author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2006 ND 133
    Larry ULSAKER, Plaintiff and Appellee v. C. True Bright WHITE, Defendant and Appellant.
    No. 20050207.
    Supreme Court of North Dakota.
    June 29, 2006.

      Mary E. Nordsven, Hardy, Maus & Nordsven, P.C., Dickinson, ND, for plaintiff and appellee.
    Eugene F. Buresh, Dickinson, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] C. True Bright White appeals from a divorce judgment arguing property was inequitably divided in favor of Larry Ulsaker, and the award of spousal support was inadequate to off-set the inequitable distribution of property. Because the district court divided the property unequally without adequately explaining its distribution, we reverse and remand.

I

[¶ 2] The couple first met in Bangkok, Thailand, in 1960, and were eventually married in Columbia, Missouri, on October 22, 1988. The marriage lasted 16 years. At the time of the divorce, Ulsaker was healthy, 67 years old, and living on his ranch near Medora. White was 66 years old, healthy, and living in Dickinson. Both parties hold advanced degrees: Ulsaker has a master’s degree in soil science and a doctorate in plant physiology; White has a master’s degree in guidance and counseling and substantial hours toward a doctorate in communications.

[¶ 3] The couple lived eclectic lifestyles. Ulsaker taught at various universities and worked overseas on agricultural development projects. He currently operates a ranch near Medora and receives approximately $1,000 in government benefits per month from social security and civil service. His average yearly gross income is approximately $77,000. White was a guidance counselor in the Denver school system, started a dress design and fabrication business in Denver, and continued designing and selling clothes in Columbia, Missouri. Her clothing business continued when she moved to North Dakota, but was not as successful when she lived in Dickinson and Minot. She currently receives approximately $600 a month in rental income from property she owns and receives less than $100 in social security each month. Her expenses are approximately $1,400 per month. Her average yearly gross income is approximately $20,000.

[¶ 4] Before their marriage, White asked Ulsaker to sign a prenuptial agreement, which he refused to do. When asked why he did not sign the prenuptial agreement, Ulsaker stated: “I didn’t see any reason for it, we were going to keep our things separate anyway and that’s what it amounted to, so what difference does a piece of paper make?” At the time of the marriage, White believed she had more assets than Ulsaker, but neither party had a complete understanding of the total assets of the other spouse. This separation of finances continued throughout the marriage. Both parties kept property in their own names, paid their own property taxes, and filed separate tax returns. The couple did share household expenses through a joint checking account. White described the parties’ understanding at the time of marriage.

Q. Now, apparently you came to this marriage understanding that Larry’s mother and father were wealthy?
A. Yes.
Q. That’s correct? And did I hear you testify that early on, understanding ' that his family was wealthy, it was never you[r] intention to come into this marriage to get at his family’s wealth?
A. That was the purpose of the prenuptial agreement that he never responded to.
Q. So, at the very beginning you never intended that Larry’s family’s wealth would come to you?
A. I even promised, yes.
Q. You even promised that to Larry?
A. No, to his whole family, to Larry, I did not come into the marriage looking for money and I made that clear in the ensuing fifteen years with my money.
Q. Okay. And from the very beginning, from the very beginning, despite the fact that Larry didn’t sign a prenuptial agreement he followed your request and kept assets separate from your assets?
A. I generously did not ask him for his.
Q. The two of you kept your assets separate, did you not?
A. Yes, we did.

[¶ 5] The parties enjoyed a comfortable standard of living during their marriage, but were frugal with their expenditures. The combined assets of the parties were substantial. In the N.D.R.Ct. 8.3 property and debt listing, White claimed the parties had $6,123,949.78 and Ulsaker claimed the amount was actually $5,526,214.31. The district court did not make an explicit finding on the value of the marital property. Approximately one million dollars worth of assets were in White’s name, with the remaining four to five million dollars attributable to Ulsaker. The assets of both parties included inherited property. The parties reported no debt.

[¶ 6] After a bench trial, the court granted each party their separately owned property. Consistent with Ulsaker’s recommendation, the court awarded White spousal support in the amount of $1,000 per month for life, or until she remarried. The court also awarded White a $250,000 cash payment. Part of the cash payment was a return of $100,000 which represented the value of Medtronic stock. The remaining $150,000 was to help White “reestablish her life.” The $100,000 of Med-tronic stock, originally valued at $10,000, was given to White from Ulsaker’s mother. White testified she transferred the stock to Ulsaker to show that she did not come into the marriage looking for money.

[¶ 7] Following the order, Ulsaker requested a new trial on the basis of newly discovered evidence. Ulsaker discovered evidence that demonstrated White’s testimony that she transferred the stock to Ulsaker was incorrect. The court issued a brief order stating: “When truth is neglected, a new trial is required.” However, the parties stipulated to the facts that would have been presented at a new trial informing the court that the evidence presented at the original trial was incorrect. Based on the stipulation of the parties, the court amended its previous order removing the value of the stock transfer from the cash payment, thus amending the cash payment from $250,000 to $150,000.

[If 8] The final distribution of property appears to be that Ulsaker will receive four to five million dollars of the estate. White will receive approximately one million dollars from the estate, a cash payment of $150,000, and support of $1,000 a month for life, or until she remarried.

[¶ 9] White appealed arguing the district court’s decision to grant each party their separate property is inequitable because Ulsaker has substantially more assets in his name than does White. Furthermore, White argues the award of spousal support is inadequate to compensate for the inequitable distribution of property. Ulsaker believes the division of property is equitable because of the separation of assets throughout the marriage.

II

[¶ 10] Under N.D.C.C. § 14-05-24(1), the district court must make an equitable distribution of the property of the divorcing parties. Horner v. Horner, 2004 ND 165, ¶9, 686 N.W.2d 131. All assets, whether separately obtained or inherited property, are to be considered part of the marital estate. Bladow v. Bladow, 2003 ND 123, ¶ 6, 665 N.W.2d 724. When all of the assets and debts have been included, the district court is to apply the Ruff-Fischer guidelines for an equitable distribution of the property. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255. Under these guidelines, a court is to consider:

The respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.

Horner, at ¶ 9.

[¶ 11] In this case, the district court, without reference to the Ruff-Fischer guidelines, gave each party the property that was in his or her own name. The court concluded:

Here’s what I think (and order):
Both of them came into this marriage with their separate estates which neither of them intended to co-mingle. And they didn’t.
Both of them should leave the marriage with what they brought along and anything that they got from their families along the way. And their own personal property.

The court based this conclusion on the perceived lack of a marital estate. The court stated that it doubted “if there is such a thing” as a marital estate in this case. This was apparently due in part to the separate lives the parties lived and the fact that the “parties accumulated virtually no joint assets.”

[¶ 12] Determining whether property was acquired before or after marriage can be considered in making an equitable division of property. Bladow, 2003 ND 123, ¶ 8, 665 N.W.2d 724. However, the origin of property is not the sole or, necessarily, the controlling factor under the Ruff-Fischer guidelines. Id. We have stated that all property, regardless of source, is to be considered marital property. Id. at ¶ 6. Property held individually, rather than jointly, does not preclude the inclusion of the property in the marital estate. Barth v. Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359. “We have repeatedly held that property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution.” Id. Even property acquired prior to the marriage by one spouse is considered as part of the marital estate in determining an equitable division. Heley v. Heley, 506 N.W.2d 715, 718 (N.D.1993).

[¶ 13] Thus, a trial court must start with a presumption that all property held by either party whether held jointly or individually is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property. Marital property ordinarily will be valued as of the date of trial. Grinaker v. Grinaker, 553 N.W.2d 204, 208-09 (N.D.1996). After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255.

[¶ 14] There is no set formula for dividing a marital estate, but the trial court must equitably divide the property based upon the particular circumstances of each case. Horner v. Horner, 2004 ND 165, ¶ 12, 686 N.W.2d 131. An equal division of marital property is a logical starting point in a long-term marriage. Linrud v. Linrud, 1998 ND 55, ¶7, 574 N.W.2d 875. Thus, “we begin with the view that marital property should be equally divided and substantial disparities must be explained.” Kautzman v. Kautzman, 1998 ND 192, ¶ 21, 585 N.W.2d 561. While we have said a court may unequally divide property in a short-term marriage and award the parties what each brought into the marriage, Homer, at ¶ 12, marriages of longer durations, 16 years in this case, generally support an equal distribution of property. Schoenwald v. Schoenwald, 1999 ND 93, ¶23, 593 N.W.2d 350. Despite these generalities, duration of a marriage is only one factor of the Ruff-Fischer guidelines and is only one factor to be considered in a distribution of marital property. Lili v. Lili, 520 N.W.2d 855, 857 (N.D.1994).

[¶ 15] In this case, it appears the district court misunderstood the law of this state and thus misapplied the law by concluding that not all the property held by the parties was marital property. The court apparently believed that property held by the parties could be considered non-marital property because the majority of the property was listed under individual names, rather than jointly held. This is an erroneous interpretation of our caselaw.

