D.1969).\\nThere is no authority granted to the Supreme Court in Chapter 25-03.1, NDCC, as in Chapter 27-20, NDCC, to hear the appeal \\\"upon the files, records, and minutes\\\" of the trial court, nor anything similar thereto. The scope of the Supreme Court review is explicitly restricted by the language, \\\"The hearing shall be limited to a review of the procedures, findings, and conclusions of the lower court.\\\"\\nBy Rule 2.1(c), NDRAppP: \\\"The record on appeal shall consist of the record required by Rule 10(a). A tape recording of the proceedings or an agreed statement of the case may substitute for the transcript.\\\"\\nWe conclude that a trial de novo type review is not authorized in the Supreme Court review of Chapter 25-03.1 orders. We conclude, however, that the basis of the trial court's determination must be reflected in findings of fact as we have oftentimes said in cases in which Rule 52(a), NDRCivP is entirely applicable.\\nThe extent of our review of those findings depends on the type of evidence required to sustain a position taken in the trial court and on the degree of deference required to be accorded to the trial court's evaluation of the credibility of witnesses.\\nRule 52(a), NDRCivP requires that trial courts \\\"find the facts specially\\\" in every \\\"action tried upon the facts without a jury.\\\" Section 25-03.1-20, NDCC requires that findings be \\\"entered in the record\\\" in involuntary mental health treatment cases. We accept the view that a significant purpose to be served by findings of fact in any type of case is to disclose with specificity the factual basis for the conclusion, in order that there be a clear understanding thereof by the parties and by this court. Hust v. Hust, 295 N.W.2d 316, 321 (N.D.1980); DeForest v. DeForest, 228 N.W.2d 919, 924 (N.D.1975); Ellendale Farmers Union Cooperative Ass'n v. Davis, 219 N.W.2d 829, 836 (N.D.1974); 9 Wright & Miller, Federal Practice and Procedure, Civil, \\u00a7 2582 at 722.\\nWe have criticized the practice of using preprinted forms that do not fulfill the requirements of the statutes and due process of law. See In Interest of Gust, 345 N.W.2d 42, 46 (N.D.1984), and cases cited therein. We do not intend to prohibit the use of forms if appropriately supplemented with specific facts on the face of the form or otherwise. It is difficult to visualize how forms alone can be used for findings of fact other than as a checklist or guide to determine whether or not all necessary findings have been made.\\nIn the instant case, where substantially all of the evidence, except Riedel's own opinion, supports the order requiring continued hospitalization and treatment, findings of fact which disclose \\\"clear and convincing\\\" supporting evidence should not be an insurmountable task.\\nEven though the trial court is not required to make a credibility determination because the basic evidence is not disputed, the trial court nevertheless is required to \\\"find\\\" the facts which will justify the legal conclusion of either commitment, alternative treatment, or no treatment.\\nThe other issues argued by Riedel, under the circumstances, are not dispositive of this case or of significant future issues in this case and will not be commented upon.\\nThe case is remanded with instructions that findings of fact on all issues, including those identified in \\u00a7 25-03.1-02(10) and (11), NDCC, be prepared forthwith. See discussion in In Interest of Rambousek, 331 N.W.2d 548, 551-552 (N.D.1983).\\nERICKSTAD, C.J., VANDE WALLE and SAND, JJ., and WALLACE D. BERNING, District Judge, concur.\\nGIERKE, J., disqualified; BERNING, D.J., sitting in his stead.\"}"

nd/10673854.json

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+"{\"id\": \"10673854\", \"name\": \"Dolly M. ROBERTS, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant\", \"name_abbreviation\": \"Roberts v. North Dakota Workmen's Compensation Bureau\", \"decision_date\": \"1982-11-17\", \"docket_number\": \"Civ. No. 10128\", \"first_page\": 201, \"last_page\": \"203\", \"citations\": \"326 N.W.2d 201\", \"volume\": \"326\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-11T02:17:52.468604+00:00\", \"provenance\": \"CAP\", \"judges\": \"VANDE WALLE, PEDERSON, PAUL-SON and SAND, JJ., concur.\", \"parties\": \"Dolly M. ROBERTS, Appellee, v. NORTH DAKOTA WORKMEN\\u2019S COMPENSATION BUREAU, Appellant.\", \"head_matter\": \"Dolly M. ROBERTS, Appellee, v. NORTH DAKOTA WORKMEN\\u2019S COMPENSATION BUREAU, Appellant.\\nCiv. No. 10128.\\nSupreme Court of North Dakota.\\nNov. 17, 1982.\\nElla Van Berkom, Minot, for appellee; argued by Ella Van Berkom, Minot.\\nJoseph F. Larson, II, Asst. Atty. Gen., North Dakota Workmen\\u2019s Compensation Bureau, Russel Building, Bismarck, for appellant; argued by Joseph F. Larson, II, Bismarck.\", \"word_count\": \"1382\", \"char_count\": \"8214\", \"text\": \"ERICKSTAD, Chief Justice.\\nThis is an appeal by the North Dakota Workmen's Compensation Bureau (the Bureau) from an order of the District Court of Nelson County, dated September 28, 1981, by which the district court reversed the Bureau's denial of Dolly M. Robert's claim for benefits and remanded the case for further disposition. We affirm the order of the district court.\\nOn April 4, 1979, Dolly was working as a surveyor's helper for Annco, Inc., at a bridge located southeast of McVille, North Dakota. She testified that as she was working with some metal rods along side the bridge she fell to the ground, landing on both feet. She testified that after the fall she was \\\"weak and shaky\\\" and that she told a fellow worker, Karla Christopherson, that she had fallen from the bridge, that she wasn't \\\"able to help her work\\\", and that she would like Karla to take her home. Karla wrote a letter statement about the incident, which was submitted as part of the record without objection by the Bureau, in which Karla stated that although she didn't see Dolly fall from the bridge, \\\"she obviously did from her shaken condition.\\\" Karla also stated in her letter that Dolly was \\\"weak and dazed\\\" and seemed \\\"chilled and shaky.\\\" Karla stated that she took Dolly home in the afternoon of April 4, 1979, and that Dolly \\\"limped\\\" when she walked toward her home from the car.\\nDolly did not return to work for Annco, Inc., subsequent to April 4, 1979. On April 6, 1979, she sought and received medical treatment from Dr. O.D. Sturlaugson.\\nOn April 9,1979, Dolly filed a claim with the Bureau for benefits under the workmen's compensation fund. The Bureau initially accepted the claim and paid medical expenses for Dolly in an amount totaling $325.35. Upon receiving further information, the Bureau determined that it should not have made payments on the claim, and it dismissed the claim on February 5, 1980.\\nDolly requested a hearing which was held on April 17, 1980, after which the Bureau entered an order affirming its dismissal of the claim. Dolly appealed to the district court which reversed the 'Bureau's order. The Bureau appealed from the district court's order and on appeal has raised the sole issue of whether or not the Bureau's finding that Dolly failed to prove her injuries were caused by her employment-related fall from the bridge is supported by a preponderance of the evidence.\\nIn reaching its determination, the Bureau made a finding that Dolly \\\"fell from a height of approximately five to six feet\\\", and on appeal the Bureau concedes that Dolly fell from the bridge on April 4, 1979, while working for Annco, Inc. The Bureau has also conceded on appeal that Dolly did have injuries as reported by Dr. O.D. Stur-laugson upon examining Dolly on April 6, 1979, specifically, \\\"subluxations of the spine, bruising and sprain to the knees and ankles.\\\" The Bureau bases its denial of Dolly's claim for benefits solely upon its finding that Dolly failed to prove her injuries, as described by Dr. Sturlaugson, were caused by her fall from the bridge on April 4, 1979.\\nThe standard this Court must use in reviewing a decision of the district court on an appeal from a decision of an administrative agency is provided under Section 28-32-19, N.D.C.C., which states in part relevant to this case:\\n\\\"[T]he court shall affirm the decision of the agency unless it shall find that . The findings of fact made by the agency are not supported by a preponderance of the evidence.\\\"\\nIn Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979), this Court clarified its scope of review under the \\\"preponderance of the evidence\\\" standard:\\n\\\"... we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.\\\" 283 N.W.2d at 220.\\nUpon reviewing the record in this case we conclude that a reasoning mind could not have determined, as did the Bureau, that the greater weight of the evidence is that Dolly's injuries were not caused by her fall from the bridge on April 4, 1979, while working for Annco, Inc. We conclude that a reasoning mind could only find that the greater weight of the evidence is that Dolly's injuries, the existence of which have been conceded by the Bureau, were caused by that fall, the occurrence of which is conceded by the Bureau's finding that Dolly fell from a height of five or six feet.\\nThere is not one scintilla of evidence in the record to support an alternative manner by which Dolly might have received her injuries other than by her fall from the bridge on April 4, 1979. In Dr. Sturlaug-son's written report, dated April 10,1979, to the question, \\\"Are you satisfied this is an occupational disease or injury?\\\", he responded, \\\"Yes.\\\" In that report, Dr. Stur-laugson described Dolly's injury as follows, \\\"The patient fell several feet off a bridge, landing on her feet, causing subluxations of the spine, bruising and sprain to the knees and ankles.\\\" In a supplemental report by Dr. Sturlaugson, dated May 16, 1979, he states, \\\"I am satisfied that this was an industrial injury as the trauma involved indicates some type of injury as she described.\\\" An in-house telephone memo written by a Bureau employee states that Dr. Stur-laugson indicated that when he saw Dolly on April 6, 1979, \\\"it was definite the claimant had sustained quite a severe injury and that she was in shock.\\\"\\nDolly's employer, Annco, Inc., in a letter to the Bureau written by Earl Nelson and dated April 13, 1979, objected to the payment of Dolly's claim for benefits. However, in a subsequent letter to the Bureau also written by Earl Nelson and dated April 20,1979, Annco, Inc., withdrew its objection to the payment of the claim, stating, \\\"The possibility of the accident is real.\\\"\\nOn July 16, 1979, Dolly was also examined by Dr. Charles H. Swenson, M.D., at the Medical Arts Clinic, P.C., in Minot. In his written report, dated July 19, 1979, Dr. Swenson indicated that as a result of Dolly's fall from the bridge she injured her feet, and he provided the following diagnosis: \\\"feet pain \\u2014 suspect muscle strain. Dependent edema.\\\" To the question, \\\"Is present disability due to an occupational disease or injury?\\\" Dr. Swenson responded, \\\"Yes.\\\" To the question, \\\"Are you satisfied there is no misrepresentation or malingering in this case?\\\" Dr. Swenson also responded, \\\"Yes.\\\"\\nIn denying Dolly's claim, the Bureau found that she was not credible because she has a hysterical personality with hypochon-driacal neurosis. In support of its finding, the Bureau submitted the deposition of Dr. Rufino R. Ramos who is a licensed M.D. and a psychiatrist with approximately eight years of practice in the psychiatric field. Dr. Ramos stated his opinion, through his deposition, that Dolly has a hysterical personality which he defines as someone who \\\"overdramatizes events or feelings.\\\" However, Dr. Ramos did not examine Dolly until March, 1980, almost one year subsequent to the date she was allegedly injured by her fall from the bridge. Consequently, Dr. Ramos did not claim that he had any basis upon which to give an opinion regarding the legitimacy of those injuries allegedly sustained by Dolly as a result of that accident.\\nUpon reviewing the record in this case, we conclude that the Bureau's finding that Dolly's injuries were not caused by her employment-related accident on April 4, 1979, is not supported by a preponderance of the evidence.\\nOn appeal, the parties did not raise as an issue the amount of benefits claimed, and we make no determination regarding that matter.\\nIn accordance with this opinion, the order of the district court is hereby affirmed.\\nVANDE WALLE, PEDERSON, PAUL-SON and SAND, JJ., concur.\"}"

nd/10673930.json

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+"{\"id\": \"10673930\", \"name\": \"Melvin L. WEBSTER, Warren A. Henke, Arnold M. Lahren, Nancy Olsen, Ginger Newton, Karla Smart and Randall Lee Boor, Plaintiffs and Appellants, Paul H. Bodmer, Plaintiff, v. BISMARCK PUBLIC SCHOOL DISTRICT NO. 1, a public corporation, Defendant and Appellee\", \"name_abbreviation\": \"Webster v. Bismarck Public School District No. 1\", \"decision_date\": \"1982-07-01\", \"docket_number\": \"Civ.No. 10130\", \"first_page\": 98, \"last_page\": \"100\", \"citations\": \"321 N.W.2d 98\", \"volume\": \"321\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:10:34.354725+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and PAULSON, SAND and VANDE WALLE, JJ., concur.\", \"parties\": \"Melvin L. WEBSTER, Warren A. Henke, Arnold M. Lahren, Nancy Olsen, Ginger Newton, Karla Smart and Randall Lee Boor, Plaintiffs and Appellants, Paul H. Bodmer, Plaintiff, v. BISMARCK PUBLIC SCHOOL DISTRICT NO. 1, a public corporation, Defendant and Appellee.\", \"head_matter\": \"Melvin L. WEBSTER, Warren A. Henke, Arnold M. Lahren, Nancy Olsen, Ginger Newton, Karla Smart and Randall Lee Boor, Plaintiffs and Appellants, Paul H. Bodmer, Plaintiff, v. BISMARCK PUBLIC SCHOOL DISTRICT NO. 1, a public corporation, Defendant and Appellee.\\nCiv.No. 10130.\\nSupreme Court of North Dakota.\\nJuly 1, 1982.\\nChapman & Chapman, Bismarck, for plaintiffs and appellants; argued by Daniel J. Chapman, Bismarck.\\nWheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for defendant and appellee; argued by Albert A. Wolf, Bismarck.\", \"word_count\": \"1370\", \"char_count\": \"8572\", \"text\": \"PEDERSON, Justice.\\nThe principal question presented upon this appeal is: may an issue which has been discussed in pre-contract negotiations and rejected by one of the negotiating parties, thus preventing its inclusion in the master contract, be later raised in judicial proceedings? We conclude that, ordinarily, it may not. We further conclude that mandamus is not available under the circumstances of this case. The judgment is affirmed.\\nThe appellants in this case (hereinafter referred to as Webster) are individual teachers employed by the Bismarck Public School District (School District) to teach at Bismarck Junior College. These teachers were employed for the nine-month school year. It has been the custom in the past to pay teachers with a nine-month contract on a twelve-month basis. In the spring of 1980, negotiations were initiated to draw up an employment contract between the teachers and the School District for fiscal year 1980-81. During these negotiations, the teachers were represented by Professional Negotiations Association (PNA). One of the issues PNA presented to the School District was the desire of some teachers employed on a nine-month contract to have the option to be paid on a nine-month basis. The School District refused to concede on this issue, however, and, after lengthy discussion, the matter was dropped.\\nLater that summer, a federal mediator requested both parties to disclose remaining issues to be negotiated. The \\\"option\\\" question was not one of those submitted to the mediator. The master contract between the two negotiating parties was subsequently executed on September 9, 1980. It did not prescribe any particular schedule of payments.\\nAlthough some of the teachers objected to the absence of a provision in the master contract allowing them the option of being paid on a nine-month schedule, the master contract was, nevertheless, approved by the teachers. The individual contracts sent to the teachers, however, included a provision that their salary payments would extend over a twelve-month period.\\nThis mandamus suit was then brought by the individual teachers to require the School District to pay their salaries concurrently with their period of employment.\\nThe district court held that because the matter had been brought up in pre-contract negotiations it could not again be brought up as a subject of litigation by individual members of the bargaining unit. The teachers' complaint was then dismissed with prejudice.\\nThe federal labor relations laws do not apply to public employees and, therefore, the issue to be resolved in this case is a question of state law. Chapter 15-38.1, NDCC, sets out the procedures for collective bargaining between teachers and school boards. See Fargo Ed. Ass'n v. Paulsen, 239 N.W.2d 842 (N.D.1976).\\nIn this instance, Webster objected to the absence of a provision allowing teachers the option to be paid concurrently with their period of employment. Section 15-38.1-08, NDCC. Nevertheless, the master contract was ratified by a majority of the members in their appropriate negotiating unit.\\nWebster argues that because the master contract did not refer to any time schedule for payments, then common law and \\u00a7 34^14-02 and 34-14-04.1, NDCC, require teachers employed on a nine-month contract to be paid on a nine-month basis', unless they otherwise agree. These statutes, however, are not clearly applicable. No common law right has been identified as applicable.\\nAlthough the master contract did not mention a schedule for outlay of payments, it was not, under the circumstances, improper for the School Board to adhere to past custom and practice.\\n\\\"... the labor contract \\u2014 burdened with the task of regulating a complex work community on a continuing basis \\u2014 cannot reduce to writing each and every norm or rule that has been developed over time to govern the parties' activities. It is common to treat the collective bargaining agreement as comprised not only of the written and executed document but also of plant customs and industrial practices as well as of informal agreements and concessions made at the bargaining table but not reduced to writing.\\\" R. Gorman, Basic Text On Labor Law, at 541 (1976).\\nAfter a party attempts but fails in contract negotiations to obtain a specific provision in an agreement, in order to show entitlement to a writ of mandamus from the courts it must be shown that there is a clear legal right to that which is sought. Fargo Ed. Ass'n v. Paulsen, supra; Fargo Ed. Ass'n v. Fargo Public Sch. Dist., 291 N.W.2d 267 (N.D.1980); and \\u00a7 32-34-01 and 32-34-02, NDCC. No such clear legal right has been shown.\\nThe judgment is affirmed.\\nERICKSTAD, C.J., and PAULSON, SAND and VANDE WALLE, JJ., concur.\\n. This matter was before the district court on two separate occasions. The court held the first proceedings in abeyance while the teachers exhausted all possible administrative remedies. When the issue could not be resolved administratively, then it was brought once again before the court.\"}"

nd/10678659.json

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+"{\"id\": \"10678659\", \"name\": \"QUAD COUNTY COMMUNITY ACTION AGENCY, INC., Appellant, and Shark Brothers, Inc. and Downtown Realty, Inc., Appellants, v. Richard A. ELKIN, Bruce Hagen and Ben Wolf, as members of the North Dakota Public Service Commission and Northern States Power Company, Appellees\", \"name_abbreviation\": \"Quad County Community Action Agency, Inc. v. Elkin\", \"decision_date\": \"1982-02-11\", \"docket_number\": \"Civ. Nos. 10006, 10041\", \"first_page\": 665, \"last_page\": \"668\", \"citations\": \"315 N.W.2d 665\", \"volume\": \"315\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:10:26.726295+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and PEDERSON, VANDE WALLE and SAND, JJ., concur.\", \"parties\": \"QUAD COUNTY COMMUNITY ACTION AGENCY, INC., Appellant, and Shark Brothers, Inc. and Downtown Realty, Inc., Appellants, v. Richard A. ELKIN, Bruce Hagen and Ben Wolf, as members of the North Dakota Public Service Commission and Northern States Power Company, Appellees.\", \"head_matter\": \"QUAD COUNTY COMMUNITY ACTION AGENCY, INC., Appellant, and Shark Brothers, Inc. and Downtown Realty, Inc., Appellants, v. Richard A. ELKIN, Bruce Hagen and Ben Wolf, as members of the North Dakota Public Service Commission and Northern States Power Company, Appellees.\\nCiv. Nos. 10006, 10041.\\nSupreme Court of North Dakota.\\nFeb. 11, 1982.\\nSusan W. Rester, Bismarck, for appellant Quad County Community Action Agency.\\nMyer Shark, Fargo, for appellants Shark Brothers, Inc. and Downtown Realty, Inc.\\nLynn L. Schloesser, Asst. Atty. Gen., Bismarck, for appellee North Dakota Public Service Commission.\\nWheeler, Wolf, Wefald, Peterson & McDonald, P. C., Bismarck, and Gene R. Som-mers, Minneapolis, Minn., for appellee Northern States Power Co.; argued by R. W. Wheeler, Bismarck.\", \"word_count\": \"1821\", \"char_count\": \"10726\", \"text\": \"PAULSON, Justice.\\nQuad County Community Action Agency [Quad County], Shark Brothers, Inc., and Downtown Realty, Inc., appeal from a judgment issued on March 13, 1981, by the District Court of Grand Forks County which affirmed the order of the North Dakota Public Service Commission [PSC] dated July 1, 1980. We affirm.\\nOn July 23, 1976, Northern States Power Co. [NSP] filed an application for an in crease in its electrical rates with the PSC. The PSC suspended the rate increase pending a hearing on the application. After holding public hearings, the PSC, on April 26, 1977, issued its findings of fact, conclusions of law, and order allowing a rate increase in Docket Number 9461.\\nNSP did not file a schedule of rates pursuant to the April 26, 1977, PSC order, but on May 12, 1977, filed a new application for an increase in rates. NSP's May 12, 1977, rate application was based upon a $102,067,-000 rate base; the April 26,1977, PSC order had been based upon a $92,973,000 rate base. The PSC did not suspend NSP's May 12, 1977, rate application, and the rates applied for became effective by nonsuspension, as provided by \\u00a7 49-05-06 of the North Dakota Century Code, on June 11, 1977. This application was issued Docket Number 1-5610.\\nOn July 12, 1977, Quad County filed a complaint with the PSC questioning the reasonableness of the new rates. In response, the PSC opened Docket Number 9634 on its own motion and ordered a hearing to investigate the reasonableness of the rates established by nonsuspension on June 11, 1977. A hearing was held on August 5, 1977, and on July 24, 1978, the PSC issued its findings, conclusions, and order declaring that the rates were just and reasonable.\\nOn August 23, 1978, Quad County appealed the PSC order in Docket Number 9634 to the District Court of Grand Forks County. The court remanded the case to the PSC for further proceedings. On remand, the PSC was to combine the record in the earlier rate case (Docket Number 9461) -with the record in Docket Number 9634; allow NSP and Quad County to offer evidence on rate base; and issue new findings, conclusions, and an order on issues raised on appeal by Quad County.\\nOn remand, the PSC ordered that the records in the two dockets be combined, and set additional hearings. On July 1, 1980, the PSC issued a memorandum opinion, findings of fact, conclusions of law, and order affirming its finding that the rates were reasonable in Docket No. 9634.\\nOn August 1, 1980, Quad County appealed from the PSC order. The District Court of Grand Forks County affirmed the PSC order, and Quad County appealed to this court. Shark Brothers, Inc. and Downtown Realty, Inc. have also appealed from the district court judgment affirming the PSC order, and the appeals have been consolidated.\\nThree issues have been raised by the parties to this appeal:\\n1. Is the PSC order issued on April 26, 1977, in Docket Number 9461 still in effect, thereby rendering the rates approved by nonsuspension in Docket Number 1-5610 invalid?\\n2. Was the PSC engaging in retroactive ratemaking when it affirmed the rates set in Docket Number 1-5610 in Docket Number 9634 (remand)?\\n3. Are NSP's customers entitled to a refund of a portion of rates paid after June 11, 1977, to July 1, 1980?\\nI\\nThe first issue raised is whether or not the PSC order issued on April 26, 1977, is still in effect, thereby rendering the subsequently filed rates invalid. Appellants Shark Brothers, Inc. and Downtown Realty, Inc. argue that the PSC order of April 26, 1977, has not been repealed, rescinded, or amended, and that, therefore, the subsequent filing by NSP of a different rate schedule was invalid.\\nThis precise issue has been rejected by this court in a separate appeal arising out of the same factual background as this case. In O'Connor v. Northern States Power Co., 308 N.W.2d 365 (N.D.1981), the plaintiffs argued that NSP had violated the PSC order of April 26, 1977, when it failed to file rates in accordance therewith. We held that nothing in the relevant statutes prohibited NSP from filing the increased rate with the PSC rather than the lower rate permitted by the outstanding order, in O'Connor, supra 308 N.W.2d at 369:\\n\\\"The issue of law, simply put, is: Was NSP required to file a schedule of rates in accordance with the PSC order of April 26, 1977, or did the applicable statutes permit NSP to file a new and higher schedule of rates in lieu thereof? A review of the applicable statutory provisions convinces us that NSP was, under the current statutory scheme involving electric utility rates, permitted to file a new and higher schedule of rates rather than file a schedule of rates as specified in the PSC's order of April 26, 1977.\\\"\\nThis court went on to conclude in O'Connor, supra, that NSP was authorized to begin ch\\u00e1rging its new rate on June 11, 1977, at the end of the statutory 30-day nonsuspension period.\\nThe issue raised by Shark Brothers, Inc. and Downtown Realty, Inc. was disposed of in O'Connor, and we find nothing in the instant case which distinguishes it from O'Connor. We therefore conclude that NSP was not required to file rates in accordance with the April 26, 1977, order of the PSC; and its rates filed on May 12, 1977, went into effect according to the statutory scheme on June 11, 1977.\\nII\\nThe second issue raised is whether the PSC engaged in retroactive ratemaking when it affirmed the rates previously approved by nonsuspension in Docket Number 1-5610. Quad County argues that the PSC, in its order of July 1, 1980, in Docket Number 9634 (remand), unlawfully set rates retroactively by reaffirming rates charged by NSP prior to July 1, 1980, under the aegis of an earlier PSC order which had been reversed by the district court. Quad County's argument is based on the erroneous presumption that the PSC \\\"established\\\" rates in Docket Numbers 9634 and 9634 (remand). Docket Number 9634 was not a rate application proceeding pursuant to \\u00a7 49-05-06, N.D.C.C., but was rather a complaint proceeding, initiated on the PSC's own motion, pursuant to \\u00a7 49-05-01 and 49-05-02, N.D.C.C. The issue raised in Docket Number 9634 was the reasonableness of existing rates. The PSC may only fix or establish new rates to be charged in the future when it makes a finding that existing rates are unreasonable. \\u00a7 49-02-03, N.D.C.C.\\nThe PSC never made a finding that the rates established by nonsuspension in Docket Number 1-5610 were unreasonable. Thus, the PSC did not fix or establish new rates when it reaffirmed the 1-5610 rates in its orders in 9634 and 9634 (remand).\\nQuad County argues that, because the PSC order in Docket Number 9634 was remanded by the district court, the PSC order in Docket Number 9634 (remand) was reaffirming rates collected by NSP under the aegis of a PSC order which had been reversed. As noted above, however, the rates collected by NSP were not established in Docket Number 9634, but had been established by nonsuspension in Docket Number 1-5610. The rates established in Docket Number 1-5610 were the legal existing rates at all times between June 11, 1977, and July 1, 1980. The PSC never made a finding that the rates established in Docket Number 1-5610 were unreasonable, and they therefore remained in effect at all times during the proceedings in' this case. The rates reaffirmed in Docket Number 9634 (remand) were those established in Docket Number 1-5610, not those \\\"established\\\" by the PSC's order, which was subsequently reversed by the district court, in Docket Number 9634. We therefore conclude that the PSC did not engage in retroactive ratemaking in its order in Docket Number 9634 (remand).\\nIll\\nThe final issue raised by Quad County is whether or not NSP owes a refund of amounts collected under the PSC's order in Docket Number 9634, which was subsequently reversed and remanded by the district court. Again, Quad County's argument is based on the faulty presumption that the PSC fixed or established rates in its order in Docket Number 9634.\\nAs previously noted, Docket Number 9634 was a complaint proceeding; therefore, the sole issue raised was the reasonableness of NSP's existing electric rates. Until the PSC made a finding that NSP's existing rates were unreasonable, those rates remained in effect.\\nIn Docket Number 9634, the PSC issued its order finding that the rates then in effect, as established in Docket Number 1-5610, were reasonable. On appeal, the district court remanded the case to the PSC, and ordered the PSC to combine the records in 9461 and 9634; to take additional evidence; to issue new findings of fact, conclusions of law, and order; and to consider a rate refund. The district court did not reverse the PSC's finding that the rates were reasonable, but merely remanded the case to the PSC for correction of procedural defects.\\nThe PSC on remand denied Quad County's request for a rate refund, and the district court affirmed. Under the circumstances presented in this case, we agree that a rate refund would be inappropriate. There has never been a finding, either by the PSC or by the courts, that the existing rates charged by NSP were unreasonable. NSP has not been receiving any more for its electrical service than is fair and reasonable. We therefore conclude that a rate refund would be inappropriate in this case.\\nWe therefore affirm the judgment of the district court and the order of the PSC.\\nERICKSTAD, C. J., and PEDERSON, VANDE WALLE and SAND, JJ., concur.\\n. We have previously considered an appeal by different parties arising out of the same factual background as this case. See O'Connor v. Northern States Power Co., 308 N.W.2d 365 (N.D.1981).\\n. The difference in rate base was the result of using a different test year in computing rate base. The order issued on April 26, 1977, in Docket Number 9461 was based on a test year ending May 31, 1977. The rate application filed by NSP on May 12, 1977, in Docket Number 1-5610, was based on a test year ending May 31, 1978.\"}"

nd/10679448.json

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+"{\"id\": \"10679448\", \"name\": \"Reed E. SANFORD, Plaintiff and Appellee, v. Glenda L. SANFORD, Defendant and Appellant\", \"name_abbreviation\": \"Sanford v. Sanford\", \"decision_date\": \"1980-12-19\", \"docket_number\": \"Civ. No. 9771\", \"first_page\": 118, \"last_page\": \"129\", \"citations\": \"301 N.W.2d 118\", \"volume\": \"301\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:13:00.144195+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and SAND, J., concur.\", \"parties\": \"Reed E. SANFORD, Plaintiff and Appellee, v. Glenda L. SANFORD, Defendant and Appellant.\", \"head_matter\": \"Reed E. SANFORD, Plaintiff and Appellee, v. Glenda L. SANFORD, Defendant and Appellant.\\nCiv. No. 9771.\\nSupreme Court of North Dakota.\\nDec. 19, 1980.\\nRehearing Denied Jan. 23, 1981.\\nRandolph E. Stefanson, Stefanson, Land-berg & Aim, Ltd., Moorhead, Minn., for defendant and appellant.\\nDonald R. Hansen, Nilles, Hansen, Seibo, Magill & Davies, Ltd., Fargo, for plaintiff and appellee.\", \"word_count\": \"6353\", \"char_count\": \"39249\", \"text\": \"PAULSON, Justice.\\nGlenda Sanford [\\\"Glenda\\\"] appeals from an amended judgment of the Cass County District Court which was entered on January 25, 1980. Reed Sanford [\\\"Reed\\\"] commenced this action for divorce on December 30, 1977. Glenda also sought a divorce and the trial commenced on April 24,1979. The district court issued a judgment on July 5, 1979, in which the district court granted each party a divorce on the ground of irreconcilable differences, made a division of property, and awarded alimony and child support. On July 19, 1979, Glenda made a motion requesting that the district court amend its findings of fact, conclusions of law, order for judgment, and judgment, and on January 25, 1980, the district court issued an amended judgment of divorce. Judgment modified and, as modified, affirmed.\\nThis case was previously appealed to this court. In Sanford v. Sanford, 295 N.W.2d 139 (N.D.1980), we held that Glenda's acceptance of payments under the divorce decree did not act as a waiver of her right to appeal from the judgment of divorce. Glenda and Reed were married on June 17, 1955, near Princeton, Minnesota. Reed attended dental school at the University of Minnesota after the parties were married. During this time, Glenda changed her college major from education to dental assistant in order to support the parties during the college years and to assist Reed upon his graduation from dental school. Glenda was employed by the University of Minnesota Health Service. Upon Reed's completion of dental school in the fall of 1958, Reed and Glenda moved to Crookston, Minnesota where Reed began an orthodontia practice. Reed also worked in an orthodontia practice in Fargo, North Dakota; and in 1960 he purchased the Fargo practice and Glenda and he moved to Fargo. Glenda performed the bookkeeping services for the orthodontia practice in Fargo and also assisted in the management of the office. In addition, Glenda was active in local and state dental organizations in order to promote Reed's orthodontia practice. Three children were born of the marriage.\\nSince the time that the parties were married, they have acquired much real and personal property. This appeal by Glenda focuses upon the valuation of the property acquired during the marriage as well as the division of property made by the district court. The property owned by the parties as well as the value ascribed to the property by the district court is as follows:\\n1. Residence at 2433 East Country Club Drive, Fargo $175,000.00\\n2. Lake cottage on 8th Crow Wing Lake near Nevis, Minnesota 59,000.00\\n3. Office building at 1017 Broadway, Fargo 73,000.00\\n4. One-half interest in Nash-Finch warehouse, 3101 12th Avenue North, Fargo (H & S Inv.) 0.00\\n5. Duplex, 1001-1003 Broadway, Fargo 41,000.00\\n6. J. C. Penney Building, Montevideo, Minnesota 85,000.00\\n7. 95-acre farm near Princeton, Minnesota 33,800.00\\n8. Marketable securities: 246,732.00\\n9. Capital stock interest in Reed E. Sanford, D.D.S., Ltd. 97,560.00\\n10. Investments in partnerships 70,510.00\\n11. Notes receivable 7,000.00\\n12. Family home furnishings 15,000.00\\n13. Bank and savings accounts 19,200.00\\n14. Accounts receivable \\u2014 dental practice 317,000.00\\n15. Reed E. Sanford, Ltd., pension and profit sharing plan 280,558.00\\n16. Debenture note 8,522.00\\n17. Cash 4,254.00\\n18. Motor vehicles 14,000.00\\nThe district court made the following distribution of the property in the amended judgment:\\n1. Glenda was awarded the family residence located at 2433 East Country Club Drive, Fargo\\n2. Glenda was awarded the family home furnishings\\n3. Glenda was awarded a Buick Electra automobile\\n4. Glenda was granted two cash awards, one for $75,000.00 payable on or before July 1, 1979; and another for $25,000.00 payable on July 1, 1982.\\n5. Glenda was awarded as a property settlement the sum of $200,000.00 payable in the amount of $1,700.00 per month commencing on June 15, 1979, and payable monthly until July 15, 1989.\\n6. Glenda was awarded the cash value of two life insurance policies and received her share in pension and profit sharing plans.\\n7. Glenda was given the option to purchase farm property located near Princeton, Minnesota, at any time up to January 1, 1990, for the sum of $30,000.00.\\n8. Glenda was granted the custody of two of the three children born of the marriage. Reed was ordered to pay $400.00 per child per month to Glenda as support for the children.\\n9. Reed was required to provide all medical and dental care for the children as well as maintain all life insurance policies on his life with the children as equal co-beneficiaries until they reach majority. Reed was also required to provide for the post-secondary education of the children; however, Reed was allowed to claim the three children as dependents for income tax purposes.\\n10. Reed received his stock ownership in Reed E. Sanford, D.D.S., Ltd.\\n11. Reed received his share of the pension and profit sharing plans.\\n12. Reed received his interest in the partnership, H & S Investment Co., which has as its primary asset a commercial warehouse. Reed also received other assets by provision of the court. These assets totaled $212,832.00. The district court directed each party to pay their attorney fees, expert fees, and costs incurred in the action.\\n13. The district court determined that the net worth of the parties was $1,108,700.00. Glenda's share of the net worth which she received in the district court's distribution of assets was $517,750.00. Reed received $590,950.00 in the district court's distribution of assets.\\nThe parties stipulated to the value of certain assets. These assets are as follows:\\n1. Marketable securities $246,732.00\\n2. Note receivable 7,000.00\\n3. Debenture note 8,522.00\\n4. Cash 4,254.00\\n5. Oil partnership 70,510.00\\n6. Real estate investments 291,800.00\\nThe district court determined the value of certain other assets. The value attributed to these assets is disputed by the parties. These assets and their value as determined by the district court are as follows:\\n1. Capital stock, Reed E. Sanford, D.D.S., Ltd. $ 97,560.00\\n2. H & S Investment Co. 0.00\\n3. Family residence 175,000.00\\n4. Family home furnishings 15,000.00\\n5. Pension and profit sharing plan 280,558.00\\n6. Motor vehicles 14,000.00\\nThe issues which Glenda raises for our consideration are as follows:\\n1. Whether or not the district court's valuation of Reed's interest in H & S Investment Co., and the capital stock of Reed E. Sanford, D.D.S., Ltd., was clearly erroneous.\\n2. Whether or not the district court's determination of an equitable distribution of the marital estate and the award of alimony and child support was clearly erroneous.\\n3. Whether or not the district court committed error when it failed to award Glenda attorney fees and expert witness fees during the maintenance of the action.\\nI\\nReed owns a fifty percent interest in H & S Investment Co., which is a partnership in which Reed is a member and the main asset of the partnership is a commercial warehouse located in Fargo and known as the Nash-Finch Building. At trial, both Reed and Glenda presented experts who testified as to the value of the warehouse. Glenda's expert testified that Reed's interest in the warehouse should have had a minimum value of $325,000.00. This sum was arrived at by reviewing the partnership agreement for H & S Investment Co. This agreement dated February 6, 1969, between Reed and Philip L. Hagen contained the following provision:\\n\\\"Provided, however, that notwithstanding the foregoing and under no circumstances shall the value of the so-called Nash-Finch Building, which is an asset of the partnership, be valued at less than the sum of $650,000.00 which was the purchase price of the building, plus a sum equal to the cost of any improvements or additions made to the building and paid by the parties to this agreement for a period up to two years from the date hereof.\\\"\\nGlenda's expert arrived at the $325,000.00 minimum valuation of the building by dividing the $650,000.00 value of the building as ascribed in the partnership agreement by Reed's fifty percent partnership interest. Glenda's expert asserted that the assessed value which the City of Fargo placed upon the warehouse should have been the true value of the building. Glenda's expert applied a segregated cost method which examined each component part of the warehouse building, according to the principles of the Marshall-Swift Valuation Service. By applying these principles, Glenda's expert arrived at the value of the warehouse which attributed $86,000.00 to the land, $1,683,-023.00 to the warehouse, and $1,769,023.00 as the total. Reed presented the testimony of two expert appraisers who ascribed a negative $25,000.00 and negative $60,000.00 value to the building. The disparity in the valuation of the building by the experts resulted from the different methods of valuation used by the experts. In estimating the value of real estate, the real estate appraiser recognizes three standard approaches to value. These approaches are the cost approach, the income approach, and the market data approach. Reed's experts used the income approach of valuation while Glenda's expert used the cost approach of valuation.\\nThe building was originally constructed in 1961 and additions were made in 1972 and in 1974. At the time of trial, the roof was in need of repairs but the building was in average condition overall. The current lease on the building was written in 1969; however, the lease was amended on several occasions since 1969 because of the transfer of ownership and because of the additions made to the structure. The lease contained a term of 25 years with three options to renew the lease for 5 years each, which could extend the lease to the year 2009. Reed's expert appraisers determined that the current tenant would exercise the options because the current rental on the building was below the market rent on the building and because the lease contained no escalation clauses to increase the rent due under the lease unless additions were made to the structure. In addition, the lessor was responsible for maintaining the exterior and structural parts of the building, which included the roof, walls, floors, and service areas of the building. Thus, the economic rent on the building exceeded the contract rent.\\nThe bundle of rights theory of appraisal holds that the ownership of real property may be compared to a bundle of sticks wherein each stick represents a separate right or privilege of ownership. These rights are inherent in ownership of real property and consist of the right to use real property, to sell it, to give it away, to lease it, and the right to refuse to exercise these rights. An owner of real estate who leases real estate transfers the right to use or occupy the property to the tenant and receives rent as compensation for the temporary relinquishment of this interest in the real estate. After the lease is consummated, the owner of the property possesses the rights under the lease and the income it commands, together with the title to the real property which includes the recovery of the use and occupancy of the real property at the expiration of the lease. Thus, the owner of real property who executes a lease on the property divides his bundle of rights into two separate interests commonly referred to as the leased fee estate, and the leasehold estate. The building was built in 1961. Reed's experts determined that the building would have little value at the end of the lease because the warehouse had a typical physical life of forty-five years under the Marshall-Swift Valuation Service. The value of the site rested in the rever-sionary value of the property to the owner at the end of the lease. Reed's experts determined that the site had a value of $25,000.00 per acre. The 8.3-acre area on which the warehouse is built was determined to be worth $207,500.00.\\nThe Inwood Technique is used to value long-term leases with level income streams. This technique assumes that an investor would purchase a property subject to a lease, based on the summation of the present worth of the income stream and reversion of the property discounted at a rate comparable to that of similar investments. The capitalization rate used was eleven percent. The present worth of the income stream from the building can be summarized as follows:\\nOriginal term \\u2014 Monthly net income (remaining term) $ 6,329.38\\nDiscount rate (15 years at 11% monthly) x 87.98\\n$556,858.85\\nOption term \\u2014 Monthly net income (option\\nperiod) $ 5,991.88\\nDiscount rate (15 years at 11% monthly deferred 15 years) x 17.03\\n$102,041.72\\nTotal worth of the income streams.$658,900.57\\nPresent worth of the reversion\\nLand value $207,500.00\\nDiscount rate (30 years at 11%) .0467\\n$ 9,690.25\\nEstimated value by the Inwood Technique:\\nPresent worth of the income streams $658,900.00\\nPresent worth of the reversion 9,700,00\\n$668,600.00\\nThe roof on the building required $175,-000.00 in repairs. At least $129,000.00 of the repairs needed to be completed at the time of the trial. Under the lease agreement, this repair work must be completed before Reed may receive income from the property. Thus, the estimated market value of the site is reduced by the $129,000.00 figure and the estimated market value decreases to $540,000.00. The estimated market value of the site is based upon the value of the property being free and clear of all encumbrances. However, three outstanding loans against the property total $660,-667.54. Thus, the estimated market value of the building can be summarized as follows:\\nEstimated market value (lessor's interest) $540,000.00\\nLess mortgage balance -660,000.00\\nEquity position (\\u00bd interest in the lessor's interest) -$120,000.00\\nx \\u00bd (Reed's interest)\\n-$ 60,000.00\\nThe district court determined that the site had a zero value despite the fact that Reed's experts placed a negative value on the site. This difference could be the result of the fact that Reed's experts did not account for the appreciation of the land's value. However, the authorities on appraisal of property differ as to whether appreciation of the land should be considered in this context. The trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous, pursuant to Rule 52(a) of the North Dakota Rules of Civil Procedure. A finding of fact is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. We hold that the district court's finding as to the value of Reed's interest in H & S Investment Co. was not erroneous. The valuation techniques used by Reed's experts were proper and the district court could ignore the valuation placed on the building by Glenda's expert because he failed to account for the encumbrances against the property.\\nGlenda also contends that the district court's valuation of the capital stock in Reed's professional corporation at $97,-560.00 was erroneous. Reed's accountant testified that Reed's corporation was valued at $172,560.00, while Glenda's accountant testified that the value of the corporation was $344,720.00. Glenda's accountant based his conclusion upon the employment agreement signed by Reed and Shelley Townsend Hanson in October of 1978. After Reed incorporated his practice, he employed an additional orthodontist, Shelley Townsend Hanson. Paragraph 10 of the agreement specified a method for valuing the corporation in the event Reed died or was disabled. Paragraph 10 provides as follows:\\n\\\"(10) In the event of death of the First Party after executing this agreement, Second Party agrees to purchase First Party's practice, equipment, supplies, and accounts receivable on active treatment patients. Second party shall have the option to continue to rent the building from First Party's estate, or purchase the building at fair market value.\\n\\\"The following terms would apply to the purchase of the practice, equipment, supplies, and accounts receivable:\\n\\\"A. Practice: Sixty-five percent (65%) of average gross income for past three years.\\n\\\"B. Equipment and Supplies: Fair market value for items purchased 12 months ago, and original cost of items purchased since 12 months before date of the agreement.\\n\\\"C. Accounts Receivable Active Cases: The actual amount on books for work completed on each case as determined by the current initial fee and monthly fees for that type of treatment, on the first day of the month in which the First Party is deceased. Accounts Receivable on completed cases: (in retention) shall remain property of the First Party's estate.\\n\\\"D. The purchase price shall be payable as follows:\\n1. Cash down payment within 20 days after the values have been agreed upon equal to 20% of the total purchase price. Except that the down payment shall equal any life insurance proceeds on any policy owned by the Second Party on the life of the First Party, but in no event shall the down payment exceed 29% of the purchase price.\\n2. The unpaid principal balance shall be paid in four equal annual installments and all unpaid balances shall bear interest at the rate of 8% per annum.\\n3. Purchaser shall deliver reasonable security or collateral to secure the unpaid balances and shall be personally liable for unpaid payments.\\\"\\nGlenda's accountant examined the gross income from the corporate tax returns for the years 1976, 1977, and 1978, and averaged them for three years. The accountant then determined sixty-five percent of that average and arrived at a balance of $170,-338.00. The original cost of the equipment totaled $73,159.00, and active accounts receivable totaled $15,000.00. Corporate cash totaled $45,077.00, and investments totaled $49,668.00. The debenture note totaling $8,522.00 was deducted and, thus, the total value of the corporation totaled $344,720.00. The $344,720.00 figure was determined by the provisions contained in Paragraph 10 of the Employment Agreement signed by Reed and Shelley Townsend Hanson in October of 1978. The district court disagreed with the valuation given by Glenda's accountant for a number of reasons.\\nThe district court reasoned that the employment agreement was not entered into for the purpose of evaluating the property and that other factors such as pre-billed dental contracts would vary such an agreement. The district court determined that Reed's orthodontia practice consisted of personal services and the value of the practice would be speculative. Finally, the district court determined that the $75,-000.00 figure representing pre-billed orthodontia care could not be considered as an asset of the practice because the fees for pre-billed orthodontia care were contingent upon Reed's performance of the contracted duties. In cases involving conflicting testimony, the reviewing court will give considerable weight to the findings of the trial court because the trial court is able to see and hear the witnesses, and we are not. Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1976). In Bosma v. Bosma, 287 N.W.2d 447 (N.D.1979), we refused to accept a proposed value of a partnership interest based upon values assigned in attempted business loan applications. Similarly, the agreement between Reed and Dr. Hagen as partners in H & S Investment Co., and the agreement between Reed and Shelley Townsend Hanson in the professional corporation are not indicative of the market value of these interests because some of the factors involved in assessing value are speculative in nature. The district court arrived at the $97,560.00 figure by subtracting the $75,000.00 figure for pre-billed orthodontia care from the estimated value of the corporation as determined by Reed's accountant. We conclude that the values assigned by the district court to Reed's partnership interest in H & S Investment Co. and the value of his professional corporation were not clearly erroneous. The trial court is better able to judge the credibility of the witnesses, weigh the evidence, and assign a true value to the property than we are.\\nGlenda also asserts that the district court's findings of fact as to the value of the marital estate were clearly erroneous. In its Memorandum Opinion, the district court stated that the net estate totaled $1,108,700.00. The district court made the following findings on the value of certain assets whose value Reed and Glenda disputed:\\n1. Capital stock, Reed E. Sanford, D.D.S., Ltd. $ 97,560.00\\n2. H & S Investment Co. 0.00\\n3. Family residence 175,000.00\\n4. Family residence furnishings 15,000.00\\n5. Pension and profit sharing plan 280,558.00\\n6. Motor vehicles 14,000.00\\nTotal $582,118.00\\nAssets whose value was undisputed included:\\n1. Marketable securities $246,732.00\\n2. Note receivable 7,000.00\\n3. Debenture note 8,522.00\\n4. Other real estate investments 291,800.00\\n5. (Lake cottage, family farm, duplex, J. C. Penney Building, dental office building) Cash 4,254.00\\n6. Oil partnership 70,510.00\\nTotal $628,818.00\\nOverall Total $1,210,936.00\\nBy examining the district court's specific findings on the assets whose value was disputed and on the assets whose value was undisputed, the gross estate totaled $1,210,-936.00. The district court determined that the net estate was $1,108,700.00, which is a $102,236.00 reduction from the amount of the gross estate. Glenda asserts that the district court's determination of the value of the estate was erroneous; however, Glenda's estimate failed to account for approximately $100,000.00 in notes and other payables which must be deducted from the value of the marital estate. Thus, the district court's determinations on the value of the marital estate were correct when the proper deduction for notes and other pay-ables had been made. Glenda asserts that the value of the net estate should have been $1,783,096.00. However, Glenda's assertion is based upon a $344,720.00 valuation of Reed's orthodontia practice and $325,000.00 valuation of Reed's interest in H & S Investment Co. We have concluded that the district court's findings as to the value of these assets were correct. Thus, Glenda's contention that the value of the marital estate should be $1,783,096.00 is mistaken. In addition, when the proper deduction for the notes and other payables is made, the district court's finding as to the value of the marital estate is correct.\\nGlenda also asserts that the amount of the marital estate which she received totaled $503,048.06, rather than $517,750.00. Glenda's computations are as follows:\\n1. Lump-sum payment in July, 1980 $ 75,000.00\\n2. Lump-sum payment in July, 1982 25,000.00\\n3. Family residence 175,000.00\\n4. Contents of the family residence 15,000.00\\n5. Automobile 7,000.00\\n6. Glenda's interest in pension and profit sharing plans 6,048.06\\n7. Property settlement of $1,-700.00 per month for 121 months 200,000.00\\nTotal $503,048.06\\nGlenda's computations fail to account for the cash value of two life insurance policies which she received which were valued at $9,000.00. In addition, the payment of $1,700.00 for 121 months totals $205,700.00. This figure is $5,700.00 in excess of the amount which Glenda attributed to the property settlement. When the additional $14,700.00 is added to the $503,048.06 total which Glenda asserts is the value of the marital estate, the total value of Glenda's share of the marital estate is approximately $517,750.00. The district court did not err in valuing the marital estate as Glenda's share of the marital estate totaled $517,-750.00, while Reed's share of the marital estate totaled $590,950.00.\\nII\\nThe next issue raised by Glenda concerns whether or not the district court's determination of an equitable distribution of the marital estate and the award of alimony and child support was clearly erroneous. When a court grants a divorce, \\u00a7 14-05-24 of the North Dakota Century Code requires that the court \\\"make such equitable distribution of the real and personal property of the parties as may seem just and proper.\\\" In determining the division of property, or in determining whether or not either party is entitled to alimony or child support, the trial court may consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property owned at the time, its value at that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage; and such other matters as may be material. Bender v. Bender, 276 N.W.2d 695 (N.D.1979); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); and Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (N.D.1952).\\nThe trial court's determinations on matters of alimony, child support, and division of property are treated as findings of fact. Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1979); Haugeberg v. Haugeberg, 258 N.W.2d 657 (N.D.1977). The findings of fact will not be set aside on appeal unless they are clearly erroneous pursuant to Rule 52(a), N.D.R.Civ.P. A finding of fact is deemed \\\"clearly erroneous\\\" when the reviewing court is left with a firm and definite conviction that a mistake has been made. Haberstroh v. Haberstroh, 258 N.W.2d 669 (N.D.1977). The mere fact that the appellate court might have viewed the facts differently, if it had been the initial trier of the case, does not entitle it to reverse the lower court. Larson v. Larson, 234 N.W.2d 861 (N.D.1975). We have on numerous occasions stated that in divorce cases the property division need not be equal in order to be equitable. Bender v. Bender, 276 N.W.2d 695 (N.D.1979); Bosma v. Bosma, 287 N.W.2d 447 (N.D.1979); and Fries v. Fries, 288 N.W.2d 77 (N.D.1980). Reed received approximately 54% of the marital estate while Glenda received approximately 46% of the marital estate; however, after carefully reviewing the district court's division of the property, we conclude that the property division was clearly erroneous. On the basis of Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), and Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (N.D.1952), the district court must consider a variety of factors in making a division of property. We will assess each of these factors.\\nRESPECTIVE AGES OF THE PARTIES TO THE MARRIAGE: THEIR EARNING ABILITIES: THE DURATION OF THE MARRIAGE AND THE CONDUCT OF EACH DURING THE MARRIAGE\\nAt the time of the trial, Reed was 44 years of age and Glenda was 43 years of age. The parties had been married for 24 years. There exists a great disparity between the parties' earning abilities. At the time of the trial, Reed was an orthodontist who graduated from the University of Minnesota School of Dentistry in 1958. Reed's income exceeds $100,000.00 per year. At the time of trial, Glenda was not employed but was completing requirements in order to receive a Bachelor of Arts degree in human services and personnel management. The district court estimated that Glenda in the future could receive an income in excess of $10,000.00 per year. After Glenda and Reed contemplated marriage, Glenda changed her college major and began a one-year dental assistantship program in order to support the parties while Reed continued his education. Additionally, Glenda performed substantial services in Reed's orthodontia practice. The conduct of each party during the marriage was not of such an aggravated nature as to appreciably affect the equitable division of the property.\\nTHEIR STATION IN LIFE; THE CIRCUMSTANCES AND NECESSITIES OF EACH; THEIR HEALTH AND PHYSICAL CONDITION\\nReed and Glenda achieved financial security during the course of the marriage. They obtained their financial security through their mutual efforts. Neither party suffers from any unusual circumstances nor unusual necessities except for the fact that Glenda must provide the primary care for two children while Reed must provide the primary care for one child. By virtue of the district court's judgment, each party must contribute equally to the children's education. This places a greater necessity on Glenda because her income is far less than Reed's income. The parties enjoy good health. Although Reed suffers from an injury to his right shoulder, the district court determined that his disability was not of such a nature as to appreciably affect his future income-producing capacity.\\nTHEIR FINANCIAL CIRCUMSTANCES AS SHOWN BY THE PROPERTY OWNED AT THE TIME, ITS VALUE AT THAT TIME, ITS INCOME-PRODUCING CAPACITY, AND WHETHER IT WAS ACCUMULATED OR ACQUIRED BEFORE OR AFTER THE MARRIAGE\\nReed and Glenda own much property and an equitable division of the property would provide for more than the basic necessities of each party. Many of the assets also possess a high income-producing capacity. The district court's judgment provided Glenda with few assets possessing a high income-producing capacity and consequent tax advantages. Glenda received predominantly cash awards, while Reed received the bulk of the parties' real estate and stock holdings. This distribution of property by the district court was inequitable in view of the fact that the property was acquired subsequent to the marriage through the mutual efforts of Reed and Glenda.\\nAn equitable distribution of property would account for the disparate income-producing capacities of Reed and Glenda, and the fact that the mutual efforts of the parties led to the accumulation of much property. Thus, Glenda must receive all of the marketable securities owned by the parties instead of the $200,000.00 property settlement award made by the district court. In addition, Glenda must receive the 95-acre farm located near Princeton, Minnesota, as part of the property division, rather than the option to purchase the farm property at any time up to January 1, 1990, for the price of $30,000.00. The farm was owned by Glenda's parents and had been a part of the property held by Glenda's family since 1880. In 1965, Reed and Glenda purchased the farm property from Glenda's parents. Glenda and Reed were able to purchase the farm because of the fact that Glenda is the only child of her parents' marriage. The transfer . of the farm property and the transfer of the marketable securities shall be completed on or before March 1,1981, by proper assignment of the marketable securities and a warranty deed to the real estate. Thus, in two respects, the division of property made by the district court was clearly erroneous. However, the awards of alimony and child support are proper. Under the judgment of the district court, Glenda receives $400.00 per month per child as child support while Reed receives the income tax deductions. Glenda received as alimony the sum of $75,000.00 on July 1, 1979, and will receive $25,000.00 on July 1, 1982.\\nIll\\nThe final issue raised by Glenda concerns whether or not the district court committed error when it failed to award Glenda attorney fees and adequate expert witness fees during the maintenance of the action. Reed commenced this action on December 27, 1977. In her answer, Glenda requested that the court grant her temporary attorney fees, costs, and expenses, in order to enable her to maintain the action. On December 12,1978, Glenda presented a motion for temporary alimony, temporary child support, and award of $6,000.00 for attorney fees and $1,500.00 for expert witness fees. In response to Glenda's motion, the trial court awarded a single support payment to Glenda totaling $1,000.00; a single alimony payment totaling $1,500.00; and a single payment for expert witness fees of $1,000.00. The district court reserved its ruling on attorney fees and additional expert witness fees until trial; however, the district court made no award of attorney fees or additional expert witness fees in its decree. Glenda asserts that the district court abused its discretion when it failed to award Glenda her attorney fees and adequate expert witness fees during the maintenance of the action.\\nSection 14-05-23, N.D.C.C., provides that a court may issue an order requiring a party to pay support and attorney fees during the pendency of a divorce action. In Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), we stated that \\u00a7 14-05-23, N.D.C.C., relates to the ability of the person to prosecute or defend the action at the time of the commencement of the action and that it is not what division of property the court may ultimately make that determines whether a person is entitled to an award of money to prosecute or defend the action. In Zundel v. Zundel, 146 N.W.2d 903 (N.D.1966), we stated that the burden of showing that an allowance of attorney fees is necessary to defend an appeal in a divorce action is upon the party seeking the allowance of the fees. Because of the sizable marital estate accumulated by Reed and Glenda, Glenda asserted that it was necessary for her to employ experts in order to value the estate. However, Glenda was able to obtain legal counsel and expert witnesses who agreed to provide services in spite of the fact that they were not paid at the time of this appeal. Glenda has requested that we award her $27,035.61 for attorney fees and $4,489.25 for expert witness fees.\\nIn Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1979), we stated that in making the determination of what part of a wife's attorney fees should be paid by the husband, the trial court should consider the property owned by each party as a result of the property division, their relative incomes, whether or not the wife's property is in liquid or fixed assets, and whether or not the wife's or the husband's actions unreasonably increased the time spent on the case. Although in the usual instance, the district court should award to the wife an allowance for attorney fees in a case which extends over a two-and-a-half-year period, Glenda was not unduly prejudiced by the district court's failure to enter an award under \\u00a7 14-05-23, N.D.C.C. The record reveals that from May, 1978, through December, 1979, the date of Glenda's motion for attorney fees and expert witness fees, Glenda had an average of $1,168.63 per month available to herself for support. In addition, Glenda retained experts who testified as to the value of the property. On the basis of these facts, the district court could conclude that Glenda was able to defend her interests in the action for divorce. The district court could properly consider the amount of property which each party received as a result of the property division. Because of the substantial portion of the marital estate awarded to both Reed and Glenda, the district court's failure to award Glenda attorney fees was not an abuse of discretion.\\nFor reasons stated in this opinion, the judgment is modified and, as modified, the judgment is affirmed.\\nERICKSTAD, C. J., and SAND, J., concur.\\n. The cost approach involves the sum total of the current costs of reproducing the property, less depreciation, from all sources. The value estimated by this approach assumes that the cost of reproduction sets the upper limit of value.\\nThe income approach requires the processing of income, usually by capitalization, to produce a value. The value estimated is supported by the projected earning power of the property.\\nThe market data approach estimates value by considering recent sales of the most nearly comparable properties in the market. It is based on the theory that property cannot be worth more than the cost of a similar property.\\n. In addition, the expert attributed a $670,-000.00 value to the building and reduced this figure by $130,000.00, and thus decreased the estimated market value to $540,000.00.\\n. Glenda asserted that the $200,000.00 property settlement award given by the district court was in actuality an award of alimony because Reed was to receive a reduction in his tax liability for the payments made. We find it unnecessary to address Glenda's assertion because we have determined that an equitable division of the property would award Glenda the marketable securities owned by the parties, instead of a lump-sum cash payment to be paid over a period of years.\\n. Glenda contends that she should receive $1,000.00 per month per child for support of the children and $2,000.00 per month for ten years as alimony. Glenda also urges that we direct the district court to add 20% interest to any awards which are to be paid after the date the judgment was decreed. We decline to make such a direction in view of the distribution of the marketable securities and farm property to Glenda.\"}"

