author: HUDSON, Judge.

text:
    In the Matter of the Welfare of S.L., Child.
    No. C6-02-1467.
    Court of Appeals of Minnesota.
    June 17, 2003.
    John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, Minneapolis, MN, for appellant child.
    Mike Hatch, Attorney General,'St. Paxil, MN and Ross E. Arneson, Blue Earth County Attorney, Mark A. Lindahl, Susan DeVos, Assistant County Attorneys, Man-kato, MN, for respondent state.

      Considered and decided by HUDSON, Presiding Judge, TOUSSAINT, Chief Judge, and MINGE, Judge.
   OPINION

HUDSON, Judge.

Appellant challenges her adjudication of delinquency for committing second-degree burglary, arguing that the district court committed reversible error when it failed to permit her to withdraw her guilty plea. Appellant contends that the state violated the negotiated plea agreement by not equivocally recommending to the district court the agreed-upon stay of adjudication. Because the state did not follow through on its promise to recommend a stay of adjudication, we reverse and remand.

FACTS

On January 1, 2002, the day before appellant S.L. was scheduled to enter chemical-dependency treatment, she and two of her juvenile friends burglarized the home of S.L.’s father. S.L. suggested the burglary in order to obtain marijuana for herself and to repay a debt. On March 5, 2002, the state filed a delinquency petition in Blue Earth County District Court alleging that S.L. committed second-degree burglary, in violation of Minn.Stat. § 609.582, subd. 2a (2000), and misdemeanor theft, in violation of MinmStat. § 609.52, subds. 2(1), 3(5) (2000). S.L. pleaded not guilty to all charges.

Prior to trial on June 6, 2002, Blue Earth County filed a petition alleging that S.L. was a child in need of protective services (CHIPS petition) based on an unrelated matter, habitual truancy, in violation of MinmStat. § 260C.007, subds. 6(14), 19 (2000). Subsequently, in a negotiated agreement, S.L. agreed to plead guilty to the second-degree burglary charge in exchange for dismissal of the misdemeanor theft charge and for the state’s recommendation of a stay of adjudication of delinquency for committing the burglary. At the plea hearing on June 17, 2002, pursuant to the plea agreement, S.L. pleaded guilty to second-degree burglary. The state and defense counsel stated the plea agreement as follows:

[Defense Counsel]: Yes, Your Honor. We’ve had additional discussions with the County Attorney’s Office and we’ve come to an agreement whereby [S.L.] would be admitting to Count I. Count II would be dismissed. Adjudication on Count I would be stayed and [S.L.] would be referred to probation for a [social history] * * * and additional consequences would be recommended.
[The Court]: Is it contemplated that * * * there be a social history then and a dispositional hearing would be scheduled; that the adjudication would be stayed at this hearing, but it’s possible that it would be accomplished depending on what the results of the social history were * * *.
[Defense Counsel]: That wasn’t my anticipation, Your Honor.
[The Court]: Okay. I just want to make it clear.
[Prosecutor]: Your Honor, it was our * * * desire that I would recommend that it would be a stay of adjudication. It’s based on the juvenile’s chemical dependency issues and the treatment she’s since received for her chemical dependency issues after this event took place.
So that is what that recommendation is based on Your Honor.
[The Court]: AH right. Well, then [S.L.] is that what you want to do?
[S.L.]: Umm, yea.

The district court accepted the plea agreement, withheld adjudication, ordered a social history, and set disposition to occur after completion of the social history. The district court also ordered S.L. to “remain law abiding and follow the rules, regulations, curfew, etc. of the home.” The following day, S.L. admitted the petition on the habitual truancy charge that was the basis for the CHIPS petition. The district court again withheld adjudication, ordered a social history, and set disposition for that matter to occur after completion of the social history.

The disposition hearing for both the burglary and truancy charges was held on July 23, 2002. At the hearing, the prosecutor engaged in a back-and-forth discussion with the district court concerning the negotiated sentence recommendation. The social history revealed that S.L. had consistently engaged in criminal behavior over the previous two years. In 1999, and again in 2000, S.L. was charged with truancy. Also in 2000, S.L. was charged with shoplifting, assault, and disorderly conduct. Furthermore, S.L.’s probation officer recommended to the district court that S.L. be adjudicated delinquent so that S.L. could receive help with her chemical-dependency and mental-health issues. According to the probation officer, S.L. had continued to engage in “very very risky behaviors.” In addressing the state’s recommendation for a stay of adjudication, the prosecutor and defense counsel stated:

[Prosecutor]: Your Honor, the agreement on the burglary in the second degree included a recommendation from the County Attorney’s Office for a stay of adjudication for up to 180-days and basically the benefit of that for [S.L.] was that she would keep a felony conviction off her record if she did what she was supposed to do for the next six months and there were no violations
Some things have come up since then * * *. We have some concerns * * *. Implicit in * * * the recommendation for the stay of adjudication was, I think, the idea that [S.L.] would be on good behavior pending the disposition in this matter and we have indications that she has not been on the best behavior.
* * * *
[Prosecutor]: I would say with regard to that stay of adjudication — that was the agreement of the County Attorney’s Office. I indicated what I thought was implicit in that agreement. If the Court chooses not to stay adjudication, umm, it was a recommendation. It wasn’t a guarantee and I think — I guess, I’d leave it at the Court’s discretion. I think it’s questionable whether she would have the right to withdraw her plea in that matter * * * because her expectations are different from what’s likely to happen at sentencing here, but * * * in any event, we also have her admission in the truancy file.
⅝ ⅜ ‡ ⅜
[Prosecutor]: You know, I really join in [the probation officer’s] recommendations. I guess there is a feeling that I don’t want to go back on the County Attorney’s Office’s word that we are going to recommend a stay of adjudication. Yet, I think there have been some things that changed the circumstance and * * * it would be legitimate for me then to say * * * I don’t think a stay of adjudication is appropriate any more. [Prosecutor]: Your Honor. * * * I just think that the Court should know that that was our original agreement. The circumstances under which she entered her plea was a recommendation from the County Attorney’s Office for a stay of adjudication.
[Defense Counsel]: I would agree with [the state] that the stay of adjudication was part of the agreement with the County Attorney’s Office — specifically for [S.L.] to receive the benefit of not having a felony on her record and * ⅜ ⅜ I guess at this point in time with the reality that the County can still make all the recommendations with respect to the truancy file * * * and speaking with [S.L.], * * * she informs me that she would like the opportunity to request withdrawing the plea on the burglary and she does also understand that the same recommendations can be made with respect to the truancy file as that was admitted straight up.

(Emphasis added.)

The district court adjudicated S.L. delinquent for committing second-degree burglary, and a child in need of protective services with respect to the habitual truancy charge. The district court reasoned that, because S.L. had violated the June 18, 2002, order by not remaining law-abiding, and because S.L. had violated rules established by her mother as recently as the previous weekend, a stay of adjudication was not appropriate. Nor did the district court permit S.L. to withdraw her guilty plea. This appeal followed.

ISSUE

Did the district court abuse its discretion when it failed to permit S.L. to withdraw her guilty plea?

ANALYSIS

The district court is vested with broad discretion in determining whether a defendant should be allowed to withdraw a guilty plea. State v. Ferraro, 403 N.W.2d 845, 847 (Minn.App.1987); Minn. R.Crim. P. 15.05, subd. 2. An appellate court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998).

S.L. argues that the district court committed reversible error when it failed to permit her to withdraw her guilty plea to second-degree burglary. S.L. further contends that the state violated the plea agreement made in exchange for her guilty plea by not recommending to the district court a stay of adjudication. We agree.

Minn. R. Juv. P. 8.04, subd. 2, provides that a child may request to withdraw a guilty plea, and the court may allow withdrawal, (a) “before disposition, if it is fair and just to do so, giving due consideration” to the child’s reasons and “any prejudice that withdrawal of the plea would cause”; or (b) “at any time, upon showing that withdrawal is necessary to correct a manifest injustice.”

Under Minnesota law, if the district court rejects an agreement as to sentence, the defendant is entitled to withdraw the plea. State v. DeZeler, 427 N.W.2d 231, 234 (Minn.1988). To the contrary, if the district court rejects a sentencing recommendation resulting from an agreement, the defendant is not entitled to withdraw the plea unless she can establish that either: (a) she mistakenly believed that she could withdraw her plea if the district court rejected the state’s reeom-mendation; or (b) that there is an alternate ground for -withdrawal. Id.

The state contends that because the plea agreement was for a recommendation as to disposition, and not an unqualified promise for a particular outcome, there was no absolute guarantee that S.L. would receive a stay of adjudication. The state relies on DeZeler and argues that because S.L. does not make a claim that she believed she would be able to withdraw her guilty plea if the district court rejected the state’s sentence recommendation, S.A.L is not entitled to withdraw her guilty plea.

We agree that DeZeler governs if the state actually makes a recommendation to the district court for the agreed-upon sentence. Id. at 234. But if the state failed to keep its part of the agreement, the juvenile is entitled to withdraw the guilty plea. State v. Kortkamp, 560 N.W.2d 93, 95 (Minn.App.1997) (concluding that because the state did not recommend the particular sentence agreed to in exchange for appellant’s guilty plea, appellant must be allowed to withdraw his guilty plea and stand trial); see also State v. Kunshier, 410 N.W.2d 377, 379 (Minn.App.1987) (concluding that the trial court abused its discretion when it rejected the agreed-on sentence without tendering to appellant his right to withdraw the plea and stand trial), review denied (Minn. Oct. 21,1987).