[¶ 16] The final distribution of property appears to be that Ulsaker was to receive four to five million dollars of the estate. White was to receive much less: approximately one million dollars from the estate, a cash payment of $150,000, and a monthly disbursement of $1,000 a month for life, or until she remarried. The district court, by awarding the property to who “brought [it] along,” created a substantial disparity of approximately four million dollars that was not adequately explained. This large financial disparity is aggravated by the district court’s failure to make a finding as to the total value of the marital estate. It is unclear if the district court had a clear understanding of the total value of the estate in this case. There was an approximately one million dollar gap in the parties’ estimation of the value of the entire marital estate.

[¶ 17] We have stated that a property division need not be equal, but a substantial disparity must be explained. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601. With adequate findings following the Ruff-Fischer guidelines, the disparity in the property award of this case may be appropriate. But to the extent the district court made any findings in this case, they were insufficient to consider the substantial variation of property values, insufficient to explain the court’s rationale for the disparity in the property division, and based on the erroneous concept of what constitutes the marital estate.

[¶ 18] Because the district court misapplied the law and did not sufficiently explain the substantial disparity in the distribution of property, we reverse and remand to the district court.

Ill

[¶ 19] White argues the award of $1000 per month in spousal support is inadequate to compensate for the inequitable distribution of property.

[¶ 20] Section 14-05-24.1, N.D.C.C., provides, “[t]aking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time.” An award of spousal support is to be based on consideration of the Ruff-Fischer guidelines. Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157; Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. A separate finding that a spouse is “disadvantaged” is not necessary for an award of spousal support. Sack v. Sack, 2006 ND 57, ¶¶ 11-12, 711 N.W.2d 157. We have recognized that a difference in earning power should be considered when determining spousal support. Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586. Property division and spousal support ordinarily must be examined and dealt with together. Id. at ¶ 15.

[¶ 21] The district court’s findings, which were issued before this Court’s decision in Sack, stated: “Neither party forfeited opportunities, career or otherwise, as a consequence of the marriage.” The court awarded permanent spousal support in the amount of $1,000 per month apparently because Ulsaker had agreed to pay that amount. Because we are reversing the district court’s division of property, and a different division of property may influence the award and structure of spousal support, the district court may reconsider the award of spousal support when it reconsiders an equitable property distribution. On remand, the court is to consider the Ruff-Fischer guidelines in determining what amount of spousal support is appropriate.

IV

[¶ 22] The judgment of the district court is reversed and remanded.

[¶ 23] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 24] I dissent. The record reflects that the district court included all the property in the marital estate. The district court’s rationale for the division of the property consistent with the Ruff-Fischer guidelines is apparent. ‘We view the trial court’s findings as presumptively correct, placing the burden on the complaining party to demonstrate on appeal that a finding is clearly erroneous.” Linrud v. Linrud, 1998 ND 55, ¶7, 574 N.W.2d 875. The majority has not adhered to this standard.

[¶ 25] This case is not a case in which young, previously unmarried adults with few assets married and then, at divorce, with one spouse having accumulated significantly more assets than the other, required that equitable property division be fairly equal lest the less wealthy spouse be disadvantaged. This case presents two mature, successful, and wealthy adults who married later in life, each having been married before. They chose to keep their assets separate, neither wanting to seek the assets of the other, until they divorced. The district court acknowledged these facts and found, in its opinion, the most equitable arrangement would be for the parties to leave the marriage with their own individual assets. Because the district court weighed all the evidence and came to what it concluded was the most equitable arrangement in light of those facts, the district court did not clearly err.

[¶ 26] The majority has erroneously concluded that the district court misapplied the law and did not sufficiently explain what the majority perceives to be a substantial disparity in the distribution of property.

I

[¶ 27] The majority argues the district court misapplied the law by not including all the property held by the parties in the marital estate. It says at ¶ 15:

In this case, it appears the district court misunderstood the law of this state and thus misapplied the law by concluding that not all the property held by the parties was marital property. The court apparently believed that property held by the parties could be considered non-marital property because the majority of the property was listed under individual names, rather than jointly held. This is an erroneous interpretation of our case-law.

This stretch by the majority is compounded by the fact that the appellant never argued that all of the property was not included in the marital estate. Further, the majority never tells us what marital property was not included in the marital estate. What marital property did the district court fail to distribute?

[¶ 28] In previous cases, this Court has specifically known what property or debt the district court did not include. See Brandner v. Brandner, 2005 ND 111, ¶ 10, 698 N.W.2d 259 (“The trial court erroneously treated Allan’s $659,771 business debts accumulated during the marriage as ‘non-marital debts.’ ”); Neidviecky v. Neidviecky, 2003 ND 29, ¶11, 657 N.W.2d 255 (“in finding the total marital debt was $17,078 the trial court only considered $4,700 as marital debt out of a total claimed loan of $14,800 from Justin’s parents”); Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 622 (N.D.1994) (“the court’s decision reveals that it treated the gifts received by the Gaulrapps as separate property and excluded their value from the marital estate”); Heley v. Heley, 506 N.W.2d 715, 718 (N.D.1993) (“we agree with Vikki that the trial court erred in excluding from the marital estate, prior to distribution, Larry’s $7,000 worth of ‘pre-marital property’ ”); Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985) (the district court found “ ‘that the farm land and mineral interests which the defendant [Charles] inherited from his father is not a marital asset’ ”); Hoge v. Hoge, 281 N.W.2d 557, 561 (N.D.1979) (“Although there was sufficient evidence before the court from which to determine the value of the personal farm property, the findings reveal that the court based the property division solely on the value of the real property owned by the parties.”).

[If 29] In this case, however, the district court never said it was excluding property from the marital estate. The majority illogically assumes this must mean the district court excluded all of it. A district court’s findings of fact are presumptively correct, and the complaining party must demonstrate on appeal that the findings are clearly erroneous. Linrud, 1998 ND 55, ¶ 7, 574 N.W.2d 875. Under this true presumption, we should presume the district court included all the parties’ property in a marital estate. If the district court had not included all the property in the marital estate, how could it distribute the property? The district court knew it had to consider all the property. In its order it specifically said, “But our case law says that there should be an equitable distribution. And ‘equitable’ often means equal. Where it is not equal, it must be explained by the Rogue Judge.” Therefore, the more logical conclusion is that the district court included all the property in the marital estate and found the most equitable result would be for the parties each to take their own property.

II

[¶ 30] The majority argues the district court did not sufficiently explain the substantial disparity in the distribution of property. When making its findings, the district court must consider the Ruff-Fischer guidelines, which include the duration of the marriage and each party’s age, earning ability, conduct, station in life, necessities, health, and financial circumstances. Horner v. Horner, 2004 ND 165, ¶ 9, 686 N.W.2d 131. The district court must provide a rationale for its findings. Id. “Findings of fact are adequate if they provide this Court with an understanding of the district court’s factual basis used in reaching its determination.” State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407.

[¶ 31] The facts of this case are unusual. The parties married later in life, both having been married before. They were both highly educated and successful prior to marrying. Each owned substantial assets prior to the marriage. Each party presented evidence that they had decided to keep their property separate and that neither wanted the assets of the other. Each had substantial assets at the end of the marriage. This is not a case of disparity and inequality. Each party was older, financially secure, and in relatively good health, and they had conducted themselves as independent property owners during the marriage. The district court recognized these facts and found that the most equitable division in this unusual case would be for both parties to walk away with their own individual property. The district court’s findings clearly state the rationale for its decision: the conduct of the parties in keeping their substantial property separate contemplates that both should keep their own property after marriage. This decision may not be equal, but one cannot claim it is inequitable in light of the known facts. See Hoge, 281 N.W.2d at 561 (“There is no requirement that a property division be equal in order to be equitable.”). Therefore, the district court’s findings are not clearly erroneous.

Ill

[¶ 32] I would affirm the district court.

[¶ 33] Dale V. Sandstrom


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2006 ND 141
    FARMERS INSURANCE EXCHANGE, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company, Plaintiffs and Appellants v. Allen SCHIRADO, Defendant and Appellee.
    No. 20050221.
    Supreme Court of North Dakota.
    June 29, 2006.

      Jerry W. Evenson, Zuger Kirmis & Smith, Bismarck, N.D., for plaintiffs and appellants.
    Charles “Casey” L. Chapman, Chapman and Chapman, Bismarck, N.D., for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively “Farmers”) appealed from a summary judgment dismissing their action against Allen Schi-rado for breach of contract, misappropriation of trade secrets, tortious interference with contract, conversion, unjust enrichment, and breach of fiduciary duty and awarding Schirado damages on his counterclaim. We reverse and remand, concluding there are genuine issues of material fact which preclude entry of summary judgment.

I

[¶2] In 1988, Farmers and Schirado entered into an “Agent Appointment Agreement.” Under terms of the agreement, Schirado, as an independent contractor, agreed to act as an agent for Farmers to sell the various lines of insurance provided by Farmers. The agreement required Schirado to submit to Farmers all requests or applications for insurance for the classes underwritten by Farmers and eligible in accordance with Farmers’ rules and manuals. The agreement further provided that all manuals, lists, and records, including information pertaining to policyholders, were the confidential property of Farmers and were to be returned to Farmers upon termination of the agreement. The agreement also contained provisions governing termination of the agreement by Farmers or Schirado.

