author: SHUMAKER, Judge.

text:
    Michael BUNDUL, as Trustee for the Heirs and Next of Kin of Carol Bundul, and individually, Respondent, v. TRAVELERS INDEMNITY COMPANY d/b/a Travelers, Appellant, Dick Devine, et al., Defendants.
    No. A07-1627.
    Court of Appeals of Minnesota.
    Aug. 5, 2008.

      Charles D. Slane, Michael Courtney, Terry & Slane P.L.L.C., Bloomington, MN, for respondent.
    Daniel A. Haws, Kari L. Gunderman, Murnane Brandt, St. Paul, MN, for appellant.
    Andrew L. Davick, Meshbesher & Spence, Ltd., Rochester, MN, for amicus curiae Minnesota Association for Justice.
    Considered and decided by HUDSON, Presiding Judge; SHUMAKER, Judge; and MUEHLBERG, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SHUMAKER, Judge.

Appellant challenges the district court’s ruling that a household exclusion in respondent’s umbrella liability policy is void and unenforceable. Because we hold the exclusion does not violate the no-fault act, we reverse.

FACTS

Benjamin Bundul resided with his parents, Michael and Carol Bundul. On November 28, 2003, he was driving his parents’ car, with their permission, when he collided with a parked fire truck. Carol Bundul, a passenger in the car, was fatally injured.

At the time of the collision, Michael and Carol Bundul were the named insureds in two insurance policies. The first was written by Charter Oak Fire Insurance Company and covered automobile liability up to $500,000. The second was a personal liability umbrella policy written by appellant Travelers Indemnity Company. Benjamin Bundul was classified as an insured under both policies.

In a wrongful-death action against Benjamin Bundul, Charter Oak paid its policy limit in settlement. But when the trustee for Carol Bundul’s next of kin sought benefits under the umbrella policy, Travelers denied liability coverage altogether, citing an exclusion for injury to any person related by blood to an insured who is also a resident of the same household as the injured person.

The trustee then brought this declaratory judgment action to have the exclusion declared void and unenforceable. Travelers moved for summary judgment. The district court denied the motion, ruled that the so-called “household exclusion” is invalid and unenforceable under Minnesota’s no-fault act, and ordered that the trustee “shall recover insurance coverage up to the $1,000,000.00 PLUS policy limit.” Contending that the district court erred as a matter of law in its ruling and order, Travelers appealed.

ISSUE

If an underlying primary automobile insurance policy provides the coverages mandated by the Minnesota No-Fault Automobile Insurance Act, does a “household exclusion” in an umbrella personal liability policy contravene either the purpose or the language of the act?

ANALYSIS

Travelers contends that its clear “household exclusion” in the Bunduls’ umbrella insurance policy does not violate any rule or principle of law and is legally enforceable. The trustee argues that Minnesota’s abolition of family tort immunity was assimilated into the Minnesota Automobile Insurance No-Fault Act, thus making Travelers’ household exclusion, which bars recovery of insurance benefits for an intrafamily tort, unenforceable. The trustee also urges that the exclusion conflicts with the no-fault act’s underlying public policy of “compensating victims of automobile accidents.”

There are no facts in dispute and, thus, we “need only review the [district] court’s application of the law” to the umbrella insurance policy. Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 84-85 (Minn.1988). The interpretation of the terms of an insurance policy is a question of law that we review de novo. Franklin v. W. Nat’l Mut. Ins. Co., 574 N.W.2d 405, 406 (Minn.1998).

Insurance policies are contracts to which the general rules of contract law apply unless a statutory provision dictates otherwise. Waseca Mut. Ins. Co. v. Nosk a, 331 N.W.2d 917, 926 (Minn.1983). The extent of an insurer’s obligations to its insured is governed by the language of the contract to which the parties agreed so long as the policy does not omit legally required coverage or contravene applicable statutes. Frey v. United, Servs. Auto. Ass’n, 743 N.W.2d 337, 341 (Minn.App.2008).

At issue is a provision in an umbrella liability policy of insurance. The supreme court has described the nature of an umbrella policy as providing coverage over and above the limit of an underlying policy:

An umbrella policy, typically, requires the insured to carry underlying liability insurance up to a certain limit with a different insurance company. The umbrella insurer then provides an “umbrella” over this underlying coverage by agreeing to pay that part of any claim against the insured that exceeds the limits of the underlying coverage up to the limits of the umbrella. This arrangement enables the umbrella insurer to offer high limits at a relatively modest premium.

Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165 (Minn.1986)

The Bunduls were insured under a primary policy with limits that exceeded those required by law. The Travelers umbrella policy provided coverage of “$1,000,-000 Per Occurrence.” But the umbrella policy contained an exclusion from coverage — referred to as a “household exclusion” — for any injury to, or death of, “any person who is related by blood ... to an ‘insured’ and who is a resident of the household of that person.” The trustee does not appear to dispute either the existence or the clarity of the household exclusion but rather contends that it is unenforceable. Under general contract law, as applied to insurance policies, the parties are free to agree to exclude from coverage particular risks, losses, or persons. Bobich v. Oja, 258 Minn. 287, 294, 104 N.W.2d 19, 24 (1960). As noted by the supreme court in Jostens, and as evident from the record here, the various exclusions in the umbrella policy, including the household exclusion, resulted in a high policy limit for “a relatively modest premium,” namely $103 a year. Jostens, 387 N.W.2d at 165.

Despite the express agreement of insurer and insured, no exclusion will be valid and enforceable if it contravenes the law because the subject matter of any contract must be legal. Hertz Corp. v. State Farm Mut. Ins. Co., 573 N.W.2d 686, 689-90 (Minn.1998). Our issue, then, is whether Travelers’ household exclusion is precluded by the Minnesota No-Fault Automobile Insurance Act. See Minn.Stat. §§ 65B.41-.71 (2006).

The trustee argues that the household exclusion is precluded by express statutory language and by public policy. As to the latter basis for preclusion, the trustee contends that “Minnesota has a well established public policy of compensating victims of automobile accidents.” Indeed, an express purpose of the no-fault law is “to relieve the severe economic distress of uncompensated victims of automobile accidents.” MinmStat. § 65B.42(1). To accomplish this purpose, the no-fault act requires “automobile insurers to offer and automobile owners to maintain automobile insurance policies or other pledges of indemnity which will provide prompt payment of specified basic economic loss benefits to victims of automobile accidents without regard to whose fault caused the aceident[.]” Id. Furthermore, to accomplish the purpose of ensuring that there will be no “uncompensated victims” of automobile accidents, the no-fault act specifies the levels of compensation the insurer must provide in two categories of coverage: (1) basic economic loss benefits and (2) residual liability insurance. Minn.Stat. § 65B.49, subds. 2, 3. The basic economic loss benefits “subject to any applicable ... exclusions” cover, among other losses, medical and funeral expenses and “surviv- or’s replacement services loss.” Minn. Stat. § 65B.44, subd. 1. The minimum required liability insurance limits are stated in the no-fault act as $30,000 as to one person in one accident, and $60,000 as to two or more persons in any one accident. Minn.Stat. § 65B.49, subd. 3. Thus, the amounts of coverage necessary to satisfy the state’s public policy of preventing automobile accident victims from being “uncompensated” are those amounts required by the act. Arguably, once the required amounts have been made available to an accident victim, the underlying purpose and public policy of the no-fault act have been fulfilled.

The Bunduls’ primary policy exceeded the mandatory minimum coverage and provided a liability limit of $500,000. The primary insurer paid the entire policy limit, with $487,436.12 being paid to the survivors of Carol Bundul, and the balance to the fire department’s insurer for damage to the fire truck. Thus, strictly in terms of the fundamental public policy on which the trustee premises his first argument, there has been no violation of the no-fault act here. The next of kin of Carol Bundul are not “uncompensated victims” of an automobile accident. Rather, they have been compensated beyond the level of the express statutory requirements that embody the public policy that the trustee urges in arguing the invalidity of the household exclusion.

Nothing in the no-fault act addresses the issue of the specific amount of compensation for automobile accident victims beyond the stated mínimums. That issue is left open for resolution through the tort system. Beyond the stated mínimums, no public policy concern is melded to any particular sum of money. We do not intend to suggest, however, that the statutory minimum insurance limits will necessarily be sufficient compensation for the loss of a loved one, but only that those limits satisfy the express public policy goal of the no-fault act of ensuring that automobile accident victims will not go “uncompensated.”

Minimum insurance coverages for injury, death, and other specified losses resulting from automobile accidents in Minnesota are governed by the no-fault act. This act is remedial in nature and is to be liberally construed to accomplish its purposes. Miklas v. Parrott, 684 N.W.2d 458, 461 (Minn.2004). Insurance “policy terms that conflict with the No-Fault act will be held invalid.” Kwong v. Depositors Ins. Co., 627 N.W.2d 52, 55 (Minn.2001); see also Perfetti v. Fidelity & Cas. Co. of N.Y., 486 N.W.2d 440, 443 (Minn.App.1992) (invalidating a clause in a policy denying uninsured motorist coverage to family members as violating the no-fault act). But an insurance policy term that does not impact or impair the remedial purpose of the no-fault act is not precluded by the act. State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 625 N.W.2d 160, 165 (Minn.App.2001), review denied (Minn. June 27, 2001).