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+"{\"id\": \"10683854\", \"name\": \"Sandra Marie GASSER, Plaintiff and Appellee, v. Jerry Max GASSER, Defendant and Appellant\", \"name_abbreviation\": \"Gasser v. Gasser\", \"decision_date\": \"1980-03-20\", \"docket_number\": \"Civ. No. 9696\", \"first_page\": 272, \"last_page\": \"277\", \"citations\": \"291 N.W.2d 272\", \"volume\": \"291\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:48:43.250044+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.\", \"parties\": \"Sandra Marie GASSER, Plaintiff and Appellee, v. Jerry Max GASSER, Defendant and Appellant.\", \"head_matter\": \"Sandra Marie GASSER, Plaintiff and Appellee, v. Jerry Max GASSER, Defendant and Appellant.\\nCiv. No. 9696.\\nSupreme Court of North Dakota.\\nMarch 20, 1980.\\nRehearing Denied April 21, 1980.\\nRichard A. McKennett, of Rolfstad, Winkjer, McKennett, Kaiser & Stenehjem, Williston, for plaintiff and appellee (on brief).\\nJerry Max Gasser, pro se.\", \"word_count\": \"3025\", \"char_count\": \"18361\", \"text\": \"VANDE WALLE, Justice.\\nJerry Max Gasser (\\\"Jerry\\\") moved to modify the 1973 decree of divorce granting Sandra Marie Gasser (\\\"Sandra\\\"), a divorce from Jerry. The district court issued an order to modify the divorce judgment, from which Jerry appeals. We modify the order of the district court and, as modified, affirm the order.\\nIn 1973 Sandra obtained a divorce from Jerry in Williams County district court. At that time both parties resided in Williston where Jerry had a dental practice. Jerry did not answer the complaint but entered an admission of service and waiver of notice whereby he entered his general appearance, waived his time to answer or otherwise plead to the complaint, and consented to the trial of the action \\\"as if by default without further notice . . .\\\" The parties had entered into a property-settlement agreement whereby Sandra was to have custody of their minor children: Diane, born August 28, 1960; Nanci, born February 20, 1963; and Jean, born March 29, 1969. Jerry was to have reasonable visitation rights upon his giving notice to Sandra of the time and purpose of such visits. In addition to the division of property agreed to by the parties, Jerry was to pay Sandra the sum of $150 per month for each child until the child reached the age of 18 years. The agreement, executed on May 10, 1973, provided that on or before November 1, 1973, the parties or their attorneys would review the financial situation and status of Jerry and \\\"if the same so justifies the Defendant agrees that he will pay increased child support to the Plaintiff in an amount of at least Thirty-five dollars ($35.00) per month per child.\\\" On May 14, 1973, both parties with their respective attorneys appeared in district court, at which time the district court granted Sandra a divorce from Jerry and incorporated into the divorce decree the provisions of the property-settlement and child-custody agreement which the parties had executed.\\nSubsequently, in late 1973 or early 1974, Jerry moved to Grand Forks, and in June 1974 Sandra, who by that time had remarried, moved to Indiana.\\nJerry apparently became disenchanted with the agreement he had entered into with Sandra at the time of the divorce and became delinquent in making the support payments he was required to make pursuant to the divorce judgment. A reciprocal enforcement-of-support action was instituted by Sandra through Indiana officials and transferred to the district court of Grand Forks County where Jerry was residing. Jerry, prior to an application to modify the divorce decree, moved for a change of venue and for change of jurisdiction, attempting to have the jurisdiction of the divorce decree transferred from Williams County to Grand Forks County. We assume he intended to have the Grand Forks County district court, which had jurisdiction of the reciprocal enforcement-of-support action, hear his complaints about the original divorce action which had been venued in Williams County. His motions were denied by the Williams County district court. Jerry subsequently filed, in Williams County district court, an application to modify the divorce decree entered in 1973. That matter was heard in 1979 and the Williams County district court entered an order modifying the divorce judgment. From that order Jerry has appealed to this court.\\nThe order modifying the divorce decree and the district court's memo filed with the order indicate that, because Jerry and Sandra left Williston and the distance between the parties made the day-to-day visitation rights which Jerry was given in the original decree impracticable, changed circumstances resulted which require a modification of that decree. The order provides that the 1973 divorce judgment be modified to grant Jerry, as noncustodial parent, a right of visitation with the minor children during the first 15 days of August each year, commencing in 1980. Jerry is to pay the transportation from, the children's place of residence to his place of residence, and Sandra is to pay the return transportation. In addition, Jerry is permitted to take the children as dependents on his tax return provided he is not in arrears on child-support payments at the end of a calendar year. If he is in arrears, Sandra \\u2014 not Jerry \\u2014 will be allowed to take the deduction.\\nIn his notice of appeal Jerry appeals from the judgment rendered against him by the Williams County district court on August 13,1979, from the order of the district court modifying the divorce judgment, and from the district court's memo on motion hearing. Jerry acted as his own counsel on appeal, both in preparation of the brief and in oral argument. At the district court level, however, .Jerry was represented by counsel. The application to the district court filed by Jerry's counsel requests an order modifying the original divorce decree as follows:\\n\\\"I.\\n\\\"Directing and ordering the amount of child support payable to each child to be decreased to a sum payable of $50.00 per month, per child.\\n\\\"II.\\n\\\"Permit and authorize the Defendant to claim the two children as dependent children on his tax return for both federal and state purposes.\\n\\\"III.\\n\\\"That the Court specify reasonable visitation taking into consideration the distance between the parties, and requiring the Plaintiff to pay the costs of transportation to exercise such visitation outside of the State of North Dakota or in the alternative grant custody of the minor children of the parties to the Defendant.\\n\\\"IV.\\n\\\"That the Court review, reconsider and reduce any and all accrued arrearages to the sum that that [sic ] would be economically feasible for the Defendant to pay.\\\" Jerry's affidavit accompanying the application clearly indicates that his basis for modification of the original divorce decree is based on changed circumstances. However, in his brief on appeal, Jerry indicates that the appeal is taken \\\". . . on all the issues involved in a Divorce Decree which should be completely modified, and demands all the Rights guaranteed under the Constitution of the United States, the North Dakota Constitution, the Civil Rights Acts and the Equal Rights Amendment which North Dakota has ratified.\\\"\\nIt is apparent from reading Jerry's brief and listening to his oral argument that on this appeal he is not only attempting to obtain a modification of the original divorce decree because of changed circumstances but is also attempting to obtain a review of the original divorce decree. In his brief and on oral argument he alleges he was not properly represented by counsel at the time of the original divorce decree; that he was not aware of his legal rights at that time; that at the time of the divorce he was \\\"mentally and physically upset because of all the changed circumstances, unfamiliar to any legal proceedings, and unaware of all the subtleties involved.\\\" Although there is a slight reference to these matters in Jerry's testimony at the hearing to modify the divorce judgment, there is no evidence to sustain his allegations. Jerry's application to modify the divorce decree was predicated on changed circumstances. He cannot evolve an appeal from the order in those proceedings to an appeal from the original divorce decree. The original divorce decree was entered in May 1973. Jerry's application for modification, if it had been presented as an appeal from the original divorce decree, was not filed until June 1979, some six years later. Appeals from judgments must, of course, be taken within 60 days after notice of entry of judgment. Rule 4, N.D.R.App.P. Jerry's application for modification was not a motion under Rule 60, N.D.R.Civ.P., to relieve Jerry from the original divorce judgment, nor was evidence introduced which would support such relief. On this appeal, therefore, we will limit our review to the application for modification of the original divorce decree and the order of the district court entered as a result thereof.\\nIn reviewing the specific requests which Jerry made for modification of the original divorce decree, we must consider the principles previously set forth by this court governing a modification of a divorce decree. In Corbin v. Corbin, 288 N.W.2d 61, 65 (N.D.1980), we stated:\\n\\\"This court has often held that a material change in the circumstances of the parties must be shown before a modification of the initial decree is proper. Becker v. Becker, 262 N.W.2d 478 (N.D.1978); Foster v. Nelson [206 N.W.2d 649 (N.D.1973)]. Although Rule 52(a) of the North Dakota Rules of Civil Procedure does not appear to apply to decisions on motions generally, it does apply to a motion to modify a divorce decree. A fact-finding process is required before it can be determined that a material change in circumstances has occurred. Becker v. Becker, supra at 481.\\\"\\nIn Bryant v. Bryant, 102 N.W.2d 800 (N.D.1960), this court discussed modification of a divorce decree providing for child-support payments based on an agreement between the parties. The court noted that some jurisdictions do not permit modification of a decree based on a stipulation of the parties because the arrangement is contractual instead of a judicial determination, and a decree based on an agreement between the parties is no more subject to modification or change by a court than the terms of any other private agreement would be. This court rejected that rule, however, and stated:\\n\\\"While we believe the better rule to be that courts do have power to modify a decree, even though it is founded on an agreement, such power should be exercised only on a proper showing of changed circumstances. The court should be more reluctant to order a revision and modification of a decree where such decree was based on agreement than where such decree is based on the finding of the court as to ability to pay.\\\" 102 N.W.2d at 807.\\nSee also Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970).\\nJerry challenges the refusal of the district court to reduce the child-support payments from $150 to $50 per month per child. In support of his contention that circumstances have materially changed since the initial divorce decree, he argues that his earning capacity has been diminished by a considerable amount through no fault of his own. The trial court found that since the divorce Jerry's gross earnings as a dentist were as follows:\\n\\\"1973-1975 Again, no evidence submitted\\n\\\"1976 $ 42,000\\n\\\"1977 43,000\\n\\\"1978 32,000\\n\\\"1979 Expects somewhat less than 1978\\\"\\nThe trial court also determined, however, that no significant evidence was submitted to the court to show what Jerry's income was at the time of the divorce, nor was any evidence introduced to show what Sandra's income, if any, was at that time. The evidence did indicate that since the divorce Sandra had obtained employment which paid a gross salary of $12,800 and that additional income from investment of inherited property increased her gross income to $22,000 per year. Sandra, however, by affidavit introduced schedules indicating that her monthly expenses for the support of the children has significantly exceeded the monthly payments required of Jerry under the 1973 divorce decree. Given the rate of inflation, no economic expert is needed to determine that the $150 Jerry was required to pay per child in 1973, if it was adequate then, is not now adequate. Although the income which Sandra is now receiving, and which she apparently was not receiving in 1973, may also be a change of circumstances, we are not left with a definite and firm conviction that the district court made a mistake in refusing to reduce the monthly payments Jerry is required to make. Corbin v. Corbin, supra.\\nJerry also takes issue with the trial court's conclusion that accrued child-support payments that have not been paid may not be modified or cancelled retroactively. In Kinsella v. Kinsella, supra, this court adopted the rule that accrued but unpaid child-support payments cannot be modified. In Corbin v. Corbin, supra, decided by this court on January 24,1980, we were requested to overrule Kinsella but refused to do so, noting that\\n\\\". . . when a divorced husband believes that there are valid reasons for a reduction in the amount of child support payments, it is not proper for him to use extrajudicial methods, take the matter into his own hands, and arbitrarily reduce the payments without first having made an application to the trial court for a modification of the previous order.\\\" 288 N.W.2d at 64.\\nWe further stated:\\n\\\"Child support payments may be modified by the district court at any time the circumstances render such a change proper, but such modification operates prospectively only.\\\" 288 N.W.2d at 64.\\nFinally, Jerry argues that the trial court erred in not granting him custody of the children or at least granting \\\"equal custody\\\" of the children to both parties. He argues that if disagreements cannot be worked out by both parties in the interests of the children and the parties' separate best interests, the disputes should be arbitrated by \\\"an unbiased, nongovernmental, person agreed to by both parties.\\\" That would be an ideal situation, one which most judges concerned with domestic disputes would welcome. But if the parties had been able to settle their disputes or agree to arbitration of their disputes they would not be in court today. A court order requiring the parties to agree is useless if the parties do not agree. Realistically, the courts cannot shirk their duties in deciding cases presented to them by requiring the parties to agree when they do not, in fact, agree. A court order requiring agreement among the parties would quickly return to the court when the parties could not agree as ordered.\\nWe do, however, find merit in Jerry's argument that changed circumstances should result in some change in custody and visitation rights. The trial court determined that the distance between Jerry and the children had changed from zero miles to 350 miles when Jerry moved to Grand Forks in 1973 and increased to 1,000 miles by Sandra's move to Indiana in 1974. As a result, the trial court found an additional, specific visitation provision is appropriate to enable Jerry to maintain a better parent-child relationship beneficial to the children. The trial court urged the parents to be agreeable, flexible, and considerate in arranging visits but, in the absence of their own agreement, ordered that Jerry have visitation rights with the minor children during the first 15 days of August of each year commencing in 1980. The trial court further ordered that transportation to Jerry's place of residence was to be paid by Jerry and transportation from Jerry's place of residence to Sandra's place of residence was to be paid by Sandra.\\nWe agree with the trial court's determination that the fact Jerry and Sandra have both moved from Williston has resulted in a material change of circumstances. When both parties lived in Williston it was not difficult to arrange visitation between Jerry and the children. The distance between the children and Jerry now makes such casual and informal arrangements impracticable. Considering the distance between the parties and the costs of transportation, it appears visits between Jerry and the children, other than formal, arranged visits, are improbable; Direct contact between Jerry and the children for a mere two weeks out of every year is not adequate. The children are of sufficient age that a longer separation from Sandra, with whom they have spent most of their time during the past seven years, should not be unduly traumatic. We therefore believe Jerry should be given custody of the minor children for two months during every summer. Because Sandra's income is such that she can sustain the fixed costs of providing a home for the children and because the support payments made by Jerry are ordinarily used for direct expenses of the children, Jerry should not be required to make child-support payments during the months in which he has actual custody of the children.\\nAccordingly, the order of the district court is modified to give custody of the two minor children to Jerry for two months during every summer, beginning in 1980. The order is further modified to provide that during the two months in which Jerry has actual custody he is not required to make child-support payments. In all other respects the order of the district court is affirmed. The case is remanded to the district court for disposition not inconsistent with this opinion.\\nERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.\\n. The transcript of testimony indicates that when Jerry was current in his child-support payments he did take the children as deductions on his tax returns. After he became de linquent Sandra informed him she was going to take the children as deductions on her tax returns. Additionally, Jerry, for reasons with which we are not here concerned, did not file tax returns for the last several years. His views on tax matters are found in Dorgan v. Gasser, 274 N.W.2d 173 (N.D.1978). The district court stated those proceedings were of little or no relevance and were given no consideration or weight in reaching its decision, nor do we consider those proceedings in reaching our decision.\\n. Jerry argues that in applying for a modification of the divorce decree it was not his intent to simply reduce child support from $150 per child to $50 per child. Rather, he argues it was his intent that the court order him to support the children only if he had custody of them. That may have been Jerry's intent, but the application for modification of the divorce decree does not reveal that intent.\\n. By \\\"equal custody\\\" Jerry apparently means that both he and Sandra would have custody of the children. It appears that would mean the children would spend an equal amount of time with each parent. Because of the distance between the place of residence of each parent, and because the children are in school, Jerry conceded in oral argument that the children should remain with one parent during the school year.\"}"

nd/10689397.json

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+"{\"id\": \"10689397\", \"name\": \"OAKES MUNICIPAL AIRPORT AUTHORITY, a public body corporate, Plaintiff-Appellant, v. Raymond WIESE, Defendant-Appellee\", \"name_abbreviation\": \"Oakes Municipal Airport Authority v. Wiese\", \"decision_date\": \"1978-04-20\", \"docket_number\": \"Civ. No. 9429\", \"first_page\": 697, \"last_page\": \"702\", \"citations\": \"265 N.W.2d 697\", \"volume\": \"265\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:04:00.484823+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and SAND, and VO-GEL, JJ., concur.\", \"parties\": \"OAKES MUNICIPAL AIRPORT AUTHORITY, a public body corporate, Plaintiff-Appellant, v. Raymond WIESE, Defendant-Appellee.\", \"head_matter\": \"OAKES MUNICIPAL AIRPORT AUTHORITY, a public body corporate, Plaintiff-Appellant, v. Raymond WIESE, Defendant-Appellee.\\nCiv. No. 9429.\\nSupreme Court of North Dakota.\\nApril 20, 1978.\\nRehearing Denied May 12, 1978.\\nBosard, McCutcheon, Kerian, Schmidt & Holum, Ltd., Minot, for plaintiff and appellant; argued by Jon R. Kerian, Minot.\\nVogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee; argued by Kermit Edward Bye, Fargo.\", \"word_count\": \"2633\", \"char_count\": \"16333\", \"text\": \"PAULSON, Justice.\\nThis is an appeal by the Oakes Municipal Airport Authority [hereinafter Oakes] from the judgment of the Dickey County District Court entered on December 13, 1977, dismissing with prejudice Oakes' condemnation action against Raymond Wiese. The judgment of dismissal was based upon the district court's determination that the issues involved in the action had been determined in a prior condemnation action commenced by Oakes against Wiese and that the doctrine of res judicata precluded the re-litigation of those issues. Oakes asserts, on this appeal, that the doctrine of res judicata was not applicable and was not a proper ground for dismissing the current condemnation action against Wiese. Oakes requests this court to reverse the judgment of dismissal and to remand for a trial on the merits.\\nOn December 10,1975, Oakes commenced a condemnation action against Wiese in the Dickey County District Court to acquire a fee interest in 74.1 acres of Wiese's land, pursuant to Chapter 2-06 of the North Dakota Century Code, as part of a project to establish and construct a new airport to replace the existing airport facility at Oakes. A trial was held before the court, without a jury, and the court concluded that Oakes had \\\"failed to establish public use, public necessity and the proper selection of property sought to be condemned so as to entitle it to the exercise of eminent domain and condemnation\\\" of Wiese's land. In accordance with this conclusion, the district court, on October 20, 1976, entered a judgment dismissing Oakes' condemnation action with prejudice. No appeal was taken from that judgment of dismissal.\\nOn June 27, 1977, approximately eight months after the judgment of dismissal had been entered, Oakes commenced another condemnation action against Wiese in the Dickey County District Court. In this second action, Oakes seeks to acquire from Wiese a fee interest in 37.93 acres for the new airport, plus a clear zone easement in 9.18 acres for air navigation purposes. Wiese moved for dismissal of this action on the ground that the October 20, 1976, judgment of the district court was res judicata with respect to the issues raised and barred their re-litigation in the second condemnation action. The district court concluded that the issues in this second action had been raised and determined in the first action and that Oakes was therefore barred from re-litigating the case. Accordingly, the district court, on December 13, 1977, entered a judgment dismissing the second condemnation action with prejudice. Oakes now appeals from that judgment.\\nOakes alleges that the district court erred when it determined that the second action against Oakes was barred by the res judica-ta effect of the October 20, 1976, judgment of dismissal and Oakes raises the following two issues in this regard:\\n1. Whether the October 20, 1976, judgment of dismissal by the district court was void and without res judicata effect because the district court lacked jurisdiction to determine the public necessity of the proposed taking by the condemning authority; and\\n2. Whether the doctrine of res judicata bars a subsequent action by a condemning authority to acquire land which was sought by and denied to the condemning authority in a prior condemnation action against the same party.\\nOakes asserts that the October 20, 1976, judgment of dismissal was void because the district court lacked jurisdiction to determine the public necessity of the proposed taking. We disagree with the assertion that the district court lacked jurisdiction to determine the question of public necessity.\\nPursuant to subsection 2 of \\u00a7 32-15-05, N.D.C.C., the legislature has entrusted the right to review a determination of the question of necessity in an eminent domain action to the judicial branch of government. KEM Elec. Coop., Inc. v. Materi, 247 N.W.2d 668 (N.D.1976); Otter Tail Power Company v. Malme, 92 N.W.2d 514 (N.D.1958); County of Pembina v. Nord, 78 N.D. 473, 49 N.W.2d 665 (1951). Pursuant to \\u00a7 2-06-08, N.D.C.C., the acquisition of property through eminent domain by an airport authority must be accomplished in the manner provided by Chapter 32-15, N.D.C.C. Consequently, the issue of the necessity for a taking of property by an airport authority under Chapter 2-06, N.D.C.C., is ultimately for the courts to determine.\\nOakes asserts, however, that \\u00a7 2-06-17, N.D.C.C., declares that an acquisition of land by an airport authority under Chapter 2-06, N.D.C.C., is for a public purpose and is a public necessity, and that the courts are thereby without power to determine the question of public necessity in condemnation actions initiated by airport authorities under Chapter 2-06, N.D.C.C. Oakes' assertion is unpersuasive. Although \\u00a7 2-06-17, N.D.C.C., expresses a clear intent that property which is properly acquired by an airport authority for the purposes enumerated in Chapter 2-06, N.D.C.C., shall be considered an acquisition for a public purpose and a matter of public necessity, the decision as to the necessity of a particular taking for a use authorized by Chapter 2-06, N.D.C.C., remains a question for the courts to review under \\u00a7 32-15-05, N.D. C.C.\\nTo clarify the court's role in the determination of the question of public necessity, we emphasize that the determination of a condemning authority to exercise the power of eminent domain for an authorized public use is solely a legislative or political question which is not subject to judicial review. City of Grafton v. St. Paul, M. & M. Ry. Co., 16 N.D. 313, 113 N.W. 598 (1907). For example, the courts cannot review or disturb an airport authority's determination that a new airport facility is necessary. The court's review of public necessity is limited to the question of whether the taking of the particular property sought to be condemned is reasonably suitable and usable for the authorized public use. KEM Elec. Coop., Inc., supra; Otter Tail Power Company, supra. Much latitude is given to the condemning authority to determine the location and the extent of the property to be acquired, and a taking is not objectionable merely because some other location might have been made or some other property obtained that would have been as suitable for the purpose. Otter Tail Power Company, supra. In the absence of bad faith, gross abuse of discretion, or fraud by the condemning authority in its determination that the property sought is necessary for the authorized use and is pursuant to specific statutory authority, such determination should not be disturbed by the courts. See, Board of Education of City of Minot v. Park District, 70 N.W.2d 899 (N.D.1955); Northern Pacific Ry. Co. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679 (1908).\\nWe conclude that the district court had jurisdiction to determine the question of public necessity. Any errors by the court in the exercise of its jurisdiction were subject to correction by appeal from the October 20, 1976, judgment of dismissal. The judgment was a valid one, and failure to appeal from that judgment resulted in its becoming conclusive and binding upon the parties with res judicata effect as to the issues determined therein.\\nOakes also asserts on this appeal that the doctrine of res judicata does not bar a condemning authority from initiating a second condemnation action to acquire land it sought and was denied in a former condemnation action against the same party.\\nThe doctrine of res judicata is that a valid, existing final judgment is conclusive, with regard to the issues raised and determined therein, as to the parties and their privies in all other actions. See, Dolajak v. State Auto. & Cas. Underwriters, 252 N.W.2d 180 (N.D.1977). The purpose of the doctrine is to require a definite termination of litigation and to prevent the multiplicity, waste, and harassment which would result if a party could compel an adversary to re-litigate matters previously raised at issue and determined. Kallberg v. Newberry, 43 N.D. 521, 170 N.W. 113 (1918); Corbin v. Madison, 12 Wash.App. 318, 529 P.2d 1145 (1974); Gleason v. Hardware Mut. Casualty Co., 324 Mass. 695, 88 N.E.2d 632 (1949); Massie v. Paul, 263 Ky. 183, 92 S.W.2d 11 (1936).\\nAlthough the doctrine of res judicata applies to condemnation actions, the doctrine is not readily applicable to those cases in which a condemning authority seeks to bring a second condemnation action to acquire a part of the same land for which the courts in a prior condemnation action against the same party determined that the condemning authority had failed to prove a public use or public necessity. Those eases possess a unique character to which the doctrine is not readily applied \\u2014 in that, as time passes from the entry of the judgment in a condemnation action, changes may occur which would add new and important factors to be considered in a determination of whether a proposed taking in a subsequent action is for a public purpose and whether the particular land sought is necessary for that public purpose. The change in circumstances may present an entirely new case for determination even though the same issues involving public use and public necessity had been determined in a prior condemnation action between the same parties involving the same land.\\nIn J. Lewis, A treatise on the Law of Eminent Domain in the United States (3d Ed. 1909), Volume II, \\u00a7 605, pages 1069- 1070, the following comment is made regarding the commencement of a subsequent proceeding to acquire land for an improvement which was denied in an earlier proceeding:\\n\\\"As an improvement which is not necessary at one time may become so by reason of the change of circumstances, it would seem upon principle that, in the absence of any statute controlling the matter, a former application should not be a bar to a new one for the same improvement, unless brought so soon after the first that there could not presumably be any change of circumstances.\\\"\\nOur research of this issue has not led us to any recent cases regarding the applicability of the doctrine of res judicata where a condemning authority is bringing a subsequent condemnation action to acquire the same land sought in a prior condemnation action against the same party. However, the existing authorities do indicate an adherence to the following general rule: A prior unsuccessful attempt to acquire property for a public purpose should not bar the commencement of a subsequent action to acquire the same land providing the court is satisfied that the subsequent action was brought in good faith and that there has been a change of circumstances such that the action is not merely an attempt to reliti-gate identical issues based upon identical factors for consideration. See, City of Chicago v. Walker, 251 Ill. 629, 96 N.E. 536 (1911); Laguna Drainage Dist. v. Charles Martin Co., 5 Cal.App. 166, 89 P. 993 (1907); Perkiomen v. Sumneytown Turnpike Road, 25 Pa.Super. 462 (1904); Warlick v. Lowman, 111 N.C. 532,16 S.E. 336 (1892); Terry v. Town of Waterbury, 35 Conn.Rep. 526 (1869); Whitcher v. Town of Landaff, 48 N.H.Rep. 153 (1868); Petition of Howard, 8 Foster's Reports 157 (N.H.Super.Ct. of Judicature 1854). We believe the above stated general rule provides a workable standard upon which the courts can determine whether a prior adjudication will bar a second condemnation action brought by a condemning authority against the same party.\\nThe first condemnation action Oakes commenced against Wiese sought 74.1 acres of land, whereas the subsequent condemnation action seeks to acquire only 37.93 acres in fee, together with a clear zone easement in 9.18 acres. Although the second action involves the same land sought in the first condemnation action against Wiese, the requested taking is only for approximately one-half of the acres sought in the first action. This substantial reduction in the acres sought is a changed circumstance which may, in itself, have a decisive impact on a redetermination of whether the taking is necessary for the authorized use. The second condemnation action was commenced approximately eight months after the entry of judgment in the first action and, as of this writing, approximately eighteen months have passed from the date of the entry of the judgment in the first action. From this mere passage of time, changes in the use and requirements of an airport facility may occur which affect the determination of whether the proposed taking by Oakes is necessary for the authorized use. Furthermore, there is no indication in the record that Oakes has brought this action in bad faith.\\nWe conclude that, as a matter of law, there has been a sufficient showing of changed circumstances so as to preclude the application of the doctrine of res judicata from barring the second condemnation action by Oakes against Wiese. We believe the public policy of precluding the re-litigation of settled issues and the harassment which can result therefrom is not compromised by allowing this second condemnation action against Wiese to proceed on its merits.\\nIn accordance with this opinion, the December 13, 1977, judgment of the Dickey County District Court is reversed, and the case is remanded for a trial on the merits.\\nERICKSTAD, C. J., and SAND, and VO-GEL, JJ., concur.\\n. The full text of \\u00a7 2-06-17, N.D.C.C., provides as follows:\\n\\\"2-06-17. Public purpose. \\u2014 The acquisition of any land, or interest therein, pursuant to this chapter, the planning, acquisition, establishment, development, construction, improvement, maintenance, equipment, operation, regulation, and protection of airports and air navigation facilities, including the acquisition or elimination of airport hazards, and the exercise of any other powers herein granted to authorities and other public agencies, to be severally or jointly exercised, are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity. All land and other property and privileges acquired and used by or on behalf of any authority or other public agency in the manner and for the purposes enumerated in this chapter shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.\\\"\"}"

nd/10694484.json

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+"{\"id\": \"10694484\", \"name\": \"CITY OF WEST FARGO, North Dakota, a Municipal Corporation, Plaintiff and Appellee, v. CITY OF FARGO, North Dakota, a Municipal Corporation, Defendant and Appellant, and City of Riverside, North Dakota, a Municipal Corporation, Defendant\", \"name_abbreviation\": \"City of West Fargo v. City of Fargo\", \"decision_date\": \"1977-03-24\", \"docket_number\": \"Civ. No. 9297\", \"first_page\": 918, \"last_page\": \"922\", \"citations\": \"251 N.W.2d 918\", \"volume\": \"251\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T20:47:35.600170+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.\", \"parties\": \"CITY OF WEST FARGO, North Dakota, a Municipal Corporation, Plaintiff and Appellee, v. CITY OF FARGO, North Dakota, a Municipal Corporation, Defendant and Appellant, and City of Riverside, North Dakota, a Municipal Corporation, Defendant.\", \"head_matter\": \"CITY OF WEST FARGO, North Dakota, a Municipal Corporation, Plaintiff and Appellee, v. CITY OF FARGO, North Dakota, a Municipal Corporation, Defendant and Appellant, and City of Riverside, North Dakota, a Municipal Corporation, Defendant.\\nCiv. No. 9297.\\nSupreme Court of North Dakota.\\nMarch 24, 1977.\\n, Duane R. Breitling, of Ohnstad, Twichell, Breitling, Arntson & Hagen, West Fargo, for plaintiff and appellee.\\nWayne O. Solberg, of Solberg, Stewart & Boulger, Fargo, for defendant and appellant.\", \"word_count\": \"2031\", \"char_count\": \"12717\", \"text\": \"VOGEL, Justice.\\nThis is an appeal by the City of Fargo from a portion of a judgment in favor of the City of West Fargo, holding:\\n\\\"4. That the annexation proceedings as set forth in Sections 40-51.2-07 and 40-51.2-08 through 40-51.2-16 N.D.C.C. should be construed together so as to constitute one continuous process commencing at the time of the adoption of the resolution of annexation by a municipality.\\n\\\"5. That the annexation proceedings of the Cites of West Fargo, Riverside and Fargo are in conflict, and that such conflict should be resolved by the Annexation Review Commission.\\\"\\nThe judgment was entered in an action commenced by West Fargo against Fargo and the City of Riverside. The City of Riverside is not a participant in the present appeal. The action was commenced by West Fargo to resolve a conflict between proceedings of West Fargo and Fargo to annex the same property. The action asked for a permanent injunction, a temporary restraining order, a writ of prohibition, and for a declaratory judgment.\\nWe affirm the judgment. In resolving the issues raised, we must interpret for the first time certain provisions of the laws of this State relating to annexation of property to municipalities.\\nFACTS\\nOn March 29,1976, West Fargo adopted a resolution of annexation of 2,673 acres of land in Cass County. Part of the land in question lies between Fargo and West Fargo. The first publication of the resolution was on April 7, 1976.\\nAt that time, the land in question in this appeal, consisting of 160 acres (the Northeast Quarter of Section 16, Township 139 North, Range 49 West of the Fifth P.M.), could not have been annexed to Fargo, because it was not adjacent to any part of Fargo, and municipalities are forbidden to annex nonadjacent property. Sec. 40-51.2-03, N.D.C.C. The tract in question became contiguous on April 15, 1976, when Fargo completed annexation of land lying between the Northeast Quarter of Section 16 and the former boundaries of Fargo. Prior to that date, petitions for annexation to Fargo of the Northeast Quarter of Section 16 were signed by owners of the property within the quarter-section on March 26, 1976, and April 5, 1976, and submitted to the City of Fargo prior to April 15, 1976. Notice of the petition was published in the official newspaper of Fargo on April 23, 1976, and on April 27, 1976, Fargo gave the first reading to an ordinance annexing the quarter-section. The second reading was scheduled for May 4, 1976, but on May 3, 1976, the district court issued a temporary restraining order restraining Fargo from adopting any ordinances or resolutions to effectuate the annexation of the disputed tract.\\nIn the meantime, protests against West Fargo's annexation had been filed prior to May 3, 1976. The protests were filed by more than 25 percent of the electors living in the 2,673-acre tract, or owners of more than 25 percent of the assessed valuation of the land located therein. On May 10, 1976, the city commission of West Fargo petitioned the Attorney General of North Dakota to set up an annexation review commission pursuant to Sections 40-51.2-09 to 40-51.2-17, N.D.C.C.\\nOn May 18, 1976, the district court held a hearing and vacated its temporary restraining order. Thereafter, Fargo purportedly completed annexation of the disputed quarter-section. The court based its dissolution of the temporary restraining order upon subsection 7 of Section 32-05-05, N.D.C.C., providing that an injunction cannot be granted to prevent a legislative act by a municipal corporation. The court thereafter entered a judgment containing those provisions quoted above which are the subject of this appeal.\\nLAW AND DECISION\\nThe first question to be decided is whether West Fargo's annexation proceedings have priority over Fargo's or vice ver-sa, or whether neither has priority. We hold that West Fargo's proceedings have priority, under the general rule that the proceedings first in time are first in right.\\nIn State ex rel. Johnson v. Clark, 21 N.D. 517, 131 N.W. 715, 718 (1911), this court had before it a dispute between the City of Minot, attempting to annex certain property, and an attempted incorporation of a village containing the same property. We held then that\\n\\\"Every possible reason suggests the propriety of permitting that body which first secures jurisdiction to proceed in determining the questions involved.\\\"\\nWe also held that the important jurisdictional dates were the date the city council of Minot passed its resolution of annexation (March 18, 1909) and the date the would-be incorporators of the village presented their petition to the board of county commissioners (April 7, 1909). Since the city resolution was first in time, it was held that\\n\\\". . . the city council of Minot, having first acquired jurisdiction, secured also the duty to retain it and proceed to a final hearing and disposition of the application as prescribed by law.\\\"\\nThis court so held in spite of the fact that the original proceedings of the City of Minot were defective, and the proceedings were not completed until after the village incorporation proceedings were supposedly completed.\\nIn the present case, both cities agree that the general rule is as we have stated it. Both cite 2 McQuillin Mun. Corp. (3d Ed.), 1966 Rev.Vol., \\u00a7 7.22a:\\n\\\"The rule that among separate equivalent proceedings relating to the same subject matter, that one which is prior in time is prior in jurisdiction to the exclusion of those subsequently instituted, applies, generally speaking, to and among proceedings for the municipal incorporation, annexation, or consolidation of a particular territory; i. e., in proceedings of this character, while the one first commenced is pending, jurisdiction to consider and determine others concerning the same territory is excluded. Thus, where two or more bodies or tribunals have concurrent jurisdiction over a subject matter, the one first acquiring jurisdiction may proceed, and subsequent purported assumptions of jurisdiction in the premises are a nullity. This principle of the common law is based upon the general public policy of the promotion of the orderly administration of government and justice.\\\"\\nHowever, Fargo argues that the two proceedings are not \\\"equivalent\\\"; first, because West Fargo's proceedings were terminated and nullified by the filing of the protests of more than 25 percent of the landowners or the owners of more than 25 percent of the land, and, second, because West Fargo's petition to the Annexation Review Commission commenced a new proceeding which was later in time than Fargo's. Thus we reach the second question involved in the appeal, whether the filing of the protests or the invocation of the statutory annexation review commission procedure terminates the annexation proceedings or is a part of them. We hold that the annexation proceedings are continuous, regardless of the filing of the protests or the invocation of the annexation review commission procedure, until such time as the proceedings are terminated in accordance with the statutory procedure.\\nIt is our view that the statutory provisions as to the annexation review are not a separate method of annexing territory, and that protests do not terminate an annexation proceeding, but that both are constitutent parts of the overall annexation process. Except for minor amendments not material to the issue before us, substantially all of Chapter 40-51.2 was adopted in 1969 as Chapter 381 of the Session Laws of 1969. While Section 40-51.2-08 provides that the governing body of any municipal corporation may petition the Attorney General for annexation, this section must be read in conjunction with the last sentence of Section 40-51.2-07, the preceding section, which provides:\\n\\\"If the owners of one-fourth or more of the territory proposed to be annexed protest, the city may seek annexation by petition to the annexation review commission as hereinafter provided.\\\"\\nThus the invoking of the annexation review commission procedure is authorized if the voluntary procedure is halted by protests. It is a continuation of the same process.\\nWe are also satisfied that the Fargo annexation proceedings and the West Fargo annexation proceedings are \\\"equivalent\\\" proceedings, so that the \\\"first in time, first in right\\\" doctrine applies. Fargo proceeded by voluntary petition followed by the passage of an ordinance after appropriate notice was given, while West Fargo proceeded by city council action followed by notice and request for action by the Annexation Review Commission when protests were filed. Although the procedures followed were somewhat different, both were authorized by the Municipal Annexation Act of 1969, Chapter 40-51.2, and are \\\"equivalent\\\" proceedings, just as less-similar proceedings have been held \\\"equivalent\\\" in other cases, such as State ex rel. Johnson v. Clark, supra [annexation proceeding and incorporation proceeding]; Borghi v. Board of Supervisors of County of Alameda, 133 Cal.App. 463, 284 P.2d 537 (1955) [incorporation proceeding and annexation proceeding]; Village of Brown Deer v. City of Milwaukee, 274 Wis. 50, 79 N.W.2d 340 (1956) [consolidation proceeding and annexation proceeding]; and State ex rel. Winn v. City of San Antonio, 259 S.W.2d 248 (Tex.Civ.App.1953) [annexation proceeding and incorporation proceeding].\\nFargo raises a third point, that the annexation review commission procedure, as applied to a dispute between two municipalities as to annexation of property between them, is essentially unfair since one of the municipalities is represented on the Annexation Review Commission while the other is not. This point has logical merit, but, in our view, raises no legal issue precluding action by the Annexation Review Commission. It is a matter for the Legislature. The argument arises from the fact that an annexation review commission is composed of the Attorney General, one county member, and one city member. Sec. 40-51.2 \\u2014 10, N.D.C.C. A county member is appointed by the board of county commissioners from the township board in which the territory is situated or from the county commission if the township is not organized. The governing body of the municipality instituting the annexation proceeding appoints one of its members as a city member. Thus the city invoking the annexation review commission procedure is represented on the commission, while the other city involved is unrepresented.\\nWe have examined the legislative history of the Municipal Annexation Act of 1969 without receiving much enlightenment on this question. It seems clear that the main purpose of the Legislature in adopting the Act was to provide for resolution of the dispute arising in the usual case, where some of the disputants are residents of a city seeking to annex land outside any municipality and the others are rural residents of the area sought to be annexed. The Legislature apparently gave little, if any, thought to the problems that would arise if the annexation of the same property is sought by two municipalities. Nevertheless, we must construe the statute as it is written and apply it to the facts before us. We recognize that the statute is unfair on its face to the municipality not invoking the commission procedure, but we cannot say that it is constitutionally invalid or otherwise unenforceable.\\nOf course, the contesting city which is not represented on the commission may participate in the hearing as fully as any other party to the proceeding. See Sec. 40-51.2-12. It may also apply for a writ of certiorari if dissatisfied with the decision. See Sec. 40-51.2-15.\\nWe hold (1) that the annexation proceedings of the City of Fargo are invalid, for the reason that the West Fargo proceedings were prior in time and thus preclude annexation proceedings by any other municipality while they are pending and so long as they are not unreasonably delayed; (2) that the Annexation Review Commission was validly invoked as a part of the West Fargo annexation procedure; and (3) that the Annexation Review Commission has the authority to consider the claims of both cities as well as any rural areas involved.\\nAffirmed.\\nERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.\"}"

nd/10696656.json

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+"{\"id\": \"10696656\", \"name\": \"STATE of North Dakota, Plaintiff and Appellee, v. Arnold J. LaFROMBOISE, Defendant and Appellant\", \"name_abbreviation\": \"State v. LaFromboise\", \"decision_date\": \"1996-01-11\", \"docket_number\": \"Cr. No. 950153\", \"first_page\": 110, \"last_page\": \"114\", \"citations\": \"542 N.W.2d 110\", \"volume\": \"542\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T18:29:05.258967+00:00\", \"provenance\": \"CAP\", \"judges\": \"VANDE WALLE, C.J., and MESCHKE and NEUMANN, JJ., concur.\", \"parties\": \"STATE of North Dakota, Plaintiff and Appellee, v. Arnold J. LaFROMBOISE, Defendant and Appellant.\", \"head_matter\": \"STATE of North Dakota, Plaintiff and Appellee, v. Arnold J. LaFROMBOISE, Defendant and Appellant.\\nCr. No. 950153.\\nSupreme Court of North Dakota.\\nJan. 11, 1996.\\nStephen J. Rice, Walsh County State\\u2019s Attorney, Grafton, for plaintiff and appellee.\\nRobert J. Woods of Woods Legal Services, Forest River, for defendant and appellant.\", \"word_count\": \"2226\", \"char_count\": \"14362\", \"text\": \"SANDSTROM, Justice.\\nArnold LaFromboise, on appeal from a criminal conviction for unlawful possession of drug paraphernalia, challenges the trial court's denial of his motion to suppress evidence found during a warrantless probationary search of his Grafton residence. Because the search was neither pretextual nor unreasonable, we affirm the judgment of conviction.\\nI\\nLaFromboise was serving probation for a January 25, 1994 conviction of possessing a short-barreled shotgun, a class C felony. See N.D.C.C. \\u00a7 62.1-02-03. Under the terms of his probation, LaFromboise was to not violate any criminal laws and was subject to searches of his person, vehicle, or residence by any probation officer any time of the day or night, with or without a search warrant. See N.D.C.C. \\u00a7 12.1-32-07(4)(n). During July 1994, marijuana was found during a probationary search of LaFromboise's residence. In September 1994, Loralyn Waltz, LaFromboise's probation officer, obtained information that LaFromboise's residence might again contain contraband. Waltz contacted another probation officer in her office, Jayne Lilleoien, and asked her to conduct another probationary search of the residence.\\nAt approximately 9 p.m. on September 28, 1994, Lilleoien and several law enforcement officers went to LaFromboise's apartment and knocked on the front and back doors. The officers repeatedly knocked and announced their presence and purpose, but there was no response. The officers observed lights were on inside the residence, people were moving inside, and someone closed the blinds. They also heard the repeated flushing of a toilet. They received no response. After almost 10 minutes, Lilleoien authorized the officers to force open the front door.\\nLaw enforcement officers found LaF-romboise, his girlfriend, and several other persons, including two juveniles in the apartment. As many as 11 law enforcement officers and a drug-sniffing dog participated at various times during the three-hour search of the three-level apartment. Some of the officers were called in only to transport persons found at the apartment. Lilleoien found marijuana floating in a toilet and various items of drug paraphernalia throughout the apartment. LaFromboise was charged with possession of drug paraphernalia under N.D.C.C. \\u00a7 12.1-31.1-03, a class A misdemeanor.\\nLaFromboise moved to suppress the evidence found at his apartment, asserting the search violated his rights under the Fourth Amendment to the United States Constitution and its state counterpart, Article I, \\u00a7 8 of the North Dakota Constitution. The trial court found no constitutional violations and denied the suppression motion. LaFrom-boise was convicted by a jury.\\nThe trial court had jurisdiction under Art. VI, \\u00a7 8, N.D. Const., and N.D.C.C. \\u00a7 27-05-06(1). LaFromboise's appeal from the criminal judgment and commitment was timely under N.D.R.App.P. 4(b). This court has jurisdiction under Art. VI, \\u00a7 6, N.D. Const., and N.D.C.C. \\u00a7 29-28-06(2).\\nII\\nThe defendant in State v. Perbix, 331 N.W.2d 14 (N.D.1983), was subject to probationary searches similar to LaFromboise. Eight law enforcement officers searched the defendant's residence, at the county sheriffs urging, \\\"because the search provision had not been previously implemented.\\\" Perbix at 15 (footnote omitted). The defendant's probation officer was not contacted and no attempt was made to obtain a search warrant. This court upheld the constitutionality of the search, holding a showing of \\\"reasonable suspicion\\\" or \\\"probable cause\\\" was not necessary:\\n\\\"[Cjonditions of probation requiring the probationer to submit to warrantless searches by probation officers or law enforcement officers, to the extent such searches contribute to the rehabilitation process; are not used as a subterfuge for criminal investigations; and are performed in a reasonable manner, are valid and not violative of the Fourth Amendment.\\\"\\nPerbix at 21 (footnote omitted).\\nLaFromboise does not challenge, under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the continuing validity of the Perbix holding reasonable suspicion is unnecessary to conduct a probationary search. Rather, LaFromboise asserts, unlike the search in Perbix, the search of his apartment was a pretextual search for the fruits of a crime and was executed in an unreasonable manner.\\nA trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). This standard of review acknowledges the significance of the trial court's opportunity to assess the credibility of witnesses and to weigh their testimony. State v. Knudson, 499 N.W.2d 872, 873 (N.D.1993). Whether the officers' conduct, as found by the trial court, violated constitutional prohibitions against unreasonable search and seizure is a question of law. State v. Saavedra, 396 N.W.2d 304, 306 (N.D.1986); United States v. Austin, 66 F.3d 1115, 1118 (10th Cir.1995).\\nA\\nThe trial court found \\\"[t]he predominant purpose of the search was to determine if . LaFromboise was complying with his probation terms, and in that sense the search contributed to his rehabilitative process and was therefore reasonable.\\\" LaFromboise asserts the trial court erred and the search was a subterfuge for investigating criminal activity because there was a large number of law enforcement officers involved, there was no search warrant, and there was no attempt to revoke his probation before criminal charges were brought.\\nThe search was instigated by LaFrom-boise's probation officer, Waltz, and conducted by another probation officer at her behest. The trial court found Lilleoien's office established the date for the search and law enforcement officers present at the scene recognized Lilleoien as the person in charge. The trial court also found Lilleoien announced the probation search at the apartment and was the person who discovered much of the paraphernalia there.\\nLilleoien conducting the search with the assistance of up to 11 law enforcement personnel from various agencies is not highly unusual. As the trial court noted, searches by probation officers are commonly conducted with assistance from other law enforcement officers and agencies. See, e.g., Perbix at 16 (eight sheriffs and police officers involved). The presence of the other officers is especially understandable here, given LaF-romboise was on probation for possessing an illegal short-barreled shotgun, and Lilleoien had been warned weapons may be found at the premises. Moreover, not all of the officers were present at the apartment at the same time, and some only assisted in transporting the occupants.\\nBecause a search warrant was not constitutionally required, see Griffin,: Perbix, failing to obtain one did not turn this into a pretextual search. Contrary to LaFrom-boise's argument, waiting for a conviction before attempting to revoke LaFromboise's probation does not indicate subterfuge by law enforcement. See Perbix at 16 n. 2; State v. Raywalt, 444 N.W.2d 688 (N.D.1989).\\nHere, LaFromboise's probation conditions required him to obey criminal laws. Marijuana was found in a prior probation search of his residence, thus giving LaFrom-boise's probation officer concern he was not complying with the probation conditions. We conclude there was sufficient competent evidence to support the trial court's finding the search was not a subterfuge for criminal investigation.\\nB\\nLaFromboise asserts the manner, intensity, and scope of the search were unreasonable under the state and federal constitutions. The trial court decided \\\"the execution of the probation search was reasonable under the circumstances.\\\"\\nLaFromboise first complains the forced entry into his apartment was unreasonable. We recognize the common law and N.D.C.C. \\u00a7 29-29-08 statutory knock and announce rules form a part of the reasonableness inquiry under the Fourth Amendment. See Wilson v. Arkansas, \\u2014 U.S. -, -, 115 S.Ct. 1914, 1915, 131 L.Ed.2d 976 (1995); State v. Sakellson, 379 N.W.2d 779, 784 (N.D.1985). The determination of whether a forced entry is justified after an officer's announcement of presence and purpose does not turn on a set time limit, but depends upon the circumstances confronting the officer. See United States v. Lucht, 18 F.3d 541, 549 (8th Cir.), cert. denied, \\u2014 U.S. -, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994); United States v. Knapp, 1 F.3d 1026, 1030 (10th Cir.1993). LaFromboise essentially argues the forced entry was unreasonable because it did not occur until approximately 10 minutes after the officers' presence and purpose were announced, thus making exigent circumstances a non-factor in this case.\\nLilleoien testified Waltz informed her LaFromboise was \\\"in a wheelchair,\\\" but that \\\"he can get around a little bit without his wheelchair.\\\" The trial court noted the search occurred at 9 p.m., there were several rooms in the three-level dwelling, and officers were stationed at both doors. Lilleoien knocked, announced their presence, identified herself as a law enforcement officer, and stated the purpose of the search was probationary. Shortly afterward, one of the officers heard a toilet flush and saw movement inside the apartment. The trial court determined this gave the officers reason to conclude illegal contraband was being destroyed. After several minutes passed and no one had opened the doors for them, the other law enforcement officers obtained permission from Lilleoien to break down the door. Given LaFromboise's known inability to maneuver freely within the three-level dwelling and the other circumstances present, we agree with the trial court the officers' patient 10-minute wait to force entry into the apartment was not unreasonable.\\nLaFromboise also complains about the three-hour length and the extensiveness of the search. The trial court noted there were several rooms to search in the three-level apartment and several items constituting alleged contraband and paraphernalia were discovered and had to be inventoried. Although LaFromboise relies on Ginter v. Stallcup, 869 F.2d 384 (8th Cir.1989), for the proposition he has a Fourth Amendment right to be free from an unnecessarily destructive search and seizure, there is no evidence in the record any of his property was unnecessarily damaged. Because illegal drugs can be secreted in a variety of places, the officers cannot be faulted for their careful search of the premises. The trial court found nothing unreasonable about the length or extent of the search under the circumstances, and neither do we.\\nLaFromboise asserts the presence of 11 law enforcement officers also renders the search unreasonable. But again, the trial court noted not all of the officers were present at the same time and there were several rooms and floors to search. Some of the officers were there to transport the occupants to other locations. We, like the trial court, also conclude nothing was unreasonable about the number of officers present.\\nWe conclude there is sufficient competent evidence to support the trial court's findings. The manner, intensity, and scope of the search were not unreasonable.\\nIll\\nThe judgment of conviction is affirmed.\\nVANDE WALLE, C.J., and MESCHKE and NEUMANN, JJ., concur.\\nLEVINE, J., concurs in the result.\\n. LaFromboise was sentenced to one year at the State Penitentiary, but to first serve 45 days in the Walsh County Corrections Center, with the balance of the one year sentence suspended for 18 months. The trial court denied LaFrom-boise's request for a stay of sentence pending the outcome of this appeal. The record shows a bench warrant was issued for LaFromboise's arrest when he failed to attend a hearing on a petition to revoke his probation. Apparently, LaFromboise has failed to appear at the Walsh County Corrections Center to serve any of his sentence. According to the State, LaFromboise has \\\"fled from his sentence\\\" and is \\\"at large on the lam.\\\"\\nThe United States Supreme Court recently said \\\"[i]t has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.\\\" Ortega-Rodriguez v. United States, 507 U.S. 234, -, 113 S.Ct. 1199, 1203, 122 L.Ed.2d 581 (1993). See also Goeke v. Branch, - U.S. -, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995) (neither Ortega-Rodr\\u00ed-guez nor earlier cases suggested dismissal of a fugitive's appeal implicates constitutional principles). As the Supreme Court explained in Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970):\\n\\\"No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the con viction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims....\\\"\\nIn this case, the State did not move to dismiss the appeal under the \\\"fugitive dismissal rule,\\\" which has been adopted by rule or statute in some jurisdictions and has been judicially adopted by courts in various other jurisdictions. See, e.g., Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (upholding Texas statute); Young v. State, 518 So.2d 822 (Ala.Crim.App.1987), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988) (judicial adoption); State v. Patten, 134 N.H. 319, 591 A.2d 1329 (1991) (judicial adoption). This court has not previously applied the rule. We prefer to consider whether to adopt the \\\"fugitive dismissal rule\\\" when it has been properly raised and documented in a prehearing motion to dismiss the appeal.\"}"

nd/10702874.json

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+"{\"id\": \"10702874\", \"name\": \"Gayle WRANGHAM et al., Plaintiffs and Appellants, v. Ervin TEBELIUS, Defendant and Appellee\", \"name_abbreviation\": \"Wrangham v. Tebelius\", \"decision_date\": \"1975-06-23\", \"docket_number\": \"Civ. No. 9082\", \"first_page\": 753, \"last_page\": \"758\", \"citations\": \"231 N.W.2d 753\", \"volume\": \"231\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T18:43:14.099788+00:00\", \"provenance\": \"CAP\", \"judges\": \"SAND, PAULSON, PEDERSON and VOGEL, JJ., concur.\", \"parties\": \"Gayle WRANGHAM et al., Plaintiffs and Appellants, v. Ervin TEBELIUS, Defendant and Appellee.\", \"head_matter\": \"Gayle WRANGHAM et al., Plaintiffs and Appellants, v. Ervin TEBELIUS, Defendant and Appellee.\\nCiv. No. 9082.\\nSupreme Court of North Dakota.\\nJune 23, 1975.\\nVance K. Hill, Bismarck, for plaintiffs and appellants.\\nElla Van Berkom, Minot, for defendant and appellee.\", \"word_count\": \"1935\", \"char_count\": \"11635\", \"text\": \"ERICKSTAD, Chief Justice.\\nThis appeal is brought by the plaintiffs, Gayle Wrangham; Darla Wrangham, a minor; and Joan Wrangham, a minor; by and through Gayle Wrangham, their next friend, from an order of the Wells County District Court granting the motion of the defendant, Ervin Tebelius, for a new trial and denying the plaintiff's motion for a new trial.\\nThe plaintiffs brought an alienation of affections action seeking compensatory and exemplary damages for injuries allegedly caused them by Tebelius's wrongful conduct.\\nWinnifred Wrangham, the former wife of Gayle and the mother of Darla and Joan, was employed by Ervin Tebelius as his secretary in conjunction with his livestock sales business. Testimony was elicited during the trial that since 1968 Winnifred had accompanied Tebelius socially on many occasions; that they often danced and drank together and often called one another; that they once attended a wedding dance together in another town; that they spent varying periods of time together in parked automobiles and otherwise spent time together in a number of places and at all times of the day; and that they continued to do so until a short time prior to the trial out of which this appeal arose.\\nOther testimony indicates that Gayle Wrangham has since the time of his marriage indulged in associations of an unseemly nature with a number of women; that he has openly cohabited with a woman not his wife; that he recently visited this same woman in the State of Montana and that his relationship with her has continued for many years; that shortly after his marriage and while his wife was pregnant with their first child, a woman appeared at their home, introduced herself to Winnifred as her husband's mistress, and requested that Winnifred divorce him; that he has beaten Winnifred on many occasions and has also beaten Tebelius; that he has often abused Winnifred verbally and has done so in profane and vulgar language in the presence of their minor children; and that in June 1973 he was asked by Winnifred to leave home \\\"because he literally beat up the whole family.\\\"\\nIt further appears that while Gayle and Winnifred Wrangham have periodically lived together notwithstanding their problems, they are now living apart from one another and that the children now reside with Winnifred.\\nThe complaint alleges that the defendant did abduct, entice, and seduce Winnifred Wrangham and alienate her affections from Gayle Wrangham and deprive him and the children of the comfort, society, and assistance of the wife and mother; such conduct of the defendant made the Wrangham home a miserable and desolate place to live; and this conduct caused the father and husband to leave home thereby depriving the children of the comfort, society, and assistance of their father as well as denying them the right and privilege to be raised by two affectionate parents.\\nTebelius answered generally denying the allegations of the complaint and counterclaimed for damages for a beating inflicted upon him by Gayle Wrangham.\\nThe jury dismissed Tebelius's counterclaim, found for Gayle Wrangham but awarded him no damages, and returned a verdict of $5,000 compensatory damages and $5,000 punitive damages for each of the minor daughters.\\nGayle's motion for a new trial, denied by the trial judge, was based on the trial court's failure to give certain requested instructions. The first request was that the court give the following instructions:\\n\\\"1.\\n\\\" If the defendant carnally knew plaintiff's wife, without the husband's consent, the husband is entitled to recover at least nominal damages from the defendant regardless of any other facts.\\n\\n\\\"7.\\n\\\"Any necessary force may be used to protect your wife or child from wrongful injury.\\\"\\nWhen the trial court refused to give these instructions, Gayle requested that Section 14-02-07, N.D.C.C., be given in its entirety. This request the court also refused. That section reads:\\n\\\"14-02-07. Force to protect. \\u2014 Any necessary force may be used to protect from wrongful injury the person or property of one's self, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest.\\\" N.D.C.C.\\nTebelius's motion for a new trial was based in part on the contention that the evidence was insufficient to justify the verdict as rendered by the jury.\\nThe pertinent part of the trial court's memorandum opinion reads:\\n\\\"I am going to grant the defendant's motion for new trial and deny the plaintiffs' motion for new trial as appears in his Paragraph 3. I don't think the verdict is supported by the evidence. I think it is clearly a result of passion and prejudice. I find no evidence of damage to the children, the only testimony being as I have recited: that they heard an argument within the family home wherein this was admitted but, as I have said, that argument was precipitated directly by Wrangham and could have been avoided, and he brought that on himself, and the only evidence I have of damage at all. The rest is conjecture. There is no testimony whatever of monetary damage, damage to reputation, damage to feelings. The children didn't testify. No person in the community testified. And I cannot assume that damage exists when there is no evidence of it, so that will be the ruling.\\\"\\nThe first issue for our consideration is whether the trial court abused its discretion in granting the defendant's motion for a new trial. Rule 59(b)(6), N.D.R.Civ.P., provides:\\n\\\"(b) Causes for new trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:\\n\\n\\\"6. Insufficiency of the evidence to justify the verdict or other decision, \\\" Rule 59, N.D.R.Civ.P.\\nThe discretion of the trial court in passing on the motion for a new trial is a legal discretion to be exercised in the interests of justice. When it appears to the trial court that the verdict is against the weight of the evidence, it is the duty of that court to set aside the verdict and to grant a new trial. Johnson v. Frelich, 165 N.W.2d 343 (N.D.1969); Long v. People's Department Store, 95 N.W.2d 904 (N.D.1959). The granting of a motion for a new trial upon the ground of the insufficiency of the evidence will not be disturbed on appeal unless a manifest abuse of that discretion appears. Long v. People's Department Store, 95 N.W.2d 904 (N.D.1959).\\nWe have said in a number of cases, including Long v. People's Department Store:\\n\\\"In the consideration of such motions trial courts are not confined to a consideration of whether the verdict and judgment are supported by substantial evidence. 'A margin of discretion is vested in trial courts, which permits them, with a view to promoting the ends of justice, to weigh the evidence, and, within certain limitations, act upon their own judgment with reference to its weight and credibility .' \\\" Long v. People's Department Store, 95 N.W.2d 904 at 908 (N.D.1959).\\nIn an appeal from an order granting a new trial, the appellant has the burden of showing that the trial court erred and that the granting of the new trial was a manifest abuse of the trial court's discretion. Johnson v. Frelich, supra.\\nThis court has also held that a stronger showing is required to reverse an order granting a new trial than to reverse an order denying one. For an application of this view see Stein v. Ohlhauser, 211 N.W.2d 737 (N.D.1973), and the development of the law stated in the dissent in Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524 at 531 (N.D.1968).\\nHaving examined the record before us today, we conclude that the appellants have failed to sustain their burden of showing an abuse of discretion. The test of what is within the discretion of a court has been suggested by the question: Could the court have properly decided the question either way? If so, there is no abuse of discretion in deciding it one way as opposed to the other. See In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973), and the development of the law stated in the dissent in Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524 at 533 (N.D.1968).\\nOur view is that the trial court could have reasonably found that the evidence supported an award to the children or that it did not. As the trial court indicated in its memorandum opinion, no direct evidence of damage to the children was presented at trial.\\nNo testimony relating to damage to the children was submitted by the neighbors, the school teachers, the religious advisors, the medical doctors, the school nurse, or anyone else who might reasonably have witnessed the children and discerned suffering.\\nThe trial court may have concluded that the damage, if any, suffered by the children was caused wholly by the misconduct of their father and not by their mother's friend. From the nature of the father's misconduct, we do not think that conclusion unreasonable.\\nThe second issue for our consideration is whether the trial court erred in denying Gayle Wrangham's motion for a new trial. The motion was based upon the court's failure to give the requested instructions previously set forth herein.\\nRule 59(b)(7), N.D.R.Civ.P., permits the granting of a new trial for errors in law occurring at the trial.\\nLet us first consider the question of the propriety of denying the requested instruction on the use of force. The trial court, in considering Gayle Wrangham's motion for a new trial, could have found that the force used by Gayle Wrangham toward Ervin Tebelius was unrelated to any protection of self, wife, children, or property. It could have concluded that the force used, because of the circumstances, was punitive only and not preventative. Accordingly, we find in the record no evidence which supports a finding on appeal that the trial court erred in refusing to give the requested instruction on force and in subsequently denying the plaintiff's motion for a new trial.\\nThe defendant's requested instruction concerning the awarding of nominal damages would have required the jury to award such damages if it found that Tebeli-us carnally knew Winnifred Wrangham, irrespective of any other fact.\\nSection 32-03-38, N.D.C.C., pertaining to nominal damages reads:\\n\\\"32-03-38. Nominal damages. \\u2014 When a breach of duty has caused no appreciable detriment to the party affected, he may recover nominal damages.\\\" N.D. C.C.\\nUnlike the defendant's requested instruction, the statute allows such damages but does not require that such damages be awarded. Accordingly, we find no error in the trial court's refusal to give the instruction on nominal damages.\\nThe trial court is not bound to revise and restate requested instructions that are not presented in proper form and which mingle correct statements of the law with those that are incorrect or ambiguous. Chandler v. Hjelle, 126 N.W.2d 141, 149 (N.D.1964).\\nIt is our view that Gayle Wrangham has failed to sustain his burden of proof in that he has failed to prove that the trial court erred in denying his motion for a new trial.\\nFor the reasons stated in the opinion, the order of the trial court denying Gayle Wrangham's motion for a new trial and granting Ervin Tebelius's motion for a new trial is affirmed.\\nSAND, PAULSON, PEDERSON and VOGEL, JJ., concur.\"}"

