author: VANDE WALLE, Chief Justice.

text:
    2004 ND 57
    In the Interest of D.V.A. Leann K. Bertsch, Petitioner and Appellee, v. D.V.A., Respondent and Appellant.
    No. 20030304.
    Supreme Court of North Dakota.
    March 23, 2004.

      Leann K. Bertseh, Assistant State’s, Attorney, Bismarck, ND, petitioner and ap-pellee. ■ Submitted on brief.
    Todd A. Schwarz, Bismarck, ND, for respondent and appellant. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] D.V.A. appealed from an order committing him to the care, custody, and control of the executive director of the North Dakota Department of Human Services for treatment as a sexually dangerous individual. We affirm.

I

[¶ 2] D.V.A. was convicted by his plea of guilty to a class A felony of Gross Sexual Imposition in 1996. Prior to D.V.A.’s scheduled release from the North Dakota State Penitentiary, the Department of Corrections and Rehabilitation recommended the Burleigh County State’s Attorney review D.V.A.’s criminal and mental health history to determine whether he should be committed as a sexually dangerous individual. See N.D.C.C. § 25-03.3-03.1. The State petitioned to have D.V.A. committed under chapter 25-03.3, N.D.C.C., as a sexually dangerous individual who is a danger to the physical or mental health or safety of others. See id. § 25-03.3-03.

[¶ 3] Probable cause to believe D.V.A. is a sexually dangerous individual was established at a preliminary hearing, and the district court ordered D.V.A. to be transported to the North Dakota State Hospital for evaluation. At the State Hospital, Dr. Joseph Belanger and Dr. Rosalie Ether-ington, both psychologists, evaluated D.V.A. to determine whether he is a sexually dangerous individual. At the commitment hearing, both psychologists testified D.V.A. is a sexually dangerous individual and likely to re-offend if not committed. The doctors, who were the only witnesses at the commitment hearing, each testified that D.V.A. suffers from pedophilia with sexual attraction to both males and females, sexual sadism, and antisocial personality disorder.

[¶ 4] Dr. Belanger reviewed D.V.A.’s legal files, clinical files, and treatment records and conducted four interviews with D.V.A. He testified regarding three risk assessment inventories. According to Dr. Belanger, D.V.A. scored 5 on the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), which indicates a 73% chance of re-offending within ten years and is considered “high.” The second instrument used was the Static-99. D.V.A. scored 9 on this test which indicates a greater than 52% chance of re-offending within 15 years. Dr. Belanger testified this sample was a “very conservative method” because it focuses on re-conviction rather than re-arrest. The third inventory Dr. Belanger used was the Minnesota Sex Offense Screening Test, Revised (MnSOST-R). D.V.A. scored plus 20 on this test. This places him in the “very highest risk category” and indicates a 78% chance of re-offending within six years. On a psychological test, the PCL-R, D.V.A. scored 34, which is a “verbal descriptor of ... psychopath, and that puts him at 99 percentile among male forensic patients.” Dr. Belanger stated, “[D.Y.A.] is unique in that he is high across the board” on all the tests. He concluded, “It is my best professional judgment that it may be so concluded to a reasonable degree of professional certainty that the respondent is, indeed, likely to engage in additional acts of sexual predatory conduct, per virtue of mental disorder and personality disorder.”

[¶ 5] In preparing her evaluation of D.V.A., Dr. Etherington relied on penitentiary records, treatment records, psychological reports, State Hospital records, conversations with a psychologist at the North Dakota State Penitentiary, and four interviews with D.V.A. Dr. Etherington also testified regarding the risk assessment inventories and concluded “the scores on these instruments all indicate he is at high risk for reoffense and therefore is likely to engage in future predatory conduct.” She testified that she and Dr. Belanger conducted the scoring on the inventories independently.

[¶ 6] The district court found D.V.A. was shown to have engaged in sexually predatory conduct and has a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction that makes him likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. The court ordered D.V.A. committed to the custody of the executive director of the Department of Human Services until he is safe to be at large and has received the maximum benefit of treatment.

II

[¶ 7] Chapter 25-03.3, N.D.C.C., governs commitment of sexually dangerous individuals. Our standard of review for appeals from commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3 is “a modified clearly erroneous” standard. In the Interest of 2002 ND 25, ¶ 9, 639 N.W.2d 473. “[W]e affirm a trial court’s order of committal ‘unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.’ ” Id. (quoting In the Interest of M.D., 1999 ND 160, ¶ 34, 598 N.W.2d 799).

[¶ 8] A sexually dangerous individual is

an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction 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. It is a rebuttable presumption that sexually predatory conduct creates a danger to the physical or mental health or safety of the victim of the conduct.

N.D.C.C. § 25-03.3-01(8). The State must establish an individual is sexually dangerous by clear and convincing evidence, and

[a]n individual may not be committed unless evidence is admitted establishing that at least two experts have concluded the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct.

N.D.C.C. § 25-03.3-13. A person is likely to engage in further acts of sexually predatory conduct when the person’s propensity towards sexual violence is of such a degree as to pose a threat to others. M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473.

A

[¶ 9] D.V.A. claims the psychologists’ opinions were based upon inadmissible hearsay, and therefore, should not have been used to deprive him of his liberty. Dr. Belanger and Dr. Etherington reviewed records related to D.V.A. and conducted interviews with him. Section 25-03.3-13 provides that “[a]t the commitment proceeding, any testimony and reports of an expert who conducted an examination are admissible, including risk assessment evaluations.” Additionally, both experts testified that the information relied upon in their evaluations was generally relied upon by experts in psychology to determine whether a person is a sexually dangerous individual. Rule 703, N.D.R.Ev., provides

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

D.V.A. did not produce any evidence indicating the information relied upon by Dr. Belanger and Dr. Etherington was not reasonably relied upon by psychologists in determining whether an individual is sexually dangerous. Further, we have held “the weakness or non-existence of a basis for an expert’s opinion goes.to his credibility, and not necessarily to the admissibility of the opinion evidence.” Victory Park Apts. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985); see also Explanatory Note, N.D.R.Ev. 703. Therefore, we conclude it was not error for the trial court to rely on Dr. Belanger’s and Dr. Etherington’s testimony regarding whether D.V.A. was a sexually dangerous individual.

B.

[¶ 10] D.V.A. argues the State did not meet its burden of proof because no evidence was offered to show he did not suffer from mental retardation. D.V.A. misapplies the burden placed on the State by chapter 25-03.3, N.D.C.C. Chapter 25-03.3 does not require the State to establish the respondent is not mentally retarded, and it does not prohibit a person with mental retardation from being committed as a sexually dangerous individual. See, e.g., N.D.C.C. § 25-03.3-08(2) (requiring the state’s attorney to notify the court in the petition if she believes the respondent is an individual with mental retardation so the court may appoint a guardian ad litem for the respondent). Rather, mental retardation itself cannot be the sexual disorder, personality disorder, or other mental disorder or dysfunction that allows a person to be considered sexually dangerous. N.D.C.C. § 25-03.3-01(8). The State did not have a burden to establish D.V.A. does not suffer from mental retardation, it was only required to comply with certain procedures if it knew or believed D.V.A. was an individual with mental retardation. The mere fact that Dr. Etherington referred to D.V.A. as “low functioning” does not indicate D.Y.A. possibly suffered from mental retardation, and there is no other evidence indicating D.V.A. is an individual with mental retardation.

[¶ 11] Both psychologists diagnosed D.V.A. with pedophilia, sexual sadism, and antisocial personality disorder. These diagnoses indicate D.V.A. has “a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction” other than mental retardation, which “makes [him] likely to engage in further acts of sexually predatory conduct which constitutes a danger to the physical or mental health or safety of others.” N.D.C.C. § 25-03.3-01(8). After reviewing the record, it is clear mental retardation was not the basis for the psychologists’ opinion that D.V.A. is a sexually dangerous individual.

[¶ 12] The tidal court was not induced by an erroneous view of the law and there was clear and convincing evidence that D.Y.A. is a sexually dangerous individual. We affirm.

[¶ 13] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2004 ND 61
    GRATECH COMPANY, LTD., Claimant and Appellant, and Flickertail Paving and Supply, LLC, Claimant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20030203.
    Supreme Court of North Dakota.
    March 23, 2004.
    Ronald G. Schmidt (argued), Schmidt, Schroyer, Moreno & Lee, P.C., Rapid City, S.D., and Jack McDonald (on brief), Wheeler Wolf, Bismarck, N.D., for claimant and appellant.
    Charles S. Miller, Jr., Special Assistant Attorney General, Bismarck, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] Gratech Company, Ltd. appeals from a judgment dismissing its application to vacate the decision of the arbitration panel in Gratech’s arbitration action against the North Dakota Department of Transportation (“DOT”). We affirm, concluding the arbitration panel did not err in concluding that Gratech’s failure to file a written notice of claim precluded arbitration of all but one of Gratech’s claims against DOT.

I

[¶ 2] In the fall of 1998, DOT awarded two separate road construction contracts to Flickertail Paving and Supply, LLC (“Flickertail”) to tear out, regrade, and repave portions of U.S. Highway 281. The projects were labeled the Belcourt project and the Rolla project. Flickertail subcontracted the grading portions of the projects to Gratech.

