author: RANDALL, Judge.

text:
    In re the MARRIAGE OF Erwin Harold RETTKE, petitioner. Estate of Erwin Harold Rettke, Appellant, v. Wilma Darlene Rettke, f/k/a Wilma Darlene Krueger, Respondent.
    No. A04-1507.
    Court of Appeals of Minnesota.
    June 7, 2005.

      Douglas R. Peterson, Jane F. Godfrey, Mary E. Schwind, Leonard, Street and Deinard, Mankato, MN, for estate of petitioner.
    Laura L. Myslis, Gislason & Hunter LLP, Minnetonka, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

RANDALL, Judge.

Decedent husband started a dissolution action. The parties signed a mediated property settlement agreement. It did not become part of a marital termination agreement (MTA) to present to the court. The husband signed it, but the wife never did. Then the husband died before the dissolution action went to court. Before a personal representative was appointed, respondent wife moved in district court to enforce the “property settlement” agreement. The district court took jurisdiction and entered a judgment purporting to enforce the mediated property settlement. Later, after appointment, appellant, the personal representative for the estate, moved to vacate the judgment. The court denied the motion. Appellant moves to reverse and remand, arguing that (1) the district court should not have exercised jurisdiction because the husband had died and the personal representative had not yet been appointed and (2) the estate and those with an interest in the property were denied due process because they did not receive notice of the hearing on the motion to enforce the property settlement. Respondent contends that the order denying the motion to vacate is not appealable. We reverse.

FACTS

Decedent husband Erwin Rettke commenced this dissolution action in March 2001. On December 3, 2002, husband and respondent Wilma Rettke (Rettke) and their counsel signed a notarized and acknowledged mediated settlement agreement dividing much of their real property and financial assets (property settlement). It is clear the mediated settlement agreement was negotiated and signed contemplating that the end result would be a full and final dissolution. A marriage-termination agreement incorporating the mediated settlement was then drafted and signed by husband and his attorney. Since that marital termination agreement included provisions in addition to those in the mediated settlement agreement, Rett-ke and her attorney never signed it. Several provisions of the marital termination agreement, apparently based on the mediated settlement agreement, included minor modifications of the provisions agreed to in the mediated settlement agreement. The husband died on February 10, 2004, before the dissolution was finalized.

Some two weeks after the husband died, attorney Garry Barnett filed a certificate of representation, purporting to represent the husband. In March 2004, Rettke, giving notice to attorney Barnett, moved the district court for an order requesting the division and distribution of the real and personal property addressed by the mediated settlement agreement in the manner set out in that agreement. Attorney Barnett moved for dissolution of the marriage nunc pro tunc. No personal representative for husband’s estate had yet been appointed.

At the April 6, 2004, hearing, the district court noted that attorney Barnett was representing the deceased husband. Attorney Barnett stated that he was also arguing on behalf of husband’s other heirs. He said that both parties had applied for appointment of a personal representative, and that once that occurred, the remaining property issues not resolved in the property settlement agreement could be finalized. Rettke’s counsel questioned whether attorney Barnett actually represented the deceased husband or one of the Rettkes’ sons.

On June 16, 2004, the district court entered judgment, enforcing the provisions of the mediated property settlement between the parties and denying attorney Barnett’s motion for an order dissolving the parties’ marriage nunc pro tunc. On June 21, 2004, the probate court appointed appellant Valley Bank & Trust as personal representative of the husband’s estate. On August 12, 2004, Valley Bank moved for vacation of the June 16, 2004, judgment. The district court denied the motion, and Valley Bank appealed.

ISSUES

I. Is the August 12, 2004, order denying the personal representative’s motion to vacate the judgment reviewable?

II. Did the district court err in entering judgment on a mediated property settlement in a dissolution matter where the petitioner husband was deceased, a personal representative for the estate had not yet been substituted, the dissolution was still pending, and no marital-termination agreement had been signed and officially approved by the district court?

III. Was decedent husband’s estate denied due process because it did not receive notice of the hearing on the motion to enforce the property settlement?

ANALYSIS

I.

Jurisdiction

Valley Bank & Trust appealed from the June 16, 2004, judgment and the August 12, 2004, order denying Valley Bank’s motion to vacate the June 16, 2004, judgment. The June 16 judgment purported to incorporate the mediated property settlement negotiated between the Rettkes while both were still alive. This court ruled in a special term order that the June 16, 2004, judgment was final and appealable, but did not address whether the August 12, 2004, order denying the motion to vacate was appealable. Rettke contends that the latter order is not appealable.

Generally, the denial of a motion to vacate a final judgment is not appeal-able and, instead, only the original judgment is appealable. Angelos v. Angelos, 367 N.W.2d 518, 519 (Minn.1985). But when an appeal is properly taken from the underlying judgment under Minn. R. Civ. App. P. 103.04, the appellate court has discretion to review a subsequent, nonap-pealable order denying a motion to vacate. Bush Terrace Homeowners Ass’n, Inc. v. Ridgeway, 437 N.W.2d 765, 770 (Minn. App.1989), review denied (Minn. June 9, 1989). Further, if the person bringing the motion to vacate was not a party to the dissolution, and if the decision affected that person’s property interests, an appeal from the denial of a motion to vacate may be the only way in which the argument may be presented for appellate review. Sammons v. Sammons, 642 N.W.2d 450, 455-56 (Minn.App.2002). While Rettke contends Sammons is not applicable, we need not reach that argument because this court may review the denial of the motion to vacate under Bush Terrace, 437 N.W.2d at 770. On these set of facts, equity demands appellate review.

II.

Abatement

Valley Bank argues that the district court should not have exercised jurisdiction to enter judgment enforcing the property settlement after husband had died and before a personal representative had been appointed to represent husband’s estate and substituted as a party, and it seeks reversal and remand. We agree. On this set of facts, the district court lacked jurisdiction and judgment should not have been entered.

When a party to a marriage that has not been dissolved dies, the marriage relation “no longer exists” and, as a result, any then-pending dissolution proceeding abates. Tikalsky v. Tikalsky, 166 Minn. 468, 470, 208 N.W. 180, 180 (1926). Alternatively stated, you can’t “divorce a dead person.” The question here is whether appellant is entitled to have judgment entered on the mediated property settlement that was negotiated while husband was alive.

A party to a marriage terminated by the death of a spouse is entitled to have judgment entered dividing marital property if the judicial act is complete and “[a]ll that remain[s] to be done [is] for the clerk to enter the judgment in the judgment book as directed.” Id., 166 Minn, at 471, 208 N.W. at 181. Thus, before a person who entered a mediated property settlement can successfully argue that, under Tikalsky, she is “clearly entitled” to have judgment entered on that agreement, that agreement must be approved by both the person’s spouse and the district court. We do not have that set of facts here. There was no marital termination agreement and, most importantly, the district court had not seen or approved any agreement the parties may have entered.

In a dissolution proceeding, a district court has “a duty to protect the interests of both parties and all the citizens of the state to ensure that the stipulation is fair and reasonable to all.” Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989). Thus, in deciding whether to approve a stipulation agreed to by married persons, a district court must exercise its independent judgment to determine whether a stipulation is, on the facts of the case in question, appropriate. In doing so, the district court “ha[s] the authority to refuse to accept the terms of the stipulation in part or in toto.” Id,.; see Toughill v. Toughill, 609 N.W.2d 634, 639 n. 1 (Minn.App.2000) (noting that “while a district court may reject all or part of a stipulation, generally, it cannot, by judicial fíat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their ‘day in court’ ”). For this reason, what the parties talked about while both were living, and incorporated into a private settlement agreement, is not “self-executing.” A district court needed to approve the parties’ proposed settlement. That did not happen in this case.

Here, when husband died, the parties had entered into a mediated property settlement, but that was all. Wilma Rettke has not signed the marital-termination agreement, the district court had not examined, it, approved it, and incorporated it into a dissolution judgment. The dissolution was not close to being finalized before husband’s death. Not even the jurisdictional prerequisites for entry of a (default) dissolution judgment had been “proved up.” After the death of her husband, Rettke, the surviving wife, quickly sought the benefit of the property settlement. She wanted the benefit of the marital-property settlement as if there had been a full and final dissolution, and now also wants to proceed in probate court as her husband’s heir, which may give her a “windfall” as any surviving spouse can take under the will or “against it.” Minn. Stat. § 524.2-202(a) (2004) (describing surviving spouse’s right to take elective share of augmented estate). Certain of husband’s children believe that Rettke should be restricted to recovering a share of husband’s property only as a surviving spouse. They argue, logically and correctly, that she cannot both take a share from the mediated dissolution settlement as if the dissolution had gone through, and also take advantage of the fact that when husband died, since the dissolution had not been finalized, she was in all respects a bona fide heir, a surviving spouse.