nd/10711529.json

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+"{\"id\": \"10711529\", \"name\": \"Terri Leigh DUNCKLEE, f/k/a Terri Mack, Plaintiff and Appellant v. Karen K. WILLS individually and as a member of the firm of Kuchera, Stenehjem, and Wills, and the law firm of Kuchera, Stenehjem, Kuchera, and Wills, Defendants and Appellees\", \"name_abbreviation\": \"Duncklee v. Wills\", \"decision_date\": \"1996-01-30\", \"docket_number\": \"Civil No. 950254\", \"first_page\": 739, \"last_page\": \"742\", \"citations\": \"542 N.W.2d 739\", \"volume\": \"542\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T18:29:05.258967+00:00\", \"provenance\": \"CAP\", \"judges\": \"VANDE WALLE, C.J., and NEUMANN, and MESCHKE, JJ., concur.\", \"parties\": \"Terri Leigh DUNCKLEE, f/k/a Terri Mack, Plaintiff and Appellant v. Karen K. WILLS individually and as a member of the firm of Kuchera, Stenehjem, and Wills, and the law firm of Kuchera, Stenehjem, Kuchera, and Wills, Defendants and Appellees.\", \"head_matter\": \"Terri Leigh DUNCKLEE, f/k/a Terri Mack, Plaintiff and Appellant v. Karen K. WILLS individually and as a member of the firm of Kuchera, Stenehjem, and Wills, and the law firm of Kuchera, Stenehjem, Kuchera, and Wills, Defendants and Appellees.\\nCivil No. 950254.\\nSupreme Court of North Dakota.\\nJan. 30, 1996.\\nHenry H. Howe (argued), of Howe & Sea-worth, Grand Forks, for plaintiff and appellant. Appearance by Mary Seaworth.\\nLyle W. Kirmis (argued), of Zuger Kirmis & Smith, Bismarck, for defendants and ap-pellees.\", \"word_count\": \"1351\", \"char_count\": \"8463\", \"text\": \"LEVINE, Justice.\\nTerri Duncklee appeals from a summary judgment dismissing her legal malpractice action against attorney Karen Wills. We hold that Duncklee's response to the motion for summary judgment was timely under Rule 3.2, of the North Dakota Rules of Court and that she raised a material fact issue making summary judgment under Rule 56, N.D.R.Civ.P., inappropriate. The trial court erred in dismissing Duncklee's action on the ground she did not timely respond to Wills' motion. Consequently, we reverse the summary judgment dismissal and remand for further proceedings.\\nIn 1987, Wills represented Duncklee in a divorce. On November 9, 1993, Duncklee brought a legal malpractice action against Wills, alleging that during the divorce proceedings, Wills negligently handled the property settlement by failing to attain for Duncklee an equitable portion of her former husband's military pension.\\nOn April 24, 1995 Wills filed a motion for summary judgment under Rule 56, N.D.R.Civ.P., and Rule 3.2, N.D.R.O.C., alleging the two-year statute of limitations had expired on Duncklee's malpractice action, and requesting summary dismissal of her claim. Wills' brief in support of the motion was received by Duncklee's counsel on that same day. The brief expressly stated that a copy of the original divorce decree was being included as part of the brief, labeled Attachment 1, and that a copy of excerpts from Duncklee's deposition testimony was also being included as part of the brief, labeled as Attachment 2. However, those attachments were inadvertently omitted from the brief Wills filed with the court and from the brief served upon Duncklee. On May 11, 1995, Wills' counsel filed copies of the attachments with the clerk of court and sent copies of the attachments to Duncklee's attorneys, with a cover letter stating:\\n\\\"Please find enclosed Attachments 1 and 2 to the Brief in Support of Motion for Summary Judgment. It has come to our attention that these attachments were apparently not provided when the brief was originally served. We apologize for any inconvenience this oversight may have caused.\\\"\\nOn May 22, 1995, Duncklee filed a response to the motion, briefing the statute of limitations issue on its merits.\\nRule 1.1, N.D.R.O.C., makes Rule 3.2 apply to all motion practice unless there is a conflicting rule governing the matter. Here, there is no conflict between Rule 56, N.D.R.Civ.P., and Rule 3.2, N.D.R.O.C. Therefore, Rule 3.2, N.D.R.O.C., governs, and gives the party opposing a motion ten days to file a responsive brief:\\n\\\"Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers.\\\"\\nWhen the moving party's brief is served by mail, the adverse party is given an additional three days to respond. Rule 6(e), N.D.R.Civ.P. \\\"Failure to file a brief by the adverse party is an admission that, in the opinion of party or counsel, the motion is meritorious.\\\" Rule 3.2(b), N.D.R.O.C.\\nThe trial court, counting from the date Wills' brief, without attachments, was filed and served upon Duncklee, concluded the time for response under the rule expired on May 9, 1995, and the court refused to acknowledge Duncklee's May 22,1995 response to the motion. On June 7, 1995, the court ordered summary dismissal of Duncklee's malpractice action, on the ground that Duncklee had failed to file a timely brief in response to the motion and, thereby, had admitted the motion was meritorious. A summary judgment dismissing the action was entered on June 12, 1995, and Duncklee appealed.\\nDuncklee asserts that her May 22, 1995 response was timely, because it was served and filed within 13 days after the omitted attachments were sent to her. We agree. Rule 3.2(a), N.D.R.O.C., gives the opposing party ten days to respond \\\"after service of a brief' by the movant. Wills' brief, by its express terms, made the attachments a part of the brief in support of the motion. But, the attachments were mistakenly omitted from the brief and were not sent to Duncklee until the error was discovered more than two weeks later. Until then, service of the brief upon Duncklee was not perfected for purposes of starting the ten-day period for Duncklee to respond under Rule 3.2, N.D.R.O.C. Consequently, we conclude the trial court abused its discretion in granting the summary dismissal of Dunck-lee's claim on the ground she did not timely respond to the motion.\\nWills argues the attachments were not a crucial part of the brief, because they \\\"did not represent factual support for the motion\\\" and because Duncklee already had access to those documents. Wills argument is unpersuasive, especially as to the excerpts from Duncklee's deposition. Wills relied on those excerpts to support her arguments about when Duncklee should have discovered the cause of action and when the statute of limitations expired. The excerpts were important information for Duncklee to have in framing her response to Wills' motion.\\nA dismissal of an action for failure to file a response to a motion to dismiss is analogous to a judgment by default, and decisions on the merits are more desirable than decisions by default. Breyfogle v. Braun, 460 N.W.2d 689 (N.D.1990). In considering Rule 3.2, N.D.R.O.C., motions, it is important the party opposing the motion is given an opportunity to respond to all information and supporting material submitted in support of the motion. See Berglund v. Gulsvig, 448 N.W.2d 627 (N.D.1989). Applying Rule 3.2, N.D.R.O.C. to the circumstances here, we conclude Duncklee should have been given ten days to respond (plus three additional days for mailing) from the day the omitted attachments were served upon her. Under these circumstances, we conclude Duncklee's response was timely and the trial court's refusal to acknowledge it constituted an abuse of discretion. See Breyfogle v. Braun, 460 N.W.2d 689 (N.D.1990)(the trial court abused its discretion in granting summary dismissal under Rule 3.2, N.D.R.O.C., where the party opposing the motion responded before the scheduled hearing).\\nWills sought summary dismissal on the ground that the two-year statute of limitations had expired. Summary judgment under Rule 56, N.D.R.Civ.P., should be granted only if it appears there are no genuine issues of material fact or any conflicting inferences which may be drawn from those facts. Berglund v. Gulsvig, 448 N.W.2d 627. The statute of limitations for legal malpractice actions commences to run when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence. Wall v. Lewis, 393 N.W.2d 758 (N.D.1986). A malpractice plaintiffs knowledge is ordinarily a question of fact, and summary judgment is rarely appropriate on the issue of when the plaintiff-should have discovered there was a potential malpractice claim. Id., 393 N.W.2d at 762.\\nDuncklee asserted in her response to the motion that Wills, while representing her in the divorce proceedings, told her she could receive a portion of her prior husband's military pension when he retired, without including that matter in the divorce decree. Duncklee alleges she, therefore, had no reason to know of a potential malpractice claim until several years later when her prior husband retired and Wills then told her she could not get any portion of the military pension. These allegations are supported by Duncklee's deposition testimony, which creates a material fact question regarding the statute of limitations issue. Therefore, summary judgment is inappropriate.\\nIn accordance with this opinion, the summary judgment is reversed, and the case is remanded for further proceedings.\\nVANDE WALLE, C.J., and NEUMANN, and MESCHKE, JJ., concur.\\nSANDSTROM, J., disqualified himself immediately prior to oral argument in this case.\"}"

nd/10727377.json

@@ -0,0 +1 @@
+"{\"id\": \"10727377\", \"name\": \"STATE of North Dakota, Plaintiff and Appellee, v. Joseph Ottis McCLUNG, Sr., Defendant and Appellant\", \"name_abbreviation\": \"State v. McClung\", \"decision_date\": \"1995-03-16\", \"docket_number\": \"Cr. No. 940202\", \"first_page\": 852, \"last_page\": \"853\", \"citations\": \"529 N.W.2d 852\", \"volume\": \"529\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T22:04:48.778266+00:00\", \"provenance\": \"CAP\", \"judges\": \"SANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.\", \"parties\": \"STATE of North Dakota, Plaintiff and Appellee, v. Joseph Ottis McCLUNG, Sr., Defendant and Appellant.\", \"head_matter\": \"STATE of North Dakota, Plaintiff and Appellee, v. Joseph Ottis McCLUNG, Sr., Defendant and Appellant.\\nCr. No. 940202.\\nSupreme Court of North Dakota.\\nMarch 16, 1995.\\nTimothy C. Wilhelm, Asst. State\\u2019s Atty., Courthouse, Minot, for plaintiff and appellee.\\nRichard B. Thomas, Minot, for defendant and appellant.\", \"word_count\": \"612\", \"char_count\": \"3830\", \"text\": \"VANDE WALLE, Chief Justice.\\nJoseph Ottis McClung appealed a judgment of conviction for the crime of Gross Sexual Imposition by the district court, Northwest Judicial District. We hold the judge did not rely upon religion in imposing sentence. We affirm.\\nMcClung was convicted after pleading guilty to committing the crime of Gross Sexual Imposition with a nine-year-old male victim. During the sentencing hearing but pri- or to imposition of sentence, McClung, an ordained minister, stated:\\n\\\"Your Honor, I confess my sins. I have entered my plea. I have repented and been forgiven by my Lord and Saviour Jesus Christ. My wife, my family, my church family and many friends have also forgiven me. I ask the boy, his parents, his grandparents, his family and any and all others I have offended as well as the people of this State and this Court for forgiveness and mercy. I am grieved and sorry for the hurt I have caused. Please forgive me. Grant me mercy and pray for me. I have learned a hard lesson and I assure you it will not happen again.\\\"\\nThe trial court sentenced McClung to ten years in the state penitentiary, to serve a minimum of four of those years with the remaining six years suspended. The state had recommended a three-year minimum. While explaining the sentence, the trial court stated, \\\"Another thing that bothers me. You did abuse the position of trust, not only the position you had, but the capacity you held in Christendom. What you have done certainly isn't going to enhance either your profession or Christendom.\\\"\\nMcClung argues that this statement is evidence that the trial court improperly considered religion in arriving at the sentencing decision. We disagree.\\nTrial judges are allowed a wide range of discretion in criminal sentencing. State v. Warmsbecker, 466 N.W.2d 105 (N.D.1991). On appeal, we are limited to \\\"determining only whether the judge acted within the limits prescribed by statute, or substantially relied on an impermissible factor.\\\" Id. at\\nMcClung's sentence is well within the statutory limits. See N.D.C.C. \\u00a7 12.1-20-03(3) and 12.1-32-01(3). Thus, in order for us to disturb the sentencing decision, MeClung must show that the trial court \\\"substantially relied\\\" on an impermissible factor in determining the sentence. Wamnsbecker, supra. After reviewing the transcript of the sentencing hearing, we are not convinced that the trial judge substantially relied on McClung's religious beliefs in determining his sentence.\\nMeClung introduced the subject of his religion into the sentencing hearing in an effort to convince the court to mitigate his sentence. The judge's comment about \\\"Christendom\\\" was merely a response to this plea and does not illustrate substantial reliance on religion as a factor in sentencing. See, e.g., People v. Chesebro, 206 Mich.App. 468, 522 N.W.2d 677 (1994).\\nFurther, the comment was made in the context of discussing McClung's position of trust within the church community. Among the factors that the legislature requires sentencing judges to consider is whether \\\"[t]he defendant did not abuse a public position of responsibility or trust.\\\" N.D.C.C. \\u00a7 12.1-32-04(13). Thus, the judge's comments do not suggest reliance on an impermissible factor. They do illustrate the judge's awareness of the factors that the legislature has decided \\\"shall be afforded weight.\\\" Id.\\nWe find no evidence that the trial court substantially relied on an impermissible factor in sentencing MeClung. We affirm.\\nSANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.\"}"

nd/10734891.json

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+"{\"id\": \"10734891\", \"name\": \"Harlen ROGELSTAD, on behalf of himself and all others similarly situated, Plaintiff and Appellant, v. FARMERS UNION GRAIN TERMINAL ASSOCIATION, INC., a Minnesota Corporation, Defendant and Appellee\", \"name_abbreviation\": \"Rogelstad v. Farmers Union Grain Terminal Ass'n\", \"decision_date\": \"1975-02-13\", \"docket_number\": \"Civ. No. 9038\", \"first_page\": 370, \"last_page\": \"379\", \"citations\": \"226 N.W.2d 370\", \"volume\": \"226\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T20:10:30.948721+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.\", \"parties\": \"Harlen ROGELSTAD, on behalf of himself and all others similarly situated, Plaintiff and Appellant, v. FARMERS UNION GRAIN TERMINAL ASSOCIATION, INC., a Minnesota Corporation, Defendant and Appellee.\", \"head_matter\": \"Harlen ROGELSTAD, on behalf of himself and all others similarly situated, Plaintiff and Appellant, v. FARMERS UNION GRAIN TERMINAL ASSOCIATION, INC., a Minnesota Corporation, Defendant and Appellee.\\nCiv. No. 9038.\\nSupreme Court of North Dakota.\\nFeb. 13, 1975.\\nOhnstad, Twichell, Breitling, Arntson & Hagen, West Fargo, for plaintiff and appellant.\\nPringle & Herigstad, Minot, for defendant and appellee.\", \"word_count\": \"4176\", \"char_count\": \"24985\", \"text\": \"VOGEL, Judge.\\nThis is an appeal from an order of the Ramsey County district court denying the plaintiff's motion for an order allowing him to maintain a class action pursuant to Rule 23 of the North Dakota Rules of Civil Procedure.\\nIn a prior appeal in this case, reported at 224 N.W.2d 544 (N.D.1974), we held that the denial of class action status was appeal-able, and we now consider the appeal on the merits.\\nHarlen G. Ro'gelstad, the plaintiff and appellant, brings this suit on behalf of himself and all others similarly situated for damages arising from alleged violations of Section 47-14-09 of the North Dakota Century Code relating to usury and for damages arising from alleged violations of the United States Federal Reserve Regulation Z, 15 U.S.C. \\u00a7 1640, relating to truth in lending. The parties agree that the latter issue has been disposed of, contrary to Rogelstad's contentions, in Farmers Union Grain Terminal Assn. v. Nelson, 223 N.W.2d 494 (N.D.1974). The remainder of this opinion will therefore be concerned with the merits of the claim for class action status as to the cause of action alleging usury.\\nRogelstad entered into contracts with the appellee, Farmers Union Grain Terminal Association, hereinafter GTA, through its line elevator at Hamberg, North Dakota, whereby Rogelstad agreed to deliver 30,000 bushels of wheat and 10,000 bushels of durum on or before June 30, 1973, at an agreed price. On February 21, 1973, Rogel-stad received from GTA an advance of $2,000 on the purchase price of this grain. This advance was delivered to Rogelstad without the benefit of any written agreement, although it was apparently understood by both parties that the amount of the advance would be deducted from the agreed price at the time Rogelstad was paid for the delivered grain.\\nIt appears that GTA handles its accounts receivable through its home office in St. Paul, Minnesota. Rogelstad asserts that the account arising from the $2,000 advance made to him was treated by GTA as any other account receivable. It further appears that in the usual course of business such accounts are initially received in St.. Paul in the month in which the obligation is incurred. No interest or finance charge is assessed for this first month, and statements are not sent out until the end of the first full month following the month in which the obligation is incurred. The finance charge is computed at the rate of five-sixths of one percent per month on the unpaid balance remaining on the principal and on the total amount of unpaid finance charges.\\nThe advance made to Rogelstad was partially repaid in May and fully repaid on June 27, 1973, and finance charges were assessed for the months of March, April, and May 1973 in the total sum of $39.14.\\nIt appears that the rate of interest or \\\"finance charge\\\" applied by GTA was five-sixths of one percent per month, while the applicable statutes as to usury limited interest rates to nine percent per annum during the pertinent period. See Sections 47-14-09, 47-14-10, and &-03-63, N.D.C.C.\\nFrom the affidavit of the plaintiff's attorneys, filed in support of the motion for class action status, it appears that GTA owned 39 elevators in North Dakota, that the Hamberg elevator with which the plaintiff dealt is one of these, and that \\\"numerous\\\" customers of the Hamberg elevator received advances and were charged five-sixths of one percent on the advances, just as the plaintiff was. While the affidavit is indefinite as to the number of potential class plaintiffs, statements were made during oral argument that there were 10 or 12 potential class plaintiffs who were customers of the Hamberg elevator, which was not a very big elevator, and that there were perhaps several hundred total potential class plaintiffs within this State.\\nThe trial court denied the motion to declare this action a class action. Pertinent portions of the court's memorandum of opinion follow:\\n\\\"The plaintiff now moves for an order determining that the plaintiff be allowed to maintain this as a class action under the authority of Rule 23(a) N.D.R.Civ.P. which in part provides, that\\n\\\"(1) the class is so numerous that join-der of all members is impracticable,\\n\\\"(2) there are questions of law or fact common to the class,\\n\\\"(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and\\n\\\"(4) the representative parties will fairly and adequately protect the interests of the class.\\n\\\"The rule further provides that an action may be maintained as a class action if the above four prerequisites are satisfied and in addition:\\n\\\"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.\\n\\\"Rule 23(b)(3), N.D.R.Civ.P.\\n\\\"The plaintiff's motion that he be allowed to maintain this as a class action is denied.\\n\\\"An essential element of usury is the existence of an agreement that one party shall receive and the other shall pay a sum which constitutes an excessive charge for the loan or forbearance, and that the creditor intends to exact the usury.\\n\\\"Weicker v. Stavely, 14 N.D. 278, 103 N.W. 753 (1905). The existence of such an agreement is a question of fact. In this instance the plaintiff bases his case upon implied agreement, there being no written contract. By brief the plaintiff acknowledges that the class which he seeks to represent may have executed promissory notes or agreements of some other type. Necessarily, in exerting a claim based upon implied agreement, such as advanced by the plaintiff, all surrounding circumstances are material and relevant in determination of the usurious issue in the case.\\n\\\"If existence of usury is dependent upon promissory note or other written agreement, then interpretation of those express contracts becomes all important to the resolution of the case.\\n\\\"For these reasons a common question of fact or law does not predominate over questions affecting only individual members of the claimed class.\\n\\\"The defendant, according to the files of this case, has 149 affiliated elevators and 38 line elevators located in North Dakota. Despite the number of elevators involved, there presently is but one party plaintiff in the instant action. Originally there were two but one party was dropped on motion because of a previously instituted lawsuit in Wells County in which the later party was a named defendant. No other persons have sought to intervene in the instant case and no other independent actions have been commenced in other courts. It is interesting to note that the defendant in the Wells County lawsuit unsuccessfully raised the issue of usury, and that this case presently is in the Supreme Court of North Dakota.\\n\\\"These extraneous factors are relevant to the feasibility of permitting the maintenance of a class action,\\n\\\"7A Wright & Miller, Fed'l Pr. & Pro., Section 1780, page 68,\\nand in this instance militate against the claimed representative capacity of the plaintiff.\\\"\\nRule 23, North Dakota Rules of Civil Procedure, identical with Rule 23, Federal Rules of Civil Procedure, in pertinent part, reads:\\n\\\"(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.\\n\\\"(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:\\n\\\"(1) the prosecution of separate actions by or against individual members of the class would create a risk of\\n\\\"(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or\\n\\\"(B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or\\n\\\"(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or\\n\\\"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular form; (D) the difficulties likely to be encountered in the management of a class action.\\n\\\"(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.\\n\\\"(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.\\\"\\nIt will be noted that the trial court apparently erroneously interpreted the requirements of Rule 23(b)(3) so as to require that its conditions be complied with in every case, whereas the rule itself provides that Rule 23(b)(3) offers only one of the alternative ways of finding a class action appropriate. While the parties apparently agree that neither 23(b)(1)(B) nor 23(b)(2) is applicable, it appears that the court failed to consider, as an alternative ground for finding a class action appropriate, the provisions of 23(b)(1)(A). In Yaffe v. Powers, 454 F.2d 1362 (7th Cir. 1972), the Circuit Court held that it was error for a district court to assume that \\\" 'all of the requirements of Rule 23 of the Federal Rules of Civil Procedure must be met before an action can be classified as a class action' \\\" (p. 1365), and called this the trial court's \\\"most basic error\\\" (p. 1366). We hold that the alternative basis should have been considered by the trial court, and that it could be found to apply here.\\nWe believe that the trial court erred in holding, in the language quoted above, that it was relevant to the feasibility of permitting the maintenance of a class action that there is but one party plaintiff involved here and no other persons have sought to intervene and no other independent actions have been commenced. The trial court's citation to 7A Wright & Miller, Federal Practice and Procedure: Civil \\u00a7 1780, page 68, is not apropos, since the matter under discussion there related to the extraneous factors which might be relevant in deciding whether expressions for or against individual actions were motivated by reasons unrelated to the merits of class action treatment. Here, we have no expressions of potential plaintiffs either for or against the use of the class action.\\nThe better rule as to the importance of the presence or absence of other litigation in 23(b)(3) cases is stated in Wright & Miller, Section 1780, at page 71:\\n\\\"If no alternative means of adjudicating the dispute are available, the mere fact that no other actions are pending hardly is significant in determining the desirability of a class action.\\\"\\nIn Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968), the court said:\\n\\\"If we have to rely on one litigant to assert the rights of a large class then rely we must. The dismissal of the suit out of hand for lack of proper representation in a case such as this is too summary a procedure and cannot be reconciled with the letter and spirit of the new rule.\\\"\\nThis statement was quoted in Hohmann v. Packard Instrument Co., 399 F.2d 711, 714 (7th Cir. 1968), and the court added:\\n\\\"We agree that whether other members of the class have sought to intervene is not determinative of the question whether the plaintiffs are qualified to act in behalf of the absent members of the class. Even one member of a large number of claimants can provide the kind of representation for all which might otherwise be unattainable if each claimant had to act individually. In this case, there is no indication that the plaintiffs or their counsel will not make the vigorous, conscientious, and undivided effort required to 'fairly and adequately protect the interests of the class.' \\\"\\nWe believe that the facts before us present a meritorious case for determination of class action status. The trial court appears to have held, at least inferentially, that the prerequisites of Rule 23(a) have been shown. It appears that this is true. The potential plaintiffs are so numerous that individual joinder is impracticable, there are questions of law and fact common to the class, the claims of the representative plaintiff are typical of the claims or defenses of the class, with one minor exception which could readily be separated into a subclass if desired as permitted by Rule 23(c)(4)(B), and the representative party will fairly and adequately protect the interests of the class.\\nThe principal controversy is as to the applicability of one or more of the alternative requirements of Rule 23(b). From the showing made by the plaintiff, it appears that the only possible differences between the contentions of the named plaintiff and the potential plaintiffs would arise from the fact that some potential plaintiffs may have signed notes for their advances while the named plaintiff and other potential plaintiffs did not, the individual differences as to dates of advances and repayments, and amounts of damages. The similarities, which will very likely be determinative of the right of the class plaintiffs to recover, are largely legal questions: whether the usury law applied to the factual situation we have outlined, whether a* agreement is necessary in order to constitute usury, or whether the mere charging 'kpd receipt of usurious interest is sufficient. We believe that these issues \\\"predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.\\\" We therefore hold, for reasons set forth below, that the trial court abused its discretion in denying class action status.\\nWe do so with great deference to the trial court's discretion in such matters. But we are impelled to hold as we do by several considerations.\\nI\\nWe note that the Federal appellate courts have seldom hesitated to overrule and reverse determinations of Federal district courts denying class action status. For example, see Eisen v. Carlisle & Jacquelin, supra; Knuth v. Erie Crawford Dairy Coop. Assn., 395 F.2d 420 (3d Cir. 1968); Yaffe v. Powers, supra; Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968); Hohmann v. Packard Instrument Co., supra.\\nII\\nDecisions as to whether class action status should be allowed seem to rest, more than many other judicial determinations, on judicial philosophy, rather than on precedent or statutory language. One court may look upon an allegation of the existence of a class with a \\\"jaundiced eye\\\" [Yaffe v. Powers, supra], while another may consider class actions as the \\\"wave of the future\\\" [Wright & Miller, \\u00a7 1751], or hold that \\\"any error, if there is one, should be in favor of allowing the class action\\\" [Esplin v. Hirschi, supra].\\nWe will interpret Rule 23 so as to provide an open and receptive attitude toward class actions.\\nWe believe that Rule 23 is a remedial rule which \\\"continues to have as its objectives the efficient resolution of the claims or liabilities of many individuals in a single action, the elimination of repetitious litigation and possibly inconsistent adjudications involving common questions, related events, or requests for similar relief, and the establishment of an effective procedure for those whose economic position is such that it is unrealistic to expect them to seek to vindicate their rights in separate lawsuits.\\\" Wright & Miller, Federal Practice and Procedure: Civil \\u00a7 1754.\\nIll\\nWe are confirmed in these views by a review of the history of what we now call class actions, but which have always been recognized and encouraged under our laws since prior to Statehood.\\nThe Code of Civil Procedure of the Territory of Dakota, adopted by the first Legis lative Assembly of the Territory in 1862, contains the following, as Section 34 of Chapter VIII:\\n\\\"Section 34. When the question is one of a common or general interest of many persons; or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.\\\"\\nThis section was copied from the Code of Civil Procedure of California, which retains the section in full force and effect to this day. The quoted section is still the basis for class action litigation in California at this time. 68 Nw.U.L.Rev. No. 6, p. 1024. It is contained in Section 382 of the Code of Civil Procedure of California.\\nIn 1863, the Dakota Territorial Legislature rewrote its Code of Civil Procedure, taking much of it from the so-called \\\"Field Code\\\" of the State of New York, from which California had also borrowed. The 1863 Dakota statute, Section 83 of the Code of Civil Procedure, reads:\\n\\\"Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants; . . . and when the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.\\\"\\nSubstantially the same provision continued in effect through all the compilations and codifications of our statutes until the adoption of the North Dakota Rules of Civil Procedure, effective July 1, 1957, when the above statute, then Section 28-0208, N.D.R. C.1943, was declared superseded by Rules 19(a) and 23(a). The law of New York still contains essentially the same language. N.Y. Civil Practice Law and Rules, \\u00a7 1005.\\nThere .is no indication that the adoption of Rule 23 was intended in any way to reduce or minimize the use of class actions in North Dakota.\\nThe judicial acceptance of the statutes quoted above, throughout the history of Dakota Territory and the State of North Dakota, has been generally receptive. In Bonde v. Stern, 73 N.D. 273, 14 N.W.2d 249 (1944), we traced the statute here in question back to the New York Code and cited and discussed many of the New York cases construing the New York Code provision. In Kvello v. Lisbon, 38 N.D. 71, 164 N.W. 305 (1917), we referred to the history of the equitable doctrine against multiplicity of actions and allowed a class action for the owners of all property within a city affected by special assessments. In Jones v. Grady, 62 N.D. 312, 243 N.W. 743 (1932), we allowed an action on behalf of all stockholders, resident and nonresident, of a bank.\\nIn Horst v. Guy, 211 N.W.2d 723 (N.D.1973), and in the prior appeal in this case, reported at 224 N.W.2d 544 (1974), we also expressed a receptive attitude toward class actions.\\nIn view of this long tradition of hospitality toward class actions, by whatever name, we are not disposed now to take a constrictive view of class action eligibility.\\nIV\\nEven before there was a Dakota Territory, or a California or a New York, actions such as the present one could be sustained. The class action is descended from or related to the \\\"Bill of Peace\\\" of English equity, .early examples of which include actions by tenants or copyholders against the lord of the manor, to establish their rights under the customs of the manor. Pomeroy, Equity Jurisprudence, 5th Ed., \\u00a7 247; Wright & Miller, Federal Practice and Procedure: Civil \\u00a7 1751. Equity traditionally has granted relief against usurious contracts, executory or executed. Pomeroy, supra, \\u00a7 937.\\nV\\nClass action status is not to be refused merely because individual issues will remain even after common issues are disposed of.\\n\\\"The common issues need not be disposi-tive of the entire litigation.\\\" Dolgow v. Anderson, 43 F.R.D. 472, 490 (E.D.N.Y.1968), quoted in State of Illinois v. Harper & Row Publishers, Inc., 301 F.Supp. 484, 489 (N.D.Ill.1969).\\nThe presence of individual issues is \\\"no obstacle.\\\" Siegel v. Chicken Delight, Inc., 271 F.Supp. 722 (N.D.Cal.1967).\\nIn the present case it appears that all plaintiffs would offer the same evidence as to the interest rate charged, the computer bookkeeping methods of GTA, the relationship between GTA headquarters and local elevators, and billing methods, among other things. The principal legal question, common to all, would appear to be: \\\"Did GTA, for 'numerous' patrons with grain purchase contracts, utilize an accounting procedure for billing interest on advances that entailed a usurious rate of interest, resulting in a charge or collection of usury?\\\"\\nOnce the evidence is presented as to the common questions of fact, and a disposition is made as to the common question of law, it appears that either GTA would be entitled to a decision in its favor or the class action plaintiffs would need only to prove their individual damages. In either case, the rights of small claimants would be preserved and litigated, and a vast saving of money, time, and judicial and attorney manpower would have been effected, as compared with litigation of individual claims.\\nVI\\nWe feel it is particularly important that class action access to the State courts be unimpeded, especially since the Federal courts are now closed in diversity cases to 23(b)(3) plaintiffs unless each of them has a $10,000 claim. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969); Lonnquist v. J. C. Penney Co., 421 F.2d 597 (10th Cir. 1970). For many potential class actions, State courts are the only forum available. See Closing the Courthouse Door: The Aftermath of Snyder v. Harris, 68 Nw. U.L.Rev. No. 6, p. 1011 (1974).\\nVII\\nIt is true that orders allowing or refusing class action status need not be final and may be modified. Rule 23(c)(1). But, and especially in 23(b)(3) cases where notice must be given to members of the class [see Rule 23(c)(2)], there must come a time when a final decision must be made. Otherwise, the action will be subject to interruption even during trial in order to take the time to notify the members of the newly declared class. Such postponements might be highly disruptive. If the determination is made too late, a separate and duplicitous trial might be required for the members of the newly declared class. In Esplin v. Hirs-chi, supra, the class action status was denied by the district court and reversed on appeal by the Court of Appeals, necessitating a second trial. Such results should be avoided if possible.\\nWe reverse the district court's order determining that this action should not be maintained as a class action. The Federal courts, under similar circumstances, have made somewhat similar reversals in Hohmann, supra, Knuth, supra, and Esplin, supra. Other Federal courts, as in Yaffe, supra, and Eisen, supra, have sent the matters back to the trial courts for redetermi-nation as to whether class action status is appropriate. We believe the facts are sufficiently clear, however, so that we can determine, at this time, that class action status is appropriate. However, this determination is not intended to limit in any way the future discretion of the trial court to alter or amend the determination of class action status under Rule 23(c)(1), or to make appropriate orders under Rule 23(c)(4), or to make appropriate orders under Rule 23(d).\\nReversed and remanded for further proceedings consistent with this opinion.\\nERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.\"}"

nd/10738799.json

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+"{\"id\": \"10738799\", \"name\": \"John E. BRUNSDALE and Karl T. Brunsdale, Plaintiffs and Appellants, v. John C. BAGGE et al., Defendants and Appellees\", \"name_abbreviation\": \"Brunsdale v. Bagge\", \"decision_date\": \"1974-12-18\", \"docket_number\": \"Civ. No. 9046\", \"first_page\": 384, \"last_page\": \"388\", \"citations\": \"224 N.W.2d 384\", \"volume\": \"224\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T21:40:05.555325+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C. J., and PAULSON, JOHNSON and VOGEL, JJ., concur.\", \"parties\": \"John E. BRUNSDALE and Karl T. Brunsdale, Plaintiffs and Appellants, v. John C. BAGGE et al., Defendants and Appellees.\", \"head_matter\": \"John E. BRUNSDALE and Karl T. Brunsdale, Plaintiffs and Appellants, v. John C. BAGGE et al., Defendants and Appellees.\\nCiv. No. 9046.\\nSupreme Court of North Dakota.\\nDec. 18, 1974.\\nVogel, Vogel, Brantner & Kelly, by C. Nicholas Vogel, Fargo, for plaintiffs and appellants.\\nDewel E. Viker, Jr., Hillsboro, for defendants and appellees Bagge and Spokely.\\nHarold Dronen, Hillsboro, for defendant and appellee Sorlie.\", \"word_count\": \"2253\", \"char_count\": \"12981\", \"text\": \"JANSONIUS, Commissioner.\\nThe complaint of the plaintiffs demands delivery of a warranty deed held in escrow by the defendant George E. Sorlie; or, in the alternative, demands that the defendants John C. Bagge and LaVaughn C. Bagge specifically perform an agreement to sell and convey certain real estate to them; and, further, that the Court declare that the defendant Francis V. Spokely has no right, title, or interest in the property.\\nThe defendants Bagge and Spokely by their answer pray that the action be dismissed; that the defendant Sorlie be required to return the deed to them; and that they be allowed to complete a real estate transfer between themselves.\\nThis matter initially came before the trial court on a motion of the plaintiffs for summary judgment based upon the pleadings, answer, interrogatories, and depositions of the parties.\\nDuring the hearing on the motion of the plaintiffs for summary judgment the Court and counsel became involved in a discussion which resulted in the defendants, the Bagges and Spokely, seeking and receiving permission also to move for summary judgment. All parties at that time and ever since have been in full agreement that the case be submitted on the record then existing plus such other matters as the moving parties might wish to introduce.\\nThe trial judge at the conclusion of the testimony stated that he would rather:\\n\\\" dispose of what I feel is the main issue here as to whether or not there is a legal transfer of this property. That is what I will have to dispose of first.\\\"\\nIt should be mentioned in connection with the proceeding that the time had expired within which a demand for jury could be made, the matter was at issue, and the facts fully developed.\\nBoth sides have presented the question for review in identical language, as follows:\\n\\\"The single issue presented for review is whether the finding and conclusion of the trial court that the defendant Francis V. Spokely did not waive and is not es-topped from asserting his rights to receive written notice of the sale of the property to the plaintiffs and to exercise his option to purchase the property for the offered amount are clearly erroneous.\\\"\\nThe memorandum opinion of the trial court reads, in part, as follows:\\n\\\"The facts of the case are undisputed in most respects. I find plaintiff's brief in support of motion for summary judgment, pages 1 through 7 to fully cover the necessary facts to be considered in deciding the case, along with the entire record as filed herein. A reading of those facts presents the issues in the case.\\n\\\"In short, Mr. Bagge decided he would like to sell his land. He contacted the tenant, Mr. Spokely, to see if he was interested in purchasing the land. He was not interested at that time. Mr. Sorlie entered the picture as a broker to find a buyer for the land. Later on an offer was made by the Brunsdales to purchase the land for $160,000. A deed was executed by the Bagges and sent to Mr. Sorlie along with a copy of the five year lease agreement between Bagge and Spokely, which would end on December 31, 1973. This was the first knowledge Mr. Sorlie had of the paragraph in the agreement which provides that lessee has an option to purchase during the term of the written lease. Said paragraph reads as follows:\\n'The parties hereto do further mutually agree that during the term of this lease the lessee has the privilege in the event the lessors desire to sell said land, to match any bona fide offer which the lessors may receive during said lease term. Provided, however, that in the event the lessors have an opportunity to sell said land for a price of $350.00 (or more) per acre, then and in that event the lessee herein has the right and privilege of buying the land at a price of $350.00 per acre. In the event of a bona fide offer, to the lessors for the purchase of said land, the lessors agree to give the lessee thirty (30) days written notice of such bona fide offer and the lessee has the right within said thirty (30) day period to match said bona fide offer.'\\n\\\"No written notice was sent to Mr. Spokely until Mr. Sorlie wrote a letter dated August 22, 1973, which was addressed to Mr. Francis Spokely, and contained the following:\\n'Apparently John and I took you at your word that you were not interested in exercising your option in purchasing the real estate in Traill County. We both understood that you had waived the thirty days written notice.\\n'John has still not decided if he is going to sell the land this year or next year, however if you are interested in buying it for $160,000.00 I would appreciate your letting me know so John can decide whether he wants to sell it now or after the first of the year.'\\n\\\"This letter, Exhibit 10 of Mr. Sorlie's deposition, gives the lessee written notice of the bona fide offer of $160,000.00 which had been made to the lessors. The lessee would have 30 days to match said bona fide offer, from receipt of this letter.\\n\\\"Exhibit 12 of Mr. Sorlie's deposition, a letter to Mr. Sorlie from Mr. Viker, acting as attorney for Francis Spokely, dated September 13, 1973, states that his client elects to purchase this land under the terms of the option.\\n\\\" Francis Spokely brought an action against John and Tom Brunsdale, dated August 29, 1973, in connection with exercising his option to purchase the land. On August 30, 1973, the Brunsdales brought the action asking the court to determine that they were the parties entitled to the land in question. These pro ceedings would hold in abeyance the 30 day period of time within which Mr. Spokely would be required to match the $160,000 offer as purchase price for the property.\\\"\\nThe Court determined that there was no genuine issue of material fact remaining to be heard in the dispute, concluding as follows:\\n\\\"Since the court finds a waiver would not have been made by Mr. Spokely, the lessee, until the conditions would exist to permit him the right to exercise his option to purchase, and that he now has the right to exercise such right, it will not be necessary to go into the questions of escrow and contract as to sale of the land to plaintiffs at this time. Should Mr. Spokely not exercise his right to purchase within the time set forth in the option agreement, then the court would be required to act in connection with the other points of law set forth in the motion of plaintiff for summary judgment.\\\"\\nActually, this case was submitted under Rules 12(c) and 43(a) of the North Dakota Rules of Civil Procedure. A portion of Rule 12(c) reads as follows:\\n\\\"If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.\\\"\\nIn this case, the parties have tacitly accepted the fact that all the matters presented to the Court constitute a full and complete record, and to try the matter anew would result in exactly the same record before the Court. N.D.R.Civ.P. 43(a).\\nRule 52(a) requires findings of fact and conclusions of law \\\"In all actions tried upon the facts without a jury . . .\\\" However, the rule also omits the requirement of findings and conclusions where \\\"an opinion or memorandum of decision\\\" is filed. The complete record being before the trial court, the case is distinguishable from Weidner v. Engelhart, 176 N.W.2d 509 (N.D.1970).\\nThe trial court, in its decision, states:\\n\\\"The option agreement set forth in this case now before the court is definite and sets forth certain conditions to be met with respect to lessee's right to match a bona fide offer of a third party to purchase the land. It was the duty of the lessor to give the lessee written notice of such bona fide offer, and the lessee would thereafter have 30 days to match the offer as presented in the notice. The offer was for $160,000, as set forth in the testimony of Mr. Sorlie in the deposition and his letter to Mr. Spokely dated August 22, 1973.\\n\\\"The defendant Spokely's option right to purchase the land was conditioned and would not exist until defendant Bagge had received a third party offer to buy the land, and defendant Bagge was willing to accept that offer along with his desire to sell the land. At that point, within the terms of the lease-option agreement, it was the duty of Mr. Bagge to give written notice to Mr. Spokely of the offer and the amount of same. The court finds this was not done until Mr. Sorlie wrote the letter to Mr. Spokely on August 22nd.\\\"\\nThe Brunsdales contended Spokely waived his right of first refusal. The trial court found to the contrary, quoting from and relying on the following:\\n\\\" 'To constitute a \\\"waiver\\\" it is essential that there be an existing right, knowledge of its existence, and an intention to relinquish it, and the burden of proof is on the party claiming the waiver to prove that one charged to have waived the right knew of the facts that entitled him to the right.' \\\" Garvy v. Blatchford Calf Meal Co., C.C.A.Ill., 119 F.2d 973, 975.\\nIn Gipson v. First National Bank of Bismarck, 97 N.W.2d 671, 675 (N.D.1959), the Court said:\\n\\\"The question before us at this point, therefore, is whether the evidence is sufficient to sustain a finding of the jury that the defendant either waived or was estopped from asserting the defense under consideration. This court has repeatedly defined waiver as the 'voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed.' Meyer v. National Fire Insurance Co., 67 N.D. 77, 269 N.W. 845, 850; Sjoberg v. State Automobile Insurance Association, 78 N.D. 179, 48 N.W.2d 452; Kessler v. Thompson, N.D., 75 N.W.2d 172. In Jacobson v. Mutual Benefit Health & Accident Association, 70 N.D. 566, 296 N.W. 545, 548, we said:\\n'To constitute a waiver there must be an intention to relinquish a known right, an intentional forbearance to enforce a right.'\\n\\\"In Werner v. Werner, 74 N.D. 565, 23 N.W.2d 757, we held:\\n'An essential element of equitable es-toppel is a representation which may consist of words, acts or silence, believed and relied upon by the party claiming the benefit of the estoppel which induced him to act or refrain from acting, to his prejudice.'\\n\\\"This statement has been quoted or cited with approval in the following cases: Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137; Star v. Norsteby, 75 N.D. 563, 30 N.W.2d 718; Commercial Credit Corporation v. Dassenko, 77 N.D. 412, 43 N.W.2d 299; Minneapolis, St. Paul & Sault Ste. Marie R. Co. v. Duvall, N.D., 67 N.W.2d 593.\\\" Gipson v. First National Bank of Bismarck, 97 N.W.2d 671, 675 (N.D.1959).\\nIn the case of Werner v. Werner, cited in Gipson above, the Court stresses the fact that reliance on the matters constituting equitable estoppel must be \\\"by the party claiming the benefit of the estoppel which induced him to act or refrain from acting, to his prejudice.\\\"\\nIn this case the parties claiming the es-toppel were strangers to the original transaction. The lease involved was between John C. Bagge, a defendant, and Francis V. Spokely, a defendant.\\nThis principle is set out in 28 Am. Jur.2d as follows:\\n\\\"It is the general rule that in order to be effective an equitable estoppel must be mutual and reciprocal. Unless both parties to a transaction are bound by an estoppel, neither is bound. Mutuality being requisite, an estoppel operates neither in favor of, nor against, strangers \\u2014 that is, persons who are neither parties nor privies to the transaction out of which the estoppel arose. Thus, a grantor is not estopped by his deed as against one who is neither a party thereto nor in privity with a party. . . .\\\"28 Am.Jur.2d Estoppel and Waiver \\u00a7 115, at 774 (1966).\\nAlthough the case arrives here as a result of motions for summary judgment since the case was actually submitted on its merits as though it were completely tried, we apply Rule 52 of the North Dakota Rules of Civil Procedure.\\nThe determination of the trial court as set forth in the memorandum opinion is not clearly erroneous and therefore should not be set aside. [Rule 52(a), N.D.R.Civ.P.] The judgment is therefore affirmed.\\nERICKSTAD, C. J., and PAULSON, JOHNSON and VOGEL, JJ., concur.\\nThe Honorable HARVEY B. KNUDSON deeming himself disqualified did not participate; the Honorable CLIFFORD JANSO-NIUS, Court Commissioner sitting in his place.\"}"

nd/10772117.json

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+"{\"id\": \"10772117\", \"name\": \"In the Matter of the ESTATE OF Hugh R. MURPHY, Also Known as Red Murphy, Deceased. William Pat MURPHY, a/k/a Pat or W.P. Murphy, Petitioner and Appellee, v. Sheila MURPHY, Personal Representative of the Estate of Hugh R. Murphy, Respondent, Petitioner and Appellant, v. Tom MURPHY, Respondent\", \"name_abbreviation\": \"Murphy v. Murphy\", \"decision_date\": \"1996-10-01\", \"docket_number\": \"Civil No. 960036\", \"first_page\": 432, \"last_page\": \"441\", \"citations\": \"554 N.W.2d 432\", \"volume\": \"554\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:22:23.313103+00:00\", \"provenance\": \"CAP\", \"judges\": \"VANDE WALLE, C.J., and NEUMANN, MARING and MESCHKE, JJ., concur.\", \"parties\": \"In the Matter of the ESTATE OF Hugh R. MURPHY, Also Known as Red Murphy, Deceased. William Pat MURPHY, a/k/a Pat or W.P. Murphy, Petitioner and Appellee, v. Sheila MURPHY, Personal Representative of the Estate of Hugh R. Murphy, Respondent, Petitioner and Appellant, v. Tom MURPHY, Respondent.\", \"head_matter\": \"In the Matter of the ESTATE OF Hugh R. MURPHY, Also Known as Red Murphy, Deceased. William Pat MURPHY, a/k/a Pat or W.P. Murphy, Petitioner and Appellee, v. Sheila MURPHY, Personal Representative of the Estate of Hugh R. Murphy, Respondent, Petitioner and Appellant, v. Tom MURPHY, Respondent.\\nCivil No. 960036.\\nSupreme Court of North Dakota.\\nOct. 1, 1996.\\nJohn L. Sherman of Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for petitioner and appellee.\\nMichael J. Maus of Howe, Hardy, Galloway & Maus, PC, Dickinson, for respondent, petitioner, and appellant.\", \"word_count\": \"4209\", \"char_count\": \"24896\", \"text\": \"SANDSTROM, Justice.\\nThis is a dispute over a contract requiring Hugh Redmond (Red) Murphy, now deceased, to pay his uncle, Pat Murphy, $300 per month for Pat's life. After a bench trial, the district court found: 1) Red Murphy's estate was liable for $300-per-month payments to Pat; 2) Pat Murphy was entitled to the amount Red's estate was in arrears; and 3) Pat Murphy was entitled to attorney's fees. The estate of Red Murphy appeals the judgment, claiming it did not receive a fair hearing because the trial court failed to rule on the motion for guardian ad litem and the motion for joinder until after the hearing. The Murphy estate also argues it was prejudiced because it was not given an opportunity to depose Red's partner, Tom Murphy, and the trial court abused its discretion in awarding attorney's fees. We affirm the district court judgment, except we reverse the award of attorney's fees.\\nI\\nHugh T. Murphy and his siblings, including his brother Pat Murphy, inherited land known as the Murphy Ranch from their parents. Pat Murphy conveyed his share of the ranch to Hugh T. Murphy in exchange for payment of $300 per month. In 1980, Hugh T. Murphy conveyed a portion of the land to his nephews, Red Murphy and Tom Murphy. In consideration for the conveyance, the parties executed an annuity agreement whereby Red Murphy and Tom Murphy would make annual payments to Hugh Murphy. Red and Tom Murphy also orally agreed to take care of their uncle, Pat.\\nUpon Hugh T. Murphy's death, Pat Murphy was entitled to inherit by intestacy an additional portion of the land. On March 12, 1990, Pat Murphy and Red Murphy agreed in writing that Pat Murphy relinquished any rights to Hugh's estate in exchange for Red paying $300 per month to Pat for the remainder of Pat's life. For the first six months, Red Murphy gave Pat Murphy $300 per month.\\nIn February 1991, Red Murphy and Tom Murphy formed a partnership for the purpose of operating the ranch, to be retroactively effective as of January 1, 1991. On January 9, 1991, Red Murphy conveyed to his brother Tom Murphy one-half of the interest he had acquired from Pat Murphy. For some time, Tom Murphy made payments of $300 per month to Pat Murphy. On May 6, 1994, Red Murphy died. At the time of his death, he and Tom Murphy were each paying $150 per month to Pat Murphy. Red Murphy's wife, Sheila Murphy, continued to pay $150 per month to Pat Murphy. Tom Murphy also paid $150 per month to Pat Murphy during this time.\\nPat Murphy filed a creditor's claim against the estate of Red Murphy. The trial court found the agreement between Pat Murphy and Red Murphy had not been altered by the conveyance of half the ranch to Tom Murphy. Therefore, Red Murphy alone was obligated to make the full payment of $300 per month to Pat Murphy. Additionally, the trial court found Pat Murphy was entitled to the full $300 per month from the estate from the date of the agreement, less the payments made by Red. The trial court denied Sheila's motion to join Tom Murphy and awarded Pat Murphy attorney's fees. The trial court also appointed a guardian ad litem for Pat Murphy-\\nThe district court had jurisdiction under N.D. Const. Art. VI, \\u00a7 8, and N.D.C.C. \\u00a7 27-05-06(2). The appeal was filed in a timely manner under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, \\u00a7 6, and N.D.C.C. \\u00a7 28-27-01.\\nII\\nThe district court found Red Murphy's estate was liable for the entire $300-per-month payment under the March 12, 1990, contract between Red and Pat. We affirm the district court's findings of fact unless they are clearly erroneous. N.D.R.Civ.P. 52. \\\"[A] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.\\\" Shaver v. Kopp, 545 N.W.2d 170, 174 (N.D.1996). Sheila Murphy concedes the estate is liable on the contract; however, she contends Tom Murphy is liable for one-half of the contractual obligation.\\nA\\nEven though Tom Murphy received a one-half interest in the land, acquiring this interest does not make him liable on the contract. See Home Ins. of Dickinson v. Speldrich, 436 N.W.2d 1 (N.D.1989) (finding insureds not liable for premium payments even though they benefitted from the policy). Tom Murphy was not a party to the contract. Tom Murphy is liable on the contract only if the payment obligation had been assigned or otherwise transferred from Red Murphy to Tom Murphy.\\nB\\nUnder N.D.C.C. \\u00a7 9-11-03, \\\"[t]he burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except as provided by section 47-04-29.\\\" N.D.C.C. \\u00a7 47-04-29 applies to covenants running with the land. For a covenant to run with the land, it must be contained in the grant of land. N.D.C.C. \\u00a7 47-04-24. In this ease, there was no reference to the $300 payment in the deed from Red Murphy to Tom Murphy. The transfer of the land was not a transfer of any part of the payment obligation. Since the exception provided in \\u00a7 47-04-29 does not apply, we consider whether Pat Murphy consented to the transfer of the payment obligation from Red Murphy to Tom Murphy.\\nC\\n\\\"An assignment is an expression of intention by the assignor that his duty shall immediately pass to the assignee.\\\" 4 Corbin on Contracts \\u00a7 866 (1960). The ben-efitted party's consent to such a transfer can be manifested either expressly or by implication. Benson County Coop. Credit Union v. Central Livestock Ass'n, Inc., 300 N.W.2d 236, 241 (N.D.1980). Sufficient evidence supports the district court's finding Pat Murphy did not expressly agree to any modification of the contract. Consent, however, can also be implied through conduct. Benson County Coop.\\nImplied consent is \\\"[a]n inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signifying assent.\\\" Black's Law Dictionary 305 (6th ed. 1990); see also Benson County Coop, at 241 (under the Uniform Commercial Code, \\\"consent may be shown by implication arising from a course of conduct as well as by express words\\\"). Consent is implied when the bene-fitted party knows of the other party's actions and fails to object to those actions. See Schaffer v. Smith, 113 N.W.2d 668, 672 (N.D.1962) (presuming consent when a property owner knew work was being done and made no objection).\\nThere may be an implied acceptance of an assignment when a seller knows of the assignment and accepts payments from the assignee. See Rosenberg v. Son, Inc., 491 N.W.2d 71 (N.D.1992). We distin guish Rosenberg from the present ease. In Rosenberg, the sellers knew of the assignment and accepted payments, which were clearly being made in satisfaction of the original contract, from the assignees. Rosenberg at 73. Pat testified he did not know whether any of the payments from Tom Murphy were in satisfaction of the 1990 contract. Tom also testified the payments were not in satisfaction of the 1990 contract. Absent knowledge of the payee that payments from an assignee are in satisfaction of the original debt, there can be no consent to an assignment.\\nEven where there is an effective assignment of a contractual obligation, the assignor's \\\" 'duty remains absolutely unchanged.'\\\" Rosenberg at 74 (quoting 4 Corbin on Contracts \\u00a7 866); see also Smith v. Wrehe, 199 Neb. 753, 261 N.W.2d 620, 625 (1978); Brooks v. Hayes, 133 Wis.2d 228, 395 N.W.2d 167, 170 (1986). The original party remains a guarantor. Rosenberg at 74. Therefore, any assignment of the obligation to Tom Murphy would not release Red Murphy from liability on the entire $300 per month.\\nD\\nRed Murphy would have been released from a portion of the obligation only if a novation had occurred. See Rosenberg, 491 N.W.2d at 74. \\\"The question of whether there has been a novation is a question of fact, which will not be overturned on appeal unless it is clearly erroneous.\\\" Schmitt v. Berwick Tp., 488 N.W.2d 398, 401 (N.D.1992); see also Herb Hill Ins., Inc. v. Radtke, 380 N.W.2d 651, 654 (N.D.1986). The district court found no novation occurred.\\n\\\"Novation is made by the substitution of . [a] new debtor in the place of the old one with intent to release the latter.\\\" N.D.C.C. \\u00a7 9-13-10(2). \\\"To have a novation, the parties must intend to extinguish the old obligation, there must be mutual assent, and there must be sufficient consideration.\\\" Schmitt v. Berwick Tp., 488 N.W.2d 398, 400 (N.D.1992). The acquisition of one-half interest in the land is sufficient consideration for assuming the debt. See N.D.C.C. \\u00a7 9-05-01 (defining consideration).\\n\\\"If it clearly appears from the terms of the assignment transaction that the assignee intends to undertake the duty to perform for the assignor, and that the latter intends to be himself no longer bound, there is a discharge of the assignor by novation if the third party accepts performance by the assignee with knowledge of the terms of the assignment or otherwise assents to those terms.\\\" 4 Corbin on Contracts \\u00a7 866 (citing Iowa Bridge Co. v. Comm'r of Internal Revenue, 39 F.2d 777 (8th Cir.1930)). A valid consent for an assignment does not require a finding of valid consent for a novation. Rosenberg at 75-6. \\\"Acceptance of a check does not create a novation in the absence of an agreement by the parties that it substitutes for the original contract.\\\" Schmitt, 488 N.W.2d at 401. Nothing in the record reflects Tom Murphy intended to release Red Murphy from any part of the obligation. That no novation occurred is supported by the evidence. The district court's finding no alteration of the original agreement is not clearly erroneous.\\nE\\nFinally, Sheila Murphy argues the $300-per-month obligation is a debt of the partnership and, as such, Tom Murphy and Red Murphy are jointly liable on the debt. Although the district court did not make a specific finding whether it was a partnership debt, its specific findings preclude it from being material as to Pat. Whether the payment obligation is a debt of the partnership is immaterial to Pat Murphy's claim because even if Tom Murphy were liable on the debt as a partner, Red Murphy would still be liable to Pat Murphy for the entire $300. There is no evidence that Red Murphy believed that Pat Murphy understood the obligation was a partnership one when made. See N.D.C.C. \\u00a7 9-07-14 (ambiguous promise \\\"must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it\\\").\\nIII\\nThe district court awarded Pat Murphy an additional $150 per month for the prior months in which Red and the estate paid only $150. Sheila Murphy argues the district court erred in finding the estate was in arrears on its payment obligation to Pat Murphy. Pat Murphy received $150 per month from both Tom Murphy and Red Murphy. Upon Red Murphy's death, Sheila Murphy continued to pay $150 per month. Red Murphy's estate claims any obligation it had on the additional $150 per month was extinguished when Tom Murphy made those payments.\\n\\\"[A]n obligation is extinguished by an offer of performance intended to extinguish the obligation.\\\" Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 701 (N.D.1995); N.D.C.C. \\u00a7 9-12-08; see also 4 Corbin on Contracts \\u00a7 866. However, under N.D.C.C. \\u00a7 9-12-01, \\\"[u]pon acceptance by the creditor, full performance extinguishes an obligation if done by the party whose duty it is to perform it or by any other person on his behalf and with his assent.\\\" The obligation is extinguished only if performance is made on the contracting party's behalf and with the contracting party's assent. In the present ease, Tom Murphy testified his $150-per-month payments to Pat Murphy were in satisfaction of the oral agreement Tom Murphy made to his uncle Hugh T. Murphy in 1980. The evidence supports the finding payments made by Tom Murphy were not made on Red Murphy's behalf and were not made in performance of the 1990 contract between Red Murphy' and Pat Murphy. Therefore, Red Murphy's duty was not extinguished by Tom Murphy's performance. The district court's decision to award Pat Murphy the amount the estate was in arrears was not clearly erroneous.\\nIV\\nThe estate asserts Tom Murphy is an indispensable party in this action and the district court erred in not joining him as a party. The estate claims:\\n\\\"In Tom's absence, complete relief cannot be accorded. He has an interest in the subject matter of the action and his absence may leave the estate subject to substantial risk of inconsistent obligations by reason of the claimed interest.\\\"\\nThe estate's argument ignores our law, the meaning of \\\"indispensable party,\\\" the fact relief for Pat can be obtained without Tom as a party, and the fact the estate could assert claims against Tom in a separate action.\\nUnder N.D.R.Civ.P. 19, a person must be joined as a party if \\\"the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may . leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest.\\\" \\\"[T]he right to join parties in an action is subject to the sound discretion of the trial court.\\\" Revoir v. Kansas Super Motels of North Dakota, Inc., 224 N.W.2d 549, 552 (N.D.1974). The decision of the district court will not be reversed absent an abuse of discretion. Revoir.\\nThis Court said in Erdmann:\\n\\\"The purpose of the compulsory joinder rule is to protect an absent party from prejudice, to protect parties from harassment by successive suits, and to protect the courts from being imposed upon by multiple litigation. Cudworth v. Cud-worth, 312 N.W.2d 331, 333 (N.D.1981). Although the failure to join an indispensable party may be raised for the first time on appeal, '[o]nce the trial has been concluded, the pragmatic considerations in Rule 19 weigh heavily in favor of preserving the judgment of the trial court . and against dismissal unless there has been real prejudice to those not before the court.' Cudworth v. Cudworth, supra, 312 N.W.2d at 334. Dismissal of an action for nonjoinder of a party is an extreme remedy which should only be granted where a party is truly 'indispensable.' Kouba v. Great Plains Pelleting, Inc., 372 N.W.2d 884, 887 (N.D.1985).\\\"\\nErdmann v. Thomas, 446 N.W.2d 245, 249 (N.D.1989).\\nParties sought to be joined can be classified as nominal, proper, conditionally necessary, or indispensable. See 3A James W. Moore, et al., Moore's Federal Practice \\u00b6 19.02 (2d. ed. 1985) (interpreting Fed. R.Civ.P. 19). N.D.R.Civ.P. 19 is identical to Rule 19, F.R.Civ.P. See Explanatory Note. A nominal party is one who stands in \\\"as the next friend\\\" of the real party in interest. 3A Moore's Federal Practice \\u00b6 19.02. Tom Murphy is not a nominal party.\\n\\\"If . a 'necessary party [is used] in the sense that in its 'absence complete relief cannot be accorded among those already parties,' Rule 19(a), N.D.R.Civ.P. provides that such a 'necessary' party should be joined unless the party is not subject to service of process or joinder would defeat jurisdiction or venue. The court is specifically authorized by the rule to order joinder of such a 'necessary party. But, on this record, it is not clear to us that [the potential party] was a 'necessary' party, let alone an 'indispensable' one. The trial court was able to accord complete relief between [the actual parties].\\\"\\nKouba v. Great Plains Pelleting, Inc., 372 N.W.2d 884, 887 (N.D.1985).\\nIn this case as well, the district court was able to accord complete relief between Pat and the estate without joining Tom as a party. The estate was not precluded from pursuing any claim for contribution against Tom in a separate proceeding.\\n\\\"[A] party is 'indispensable' only where the ability of the court to make an equitable adjudication in the absence of that party is seriously impaired and where join-der of that party cannot be obtained because of a jurisdictional or other limitation.\\\" Kou-ba. \\\" 'Upon a literal reading of Rule 19, a person cannot be an indispensable party unless he . \\\"cannot be made a party.\\\" ' \\\" Stonewood Hotel Corp., Inc. v. Davis Dev., Inc., 447 N.W.2d 286, 289 (N.D.1989) (quoting 3A Moore's Federal Practice \\u00b6 19.05[2]). Tom Murphy was present and testified at trial. Tom Murphy was not an indispensable party.\\nA \\\"proper\\\" party may \\\"be joined as defendant where there is a question of law or fact in the action common to the right or duty in which he is interested and the rights or liabilities involved [arose] out of the same transaction [or] occurrence.\\\" 3A James W. Moore, Moore's Federal Practice \\u00b6 19.02 (2d. ed. 1985). With respect to \\\"proper\\\" parties, \\\"joinder is permissive and is governed by Rule 20.\\\" Id. A \\\"conditionally necessary\\\" party is a party referred to in rule 19(a)(1) or (2) whose joinder is feasible. Id.\\nAt best, from the estate's point of view, the liability of Tom and Red is joint and several. If liability is joint and several, joinder is not compulsory. 3A James W. Moore, Moore's Federal Practice \\u00b6 19.02 (2d. ed. 1985). The omitted party is \\\"neither indispensable nor a necessary party under Rule 19.\\\" Wosepka v. Dukart, 160 N.W.2d 217, 219 (N.D.1968). The plaintiff has the option of suing one or more of the liable parties. See Fisher v. Mon Dak Truck Lines, Inc., 150 N.W.2d 711, 713-14 (N.D.1967) (referring to joint tort-feasors). \\\" 'If a wrongdoer is neither an indispensable nor a necessary party, a plaintiff in a tort action should not be required to join the wrongdoer as a defendant contrary to his view of the liability of the parties involved.' \\\" Revoir v. Kansas Super Motels of North Dakota, Inc., 224 N.W.2d 549, 552 (N.D.1974) (citing Wosepka, 160 N.W.2d at 219). Because Tom Murphy was neither an indispensable party nor a necessary party to this action, the district court did not abuse its discretion in denying the motion to join Tom Murphy as a party.\\nAdditionally, \\\"Rule 14(a), N.D.R.Civ. P., enables a defendant, as a third-party plaintiff to serve a summons and complaint 'upon a person not a party to the action who is or may be hable to him for ah or part of the plaintiffs claim against him.' \\\" Kouba at 887. See also Wosepka, 160 N.W.2d at 219 (compulsory use of N.D.R.Civ.P. 19 was not appropriate when N.D.R.Civ.P. 14(a) was available). The estate, however, did not take advantage of this avenue.\\nV\\nThe estate argues it did not receive a fair hearing because the district court failed to rule on the motion for guardian ad litem and for joinder until after the hearing was concluded. The estate also claims it was prejudiced by being denied the opportunity to depose Tom Murphy. The standard of review on these issues is whether the rulings of the district court were in error and, if so, constituted \\\"harmless error.\\\" N.D.R.Civ.P. 61. The rulings on these matters should be disregarded unless they have \\\"affeet[ed] the substantial rights of the parties.\\\" N.D.R.Civ.P. 61. Sheila has the burden to show her rights have been prejudiced. See In Re Guardianship of Frank, 137 N.W.2d 218, 225 (N.D.1965) (recognizing burden).\\nA\\nThe purpose for allowing the court to appoint \\u00e1 guardian ad litem is to protect the rights of persons incapable of managing their own affairs. See Matter of Guardianship of Braaten, 502 N.W.2d 512 (N.D.1993) (citing Handbook for Guardians ad litem, 66 N.D.L.Rev. 45 (1990)). It is within the district court's discretion to determine when it is appropriate to appoint a guardian ad litem. \\\"[A] trial court may appoint a guardian ad litem on its own initiative at its discretion.\\\" Ludwig v. Burchill, 514 N.W.2d 674, 677 (N.D.1994) (citing Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986)). The timing of the appointment of the guardian ad litem was not in error.\\nB\\nThe district court did not rule on the motion for joinder until the conclusion of the trial. Procedural due process requires the party to be joined know of his status as a defendant before trial. 3A Moore's Federal Practice \\u00b6 19.01-1[2] (citing Eakins v. Reed, 710 F.2d 184 (4th Cir.1983)). The parties to the action are entitled to know who the parties to the action are prior to beginning the trial. The district court erred in not ruling on the motion for joinder until the conclusion of the trial. Hqwever, since joinder to Tom Murphy was not compulsory, any error in the timing of the court's ruling was harmless.\\nC\\nSheila Murphy subpoenaed Tom Murphy for a deposition. The trial court granted Tom Murphy's motion to quash the subpoena until his attorney could be present. The trial court also granted Sheila Murphy a continuance to allow for a rescheduling of Tom Murphy's deposition. The deposition was not taken. At trial, Sheila Murphy moved for a second continuance. The district court denied the motion.\\n\\\"A trial court has broad discretion regarding the scope of discovery, and its discovery decisions will not be reversed on appeal absent abuse of discretion.\\\" Smith v. Smith, 538 N.W.2d 222, 229 (N.D.1995) (citing Gerhardt v. D.L.K, 327 N.W.2d 113 (N.D.1982)). \\\"A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misapplies or misinterprets the law.\\\" Smith (citing Knudson v. Director, North Dakota Dep't of Transp., 530 N.W.2d 313 (N.D.1995)). We find the district court's ruling was not an abuse of discretion.\\nTom Murphy was present at trial, testified, and called witnesses. See N.D.R.Civ.P. 32(a)(3) (allowing depositions to be used when the witness is unable to testify). Also, the record indicates there was sufficient time to take the deposition but the parties had scheduling conflicts. Absent \\\"deliberate abuse of or flagrant bad faith disregard for the rules of discovery,\\\" reversal is not an appropriate remedy. See Thompson v. Ziebarth, 334 N.W.2d 192, 194-5 (N.D.1983) (finding the trial court abused its discretion by dismissing a case in which depositions were not taken due to miscommunica-tions and scheduling conflicts). The record in this case does not indicate any such abuse of the rules of discovery.\\nVI\\nThe district court ordered Sheila Murphy to pay Pat Murphy's guardian ad litem reasonable attorney's fees and expenses without specifying any authority under which it awarded the fees. \\\"Absent specific contractual or statutory authority, the 'American Rule' requires parties to bear their own attorney's fees.\\\" State Farm Mut. Auto. Ins. Co. v. Estate of Gabel, 539 N.W.2d 290, 294 (N.D.1995) (citing Duchscherer v. W.W. Wallwork, Inc., 534 N.W.2d 13, 16 (N.D.1995)); see also Matter of Estate of Rohrich, 496 N.W.2d 566, 571 (N.D.1993). Under N.D.C.C. \\u00a7 28-03-04, a guardian ad litem can be appointed by the court for a \\\"person of unsound mind.\\\" N.D.C.C. \\u00a7 30.1-28-04 allows the court to appoint a guardian for an \\\"incapacitated person.\\\" \\\"A guardian is a person who has, or is entitled to, the care and management of the person or property of another, or both.\\\" Asendorf v. M.S.S., 342 N.W.2d 203, 205 (N.D.1983). \\\"A guardian ad litem, on the other hand, is a special guardian appointed by the court to prosecute or defend [on] behalf of an infant or incompetent in a suit to which he is a party.\\\" Asendorf. They are distinctly different in meaning. Asendorf.\\nIn this case, John L. Sherman was appointed guardian ad litem for Pat Murphy under N.D.C.C. \\u00a7 28-03-04. There is no contractual or statutory authority under which attorney's fees were awarded. We reverse the trial court's award of attorney's fees.\\nVII\\nThe district court judgment is affirmed except for the award of attorney's guardian ad litem fees, which we reversed.\\nVANDE WALLE, C.J., and NEUMANN, MARING and MESCHKE, JJ., concur.\\n. \\\"Assignment\\\" is generally associated with rights under a contract while the term \\\"delegation\\\" refers to duties. See Rosenberg v. Son, Inc., 491 N.W.2d 71, 73 n. 1 (N.D.1992). Typically, however, the term \\\"assignment\\\" is used with respect to both rights and duties. Thus, we will use the term \\\"assignment\\\" in our analysis of this case.\\n. Although in Wosepka the Court interpreted Rule 19 as it existed prior to its amendment in 1990, no substantive change was intended by the March 1, 1990 amendment.\"}"