The' no-fault act does not distinguish between primary insurance and umbrella coverage but rather uses the term “plan of reparation security” to describe any “contract ... under which there is an obligation to pay” basic economic loss and residual liability benefits. Minn.Stat. § 65B.43, subd. 15. Whatever it is called and however it is classified by the contract, a plan of reparation security must provide the benefits required by the no-fault act to be valid. Once the statutory requisites have been met, nothing in the no-fault act addresses the issue of further coverage, such as that provided by an umbrella liability policy.

As a contractual condition of the umbrella coverage, the Bunduls were required to obtain and maintain primary liability insurance in various amounts, all of which satisfied, and exceeded, the no-fault mandatory liability mínimums. Thus, we cannot view the umbrella policy separately from the primary policy. Noting that the no-fault act does not distinguish between types of coverage, and recognizing that the umbrella policy cannot stand alone but must by express agreement be positioned on top of primary liability insurance, these policies together clearly satisfy the no-fault requirement of a “plan of reparation security” that provides the mandated insurance coverage.

The trustee argues that, to be valid, an automobile insurance policy cannot contain a household exclusion because the policy would thereby preclude coverage of a class of accident victims. The no-fault act makes no distinctions among accident victims. But the trustee’s argument is too broad. No class of accident victims may be precluded from the mandated coverages. However, no language in the no-fault act renders invalid an exclusion of a particular class of accident victims from coverage beyond that mandated by the act. Once an insurance policy alone, or a primary and an umbrella policy together, has satisfied the coverage mandate, no further no-fault act regulation of coverages exists.

Through a combination of policies, the insurers here provided primary coverage that fully satisfied the no-fault law and additional insurance that is not addressed by the no-fault act. Nothing in the umbrella policy denied or infringed the insureds’ contractual and statutory right to recover the mandated benefits. The household exclusion did not affect those mandated benefits but rather operated only as to additional insurance to which the parties agreed. The household exclusion in Travelers’ umbrella policy is valid and enforceable, and the district court erred in ruling to the contrary. See Am. Family Mut. Ins. Co. v. Ryan, 330 N.W.2d 113, 115 (Minn.1983) (holding exclusions in insurance policies generally valid unless they deny coverage required by law or contravene applicable statutes).

Quoting the Kentucky case of State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33, 35-37 (Ky.2004), the district court here found the distinction between primary and umbrella insurance to be “a distinction without a difference.” But there are fundamental differences in these types of policies. The most glaring is the cost of the insurance. The total annual premium for the primary coverage here was $2,418. The annual cost of the umbrella insurance was $103. A second significant difference is that the umbrella policy by its own terms is not effective unless there is an underlying policy providing coverage consistent with the statutory mandates, and then the umbrella coverage obtains only when the underlying limits are exhausted. A third difference is that the primary policy cannot contain any exclusion that would negate the statutory coverage mandates. But once those mandates have been satisfied by the primary insurance, the umbrella policy has no such statutory restrictions. The two policies are different in their cost, their scope, and their statutory restrictions.

The Marley court, interpreting a Kentucky law similar to Minnesota’s no-fault act, invalidated a household exclusion even in an umbrella policy as being contrary to public policy. But unlike Minnesota’s express purpose of ensuring that there will be no “uncompensated victims” of automobile accidents — thereby stating the act’s underlying policy — Marley noted that the “public policy of Kentucky is to ensure that victims of motor vehicle accidents on Kentucky highways are fully compensated.” Id. at 36 (emphasis added). Furthermore, the Minnesota Supreme Court has stated that the object of the no-fault law is “to fully compensate the insured to the extent of the mandated insurance.” Scheibel v. III. Farmers Ins. Co., 615 N.W.2d 34, 39 (Minn.2000) (emphasis added).

Finally, in our recent holding in Frey, we considered the enforceability of a “drop-down” clause in the liability coverage of an automobile insurance policy, that is, a clause that reduced, but did not preclude, liability coverage in certain situations. 743 N.W.2d at 340. The “drop-down” clause in Frey reduced liability coverage to the minimum limits defined in the no-fault act when the insured became legally responsible to pay household members. Id. But the insurance policy provided the minimum coverage required by the no-fault act even when the drop-down clause was effective. Id. at 341. We held that the drop-down clause “does not omit coverage required by Minnesota’s automobile insurance laws,” and that so long as the minimum requirements of the no-fault act were met the clause was valid and enforceable. Id. Our conclusion in Frey comports with the public policy of the no-fault act as expressed above, in that the drop-down clause allowed compensation to the insured to the extent of the coverage mandated by the act. Additionally, our conclusion in Frey is consistent with our longstanding principle that parties to an insurance contract, as with any contract, may bargain for any terms they wish and which do not violate the law. See, e.g., III. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 802 (Minn.2004); Ryan, 330 N.W.2d at 115; Bobich, 258 Minn, at 294, 104 N.W.2d at 24.

DECISION

The district court erred in declaring that the household exclusion in respondent’s umbrella liability was void and unenforceable under the no-fault act, when the primary automobile insurance policy fully complied.

Reversed.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. POR HUE VUE, aka Tho Bee Khang, Appellant.
    No. A07-1401.
    Court of Appeals of Minnesota.
    Aug. 5, 2008.

      Lori Swanson, Attorney General, and Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by ROSS, Presiding Judge; JOHNSON, Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Based on evidence seized during a search of his residence, appellant Por Hue Vue was charged with first-degree controlled substance crime. The district court denied appellant’s pretrial motion to suppress evidence, and, following a Lothen-bach hearing, he was convicted of the charge. Appellant challenges the conviction, asserting that the evidence should have been suppressed because it resulted from an illegal search.

FACTS

Appellant’s wife called the police on 21 August 2006 because appellant and other people were smoking illegal drugs in their house. She met the police in the front yard, unlocked the front door, let them into the house, and pointed to a back room. While the officers were in the entryway, appellant came out of a closet area and approached his wife. The officers testified that his appearance caused them to believe he was under the influence of illegal narcotics: he was sweaty and he could not hold still, maintain eye contact, or concentrate on the officers. One officer asked appellant, in English, if he lived there; appellant replied, in English, that he did.

The officers went to the back room, where they noticed disassembled electronic equipment, small baggies, a pipe with a white residue, and a blow torch; their experience and training led them to believe these items were indicia of the use of controlled substances. As the officers left the back room, they observed appellant arguing in the Hmong language with his wife, who was upset and crying. One officer spoke with her; the other officer conducted a Terry stop and a pat search of appellant for weapons because he believed appellant to be under the influence of methamphetamine and therefore subject to paranoid thoughts.

The officer heard crinkly material, like cellophane, in appellant’s pants pocket and, believing it to be a wrapper for narcotics, removed it. It appeared to contain crystal methamphetamine. He then arrested appellant for possession of a controlled substance and handcuffed him. A further search of appellant pursuant to the arrest produced from his shirt pocket a plastic bag that appeared to contain more methamphetamine. Appellant was placed in the squad car.

The officers, concerned because of the presence of children in a house that might contain more controlled substances, sought permission from appellant’s wife to search the house. She consented to their search of the back room and closet area. A K-9 unit was called; its search revealed a gun in the back room and more narcotics in the closet. At no time did appellant object to the officers’ entry or search of his house.

ISSUE

Was appellant’s right to be secure against unreasonable searches conferred by U.S. Const, amend. IV and Minn. Const, art. I, § 10, violated by a police search of appellant’s residence to which appellant did not object and to which appellant’s co-tenant consented?

ANALYSIS

“[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

“The right of the people to be secure in their ... houses ... against unreasonable searches ... shall not be violated....” U.S. Const, amend. IV; Minn. Const, art. I, § 10. “[A] warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Georgia v. Randolph, 547 U.S. 103, 120, 126 S.Ct. 1515, 1526, 164 L.Ed.2d 208 (2006). Appellant relies on Randolph to argue that his wife’s consent to the search did not make the search reasonable as to him and that the evidence obtained from the search must therefore be suppressed. But Randolph is distinguishable: unlike the Randolph defendant, appellant did not expressly refuse the search.

Appellant’s situation is similar to that of the nonconsenting defendant in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), who was also detained in a squad car. Id. at 179, 94 S.Ct. at 997 (Douglas, J., dissenting). Matlock holds that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Id. at 170, 94 S.Ct. at 993.

Randolph explicitly reconciled its holding with that of Matlock:

[W]e have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.
This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it.... [W]e think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.

547 U.S. at 121-22, 126 S.Ct. at 1527. Appellant, unlike the Randolph defendant, was not “at the door and objecting]”; rather, like the Matlock defendant, he was “nearby but not invited to take part in the threshold colloquy.” The police, having obtained appellant’s wife’s consent to the search, were not obliged to see if appellant would object to it. We conclude that the search did not violate appellant’s constitutional state and federal right to be secure against unreasonable searches.