Here, the state wavered on the subject of the plea agreement and the sentence it was recommending. First, the prosecutor confirmed the parties’ agreement that S.L. would plead guilty to the burglary charge in exchange for dismissal of the misdemeanor theft charge and the state’s recommendation of a stay of adjudication. But then the prosecutor qualified the plea agreement by stating that implicit in the agreement was an understanding that S.L. would remain on good behavior, and S.L.’s failure to maintain good behavior nullified the plea agreement. Then the prosecutor indicated that he joined in the probation officer’s recommendation that S.L. be adjudicated delinquent, but simultaneously stated that he did not want to go back on his word that he was going to recommend a stay of adjudication. Ultimately, however, the prosecutor told the district court that the state no longer believed a stay of adjudication was appropriate.

The prosecutor argues that he was only “thinking out loud” when he joined in the probation officer’s recommendation of an adjudication of delinquency. The prosecutor further contends that he did not expressly withdraw the sentencing recommendation and in fact did recommend to the district court a stay of adjudication. Bqt the record indicates that the district court believed the state had withdrawn from the agreed-upon sentence recommendation. In its dispositional factual findings, the district court stated

[b]oth [the prosecutor] and [defense counsel] stated that part of the plea agreement was to recommend a stay of adjudication. [The prosecutor] states that due to the change in circumstances since the plea was made, [it] no longer feels that a stay of adjudication is appropriate.

(Emphasis added.)

The state did not make the agreed-upon sentence recommendation to the district court. To the contrary, after receiving S.L.’s social history, which revealed her criminal past and her ongoing chemical-dependency and mental problems, the prosecutor expressly told the district court that he joined the probation officer’s recommendation of an adjudication of delinquency, and that he no longer felt a stay of adjudication was appropriate. But a defendant does not forfeit his or her right to withdraw a guilty plea and stand trial if, because of changing circumstances, the state changes its mind about a previous agreement. See Kunshier, 410 N.W.2d at 380 (concluding that defendant did not forfeit his right to withdraw plea because of misconduct prior to sentencing). We conclude that the state backed away from its commitment to make the agreed-upon sentence recommendation and, by doing so, violated the parties’ plea agreement.

Because the state did not honor its agreement to recommend a stay of adjudication in exchange for S.L.’s guilty plea, S.L. should have been permitted to withdraw her guilty plea. Accordingly, we reverse and remand to the district court to provide S.L. with an opportunity to withdraw her plea of guilty to second-degree burglary; Because we make this determination, we need not decide whether the district court committed plain error when it accepted S.L.’s guilty plea.

DECISION

Because the state violated the parties’ plea agreement by not recommending to the district court a stay of adjudication, we hold that the district court* abused its discretion when it did not permit S.L. to withdraw her guilty plea. Due to our resolution of the case, we need not reach the issue of whether the district court committed plain error by accepting S.L.’s plea without assuring she understood the consequences.

Reversed and remanded.

      . We note that Minn.Stat. § 260C.007 was amended in 2003. Minn. Laws ch. 2, art. 1, § 26. The amendment overruled subdivision 5, concerning the definition of child abuse and does not affect the outcome of this case. At any rate, the change becomes effective August 1, 2003. Minn.Stat' § 645.02 (2002) (discussing effective dates of laws).

      . Alternatively, S.L. argues that the district court committed plain error by failing to assure that she understood the consequences of the plea before accepting it. Because we reverse and remand on the first issue, we need not reach the second one.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    Judd TURNER, et al., Respondents, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Respondent, Liberty Mutual Fire Insurance Company, Appellant.
    No. C9-02-2029.
    Court of Appeals of Minnesota.
    June 17, 2003.

      Donald R. McNeil, Coleman, Hull & Van Vliet, P.L.L.P., Minneapolis, for respondents Judd and Terese Turner.
    Jack D. Moore, Moore, Warner & Kruger, St. Paul, for respondent Mutual Service Casualty Insurance Company.
    Theodore J. Smetak, Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis; and Nancy L. Gores, Conley & Borgeson, St. Paul, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

HALBROOKS, Judge.

Respondents Judd and Terese Turner, injured while using a rental car on an out-of-state business trip, moved for summary judgment in this declaratory-judgment action they brought to recover uninsured/underinsured motorist benefits from appellant Liberty Mutual Fire Insurance Company, Judd Turner’s employer’s commercial automobile insurer, and respondent Mutual Service Casualty Company, the Turners’ personal automobile insurer. The district court granted summary judgment to the Turners, holding that the commercial automobile policy provides primary uninsured/underinsured coverage and the personal automobile policy provides excess coverage. Because we conclude that the commercial automobile policy does not provide uninsured/un-derinsured motorist coverage to the Turners, who were not “insureds” under the policy or occupying a covered motor vehicle as defined by the policy, we reverse.

FACTS

Respondents Judd and Terese Turner, husband and wife, are Minnesota residents. On November 7, 1999, the Turners were seriously injured in a two-car accident in Louisiana. At the time of the accident, Judd Turner was attending a business meeting related to his employment as sales director for Express Scripts, Inc. Judd Turner was accompanied on the trip by his wife, Terese Turner. The Turners had rented a car for their use in Louisiana. It is undisputed that Express Scripts made the arrangements and paid for the rental car.

Appellant Liberty Mutual Fire Insurance Company (Liberty Mutual) provided commercial auto insurance to Express Scripts; its policy contained an endorsement that provided $1,000,000 of uninsured motorist/underinsured motorist (UM/UIM) coverage. Respondent Mutual Service Casualty Insurance Company (MSI) provided personal auto insurance to the Turners with UM/UIM limits of $250,000 per person and $500,000 per accident.

After the Turners settled their claims with the at-fault driver’s insurer, they brought an action for UM/UIM benefits against both Liberty Mutual and MSI. MSI asserted a cross-claim against Liberty Mutual for reimbursement of basic-economic-loss benefits that it had paid on behalf of the Turners. The parties filed cross-motions for summary judgment.

The district court determined that the Turners are entitled to primary UM/UIM coverage under Liberty Mutual’s policy with excess coverage to be provided by MSI. In addition, the court granted MSI’s motion for reimbursement from Liberty Mutual of basic-economic-loss benefits paid on behalf of the Turners. Liberty Mutual has not appealed from the judgment ordering it to reimburse MSI for basic-economic-loss benefits.

ISSUES

1. Did the district court err in concluding that the Turners were “insureds” under the Liberty Mutual policy and were “occupying” a covered vehicle making Liberty Mutual’s policy primary for the Turners’ UM/UIM claims?

2. Did the district court err in holding that Minn.Stat. § 60A.08, subd. 12 (2002), requires a commercial automobile policy to provide UM/UIM coverage to occupants of a rental vehicle?

ANALYSIS

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Because the parties agree that there are no genuine issues of material fact, our focus is on the district court’s application of the law. Interpretation of insurance policies is a question of law, which we review de novo. Metro. Prop. & Cas. Ins. Co. v. Miller, 589 N.W.2d 297, 299 (Minn.1999). Statutory construction is also subject to de novo review. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). The district court held that Liberty Mutual’s coverage is primary because the Turners were insureds under the Liberty Mutual policy and because the Louisiana rental car was a “covered auto” pursuant to Minn.Stat. § 60A.08, subd. 12 (2002).

I.

The Liberty Mutual policy at issue contains a Minnesota Uninsured and Un-derinsured Motorists Coverage endorsement that provides that it will pay

all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an • “uninsured motor vehicle” or “underin-sured motor vehicle”. The damages must result from “bodily injury” sustained by the “insured” caused by an “accident”.

The endorsement defined “insured” as

1. You.
2. If you are an individual, any “family member”.
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured”.

“You” was defined as “the Named Insured.” The named-insured endorsement fisted Express Scripts and ten other business entities.

In extending coverage to Judd Turner as an insured based on his status as an employee of Express Scripts, the district court relied on Murphy v. Milbank Mut. Ins. Co., 438 N.W.2d 390 (Minn.App.1989), review denied (Minn. June 9, 1989). Murphy involved a claim for underinsured motorist benefits brought by the wife of a man who was killed while operating his employer’s truck. Id. at 392. The decedent’s wife sued the insurers of their family-owned vehicles and the commercial fleet owned by the employer. The case originated under the 1977 UWUIM statutory scheme when insurers were required to make mandatory offers of optional coverages. Because the commercial policy involved in Murphy did not contain UIM coverage and because the court found no waiver of the coverage, the Murphy court imposed UIM coverage as a matter of law and utilized statutory language rather than standard UIM policy language to define an “insured.” As a result, the court concluded that a reasonable interpretation of the term “insured” included an employee of the named insured, reasoning that

[cjlearly [the employee] would not fall under the description following “named insured” in the statutory ' definition. Nonetheless, the use of the word “including” to further explicate “insured under á plan of reparation security” makes it clear that the definition is not limited to the named insured * * *. If it were so limited, only [the corporate employer] * * * could recover as the named insured, * * *. This' interpretation would render the ⅜ * * coverage meaningless, for a corporation cannot suffer a bodily injury.