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+"{\"id\": \"10775012\", \"name\": \"In the Matter of the Termination of the Parental Rights of the Mother of Baby Girl H., a child. Rita COYNE, Petitioner and Respondent, v. R. K. H., Appellant, The Executive Director of the Social Service Board of North Dakota, Respondent\", \"name_abbreviation\": \"Coyne v. R. K. H.\", \"decision_date\": \"1973-04-12\", \"docket_number\": \"Civ. No. 8840\", \"first_page\": 871, \"last_page\": \"876\", \"citations\": \"206 N.W.2d 871\", \"volume\": \"206\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T21:38:09.726695+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUTZ, C. J, and ERICKSTAD, TEIGEN, and KNUDSON, JJ., concur.\", \"parties\": \"In the Matter of the Termination of the Parental Rights of the Mother of Baby Girl H., a child. Rita COYNE, Petitioner and Respondent, v. R. K. H., Appellant, The Executive Director of the Social Service Board of North Dakota, Respondent.\", \"head_matter\": \"In the Matter of the Termination of the Parental Rights of the Mother of Baby Girl H., a child. Rita COYNE, Petitioner and Respondent, v. R. K. H., Appellant, The Executive Director of the Social Service Board of North Dakota, Respondent.\\nCiv. No. 8840.\\nSupreme Court of North Dakota.\\nApril 12, 1973.\\nAlbert A. Wolf and Robert O. Wefald, Bismarck, for appellant.\\nThomas F. Kelsch, State\\u2019s Atty., Bur-leigh County, Bismarck, for respondents.\", \"word_count\": \"2329\", \"char_count\": \"13817\", \"text\": \"PAULSON, Judge.\\nThe mother of Baby Girl H. [hereinafter Baby H.] has appealed from a final order of the juvenile court terminating her parental rights. Baby H. was born on April 5, 1972. At the time of Baby H.'s birth her mother was sixteen and a half years of age and was unmarried. In addition, as a result of considerable difficulties occurring during her minority, the mother had been adjudged to be an unruly child and was under the care, custody, and control of the State Youth Authority. On the date of Baby H.'s birth the juvenile court issued a temporary order for the care, custody, and control of Baby H., placing custody with the Burleigh County Welfare Board for placement of the child in a suitable foster home. As a result of this temporary custody order, the mother of Baby H. has at no time had custody and control of her daughter.\\nOn May 11, 1972, approximately one month after the issuance of the temporary custody order, a petition was filed with the juvenile court which alleged that Baby H. was a \\\"deprived child\\\" within the purview of the Uniform Juvenile Court Act, Chapter 27-20 of the North Dakota Century Code, because the child was without the proper parental care or control necessary for her mental or emotional development. The petitioner requested that the parental rights of the mother of Baby H. be terminated. Pursuant to this petition, a summons was issued and served and a hearing was held by the juvenile court on May IS, 1972. As a result of this hearing, the juvenile court issued an order and decree \\u2022terminating the parental rights of the mother in Baby H. The mother has appealed from this order and decree.\\nThe issue presented by this case is unique and of first impression in this court, and, simply stated, is: May the juvenile court, on the basis of prognostic evidence indicating the mother's inability to provide proper parental care for her child, terminate the parental rights of the mother in her child, where the mother has never had the opportunity to demonstrate her maternal abilities because the custody of the child had been placed in the county welfare board immediately upon its birth ?\\nResolution of the issue presented by this case requires that we resort to the provisions of the Uniform Juvenile Court Act (Ch. 27-20, N.D.C.C.). Section 27-20-44(1) (b), N.D.C.C., confers upon the juvenile court the power to terminate the parental rights of a parent in its child if:\\n\\\"1. . . .\\n\\\"b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; . . .\\\"\\nThus, \\u00a7 27-20-44(1) (b) requires that the evidence establish three factors before a juvenile court may terminate the parental rights of a parent. These factors are: 1) that the child is a \\\"deprived child\\\" within the purview of the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C.; 2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and 3) that by reason of these continuous or irremediable conditions and causes the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm. In re J. Z., 190 N.W.2d 27 (N.D.1971); In re J. V., 185 N.W.2d 487 (N.D.1971). In determining whether the evidence establishes these three factors, this court held in In re A. N., 201 N.W.2d 118 (N.D.1972), in paragraph 3 of the syllabus :\\n\\\"An appeal to the supreme court shall be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court giving appreciable weight to the findings of the juvenile court.\\\"\\nAs stated previously, the first factor which must be established by the evidence, before a juvenile court may terminate the parental rights of a parent, is that the child is a \\\"deprived child\\\" within the purview of the Uniform Juvenile Court Act (Ch. 27-20, N.D.C.C.). Section 27-20-02(5) (a), N.D.C.C., defines a \\\"deprived child\\\" as follows:\\n\\\"Definitions.- \\u2014 -As used in this chapter:\\n\\\"5. 'Deprived child' means a child who:\\n\\\"a. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of his parents, guardian, or other custodian; . . .\\\"\\nCounsel for appellant has urged upon this court a literal construction of the Uniform Juvenile Court Act (Ch. 27- 20, N.D.C.C.) In so doing, counsel for appellant argues that Baby H. is not a \\\"deprived child\\\" within the purview of \\u00a7 27-20-02(5) (a), N.D.C.C., because the child, while at no time having received any parental care, has always had other proper care, and that, therefore, the first of the three factors required by \\u00a7 27-20-44(1)(b), N.D.C.C., has not been established. However, we conclude that the Uniform Juvenile Court Act (Chapter 27-20, N.D.C.C.), and \\u00a7 27-20-02(5) (a) thereof should not be limited by so literal a construction. Rather, we believe that in construing the Uniform Juvenile Court Act, the spirit of its enactment must be considered and the Uniform Juvenile Court Act should be construed, if possible, in accordance therewith. In Perry v. Erling, 132 N.W.2d 889, 896 (N.D.1965), our court, quoting with approval from 82 C.J.S. Statutes \\u00a7 325 (1953), stated:\\n\\\"'In pursuance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof, it being generally recognized that whatever is within the spirit of the statute is within the statute although it is not within the letter thereof, while that which is within the letter, although not within the spirit, is not within the statute. Effect will be given the real intention even though contrary to the letter of the law.' \\\"\\nWe adopt this reasoning as appropriate in this case.\\nWe also believe that a liberal construction of the Uniform Juvenile Court Act (Ch. 27-20, N.D.C.C.), is mandated by \\u00a7 27-20-01(1) thereof, which provides:\\n\\\"Interpretation. \\u2014 This chapter shall be construed to effectuate the following public purposes:\\n\\\"1. To provide for the care, protection, and wholesome moral, mental, and physical development of children coming within its provisions\\nTherefore, we conclude that \\u00a7 27-20-02(5) (a), N.D.C.C., should be construed so as to include within its definition of a \\\"deprived child\\\" the child of a mother who, while never having had the opportunity to care for her child and thereby demonstrate her maternal abilities, is shown to be presently incapable of providing proper parental care for her child. Such a construction would be consistent with the stated purpose of the Uniform Juvenile Court Act (Ch. 27-20, N.D.C.C.), which is to provide for the care, protection, and wholesome moral, mental, and physical development of a child (\\u00a7 27-20-01, N.D.C. C.), since such construction would enable the juvenile court to take custody of a child pursuant to \\u00a7 27-20-30, N.D.C.C., solely upon the basis of sufficient prognostic evidence that the mother would be incapable of providing proper parental care for the child, without requiring that the child be subjected to an actual deprivation before the juvenile court takes custody.\\nCounsel for appellant has argued that the conclusion which we now reach is precluded by our decision in In re J. V., supra. However, we believe that In re J. V. can be distinguished from the instant case. In In re J. V., supra, the mother had custody and control of the child and thereafter voluntarily relinquished such custody and control of the child to the county welfare board in order to avoid potential harm to the child as a result of the mother's own emotional instability, which was caused by marital disharmony. In addition, at the time of the hearing to terminate the parental rights of the mother of J. V., the mother offered concrete evidence of her rehabilitation and of her present ability to provide proper parental care for J. V. in a new home established by herself and her new husband. Therefore, we believe that the prognostic evidence indicating J. V.'s mother's ability to provide proper parental care for J. V. was sufficiently more persuasive than that in the case at bar and we believe that the two cases can be distinguished on that basis.\\nWhile we now liberally construe the definition of a \\\"deprived child\\\" contained in \\u00a7 27-20-02(5) (a), N.D.C.C., so as to allow the juvenile court to take custody of a child pursuant to \\u00a7 27-20-30, N.D.C.C., solely upon the basis of prognostic evidence clearly and convincingly indicating that a mother will be incapable of caring for her child, it remains for this court to determine whether or not the prognostic evidence of Baby H.'s mother's inability to provide proper parental care for Baby H. is sufficient to support a finding by the juvenile court that Baby H. is a \\\"deprived child\\\" within the purview of \\u00a7 27-20-02(5) (a), N.D.C.C.\\nWe conclude that the prognostic evidence presented by the State in the hearing on the petition for the termination of parental rights is sufficient to support a finding by the juvenile court that the child is a \\\"deprived child\\\". The testimony of the counselors and social workers who have been working with Baby H.'s mother since she was placed under the jurisdiction of the State Youth Authority as an \\\"unruly child\\\" clearly and convincingly indicates that she would be unable to provide proper parental care for Baby H. Their testimony points out the many emotional problems which have troubled the appellant throughout a large part of her minority and lends credence to the State's position that such emotional instability would inhibit the appellant's ability to care for Baby H.\\nWhile we conclude that the evidence adduced at the hearing on the petition to terminate the parental rights of the mother of Baby H. was sufficient to support a finding by the juvenile court that the child is a \\\"deprived child\\\", we do not believe that the evidence adduced at such hearing is sufficient to support a termination of the mother's parental rights pursuant to \\u00a7 27-20-44, N.D.C.C. As stated previously, that a child is a \\\"deprived child\\\" is only one of three factors which must be established by the evidence before a juvenile court may order a termination of the parental rights of a parent pursuant to \\u00a7 27-20-44. That the conditions and causes of the deprivation are likely to continue or will not be remedied and that, by reason of these continuous or irremediable conditions and causes, the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm must also be shown. In re J. Z., supra; In re J. V., supra.\\nA remand so that additional evidence may be received relative to determining more clearly whether the deprivation is likely to continue seems in order. This hearing should be held only after due notice has been served upon all parties interested and ample time has been afforded to prepare for same.\\nThis approach is consistent with recent decisions of the Supreme Court of Oregon, which Court has carefully considered the sufficiency of the evidentiary grounds for termination of parental rights. State v. Wiese, 498 P.2d 813 (Or.App.1972); State v. Campbell, 496 P.2d 249 (Or.App.1972); State v. McMaster, 259 Or. 291, 486 P.2d 567 (1971); State v. Blum, 1 Or.App. 409, 463 P.2d 367 (1969); State v. Grady, 231 Or. 65, 371 P.2d 68 (1962). In these decisions the Supreme Court of Oregon, while stating that the parental rights of a parent may be terminated solely upon the basis of prognostic evidence indicating that the parent will be unable to provide proper parental care for the child, has also stated that the prognostic evidence must be of such a nature as to show: 1) that the parent is presently unable to supply physical and emotional care for the child, with, the aid of available social agencies, if necessary; and 2) that this inability of the parent will continue for time enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated. State v. Blum, supra 473 P.2d at 371.\\nOn remand, expert witnesses, after each has interviewed the appellant, may be called to testify, preferably in person, as to the appellant's, present and future ability to provide proper parental care for Baby H. The appellant may also testify as to her activities from May IS, 1972, the date of the order and decree terminating her parental rights and offer any testimony as to her future plans for herself and Baby H.\\nWe do not intend by what is indicated here to limit evidence otherwise admissible at the remand hearing. The juvenile court, upon review of all of the pertinent facts, at the conclusion of the remand hearing, should then determine whether parental rights should be terminated or whether some other course of action may be appropriate.\\nThe order and decree terminating parental rights is reversed and the case is remanded to the juvenile court for further proceedings in accordance with this opinion.\\nSTRUTZ, C. J, and ERICKSTAD, TEIGEN, and KNUDSON, JJ., concur.\"}"

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+"{\"id\": \"10785059\", \"name\": \"Helen M. BROWN and John Quanrud, Plaintiffs and Respondents, v. HEDAHL'S-Q B & R, INC., a corporation, Defendants and Appellants\", \"name_abbreviation\": \"Brown v. Hedahl's-Q B & R, Inc.\", \"decision_date\": \"1971-02-16\", \"docket_number\": \"Civ. No. 8595\", \"first_page\": 249, \"last_page\": \"260\", \"citations\": \"185 N.W.2d 249\", \"volume\": \"185\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T23:56:45.267117+00:00\", \"provenance\": \"CAP\", \"judges\": \"KNUDSON and STRUTZ, JJ., concur.\", \"parties\": \"Helen M. BROWN and John Quanrud, Plaintiffs and Respondents, v. HEDAHL\\u2019S-Q B & R, INC., a corporation, Defendants and Appellants.\", \"head_matter\": \"Helen M. BROWN and John Quanrud, Plaintiffs and Respondents, v. HEDAHL\\u2019S-Q B & R, INC., a corporation, Defendants and Appellants.\\nCiv. No. 8595.\\nSupreme Court of North Dakota.\\nFeb. 16, 1971.\\nRehearing Denied April 12, 1971.\\nZuger, Bucklin, Kelsch & Zuger, Bismarck, for defendants and appellants.\\nHjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for plaintiffs and respondents.\", \"word_count\": \"6290\", \"char_count\": \"36062\", \"text\": \"TEIGEN, Chief Justice.\\nThis case comes to us on appeal with a demand for a trial de novo from the judgment of the district court establishing the value of certain stock in a closely held corporation at $230 per share. The case arose under Section 10-20-08, N.D.C.C., when John Quanrud, on his own behalf and acting through a power |of attorney on behalf of his sister, Helen Quanrud Brown, dissented from a merger of Quan-rud, Brink & Reibold, Incorporated (hereinafter referred to as Q B & R), of which they were- shareholders, and Hedahl's, Incorporated (hereinafter referred to as He-dahl's, Inc.).\\nBoth Q B & R and Hedahl's, Inc., were North Dakota corporations engaged as competitors in the wholesale auto parts business. Q B & R was incorporated in 1922 from a motor car supply company that had been started by Mr. Quanrud's father in 1917. This business apparently prospered over the years as Q B & R, just prior to the merger with Hedahl's, Inc., had stores in Bismarck, Jamestown, Dickinson, and subsidiaries of Q B & R in Montana at Glendive and Sidney. In the last several years, however, Q B & R suffered a series of losses which were due mainly to management. Hedahl's was incorporated in 1960 from a partnership that had been formed in 1945. Hedahl's apparently enjoyed capable management and was profitable. Hedahl's regarded Q B & R as their second major competitor. In the fall of 1967, Mr. A1 Brink, who was chairman of the board of Q B & R, approached Hedahl's, Inc., and offered to sell his 810 shares of Q B & R stock at a price of $100 per share. There was a total of 2,922 shares of Q B & R stock outstanding. Hedahl's, Inc., took an option from Mr. Brink, good for four months, by which it would purchase his stock if it could secure enough options from other Q B & R shareholders to assure control of the corporation. Having obtained options on a sufficient number of shares, Hedahl's, Inc., exercised them on December 6, 1967, and obtained over 51% of the outstanding Q B & R stock. Subsequently, on December 18, 1967, a meeting of the Q B & R shareholders was held wherein Erling Hedahl, Neil Hedahl, and Beulah Hedahl were elected as directors of the corporation. On February 17, 1968, the directors of Q B & R met and approved a plan for merger with Hedahl's, Inc., and called a special meeting of the shareholders for the purpose of considering the merger proposal. On March 9 the special meeting of the shareholders of Q B & R was held during which the merger with Hedahl's, Inc., was approved. At that time Mr. Quanrud appeared and dissented on his own behalf, as proxy for Mrs. Bjornstad, and on behalf of his sister. Subsequent negotiations were conducted between John Quanrud and He-dahl's-Q B & R, Inc., (the surviving corporation) to determine the \\\"fair value of his shares as of the day prior to the date on which the vote was taken approving the merger\\\", as provided in Section 10-20-08, N.D.C.C. However, no agreement was reached as John Quanrud was asking $322 per share while Hedahl's-Q B & R, Inc., was willing to pay only $100 per share. Accordingly, this action was brought in the district court asking for a \\\"finding and determination of the fair value of such shares\\\" as provided in Section 10-20-08, N.D.C.C.\\nIn this appeal from the decision of the trial court, two issues are raised. The primary issue goes to a determination of the \\\"fair value\\\" of the shares of Q B & R stock of the dissenting shareholders. This court is called upon to find the facts anew and establish just what is the \\\"fair value\\\" of the stock in question.\\nA collateral issue is raised as to 11214 of the 183\\u00be shares claimed by the plaintiff in this action, John Quanrud, to be owned by him. It is the contention of the defendant that John Quanrud was a purchaser of these shares with knowledge of an impending merger and, therefore, is not a bona fide shareholder within the meaning of Section 10-20-08, N.D.C.C., which is the statute under which this action is brought. Section 10-20-08, N.D.C.C., in part, provides :\\n\\\"If a shareholder of a corporation which is a party to a merger or consolidation shall file with such corporation, prior to or at the meeting of shareholders at which the plan of merger or consolidation is submitted to a vote, a written objection to such plan of merger or consolidation, and shall not vote in favor thereof, and such shareholder, within ten days after the date on which the vote was taken, shall make written demand on the surviving or new corporation, domestic or foreign, for payment of the fair value of his shares as of the day prior to the date on which the vote was taken approving the merger or consolidation, if the merger or consolidation is effected, the surviving or new corporation shall pay to such shareholder, upon surrender of his certificate or certificates representing such shares, the fair value thereof.\\\"\\nThe 112\\u00bd shares were owned by Mrs. Olina Bjornstad. According to the evidence, John Quanrud made an offer to purchase these shares from Mrs. Bjornstad in the fall of 1965. This offer was renewed on at least two occasions subsequent to that date. Sometime prior to December 30, 1967, Mrs. Bjornstad apparently accepted John Quanrud's offer as it appears that, on December 30, 1967, he paid her for them at the rate of $100 per share. Payment was made partly in cash and the balance by delivery of his promissory note. Mrs. Bjornstad at that time was in the state of Indiana and did not transfer the shares by endorsement and delivery of the certificates until she returned to North Dakota. The transfer is dated February 29, 1968. On March 4, 1968, John Quanrud delivered the endorsed certificates representing the stock in question to the corporation with the request for a transfer of the shares to his name. However, the shares were not transferred on the books of the corporation but the certificates were retained by it and John Quanrud was given a receipt for the shares. It appears that this was appropriate practice on the part of the corpora tion under Section 10-19-30, N.D.C.C., because the directors of the corporation had called a special meeting of the shareholders for the purpose of considering the proposed merger and had mailed notices thereof to the shareholders on February 17, 1968. The record before us does not establish whether the board of directors had closed the stock transfer books for any fixed period for the purpose of determining the shareholders entitled to notice or to vote at the special meeting of the shareholders but, under Section 10-19-30, N.D.C.C., the stock transfer books were statutorily closed for such purpose on February 17, 1968, the date on which the notice of the meeting was mailed. Therefore, a transfer of these shares to John Quanrud could not be effected after February 17, 1968, and he could not vote these shares as a shareholder at the special meeting of shareholders called for March 9, 1968. It was, therefore, necessary that these shares be voted at the special meeting of March 9, 1968, by Mrs. Bjornstad or her proxy. Section 10-19-33, N.D.C.C. Mrs. Bjorn-stad gave her proxy on January 20, 1968, to John Quanrud. Pursuant to his authority under the proxy he filed a written objection to the plan of merger on March 9, 1968, receipt of which is acknowledged by the secretary of the corporation, and, as proxy, he voted the shares at the special meeting of the shareholders. The shares were not voted in favor of the plan of merger. Following the close of the shareholders' meeting held on March 9, 1968, and within ten days after the date on which the vote on the plan for merger was taken, John Quanrud, as a shareholder and owner of these shares, filed with the corporation a demand for the payment of the fair value of the shares pursuant to Section 10-20-08, N.D.C.C. The transfer books of the corporation were again opened for transfer of shares following the close of the special meeting on March 9. The Bjornstad certificate carrying Mrs. Bjorn-stad's endorsement for transfer of these shares to John Quanrud had been on file with the secretary of the corporation since March 4, 1968, and, although the record before us does not state, we must assume, under the circumstances, that the appropriate officer of the corporation had performed his duty and transferred the shares on the books of the corporation following the close of the special meeting when the ban on stock transfers on the corporation books had expired and, at the time of the commencement of this action on May 22, 1968, pursuant to authority under Section 10-20-08, N.D.C.C., John Quanrud was a shareholder as defined in Section 10 \\u2014 19\\u2014 02(6), N.D.C.C. It states:\\n\\\" 'Shareholder' means one who is a holder of record of shares in a corporation;\\\"\\nThus it is clear that the 112\\u00bd shares are qualified for the benefits provided under Section 10-20-08, N.D.C.C., and that these rights were protected by Mrs. Bjornstad when her proxy filed a written objection to the plan of merger and did not vote in favor thereof. John Quanrud was entitled to a transfer of these shares upon the corporation books following the close of the date on which the vote was taken, to wit, March 9, 1968, and he succeeded Mrs. Bjornstad not only as a shareholder of record on the corporate books but also to all of the rights which the shares carried. He became substituted for his vendor, Mrs. Bjornstad, and thereafter holds such shares under the same conditions and subject to the same obligations as his vendor held prior to the transfer. 18 Am.Jur. 2d Corporations, Sec. 398.\\nAs to the issue of the valuation of the shares, this case is one of first impression. Our statute under which this question arises, Section 10-20-08, N.D.C.C., simply provides that shareholders dissenting to a merger have the right to demand payment of the \\\"fair value\\\" of their shares and that, failing agreement between the shareholders and the corporation, an action can be brought in any court of competent jurisdiction asking for a finding and determination of the \\\"fair value\\\" of such shares.\\nIt appears, as a matter of general law, that there are three primary methods used by courts in determining the fair value of shares of dissenting shareholders. These three methods are the market value method, the asset value method, and the investment or earnings value method. The market value method establishes the value of the share on the basis of the price for which a share is selling or could be sold to a willing buyer. This method is most reliable where there is an established market for the stock. The asset value method looks to the net assets of the corporation valued as a \\\"going concern\\\", each share having a pro rata value of the net assets. The net assets value depends on the real worth of the assets as determined by physical appraisals, accurate inventories, and realistic allowances for depreciation and obsolescence. The investment value method relates to the earning capacity of the corporation and involves an attempt to predict its future income based primarily on its previous earnings record. Dividends paid by the corporation are considered in its investment value. Generally, all the elements involved in these methods are considered in determining the value of the dissenter's stock. 19 Am.Jur.2d Corporations, Sec. 518, Anno., 38 A.L.R.2d 442; N., Valuation of Dissenter's Stock, 79 Harv.L.Rev. 1453 (1966); N., Elements in Valuation of Corporate Stock, 55 Mich.L.Rev. 689 (1957).\\nIn the present case the district court determined that the \\\"fair value\\\" of the plaintiff's shares of common stock in Q B & R as of March 8, 1968, was $230 a share. The district court arrived at this figure by \\\"giving full weight to all the factors as required by law,\\\" although there is no indication as to what weight it gave each of the various factors involved in determining the fair value of the Q B & R stock. As this case is here for a trial de novo, we are required to examine all of the facts and redetermine the \\\"fair value\\\" of the dissenter's shares of Q B & R stock as of March 8, 1968. Section 28-27-32, N.D.C.C.\\nThe bulk of the testimony and exhibits admitted in this case relate to the asset value method of valuation, although there is testimony relating to the market value and the investment or earnings value methods of valuation. John Quanrud and an expert witness, Mr. Charles Bailly, testified on behalf of the plaintiff as to what the fair value of the shares was as of March 8, 1968. Mr. Quanrud was the first witness called by the plaintiff. He testified that he did not take into account the market for the Q B & R stock and the value of the earnings of Q B & R. His estimate of the value of Q B & R stock was based solely on the value of the assets of Q B & R. He admitted that in determining the value of the assets of Q B & R he did not take into account certain commonly recognized factors in valuing corporate assets. In his estimate of the Q B & R assets he made no allowance for the uncollectibility of accounts receivable nor did he make any allowance for obsolescence in inventories. In addition, Mr. Quanrud's estimate of the value of Q B & R assets included his own appraisal of certain real estate and buildings which was $113,200 in excess of the amount established by a professional appraiser and stipulated to by the defendant. Mr. Quanrud also included a figure of $50,000 for goodwill in evaluating the assets of Q B & R. Given these considerations, he determined that the value per share of Q B & R stock was $322. This valuation is well in excess of that testified to by his own expert witness.\\nMr. Bailly testified that the value of the shares of Q B & R stock was in excess of $249 per share. He stated that he considered all factors in arriving at this valuation, although he did not use the market value nor the investment value method of valuation. Mr. Bailly rejected the market value method due to the fact that Q B & R was a closely held corporation. He considered any market for stock in a closely held corporation to be artificial. He also stated that he considered earnings as a factor in the asset method of valuation in that he considered dividends, although he did not consider earnings or dividends as independent factors. Mr. Bailly found nothing in his analysis of Q B & R to justify including any amount for goodwill. Although he stated that he considered all factors involved, it appears from the record that he simply consolidated the financial statements of the North Dakota Q B & R corporation and its Montana subsidiary corporation and made certain adjustments to the values reflected in the assets listed on these two statements. These two statements were prepared as of December 31, 1967, and were received in evidence. A consolidated balance sheet for Q B & R as of December 31, 1967, was never admitted in evidence although Mr. Bailly stated that in arriving at his figures he consolidated these two statements. The adjustments he made to these statements related to the book value for the real estate and buildings held by the North Dakota corporation and the Montana corporation. These adjustments were based on appraisals made by an appraisal agency which were received in evidence and stipulated and agreed to by the defendant. These appraisals fixed the value of the North Dakota real estate and buildings at $127,-000 versus the book value of approximately $35,000, and fixed the value of the Montana real estate and buildings at $80,300 versus the book value of approximately $56,200. After adding the difference between the appraisal value and the book value to the consolidated asset statement, Mr. Bailly arrived at a gross asset figure which, less the liabilities, resulted in a net asset value of $728,123. That figure was then divided by the 2,922 shares of Q B & R stock outstanding to arrive at a valuation per share in excess of $249.\\nMr. Erling Hedahl, the president of Hedahl's-Q B & R, Inc., was the primary witness testifying on behalf of the defendant. He stated that he considered the fair value of a share of Q B & R stock to be $100, and that in arriving at this figure he had considered all three methods of valuation. As to the assets of Q B & R, Mr. Hedahl testified using a consolidated balance sheet for both the Q B & R corporations in North Dakota and Montana as of February 29, 1968, which had been received in evidence. He testified as to several adjustments that should be made in this statement to properly reflect the true value of the Q B & R assets. The first adjustment was to show the Q B & R real estate and buildings at a true value of $207,300 as per the stipulation that had been entered into by the parties. This same adjustment was made by Mr. Bailly in his testimony. Mr. Hedahl testified that from his experience accounts receivable were never collected one hundred cents on the dollar, and that a reasonable allowance for uncollectibility would be 10%. Mr. Hedahl also testified that in the automotive parts business it was necessary to allow for an obsolescence factor in inventory of 15%. Mr. Hedahl noted that the book value of certain furniture and fixtures was less than its true value, which he placed at $9,000. As to notes receivable listed on the February 29, 1968, consolidated statement at $6,641, Mr. Hedahl testified that the maker of the note had been deceased for many years although, while living, Q B & R took from him on the note a building which has a present worth of $3,000 or less. As to certain vehicles listed on the statement at a value of $14,224, Mr. Hedahl adjusted that figure downward to $11,385 to reflect their true value as established by figures in the National Automobile Dealers Manuals. Certain shop equipment was listed at a depreciated value of $13,451. Mr. Hedahl adjusted that figure upward to $20,250 to properly reflect its true value. As to certain stocks and bonds listed at $5,424, Mr. Hedahl adjusted that figure downward to $4,000 to account for certain Cuban bonds which are now worthless and to account for corporate stock in another company which has been out of existence for many years. From the foregoing adjustments, Mr. Hedahl testified that he believed that the asset value of the shares was in excess of $200 per share, although no exact calculation was introduced into evidence. Based on a plaintiffs' exhibit showing comparative net profits between Q B & R and Hedahl's, Inc., Mr. Hedahl testified that the earnings value of Q B & R is zero. Using a five-year aver age Q B & R showed a loss of 140 per share (disregarding 1967), while over a six-year period Q B & R showed a loss of $4.62 per share (including 1967). Therefore, instead of earnings, Q B & R actually had losses such that the earnings value of Q B & R was zero. Mr. Hedahl also testified that before Hedahl's, Inc., sought to buy control of Q B & R the market value of the Q B & R stock was between $50 and $67 per share, and that when Hedahl's, Inc., paid $100 per share for the Q B & R stock they were actually paying a premium of $33 per share.\\nIn redetermining the \\\"fair value\\\" of a share of Q B & R stock as of March 8, 1968, we have used all three methods of valuation and have established a value under each method which we have assigned a certain percentage weight in determining the fair value of the Q B & R stock. In determining the asset value as of March 8, 1968, we have used the consolidated statement of February 29, 1968, as that is the closest statement to the date in question. We have made certain adjustments to this statement to more properly reflect the true value of the assets of Q B & R as a \\\"going concern.\\\" The value of the Q B & R real estate and buildings ought to be set at the value established by the independent appraiser and stipulated to by the parties at $207,300. A reasonable allowance for the uncollectibility of accounts receivable is 10%; therefore the statement figure of $184,800 ought to be reduced to $166,320. The notes receivable account in the Q B & R statement ought to be reduced from $6,641.27 to $3,000 to reflect the true worth of the note held by Q B & R from a deceased person who had assigned against this note a building that is worth $3,000, or less. The stocks and bonds account ought to be reduced from $5,423.98 to $4,000 to account for certain Cuban bonds which are now worthless and stock in a corporation that has not been in existence for a number of years. The book value of furniture and fixtures of $4,792.50 ought to be increased to $9,000 to more adequately reflect their true value and, likewise, the value of the shop equipment listed at $13,450.98 ought to be increased to $20,250. The value of Q B & R's cars and trucks, listed at $14,223.92, ought to be reduced to $11,385 to properly reflect their true value. The book value and the adjusted value of the Q B & R assets as of February 29, 1968, is shown below :\\nThe asset value per share, then, based on the adjusted value of the Q B & R assets as of February 29, 1968, is $242.81 per share.\\nUnder the investment value (or earnings value) method of valuation, the value per share of Q B & R stock as of March 8, 1968, is zero. Q B & R had sustained a series of losses for several years prior to its merger with Hedahl's, Inc. Plaintiffs' exhibit showing the comparative net profits between Q B & R and Hedahl's, Inc., from 1962 through 1967 shows that Q B & R's five-year average net earnings per share, disregarding 1967, the year prior to the merger, was a loss of 14{\\u215e per share. Based on a six-year average, which includes 1967, the earnings per share was a loss of $4.62 per share. Based on its earnings record, Q B & R was not a good investment and its earnings value is properly fixed at zero.\\nA limited market existed for Q B & R stock from June of 1963 until December 6, 1967, when Hedahl's, Inc., exercised its options to purchase Q B & R stock at $100 per share. In 1963, 31 shares changed hands at a price of $66.67. There were no sales in 1964 although 285 shares were placed in trust. In 1965, 70 shares traded hands at a price of $50 per share. In 1966, 15 shares were sold for $66.67. In February 1967, 45 shares were sold for $52.50, and 63 shares were sold for $50. In March 1967, 63 shares of Q B & R stock were sold for $50 per share. On April 17, 1967, Theodore S. Quanrud sold 141(4 shares to the Dakota National Bank for $100 per share. The Dakota'National Bank turned around and, on the very same day, sold these 141(4 shares to R. E. Meid-inger for $107.50. On July 12, 1967, Theodore S. Quanrud sold 19 shares to R. E. Meidinger for $105 per share. The next transaction in Q B & R stock occurred on December 6, 1967, when Hedahl's, Inc., exercised its options from various Q B & R shareholders at $100 per share.\\nIt appears that there is no established market for the Q B & R shares and thus there is no apparent market value that can be assigned to a share of Q B & R stock. However, a reconstructed market value can be established based on the limited transactions that have occurred. In Application of Delaware Racing Association, 42 Del.Ch. 477, 213 A.2d 203 (S.Ct.1965), affirming 42 Del.Ch. 175, 206 A.2d 664 (Ch.1965), the court found that although there was no established market for the 1,519 shares of common stock outstanding, that nevertheless a reconstructed market value could be established. The reconstructed market value in this case was based on the report of an appraiser who made a thorough study of the corporation to determine its value per share. Based on this determination, one stockholder purchased 93% of the outstanding stock. However, the Delaware court found that it was proper for the court to reduce this reconstructed market value due to the fact that market value was in large part dependent upon earnings which had declined, thereby reducing the market value of the stock. In this present case we have a similar situation where one party seeks to buy a controlling interest in the corporation based on its own study of what the Q B & R stock was worth. The fact that Q B & R had no earnings supports Mr. Erling Hedahl's contention that Hedahl's, Inc., had actually purchased the controlling interest in Q B & R by paying a premium on each share that it purchased. An examination of the transactions that occurred in Q B & R stock from June of 1963 to December 6, 1967, indicates that a reconstructed market value can be established. Vought v. Republic-Franklin Insurance Co., 117 Ohio App. 389, 192 N.E.2d 332 (1962). From June of 1963 through March of 1967 the price of a share of Q B & R stock varied from $66.67 per share to $50 per share. However, in several transactions just prior to the purchase of a controlling interest in Q B & R by Hedahl's, Inc., the price of a share of stock was in excess of $100. Averaging all Q B & R stock transactions from June of 1963 up to December 6, 1967, the result is a reconstructed market price of $69 per share. This figure appears to be a reasonable reconstructed market price and, accordingly, will be established as the market value for a share of Q B & R stock. Every share sold after Hedahl's, Inc., exercised its options was purchased for $100 per share. The fact that Hedahl's, Inc., purchased a controlling interest in Q B & R as of December 6, 1967, together with its subsequent purchase of additional Q B & R stock, distorts the actual market value of a share of Q B & R due to the fact that Hedahl's, Inc., was then in a position to control the market. Accordingly, the purchases of Q B & R stock from December 6, 1967, and thereafter, are not properly includible in determining the market value of a share of Q B & R stock. Sporborg v. City Speciality Stores, 35 Del.Ch. 560, 123 A.2d 121 (Ch.1956).\\nWe hold that all three methods of valuation must be used in determining the \\\"fair value\\\" of a share of Q B & R stock as of March 8, 1968. We have determined the value of a share of Q B & R stock by each method. The asset value of a share of Q B & R stock is $242.81 per share; the investment or earnings value of a share of Q B & R stock is zero; and the market value of a share of Q B & R stock is $69 per share. Having determined the value of a share of Q B & R stock by each method, the problem becomes one of weighing the various factors to reach a final result that properly takes into consideration all of the elements and factors involved in determining the \\\"fair value\\\" of a share of Q B & R stock as of March 8, 1968. As this is a case of first impression we have had to look to other jurisdictions for guidance in this matter. Perhaps the most experienced jurisdiction in dealing with the valuation of dissenter's stock in corporate mergers is Delaware. The Delaware courts use all three methods in valuing corporate stock. A value is established for each method after which the several values are weighed to arrive at a final determination of the value of the dissenter's share. The following chart indicates the weight given to the several values involved in determining the value of the dissenter's stock although it is clear from a reading of the cases comprising this table that no simple valuation formula exists and that each case was decided on its own particular facts.\\n1. In Re Olivetti Underwood Corp., 246 A.2d 800 (Del.Ch.1968).\\n2. Poole v. N. V. Deli Maatschappij, 243 A.2d 67 (Del.Supr.1968).\\n3. Swanton v. State Guaranty Corporation, 42 Del. Ch. 477, 215 A.2d 242 (Ch.1965).\\n4. Application of Delaware Racing Association, 42 Del.Ch. 406, 213 A.2d 203 (S.Ct.1965), affirming 42 Del.Ch. 175, 206 A.2d 664 (Ch.1965).\\n5. Levin v. Midland-Ross Corporation, 41 Del.Ch. 276, 194 A.2d 50 (Ch.1963).\\n6. Felder v. Anderson, Clayton & Co., 39 Del.Ch. 76, 159 A.2d 278 (Ch.1960).\\n7. Sporborg v. City Specialty Stores, 35 Del.Ch. 560, 123 A.2d 121 (Ch.1956).\\n8. Heller v. Munsingwear, Inc., 33 Del.Ch. 593, 98 A.2d 774 (Ch.1953).\\n9. Jacques Coe & Co. v. Mlnneapolis-Moline Co., 31 Del.Ch. 368, 75 A.2d 244 (Ch.1950), (a) Preferred stock (b) Common stock.\\n10. In re General Realty & Utilities Corporation, 29 Del.Ch. 480, 52 A.2d 6 (Ch.1947).\\nIn weighing the various values involved we have considered all aspects of Q B .& R as a \\\"going concern\\\" prior to its merger with Hedahl's, Inc. Although we have assigned weights to the several values involved, we have not used any set formula; rather, we have relied on an analysis of the particular facts of this case as being determinative of the weight given each value. We have assign ed a weight of 25% to the market value of Q B & R. Normally, where there is an established market for the stock of a corporation the market price is given great weight. In other cases where there is no reliable market and none can be reconstructed, market price is not considered at all. However, as to the Q B & R stock, there has been a limited market such that we can properly reconstruct a realistic market price for a share of Q B & R stock. Application of Delaware Racing Association, supra; Vought v. Republic-Franklin Insurance Co., supra. We have assigned a weight of 50% to the asset value of Q B & R. Normally, a higher value is assigned only in cases where the primary purpose of the corporation is to hold assets, such as real estate, for the purpose of allowing them to appreciate in value. Swanton v. State Guaranty Corporation, 42 Del.Ch. 477, 215 A.2d 242 (Ch.1965); In re General Realty & Utilities Corporation, 29 Del.Ch. 480, 52 A.2d 6 (Ch.1947). In other words, assets are weighed more heavily when they are held for appreciation purposes rather than for commercial retail or wholesale purposes designed to generate earnings. Here the assets of Q B & R primarily consisted of inventories for sale and the necessary buildings and equipment to carry out this business purpose. The inventories held by Q B & R would depreciate in value rather than appreciate but the value of the lots and buildings is substantial in relation to the inventories and will likely appreciate in value. We have assigned a weight of 25% to the investment or earnings value of Q B & R. Normally, in a commercial business, earnings are given great weight as the primary purpose of the business is to generate earnings and not to hold assets that will appreciate in value. Sporborg v. City Specialty Stores, supra; Felder v. Anderson, Clayton & Co., 39 Del.Ch. 76, 159 A.2d 278 (Ch.1960). Q B & R was such a business, whose primary purpose was to generate earnings for its shareholders. The fact that Q B & R has failed in the past several years to generate such earnings does not mean that earnings are not an important part of the value of Q B & R stock. In re Olivetti Underwood Corp., 246 A.2d 800 (Del.Supr.1968); Application of Delaware Racing Association, supra. However, after Hedahl's had purchased control, a new board of directors was elected in December 1967. This resulted in new and, we believe, improved management of Q B & R. Although earnings should ordinarily weigh heavily in determining the true value of the stock in a commercial corporation, we believe, under the circumstances, it is proper to give less weight in this case. Accordingly, we have determined that the \\\"fair value\\\" of a share of Q B & R stock as of March 8, 1968, is $138.65 per share.\\nIt is therefore our decision that the plaintiffs have judgment against the defendant for the amount of said \\\"fair value\\\" of the respective shares of stock in Q B & R as of March 8, 1968, at a rate of $138.65 per share, together with the legal interest thereon from that date. Such value per share shall be paid to the plaintiffs only upon surrender of their shares to the corporation.\\nWe therefore direct that the judgment be modified to conform to this opinion and as modified, it is affirmed.\\nKNUDSON and STRUTZ, JJ., concur.\\nRALPH J. ERICKSTAD, J., deeming himself disqualified did not participate; NORBERT J. MUGGLI, Judge of the Sixth Judicial District, sitting in his stead.\"}"

nd/10786895.json

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+"{\"id\": \"10786895\", \"name\": \"WAHPETON PUBLIC SCHOOL DISTRICT NO. 37, a Public Corporation, Plaintiff and Respondent, v. The NORTH DAKOTA EDUCATION ASSOCIATION, a Nonprofit Corporation, Defendant and Appellant\", \"name_abbreviation\": \"Wahpeton Public School District No. 37 v. North Dakota Education Ass'n\", \"decision_date\": \"1969-03-19\", \"docket_number\": \"Civ. No. 8505\", \"first_page\": 389, \"last_page\": \"397\", \"citations\": \"166 N.W.2d 389\", \"volume\": \"166\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:40:10.819618+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD and PAULSON, JJ, concur.\", \"parties\": \"WAHPETON PUBLIC SCHOOL DISTRICT NO. 37, a Public Corporation, Plaintiff and Respondent, v. The NORTH DAKOTA EDUCATION ASSOCIATION, a Nonprofit Corporation, Defendant and Appellant.\", \"head_matter\": \"WAHPETON PUBLIC SCHOOL DISTRICT NO. 37, a Public Corporation, Plaintiff and Respondent, v. The NORTH DAKOTA EDUCATION ASSOCIATION, a Nonprofit Corporation, Defendant and Appellant.\\nCiv. No. 8505.\\nSupreme Court of North Dakota.\\nMarch 19, 1969.\\nRehearing Denied April 9, 1969.\\nLewis & Bull\\u00eds, Wahpeton, for plaintiff and respondent.\\nRausch & Chapman, Bismarck, for defendant and appellant.\", \"word_count\": \"4107\", \"char_count\": \"24506\", \"text\": \"STRUTZ, Judge (on reassignment).\\nThe plaintiff school district, finding its finances in a depleted condition, submitted to the voters of the district the question of increasing its taxing authority. This proposal was rejected by the voters. Because of such defeat at the polls, the school board, the governing body of the school district, found that funds available to the district were insufficient to meet the demands of its teachers for increased salaries. The plaintiff thereupon determined that the only way such demands could be met was by the elimination of certain courses from its curriculum. A resolution eliminating certain courses thereafter was adopted, thus eliminating certain teaching positions in the system.\\nThe defendant, representing a vast majority of the teachers in the plaintiff's system, thereupon demanded that the plaintiff restore such teaching positions, and suggested that plaintiff district obtain the funds needed for salary increases for teachers by the issuance of certificates of indebtedness or by some other form of deficit spending. During the course of negotiations between the parties, representatives of the defendant impressed upon the plaintiff school district that the \\\"onus\\\" of failing to accede to the teachers' demands would be on the plaintiff, and that if matters were not settled to the satisfaction of the teachers, \\\"sanctions\\\" could be imposed against the school district which would include recommending to members of the defendant association and to members of the National Education Association that such members do not consider employment by the plaintiff district.\\nA meeting between the parties was set for April 10, 1968. Before that meeting convened, however, the plaintiff went into the district court and obtained a temporary restraining order against the use of sanctions by the defendant. Thereupon the Wahpeton Education Association, many of whose members also are members of the defendant State association, voted to impose sanctions and requested the defendant to support it in its action.\\nThe temporary injunction issued by the court was served upon the defendant, requiring the defendant to show cause, if any it had, why the defendant, its officers, employees, or agents, should not be restrained and enjoined, pending hearing, from imposing sanctions against the plaintiff, or from recommending to defendant's members or to members of the National Education Association that they do not accept employment with the plaintiff school district. The order to show cause was set for hearing on April 24, 1968, at three o'clock p.m.\\nThe defendant, on being served with summons and complaint and with the restraining order, filed its answer and counterclaim, together with its petition for a temporary injunction restraining the plaintiff school district from interfering with the defendant or its members, restraining the plaintiff from issuing or offering any contract to any teachers with regard to any position with the plaintiff school district, during the time the defendant was restrained and enjoined by the order previously issued by the court, and from further contacting any organization for the purpose of recruiting teachers for the plaintiff school district. A temporary order so restraining the plaintiff was signed by the court, and an order to show cause why such temporary restraining order should not be made permanent was set for hearing at the same time and place at which the order to show cause in the proceedings for injunction brought by the plaintiff was to be heard.\\nBoth parties appeared before the court on the 24th day of April 1968 at three o'clock pursuant to such orders to show cause. After hearing, the court issued its order which provided:\\n\\\"I.\\n\\\"That the temporary restraining order issued against the defendant on the 10th day of April, 1968 be continued for a period of two weeks from and after the 24th day of April, 1968, at which time said matter will be heard on its merits.\\n\\\"II.\\n\\\"That the temporary restraining orders issued by this Court against the plaintiff on the 15th day of April, 1968 and the 19th day of April, 1968 be, and they hereby are dissolved; provided however, that those teachers in the Wah-peton School District who signed contracts issued by the School Board on April 17, 1968 shall have until 5:00 P. M. on April 26, 1968 to withdraw said contracts if they so desire, and provided further that those teachers who submitted resignations as a result of the issuance of said contracts shall have until 5:00 P. M. on April 26, 1968 to withdraw said resignations.\\\"\\nFrom such order, dated April 25, 1968, the defendant has taken the appeal to this court.\\nThe first question which we must determine is whether the order appealed from is an appealable order. This court has held that appeals from temporary or interlocutory orders will not lie, except in cases where appeal is expressly authorized by statute. Nordenstrom v. Swedberg, 123 N.W.2d 285 (N.D.1963).\\nSuch orders, where not made expressly appealable, are reviewable on appeal from the judgment, if the order and the facts essential to the review are embodied in the settled statement of the case and made a part of the record on appeal. Burdick v. Mann, 59 N.D. 611, 231 N.W. 545 (1930).\\nSection 28-27-02, North Dakota Century Code, sets out what orders are appealable. Subsection 7 of that section provides that an order made by the district court or judge thereof, without notice, is not an ap-pealable order; but an order made by the district court after hearing is had upon notice\\n\\\" which vacates or refuses to set aside an order previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.\\\"\\nWe therefore must determine whether the orders of the district court, made without notice, which restrained the parties from doing certain things, would have been appealable orders had they been made on notice. If they were appealable, then the order, after hearing, which vacated such previous orders in part and which refused to set -aside and vacate such previous orders in part, would be an appealable order.\\nThe previous orders restrained and enjoined the respective parties from doing certain acts. Subsection 3 of Section 28-27-02 provides, among other things, that an order which grants, modifies, or dissolves an injunction is an appealable order.\\nThe original order signed by the district court, without notice, enjoined the defendant from doing any act which might interfere with the carrying out of the functions of the plaintiff as required by law; and from imposing sanctions or from recommending to members of the North Dakota Education Association or the National Education Association, or any student affiliates of either, that they do not consider employment by the plaintiff. Had this order been made upon notice, it would, in our opinion, have been an appealable order. Thus, when the district court, after hearing, refused to set aside the order, the order which refused to vacate the original order, which had been made without hearing, was an appealable order under Section 28-27-02(7), North Dakota Century Code. The mere fact that the district court refuses to vacate or dissolve the order for a period of an additional two weeks only would not, in our opinion, make this a nonappealable order merely because it is a temporary order. If the trial court could make this order nonappealable by refusing to set aside the injunction for a period of time, to wit, two weeks in this case, instead of vacating or refusing to vacate the order, it could issue a series of such orders, each of which would refuse to vacate or dissolve the injunction for a two-week period and thus prevent an appeal from such order. Or it could issue a temporary order for two months instead of for two weeks.\\nIt will be noted that in the order appealed from, the district court did dissolve the temporary restraining order previously issued ex parte (on application of the defendant) against the plaintiff school district. This portion of the order thus was an order that dissolved an injunction against the plaintiff as well as an order which refused to modify or dissolve an injunction against the defendant, issued after hearing. As such, it is held to be an appealable order under the provisions of Sections 28- 27-02(3) and 28-27-02(7), North Dakota Century Code. We so held in Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155 (1952), and in State ex rel. Olson v. Lynch, 138 N.W.2d 785 (N.D.1965).\\nWe next come to the issue of whether the question raised by the appeal is moot. Both parties concede that, immediately after the entry of the order appealed from, negotiations between the plaintiff and the teachers were resumed and that the controversy was settled within two days thereafter. Thus, at the time the appeal was taken, a full settlement of the issues between the parties had been reached.\\nOrdinarily, an appeal will be dismissed if the question raised by the appeal has become moot or if, without fault of the respondent, an event has occurred which makes a determination of such question unnecessary and leaves no actual controversy to be determined. Hart v. Bye, 86 N.W.2d 635 (N.D.1957); State ex rel. Schafer v. Gussner, 92 N.W.2d 65 (N.D.1958); Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851 (1930).\\nThe parties both concede that the issue which was raised by the pleadings no longer exists, and that there is no reason for continuing in force the temporary restraining order which had been granted by the district court. The controversy has been settled, and the record does not disclose any reason for believing that the acts which the plaintiff or the defendant sought to have enjoined will be renewed. As this court said in State ex rel. Schafer v. Gussner, supra:\\n\\\"Judicial power vested in the courts of North Dakota, extends only to the determination of actual controversies, properly before the court, and does not authorize the court to give advisory opinions on moot questions or abstract principles.\\\"\\nThe appellant, however, asserts that certain exceptions to this rule exist in this case, and that this court should determine the issues on this appeal for the following reasons:\\n\\\"1. The Order did not, in fact, terminate but is still in effect ;\\n\\\"2. The issue is not moot because of the secondary question of practical importance (i. e., liability under plaintiff's bond) which turns upon the result of the appeal; and\\n\\\"3. The matter before the Court contains issues of such overriding importance that the value of their determination as a precedent is sufficient to overcome the rule against considering moot questions.\\\"\\nWe cannot agree with the appellant's contentions. The first contention clearly is untenable because a preliminary injunction will be dissolved when the reasons for granting such injunction have ceased to exist and it no longer can serve any useful purpose. As we stated in Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672 (1950):\\n\\\"A temporary injunction is issued only to preserve the rights of the plaintiff during the pendency of the action and where the reasons for granting such injunction have ceased to exist and it is not likely that the acts which the temporary injunction sought to prohibit will be renewed the injunction should be dissolved.\\\"\\nThe purpose of the restraining orders ceased to exist when the controversy between the parties was settled; and therefore, the purpose of the injunction having ceased to exist, the injunction should be dissolved.\\nThe appellant contends next that the issue is not moot because there is the question of liability under the appellant's bond which will depend upon the results of this appeal. This contention also is without merit. As we stated in Hart v. Bye, supra:\\n\\\"A moot question will not be passed upon simply to relieve an appellant from paying a judgment for costs, as costs are distinct from and do not relate to the merits of the action, arising only after the question of merits has been passed upon.\\\"\\nThe final ground urged by the appellant in support of its contention that this matter is not moot is based upon the fact that the appeal involves issues of such overriding importance that the value of their determination as a precedent is sufficient to overcome the rule against considering moot questions. This court did say, in Hart v. Bye, supra, that an exception to the moot-question rule is that the appeal will not be dismissed if it involves a question of great public interest. However, that rule cannot be applied in this case. In the proceedings before the trial court, no evidence was produced other than returns made in resistance to the continuance of the respective restraining orders. The defendant has denied that if it were to impose sanctions, such sanctions would be as alleged by the plaintiff Wahpeton School District. On the other hand, the plaintiff Wahpeton School District has denied that it would attempt to restrain the defendant from doing any acts which it might lawfully do. We have no evidence in this case from which we can determine just what \\\"sanctions\\\" would imply. Neither can we determine, from the record before us, in what way, if any, the plaintiff would interfere with the legal rights of the defendant. These questions cannot be determined upon the partial record which we have before us.\\nA concurring opinion, which dissents from the holding herein on the ap-pealability of a temporary restraining order, has been filed. This opinion asserts that if a trial court were to continue a restraining order for an unreasonable time, the party restrained would not be without an appropriate remedy because such party could apply to this court for a supervisory writ. In making this assertion, the writer fails to mention the fact that a supervisory writ was sought in this case by NDEA and that such application was denied by this court because it was deemed best for all concerned that the matter be brought before us for review on appeal.\\nFor reasons stated in this opinion, the appeal of the North Dakota Education Association is dismissed.\\nERICKSTAD and PAULSON, JJ, concur.\"}"