[¶ 3] Schirado claims that on December 18, 2001, in compliance with a three-month notice provision in the agreement, he faxed a letter indicating his intent to resign effective March 31, 2002, to Betsy Nealon, Farmers’ Executive Director for North Dakota and South Dakota. Nealon testified she never received the letter.

[¶ 4] In late March 2002, Schirado sent a letter to his clients notifying them he had terminated his contract with Farmers, stating:

This was not an easy decision to make after representing the company for over 14 years. The reasons for this decision are varied, but deal with ethics and the treatment of my clients.

Schirado then explained he would be continuing as an independent insurance agent with a new agency, and stated:

As you may have noted on the letterhead, my agency address and phone number are different. There is a clause in the Farmers contract which may allow them to take over my office and old phone number. I do not intend to allow that to happen without a fight but, like the man said, pray for the best but prepare for the worst.

Schirado concluded the letter by noting he would not be able to solicit the client on insurance matters for a period of one year, but “you on the other hand are free to contact whomever you desire.” Farmers learned of Schirado’s letter to his clients and, believing that the letter violated the terms of the parties’ agreement, Nealon on March 28, 2002, faxed a letter to Schirado notifying him that Farmers was terminating the parties’ agreement immediately.

[¶ 5] Under terms of the parties’ agreement, Schirado was to be paid “Contract Value” payments upon termination of the agreement. Farmers was allowed to make Contract Value payments in installments. Schirado requested his Contract Value payments and Farmers sought return of all policyholder information and documents. There were disputes between the parties in attempting to resolve these matters. Schirado eventually received two Contract Value installment payments and he eventually transferred documents and records to Farmers. Farmers claims the documents were not in usable form and were returned too late to use in servicing existing policies.

[¶ 6] In August 2002, Farmers sued Schirado, alleging breach of contract, misappropriation of trade secrets, tortious interference with contract, conversion, unjust enrichment, and breach of fiduciary duty. Farmers claimed that, prior to termination of the parties’ agreement, Schira-do had sold policies to clients through other insurance companies which could have been provided by Farmers. Farmers also claimed that Schirado improperly attempted to induce clients to leave Farmers and take policies through Schirado with new companies, and that Schirado’s retention of policyholder records and documents hampered Farmers servicing of existing policies and resulted in monetary damages to Farmers. Schirado answered, denying all of Farmers’ claims, and filed a counterclaim seeking payment of the balance of his Contract Value payments.

[¶ 7] Schirado moved for summary judgment dismissing Farmers’ complaint and awarding him judgment on his counterclaim. The district court determined there were no genuine issues of material fact on any of Farmers’ claims and ordered summary judgment dismissing the complaint. The court also determined there were no genuine issues of material fact on Schirado’s counterclaim and ordered judgment in favor of Schirado for $6,690 plus interest. Farmers appealed, contending the district court erred in determining there were no genuine issues of material fact on any of the claims raised in Farmers’ complaint and in awarding the Contract Value payments to Schirado on his counterclaim.

II

[¶ 8] “Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” MBNA America Bank, N.A. v. Hart, 2006 ND 33, ¶ 6, 710 N.W.2d 125. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ballensky v. Flattum-Riemers, 2006 ND 127, ¶ 7; Anderson v. Selby, 2005 ND 126, ¶ 7, 700 N.W.2d 696. In considering a motion for summary judgment, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom to determine whether summary judgment is appropriate. Anderson, at ¶ 7.

[¶ 9] Whether the district court properly granted summary judgment is a question of law that we review de novo on the entire record. MBNA, 2006 ND 33, 116, 710 N.W.2d 125. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Miller v. Diamond Res., Inc., 2005 ND 150, ¶ 8, 703 N.W.2d 316. “In determining whether summary judgment was appropriately granted, we view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences that can reasonably be drawn from the evidence.” Id.

Ill

[¶ 10] The gravamen of Farmers’ claims against Schirado is its allegation that Schirado’s actions, both before and after termination, caused potential clients to purchase insurance with other companies and caused Farmers’ existing clients to discontinue their coverage with Farmers. Farmers claims Schirado’s wrongful conduct caused significant damages to Farmers in the form of lost premiums.

[¶ 11] In granting Schirado’s motion for summary judgment, the district court focused exclusively upon the issue of causation. The court concluded that all of Farmers’ claims were precluded because Farmers had failed to present direct evidence through testimony of individual policyholders explicitly stating that they left Farmers due to Schirado’s conduct. The court stated its rationale in its order granting the motion for summary judgment:

To show Schirado is the cause of Farmers damages in the amount of lost business would require the actual policyholders to state they left Farmers due to Schirado. Through discovery, Farmers has not been able to show this type of loss due to Schirado’s actions. In this regard there are no questions of material fact and the Court grants Schirado’s motion for summary judgment....

[¶ 12] The district court’s decision held Farmers to too high of an eviden-tiary standard. The trial court cited no cases or other supporting authority for its conclusion that causation could only be proven by direct testimony of actual policyholders stating that they left Farmers because of Schirado’s actions. The determination whether certain conduct caused injury depends on the facts and circumstances of each case and generally is a question of fact for the trier of fact. See Miller, 2005 ND 150, ¶ 10, 703 N.W.2d 316; Rued Ins., Inc. v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D.1996). Any issue may be proven by circumstantial evidence or by a combination of direct and circumstantial evidence. Loots v. St. Paul Ins. Cos., 240 N.W.2d 53, 61 (N.D.1976). Accordingly, a plaintiff may establish the elements of its claim by circumstantial evidence. See Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 20, 689 N.W.2d 366; Heng v. Rotech Med. Corp., 2004 ND 204, ¶ 28, 688 N.W.2d 389. This Court expressly noted in Heng, at ¶ 28, that “circumstantial evidence may provide an inference of causation.”

[¶ 13] This Court’s holding in Forster in an analogous situation is particularly instructive. Forster was a veterinarian who claimed she was defamed when her prior employer, Brummond, told law enforcement officials and other veterinarians that Forster had poisoned Brummond’s horse, had mistreated another horse, and had broken into Brummond’s clinic and stolen drugs. Forster claimed Brum-mond’s actions had affected her ability to secure other employment. On appeal, Brummond claimed she was entitled to judgment as a matter of law because “Forster failed to produce any witnesses who testified they heard the statements and believed those statements to be defamatory.” Forster, 2004 ND 207, ¶ 19, 689 N.W.2d 366. Concluding that direct evidence was not necessary, this Court held:

A jury has the right to consider circumstantial evidence as well as direct evidence. Leake v. Hagert, 175 N.W.2d 675, 687 (N.D.1970); see also NDJI Civil C-80.50 (1998) (stating “[a] fact can be proved by either direct evidence or circumstantial evidence, or by both”). Direct testimony of the recipient’s understanding of the defamatory nature of a libel is not required if other evidence is sufficient to permit an inference of that understanding. Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 782 (1979); see also 53 C.J.S. Libel and Slander § 165(b) (1987). Brummond did not dispute that she told various individuals Forster was involved in the break-ins, the horse poisoning, and the alleged abuse of Forster’s horse. Forster presented evidence that some veterinarians expressed an interest in employing her before they communicated with Brummond. After communicating with Brummond, the veterinarian offices no longer had positions available for Forster. The jury was not required to believe testimony that the veterinarians did not hire Forster for reasons other than the concerns communicated to them by Brummond. We conclude the evidence in this case was sufficient for the jury to find that the “publication” element of defamation has been satisfied.

Forster, at ¶ 20.

[¶ 14] Similarly, there was circumstantial evidence presented in this case from which a trier of fact could infer Schi-rado’s conduct caused economic damages to Farmers in the form of lost business. Viewed in the light most favorable to Farmers, and giving Farmers the benefit of all favorable inferences reasonably drawn from the evidence, the evidence would allow a factfinder to draw the following inferences:

1) In the ten months prior to his attempt to terminate the agreement, Schirado increased the number of other companies for which he was authorized to write insurance from 11 to 20 and withheld that information from Farmers during discovery.
2) Shortly before terminating the agreement, Schirado wrote 19 separate policies with other companies which Farmers would have accepted if Schi-rado had first submitted the applications to Farmers as required by the parties’ agreement.
3) Before leaving Farmers, Schirado sent a letter to existing clients stating he was leaving Farmers because of a dispute over ethical violations and mistreatment of clients by Farmers, suggesting Farmers was wrongfully taking over his old office and telephone number, and soliciting the Farmers’ policyholders to follow him to his new agency.
4) Schirado refused to return up to 95% of the policyholder files and documentation which were necessary for Farmers to service policyholders. When Schirado finally turned over the materials at a much later date, the documents were randomly dumped in boxes and garbage bags, and were unusable.
5) A normal attrition rate of policyholders discontinuing their coverage when an agent leaves the insurer is 10%-15%; an “ugly termination” might result in a 25%-30% loss; it was estimated 50%-75% of Schirado’s customers left Farmers after Schira-do left.
6)Some policyholders told Farmers’ employees that they were dropping their coverage with Farmers because of problems which had been caused by Schirado’s failure to return policyholder files in a timely manner.