[¶ 3] Gratech encountered poor soil conditions on both projects, resulting in additional subcutting, plowing, discing, and drying of the soil. The parties dispute the extent of the poor soil conditions and its impact upon the projects.

[¶ 4] Gratech concedes it did not give a contemporaneous notice of intent to seek additional compensation under N.D.C.C. § 24-02-26.1 or under the contract provisions requiring such notice. Flickertail, however, did give a contemporaneous written notice of claim for alleged increased compensation it claimed it was owed.

[¶ 5] Upon completion of the projects, Flickertail requested additional compensation on the Rolla project and Gratech sought additional compensation on both projects from DOT. DOT denied these claims, and Flickertail and Gratech filed separate demands for arbitration. DOT counterclaimed for indemnity against Flickertail, and all claims of the parties were consolidated into a single arbitration proceeding.

[¶ 6] A hearing was conducted, and the arbitrators issued a written decision. Flickertail was awarded $411,408 on its claim for additional compensation on the Rolla project. That claim is not before this Court on appeal.

[¶ 7] On Gratech’s claims, the arbitrators initially determined that Gratech’s failure to file a notice of claim under N.D.C.C. § 24-02-26.1 and the provisions of the contract precluded arbitration of all but one of Gratech’s claims. The arbitrators also, in the alternative, concluded that on the merits Gratech was not entitled to additional compensation on the barred claims. On the one claim properly before the arbitrators, they awarded Gratech an additional $55,651 for “muck excavation” on the Belcourt project.

[¶ 8] Gratech filed an application in district court to vacate the arbitration award. The district court affirmed the arbitration award and dismissed Gratech’s application to vacate the award. Gratech appealed to this Court.

II

[¶ 9] The dispositive issue on appeal is whether Gratech was required to file a written notice of claim as a prerequisite to arbitrating its claims against DOT.

A

[¶ 10] Gratech initially asks this Court to adopt a heightened standard of review for questions of law in a statutorily mandated arbitration.

[¶ 11] We have generally held that arbitrators are the judges of both the law and the facts, and a court will vacate an arbitration award on its merits only if the award is completely irrational. See, e.g., John T. Jones Constr. Co. v. City of Grand Forks, 2003 ND 109, ¶¶ 9-10, 665 N.W.2d 698; Superpumper, Inc. v. Norland Oil, Inc., 2003 ND 33, ¶ 13, 657 N.W.2d 250; State v. Gratech Co., 2003 ND 7, ¶ 12, 655 N.W.2d 417. Under the completely irrational standard, an arbitrator’s mistake in determining the facts or interpreting the law is not a sufficient ground for overturning the award. John T. Jones, at ¶ 9; Superpumper, at ¶¶ 13-14.

[¶ 12] Gratech invites us to modify that standard and to apply a de novo standard allowing full review by a reviewing court of questions of law in statutorily mandated arbitrations. In support of its argument, Gratech relies upon this Court’s comments in a footnote in Allstate Ins. Co. v. Nodak Mut. Ins. Co., 540 N.W.2d 614 (N.D.1995). In Allstate, the Court noted that some courts had adopted a minority view and applied a heightened standard of review to questions of law when the arbitration is compelled by statute. Id. at 620 n. 2; see American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171, 179 (1987); Allstate Ins. Co. v. Caltabiano, 74 Conn. App. 49, 809 A.2d 1153, 1156 (2002); Detroit Auto. Inter-Ins. Exch. v. Gavin, 416 Mich. 407, 331 N.W.2d 418, 434-35 (1982); Johnson v. American Family Mut. Ins. Co., 426 N.W.2d 419, 421 (Minn.1988) (automobile no-fault arbitration); Gilder v. Auto-Owners Ins. Co., 659 N.W.2d 804, 807 (Minn.Ct.App.2003) (same); Racine v. AMCO Ins. Co., 605 N.W.2d 773, 775 (Minn.Ct.App.2000) (same).

[¶ 13] We find it unnecessary to resolve this issue in this case because we conclude that, applying either standard, the arbitrators correctly determined that Gratech waived its right to arbitrate its claims by failing to file a notice of claim in compliance with N.D.C.C. § 24-02-26.1 and the provisions of the contract.

B

[¶ 14] All disputes arising out of any contract entered into by DOT for the construction or repair of highways must be submitted to arbitration. N.D.C.C. § 24-02-26; Gratech Co. v. Wold Eng’g, P.C., 2003 ND 200, ¶ 16, 672 N.W.2d 672; State v. Gratech Co., 2003 ND 7, ¶¶ 10, 19, 655 N.W.2d 417. By voluntarily entering into a highway construction contract, the parties are deemed to have agreed to arbitration of all disputes arising out of the contract. N.D.C.C. § 24-02-26; Gratech, 2003 ND 7, ¶ 19, 655 N.W.2d 417.

[¶ 15] Section 24-02-26.1, N.D.C.C., provides that, as a condition precedent to arbitration, any person seeking additional compensation for work not covered in the contract must file a written notice of claim:

Condition precedent to contractor demand for arbitration — Claims for extra compensation. In addition to the provisions of section 24-02-30, full compliance by a contractor with the provisions of this section is a condition precedent to the contractor’s right to demand arbitration. If the contractor believes the contractor is entitled to additional compensation for work or materials not covered in the contract or not ordered by the engineer as extra work or force account work in accordance with the contract specifications, the contractor shall, prior to beginning the work which the claim will be based upon, notify the engineer in writing of the intent to make claim for additional compensation. If the basis for the claim does not become apparent until the contractor has commenced work on the project and it is not feasible to stop the work, the contractor shall immediately notify the engineer that the work is continuing and that written notification of the intent to make claim will be submitted within ten calendar days. Failure of the contractor to give the notification required and to afford the engineer facilities and assistance in keeping strict account of actual costs will constitute a waiver of claim for additional compensation in connection with the work already performed. Notification of a claim, and the fact that the engineer has kept account of the costs involved, may not be construed as proving or substantiating the validity or actual value of the claim.
Any person submitting a claim for compensation under this section, personally or on behalf of another person or entity, must do so in writing, not later than ninety days after the department has submitted the final estimate to the contractor. The claim must state the monetary amount of the claim, the reason for the claim, when the loss was incurred, and a short statement of the factual situation under which the claim arose. The claim must be made under oath or equivalent affirmation. The director shall provide claim forms to persons requesting or indicating a need for them.

See also Gratech, 2003 ND 7, ¶ 11, 655 N.W.2d 417.

[¶ 16] In addition, § 104.06 of the contract requires that the contractor file a written notice of claim for additional compensation for work “not clearly covered in the Contract” and further provides:

Conditions Precedent to Contractor’s Demand for Arbitration. Full compliance by the Contractor with Section 104.06 is a contractual condition precedent to the Contractor’s right to demand arbitration.
No right shall exist to demand arbitration against the Department until the conditions specified in Section 104 and in Title 24 of the North Dakota Century Code have been complied with.

[¶ 17] Section 104.04 of the contract expressly requires written notice by the contractor for additional compensation claimed as a result of unanticipated site conditions:

During the progress of the work, if subsurface or latent physical conditions at the site which differ materially from those indicated in the Contract; or if unknown physical conditions of an unusual nature which differ materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the Contract are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before they are disturbed and before the affected work is performed.
Upon written notification, the Engineer will investigate the conditions, and if he/she determines that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the Contract, an adjustment, excluding loss of anticipated profits, will be made and the Contract modified in writing accordingly. The Engineer will notify the Contractor of his/her determination whether or not an adjustment of the Contract is warranted.
No Contract adjustment which results in a benefit to the Contractor will be allowed unless the Contractor has provided the required written notice.
There will be no Contract adjustment allowed on work not affected by the changed conditions.
Written notice of intent to file a claim, followed by the claim for extra compensation for differing site conditions shall be as outlined in Section 104.06.

The basis of Gratech’s claim in this case is that the site conditions differed materially from the representations in the plans and contract.

[¶ 18] Gratech argues that the additional work in this case was work covered under the contract and, therefore, the notice requirement of N.D.C.C. § 24-02-26.1 does not apply. This Court rejected a similar argument in Byron’s Constr. Co. v. North Dakota State Highway Dep’t, 448 N.W.2d 630, 633-34 (N.D.1989) (citations omitted):

Byron’s asserts that this notice requirement is not applicable because Byron’s is seeking additional compensation for “work covered by the contract” as opposed to “work not covered in the contract.” Byron’s asserts that the notice provision is inapplicable to a contractor’s request for additional compensation or an equitable adjustment involving an alteration of construction work under Contract Provision 104-2, an increase or decrease of quantities under Contract Provision 104-3, the encountering of changed conditions under Contract Provision 104-4, or performance of extra work under Contract Provision 104-5.
Byron’s interpretation of the notice requirement under Section 24-02-26.1, N.D.C.C., is much too narrow. That provision requires a contractor to give timely written notice as a prerequisite to claiming additional compensation unless the work or materials for which additional compensation is sought have been ordered by the engineer as extra work or force account work. The notice requirement protects important concerns of the state by permitting early investigation of the validity of a claim when evidence is still available, by allowing the Highway Department to compile records of the contractor’s costs, and by allowing the Highway Department to consider alternate methods of construction to prevent unnecessary expenditures.
We are unpersuaded that Byron’s request for additional compensation is based upon work or materials “covered in the contract.” With one exception, the work and materials for which Byron’s seeks additional compensation were not part of the original contract language or a modification of the contract between the parties, nor the result of a change order or extra work order by the engineer. Consequently, Byron’s was required to give notice under Section 24-02-26.1, N.D.C.C., as a prerequisite to claiming additional compensation beyond the contract price of $2,255,925. Byron’s failure to give timely written notice constituted a waiver of its right to claim additional compensation and a failure of the condition precedent to demand arbitration of the matter.