DECISION

The district court, having correctly concluded that the police search of parts of appellant’s house did not violate U.S. Const, amend. IV or Minn. Const, art. I, § 10, lawfully denied appellant’s motion to suppress the evidence resulting from that search.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Appellant also argues that his rights were violated when he was personally searched without consent because the officer’s failure to find a weapon rendered the search invalid. He offers no support for this argument. We conclude that appellant’s appearance and behavior provided the officers with reason to believe he might be armed and dangerous; accordingly, the officers subjected appellant to a pat down search. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968) (holding that, to justify an officer’s search of an individual, the issue is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger”).

      . The language of Minn. Const, art. I, § 10, is almost identical to that of U.S. Const, amend. IV. Compare Minn. Const, art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.”), with U.S. Const, amend. IV (“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”).


author: CONNOLLY, Judge.

text:
    Gregory S. PETERSON, Relator, v. NORTHWEST AIRLINES INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A07-1704.
    Court of Appeals of Minnesota.
    Aug. 5, 2008.

      Marshall H. Tanick, Stephen H. Parsons, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for relator.
    Timothy R. Thornton, Max Heerman, Briggs & Morgan, P.A., Minneapolis, MN, for respondent.
    Lee B. Nelson, Elizabeth H. Esser, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent department.
    Considered and decided by HUDSON, Presiding Judge; SCHELLHAS, Judge; and CONNOLLY, Judge.
   OPINION

CONNOLLY, Judge.

Relator Gregory S. Peterson, an airline pilot, filed a claim for unemployment benefits with the Minnesota Department of Employment and Economic Development (DEED) after Northwest Airlines Inc. (NWA) discharged him from employment. A DEED adjudicator initially found that he was qualified for benefits. NWA appealed. Following a de novo evidentiary hearing, an unemployment-law judge (ULJ) found that relator was not qualified for unemployment benefits because he had been fired for employment misconduct as defined by Minn.Stat. § 268.095, subd. 6(a) (2006). Relator requested reconsideration, and the ULJ issued an order affirming his decision. Relator challenges the ULJ’s order of affirmation, arguing that (1) he did not commit employment misconduct and (2) even if he did commit employment misconduct, then either the single-incident or chemical-dependency exceptions apply. Id. subds. 6(a), (b). This appeal follows on a writ of certiorari relator obtained under MinmStat. § 268.105, subd. 7(a) (2006), and Minn. R. CivApp. P. 115. We affirm.

FACTS

Relator was employed by NWA as an airline pilot from August 1995 until his discharge for violating NWA’s policy concerning pilot consumption of alcohol on February 23, 2007. Specifically, relator was discharged for violating the “12-hour rule.” This rule provides: “[Pilots] are prohibited from drinking alcoholic beverages ... during the 12-hour period immediately prior to ... assignment to reserve or standby status.” The 12-hour rule is not contingent on the actual likelihood that a pilot placed on flight reserve status will be called upon to fly.

Relator was assigned to flight reserve status beginning at 4:00 a.m. on July 6, 2006. This meant that, under the 12-hour rule, he was prohibited from consuming any alcohol from 4:00 p.m. on July 5, 2006, until relieved of his flight reserve status. Despite this unambiguous prohibition, relator had a “party” on his boat with 12 friends on July 5, 2006. In his testimony before the ULJ, relator admitted to drinking alcohol “most of the day and into the evening.” Relator acknowledges that he should not have been drinking alcohol during this time: “It’s a mistake that I made admittedly and I did drink at a period of time that I should not have.”

Eventually, a lieutenant for the Henne-pin County Sheriffs Water Patrol made contact with relator at 11:06 p.m. on July 5, 2006, while he was on Lake Minnetonka. He was arrested for boating under the influence, with an alcohol concentration of 0.17, and for carrying a pistol with an alcohol concentration of 0.08 or more. He did not report this incident to NWA.

ISSUES

1. Does an airline pilot whose alcohol consumption violates his employer’s policy prohibiting alcohol consumption while on flight reserve status commit employment misconduct?

2. Does the single-incident exception apply when an airline pilot violates his employer’s policy prohibiting alcohol consumption while on flight reserve status on one occasion?

3. Does the chemical-dependency exception apply to an airline pilot who has violated his employer’s policy prohibiting alcohol consumption while on flight reserve status but has not been diagnosed as chemically dependent?

ANALYSIS

When reviewing the decision of a ULJ, this court may affirm the decision, remand it for further proceedings, or reverse or modify it if the substantial rights of the relator have been prejudiced because the findings, inferences, conclusion, or decision are “(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.” Minn.Stat. § 268.105, subd. 7(d) (2006).

Whether an employee committed employment misconduct is a mixed question of fact and law. Schmidgall v. Film-Tec Corp., 644 N.W.2d 801, 804 (Minn.2002). Whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). This court views the ULJ’s factual findings in the light most favorable to the decision. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App.2006). This court also gives deference to the credibility determinations made by the ULJ. Id. As a result, this court will not disturb the ULJ’s factual findings when the evidence substantially sustains them. Minn.Stat. § 268.105, subd. 7(d). But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo. Scheunemann, 562 N.W.2d at 34.

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2006). Employment misconduct means “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.” Id., subd. 6(a) (2006).

There are two statutory exceptions to the definition of employment misconduct that are relevant to this case. The first exception is the single-incident exception, which provides that “a single incident that does not have a significant adverse impact on the employer” is not employment misconduct. Id. The second exception is the chemical-dependency exception, which provides: “Conduct that was a direct result of the applicant’s chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency.” Id., subd. 6(b).

I.

We first address relator’s argument that his behavior should be excused despite his actions. Relator does not deny that his violation of the 12-hour rule on July 5, 2006, standing alone, constitutes employment misconduct under Minn.Stat. § 268.095, subd. 6(a). We agree. As a matter of law, we hold that an airline pilot whose alcohol consumption violates his employer’s policy prohibiting such alcohol consumption while on flight reserve status commits employment misconduct. An airline has the right to reasonably expect that its pilots will refrain from violating a policy put in place to ensure the safety of the flying public. A pilot’s transgression of this policy is a serious violation of the standards of behavior that an airline has the right to reasonably expect of its employees because such a violation endangers the flying public by creating the possibility that an intoxicated pilot may be called on to fly a plane. See generally Risk v. Eastside Beverage, 664 N.W.2d 16, 20-22 (Minn.App.2003) (holding that driving while under the influence is employment misconduct even when it does not result in a criminal conviction or the loss of a commercial driver’s license).

Additionally, a pilot who knowingly violates his employer’s policy prohibiting alcohol consumption while on flight reserve status displays a substantial lack of concern for his employment. When a commercial airline pilot takes the controls of a passenger jet, he literally holds the lives of hundreds of passengers in his hands. These passengers trust the pilot to fly the plane safely. Once on the plane, they have no other choice. A pilot who voluntarily places himself in a position where he cannot perform his most essential job duty because he has consumed alcohol, in direct violation of his employer’s policy, shows a substantial lack of concern for his employment as well as an utter contempt for those who have placed their trust in him.

Citing Hoemberg v. Watco Publishers, Inc., relator argues that even though his conduct was clearly in violation of NWA’s 12-hour rule, his behavior should be- excused because NWA did not comply with its policy for treating pilots who have a chemical or alcohol addiction outlined in its Flight Operations Manual (FOM). 343 N.W.2d 676, 678-79 (Minn.App.1984), review denied (Minn. May 15, 1984). This argument is unavailing. Even assuming that NWA did not comply with its treatment policy, NWA’s non-compliance would be excused by relator’s failure to qualify as a “pre-duty violator.” NWA has a policy that provides “limited circumstances for chemically dependent employees, who have violated [NWA’s] alcohol or drug rules, to retain employment with [NWA].” But before a pilot can take advantage of this policy, the pilot must qualify as a “pre-duty violator.” A “pre-duty violator” is defined as “a pilot who violates [NWA] alcohol or drug rules and is reported to a management employee.” The report must occur before “[NWA] has commenced an investigation into a possible ‘Rules of Conduct’ violation by the pilot.” The definition of “pre-duty violator” adds the further qualification that “the person making the report must be the pilot himself or herself, a family member, friend, or fellow [NWA] employee.” In this case, there is no evidence in the record that relator complied with either of these requirements. When relator’s attorney was asked about this issue at oral argument, he suggested that one of relator’s family members may have reported him. If true, there is nothing in the record to support that assertion. Moreover, any such report was not made until the middle of December 2006.

II.

We next address whether the single-incident exception applies. It provides:

Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

Minn.Stat. § 268.095, subd. 6(a) (emphasis added). Relator argues that the single-incident exception is applicable since “he did not cause any harm, which is the essence of the ‘single incident’ provision” because he was not actually called upon to fly and did not fly a commercial jet while under the influence of alcohol. Relator does acknowledge that his actions “could have had an adverse impact, but it did not do so ” in this case.