[¶ 15] Schirado challenges the basis and reliability of much of Farmers’ evidence. Those are matters pertaining to credibility of witnesses and weight to be accorded the evidence, which are to be determined by the trier of fact. See Akerlind v. Buck, 2003 ND 169, ¶ 15, 671 N.W.2d 256. At the summary judgment stage, the evidence and inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing summary judgment. Viewing the evidence in this case in that manner, a factfinder could infer that Schirado wrongfully diverted policyholders to companies other than Farmers, wrote a letter to all of his clients suggesting he was leaving because of unethical conduct by Farmers and inviting those clients to transfer their business to him at his new agency, and wrongfully withheld client files and documentation from Farmers, resulting in an inordinately high number of Schirado’s clients leaving Farmers. This interpretation of the evidence would be sufficient to support an inference that Schirado’s conduct caused potential clients to acquire policies with other companies and caused a significant number of Farmers’ policyholders to leave Farmers. Direct evidence of causation is not required if other evidence is sufficient to permit an inference that the defendant’s conduct caused the plaintiffs damages. See Forster, 2004 ND 207, ¶20, 689 N.W.2d 366. We therefore conclude genuine issues of material fact on the issue of causation preclude summary judgment.

IV

[¶ 16] Schirado suggests that, even if there is a genuine issue of material fact on causation, summary judgment is still appropriate because Farmers failed to present direct evidence that it suffered damages. Again, Schirado’s argument is premised on his contention that Farmers was required to present direct testimony from individual policyholders stating that they left Farmers, or took out policies with other companies, because of Schirado’s wrongful conduct. If, as we have previously concluded, there was sufficient evidence to support an inference that Schira-do’s conduct caused potential clients to take out policies with other companies which would have been accepted by Farmers and caused some existing Farmers’ policyholders to drop their coverage with Farmers, the trier of fact could further conclude that those results caused economic damages to Farmers. If Farmers lost policyholders because of wrongful conduct by Schirado, it naturally follows that there would be a concurrent loss of premiums for those lost policies.

[IB, 14] [¶ 17] Schirado argues that evidence of damages is too speculative and the trier of fact would be left to merely guess at an appropriate award of damages. This Court has addressed the standard used when a party claims evidence of damages is too speculative:

Evidentiary imprecision on the amount of damages does not preclude recovery. As this Court said in the syllabus in North Am. Pump Corp. v. Clay Equip. Corp., 199 N.W.2d 888, 891 (N.D.1972):
6. Where damages obviously have been suffered and there is no definite evidence available for an exact determination of the amount of damages resulting from a breach of contract, the best evidence which the circumstances will permit is all the law requires.
7. The uncertainty which prevents recovery of damages is the uncertainty of the fact of damages, not the uncertainty of the amount. Where it is reasonably certain that substantial damages have resulted, mere uncertainty as to the exact amount will not preclude recovery.
“In a case where the amount of damages may be hard to prove, the amount of damages is to be left to the sound discretion of the finder of facts.” R.W.S. Investments v. Mid-Am Restaurants, Inc., 459 N.W.2d 759, 764 (N.D.1990).

Keller v. Bolding, 2004 ND 80, ¶ 21, 678 N.W.2d 578. If the trier of fact in this case determines Farmers lost existing and potential clients because of Schirado’s wrongful conduct, damages “obviously have been suffered” and any uncertainty goes to the amount, not the fact, of damages. The determination of damages, if any, is therefore left to the sound discretion of the trier of fact at trial.

V

[¶ 18] The district court also granted summary judgment to Schirado on his counterclaim for the balance of his Contract Value payments. Schirado’s entitlement to those payments under the contract is intertwined with Farmers’ claims of breach of contract and tort, and may be affected by the resolution of those issues at trial. Accordingly, we reverse the summary judgment granting Schirado the remainder of his Contract Value payments.

VI

[¶ 19] We have considered the remaining issues and arguments raised by the parties and they are either unnecessary to our decision or are without merit. The district court erred in. determining that there were no genuine issues of material fact and that Schirado was entitled to judgment as a matter of law. We reverse the summary judgment and remand for further proceedings in accordance with this opinion.

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


text:
    2006 ND 135
    STATE of North Dakota, Plaintiff and Appellee v. Gloria GRESZ, Defendant and Appellant.
    No. 20050401.
    Supreme Court of North Dakota.
    June 29, 2006.
    James A. Hope (argued), Assistant State’s Attorney, Dickinson, ND, for plaintiff and appellee.

      Camille O’Kara Hann (argued), Dickinson, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Gloria Gresz appealed from a criminal judgment entered upon a jury verdict convicting her of disorderly conduct. We affirm.

I

[¶2] Ed and Leona Praus operate an auction service in western North Dakota. Ed and Leona Praus claimed to have difficulties in the past with Gresz causing a ruckus at their auctions. Gresz believes various members of the Praus family have broken into her house and car to steal her property on numerous occasions. At trial, Gresz claimed the Prauses sold her stolen property at auction which required Gresz to buy her property back.

[¶ 3] The current charge of disorderly conduct arose from an incident between Gresz and Ed Praus at a Dickinson Trinity Mardi Gras fundraiser held on January 30, 2005. Varying testimony was given about what happened. An observer of the incident testified Gresz said to Ed Praus in a loud voice in front of 80-100 people: “You fucking son of a bitch, get the hell out of here, God damn you.” He testified she continued to shout obscenities. Leona Praus did not directly observe the incident but testified that Gresz said to her: “And you stay out of my house.” She also testified Gresz had been disruptive at auctions for a year and a half telling potential customers their auction items were stolen property. Ed Praus testified that Gresz yelled at him in a loud voice in front of 25-30 people that he was a “ ‘son-of-a-bitch, and damn pig.’ And she says, ‘Quit stealing stuff from my house and out of my car.’ ”

[¶ 4] Gresz testified she became upset when she noticed some items at the auction. She claimed the items were stolen irom her house. When she saw the Praus family, she became nervous because, as she described it:

[T]hese people are horrendous criminals. They’ve been using a lock pick on my mobile home in Belfield as well as my home on Highway 10. They’ve been using a lock pick on my vehicles, too. They’ve hauled my property into their auctions. I’ve had to buy my property back four to five times and, still they come back and pick it up and take it to another auction. I found my property at a Beach auction more than once at the Beach Community auction and also auctions down at New Leipzig, even as far as New Leipzig. Delvin Praus is very handy with the lock pick. I want him out of my home. I don’t want him near me. That is the truth.

She testified she firmly asked Ed Praus to stay away from her and to stay out of her house. She claimed a few people witnessed the event. Gresz testified she made her statements because she was afraid.

I noticed Ed Praus was coming around the corner quite rapidly like he was right on my he[e]ls and that is the point I got really, really upset and really nervous and really frightened. So, I turned around and I told him to leave me alone and just stay away from me. I informed him again because I had been out to their auctions and I noticed my stolen property showing up at their auction—

Gresz claimed she did not use obscenities during the incident. She testified that she merely said:

“You stay away from me” because I have feared this man. I know that he carries a gun. I know that Delvin and Kelly Praus they are violent people. They showed up at the [ ] place which was across the street from my mobile home in Belfield and those people were into crime, they were into drugs, they were into prostitution. I have fear of them.

[¶ 5] During closing arguments to the jury, Gresz’s attorney argued that Gresz made her statements because she thought she was defending herself from people who wrongfully entered her property. On appeal, Gresz claims the district court committed obvious error by not including a jury instruction on self-defense. At no time during the proceedings did Gresz object to the instructions given to the jury.

II

[¶ 6] If there is evidence to support a self-defense claim, the accused is entitled to an instruction on it. State v. Olander, 1998 ND 50, ¶20, 575 N.W.2d 658. We review the sufficiency of the evidence for support of a jury instruction in the light most favorable to the defendant. State v. Schumaier, 1999 ND 239, ¶ 9, 603 N.W.2d 882.

[¶ 7] Jury instructions must correctly and adequately inform the jury of the applicable law. State v. Erickstad, 2000 ND 202, ¶ 16, 620 N.W.2d 136. The procedure for requesting and objecting to jury instructions is set forth in N.D.R.Crim.P. 30. To preserve an appellate challenge to a jury instruction, a party must specifically object to a court’s proposed instruction. Olander, 1998 ND 50, ¶ 10, 575 N.W.2d 658. The failure to adequately preserve an issue for review limits this Court’s inquiry to whether the court’s failure to instruct the jury was obvious error affecting substantial rights. Id. at ¶ 11. Under N.D.R.Crim.P. 52(b) , “[a]n obvious error or defect that affects substantial rights may be considered even though it was not brought to the court’s attention.” The power to notice obvious error is done cautiously and only in exceptional circumstances where a serious injustice has been done to the defendant. State v. Moran, 2006 ND 62, ¶ 26, 711 N.W.2d 915. We may notice an obvious error if there was (1) error, (2) that is plain, and (3) affects substantial rights. Id. (citing State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765).

[¶ 8] From our review of the evi-dentiary record, we cannot say the district court committed obvious error by failing to include a jury instruction for self-defense. Self-defense is defined in N.D.C.C. § 12.1-05-03: “A person is justified in using force upon another person to defend himself against danger of imminent unlawful bodily injury, sexual assault, or detention.”