[¶ 19] This Court reached a similar result in Johnson Constr., Inc. v. Rugby Mun. Airport Auth., 492 N.W.2d 61 (N.D. 1992). The contract for construction of a new airport runway included a provision requiring a written notice of claim if the contractor sought additional compensation for “extra work.” The contractor encountered unsuitable soil, allegedly resulting in additional excavation. The contractor failed to provide written notice under the contract, but sued the Airport Authority for damages, claiming the additional excavation was covered under the contract.

[¶ 20] This Court, relying upon the interpretation of N.D.C.C. § 24-02-26.1 in Byron’s, rejected the contractor’s argument that it was not required to give written notice of its claim:

We do not believe that there is a significant distinction between the notice requirement in § 24-02-26.1, N.D.C.C., and § 50-16 of the specifications. We conclude that if Johnson believed it was being requested by Rugby’s engineer to perform more excavation and embankment work than it had anticipated, and for which it did not believe it was being compensated under the contract, it was required by § 50-16 of the specifications to notify the engineer in writing of its intent to make a claim for additional compensation. By failing to provide that written notice, Johnson waived all claims for additional compensation for excavation and embankment work.
Johnson argues that excavation and embankment “are clearly ‘provided for in the awarded contract’ and cannot be classified as ‘extra work’ ” as defined in § 10-20 of the specifications. However, Johnson acknowledged in its brief:
“As a result of the decision of the project engineer [that much of the material directly under the topsoil was not suitable for ‘select embankment’], it was necessary to remove large quantities of earth, stockpile it and replace it after removing the material which was used for ‘select embankment.’ It is this additional excavation which forms the basis for the greater portion of the excavation claim of Johnson.” (Emphasis added.)
In our view, “additional excavation” is “extra work” as defined by § 10-20 of the specifications, for which notice of an intent to claim additional compensation is required before doing the work or the contractor waives the right to claim additional compensation for that work. In any event, the requirement of notice of a claim for work or materials “not provided for in the awarded contract” should alert a contractor to provide notice if any doubt exists as to the right to payment. The provision should be construed to encourage, not discourage, notice of a claim for additional compensation in order that the dispute be resolved then, when other options are available to the parties, rather than later when the work is completed and cannot be undone.

Johnson, 492 N.W.2d at 64.

[¶21] We agree with the results and rationale in Byron’s and Johnson. The work for which Gratech sought additional compensation- — additional excavation, subcutting, plowing, discing, and drying required because the soil conditions differed from the plans and the contract — • was not provided for in the original contract. Accordingly, written notice was required under N.D.C.C. § 24-02-26.1 and § 104.06 of the contract. In addition, § 104.04 of the contract explicitly required written notice if additional compensation was sought for work resulting from “subsurface or latent physical conditions at the site which differ materially from those indicated in the Contract.” Gratech’s failure to give written notice as required by statute and the contract constituted a waiver of its right to claim additional compensation and a failure of the condition precedent to demand arbitration of the matter. See Johnson, 492 N.W.2d at 64; Byron’s, 448 N.W.2d at 634.

[¶ 22] We conclude the arbitrators did not err in determining that all but one of Gratech’s claims were barred by Gratech’s failure to file a notice of claim.

Ill

[¶ 23] We have considered the remaining issues raised by the parties and find them to be without merit or unnecessary to our decision. The judgment is affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2004 ND 56
    Gene ENSIGN, Plaintiff and Appellee, v. The BANK OF BAKER, Defendant and Appellant.
    No. 20030234.
    Supreme Court of North Dakota.
    March 23, 2004.

      Michael J. Maus, Hardy, Maus & Nord-sven, Dickinson, N.D., for plaintiff and ap-pellee.
    Garth H. Sjue (argued) and Ken G. Hedge (on brief), Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Williston, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] The Bank of Baker appealed from a summary judgment holding Gene Ensign’s agricultural supplier’s lien on a bankrupt Montana couple’s buffalo proceeds is superior to the Bank’s prior perfected security interest in those proceeds and ordering the Bank to pay Ensign $88,857.59 plus costs. Because the district court had no personal jurisdiction over the Bank, we vacate the judgment.

I

[If 2] The Bank is a Montana corporation with its principal place of business at Baker, Montana. It has no banks located in North Dakota. The Bank does not solicit customers in North Dakota, but occasionally loans money to customers who live in North Dakota. Loans made to North Dakota customers are originated in Montana.

[¶ 3] In August 1996 the Bank loaned money to Leonard Lewis and Donna Lewis, a married couple who resided in Montana and raised buffalo for slaughter on their ranch in Carter County, Montana. The Lewises secured the loan, in part, with buffalo. The Lewises borrowed additional money from the Bank in later years, and in May 1999 they executed a security agreement granting the Bank a security interest in all buffalo and “products and proceeds thereof’ and “all machinery and equipment now owned or hereafter acquired.” The Bank perfected the security interest by filing a financing statement with the Montana Secretary of State.

[¶ 4] Ensign is not a customer of the Bank, but is a farmer and rancher who operates a custom buffalo-feeding business near Scranton, North Dakota. The Lew-ises entered into two contracts with Ensign to feed their buffalo. During 2000 and 2001, the Lewises delivered more than 200 buffalo to Ensign’s feedlot in Bowman County. Upon receiving the buffalo, Ensign filed with the Bowman County Recorder two agricultural supplier’s liens covering the buffalo. The Bank then filed an additional financing statement with the North Dakota Secretary of State. On two occasions, the Bank sent an employee to Ensign’s North Dakota feedlot to inspect its buffalo collateral. The Lewises eventually defaulted on their loans from the Bank.

[¶ 5] After some of the buffalo had already been sold, the Lewises, in January 2002, sold forty-three buffalo for $19,019.33. The check was made payable to the Bank, Lee Lewis, Ensign, and the Farm Service Agency (“FSA”). In July 2002, forty buffalo were sold for $18,480. The check was again made payable to the Bank, Lee Lewis, Ensign, and the FSA. The January 2002 check is in the Bank’s possession, and the June 2002 cheek is in Ensign’s possession.

[¶ 6] Ensign brought this action against the Bank in North Dakota state district court to determine the priority to the January 2002 check held by the Bank in Montana and to obtain a money judgment against the Bank for the face amount of the check. The Bank moved to dismiss the complaint, arguing the court did not have personal jurisdiction over the Bank and did not have subject-matter jurisdiction over the cheek, because the check was in its possession in Montana. In June 2002^ the Lewises filed for bankruptcy. After the Bankruptcy Court lifted the automatic stay to allow for a determination of priority to the disputed check, the district court denied the motion to dismiss for lack of personal jurisdiction, and Ensign moved for summary judgment. Ensign argued his agricultural supplier’s lien had priority over the Bank’s security interest and sought a judgment against the Bank for the value of both the January 2002 and the June 2002 checks, plus additional compensation for his care of the buffalo. The Bank made a cross-motion for summary judgment, arguing the agricultural supplier’s lien was defective and Ensign was not owed anything. The district court granted summary judgment against the Bank in the amount of $88,857.59 plus costs.

[¶ 7] The district court had subject-matter jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The Bank’s appeal was timely under N.D.R.App.P. 4(a). This Court has subject-matter jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.

II

[¶ 8] The dispositive issue on appeal is whether the district court had personal jurisdiction over the Bank.

[¶ 9] A court has subject-matter jurisdiction over an action if the constitution and the laws authorize that court to hear the type of case to which the particular action belongs. Larson v. Dunn, 474 N.W.2d 34, 38 (N.D.1991). “A court has personal jurisdiction over a person if the person has reasonable notice that an action has been brought and sufficient connection with the forum state to make it fair to require defense of the action in the state.” Id. at 38-39. In determining personal jurisdiction over a nonresident defendant, a court must first decide whether the forum state’s long-arm provision confers jurisdiction over the nonresident defendant, and, if it does, the court must decide whether the exercise of personal jurisdiction over the nonresident comports with due process. Rodenburg v. Fargo-Moorhead YMCA 2001 ND 139, ¶ 15, 632 N.W.2d 407. To satisfy due process concerns, the nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. Hansen v. Scott, 2002 ND 101, ¶ 16, 645 N.W.2d 223.

[¶ 10] North Dakota’s long-arm provision is N.D.R.Civ.P. 4(b)(2), which provides in relevant part:

(2) Personal jurisdiction based upon contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:
(A) transacting any business in this state;
(H) enjoying any other legal status or capacity within this state;

Rule 4(b)(2) is designed to permit state courts to exercise personal jurisdiction to the fullest extent permitted by due process. Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 6, 611 N.W.2d 173; United Accounts, Inc. v. Quackenbush, 434 N.W.2d 567, 569 (N.D.1989).