Once a dissolution judgment has been entered, a district court may have jurisdiction to hear and determine a motion for an executor to be substituted as a party in a dissolution action and to interpret and clarify an ambiguous judgment relating to a property settlement upon proper appointment of the executor. Stieler v. Stieler, 244 Minn. 312, 318, 70 N.W.2d 127, 131 (1955). Here, unlike Stieler, judgment had not been entered on the dissolution before husband died. Since the settlement had never been incorporated into a signed marital-termination agreement and had never been approved and entered into a final dissolution judgment by the district court, once husband died, this dissolution proceeding was (permanently) over. The district court erroneously heard motions as part of the pending dissolution action, ruled on them, and entered judgment on the property settlement. Judgment should not have been entered. Further proceedings will occur under the probate code.

III.

Notice

Valley Bank next contends that where decedent husband’s estate and those with an interest in husband’s estate did not receive notice of the hearing on the motion to enforce the property settlement resulting in the June 16, 2004 judgment and had no opportunity to be heard, they were denied due process and the judgment should also be vacated for that reason. In light of our decision above, it is not necessary to reach this issue.

DECISION

This court may review the order denying the motion to vacate. The dissolution action abated upon husband’s death. The judgment purporting to enforce a mediated property settlement that had never been incorporated into a finalized dissolution action has no effect; it is void.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Larry BUNCE, Plaintiff, v. A.P.I., INC., et al., Defendants, and A.P.I., Inc., Respondent, v. Mac Arthur Company, et al., Third-Party Defendants, Illinois Tool Works, Inc., et al., Appellants (A04-1348), Egan Companies, Inc., Appellants (A04-1394).
    Nos. A04-1348, A04-1394.
    Court of Appeals of Minnesota.
    June 7, 2005.

      Kyle B. Mansfield, Stephen L. Wilson, Foley & Mansfield, P.L.L.P., Minneapolis, MN, for appellants Illinois Tool Works, Inc., et al.
    Jon P. Parrington, Pustorino, Tilton, Parrington & Lindquist, P.L.L.C., Minneapolis, MN, for appellant Egan Companies, Inc.
    Thomas R. Thibodeau, David M. Johnson, Thibodeau, Johnson, & Feriancek, P.L.L.P., Duluth, MN, for respondent A.P.I., Inc.

      Considered and decided by RANDALL, Presiding Judge, ROBERT H. SCHUMACHER, Judge, and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

Following the district court’s denial of appellants’ motion for summary judgment, the following two questions were certified for appeal: (a) given that plaintiff executed a Pierringer release in exchange for a money payment from defendant and third-party plaintiff A.P.I. (respondent), can respondent A.P.I. pursue claims for indemnity or contribution against non-settling third-party defendants (appellants); and (b) does the doctrine of claim preclusion or the fact that the plaintiff died change the effect that the Pierringer release has on respondent AP.I.’s indemnity and contribution claims?

FACTS

Plaintiff Larry Bunce was employed as an ironworker from 1961 to 1994. On April 4, 2003, Bunce brought suit against 14 defendants, including respondent A.P.I., Inc., alleging that he contracted mesothelioma as a result of his exposure to asbestos-containing products that were manufactured, sold, or distributed by the defendants. Respondent subsequently filed third-party complaints against several entities, including appellants Illinois Tool Works, Inc.; Turner Construction Company; Gagnon, Inc.; Azco, Inc.; Insulation Sales Company; and Egan Companies, Inc., who were not sued directly by Bunce. Respondent alleged in its third-party complaints that if Bunce sustained the damages as alleged in his complaint, those injuries and damages were caused by negligence, strict liability, and breach of warranty of the third-party defendants. Respondent alleged that if Bunce recovered a judgment against respondent, respondent would be entitled to full indemnity or contribution from the third-party defendants.

On July 9, 2003, the district court granted Bunce’s motion to sever respondent’s third-party claims so that Bunce’s claims could proceed to trial without delay. On the morning of his scheduled trial, Bunce settled his case against respondent with a Pierringer release. See Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). Bunce executed a Pierringer release with respondent in exchange for respondent’s settlement payment. The district court subsequently dismissed Bunce’s suit against respondent with prejudice. Bunce died a few weeks later.

In September 2003, appellants and third-party defendants Illinois Tool Works, Inc., Turner Construction, Gagnon, Azco, and Insulation Sales moved for summary judgment on respondent’s contribution claim, arguing that respondent had no contribution or indemnity rights against the third-party defendants because it had settled its differences with a Pierringer release. Appellant Egan Companies joined in the motion. The district court denied appellants’ motion. On February 25, 2004, appellants sought the district court’s permission to file a motion to reconsider its ruling. In the alternative, appellants filed a motion seeking to have the district court certify two questions presented as important and doubtful. The district court denied permission to bring the proposed motion to reconsider, but granted the motion to certify to this court the two questions as important and doubtful. This court consolidated the appeals by Illinois Tool Works, et al. and by Egan Companies.

ISSUE

After plaintiff Bunce executed a Pier-ringer release in exchange for a settlement payment from defendant and third-party plaintiff A.P.I., can A.P.I. now pursue claims for contribution and indemnity against nonsettling third-party defendants?

ANALYSIS

When certified questions arise from a denial of summary judgment, this court reviews the record to determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998). Absent genuine issues of material fact, appellate courts review certified questions de novo. Id.

I.

Appellants argue that because respondent and Bunce executed a standard Pier-ringer release, respondent cannot pursue claims for contribution or indemnity against nonsettling third-party defendants. We agree. Derived from Pierringer v. Eager, 21 Wis.2d 182, 124 N.W.2d 106 (1963), the basic elements of a Pierringer release are: (1) The release of the settling defendants from the action and the discharge of a part of the cause of action equal to that part attributable to the settling defendants’ causal negligence; (2) the reservation of the remainder of plaintiffs causes of action against the nonsettling defendants; and (3) plaintiffs agreement to indemnify the settling defendants from any claims of contribution made by the nonsettling parties and to satisfy any judgment obtained from the nonsettling defendants to the extent the settling defendants have been released. Frey v. Snelgrove, 269 N.W.2d 918, 920 n. 1 (Minn.1978). Ordinarily, the settling tortfeasor is dismissed with prejudice from the lawsuit and all cross-claims for contribution between the settlor and the remaining defendants are likewise dismissed. Rambaum v. Swisher, 435 N.W.2d 19, 22 (Minn.1989).

Here, respondent claims a difference in the standard Pierringer law, arguing that it is not improperly asserting claims for contribution and indemnity against nonset-tling “sued” defendants; but, rather is seeking contribution and indemnity from third-party defendants (appellants) who were not sued directly by the original plaintiff (Bunce). We cannot find that this distinction makes any difference in the long-settled law surrounding Pierringer releases.

Respondent asserts, and the district court agreed, that respondent could proceed with its claims for contribution and indemnity against appellants because Minnesota law recognizes a defendant’s right to proceed with a third-party action following a settlement with the plaintiff. In support of this position, the district court cited Samuelson and Altermatt, which held that a third-party contribution and indemnity action survives a settlement between a plaintiff and a third-party plaintiff. Samuelson v. Chicago, Rock Island & Pac. R.R., 287 Minn. 264, 268-70, 178 N.W.2d 620, 624 (1970) (contribution); Altermatt v. Arlan’s Dep’t. Stores, 284 Minn. 537, 538, 169 N.W.2d 231, 232 (1969) (indemnity). The simple answer is, both Samuelson and Altermatt were decided before Frey, the case in which the Minnesota Supreme Court first acknowledged the acceptance of Pierringer releases by Minnesota courts. Samuelson and Alter-matt could not contemplate the effect of a Pierringer release. Their precedential value, if any, on a Pierringer issue, is limited.

Appellants correctly argue that pursuant to a Pierringer release, the settling tortfeasor will never pay more than its fair share and, thus, any claims that respondent has for contribution or indemnity will never accrue or mature. A Pier-ringer release cuts off the nonsettling defendants cross-claims for contribution as a matter of law. See Alumax Mill Prods., Inc. v. Congress Fin. Corp., 912 F.2d 996, 1007-9 (8th Cir.1990) (applying Minnesota law to the parties Pierringer release). This is because

[t]he Pierringer release is based on the formula that each joint tortfeasor including the nonsettling defendant is liable only for that part of the award which is [its] percentage of casual [sic] negligence. Since the nonsettling defendant is relieved from paying more than [its] fair share of the verdict, the [settling] defendants may properly be dismissed from further participation in the trial.

Frey, 269 N.W.2d at 922. Because the jury then determines the relative fault of all parties, including that of the settling defendants, even though the settling defendants have been dismissed,

[t]he settling tortfeasor who uses a Pier-ringer release does not settle for less than [its] share, but precisely for [its] share — no less.
[T]he non-settling party will never pay more than [its] share, because [its] exposure is limited to [its] own percentage of causal negligence — exactly [its] share— attributed to [it] at trial.