nd/10787807.json

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+"{\"id\": \"10787807\", \"name\": \"Lambert L. JOHNSON, in behalf of himself and all other persons similarly situated who come and join in the action; and Lambert L. Johnson, as sheriff of Richland County, North Dakota, Plaintiffs and Respondents, v. RICHLAND COUNTY, North Dakota, a body corporate, and the Board of County Commissioners of Richland County, North Dakota, Defendants and Appellants\", \"name_abbreviation\": \"Johnson v. Richland County\", \"decision_date\": \"1968-07-26\", \"docket_number\": \"No. 8356\", \"first_page\": 406, \"last_page\": \"407\", \"citations\": \"160 N.W.2d 406\", \"volume\": \"160\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-11T02:03:55.915680+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lambert L. JOHNSON, in behalf of himself and all other persons similarly situated who come and join in the action; and Lambert L. Johnson, as sheriff of Richland County, North Dakota, Plaintiffs and Respondents, v. RICHLAND COUNTY, North Dakota, a body corporate, and the Board of County Commissioners of Richland County, North Dakota, Defendants and Appellants.\", \"head_matter\": \"Lambert L. JOHNSON, in behalf of himself and all other persons similarly situated who come and join in the action; and Lambert L. Johnson, as sheriff of Richland County, North Dakota, Plaintiffs and Respondents, v. RICHLAND COUNTY, North Dakota, a body corporate, and the Board of County Commissioners of Richland County, North Dakota, Defendants and Appellants.\\nNo. 8356.\\nSupreme Court of North Dakota.\\nJuly 26, 1968.\\nHarold O. Bull\\u00eds, State\\u2019s Atty., Wahpe-ton, Fred E. Saefke, Jr., Bismarck (on oral argument), for defendants and appellants.\\nJohnson, Milloy & Eckert, Wahpeton, for plaintiffs and respondents.\", \"word_count\": \"683\", \"char_count\": \"4396\", \"text\": \"PER CURIAM.\\nOn January 25, 1966, the board of county commissioners of Richland County entered into a contract with Lee E. Agnew, of Wahpeton, an elector of Richland County, for the collection of delinquent personal property taxes. On the next day, January 26, Lee E. Agnew assigned this contract to the North Dakota Retail Creditors Association of Bismarck, Burleigh County, North Dakota. This assignment was never formally ratified by the board of county commissioners by resolution or motion. However, the contract was entered into with the knowledge and understanding on the part of the county commissioners that the contract would be assigned to the Creditors Association.\\nThe plaintiff brought this action to enjoin the defendants from carrying into effect or enforcing any provisions of the contract or the assignment thereof on the grounds that the contract is null and void.\\nThe defendants have appealed from the judgment of the district court holding the contract and the assignment null and void, and granting the injunction.\\nAn opinion previously approved in this case has been withdrawn, and this opinion is being substituted.\\nIn the 1967 Session the North Dakota Legislature passed a validating act declaring all contracts heretofore made and entered into by the county commissioners for the collection and recovery of personal property taxes to be legal and valid not withstanding the provisions of law to the contrary.\\n\\u00a7 2. Validating Contracts for the Collection of Personal Property Taxes.) All contracts heretofore made and entered into by the county commissioners for the collection and recovery of personal property taxes are declared legal and valid notwithstanding the provisions of law to the contrary.\\nSession Laws 1967, chapter 434, \\u00a7 2.\\nThis act validates all contracts heretofore made for the collection of personal property taxes, and this, in our opinion, includes the contract and assignment thereof in this case.\\nTherefore, in view of the above cited curative statute which was passed before final adjudication was made in this case, we hold that we need not determine whether the contract was null and void, as that question has become moot.\\nThe corporate existence and the legislative and administrative acts of municipal corporations, including cities and towns, school districts, drainage districts, townships and counties may be validated by properly enacted curative statutes. Because there is apparent legislative cognizance of the fact that most political subdivisions must be administered by personnel unfamiliar with the intricacies of the law, and because courts generally afford liberal interpretation to action taken for the public benefit, there is a mutual legislative and judicial willingness to forgive, forget, and legalize. Only in case the curative act attempts to validate that which could not have been originally authorized, or to validate action which impairs the obligation of contracts or interferes with created rights will courts declare the statute unconstitutional.\\nDefects in the incorporation of a political subdivision may be cured and action taken as a de facto corporation may be legalized so that it will have de jure effect. Where the corporate existence is unquestioned, but its officers act ultra vires their action may be ratified. Thus, contracts, bond issues, levies and assessments, elections, and boundary extensions may be cured.\\n2 J. Sutherland, Statutory Construction, \\u00a7 2217 (3d ed. Horack 1943).\\nSee, 10 E. McQuillin, Municipal Corporations, \\u00a7 29.109 (3d ed. Ellard 1966).\\nFor these reasons, we reverse the judgment of the lower court and remand the case for further proceedings accordingly.\\nPAULSON, J.,\\nnot having been a member of the Court at the time of submission of this case, did not participate.\"}"

nd/10796057.json

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+"{\"id\": \"10796057\", \"name\": \"Gordon BARTHOLOMAY, as surviving husband of Diane Bartholomay, deceased, Gordon Bartholomay, as surviving father of the unborn child of Diane Bartholomay, deceased, Vickie Lynn Batholomay, by her next friend, Gordon Bartholomay, Jeffrey Bartholomay, by his next friend, Gordon Bartholomay, and Gordon Bartholomay, individually, Plaintiffs and Appellants, v. ST. THOMAS LUMBER COMPANY and John R. Quam, Defendants and Respondents\", \"name_abbreviation\": \"Bartholomay v. St. Thomas Lumber Co.\", \"decision_date\": \"1963-11-07\", \"docket_number\": \"No. 8086\", \"first_page\": 481, \"last_page\": \"485\", \"citations\": \"124 N.W.2d 481\", \"volume\": \"124\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T21:52:11.179354+00:00\", \"provenance\": \"CAP\", \"judges\": \"MORRIS, C. J., and STRUTZ, BURKE and ERICKSTAD, JJ., concur.\", \"parties\": \"Gordon BARTHOLOMAY, as surviving husband of Diane Bartholomay, deceased, Gordon Bartholomay, as surviving father of the unborn child of Diane Bartholomay, deceased, Vickie Lynn Batholomay, by her next friend, Gordon Bartholomay, Jeffrey Bartholomay, by his next friend, Gordon Bartholomay, and Gordon Bartholomay, individually, Plaintiffs and Appellants, v. ST. THOMAS LUMBER COMPANY and John R. Quam, Defendants and Respondents.\", \"head_matter\": \"Gordon BARTHOLOMAY, as surviving husband of Diane Bartholomay, deceased, Gordon Bartholomay, as surviving father of the unborn child of Diane Bartholomay, deceased, Vickie Lynn Batholomay, by her next friend, Gordon Bartholomay, Jeffrey Bartholomay, by his next friend, Gordon Bartholomay, and Gordon Bartholomay, individually, Plaintiffs and Appellants, v. ST. THOMAS LUMBER COMPANY and John R. Quam, Defendants and Respondents.\\nNo. 8086.\\nSupreme Court of North Dakota.\\nNov. 7, 1963.\\nNilles, Oehlert & Nilles, by Donald R. Hansen and Frank J. Magill, Fargo, for appellants.\\nStokes, Vaaler, Gillig & Warcup, Grand Forks, for respondents.\", \"word_count\": \"1787\", \"char_count\": \"10389\", \"text\": \"TEIGEN, Judge.\\nThis is an appeal from an order denying a motion for change of venue on the ground of convenience of witnesses and to promote the ends of justice. The case involves an automobile accident which occurred on U. S. Highway No. 81, north of Grandin, in Traill County, North Dakota. The sole issue on this appeal is whether the trial court abused its discretion in denying the motion of the plaintiff for such change of place of trial.\\nThe action was commenced in Cass County and, upon demand made by the defendants for a change of the place of trial to Pembina County, the county of the defendant Quam's residence and the place where the defendant St. Thomas Lumber Company has its principal office and transacts its business, it was stipulated that the venue be changed from Cass County to Pembina County. This was followed by the court's order changing the venue pursuant to the terms of the stipulation. In the stipulation the plaintiffs reserved the right to make application to the court for a change of venue from Pembina County back to the County of Cass under Section 28-04-07, Subsection 3, N.D.C.C., for the convenience of witnesses and to promote the ends of justice.\\nFollowing these events the plaintiff Bar-tholomay made and served his notice of motion and motion for change of venue from Pembina County to Cass County, or in the alternative to Traill County. The motion was made on the ground of convenience of witnesses and on the further ground that granting the motion would promote the ends of justice. The motion was supported by the affidavit of one of the plaintiffs' attorneys to the effect that many witnesses \\u2014 26 are named \\u2014 including police officers, highway patrolmen, doctors, nurses, eye witnesses to the accident, persons having charge of hospital and medical records, and others, would be convenienced if the place of trial were changed as prayed for in the motion. The plaintiff Bartholomay further pointed out that the scene of the accident could be more readily visited by the jury in the event of the granting of the motion.\\nIn resistance to the motion, one of the attorneys for the defendants filed an affidavit listing 25 witnesses which he states they intend to call to testify at the trial of the action. Several of these witnesses were eye witnesses to the accident. One was a passenger in the vehicle driven by the defendant Quam and owned by the defendant St. Thomas Lumber Company; some were people from Pembina County that had examined the scene where the accident occurred and the vehicles that were involved therein; and three of them were eye witnesses who were also involved in the multi-vehicle accident but who are not named as parties in this action. At least six of the witnesses named by the defendants in the attorney's affidavit, who are described as eye witnesses to the accident, reside in or are geographically closer to Pembina County.\\nIn the defendants' affidavit it is also stated that the plaintiffs permitted one term of court to pass in Pembina County after venue had been changed to that county, that they did not press the matter for trial and that they were not diligent in making this motion. The affidavit states that if the place of trial is changed, the defendants will be deprived of the right of trial in the county of their residence; that it will inconvenience a number of the defendants' witnesses; that the removal prayed for would be prejudicial to the defendants; that more witnesses who can offer material evidence on the issue of cause, being the main issue of the trial, reside in Pembina County than in Cass County; that the defendant Quam, as a result of the accident, was prosecuted on a criminal charge in Traill County, which case was tried to a jury and received considerable publicity and therefore it would be difficult to draw a jury in Traill County; that the convenience of witnesses and the ends of justice will not be served by moving the trial of the case to either Cass or Traill Counties but the ends of justice will be served by the case remaining in Pembina County for trial.\\nThe motion was heard and the trial court entered an order denying the motion. This \\u2022appeal is taken from the order of denial.\\nThis case arose as a result of a four-vehicle accident which occurred on U. S. Highway No. 81 in Traill County, about one and one-half miles north of the Cass County line. It involves five claims of the Gordon Bartholomay family. (1) For the wrongful death of Diane Bartholomay, wife of Gordon Bartholomay; (2) For the wrongful death of an unborn viable child; (3) For bodily injuries of Vickie Lynn Bartholomay, daughter; (4) For bodily injuries to Jeffrey Bartholomay, son; and (5) For the bodily injury, property damage, hospital and doctor bills for the family by Gordon Batholomay, husband and father. The injured were hospitalized in Fargo.\\nThe scene of the accident is located approximately 30 miles from Fargo, the place of trial if held in Cass County; approximately 10 miles from Hillsboro, the place of trial if held in Traill County; and approximately 122 miles from Cavalier, the place of trial if held in Pembina County. The distance between the respective cities, is approximately as follows: 40 miles from Fargo to Hillsboro, 112 miles from Hills-boro to Cavalier, and about 152 miles from Fargo to Cavalier. Good highways connect all of the cities.\\nThe defendants had an absolute right to a change of place of trial from Cass County to Pembina County. The defendant Quam resides in Pembina County and is entitled to have the case tried in that county. Section 28-04-05, N.D.C.C. The defendant St. Thomas Lumber Company, a domestic corporation, has its principal office located in Pembina County and transacts all of its business in that county. Pursuant to Section 28-04-04, N.D.C.C., it also is entitled to trial in tire same county. The two defendants joined in the demand and it was proper to change the place of trial from Cass County to Pembina County, the place of residence of the private and corporate defendants. Farmers' Security Bank of Conway v. Springen, 48 N.D. 364, 184 N.W. 664.\\nSection 28-04-07(3), N.D.C.C., provides for a change of venue at the discretion of the court for the convenience of witnesses and promotion of the ends of justice. A motion for the change of place of trial for the convenience of witnesses and to promote the ends of justice always is addressed to the sound judicial discretion of the trial court and the appellate court will not interfere unless an abuse of discretion is shown. Curren v. Story, 41 N.D. 361, 170 N.W. 875; Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082; Kramer v. Heins, 34 N.D. 507, 158 N.W. 1061; Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830; McConnon & Co. v. Sletten, 55 N.D. 388, 213 N.W. 483; Kiley v. Meckler, 57 N.D. 217, 220 N.W. 926; Crosby v. Minneapolis, St. P. & S. S. M. Ry. Co., 57 N.D. 447, 222 N.W. 476; Moen v. Melin, 59 N.D. 582, 231 N.W. 283; Ott v. Kelley, 64 N.D. 361, 252 N.W. 269; Kinzell v. Payne, 64 N.D. 383, 252 N.W. 624; Gessner v. Benson, N.D., 79 N.W.2d 152; Hovland v. Waller, N.D., 98 N.W.2d 893; and Barkman v. Quam, et al., (N.D.) recently decided, 123 N.W.2d 824.\\nThe rulings of the trial court in matters that are addressed to its sound judicial discretion will not be disturbed on appeal, except in cases of manifest abuse. Wolf son v. Schieber, supra; Curren v. Story, supra; Aylmer v. Adams, 30 N.D. 514, 153 N.W. 419; and Boeren v. McWilliams, 33 N.D. 339, 157 N.W. 117.\\nWhere such motion for change of place of trial on the ground of convenience of witnesses would, if granted, inconvenience the witnesses for the defendants, a denial of the motion would not be an abuse of discretion. Crosby v. Minneapolis, St. P. & S. S. M. Ry. Co., supra, and Barkman v. Quam, supra.\\nThe moving parties, who are the plaintiffs in this case, have the burden of establishing such facts as will warrant the trial court in ordering the change. Wolfson v. Schieber, supra; and Kiley v. Meckler, supra.\\nWe have reviewed the affidavits submitted in support of and opposed to the motion for change of place of trial and find there is sufficient ground to base judicial discretion for a decision either way. However, the appeal is not determined by how this court would pass upon the affidavits but whether a reasonable and intelligent basis for the decision rendered is shown in the affidavits. We merely review the ruling of the trial court for the purpose and to the extent of ascertaining whether that court abused its discretion. Curren v. Story, supra, and Farmers' State Bank v. Hager, 58 N.D. 62, 225 N.W. 128. It was for the trial court to say whether, in view of the conflicting affidavits furnished by the parties, a change of venue should be granted. Generally no abuse of discretion will be presumed or inferred where there are conflicting affidavits. Boeren v. McWilliams, supra, and Farmers' State Bank v. Hager, supra. The question involved is not whether the movants have an absolute right to such a change but whether the trial judge abused his discretion in denying it. Kramer v. Heins, supra.\\nThe trial court exercised its discretion and denied the motion. The defendants have a statutory right to have the case against them tried in the county in which they live. This right should not be taken away except for good cause shown. Some of the defendants' witnesses will be inconvenienced if the place of trial is changed to Cass County or Traill County. We find there is a reasonable basis for the decision made by the trial court and it is not for this court to reverse the decision. The order denying the motion for change of venue is affirmed.\\nMORRIS, C. J., and STRUTZ, BURKE and ERICKSTAD, JJ., concur.\"}"

nd/10801065.json

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+"{\"id\": \"10801065\", \"name\": \"STATE of North Dakota, Plaintiff and Respondent, v. Selma HEASLEY and Fay E. Heasley, Defendants and Appellants\", \"name_abbreviation\": \"State v. Heasley\", \"decision_date\": \"1965-04-26\", \"docket_number\": \"No. Cr. 321\", \"first_page\": 789, \"last_page\": \"792\", \"citations\": \"134 N.W.2d 789\", \"volume\": \"134\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T22:24:48.010109+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURKE, C. J., and ERICKSTAD and TEIGEN, JJ., concur.\", \"parties\": \"STATE of North Dakota, Plaintiff and Respondent, v. Selma HEASLEY and Fay E. Heasley, Defendants and Appellants.\", \"head_matter\": \"STATE of North Dakota, Plaintiff and Respondent, v. Selma HEASLEY and Fay E. Heasley, Defendants and Appellants.\\nNo. Cr. 321.\\nSupreme Court of North Dakota.\\nApril 26, 1965.\\nHelgi Johanneson, Atty. Gen., Bismarck, and Clinton R. Ottmar, State\\u2019s Atty. of Stutsman County, Jamestown, for plaintiff and respondent.\\nLeo J. Beauclair, Valley City, for defendants and appellants.\", \"word_count\": \"1392\", \"char_count\": \"8175\", \"text\": \"RAY R. FRIEDERICH, District Judge.\\nThe defendants, Fay and Selma Heasley, husband and wife, were arrested on the 10th day of April, 1963, on a charge of buying or procuring a pretended title to certain lands in Stutsman County, North Dakota, in violation of Section 12-17-14, North Dakota Century Code. They were tried before a jury in the County Court of Increased Jurisdiction and found guilty as charged. This appeal is taken from the judgment on the verdict.\\nPrior to the arrest, defendants were engaged in extensive litigation in the U. S. District Court for the District of North Dakota (Southeastern Division). This action culminated in the foreclosure by the United States of America of a tax lien upon the real property involved in this action and a judicial sale of the property confirmed by the U. S. District Court on April 8, 1960. The purchasers under the foreclosure sale were put into possession of the premises and have received the rents, profits, and proceeds from the premises since that time. The lien of the Federal Government was declared paramount to all other liens or encumbrances upon the property, including real estate taxes levied and assessed by Stutsman County. During the course of litigation in Federal Court, tax title proceedings by the County were completed to show title in the County for nonpayment of real estate taxes for the year 1955.\\nThe appellant Selma Heasley acquired a tax deed to the premises from Stutsman County on the 21st day of March, 1961, and, on the 21st day of March, 1963, she executed a warranty deed conveying this property to herself and her husband, Fay E. Heasley, in joint tenancy. It is this last deed which is the basis of the criminal action.\\nFour specifications of error are set forth in the appeal:\\n1. The complaint against the defendants is defective for the reason that complainant lacked an understanding of the nature of the offense alleged and the facts surrounding the complaint;\\n2. The complaint failed to adequately advise defendants as to the nature of the offense with which they were being charged;\\n3. The verdict was not supported by the evidence; and\\n4. The trial court had no jurisdiction in the case.\\nWhenever the jurisdiction of a court is challenged, it would seem logical that this should be the first issue to be considered on appeal. Specifically, appellants contend that the lower court was without jurisdiction because the crime, if any, was not committed in Stutsman County, the county in which the venue of the criminal action was laid.\\nIt is admitted by the State that the deed in question was prepared, executed, and acknowledged in the office of an attorney in Valley City, Barnes County, North Dakota, on March 21, 1963. While memories were somewhat hazy on the question of delivery of the deed, it was testified by the Register of Deeds of Stutsman County that, according to his recollection, the deed was handed to him for recording by one of the grantees, Fay E. Heasley. To this same effect was the testimony of the grantor, Selma Heasley, and others. No testimony to. the contrary was offered by the State. The deed having been in the possession of the grantee Fay Heasley at the time it was presented for recording on the day following its execution, the presumption arises, in the absence of evidence to the contrary, that it was delivered on the date it was executed and acknowledged. Sec. 47-09-06, N.D. C.C.; Leonard v. Fleming, 13 N.D. 629, 102 N.W. 308; Cox v. McLean, 66 N.D. 696, 268 N.W. 686; McMillen v. Chamberland, 71 N.D. 65, 298 N.W. 767.\\nIn a prosecution for voluntarily becoming interested individually in a contract entered into by the defendant in his official capacity as a State official, this court, in State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, at page 191, 140 A.L.R. 332, stated:\\n\\\"We have been unable to discover any authority upon the question of venue of the prosecution of a crime such as is charged in the information and none has been cited by either party. Despite that fact, we do not find the question here presented to be at all difficult. It -is readily disposed of under the general law applicable to the venue and jurisdiction of criminal actions. The basic question is where was the crime committed. If it was committed in McLean County the District Court of Burleigh County has no jurisdiction. If it was committed in both counties, then under section 10505, either county has jurisdiction. As a general rule it may be said that a crime is committed in a county when the criminal act, its object and purpose, is completed within that county.\\\"\\nThe \\\"object and purpose\\\" of the criminal act, as defined in Section 12-17-14, North Dakota Century Code, is the \\\"buying,\\\" \\\"selling,\\\" or \\\"in any manner procuring\\\" of a pretended right or title to land. What was said in the Robinson case is equally applicable in the instant case. If the crime charged was committed at all, it was accomplished by the grantor in the execution and delivery of the deed, and by the grantees in the payment of a consideration and the acceptance of that deed. These acts constitute the elements of the crime.\\nA careful examination of all evidence in the case does not affirmatively establish the commission of any of these elements of the alleged crime in Stutsman County. The most that may be said is that the evidence establishes the recording of the deed in Stutsman County, where the land is located, which is neither a crime in itself nor an element of the crime defined by Section 12-17-14, North Dakota Century Code. An Oklahoma case which, for all practical purposes, is identical to the one here before the eourt in facts and in the issues as they pertain to venue and jurisdiction, is Bray v. State, 35 Okl.Cr. 37, 247 P. 415. After citing the Oklahoma statute making it a misdemeanor to convey lands or tenements, or of any interest or estate therein, by any person not in possession and while subject to litigation, the court said:\\n\\\"From an inspection of this section of the statute, it is obvious that the taking of the conveyance under the conditions inhibited therein constitutes the offense. It is complete when the instrument of conveyance is executed and delivered. The subsequent placing on record of the conveyance is not made any part of the offense. So it follows that, when the deed of conveyance was executed and delivered in Oklahoma county, if the conditions forbidden by the statute then obtained, the offense was complete and the conveyance was in that county. The subsequent transmitting and recording of the instrument of conveyance in Pontotoc county did not give the court of that county jurisdiction of an offense committed in Oklahoma eounty. The Legislature has not attempted to confer jurisdiction for such an offense on the court of the county where the conveyance is recorded or where the land is situated, and under the section of the statute above quoted it is probably not in the power of the Legislature to invest such county with jurisdiction.\\\"\\nThe State having failed to sustain its burden of establishing that all elements of the crime alleged, or a part thereof, were committed in Stutsman County, the jurisdictional requirements for prosecution in that county are lacking. Upon such a determination, it is deemed unnecessary to consider any other specification of error enumerated in the appeal.\\nThe verdict of the County Court of Increased Jurisdiction of Stutsman County is set aside, with instructions to that court to dismiss the action as to each of the defendants.\\nBURKE, C. J., and ERICKSTAD and TEIGEN, JJ., concur.\\nSTRUTZ, J., did not participate, Honorable RAY R. FRIEDERICH, District Judge, sitting in his stead.\\nKNUDSON, J., not having been a member of this Court at the time of the submission of the case, did not participate.\"}"

nd/10802986.json

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+"{\"id\": \"10802986\", \"name\": \"Shirley CAMPBELL, Plaintiff and Appellant, v. WISHEK PUBLIC SCHOOL DISTRICT, LeRoy Burnstad, Alvin Buck, Eugene Wiest, Ben Woehl and John Frank, Individually and as members of the School Board of Wishek Public School District, Defendants and Third-Party Plaintiffs and Respondents, v. Leonard MOORE, Third-Party Defendant and Respondent\", \"name_abbreviation\": \"Campbell v. Wishek Public School District\", \"decision_date\": \"1967-03-30\", \"docket_number\": \"No. 8343\", \"first_page\": 840, \"last_page\": \"844\", \"citations\": \"150 N.W.2d 840\", \"volume\": \"150\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:45:27.550161+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUTZ, ERICKSTAD and KNUD-SON, JJ., concur.\", \"parties\": \"Shirley CAMPBELL, Plaintiff and Appellant, v. WISHEK PUBLIC SCHOOL DISTRICT, LeRoy Burnstad, Alvin Buck, Eugene Wiest, Ben Woehl and John Frank, Individually and as members of the School Board of Wishek Public School District, Defendants and Third-Party Plaintiffs and Respondents, v. Leonard MOORE, Third-Party Defendant and Respondent.\", \"head_matter\": \"Shirley CAMPBELL, Plaintiff and Appellant, v. WISHEK PUBLIC SCHOOL DISTRICT, LeRoy Burnstad, Alvin Buck, Eugene Wiest, Ben Woehl and John Frank, Individually and as members of the School Board of Wishek Public School District, Defendants and Third-Party Plaintiffs and Respondents, v. Leonard MOORE, Third-Party Defendant and Respondent.\\nNo. 8343.\\nSupreme Court of North Dakota.\\nMarch 30, 1967.\\nRehearing Denied June 2, 1967.\\nRausch & Chapman, Bismarck, for plaintiff and appellant.\\nKretschmar & Kretschmar, Ashley, for defendants, third-party plaintiffs and respondents.\", \"word_count\": \"2121\", \"char_count\": \"12688\", \"text\": \"TKIGEN, Chief Justice.\\nThis is an appeal from a judgment dismissing plaintiff's action for damages for alleged breach of her teacher's contract. The case was tried to the court without a jury. Trial de novo is demanded in this Court.\\nThe plaintiff brought this action for damages for alleged breach of contract to teach in the elementary school of the defendant school district. Each of the other defendants was a member of the school board of the defendant school district. The plaintiff also sought exemplary damages against the defendants, but the plaintiff advises in her brief that no appeal is taken from the judgment dismissing the plaintiff's cause of action for exemplary damages. For this reason this question will not be considered by us.\\nThe judgment dismissing the plaintiff's action was entered upon an order granting defendants' motion for a dismissal of the action made at the close of the plaintiff's case in chief. The trial court granted a motion to dismiss on the ground that the plaintiff had not established a prima facie case. The only evidence of record is that produced by the plaintiff and the cross-examination of the plaintiff and her witness. We will review the evidence to determine whether or not the plaintiff has established a prima facie case.\\n- The plaintiff and the defendant school district entered into a written contract in April of 1963, whereby the plaintiff was engaged to teach the fourth grade in the defendant school district. The plaintiff had .taught for three years previous in the district. The contract provided that the plaintiff was to teach for a term of nine months, beginning the first day of September 1963, for which services the school district agreed to pay her an annual salary of $4,150.00, payable in nine equal installments. Because the plaintiff was a married woman, the following provision was placed in the contract:\\nProvided further that in the event said teacher becomes pregnant, this contract may be terminated and cancelled by either party after the fourth month of pregnancy by giving written notice to the other.\\nThe plaintiff taught under this contract through January 28, 1964, and was paid through that date in accordance with the contract terms. In December 1963, the plaintiff advised the superintendent of the school in which she taught that she was pregnant. She asked him to inform the school board of this fact, and to request on her behalf that she be granted a leave of absence commencing January 31, 1964. She testified that she did not know whether she was in her fourth month of pregnancy at that time. Later the superintendent advised the plaintiff that he had taken her request to the school board at a board meeting, and that the board granted her request for a leave of absence commencing January 31, 1964. She also testified that under normal conditions her baby would have been born in May 1964, and she could not have returned during the term for which she was hired. However, she entered the hospital on the evening of January 28, 1964, and some time during that night a premature baby was born which weighed two pounds and four ounces. It lived only eight and one-half hours. The plaintiff was released from the hospital on February 6, 1964, and spent a week in her home convalescing. She testified that she then felt ready to return to teaching duties. She contacted the superintendent of the school and advised him that she would be ready to return about February 12 or 13. The superintendent called the plaintiff on February 12, 1964, and advised that he had attended a school board meeting the night before at which the school board had decided not to reinstate her. Under date of February 12, 1964, the clerk of the school board wrote the plaintiff a letter, a copy of which was introduced as an exhibit, in which he stated, in part:\\nAs you know, you advised the school board through Mr. Moore that you would be quitting teaching on January 31, 1964. Relying on that advice, the school board hired another teacher to teach the remainder of the school term. Therefore, they are unable to consider reinstating you for the remainder of the school term.\\nYou will recall that your contract provided that in the event you became pregnant, the school board could terminate your contract. Since you advised us that you were going to quit, any action on our part to terminate the contract is probably unnecessary. However, you may regard this letter as official notice that whatever rights you had under such contract are terminated because of your pregnancy.\\nOn February 18, 1964, the plaintiff sent written notice to the school board informing them that she stood ready and willing to fulfill her contract. At the invitation of the school board, plaintiff met with them on February 21, 1964. At this meeting they discussed her request for reinstatement, which was denied. The plaintiff continued to live in the community and did some substitute teaching in the defendant school district until the end of April 1964, when she moved with her family to the state of Montana. At the time of the trial she was living in New Mexico.\\nThe plaintiff testified that although the leave of absence which she requested was for no specified time, if things had gone normally her child would have been born in May 1964, which would not have permitted her to return to her teaching duties in the 1963-1964 term.\\nPlaintiff testified in support of her claim for damages that she had been paid between $200 and $300 for substitute teaching, the exact amount of which she could not recall; that, however, she had received total compensation from the school district in the amount of $2,647.83, and that the difference between that and the amount contracted for was $1,502.17, which is the amount of damages prayed for exclusive of exemplary damages. No proof was adduced in support of exemplary damages. Furthermore, we believe we should point out that our statute allowing recovery of exemplary damages is limited to a breach of an obligation not arising from contract. Section 32-03-07, N.D.C.C. Under statutes of this type exemplary damages are generally limited to recovery in an action growing out of a breach of contract permeated with tort, where the injured party elects to waive the contract and recover in tort. 22 Am.Jur.2d, Damages, Section 245. Here the plaintiff has not waived the contract.\\nThe record made by the plaintiff in this case we find establishes that a contract was entered into for a term of nine months, but the plaintiff carried out her duties under the contract through January 28, 1964, a period of about five months; that plaintiff became pregnant while the contract was in force and requested a leave of absence without pay on the assumption that she would have a normal pregnancy; that although at the time she requested the leave of absence she did not know when her child would be born, she later learned that if the pregnancy had been normal the child would be bom in May of 1964, and under those circumstances she could not have returned to her teaching duties during the contract year. The record establishes that the school board and the officers of the defendant school district granted the plaintiff's request for a leave of absence effective January 31, 1964, and hired another teacher to replace the plaintiff for the remainder of the school term.\\nDo these facts establish the plaintiff's claim ?\\nThe relationship between a teacher and the school district is purely contractual. Seher v. Woodlawn School District No. 26, 79 N.D. 818, 59 N.W.2d 805; Mootz v. Belyea, 60 N.D. 741, 236 N.W. 358, 75 A.L.R. 1347. In the absence of statutory provisions to the contrary, teacher contracts are governed by the same rules as ordinary contracts of employment. Section 9-07-01, N.D.C.C.; Seher v. Woodlawn School District No. 26, supra.\\nThe plaintiff's complaint alleges the contract, and that it contained the pregnancy clause. It also alleges that plaintiff became pregnant, and in December advised the superintendent of schools, who in turn informed the school board of this fact; that thereafter, on the 14th day of January 1964, the defendant school board met and granted the plaintiff a leave of absence during her pregnancy; that the board determined to hire another teacher during such leave of absence; and that they hired another teacher without the benefit of written contract, on a temporary basis. Plaintiff then alleges that she continued teaching until January 28, 1964, when she suffered a miscarriage, whereupon the substitute teacher was engaged to teach until February 17, 1964, when the plaintiff was to return to her position, but that between January 28, 1964, and February 17, 1964, the defendants, acting in concert and in an arbitrary and capricious manner and with wrongful intent to deprive the plaintiff of her contractual rights and confer the same upon the substitute teacher who was related by marriage to one of the members of the board, did attempt to declare the said plaintiff's contract terminated on the basis of the prior existing pregnancy. She also alleges that the defendant school board members were fully advised of the facts surrounding the alleged termination of the plaintiff's contract, and that each and every one acquiesced in and willfully became a party to the wrongful, capricious and arbitrary act, in addition to the usual allegations of ability and willingness to perform her duties under the contract. The defendants by their answer have admitted the contract, including the pregnancy clause; that the superintendent of schools informed them at the January 14, 1964 meeting of the school board that the plaintiff was pregnant and of her request for a leave of absence ; that the board granted the requested leave of absence due to pregnancy, which was for the balance of the 1963-1964 school year; and that the board hired a substitute teacher to teach in the plaintiff's position for the remainder of the school term. The defendants deny they had knowledge that the plaintiff suffered a miscarriage, or that they acted in concert in an arbitrary and capricious manner or with any wrongful intent. The burden of proof was on the plaintiff to establish the truth of her contentions as alleged. Goetz v. Merchants' Bank of Rugby, 23 N.D. 643, 138 N.W. 10. An examination of the record discloses that it is entirely devoid ' of proof that the substitute teacher was hired without the benefit of contract, on a temporary basis, and that an arrangement was made by the defendants to engage the substitute teacher to teach until February 17, 1964, when the plaintiff was to return to her position. There is no evidence that between the 28th day of January 1964 and the 17th day of February 1964 the defendants acted in concert or in an arbitrary and capricious manner or with wrongful intent to deprive the plaintiff of her contractual rights and to confer the same upon the substitute teacher, nor is there any evidence that the substitute teacher was related by marriage to one of the members of the school board. On the other hand, it appears to us that the evidence establishes that an oral agreement was made whereby the plaintiff was granted a leave of absence commencing on January 31, 1964, to continue for the duration of a normal pregnancy, which in accordance with plaintiff's testimony would not have terminated until the month of May 1964. There is no evidence nor does the plaintiff contend that a subsequent agreement was made. Rather it appears she requested a reinstatement and this was denied by the school board. It also appears that the plaintiff became pregnant either in September or October of 1963, and had been pregnant for a period of at least four months prior to February 12, 1964, when the defendant school board decided to terminate the teacher's contract under the pregnancy clause contained therein.\\nFor the reasons stated, we affirm the judgment of dismissal of the action.\\nSTRUTZ, ERICKSTAD and KNUD-SON, JJ., concur.\\nPAULSON, J., not being a member of the Court at the time of submission of this case, did not participate.\"}"

nd/10804811.json

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+"{\"id\": \"10804811\", \"name\": \"Grace KING, Plaintiff and Respondent, v. Freddy MENZ, Defendant and Appellant\", \"name_abbreviation\": \"King v. Menz\", \"decision_date\": \"1956-03-05\", \"docket_number\": \"No. 7522\", \"first_page\": 516, \"last_page\": \"522\", \"citations\": \"75 N.W.2d 516\", \"volume\": \"75\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:51:22.626394+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURKE, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur.\", \"parties\": \"Grace KING, Plaintiff and Respondent, v. Freddy MENZ, Defendant and Appellant.\", \"head_matter\": \"Grace KING, Plaintiff and Respondent, v. Freddy MENZ, Defendant and Appellant.\\nNo. 7522.\\nSupreme Court of North Dakota.\\nMarch 5, 1956.\\nRehearing Denied March 29, 1956.\\nLeslie R. Burgum, Atty. Gen., and T. H. H. Thoresen, Asst. Atty. Gen., for appellant and for the N. D. Unsatisfied Judgment Fund.\\nJ. K. Murray, Bismarck, for respondent.\", \"word_count\": \"2826\", \"char_count\": \"16321\", \"text\": \"GRIMSON, Judge.\\nOn August 27, 1954, an action was started by Miss Grace King against one, Freddy Menz. The complaint alleges that the defendant was a resident of Poplar, Montana; that he had never been a resident of North Dakota; that he was using the highways of North Dakota for the operation of an automobile; that while so driving and operating his automobile on May 29, 1954, in Sioux County, North Dakota, on Highway No. 21, the defendant, while under the influence of intoxicating liquor, operated his automobile in a grossly negligent manner; that he drove off the highway into a- ditch causing said automobile to roll over four or five times, inflicting serious injuries upon the plaintiff who was riding as k guest in 'his automobile. Plaintiff asks damages for such injuries.\\nNo service of this summons and complaint was made upon the defendant. It was admitted that he had left the state immediately afte'r the accident and never returned. On' August 31, 1954, service was admitted by the \\\"Attorney General of North Dakota, attorney for unsatisfied judgment fund for the State of North Dakota,\\\" and by the \\\"Highway Commissioner for the State of North Dakota.\\\" Upon that service the case was tried on its merits and judgment rendered for the plaintiff. An appeal is taken by the attorney general allegedly on behalf of the defendant and the unsatisfied judgment fund.\\nAt the opening of the hearing in this court a motion was made by the plaintiff to dismiss the appeal on the grounds that no statutory undertaking for costs on the appeal as required by Section 28-2709, NDRC 1943, had been served or filed. Plaintiff claimed the appeal was taken by the defendant. There is nothing in the record to show any authority for the attorney general to appear on behalf of Freddy Manz, the defendant, who was never served. It is clear, however, that this appeal was taken by the attorney general in a purely official capacity as attorney for the unsatisfied judgment fund and that no undertaking is necessary. Section 28-2719, NDRC 1943.\\nThe question immediately arises whether the admission of service of the summons and complaint by the attorney general and highway commissioner without any service on the defendant gave the district court jurisdiction to proceed in this matter. The question of jurisdiction should be investigated and. decided as soon as . it appears. If the court did'not have jurisdiction of the matters involved the proceeding would be in vain and the judgment a nullity. It is necessary, therefore, that every court should so far entertain a case as to determine whether it has jurisdiction. Schillerstrom v. Schillerstrom, 75 N.D. 667, 697, 32 N.W.2d 106, 2 A.L.R.2d 271. Every court of general jurisdiction has power to determine whether the conditions essential to its exercise of jurisdiction exist. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578.\\nIn Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909, 932, the court says: -\\n\\\"A challenge to the' jurisdiction of the trial court of the subject-matter of the action is proper at any time; and, without the question being urged by counsel. It is not only proper for this court, but if is its duty, to make all investigations necessary to satisfy itself in regard thereto with reasonable certainty. Pollard v. Wegener, 13 Wis. 569; Damp v. Town of Dane, 29 Wis. 419; Butler v. Wagner, 35 Wis. 54; Mathie v. McIntosh, 40 Wis. 120; Meyer v. Garthwaite, 92 Wis. 571, 66 N.W. 704; In re Klein, 95 Wis. 246, 70 N.W. 64; Burnham v. Norton, 100 Wis. 8, 75 N.W. 304, 12 Ency.Pl. & Pr. 187, 190:\\n\\\" 'When it appears that the court has no jurisdiction over the subject-matter of the suit, it will take notice of the defect whether objection is made or not, and will dismiss or stay proceedings ex mero motu, [Of ones own accord] and it is its duty to do so without determining any other matter involved in the litigation.' [Emphasis supplied.]\\n\\\"The instances are very rare where any court has ventured to invade this salutary doctrine for the purpose of saving a party from the consequences, however severe. It would be difficult to assign any justification for such an invasion that would leave it free from condemnation as an act of usurpation, as it goes to the question of power. A court is all-powerful within its jurisdiction, but is absolutely powerless in any legitimate sense when acting outside thereof.\\\"\\nJurisdiction relates to the power- of the court to hear and determine the matter in issue.\\n\\\"The 'subject-matter of a suit,' when reference is made to the questions of jurisdiction, means the nature of the cause of action, and the relief sought.\\\" Patterson Land Co. v. Lynn, 44 N.D. 251, 254, 175 N.W. 211, 212. To have jurisdiction the court must have the power to inquire into the facts, apply the law, and to determine and pronounce the judgment. Rasmusson v. Schmalenberger, 60 N.D. 527, 235 N.W. 496; Christenson v. Grandy, 46 N.D. 418, 426, 180 N.W. 18; Schillerstrom v. Schillerstrom, 75 N.D. 667, 698, 32 N.W.2d 106, 2 A.L.R.2d 271; 21 C.J.S., Courts, \\u00a7 23, p. 36. Baily on Jurisdiction, Section 4, p. 3.\\nThe first question to determine in this action is whether the court has any jurisdiction over the defendant.\\nThis is not an action that may be brought directly against the fund under Section 39-17031, 1953 Supp. NDRC 1943, when the identity of the person against whom an action for damages, resulting from the operation of a motor vehicle in this state might be brought, cannot be ascertained. The person claimed to have caused the damages in this case is known and made a defendant in this action. No service of the summons and complaint was made upon him. It appears that he was a non-resident but that does not mean that service on him can not be had. In 1935 our state legislature provided a manner of making service in cases of this kind. Section 1, Chapter 174, 1935 S.L., provides for service of a non-resident driver of a motor vehicle on the highways. It reads as follows:\\n\\\"The use and operation by a nonresident or his agent of a motor vehicle upon and over the highways of the State of North Dakota, shall be deemed an appointment by such nonresident of the Commissioner of Insurance of the State of North Dakota, [This was changed to 'Highway Commissioner' in Chapter 202 S.L.1951] to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him growing out of such use or operation of a motor vehicle over the highways of this'state, resulting in damages or loss to person or property, and said use or operation shall be a signification of his agreement that any such process in any action against him which is so served, shall be of the same legal force and validity as if served upon, him personally. Service of such process shall be made by serving a copy thereof upon the Commissioner of Insurance [Highway Commissioner] or by filing such copy in his office, together with payment of a fee of $2.00 and such service shall be sufficient service upon the said non-resident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by registered mail by the plaintiff to the defendant at his last known address and return card requested and that the plaintiff's affidavit of compliance with the provisions of this act are attached to the summons.\\\" (Emphasis supplied.)\\nThe revisers of the code in 1943 wrote-the first part of that section as Section 28-0611, NDRC 1943, with some changes in language and in their report to the 28th legislature made this explanation: \\\"This section has been divided for separate statements of distinct propositions and has been revised for clarity without change in meaning.\\\"\\nThe revisers wrote the latter part of that section which we have underlined, into a separate section, 28-0612, NDRC 1943, which has not been changed, reading as follows:\\n\\\"Within ten days after service of summons as provided in section 28- 0611, notice of such service together with a copy of the summons and complaint in the action shall be sent to the defendant at his last known address by registered mail with return receipt requested, and proof of such mailing shall be attached to the summons.\\\"\\nThe revisers' note on this section reads as follows:\\n\\\"This part of the section has been revised for clarity. Provision is also made for mailing a copy of the complaint as well as of the summons in order that the defendant may have a reasonable opportunity to know the nature of the case instituted against him.\\\"\\nThis court has repeatedly held that changes in punctuation and phraseology in codification do not affect the original meaning of the law. State v. Tjaden, N.D., 69 N.W.2d 272. In State ex rel. Kositzky v. Prater, 48 N.D. 1240, 1248, 189 N.W. 334, 337, this court says:\\n\\\"The general presumption obtains that the codifiers did not intend to change the law as it formerly existed, Braun v. State, 40 Tex.Cr.R. 236, 49 S.W. 620, 622; United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308. Changes made in the revision of statutes by alteration of the phraseology will not be regarded as altering the law unless there is a clear intent so to do. [Citing cases.] In ascertaining the intention of language used in a code revision, reference may be had to the prior statute for the purpose of ascertaining the legislative intent. Becklin v. Becklin, supra [99 Minn. 307, 109 N.W. 243]; Stevens v. [Dixfield & Mexico] Bridge Co., 115 Me. 402, 99 A. 94.\\\" See also Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W.2d 891; State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 864; Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 35 N.W.2d 137.\\nIt will be noted that the original provision provided that within ten days after the service on the commissioner a notice of such service and a copy of the \\\"process\\\" were to be sent by the plaintiff to the defendant by registered mail. That is the duty of the plaintiff in accordance with the general practice. Clearly the intent of that provision was to make service upon the defendant and to keep him advised of the charges made. The provision as revised by the code commission makes that even clearer in providing that a copy of \\\"the summons and complaint\\\" must be mailed which further carries out the same intention. The revisers left out the phrase \\\"by the plaintiff\\\" without any indication of a change in the meaning of the law. No one else was designated to mail the process. Since having service made on the defendant has always been the duty of the plaintiff' it follows that that statute as revised must be construed as a continuation of the existing statute. The duty to make the mailing as provided by the statute remained with the plaintiff.\\nThere is no showing in the record that any attempt was made by the plaintiff to get service upon the non-resident defendant in the manner provided by the statute. Instead the plaintiff seems to have tried to obtain jurisdiction in this matter under the provisions of the unsatisfied judgment law, Section 39-1704, 1953 Supp. NDRC 1943, which reads as follows:\\n\\\"The provisions of section 39-1703 [containing provisions for recovery from the fund] shall not apply in the case of any judgment entered by default, unless the state highway commissioner and the attorney general have been given at least thirty days notice prior to the entry of such judgment, to which notice shall be attached a copy of the summons and complaint. Upon receipt of such notice, the attorney general may enter an appearance, file a defense, appear by counsel at the trial or take such other action as he may deem appropriate on behalf and in the name of the defendant, and may thereupon, on behalf and in the name of the defendant, conduct his defense, and all acts done in accordance therewith shall be deemed to be acts of the defendant.\\\"\\nIt is clear that this provision applies only in a case where judgment might be obtained and collected out of the unsatisfied judgment fund. The provision for the appearance of the attorney general is only for the protection of the fund. It is his duty to see that no liability is created against the fund except by due legal proceedings and that no judgment be obtained by fraud or collusion. Section 39-1708, 1949 Supp. NDRC 1943, provides that any judgment obtained shall be assigned to the state treasurer \\\"for the use and benefit of said fund.\\\" To protect the fund in that regard there must have been service on the defendant. Until jurisdiction of the defendant has been obtained the state, as trustee of the unsatisfied judgment fund, has no interest in the matter. None of these duties of the attorney general can arise until legal service is had of the known defendant. It is only upon such service that Section 39-1704, 1953 Supp. NDRC 1943, provides for an appearance of the attorney general and then only to carry out his duties with regard to the unsatisfied judgment fund. He has no authority to appear for any other purpose. His appearance, therefore, in the case at bar did not give the court jurisdiction of the defendant.\\nNeither does the fact that the attorney general allegedly answered for the defendant nor that he signed the stipulation, \\\"that this action may be tried at the December term of the district court of Burleigh County,\\\" give jurisdiction over the defendant. The attorney general had no authority whatever from the defendant to appear for him. Jurisdiction cannot be obtained by stipulation and a judgment based thereon is void. Riebold v. Hartzell, 23 N.D. 264, 136 N.W. 247. Taylor v. Oulie, 55 N.D. 253, 212 N.W. 931.\\nFurthermore, it is no part of the duty of an attorney nor is it within his power as an attorney to admit service of a summons and complaint and thus confer jurisdiction over the defendant. To exercise such a power he would require a special authority from such defendant. Bradley v. Welch, 100 Mo. 258, 12 S.W. 911; Reed v. Reed, 19 S.C. 548. In Taylor v. Oulie, supra, this court held that an \\\"attorney cannot accept legal service of a summons without special authority.\\\"\\nThe record in this case shows that the court had no jurisdiction over the defendant.\\nIt further appears from the record that the court had no jurisdiction of the subject-matter so as to be able to render an effective judgment. \\\"In order for a court to have 'jurisdiction of the subject-matter,' the particular issue to be determined must be properly brought before it in the particular proceeding for determination.\\\" 21 C.J.S., Courts, \\u00a7 23, p. 37. See also Baily on Jurisdiction, Sec. 7, p. 8. The court must have power to deal with the subject involved and to enter judgment thereon. Bryan v. Miller, 73 N.D. 487, 16 N.W.2d 275.\\nThis is a damage action for injuries allegedly caused by the defendant while driving an automobile on the highways of the state. The failure to serve the defendant, the prompt service upon the highway commissioner and attorney general, the trial upon their appearance for the unsatisfied judgment fund, all indicate that the object of the action was to obtain a judgment which could be collected from the unsatisfied judgment fund of the state. In failing to get service on the defendant the plaintiff failed to bring that issue \\u2022 properly before the court so as to give it jurisdiction of the subject-matter and to enter judgment thereon.\\nThere being no service on the defendant the trial court had no jurisdiction to make any order in regard to the issue raised by the complaint. It had jurisdiction neither of the defendant nor of the subject-matter. The judgment issued under such circumstances is void.\\nSince the district court had no jurisdiction to render any judgment in the matter it is not proper for us to pass on the matters raised on the appeal.\\n- The case is remanded to the district court with directions to set aside the judgment and dismiss the action.\\nBURKE, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur.\"}"

nd/11120153.json

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+"{\"id\": \"11120153\", \"name\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael E. KELLER, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Michael E. Keller, Respondent\", \"name_abbreviation\": \"Disciplinary Board of the Supreme Court of the State of North Dakota v. Keller\", \"decision_date\": \"2001-03-28\", \"docket_number\": \"No. 20010068\", \"first_page\": 667, \"last_page\": \"668\", \"citations\": \"624 N.W.2d 667\", \"volume\": \"624\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T22:08:20.363454+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 8] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.\", \"parties\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael E. KELLER, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Michael E. Keller, Respondent.\", \"head_matter\": \"2001 ND 63\\nIn the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael E. KELLER, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Michael E. Keller, Respondent.\\nNo. 20010068.\\nSupreme Court of North Dakota.\\nMarch 28, 2001.\", \"word_count\": \"595\", \"char_count\": \"3728\", \"text\": \"INTERIM SUSPENSION ORDERED.\\nPER CURIAM.\\n[\\u00b6 1] On March 16, 2001, an Application for Interim Suspension of Michael E. Keller (Keller), a person admitted to the Bar of North Dakota, and supporting Affidavits with attached exhibits, were filed under Rule 3.4, North Dakota Rules for Lawyer Discipline (N.D.R. Lawyer Discipl.) by Loralyn K. Hegland, Assistant Disciplinary Counsel for the Disciplinary Board of the Supreme Court. The Affidavit indicates that complaints have been filed against Keller by clients who have not been informed that Keller's license to practice law was suspended, effective December 31, 2000, for noncompliance with rules regarding Continuing Legal Education as required by N.D.R. Lawyer Dis-cipl. 6.3.\\n[\\u00b6 2] On March 22, 2001, a .Supplemental Affidavit in Support of Application for Interim Suspension with attached exhibits was filed by Paul W. Jacobson, Disciplinary Counsel for the Disciplinary Board of the Supreme Court. The Supplemental Affidavit indicates that Keller was attorney in fact for the administration of seven quarters of land on behalf of Michael Moore and his three sisters. The Supplemental Affidavit further alleges that renters of two quarters had paid Keller $22,576 in 1999 and 2000 and taxes on the land of $15,677.98 for 1999 and 2000 are unpaid. The Supplemental Affidavit asserts that there is less than $1000 in the Michael Moore account leaving a substantial sum unaccounted for.\\n[\\u00b6 3] On March 28, 2001, Keller filed an Affidavit and Response to Application for Interim Suspension. Keller's Affidavit admits that he did not inform Gregary L. Atchley (Atchley) of Keller's suspension because he believed he could comply with the Continuing Legal Education requirements and be reinstated in a short time period, but found it was more difficult than expected. Keller asserts that he will immediately forward Atchley's file to him. Further, Keller's Affidavit admits that he did not inform Michael Moore (Moore) of his suspension because he did not perform legal work for Moore. Keller asserts that he will provide Moore with notice and forward his file to him within 10 days. Keller further asserts that he plans to close his office by mid-April 2001 and that he will be notifying his clients of his suspended status and make their files available to them within 10 days. Under these circum stances, Keller does not believe he presents a substantial threat of irreparable harm to the public.\\n[\\u00b6 4] The Application requests immediate suspension of Keller's certificate of admission to the Bar of North Dakota and appointment of a professional trustee under Rule 6.4, N.D.R. Lawyer Discipl. The Court considered the matter, and\\n[\\u00b65] ORDERED, Michael E. Keller's certificate of admission to the Bar of the State of North Dakota is suspended under Rule 3.4, N.D.R. Lawyer Discipl., effective immediately and until further order of this Court, pending disposition of the proceedings predicated upon the conduct giving rise to the Application.\\n[\\u00b6 6] FURTHER ORDERED, Assistant Disciplinary Counsel promptly apply to the presiding judge of the Northeast Central Judicial District for a professional trustee as provided in Rule 6.4 N.D.R. Lawyer Discipl.\\n[\\u00b6 7] Dated at Bismarck, N.D., this 28th day of March, 2001.\\n[\\u00b6 8] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.\"}"

nd/11514920.json

@@ -0,0 +1 @@
+"{\"id\": \"11514920\", \"name\": \"Donald HOPFAUF, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Sioux Falls Construction Company, Inc., Respondent\", \"name_abbreviation\": \"Hopfauf v. North Dakota Workers Compensation Bureau\", \"decision_date\": \"2000-05-11\", \"docket_number\": \"No. 990375\", \"first_page\": 60, \"last_page\": \"64\", \"citations\": \"610 N.W.2d 60\", \"volume\": \"610\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T20:58:33.802976+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 13] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.\", \"parties\": \"Donald HOPFAUF, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Sioux Falls Construction Company, Inc., Respondent.\", \"head_matter\": \"2000 ND 94\\nDonald HOPFAUF, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Sioux Falls Construction Company, Inc., Respondent.\\nNo. 990375.\\nSupreme Court of North Dakota.\\nMay 11, 2000.\\nRehearing Denied June 8, 2000.\\nStephen D. Little, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.\\nBrent J. Edison, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.\", \"word_count\": \"1615\", \"char_count\": \"10199\", \"text\": \"MARING, Justice.\\n[\\u00b6 1] Donald Hopfauf appealed a district court judgment affirming a North Dakota Workers Compensation Bureau order adopting an administrative law judge's recommended findings of fact, conclusions of law, and order affirming an earlier Bureau order on forfeiture of future benefits because of false statements. We affirm.\\n[\\u00b6 2] Hopfauf suffered a work-related injury to his neck and left shoulder in 1986. The Bureau accepted liability and paid Hopfauf total disability benefits. In responding to Bureau inquiries in 1995 and 1996, Hopfauf indicated he had not done any work. The Bureau received information Hopfauf was working, and learned he had an auction clerking license under the name \\\"Don's Clerking,\\\" which had been the clerk for 42 auctions.\\n[\\u00b6 3] The Bureau issued an order denying further benefits and ordering repayment of benefits. After a hearing, an administrative law judge found Hopfauf had made false statements when he. denied having performed any work, and issued an order. reversing the Bureau's order for repayment of benefits, but ordering forfeiture of future benefits. The Bureau adopted the ALJ's decision, and the district court affirmed. On appeal, this Court .recognized the ALJ found Hopfauf had made false statements, but noted the ALJ did not decide whether the false statements were made willfully as required by N.D.C.C. \\u00a7 65-05-33 to support repayment of benefits or forfeiture of future benefits. We reversed and remanded \\\"for a finding of whether Hopfauf 'willfully' made false statements to the Bureau.\\\" Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, \\u00b6 16, 575 N.W.2d 436.\\n[\\u00b6 4] After Hopfauf was decided, the Bureau's litigation counsel engaged in ex parte communications with Bureau decision makers and drafted additional findings of fact, conclusions of law, and order, and recommended their adoption by the Bureau. The Bureau issued the recommended additional findings, conclusions, and order on February. 25, 1998. Hopfauf appealed, and moved to amend the record to include evidence of - the Bureau's ex parte contacts with its litigation counsel. On October 20, 1998, the district court issued an order ruling \\\"the Bureau's ex parte communications . violated Section 28-32-12.2 of the North Dakota Century Code and deprived Hopfauf of procedural due process.\\\" ' The court reversed the Bureau's order and \\\"remandfed] with instructions to hear and consider evidence and arguments of counsel for both parties.\\\" There was no' appeal from that decision.\\n[\\u00b6 5] A hearing was held before Temporary Administrative Law Judge Daniel L. H'ovland (\\\"TALJ\\\"), who issued findings of fact, conclusions of law, and recommended order on January 7, 1999. The TALJ concluded, among other things, that Hop-fauf had willfully made material false statements. The TALJ's recommended order provided the Bureau's order \\\"dated March 7, 1996, shall be reversed as to the need for''repayment of the sum of $12,-642.00 for disability benefits paid in error\\\" and \\\"affirmed as to the forfeiture of any additional future workers' compensation benefits in connection with this claim.\\\" On January 19, 1999, the Bureau, issued an order adopting the TALJ's recommended findings, conclusions, and order as the Bureau's final order. The district court affirmed, and Hopfauf appealed to this Court.\\n[\\u00b6 6] Hopfauf stated a number of issues on appeal, although he recognized in his reply brief: \\\"The dispositive issue in this case remains: Does a preponderance of the evidence show- that Don Hopfauf willfully made material false statements about his employment status and willfully failed to report income.\\\"\\n[\\u00b6 7] Under N.D.C.C. \\u00a7 28-32-19 and 28-32-21, we affirm an administrative agency decision unless the agency's findings of fact are not supported by a preponderance of the evidence, its conclu sions of law are not supported by its findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violates the appellant's constitutional rights, or the agency's rules or procedures deprived the appellant of a fair hearing. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 38, \\u00b6 18, 606 N.W.2d 501. Our review of an agency's findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence in the record. Id. at \\u00b6 19. Questions of law are fully reviewable on appeal. Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, \\u00b68, 602 N.W.2d 704.\\n[\\u00b6 8] Under N.D.C.C. \\u00a7 65-05-33, a claimant who willfully makes a false statement or who receives disability benefits and willfully fails to notify the Bureau of work or income from work must reimburse the Bureau for benefits paid, based upon the false statement, and forfeits any additional benefits relative to that injury. Section 65-05-33, N.D.C.C., was intended to create a penalty for anyone accepting benefits for a period of time in which that person was actually working. Hayden v. North Dakota Workers Comp. Bureau, 447 N.W.2d 489, 496 (N.D.1989). \\\"To trigger the statutory consequences, a false statement must be intentional, not inadvertent, and material, not peripheral.\\\" F.O.E. Aerie 2337 v. North Dakota Workers Comp. Bureau, 464 N.W.2d 197, 201 (N.D.1990). Once the Bureau proves a false statement has been made, it must then prove the false statement was made intentionally. Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, \\u00b6 14, 572 N.W.2d 426. \\\"The Bureau must prove the claimant's state of mind was purposeful in making the false statement.\\\" Id. \\\"A state of mind can rarely be proven directly and must usually be inferred from conduct and circumstantial evidence.\\\" Dean v. North Dakota Workers Comp. Bureau, 1997 ND 165, \\u00b6 20, 567 N.W.2d 626. \\\"If the Bureau is seeking reimbursement for benefits paid, materiality requires the Bureau to prove the false claim or false statement caused the benefits to be paid in error.\\\" Hausauer, at \\u00b6 17. \\\"If the Bureau is seeking forfeiture of future benefits, a false claim or false statement is sufficiently material if it is a statement which could have misled the Bureau or medical experts in a determination of the claim.\\\" Id. at \\u00b6 18.\\n[\\u00b6 9] In remanding in Hopfauf, our concern was whether Hopfaufs false statements were willful. The TALJ found Hop-fauf had made statements to the Bureau that he had not performed any work, whether on a part-time, full-time, or voluntary basis, had not returned to work, and was not self-employed. The TALJ found Hopfaufs testimony he \\\"had served as an auctioneer on 3 or 4 occasions\\\" while substituting \\\"for approximately 2-3 minutes,\\\" was contradicted by the testimony of other witnesses. The TALJ concluded:\\nIt is undisputed that the claimant participated in approximately 35 auctions in 1994-1995. His participation in such auctions included providing services as an auctioneer and as a ringman. There is considerable dispute and controversy about the nature and extent of the claimant's involvement as an auctioneer and ringman. However, the most objective and reliable evidence clearly reveals that the claimant's participation in such activities was more than recreational amusement and merriment. There was credible evidence presented that the claimant served as an auctioneer for considerable lengths of time at various auctions.\\nThe TALJ concluded Hopfaufs testimony was not credible and was inconsistent with more reliable evidence presented by other witnesses. The TALJ concluded Hopfauf willfully made material false statements:\\nThe greater weight of the evidence establishes that the claimant did make false claims or false statements to the Bureau and that such false statements were made willfully and intentionally. Further, the false statements!'attributable to the claimant were sufficiently material to support a forfeiture of future benefits.\\n[\\u00b6 10] There is substantial evidence about the nature and extent of Hopfauf s work activities as an auctioneer and auction ririgman, from which a reasoning mind could reasonably find, as the Bureau did, that Hopfauf made false statements purposefully, intentionally, not inadvertently, ie., willfully. We conclude a reasoning mind reasonably could have determined the Bureau's findings were proven by the weight of the evidence in the record. The false statements were material with regard to future benefits in connection with the injury for which Hopfauf received disability benefits, as they could have misled the Bureau in a determination of the claim.\\n[\\u00b6 11] We need not decide other issues Hopfauf has attempted to raise in this appeal. Hopfauf conceded notice and constitutional issues raised in this appeal could have been raised in his earlier appeal. \\\"Questions that could have been raised in a previous appeal will not be examined.\\\" Siewert, 2000 ND 33, \\u00b6 33, 606 N.W.2d 501. See also Tom Beuchler Constr. Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987) (\\\"Rather, the law of the case encompasses not only those issues decided on the first appeal, but also those issues decided by the trial court prior to the first appeal which were not presented -for review at the first appeal.\\\"). With regard to the Bureau's ex parte communications with its litigation counsel, the district court provided a remedy \\u2014 a remand to the Bureau \\\"with instructions to hear and consider evidence and arguments\\\"' \\u2014 -which Hopfauf did not appeal.\\n[\\u00b6 12] The district court's judgment affirming the Bureau's order of January 19, 1999, is affirmed.\\n[\\u00b6 13] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.\\n[\\u00b6 14] The Honorable CAROL . RONNING KAPSNER, J., disqualified herself subsequent to oral argument and did not participate in this decision.\"}"