[¶ 11] Whether a court maintains personal jurisdiction over a party is a question of law, and we review the district court’s decision on the matter by employing the de novo standard for legal conclusions and the clear-error standard for factual findings. Rodenburg, 2001 ND 139, ¶ 17, 632 N.W.2d 407. Once a defendant has challenged a court’s jurisdiction, the plaintiff bears the burden of proving that jurisdiction exists. Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 373 (8th Cir.1990); Red River Transp. and Dev. Co., Inc. v. Custom Airmotive, Inc., 497 F.Supp. 425, 427 (D.N.D.1980). The plaintiff must make a prima facie showing of jurisdiction to defeat a motion to dismiss for lack of personal jurisdiction, and if the court relies only on pleadings and affidavits, the court must look at the facts in the light most favorable to the plaintiff. Rodenburg, at ¶ 17. Questions of personal jurisdiction must be decided on a case-by-case basis, depending on the particular facts and circumstances. Catlin v. Catlin, 494 N.W.2d 581, 590 (N.D.1992).

[¶ 12] We have identified five factors for assessing personal jurisdiction over a nonresident defendant: (1) the nature and quality of a nonresident defendant’s contacts with the forum state; (2) the quantity of the nonresident defendant’s contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the forum state’s interest in providing a forum for its residents; and (5) the convenience of the parties. Hansen, 2002 ND 101, ¶ 30, 645 N.W.2d 223; Liomber Mart, Inc. v. Haas Intern. Sales & Service, 269 N.W.2d 83, 88 (N.D.1978). While the first three factors are of primary concern, the fourth and fifth factors are of only secondary importance and are not determinative. Lumber Mart, Inc., at 88; see also Guinness Imp. Co. v. Mark VII Distrib., Inc., 153 F.3d 607, 614 (8th Cir.1998).

[¶ 13] In Lakin v. Prudential Sec., Inc., 348 F.3d 704, 707 (8th Cir.2003), the Eighth Circuit Court of Appeals explained:

The Supreme Court has noted that states exercise two broad types of personal jurisdiction: specific jurisdiction and general jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Specific jurisdiction refers to jurisdiction over causes of action that “arise out of’ or “relate to” a defendant’s activities within a state. Bzorger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). General jurisdiction, “on the other hand, refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.” Sondergard [v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir.1993)] (citation omitted); see also Helicopteros, 466 U.S. at 414, n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404.

General personal jurisdiction is proper only when the defendant has engaged in a high level of continuous and systematic contacts in the forum state. See Dalton v. R &W Marine, Inc., 897 F.2d 1359, 1362 (5th Cir.1990). Because of the broad basis for jurisdiction and the requirement of a much higher level of contacts, the exercise of general personal jurisdiction “is typically limited to large companies doing a large amount of business on a regular basis.” Adams v. Riverview Healthcare Ass’n, No. A3-02-135, 2003 WL 1456442, 2003 U.S. Dist. LEXIS 4253, at * 5 (D.N.D. March 17, 2003). Most courts are hesitant to exercise general personal jurisdiction over nonresident defendants. Lakin, 348 F.3d at 708.

[¶ 14] In this case, although the Bank occasionally loans money to North Dakota customers, it does not solicit customers in North Dakota, and the loans are originated in Montana. The Bank has no physical presence in North Dakota. The Bank’s affidavit, which was the only evidence before the court on the motion to dismiss on jurisdictional grounds, also states it conducts physical inspections in North Dakota of its collateral on loans “[a]t least annually,” and filed financing statements with the North Dakota Secretary of State covering the buffalo in this case. We conclude the Bank’s limited contacts with North Dakota are not sufficiently continuous and systematic to justify the exercise of general personal jurisdiction.

[¶ 15] A North Dakota court may exercise specific personal jurisdiction over nonresident defendants only if they “ ‘purposefully directed their activities towards North Dakota,’ ” Rodenburg, 2001 ND 139, ¶ 19, 632 N.W.2d 407 (quoting Falkirk Mining Co., 906 F.2d at 375), and the course of action “arisefe] out of’ or “relate[s] to” the defendant’s activities in the state. Lakin, 348 F.3d at 707. Ensign argues jurisdiction is proper here because the Bank makes loans to North Dakota residents; it loaned funds to the Lewises, knowing the buffalo were located in North Dakota; it twice inspected the buffalo collateral at the feedlot; and it filed its financing statement in North Dakota.

[¶ 16] The loans the Bank makes to North Dakota customers do not support specific personal jurisdiction in this case. Ensign is not a Bank customer, and the debtors, the Lewises, are Montana residents. Ensign’s action does not “arise out of’ or “relate to” loans the Bank made to other North Dakota residents. Lakin, 348 F.3d at 707; see also 18 J. O’Gallagher & G. O’Grady, Fletcher Cyclopedia of the Law of Private Corporations § 8715, at pp. 383-84 (1999) (although a forum state may reach foreign corporate defendants in suits growing out of limited or transient contacts, the “business which is done must ... relate to the cause of action”). Here, Ensign’s action to determine priorities and receive a money judgment for the amount of the check in the Bank’s possession is totally unrelated to the loans made to other North Dakotans.

[¶ 17] The Bank’s knowledge that the collateral was located in North Dakota, its inspections of the collateral, and its filing of the financing statements in this case also do not support the exercise of specific jurisdiction under the circumstances. Numerous courts have held that the filing of a Uniform Commercial Code financing statement by a nonresident defendant does not constitute a voluntary or purposeful effort to do business in the forum state. See, e.g., Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 588 (M.D.Fla.1991); Occidental Fire & Cas. Co. v. Continental Illinois Nat’l Bank and Trust Co., 689 F.Supp. 564, 567-68 (E.D.N.C.1988); Foremost Pipeline Constr. Co. v. Ford Motor Co., 420 F.Supp. 647, 648 (D.S.C.1976); Goehring v. Superior Court, 62 Cal.App.4th 894, 73 Cal.Rptr.2d 105, 113 (1998); Milberg Factors, Inc. v. Greenbaum, 585 So.2d 1089, 1092 (Fla.App.1991); NFD, Inc. v. Stratford Leasing Co., 433 N.W.2d 905, 909 (Minn.App.1988). The court reasoned in Occidental, 689 F.Supp. at 567, because “the defendant has no control over its customers’ use of funds,” the “defendant’s minimal entry into North Carolina to protect its interests is not a ‘voluntary’ effort to do business” and “[d]ue process protections would have little meaning if defendant would be subject to suit in every jurisdiction in which customers resided or used funds obtained from the bank.” For these same reasons, we conclude the Bank’s alleged knowledge that the buffalo were located in North Dakota and the two inspections of the buffalo collateral at Ensign’s feedlot do not demonstrate the Bank purposefully directed its activities toward North Dakota. This reasoning also defeats Ensign’s argument that the Bank’s status as a “secured party” constitutes a “legal status” under N.D.R.Civ.P. 4(b)(2)(H) to support the exercise of personal jurisdiction.

[¶ 18] Moreover, the fact situation before us bears some similarities to the fact situation in Hust v. Northern Log, Inc., 297 N.W.2d 429 (N.D.1980). In Hust, the plaintiffs, who resided in Jamestown, North Dakota, viewed a log home built with the defendant’s materials and wrote to the corporation’s Minnesota headquarters for information. The defendant sent the plaintiffs a brochure, the plaintiffs traveled to Minnesota to view buildings constructed with the corporation’s materials, executed a purchase contract, transported the logs to Jamestown, and began to construct the home there. The defendant’s agent assisted in the construction of the home for a two-day period. After problems developed with the home, the plaintiffs sued for breach of express and implied warranties. The district court dismissed the action for lack of personal jurisdiction over the defendant, and this Court affirmed.

[¶ 19] The plaintiffs argued personal jurisdiction existed because the defendant sent an advertising brochure to North Dakota in response to their inquiry; the defendant used the state banking system when it cashed checks given for the purchase of the logs; the defendant contacted the plaintiffs in North Dakota by telephone and sent an agent to North Dakota to render on-site construction aid; and the defendant committed a tort and breached express and implied warranties in the state. This Court ruled the North Dakota court did not have personal jurisdiction over the defendant:

Northern Log closes no sales in North Dakota; the Husts submitted all payments to Northern Log in Remer, Minnesota; the Husts transported the original set of logs to North Dakota; Northern Log solicits no business in North Dakota through salespersons or through advertising reasonably calculated to reach the State; Northern Log sent the brochure displaying its products after the Husts inquired about building a log home; Northern Log sent its agent for the sole purpose of overseeing the construction of the home in its initial stages; Northern Log does not directly serve the North Dakota market. Thus, Northern Log’s contacts with North Dakota can be equated to the “fortuitous circumstance” alluded to by the United States Supreme Court in World-Wide Volkswagen [Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)].

Hust, 297 N.W.2d at 432-33. This Court found it unnecessary to determine whether the applicable subparagraphs of N.D.R.Civ.P. 4(b)(2) had been satisfied because “exercising personal jurisdiction would offend against the traditional notions of justice and fair play under due process.” Id. at 433.

[¶ 20] As in Hust, the Bank’s sparse North Dakota activities in this case are not those of a corporation that purposefully avails itself of the privilege of conducting-business within North Dakota. The Bank’s conduct and connection with North Dakota are not such that it “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp., 444 U.S. at 297, 100 S.Ct. 559. We conclude the district court’s exercise of personal jurisdiction over the Bank under these circumstances is constitutionally impermissible.

Ill

[¶ 21] The judgment is vacated.