Relator’s argument is not persuasive. First, the language of the statute does not require that an incident lead to an actual resulting harm (such as a death) in order to have a significant adverse effect on the employer. As DEED points out, “[t]he fact that [relator] was not called to fly is simply fortuitous.” The mere chance that a pilot could have been called on to fly a passenger airplane while intoxicated has a significant adverse impact on NWA. At the very least, there is a loss of trust between relator and NWA that occurred as a result of this incident. See Skarhus, 721 N.W.2d at 344 (holding that an employee’s single incident of theft had a significant adverse impact on her employer when that act eliminated her employer’s ability to entrust her with the essential functions of her job). Like Skarhus, NWA, as a result of relator’s actions, could no longer trust that relator would be sober to fly planes when called on to do so. Flying planes is a pilot’s most essential job function. Because NWA could no longer trust that relator would be able to carry out his most essential job function, his decision to violate NWA’s 12-hour rule, under the reasoning and rationale of this court’s opinion in Skarhus, has a significant adverse impact on NWA, which justified his discharge.

As a matter of law, we hold that the single-incident exception does not apply when an airline pilot’s alcohol consumption violates his employer’s policy prohibiting such consumption when the pilot is on flight reserve status.

III.

Finally, we address whether the chemical-dependency exception applies and conclude that it does not because relator was not diagnosed as chemically dependent before or after violating the 12-hour rule. The chemical-dependency exception provides: “Conduct that was a direct result of the applicant’s chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency.” Minn.Stat. § 268.095, subd. 6(b) (emphasis added). Under the language of the statute, relators conduct must be the direct result of his chemical dependency if the chemical-dependency exception is to apply.

Relator claims that the chemical-dependency exception applies because his violation of the 12-hour rule was a direct result of his chemical dependency. While relator obviously has difficulty consuming alcohol in a responsible manner, this does not mean that he is, per se, chemically dependent. Without citing any legal authority, relator essentially argues that his past actions are sufficient evidence of his chemical dependence. But relator provides no formal diagnosis, or other evidence, that establishes that he is chemically dependent. While there is no statutory definition of chemical dependency, relator’s conception of chemical dependency is over-inclusive. As DEED points out, an individual can make mistakes with alcohol or abuse alcohol without being chemically dependent. In this case, relator even testified that he was an alcohol abuser rather than an alcohol-dependent individual. In addition, two chemical-dependency evaluations, one three months before the incident and one six months after the incident, concluded that relator was not chemically dependent.

DECISION

Because an airline pilot whose alcohol consumption violates his employer’s policy prohibiting such consumption while on flight reserve status commits employment misconduct, as defined by Minn.Stat. § 268.095, subd. 6(a) (2006), for the purpose of determining eligibility for unemployment benefits, and because that pilot’s alcohol consumption does not fit into either the single-incident or chemical-dependency exception, we affirm the UL J’s order.

Affirmed.

      . Pursuant to a settlement agreement among NWA, relator, and relator's union, NWA agreed to withdraw its previously submitted opposition brief to relator's unemployment benefits claim.

      . Relator was later rehired under a “Last Chance Agreement” dated October 30, 2007. Relator's current employment status with NWA is not relevant to our analysis of the legal issues presented in this appeal.

      .Approximately four months before this incident, on March 17, 2006, relator was arrested for DWI. He entered a plea and as part of his sentence was asked to undergo a court-ordered evaluation where he was not diagnosed as chemically dependent.

      . The record before this court only contains selected segments from the FOM.

      . The transcript before this court only indicates that relator was enrolled in a treatment program.

      . Because relator’s March 17, 2006 DWI arrest did not involve the consumption of alco-hoi in violation of NWA's 12-hour rule, it is not considered in our analysis here.


author: MARING, Justice.

text:
    2008 ND 149
    John STRAND, Cass County resident and tax payer, and other Concerned Citizens and tax payers, similarly situated, Plaintiffs and Appellants v. CASS COUNTY, North Dakota, a political subdivision, Defendant and Appellee and The Cass County Commission, Defendant.
    No. 20070168.
    Supreme Court of North Dakota.
    July 25, 2008.

      Robert W. Harms (argued), Bismarck, N.D., and John T. Goff (on brief), Montgomery, Goff and Bullís, Fargo, N.D., for plaintiffs and appellants.
    W. Todd Haggart, Vogel Law Firm, Fargo, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] John Strand and other Cass County residents and taxpayers (“Strand”) appeal from a district court order entered after remand, denying Strand’s request for an award of attorney’s fees. Because we conclude the district court did not err in denying Strand’s request for attorney’s fees, we affirm.

I

[¶ 2] We previously set forth relevant facts in our prior decision in this case, Strand v. Cass County, 2006 ND 190, 721 N.W.2d 374 (“Strand I ”), and we will not repeat them here except as necessary to resolve the issues raised in this appeal.

[¶ 3] In April 2003, Strand sued Cass County alleging that under N.D.C.C. ch. 11-11 the County was obligated to hold a vote before demolishing the old jail and sheriffs residence located in Fargo. Although demolition work had begun, Strand obtained a temporary restraining order prohibiting further demolition of the buildings. On April 22, 2003, the temporary restraining order was vacated by the parties’ stipulation because the buildings had already been severely damaged. On May 7, 2003, the County filed its answer and counterclaim asserting Strand’s actions resulted in additional costs to the County “in excess of $39,000.” The County also alleged Strand’s “allegations are untrue, made without reasonable cause and not in good faith and are frivolous pursuant to N.D.C.C. § 28-26-31” and, in the prayer for relief, requested “costs, disbursements and reasonable attorney fees as may be allowed by law.”

[¶ 4] On May 22, 2003, Strand filed a reply to the County’s counterclaim, which in part denied “any damage or injury was caused as a proximate result of Plaintiffs’ actions” and reserved the right to amend his reply or complaint “to add additional claims constituting violations of Federal Law under USC Section 1983 and other Federal Constitutional Provisions.” Strand’s reply also asserted, “Plaintiffs reserve and seek the protections provided by North Dakota Century Code § 28-26-31,” and sought relief “[ajwarding Plaintiffs their costs, disbursements and reasonable attorney’s fees as may be allowed by law.” The district court subsequently permitted Strand to amend his complaint. On July 23, 2004, Strand filed his amended complaint and amended reply to counterclaim, asserting claims against the County for attorney’s fees alleging the County’s pleadings were frivolous and not filed in good faith; for civil rights violations under the First Amendment, the North Dakota Constitution, and 42 U.S.C. § 1983; and for abuse of process.

[¶ 5] On August 10, 2004, the County filed its answer to the amended complaint, again alleging Strand’s “claims are frivolous, not made in good faith, or untrue, permitting an award of all expenses, including attorney fees, based on N.D.C.C. § 28-26-31.” The County, however, withdrew its request for attorney’s fees against Strand on the morning of trial. A jury trial was held on Strand’s civil rights and abuse of process claims and on the County’s counterclaim for the additional costs of the demolition. The jury found in favor of the County on Strand’s claims and in favor of Strand on the County’s counterclaim. The district court held that the County did not violate N.D.C.C. ch. 11-11. Strand moved for an award of attorney’s fees under N.D.R.Civ.P. 11(b), N.D.C.C. § 28-26-01, and N.D.C.C. § 28-26-31 against the County. The district court entered judgment dismissing Strand’s claims and entered an order denying Strand’s request for attorney’s fees.

[¶ 6] In Strand I, 2006 ND 190, ¶ 15, 721 N.W.2d 374, Strand argued the district court erred by failing to address his claim for attorney’s fees based upon his allegation that the County’s claim for attorney’s fees was frivolous or made in bad faith. This Court summarized the proceedings below:

In his post-trial motion, Strand sought an award of attorney fees under N.D.R.CivJP. 11(b) and N.D.C.C. §§ 28-26-01 and 28-26-31. Strand’s motion had two bases: (1) the County’s counterclaim against him for $39,000 was frivolous and filed in bad faith; and (2) the County’s request for attorney fees against him, which was withdrawn on the first day of trial, was frivolous and filed in bad faith. In its order denying Strand’s motion, the district court only ruled on the first basis, holding Strand was not entitled to an award of attorney fees based on the County’s assertion of the counterclaim. Strand does not challenge the court’s refusal to award attorney fees for defending against a counterclaim, but asserts the court erred in failing to address his claim for attorney fees based on the County’s request for attorney fees which was subsequently withdrawn.

Strand I, at ¶ 16. Because the district court had failed to address Strand’s second basis for attorney’s fees, we reversed the court’s order and remanded “for consideration of Strand’s request for attorney fees based on the County’s request for attorney fees from Strand.” Id. at ¶ 17.

[¶ 7] On March 6, 2007, the district court held an evidentiary hearing on remand, including testimony and oral argument. In an April 5, 2007, order, the district court denied Strand’s motion for attorney’s fees.