Id. at 395.

In the intervening years since Murphy was decided, the UM7UIM statutory scheme has changed significantly. While the district' court concluded that Liberty Mutual’s definition of “insured” in this case was “substantially the same” as the definition applied in Murphy, we disagree. Here, we look to the policy language. Under Liberty Mutual’s definition, the Turners are not the named insureds. It is undisputed that the named insureds are Express Scripts and the other business entities.

Further, Liberty Mutual’s definition of insured does not render its UM/UIM coverage meaningless because the definition includes anyone occupying a covered auto. Moreover, the Minnesota Supreme Court has rejected the argument that a commercial insurance policy providing coverage to a corporate named insured is a nullity.

The contention that because a corporation cannot sustain bodily injury the uninsured motorist coverage provided by a policy issued to a corporation was a nullity was advanced and rejected in Kaysen v. Federal Insurance Co., 268 N.W.2d 920 (Minn.1978). Pointing out that the uninsured motorist coverage was not valueless because it protected any person while occupying an insured highway vehicle, we declined in Kaysen to rewrite the policy to include a corporate executive who was fatally injured while a pedestrian within the class of insured persons when he was excluded by the plain and ordinary language of the policy.

Rademacher v. Ins. Co. of N. Am., 330 N.W.2d 858, 861 (Minn.1983) (footnote omitted) (citation omitted); see also Lundgren v. Vigilant Ins. Co., 391 N.W.2d 542, 544 (Minn.App.1986) (“Underinsured motorists coverage is not a nullity when issued to a corporation [as named insured] or other business entity.”).

MSI, citing Kaysen v. Fed. Ins. Co., 268 N.W.2d 920 (Minn.1978), contends that Liberty Mutual’s policy must extend UM/UIM coverage to Judd Turner under the “rule of coextensiveness.” For purposes of liability coverage, Liberty Mutual’s policy defines “insured” to include “[a]nyone else while using with your permission a covered ‘auto’ you own, hire or borrow.” MSI argues that the same broad definition of “insured” must apply for purposes of UM/UIM coverage.

In Kaysen, a deceased employee fit within the definition of an “insured” under the employer’s automobile policy for purposes of liability coverage but not for UM coverage. Id. at 922-23. At the time, Minn.Stat. § 65B.49, subd. 4(1) (1976) (repealed 1985), required that all insurance policies provide UM coverage for the “persons insured thereunder.” Applying that statutory language, the court in Kaysen imposed UM coverage because the employee was insured under the policy for liability purposes. Id. at 924-25. As this court later recognized, however,

In Kaysen the court did replace the uninsured definition of “insured” with the liability definition of insured from the same policy, but it did so on the basis of Minn.Stat. § 65B.49, subd. 4(1) (1976), which it read as requiring that substitution. Here, the statute does not require the definition of “insured” to be coextensive in the liability and underin-sured sections of the policy.

Gieser v. Home Indem. Co., 484 N.W.2d 256, 257 (Minn.App.1992) (internal citation omitted). The statute requiring the imposition of coverage in Kaysen is no longer in effect. Further, the court in Gieser held that

Minnesota law does not require an insurance policy’s definition of “insured” to be coextensive for liability and under-insured coverage when there is no conflict with the no-fault statute.

Id. at 256. As previously noted, unlike the statutory definition of “insured,” Liberty Mutual’s UM/UIM endorsement defines “insured” to include anyone occupying a covered auto. See Minn.Stat. § 65B.43, subd. 5 (2002) (providing that “insured” includes the named insured and the named insured’s family members, while residing in the same household). Therefore, there •is no conflict between the policy and the no-fault statute, and the definition of insured in Liberty Mutual’s policy is not required to be coextensive for liability and UM/UIM coverage.

II.

The next inquiry is whether the Turners are insureds under the Liberty Mutual policy by virtue of the fact that they were occupying a. covered vehicle at the time of the accident. The UM/UIM endorsement in Liberty Mutual’s policy provided coverage for persons occupying a “covered auto.” For purposes of UM/UIM coverage, the policy defined a covered auto as

[o]nly those “autos” you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage.

Under the policy terms, Express Scripts had only one commercial vehicle — a Dodge Caravan that was subject to a long-term lease and that was used and garaged in Minnesota.

The district court’s conclusion that the Turners were occupying a covered vehicle was based not on the policy language but on an extension of coverage through its interpretation of Minn.Stat. § 60A.08, subd. 12 (2002). Minn.Stat. § 60A.08, subd. 12, provides that “[a]ll commercial automobile liability policies must provide coverage for rented vehicles as required in chapter 65B.” Because the phrase “commercial automobile liability policy” is not defined in Minn.Stat. ch. 65B (2002), the district court reasoned that the language, when given its plain, ordinary meaning, should apply to business auto policies. To do otherwise could leave an employee, who was injured in a rental car on a business trip but who had no personal auto coverage, without any UM/UIM coverage.

In a case of first impression concerning the interpretation of Minn.Stat. § 60A.08, subd. 12, Liberty Mutual argues that the sole purpose of the statute is to obligate all commercial auto insurers to pay for property damage to rental vehicles up to $85,000 when vehicles are rented in connection with the insured’s business. Looking at the interplay between Minn.Stat. § 60A.08 and Minn.Stat. ch. 65B, we are persuaded by Liberty Mutual’s position.

We conclude that Minn.Stat. § 60A.08, subd. 12, requires commercial policies to provide only the coverage that chapter 65B expressly requires for rented vehicles. In regard to rental vehicles, chapter 65B requires that every policy

insuring a natural person as named insured, covering private passenger vehicles * * * must provide that all of the obligation for damage and loss of use to a rented private passenger vehicle, * * * would be covered by the property damage liability portion of the plan.

Minn.Stat. § 65B.49, subd. 5a(a). Therefore, we conclude that chapter 65B requires that personal policies covering passenger vehicles must provide damage and loss-of-use protection for rented private passenger vehicles. Pursuant to Minn. Stat. § 60A.08, subd. 12, commercial policies must do the same.

Minn.Stat. § 65B.49, subd. 5a, also provides that

[i]f the person renting the motor vehicle is also covered by the person’s employer’s insurance policy or the employer’s automobile self-insurance plan, the reparation obligor under the employer’s policy or self-insurance plan has primary responsibility to pay claims arising from use of the rented vehicle.

Id., subd. 5a(d). Therefore, if, but only if, an employer’s policy provides coverage for claims arising from the use of rental vehicles, that coverage is primary.

The no-fault act does not require commercial or personal automobile policies to provide UM/UIM coverage for rental vehicles. We conclude that Liberty Mutual’s policy does not provide UM/UIM coverage to the Turners as occupants of the rental car. Because the Turners do not have UM/UIM coverage under Liberty Mutual’s policy, we do not address whether the policy provides coverage up to the amount specified in the UM/UIM endorsement.

DECISION

Because we conclude that the Turners are not insureds for purposes of uninsured/underinsured motorist coverage under Liberty Mutual’s policy, we reverse.

Reversed.

      . Fortunately, the Turners are not without UM/UIM coverage. It is undisputed that they have access to coverage under their personal auto policy with MSI.


author: MARING, Justice.

text:
    2003 ND 89
    STATE of North Dakota, Plaintiff and Appellee, v. Richard CORUM, Defendant and Appellant.
    No. 20020230.
    Supreme Court of North Dakota.
    June 5, 2003.

      Brandi Sasse Russell, Courthouse, Bismarck, N.D., for plaintiff and appellee.
    Paul H. Myerchin, Bormann & Myer-chin, LLP, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Richard Corum appeals from an order denying his motion to suppress evidence and from a criminal judgment finding him guilty of possession of drug paraphernalia. We affirm, concluding the trial court did not err in refusing to suppress evidence obtained in a search of Corum’s home.

I

[¶ 2] At approximately 4:00 a.m. on October 30, 2001, McLean County Deputy Sheriff Richard Benn was on patrol near Wilton, North Dakota. As he crested a hill, Deputy Benn saw a vehicle with its lights turned off parked on the side of the road. The vehicle was near an anhydrous ammonia storage yard which had been the subject of several prior thefts. There were no other businesses or homes in the area. Deputy Benn noticed a flash of light, which he believed to be from a flashlight, in the ditch by the passenger side of the vehicle. According to Deputy Benn, the flashlight appeared to be outside the vehicle. Deputy Benn then noticed a yellow flash of light from the vehicle’s right front turn signal, as if someone had bumped the turn signal lever while climbing into the vehicle. The headlights of the vehicle came on and it pulled onto the roadway. As Deputy Benn passed the vehicle, he saw two males in the front seat.

[¶ 3] Deputy Benn turned around and stopped the vehicle by activating his overhead lights. Upon approaching, he observed two tanks in the back of the vehicle. Both tanks were frosted over and the valves were a bluish color, indicating they had been filled with anhydrous ammonia. Deputy Benn obtained consent to search the vehicle and confirmed that the tanks contained anhydrous ammonia.

[¶ 4] Deputy Benn placed the driver, Joel Kraft, and the passenger, Corum, under arrest for theft of the anhydrous ammonia. While Corum was being booked into jail, an inventory search of his wallet produced receipts showing recent multiple purchases of pseudoephedrine and batteries. Anhydrous ammonia, pseudoephed-rine, and batteries are all used to manufacture methamphetamine.