[¶ 9] This case turns on what “force” means for purposes of self-defense. We need not look any further than the definition section of the criminal code which defines force as “physical action.” N.D.C.C. § 12.1-01-04(11). At oral argument, Gresz argued force for self-defense purposes can be brought about by words alone. In the self-defense context, physical action upon another person is a requirement of force. Even words that are shouted would not meet the common understanding of the statutory definition of “force.”

[¶ 10] Gresz did not allege physical action was used by either party. Viewing the evidence in the light most favorable to Gresz, there was testimony that Gresz became nervous and frighten because Ed Praus was right on her heels. There was also testimony that Gresz asked Ed Praus to leave her alone and to stay away from her. But absent from all testimony given at trial is evidence that physical action was used upon another person. Without a showing of physical action upon another person, we cannot say the failure to instruct the jury on self-defense was error, let alone obvious error. We affirm.

[¶ 11] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

concurring in the result.

[¶ 12] I concur in the result only, because the majority unnecessarily repeats crude obscenities and republishes defamation by unnecessarily including the names of those victimized by defamatory statements. See Lovcik v. Ellingson, 1997 ND 201, ¶ 18, 569 N.W.2d 697 (Sandstrom, J., concurring in the result).

[¶ 13] Dale V. Sandstrom

      . This rule was stylistically amended effective March 1, 2006. Because the changes to the rule were stylistic and the application of the new rule does not work an injustice to the parties, the amended version of the rule applies on appeal. State v. Genre, 2006 ND 77, ¶ 36 n. 1, 712 N.W.2d 624.


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

text:
    2006 ND 137
    Robert JOHNSON, Petitioner and Appellee v. David A. SPRYNCZYNATYK, Commissioner, North Dakota Department of Transportation, Respondent and Appellant.
    No. 20050449.
    Supreme Court of North Dakota.
    June 29, 2006.

      Jeff L. Nehring, Peterson & Nehring, PLLP, Williston, ND, for petitioner and appellee.
    Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert Johnson was arrested for driving under the influence of alcohol. At an administrative hearing, the hearing officer suspended Johnson’s driving privileges for 91 days. Johnson appealed to the district court and the district court reversed the suspension and reinstated Johnson’s driving privileges. The Director of the North Dakota Department of Transportation (DOT) appealed the district court’s decision asking that the district court decision be reversed and the hearing officer’s decision reinstated. We affirm.

I

[¶ 2] At the administrative hearing, Officer Ian Wise testified that on August 30, 2005, at approximately 12:43 a.m., he was patrolling in his squad car, traveling at the posted speed limit of 25 miles per hour, when he began to rapidly approach a vehicle driving in front of him. Officer Wise testified he paced the vehicle and determined the vehicle was traveling 8-10 miles per hour in the 25 mile per hour zone. After determining the vehicle’s approximate speed and following the vehicle for two blocks, Officer Wise stopped the vehicle based on its slow speed. Officer Wise’s testimony indicated he observed no erratic driving or other indications of suspicious behavior from the driver of the vehicle.

[¶ 3] Officer Wise testified that when he approached the vehicle he smelled the odor of alcohol and noticed the driver’s eyes were bloodshot. Officer Wise testified the driver, Johnson, admitted to consuming two alcoholic beverages. Officer Wise testified he had Johnson perform five field sobriety tests and Johnson failed all five. Based on his observations and testing, Officer Wise arrested Johnson for driving under the influence of alcohol.

[¶ 4] The hearing officer found that traveling 8-10 miles per hour in a 25 mile per hour zone is inordinately slow, sufficiently erratic to warrant further investigation, and based on Officer Wise’s training and experience, it was reasonable for him to stop Johnson’s vehicle. The hearing officer suspended Johnson’s driving privileges for 91 days.

[¶ 5] The district court reversed the hearing officer’s decision finding the arresting officer did not have the requisite reasonable and articulable suspicion to stop Johnson’s vehicle for traveling 8-10 miles per hour in a 25 mile per hour zone. The district court reinstated Johnson’s driving privileges. On appeal, the DOT argues Officer Wise had sufficient reasonable and articulable suspicion to stop Johnson’s vehicle and therefore the stop was justified and the hearing officer’s decision suspending Johnson’s driving privileges should be reinstated.

II

[¶ 6] “Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.” Anderson v. Director, N.D. Dept. of Trans., 2005 ND 97, ¶ 6, 696 N.W.2d 918. “Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

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

Id. “On an appeal from a district court’s ruling on an administrative appeal, our Court reviews the agency’s order in the same manner.” Id. at ¶ 7.

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

[¶ 8] This Court has “discussed three situations that provide an officer reasonable and articulable suspicion to stop a vehicle: (1) when the officer relied on a directive or request for action from another officer; (2) when the officer received tips from other police officers or informants, which were then corroborated by the officer’s own observations; and (3) when the officer directly observed illegal activity.” Anderson, 2005 ND 97, ¶ 9, 696 N.W.2d 918. The DOT argues the activity observed by Officer Wise, a vehicle traveling 8-10 miles per hour in a 25 mile per hour zone, was enough, by itself, to provide reasonable and articulable suspicion to stop the vehicle.

[¶ 9] “The reasonable suspicion standard must be objective and is based on the totality of the circumstances.” Kappel v. Director, N.D. Dept. of Trans., 1999 ND 213, ¶ 7, 602 N.W.2d 718. Reasonable suspicion to justify a stop is present when a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential criminal activity. Id. “The reasonable suspicion standard is not as exacting as the probable cause standard.” Id. “Nevertheless, a mere hunch illegal activity is taking place is not enough to justify the detention of a motorist.” Id. “An investigative stop of a moving vehicle must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and mere curiosity, suspicion, vague hunches, or other non-objective facts will not suffice.” Salter v. N.D. Dept. of Trans., 505 N.W.2d 111, 114 (N.D.1993). “The mere fact that a driver is traveling at a slower than usual speed on a roadway does not by itself create a reasonable suspicion of driving under the influence of alcohol or of other illegal activity.” State v. Brown,, 509 N.W.2d 69, 71 (N.D.1993).

Ill

[¶ 10] In this case there is no evidence of erratic driving, sharp veering, or any of the other factors present in prior cases. The DOT concedes there was no minimum speed limit on the road where Johnson was stopped. However, the DOT argues the speed of Johnson’s vehicle was so slow that it was impeding traffic in violation of N.D.C.C. § 39-09-09(1), and Officer Wise had a reasonable and articula-ble suspicion to stop Johnson’s vehicle because Johnson was violating that statute.

[¶ 11] N.D.C.C. § 39-09-09(1) provides:

No person may drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

[¶ 12] The only evidence presented to support the DOT’s argument is Officer Wise’s testimony stating Johnson was traveling 8-10 miles per hour in a 25 mile per hour zone. Officer Wise’s testimony indicates he was unaware of any other vehicles that were impeded by Johnson’s slow speed. In Salter, we held evidence that the driver was traveling 30-35 miles per hour in a 50 mile per hour zone without further evidence of illegal activity, such as erratic driving or clear facts showing traffic was impeded in violation of N.D.C.C. § 39-09-09(1), did not support a conclusion that the arresting officer had a reasonable and articulable suspicion of a violation justifying a stop. Salter v. N.D. Dept. of Trans., 505 N.W.2d 111, 114 (N.D.1993). In Brown, we held evidence that the driver was traveling at a slower than usual speed, with no further evidence of illegal activity, did not alone create a reasonable and articulable suspicion justifying a stop. State v. Brown, 509 N.W.2d 69, 71 (N.D.1993).

[¶ 13] The DOT argues the totality of the circumstances, namely Johnson’s slow speed coupled with the fact that this stop was made in the early morning hours around 12:43 a.m., provides the requisite reasonable and articulable suspicion of illegal activity. In State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992), we held “the time of night, the burglary possibilities, the safety of the occupant, if the car was stolen, if someone needed assistance, and the fact that Sarhegyi began to pull away from [the officer] as [the officer] entered the lot” were not legally sufficient bases for reasonable suspicion “when examined in light of existing case law.” We have also held that an officer’s unfamiliarity with the vehicle, his awareness of several burglaries in the area, and the vehicle’s location in the vicinity of a liquor store at 1:50 a.m., after business hours, amounted to no more than a vague hunch of illegal activity and did not justify a stop because there was no objective evidence that the driver had violated or was about to violate a law. State v. Robertsdahl, 512 N.W.2d 427, 428 (N.D.1994). People travel on our roads at all hours of the day and it is not unusual for people to be traveling at 12:43 a.m. Furthermore, it is logical that drivers may reduce their speeds when traveling in the dark. These two non-suspicious factors, even when taken together, did not provide the requisite reasonable and artic-ulable suspicion to justify stopping Johnson’s vehicle.

[¶ 14] The facts of this case are not enough to provide a reasonable and artic-ulable suspicion of illegal activity. Arguably there may be a case in which the traveling speed is so slow so as to, by itself, create a reasonable and articulable suspicion to stop a vehicle. The circumstances surrounding this stop do not provide that case. Johnson was driving 8-10 miles per hour in town in a 25 mile per hour zone. It is not that unusual to encounter a vehicle driving through a residential or densely populated area at similar speeds which are slower than the posted speed limit.