[¶ 22] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, MARY MUEHLEN MARING, JJ., concur.


text:
    2004 ND 58
    Robert D. GIESE, Plaintiff and Appellant, v. Eva GIESE, Defendant and Appellee.
    No. 20030278.
    Supreme Court of North Dakota.
    March 23, 2004.

      Arnold V. Fleck, Fleck Law Office, Bismarck, N.D., for plaintiff and appellant.
    Richard B. Baer, Richard B. Baer, P.C., Bismarck, N.D., for defendant and appel-lee.
   MARING, Justice.

[¶ 1] Robert D. Giese appealed from orders of the district court holding him in contempt and awarding his former spouse, Eva Giese, damages for Robert’s intentional failure to comply with the provisions of the parties’ divorce decree dividing Robert’s retirement benefits. We hold the district court did not abuse its discretion in finding Robert Giese in contempt and did not err in awarding damages, including costs and attorney fees, to Eva Giese. We affirm in part, reverse in part, and remand with instructions that the district court amend its orders to permit Robert Giese to make a lump sum payment of the damage award and to set a date by which such lump sum payment must be made.

I

[¶ 2] Robert and Eva Giese were divorced on March 26, 1998, after a long-term marriage. The divorce decree awarded Eva twenty percent of Robert’s employee retirement benefit and directed Robert’s attorney to prepare an appropriate order to accomplish the retirement split. The court entered an order on January 22, 1999, slightly modifying the terms of the retirement division, but retaining the eighty/twenty percent allocation of the account employing the value as of March 26, 1998. The court ordered Eva’s attorney to prepare an amended judgment and a Qualified Domestic Relations Order (“QDRO”) to accomplish the division of the retirement account between the parties. Despite the court’s directive, a QDRO was not prepared.

[¶ 3] Robert Giese retired on November 1, 2001, and began receiving monthly retirement benefits. Eva Giese did not receive her share of the benefits.

[¶ 4] After this Court filed its opinion in Giese v. Giese, 2002 ND 194, ¶ 14, 653 N.W.2d 663, affirming the district court’s order enforcing the divorce judgment, a QDRO was approved by the plan administrator of Robert Giese’s retirement account, and, effective March 1, 2003, Eva Giese began receiving $200.00 per month as her share of Robert’s retirement benefits. On May 22, 2003, Eva filed a motion seeking damages for Robert’s failure to give her a twenty percent share of the retirement benefits he had received from November 1, 2001, through February 2003, and requesting the court to award those damages under its contempt powers. On July 10, 2003, the district court issued an order to show cause, directing Robert Giese to appear before the court to show cause why he should not be held in contempt of court for his failure to comply with the divorce decree. In its order, the court directed Robert to produce at the hearing itemized statements from the plan administrator of his retirement account, identifying for the court “all disbursements from and after the date of divorce, or date of retirement, the amount thereof, and the payee of the same.”

[¶ 5] After a hearing, the court entered an order on July 24, 2003, finding Robert Giese in contempt of court for failure to comply with the divorce decree and ordering him to pay past due retirement benefits to Eva Giese, for the period of November 1, 2001, through February 28, 2003, totaling $3,610.08, together with interest of six percent per annum, for a total award of $3,826.68. In an amended order, dated September 19, 2003, the court awarded Eva Giese attorney fees for the proceedings in the amount of $500, for a total award of $4,326.68, and the court directed the administrator of Robert Giese’s retirement account to pay fifty percent of Robert Giese’s retirement benefits to Eva Giese until she has received the equivalent of the damages awarded, plus interest at six percent per annum, in addition to her monthly percentage of twenty percent of the retirement benefit. Robert Giese appeals from the July 24, 2003 order and the September 19, 2003 amended order.

II

[¶ 6] On , appeal, Robert Giese asserts the district court did not have jurisdiction “over Eva’s claim arising from the payment of retirement benefits to Robert prior to the approval of the Qualified Domestic Relations Order.” For a court to issue a valid order or judgment, the court must have jurisdiction over both the subject matter of the action and the parties. Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. Subject matter jurisdiction is the court’s power to hear and determine the general subject involved in the action. Id. Section 14-05-25.1, N.D.C.C., provides, “[fjailure to comply with the provisions of a divorce decree relating to distribution of the property of the parties constitutes contempt of court.” This statute provides for contempt proceedings to enforce divorce judgments. Peters-Riemers v. Riemers, 2002 ND 49, ¶ 5, 641 N.W.2d 83.

[¶ 7] Robert Giese concedes in his appellate brief that the court has continuing jurisdiction in a divorce action to enforce the provisions of its judgment by way of contempt and the court has continuing jurisdiction to enforce property distributions “by way of contempt and through separate actions.” However, Robert Giese argues that he complied with the provisions of the divorce judgment and that, because the delay in the processing of the QDRO was due to the failure of Eva Giese’s attorney to timely prepare it, “the trial court’s enforcement by way of contempt was not appropriate. That leaves the trial court on remand from this appeal without subject matter jurisdiction to address Eva’s claim.” Robert’s argument is not persuasive. Under N.D.C.C. § 14-05-25.1, the district court had subject matter jurisdiction over these contempt proceedings.

Ill

[¶ 8] Robert Giese asserts the trial court abused its discretion in finding him in contempt. Civil contempt requires a willful and inexcusable intent to violate a court order. Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 5, 598 N.W.2d 499. The ultimate determination of whether or not a contempt has been committed is within the trial court’s sound discretion. Id A trial court’s finding of contempt will not be overturned unless there is a clear abuse of discretion. Id An abuse of discretion occurs when the trial court acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law. BeauLac v. BeauLac, 2002 ND 126, ¶ 10, 649 N.W.2d 210.

[¶ 9] The trial court found that Robert Giese violated the court’s divorce judgment by receiving and retaining the full retirement benefits, thereby denying Eva Giese her twenty percent share of the retirement benefit. In the divorce decree, the district court awarded Eva Giese twenty percent of Robert Giese’s retirement benefit, and in its amended judgment, the court expressly stated that the retirement account was to be shared by Robert Giese and Eva Giese in an eighty/twenty percent division. In the divorce decree, Eva Giese’s right to receive a twenty percent portion of the retirement benefit was not made contingent upon effecting an acceptable QDRO. A QDRO is a judgment, decree, or order, relating to child support, spousal support, or marital property rights, which creates or recognizes the existence of an alternate payee’s right to receive all or a portion of the benefits payable with respect to a participant under a plan. See Chapman v. Wells, 557 N.W.2d 725, 727 n. 1 (N.D.1996). Eva Giese’s right to receive a twenty percent share of Robert Giese’s retirement benefit was created by and made a part of her property award under the March 26, 1998, divorce judgment. The district court found that Robert Giese exhibited a willful and inexcusable intent to violate that judgment by receiving and retaining the entire retirement benefit, thereby denying Eva Giese her court-awarded share. We conclude the trial court did not act in an arbitrary, unreasonable, or unconscionable manner in finding Robert Giese in contempt for willfully denying Eva Giese her retirement benefit award. We, therefore, conclude the court’s decision does not constitute an abuse of discretion.

IV

[¶ 10] Robert Giese asserts the district court erred in calculating Eva Giese’s damages and in not considering the federal income tax ramifications of the award. In its order of July 10, 2003, the district court directed Robert Giese to produce itemized statements from the retirement plan administrator identifying all disbursements from the plan and the payee of those disbursements. In response, Robert Giese submitted a letter to the court from the plan administrator. The letter states that effective November 1, 2001, Robert Giese’s benefit “was initially approved in the gross amount of $956.25 per month.” It states that his first check, covering a two-month period, was “in the gross amount of $1,912.50.” The letter then states, “[f]rom his monthly gross benefit, $150.00 is deducted for Retiree Health Plan coverage, and $21.88 is currently being deducted for federal income taxes.” In the second paragraph of the letter, it states that beginning March 1, 2003, $200.00 per month has been deducted from Robert Giese’s benefit, and on that date, he began receiving “a gross monthly benefit of $756.25.” On its face, this letter is ambiguous. A reasonable interpretation of the letter is that, commencing in November 2001, Robert Giese received a check in the amount of $956.25 per month after deductions for retiree health plan coverage of $150.00 per month and for federal- income taxes of $21.88 per month. Under that interpretation, the district court added those deductions to the amount of his monthly check and arrived at a benefit of $1,128.13. Using this benefit figure, the district court computed Eva Giese’s total damages for the period she was denied a share of the retirement benefit, in the amount of $3,610.08. To that amount the court awarded interest at the rate of six percent per annum and attorney fees in the amount of $500 for a total award of $4,326.68.

[¶ 11] In resolving factual disputes, the trial court’s findings of fact will not be overturned unless they are clearly erroneous. N.D.R.Civ.P. 52(a). We conclude, on the evidence presented to it, the trial court’s computation is fair and reasonable and its findings are not clearly erroneous. Additionally, Robert Giese has not directed us to authority requiring the district court to consider federal income tax ramifications in awarding damages for willful failure to comply with a court judgment. Consequently, we are unpersuaded by Robert Giese’s argument that the district court erred in computing damages in this case.

V

[¶ 12] Robert Giese asserts the district court abused its discretion in awarding attorney fees to Eva Giese. Under N.D.C.C. § 27-10-01.4(l)(a), the court may impose the following as a remedial sanction for contempt:

Payment of a sum of money sufficient to compensate a party or complainant, other than the court, for a loss or injury suffered as a result of the contempt, including an amount to reimburse the party for costs and expenses incurred as a result of the contempt.