[¶ 5] That afternoon, Agent Todd De-Boer of the North Dakota Bureau of Criminal Investigation applied for a warrant to search Corum’s home in Bismarck. Agent DeBoer testified about Corum’s participation in the anhydrous ammonia theft and about the receipts found in Corum’s wallet for recent purchases of pseu-doephedrine and batteries. Agent DeBoer also testified he had previously received information from an informant, Amanda Frey, that Corum was manufacturing methamphetamine and that he kept ingredients and finished product at his home in Bismarck. The magistrate found probable cause and issued the search warrant. The resulting search of Corum’s home produced drug paraphernalia and other contraband.

[¶ 6] Corum was charged with possession of drug paraphernalia and manufacturing methamphetamine. Corum’s motion to suppress all evidence from the search of his home was denied by the district court. He subsequently entered a conditional plea of guilty to possession of drug paraphernalia, reserving his right to appeal, and the second count for manufacturing methamphetamine was dismissed. Corum has appealed from the order denying his motion to suppress and from the criminal judgment.

II

[¶ 7] Corum challenges issuance of the search warrant and contends all evidence from the search of his home should have been suppressed.

A

[¶ 8] Corum challenges the validity of the traffic stop which produced evidence of his involvement in the theft of anhydrous ammonia and his purchases of pseu-doephedrine and batteries. Corum contends that, because the vehicle stop was illegal, the warrant cannot be based upon evidence derived from the vehicle stop.

[¶ 9] Illegally obtained evidence cannot be the basis for a magistrate’s finding of probable cause to support a search warrant. See Alderman v. United States, 394 U.S. 165, 177, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); State v. Winkler, 1997 ND 144, ¶ 12, 567 N.W.2d 330; State v. Runek, 534 N.W.2d 829, 833-34 (N.D.1995); State v. Kunkel, 455 N.W.2d 208, 211-12 (N.D. 1990). Thus, because the evidence obtained from the vehicle stop is crucial to the validity of the warrant, the warrant would not be supported by probable cause if the vehicle stop was unlawful.

[¶ 10] To stop a moving vehicle for investigative purposes, an officer must have a reasonable and articulable suspicion that a law has been or is being violated. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466; City of West Fargo v. Ross, 2001 ND 163, ¶ 7, 634 N.W.2d 527. The reasonable suspicion standard is less stringent than probable cause. City of Minot v. Johnson, 1999 ND 241, ¶ 5, 603 N.W.2d 485; City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. Although the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, it does require more than a “mere hunch.” Lawrence, at ¶ 8; Ross, at ¶ 7. In determining whether an investigative stop is valid, we employ an objective standard and look to the totality of the circumstances. Lawrence, at ¶ 8; Ovind, at ¶ 8. Reasonable suspicion for a stop exists when a reasonable person in the officer’s position would be justified by some objective manifestation to believe the defendant was, or was about to be, engaged in unlawful activity. State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d 392; Lawrence, at ¶ 8.

[¶ 11] We do not require an officer to isolate a single factor which, standing alone, signals a potential violation of the law. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466; Ross, 2001 ND 163, ¶ 8, 634 N.W.2d 527. Rather, “officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” Lawrence, at ¶ 8 (quoting Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901). When assessing reasonableness, we examine all of the information known to the officer at the time of the stop, and we consider inferences and deductions an investigating officer would make which may elude a layperson. Boyd, 2002 ND 203, ¶ 15, 654 N.W.2d 392.

[¶ 12] Corum argues Deputy Benn’s stop of the vehicle was based solely upon the fact there had been prior thefts of anhydrous ammonia from the storage yard. Relying upon Johnson, 1999 ND 241, 603 N.W.2d 485, Corum contends an area’s reputation for criminal activity cannot solely support a finding of reasonable suspicion, and Deputy Benn was acting upon a mere hunch when he stopped the vehicle.

[¶ 13] In Johnson, an officer was patrolling an area where there had been prior burglaries. At 4:13 a.m., the officer saw a vehicle drive into the parking lot of a bar which had been burglarized several months earlier. The vehicle passed through a sparsely lit area behind the bar and then exited the parking lot without stopping. The officer then stopped the vehicle. We affirmed an order suppressing evidence resulting from the stop, concluding the information available to the officer at the time of the stop was insufficient to raise a reasonable suspicion of criminal activity. We held that, although an “area’s reputation for criminal activity is an articulable fact on which a police officer may legitimately rely,” it “cannot solely support a finding of reasonable suspicion.” Johnson, 1999 ND 241, ¶ 8, 603 N.W.2d 485 (emphasis added).

[¶ 14] This case is clearly distinguishable from Johnson. In Johnson, the prior burglaries in the area and the early morning hour were the only facts giving rise to a suspicion of unlawful activity. If the stop in Johnson were upheld, officers could essentially stop any vehicle traveling at a suspicious hour in the vicinity of prior criminal activities.

[¶ 15] In contrast, there are additional crucial factors in this case which, when viewed in their totality through the eyes of a trained law enforcement officer, are sufficient to give rise to a reasonable suspicion of unlawful activity. The vehicle in this case was not merely passing through an area where there had been prior crimes. Rather, the vehicle was stopped on a rural highway next to an anhydrous ammonia storage yard where there had been several earlier thefts. The deputies of the McLean County Sheriffs Department had been specifically instructed to check the tanks because of the prior thefts. Unlike the bar involved in Johnson, which was located in the city with other businesses nearby, the anhydrous ammonia storage yard was located in a rural area with no other businesses or residences nearby.

[¶ 16] Most significantly, Deputy Benn observed a flashlight shining outside the vehicle. It is one thing for a vehicle to drive through a bar’s parking lot at 4:00 a.m. It is quite another for a vehicle to be stopped on a highway at 4:00 a.m., with the occupants outside the vehicle, in a rural area where a previously burglarized anhydrous ammonia storage yard is the only nearby facility of any kind. Under these circumstances, we conclude there was a reasonable and articulable suspicion of unlawful activity justifying an investigative stop of the vehicle.

[¶ 17] Although not cited by Corum, we note our decision does not conflict with the results in either State v. Robertsdahl, 512 N.W.2d 427 (N.D.1994), or State v. Sarhegyi, 492 N.W.2d 284 (N.D.1992). Roberts-dahl is similar to Johnson. The officer saw a vehicle “leave the area” of a bar in a small town at approximately 1:50 a.m., followed the vehicle as it drove a few blocks and “headed back towards the bar,” and stopped the vehicle when it headed out of town. Robertsdahl, at 427. This Court concluded the officer’s unfamiliarity with the vehicle, his knowledge of past burglaries in the county, and the vehicle’s location in the vicinity of some businesses after hours amounted to no more than a vague hunch of criminal activity and did not constitute a reasonable suspicion of unlawful activity. Id. at 428. Again, the facts in this case are distinguishable and provide several additional factors which, viewed in their totality, created a reasonable suspicion of unlawful activity.

[¶ 18] In Sarhegyi, an officer on patrol in Fargo noticed a vehicle parked in the lot of a farm implement dealership. When the officer drove into the lot, the vehicle’s headlights came on and it began to pull away. The officer then stopped the vehicle. This Court concluded that neither the fact the vehicle was parked in a darkened parking lot late at night, nor the fact it began to leave when the officer approached, was sufficient to stop the vehicle. The Court noted that mere avoidance of a police car, standing alone, is insufficient to support a finding of reasonable suspicion. Sarhegyi, 492 N.W.2d at 287. The Court suggested, however, that it could be a valid “indicia of suspicion” when combined with other observations of the officer. Id. Similarly, the Court noted a car parked in a darkened parking lot late at night could, in combination with other specific, objective facts, support a finding of reasonable suspicion, but was insufficient standing alone. Id. The Court concluded that these two facts alone did not constitute reasonable suspicion.

[¶ 19] Again, there are significant additional factors which distinguish this case from Sarhegyi. There was no evidence in Sarhegyi that the area or the specific business had been the subject of prior burglaries or other unlawful activity. Nor was there evidence that the occupants of the vehicle were outside the vehicle. Rather, the only factor present in Sarhegyi was a vehicle, stopped in a parking lot late at night, which began to leave when a patrol car pulled into the lot.

[¶ 20] Under the circumstances of this case, viewed in their totality and considering the deductions and inferences a trained officer would make, we conclude there was a reasonable suspicion to stop the vehicle.

B

[¶ 21] Corum argues there was insufficient evidence in support of the warrant to establish probable cause.

[¶ 22] We summarized the standards governing issuance of a search warrant and review of the validity of the warrant on appeal in State v. Guthmiller, 2002 ND 116, ¶¶ 10-11, 646 N.W.2d 724:

“Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution.” State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861. “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” Id. (quoting State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)).
Probable cause to search does not require the same standard of proof necessary to establish guilt at trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.
State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). “Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent, explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.’ ” Thieling, at ¶ 7 (quoting State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted)). “The task of the issuing magistrate is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place.” State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994).
The trial court reviewing the validity of a search warrant decides whether the information before the magistrate established probable cause to search. Id. “Whether probable cause exists to issue a search warrant is a question of law.” Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861. On appeal, we review the sufficiency of information before the magistrate independent of the trial court’s decision and use the totality-of-the-circumstances test. Rydberg, at 308.