[¶ 15] In accord with our holdings in Brown and Salter, we conclude the arresting officer did not have the requisite reasonable and articulable suspicion to stop Johnson’s vehicle. We affirm the district court’s judgment reinstating Johnson’s driving privileges.

[¶ 16] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 17] I dissent for two reasons. First, the majority, rather than examine all the facts in their totality, has chosen to disregard facts that are critical to the analysis of whether Officer Wise had a reasonable and articulable suspicion to stop Johnson’s vehicle. Second, the totality of the circumstances demonstrates Officer Wise had a reasonable and articulable suspicion that criminal activity was occurring. Therefore, I would reverse the district court and reinstate the decision of the administrative hearing officer.

I

[¶ 18] The majority has disregarded facts that are critical to a reasonable and articulable analysis, specifically that Johnson had created a safety hazard and Officer Wise relied on his experience and training before stopping Johnson. The majority correctly notes, at ¶ 9, that “[t]he reasonable suspicion standard must be objective and is based on the totality of the circumstances.” Kappel v. Dir., N.D. Dep’t of Transp., 1999 ND 213, ¶ 7, 602 N.W.2d 718. The majority’s recitation of the facts, however, does not provide the totality of what Officer Wise considered before he stopped Johnson.

[¶ 19] The majority notes, at ¶ 2, that the events leading up to the stop occurred early in the morning of August 30, 2005, at approximately 12:43 a.m. Officer Wise testified he was traveling northbound on Second Avenue West near the avenue’s intersection with Second Street in Williston at the posted speed limit of twenty-five miles per hour. According to Officer Wise, he noticed another northbound vehicle traveling slowly ahead of him. Officer Wise testified he rapidly caught up to the other vehicle, approximately at the intersection of Second Avenue West and Ninth Street, and had to brake to avoid a collision because the other vehicle was traveling more slowly than Officer Wise had first believed. According to Officer Wise, he paced Johnson for the next two blocks at eight to ten miles per hour and stopped him after they crossed the intersection at Eleventh Street. Assuming Officer Wise was driving at twenty-five miles per hour and Johnson was driving at ten miles per hour, Johnson would have traveled approximately three blocks during the time Officer Wise drove the seven blocks it took him to catch up to Johnson. Officer Wise then observed Johnson driving at eight to ten miles per hour for another two blocks before initiating the traffic stop. Therefore, Officer Wise would have observed Johnson driving well below the speed limit for approximately five blocks.

[¶ 20] The majority, at ¶ 14, states, “It is not that unusual to encounter a vehicle driving through a residential or densely populated area at similar speeds which are slower than the posted speed limit.” The record, however, contains no evidence to support this statement. Perhaps a driver might commonly slow to below the speed limit for a short distance in an attempt to find someone’s home or business, but those are not the facts presented. Johnson was driving eight to ten miles per hour for five blocks very early in the morning. There is nothing in the record to reflect that his behavior was anything but unusual.

[¶21] Officer Wise testified he knew through his training and experience that rapid braking, swerving, line-crossing, and traveling well under the posted speed limit are all signs of impaired driving. He also testified that driving too slowly creates a safety hazard for others and that, in his experience, drivers going that slowly have contributed to rear-end accidents. Thus, Officer Wise had the following facts on which to rely when deciding whether to stop Johnson: Johnson was driving very slowly after midnight, and Officer Wise’s training and experience taught him that very slow driving is a sign of impairment and that driving extremely slowly may constitute a safety hazard. After considering all the facts, one can see that Officer Wise relied on more than Johnson’s slow speed and the time of day before making the traffic stop, contrary to what the majority claims.

II

[¶ 22] An examination of the totality of the circumstances Officer Wise relied on demonstrates that he had a reasonable and articulable suspicion that criminal activity was occurring when he made the traffic stop. The majority, at ¶ 8, notes this Court has discussed three different events that give an officer reasonable and articu-lable suspicion, including “when the officer directly observed illegal activity.” As the Ohio Court of Appeals has noted, however, “[I]t is a common misperception that, in order to effectuate a Terry stop, the police must actually observe the person engaging in criminal activity.” State v. Frank, Nos. C-990079, C-990080, C-990081, 2000 WL 192132, at *3 (Ohio Ct.App. Feb.18, 2000). We have also acknowledged that actual illegal activity is not required: “the reasonable suspicion standard does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.” Kappel, 1999 ND 213, ¶ 10, 602 N.W.2d 718. In Kappel, we relied on the United States Supreme Court’s statement in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), that investigating officers may rely on common sense when deciding whether to stop a vehicle:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfin-ders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Cortez, 449 U.S. at 418, 101 S.Ct. 690 (emphasis added). Therefore, Officer Wise was allowed to take all the circumstances known to him and rely on his common sense and experience when he decided to stop Johnson.

[¶ 23] Frank involved a traffic stop that occurred after a law enforcement officer had observed a vehicle traveling fifteen to twenty miles per hour in a twenty-five to thirty-five mile-per-hour zone. Frank, 2000 WL 192132, at *1. The officer had been notified by another officer that the driver might be impaired. Id. The officer also observed other cars being forced to pass the slow-moving vehicle. Id. The Ohio Court of Appeals noted Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), did not involve any overtly illegal activity:

Terry itself did not involve any overt illegal activity; rather, all the detective observed in that case was the defendant and his confederates loitering outside a store in the middle of the day, pausing to stare in the window and then conferring among themselves. Notwithstanding the perfectly legal nature of their presence in front of the store, the United States Supreme Court held that an experienced detective was justified in suspecting the confederates of planning a daylight robbery and was therefore entitled to stop and ask them questions. It is important to remember, in this regard, that a Terry stop is an investigatory tool and does not require certitude, or probability, but only a reasonable suspicion, based upon specific, articulable facts, that criminal activity is afoot.

Frank, 2000 WL 192132, at *3. The court held the officer’s traffic stop was based on a reasonable and articulable suspicion. Id. at *5.

[¶24] In State v. Baudhuin, the Wisconsin Supreme Court held a law enforcement officer was justified in stopping a driver who was driving slowly and impeding traffic. 141 Wis.2d 642, 416 N.W.2d 60, 64 (1987). The officer stopped the driver after pacing the driver’s speed at no more than seventeen miles per hour in a twenty-five mile-per-hour zone at 2:00 a.m. Id. at 61. The officer was directly behind the driver, and other vehicles had begun to back up behind the officer’s car because of the slow-moving vehicle. Id. The officer’s subjective reason for stopping the ear was to learn whether there was something mechanically wrong with the driver’s car. Id. The court held the officer’s subjective intent was not relevant because the objective facts presented a reasonable and articula-ble suspicion of criminal activity. Id. at 63.

[¶ 25] The majority, at ¶ 12, rejects the State’s argument that Johnson was impeding traffic and notes that Johnson was not actually impeding traffic at the time of the traffic stop. This presumes, however, that Johnson must actually have violated the statute that prohibits impeding traffic before a stop could be justified. This is not required. If actual criminal activity were required, the reasonable-and-articulable-suspicion standard would not be necessary because the law enforcement officer would have probable cause to arrest the person. Frank, 2000 WL 192132, at *3.

[¶ 26] The majority cites State v. Sarhegyi, 492 N.W.2d 284 (N.D.1992), and State v. Robertsdahl, 512 N.W.2d 427 (N.D.1994), for support that the time of day of the stop was irrelevant. In Sarhe-gyi, however, the only other facts the officer had to rely on were the defendant’s location in the lot of a closed business and the defendant’s attempt to move when approached by the officer. 492 N.W.2d at 285. And in Robertsdahl, the officer relied only on the occurrence of several burglaries in the general area and his unfamiliarity with the defendant’s vehicle. 512 N.W.2d at 427.

[¶ 27] In this case, Johnson’s actions are more suspicious. Johnson was driving well below the speed limit early in the morning of August 30. Officer Wise, relying on his experience, testified that driving below the speed limit is a sign of impaired driving and that Johnson was a safety risk because his slow speed could contribute to a traffic accident. Officer Wise observed Johnson driving well below the speed limit, observed a present safety risk, and relied on his experience that driving below the speed limit is a sign of impairment. These facts are an objective, common-sense manifestation that could lead a reasonable officer, or any reasonable person for that matter, to suspect potential criminal activity. Although the officer’s vehicle was impeded, other vehicles actually being impeded is not required for an officer to have a reasonable investigatory suspicion that criminal activity is afoot. Officer Wise had a reasonable and articulable suspicion, and the traffic stop was justified.

[¶ 28] By focusing individually on Johnson’s slow speed and individually on the time of day, the majority removes these facts from the totality of the circumstances that Officer Wise weighed when deciding to stop Johnson. In doing so, the majority fails to follow the totality-of-the-circumstances analysis required by our caselaw.

Ill

[¶ 29] I would reverse the district court and reinstate the department’s order.

[¶ 30] Dale V. Sandstrom


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 138
    STATE of North Dakota, Plaintiff and Appellee v. Jason Wayne OIEN, Defendant and Appellant.
    No. 20050451.
    Supreme Court of North Dakota.
    June 29, 2006.