Alumax, 912 F.2d at 1009 (quoting John Simonett, Release of Joint Tortfeasors: Use of the Pierringer Release in Minnesota, 1, 3 Wm. Mitchell L. Rev. 18 (footnote omitted)). The legal effect of the Pier-ringer release is that each tortfeasor pays only its proportionate share of liability, and no more, and, thus, there can be no liability for contribution. Id. at 1010.

It can do this because the Pier-ringer release protects the nonsettling defendants who choose to go to trial with the plaintiff from ever having to pay more than their fair share of the verdict. At trial, they are free to try and shift all, or as much as they can, of the negligence blame onto the settling defendant. That will hold down their share of the verdict. The settling defendant, who is not in court, is protected because the money it paid the plaintiff through a Pierringer release settles once and for all the fixed amount it owes the plaintiff. If not all of the defendants settle and there is a trial, and if the jury lays all the negligence on the nonset-tling defendants, they must pay and the settling defendant may have “overpaid” for the protection of not having to go to trial and face the unknown. If the nonsettling defendants are able to lay off the negligence on the settling defendant, they only pay the small part, if any, attributable to them and the plaintiff cannot recover any more from the settling (Pierringer) defendant than it already has. The Pierringer theory is bottomed as a plus for plaintiffs. It allows them to get money out of some defendants, in a multi-defendant lawsuit, and retain the right to continue with the suit against those who choose not to settle. Were it not for Pierringer, the plaintiff would be brick-walled by the old common-law rule, “you release one defendant, you release them all.” Thus, without Pierringer law, multiple defendants could stonewall a plaintiff together, refuse to settle, and hope the plaintiff wears down before trial. Pierringer law allows the plaintiff to collect sums certain and then use that money to continue the lawsuit against others, if it chooses. As appellants vigorously point out, Pierringer law in Minnesota is well settled, and has been accepted by plaintiffs and defense counsel for decades. It is a provident tool for both sides. Appellants argue no end around attempts to negate the spirit of the law should be allowed. We agree.

Here, it is undisputed that Bunce and respondent entered into a Pierringer release. Paragraph seven states that:

“It is understood and agreed that the purpose, intent, and legal effect of this document is to bar forever any recovery, contribution, indemnity, or subrogation against releasees by any other party as a result of the accident except and other than such elements as are cognizable under the workers compensation statute and in accordance with NAIG [Naig] v. Bloomington Sanitation, 258 N.W.2d 891 (1977). It is further understood and agreed that this document shall have the same effect as the releases described in [.Pierringer] and in [Frey], and shall be so construed.”

Paragraph eleven provides that “[t]his release shall be construed and interpreted in accordance with the laws of the State of Minnesota.”

Paragraph two of the Bunce Pierringer release provides that:

In accepting the sum referred to in paragraph 1, releasors [Bunce] release and discharge that fraction, portion, or percentage of the total cause of action and claim for damages that releasors now has or may hereafter possess against all parties responsible for relea-sorss [sic] damages which may by trial or other disposition, be determined to be the sum of the fractions, portions, or percentage of causal conduct for which releasees [respondent] are found to be liable to releasors as a consequence of the accident.

In accordance with this Pierringer release and the applicable caselaw analyzing Pierringer releases, respondent paid only its fair share of common liability to Bunce. It is settled law that a claim for contribution does not accrue or mature until the person entitled to the contribution has sustained damage by paying more than his fair share of the joint obligation. Calder v. City of Crystal, 318 N.W.2d 838, 841 (Minn.1982) (quoting Grothe v. Shaffer, 305 Minn. 17, 23-24, 232 N.W.2d 227, 232 (1975)). Under the standard Pierringer agreement analysis, respondent cannot pursue any claims now for contribution and indemnity against defendants and, in this case, non-settling third-party defendants.

Respondent acknowledges that if the agreement was a standard Pierringer agreement, respondent would lose on the merits. But respondent argues that it can proceed with its claims for contribution and indemnity because the Pierringer release entered into here is a “modified” Pierringer agreement. Respondent points to paragraph five, which purports to reserve respondents contribution claims against appellants.

Paragraph five of the Bunce Pierringer release provides:

This release is intended to release only [Bunces] claim against [respondent]. [Bunce] expressly reservefc] the balance of the whole cause of action or any other claim of whatever kind or nature not released which [Bunce] may have or hereafter have against any other persons or entities arising out of the above-described dispute. It is also specifically agreed that [respondent] reserve all claims [respondent] may have for contribution, indemnity, or subrogation against other persons or entities who may be found liable to [Bunce], or who may be jointly or severally liable to [Bunce] with [respondent].

We simply conclude that respondent and Bunce cannot, for their own self-interest, rewrite Pierringer/Frey law and make appellants, non-signatories to the A.P.I./ Bunce release, bound by it.

To finish off the inescapable conclusion that respondents, who drafted the document, knew all along that it was a Pier-ringer release (and wanted it to be that) protecting them from other possible third-parties/cross-claims, paragraph 7 unambiguously states that the release shall have the same effect as the releases described in Pierringer and Frey. No one made a mistake here. Respondent crafted its own legal theory to attempt to build in a chance to recoup more money, while remaining absolutely immune from having to pay anybody one dollar more than it paid Bunce, the original plaintiff. Under Pier-ringer/Frey, it just cant be done.

II.

Respondent argues that because Bunce chose not to pursue direct claims against third-party defendants (appellants), Bunce is now precluded from pursuing those claims under the doctrine of claim preclusion and, thus, since appellants are not liable from suit by Bunce, they equitably remain fair game for contribution and indemnity claims by A.P.I., a direct defendant and a third-party plaintiff. We disagree. The Pierringer/Frey shadow is a large one. First, as noted, in paragraph five of the release, Bunce specifically reserved claims against nonset-tling defendants.

One of the “basic elements” of a standard Pierringer release is that it does reserve the remainder of the plaintiffs causes of action against the nonsettling parties. Frey, 269 N.W.2d at 920 n. 1. Parties not released by a plaintiffs Pier-ringer release remain jointly and severally liable to the plaintiff. See Hosley v. Armstrong Cork Co., 383 N.W.2d 289, 292 (Minn.1986) (stating that Pierringer releases reserve “the plaintiffs right to maintain a cause of action against any nonsettling defendant, but releases from liability any defendant who is a party to the settlement agreement”). Appellants remain potentially liable to Bunce.

Bunce’s death, certainly untimely and not in contemplation by any of the parties, does not eradicate Piemnger/Frey. Appellants correctly argue that the district court erred in allowing respondent to proceed with its contribution and indemnity claims on the theory that all possible claims against appellants have disappeared. Bunce’s next of kin may have a wrongful death action against appellants. We are not asked to decide today whether they do or they don’t. We can only note that no court of law has said that they do not. If Bunce’s next of kin bring a wrongful death action(s), then those defendants are free to implead A.P.I. for contribution and/or indemnity. The first thing A.P.I. will say to Bunce’s next of kin is that they are estopped from collecting any money from A.P.I. because A.P.I. will insist that it settled all of its differences relating to his injuries directly with Bunce while he was alive. A.P.I. will argue that Bunce’s death now from those same injuries does not affect the previous full and final settlement. In that argument, respondent would be correct.

The Pierringer agreement expressly reserved Bunce’s potential claims against appellants. Appellants’ attorneys are correct that their clients still have possible legal exposure. Bunce’s next of kin have not yet brought a wrongful death action against appellants nor has any court said that, as a matter of law, they cannot. A wrongful death action would potentially involve Bunce’s next of kin and appellants, but not respondent because of respondent’s carefully drafted Pierringer release. That Pierringer release both forevermore protects respondent, and forevermore keeps respondent from new contribution and indemnity rights against appellants.

DECISION

Based on the plain language of the Bunce Pierringer release, the release was to be construed as a standard Pierringer release. Under the Bunce Pierringer release, respondent did not pay more than its fair share of common liability. Respondent is protected from future monetary claims by Bunce and/or his next of kin, and/or cross-claims/third-party claims by nonsettling defendants and potential (by definition non-settling) defendants. Bunce reserved potential claims against appellants, so appellants are entitled to the protection of Pierringer/Frey.

Accordingly, we conclude that respondent, having signed a Pierringer release, cannot pursue claims for contribution and indemnity against appellants.

Reversed.


author: MARING, Justice.

text:
    2005 ND 97
    Jason Alan ANDERSON, Petitioner and Appellee v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20040337.
    Supreme Court of North Dakota.
    May 17, 2005.
    Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellant.
    Jason A. Anderson, pro se, Fargo, N.D., petitioner and appellee.
   MARING, Justice.