[¶23] We generally defer to a magistrate’s determination of probable cause, and will not disturb the magistrate’s conclusion that probable cause exists if there is a substantial basis for that conclusion. State v. Jones, 2002 ND 193, ¶ 14, 653 N.W.2d 668; State v. Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912. When reviewing the magistrate’s determination of probable cause, a doubtful or marginal case should be resolved in favor of the magistrate’s determination. Jones, at ¶ 14; Damron, at ¶ 6. We will resolve doubt about the sufficiency of the evidence in support of a search warrant in favor of the search. Guthmiller, 2002 ND 116, ¶ 11, 646 N.W.2d 724.

[¶ 24] In support of the application for the warrant, Agent DeBoer testified that Corum had been involved in the theft of anhydrous ammonia from a storage yard near Wilton at 4:00 a.m. that morning; that two seven-pound air tanks containing anhydrous ammonia were found in the vehicle in which Corum was a passenger; that, during an inventory search of Co-rum’s wallet, officers found two receipts for multiple purchases of pseudoephedrine and batteries; and that one of those purchases had occurred on October 29, one day before the hearing on the application for the warrant. Agent DeBoer further testified that anhydrous ammonia, pseu-doephedrine, and batteries are commonly used in manufacturing methamphetamine, and that, in his training and experience, it is common for people involved in manufacturing methamphetamine to keep these types of materials and equipment on hand.

[¶ 25] Agent DeBoer also testified that an informant named Amanda Frey had earlier provided information that Corum was manufacturing methamphetamine. According to Frey, Corum “cooked” the methamphetamine in the country but kept the ingredients and finished product at his home in Bismarck. Frey had provided an address for Corum’s home that matched the Bismarck address Corum gave when he was arrested for the theft of anhydrous ammonia. Agent DeBoer testified Frey had given reliable information in the past which had resulted in successful applications for search warrants and arrests of other individuals.

[¶ 26] Agent DeBoer also testified Corum had a criminal record with prior drug-related charges. A suspect’s criminal history may be used to support a determination of probable cause when used in connection with other evidence. State v. Duchene, 2001 ND 66, ¶ 16, 624 N.W.2d 668; State v. Hage, 1997 ND 175, ¶ 23, 568 N.W.2d 741.

[¶ 27] Probable cause exists when “there is a fair probability contraband or evidence of a crime will be found in a particular place.” Guthmiller, 2002 ND 116, ¶10, 646 N.W.2d 724 (quoting Rydberg, 519 N.W.2d at 308 (N.D.1994)). Evidence was presented to the magistrate indicating Corum had been involved in the theft of anhydrous ammonia earlier that day, and had purchased other supplies for manufacturing methamphetamine the day before. There was also evidence indicating Corum kept ingredients for manufacturing methamphetamine and the finished product at his home in Bismarck. Finally, there was evidence Corum had previous drug-related criminal charges. Viewed in fight of the totality of the circumstances, the evidence presented to the magistrate would warrant a person of reasonable caution to believe there was a fair probability contraband or evidence of a crime would be found in Corum’s home.

C

[¶ 28] Corum argues the evidence obtained with the search warrant should have been suppressed because, when applying for the warrant, Agent De-Boer failed to tell the magistrate that Amanda Frey had prior drug convictions and had pending criminal drug charges against her when she provided information about Corum to DeBoer. Corum contends that if this information had been provided to the magistrate there would not have been probable cause to issue the warrant.

[¶ 29] In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court addressed the applicable standards when the defendant alleges that false or misleading statements have been made in the application for a search warrant:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent' as if probable cause was lacking on the face of the affidavit.

[¶ 30] The Franks standard also applies to statements that are misleading by omission. State v. Holzer, 2003 ND 19, ¶ 7, 656 N.W.2d 686; State v. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593. In order to trigger application of Franks, however, the omission must be such that, had the omitted information been provided to the magistrate, it would have defeated probable cause. Rangeloff, at ¶ 9; 2 Wayne R. LaFave, Search and Seizure § 4.4(c) (3d ed.1996). The defendant is required to make a two-part showing:

In order to succeed on a Franks challenge based on an allegation of omitted information, the defendant must show: “(1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading, ... and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” State v. Winkler, 552 N.W.2d 347, 352 n. 1 (N.D.1996) (quoting United States v. Lucht, 18 F.3d 541, 546 (8th Cir.1994)).
In its order denying Holzer’s Motion to Suppress, the trial court did not make a finding on whether the officer recklessly or intentionally omitted the information, but did find that if the officer’s testimony was supplemented with the omitted information, the informant was still rehable. The trial court concluded that none of the “issues raised by the Defendant would have made a significant enough difference to the Court in issuing the search warrant that they are grounds for suppression of the evidence, ...” We agree with the trial court’s conclusion.
Under the second part of the test, the court must determine whether the omissions, if added into the warrant application, would have defeated probable cause. This means Holzer would have to show that if the police officer’s testimony would have included the alleged omissions, probable cause would not have existed for the judge to issue the search warrant.

Holzer, at ¶¶ 7-9 (citations omitted).

[¶ 31] In Holzer, we concluded omission of the fact that an informant had provided information about the defendant in exchange for his own release did not defeat probable cause to issue the search warrant. We noted:

“The omission of the fact that the informant is charged with a crime and is cooperating to gain leniency is not a misrepresentation and is not ‘clearly critical’ to the issuing judge.”

Holzer, 2003 ND 19, ¶ 13, 656 N.W.2d 686 (quoting United States v. Gladney, 48 F.3d 309, 315 (8th Cir.1995)). Failure to inform a magistrate about an informant’s criminal history, that there are pending criminal charges against the informant, or that the informant has been promised leniency for the information is not fatal to the validity of a warrant. See Gladney, at 315; United States v. Travis, 993 F.2d 1316, 1320 (8th Cir.1993); United States v. Wold, 979 F.2d 632, 634-35 (8th Cir.1992).

[¶ 32] In denying the motion to suppress, the trial court concluded that probable cause existed even if the information about Frey’s criminal history and pending charges had been provided to the magistrate. Agent DeBoer testified at the suppression hearing that Frey had come forward and provided the information on her own volition, without request from law enforcement. When applying for the search warrant, Agent DeBoer testified Frey had given reliable information in the past which had resulted in successful applications for search warrants and arrests of other individuals. In addition, Frey’s information about Corum’s home address was corroborated by other evidence in support of the warrant. Under these circumstances, we conclude the trial court did not err in determining that probable cause existed for issuance of the warrant even if the omitted-information had been included.

Ill

[¶ 33] We have considered the remaining arguments raised by Corum and conclude they are without merit. The order denying the motion to suppress and the criminal judgment are affirmed.

[¶ 34] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, JJ., and JAMES M. BEKKEN, D.J., concur.

[¶ 35] The Honorable JAMES M. BEKKEN, D.J., sitting in place of SANDSTROM, J., disqualified.

      . We caution prosecutors and law enforcement officers that the "better practice” when applying for a search warrant is to supply all obviously relevant information, particularly the criminal history and pending charges of an informant, to the magistrate in the application. See Gladney, 48 F.3d at 315. Such a practice may often obviate the necessity of appellate judicial review'of search warrants.


text:
    2003 ND 90
    Jeffrey S. SONSTHAGEN, Petitioner and Appellant, v. David A. SPRYNCZYNATYK, Director, Department of Transportation, Respondent and Appellee.
    No. 20020297.
    Supreme Court of North Dakota.
    June 5, 2003.
    Rehearing Denied July 23, 2003.

      Reid Alan Brady (submitted on brief), Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for respondent and appellee.
    Jeffrey S. Sonsthagen (argued), pro se, Fargo, N.D., petitioner and appellant.
   MARING, Justice.

[¶ 1] Jeffrey Sonsthagen appeals from the district court’s September '27, 2002, Memorandum Opinion and Order affirming the North Dakota Department of Transportation’s decision to revoke Son-sthagen’s driving privileges for two years. We affirm.

I

[¶ 2] On June 14, 2002, a North Dakota Highway Patrol Officer was traveling northbound through a construction zone on Interstate 29 in Fargo. The officer noticed Sonsthagen’s vehicle approaching the Interstate from the on-ramp and traveling at what the officer believed was a speed in excess of the posted speed limit. Sonstha-gen’s vehicle failed to yield as it entered the Interstate. As a result, the officer stopped the vehicle. The officer approached the vehicle, and as Sonsthagen rolled down his window, the officer detected a strong odor of marijuana coming from inside. The officer also observed Sonstha-gen’s eyes were red and squinty. The officer asked Sonsthagen to step out of his vehicle and to perform several field sobriety tests including an ABC test, a sway test, a counting test, a walk-and-turn test, and a one-leg stand test. Sonsthagen failed the sway test, the _walk-and-turn test, and the one-leg stand test. The officer placed Sonsthagen under arrest for driving a motor vehicle under the influence of drugs and transported him to the Cass County Correctional Center.