II

[¶ 8] Strand argues the district court abused its discretion in failing to award his attorney’s fees for the County’s allegation that Strand’s pleadings were frivolous entitling the County to attorney’s fees. Strand asserts the court abused its discretion under N.D.R.Civ.P. 11, N.D.C.C. § 28-26-31, and N.D.C.C. § 28-26-01 because the County’s repeated allegations and requests for fees were frivolous, untrue, made without reasonable inquiry, and unwarranted by existing law.

[¶ 9] Generally, under North Dakota law, each party to a lawsuit bears its own attorney’s fees absent statutory or contractual authority. Danzl v. Heidinger, 2004 ND 74, ¶ 6, 677 N.W.2d 924. Strand’s post-trial motion for attorney’s fees asserted grounds under N.D.R.Civ.P. 11(b), and N.D.C.C. §§ 28-26-01(2) and 28-26-31.

[¶10] Section 28-26-01(2), N.D.C.C., states:

In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney’s fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person’s favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim. This subsection does not require the award of costs or fees against an attorney or party advancing a claim unwarranted under existing law, if it is supported by a good-faith argument for an extension, modification, or reversal of the existing law.

(Emphasis added.)

[¶ 11] The plain language of this statute requires courts in civil actions to award costs and fees, including attorney’s fees, upon finding a claim for relief was frivolous, providing the prevailing party pled the alleged frivolousness of the claim. N.D.C.C. § 28-26-01(2). “Frivolous claims are those which have ‘such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in [that person’s] favor.’ ” Deacon’s Development, LLP, v. Lamb, 2006 ND 172, ¶ 12, 719 N.W.2d 379 (citing Peterson v. Zerr, 477 N.W.2d 230, 236 (N.D.1991) and N.D.C.C. § 28-26-01(2)). When a party requests attorney’s fees under N.D.C.C. § 28-26-01(2), the court “must first determine whether a claim is frivolous. If the court makes that determination, the court must then award reasonable attorney’s fees to the prevailing party.” Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 84 (N.D.1991). “Authorizations of attorney’s fees for frivolous claims are not meant to chill enthusiasm and creativity in pursuing factual or legal theories, and a court should not use the wisdom of hindsight to determine whether claims are frivolous.” Id. at 84-85. “If the law is unclear or unsettled on a particular claim, that circumstance makes it more likely that a party might reasonably expect to prevail on that claim.” Id. at 85. “An award under N.D.C.C. § 28-26-01(2) is within the discretion of the district court and will only be disturbed on appeal for abuse of that discretion.” Deacon’s Development, at ¶ 12.

[¶ 12] Based upon this statute’s language, however, the district court’s decision whether to award attorney’s fees is not completely within the court’s discretion. Rather, if the district court determines that a claim is frivolous, the court must award attorney’s fees. In 1987, our Legislature amended N.D.C.C. § 28-26-01(2) to its present form using “shall” and “must” and removed the discretionary language of “may.” See 1987 N.D. Sess. Laws ch. 387, § 1; see also Blackburn, Nickels & Smith, Inc. v. National Farmers Union Prop, and Cas. Co., 482 N.W.2d 600, 605-06 (N.D.1992). Before this amendment, § 28-26-01(2), N.D.C.C., stated in relevant part, “In civil actions the court may, in its discretion, upon a finding that a claim for relief was frivolous, award reasonable actual or statutory costs, or both, including reasonable attorney’s fees to the prevailing party. Such costs may be awarded regardless of the good faith of the attorney or client_” (Emphasis added.) The 1987 amendment also added the final sentence of the present subsection.

[¶ 13] Thus, the district court’s discretion under this statute lies in determining whether a particular claim is frivolous. See, e.g., Soentgen, 467 N.W.2d at 85-86 (concluding trial court abused its discretion in determining claims were frivolous). Additionally, the district court retains its discretion under the statute in deciding the amount and reasonableness of an attorney’s fees award. N.D.C.C. § 28-26-01(2); see also Lynch v. Sweeney, 2007 ND 81, ¶ 10, 732 N.W.2d 377; CybrCollect, Inc. v. North Dakota Dep’t of Fin. Insts., 2005 ND 146, ¶ 39, 703 N.W.2d 285. However, to the extent that our cases subsequent to the 1987 amendment of N.D.C.C. § 28-26-01(2) suggest that the district court retains complete discretion whether to award attorney’s fees, even if a claim is determined to be frivolous, we overrule those cases. See, e.g., Negaard v. Negaard, 2005 ND 96, ¶23, 696 N.W.2d 498; Dietz v. Kautzman, 2004 ND 119, ¶ 14, 681 N.W.2d 437; Dixon v. McKenzie County Grazing Assoc., 2004 ND 40, ¶29, 675 N.W.2d 414; Nygaard v. Continental Resources, Inc., 1999 ND 172, ¶ 16, 598 N.W.2d 851; Industrial Comm’n v. McKenzie County Nat’l Bank, 518 N.W.2d 174,178 (N.D.1994).

[¶ 14] Under N.D.C.C. § 28-26-31, an award of attorney’s fees is entirely within the district court’s discretion. Westchem Agrie. Chems., Inc. v. Engel, 300 N.W.2d 856, 859 (N.D.1980). Section 28-26-31, N.D.C.C., provides:

Allegations and denials in any pleadings in court, made without reasonable cause and not in good faith, and found to be untrue, subject the party pleading them to the payment of all expenses, actually incurred by the other party by reason of the untrue pleading, including a reasonable attorney’s fee, to be summarily taxed by the court at the trial or upon dismissal of the action.

Under this statute, a court is authorized to award attorney’s fees for “[ajllegations and denials in any pleadings in court, made without reasonable cause and not in good faith, and found to be untrue.” Id. Although the district court’s award of attorney’s fees and costs under N.D.C.C. § 28-26-31 is discretionary, the court’s exercise of that discretion must be based on evidence that the pleadings were made without reasonable cause and not in good faith, and are found to be untrue. See Peterson v. Zerr, 477 N.W.2d 230, 235 (N.D.1991); Larson v. Baer, 418 N.W.2d 282, 289 (N.D. 1988); Westchem, 300 N.W.2d at 859-60.

[¶ 15] Likewise, a court also enjoys considerable discretion in awarding attorney’s fees under N.D.R.CÍV.P. 11. Under Rule 11, N.D.R.Civ.P., a district court may award sanctions against an attorney or a represented party, or both, if they violate the rule’s requirements. Specifically, N.D.R.Civ.P. 11 states, in part:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
(1)How Initiated.
(A) By Motion. A motion for sanctions under this rule must be made separately from other motions or requests and must describe the specific conduct alleged to violate subdivision (b). The motion, brief, and any other supporting papers, must be served as provided in Rule 5, but must not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. The respondent shall have 10 days after a motion for sanctions is filed to serve and file an answer brief and other supporting papers. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
(B) On Court’s Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
(2)Nature of Sanction; Limitations. A sanction imposed for violation of this rule must be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.
(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.
(3)Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.

Thus, under Rule 11(c), a court that finds a violation under subdivision (b) may, but is not required to, impose sanctions upon parties responsible for the violation. N.D.R.Civ.P. 11(c).

[¶ 16] In 1996, this Court revised N.D.R.Civ.P. 11 in response to the 1993 revision of Rule 11 of the Federal Rules of Civil Procedure. N.D.R.Civ.P. 11, Explanatory Note. Before our 1996 revision, N.D.R.Civ.P. 11 stated, “If a pleading, motion, or other paper is signed in violation of this rule, the court ... shall impose ... an appropriate sanction.” However, under the present N.D.R.Civ.P. 11(c), “the court may ... impose an appropriate sanction” for a violation of the rule. In essence, the 1996 revision left the decision as to whether to impose a sanction within the court’s sound discretion. To the extent cases after the 1996 revision to N.D.R.Civ.P. 11 state that a district court must award sanctions if the rule is violated, they are overruled. See, e.g., Simpson v. Chicago Pneumatic Tool Co., 2005 ND 55, ¶ 16, 693 N.W.2d 612; Dietz v. Kautzman, 2004 ND 119, ¶ 14, 681 N.W.2d 437.

[¶ 17] On appeal, we will not disturb a district court’s decision on sanctions under N.D.R.Civ.P. 11 unless the court has abused its discretion. Simpson, 2005 ND 55, ¶ 16, 693 N.W.2d 612. Further, if there are any factual determinations relevant to the sanctions issue, this Court reviews the district court’s findings under the clearly erroneous standard. Id.

[¶ 18] This Court has previously explained that these statutes and N.D.R.Civ.P. 11 all relate generally to the same subject matter and concluded it was appropriate to, if possible, apply the same standard of review in analyzing a district court’s application of the statutes and the rule. See Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 361 (N.D. 1987). Thus, in this case, we are reviewing the district court’s order for an abuse of discretion. “A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law.” Dixon, 2004 ND 40, ¶ 29, 675 N.W.2d 414.