[¶ 1] The Director of the North Dakota Department of Transportation (“Department”), appeals from the district court’s judgment reversing the Department’s decision to suspend Jason Anderson’s driving privileges for ninety-one days. We affirm the district court’s judgment reversing the administrative suspension.

I

[¶ 2] On April 30, 2004, the Cass County Sheriffs Office received a call from a motorist reporting a “possible reckless driver or drunk driver.” Allegedly, the informant witnessed Anderson’s vehicle hit cones in a construction zone. The informant also reported the license plate number, color, and make of Anderson’s vehicle. Some of this information was relayed by the dispatcher to a patrolling deputy. The deputy pursued the vehicles, and was aware that the informant was continuing to follow Anderson’s vehicle and continuing to provide updates regarding the direction of travel and location to the sheriffs dispatch.

[¶ 3] After catching up to both vehicles, the deputy passed the informant and continued to follow Anderson for approximately two miles before stopping him. The deputy did not observe Anderson perform any illegal or erratic driving before the stop. The informant’s name had not been relayed to the deputy. However, the deputy was aware the informant had pulled off to the side of the road and was being interviewed by an assisting officer, when the deputy stopped Anderson. The deputy testified he witnessed slurred speech and detected the odor of alcohol when speaking with Anderson. The deputy asked Anderson if his broken mirror was caused by hitting cones in the construction zone, and Anderson replied, “yes.” The record is unclear whether the deputy learned of the construction zone allegation before he stopped Anderson.

[¶ 4] The deputy administered the HGN field sobriety test, which Anderson failed. Next, the deputy administered the one-leg-stand sobriety test, which Anderson stated he could not complete because he had too much to drink. The deputy arrested Anderson and transported him to the Cass County Sheriffs Office where Anderson performed and failed an Intoxilyzer test.. Based on this evidence, the Department suspended Anderson’s driver’s license. The district court reversed the Department’s decision, finding the arresting officer did not have the required “reasonable and articulable suspicion” necessary to support the stop of Anderson’s vehicle.

[¶ 5] The Department appeals the district court’s judgment.

II

[¶ 6] Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Larsen v. North Dakota Dep’t of Transp., 2005 ND 51, ¶ 4, 693 N.W.2d 39. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

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.

[¶ 7] On an appeal from a district court’s ruling on an administrative appeal, our Court reviews the agency’s order in the same manner. N.D.C.C. § 28-32-49; Larsen, 2005 ND 51, ¶4, 693 N.W.2d 39.

[¶ 8] Under the Fourth Amendment of the United States Constitution, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

[¶ 9] We have discussed three situations that provide an officer reasonable and articulable suspicion to stop a vehicle: (1) when the officer relied on a directive or request for action from another officer; (2) when the officer received tips from other police officers or informants, which were then corroborated by the officer’s own observations; and (3) when the officer directly observed illegal activity. In re T.J.K, 1999 ND 152, ¶ 8, 598 N.W.2d 781. In the present case, the deputy was not acting on a directive from another officer and he did not directly observe illegal activity. Here, the deputy only received information from the dispatcher.

[¶ 10] In State v. Miller, 510 N.W.2d 638 (N.D.1994), this Court discussed the analytical framework necessary to determine whether an informant’s tip is reliable enough to raise a reasonable suspicion without the officer’s corroboration:

To make a legal investigative stop of a vehicle, an officer must have a reasonable and articulable suspicion that the motorist has violated or is violating the law. E.g., Wibben v. North Dakota State Highway Comm’r, 413 N.W.2d 329 (N.D.1987). Information from a tip may provide the factual basis for a stop. State v. Neis, 469 N.W.2d 568 (N.D. 1991). In evaluating the factual basis for a stop, we consider the totality of the circumstances. E.g., Geiger v. Baches, 444 N.W.2d 692 (N.D.1989). This includes the quantity, or content, and quality, or degree of reliability, of the information available to the officer. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Although the totality-of-the-circumstances approach makes categorization difficult, our cases involving reasonable suspicion arising from an informant’s tip demonstrate the inverse relationship between quantity and quality, and may be analyzed generally according to the type of tip and, hence, its reliability. As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion. Id. at 330, 110 S.Ct. at 2416.

Miller, at 640.

[¶ 11] The Department argues the totality of the circumstances in this case justify the stop of Anderson’s vehicle. The Department contends that because the informant’s identity was easily ascertainable at the time of the stop, it was not an anonymous tip. Therefore, the quality or reliability was such that it was not necessary for the arresting deputy to corroborate the activity. The Department argues that this case differs from the tip in Miller, in which we concluded the tip was anonymous and a lawful stop could not be made without the officer corroborating or witnessing signs of impairment.

[¶ 12] In Miller, a police dispatcher received a call from a person who identified himself as “Jody with Wendy’s,” reporting that a possible drunk driver was in the Wendy’s drive-up lane who “could barely hold his head up.” Id. at 639. The informant also provided the vehicle’s license plate number. Id. The dispatcher contacted a police officer and relayed the information the informant provided, but did not tell the officer the identity of the informant. Id. The officer quickly arrived at the scene and saw the vehicle exiting the drive-up lane. Id. The vehicle exited the parking lot, drove part way around the restaurant, and then re-entered the lot and parked. Id. The officer confirmed the license plate matched the report, but the officer did not notice any erratic driving. Id. The officer parked behind the vehicle and turned on the patrol car’s warning lights. Id.

[¶ 13] The Miller plurality opinion concluded:

Although [the officer] confirmed the location and license number of the pickup before making the stop, he did not notice any traffic violations, erratic driving, or anything that he thought was “real unusual.” [The officer’s] observations of innocent facts do not meet the requirement of Neis, [469 N.W.2d 568,] that there be corroboration of suspicious conduct when an anonymous tip, short on reliability, is also short on specifics. We believe that the combination of the anonymous tip and [the officer’s] observations of innocent facts is insufficient to raise a reasonable and articulable suspicion.

Miller, 510 N.W.2d at 644-45.

[¶ 14] Miller is instructive, but not controlling. Whereas, in Miller, we held the informant was anonymous because the identity was not relayed to the arresting officer, the informant in this case was not anonymous because his identity, while unknown to the arresting deputy at the time of the stop, was easily ascertainable. The arresting deputy was aware, via the informant’s report to dispatch thereafter relayed to him, that the informant was driving a particular vehicle and following the suspect’s vehicle. The deputy observed the informant’s vehicle pull over at the time of the stop and knew the informant was being interviewed by an assisting deputy at the same time he had stopped Anderson.

[¶ 15] Information from an informant whose identity is easily ascertainable has a higher indicia of reliability than information obtained from a purely anonymous informant. See State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999); State of Wisconsin v. Rutzinski, 241 Wis.2d 729, 623 N.W.2d 516 (2001).

[¶ 16] In Slater, the Kansas Supreme Court explained how tips of this nature can be of sufficient reliability:

Second on the scale of reliability are those tips in which, although the informant does not identify himself or herself, the informant gives enough information that his or her identity may be ascertained. This occurs where the informant states that he or she is calling from his or her place of business, or where the informant in person makes contact with the police officer. In such cases courts generally find such a tip to be reliable. See People v. Willard, 228 Cal.Rptr. 895,183 Cal.App.3d Supp. [5, 8 (1986)] (motorist in car beside an officer in moving traffic told the officer that the driver of another car was drunk and pointed to the car); Peterson v. Tipton, 833 P.2d [830,] 831-32 [ (Colo.App.1992)] (clerk at a gas station reported to a dispatcher that an intoxicated male was getting into a car and the clerk later pointed the car out to the officer); State v. Sampson, 669 A.2d [1326], 1328 [(Me. 1996)] (although anonymous, a reasonable inference showed that informant was an employee of a doughnut shop); Playle v. Commissioner of Public Safety, 439 N.W.2d [747,] 748 [(Minn.App. 1989)] (caller identified himself as an employee of the restaurant); State v. Ramey, 129 Ohio App.3d [409,] 417, 717 N.E.2d 1153 [(1998)] (passerby flagged down an officer to give information); Rittman v. State ex rel. Dept. of P. S., 875 P.2d [439,] 440-41 [(Okla.App.1994)] (officer was approached by citizens in a parking lot who pointed out a truck and an intoxicated individual in the truck); State v. Sailo, 910 S.W.2d [184,] 188 [(Tex.App.1995)] (citizen drove up to officer and shouted that he had seen a possible drunk driver who was driving all over the road). But see State v. Tibbet, 96 Or.App. 116,118, 771 P.2d 654 (1989) (motorist drove up to an officer and gave a description of the car, stating that the person appeared to be intoxicated; tip was held not reliable); Campbell v. Department of Licensing, 31 Wash.App. 833, 835-36, 644 P.2d 1219 (1982) (motorist drove up to a car and yelled to an officer that a drunk driver was heading southbound, and gave a description of the vehicle; tip held not reliable).