The court, in its discretion, may award attorney fees as part of the compensation to the complainant in contempt proceedings as reimbursement for costs and expenses incurred as a result of the contempt. Latter v. Lauer, 2000 ND 82, ¶ 11, 609 N.W.2d 450. On this record, we find no abuse of discretion by the district court in awarding attorney fees of $500.00 to Eva Giese for the proceedings before the lower court.

VI

[¶ 13] The district court ordered that the damages award be paid from Robert Giese’s retirement benefit distributions. Robert Giese asserts the trial court should have allowed him to make a lump sum payment of the award. Eva concurs that Robert should be allowed to make a lump sum payment of the damages instead of having them taken from the retirement benefit distribution. In view of the parties’ agreement on this issue, we reverse that part of the court’s order requiring the damages to be paid only from the retirement benefit, and we instruct the district court to order, as an alternative, that Robert Giese be allowed to make a lump sum payment of the entire award by a specified date. The amended order should specify that in the event Robert Giese fails to make the lump sum payment by the specified date, the district court may fashion another remedy available through its contempt power.

VII

[¶ 14] Eva Giese has requested attorney fees on this appeal. Under N.D.R.App.P. 38, this Court can award attorney fees when an appeal is frivolous. We conclude that, based upon this record, an award of attorney fees is not warranted, and we, therefore, deny the request.

VIII

[¶ 15] The orders of the district court finding Robert Giese in contempt and awarding damages are affirmed in part, reversed in part, and the case is remanded with instructions that the court amend the orders to allow Robert Giese to pay the damages awarded in a lump sum payment by a specified date.

[¶ 16] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ„ concur.


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

text:
    2004 ND 54
    Jason Aelred DETTLER, Petitioner and Appellee, v. David A. SPRYNCZYNATYK, Director, Department of Transportation, Respondent and Appellant.
    No. 20030292.
    Supreme Court of North Dakota.
    March 23, 2004.

      Mark A. Friese (argued) and Bruce D. Quick (on brief), Vogel Law Firm, Fargo, N.D., for petitioner and appellee.
    Andrew Moraghan, Assistant Attorney General, Office of the Attorney General, Bismarck, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] North Dakota Department of Transportation Director David Sprynczy-natyk appeals from the East Central Judicial District Court’s judgment reversing the Department’s decision to suspend Jason Dettler’s driving privileges for ninety-one days. On appeal, the Department argues Dettler’s claims that he was unlawfully seized and that the hearing officer disregarded the rules of evidence should not be considered, because they were not included in the specifications of error. The Department also argues the hearing officer’s factual determination that Dettler had driven a vehicle within the two hours prior to his taking an Intoxilyzer test was not against the greater weight of the evidence. We conclude Dettler failed to properly specify any seizure error or any error involving a disregard for the rules of evidence by the hearing officer. We also conclude the hearing officer’s factual determination that Dettler had driven a vehicle within the two hours prior to his taking an Intoxilyzer test is supported by the evidence, and we therefore reverse the district court judgment and reinstate the hearing officer’s suspension of Dettler’s driving privileges for ninety-one days.

I

[¶ 2] On February 20, 2003, at approximately 1:15 a.m., Fargo Police Officer Jonathan Bair observed a pickup in the ditch on the north side of Main Avenue near 40th Street in Fargo. The ditch was snow-covered. The officer determined Dettler was the registered owner of the vehicle, and he located him at a nearby Hardee’s. Dettler acknowledged the vehicle was his, but stated he had not been driving it. The officer had called a tow truck, and the two went outside when it arrived. Once outside, the officer observed the smell of alcohol coming from Dettler, so he asked Dettler to recite the alphabet. Dettler failed to correctly state the alphabet. The officer detained Dettler for further investigation into how the car had gotten into the ditch and who was driving it. After asking Dettler some questions and looking around the vehicle, the officer treated Dettler as having been the driver of the vehicle. He then conducted an investigation for driving under the influence (“DUI”). The officer conducted the horizontal-gaze-nystagmus test, the one-legged-stand test, the walk-and-turn test, and an SD-2 test. The officer arrested Dettler for DUI. At 2:17 a.m., Dettler submitted to an Intoxilyzer test, and the results showed he had a blood alcohol level of .14 percent. Dettler was notified of the Department’s intent to suspend his driving privileges, and Dettler requested a hearing.

[¶ 3] At the March 21, 2003, administrative hearing, the officer testified he went to Hardee’s because he assumed that was where the driver would be. The officer testified that when he got to Hardee’s, he “[a]sked an individual that was seated there if he was the owner of the pickup truck that was in the ditch; and [Dettler] stated that, yes he was. Provided a driver’s . license, identified himself as Jason Dettler.” The officer testified that when he approached Dettler, Dettler did not yet have his food. The officer testified they were on the side of Hardee’s where they could see the vehicle through the window.

[¶ 4] The officer testified he asked Dettler whether he had been driving the vehicle and asked how it had ended up in the ditch. The officer testified Dettler said that he did not know how the truck had gotten into the ditch and that he had not been driving the vehicle. He explained that “somebody that he had met at a bar in West Fargo who he did not know the name of or where he was had been driving it.” He also stated he did not know which bar he had come from.

[¶ 5] The officer testified he asked Dettler whether he had been drinking and Dettler answered -yes. The officer also testified he “asked him if he’d come out with me to take care of the vehicle as the wrecker operator was out there.” The officer testified that once outside, he could smell alcohol, and he noticed Dettler’s watery eyes and unfocused stare. He testified he asked Dettler whether, he knew the alphabet; Dettler said yes, and the officer asked him to recite it. He testified Dett-ler could not recite the alphabet. He testified he placed Dettler in his squad car at that time and told him he was detaining him for an investigation into how the vehicle had gotten into the ditch and who was driving it while under the influence. The officer testified he read Dettler his rights at that time.

[¶ 6] The officer also testified that while he was driving over to Dettler’s vehicle, Dettler stated he had been on the passenger side of the vehicle when it went into the ditch and he had gotten out on that side. The officer testified that after they arrived at the vehicle, he could see there were no footprints coming from the passenger’s side, and the only tracks were on the driver’s side. He testified that the tracks on the driver’s side were pointy-toed and deep-heeled and appeared to be about the same size and shape as Dettler’s cowboy boots. He testified he told Dettler that “based on the evidence I had that I was going to treat him as the driver.” He testified he conducted a DUI investigation and arrested Dettler for driving under the influence.

[¶ 7] At the hearing, Dettler moved to dismiss for his unlawful seizure. Dettler argued there were not reasonable grounds to believe he had been in actual physical control of a motor vehicle. He argued he was not tested for intoxication in accordance with chapter 39-20 of the North Dakota Century Code, because it could not be established that he had been driving within the two hours prior to his being given an Intoxilyzer test to measure his blood alcohol level. Dettler also argued he believed it was an abuse of discretion to disregard the testimony about institutional pressures that officers face. The hearing officer denied Dettler’s motions and suspended Dettler’s driving privileges for ninety-one days.

[¶ 8] Dettler appealed the hearing officer’s decision to the district court. On August 19, 2003, the district court entered a judgment reversing the hearing officer’s decision. The district court held the evidence did not support the conclusion that Dettler had been driving the vehicle within the two hours prior to the administration of the Intoxilyzer test. The district court also concluded Dettler was seized without reasonable and articulable suspicion. The Department appealed the district court’s decision.

[¶ 9] Dettler timely requested a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The Department filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 10] The Administrative Agencies Practice Act, N.D.C.C. ch 28-32, governs our review of an administrative suspension of a driver’s license. Hanson v. Director, N.D. Department of Transportation, 2003 ND 175, ¶ 7, 671 N.W.2d 780. “This Court exercises a limited review in appeals involving drivers’ license suspensions or revocations.” Henderson v. Director, N.D. Department of Transportation, 2002 ND 44, ¶ 6, 640 N.W.2d 714. On appeal, we review the administrative agency’s decision and give deference to the administrative agency’s findings. Hanson, at ¶ 7. We will not make independent findings or substitute our judgment for that of the agency. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. We instead determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. Id.; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). We also defer to the hearing officer’s opportunity to judge the credibility of witnesses. Hanson, at ¶ 7. If the district court’s analysis is sound, however, it is entitled to respect. Id. The conclusion as to whether the facts meet the legal standard, rising to the level of probable cause or reasonable and articu-lable suspicion, is a question of law fully reviewable on appeal. Sonsthagen, at ¶7; Hanson, at ¶ 7.

[¶ 11] We affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

Ill

[¶ 12] The Department argues, because Dettler’s specifications of error were not particular enough to identify a seizure argument, the district court should not have considered Dettler’s argument that an unlawful seizure had occurred. The Department also argues the specifications of error were not particular enough to identify Dettler’s argument that the hearing officer disregarded the rules of evidence. Although these issues were raised and argued by the Department in the appeal to the district court, the court did not address them.

[¶ 13] A party who appeals from an administrative hearing officer’s decision must comply with N.D.C.C. § 28-32-42(4). Isaak v. Sprynczynatyk, 2002 ND 64, ¶ 7, 642 N.W.2d 860. Section 28-32-42(4), N.D.C.C., provides:

An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk of the district court to which the appeal is taken. In an appeal of an agency’s rulemaking action, only the administrative agency concerned, the attorney general, or an assistant attorney general, as well as the legislative council, need to be notified.