[¶ 19] Here, as an initial matter, the district court stated in its April 2007 order, “Strand may not recover under N.D.C.C. § 28-26-01 because he was not a ‘prevailing party’ as required by the statute.” The court continued, “In this case neither Strand [n]or the County prevailed as neither party received any award from the jury on their respective claims.” This Court, however, has explained that a “prevailing party” is one in whose favor a judgment is rendered regardless of the amount of damages awarded. See Dowhan v. Brockman, 2001 ND 70, ¶ 11, 624 N.W.2d 690 (quoting Black’s Law Dictionary 1145 (7th ed. 1999)), and Lemer v. Campbell, 1999 ND 223, ¶ 9, 602 N.W.2d 686 (stating, “ ‘The determination of who is the prevailing or successful party is based upon success upon the merits, not upon damages, and a party may be the prevailing party although he recovers no award of damages.’ 20 C.J.S. Costs § 11 (1990).”). The district court’s analysis, therefore, misinterpreted the law insofar as its “prevailing party” determination. Nonetheless, the court’s misinterpretation on this point does not matter in light of the court’s determination that the County’s request for attorney’s fees was not frivolous.

[¶ 20] The district court found that even if the County’s initial insertion of an attorney’s fees request in the prayer for relief was “boilerplate,” Strand could have addressed the issue if he had brought a motion to strike the prayer from the pleadings, which was not done. See Rohrich, 406 N.W.2d at 364 (stating, “If Napoleon Livestock’s allegations were, as the Bank suggests, untrue, unreasonable, and made in bad faith, then the Bank should have moved early in the proceedings and been successful in having them dismissed. Having failed in that, under the circumstances, we conclude that the trial court did not err in denying the Bank’s motion for attorney’s fees under Section 28-26-31.”). While Strand argues he was not required to bring a motion under the statute or the rule, the district court relied on the absence of such a motion to discredit the “shock” Strand asserted he had when he first learned of the prayer for relief. In Strand’s amended complaint and amended reply to counterclaim, Strand alleged his constitutional rights had been violated as a result of the County’s counterclaim and requested attorney’s fees. In the County’s answer to the amended complaint, it again alleged that Strand’s claims were frivolous permitting an award of attorney’s fees to the County. We also observe that the County withdrew its claim for attorney’s fees before trial, presumably after all discovery had been completed.

[¶21] Here, the district court specifically found that Strand could not specify what attorney’s fees were directly associated with defending the County’s attorney’s fees claim and, further, that no evidence indicated Strand would have handled his case any differently if there had not been such a claim. These findings demonstrate that the court considered whether Strand actually incurred any additional costs or expenses based upon the County’s request for reasonable attorney’s fees as required under N.D.C.C. § 28-26-31 and whether it needlessly increased the cost of litigation.

[¶ 22] The district court concluded that “[considering all the evidence,” it did not believe that the County’s attorney’s fees request was frivolous. The court found that the County’s pleading was not untrue and was made in good faith under N.D.C.C. § 28-26-31. The court held that the pleading was not made without reasonable cause and that there was no evidence the County did not comply with N.D.R.Civ.P. 11. On appeal, Strand characterizes the district court’s reasoning as “conclusory;” however, the court’s findings on remand were based upon the testimony and evidence received. Although findings of fact should be stated to afford a clear understanding of the court’s decision, findings are adequate if this Court can discern from them the factual basis for the trial court’s determination. Cf. VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 27, 672 N.W.2d 445 (affirming district court’s denial of summary eviction). But see N.D.R.Civ.P. 52(a) (stating, “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.”). Based upon our review of the record, there is no evidence of bad faith on the part of the County or allegations made without reasonable cause; we conclude the district court’s findings adequately inform us of the basis of its decision.

[¶ 23] We note that the insertion of an attorney’s fees request in the pleading or prayer for relief could be a tactical decision and without actual or likely evidentia-ry support, in violation of the rule and statutes. Nonetheless, in this case, both sides made decisions to pursue attorney’s fees based upon the other party’s allegedly frivolous claims.

[¶ 24] Based upon the record, we are not persuaded that the district court, in finding the County’s allegations not frivolous, acted in an arbitrary, unreasonable, or unconscionable manner, that the court’s decision was not the product of a rational mental process leading to a reasoned decision, or that the court misinterpreted or misapplied the law. We have considered the remaining arguments raised by Strand and find them unnecessary to our decision or without merit. We conclude that the district court did not abuse its discretion in denying Strand’s request for attorney’s fees based upon the County’s allegation that Strand’s pleadings were frivolous entitling the County to attorney’s fees.

Ill

[¶ 25] The district court order is affirmed.

[¶ 26] GERALD W. VANDE WALLE, C.J., ALLAN L. SCHMALENBERGER, D.J., DANIEL J. CROTHERS and DALE V. SANDSTROM, JJ., concur.

[¶ 27] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of KAPSNER, J., disqualified.


author: SANDSTROM, Justice.

text:
    2008 ND 150
    Jayne HUTCHINSON and Jennifer S. Carter, Petitioners and Appellees v. Scott T. BOYLE, Respondent and Appellant.
    Nos. 20080009, 20080010.
    Supreme Court of North Dakota.
    July 28, 2008.
    Leslie Johnson Aldrich, Johnson Law Office P.C., Fargo, N.D., for petitioners and appellees.
    Gregory W. Liebl, Nilles, Ilvedson, Plambeck & Seibo, Ltd., Fargo, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] Scott Boyle appeals from a disorderly conduct restraining order prohibiting him from having contact with Jayne Hutchinson and Jennifer Carter. We reverse and remand, concluding the district court erred by failing to address and determine the validity of Boyle’s constitutional claims.

I

[¶ 2] On October 2, 2007, Hutchinson and Carter each moved for a disorderly conduct restraining order against Boyle. Carter’s affidavit stated she feared for her own and her four-year-old daughter’s safety. Boyle is the daughter’s father. Carter stated Boyle made harassing phone calls to her and her family, saying he was going to take his daughter away. She stated she has recorded phone messages in which Boyle is making disparaging remarks toward her. Hutchinson’s affidavit stated Boyle made an obscene gesture toward her in the courthouse on September 28, 2007, while Hutchinson was filing an affidavit in favor of Carter in the visitation dispute between Boyle and Carter. She also stated that on the evening of September 29, 2007, she observed Boyle climbing up from a second-floor balcony to the balcony of her third-floor apartment. A temporary disorderly conduct restraining order was issued by the district court on October 3, 2007.

[¶ 3] Boyle filed an affidavit responding to the claims made by Hutchinson and Carter. He stated he made the phone calls to Carter in an attempt to speak with his daughter. He is allowed to contact his daughter by telephone once per day. He stated the phone messages were constitutionally protected speech and did not threaten Carter’s safety. Regarding Hutchinson, he stated he did not try to climb up to her third-floor apartment; he had cellulitis at the time and had a very swollen leg. He stated that even if he did make an obscene gesture toward Hutchinson, it was a constitutionally protected activity. Boyle also submitted a brief prior to the disorderly conduct restraining order hearing, arguing his alleged actions were constitutionally protected.

[¶4] A disorderly conduct restraining order hearing was held on November 8, 2007, allowing for cross-examination of the parties on their affidavits. Following the testimony of each party, the district court found that Boyle’s actions toward Hutchinson and Carter constituted disorderly conduct. A one-year restraining order was issued in favor of Hutchinson, and a two-year restraining order was issued in favor of Carter. Under the order, Boyle was prohibited from: 1) having any physical contact with or coming within 100 feet of Hutchinson or Carter; 2) calling, writing, or leaving messages for Hutchinson or Carter, except through an attorney; and 3) coming within 100 feet of Hutchinson’s or Carter’s place of employment.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Boyle’s appeal is timely under N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] On appeal, Boyle argues the district court erred in issuing the restraining order, because it failed to address his claims that his alleged actions are constitutionally permissible — specifically, the obscene gesture toward Hutchinson and the phone messages to Carter. He does not argue that climbing the balcony to Hutchinson’s apartment is constitutionally protected activity. Under N.D.C.C. § 12.1-31.2-01(1), “[disorderly conduct does not include constitutionally protected activity.” Section 12.1—31.2—01(5)(d), N.D.C.C., requires a court to address a constitutional claim before issuing a disorderly conduct restraining order:

If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

[¶ 7] We addressed a district court’s failure to address a respondent’s constitutional claims in Gullickson v. Kline, 2004 ND 76, ¶20, 678 N.W.2d 138. In Gullickson, we concluded the district court erred when it issued a restraining order without first addressing the respondent’s constitutional claims. Id.