Slater, 986 P.2d at 1043-44.

[¶ 17] In Rutzinski, the Wisconsin Supreme Court, in a factually similar case, concluded:

[T]he informant in this case exposed him-or herself to being identified. The informant indicated to the police prior to the stop that he or she was in the vehicle in front of Rutzinski’s pickup. Officer Sardina thus could infer that by revealing that he or she was in a particular vehicle, the informant understood that the police could discover his or her identity by tracing the vehicle’s license plates or directing the vehicle to the side of the road. That is, like the officer in Adams [v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972),] Officer Sardina could reasonably have concluded that the informant knew that he or she potentially could be arrested if the tip proved to be fabricated. Accord United States v. Sierra-Hemandez, 581 F.2d 760, 763 (9th Cir.1978) (Kennedy, J.) (holding that by “presenting himself to the [police] and doing so while driving a car from which his identity might easily be traced, the [unidentified] informant was in a position to be held accountable for his intervention”); State v. Slater, 267 Kan. 694, 986 P.2d 1038, 1043 (1999) (holding and providing cites for cases from several jurisdictions which hold that tips from unidentified informants generally are reliable when “the informant gives enough information that his or her identity may be ascertained”). As explained in Adams, this threat of arrest could lead a reasonable police officer to conclude that the informant is being truthful.
Second, unlike the caller in [Florida v.] J.L, [529 U.S. 266,120 S.Ct. 1375,146 L.Ed.2d 254 (2000),] the informant in this case provided the police with verifiable information indicating his or her basis of knowledge. The informant explained that he or she was making personal observations of Rutzinski’s contemporaneous actions. Additionally, the informant provided not only a description of Rutzinski’s vehicle and the direction in which it was traveling, but also indicated the time at which Rutzin-ski’s vehicle passed specific locations as it progressed toward Officer Sardina, Officer Sardina’s arrival on the scene, and that Officer Sardina was following a black pickup. While many people may have been able to identify Rutzinski’s vehicle and the general direction in which it was traveling, only a person contemporaneously observing the vehicle or possessing “inside information” (for example, a person in contact with Rutzinski at the time in question) would have been able to indicate where the vehicle was located and the setting surrounding the vehicle at the given time. Thus, Officer Sardina reasonably could have inferred from this information that the informant had a reliable basis of knowledge.
And third, unlike the tip in J.L., the tip in the present case suggested that Rutzinski posed an imminent threat to the public’s safety. The informant in this case alleged that Rutzinski was driving erratically. Erratic driving is one possible sign of intoxicated use of a motor vehicle. State v. Swanson, 164 Wis.2d 437, 453 n. 6, 475 N.W.2d 148 (1991). As such, based on the reliability of and the allegations contained in the informant’s tip, Officer Sardina reasonably could have suspected that Rutzinski was intoxicated. Accordingly, Officer Sardina was justified in initiating an investigative traffic stop of Rutzinski.

Rutzinski, 623 N.W.2d at 525-26.

[¶ 18] As in Slater and Rutzinski, the tip in this case has a higher indicia of reliability than information from a purely anonymous informant. Here, the deputy was aware before the vehicle stop that the informant could be identified because dispatch had described the informant’s vehicle to him, and in addition, he observed the informant’s vehicle pull over as he stopped Anderson and he knew an assisting officer was interviewing the informant. As the reliability of the tip moves up on the scale, the quantity of the information sufficient to raise a reasonable and articulable suspicion is less. Miller, 510 N.W.2d at 640.

[¶ 19] Here, the record indicates the informant reported to the dispatcher that he had witnessed a “possible reckless driver or drunk driver.” He reported that he was following the suspect vehicle and continued to provide location updates. He reported a description of both his vehicle and the suspect vehicle, including the license plate numbers. The Department failed, however, to establish that the informant told the dispatcher the suspect hit cones in a construction zone and that the dispatcher gave that information to the deputy. The record indicates only that the dispatcher relayed to the deputy the descriptions of the informant and suspect’s vehicles and that the informant had witnessed a “possible reckless driver or drunk driver.”

[¶ 20] The Minnesota Supreme Court, in Olson v. Comm’r of Public Safety, 371 N.W.2d 552, 556 (Minn.1985), concluded that when the stop is based solely on an anonymous caller’s tip, the “caller must provide at least some specific and articula-ble facts to support the bare allegations of criminal activity.” In Olson, the deputies had not observed any erratic driving, and the anonymous caller had not given even minimal specific and articulable facts to support the caller’s bare assertion of a possible drunk driver on the road. Id. at 556. The Minnesota Supreme Court concluded the traffic stop was unconstitutional. Id.

[¶ 21] On these particular facts, although we conclude this informant has a higher indicia of reliability than a purely anonymous informant, the communication by the dispatcher to the deputy of the bare assertion of a “possible reckless driver or drunk driver,” is not of sufficient quantity to provide the reasonable and articulable suspicion sufficient to justify the stop of Anderson’s vehicle.

Ill

[¶ 22] The district court’s judgment reversing the Department’s suspension of Anderson’s driver’s license is affirmed.

[¶ 23] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and DALE V. SANDSTROM, concur.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 99
    OLIVER-MERCER ELECTRIC COOPERATIVE, INC., Plaintiff and Appellee v. Richard D. DAVIS, III, Michael P. Ossanna, Joseph Hauer and Berkley Strothman, Defendants, Richard D. Davis, III, Joseph Hauer and Berkley Strothman, Defendants and Appellants. Oliver-Mercer Electric Cooperative, Inc., Plaintiff and Appellee v. AquaConcept Technologies, Inc., Defendant and Appellant.
    Nos. 20040307, 20040308.
    Supreme Court of North Dakota.
    May 25, 2005.

      Michael L. Wagner, Wagner Law Firm, Bismarck, ND, for defendants and appellants.
    Gregory L. Lange, Lange & Donovan, P.L.L.P., Hazen, ND, for plaintiff and ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] AquaConcept Technologies, Inc., Richard D. Davis, III, Joseph Hauer, and Berkley Strothman (“AquaConcept”) appealed from a final judgment granting a deficiency judgment to Oliver-Mercer Electric Cooperative (“the Cooperative”). We reverse and remand with directions to enter an order denying a deficiency judgment.

I

[¶ 2] The underlying facts of the case are undisputed:

AquaConcept borrowed 1.8 million dollars from the Cooperative to purchase Fish N’ Dakota, a fish farm. The loan was documented by a promissory note and was secured by a mortgage and security agreement. The loan was also secured by the personal guarantees of each of the four AquaConcept stockholders. AquaConcept became delinquent on the loan, and on January 20, 2000, the Cooperative took possession of the business. The Cooperative ran the business and sold AquaConcept’s assets. After a period of time, it brought a deficiency and foreclosure action against AquaCon-cept and its personal guarantors for the unpaid portion of the debt.

Oliver-Mercer Electric Coop. v. Davis, 2004 ND 86, ¶3, 678 N.W.2d 757. In Oliver I, we reversed the trial court’s grant of a deficiency judgment and remanded the case for a finding of fair market value of the collateral at the time of sale, whether the sale was commercially reasonable, and whether the Cooperative was entitled to a deficiency judgment, and if so, in what amount. Id. at ¶ 1. On remand, the trial court determined the fair market value of the collateral was less than the debt owed and granted the Cooperative a deficiency judgment. AquaCon-cept appealed.

II

[¶3] On appeal, AquaConcept argues the trial court erred in granting a deficiency judgment because adequate evidence did not exist to determine the fair market value of the collateral at the time of sale. The Cooperative argues that they are entitled to a deficiency judgment because the trial court had ample evidence to determine the fair market value of the collateral and because the sale was commercially reasonable.

[¶ 4] A deficiency judgment is “an imposition of personal liability against the debtor for payment of the unpaid balance of a debt and is separate and distinct from enforcement of the debt against collateral given to secure the debt.” United Bank of Bismarck v. Glatt, 420 N.W.2d 743, 745 (N.D.1988). A lender may seek “recovery on a debt against personal property collateral after foreclosing a mortgage securing the same debt.” Id.) see also Black’s Law Dictionary 846 (7th ed. 1999) (defining a deficiency judgment as “[a] judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due”). A secured creditor must satisfy two obligations in order to recover a deficiency judgment. N.D.C.C. § 41-09-SO^). Under section 41-09-50(3), N.D.C.C., the creditor must give reasonable notification of the time and place of a sale of collateral and conduct the sale in a commercially reasonable manner. In Oliver I, we noted that all parties agreed the Cooperative failed to comply with the notice requirement. Oliver-Mércer Electric Coop., 2004 ND 86, ¶ 16, 678 N.W.2d 757. When a secured creditor fails to give proper notice and seeks a deficiency judgment, it is presumed the fair market value of the collateral is equal to the debt. State Bank of Burleigh County Trust Co. v. All-American Sub, Inc., 289 N.W.2d 772, 779-80 (N.D.1980). This presumption shifts the burden of proof to the Cooperative, which must “prove by a preponderance of the evidence that the fair market value of the collateral is less than the debt in order to be entitled to a deficiency judgment.” Oliver-Mercer Electric Coop., at ¶ 15.