(Emphasis added). An appeal from the decision of the agency must be made within thirty days after notice of the order has been given. N.D.C.C. § 28-32-42(1).

[¶ 14] When seeking reversal from a suspension hearing, however, N.D.C.C. § 39-20-06 provides, in part:

Any person whose operator’s license or privilege has been suspended, revoked, or denied by the decision of the hearing officer under section 39-20-05 may appeal within seven days after the date of the hearing under section 39-20-05 as shown by the date of the hearing officer’s decision, section 28-32-42 notwithstanding, by serving on the director and filing a notice of appeal and specifica tions of error in the district court in the county where the events occurred for which the demand for a test was made, or in the county in which the administrative hearing was held.... Within twenty days after receipt of the notice of appeal, the director or the hearing officer who rendered the decision shall file in the office of the clerk of court to which the appeal is taken a certified transcript of the testimony and all other proceedings.

(Emphasis added).

[¶ 15] Both statutes require the filing of specifications of error. To comply with the requirements of N.D.C.C. § 28-32-42(4), the specifications of error must “identify what matters are truly at issue with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.” Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451, 454 (N.D.1996). This Court stated that after its decision in Vetter, it would no longer tolerate imprecise or boilerplate specifications of error. See generally id. Boilerplate specifications of error are those that are general enough to apply to any administrative agency appeal. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 14, 663 N.W.2d 161. This rationale has also been applied in driver’s license suspension cases. Id. Furthermore, the same purpose for filing the specifications of error applies under both statutes — to prevent meaningless specifications of error. We recognize that compliance with the specifications-of-error requirement, because of the different time limitations for filing, may be more difficult under N.D.C.C. § 39-20-06, but this is for the legislature to address.

[¶ 16] Dettler claims his seizure argument fits under his fourth specification of error, which states, “The Hearing Officer’s Decision is not in accordance with the law and is in violation of the Appellant’s constitutional and statutory rights.” This specification of error is the only one that could encompass Dettler’s argument that the hearing officer disregarded the rules of evidence. Similar specifications of error have been found to be boilerplate. See generally Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451, 453 (N.D.1996). Dettler’s general specifications conceivably could encompass all kinds of different arguments. As such, it is the kind of pure boilerplate that is insufficient as a matter of law.

[¶ 17] Dettler also argues the Department must be prejudiced by the alleged lack of specificity. He cites Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451, 453 (N.D.1996). Although Vetter states that prejudice or lack of prejudice may be a factor to consider in addressing a failure to comply with the specificity requirement, this statement must be read in context. 554 N.W.2d at 453. Prejudice was one of several factors weighed by this Court in deciding whether to overturn the cases that were tolerant of boilerplate specifications of error. Id. In Vetter, this Court discussed many factors to be weighed and then decided “[t]he time has come to compel compliance with the specificity requirement.” Id. at 454. Vetter does not require prejudice in order to find a failure to comply with the specificity requirement. We conclude Dettler’s specifications of error were not sufficiently specific to identify the seizure argument or the argument that the hearing officer disregarded the rules of evidence.

[¶ 18] Dettler further claims that even if this Court concludes the specifications of error were insufficient, reversing the district court’s decision is not the appropriate remedy. Dettler argues this Court has granted the district court the discretion to summarily affirm an agency decision if the district court is not satisfied that the issues have been specified. He argues that the abuse-of-discretion standard applies and that the district court did not abuse its discretion in determining the specification requirement was met. The district court acts as an appellate court in an appeal from an administrative agency. Lewis v. N.D. Workers Comp. Bureau, 2000 ND 77, ¶ 8, 609 N.W.2d 445. We do not review the district court’s decision, but rather the administrative hearing officer’s decision. Hanson v. Director, N.D. Department of Transportation, 2003 ND 175, ¶ 7, 671 N.W.2d 780.

[¶ 19] Dettler also argues that the decisions in Sonsthagen v. Sprynczynatyk, 2003 ND 90, 663 N.W.2d 161, and Isaak v. Sprynczynatyk, 2002 ND 64, 642 N.W.2d 860, are distinguishable from this case and that the district court’s decision should not be overturned. Dettler argues that in Sonsthagen, we declined to address an issue raised on appeal because it was not raised below; however, we concluded “Sonsthagen’s specifications of error were not sufficiently specific to identify the ... argument he now raises on appeal. Because Sonsthagen failed to satisfy the requirements of N.D.C.C. § 28-32-42(4), we will not consider this argument.” Sonsthagen, at ¶ 14. It is clear that we declined to address the issue because the specification requirement was not satisfied.

[¶ 20] Dettler also argues that in Isaak v. Sprynczynatyk, 2002 ND 64, 642 N.W.2d 860, we did not reverse for Isaak’s failure to specify. He argues that despite having concluded Isaak failed to properly specify his error, this Court, in Part II of the opinion, went on to conclude the district court erred in limiting the period of suspension. He argues, therefore, that we reversed because the district court erred. But this Court resolved the merits of Is-aak’s argument for no reason other than to furnish an additional basis for reinstating the agency’s decision. See Isaak, at ¶¶ 7-8; also see id. at ¶ 15 (Sandstrom, J., concurring specially).

[¶ 21] Because Dettler did not satisfy the specificity requirements of N.D.C.C. § 39-20-06, it is not necessary to review the merits of these arguments on appeal.

IV

[¶ 22] The Department also argues, the hearing officer’s finding of fact that Dettler had driven a vehicle within the two hours prior to the administration of the Intoxilyzer test is not against the greater weight of the evidence, and reasonable minds could conclude the pickup had been driven by Dettler within the two hours prior to his having taken the test.

[¶ 23] The officer testified that Dettler admitted he was in the vehicle when it went into the ditch. The officer testified, Dettler told him that he was not the driver and that he could not tell him who had been driving the vehicle. The officer also testified Dettler told him he had gotten out of the passenger-side door of the vehicle; however, the officer testified there were no footprints coming from the passenger side. The only tracks coming from the vehicle were on the driver’s side. The officer testified that the tracks on the driver’s side were pointy-toed and deep-heeled and appeared to be about the same size and shape as Dettler’s cowboy boots. The officer also testified Dettler gave him a set of keys that were in his pocket. The officer testified there was a combination of stuff and garbage — everything from compact discs to tools — lying on the passenger seat and floor. A fact-finder can draw reasonable inferences from the evidence. Nelson v. Director, N.D. Department of Transportation, 1997 ND 81, ¶ 11, 562 N.W.2d 562. It is not unreasonable to infer from the testimony that Dettler was the driver of the vehicle.

[¶ 24] As to whether he had been driving the vehicle within two hours of taking the Intoxilyzer test, the evidence demonstrates the test was administered at 2:17 a.m. The officer testified he determined the time of driving from Dettler’s statement that he left the bar at closing time, which the officer stated was 1:00 in the morning. The time of driving on his report indicates 1:15 a.m. The officer testified that was the time he saw the vehicle. Dettler presented no contrary testimony. This evidence supports a finding that the Intoxilyzer test was conducted within two hours from the time Dettler had been driving the vehicle. We conclude the evidence supports the hearing officer’s finding that Dettler had driven the vehicle within the two hours prior to the administration of the test.

V

[¶25] Because the testimony at trial supports a finding that Dettler had been driving the vehicle within the two hours prior to the administration of the test, we reverse the district court judgment and reinstate the hearing officer’s suspension of Dettler’s driving privileges for ninety-one days.

[¶ 26] WILLIAM F. HODNY, S.J., WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

[¶ 27] WILLIAM F. HODNY, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.

VANDE WALLE, Chief Justice,

concurring specially.

[¶28] Jason Dettler argues on appeal that he should not be held to the requirements of specificity of the issues in N.D.C.C. § 28-32-42(4), as we interpreted that statute in Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451 (N.D. 1996), because the ordinary time for appeal is thirty days under N.D.C.C. § 28-32-42(1), whereas under N.D.C.C. § 39-20-06, the statute governing Dettler’s appeal, he must file the appeal within seven days. Although one might expect a person taking an appeal to have some idea of the errors justifying the appeal, I understand the realities are that appeals are taken to protect the right to appeal and the reasons for the appeal in some instances will be determined later. For that reason, Dettler’s argument has a certain allure. But that is a matter for the Legislature which enacted the statutes to rectify, unless the shortened period of time in which to appeal raises some constitutional argument not readily discernable nor, more importantly, argued here.

[¶ 29] Nevertheless, in the application of the specificity requirements, I might apply a less stringent standard to appeals under N.D.C.C. § 39-20-06 because of the short period of time the statute allows for the appeal. But here, the specifications read:

1. The Hearing Officer made findings of fact not supported by the testimony;
2. The Hearing Officer erred in concluding the Intoxilyzer test was fairly administered;
3. The Hearing Officer erred in concluding the Intoxilyzer test results were properly obtained;
4. The Hearing Officer’s Decision is not in accordance with the law and is in violation of the Appellant’s constitutional and statutory rights.
5. The Hearing Officer erred in concluding the chemical test results demonstrated an alcohol concentration of at least ten one-hundredths of one percent by weight within two hours of driving.
6. The Hearing Officer impermissibly shifted the burden of persuasion and proof to the Appellant.