      Tracy Jo Peters (argued) Assistant State’s Attorney, and Renata Selzer (on brief), third-year law student, Fargo, N.D., for plaintiff and appellee.
    Mark Anthony Beauchene, Fargo, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Jason Oien appealed his conviction for possession of a controlled substance with intent to deliver and possession of drug paraphernalia, entered upon a conditional plea of guilty after the district court denied his motion to suppress. We affirm, concluding Oien did not have a reasonable expectation of privacy in the premises searched, and therefore may not challenge the search that led to his arrest.

I

[¶ 2] Sarah Jones, Oien’s girlfriend, was renting an apartment from the Housing Authority of Cass County. In March 2005, police were called to Jones’ apartment after Jones and Oien were involved in a domestic dispute. As a result of this incident, Vicki Heilman, the property manager for the Housing Authority, sent the West Fargo Police Department a “no trespass” order indicating Oien was not allowed on Housing Authority property, including Jones’ apartment. Heilman testified at the suppression hearing that Jones’ lease contained a provision allowing the Housing Authority to exclude individuals from the property, and failure to comply with the provision could result in termination of the lease. Heilman gave Jones verbal and written notice Oien was not allowed on the property. Heilman sent a copy of the written notice to Oien at his mother’s residence. At the suppression hearing, Jones testified Oien would stay at his mother’s residence or with friends when he did not stay with her. Jones also testified she did not inform Oien he was not allowed on Housing Authority property because she wanted him to continue to come to her apartment.

[¶3] On June 20, 2005, Heilman received an anonymous tip that Oien was in Jones’ apartment. Heilman contacted the West Fargo Police Department and asked an officer to accompany her to the apartment because she was afraid Oien might become violent. Two officers accompanied Heilman to Jones’ apartment. Upon arriving at the apartment, Heilman knocked on the back door and spoke to an individual doing repair work in the kitchen. The individual told Heilman to go around to the other door, but Heilman entered through the back door with one of the officers. Heilman called Jones’ name and Jones appeared at the top of the stairs on the second floor of the apartment. Heilman asked Jones if Oien was in the apartment. Initially Jones said no, but when she was asked again, she hesitated when answering. Twice Heilman asked Jones if they could search the apartment for Oien, and Jones said no both times. Heilman asked to search the apartment a third time and advised Jones she would be evicted if she did not allow them to search. Jones then consented to the search.

[¶ 4] Heilman and the officer searched the upstairs area of the apartment. In a second bedroom, the officer moved a mattress blocking the entry of a closet and found Oien hiding in the closet. Oien was ordered out of the closet and was searched for weapons. The officer noticed the smell of marijuana, looked in the closet, and saw a metal cake pan containing marijuana.

[¶ 5] Oien was arrested and charged with possession of a controlled substance, with intent to deliver' and possession of drug paraphernalia. Oien moved to suppress all of the evidence, arguing the entry and search of Jones’ apartment were illegal because the police did not have a search warrant to enter the premises and the exceptions to the warrant requirement were not applicable. The district court denied Oien’s motion, finding Oien did not have standing to challenge the entry and search because he was trespassing, and finding the officers were performing a caretaking function. Oien conditionally plead guilty, reserving the right to appeal the denial of his motion to suppress.

II

[¶ 6] Oien argues the entry and search of Jones’ apartment were in violation of the Fourth Amendment, and the district court erred in finding he did not have standing to challenge the entry and search of the residence because he was trespassing. Oien argues he was an overnight guest in Jones’ apartment, and therefore is entitled to the protections of the Fourth Amendment.

[¶7] Our standard for reviewing a district court’s decision on a motion to suppress is well established:

We will defer to the [district] court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affir-mance, as we recognize the [district] court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a [district] court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the [district] court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Linghor, 2004 ND 224, ¶ 3, 690 N.W.2d 201 (quoting State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106).

[¶ 8] The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article 1, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures. Generally, evidence illegally seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule. See State v. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387. But see Hudson v. Michigan, — U.S. -, 126 S.Ct. 2159, — L.Ed.2d - (2006). An individual is only entitled to the protection of the exclusionary rule if the individual’s own Fourth Amendment rights were violated and not the rights of a third party. State v. Benjamin, 417 N.W.2d 838, 839 (N.D.1988). In Raleas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court ended the reliance on “standing” to ascertain whether an individual is entitled to claim the protections of the exclusionary rule, and concluded the proper inquiry is whether “the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” See also State v. Huether, 453 N.W.2d 778, 780 n. 1 (N.D.1990). The “capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a [reasonable] expectation of privacy in the invaded place.” Rakas, at 143, 99 S.Ct. 421. Although the court no longer makes a determination of whether an individual has “standing” in the traditional sense, the term continues to be used to refer to the concept of “reasonable expectation of privacy.” Huether, at 780 n. 1.

[¶ 9] A Fourth Amendment search does not occur unless the government violates an individual's subjective expectation of privacy that society has recognized as reasonable. Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). This Court has recognized that a guest generally has a reasonable expectation of privacy in a hosts home. State v. Ackerman, 499 N.W.2d 882, 885 (N.D.1993). Although a guest generally has a reasonable expectation of privacy in the premises, someone who is trespassing or has been legitimately expelled from the premises searched does not have an expectation of privacy that society recognizes as reasonable. See Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421 (burglar may have subjective expectation of privacy, but it is not reasonable because presence is wrongful); United States v. Rambo, 789 F.2d 1289, 1295-6 (8th Cir. 1986) (no expectation of privacy in a place the individual has been justifiably expelled from); Thomas v. State, 274 Ga. 156, 549 S.E.2d 359, 366 (2001) (defendants, who sublet a townhouse, had no expectation of privacy after landlord gave them notice that they were trespassing); Commonwealth v. Morrison, 429 Mass. 511, 710 N.E.2d 584, 586 (1999) (no expectation of privacy because order for protection forbid presence in place searched). It would be irrational to say that society recognizes as reasonable an individual’s subjective expectation of being free ‘from police intrusion upon his privacy in a place after he has been legitimately excluded from that place. Rambo, at 1296.

[¶ 10] Although Oien claims he was an overnight guest in Jones’ apartment, and therefore had a reasonable expectation of privacy, the district court found Oien was trespassing:

The Court, first of all, is going to make a finding specifically that it’s not plausible that [Oien] did not know that he was not to be on the property. The Court has in front of it, State’s Exhibit # 1, which was given to Ms. Jones on March 1, 2005. She was actually served with it, and this alleged violation occurred on or about June 20, 2005. It is uncontrovert-ed that a copy was sent to his mother’s place, which according to this witness, he resides sometimes. I think that the landlord did what she could in order to make sure that [Oien] knew he was not to be on that property, as her lease allows her to do.
Her information was that he was in the property, she called the West Fargo Police, which was apparently not unusual, but in this particular case, because she knew of his violent propensities, I think she was taking precautions. Went to the home to investigate, they followed her.... As it turns out, what there was in the closet was [Oien], crouching down, which again does underscore my belief that he knew he wasn’t supposed to be there....
But I don’t believe a trespasser who knows he’s trespassing has standing to object to a landlord search, and that further, she was accompanied by police officers for her own protection.

[¶ 11] Whether Oien was trespassing is a question of fact. See State v. Bertram, 2006 ND 10, ¶ 7, 708 N.W.2d 913 (knowledge element of criminal trespass statute is a question of fact). We defer to the district court’s findings of fact unless the findings are clearly erroneous. Huether, 453 N.W.2d at 781. A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, the court is left with a definite and firm conviction that a mistake has been made. State v. Nelson, 2005 ND 59, ¶ 4, 693 N.W.2d 910.

[¶ 12] The district court found the terms of Jones’ lease allowed the landlord to exclude Jones’ guests from the property, and Heilman issued and sent Oien notice of the “no trespass” 'order forbidding Oien from being on Housing Authority property. The court found Oien knew he was not allowed on the property and knew he was trespassing. The court could infer Oien’s knowledge based upon the evidence presented, including Heil-man’s testimony that she gave Jones verbal and written notice Oien was not allowed on the property; Heilman sent a letter to Oien’s mother’s residence, where Oien often stays, informing him that he was not allowed on Housing Authority property; and the officer found Oien hiding in a closet, which the court concluded Oien would not do unless he knew he was not allowed on the property. After considering the evidence, the court found it was implausible Oien did not know he was not allowed on the property, and therefore Oien did not have a reasonable expectation of privacy.

[¶ 13] The district court’s findings are supported by the evidence and are not clearly erroneous. Although Oien may have been an overnight guest, we conclude he is not entitled to the Fourth Amendment protections because he did not have a reasonable expectation of privacy in Jones’ apartment after he became aware the landlord legitimately forbid him from being on Housing Authority property.

Ill

[¶ 14] We conclude the district court did not err in denying Oien’s motion to suppress. We have considered the remaining issues and arguments raised by the parties, and conclude it is unnecessary to address those issues. We affirm Oien’s conviction.