[¶ 3] Once at the correctional center, the officer read Sonsthagen the implied consent advisory and asked him to submit to a urine test. Sonsthagen asked to speak to a lawyer, so the officer provided him with a telephone book. After attempting to contact a lawyer, Sonsthagen informed the officer he would not speak to him anymore. Considering Sonsthagen’s statement as a refusal to take the urine test, the officer took possession of Sontha-gen’s license and issued a Report and Notice of the director’s intent to revoke his driving privileges.

[¶ 4] An administrative hearing was held on July 9, 2002. The hearing officer concluded that the officer had reasonable grounds to believe Sonsthagen was driving a vehicle while under the influence of drugs, that Sonsthagen was placed under arrest, and that Sonsthagen refused to submit to the urine test. Therefore, Son-sthagen’s driving privileges were revoked for two years.

[¶ 5] Sonsthagen appealed the administrative decision to the district court. A hearing was held on September 16, 2002, and the court issued its Memorandum Opinion and Order on September 27, 2002, affirming the administrative decision. The judgment was entered on October 15, 2002. Sonsthagen appeals.

[¶ 6] On appeal, Sonsthagen argues the hearing officer erroneously concluded the arresting officer had reasonable grounds to believe Sonsthagen was driving while under the influence of drugs' because: 1) the hearing officer erred in his evidentiary rulings and failed to conduct the hearing in a fair and impartial manner; and 2) the hearing officer’s findings of fact do not support his conclusions of law. We do not agree with Sonsthagen’s contentions.

II

[¶ 7] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs review of administrative decisions to suspend or revoke a driver’s license. See Buchholz v. North Dakota Dep’t of Transp., 2002 ND 23, ¶ 6, 639 N.W.2d 490. We review the administrative agency’s decision, not the district court’s decision, by examining the record that was before the agency. See id. The agency’s decision must be affirmed 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. We give great deference to administrative agency rulings by not making independent findings of fact or substituting our own judgment for that of the agency. See Baer v. North Dakota Dep’t of Transp., 1997 ND 222, ¶ 7, 571 N.W.2d 829. Rather, “we determine only whether a reasoning mind could reasonably have determined the facts or conclusions were supported by the weight of the evidence.” Id. (quoting Wheeling v. Director of North Dakota Dep’t of Transp., 1997 ND 193, ¶5, 569 N.W.2d 273). “However, the ultimate conclusion of whether the facts meet the legal standard, rising to the level of probable cause, is a question of law, fully reviewable on appeal.” Id.

Ill

[¶ 8] Sonsthagen first argues the hearing officer failed to comply with the Administrative Agencies Practice Act because he did not follow the North Dakota Rules of Evidence and was not fair and impartial. We disagree.

A

[¶ 9] According to N.D.C.C. § 28-32-24(1), the admissibility of evidence in administrative hearings is to be determined in accordance with the North Dakota Rules of Evidence. The appropriate standard of review for evidentiary rulings in an administrative hearing is an abuse of discretion standard. See Knudson v. Director, North Dakota Dep’t of Transp., 530 N.W.2d 313, 316 (N.D.1995). An abuse of discretion occurs if a hearing officer acts in an arbitrary, unreasonable, or capricious manner or if the hearing officer misinterprets or misapplies the law. See id.

[¶ 10] Sonsthagen argues the hearing officer abused his discretion by not sustaining several of Sonsthagen’s objections. For his argument, Sonsthagen relies upon N.D.R.Ev. 702 which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

During the officer’s testimony, Sonsthagen made several foundational objections, claiming the officer was not a trained drug recognition expert and, therefore, could not testify about the field sobriety tests that were conducted.

[¶ 11] In Fargo v. McLaughlin, 512 N.W.2d 700, 707 (N.D.1994), we stated the results of sobriety testing can be introduced as evidence of an officer’s “physical observations to support the officer’s opinion that the accused was intoxicated.” However, in order for a law enforcement officer to testify about the results of field sobriety tests, foundation for the testimony must first be established. See id. We explained, “the only foundation required is a showing of the officer’s training and experience in administering the test, and a showing that the test was in fact properly administered.” Id. at 708.

[¶ 12] In this case, the officer testified he had the training and experience necessary to conduct the tests he performed, including the sway test, the walk- and-turn test, and the one-leg stand test. The officer further testified that although the tests he performed were designed primarily to detect alcohol impaired drivers, he was also trained that “people under the influence of drugs also demonstrate some of [the] same ... problems when you test them.” Because the officer had the necessary training and experience to administer the tests, and because there was no dispute as to the proper administration of the tests, the requisite foundation for the testimony was established. The results of the sobriety tests evidenced Sonsthagen’s physical impairment which was in issue. Therefore, it was permissible for the officer to testify about the field sobriety tests he was trained to perform. The hearing officer did not abuse his discretion in allowing the officer to testify about the per- ■ formance and results of field sobriety tests on Sonsthagen.

B

[¶ 13] Sonsthagen next asserts the hearing officer failed to be fair and impartial. Sonsthagen points to the hearing officer’s interruption of questioning and “skewed factual findings” to support his allegation of impartiality. However, Sonsthagen never listed this issue in his specifications of error and never raised this argument to the trial court.

[¶ 14] According to N.D.C.C. § 28-32-42(4), a party appealing an administrative agency’s decision must file specifications of error “specifying the grounds on which the appeal is taken, ...” In an appeal from an administrative hearing, the specifications of error must be sufficiently specific to identify the particular issues asserted on appeal. See Vetter v. North Dakota Workers Comp. Bureau, 554 N.W.2d 451, 453-54 (N.D.1996). “The purpose of the specificity requirement is ‘to alert both the Commissioner and the trial court about what matters are truly at issue.’ ” See id. at 453 (quoting Palbicki v. Commissioner of Public Safety, 347 N.W.2d 512, 515 (Minn.App.1984)). We have previously cautioned parties about filing “boilerplate” specifications of error. See Isaak v. Sprynczynatyk, 2002 ND 64, ¶ 7, 642 N.W.2d 860 (explaining that “boilerplate” specifications of error are those that are “so general [they] could apply to any administrative agency appeal”); Vetter, at 453-54; Held v. North Dakota Workers Comp. Bureau, 540 N.W.2d 166, 171 (N.D.1995) (Sandstrom, J., concurring). Sonsthagen’s specifications of error were not sufficiently specific to identify the impartiality argument he now raises on appeal. Because Sonsthagen faded to satisfy the requirements of N.D.C.C. § 28-32-42(4), we will not consider this argument.

IV

[¶ 15] Sonsthagen’s final argument is that the hearing officer’s findings of fact do not support the conclusions of law. We disagree.

[¶ 16] When a driver refuses to submit to chemical testing for intoxication, the driver can request an administrative hearing. See N.D.C.C. § 39-20-05(1). The issues to be determined at the hearing are whether the law enforcement officer had reasonable grounds to believe the person was driving while under the influence, whether the person was placed under arrest, and whether the person refused to submit to the testing. See N.D.C.C. § 39-20-05(3). The hearing officer in this case concluded all three elements were proven and, as a result, revoked Sonsthagen’s driver’s license for two years. Sonsthagen asserts the hearing officer improperly concluded the officer had reasonable grounds to believe Sonsthagen was driving under the influence of drugs.

[¶ 17] The term “reasonable grounds” is synonymous with the term “probable cause.” See Henderson v. Director, North Dakota Dep’t of Transp., 2002 ND 44, ¶ 8, 640 N.W.2d 714. “Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.” Id. (quoting Fargo v. Egeberg, 2000 ND 159, ¶8, 615 N.W.2d 542). When making a probable cause determination, we consider the totality of the circumstances. See State v. Holzer, 2003 ND 19, ¶ 10, 656 N.W.2d 686. Whether probable cause exists is a question of law, fully reviewable on appeal. See Baer, 1997 ND 222, ¶ 7, 571 N.W.2d 829. We have not previously determined what is necessary to establish probable cause to arrest a driver for driving under the influence of drugs.

[¶ 18] Section 39-08-01(1), N.D.C.C., prohibits driving while under the influence of intoxicating liquor or other drugs or substances:

1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
a. That person has an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.
b. That person is under the influence of intoxicating liquor. *
c. That person is under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.
d. That person is under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving.

[¶ 19] Driving while under the influence of drugs, the offense at issue in this case, comes under N.D.C.C. § 39-08 — 01(l)(c). The similar offenses of driving while under the influence of alcohol and driving while under the influence of a combination of drugs and alcohol are contained in subsections (l)(a), (l)(b), and (l)(d). In determining what is necessary to establish probable cause to arrest a driver for driving while under the influence of drugs, we are guided by what we have stated is necessary to arrest a driver for driving while under the influence of alcohol.

The expression ‘under the influence of intoxicating liquor’ simply means having drunk enough to disturb the action of the physical or mental faculties so that they are no longer in their natural or normal condition; that therefore, when a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he would otherwise have, he is ‘under the influence of intoxicating liquor’ and this is the common and well-known understanding of the expression.

State v. Salhus, 220 N.W.2d 852, 856 (N.D. 1974) (quoting State v. Hanson, 73 N.W.2d 135, 139-140 (N.D.1955)). From this definition, the Court in Salhus, developed a two-part test to sustain a conviction for driving while under the influence of intoxicating liquor:

1. That [a person] was driving a motor vehicle on a public way; and
2. That while so driving a motor vehicle [the person] was under the influence of intoxicating liquor so as ‘not to possess that clearness of intellect and control of himself that he would otherwise have.’