[¶ 30] I am unable to determine in reading these specifications of error, any reasons why the specified errors were errors. Without some explanation the specifications of error do not even substantially comply with the statutory requirement for specifications of error as exemplified in Vetter.

[¶ 31] I concur in the result reached by the majority opinion.

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


text:
    2004 ND 59
    Aaron James JOHNSON, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20030339.
    Supreme Court of North Dakota.
    March 23, 2004.

      Justin D. Roness (appeared), Thomas A. Dickson (on brief), and Timothy Q. Purdon (on brief), Dickson & Purdon, Bismarck, N.D., for-petitioner and appellee.
    Reid A. Brady, Assistant Attorney General (on brief), and Douglas B. Anderson, Assistant Attorney General (argued), Office of the Attorney General, Bismarck, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a Southeast Judicial District Court judgment reversing an administrative hearing officer’s decision to suspend Aaron Johnson’s driving privileges for driving under the influence of alcohol. The Department argues the administrative hearing officer reasonably found the provision for a twenty-minute waiting period in the approved method for conducting the Intoxilyzer test was followed. The approved method requires the operator to ascertain the subject has had nothing to eat, drink, or smoke within the twenty minutes preceding the collection of the breath sample. We reverse the district court’s decision, concluding the hearing officer reasonably found the provision for a twenty-minute waiting period in the approved method for conducting the Intox-ilyzer test was followed.

I

[¶ 2] On May 7, 2003, Jamestown Police Officer Ronald Dietz stopped Johnson for a traffic violation. After Johnson failed field sobriety tests and the S-D2 test, he was arrested for driving under the influence of alcohol. After arresting Johnson, the officer transported him to the Stutsman County Corrections Center, where he administered an Intoxilyzer test. The test results showed Johnson had a blood alcohol level of .16 percent. The Department notified Johnson of its intent to suspend his driving privileges, and he requested a hearing.

[¶ 3] At the June 2, 2003, administrative hearing, the officer testified that he was familiar with the approved method for administering the S-D2 test and that he followed the approved method. He testified that before administering the test, he advised Johnson of the North Dakota implied-consent law. He testified he checked Johnson’s mouth and established a five-minute waiting period. The officer explained that after the S-D2 test, he arrested Johnson, handcuffed his hands behind his back, placed him in the back of the police car, and transported him to the corrections center. The officer testified that Johnson’s arrest was at 1:32 a.m. and that it took about one or two minutes to get to the corrections center.

[¶ 4] The officer testified . that once they arrived at the corrections center, he notified Johnson of the implied-consent law, checked the inside of his mouth to make sure there was nothing in there, and observed him for twenty minutes before administering the Intoxilyzer test- He testified the first breath sample was taken at 1:51 a.m. The officer testified he followed the approved method in administering the Intoxilyzer test. He explained he ascertained the twenty-minute waiting period by noting the time at which he read Johnson the implied-consent law. He stated he administered the test twenty minutes from that time. The Intoxilyzer test record and checklist also indicate that the twenty-minute waiting period was ascertained before the officer administered the test.

[¶ 5] At the hearing, Johnson objected to the admission of the Intoxilyzer test results, contending the officer did not comply with the twenty-minute waiting period provided for in the method approved by the State Toxicologist for conducting an Intoxilyzer test. The hearing officer found the twenty-minute waiting period had been observed by the time the officer administered the Intoxilyzer test. He suspended Johnson’s driving privileges for ninety-one days.

[¶ 6] Johnson appealed the hearing officer’s decision to the .district court. The district court reversed the hearing officer’s decision, concluding there was not a twenty-minute wait prior to the administration of the Intoxilyzer test. In its memorandum opinion, the district court explained the waiting period for the Intoxilyzer test does not begin until after the S-D2 test has been administered. The court explained that because each test has its own approved method with different waiting periods and different purposes, the waiting period from the S-D2 test cannot be tacked on to. the waiting period for the Intoxilyzer test. The Department appealed the district court’s decision.

[¶ 7] Johnson timely requested a hearing under N.D.C.C, § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The Department filed a timely notice 'of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction‘under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 8] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs review of an administrative suspension of a driver’s license. Hanson v. Director, N.D. Department of Transportation, 2003 ND 175, ¶ 7, 671 N.W.2d 780. “This Court exercises a limited review in appeals involving drivers’ license suspensions or revocations.” Henderson v. Director, N.D. Department of Transportation, 2002 ND 44, ¶ 6, 640 N.W.2d 714. On appeal, we review the administrative agency’s decision and give deference to the administrative agency’s findings, deferring to the hearing officer’s opportunity to judge the credibility of witnesses. Hanson, at ¶ 7. We will not make independent findings or substitute our judgment for that of the agency. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. We instead determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. Id.; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). If the district court’s analysis is sound, however, it is entitled to respect. Hanson, at ¶ 7.

[¶ 9] We affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

J — 1 1 — Í

[¶ 10] The Department argues the hearing officer reasonably found the twenty-minute waiting period of the approved method for administering an Intoxilyzer test had been followed.

[¶ 11] The admissibility of an Intoxilyzer test result is governed by N.D.C.C. § 39-20-07(5). Buchholz v. N.D. Department of Transportation, 2002 ND 23, ¶ 7, 639 N.W.2d 490. This statute provides:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist. The state toxicologist is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators who exhibit the certificate upon demand of the person requested to take the chemical test.

N.D.C.C. § 39-20-07(5).

[¶ 12] Whether an Intoxilyzer test has been properly administered can be determined by proving that the method approved by the State Toxicologist has been scrupulously followed. Buchholz v. N.D. Department of Transportation, 2002 ND 23, ¶ 7, 639 N.W.2d 490. Scrupulous compliance does not mean hypertechnieal compliance. Id.

[¶ 13] The portion of the State Toxicologist’s approved method at issue in this case provides: “Before proceeding, the operator must ascertain that the subject has had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.” Approved Method to Conduct Breath Test with Intoxilyzer 5000 KB-EP, dated January 25, 2002.

[¶ 14] The Department argues that the twenty minutes does not have to be calculated from the time of arrest and that it can use the time from the S-D2 testing. Although the district court found the waiting period from the S-D2 test cannot be tacked on to the waiting period for the Intoxilyzer test, Johnson concedes the waiting period from the S-D2 test can be used. We conclude the district court misapplied the law when it found the waiting period for the S-D2 test cannot be used for the Intoxilyzer test.

[¶ 15] Johnson nonetheless argues that the officer’s testimony reveals he failed to comply with the testing procedure. He argues the officer testified that he attempted to ascertain the twenty-minute waiting period after arriving at the corrections center, that he checked Johnson’s mouth sometime after they arrived, and that he then began the waiting period. Johnson argues the evidence shows he was arrested at 1:32 a.m., they arrived at the corrections center at 1:35 a.m., and the first breath sample was obtained at 1:51 a.m. He argues that because there was a maximum of sixteen minutes between the time the officer ascertained whether Johnson had anything to eat, drink, or smoke and the time the officer collected the breath sample, there is no foundation for the Intoxilyzer test.

[¶ 16] The officer testified he attempted to ascertain the twenty-minute waiting period after they arrived at the corrections center. The officer testified that five minutes before administering the S-D2 test, he checked Johnson’s mouth. After the S-D2 test, Johnson was placed under arrest, his hands were cuffed behind his back, and he was placed in the back of the patrol car. Johnson was arrested at 1:32 a.m.; therefore, the officer checked Johnson’s mouth at approximately 1:27 a.m. The Intoxilyzer test was conducted afi 1:51 a.m. During those twenty-four minutes, Johnson’s hands were cuffed behind his back, and he was transported in the back of the patrol car to the corrections center. After they arrived at the corrections center at approximately 1:35 a.m., the officer observed Johnson until the Intoxilyzer test was administered.

[¶ 17] Although the officer testified he did not ascertain until after arriving at the corrections center that Johnson had nothing to eat, drink, or smoke, the testimony is clear that Johnson’s mouth was checked prior to his taking the S-D2 test. The testimony is also clear that Johnson had nothing to eat, drink, or smoke between the time of the S-D2 test and the administration of the Intoxilyzer test. Regardless of when the officer said he began to ascertain the time, the evidence supports the hearing officer’s finding that the twenty-minute waiting period had been observed by the time the officer administered the Intoxilyzer test.

[¶ 18] Johnson argues there was no testimony provided to establish that he was continuously observed by the officer from the point of administration of the S-D2 test until the point of the Intoxilyzer test. Although there was no testimony that the officer constantly observed Johnson, observation is not the exclusive method of ascertaining whether the twenty-minute requirement has been met. State v. Chihanski 540 N.W.2d 621, 624 (N.D. 1995). Furthermore, a fact-finder can draw reasonable inferences from the evidence. Nelson v. Director, N.D. Department of Transportation, 1997 ND 81, ¶ 11, 562 N.W.2d 562. It is not unreasonable for a fact-finder to infer that a person who had been handcuffed behind his back and had remained in police custody would have had nothing to eat, drink, or smoke during that time.

IV

[¶ 19] Because the testimony at the hearing supports the hearing officer’s finding that the twenty-minute waiting period had been observed before the officer administered the Intoxilyzer test, we reverse the district court’s decision and reinstate the hearing officer’s decision to suspend Aaron Johnson’s driving privileges for ninety-one days.

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