[¶ 5] In Oliver I, we stated, “A secured creditor may prove the fair market value of collateral in a number of ways. For example, appraisals, stipulations, market conditions, subsequent sales, and testimony of the purchaser.” Oliver-Mercer Electric Coop., 2004 ND 86, ¶ 24, 678 N.W.2d 757. We further noted, “If the record does not contain credible evidence allowing the trial court to make a finding as to the fair market value at the time of the sale, the Cooperative is not entitled to a deficiency judgment.” Id. at ¶25. Because the Cooperative failed to meet the notice requirement, “the amount received at the sales of AquaConcept’s collateral is not evidence of the fair market value.” Id. at ¶ 23.

[¶ 6] Determining the fair market value of collateral is a question of fact. See Stewart v. Henning, 481 N.W.2d 230, 233 (N.D.1992) (determining fair value is a question of fact). A finding of fact will not be set aside unless it is clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144.

[¶ 7] To support its finding of fair market value, the district court relied on the original purchase price, the property’s valuation from a 1999 tax abatement application, AquaConcept’s internal equipment assessment in 1999, the insurance proceeds from a fish loss, poor market conditions, and submitted hid prices. Unaccepted offers to purchase are not proper evidence to prove fair market value. See Sharp v. United States, 191 U.S. 341, 348-49, 24 S.Ct. 114, 48 L.Ed. 211 (1903) (noting unaccepted offers from third parties are speculative and may not be supported by actual knowledge of the proper value); 31A C.J.S. Evidence § 227 (1996). The original purchase price and the 1999 valuations are not credible evidence of the fair-market value at the time of the 2001 sale. Although the insurance proceeds represent the value of the fish at the time of the loss, there is little other credible evidence in the record of the fair market value of the remaining equipment, buildings, or inventory. The Cooperative failed to provide credible evidence of the collateral’s fair market value at the time of the sale. See Oliver-Mercer Electric Coop., 2004 ND 86, ¶24, 678 N.W.2d 757 (defining credible evidence).

[¶ 8] The record does not contain credible evidence to prove the fair market value of the collateral on the day of the sale; therefore, the district court’s finding of fair market value is clearly erroneous. Because the Cooperative did not carry its burden to overcome the presumption that the fair market value of the collateral was equal to the debt, the Cooperative is not entitled to a deficiency judgment. In view of our conclusion, we do not reach the issue of whether the sale was commercially reasonable.

Ill

[¶ 9] We reverse and remand with directions to enter an order denying a deficiency judgment.

[¶ 10] MARY MUEHLEN MARING, J., EVERETT NELS OLSON, Surrogate Judge and WILLIAM F. HODNY, Surrogate Judge, concur.

[¶ 11] The Honorable EVERETT NELS OLSON, Surrogate Judge, and the Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of SANDSTROM, J., and KAPSNER, J., disqualified.

      . The 2001 legislature repealed N.D.C.C. ch. 41-09, entitled "Secured Transactions-Sales of Accounts, Contract Rights and Chattle Paper," and created and enacted a new ch. 41-09, entitled "Secured Transactions,” with an effective date of July 1, 2001. Under N.D.C.C. § 41-09-124(3), the revisions do not affect any case commenced before July 1, 2001. This case commenced before July 1, 2001, therefore, the pre-2001 provisions govern.


author: SANDSTROM, Justice.

text:
    2005 ND 98
    NORTH DAKOTA HUMAN RIGHTS COALITION, a North Dakota nonprofit corporation; Richard Folstrom, Christopher Beeter, Shelly Ann Peterson, Jerry Zillier, Dave Shove, Charles Stebbins, and Patricia Villanueva (legal guardian for Lisa Villanueva); individually, and on behalf of all others similarly situated, Plaintiffs and Appellees v. Leann K. BERTSCH, Commissioner, North Dakota Department of Labor, Defendant and Appellant.
    No. 20040297.
    Supreme Court of North Dakota.
    May 17, 2005.

      Mark G. Schneider, Schneider & Schneider, Fargo, N.D., for plaintiffs and appellees.
    Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] The Commissioner of the North Dakota Department of Labor (“Commissioner”) appealed from an order certifying a class action for individuals who have filed discriminatory practice complaints with the Commissioner and have not received a. probable cause determination and from an order denying the Commissioner’s motion to alter or amend the order certifying the class action. We conclude the trial court’s explanation for granting class certification is insufficient to understand the basis for its decision. We reverse and remand.

I

[¶2] The North Dakota Human Rights Coalition (“Coalition”), a North Dakota non-profit corporation, and seven persons, individually and on behalf of all others similarly situated, sued the Commissioner, challenging the Commissioner’s “policy of failing and refusing to perform his mandatory, nondiscretionary duties” under N.D.C.C. § 14-02.4-23(2) and (3). The plaintiffs alleged the Commissioner failed to “determine from the facts whether probable cause exists to believe that a discriminatory practice has occurred” for the vast majority of discriminatory practice complaints filed with the Commissioner. The plaintiffs also alleged the Commissioner refused to provide administrative hearings for individuals alleging violations of their human rights “even though the Commissioner has found ‘... probable cause exists to believe that a discriminatory practice has occurred and [the Department of Labor] is unable to resolve the complaint through informal negotiations or conciliation.’ ” The plaintiffs sought declaratory relief and a writ of mandamus to compel the Commissioner (1) to promptly determine from the facts whether probable cause exists to believe a discriminatory practice has occurred for each discriminatory practice complaint that has been, or will be, filed with the Commissioner, and (2) to immediately provide administrative. hearings if the Commissioner finds probable cause to believe a discriminatory practice has occurred and is unable to resolve the complaint through informal negotiations or conciliation. The Commissioner moved to dismiss the plaintiffs’ complaint, and the plaintiffs sought certification of their lawsuit as a class action.

[¶ 3] After a hearing, the trial court denied the Commissioner’s motion to dismiss and construed the Commissioner’s obligations under N.D.C.C. § 14-02.4-23, which provides:

1. The department shall investigate complaints of alleged discriminatory practices. An aggrieved person may file a complaint with the department alleging the discriminatory practice. The department may file a complaint. A complaint must be in writing and in the form prescribed by the department.
2. The department shall determine from the facts whether probable cause exists to believe that a discriminatory practice has occurred. If the department determines that no probable cause exists to believe that a -discriminatory practice has occurred, the ■ department shall promptly dismiss the complaint.
3. If the department determines that probable cause exists to believe that a discriminatory practice has occurred and is unable to resolve the complaint through informal negotiations or eonciliátion, the department shall provide for' an administrative hearing in the manner provided in chapter 28-32 on’the complaint.

The court concluded N.D.C.C. § 14-02.4-23 does not create a mandatory, non-discretionary duty for the Commissioner to make a determination for every discriminatory practice complaint, because the Commissioner has authority to assist the parties in conciliation before, and without, issuing a determination. The court concluded N.D.C.C. § 14-02.4-23 requires the Commissioner to provide an administrative hearing only when probable cause exists and the matter cannot be settled. The court concluded the Commissioner is not required to provide an administrative hearing if, after notification of the right to a hearing, the complaining party does not request a hearing.

[¶ 4] In deciding the named plaintiffs’ claims, the trial court ruled the Coalition lacked standing to bring the action in its own right or as a representative of any alleged class. The court decided Richard Folstrom and Christopher Beeter, the two individual plaintiffs who alleged a discriminatory practice that occurred before the August 1, 2001, effective date of N.D.C.C. § 14-02.4-23, had been improperly denied an administrative hearing and ordered the Commissioner to provide them with a hearing as soon as practicable. The court determined there were factual questions about whether the Commissioner had misled two other individual plaintiffs, Shelly Ann Peterson and Jerry Zillier, regarding their right to an administrative hearing. The court decided the remaining three individual plaintiffs, Dave Shove, Charles Stebbins, and Patricia Villanueva, as legal guardian for Lisa Villanueva, had filed discriminatory practice complaints but had not yet received a probable cause determination on their complaints, and the court retained jurisdiction over their claims until the Commissioner issued determinations on their charges, or until the charges were conciliated.