220 N.W.2d at 856. Over twenty years later, our Court in Moran v. North Dakota Dep’t of Transp., 543 N.W.2d 767, 770 (N.D.1996), citing Salhus as authority, held that two elements were necessary to arrest a driver for driving while under the influence of alcohol: “[T]he law enforcement officer first must observe some signs of impairment, physical or mental. Further, the law enforcement officer must have reason to believe the driver’s impairment is caused by alcohol.” Moran, at 770 (citations omitted). This test, requiring impairment and indication of alcohol consumption, is the test we currently apply. See, e.g., Seela v. Moore, 1999 ND 243, ¶ 6, 603 N.W.2d 480; Presteng v. Director, North Dakota Dep’t of Transp., 1998 ND 114, ¶ 7, 579 N.W.2d 212.

[¶ 20] When looking at N.D.C.C. § 39-08-01, the specific language of subsection (l)(c) suggests application of a similar two-part test to arrest for driving while under the influence of drugs. First, the statute requires the driver be incapable of safely driving; second, it requires the person be under the influence of drugs. We, therefore, conclude that for the officer in this case to have probable cause to arrest Sonsthagen for driving under the influence of drugs, the officer must: 1) observe some signs of physical or mental impairment; and 2) have reason to believe Sonsthagen’s impairment is caused by drugs.

A

[¶ 21] The hearing officer’s findings of fact support that the officer observed Sonsthagen was impaired. First, the hearing officer found that the officer saw Sonsthagen driving “at what he determined to be in excess of the speed limit, and Mr. Sonsthagen failed to yield as [he] entered the freeway causing [the officer] to slow down in order to avoid a collision.” Just as evidence of a traffic violation is a relevant factor in determining whether probable cause exists for driving under the influence of alcohol, see Baer, 1997 ND 222, ¶ 12, 571 N.W.2d 829; Moran, 543 N.W.2d at 770, traffic violations also indicate impairment when considered in the context of driving while under the influence of drugs.

[¶ 22] Additionally, the hearing officer found that the officer was “trained in administering sobriety tests, and he administered a sway, one leg stand and walk and turn tests.” According to the hearing officer’s findings, “[although the sobriety tests are primarily for testing regarding alcohol, [the officer] testified that the tests would also reflect some impairment regarding drugs.” Finally, the hearing officer found that the officer concluded Sonsthagen “was impaired and under the influence of marijuana based upon all of his observations of Mr. Sonsthagen.”

B

[¶ 23] The hearing officer’s findings of fact also support that the officer had reason to believe Sonsthagen’s impairment was caused by drugs. First, the hearing officer found the officer “has had experience with individuals being under the influence of drugs as well as individuals being under the influence of intoxicating liquor.” The hearing officer also found the officer “smelled a strong odor of marijuana coming from inside Mr. Son-sthagen’s vehicle, and [the officer], through training and experience, is familiar with the smell of marijuana.” We have recognized the smell of marijuana can be an important factor in establishing probable cause. See State v. Overby, 1999 ND 47, ¶ 11, 590 N.W.2d 703; State v. Binns, 194 N.W.2d 756, 758 (N.D.1972).

[¶ 24] Finally, the hearing officer found the officer “observed Mr. Sonsthagen’s squinty red eyes.” The officer testified at the administrative hearing that marijuana smoke could have irritated Sonsthagen’s eyes. Just as the observation of glassy, red, watery, or bloodshot eyes is a relevant factor in a probable cause determination to arrest for driving under the influence of alcohol, see Baer, 1997 ND 222, ¶ 12, 571 N.W.2d 829; Moran, 543 N.W.2d at 770, it is also a relevant factor in determining whether to arrest for driving under the influence of drugs.

[¶ 25] The hearing officer found the officer observed signs of Sonsthagen’s physical and mental impairment and the officer had reason to believe the impairment was caused by drugs. The hearing officer’s findings of fact support the conclusion that the officer had reasonable grounds to believe Sonsthagen was driving under the influence of drugs. We, therefore, affirm the district court’s September 27, 2002, Memorandum Opinion and Order and Judgment which affirmed the hearing officer’s decision to revoke Sonsthagen’s driving privileges for two years.

[¶ 26] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE Y. SANDSTROM, JJ„ and JAMES M. BEKKEN, D.J., concur.

[¶ 27] The Honorable JAMES M. BEKKEN, D.J., sitting in place of KAPSNER, J., disqualified.

      . Because a judgment consistent with the memorandum opinion and order was entered on October 15, 2002, we treat this as an appeal from the judgment. See Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 4 n. 2, 660 N.W.2d 558.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 91
    NORTHERN PLAINS ALLIANCE, L.L.C., Plaintiff and Appellant, v. Lee Roy J. MITZEL, and J & L Development, Inc., Defendants and Appellees.
    No. 20020324.
    Supreme Court of North Dakota.
    June 6, 2003.

      B. Timothy Durick, Pearce & Durick, Bismarck, N.D., for plaintiff and appellant.
    David S. Maring (argued) and Anthony J. Weiler (on brief), Maring Williams Law Office, Bismarck, N.D., for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Northern Plains Alliance, L.L.C. (“Northern”) appealed from a summary judgment dismissing its action against Lee Roy Mitzel and J & L Development, Inc. (“J & L”) for intentional interference with contract. We affirm.

I

[¶ 2] Lee Roy and Barbara Mitzel were divorced in 1996. The divorce decree gave Lee Roy a right of first refusal to purchase certain real estate that Barbara received in the divorce, including a commercial building known as Tuscany Square. Tuscany Square was located on property owned by the Burlington Northern Railroad (“BN”), and Barbara had a long-term lease on the property from BN.

[¶3] Under the terms of the parties’ divorce decree, Barbara was required to give Lee Roy notice if she received an acceptable offer from a third party to purchase any of the real estate. Lee Roy then had seven days to notify Barbara in writing whether he would exercise or waive the right of first refusal. If he exercised the right, Lee Roy agreed to purchase the property on the same terms as the offer Barbara had received from the third party.

[¶ 4] By a written agreement dated January 10, 2002, Northern agreed to purchase Tuscany Square from Barbara for $1.5 million. The agreement set a closing date of March 10, 2002. The agreement specifically stated it was subject to Lee Roy’s right of first refusal, and was also contingent on Northern successfully negotiating a purchase of the underlying land from BN.

[¶ 5] Barbara promptly notified Lee Roy of Northern’s offer to purchase Tuscany Square. On January 14, 2002, Lee Roy notified Barbara in writing that he was exercising his right to purchase the property under the right of first refusal.

[¶ 6] In January and February 2002, J & L, a corporation of which Lee Roy owned fifty percent, negotiated with BN to purchase the underlying land. J & L and BN finalized a purchase agreement for the land on February 26, 2002, but closing on the property did not take place until March 22, 2002. On April 5, 2002, the closing on the Tuscany Square sale occurred and Barbara transferred the property to J & L.

[¶ 7] Northern then brought this action against Lee Roy and J & L, claiming intentional interference with contract. Northern alleges that by failing to close the sale of Tuscany Square on March 10, 2002, and negotiating purchase of the underlying land from BN, Lee Roy and J & L caused Barbara to breach her agreement to sell Tuscany Square to Northern. Lee Roy and J & L answered and moved for summary judgment. The trial court concluded that, once Lee Roy exercised his right of first refusal, all rights Northern had under its January 10, 2002, purchase agreement with Barbara were extinguished and Northern had no standing to challenge the subsequent actions of Lee Roy and J & L in performance of their agreement with Barbara. This appeal is from the summary judgment entered dismissing Northern’s complaint.

II

[¶ 8] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750. The party moving for summary judgment bears the burden of establishing that there is no genuine issue of material fact and that, under applicable principles of substantive law, she is entitled to judgment as a matter of law. Id. The evidence must be viewed in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Id. Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Id. at ¶ 6. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. Id. at ¶ 7.

Ill

[¶ 9] Northern alleges the trial court erred in granting summary judgment dismissing its claim for interference with contract. To establish a prima facie case of intentional interference with contract, a plaintiff must prove “(1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) the defendant instigated the breach without justification.” Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 24, 655 N.W.2d 60. Thus, in order to defeat summary judgment, Northern was required to establish material questions of fact on whether it had a contract with Barbara, whether that contract was breached, and whether Lee Roy and J & L instigated that breach without justification.

[¶ 10] The missing element in this case is a breach of the contract between Northern and Barbara. Unless Barbara had a contractual obligation to sell the property to Northern after Lee Roy notified her he would purchase the property but did not complete the purchase by the March 10, 2002, closing date, there was no breach.

[¶ 11] When parties enter into an agreement for the sale of property which is expressly subject to a right of first refusal by a third party, the contract is conditional and becomes binding on the seller only if the right of first refusal is not exercised. Houtchens v. United Bank of Colorado Springs, N.A., 797 P.2d 814, 815 (Colo.Ct.App.1990); Harper v. Great Salt Lake Council, Inc., 976 P.2d 1213, 1217 (Utah 1999). The moment the right of first refusal is exercised, the contract between the original buyer and seller is no longer in effect. Houtchens, at 815; Harper, at 1217.