nd/11657421.json

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+"{\"id\": \"11657421\", \"name\": \"Ernest LANG, Plaintiff and Appellant, v. Governor Edward T. SCHAFER, Defendant and Appellee\", \"name_abbreviation\": \"Lang v. Schafer\", \"decision_date\": \"2000-01-05\", \"docket_number\": \"No. 990117\", \"first_page\": 904, \"last_page\": \"906\", \"citations\": \"603 N.W.2d 904\", \"volume\": \"603\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:56:32.050964+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 11] DALE V. SANDSTROM, MARY MUEHLEN MARING, JJ., RONALD L. HILDEN, D.J., GORDON O. HOBERG, S.J., concur.\", \"parties\": \"Ernest LANG, Plaintiff and Appellant, v. Governor Edward T. SCHAFER, Defendant and Appellee,\", \"head_matter\": \"2000 ND 2\\nErnest LANG, Plaintiff and Appellant, v. Governor Edward T. SCHAFER, Defendant and Appellee,\\nNo. 990117.\\nSupreme Court of North Dakota.\\nJan. 5, 2000.\\nErnest Lang, McKenzie, N.D. Pro se.\\nDouglas A. Bahr, Assistant Attorney General, Bismarck, N.D., for defendant and appellee.\", \"word_count\": \"1115\", \"char_count\": \"6794\", \"text\": \"VANDE WALLE, Chief Justice.\\n[\\u00b6 1] Ernest Lang appealed from a judgment dismissing with prejudice his fraud action against Governor Edward Schafer. Because Lang seeks no money damages from Schafer, we conclude the trial court properly dismissed Lang's fraud action for failure to state a claim upon which relief can be granted. We affirm.\\n[\\u00b6 2] In October 1998, Lang brought this action, claiming Schafer had committed fraud as defined in N.D.C.C. \\u00a7 9-03-08(3). Lang alleged in his complaint Schafer and Banking Commissioner Gary Preszler were at a meeting where Lang \\\"proffered evidence of the unusual, fraudulent procedures that the Bank of Steele had implemented in their creation of funds.\\\" Lang further alleged, \\\"after viewing the exhibits depicting fraud, both the Banking Commissioner and the Governor have remained completely mute.\\\" Lang asserted Preszler was guilty of fraud because he has taken no action to address Lang's \\\"exhibits depicting fraud.\\\" Lang asserted Schafer is guilty of fraud because the Governor appoints the Banking Commissioner and failed his duty to compel the Banking Commissioner to do his duty. Lang requested that judgment be entered against Schafer for fraud, but Lang did not specifically request any damages.\\n[\\u00b6 3] Schafer moved for judgment of dismissal on the pleadings under N.D.R.Civ.P. 12(b)(i) and (v). Schafer argued the court lacked subject matter jurisdiction because Lang failed to present written notification of his claim against Schafer to the Office of Management and Budget as required by N.D.C.C. \\u00a7 32-12.2-04. Schafer further argued the complaint failed to state a claim upon which relief could be granted because Lang did not plead with particularity the necessary elements constituting fraud. The trial court agreed with Schafer, and entered judgment dismissing the action with prejudice for lack of subject matter jurisdiction and on the alternative ground of failure.to state a claim upon which relief can be granted.\\n[\\u00b6 4] The notice-of-claim requirements of N.D.C.C. \\u00a7 32-12.2-04 implicate a court's subject matter jurisdiction. Earnest v. Garcia, 1999 ND 196, \\u00b6 7, 601 N.W.2d 260. However, the notice requirement applies only to persons \\\"bringing a claim against the state or a state employee for an injury.... \\\" N.D.C.C. \\u00a7 32-12.2-04(1). A \\\"claim,\\\" for purposes of the chapter governing claims against the state, is specifically defined as \\\"any claim for money damages....\\\" N.D.C.C. \\u00a732-12.2-01(1). Although Schafer was uncertain at the time he made his motion to dismiss in the trial court whether Lang actually sought money damages, it is now clear through subsequent briefing and pleadings that Lang does not seek money damages. Schafer now concedes, and we conclude, N.D.C.C. \\u00a7 32-12.2-04 does not apply and the trial court had subject matter jurisdiction in this case.\\n[\\u00b6 5] Schafer contends the judgment should be affirmed on the trial court's alternative ground of failure to state a claim upon which relief can be granted. Lang argues once the trial court ruled it had no subject matter jurisdiction, the court had no power or authority to further decide and dismiss with prejudice the case on the merits. Lang asserts his fraud action against Schafer should therefore be remanded for further proceedings.\\n[\\u00b6 6] This Court has held that once a trial court determines it does not have personal jurisdiction over a defendant, the court is without the power or authority to rule on the defendant's alternative motion for dismissal on the merits, and must dismiss the case without prejudice. See Western Life Trust v. State, 536 N.W.2d 709, 712 (N.D.1995); Bickel v. Jackson, 530 N.W.2d 318, 321 (N.D.1995); Moon v. Moon, 499 N.W.2d 597, 602 (N.D.1993); Smith v. City of Grand Forks, 478 N.W.2d 370, 373 (N.D.1991). However, the cited cases are distinguishable from this case, because in those cases the courts had no personal jurisdiction to proceed further. In this case, although the trial court ruled it had no jurisdiction on the mistaken assumption Lang sought money damages from Shafer, Lang has since clarified that he seeks no money damages. Therefore, the trial court did have subject matter jurisdiction and the power and authority to rule on Schafer's alternative motion for dismissal under N.D.R.Civ.P. 12(b)(v).\\n[\\u00b6 7] A motion for judgment on the pleadings under N.D.R.Civ.P. 12(b)(v) should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted. See Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763, 765 (N.D.1980). When reviewing the motion, the court must construe the complaint in the light most favorable to the plaintiff and the allegations of the complaint must be taken as true. See Lang v. Bank of Steele, 415 N.W.2d 787, 790 (N.D.1987).\\n[\\u00b6 8] Lang does not seek money damages or claim any type of injury resulted from Schafer's alleged fraudulent act. Rather, Lang seeks only \\\"a 'sigh of relief that he would express with a court[']s finding that, by remaining mute, the governor has suppressed his knowledge of the fraud that the Bank of Steele has committed.\\\" . However, in North Dakota proof of actual damage proximately caused by a misrepresentation or nondisclosure is an essential element of a tort action for fraud and deceit. See Schneider v. Schaaf, 1999 ND 235, \\u00b6 16, 603 N.W.2d 869; Eckmann v. Northwestern Federal Sav. & Loan Ass'n, 436 N.W.2d 258, 260 (N.D.1989); Olson v. Fraase, 421 N.W.2d 820, 827 (N.D.1988). A fraud or deceit which has caused no injury cannot be made the basis for an action, because courts do not \\\" 'sit for the purpose of enforcing moral obligations or correcting unconscientious acts which are followed by no loss or injury.' \\\" Sonnesyn v. Akin, 14 N.D. 248, 256, 104 N.W. 1026, 1028 (1905) (citation omitted). The relief sought by Lang in this case is tantamount to an advisory opinion, which courts cannot render. See Nord v. Herman, 1998 ND 91, \\u00b6 12, 577 N.W.2d 782.\\n[\\u00b6 9] Viewing the complaint in the light most favorable to Lang, we conclude the trial court properly dismissed his action with prejudice for failure to state a claim upon which relief can be granted, because Lang failed to allege an element essential to sustain his fraud action.\\n[\\u00b6 10] The judgment is affirmed.\\n[\\u00b6 11] DALE V. SANDSTROM, MARY MUEHLEN MARING, JJ., RONALD L. HILDEN, D.J., GORDON O. HOBERG, S.J., concur.\\n[\\u00b6 12] RONALD L. HILDEN, D. J., and GORDON O. HOBERG, S. J., sitting in place of NEUMANN, J., and KAPSNER, J., disqualified.\"}"

nd/11665171.json

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+"{\"id\": \"11665171\", \"name\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST the Honorable Randall L. HOFFMAN, Judge of the District Court. Judicial Conduct Commission, Petitioner, v. Randall L. Hoffman, Respondent\", \"name_abbreviation\": \"Judicial Conduct Commission v. Hoffman\", \"decision_date\": \"1999-07-07\", \"docket_number\": \"Nos. 990060-990063\", \"first_page\": 592, \"last_page\": \"601\", \"citations\": \"595 N.W.2d 592\", \"volume\": \"595\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T19:58:39.155223+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 27] VANDE WALLE, C.J., and MARING, NEUMANN, and KAPSNER,, JJ., concur.\", \"parties\": \"In the Matter of the Application for DISCIPLINARY ACTION AGAINST the Honorable Randall L. HOFFMAN, Judge of the District Court. Judicial Conduct Commission, Petitioner, v. Randall L. Hoffman, Respondent.\", \"head_matter\": \"1999 ND 122\\nIn the Matter of the Application for DISCIPLINARY ACTION AGAINST the Honorable Randall L. HOFFMAN, Judge of the District Court. Judicial Conduct Commission, Petitioner, v. Randall L. Hoffman, Respondent.\\nNos. 990060-990063.\\nSupreme Court of North Dakota.\\nJuly 7, 1999.\\nPaul W. Jacobson, Assistant Disciplinary Counsel, Bismarck, for petitioner.\\nRandall L. Hoffman, Jamestown, respondent.\", \"word_count\": \"4995\", \"char_count\": \"29910\", \"text\": \"PER CURIAM.\\n[\\u00b6 1] This is a disciplinary proceeding against Randall L. Hoffman, former district court judge. We conclude Hoffman violated the North Dakota Code of Judicial Conduct. We impose a disciplinary suspension and a condition for reinstatement.\\n[\\u00b6 2] Randall and Wanda Hoffman married in 1975. They had two children. Randall was elected a district judge in 1994. When Randall and Wanda Hoffman were divorced in 1996, the Honorable Kirk Smith presided over the proceedings. The divorce judgment entered on November 22, 1996, decreed a divorce, awarded Wanda Hoffman the family home, divided the parties' other marital assets and debts, awarded them joint legal custody of the minor children, with physical custody to Wanda Hoffman and visitation rights to him, and ordered him to pay child support.\\n[\\u00b6 3] Conduct by Randall Hoffman (\\\"Hoffman\\\") after his divorce ultimately led to disciplinary proceedings against him. This Court rejected an affidavit of consent and agreement and remanded the matter \\\"for consideration of all charges and consideration of the apparent pattern of conduct reflected by all charges\\\" on September 23, 1998. Four members of the Judicial Conduct Commission were appointed to serve as a hearing panel. The hearing panel conducted a hearing on January 7, 1999. After a meeting on January 28, 1999, the hearing panel issued findings of fact, conclusions of law, and a recommendation. In its findings of fact, the hearing panel reported clear and convincing evidence established the following facts:\\nII.\\nJudge Hoffman was divorced from Wanda Hoffman [hereinafter Wanda], with the Judgment and Decree entered on November 22,. 1996, in Stutsman County Case No. 96-C-238. The judge in the divorce case was the Honorable Kirk Smith. Thereafter, Judge Hoffman embarked upon a course of conduct marked by harassment, stalking, and abusive conduct towards Wanda and disrespect for courts.\\nIII.\\nThe course of conduct referenced in paragraph II, above, consisted of the following:\\n(a) Letters and messages to Wanda with name-calling, and threats of actions against her for civil or criminal contempt and theft of property or conversion....\\n(b) A public encounter with Wanda at the golf course in Jamestown wherein he used obscene gestures and words.\\n(c) Sitting in a vehicle outside Wanda's home for extended periods of time, sometimes after midnight.\\n(e) Entering Wanda's home and the home of her friend Doug Wahl uninvited, including at least the following instances:\\n(1) On or about March 29, 1997, when Wanda encountered Judge Hoffman in the garage of her home. In the ensuing confrontation, Judge Hoffman caused physical injury to Wanda....\\n(2) On or about June 4, 1997, in the early hours of the morning, Judge Hoffman entered the garage of Wanda's home.\\n(3) On or about August 31, 1997, Judge Hoffman entered the home of Doug Wahl, to which he had never been invited, in the early hours of the morning, and called to Wahl and Wanda in the darkened room, \\\"I see you fucking people in there.\\\" The ensuing confrontation led to a Dual Protection Order against both Judge Hoffman and Wanda.\\nIV.\\nThe hearing, which resulted in the Dual Protection Order, was heard by the Honorable Donald L. Jorgensen on September 30, 1997. At hearing, Judge Hoffman demonstrated his disrespect for the Judgment and Decree, of Judge Smith, entered on November 22, 1996, which he characterizes as Judge Smith's \\\"fiasco\\\" and \\\"Judge Smith's bullshit.\\\" Additionally, at the hearing on September 30, 1997, Judge Hoffman demonstrated his disrespect for the Court in which he was appearing, and challenged the Court's authority by his outbursts and objections though represented by counsel.\\nV.\\nJill M. Quarstad, formerly Christian-son, appeared before Judge Hoffman on or about May 5, 1998, as a witness in a Class B misdemeanor harassment case wherein the defendant had been charged with making some 110 telephone calls to her. Though not relevant to the case, Judge Hoffman suggested a theory of self-defense and informed Christianson that she had an affirmative duty to facilitate a psychological relationship between the noncustodial parent and the child, and that Christianson is guilty of criminal contempt if she does not do that. Judge Hoffman inserted his personal situation and arguments as a noncustodial parent into the proceedings, and demonstrated a lack of dignity and courtesy to those appearing before him.\\nVII.\\nOn or about March 23, 1998, Peter J. Koble appeared before Judge Hoffman on a Class C felony charge, violation of a protection order, regarding contacts with Lisa Koble. Judge Hoffman presented himself in the proceedings as reporting violation by Lisa Koble to law enforcement as well, as there was a dual protection order. Judge Hoffman's conduct was colored by his own situation and arguments regarding his dual protection order, and criminal charges against him wherein he, but not Wanda Hoffman, was charged.\\nVIII.\\nJudge Hoffman has failed to recognize or admit any responsibility for most of his actions.\\n[\\u00b6 4] The hearing panel concluded Hoffman violated the provisions of Canon 2A, Canon 3B(4), Canon 3B(5), Canon 3E(1), and Canon 4A of the North Dakota Code of Judicial Conduct. The hearing panel concluded Hoffman's violations were willful. The hearing panel recommended \\\"that Judge Randall L. Hoffman be suspended for a period of six months and that he is to attend and participate in an anger management program.\\\"\\n[\\u00b6 5] \\\"We are empowered under N.D.C.C. \\u00a7 27-23-03(3), on the Commission's recommendation, to censure or remove a judge for a willful violation of the Rules of Judicial Conduct.\\\" Disciplinary Action Against Grenz, 534 N.W.2d 816, 817 (N.D.1995). \\\"We review the Commission's findings and recommendations de novo on the record.\\\" Id. at 817-18. We accord due weight to the hearing body's findings, because it had the opportunity to observe the demeanor of the witnesses. Id. at 818. \\\"Before a judge may be censured or removed, the charges must be established by clear and convincing evidence.\\\" Id. at 818. \\\"The term 'willfully,' when used in disciplinary proceedings, means acts that were the performer's free will and were not done under coercion.\\\" Judicial Qualifications Comm. v. Schirado, 364 N.W.2d 50, 52 n. 3 (N.D.1985).\\n[\\u00b6 6] At oral argument, Hoffman admitted he violated the Code of Judicial Conduct, but not to the extent or in the manner alleged. He said he used language for which a public censure would be an appropriate sanction. Hoffman also said he was angry, which is normal in a divorce, and he is only human. However, judges are held to a higher standard than others:\\n[Jjudges must be and are held to higher standards than laymen. Judges hold a unique position of administering justice. They symbolize the law and justice and, consequently, their action and behavior will reflect favorably or unfavorably on the integrity of the judiciary and the high respect required in the administration of justice.\\nMatter of Cieminski, 270 N.W.2d 321, 327 (N.D.1978).\\n[\\u00b6 7] In his brief, Hoffman contends the heading of the hearing panel's findings, conclusions, and recommendation states he is a judge of the county court, when he is a judge of the district court. The offices of judge of the county court in each county were abolished on January 1, 1995, and district court judgeships equal to the lesser of the number of county judges serving on January 1, 1991, or January 1, 1994, were established on January 2, 1995. 1991 N.D. Sess. Laws ch. 326, \\u00a7 1. The designation in the caption of the hearing panel's findings, conclusions, and recommendation is mistaken, but irrelevant to any issue in this case, and we will not further address it.\\n[\\u00b6 8] Hoffman objects to the hearing panel's second finding of fact for several reasons, stating in part:\\nThe Counsel alleged and the Hearing Panel found that after the divorce I \\\"embarked upon a course of conduct marked by harassment, stalking, and abusive conduct towards Wanda and disrespect for the courts.\\\" . Harassment and stalking are crimes. See 12.1-17-07; 12.1-17-07.1 NDCC. If my actions consisted of a pattern of misconduct, specifically harassment, stalking, then I should be accused with committing acts consisting of the elements of these crimes....\\nI object to the use of the term, \\\"marked by\\\" instead of using the term, \\\"consisting\\\".... If my specific conduct is such that there is a pattern of improper activity, then I will accept the discipline . I do not willingly accept the discipline of a course of conduct marked by harassment and stalking unless my specific conduct constitutes the elements of these crimes.\\nI specifically object to the use of the term \\\"stalking\\\".\\nI object to the use of this entire paragraph, as alleged and found, as the paragraph stands alone with no definitions or alleged specific misconduct.... The reality of my present situation is that the accusations are nonsense. When I was back on the farm in central North Dakota, for longer than I have been an attorney, cattle ranchers had another name [for] this kind of stuff.\\n[\\u00b6 9] Whether or not any of Hoffman's conduct was criminal is irrelevant. \\\"Disciplinary proceedings are neither civil nor criminal. Their aim is to maintain the honor and dignity of the judiciary and the proper administration of justice.\\\" Matter of Cieminski 270 N.W.2d 321, 326 (N.D.1978). The relevant question is whether or not Hoffman violated the Code of Judicial Conduct. Further, whether Hoffman's post-divorce \\\"course of conduct\\\" was \\\"marked by\\\" (as found by the hearing panel) or \\\"consisting\\\" of (as argued by Hoffman) \\\"harassment, stalking, and abusive conduct,\\\" is a matter of no moment.\\n[\\u00b6 10] Hoffman addressed the hearing panel's findings about his conduct at Wanda Hoffman's home, Doug Wahl's home, and the Jamestown golf course in his brief: (1) \\\"I admit that I acted with free will and without extreme coercion in sending letters and messages to Wanda with name calling and threats of actions against her for civil or criminal contempt and theft of property or conversion\\\" about the Grand Am car my daughter drove; (2) \\\"The name calling went both ways and was similar in content\\\"; (3) Hoffman admitted using ob scene gestures and words in an encounter with Wanda Hoffman at the golf course in Jamestown, but took \\\"exception to the failure to find that the only persons present were Wanda, myself, Doug Wahl, and Dwight Kendall who is a cousin of Wahl's and friend of mine\\\"; (4) In addressing the hearing panel's finding he sat \\\"outside Wanda's home for extended periods of time, sometimes after midnight,\\\" Hoffman asserted \\\"There is nothing in the record to show specific times and dates or number of occasions.[ ] This is hardly clear and convincing evidence.... Wanda never said she was frightened, intimidated or experienced mental anguish\\\"; (5) Hoffman asserted he owned the car driven by his daughter and \\\"had a right to be there to retrieve my vehicle,\\\" on an occasion'early on June 4, 1997, when a police officer was dispatched to Wanda Hoffman's home; (6) \\\"The Hearing Panel found that on March 29 th, 1997, I encountered Wanda in her garage and I caused physical injury to Wanda.... There is nothing regarding intent. There is nothing whether I caused the injury intentionally, knowingly, recklessly, negligently, or willfully\\\"; (7) \\\"I will admit that I negligently contributed to causing physical injury to Wanda. I admit that my contributory negligence was less than 50 percent.... It is unreasonable to sanction a judge for negligent conduct\\\"; (8) If the incident resulting in Wanda Hoffman's injury \\\"could be judged as misconduct, then there is insufficient clear and convincing evidence that I caused her injury. This whole problem comes from the divorce decree\\\"; and (9) With regard to the hearing panel's finding that on August 31, 1997, Hoffman entered the home of Doug Wahl without invitatipn, and \\\"called to Wahl and Wanda in the darkened room, T see you fucking people in there,' \\\" Hoffman said, \\\"I admit to the language used. I do not admit that I violated the code by any other conduct. I did not enter the home.... Wahl has been saying from the beginning that I opened the door. I did not.\\\"\\n[\\u00b6 11] The record of this matter indicates Wanda Hoffman testified she found a note from Hoffman on the cupboard in her house at a time when Hoffman was not living there, had not been invited into the house, and had been told \\\"not to come into the house unless he was invited.\\\" Wanda Hoffman testified that in August 1997, at the golf course in Jamestown, Hoffman had \\\"come right up to me and put his middle finger up, and 'fuck you' is what he said to me,\\\" and Hoffman's hand \\\"was not very far. Couple feet, maybe,\\\" away from her face. Wanda Hoffman testified Hoffman later \\\"stopped and he watched us, and I remember as we were going from the men's tee box to the lady's tee box, I looked at him and he was sitting in his car with his middle finger up at us, and then he left.\\\" Doug Wahl and Dwight Kendall corroborated Wanda Hoffman's testimony about the incidents at the golf course.\\n[\\u00b6 12] Wanda Hoffman testified, \\\"Randall would kind of go in spurts where he would decide that he wanted the car back\\\" that his daughter was driving. Wanda Hoffman testified about one instance when Hoffman came to get the car:\\n[H]e come over to the house once again to get the car. I met him in the garage, I stood between him and the car, and I said to him, Why do you keep doing this? What is it that we have to do to get this straightened out that you are going to leave us alone with this car? I'm making the payments, everything is up to date.\\nHe grabbed me at that point by the shirt that I was wearing. He proceeded to push me into the wall of the garage, which is right next to the door that goes into the house. When I hit the wall, . [my daughter] come to the door, she opened the door \\u2014 the storm door....\\nRandall had let go of my shirt, and when I started to move sideways to go into the house, he gave me a big push. I hit the storm door that was open with my leg, with the top of my leg.... The injury that I received that \\u2014 it was an injury to my left leg, upper leg, and he left at that time.\\nDisciplinary Counsel introduced a photograph of a resulting bruise to Wanda Hoffman's leg. Wanda Hoffman testified Hoffman \\\"would come to the house, he would open the walk-through door of the garage, turn on the light, look to see if the car was there, and then he would go back to his car.\\\" Wanda Hoffman testified that, on another occasion, \\\"Randall had been in my garage during the night and put a Club on the car [that our daughter drove] from the brake to the steering wheel . as it was sitting in the garage.\\\" Wanda Hoffman also testified that, on other occasions, Hoffman \\\"would drive by my house.\\\"\\n[\\u00b6 13] Wanda Hoffman testified about an incident when Hoffman came to Doug Wahl's house on August 31, 1997, at about 12:30 a.m.:\\nA. Yes, yes. We'd only been there for about ten minutes when the pounding started on the door.\\nQ. Okay. What did you and Doug do after you heard pounding on the door of the house?\\nA. I remember saying to Doug \\u2014 you know, it was like we could hear this, the dog started barking, you know, we got up and we turned the TV off, we turned the fan off, and it was just a continuous pounding on the door. The dog was barking, pounding on the door, and I remember saying to Doug, [i]t's probably Randall. He's been at it here again tonight, phone calling....\\nA. We went downstairs to the kitchen, standing, looking out the window. It looks out to the street, and you could very well see at that point that it was Randall's _ car.... Pretty soon you could hear somebody saying something to the effect of, I can see you fuckers in there, something in that order. So the doors were open for him to be able to see that we were even in there. He threw a letter in the door, told Doug to give it to me \\u2014 I don't remember what his exact, words were, \\\"fucking bitch.\\\"\\nA. Yes. He threw the letter in the door and turned around to leave or, you know, started leaving after throwing this letter in and saying what he said. Doug and I followed him out....\\nI remember Doug using \\u2014 we opened the garage door, which he had shut, and when we opened the garage door and stepped outside, Randall was walking away, but he turned around, and he looked at Doug and he said, \\\"I've been waiting for this,\\\" and he come at Doug, and Doug was standing there and he put his arms up and stopped him from getting to him, and they started wrestling around.\\nWanda Hoffman sought a restraining order against Hoffman after that incident.\\n[\\u00b6 14] Doug Wahl also testified about the August 31, 1997, incident at his home:\\nA.... I heard his voice come from my door over \\u2014 my walk-in door to the house . was open and he swore or said he could see us.\\nQ. Do you recall the words that he used?\\nA. I believe he said \\\"you fucking son of a bitches.\\\" I went to the door and opened the door all the way, and he threw a letter of some sort in my face and said to give that to fucking Wanda, and he turned to leave and I followed him out the door, and . he turned and said, \\\"I've been waiting for this,\\\" and threw a punch at me, which I blocked, and we started to scuffle.\\nWahl testified he had never invited Hoffman to his home before or on that night.\\n[\\u00b6 15] Hoffman's limited admissions concerning his conduct at Wanda Hoffman's home, the Jamestown golf course, and Doug Wahl's home do not begin to address the serious nature of his misconduct. Hoffman does not seem to recognize that, regardless of his ownership of the car his daughter was driving, and whether he intended to injure Wanda Hoffman, he should not have been entering Wanda Hoffman's garage to check on the presence or absence of the car, entering Wanda Hoffman's house to leave messages, accosting Wanda Hoffman and making obscene gestures to her, parking outside her house, appearing uninvited at Doug Wahl's home to leave a letter for Wanda Hoffman, or engaging in a physical altercation with Doug Wahl. The evidence clearly and convincingly establishes Hoffman violated Canon 2A and Canon 4A of the Code of Judicial Conduct.\\n[\\u00b6 16] In his brief, Hoffman addressed the September 30, 1997, protection order hearing before Judge Jorgensen, admitting he had characterized Ms November 22, 1997, divorce judgment and decree as \\\"Judge Smith's 'fiasco' and 'Judge Smith's bullshit.' \\\" Hoffman further said, \\\"I did not say these things publicly. I said them privately in a publicly closed hearing under oath to tell the truth.... The Canons do not prohibit me for commenting on my divorce proceedings.... In this disciplinary action, I am being held responsible for Judge Smith's mistake.\\\" Hoffman continued: \\\"I admit that I objected to a question at the protection order hearing. I made one objection.... Once I was informed of this judge's discretionary position[,] I obeyed it. I even called him 'your honor', so I can't see the disrespect or pattern of disrespect toward courts.\\\"\\n[\\u00b6 17] The Honorable Donald Jorgensen testified that at a protection order hearing, Hoffman referred to \\\"Judge Smith's fiasco\\\" and \\\"Judge Smith's bullshit,\\\" when referring to -the decree entered in Hoffman's divorce. Judge Jorgensen also testified he told Hoffman he would hold him in contempt if he did not follow Judge Jorgensen's directions. Judge Jorgensen testified that, while Wanda Hoffman was testifying at that hearing, Hoffman \\\"felt a need to interject himself and seek to place objections to her testimony, and I simply could not allow the proceeding to get out of hand and accordingly, that's why I interjected myself, but it was clearly without question in my judgment a challenge to the Court.\\\" .The evidence clearly and convincingly establishes that Hoffman willfully violated Canon 2A of the Code of Judicial Conduct at the hearing before Judge Jor-gensen.\\n[\\u00b6 18] In his brief, Hoffman addressed the hearing panel's Finding V, about the appearance of Jill M. Quarstad, formerly Jill M. Christianson:\\nWhile people are entitled to a judge who will hear both sides and decide an issue on the merits, they are not entitled to a judge whose mind is a clean slate. Each judge brings to the bench the experiences of life, both personal and profes-sional_ Mr. Fremgen agreed that the law was that a parent has an affirmative duty to facilitate a psychological relationship. Mr. Fremgen appears to agree that Ms.Christienson [sic] could be in contempt of court under the right circumstances. I have always held this belief about the affirmative duty. I made no personal attack on Ms. Chris-tenson [sic] and no such thing has been alleged or found. I expressed my opinions of the law and facts in this case and nothing else. To find otherwise, would impinge on the essential independence of judges in making judicial decisions.\\nIt has been alleged and found that I inserted my personal situation and arguments as a noncustodial parent into the proceedings and demonstrated a lack of digmty and courtesy to those appearing before me. My personal situations are my life's experience. However, I was both a custodial parent and a visiting parent so I don't know how the mere accusations of misconduct show miscon duct. This is a position on the law which has been with me for a long time.\\n(Citations omitted.)\\n[\\u00b6 19] Jill Quarstad testified that at a hearing before Hoffman on her complaint about her former husband's wife making 110 harassing telephone calls to her, Hoffman discussed Quarstad's affirmative duty to facilitate the psychological relationship between her child and her former husband. She testified about Hoffman's demeanor: \\\"He was \\u2014 the look on his face was almost sneering. He was very argumentative, he was very sarcastic. It was \\u2014 it seemed like a cat-and-mouse game. He was the cat.\\\" We agree with the hearing panel's assessment that the evidence clearly and convincingly establishes Hoffman willfully violated Canon 2A and Canon 3B(4) of the Code of Judicial Conduct.\\n[\\u00b6 20] In finding of fact VII, the hearing panel found that in a hearing on a class C felony charge against Peter Koble for violation of a protection order, regarding contacts with Lisa Koble, Hoffman \\\"presented himself in the proceedings as reporting violation by Lisa Koble to law enforcement as well . [and] Hoffman's conduct was colored by his own situation and arguments regarding his dual protection order.\\\" Hoffman argues in his brief, \\\"This fact of a dual protection order in my personal life is not enough to show bias\\\"; and \\\"[m]y inquiry to Ms. Michelson was regarding gender discrimination in investigating and charging crimes in protection order cases.... I see nothing wrong with my reporting an alleged violation of the court's order.\\\"\\n[\\u00b6 21] Lori Mickelson testified about the hearing before Hoffman on Peter Koble's violation of a protection order arising out of a divorce. Hoffman asked Mickelson, the state's attorney's representative at the hearing, if the victim, Lisa Koble, was going to be charged with anything. When Mickelson replied her office had not received any reports about violations of the protection order by Lisa Koble, Hoffman said, \\\"I'm reporting it then.\\\" The hearing panel found Hoffman's \\\"conduct was colored by his own situation and arguments.\\\" Deferring to the hearing panel's opportunity to observe the demeanor of the witnesses, we conclude the evidence clearly and convincingly establishes Hoffman willfully violated Canons 2A, 3B(5), and 3E(1) of the Code of Judicial Conduct.\\n[\\u00b6 22] We need not address additional findings of the hearing panel, because their resolution would not alter our decision on the appropriate sanction.\\n[\\u00b6 23] The hearing panel has recommended Hoffman \\\"be suspended for a period of six months and that he is to attend and participate in an anger management program.\\\" Hoffman has resigned his position as a district judge, so suspension from office is not an available sanction. Under R. Jud. Cond. Comm. 8, which was adopted effective August 1, 1997, a number of sanctions may be imposed for judicial misconduct:\\nRULE 8. SANCTIONS IMPOSED;\\nDEFERRED DISCIPLINE AGREEMENT\\nSanctions. These sanctions may be .imposed upon a respondent who has committed misconduct:\\nA. removal or retirement by the Supreme Court;\\nB. suspension by the Supreme Court;\\nC. imposition by the Supreme Court of limitations on the performance of judicial duties;\\nD. imposition of lawyer discipline by the Supreme Court;[ ]\\nE. censure by the Supreme Court;\\nF. admonition by the commission with the consent of the judge, provided that an admonition may by used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanction to be imposed, pursuant to Rule 10D(1); or\\nG. deferred discipline agreement.\\nRule 8(D) provides for the imposition of lawyer discipline.\\n[\\u00b6 24] Under N.D.R. Lawyer Discipl. 1.3A(2), (10), a lawyer's misconduct is grounds for suspension and limitation on the lawyer's future practice. As N.D. Stds. Imposing Lawyer Sanctions 2.2, recognizes, \\\"a lawyer who has been suspended should not be permitted to return to practice until he has completed a reinstatement process demonstrating rehabilitation and fitness to practice law.\\\"\\n[\\u00b6 25] Under N.D.R. Lawyer Discipl. 1.3(C),we consider aggravating or mitigating circumstances, which are specified in Standard 9.2 and Standard 9.3, N.D. Stds. Imposing Lawyer Sanctions. Under N.D. Stds. Imposing Lawyer Sanctions 9.4(d), \\\"resignation prior to completion of disciplinary proceedings\\\" is not \\\"considered as either aggravating or mitigating.\\\" We conclude suspension from the practice of law for a period of six months is an appropriate sanction for Hoffman's willful violations of the North Dakota Code of Judicial Conduct while serving as a district judge. We further conclude Hoffman's reinstatement to practice should be conditioned upon his participation in and successful completion of an appropriate educational program to demonstrate fitness to practice law and an understanding of anger and violence management.\\n[\\u00b6 26] Hoffman is ordered suspended from the practice of law for a period of six months and his reinstatement is conditioned upon participation in and successful completion of an appropriate educational program approved by the North Dakota Supreme Court to demonstrate an understanding of anger and violence management.\\n[\\u00b6 27] VANDE WALLE, C.J., and MARING, NEUMANN, and KAPSNER,, JJ., concur.\\n. Canon 2, N.D.Code Jud. Conduct, provides in part:\\nCANON 2\\nA Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities\\nA. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.\\n. Canon 3, N.D.Code Jud. Conduct, provides in part:\\nCANON 3\\nA Judge Shall Perform the Duties of Judicial Office Impartially and Diligently\\nB. Adjudicative Responsibilities.\\n(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity....\\n(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice .\\nE. Disqualification.\\n(1)A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned .\\n.Canon 4, N.D.Code Jud. Conduct, provides in part:\\nCANON 4\\nA Judge Shall so Conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations\\nA. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extrajudicial activities so that they do not:\\n(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;\\n(2) demean the judicial office; or\\n(3) interfere with the proper performance of judicial duties.\\n. In light of the purposes of judicial disciplinary proceedings, greater specificity is relatively unimportant.\\n. See also N.D.R. Lawyer Discipl. 1.1, which provides Hoffman, as a former judge who resigned from office and, thus, was not removed from office in the course of a judicial discipline proceeding, is subject to attorney discipline for conduct that occurred while he was a judge.\"}"

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+"{\"id\": \"11730163\", \"name\": \"HEBRON PUBLIC SCHOOL DISTRICT NO. 13 OF MORTON COUNTY, State of North Dakota, Appellee, v. UNITED STATES GYPSUM COMPANY, Appellant\", \"name_abbreviation\": \"Hebron Public School District No. 13 of Morton County v. United States Gypsum Co.\", \"decision_date\": \"1991-09-17\", \"docket_number\": \"Civ. No. 900415\", \"first_page\": 120, \"last_page\": \"127\", \"citations\": \"475 N.W.2d 120\", \"volume\": \"475\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:19:58.155880+00:00\", \"provenance\": \"CAP\", \"judges\": \"ERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.\", \"parties\": \"HEBRON PUBLIC SCHOOL DISTRICT NO. 13 OF MORTON COUNTY, State of North Dakota, Appellee, v. UNITED STATES GYPSUM COMPANY, Appellant.\", \"head_matter\": \"HEBRON PUBLIC SCHOOL DISTRICT NO. 13 OF MORTON COUNTY, State of North Dakota, Appellee, v. UNITED STATES GYPSUM COMPANY, Appellant.\\nCiv. No. 900415.\\nSupreme Court of North Dakota.\\nSept. 17, 1991.\\nDaniel A. Speights, of Speights & Run-yan, Hampton, S.C., Steven C. Lian (appearance), of Farhart, Lian, Maxson, Howard, Sorensen & Louser, Minot, and Jon M. Arntson (appearance), of Arntson & Stewart, Fargo, for appellee.\\nThomas B. Kenworthy, of Morgan, Lewis & Bockius, Philadelphia, Pa., and Wickham Corwin (appearance), of Conmy, Feste, Bos-sart, Hubbard & Corwin, Ltd., Fargo, for appellant.\", \"word_count\": \"4517\", \"char_count\": \"27755\", \"text\": \"VANDE WALLE, Justice.\\nThis case comes to us on certified questions of law from the United States Court of Appeals for the Eighth Circuit pursuant to Rule 47, N.D.R.App.P.\\nThe Court of Appeals certified the following questions of law:\\n\\\"(1) Whether, for purposes of N.D.Cent.Code \\u00a7 28-01-16(1) (Cum.Supp. 1989), a cause of action, or claim for relief, does not accrue until the aggrieved party discovers the facts which constitute the basis for its cause of action or claim for relief.\\n\\\"(2) Whether N.D.Cent.Code \\u00a7 28-01-44 (Cum.Supp.1989) applies to a manufacturer of building materials used in an improvement to real property.\\\"\\nWe answer the first certified question in the affirmative, and the second in the negative.\\nPursuant to Rule 47(c)(2), N.D.R.App.P., the Court of Appeals provided the following statement of the relevant facts:\\n\\\"In 1959 and 1963 an acoustical ceiling plaster manufactured by United States Gypsum Co. (USG) was installed on the ceiling of a school building addition in Hebron Public School District No. 13 (Hebron). The acoustical ceiling plaster manufactured by USG had been specified by the architect hired by Hebron and installed by general and sub-contractors. Hebron had no communications with USG about the specification or installation of the acoustical ceiling plaster. USG had no contacts with Hebron and had no knowledge about the Hebron school addition project.\\n\\\"In August 1983 Hebron tested the school building ceiling and discovered asbestos. In 1986, some 23 years after the acoustical ceiling plaster had been installed, Hebron filed this action in federal district court against USG to recover the costs of removing the asbestos-containing acoustical ceiling plaster and punitive damages. In response USG filed a motion for summary judgment. First, USG asserted the action was time-barred under N.D.CentCode \\u00a7 28-01-16(1) because North Dakota applies the discovery rule for accrual only to causes of action alleging fraud. USG also asserted the action was time-barred, whether the cause of action accrued at the time of installation in 1963 or when asbestos was discovered in 1983, because USG, as a manufacturer of building materials used in an improvement to real property, was protected by N.D.CentCode \\u00a7 28-01-44. The district court denied USG's motion for summary judgment. The ease was tried to a jury, which found in favor of Hebron and awarded Hebron compensatory and punitive damages. This appeal followed.\\\"\\nSection 28-01-16, N.D.C.C., (Cum. Supp.1989) provides in part:\\n\\\"The following actions must be commenced within six years after the claim for relief has accrued:\\n\\\"1. An action upon a contract, obligation, or liability, express or implied, subject to the provisions of sections 28-01-15 and 41-02-104.\\n\\n\\\"6. An action for relief on the ground of fraud in all cases both at law and in equity, the claim for relief in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.\\\"\\nThe Legislature has not defined when a claim for relief accrues for purposes of commencing the running of the six-year limitations period. In the absence of such a definition it is a judicial function to determine when a cause of action accrues. Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978).\\nEarlier codified as Code of Civil Procedure \\u00a7 54, Revised Codes of the Territory of Dakota (1877), what is now codified as \\u00a7 28-01-16, N.D.C.C., was derived from New York Code of Procedure \\u00a7 91 (1848). Roether v. National Union Fire Ins. Co., 51 N.D. 634, 200 N.W. 818 (1924). Relying on Liberty Mut. Ins. Co. v. Sheila-Lynn, Inc., 185 Misc. 689, 57 N.Y.S.2d 707 (App. Term 1945), United States Gypsum Company (Gypsum) contends that no discovery rule is applicable to \\u00a7 28-01-16(1), N.D.C.C. The court in Liberty held that the statute of limitations barred a suit brought more than six years after the sale of the merchandise involved, after stating:\\n\\\"What is the time of accrual of a cause of action for a breach of warranty? The traditional doctrine is that a cause of action for a breach of warranty of quality and fitness normally accrues at the time of the sale, notwithstanding the fact that the purchaser may not then be aware of the existence of any cause of action. Williston on Sales, sec. 212-a. 'Inability to ascertain the quality or condition of property warranted to be, at the time of the sale, a particular quality or in a certain condition, has never been allowed to change the rule as to the time when a right of action for a breach of the warranty occurs.' Allen v. Todd, 6 Lans. 222, 224.\\\" 57 N.Y.S.2d at 710:\\nThe court concluded that the application of a discovery rule \\\"seems untenable in the light of the authorities in this state.\\\" 57 N.Y.S.2d at 711. That conclusion has not changed to this day. \\\"[T]he New York Court of Appeals has steadfastly declined to alter the traditional New York rule that the statute of limitations commences to run when the cause of action accrues, even though the plaintiff is unaware that he has a cause of action.\\\" Practice Commentaries, CPLR \\u00a7 203, p. 140 (1990).\\nOther authorities agree with the New York position. \\\"The statute of limitations begins to run when there is a complete and present cause of action.... [Ijgnorance of a cause of action does not prevent the running of the statute of limitations unless there has been fraudulent concealment on the part of those invoking the statute.\\\" Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654, 657 (1969). 43 Cal.Jur.3d, Limitation of Actions \\u00a7 22 (1978), states:\\n\\\"The code provides that an action must be commenced within the prescribed period 'after the cause of action shall have accrued.' This is an expression of the general rule that the statute of limitations does not begin to run until the cause of action accrues that is, until an action can be maintained on the cause of action. In other words, the statute of limitations is ordinarily set in motion at the time of the act giving rise to the cause of action, not at the time of discovery of the act or its perpetrator.\\\"\\n\\\"In the absence of fraud, misrepresentation, or concealment, even ignorance of the facts constituting a cause of action does not ordinarily prevent the running of the statute of limitations.\\\" Id,., at \\u00a7 140. \\\"[T]he majority of the courts have adopted as a general rule the view that limitations begin to run from the date of the alleged wrong and not from the date the alleged wrong is discovered by the plaintiff.\\\" 51 Am.Jur.2d, Limitation of Actions, \\u00a7 146 (1970). See also, 54 C.J.S., Limitations of Actions \\u00a7 87a (1987).\\nOther courts have adopted exceptions to the general rule and have applied the discovery rule in certain cases. \\\"[UJnder the so-called 'blameless ignorance' doctrine the statute of limitations has been held to run only upon discovery of the fact of the invasion of a right which will support a cause of action.\\\" 51 Am.Jur.2d, Limitation of Actions \\u00a7 146 (1970).\\n\\\"Initially, the [discovery] rule was applied to malpractice actions, but subsequent decisions have gone much further and have acknowledged the relevance of the doctrine whenever equity and justice have seemed to call for its application. The purpose of permitting a discovery rule to be applied to a statute of limitations is based on the logic of the matter; limitations should not bar a claimant before he has a reasonable basis for believing he has a claim. In situations in which the plaintiff is unaware that his legal rights have been infringed, he cannot be said to be sleeping on his rights.\\nsfc\\n\\\"The discovery rule applies only in relation to an accrual period of limitations and not to a period of limitations based upon a fixed objective event.\\n*\\n\\\"Some jurisdictions have adopted the 'capable of ascertainment' test for determining when the period of limitations begins to run; when the fact of damage becomes capable of ascertainment, the statute of limitation is put in motion.\\\"\\n54 C.J.S., Limitations of Actions \\u00a7 87a (1987).\\nCalifornia courts, construing a statute of limitations that, like \\u00a7 28-01-16, N.D.C.C., and the New York statute, CPLR \\u00a7 203, commences to run when a cause of action has \\\"accrued,\\\" have recognized a number of exceptions to the general rule and have applied the discovery rule in a variety of cases. In April Enterprises, Inc. v. KTTV, 147 Cal.App.3d 805, 195 Cal.Rptr. 421, 437 (1983), the court held that \\\"the discovery rule may be applied to breaches [of contract] which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time.\\\" The court said: \\\"[T]he discovery rule has replaced the date-of-injury accrual rule in a growing number of actions in California. Indeed, one commentator has suggested the ever-expanding number of exceptions to what is stated as the general rule, threatens to 'swallow' that rule entirely.\\\" 195 Cal.Rptr. at 434. The court noted that the discovery rule \\\"avoids dismissing a suit on grounds of limitation when a plaintiff is blamelessly ignorant of his cause of action.\\\" 195 Cal. Rptr. at 433. The court (195 Cal.Rptr. at 435) also recognized that \\\"inability to recognize and inability to observe the injury\\u2014 provide the primary rationale for the growing number of judicial decisions\\\" applying the discovery rule and said:\\n\\\"A common thread seems to run through all the types of actions where courts have applied the discovery rule. The injury or the act causing the injury, or both, have been difficult for the plaintiff to detect. In most instances, in fact, the defendant has been in a far superior position to comprehend the act and the injury. And in many, the defendant had reason to believe the plaintiff remained ignorant he had been wronged. Thus, there is an underlying notion that plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed. And often this is accompanied by the corollary notion that defendants should not be allowed to knowingly profit from their injuree's ignorance.\\\"\\n195 Cal.Rptr. at 436. \\\"[A] plaintiffs cause of action for property damage caused by latent construction defects accrues 'from the point in time when plaintiffs became aware of defendant's negligence as a cause [of damage to the property], or could have become so aware through the exercise of reasonable diligence.' (Citation omitted.)\\\" Allen v. Sundean, 137 Cal.App.3d 216, 186 Cal.Rptr. 863, 866 (1982). The general rule \\\"has not been applied when it would simply be unjust to deprive a litigant of a cause of action before that party has become aware he has been injured.\\\" Sherman v. Lloyd, 181 Cal.App.3d 693, 226 Cal.Rptr. 495, 498 (1986).\\nIn holding that the discovery rule applied in an action alleging property damage due to asbestos contamination, the Vermont Supreme Court said that the views underlying application of a discovery rule \\\"are especially persuasive in suits to recover the costs of removing asbestos, a material used extensively in construction before its dangers fully came to light \\u2014 or at least before manufacturers warned purchasers of its hazards.\\\" University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1357 (1989). The Maryland Court of Appeals has held the discovery rule \\\"to be applicable generally in all actions and the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.\\\" Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677, 680 (1981). \\\"The general rule applicable to federal statutes of limitations is that the limitation period begins to run when the claimant discovers or in the exercise of reasonable diligence should have discovered the acts constituting the alleged violation.\\\" 54 C.J.S., Limitations of Actions \\u00a7 87a (1987).\\nIn Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989), although we applied the discovery rule, we observed: \\\"Generally, the statute of limitations commences to run from the commission of a wrongful act giving rise to the cause of action.\\\" We have, however, applied the discovery rule in a number of other actions.\\nIn Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1968), a medical malpractice action, this court construed \\u00a7 28-01-18(3), N.D.C.C., which at that time provided:\\n\\\"The following actions must be commenced within two years after the cause of action has accrued:\\n\\\"3. An action for the recovery of damages resulting from malpractice . \\\"\\nThis court, for the first time, applied the discovery rule:\\n\\\"After studying the various approaches taken by the courts, the recent trend of decisions to depart from the 'general rule,' the indefinite language of our statute, and our belief that justice is best served when claims are adjudicated on their merits, we conclude that the best rule is that the limitation period commences to run against a malpractice action from the time the act of malpractice with resulting injury is, or by reasonable diligence could be, discovered.\\\"\\nIverson, supra, 158 N.W.2d at 510. We quoted the following language in Berry v. Branner, 245 Or. 307, 421 P.2d 996, 998-999 (1966), and said that it accorded with our view:\\n\\\"The objective of a statutory limitation on the time within which an action may be brought is, in malpractice cases, the protection of medical practitioners from the assertion of stale claims. We do not believe the legislature intended to limit patients asserting malpractice claims, who by the very nature of the treatment had no way of immediately ascertaining their injury, to the same overall period of time that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong. The protection of the medical profession from stale claims does not require such a harsh rule. The mischief the statute was intended to remedy was delay in the assertion of a legal right by one who had slumbered for the statutory period during which process was within his reach.\\\"\\nIverson, supra, 158 N.W.2d at 511. Since Iverson was decided, we have held or suggested that the discovery rule was applicable in a number of other medical malpractice cases [Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133 (N.D.1990); Froysland v. Altenburg, 439 N.W.2d 797 (N.D.1989); Anderson v. Shook, 333 N.W.2d 708 (N.D.1983) ], legal malpractice cases [Herzog v. Yuill, 399 N.W.2d 287 (N.D.1987); Wall v. Lewis, 393 N.W.2d 758 (N.D.1986); Binstock v. Tschider, 374 N.W.2d 81 (N.D.1985); Wall v. Lewis, 366 N.W.2d 471 (N.D.1985); Phillips Fur and Wool Co. v. Bailey, 340 N.W.2d 448 (N.D.1983); Johnson v. Haugland, 303 N.W.2d 533 (N.D.1981) ], assault and battery action based on sexual abuse when the plaintiff was a minor [Osland v. Osland, supra], actions involving asbestos, drugs, and medical products [suggested in Erickson v. Scotsman, Inc., 456 N.W.2d 535 (N.D.1990), an action involving a perceptible personal injury and, thus, governed by the general time-of-injury rule], \\\"tort by negligence\\\" [Sylling v. Agsco, 171 N.W.2d 825, 828 (N.D.1969) ], reformation of a written instrument on the ground of mutual mistake [Ell v. Ell, 295 N.W.2d 143 (N.D.1980)]; and reformation of a deed [Wehner v. Schroeder, 335 N.W.2d 563 (N.D.1983)].\\nThe opening language in the statutes of limitation involved in all of the foregoing decisions of this court is the same: \\\"The following actions must be commenced within . years after the claim for relief [or cause of action] has accrued.\\\" We perceive no principled basis upon which to distinguish this action to recover the costs of removing asbestos from a building from many of the cases in which this court has already applied a discovery rule.\\nNevertheless, Gypsum contends: \\\"The Enactment Of N.D.C.C. \\u00a7 28-01-24 Reflects A Legislative Recognition That There Is No Generally Applicable Discovery Rule.\\\" Section 28-01-24, N.D.C.C., provides: '\\n\\\"When, by fraud or fraudulent concealment, a party against whom a claim for relief exists prevents the person in whose favor such claim for relief exists from obtaining knowledge thereof, the latter may commence an action within one year from the time the claim for relief is discovered by him or might have been discovered by him in the exercise of diligence. Such fraud or fraudulent concealment must be established to the satisfaction of the court or jury, as the case may be, by a fair preponderance of the evidence.\\\"\\nGypsum argues: \\\"If causes of action generally did not accrue until discovery, the enactment of \\u00a7 28-01-24 would have been an idle act.\\\" See also, \\u00a7 28-01-16(6), N.D.C.C., which provides that a claim for relief in a fraud case is \\\"not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud,\\\" and Phoenix Assur. Co. of Canada v. Runck, 366 N.W.2d 788, 791 (N.D.1985), where we said, in dicta: \\\"Unlike the other actions listed in \\u00a7 28-01-16, N.D.C.C., a cause of action on the ground of fraud does not accrue until the aggrieved party discovers the facts constituting the fraud.\\\"\\nWe recognize the strength of this argument and might be persuaded by it if we were writing on a clean slate. However, because of the range of our previous decisions applying a discovery rule in other actions in which such an argument would have been equally persuasive and in light of legislation incorporating discovery rules in other statutes of limitations, we decline to now hold that a discovery rule is not applicable to this action under \\u00a7 28-01-16(1), N.D.C.C., to recover the costs of removing asbestos-containing acoustical ceiling plaster. To retreat to the constrictive logic Gypsum would have us now employ would be contrary to the current concept of the purpose of statutes of limitation apparent from decisions in other jurisdictions and as demonstrated by the previous decisions of this court and recent legislative enactments.\\nThe Legislature has incorporated a discovery rule in a number of statutes of limitation. In 1965, the Legislature enacted \\u00a7 41-02-104(2) (U.C.C. \\u00a7 2-725), N.D.C.C., providing a discovery rule for a breach of warranty of future performance in contracts for sale:\\n\\\"2. A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.\\\"\\nSince Iverson was decided, the Legislature has incorporated a discovery rule in \\u00a7 28-01-18(3), (4), N.D.C.C., for medical malpractice; \\u00a7 28-01-22.1, N.D.C.C., for actions against the state; and, significantly, \\u00a7 28-01.1-02(4), (5), N.D.C.C., for personal injury and property damage actions allegedly stemming from asbestos.\\nIn Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 431-432 (N.D.1983), we said:\\n\\\"Even though this statute went into effect 1 July 1981 and is not retroactive, it contains a clear sense of direction we cannot ignore.... While we may not and do not apply NDCC \\u00a7 42-04-02 retroactively and directly to this situation, nevertheless in determining what legal concept or principle of law should be applied in North Dakota, we can take a sense of direction from the enactment.\\\"\\nSee also Hopkins v. McBane, 427 N.W.2d 85, 95-96 (N.D.1988) (VandeWalle, J., concurring specially):\\n\\\"Ordinarily I believe the Legislature should enact legislation if there is to be a substantial change in our law- Although this statute, ., does not govern the case before us, I see no purpose in adhering to our previous case law in this instance in view of the fact that after July 8, 1987, the effective date of the legislation, such damages may be recovered. The policy reasons for deferring to the Legislature have been satisfied and the Legislature has decided damages for mental anguish and loss of society, comfort, and companionship are recoverable elements in wrongful-death actions.\\\"\\nWhile none of the discovery rules incorporated into statutes of limitation by the Legislature governs this case, \\\"we can take a sense of direction from [their] enactment.\\\" Jerry Harmon Motors, Inc., 337 N.W.2d at 432.\\nWe conclude that for purposes of \\u00a7 28-01-16(1), N.D.C.C., (Cum.Supp.1989), a cause of action, or claim for relief does not accrue until the aggrieved party discovers the facts which constitute the basis for its cause of action or claim for relief, and we answer the first certified question in the affirmative.\\nThe second certified question asks whether the statute of repose contained in \\u00a7 28-01-44, N.D.C.C., applies to a manufacturer of building materials used in an improvement to real property. In Vantage, Inc. v. Carrier Corp., 467 N.W.2d 446 (N.D.1991), we recently dealt with a faulty rooftop furnace that caused a fire. We held that Carrier was not protected by \\u00a7 28-01-44, N.D.C.C.:\\n\\\"In this case, Carrier designed and manufactured the rooftop furnace, which was an assembly line product placed on the roof of the building. Carrier was not engaged in 'performing or furnishing the design, planning, supervision, or observation of construction, or construction of . an improvement [to real property]' within the meaning of Section 28-01-44, N.D.C.C. The rationale in Bellemare [v. Gateway Builders, Inc., 420 N.W.2d 733 (N.D.1988)] indicates that that statute was not intended to cover manufacturers of products like Carrier.\\\"\\n467 N.W.2d at 450-451. At oral argument, counsel for Gypsum stated that Vantage, Inc. v. Carrier Corp., supra, \\\"probably has addressed\\\" the second certified question and did not present any oral argument on the second certified question. We agree with counsel's assessment, and, without further discussion, answer the second certified question in the negative. We conclude that \\u00a7 28-01-44, N.D.C.C., (Cum.Supp. 1989) does not apply to a manufacturer of building materials used in an improvement to real property.\\nERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.\\n. \\\"28-01-18. Actions having two-year limitations. The following actions must be commenced within two years after the claim for relief has accrued:\\n*\\n\\\"3. An action for the recovery of damages resulting from malpractice; provided, however, that the limitation of an action against a physician or licensed hospital will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital. This limitation is subject to the provisions of section 28-01-25.\\n\\\"4. An action for injuries done to the person of another, when death ensues from such injuries, and the claim for relief shall be deemed to have accrued at the time of the death of the party injured; provided, however, that when death ensues as the result of malpractice, the claim for relief is deemed to have accrued at the time of the discovery of the malpractice. However, the limitation will not be extended beyond six years of the act or omission of alleged malpractice by a nondis-covery thereof unless discovery was prevented by the fraudulent conduct of the physician or hospital.\\\"\\nThis statute may reflect a legislative presumption that the discovery rule determines when a cause of action accrues except in those instances in which the Legislature specifies that the discovery rule is not applicable. The presumption that the discovery rule applies except where the Legislature specifies otherwise is consistent with the perception that the determination as to when a cause of action accrues is a judicial function in the absence of legislative definition of that term.\\n. \\\"28-01-22.1. Actions against state \\u2014 Limitation. When not otherwise specifically provided by law, an action against the state or its employees and officials acting within the scope of their employment or office must be commenced within three years after the claim for relief has accrued. For purposes of this section, the claim for relief is deemed to have accrued at the time it is discovered or might have been discovered in the exercise of reasonable diligence. This may not be construed as a waiver of immunity.\\\"\\n. \\\"28-01.1-02. Statute of limitation.\\n\\\"1. There shall be no recovery of damages for personal injury, death, or damage to property caused by a defective product, except as provided in subsections 4 and 5, unless the injury, death, or damage occurred within ten years of the date of initial purchase for use or consumption, or within eleven years of the date of manufacture of a product, where that action is based upon, or arises out of, any of the following:\\n\\\"a. Breach of any implied warranties.\\n\\\"b. Defects in design, inspection, testing, or manufacture.\\n\\\"c. Failure to warn.\\n\\\"d. Failure to properly instruct in the use of a product.\\n*\\n\\\"4. Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, cro-cidolite, tremolite anthrophyllite, actinolite, or any combination thereof, shall be commenced within three years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within three years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. \\u00d1o action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective con dition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to July 1, 1983.\\n\\\"5. Any action to recover damages based on injury to property allegedly resulting from the presence of products containing asbestos fibers of any type must be commenced within six years of the date upon which the owner of that property knew or should have known of facts giving rise to the cause of action.\\\"\\n. \\\"28-01-44. Limitation of action \\u2014 Person submitting plans for improvements to real estate.\\n\\\"1. No action, whether in contract, oral or written, in tort or otherwise, to recover damages:\\n\\\"a. For any deficiency in the design, planning, supervision, or observation of construction or construction of an improvement to real property;\\n\\\"b. For injury to property, real or personal, arising out of any such deficiency; or \\\"c. For injury to the person or for wrongful death arising out of any such deficiency, \\\"may be brought against any person performing or furnishing the design, planning, supervision, or observation of construction, or construction of such an improvement more than ten years after substantial completion of such an improvement_\\\"\"}"