[¶'5] In considering the plaintiffs’ request for class certification, the court said the plaintiffs’ proposed class of persons who have filed, or will file, a discrimination charge with the Commissioner was overly broad. The court identified four possible subclasses of plaintiffs: (1) individuals receiving a probable cause determination for alleged discriminatory practices occurring before the August 1, 2001, effective date of N.D.C.C. § 14-02.4-23; (2) individuals who have filed, discriminatory practice charges and have not received a probable cause determination; (3) individuals who alleged they have been forced to participate in conciliation; and .(4) individuals who have received written notice of a right to an administrative hearing, but who allege they have been misled by subsequent statements from the Labor Department, about the efficacy of a hearing or the relief a hearing could afford. The court determined Shove, Stebbins, and Villanueva, the three individual plaintiffs who had filed discriminatory practice complaints and had not yet received a probable cause determination, could represent the subclass of individuals who have filed discriminatory practice complaints and have not received a probable cause determination. The court certified their claims as a class action, but declined to certify the other three subclasses as a class action.

[¶ 6] The Commissioner moved to alter or amend the court’s order certifying the class action, seeking an order denying certification of any class, or defining the class as plaintiffs who have been harmed because the Commissioner has not promptly or properly investigated their claims of discrimination. The court denied the Commissioner’s motion, stating the issue was “the process in which claims requiring a probable cause determination sit and gather dust.” The court said “those claims that have met the Department’s probable cause test languish with no hearing as required by statute: zero hearings in three years. At this point in time, we simply cannot leave it to the Department to self-determine whether it has met its statutory duties” under N.D.C.C. § 14-02.4-23.

[¶ 7] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, N.D.C.C. § 28-27-02, and N.D.R.Civ.P. 23(d)(3).

II

[¶ 8] The parties have not challenged the trial court’s interpretation of N.D.C.C. § 14-02.4-23, or the court’s refusal to certify three of the subclasses identified by the court. Rather, the Commissioner argues the court abused its discretion in certifying a class action for individuals who have filed discriminatory practice complaints and have not yet received probable cause determinations.

[¶ 9] A trial court may certify a lawsuit as a class action under N.D.R.Civ.P. 23 if the court finds the following four requirements: (1) the class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable; (2) there is a question of law or fact common to the class; (3) a class action should be permitted for the fair and efficient adjudication of the controversy; and (4) the representative parties fairly and adequately will protect the interests of the class. Bice v. Petro-Hunt, L.L.C., 2004 ND 113, ¶ 6, 681 N.W.2d 74. A trial court may rely on common sense assumptions to support a finding of numerosity, and the requirement for common questions of law or fact is easily satisfied. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶¶ 13, 16, 598 N.W.2d 820. In determining whether a class action should be permitted for the fair and efficient adjudication of a controversy, N.D.R.Civ.P. 23(c)(1) outlines thirteen factors the court must consider. The court is not required to specifically address each of the thirteen factors, but the court must weigh the competing factors, and no one factor predominates over the other factors. Howe v. Microsoft Corp., 2003 ND 12, ¶ 9, 656 N.W.2d 285. In determining whether the representative parties fairly and adequately will protect the interests of the class, N.D.R.Civ.P. 23(c)(2) lists three criteria the court must find.

[¶ 10] A court’s order of certification must describe the class and state the relief sought, whether the action is maintained with respect to particular claims or issues, and whether subclasses have been created. N.D.R.Civ.P. 23(d)(1). Under N.D.R.Civ.P. 23(d)(2), an “order certifying or refusing to certify a class action shall state the reasons for the court’s ruling and its findings on the [thirteen] factors listed in [N.D.R.Civ.P. 23](c)(l).”

[¶ 11] A trial court’s decision to certify a class action will not be overturned on appeal unless the court abused its discretion. Bice, 2004 ND 113, ¶ 7, 681 N.W.2d 74. Similarly, a court’s ruling on a motion to reconsider is subject to review under the abuse-of-discretion standard. Peterson v. Dougherty Dawkins, Inc., 1998 ND 159, ¶ 9, 583 N.W.2d 626. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner, when its decision is not the product of a rational mental process leading to a reasoned decision, or when it misinterprets or misapplies the law. Howe, 2003 ND 12, ¶ 6, 656 N.W.2d 285.

[¶ 12] The trial court explained its decision to certify a class action for individuals who have filed discrimination charges with the Commissioner but have not yet received a probable cause determination:

With respect to the second class [covering individuals who have filed charges of discrimination but have not yet received a probable cause determination], the Court finds that Rule 23 certification is appropriate. See factors set forth in Rule 23(a), (b)(2)(B), and (c)(1). The class appears to be numerous and common questions of law and fact predominate. In fact, there may be no way to determine the full effect of these claims absent class certification.
IT IS FURTHER ORDERED that Plaintiffs Shove, Stebbins and Villa-nueva can represent a class of individuals who have filed charges of discrimination but have not yet received a-probable cause determination. Such a class is hereby certified for purposes of achieving a probable cause determination as to the merits of their claims pursuant to Rule 23(d)(1). The remaining requests for class certification are denied for the reasons set forth above.

[¶ 13] The- Commissioner argues the trial court misapplied the law, because the court failed to make adequate findings regarding the four requirements for class certification and the court failed to identify the claims or issues related to the certified class, the relief sought by the certified class, the rationale for the decision to certify the claims as a class action, and the findings on the thirteen factors in N.D.R.Civ.P. 23(c)(1). The Commissioner argues the certified class is too broad, because it does not include any claim of undue delay by the Commissioner and it includes some persons who have filed discriminatory practice complaints and have not been injured by any wrongdoing by the Commissioner. The Commissioner argues class certification is not necessary in this case, because any relief granted to the individual plaintiffs will be identical to the relief granted to the class. The plaintiffs respond the trial court acted within its broad range of discretion in certifying a class action regarding the Commissioner’s process for dealing with discriminatory practice complaints under the Human Rights Act.

[¶ 14] The trial court’s order for certification said the three representative plaintiffs could represent “a. class of individuals who have filed charges of discrimination but have.not yet received a probable cause determination. Such a class is hereby certified for purposes of achieving a probable cause determination as to the merits of their claims pursuant to Rule 23(d)(1).” The Commissioner effectively interprets some language in the court’s order to mean the class consists of individuals who have filed charges of discrimination and have not received an affirmative determination that there is probable cause to believe a discriminatory practice has occurred. Other language in the court’s order, however, suggests the class consists of individuals who have filed charges of discrimination and have not received any determination about whether there is, or is not, probable cause to believe discrimination has occurred. The language in the court’s order is susceptible to different interpretations and may include individuals participating in conciliation, individuals whose claims are being timely and properly investigated, and individuals who have filed a charge and not received a probable cause determination for reasons unrelated to any delay by the Commissioner. Moreover, the court’s interpretation of N.D.C.C. § 14-02.4-23 indicates that statute does not “create a mandatory, non-discretionary duty ... to make a probable cause determination on every charge of discrimination” and “permit[s] the charging party and respondent to conciliate charges of discrimination prior to and without the Department of Labor issuing a determination.” The court’s interpretation of N.D.C.C. § 14-02.4-23 has not been challenged on appeal and is not consistent with the literal language for certification of “a class of individuals who have filed charges of discrimination but have not yet received a probable cause determination.” We conclude the trial court’s order for certification does not clearly define the class.

[¶ 15] We have consistently construed N.D.R.Civ.P. 23 to provide an open and receptive attitude toward class actions, see Bice, 2004 ND 113, ¶ 7, 681 N.W.2d 74, and we have said trial courts have broad discretion in determining whether to certify a class action. Peterson, 1998 ND 159, ¶ 9, 583 N.W.2d 626. In other contexts, however, we have required a trial court to state its findings with sufficient specificity to enable a reviewing court to understand the basis for the court’s decision. See, e.g., In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351 (findings of factors for best interests and welfare of child under N.D.C.C. § 14-09-06.2 should be stated with sufficient specificity to enable reviewing court to understand factual basis for trial court’s decision). Here, the court’s decision to certify this class action does not provide an adequate explanation for us to understand the basis for its decision. The court’s explanation for certification is a conclusory citation to the “factors set forth in Rule 23(a), (b)(2)(B), and (c)(1),” and is contrary ■ to the requirement -of N.D.R.Civ.P. 23(d) that the court describe the. class and state the reasons for its ruling on certification and its findings on the factors’ listed in N.D.R.Civ.P. 23(c)(1). Although a trial court is not required to specifically address each of the thirteen factors in N.D.R.Civ.P. 23(c)(1), here the court, did not address any of those factors in its decision.