[¶ 12] The rule is fully explained in Harper, in which Harper had entered into a written agreement to purchase land from BSA. The agreement specifically noted it was subject to a right of first refusal on the property by Mt. Jordan. The court held any rights Harper held under its purchase agreement were terminated when Mt. Jordan exercised its right of first refusal:

The right of first refusal, when exercised, extinguished Harper’s rights under the Harper Agreement. An earnest money agreement, like the Harper Agreement, is a legally binding executo-ry contract for sale of realty. However, the Harper Agreement was not enforceable in the event Mt. Jordan exercised its right of first refusal, and Mt Jordan’s exercise of this right terminated any duty BSA had under their agreement to sell the Property to Harper. When BSA signed the Harper Agreement, that agreement became a contract subject to a condition precedent; namely, that Mt. Jordan not exercise its right of first refusal. Under well-established principles of contract interpretation, where the duty of the obligor to perform is contingent upon the occurrence or existence of a condition precedent, the obli-gee may not require performance by the obligor, because the obligor’s duty, and conversely the obligee’s right to demand performance, does not arise until that condition occurs or exists. Failure of a material condition precedent relieves the obligor of any duty to perform.
BSA’s duty to perform and Harper’s concomitant right to demand performance were contingent upon the condition that Mt. Jordan fail to exercise its right of first refusal. Before Harper tendered his offer, BSA provided him a copy of the First Refusal Agreement, giving him notice of Mt. Jordan’s right of first refusal. The Harper Agreement incorporated Mt. Jordan’s right of first refusal in paragraph 7, which states: “The buyer acknowledges that this offer is subject to a First Right of refusal in Jordan Limited partnership, giving said partnership 60 days to purchase on the same terms and conditions herein set forth.” Mt. Jordan’s exercise of its right of first refusal terminated any obligation BSA had to perform under the Harper Agreement.

Harper, 976 P.2d at 1217 (citations omitted). The court further concluded that, once the right of first refusal was exercised, BSA and Mt. Jordan were free to modify the terms of their agreement, including the closing date, and Harper had no standing to object. Id. at 1218.

[¶ 13] Accordingly, if Lee Roy properly exercised his right of first refusal, the condition precedent for Northern’s agreement with Barbara did not occur, Northern’s agreement with Barbara was extinguished, and there was no breach of that agreement when Barbara failed to sell the property to Northern. Northern contends, however, that Lee Roy never properly exercised the right of first refusal because he failed to close on the property by March 10, 2002.

[¶ 14] Resolution of this issue requires an explanation of the nature of a right of first refusal and the distinction between exercise of the right and performance of the resulting contract. We have noted that a right of first refusal is often referred to as a “preemptive right” because it allows the holder to preempt a sale to an interested third party, and requires the landowner to offer the property to the right holder on the same terms. Anderson v. Heinze, 2002 ND 60, ¶ 2 n. 1, 643 N.W.2d 24; Berry-Iverson Co. v. Johnson, 242 N.W.2d 126, 129-30 (N.D. 1976); see also 3 Eric Mills Holmes, Corbin on Contracts § 11.3 (rev. ed.1996). Once the landowner receives and accepts an offer from a third party, the right of first refusal ripens into an option to purchase which may be exercised like any other option contract:

The holder of a right of first refusal on a piece of land only has the right to receive an offer to buy the land. Generally, it is a contractual right to preempt another because the right is conditional on the owner’s decision that an offer from a third party is' acceptable. More specifically, the right is subject to an agreed condition precedent, typically the owner’s receipt of an offer from a third party and the owner’s good-faith decision to accept it. Only then can the holder of the right decide whether or not to create a contract on the same terms that the owner is willing to accept from the third party. More precisely, the occurrence of these events (owner’s receipt of an offer and the good-faith decision to accept it) satisfies the condition precedent, which “triggers” the right of first refusal that “ripens” into an option. The option then can be exercised like any other option contract.

3 Holmes, supra, § 11.3 (footnotes omitted); see also 1 Emily S. Bernheim, Tiffany on Real Property § 310b (3rd ed. Supp.2002); 1 E. Allen Farnsworth, Contracts § 3.23a (1998); 77 Am.Jur.2d Vendor and Purchaser § 40 (1997).

[¶ 15] Accordingly, when Barbara notified Lee Roy that she had entered into an agreement to sell Tuscany Square to Northern, Lee Roy’s right of first refusal ripened into an enforceable option to purchase the property on the same terms. Northern argues that, to exercise this option, Lee Roy had to do more than merely notify Barbara in writing that he was exercising the option, but had to additionally follow through and make full payment by the March 10, 2002, closing date. Northern is confusing exercise of the option with performance of the resulting executory contract for sale of the property.

[¶ 16] Acceptance of an option for the sale of land within the time allowed and according to its terms converts the option into a binding executory contract of sale. Horgan v. Russell, 24 N.D. 490, 498, 140 N.W. 99, 102 (1913). Acceptance of the option, which results in a contract of purchase, and the performance of the resulting contract itself are distinct. Northwestern Bell Tel. Co. v. Cowger, 803 N.W.2d 791, 795 (N.D.1981); Kuhn v. Hamilton, 117 N.W.2d 81, 83 (N.D.1962). As we have noted, “[w]here the exercise of the option to purchase does not provide for payment of the purchase price coincident with the optionee’s exercise of the option, the payment of the purchase price is merely an incident of performance of the bilateral contract created by the exercise of the option.” Main* Props. Corp. v. TAG Invs., 2000 ND 88, ¶ 17, 609 N.W.2d 737 (quoting Cowger, at 795).

[¶ 17] The right of first refusal contained in Barbara and Lee Roy’s divorce decree provided that, in the event Barbara received a bona fide offer to purchase the property, she was to deliver a copy to Lee Roy. The decree then provides:

Lee Roy will have seven days from receipt of the original purchase agreement to either sign a waiver of his right of first refusal or give written notification to Barbara that he will purchase the property at the same price. If Lee Roy fails to either sign a waiver or give written notification of purchase at the expiration of the seven days from receipt of notice, his right of first refusal will terminate as to that purchase agreement.

[¶ 18] Northern argues the following additional provision indicates that Lee Roy must pay the full purchase price before the right of first refusal is exercised:

If Lee Roy decides to purchase the property with his written notification of purchase he will pay an identical amount of earnest money as provided in the purchase agreement and will have the same amount of time as provided the purchaser in the purchase agreement to pay the remaining purchase price.

[¶ 19] We construe these provisions to clearly and unambiguously give Lee Roy the right to exercise his right of first refusal by giving written notification within seven days that he will purchase the property at the same price. We do not construe the latter provision governing payment terms to engraft an additional requirement for exercise of the right of first refusal. Rather, that provision merely clarifies that Lee Roy must pay earnest money and will have the same amount of time as the other purchaser to perform under the contract.

[¶ 20] Northern contends Ruff v. Schmeichel, 219 N.W.2d 823 (N.D.1974), is dispositive and requires the conclusion that merely sending written notification of exercise of the option is not enough. In Ruff, Ruff entered into a written agreement to sell property to E-Z Sales, subject to the Schmeichels’ right of first refusal. The Schmeichels, who were leasing the property and in possession, notified Ruff in writing they were exercising their right of first refusal. The Schmeichels had difficulty obtaining financing and requested extensions from Ruff. Ultimately Ruff refused to grant further extensions and sued the Schmeichels for damages for forcible detainer. The Schmeichels brought a separate action against Ruff for specific performance. This Court affirmed a judgment dismissing the Schmeichels’ action against Ruff for specific performance and awarding damages to Ruff in his action against the Schmeichels for forcible detain-er.

[¶ 21] Northern contends Ruff held that sending written notice is not enough to exercise a right of first refusal, and that payment of the purchase price is required to properly exercise the right. Northern has misread the holding in Ruff. This Court rejected the trial court’s finding that the Schmeichels had failed to exercise the option, and specifically concluded that they had met the bona fide offer by exercising the option. Ruff, 219 N.W.2d at 829. This Court further concluded that, when the Schmeichels failed to perform the resulting contract by failing to pay the purchase price within a reasonable time, Ruff was no longer bound and was entitled to possession of the property. See id. at 828-29. Ruff does not support Northern’s position.

[¶ 22] Lee Roy validly exercised his right of first refusal when he gave Barbara timely written notice he would purchase the property, and a binding executory contract for sale was thereby created. At that moment, because Lee Roy did exercise his option, the condition precedent for Northern’s contract with Barbara failed and the purchase agreement between them was extinguished. Barbara therefore had no further obligation under the contract to Northern, and there was no breach when she subsequently failed to sell the property to Northern when Lee Roy missed the March 10, 2002, closing date.

[¶ 23] Because there was no breach, an essential element of Northern’s intentional interference with contract claim is missing and summary judgment was appropriate.

IV

[¶ 24] We have considered Northern’s remaining issues and arguments and find them to be without merit. The summary judgment dismissing Northern’s complaint is affirmed.

[¶ 25] CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ„ and LAWRENCE A. LECLERC, D.J., concur.

[¶ 26] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of MARING, J., disqualified.

      . Northern has not alleged that the sale to J & L, Lee Roy's corporation, rather than to Lee Roy individually affected the validity of the exercise of the right of first refusal.