nd/11820500.json

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+"{\"id\": \"11820500\", \"name\": \"Allen H. PRESTENG, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant\", \"name_abbreviation\": \"Presteng v. Director, North Dakota Department of Transportation\", \"decision_date\": \"1998-06-04\", \"docket_number\": \"Civil No. 970369\", \"first_page\": 212, \"last_page\": \"216\", \"citations\": \"579 N.W.2d 212\", \"volume\": \"579\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:03:06.630479+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 12] VANDE WALLE, C.J., and NEUMANN, SANDSTROM and MESCHKE, JJ., concur,\", \"parties\": \"Allen H. PRESTENG, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.\", \"head_matter\": \"1998 ND 114\\nAllen H. PRESTENG, Petitioner and Appellee, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.\\nCivil No. 970369.\\nSupreme Court of North Dakota.\\nJune 4, 1998.\\nAndrew Moraghan (argued), Attorney General\\u2019s Office, Bismarck, for respondent and appellant.\\nRobert J. Woods (argued), of Woods Legal Services, Forest River, for petitioner and appellee.\", \"word_count\": \"1433\", \"char_count\": \"9127\", \"text\": \"MARING, Justice.\\n[\\u00b6 1] The Director of the North Dakota Department of Transportation (Department) appeals from a district court judgment re versing an administrative hearing officer's decision suspending Allen H. Presteng's driving privileges for 365 days for driving under the influence of alcohol. We conclude the police officer had probable cause to arrest Presteng for driving under the influence of alcohol. We, therefore, reverse the district court judgment and reinstate the administrative license suspension.\\nI\\n[\\u00b6 2] On January 9, 1997, sometime after midnight, the Grafton police dispatcher received a call reporting a collision involving two snowmobiles. The dispatcher called Highway Patrol Officer Cave, who was on call at that hour, to investigate the collision. Officer Cave testified he left his residence at 12:41 a.m. and arrived at the accident scene at 12:45 a.m. Officer Cave testified that other emergency personnel were already on the scene, and one snowmobile operator was in an ambulance leaving the scene. Another officer informed Officer Cave that Allen Presteng was the person in the ambulance and that Presteng had an odor of an alcoholic beverage on his breath. Officer Cave then spoke to the other snowmobile operator involved in the accident who was still present at the scene. Based upon his conversation with this other snowmobile operator and statements of other witnesses, Officer Cave testified the accident occurred at approximately 12:15 a.m. Officer Cave also testified the other snowmobile operator passed an Alco-Sensor breath test and spoke with Officer Cave for approximately 20 minutes. Officer Cave then proceeded to the hospital to make contact with Presteng.\\n[\\u00b6 3] At the hospital, Presteng appeared severely injured. Officer Cave testified Presteng acknowledged operating one of the snowmobiles involved in the collision but could not remember what had happened. Officer Cave also observed Presteng's bloodshot, glassy eyes and an odor of alcohol on his breath. Because Presteng was in pain, Officer Cave testified he did not \\\"push the questioning\\\" and informed Presteng he was under arrest for driving under the influence. After being placed under arrest, Presteng requested an Alco-Sensor breath test. Pres-teng also consented to a blood test which revealed Presteng's blood alcohol concentration was above the legal limit.\\n[\\u00b6 4] After the North Dakota Department of Transportation notified Presteng of its intent to suspend his license, Presteng requested an administrative hearing. At the administrative hearing, evidence additionally showed Presteng had a 1993 conviction for driving under the influence. The hearing officer decided the N.D.C.C. ch. 39-20 issues against Presteng and concluded Officer Cave had reasonable grounds to believe Presteng had been operating a vehicle in violation of N.D.C.C. \\u00a7 39-08-01 or equivalent ordinance. The hearing officer suspended Pres-teng's driving privileges for 365 days. On appeal, the district court reversed the administrative suspension. The Director of the North Dakota Department of Transportation appeals to this Court.\\nII\\n[\\u00b65] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs appeals from an administrative hearing officer's suspension of a driver's license. In reviewing an agency's order on appeal to this Court, we review the agency's findings and decisions, and not those of the district court. Wheeling v. Director, North Dakota Dep't of Transp., 1997 ND 193, \\u00b6 5, 569 N.W.2d 273. We also examine the record compiled before the agency. Baer v. Director, North Dakota Dep't of Transp., 1997 ND 222, \\u00b6 7, 571 N.W.2d 829. We give great deference to administrative agency rulings, and we must affirm the agency's decision if:\\n(1) the findings of fact are supported by a preponderance of the evidence; (2) the conclusions of law are sustained by the findings of fact; (3) the decision is supported by the conclusions of law; and (4) the decision is in accordance with the law.\\nId. \\\" We do not make independent findings of fact or substitute our judgment for that of the agency, but we determine only whether a reasoning mind could reasonably have determined the facts or conclusions were supported by the weight of the evidence.'\\\" Wheeling, 1997 ND 193, \\u00b6 5, 569 N.W.2d 273. The ultimate conclusion, however, of whether the facts rise to the level of probable cause is a question of law, which is fully reviewable on appeal. Id.\\nIll\\n[\\u00b6 6] The dispositive issue in this case is whether the agency's findings of fact support the conclusion that the police officer had probable cause to arrest Presteng for driving under the influence. Although two other issues were raised by the Department, these issues were conceded by Presteng at oral argument.\\n[\\u00b6 7] Probable cause is a question of law and exists \\\"when the facts and circumstances that a police officer knows or that he has reasonably trustworthy information about warrant a person of reasonable caution to believe that an offense has been or is being committed.\\\" Wilhelmi v. Director of Dept. of Transp., 498 N.W.2d 150, 156 (N.D.1993). An officer need not have \\\"knowledge or facts sufficient to establish guilt.\\\" Baer, 1997 ND 222, \\u00b611, 571 N.W.2d 829. We have provided two elements necessary for establishing probable cause to arrest a driver for driving under the influence: the law enforcement officer must (1) first observe some signs of physical or mental impairment, and (2) have reason to believe the driver's impairment is caused by alcohol. Id.\\n[\\u00b6 8] In this case, the arresting officer was investigating a two-snowmobile accident involving Presteng. We have previously found probable cause to arrest for driving under the influence where there has been an accident coupled with other evidence of alcohol consumption. See Wilhelmi, 498 N.W.2d at 156; Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 653 (N.D.1985) (additionally considering a lack of any suggestion of another cause of a vehicle rollover). The fact an accident occurred is at least suggestive of impairment even though there may be other factors which are relevant to the actual cause of the accident. As we have clearly stated:\\nWhile other causes of an accident are relevant to the ultimate weight of the evidence at trial, other possible causes do not negat[e] the reasonableness of a belief that alcohol probably contributed to an accident when there is reasonable evidence of alcohol consumption. The inquiry is whether the officer had reason to believe that unlawful activity probably occurred,, not whether there is sufficient evidence for a criminal conviction.\\nWilhelmi 498 N.W.2d at 156.\\n[\\u00b69] Here, in addition to the evidence of the snowmobile collision, the arresting officer did observe such reasonable evidence of alcohol consumption while interviewing Presteng at the hospital. The officer testified at the administrative hearing that during this hospital encounter, he detected a strong odor of an alcoholic beverage on Presteng's breath. Furthermore, in the Officer's Statement of Probable Cause contained in an exhibit received without objection during the hearing, the officer observed that, in addition to the alcohol odor, Presteng had bloodshot, glassy eyes.\\n[\\u00b6 10] We have previously held these observations to be relevant factors in a probable cause to arrest determination. See Baer, 1997 ND 222, \\u00b6 12, 571 N.W.2d 829; Chadwick v. Moore, 551 N.W.2d 783, 786 (N.D.1996). Based upon the evidence in the record and the hearing officer's findings of fact, we conclude the arresting officer's belief that alcohol contributed to the accident was reasonable. We, therefore, conclude probable cause existed to arrest Presteng for driving a vehicle under the influence of alcohol.\\nIV\\n[\\u00b6 11] The hearing officer's findings of fact are supported by a preponderance of evi dence, the conclusions of law are sustained by the findings of fact, and the decision is in accordance with the law. We thus reverse the district court judgment and reinstate the administrative suspension of Prestengs dnv-ing privileges.\\n[\\u00b6 12] VANDE WALLE, C.J., and NEUMANN, SANDSTROM and MESCHKE, JJ., concur,\\n. Presteng conceded the implied consent law in N.D.C.C. ch. 39-20 is applicable to this case. In 1997, the Legislature amended N.D.C.C. \\u00a7 39-01-01(38) to specifically exclude a snowmobile from the definition of a \\\"motor vehicle\\\" and also created N.D.C.C. ch. 39-24.1, providing implied consent and separate criminal penalties for operating a snowmobile under the influence of alcohol. These changes in the law became effective on August 1, 1997. Here, however, the snowmobile accident and arrest of Presteng occurred on January 9, 1997, before the new law went into effect.\"}"

nd/11877226.json

@@ -0,0 +1 @@
+"{\"id\": \"11877226\", \"name\": \"GLOBAL FINANCIAL SERVICES, INC., as assignee for Midwest Federal Savings Bank, Plaintiff and Appellant, v. Michael DUTTENHEFNER, Defendant and Appellee\", \"name_abbreviation\": \"Global Financial Services, Inc. v. Duttenhefner\", \"decision_date\": \"1998-03-05\", \"docket_number\": \"Civil No. 970215\", \"first_page\": 667, \"last_page\": \"672\", \"citations\": \"575 N.W.2d 667\", \"volume\": \"575\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T23:22:41.446589+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 24] VANDE WALLE, C.J., and MARING, NEUMANN and SANDSTROM, JJ., concur.\", \"parties\": \"GLOBAL FINANCIAL SERVICES, INC., as assignee for Midwest Federal Savings Bank, Plaintiff and Appellant, v. Michael DUTTENHEFNER, Defendant and Appellee.\", \"head_matter\": \"1998 ND 53\\nGLOBAL FINANCIAL SERVICES, INC., as assignee for Midwest Federal Savings Bank, Plaintiff and Appellant, v. Michael DUTTENHEFNER, Defendant and Appellee.\\nCivil No. 970215\\nSupreme Court of North Dakota.\\nMarch 5, 1998.\\nDean F. Bard (argued), Mandan, and Richard G. Hurdelbrink (on brief), of Hurdelbrink Law Firm, Mandan, for plaintiff and appellant.\\nPatrick A. Donovan (argued), of Richardson, Lange & Donovan, Hazen, for defendant and appellee.\", \"word_count\": \"3167\", \"char_count\": \"19396\", \"text\": \"MESCHKE, Justice.\\n[\\u00b6 1] Global Financial Services, Inc. (Global) appealed a summary judgment dismissing its action to collect $5,786.56 from Michael Duttenhefner for the balance due on an installment loan. We conclude Global's action is not barred by the state statute of limitations. We reverse the summary judgment and remand for trial.\\n[\\u00b6 2] On August 6, 1988, Duttenhefner entered into a retail installment contract with Dan Porter Motors, Inc. to finance the purchase of a car. Porter assigned the contract to Midwest Federal Savings Bank of Minot. After making nine of the monthly installment payments, Duttenhefner defaulted and returned the car to Midwest on September 7, 1989. On October 26,1989, Midwest sold the car but received less than the debt owed by Duttenhefner.\\n[\\u00b63] On September 21, 1990, Resolution Trust Corporation (RTC) was appointed receiver for Midwest. On January 1, 1991, Global purchased a number of notes from RTC, including the Duttenhefner installment contract. On September 3,1996, Global sued Duttenhefner for the deficiency on the installment contract.\\n[\\u00b64] Both litigants moved for summary judgment. Duttenhefner argued Global's action was barred because the state six-year statute of limitations in NDCC 28-01-16(1) governs and the claim accrued at least by September 7,1989, when Midwest could have sued for breach of the installment contract. Global argued its action is not barred because the federal six-year statute of limitations, applicable to RTC under 12 U.S.C. 1441a(b)(4)(A) and 1821(d)(14), governs and this suit was brought within six years from the date RTC was appointed receiver. The trial court agreed with Duttenhefner and dismissed Global's action. Global appealed.\\n[\\u00b6 5] Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either litigant is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Ohio Farmers Ins. Co. v. Dakota Agency, 551 N.W.2d 564, 565 (N.D. 1996). As Jensen v. North Dakota Workers Comp. Bureau, 1997 ND 107, \\u00b6 9, 563 N.W.2d 112, explained, interpretation of a statute presents a question of law fully reviewable by this Court.\\n[\\u00b6 6] Congress enacted the federal statute of limitations relevant here as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. 101-73, 103 Stat. 183 (1989). The relevant part of the statute, 12 U.S.C. 1821(d)(14), says:\\n(lit) Statute of limitations for actions brought by conservator or receiver\\n(A) In general\\nNotwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be\\u2014\\n(i) in the case of any contract claim, the longer of\\u2014\\n(I) the 6-year period beginning on the date the claim accrues; or\\n(II) the period applicable under State law; \\u215c * \\u215c $ \\u215c \\u215d\\n(B) Determination of the date on which a claim accrues\\nFor purposes of subparagraph (A), the date on which the statute of limitations begins to run on any claim described in such subparagraph shall be the later of\\u2014\\n(i) the date of the appointment of the Corporation as conservator or receiver; or\\n(ii) the date on which the cause of action accrues.\\nAlthough the statute refers to claims by \\\"the Corporation,\\\" defined in FIRREA as the Federal Deposit Insurance Corporation (FDIC), 12 U.S.C. 1441a(b)(4)(A) makes this statute of limitations applicable also to RTC.\\n[\\u00b6 7] Although NDCC 28-01-16(1), like the federal statute of limitations, sets a six-year limitation for bringing an action, the difference between the statutes lies in when the claim accrues. Under the federal statute, the limitation period is extended beyond the six years allowed under state law because the six years begin to run when RTC became receiver. In this case, if the state statute governs, Global's action was barred. Conversely, if the federal statute governs, Global's action was timely.\\n[\\u00b6 8] FIRREA does not expressly say whether an assignee of FDIC or RTC acquires the right to rely on the federal statute of limitations. However, a body of caselaw has developed on this question. Although the vast majority of the eases have concluded an assignee does acquire the right to rely on the federal statute of limitations, the reasoning used to reach that conclusion has varied.\\n[\\u00b6 9] Most of the cases that have applied the federal statute of limitations used federal common law rules of assignment and a public policy favoring the broadest possible market for the assets of failed banks and federally insured depository institutions. Use of federal common law stems from Justice Jackson's concurrence in D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 468, 62 S.Ct. 676, 684, 86 L.Ed. 956 (1942) (Jackson, J., concurring), where he suggested courts use common law principles to fill inevitable statutory gaps: \\\"we may make our own law from materials found in common-law sources.\\\" Because the Restatement (Second) of Contracts \\u00a7 336 (1981) embraced the common law principle that an assignee stands in the shoes of the assignor, courts have reasoned this principle, combined with public policy, justifies extending the benefit of the federal statute of limitations to assignees. See FDIC v. Bledsoe, 989 F.2d 805, 809-11 (5th Cir.1993); Mountain States Financial Resources v. Agrawal, 777 F.Supp. 1550, 1552-53 (W.D.Okl.1991); Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244, 1248-49 (Colo.1994); Twenty First Century Recovery, Ltd. v. Mase, 279 Ill. App.3d 660, 216 Ill.Dec. 513, 516-18, 665 N.E.2d 573, 576-78 (1996); Cadle Co. II, Inc. v. Lewis, 254 Kan. 158, 864 P.2d 718, 720-24 (1993), cert. denied, 511 U.S. 1053, 114 S.Ct. 1613,128 L.Ed.2d 340 (1994); Central States Resources v. First Nat, 243 Neb. 538, 501 N.W.2d 271, 277-78 (1993); Investment Co. of the Southwest v. Reese, 117 N.M. 655, 875 P.2d 1086, 1089-95 (1994); National Enterprises, Inc. v. Caccia, 172 Mise.2d 857, 662 N.Y.S.2d 164, 165 (Sup.App.1997); Jon Luce Builder, Inc. v. First Gibraltar Bank, 849 S.W.2d 451, 453-55 (Tex.Ct.App.1993). This extensive line of precedents holds the extended federal limitation benefits assignees of FDIC and RTC.\\n[\\u00b6 10] One notable decision rejects that reasoning. In WAMCO, III, Ltd. v. First Piedmont Mortg., 856 F.Supp. 1076 (E.D.Va.1994), the court held an assignee could not use the federal statute of limitations because it conferred a right personal to RTC that was not transferable to RTC's assignee. The court reasoned the plain language of the statute made the limitations period applicable only to RTC in its status as a receiver, thus defining the right as \\\"personal\\\" to RTC. WAMCO, 856 F.Supp. at 1086. The court further relied on what it described as the \\\"fundamental circumscribing principle\\\" of the common law of assignment that \\\" 'an assignment ordinarily carries with it all rights, remedies and benefits which are incidental to the thing assigned, except those which are personal to the assignor and for his benefit only.' \\\" WAMCO (quoting 6A C.J.S. Assignments \\u00a7 76 (1975)). The court opined that this principle \\\"would apply with even greater force where the limitation is imposed by statute and where, as here, the statute makes clear that the incidental right, remedy or benefit is in fact personal in nature and for the benefit of the assignor when acting in a certain capacity.\\\" WAMCO. The WAMCO reasoning has generally been rejected by the courts that have considered its view.\\n[\\u00b6 11] Recently, the United States Supreme Court decided a different case with an opinion that raises serious questions about the usual reasoning in the assignee-benefits line of decisions. In O'Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994), the FDIC, as receiver, sued a law firm that had been counsel to a failed California savings and loan association, asserting malpractice and breach of fiduciary duties. The law firm raised a defense under California law that the knowledge of the bank's officers was imputed to the bank, and thus to the FDIC, thereby estopping the FDIC from recovery because it stood in the shoes of the failed bank. The FDIC argued FIRREA required the development of federal common law for the issue and similar ones because of the important federal interest in regulating financial institutions. A unanimous Supreme Court flatly rejected this argument.\\n[\\u00b6 12] \\\" 'There is no federal general common law,' \\\" the Court declared. O'Melveny, 512 U.S. at 83, 114 S.Ct. at 2053 (quoting Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)). The Court pointed out cases needing federal rules of decision are \\\"'few and restricted,'\\\" and courts should create federal rules only \\\"where there is a 'significant conflict between some federal policy or interest and the use of state law.' \\\" O'Melveny, 512 U.S. at 86, 114 S.Ct. at 2055 (internal citations omitted). The Court held the desire for uniformity of law, the possible depletion of the deposit insurance fund, or disservice to the federal insurance program were unsatisfactory reasons to create a federal rule of decision in that case. According to the Court, the proper law to decide the question raised by the O'Melveny defense was the law of California.\\n[\\u00b6 13] Thus, O'Melveny overruled Justice Jackson's suggestion in D'Oench, Duhme that courts make free use of federal common law to fill federal statutory gaps. Instead, O'Melveny indicates the D'Oench, Duhme case is an isolated instance of the \\\"few and restricted\\\" cases that may use federal common law rules of decision.\\n[\\u00b6 14] Since O'Melveny, several courts have used it to decide whether an assignee of RTC can benefit from the federal statute of limitations. For example, in Federal Financial Co. v. Hall, 108 F.3d 46 (4th Cir.), cert. denied, \\u2014 U.S. \\u2014, 118 S.Ct. 157, 139 L.Ed.2d 102 (1997), the Fourth Circuit Court of Appeals followed O'Melveny and held Virginia state law governed whether an assignee of the RTC could use the federal statute of limitations. In light of the Supreme Court's decision in O'Melveny, the court found no longer persuasive the positions of the Bled-soe court and its progeny that analogize to D'Oench, Duhme and to concepts of federal common law to interpret the statute. The court saw no \\\"significant conflict\\\" between a federal policy to maintain the value and marketability of RTC's asset pool and state laws, reasoning the O'Melveny court \\\"found strikingly similar fears did not merit a federal common law rule of decision.\\\" Hall, 108 F.3d at 49. Looking to state law to resolve the statute of limitations question, the Fourth Circuit recognized the Virginia Supreme Court had recently decided the precise question in Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 477 S.E.2d 521 (1996), cert. denied, \\u2014 U.S. -, 117 S.Ct. 1430, 137 L.Ed.2d 539 (1997), by ruling assignees of RTC do receive the benefit of the statute of limitations in 12 U.S.C. 1821(d)(14). The Hall court cautioned, however:\\n[I]n this case, state law happens to bring us by a different path to the same result that the Bledsoe cases reach through application of federal common law. But this may not always be so and when state and federal law diverge, we believe we must follow state law, unless and until Congress or the .Supreme Court directs otherwise.\\nHall, 108 F.3d at 50. See also Remington Investments, Inc. v. Kadenacy, 930 F.Supp. 446, 450-51 (C.D.Cal.1996) (applied O'Melve-ny and state law, and concluded the California Court of Appeal had ruled FDIC's assignees were entitled to the benefit of the federal statute of limitations).\\n[\\u00b6 15] The Washington Court of Appeals reached the same result by applying O'Mel-veny and state law in Federal Financial Co. v. Gerard, 89 Wash.App. 445, 949 P.2d 412 (1998). The court recognized that use of a uniform federal common law would promote the underlying purposes of FIRREA, but reasoned \\\"this argument is indistinguishable from that rejected in O'Melveny. In short, promotion of a purpose of FIRREA does not alone justify the choice of federal law to decide the question of what statute of limitations should apply in this ease. Rather, state law applies.\\\" Gerard, 949 P.2d at 415. The court rejected the debtor's argument that use of Washington law necessarily meant the state statute of limitations applied. Instead, the Washington court concluded the federal statute of limitations applied from the state's adoption of the Uniform Commercial Code that codified the rights of an assignee of a note, and from Washington's common law on assignability of contract rights.\\n[\\u00b6 16] The court relied on RCW 62A.3-203(b) that declares \\\"[t]ransfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument,\\\" and concluded the unambiguous language of the statute made the assignment of a note by FDIC carry with it the right to enforce the instrument, including the right to use the assignor's extended federal statute of limitations.\\n[\\u00b6 17] Explaining Washington's common law on the assignability of contract rights, the Gerard court said:\\nGenerally, such rights may be freely assigned unless forbidden by statute or rendered ineffective for public policy reasons. An assignee of a contract \\\"steps into the shoes of the assignor, and has all of the rights of the assignor.\\\" And the assigned rights include not only those identified in the contract, but also applicable statutory rights.\\n949 P.2d at 415-16 (footnotes omitted). The Gerard court at 417 (footnote omitted) also rejected the contention the FIRREA statute of limitations was \\\"personal\\\" to FDIC and nonassignable, concluding \\\"[b]ecause the FDIC's ability to seek a remedy within the FIRREA limitations period is integrally tied to its possession of the instrument, it is among the 'rights, remedies and benefits which are incidental to the thing assigned' and not only a right 'personal to the assignor and for [its] benefit only.' \\\"\\n[\\u00b6 18] We agree with the interpretation of the Hall and Gerard courts about the impact of O'Melveny on the question whether an assignee of RTC is entitled to the benefit of the federal statute of limitations. Accordingly, we look to our state law to decide the question in this case.\\n[\\u00b6 19] We need go no further than the North Dakota law of assignment for the answer. The common law of assignment remains in effect in North Dakota despite this state's adoption of the Uniform Commercial Code. Willow City v. Vogel, Vogel, Brantner & Kelly, 268 N.W.2d 762, 767 (N.D.1978). See also NDCC 41-01-03 (UCC 1-103). This Court has often said an assignee acquires no greater rights than those of the assignor, and simply stands in the shoes of the assignor. See First National Bank, Bismarck v. O'Callaghan, 143 N.W.2d 104, 106 (N.D.1966); C.I.T. Corporation v. Hetland, 143 N.W.2d 94, 98 (N.D.1966). See also NDCC 41-03-22(2) (UCC 3-203) (\\\"Transfer of an instrument, regardless of whether the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, . \\\").\\n[\\u00b6 20] We have held an assignee of a chose in action takes subject to any defenses existing at the time of the assignment or before notice of the assignment. See Pioneer State Bank v. Johnsrud, 284 N.W.2d 292, 296 (N.D.1979); Farmers Ins. Exchange v. Arlt, 61 N.W.2d 429, 437 (N.D.1953). We have also held the assignment of an instrument vests in the transferee the same rights the transferor had in it. Albrecht v. Walter, 1997 ND 238, \\u00b6 11, 572 N.W.2d 809; First National Bank of Minot v. MacDonald Const. Co., 137 N.W.2d 667, 672 (N.D.1965). See also Industrial Indem. Co. v. Anderson, 697 F.Supp. 1532, 1535 (D.N.D.1988). We have recognized some rights are personal in character and may not be assignable. See Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 128 (N.D.1990) (right to sue for rescission). While we have not decided specifically whether the benefit of a statute of limitations is assignable, as Burr v. Kulas, 1997 ND 98, \\u00b6 12, 564 N.W.2d 631, indicates, we have a general policy of selecting the longer statute of limitations when there is a reasonable dispute over which statute applies.\\n[\\u00b6 21] Duttenhefner relies on WAMCO for the proposition the federal statute of limitations is personal in character and incapable of assignment. We reject WAMCO for the same reasons other courts have rejected its reasoning. For its conclusion the statute of limitations is personal in nature, the court in WAMCO, 856 F.Supp. at 1086, quotes from 6A C.J.S. Assignments \\u00a7 76, at p. 719 (1975) (emphasis added): \\\"Unless a contrary intention is manifest or inferable, an assignment ordinarily carries with it all rights, remedies, and benefits which are incidental to the thing assigned, except those which are personal to the assignor and for his benefit only.\\\" But as the Texas Supreme Court accurately explained in Jackson v. Thweatt, 883 S.W.2d 171, 176 (Tex.), cert. denied, 513 U.S. 872, 115 S.Ct. 196, 130 L.Ed.2d 127 (1994):\\nAn examination of the cases cited in Corpus Juris Secundum in support of the quoted rule, however, reveals that rights \\\"personal\\\" to the assignor are those which, although relating to the property assigned, constitute accrued causes of action that may be asserted independently of ownership of the property. See Breidecker v. General Chem. Co., 47 F.2d 52 (7th Cir. 1931) (conveyance of land held not to constitute an assignment of the grantor's cause of action for damages previously sustained for trespass upon the land conveyed); Huston v. Ohio & Colorado Smelting & Ref. Co., 63 Colo. 152, 165 P. 251 (1917) (assignment of stock held not to transfer assignor's cause of action for fraud in connection with the stock's purchase). The extended limitations period afforded by FIRREA, which confers no benefit independent of the asset to which it relates, does not fall into this category.\\nSee also Bruin Holdings, Inc. v. Moderski, 960 F.Supp. 62, 67 (M.D.Pa.1996); Gerard, 949 P.2d at 416-17. We believe RTC's right to sue within the time allowed by the federal statute of limitations was inherent in possession of the instruments it held and was among the rights, remedies and benefits that are incidental to the thing assigned. It was not a personal right incapable of assignment.\\n[\\u00b6 22] Under the North Dakota law of assignment, we conclude Global acquired the right to rely on the extended federal statute of limitations, 12 U.S.C. 1821(d)(14), in bringing this collection action against Duttenhef-ner. Because the federal statute of limitations applies under state law, Global's action is not barred.\\n[\\u00b6 23] The summary judgment is reversed and the case is remanded for trial.\\n[\\u00b6 24] VANDE WALLE, C.J., and MARING, NEUMANN and SANDSTROM, JJ., concur.\"}"

nd/11888191.json

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+"{\"id\": \"11888191\", \"name\": \"William M. BUCKINGHAM, Marion L. Buckingham, Arnold J. Metzger, Levina S. Metzger, Ann M. Alhamrani, Donald L. Hinkle, Lavon F. Hinkle, Gilbert W. Ellwein, Iris G. Ellwein, Maynard F. Sholts, Evelyn V. Sholts, Claudius A. Wold and Florence E. Wold, Plaintiffs and Appellants, v. WESTON VILLAGE HOMEOWNERS ASSOCIATION, a corporation, Defendant and Appellee\", \"name_abbreviation\": \"Buckingham v. Weston Village Homeowners Ass'n\", \"decision_date\": \"1997-12-09\", \"docket_number\": \"Civil No. 970114\", \"first_page\": 842, \"last_page\": \"846\", \"citations\": \"571 N.W.2d 842\", \"volume\": \"571\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T20:03:32.930126+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 17] NEUMANN, SANDSTROM and MESCHKE, JJ., and GERALD G. GLASER, Surrogate Judge, concur.\", \"parties\": \"William M. BUCKINGHAM, Marion L. Buckingham, Arnold J. Metzger, Levina S. Metzger, Ann M. Alhamrani, Donald L. Hinkle, Lavon F. Hinkle, Gilbert W. Ellwein, Iris G. Ellwein, Maynard F. Sholts, Evelyn V. Sholts, Claudius A. Wold and Florence E. Wold, Plaintiffs and Appellants, v. WESTON VILLAGE HOMEOWNERS ASSOCIATION, a corporation, Defendant and Appellee.\", \"head_matter\": \"1997 ND 237\\nWilliam M. BUCKINGHAM, Marion L. Buckingham, Arnold J. Metzger, Levina S. Metzger, Ann M. Alhamrani, Donald L. Hinkle, Lavon F. Hinkle, Gilbert W. Ellwein, Iris G. Ellwein, Maynard F. Sholts, Evelyn V. Sholts, Claudius A. Wold and Florence E. Wold, Plaintiffs and Appellants, v. WESTON VILLAGE HOMEOWNERS ASSOCIATION, a corporation, Defendant and Appellee.\\nCivil No. 970114.\\nSupreme Court of North Dakota.\\nDec. 9, 1997.\\nRay H. Walton (argued), Bismarck, for plaintiffs and appellants.\\nJames P. Rausch (argued), of Rausch Law Office, Bismarck, for defendant and appellee.\", \"word_count\": \"2057\", \"char_count\": \"12986\", \"text\": \"MARING, Acting Chief Justice.\\n[\\u00b6 1] The plaintiffs, unit owners in the Weston Village condominium development, have appealed from a summary judgment dismissing their action seeking a declaratory judgment prohibiting enforcement of an amendment to the condominium's bylaws. We reverse and remand for further proceedings consistent with this opinion.\\n[\\u00b6 2] Weston Village is a condominium project located in Bismarck. The Weston Village Homeowners Association [the Association], made up of all unit owners in the project, manages the project. The owners elect a board of directors to oversee day-today operations.\\n[\\u00b6 3] The original units were constructed in 1973. In 1985, seven new units were added in an area on East Brandon Drive. The plaintiffs [\\\"the East Brandon owners\\\"] are the owners of these seven newer units.\\n[\\u00b6 4] The unit owners own their individual units, and all unit owners own the common areas, including the private streets in the development, as tenants in common in proportion to each unit's interest in the entire project. See N.D.C.C. \\u00a7 47-04.1-06; Agassiz West Condominium, Ass'n v. Solum, 527 N.W.2d 244, 246 (N.D.1995). The dispute in this case centers upon assessments for street improvements and repairs in the older, original section of Weston Village. At the time the East Brandon owners purchased their units, the bylaws provided:\\nRegular assessments must be fixed at a uniform rate for all units. Special assessments shall be computed by the Board of Directors against all units in proportion to the reasonable benefits conferred on each unit by the maintenance or improvement giving rise to such assessment. Both regular and special assessments may be collected on a monthly basis. [Emphasis added].\\n[\\u00b6 5] In May 1996 the Board determined that streets in the original section of Weston Village were in need of repair and improvement. The Board called a special meeting of the Association to allow members to vote on two proposals: (1) amendment of the bylaws to provide for uniform assessment of all unit owners for special assessments, and (2) approval of the street project and assessments for the project. The effect of the amendment would require the seven East Brandon owners, who would receive no direct benefit from the street project, to share equally in the $350,000 cost of that project with the owners of the other 78 units. Over the objections of the East Brandon owners, the bylaw amendment and street project were approved at the special meeting by a majority of the unit owners. The amended bylaw provides:\\nUniform Rate. Both regular and special assessments must be fixed at a uniform rate for all units, and may be collected on a monthly basis.\\n[\\u00b6 6] The East Brandon owners brought this action, seeking a declaration that the bylaw amendment is invalid and should not be enforced against them. On cross-motions for summary judgment the district court determined the amended bylaw was valid and dismissed the complaint. The East Brandon owners appealed.\\n[\\u00b6 7] Summary judgment is a procedural device available for the prompt and expeditious disposition of a case without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not change the result. Keator v. Gale, 1997 ND 46, \\u00b6 7, 561 N.W.2d 286 (1997); Pulkrabek v. Sletten, 557 N.W.2d 225,226 (N.D.1996). In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which may reasonably be drawn from the evidence. Keator, 1997 ND 46, \\u00b6 7, 561 N.W.2d 286 (1997). On appeal, we determine if the information available to the trial court precludes the existence of a genuine issue of material fact and entitles the moving party to judgment as a matter of law. Id. at 1997 ND 46\\u00b6 7, 561 N.W.2d 286 (1997).\\n[\\u00b6 8] The dispositive issue on appeal is whether the district court erred in concluding that, as a matter of law, the bylaw amendment was valid and enforceable against the East Brandon owners. Resolution of this issue requires an examination of the limitations, if any, upon the authority of a majority of unit owners to change the assessment scheme in a manner detrimental to the minority. Counsel for the Association suggests that, because the bylaws specifically allow amendment by a majority vote of unit owners in attendance at a meeting of the Association, the majority has virtually unlimited authority to impose its will upon the minority unit owners.\\n[\\u00b6 9] We have previously held that the actions of a condominium's board of directors will be reviewed under the business-judgment rule, which governs shareholders' derivative actions to review conduct of corporate directors. Agassiz West, 527 N.W.2d at 248. Under the business-judgment rule, actions of the condominium's board must be taken in good faith and in furtherance of the legitimate interests of the condominium, and may not involve fraud, self-dealing, uncon-scionability, or other misconduct. Id. We have not, however, previously addressed the review of actions of a condominium association which adversely affect a minority of unit owners.\\n[\\u00b6 10] Courts in other jurisdictions have concluded that there are limits upon the majority's authority in these circumstances. It has been held that the condominium association has a fiduciary relationship to the unit owners. Thanasoulis v. Winston Towers 200 Ass'n, 110 N.J. 650, 542 A.2d 900, 903 (1988). Courts have accordingly adopted a \\\"reasonableness\\\" rule, holding that, although the condominium's governing body has broad authority to regulate the internal affairs of the development, this power is not unlimited, and any rule, regulation, or amendment to the declaration or bylaws must be reasonable. See, e.g., O'Buck v. Cottonwood Village Condominium Ass'n, 750 P.2d 813, 817 (Alaska 1988); Johnson v. Hobson, 505 A.2d 1313, 1317 (D.C.1986); Scudder v. Greenbrier C. Condominium Ass'n, 663 So.2d 1362, 1369 (Fla.Dist.Ct.App.1995); Ridgely Condominium Ass'n v. Smymioudis, 343 Md. 357, 681 A.2d 494, 498 (1996); Bluffs of Wildwood Homeowners' Ass'n v. Dinkel, 96 Ohio App.3d 278, 644 N.E.2d 1100, 1102 (1994). Under the reasonableness test, a rule which r is unreasonable, arbitrary, or capricious is invalid. Worthinglen Condominium Unit Owners' Ass'n v. Brown, 57 Ohio App.3d 73, 566 N.E.2d 1275, 1277 (1989).\\n[\\u00b6 11] In applying the reasonableness test, the reviewing court must determine:\\n(1) whether the decision or rule is arbitrary,\\n(2) whether the decision or rule is applied in an even-handed or discriminatory manner, and\\n(3) whether the decision or rule was made in good faith for the common welfare of the owners and occupants of the condominium.\\nBluffs of Wildwood, 644 N.E.2d at 1102. Courts will especially consider whether the majority's action has an unfair or disproportionate impact on only certain unit owners. See Johnson, 505 A.2d at 1318. The reasonableness test\\nprotects against the imposition by a majority of a rule or decision reasonable on its face, in a way that is unreasonable and unfair to the minority because its effect is to isolate and discriminate against the minority. It provides a safeguard against a tyranny of the majority.\\nWorthinglen, 566 N.E.2d at 1278.\\n[\\u00b6 12] The underlying rationale for the reasonableness test has been expressed in Note, Judicial Review of Condominium Rulemak-ing, 94 Harv.L.Rev. 647, 647-648 (1981) (footnotes omitted):\\n[L]arge numbers of homeowners are now subject to condominium associations' rule-making power to promulgate restrictions that bind condominium unit owners. Although condominium associations are imbued with quasi-legislative power, they are not subject to the same statutory and constitutional restrictions that burden public governments. Such unconstrained regulatory power poses dangers for condominium owners that warrant closer scrutiny.\\nOne source of danger lies in the substantive reach of condominium rulemaking. Covenants and bylaws may range across an entire landscape of regulation, dictating architectural styles, owner maintenance assessments, the presence on the premises of children or pets, and even the owner's activities within his' home. Unless constrained by constitution, statute, or common law, such restrictions are unlimited in subject matter and in the burden they may impose on unit owners; the condominium association's ability to alter the condominium's restrictive scheme thus may result in unforeseeable and burdensome new obligations for individual unit owners. Condominium associations may also ignore elementary notions of equal treatment by formally exempting certain owners from restraints or by unevenly enforcing nominally uniform rules.\\n[\\u00b6 13] In the specific context of changing the method of assessments, the reasonableness rule may have especially broad application, prohibiting a change in the proportionate share of expenses without the owner's consent. See 15A Am.Jur.2d Condominiums and Co-operative Apartments \\u00a7 36 (1976) (\\\"proportionate obligation in the share of common expenses cannot be altered without the consent of the owner, absent a specific provision in the declaration to the contrary\\\"). In Thiess v. Island House Ass'n, 311 So.2d 142, 146 (Fla.Dist.Ct.App.1975), the court concluded:\\nIn the final analysis we have a situation where at the time appellants purchased their unit the Declaration of Condominium specified that they would become the owner of one-seventy third of the common elements and would be obligated for one-seventy third of the common expenses. In absence of a statement in the declaration that an owner's condominium parcel could be changed without his consent, the appellants had a right to rely on the fact that their proportionate obligation to share in the common expenses could not be altered unless they agreed to it. Since \\u00a7 711.15 provides that the Association may have a lien on each condominium parcel for any unpaid assessments, any other interpretation would place the minority of condominium owners at the mercy of the majority. The sharing of common expenses based upon a proportion of each unit's value may be advisable, but the original declaration specified otherwise. In this instance most of the money went to the upkeep of the apartments, but the next time it may be the villas which will need the repairs. Ap pellants did not join in the execution of the amendment; therefore, they may not be charged more than the share of common expenses allocated to them in the original declaration.\\n[\\u00b6 14] The facts in this case demonstrate the need for limitations on the majority's authority to change the method of assessments. We adopt the \\\"reasonableness\\\" test and conclude the power of a condominium's governing body to make rules, regulations or amendments to the declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.\\n[\\u00b6 15] The East Brandon owners purchased their units with the expectation they would be assessed for special projects based upon the proportionate benefit to their individual units. However, when a $350,000 street repair project in the original development was proposed, the majority amended the bylaws to require uniform assessment, including the East Brandon owners, for the project. At oral argument, counsel for the Association candidly conceded that, under the Association's legal theory, there would be nothing to prevent the Association from changing the bylaws back to benefit-based assessments if the next contemplated project would benefit only the East Brandon minority-\\n[\\u00b6 16] We reverse the summary judgment dismissing the complaint and remand to the trial court for consideration of the validity of the amendment to the bylaws under the \\\"reasonableness\\\" test set forth in this opinion, and for further proceedings as may be necessary.\\n[\\u00b6 17] NEUMANN, SANDSTROM and MESCHKE, JJ., and GERALD G. GLASER, Surrogate Judge, concur.\\n[\\u00b6 18] GERALD G. GLASER, Surrogate Judge, sitting in place of VANDE WALLE, C.J., disqualified.\\n. The Association asserts two of the East Brandon owners actually purchased their units when an earlier version of the bylaws was in effect. We need not resolve that issue on appeal.\"}"

nd/12013717.json

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+"{\"id\": \"12013717\", \"name\": \"STATE of North Dakota, Plaintiff and Appellee, v. Curtis v. HERRICK, Defendant and Appellant\", \"name_abbreviation\": \"State v. Herrick\", \"decision_date\": \"1997-08-11\", \"docket_number\": \"Criminal Nos. 970019-970021\", \"first_page\": 336, \"last_page\": \"344\", \"citations\": \"567 N.W.2d 336\", \"volume\": \"567\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T17:16:59.868252+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 29] SANDSTROM, NEUMANN, and MARING, JJ., concur.\", \"parties\": \"STATE of North Dakota, Plaintiff and Appellee, v. Curtis v. HERRICK, Defendant and Appellant.\", \"head_matter\": \"1997 ND 155\\nSTATE of North Dakota, Plaintiff and Appellee, v. Curtis v. HERRICK, Defendant and Appellant.\\nCriminal Nos. 970019-970021.\\nSupreme Court of North Dakota.\\nAug. 11, 1997.\\nFrederick R. Fremgen, Assistant State\\u2019s Attorney, Jamestown, for plaintiff and appel-lee.\\nRobin L. Olson, Olson Law Office, Grand Forks, for defendant and appellant.\", \"word_count\": \"3779\", \"char_count\": \"23386\", \"text\": \"VANDE WALLE, Chief Justice.\\n[\\u00b6 1] Curtis Herrick appealed from the trial court's judgment and conviction following his conditional plea of guilty to possession of a controlled substance with intent to manufacture, possession of a controlled substance, and possession of drug paraphernalia. Herrick contends the trial court erred in denying his motion to suppress. We reverse and remand.\\n[\\u00b62] In February 1995, Officer LeRoy Gross of the Jamestown, North Dakota, Police Department searched garbage cans located near a service alley at the back of Herrick's property. Gross was a member of the Department's Drug Task Force. The cans were placed near the alley, roughly three feet from the alley's edge, on Herrick's property. There were foot prints between the house and the cans. In searching the cans, Gross discovered a paper clip with residue on it, a seed, and a stem. It was later determined the stem, seed, and residue were all marijuana, but the seed was incapable of germination.\\n[\\u00b6 3] Gross and Corrinne Becker of the Stutsman County Narcotics Task Force conducted a subsequent search of Herrick's garbage can in January 1996. This time, the cans were about four feet from the alley and there were two plastic bags tied in the can. In one bag, Gross found bent metal wires, two stems, and four seeds. Gross also found a handwritten note describing ways to grow marijuana.\\n[\\u00b6 4] Using the information from the two searches, Becker applied for a warrant to search Herrick's house. In applying for the warrant, the magistrate asked Becker if she wanted a \\\"no-knock,\\\" nighttime warrant, to which Becker responded yes. When questioned during an evidentiary hearing on the motion to suppress why she wanted a no-knoek warrant, Becker stated a no-knock warrant was needed because \\\"[mjarijuana is an easily disposed of item when it's dry, when it's processed. It could easily be flushed down a toilet. We had evidence that there was marijuana inside of his house based on the garbage we found, leading me to believe that there was marijuana inside the house.... \\\"\\n[\\u00b6 5] The no-knock warrant was -executed at Herrick's house on January 2, 1996. Officer Gross knocked on the door, waited three seconds, and then broke the door open with a battering ram. Herrick was in the house at the time. In searching Herrick's house, the officers found marijuana, marijuana seeds and stems, equipment used for indoor horticulture, a book entitled Indoor Marijuana Horticulture, and several items of drug paraphernalia.\\n[\\u00b6 6] Herrick moved to suppress the evidence, claiming the search of his garbage cans and the issuance of the no-knock warrant violated his right against an unreasonable search and seizure. Herrick also argued the warrant was issued without probable cause and was signed by a biased magistrate. The trial court denied the motion, and Herrick entered a conditional guilty plea while preserving the issues argued in his motion to suppress for this appeal.\\n[\\u00b6 7] We do not reverse a trial court's decision to deny a motion to suppress if \\\" 'after conflicts in testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evi-derice.' \\\" State v. Erbele, 554 N.W.2d 448, 450 (N.D.1996) (quoting State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996)).\\nGarbage Can Search\\n[\\u00b6 8] Herrick argues the search of his garbage cans violated the Fourth Amendment of the United States Constitution and Article I Section 8 of the North Dakota Constitution. Herrick argues the garbage cans were on his property and not set out for pickup, and thus, he still had an expectation of privacy as to the contents of these cans.\\n[\\u00b6 9] In State v. Rydberg, 519 N.W.2d 306, 310 (N.D.1994), we stated \\\"placing . garbage [cans] on or against [a] public alley, where it [is] exposed to the general public, and with the express purpose of abandoning it to the trash collector . waive[s] any privacy interest . in the garbage.\\\" Under the North Dakota Constitution, Herrick must have a \\\" 'subjective expectation of privacy in [his] garbage that society accepts as objectively reasonable' \\\" for his garbage to be protected. State v. Carriere, 545 N.W.2d 773, 775 (N.D.1996) (quoting Rydberg, 519 N.W.2d at 309). See California v. Greenwood, 486 U.S. 35, 40-41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30, 36-37 (1988) (warrant-less searches of garbage cans set out for disposal are constitutionally valid under the Fourth Amendment of the United States Constitution); State v. Ronngren, 361 N.W.2d 224, 228 (N.D.1985) (defendant had no reasonable expectation of privacy in garbage after a dog carried garbage onto a neighbor's property).\\n[\\u00b6 10] The record shows the cans were roughly between two and six feet from the edge of the public alley. We will not engage in measuring expectations of privacy with a ruler. It is apparent Herrick placed the cans near the alley in an area where unknown garbage collectors picked them up and where other unknown people could rummage through the cans. Moreover, it appears when Herrick placed items in the garbage cans, he considered these items as trash and intended them to be picked up by the garbage collectors. Under Rydberg, Herrick's expectation of privacy is not objectively reasonable and he waived any expectation of privacy he had in the garbage.\\nNeutral and Detached Magistrate\\n[\\u00b6 11] Herrick contends the magistrate, in issuing the search warrant, demonstrated bias when he asked Becker if she wanted a no-knock, nighttime warrant. A warrant must be issued by a detached, neutral magistrate. Rule 41, N.D.R.Crim.P.; United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984); Ronngren, 361 N.W.2d at 229. From the testimony and warrant application form, it appears the issuing magistrate was merely trying to move the application process along when he asked Becker if she wanted a no-knock warrant. There is nothing on this record demonstrating the magistrate was biased or prejudiced against Herrick.\\nProbable Cause\\n[\\u00b6 12] Whether there is probable cause to issue a warrant is a question of law. State v. Winkler, 552 N.W.2d 347, 353 (N.D.1996). We review whether a warrant is issued with probable cause under the totality-of-the-eircumstances approach. Id. at 353 (citing Rydberg, 519 N.W.2d at 308). The task of the issuing magistrate \\\"is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place.\\\" Rydberg, 519 N.W.2d at 308.\\n[\\u00b6 13] Herrick maintains probable cause did not exist to issue the warrant. He states it is possible someone else could have dropped the seeds and stems into his garbage on both occasions. Furthermore, he argues while items found in his garbage indicate use, it would be mere speculation on the officer's part to believe any drugs or drug paraphernalia would be found in Herrick's home. But,\\n\\\" '[p]robable cause to search does not require the same standard of proof necessary to establish guilt at trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.' \\\"\\nRydberg, 519 N.W.2d at 308 (quoting State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988)).\\n[\\u00b6 14] In State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995), we thought it \\\"reasonable for the magistrate to have concluded, from the presence of marijuana seeds in [defendant's] garbage bag, that more marijuana was probably located inside his house.\\\"\\n[\\u00b6 15] Becker, in applying for the search warrant, stated probable cause for the search was based on the stems, seeds, and paraphernalia during the two searches of Herrick's garbage cans. The application for the search warrant was made on the same day as the second search. The officers had probable cause for applying for the search warrant under the standard described in Ringquist.\\nNo-Knock Warrant\\n[\\u00b6 16] Herrick argues the use of the no-knock warrant violated his right against unlawful search and seizure because it was not reasonable to issue a no-knock warrant under the circumstances.\\n[\\u00b6 17] Both the Fourth Amendment of the United States Constitution and Article I Section 8 of the North Dakota Constitution require all searches and seizures be reasonable. An element of this rule is officers entering a dwelling must knock and announce their presence. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995). However the rule of reasonableness is flexible, and, for law enforcement interests, such as the safety of law enforcement officers and the integrity of evidence, may not require officers to knock and announce prior to entry. Id. at 934-36, 115 S.Ct. at 1918; State v. Knudson, 499 N.W.2d 872, 876 (N.D.1993). In situations where a threat of physical violence or possible destruction of evidence may exist, officers may validly execute a no-knock warrant. Wilson, 514 U.S. at 934-36, 115 S.Ct. at 1918-1919; Knudson, 499 N.W.2d at 876.\\n[\\u00b6 18] Subsequent to the issuance of the warrant in this case, the United States Supreme Court again considered the application of no-knock warrants in drug cases. Richards v. Wisconsin, \\u2014 U.S. -, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). The case was appealed from the Wisconsin Supreme Court, which held\\n\\\"exigent circumstances are always present in the execution of search warrants involving felonious drug delivery. The public interests in these circumstances far outweigh the minimal privacy interests of the occupants of the dwelling for which a search warrant has already been issued . [PJolice are not required to adhere to the rule of announcement when executing a search warrant involving felonious drug delivery.''\\nState v. Richards, 201 Wis.2d 845, 549 N.W.2d 218, 227 (1996) (emphasis added). The United States Supreme Court recognized the need for a no-knock warrant in drug cases, because these cases frequently involve the threat of physical violence and the likelihood of the destruction of evidence, but did not agree with the Wisconsin Court's per se rule:\\n\\\"[W]hile drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree.\\nThus . in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.\\\"\\nRichards, \\u2014 U.S. at -, 117 S.Ct. at 1421. Under Richards, law enforcement officials must have a reasonable suspicion the announcement of their presence would jeopardize the search to justify the use of a no-knock warrant. Id. This burden, requiring a balance between legitimate law enforcement interests and the privacy interests of the individual, \\\"is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.\\\" Id. at-, 117 S.Ct. at 1422.\\n[\\u00b6 19] The State argues reasonable suspicion the evidence might be destroyed or the officers are in danger is all that is necessary for a no-knock warrant. But, the clear language of section 19 \\u2014 03.1\\u2014 32(3), N.D.C.C., requires \\\"probable cause\\\" for the issuance of a no-knock warrant. Our decisions on the issuance of no-knock warrants speak in terms of probable cause. See, e.g., State v. Borden, 316 N.W.2d 93, 96 (N.D.1982); State v. Loucks, 209 N.W.2d 772, 776-77 (N.D.1973). Rule 41(c), N.D.R.Crim. P., which together with section 19-03.1-32(2), N.D.C.C., govern the issuance of nighttime warrants, uses the term \\\"reasonable cause shown\\\" and we have construed this term synonymously with probable cause for the purpose of issuing a nighttime warrant under section 19-03.1-32(2). Knudson, 499 N.W.2d at 875. Insofar as there may be a conflict between section 29-29-08, N.D.C.C., a more general statute governing no-knock warrants, and section 19-03.1-32, N.D.C.C., the latter prevails with respect to offenses involving controlled substances. Loucks, 209 N.W.2d at 777. It is now axiomatic that the state may grant greater but not lesser protections than the United States Constitution. State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974). Our legislature has done so. Probable cause is required for issuance of a no-knock warrant under section 19-03.1-32, N.D.C.C.\\n[\\u00b6 20] Under North Dakota's Controlled Substances Act, N.D.C.C. Chapter 19-03.1, an officer\\n\\\"authorized to execute a search warrant, without notice of the officer's authority and purpose, may break open an outer or inner door or window of a building, or any part of the building, or anything therein, if the judge or magistrate issuing the warrant has probable cause to believe that if such notice were to be given the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, and has included in the warrant a direction that the officer executing it is not required to give such notice. Any officers acting under such warrant, as soon as practicable after entering the premises, shall identify themselves and state the purpose of entering the premises and the authority for doing so.\\\" (Emphasis added).\\nN.D.C.C. \\u00a7 19-03.1-32(3).\\n[\\u00b6 21] These statutory provisions are not in conflict with Richards. On the issue of no-knock warrants, we have previously stated,\\n\\\"[t]he purpose of the no-knock warrant is to protect the safety of law enforcement officers and the integrity of evidence. A no-knock warrant in drug cases is available under this statute, because we have taken judicial notice that those in possession of controlled substances ordinarily are on the alert to destroy the typically easily disposable evidence quickly at the first sign of a law enforcement officer's presence.\\\"\\nKnudson, 499 N.W.2d at 876 (citing Borden, 316 N.W.2d at 96 and Loucks, 209 N.W.2d at 776-77). Insofar as our prior rhetoric approves a per-se rule in drug cases justifying the issuance of no-knock warrants, they are overruled. Mere allegations that drugs are present cannot automatically result in the issuance of a noknock warrant. See United States v. Moore, 956 F.2d 843, 850 (8th Cir.1992) (blanket rule permitting no-knock search warrant in all drug cases, regardless of whether form and quantities suspected to be present can be readily disposed is patently unreasonable).\\n[\\u00b6 22] The officer applying for the search warrant, when questioned if she sought a no-knock warrant responded yes, stating, \\\"[i]f [Herrick] had forewarning that we were coming in, I think that he would be inclined to destroy any kind of evidence that would link him to the drugs.\\\" On the affidavit attached to the search warrant application, the officer listed property to be seized as \\\"Controlled substances, Drug paraphernalia, Financial documents, Lists of associates, Access to vehicles/garages, Phone ree-ords/bills, Ledgers/notebooks/documents showing possible orders or sales, Cassette from answering machine, [and] Light bulbs, fertilizer, growing equipment, etc.\\\" The officers stated they were looking for a grow operation, not simply for controlled substances reflecting personal use.\\n[\\u00b6 23] On this record, the officer offered no reason for the no-knock warrant other than marijuana was easily disposed of and that Herrick would destroy the evidence if forewarned. The magistrate initiated no further inquiry as to why the officer thought Herrick may dispose of any controlled substances he may have on the premises. The officer did not meet her burden of demonstrating the need of her request for the no-knock warrant. There is no evidence in this record, other than the possible existence of drugs and an explained belief that Herrick would dispose of the evidence if forewarned, demonstrating why the officers needed a no-knock warrant. It is apparent to us the magistrate, relying on the previous decision of this Court, applied a per-se rule comparable to that struck down in Richards.\\n[\\u00b6 24] Although in possession of a no-knock warrant, the officers testified they did knock but waited only 3 seconds before battering in the door. The trial court apparently considered the execution of the warrant as a no-knock warrant and so will we. See Wayne R. LaFave, Search and Seizure, \\u00a7 4.8(c) at 608 (3d. ed.1996) (wait of two to four seconds is inadequate). There is nothing in the record to indicate the officers intended to effectively announce their presence. If there were something in the record to indicate the officers did so intend, like Richards, invalidating the issuance of a no-knock warrant under a per-se rule, a last minute decision to force entry cannot rest on an assumption. United States v. Lucht, 18 F.3d 541, 551 (8th Cir.1994); cert. denied, 513 U.S. 949, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994).\\nRemedy\\n[\\u00b6 25] The State also urges we now embrace what we have often discussed, State v. Lewis, 527 N.W.2d 658, 663 (N.D.1995); see, e.g., Sakellson, 379 N.W.2d at 784-85, but never adopted, i.e., the \\\"good-faith\\\" exception to the exclusionary rule used in United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984) (good-faith exception to exclusionary rule where officers' reliance on magistrate's determination of probable cause was \\\"objectively reasonable\\\"). The issue was raised by the State in its brief to the trial court on the motion to suppress as part of the issue of whether it was reasonable to issue a no-knock warrant:\\n\\\"If the no-knock aspect of the warrant is found void and it is determined that the police did not knock and announce prior to entry, then the police should be allowed a good faith exception to the warrant requirement. In State v. Sakellson, the North Dakota Supreme Court discussed its criteria for granting a good faith exception to the warrant requirement. State v. Sakellson, 379 N.W.2d 779, 784-85 (N.D.1985). Essentially, the court required a good faith belief that the conduct was authorized. Sakellson at 785. The court explained that the belief must be objectively reasonable and based on an articulable premise sufficient to cause a reasonable, reasonably trained, officer to believe he was acting lawfully. Id. In Herrick's case, the officers sought a no-knock warrant for the search of a house they reasonably believed to contain marijuana. The circumstances under which they sought the no-knock warrant would cause a reasonable officer, reasonably trained to believe a no-knock was appropriate. As righteously anticipated, the no-knock was granted. A subsequent execution of a no-knock warrant would have been reasonable in all aspects required by Sakellson.\\\"\\nNo response was made to this issue in the trial court. The trial court did not discuss it in the opinion denying the motion to suppress and, on appeal, no response was made by Herrick to the State's brief requesting application of the rule if we find the warrant invalid.\\n[\\u00b6 26] Altho\\u00fcgh we discussed the good-faith exception in Sakellson, we have never adopted it nor did the Court prescribe \\\"its criteria for granting a good faith exception to the warrant requirement.\\\" The issue of whether or not to adopt the good faith rule and, if it is adopted whether to apply it in a specific case are separate issues. Sakellson discussed application but neither it nor our other cases, e.g., Lewis, discuss whether we should or should not recognize a good-faith exception to the exclusionary rule. We decline to decide the question at this time without adequate briefing, including discussion of the merits or demerits of recognizing such an exception generally.\\n[\\u00b6 27] In view of the fact we have reversed under Richards, we now remand to the trial court for consideration of whether or not a good-faith exception to the exclusionary rule should be applied in this case. If, after the decision of the trial court, a further appeal is taken raising the issue of the good-faith exception, the parties are instructed to brief the question of whether we should recognize a good-faith exception and, if so, whether it should be applied in this ease.\\n[\\u00b6 28] The judgment of conviction and the order denying suppression are reversed and the matter is remanded for further proceedings consistent with this opinion.\\n[\\u00b6 29] SANDSTROM, NEUMANN, and MARING, JJ., concur.\\n. The Court in Richards v. Wisconsin, \\u2014 U.S. -,-, n. 1, 117 S.Ct. 1416, 1420, n. 1, 137 L.Ed.2d 615 (1997) cites several cases, including State v. Loucks, 209 N.W.2d 772 (N.D.1973) that predate Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) and \\\"have adopted similar rules, concluding that simple probable cause to search a home for narcotics always allows the police to forego the knock-and-announce requirement.\\\"\"}"