[¶ 15] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2006 ND 143
    In the Interest of J.S. Daisy Van Valkenburg, M.D., Petitioner and Appellee v. J.S., Respondent and Appellant.
    No. 20060156.
    Supreme Court of North Dakota.
    June 29, 2006.

      Leo A. Ryan, Special Assistant Attorney General, Jamestown, N.D., for petitioner and appellee.
    Jodie Koch Scherr, Valley City, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] J.S. appeals the district court’s treatment order continuing his hospitalization in the North Dakota State Hospital for one year. He argues the district court erred by not ordering a less restrictive alternative treatment. Holding that the district court did not err, we affirm.

I

[¶ 2] J.S., a 69-year-old male, has been a State Hospital patient since 1989. He is diagnosed with chronic paranoid schizophrenia, tardive dyskinesia, Type II diabetes, hypertension, and arthritis. He receives injections of Risperidone Consta, an anti-psychotic medication, for his schizophrenia; insulin to treat his diabetes; and prescription and over-the-counter medications to treat his hypertension and arthritis. This is J.S.’s eleventh appeal related to his hospitalization in the State Hospital. Interest of J.S., 2004 ND 159, 684 N.W.2d 657; Interest of J.S., 2003 ND 138, 667 N.W.2d 641; Interest of J.S., 2002 ND 7, 638 N.W.2d 45; Interest of J.S., 2001 ND 25, 625 N.W.2d 264; Interest of J.S., 2001 ND 10, 621 N.W.2d 582; Interest of J.S., 1998 ND 92, 578 N.W.2d 91; Interest of J.S., 545 N.W.2d 145 (N.D.1996); Interest of J.S., 530 N.W.2d 331 (N.D.1995); Interest of J.S., 528 N.W.2d 367 (N.D.1995); Interest of J.S., 499 N.W.2d 604 (N.D.1993).

[¶ 3] In April 2006, Daisy Van Valken-burg, M.D., employed with the State Hospital, petitioned to continue J.S.’s hospitalization for one year. According to the State Hospital, treatment other than hospitalization was unavailable because J.S. would not “cooperate with any community placement” and because he would be a danger to himself or others. After a hearing on the petition, the district court, finding J.S. was a danger to himself and others and no alternative to hospitalization was available, ordered J.S.’s hospitalization be continued for one year.

[¶ 4] On appeal, J.S. argues the district court erred by not ordering a less restrictive treatment alternative. Dr. Van Valk-enburg argues the district court did not err.

[¶ 5] The district court had jurisdiction under N.D.C.C. § 25-03.1-03. The appeal was timely under N.D.R.App.P. 2.1(a) and N.D.C.C. § 25-03.1-29. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 25-03.1-29.

II

[¶ 6] A person in need of treatment is entitled to the least restrictive treatment that will meet the person’s treatment needs. N.D.C.C. § 25-03.1-21(1). “To comply with the requirements of N.D.C.C. § 25-03.1-21(1), the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs, and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which an individual may inflict on himself or others.” Interest of D.P., 2001 ND 203, ¶ 12, 636 N.W.2d 921. “The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative.” Interest of D.Z., 2002 ND 132, ¶ 10, 649 N.W.2d 231. “In some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.” J.S., 545 N.W.2d at 148. We apply a “more probing clearly erroneous standard” when reviewing a continuing treatment order. J.S., 2002 ND 7, ¶ 4, 638 N.W.2d 45. “Under this more probing standard, ‘we will affirm an order ... unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.’ ” Interest of M.M., 2005 ND 219, ¶ 9, 707 N.W.2d 78 (quoting Interest of P.B., 2005 ND 201, ¶ 5, 706 N.W.2d 78). We will not set aside the district court’s findings of fact unless they are clearly erroneous. Interest ofD.P., at ¶ 3. “A district court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made.” Id.

[¶ 7] Alan Broadhead, M.D., a psychiatrist with the State Hospital, testified for the State Hospital that J.S. accepts his medication at the State Hospital but that the day before the hearing J.S. said he does not need the medication and will not take it if he is discharged. Dr. Broadhead testified J.S. does not believe he has diabetes or needs insulin to treat it. He testified J.S. does not believe he is mentally ill or in need of treatment.

[¶ 8] Regarding J.S.’s risk of harm to himself and others, Dr. Broadhead testified, “If he was not treated there would be a great likelihood of a relapse back into the florid delusional thinking which precipitates violent outbursts, threats to himself and to others, [and] threats to himself for not caring for the diabetes which he doesn’t believe he has.” He testified that if J.S.’s diabetes were not treated, the “likely result is that he would fairly quickly go into diabetic coma ... and it can be a life threatening situation.” Dr. Broadhead also testified that a relapse of his mental condition would endanger others. According to Dr. Broadhead, less restrictive treatment would require J.S. to take some responsibility for his mental illness and diabetes, but J.S. would not cooperate with anything less restrictive.

[¶ 9] J.S. testified on his own behalf. He testified he does not believe he has an illness. He testified he would not take medication if he were not forced to take it. He testified he wants the court to “take me off all the medicine and send me home.”

[¶ 10] The evidence presented at the hearing reflects that if J.S. will not take medication on his own, then he cannot safely be released into any less restrictive treatment. If he does not receive treatment for his schizophrenia, he faces a substantial likelihood of becoming violent and a danger to himself or others. J.S. also testified he does not believe he has any illnesses and would not take any medications if he were released. Without’his insulin, J.S. would likely fall into a diabetic coma, which could be fatal. His hypertension would also be a greater concern if he stopped taking medication for it. Therefore, the district court did not err when it found hospitalization was the least restrictive alternative.

[¶ 11] J.S. has been a State Hospital patient for an extraordinarily long period. The State Hospital must continue to seek treatment that meets J.S.’s needs and regularly review those needs. The evidence presented, however, reflects that the State Hospital is providing treatment currently in its power and does regularly review J.S.’s needs. Although the State Hospital needs to strive for treatments, including new and better treatments, that meet the needs of its patients, we cannot order a less restrictive alternative for J.S. when all the evidence presented, including J.S.’s own testimony, reflects that J.S. would not accept treatment for his conditions and' would be a danger to himself and others.

Ill

[¶ 12] We affirm the district court’s continuing treatment order.

[¶ 13] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, concur.


author: MARING, Justice.

text:
      2006 ND 140

    STATE of North Dakota, Plaintiff and Appellant v. Brett M. EHLI, Defendant and Appellee.
    Nos. 20060041, 20060042.
    Supreme Court of North Dakota.
    June 29, 2006.

      Allen M. Koppy, State’s Attorney, Man-dan, N.D., for plaintiff and appellant; submitted on briefs.
    Jodi L. Colling, Dickson Law Office, Bismarck, N.D., for defendant and appellee; submitted on briefs.
   MARING, Justice.

[¶ 1] The State appeals from the trial court’s memorandum opinion and order granting Brett Michael Ehli’s motion to suppress. The State’s appeal is moot. A subsequent order to dismiss, made by the State, was granted by the trial court. We therefore dismiss the appeal.

I

[¶ 2] On September 16-17, 2005, the North Dakota State Highway Patrol conducted a sobriety checkpoint in Morton County. The checkpoint was conducted from 10 p.m. until 2 a.m. and was set-up on the Bismarck Expressway, just before the Memorial Highway exit. At approximately 12:10 a.m. on September 17, 2005, Ehli entered the checkpoint, was stopped, and arrested for driving under the influence. Ehli was searched incident to the arrest and marijuana and marijuana paraphernalia was found in Ehli’s pant pocket.

[¶ 3] Ehli entered pleas of not guilty to charges of driving while under the influence, possession of drug paraphernalia, and possession of marijuana. Ehli also moved to suppress evidence, arguing that the checkpoint violated the Fourth Amendment because a motorist approaching the checkpoint had no way to avoid it. The trial court granted Ehli’s motion to suppress in a January 17, 2006, order.

[¶ 4] On January 18, 2006, the State moved to dismiss, citing the trial court’s order suppressing evidence. The State’s motion was granted on January 20, 2006. On February 7, 2006, the State filed its notice of appeal.

II

[¶ 5] Our decision in State v. Grager, 2006 ND 102, 713 N.W.2d 531, controls this case. In Grager, the State appealed a trial court’s order suppressing evidence and dismissing the prosecution against Grager. Id. at ¶3. We held that the State’s issues involving the suppression order were moot “because the State requested the district court dismiss the cases and it cannot appeal those dismissals.” Id. at ¶ 11. We stated:

When it becomes impossible for the Court to issue relief, no controversy exists and the issue is moot. We do not render advisory opinions and will dismiss an appeal if the issue becomes moot. If this Court were to decide the merits of the suppression argument, our decision would be purely advisory because the cases were withdrawn and the controversy no longer exists.

Id. (citation omitted). Section 29-28-07(5), N.D.C.C., authorizes appeals by the State from an order granting the suppression of evidence. Here, there is no evidence that the trial court was insisting, after it granted the suppression motion, that the cases proceed or be dismissed. The trial court dismissed the cases on the motion of the State.

Ill

[¶ 6] The appeal of the suppression order was rendered moot by the dismissal of the cases. We, therefore, dismiss the appeal.

[¶ 7] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.