[¶ 8] In this case, Boyle stated in his affidavit and also argued in a brief prior to the disorderly conduct restraining order hearing that the obscene gesture toward Hutchinson and the phone messages to Carter were constitutionally protected. In its disorderly conduct restraining order, the district court made the following findings regarding Boyle’s actions toward Hutchinson:

The Court further found that on or about September 28, 2007, Jayne Hutchinson filed an Affidavit in favor of Jennifer Carter in the visitation dispute between Jennifer Carter and Scott Boyle. At that time, the Court finds that Mr. Boyle, upon seeing Jayne Hutchinson in the hallway at the Courthouse, made an obscene gesture, essentially flipped her off.
The Court further finds that on the following evening, September 29, 2007, Jayne Hutchinson observed the cable in her television going out. She went onto her third floor apartment balcony and observed Scott Boyle with one leg, standing on the ground, one leg on the second floor balcony attempting to either go up or down to approach, she believed, her apartment. Jayne Hutchinson has reason to believe that Scott Boyle unplugged the cable TV wire.
The Court finds that those behaviors by Scott Boyle are intrusive and unwanted acts, words or gestures and they were intended to adversely affect the safety, security or privacy of Jayne Hutchinson.
The Court finds that Scott Boyle has committed disorderly conduct against Jayne Hutchinson and a restraining order is issued against Scott Boyle for a period of one year.

[¶ 9] The district court did not address Boyle’s constitutional claim regarding the obscene gesture toward Hutchinson at the hearing or in the disorderly conduct restraining order. The question is, under the circumstances of this case, whether we can say with certainty the court would have issued the restraining order only for Boyle’s climbing the balcony to Hutchinson’s apartment. Because the court did not specify whether the order would have been issued without the obscene gesture, we conclude we cannot say with certainty the order still would have been issued.

[¶ 10] With regard to Carter, the court found the phone messages “were intended to adversely affect the safety, security or privacy of Jennifer Carter,” and “that Scott Boyle has committed disorderly conduct against Jennifer Carter.” The court failed, however, to address Boyle’s constitutional claim regarding the phone messages to Carter. Because the court failed to address the constitutional claims regarding both Hutchinson and Carter, we do not know whether the court considered and determined the validity of Boyle’s constitutional claims as required under N.D.C.C. § 12.1-31.2-01 (5)(d). We therefore reverse the disorderly conduct restraining orders in favor of Hutchinson and Carter and remand to allow the district court to address Boyle’s constitutional claims.

Ill

[¶ 11] The district court’s order is reversed and remanded for proceedings consistent with this opinion.

[¶ 12] GERALD W. VANDE WALLE, C.J., BRUCE E. BOHLMAN, S.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 13] The Honorable Bruce E. Bohl-man, Surrogate Judge, sitting in place of Crothers, J., disqualified.

      . Although this case could have presented a potential conflict between the terms of the restraining order appearing to prohibit any contact with Carter, except through an attorney, and the visitation order providing for Boyle's right to contact with their child through Carter, Carter agreed that the order is not to interfere with Boyle's right to contact his child through her. For the benefit of law enforcement, if a restraining order is issued on remand, it should reflect Carter’s acknowledgment that the order does not interfere with Boyle’s right to contact their child through Carter.


author: ZINTER, Justice.

text:
    2008 SD 62
    STATE of South Dakota, Plaintiff and Appellee, v. Ryan Eldon QUARTIER, Defendant and Appellant.
    No. 24518.
    Supreme Court of South Dakota.
    Argued March 27, 2008.
    Decided July 9, 2008.
    Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Steve Cowan and Aaron Salberg, Minne-haha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Ryan Eldon Quartier appeals the denial of his motion to suppress evidence obtained in an investigatory stop. We affirm.

I.

[¶ 2.] On a May evening in 2006, Sioux Falls narcotics officers were executing a search warrant to search Jose Navarro, his apartment, an unattached garage, and two vehicles. Detective Michael Walsh had been investigating Navarro for approximately six months. Walsh had substantial information that Navarro was distributing several pounds of crystal methamphetamine in the area.

[¶ 3.] Walsh and fellow narcotics officers requested assistance from Sioux Falls police officers. While waiting for Navarro’s vehicles to arrive at the premises, Walsh observed a red van, which was not listed on the warrant, stop outside Navarro’s residence around 8:00 p.m. The van idled on the street in front of the apartment. Walsh testified that the street was not “much of a through road,” and traffic was minimal that time of night. Walsh observed Navarro leave his apartment building and speak with the occupants of the van. Walsh did not see any physical objects exchanged between Navarro and the occupants. Approximately one half hour to an hour and a half after the van left, however, it returned. Although Walsh did not personally witness the van’s second stop or visit at the apartment, he received the information from other members of the surveillance team at the scene.

[¶ 4.] Based upon the investigation of Navarro’s drug activity, the van’s two visits, and Navarro’s discussion with the occupants, Walsh believed that he had reasonable suspicion to stop the van. He therefore requested (through radio transmission) that the assisting Sioux Falls police officers stop the van. Officer Jeff Garden complied.

[¶ 5.] Although Navarro was not in the van, Quartier was a passenger. Garden asked Quartier for identification, and Quartier produced a South Dakota driver’s license. A check of Quartier’s license revealed that it was suspended. Quartier was placed under arrest for possession of a suspended license. A search of Quartier incident to his arrest produced a glass pipe, which tested positive for methamphetamine.

[¶ 6.] Quartier moved to suppress the evidence derived from the stop, asserting it was an unconstitutional search and seizure. Quartier argued that the van’s two visits at Navarro’s apartment did not constitute reasonable suspicion that criminal activity was afoot. The State argued that, under the totality of the circumstances, the two visits at the apartment under surveillance for current drug activity, together with the Navarro conversation on the first visit, created a reasonable suspicion for the stop. The State specifically relied on Walsh’s observation that drug activity happens quickly, and sometimes, in two stages. The State also relied on Walsh’s inference that, based upon his training and experience, the two visits together with the Navarro conversation created reasonable suspicion.

[¶ 7.] Based on the totality of the evidence, including the officer’s observation and inference, the circuit court concluded that Walsh had reasonable suspicion for the stop. The court further concluded that Walsh’s reasonable suspicion was imputed to Garden, therefore justifying his stop of the van.

[¶ 8.] At the conclusion of a court trial, Quartier was found guilty of possession of a controlled substance in violation of SDCL 22-42-5 and possession of drug paraphernalia in violation of SDCL 22-42A-3. He was sentenced to five years in the state penitentiary, all of which was suspended. He now appeals.

II.

[¶ 9.] Our standard of reviewing warrantless searches and seizures is settled:

[A]s a general matter determinations of reasonable suspicion ... should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603. In this case, Quartier does not contend that any of the circuit court’s findings of fact are clearly erroneous. Therefore, we review this matter de novo.

[¶ 10.] We have noted that “[a]rticulating a precise definition of reasonable suspicion is ‘not possible.’ ” State v. Aaberg, 2006 SD 58, ¶ 10, 718 N.W.2d 598, 600 (citing Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 1661,134 L.Ed.2d 911 (1996)). Reasonable suspicion is a common-sense and non-technieal concept dealing with the practical considerations of everyday life. Id. Thus, “[w]hile the stop may not be the product of mere whim, caprice or idle curiosity, it is enough that the stop is based upon ‘specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ” State v. Akuba, 2004 SD 94, ¶ 15, 686 N.W.2d 406, 413 (citation omitted). Once reasonable suspicion arises, law enforcement may stop the vehicle to either confirm or discount that suspicion. State v. Herrboldt, 1999 SD 55, ¶ 8, 593 N.W.2d 805, 808 (citing Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)).

[¶ 11.] In finding that reasonable suspicion existed, the circuit court relied on United States v. Buchannon, 878 F.2d 1065 (8th Cir.1989). In Buchannon, the stop occurred after only one contact with a suspected drug dealer. That defendant arrived at a house under surveillance by police waiting for a warrant to search for drugs. The defendant entered the house and then left at the same time as the resident suspect under surveillance. The two drove off in separate cars heading in the same direction. The officers had not previously observed the defendant, although they knew the suspect. The Eighth Circuit held that this single connection to the suspected drug dealer established reasonable suspicion to stop the defendant’s car. Id. at 1067. According to the court, the fact that the defendant visited the home of a suspected drug dealer and left simultaneously with him sufficiently connected the defendant with possible criminal activity. Id. The Buchannon court also noted, “[h]is visit to the house, carrying a bag and departing a short time later, conformed to the patterns of the drug trade.” Id. Citing to Buchannon’s comparable facts, the circuit court in today’s case similarly found that the van’s interaction with the suspected drug dealer, and especially the van’s return to the residence, created reasonable suspicion.

[¶ 12.] Quartier argues, however, that the facts of this case are more similar to United States v. Crawford, 891 F.2d 680 (8th Cir.1989), in which the court suppressed evidence resulting from a Terry stop. Crawford also involved police surveillance of an apartment building. One of the apartments belonged to a known cocaine trafficker. Police observed the defendant run past the front of the building and around to the back where he entered the rear door. Minutes later, the defendant emerged carrying a bicycle that he placed in a car. He then re-entered the building, and soon came out again carrying a bundle that appeared to be two coats, which he also placed in the car. Defendant got into the car, drove away, and was stopped by the police. When the police officer asked defendant for his driver’s license, defendant could not produce one. The officer informed defendant he was under arrest, searched the vehicle, and uncovered a bag containing cocaine and cash.