nd/12151956.json

@@ -0,0 +1 @@
+"{\"id\": \"12151956\", \"name\": \"In the INTEREST OF Raymond VOISINE Jonathan Byers, Special Assistant State's Attorney, Petitioner and Appellee v. Raymond J. Voisine, Respondent and Appellant\", \"name_abbreviation\": \"Byers v. Voisine\", \"decision_date\": \"2016-12-30\", \"docket_number\": \"No. 20160061\", \"first_page\": 781, \"last_page\": \"789\", \"citations\": \"888 N.W.2d 781\", \"volume\": \"888\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T23:30:31.375961+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 25] Lisa Fair McEvers\", \"parties\": \"In the INTEREST OF Raymond VOISINE Jonathan Byers, Special Assistant State\\u2019s Attorney, Petitioner and Appellee v. Raymond J. Voisine, Respondent and Appellant\", \"head_matter\": \"2016 ND 254\\nIn the INTEREST OF Raymond VOISINE Jonathan Byers, Special Assistant State\\u2019s Attorney, Petitioner and Appellee v. Raymond J. Voisine, Respondent and Appellant\\nNo. 20160061\\nSupreme Court of North Dakota.\\nFiled 12/30/2016\\nJonathan R. \\u2022' Byers, Special Assistant State\\u2019s Attorney, Office of the Attorney General, Bismarck, ND, petitioner and ap-pellee,\\nKent M. Morrow, Bismarck, ND, for respondent and appellant.\", \"word_count\": \"2912\", \"char_count\": \"18310\", \"text\": \"VandeWalle, Chief Justice.\\n[\\u00b6 1] Raymond Voisine appealed a district court order finding he remains a sexually dangerous individual and denying his petition for discharge from the- North Dakota State Hospital. We affirm.\\nI.\\n[\\u00b62] Stemming from his conviction of gross sexual imposition in 2008, the State petitioned to commit Voisine to the state hospital as a sexually dangerous individual under N.D.C.C. ch. 25-03.3.\\n[\\u00b63] Voisine's actions, leading to his civil commitment as a sexually dangerous individual, have resulted in six previous appeals to this Court. See Voisine v. State, 2008 ND 91, 748 N.W.2d 429 (reversing and vacating revocation of probation in postconviction proceeding); Matter of Voisine, 2010 ND 17, 777 N.W.2d 908 (reversing commitment as sexually dangerous individual and remanding for further proceedings); Interest of Voisine, 2010 ND 241, 795 N.W.2d 38 (summarily affirming commitment as sexually dangerous individual); Interest of Voisine, 2012 ND 250, 823 N.W.2d 786 (summarily affirming denial of request for discharge from commitment as sexually dangerous individual); Voisine v. State, 2014 ND 98, 859 N.W.2d 930 (summarily affirming denial of petition for postconviction relief); In re Voisine, 2014 ND 178, 859 N.W.2d 930 (summarily affirming denial of request for .discharge from commitment as sexually dangerous individual).\\n[\\u00b6 4] In December of 2014, Voisine again petitioned for discharge. The district court held a hearing in January of 2016. At the hearing, the State called one witness, Dr. Jennifer Krance, a psychologist at. the state hospital. Dr. Krance testified Voisine remained a sexually dangerous individual because Voisine suffered from a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or mental disorder or dysfunction, he was likely to reoffend, and has serious difficulty in controlling- his behavior. Dr. Stacey Benson, a clinical psychologist, testified for Voisine. Dr. Benson disagreed with Dr. Krance's findings and testified she did not believe Voisine remained a sexually dangerous individual. In February 2016, the district court issued an order finding Voi-sine remained a sexually dangerous, individual and continued his commitment.\\nII.\\n[\\u00b6 5] At a discharge hearing, the burden is on the State to prove by clear and convincing evidence that the committed individual remains sexually dangerous. In re J.T.N., 2011 ND 231, \\u00b6 4, 807 N.W.2d 570. For the State to meet its burden, it \\\"must prove three statutory elements and establish an additional constitutional requirement that is not a fourth element, but 'is a part of the definition of a \\\"sexually dangerous individual.\\\" ' \\\" Id. (quoting Matter of Midgett, 2010 ND 98, \\u00b6 7, 783 N.W.2d 27). Under N.D.C.C. \\u00a7 25-03.3-01(8), \\\"sexually, dangerous individual\\\" is defined as:\\nan individual [1] who is shown to have engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction [3] that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.\\nThe State must also prove an additional constitutional requirement which requires the finding that the committed individual has serious difficulty controlling his or her behavior. J.T.N., 2011 ND 231, \\u00b65, 807 N.W.2d 570; Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct 867, 151 L.Ed.2d 856 (2002).\\n[\\u00b6 6] Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard of review. Midgett, 2010 ND 98, \\u00b6 6, 783 N.W.2d 27. This Court explained:\\nWe will affirm a trial court's order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence. In reviewing the trial court's order, we give great deference to the court's credibility determinations of expert witnesses and weight to be given their testimony. The trial court is the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court's credibility determinations.\\nMatter of Wolff, 2011 ND 76, \\u00b6 5, 796 N.W.2d 644 (internal quotations and citations omitted).\\nIII.\\n[\\u00b6 7] Voisine does not contest he meets the first factor of a sexually dangerous individual, that he has engaged in sexually predatory conduct. Rather, Voisine argues the district court erred when it determined that there was clear and convincing evidence that he (1) suffered from a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; (2) is likely to engage in further acts of sexually predatory conduct; and (3) has serious difficulty controlling his behavior.\\nA.-\\n[\\u00b6 8] Voisine argues the district court \\\"failed to provide any detailed analysis of why Dr. Kranee's diagnoses was more credible\\\" than Dr. Benson's diagnoses.\\n[\\u00b6 9] \\\"Claims that a district court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence.\\\" J.T.N., 2011 ND 231, \\u00b6 8, 807 N.W.2d 670. We have declined to reweigh expert testimony as \\\"[evaluation of credibility where evidence is conflicting is solely a trial court function.\\\" Alumni Ass'n of U. of N.D. v. Hart Agency, Inc., 283 N.W.2d 119, 121 (N.D. 1979). Additionally, \\\"[w]hen witnesses give conflicting testimony, we do not decide to believe a witness different from the one believed by the district court.\\\" Hill v. Weber, 1999 ND 74, \\u00b6 12, 692 N.W.2d 586. \\\"[A] choice between two permissible views - of the weight of the evidence is not clearly erroneous.\\\" Wolff, 2011 ND 76, \\u00b6 14, 796 N.W.2d 644.\\n[\\u00b6 10] Here, two, doctors testified about Voisine's mental disorders. Dr. Krance diagnosed Voisine with other specified paraphilic disorder and a personality disorder not otherwise specified with antisocial features. Dr. Benson disagreed with these diagnoses, testifying that Voisine was better categorized as having dysthemic disorder, alcohol dependence, and antisocial traits. Ultimat\\u00e9ly, the district court agreed with Dr. Kranee's diagnoses.\\n[\\u00b6 11] To support her diagnoses, Dr. Krance testified Voisine \\\"had sexual interest or sexually offended against a prepubescent male victim, as well as. there having been allegation of hebephilic tendencies of an individual between the age of 12 to 14,... There's also indications within the records of incestuous behaviors.\\\" When asked about the differences between her diagnosis of antisocial traits and Dr. Krance's diagnosis of a personality disorder not otherwise, specified with antisocial features, Dr. Benson testified the psychology profession itself has difficulty drawing lines to. distinguish between the diagnoses. Dr. Benson explained, \\\"that unspecified personality disorder has no agreed upon criteria . the scientific community doesn't agree . what exactly it takes to have that disorder.\\\"\\n[\\u00b6 12] In-.weighing the .testimony, the district court looked at two factors. The first being that both doctors acknowledge that Voisine was not diagnosed with antisocial personality disorder solely because there was insufficient information concem-ing his behavior prior to the age of 15. The second factor the district court looked at was Voisine's behavior and lack of reliability. The district court explained:\\nVoisine has not provided reliable self-reports and has continued in implausible denials of problematic behavior. For instance, although it has been established by overwhelming evidence that he has been involved in an incestuous relationship resulting in his daughter giving birth to his child, he continues to deny the incest. He was found naked in his room with his roommate present within the past several months, but denies he was naked, suggesting he was wearing tan clothing.\\nWe construe this statement by the district court not to mean that Voisine has the burden to show he doesn't have a mental or sexual disorder, but rather that the State has already met its burden and Voi-sine has failed to provide anything to refute the State's evidence.\\n[\\u00b6 13] In the end, Voisine is asking this Court' to find that one expert's diagnoses was more correct than another. As stated, we do not reweigh expert testimony. Because the district court's findings were consistent with the evidence presented at the h\\u00e9aring, it was not clearly erroneous to find that Voisine has diagnoses of a sexual disorder and a personality disorder.\\nB.\\n[\\u00b614] Next, Voisine argues the district court erroneously held he was likely to engage in further acts of predatory conduct which constitute a danger to the physical or mental health or safety of others. Voisine's argument is centered around two points: (1) to determine this factor, test scores from various actuarial evaluations must show a likelihood of engaging in further acts, and (2) the district court incorrectly relied upon Dr. Kranee's testimony rather than Dr. Benson's.\\n[\\u00b6 15] Courts are not restricted to actuarial tests in determining whether an individual is likely to engage in further acts of predatory conduct. In re Cormcm, 2014 ND 88, \\u00b6 17, 845 N.W.2d 335. Courts and experts may \\\"use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society.\\\" Matter of Voisine, 2010 ND 17, \\u00b6 14, 777 N.W.2d 908 (quoting Interest of M.B.K., 2002 ND 25, \\u00b6 18, 639 N.W.2d 473). \\\"[AH relevant conduct should be considered.\\\" Voisine, 2010 ND 17, \\u00b6 14, 777 N.W.2d 908. In Coman, we recognized the district court's analysis that actuarial scores are not substitutes for judicial decision-making or review; they are merely one factor to weigh in determining whether an individual is likely to engage in further acts of sexually predatory conduct. Coman, at \\u00b6 17 (citing Matter of Anderson, 2007 ND 50, \\u00b6 54, 730 N.W.2d 570 (Kapsner, J., dissenting)).\\n[\\u00b6 16] As we noted above, a district court's decision as to the weight of expert testimony will not be second-guessed by this Court and a choice between two permissible views of the weight of the evidence is not clearly erroneous.\\n[\\u00b6 17] Voisine argues that there was not enough evidence presented through Dr. Krance's medical opinion to override Dr. Benson's findings on the actuarial assessments. Voisine points to his low Static-99R score from both of the doctors and argues that Dr. Krance never explained the difference between her score of 32 on the PCL-R and Dr. Benson's score of 22.\\n[\\u00b6 18] Voisine's argument fails for two reasons. First, as stated, an individual's actuarial scores are only one factor to weigh in determining whether an individual is likely to engage in further acts of sexually predatory conduct. Here, the district court did not rest its finding solely on Voisine's actuarial scores. The district court acknowledged that Voisine did not have high scores on the actuarial tools, but noted there were other factors which led it to conclude that Voisine was likely to reof-fend. The district court stated:\\nVoisine does not participate well in treatment. He often sleeps through treatment sessions or fails to engage in the discussions. He has exhibited anger requiring intervention. While there have been times when he begins to open-up and engage in treatment, those are followed by periods of regression. Mr. Voi-sine has indicated to treatment professionals he has secrets to share, but has failed to do so. Although Mr. Voisine may be challenged in his ability to read and write, he has failed to accept help with reading or writing .which would allow him to participate more fully in treatment.\\nMr. Voisine has had 18 resident behavior write-ups since April of 2013, mostly minor. Some have involved dishonesty. Others involved lack of respect for staff. The write-ups are troubling because they demonstrate an on-going unwillingness to follow rules.\\n[\\u00b6 19] Second, Voisine's argument fails because he is again asking this Court to reweigh the evidence; that is, to find that Dr. Benson's assessments and reasoning are more probative than Dr. France's. This Court will not reweigh the evidence presented at the district court. Because it is supported by sufficient evidence, the district court's holding that Voisine is likely to reoffend is not clearly erroneous.\\nC.\\n[\\u00b6 20] Lastly, Voisine argues the district court erroneously found he met the constitutional requirement of having serious difficulty with controlling his behavior.\\n[\\u00b6 21] In addition to the three prongs required under N.D.C.C. \\u00a7 25-03.3-01(8), the United States Supreme Court held that a constitutional requirement is needed to satisfy substantive due process. In re Hehn, 2008 ND 36, \\u00b6 19, 745 N.W.2d 631.\\nIn Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the United States Supreme Court concluded that commitment as a sexually dangerous individual cannot constitutionally be sustained without determining that the person to be committed has serious difficulty in controlling his or her behavior. Therefore, consistent with N.D.C.C. \\u00a7 1-02-38(1), we have construed the definition of a sexually dangerous individual to require that there must be a nexus between the disorder and dangerousness, proof of which encompasses evidence showing the individual has serious difficulty in controlling his behavior, which suffices to distinguish a sexually dangerous individual from other dangerous persons.\\nIn re G.R.H., 2008 ND 222, \\u00b6 7, 758 N.W.2d 719 (citing E.W.F., 2008 ND 130, \\u00b6 10, 751 N.W.2d 686). In determining whether an individual has serious difficulty controlling his or her behavior, a court considers all relevant conduct. J.T.N., 2011 ND 231, \\u00b6 13, 807 N.W.2d 570. Additionally, in finding an individual has serious difficulty in controlling his or her behavior, \\\"the district court must specifically state in its memorandum opinion the facts upon which its ultimate conclusion is based.\\\" Matter of Rush, 2009 ND 102, \\u00b6 10, 766 N.W.2d 720.\\n[\\u00b6 22] Under our modified clearly erroneous standard of review, we conclude sufficient evidence exists from which the district court could conclude Voisine is a sexually dangerous individual and has serious difficulty controlling his behavior. At the hearing, Dr. Krance testified it was her professional opinion that Voisine had serious difficulty controlling his behavior. She testified she formed her opinion based upon Voisine's lack of progress in his treatment program and his write-up which indicated his dishonesty with the staff. In finding Voisine had serious difficulty controlling his behaviors, the district court relied upon multiple facts, including:\\nMr. Voisine has not participated in a meaningful manner in sexual offender treatment. He has not acknowledged his crime, nor has he learned ways to control his behavior or improve his coping skills. He has not worked on any plans for behavior modification, which would give him the tools he needs to control his behavior. In fact, he appears to not want to work on any of those behaviors.\\n' [\\u00b6 23] We conclude the district court was not clearly erroneous in finding there' was a sufficient nexus between Voisine's sexual disorder of other specified paraphilic disorder and his dangerousness and that he has serious difficulty in controlling his behavior.\\nIV,\\n[\\u00b6 24] We affirm the district court's order finding Voisine remains a sexually dangerous individual.\\n[\\u00b6 25] Lisa Fair McEvers\\nDaniel J. Crothers\\nMary Muehlen Maring\\n[\\u00b6 26] The Honorable Mary Muehlen Maring, S.J., sitting in place of Sandstrom, J., disqualified.\"}"

nd/12332436.json

@@ -0,0 +1 @@
+"{\"id\": \"12332436\", \"name\": \"Jimmy BOOTH, Jr., Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee\", \"name_abbreviation\": \"Booth v. State\", \"decision_date\": \"2017-04-25\", \"docket_number\": \"No. 20160200\", \"first_page\": 186, \"last_page\": \"192\", \"citations\": \"893 N.W.2d 186\", \"volume\": \"893\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-11T02:17:28.196744+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 17] Jerod E. Tufte\", \"parties\": \"Jimmy BOOTH, Jr., Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee\", \"head_matter\": \"2017 ND 97\\nJimmy BOOTH, Jr., Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee\\nNo. 20160200\\nSupreme Court of North Dakota.\\nFiled 4/25/2017\\nSamuel A. Gereszek, P.O. Box 4, East Grand Forks, Minn. 56721-0004, for petitioner and appellant.\\nNathan K. Madden, Assistant State\\u2019s Attorney, P.O. Box 2047, Williston, N.D. 58802, for respondent and appellee.\", \"word_count\": \"2733\", \"char_count\": \"16717\", \"text\": \"Tufte, Justice.\\n[\\u00b6 1] Jimmy Booth, Jr., appeals from a judgment denying his application for post-conviction relief based on allegations of ineffective assistance of counsel. We affirm because Booth failed to establish that he was prejudiced by the allegedly deficient performance of his counsel.\\nI\\n[\\u00b6 2] Booth pled guilty to manufacturing a controlled substance, possession of a controlled substance, possession of drug paraphernalia, and four counts of endangerment of a child. Booth, accompanied by his attorney, agreed with the factual basis presented for the plea. The district court accepted the plea agreement and sentenced Booth to ten years of incarceration on each count to be served concurrently, with credit for time served. Booth timely moved for reduction of his sentence. The court denied the motion.\\n[\\u00b6 3] Booth then moved to correct an illegal sentence under N.D.R.Crim.P. 35(a)(1), arguing his sentence was illegal because the State gave him only a one-day notice of its intention to seek habitual offender sentence enhancement under N.D.C.C. \\u00a7 12.1-32-09. The district court denied the motion and this Court affirmed in State v. Booth, 2015 ND 59, 861 N.W.2d 160. This Court concluded \\\"the one-day notice was reasonable\\\" and \\\"Booth did not suffer prejudice resulting from the State's one-day notice of intent to seek the habitual offender sentence enhancement.\\\" Id. at \\u00b6 6. Booth's voluntary guilty plea waived any challenge to such procedural defects. Id. at \\u00b6 8.\\n[\\u00b6 4] Booth then filed a pro se application for posteonviction relief under N.D.C.C. ch. 29-32.1, claiming he received ineffective assistance of counsel leading up to his guilty plea. Booth alleged his attorney failed to: 1) determine whether the evidence seized during a search \\\"was properly received into custody (chain of custody) in a timely and legal manner\\\"; 2) conduct an investigation to determine whether (a) he was unconstitutionally detained, (b) he was informed of his Miranda rights, (c) the State Laboratory had tested the evidence, (d) the evidence belonged to someone else, and (e) his DNA or fingerprints were found on the evidence; 3) conduct a \\\"complete investigation of all relevant facts\\\" before advising him to plead guilty; 4) promptly comply with his requests for information as required by N.D.R. Prof. Conduct 1.4; and 5) represent him competently under the North Dakota Rules of Professional Conduct. Booth claimed he was prejudiced because he \\\"would have more thoughtfully considered trying the case before a jury,\\\" and he \\\"would not have plead guilty, but for the advice of Counsel.\\\" The district court appointed counsel for Booth, who filed a supplement to the petition, additionally claiming: 1) the court had failed to follow N.D.R.Crim.P. 11 procedures because Booth was not informed of his right to counsel when he entered the guilty plea; and 2) Booth's guilty plea was not knowingly and voluntarily entered.\\n[\\u00b6 5] The district court held an evidentia-ry hearing where it heard testimony from Booth and his attorney in the underlying criminal matter. Booth raised other issues at the hearing and testified he would not have pled guilty if his attorney had competently advised him. Booth's attorney explained his handling of the case and testified Booth wanted to plead guilty and \\\"had more desire to dispose of his case th[a]n most clients do.\\\" The court denied Booth's application for postconviction relief, concluding the claims of noncompliance with N.D.R.Crim.P. 11 and his allegedly involuntary guilty plea could have been raised in the proceedings leading to Booth, 2015 ND 59, 861 N.W.2d 160, and were therefore barred by N.D.C.C. \\u00a7 29-32.1-12(2)(a) as a misuse of process. The court rejected the remainder of Booth's claims because he presented no evidence of a \\\"reasonably probable different outcome\\\" and had therefore failed to establish prejudice resulted from his trial counsel's alleged errors.\\nII\\n[\\u00b6 6] On appeal, Booth does not challenge the district court's rulings on the issues barred by misuse of process, but argues the court erred in denying his application for postconviction relief because he established ineffective assistance of counsel.\\n[\\u00b6 7] The framework for evaluating ineffective assistance of counsel claims under the Sixth Amendment of the United States Constitution and N.D. Const, art. I, \\u00a7 12, is well-established:\\nIn order to prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) \\\"show that counsel's representation fell below an objective standard of reasonableness\\\" and (2) \\\"show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\\nSurmounting Strickland's high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial or in pretrial proceedings, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel's representation is a most deferential one.... It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence.\\nPremo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-40, 178 L.Ed.2d 649 (2011) (internal quotations and citations omitted). The two-part Strickland test \\\"applies to challenges to guilty pleas based on ineffective assistance of counsel.\\\" Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). \\\"Thus, a defen dant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation.\\\" Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D. 1992).\\nBahtiraj v. State, 2013 ND 240, \\u00b6 9, 840 N.W.2d 605. Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact fully reviewable on appeal. See, e.g., Osier v. State, 2014 ND 41, \\u00b6 10, 843 N.W.2d 277.\\n[\\u00b6 8] \\\"Courts need not address both prongs of the Strickland test, and if a court can resolve the case by addressing only one prong it is encouraged to do so.\\\" Osier, 2014 ND 41, \\u00b6 11, 843 N.W.2d 277; see also Broadwell v. State, 2014 ND 6, \\u00b6 7, 841 N.W.2d 750. \\\"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.\\\" Garcia v. State, 2004 ND 81, \\u00b6 5, 678 N.W.2d 568 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052); see also Greywind v. State, 2004 ND 213, \\u00b6 15, 689 N.W.2d 390.\\n[\\u00b6 9] \\\"The second prong of the Strickland test is satisfied in the context of a guilty plea if the defendant shows 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' \\\" Lindsey v. State, 2014 ND 174, \\u00b6 19, 852 N.W.2d 383 (quoting Ernst v. State, 2004 ND 152, \\u00b6 10, 683 N.W.2d 891). To establish prejudice under Strickland in a plea bargain situation, the petitioner must allege facts that, if proven, would support a conclusion that rejection of the plea bargain would have been rational because valid defenses existed, a suppression motion could have undermined the prosecution's case, or there was a realistic potential for a lower sentence. See Bahtiraj, 2013 ND 240, \\u00b616, 840 N.W.2d 605. No court is satisfied with a defendant's subjective, self-serving statement that, with competent advice, he would have insisted on going to trial. Id. (citing 3 Wayne LaFave et al., Criminal Procedure \\u00a7 11.10(d) (3rd ed. 2007)).\\n[\\u00b610] At the change of plea hearing, the attorneys explained the terms of the plea agreement to the district court. Booth acknowledged his understanding of the terms. After the court accepted Booth's guilty plea and the factual basis for the four charges, Booth addressed the court. He asked the court to sentence him to the Teen Challenge program, which was not part of the agreement. Asked if he wanted the court to accept the proposed agreement, Booth said \\\"Yeah.\\\" The court then explained that it would simply accept or reject the agreement as presented and went on to say that it would not sentence Booth to Teen Challenge even if it were sentencing without regard to a plea agreement. The court accepted the agreement as presented. Regardless of what advice Booth may have received from counsel, he cannot establish that his desire to attend Teen Challenge might reasonably have led him to plead not guilty and proceed to trial. The court had already indicated he would not be sentenced to Teen Challenge if sentenced after trial. Accordingly, the district court correctly determined that Booth presented no evidence that would suppoi't a finding of prejudice on his claim that he was not properly advised regarding how the plea agreement might affect his desire to be sentenced to the Teen Challenge program.\\n[\\u00b6 11] The district court found Booth presented no evidence of a probable different outcome at the change of plea hearing if he had received the State Laboratory results before pleading guilty, or if his attorney had challenged the chain of custody of the evidence. The court found that Booth's attorney received the discovery materials that were available at the time of the change of plea hearing and Booth presented no evidence showing a probable different result had a formal demand for discovery under N.D.R.Crim.P. 16 been made. Regarding Booth's claim of lack of discussions with his attorney, the court found Booth presented no evidence that his attorney \\\"did not discuss the materials then available with him, and that there would be any reasonable probable different outcome.\\\" The court rejected Booth's claim that his attorney should have hired investigators or other persons because he presented no \\\"evidence showing what these persons [would] have been able to provide information about, and no evidence showing any reasonably probable different outcome had such personnel . been hired.\\\"\\n[\\u00b6 12] In its decision, the district court used the ambiguous phrase \\\"reasonably probable different outcome\\\" in finding no prejudice under the second prong of the Strickland test. At a change of plea hearing, the two possible outcomes are entry of a not guilty plea followed by a trial and entry of a guilty plea followed by sentencing. In Thompson v. State, 2016 ND 101, \\u00b6 7, 879 N.W.2d 93, the defendant argued he was entitled to postconviction relief because he received ineffective assistance of counsel when he pled guilty. In rejecting the defendant's claim, the district court found the defendant \\\"failed to show a reasonable probability a jury would not have returned a guilty verdict had [he] not pled guilty prior to trial.\\\" Id. at \\u00b6 12. Because that is the wrong standard for analyzing ineffectiveness claims in a guilty plea context, we reversed and remanded for the court to \\\"make findings regarding whether a reasonable probability exists that, but for the alleged errors, [the defendant] would not have pled guilty and would have insisted on going to trial.\\\" Id. at \\u00b6 13. Here, the district court did not commit the same error we reversed in Thompson. In context, the district court's use of \\\"different outcome\\\" refers to the outcome of the plea hearing and we are satisfied that the court below applied the correct standard for Strickland prong two. Where the district court uses an ambiguous expression of the standard we examine the record carefully to ensure the law was properly applied. Everett v. State, 2015 ND 149, \\u00b6 10, 864 N.W.2d 450 (affirming denial of ineffective assistance claim following guilty plea where district court stated the standard as \\\"showing the probability of a different outcome\\\"), We recognize that at one point in its decision the district court referred to the lack of evidence of \\\"any reasonably probable different outcome even if he had taken the matter to trial.\\\" However, as discussed above, the issue was a limitation on the court's sentencing authority that would apply either after a guilty plea or a trial. Thus we interpret this reference to trial as referring to whether any advice about what the court may include in its sentence as having no bearing on whether Booth would be reasonably, likely to have made a different decision as to his guilty plea. The district court found that Booth failed to establish a likelihood that he would have insisted on going to trial. The district court's decision could have provided greater clarity in expressing that a reasonable probability of a different outcome means a substantial likelihood that Booth would have rejected the plea bargain and gone to trial. Id at \\u00b6 9-10. We are satisfied that the court applied the correct standard in this case.\\n[\\u00b6 13] The district court's determination that Booth failed to establish prejudice resulting from his counsel's allegedly deficient performance is supported by the evidence in the record. When asked about a reasonably probable different outcome during the hearing, Booth testified:\\nA. If they would have done everything right I wouldn't be in this courtroom right now. I would be free on the streets, and one less felony. That's for sure.\\nQ. And why is that an objectively reasonable outcome? Why is that reasonably probable?\\nA. Why is it probable?\\nQ. Exactly.\\nA. It's not probable. It's fact.\\nA. . a motion for discovery, a motion to suppress, a motion to see these lab tests. It all would have been different. I would have never been found guilty of this.\\nBooth has offered nothing but subjective speculation and self-serving statements that he would not have pled guilty and would have insisted on going to trial. See Bahtiraj, 2013 ND 240, \\u00b6 16, 840 N.W.2d 605. Moreover, this Court previously determined that Booth's guilty plea was voluntary. See Booth, 2015 ND 59, \\u00b6 7-8, 861 N.W.2d 160. We have held that a defendant who pleads \\\"guilty knowingly and voluntarily . cannot show in what manner actual prejudice resulted from his trial counsel's failure to investigate more thoroughly or to move to suppress specific evidence.\\\" Damron v. State, 2003 ND 102, \\u00b6 18, 663 N.W.2d 650; see also Greywind, 2004 ND 213, \\u00b6 15-16, 689 N.W.2d 390.\\n[\\u00b6 14] Booth argues the district court's analysis was flawed because the court \\\"picked the claims piece by piece to illustrate the Appellant's failure to satisfy each claim,\\\" rather than consider \\\"the totality of the circumstances.\\\" However, the mere number of alleged errors is not in itself the measure for relief, and where asserted errors are not errors or, if they were error, they were not unfairly prejudicial, the cumulative effect of those alleged errors generally does not require reversal unless the errors are intertwined and interrelated. See State v. Parisien, 2005 ND 152, \\u00b6 22, 703 N.W.2d 306; State v. Ebach, 1999 ND 5, \\u00b6 16, 589 N.W.2d 566; State v. Sievers, 543 N.W.2d 491, 498 (N.D. 1996). While courts have recognized that numerous nonprejudicial attorney deficiencies may in some circumstances cumulatively cause prejudice, see, e.g., People v. Kipp, 18 Cal.4th 349, 75 Cal.Rptr.2d 716, 956 P.2d 1169, 1190 (1998); Cirincione v. State, 119 Md.App. 471, 705 A.2d 96, 113 (1998), that is not the case here. Booth voluntarily pled guilty, and the court determined Booth failed to establish prejudice from any of his attorney's alleged deficiencies. Having considered the totality of the circumstances, we conclude Booth's claims neither singly nor cumulatively establish prejudice.\\n[\\u00b6 15] We do not consider the arguments first raised during oral argument in this case because they were not raised in the district court or in Booth's appellate brief. See State v. Mackey, 2011 ND 203, \\u00b6 17, 805 N.W.2d 98. We conclude Booth failed to show that he was prejudiced by his attorney's alleged deficiencies and, therefore, he failed to establish ineffective assistance of counsel. The district court did not err in dismissing Booth's application for postconviction relief.\\nIll\\n[\\u00b6 16] The judgment is affirmed.\\n[\\u00b6 17] Jerod E. Tufte\\nDaniel J. Crothers\\nLisa Pair McEvers\\nCarol Ronning Kapsner\\nGerald W. VandeWalle, C. J.\"}"

nd/12333893.json

@@ -0,0 +1 @@
+"{\"id\": \"12333893\", \"name\": \"STATE of North Dakota, Plaintiff and Appellee v. Christian Dupree HALL, Defendant and Appellant\", \"name_abbreviation\": \"State v. Hall\", \"decision_date\": \"2017-05-16\", \"docket_number\": \"No. 20160240\", \"first_page\": 836, \"last_page\": \"850\", \"citations\": \"894 N.W.2d 836\", \"volume\": \"894\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"North Dakota Supreme Court\", \"jurisdiction\": \"North Dakota\", \"last_updated\": \"2021-08-10T20:33:35.389775+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 31] Carol Ronning Kapsner\", \"parties\": \"STATE of North Dakota, Plaintiff and Appellee v. Christian Dupree HALL, Defendant and Appellant\", \"head_matter\": \"2017 ND 124\\nSTATE of North Dakota, Plaintiff and Appellee v. Christian Dupree HALL, Defendant and Appellant\\nNo. 20160240\\nSupreme Court of North Dakota.\\nFiled 5/16/2017\\nAshley K. Schell, Ward County Assistant State\\u2019s Attorney, Minot, ND, for plaintiff arid appellee.\\nEric P. Baumann, Minot Public Defender Office, Minot, ND, for defendant and appellant.\", \"word_count\": \"6250\", \"char_count\": \"37411\", \"text\": \"Kapsner, Justice.\\n[\\u00b6 1] Christian Dupree Hall appeals from a criminal judgment entered after he conditionally pleaded guilty following the district court's denial of his motion to suppress and motion to dismiss for violation of Hall's right to a speedy trial. We conclude the district court did not err when it denied Hall's motion to dismiss for violation of Hall's speedy trial rights. We also conclude the district court did not err when it denied Hall's motion to suppress evidence. We affirm the criminal judgment.\\nI\\n[\\u00b6 2] On October 1, 2015, Hall was arrested for possession of a controlled substance with intent to deliver after a search of his backpack revealed the presence of Oxycodone pills packaged in baggies. Hall made his initial appearance on October 2, 2015 and was charged with the offense by information on November 5, 2015 at the preliminary hearing. On December 7, 2015, Hall moved to suppress the evidence, arguing the evidence was obtained in violation of the Fourth Amendment. Hall argued the seizure of his person and of his backpack pending the issuance of a search warrant were both conducted in violation of Ms Fourth Amendment rights. Hall also argued the search warrant obtained prior to the search was not supported by probable cause.\\n[\\u00b6 3] The district court held a hearing on Hall's motion to suppress evidence on January 11, 2016. At the hearing, an officer testified while conducting surveillance at the Amtrak station, he saw an individual exit the train station. The individual, later identified as Christian Hall, was observed carrying a backpack. The officer testified he observed Hall attempt to flag down a vehicle before it drove away. The officer then observed Hall enter a taxi. The officer followed the taxi and testified the taxi traveled \\\"approximately 5 or 6 blocks before they actually made a u-turn and actually came back in the same direction in which they were going.\\\" The officer testified the taxi's maneuvers were \\\"indicative in regards to people . that are actually trying to see if they are being followed or if they are being watched.\\\" The officer followed Hall's taxi to an apartment building where Hall exited and attempted to gain entry into an apartment. The officer learned from another officer that the patio door Hall approached belonged to an individual with pending drug charges.. The officer testified he observed Hall knock on a garage door at the apartment complex. The officer testified after Hall was unable to gain entry into the apartment or the garage, Hall traveled to a fast-food restaurant.\\n[\\u00b6 4] At the fast-food restaurant, the officer took a photograph of Hall and sent it to another officer in an attempt to identify him. The officer testified he was informed the individual photographed was Christian Hall. Hall was observed walking to a gas station where he waited for a different taxi to arrive. The officer followed Hall's second taxi to a hotel. At the hotel, the officer approached and spoke to Hall. The officer and Hall gave conflicting testimony as to who removed Hall's backpack from the taxi. An officer testified Hall stated he was in Minot to visit before stating he had no friends or family in Minot. An officer testified Hall also stated he was in Minot looking for a job. After asking Hall some questions, officers conducted a K-9 dog sniff on the backpack. Officers testified the dog alerted, and the officers seized the bag pending the approval of a search warrant application. Hall was told he could leave and did leave the area. After obtaining a search warrant, the officers searched the bag and discovered Oxycodone pills. Hall was later arrested at the airport.\\n[\\u00b6 5] The district court denied Hall's motion to suppress evidence on February 10, 2016. The court concluded the initial seizure of Hall's backpack was supported by reasonable suspicion. The court also' concluded the K-9 unit's alert on the backpack gave officers probable cause to seize the bag pending receipt of a search warrant, Lastly, the court concluded the search warrant was supported by probable cause.\\n[\\u00b6 6] 'On February 16, 2016, Hall filed a demand for a speedy trial. At a pre-trial conference the following day, the district court inforihed the parties trial would be scheduled as soon as the court's calendar would permit. Trial was scheduled for May 24, 2016. On May 19, 2016, Hall moved to dismiss for violation of his right to a speedy tidal. The district court denied the motion to dismiss on May 23, 2016. On May 23, 2016, Hall entered a conditional guilty plea. Hall filed a notice of appeal on June 21, 2016. On appeal, Hall contends the district court erred by denying both his motion to suppress evidence and motion to dismiss for violation of his right to a speedy trial.\\nII\\n[\\u00b6 7] On appeal, Hall challenges the district court's denial of his motion to dismiss for violation of his speedy trial rights and denial of his motion to suppress evidence. We will first address Hall's arguments regarding the denial of his motion to dismiss. Hall argues the district court erred in denying his motion to dismiss for a violation of his speedy trial rights under N.D.C.C. \\u00a7 29-19-02 and under the Sixth Amendment to the United States Constitution and Article I, Section 12 of the North Dakota Constitution. The State argues the district court properly denied the motion to dismiss.\\nA\\n[\\u00b6 8] We review Hall's speedy trial claim with regard to his statutory speedy trial rights. The statutory right to a speedy trial, found in N.D.C.C. \\u00a7 29-19-02, provides:\\nIn a criminal prosecution, the state and the defendant each shall have the right to a speedy trial. The right to a speedy trial in a criminal case in which the charging instrument contains a charge of a felony offense under section 19-03.1-23 or under chapter 12.1-20 is for the trial to begin within ninety days of the date the party elects this right. The prosecution and the defendant shall elect this right within fourteen days following the arraignment. The court may allow the trial to begin later than ninety days of the arraignment for good cause.\\nThe statutory right to a speedy trial under N.D.C.C. \\u00a7 29-19-02 may be asserted by a defendant charged under \\\"section 19-03.1-23 or under chapter 12.1-20.\\\" Hall was charged under N.D.C.C. \\u00a7 19-03.1-23(1). The starting date for the 90-day window under the statute is \\\"the date of receipt by both the court and the prosecutor[.]\\\" State v. Gibson, 2017 ND 15, \\u00b6 6, 889 N.W.2d 852. Hall's demand for a speedy trial was received by the court and the prosecutor on February 16, 2016, and trial was scheduled for May 24, 2016. There were 98 days between Hall's election of his speedy trial rights and the scheduled trial date. Hall acknowledges the demand was filed more than fourteen days after arraignment, but argues the deadline to elect the right should be extended because he filed his demand four days after the district court denied his motion to suppress evidence. Hall does not cite any authority for this principle. The district court's denial of Hall's motion to dismiss stated:\\nOn February 16, 2016, Defendant filed a Demand for Speedy Trial under \\u00a7 29-19-02 of the North Dakota Century Code. On February 17, 2016, a final pretrial conference was held in this matter. At that time the Court addressed the Demand for Speedy Trial noting that the demand had been made more than 90 days after the arraignment had been held in this matter. The Court further stated on the record that it was directing the Clerk of Court to schedule this matter for trial as soon as the Court's schedule would allow.\\nThe district court denied the motion to dismiss and stated, \\\"Based upon the foregoing and based upon the failure of the Defendant to make his demand within 14 days of the arraignment in this action, the Court hereby denies the Motion to Dismiss made by the Defendant on May 19, 2016.\\\"\\n[\\u00b6 9] The plain language of N.D.C.C. \\u00a7 29-19-02 indicates the fourteen-day window is mandatory in order for a party to elect the statutory speedy trial right. \\\"The prosecution and the defendant shall elect this right within fourteen days following the arraignment.\\\" N.D.C.C. \\u00a7 29-19-02. The district court correctly found the demand had been made more than fourteen days after arraignment.\\n[\\u00b610] Section 29-19-02, N.D.C.C., also provides, \\\"The court may allow the trial to begin later than ninety days of the arraignment for good cause.\\\" Regardless of whether the trial had been scheduled within ninety days of the demand, the trial would have occurred well beyond ninety days of the arraignment. As the district court noted, \\\"the demand had been made more than 90 days after the arraignment had been held in this matter.\\\" This is \\\"good cause\\\" for permitting the trial to begin \\\"later than ninety days of the arraignment.\\\" N.D.C.C. \\u00a7 29-19-02. The record also reflects the district court made an attempt to schedule the trial as soon as possible. The district court's order alludes to the fact the clerk of court had been directed to schedule the trial \\\"as soon as the Court's schedule would allow.\\\" Accord ingly, the district court did not err when it denied Hall's speedy trial claim construed as one under N.D.C.C. \\u00a7 29-19-02.\\nB\\n[\\u00b6 11] Hall argues the cumulative delay violated his United States and North Dakota constitutional rights to a speedy trial. \\\"A criminal- defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by N.D. Const. art. I, \\u00a7 12.\\\" State v. Owens, 2015 ND 68, \\u00b6 8, 860 N.W.2d 817. In State v. Fischer, 2008 ND 32, \\u00b6 29-30, 744 N.W.2d 760 (quoting State v. Bergstrom, 2004 ND 48, \\u00b6 15, 676 N.W.2d 83), we discussed the considerations for evaluating speedy trial claims:\\nIn State v. Erickson, 241 N.W.2d 854, 859 (N.D. 1976), this Court adopted the United States Supreme Court balancing test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which is used to evaluate the validity of a speedy trial claim under the United States Constitution, and now, the North Dakota Constitution, and the North Dakota statute. N.D.C.C. \\u00a7 29-01-06(5). The test requires balancing four factors: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused. State v. Murchison, 541 N.W.2d 435, 438 (N.D. 1995) (citing Barker, 407 U.S. at 531-33[, 92 S.Ct. 2182]). In Barker v. Wingo, the Supreme Court of the United States held:\\nWe regard none of the four factors identified above as either -a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.\\nBarker, 407 U.S. at 533, 92 S.Ct. 2182 (footnote omitted); see also State v. Johnson, 1999 ND 33, \\u00b6 21, 590 N.W.2d 192.\\n[\\u00b6 12] This Court reviews a district court's speedy trial decision de novo, with the district court's findings of fact reviewed under the clearly erroneous standard of review. State v. Moran, 2006 ND 62, \\u00b6 8, 711 N.W.2d 915. Under this analysis, a delay of one year or more is \\\"presumptively prejudicial,\\\" which triggers an analysis of the other speedy trial factors. Id. at \\u00b6 9 (quoting Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)).\\n[\\u00b6 13] The delay in this case was not \\\"presumptively prejudicial\\\" since the delay for trial did not exceed one year. Moran, 2006 ND 62, \\u00b6 9, 711 N.W.2d 915. Hall makes no further arguments in his brief other than claiming a constitutional violation and citing \\\"anxiety and concern\\\" and \\\"oppressive pretrial incarceration.\\\" Applying the Barker factors to this case, the length of the delay was not \\\"presumptively prejudicial.\\\" Upon making a demand for a speedy trial, the trial was scheduled for a date 98 days after the demand. -Next, the reason for the delay may partially be attributed to Hall because he did not demand a speedy trial until several months had already passed from the time of his arraignment and not until after the district court had denied his motion to suppress evidence. At the pretrial conference, the court informed the parties it had directed \\\"the Clerk of Court to schedule this matter for trial as soon as the Court's schedule would allow.\\\" \\\"This Court has stated it is relevant whether the State purposefully delayed the trial.\\\" Bergstrom, 2004 ND 48, \\u00b6 18, 676 N.W.2d 83 (citing Murchison, 541 N.W.2d 435, 439 (N.D. 1995)). The State indicated in its response that it did not object to Hall's speedy trial request, but only objected to the demand being construed as a request under N.D.C.C. \\u00a7 29-19-02. In its response, the State asked, \\\"that the defendant's request be treated simply as an invocation of his constitutional rights under N.D. Const. art. I, \\u00a7 12 and the Sixth Amendment of the United States Constitution.\\\" The record reflects the State did not purposefully delay trial.\\n[\\u00b6 14] With regard to prejudice to the accused, no specific argument is made beyond the delay causing \\\"anxiety and concern,\\\" and resulting in \\\"oppressive pretrial incarceration.\\\" Pretrial incarceration has been recognized as causing societal, familial and personal problems for the accused. Barker, 407 U.S. at 532-33, 92 S.Ct. 2182 (discussing detrimental impact of lengthy pretrial incarceration on defendants, families of defendants, and society; characterizing time spent in jail pretrial as \\\"dead time\\\"). At the bond hearing, Hall stated he is from Detroit, is a full-time student, and works full-time. At the preliminary hearing, Hall stated he lives with his flane\\u00e9 and four dependents.-However, no specific argument has been advanced in Hall's brief on appeal or briefing at the district court to state a factual link between the pretrial incarceration and prejudice. This Court has stated, \\\"[t]o establish actual prejudice, a defendant must factually link her loss of liberty with any specific prejudice to her right to a fair trial.\\\" Fischer, 2008 ND 32, \\u00b6 32, 744 N.W.2d 760 (internal quotation marks and citations omitted). A party raising a constitutional challenge must fully brief the issue. Bergstrom, 2004 ND 48, \\u00b6 19, 676 N.W.2d 83. Hall failed to address any of the Barker factors on appeal. Balancing the accused's assertion of his right to a speedy trial, the length of the delay, the reason for the delay, and whether there was any prejudice to the accused, under our de novo standard of review, the district court did not err when .it, denied Hall's motion to dismiss for a violation of his speedy trial rights.\\nIII\\n[\\u00b6 15] On appeal, Hall argues the district court erred when it denied his motion to suppress evidence. Hall argues the initial contact made by officers constituted a seizure unsupported by reasonable suspicion. Hall asserts he was subject to an unconstitutional seizure of his person during the dog sniff of his backpack. Hall also contends the seizure of his backpack prior to the police obtaining a search warrant was unconstitutional, and all evidence obtained after the warrant was fruit of the poisonous tree and should have been suppressed.\\n[\\u00b6 16] \\\"The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and N.D. Const. art. I, \\u00a7 8, protect individuals from unreasonable searches and seizures.\\\" State v. Nickel, 2013 ND 155, \\u00b6 13, 836 N.W.2d 405. This Court reviews a district court's decision on a motion to suppress as follows:\\n[T]his Court defers to the district court's findings of fact and resolves conflicts in testimony in favor of affirmance. This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court's findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.\\nState v. Knox, 2016 ND 15, \\u00b6 6, 873 N.W.2d 664 (citations omitted).\\nA\\n[\\u00b6 17] Hall first argues the initial contact with law enforcement was an unconstitutional seizure. \\\"[A] police officer's approach of a parked vehicle is not a seizure if the officer 'inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.'\\\" City of Jamestown v. Jerome, 2002 ND 34, \\u00b6 5, 639 N.W.2d 478 (quoting State v. Langseth, 492 N.W.2d 298, 300 (N.D. 1992)). \\\"A seizure occurs within the context of the Fourth Amendment only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.\\\" Jerome, at \\u00b6 5.\\n[\\u00b6 18] The district court noted the officers did not initiate a traffic stop on Hall's taxi. The district court found officers \\\"engaged in a consensual encounter\\\" with Hall. The district court found the officers \\\"never ordered or showed any authority that would indicate Hall's liberty was restrained.\\\" The district court found the \\\"facts indicate that the Officers were following a conversational manner of interaction, which is acceptable as outlined in [Jerome, 2002 ND 34, 639 N.W.2d 478].\\\" There was conflicting testimony as to whether Hall was ordered out of the taxi. The officer who made the initial contact with Hall testified that he asked Hall to remove the bag from the taxi, and Hall himself removed the bag. Hall testified he was ordered to remove the bag from the taxi. When reviewing a district court's decision on a motion to suppress, this Court resolves conflicts in testimony in favor of affirmance, as we recognize the district court is in a superior position to assess credibility of witnesses and weigh evidence. State v. Woinarowicz, 2006 ND 179, \\u00b6 20, 720 N.W.2d 635. The district court's finding Hall engaged in a consensual encounter with police.'is supported by the record and is not clearly erroneous.\\n[\\u00b6 19] Hall also argues the seizure and dog sniff of his backpack were unconstitutional. The district court concluded the temporary seizure and dog sniff of Hall's backpack did not violate Hall's Fourth Amendment rights. The district court noted the K-9 unit was already on site at the time the officer approached Hall and the sniff took place within minutes of approaching Hall. The district court found Hall was engaged in a consensual encounter and continued to speak with law enforcement while the sniff took place. After the dog alerted on the backpack, the backpack was seized and Hall was told he was free to go. Hall left after officers obtained some contact information so they could return the backpack in the event the search revealed no contraband.\\n[\\u00b6 20] A dog sniff, without a seizure, is not a search. United States, v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). A dog sniff of luggage, which is briefly seized to conduct the sniff, is a limited intrusion and need only be supported by reasonable suspicion. The United States Supreme Court has stated:\\n[W]hen an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.\\nPlace, 462 U.S. at 706, 103 S.Ct. 2637. This Court has stated the following regarding a K-9 sniff: \\\"No legitimate expectation of privacy is violated by governmental con duct that can reveal only information about contraband and nothing about arguably private facts.\\\" State v. Nguyen, 2013 ND 252, \\u00b6 11, 841 N.W.2d 676 (internal quotation marks omitted). As a result, the temporary seizure of a piece of luggage for purposes of conducting a dog sniff requires only reasonable suspicion. Place, 462 U.S. at 706, 103 S.Ct. 2637.\\n[\\u00b621] To determine whether an officer has a reasonable and articulable suspicion, this Court examines the information known to the officer at the time of the stop. State v. Boyd, 2002 ND 203, \\u00b6 15, 654 N.W.2d 392. The existence of reasonable suspicion is examined using an objective standard looking at the totality of the circumstances and \\\"taking into consideration the inferences and deductions an investigating officer would make based on the officer's training and experience.\\\" State v. Deviley, 2011 ND 182, \\u00b6 8, 803 N.W.2d 561 (quoting State v. Franzen, 2010 ND 244, \\u00b6 12, 792 N.W.2d 533). \\\"Whether the facts support a reasonable and articulable suspicion is a question of law.\\\" Id.\\n[\\u00b6 22] The information known to officers before seizing the backpack to conduct a dog sniff included: the officer's knowledge that the Amtrak station is a conduit for drug trafficking into Minot from outside North Dakota; the officer's observation of Hall trying to flag down a vehicle at the Amtrak station and enter a taxi after failing to flag down the vehicle; an officer observed Hall's taxi double back and change direction in a manner consistent with an attempt to see if being followed; the officer following the taxi observed Hall exit the vehicle at an apartment known to officers to belong to an individual who had pending drug delivery charges; the officer observed Hall attempt to gain entry into the apartment patio door and attempt to get into a garage at the apartment complex; when Hall failed to gain entry into the apartment and garage, he went to a fast-food restaurant where the task force officer took a photo of Hall and sent it to another agent to confirm Hall's identity; the task force officer who received the photo confirmed Hall's identity as a person suspected of trafficking drugs; the officer observed Hall walk to a gas station and enter a second taxi before traveling to a hotel. After making contact with Hall, the officers spoke to Hall. An officer testified Hall set the backpack beside him and took small steps away from the backpack while speaking with officers. The officer testified this behavior was suspicious because, in his experience, \\\"if people have something illegal in a bag . they'll try to separate themselves from it....\\\" Officers testified Hall's story about why he was in Minot was suspicious. Specifically, an officer testified Hall indicated he was visiting, but also stated he had no friends or family in Minot before stating he was in Minot to look for a job. Under the totality of the circumstances, we conclude officers had reasonable suspicion to temporarily seize Hall's backpack for the purpose of conducting an on-site dog sniff.\\n[\\u00b6 23] Hall also argues the officers were unable to move the backpack from the scene to obtain a search warrant. Hall cites State v. Ressler, 2005 ND 140, 701 N.W.2d 915, to support his argument. However, in Ressler, the issue was whether the officer could move a package to the police station to conduct a dog sniff armed only with reasonable suspicion. Id. at \\u00b6 15. The dog sniff of Hall's backpack was conducted on site, after developing reasonable suspicion, in order to establish probable cause for a search warrant. The movement of the backpack after the dog sniff did not implicate the same interests as the movement of the package in Ressler. The dog sniff added justification rising to the level of probable cause for a greater seizure of the backpack pending approval of a search warrant application. See State v. Gefroh, 2011 ND 153, \\u00b6 9, 801 N.W.2d 429 (stating a \\\"drug-sniffing dog indicating the presence of a controlled substance establishes probable cause\\\"). As a result, the district court did not err in' concluding Hall's Fourth Amendment rights were not violated by the officers' seizure of the backpack pending approval of a search warrant application.\\nB\\n[\\u00b6 24] On appeal, Hall argues the search warrant was not supported by probable cause. \\\"A search warrant may be obtained upon a showing of probable cause.\\\" State v. Holly, 2013 ND 94, \\u00b6 12, 833 N.W.2d 15. \\\"Probable cause exists 'if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband . will be found in the place to be searched.'\\\" Id. (quoting State v. Kieper, 2008 ND 65, \\u00b6 7, 747 N.W.2d 497). \\\"On appeal, this Court reviews the sufficiency of the information that was before the magistrate, independent of the trial court's decision, and employs the totality-of-the-circumstances test.\\\" State v. Leavitt, 2015 ND 146, \\u00b6 7, 864 N.W.2d 472. \\\"We generally defer to a magistrate's determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate's determination.\\\" State v. Utvick, 2004 ND 36, \\u00b6 7, 675 N.W.2d 387 (citing State v. Ballweg, 2003 ND 153, \\u00b6 12, 670 N.W.2d 490).\\n[\\u00b6 25] Hall asserts on appeal the warrant was not supported by probable cause, in part, because the affidavit in support of the search warrant \\\"contains no explanation of why the K-9's actions constituted 'positive alert' or the dog's background and/or training.\\\" The affidavit in support of the search warrant contained the following factual assertions relating to the behavior of the K-9 on scene:\\nMinot Police Department Officer Titus Clouse was also on scene and conducted an open air search of the bag. At which time Officer Titus Clouse walked K9 Piko downwind of the back pack. K9 Piko had a change of behavior (COB) in his breathing rate. Officer Titus Clouse then had K9 Piko sniff the back pack and after K9 Piko sniffed the back pack K9 Piko walked past the back pack Officer Titus Clouse then scanned K9 Piko back to the back pack and K9 Piko had another COB in his breathing rate and stopped his forward movement. This COB means K9 Piko had a positive alert to an odor imprinted of a controlled substance, which occurred at 1029 hours.\\nDuring the suppression hearing, Hall's attorney argued the affidavit should have contained the K-9's qualifications:\\nMR. BAUMANN: What I am talking about, Your Honor, in relationship to the information that is left out' of the search warrant, is the training, the significance of the changes of behavior of the dog [Piko], and that is not contained in that.\\nTHE COURT: So, you are saying every time they do an affidavit they have to document the dog's background even though every judge in this courthouse is intimately familiar with [Piko] since [Piko] is one of, I think, only two search dogs in the community?\\nMR. BAUMANN: Yes.\\nTHE COURT: And, why, would that information have to be given to me again?\\nMR. BAUMANN: Well,-just in the face of the search\\u2014the affidavit of the search warrant should contain all the requisite information for probable cause on its fac[e].\\nThe order denying suppression addressed Hall's argument about the failure to include the K-9's qualifications in the affidavit in support of a search warrant:\\nThe State does not address Hall's argument that Piko's qualifications were not included in the affidavit but this argument seems baseless\\u2014Piko is often used by the Minot Police Department and his qualifications have been put before the Court several times, the dog is qualified. Bringing forth an affidavit that states.-Piko alerted to the presence of controlled substances is sufficient information in the eyes of the Court,\\n[\\u00b6 26] \\\"A dog's positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog's reliability, the affidavit need only state the dog has been trained and certified to detect drugs.\\\" United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (citations omitted). \\\"An affidavit need not give a detailed account of the dog's track record or education.\\\" Id. The bar is relatively low as to how detailed the affidavit must be to show the dog's reliability. See Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050, 1055-58, 185 L.Ed.2d 61 (2013) (reversing Florida Supreme Court decision imposing an evidentiary checklist to establish drug dog reliability). Courts in other jurisdictions have consistently held if a dog sniff is described in an affidavit for a search warrant, the affidavit must contain some kind of statement the dog is trained and certified to detect drugs. United States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir. 1997) (\\\"We decline to encumber the affidavit process by requiring affiants to include a complete history of a drug dog's reliability beyond the statement that the dog has been trained and certified to detect drugs.\\\"); United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996) (finding an affidavit's references to a dog as a \\\"drug sniffing dog\\\" and the affidavit stating the dog was trained and qualified to conduct narcotics investigations was sufficient to establish reliability of 'the dog); United States v. Maejia, 928 F.2d 810, 815 (8th Cir. 1991) (concluding an affidavit that stated the dog had been used in the past with successful results was- sufficient to show reliability of the dog and stating \\\"there is no legal requirement that the affidavit specify the number of tim\\u00e9s the dog previously has sniffed out drugs.\\\"). The affidavit in the present case contained no statements regarding the dog's training or certification. The above case law from other jurisdictions indicates without a statement attesting to the training of the dog that conducted the sniff, the sniff cannot be considered.\\n[\\u00b6 27] Omitting the dog sniff from consideration, the affidavit contained sufficient information for the magistrate to determine -there was probable cause Hall's backpack contained contraband. While this case presented a close question, we \\\"generally defer to a magistrate's determination of probable cause if there was a substantial - basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate's determination.\\\" Utvick, 2004 ND 36, \\u00b6 7, 675 N.W.2d 387 (citing Ballweg, 2003 ND 153, \\u00b6 12, 670 N.W.2d 490). The affidavit for the search warrant recounted the information officers obtained through them surveillance of Hall's movements prior to approaching Hall and after Hall left his backpack with officers.\\n[\\u00b6 28] Specifically, the affidavit included the following information: (1) an agent was conducting surveillance on the Amtrak station in Minot due to- \\\"intelligence previously gathered, such as people traveling from Michigan to Minot, ND to distribute narcotics, as well as recent arrests of individu als traveling via Amtrak from Michigan to Minot, North Dakota for the purpose of distributing narcotics and/or controlled substances.\\\"; (2) the officer conducting surveillance observed an unknown male on the south side of the Amtrak station \\\"talking on his cell phone and . walking quickly towards the east with his hand in the air and yelling in attempts to get the attention of a vehicle that had recently passed by\\\" before entering a taxi shortly thereafter; (3) the officer followed and observed \\\"the cab traveled westbound on 11th Ave NW and when it arrived at the intersection with Valley View Dr it made a U-Turn and traveled back eastbound on 11th Ave NW. Through my training and experience I am aware that this type of driving behavior is often used to check to see if they are being followed\\\"; (4) the officer stated he observed the taxi travel to an apartment building where the unknown individual went directly to the patio door of an apartment \\\"known to belong to Jacob Brandt.\\\"; (5) the affidavit stated \\\"[Jacob] Brandt currently has pending delivery charges for delivery of oxycodone and delivery of heroin out of this apartment.\\\" The individual was also observed knocking on a garage as if to see if someone was located within the garage; (6) the unknown individual got\\\" back into the taxi and traveled to a fast-food restaurant where he was photographed and his identity was confirmed as Christian Hall by another officer; (7) officers conducted a background check which revealed Hall had previously been charged with possession of marijuana; (8) an officer observed Hall leave the restaurant and walk to a gas station, enter the gas station, exit the gas station and enter a second taxi; (9) officers approached Hall's taxi at a hotel and spoke with Hall. Hall gave police his Michigan identification card, stated he was in Minot to visit, stated he did not have any friends or family in Minot, and then also stated he was in Minot seeking a job; (10) the affidavit noted Hall gave officers three telephone numbers and stated he only had one phone after officers took the backpack; (11) the affidavit indicated three officers continued surveillance of Hall after other officers seized the backpack following the dog sniff and observed Hall go to Wal-Mart where he \\\"purchase[d] new clothing and went into the bathroom and changed into those new clothes.\\\"; (12) the affidavit also provided an officer conferred with the security officer at Wal-Mart and learned \\\"Hall had just had $800 wired to him from Wal-Mart to Wal-Mart.\\\"; and (13) the affidavit also stated shortly before the affidavit was presented for consideration, Hall was observed getting out of a vehicle at the Minot airport. Hall was apparently planning to leave Minot without his backpack. Under the totality of the circumstances, the affidavit presented sufficient information for the magistrate to conclude there was probable cause to believe Hall's backpack contained contraband.\\n[\\u00b6 29] An affidavit's description of a dog sniff with no statement of the dog's qualifications could not, on its own, establish probable cause. However, all the above information combined established probable cause under the totality of the circumstances. The officers had sufficient information to conduct the dog sniff and seize the bag upon application for a search warrant under Place, 462 U.S. 696, 103 S.Ct. 2637. The affidavit explained enough of the surrounding circumstances to- establish probable cause in light of the failure to include.the dog's qualifications. Accordingly, the district court did not err when it denied Hall's motion to suppress evidence.\\nIV\\n[\\u00b6 30] We conclude the district court did not err in denying Hall's motion to dismiss for violation of his speedy trial rights un der both statutory and constitutional grounds. We also conclude the district court did not err in denying Hall's motion to suppress evidence. Accordingly, we affirm the criminal judgment.\\n[\\u00b6 31] Carol Ronning Kapsner\\nLisa Fair McEvers\\nDaniel J. Crothers\\nJerod E. Tufte\"}"