[¶ 16] The plaintiffs nevertheless argue the trial court had the benefit of their exhaustive argument about certification and the court acted within its broad discretion in certifying these claims as a class action. The plaintiffs essentially argue the trial court must have considered all the factors in N.D.R.Civ.P. 23, because the plaintiffs presented those factors to the court in their exhaustive argument. An exhaustive argument to the trial court, however, is not a substitute for a court’s explanation of its rationale for granting certification, and we conclude a remand for further proceedings is necessary.

[¶ 17] We nevertheless recognize the trial court’s rationale for declining to grant certification for the first, third, and fourth subclasses may apply equally to the class that was certified. In denying certification for those three subclasses, the court said it would not assume the Commissioner would refuse to follow a final court determination with respect to the uncertified claims. The court said it believed it could deal with the claims of the first, third, and fourth subclasses as individual claims, and if the claims were sustained at trial, fashion broad declaratory relief to protect other, or future, discrimination claimants. The relevant provisions of N.D.C.C. § 14-02.4-23 have not been previously construed by a court, and on reconsideration, the trial court may be able to fashion appropriate declaratory and injunctive relief for all four of the subclasses identified by the court. See Odden v. O’Keefe, 450 N.W.2d 707, 710 (N.D.1990) (declining to issue supervisory writ because of confidence that trial judges would act in light of principles set forth in decision). Some other courts have reached a similar conclusion regarding class certification and injunctive and declaratory relief for the duties and responsibilities of public officials. Kow v. New York City Housing Auth., 92 F.R.D. 73, 74 (S.D.N.Y.1981); Feld v. Berger, 424 F.Supp. 1356, 1363 (S.D.N.Y.1976); McDonald v. McLucas, 371 F.Supp. 831, 833-34 (S.D.N.Y.1974). Those factors may form part of the inquiry for the trial court in its reconsideration of the certification issue on remand.

Ill

[¶ 18] We reverse the trial court’s decision to certify a class action, and we remand for proceedings consistent with this opinion.

[¶ 19] GERALD W. VANDE WALLE, C.J., DALE Y. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ„ concur.

[¶ 20] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


author: PER CURIAM.

text:
    2005 ND APP 4
    CITY OF GRAND FORKS, Plaintiff and Appellee v. Steven Lee BARNUM, Defendant and Appellant.
    No. 20040323CA.
    Court of Appeals of North Dakota.
    May 19, 2005.
    Gary E. Euren, City Prosecutor, Grand Forks, N.D., for plaintiff and appellee.
    Alexander F. Reichert, Grand Forks, N.D., for defendant and appellant.
   PER CURIAM.

[¶ 1] Steven Lee Barnum appealed from a criminal judgment entered on a jury verdict of guilty to a charge of driving under the influence of intoxicating liquor. We affirm.

I

[¶ 2] Barnum was arrested for driving under the influence of intoxicating liquor in Grand Forks on March 28, 2004. An Intoxilyzer test indicated that Barnum had a blood alcohol level of .16 percent. Barnum was found guilty after a jury trial, and has raised the following issue on appeal:

The trial court erred in admitting the Intoxilyzer test results because the foundational requirements showing that the test was administered in accordance with the State Toxicologist’s approved method were not met.

Barnum contends the City did not carry its burden to show fair administration of the Intoxilyzer test because “a copy of the operational checklist, was not admitted, and, therefore, the foundational requirements were not met.” The City of Grand Forks contends “[t]he current machine has an external printer (EP) and does not require a separate form because the external printer prints everything, including the checklist.”

II

[¶ 8] Section 39-20-07, N.D.C.C., provides for the admissibility of chemical test results:

5. The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued, by the state toxicologist....
6. ... Upon approval of the methods or devices, or both, required to perform the tests and the persons qualified to administer' them, the state toxicologist shall prepare and file . written record of the approval with the director and the recorder in each county, unless the board of county commissioners designates a different official, and shall include in the record: •
a. An annual register of the specific testing devices currently approved, including serial number, location, and the date and results of last inspection.
b. An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.
c. The operational checklist and forms prescribing the methods currently approved by the state toxicologist in using the devices during the administration of the tests.
The material filed under this section may be supplemented when the state toxicologist determines it to be necessary, and any supplemental material has the same force and effect as the material that it supplements.

[¶ 4] In a case involving an Intoxilyzer 5000 KB-EP machine like the one used in this case, the North Dakota Supreme Court has recently addressed the admissibility of chemical test results of a driver’s blood alcohol content under N.D.C.C. § 39-20-07:

Admissibility of chemical test results of a driver’s blood alcohol content is governed by N.D.C.C. § 39-20-07. Under N.D.C.C. § 39-20-07(5), the results of a chemical analysis must be received in evidence if the sample was properly obtained, the test was fairly administered, and the test is shown to have been performed according to methods and with devices approved by the State Toxicologist. City of Grand Forks v. Scialdone, 2005 ND 24, ¶ 6, 691 N.W.2d 198; City of Bismarck v. Bosch, 2005 ND 12, ¶ 6, 691 N.W.2d 260. Absent testimony by the State Toxicologist, the foundation necessary to show fair administration of the test and admissibility of the test results may be established by proof that the test was administered in accordance with the approved method filed with the clerk of the district court. Bosch, at ¶ 6. The term “approved method” has become a term of art, and refers to the document filed by the State Toxicologist under N.D.C.C. § 39-20-07(5) and (6) showing the operational checklist and prescribing the methods currently approved by the State Toxicologist for administration of the test. Bosch, at ¶10.

Doll v. North Dakota Dep’t of Transp., 2005 ND 62, ¶ 9, 693 N.W.2d 627. See also City of Grand Forks v. Scialdone, 2005 ND 24, 691 N.W.2d 198; Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, 691 N.W.2d 266; City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260.

[¶ 5] As the Supreme Court recently recognized, “[f]or a process to be a necessary part of the approved method, the State Toxicologist must expressly include it in the approved methodology and make it a part of the requirement for fair administration.” Bosch, 2005 ND 12, ¶ 9, 691 N.W.2d 260. In Scialdone, 2005 ND 24, ¶ 2, 691 N.W.2d 198, a driver objected to introduction of an Intoxilyzer test result because the machine used was actually certified in Bismarck, rather than in Grand Forks where he was tested, and “ ‘[t]he intoxilyzer training manual says any time the intoxilyzer is moved it has to be recal-ibrated by a field inspector.’ The Supreme Court ruled:

Neither N.D.C.C. § 39-20-07(5) nor the approved method promulgated by the State Toxicologist mentions either the student manual or anything about completing checks on the calibration when an Intoxilyzer 5000 machine is moved. We conclude that evidence of such checks is not a foundational requirement for showing an Intoxilyzer 5000 test was administered in accordance with the approved method for conducting the test or for admission of the test result into evidence.

Id. at ¶ 7. See also Kiecker, 2005 ND 23, ¶ 11, 691 N.W.2d 266, where the Supreme Court held: “The Department was not required to furnish the hearing officer with a recalibration certificate to prove the Intox-ilyzer test was fairly administered, because the recalibration of an Intoxilyzer machine after it has been moved is not expressly included in the prescribed methods provided by the State Toxicologist.”

[¶ 6] The test result and checklist generated in the administration of the test in this case are printed on a “Form 106-KB-EP.” The first paragraph of a June 15, 2003, document promulgated by the State Toxicologist entitled “APPROVED METHOD TO CONDUCT BREATH TESTS WITH THE INTOXILYZER 5000 KB-EP” and entered as an exhibit in this case, states:

The Approved Method to Conduct Breath Tests With the Intoxilyzer 5000 KB-EP constitutes following the procedure outlined in this document and the instructions displayed by the Intoxilyzer. All operators will type the information requested and answer the questions when prompted. Periodically, the Intox-ilyzer 5000 KB-EP will ask if the operator wishes to review the inputted information. The operator may review and correct the data as needed. The Test Record and Checklist will be printed as Form 106-KB-EP, at the completion of the subject test. Upon review, if any of the data printed is incorrect, the operator may amend the test record by crossing out the incorrect inputted data and printing the correction on the test record.

The last sentence of that document states: “When the test is conducted according to this method, it is considered as fairly administered and the result obtained is scientifically accepted as accurate.”

[¶ 7] The approved method entered as an exhibit in this case does not refer to any checklist other than the one generated in the course of administering the test and shown in the printout with the test result. In light of Scialdone, 2005 ND 24, 691 N.W.2d 198, Kiecker, 2005 ND 23, 691 N.W.2d 266, and Bosch, 2005 ND 12, 691 N.W.2d 260, we conclude that the admission of another checklist is not a foundational requirement for admissibility of the test result generated in a breath test conducted with an Intoxilyzer 5000 KB-EP and printed on a “Form 106-KB-EP.”

Ill

[¶ 8] Affirmed.

[¶ 9] EVERETT NELS OLSON, S.J., BENNY A. GRAFF, S.J., and WILLIAM F. HODNY, S.J., concur.