[¶ 13.] The Crawford court held that the officer did not have reasonable suspicion to stop the car, stating, “[m]erely entering and leaving a multi-unit apartment complex where a known drug trafficker resides is not an objectively suspicious fact absent some link to the trafficker.” Id. at 683. As the court further observed, it could not be determined whether the defendant entered the suspect drug dealer’s apartment. Because there was no connection between the suspected drug dealer and the defendant, and because the defendant did nothing “that might link him to the suspect,” the Eighth Circuit suppressed. Id. at 682.

[¶ 14.] Although reaching different results under different facts, Crawford and Buchannon are informative because they both illustrate the same central point: some “link” or “connection” between a defendant and the suspected drug dealer is necessary to establish reasonable suspicion. Crawford, 891 F.2d at 682; Buchannon, 878 F.2d at 1068 (Fagg, J., dissenting). In this case, unlike Crawford but similar to Buchannon, there was a direct link and connection: two visits to a known drug suspect’s residence, including a conversation between the drug trafficker and the occupants of the van. Further, the van’s return to Navarro’s residence within a short timeframe led a trained narcotics officer to believe that the visits were indicative of drug activity.

[¶ 15.] Like the defendant in Crawford, Quartier offers an alternative explanation for one of the van’s visits, an explanation lending itself to potential innocent conduct. Quartier postulates that the van’s first stop could have been innocent if “the driver of the van was lost and imposed on Navarro, who was standing outside his apartment, for directions to an address in the area.” Appellant’s Brief, p17. Quartier then argues that “Detective Walsh did not see suspicious activity sufficient to overcome [this] innocent explanation[.]” Id. p20. We rejected this type of individual factor/innocent conduct analysis in State v. Kenyon, holding that an officer is not required to consider and discard possible innocent explanations before he or she can reach a determination that reasonable suspicion exists. 2002 SD 111, ¶ 18, 651 N.W.2d 269, 274. We noted that although innocent explanations may exist, “[a]n officer ‘need not rule out the possibility of innocent conduct.’ ” Id. (citing United States v. Arvizu, 534 U.S. 266, 276-77, 122 S.Ct. 744, 753, 151 L.Ed.2d 740 (2002)). Arvizu clarified that courts should not examine innocent explanations for the reasonable suspicion factors standing alone, a process which the Supreme Court described as a “divide-and-conquer” analysis. 534 U.S. at 274, 122 S.Ct. at 751, 151 L.Ed.2d 740.

[¶ 16.] Instead, the appropriate analysis requires an examination of the “totality of the circumstances” to see whether the officer has a “particularized and objective basis” for suspecting legal wrongdoing. Kenyon, 2002 SD 111, ¶ 15, 651 N.W.2d at 273. The totality of the circumstances need only support a “commonsense inference” that criminal activity is occurring. Id. ¶ 18, 651 N.W.2d at 274. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Id. ¶ 15, 651 N.W.2d at 273-74 (citing Arvizu, 534 U.S. at 273, 122 S.Ct. at 750-51, 151 L.Ed.2d 740).

[¶ 17.] In this case Walsh testified that based upon his training and experience, the cumulative information led him to the suspicion of drug activity: “the fact that [the van] showed up a second time ... is what sparked the interest in the van and because of my experience and training and seeing ... the short-term traffic and repeat traffic at a certain house and making contact with a certain person.” The circuit court, as the fact finder, considered Quar-tier’s arguments, but rejected them in favor of Walsh’s inference.

[¶ 18.] We see no reason to overrule this determination because, although “as a general matter determinations of reasonable suspicion ... are reviewed de novo on appeal,” a reviewing court “should take care ... to give due weight to inferences drawn from [historical] facts by resident judges and local law enforcement officers.” Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d 911.

A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his [or her] police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.

Id. See also Arvizu, 534 U.S. at 273-74, 122 S.Ct. at 751, 151 L.Ed.2d 740 (noting that a “reviewing court must give ‘due weight’ to factual inferences drawn by resident judges and local law enforcement officers”) (citing Ornelas, supra); United States v. Reinholz, 245 F.3d 765, 773 (8th Cir.2001) (providing, “[w]e review the trial court’s findings of fact for clear error and we give deference to the inferences drawn from those facts by law enforcement officers, the court that issued the search warrants, and the trial court”) (citing Ornelas, supra).

[¶ 19.] Giving due weight to the circuit court’s historical findings and to Walsh’s inferences, there is sufficient evidence to conclude that there was reasonable suspicion to stop the van. The police were conducting a surveillance of Navarro’s residence after a lengthy investigation had convinced a judge that probable cause existed to search the residence, garage, Navarro and his vehicles for ongoing drug distribution. Based upon the initial stop of the van at Navarro’s residence, the conversation between the occupants of the van and Navarro, the knowledge that Navarro was a large methamphetamine distributor, and the van’s return visit a short time later, there was a sufficient connection between Navarro and the van providing Walsh the reasonable suspicion necessary to perform an investigatory stop. Once Walsh reached that conclusion based on the totality of the circumstances, he was not required to consider and discard individual, possible innocent explanations for each of the van’s visits. He was entitled to ask Officer Garden to stop the vehicle to either confirm or discount the suspicion. Herrboldt, 1999 SD 55, ¶8, 593 N.W.2d at 808. Thus, we hold that the circuit court did not err in denying Quartier’s motion to suppress.

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Quartier proposed a finding that it was one half hour. See infra, n2. The circuit court found it was an hour and a half.

      . At oral argument before this Court, Quartier for the first time argued that the van's return was not a second "stop.” Rather, Quartier argued it was a mere "drive-by.” Quartier's questioning at the suppression hearing, his own proposed findings of fact, and his appellate briefing, however, reflect that neither Quartier nor the circuit court ever considered that the return of the van was a "drive-by” rather than a second stop or visit at Navarro’s apartment.
      For example, at the suppression hearing, Quartier's counsel's cross-examination reflects that at that time he believed the return involved a "second stop.” Defense counsel asked Walsh:
      Q: What information did you have about the second stop of the van?
      A: I don't remember exactly. It either pulled into the driveway or pulled into the street. I don't recall if anybody got out or if anyone came out of the apartment building. The only thing that I recall for sure is that the second surveillance called up the license plate and I said, hey, that’s been here earlier and as for specific details, I don't remember exactly what was said.
      Although Quartier's counsel, in argument before this Court, suggested that this answer is ambiguous, Quartier did not pursue what he now contends is an important distinction. Counsel never asked Detective Walsh or Officer Garden further details about the return, such as whether it was a mere "drive-by.” More importantly, in the proceedings before the circuit court, Quartier apparently did not believe this was a mere drive-by (and did not preserve this appellate argument) because he proposed no such finding of fact. On the contrary, in Quartier's proposed findings of fact, he described both encounters at Navarro's residence the same: "two short visits.” In Quartier's proposed finding of fact twelve, he proposed: "[biased upon [Walsh's] knowledge of Jose Navarro's drug activities and his belief that the nature of the red van’s two short visits within about one-half hour indicated the probability that the van’s occupants were engaged in drug purchases, Detective Walsh requested through a radio transmission that uniformed Officers conduct a stop of the red van after it left 4500 E. 16th St. #204." (Emphasis added.)
      Thus, it is no surprise that, after hearing the evidence, the circuit court, found that the first and second encounters were the same. The court described them both as "short visits.” Finding of Fact # 5.
      We finally note that Quartier has neither challenged this finding of historical fact on appeal nor raised the "drive-by” issue in his appellate briefing. In his brief, Quartier never described the second visit to Navarro's residence a ''drive-by.” In the State's appellate brief, however, it described the return of the van at Navarro's apartment as a second "stop,” and Quartier filed no reply brief taking issue with the State's description. Under the foregoing circumstances, we decline to adopt Quartier's new argument of fact that has never been raised until oral argument before this Court.

      . Officer Garden indicated that he believed Walsh told him the reason for the stop was that Navarro was inside the van. Walsh denied this was the reason he requested the stop, stating at no time did he think Navarro was in the van. This dispute is of no consequence because we ultimately agree with the circuit court's conclusion that Walsh had reasonable suspicion to stop the van.

      . The State also argued that even if Walsh did not have reasonable suspicion, Garden was justified in stopping the van because he reasonably, although mistakenly, believed that Navarro — the subject of the search warrant— was inside the van. The circuit court agreed, concluding that Garden had an "objective, reasonable, and good faith belief that Navarro was in the van at the time of the stop, and therefore, the stop was valid.” Because we ultimately conclude that Walsh had reasonable suspicion to stop the van, we do not address this issue.

      . At the suppression hearing, Quartier's counsel asked Walsh:
      Q: Was the fact that the van was there on more than one occasion significant?
      A: Yes, sir.
      Q: Why would that be significant?
      A: Well, it’s a — drug dealers and users will often make more than one short-term stop, especially if they are selling. In my experience, often drug dealers will purchase an amount of narcotics, go and sell it, go back and get more and sell it, and, essentially, that is how the money is made.