author: LANSING, Judge.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee, on behalf of Holders of 7-1/2% Senior Convertible Notes due 2003 of Angeion Corporation, Appellant, v. ANGEION CORPORATION, Respondent.
    Nos. C3-99-2080, C7-00-386.
    Court of Appeals of Minnesota.
    Aug. 15, 2000.

      Judy A. Rogosheske, Michael H. Pink, Best & Flanagan LLP, Minneapolis, for appellant.
    Therese M. Marso, Robert R. Weinstine, Steven C. Tourek, Winthrop & Weinstine, P.A., Minneapolis, for respondent.
    Considered and decided by RANDALL, Presiding Judge, LANSING, Judge, and WILLIS, Judge.
   OPINION

LANSING, Judge.

This litigation involves the interpretation of an indenture. U.S. Bank, as trustee for Angeion Corporation noteholders, sued Angeion for defaulting on its obligation to make a repurchase offer to noteholders when it “conveyed, transferred, or leased all or substantially all of its assets or for injunctive relief.” On cross-motions for summary judgment, Angeion disputed that its sale and license of patents triggered the repurchase obligation. The district court agreed and granted summary judgment for Angeion. Because we conclude that the sale and license of patents constitutes an asset transfer within the meaning of the indenture, we hold that U.S. Bank has raised genuine issues of material fact on its claim for breach of the indenture and that summary judgment was premature. We reverse and remand for further discovery. But because U.S. Bank has not demonstrated that it lacks an adequate legal remedy or that it will suffer irreparable harm, we affirm the district court’s obder denying U.S. Bank’s temporary injunctive relief.

FACTS

Angeion incorporated in 1986 to develop, manufacture, and sell medical products. Initially, Angeion used its engineering and manufacturing technologies to custom design and manufacture products to customers’ specifications and devoted its research and development capabilities to designing proprietary products. In 1990, Angeion created a subsidiary to oversee intensified research into the development of laser catheter-ablation systems. The same year, Angeion acquired a company engaged in the development of implantable-cardioverter-defibrillator (ICD) systems.

Angeion sold its medical-accessory-products division in 1992 and focused its efforts on the development and production of the catheter-ablation and ICD systems. In 1997, Angeion entered into a joint venture with Synthelabo, a French pharmaceutical company, and its subsidiary, ELA Medical. In its 1998 annual-10-K report filed with the SEC, Angeion described itself as a company that designed, developed, and marketed ICDs and developed catheter-ablation technologies. Angeion ultimately developed a portfolio of about 150 patents and patent applications, including 99 U.S.issued patents, 8 approved-but-not-yet-issued U.S. patents, and 17 pending patent applications. Through its own portfolio and through cross-licensing, Angeion had access to more than 1,000 patents.

In 1996, Angeion sued CPI and its subsidiary, Guidant, Inc., for infringing four of Angeion’s ICD patents. CPI sued An-geion in September 1998 for infringement of several of its ICD patents.

In March 1998, Angeion issued a private-placement memorandum seeking sophisticated investors to buy the unsecured convertible notes that are at the base of this litigation. In April 1998, Angeion entered into an indenture with U.S. Bank as trustee for noteholders who purchased An-geion’s convertible notes in a private-placement offering. Angeion raised $22,150,000 through the 7½% convertible notes due, in 2003.

The placement memorandum incorporated Angeion’s 10-K for the fiscal year ending December 31, 1997, as well as recent quarterly reports and other documents filed with the SEC. The memorandum described Angeion as a company that designed, developed, manufactured, and marketed ICDs. The memorandum also disclosed risks of investment, including* Angeion’s continuing failure to make ■ a profit, the uncertainty of FDA approval-for its products, the need for additional financing, the impact of tough competition in the ICD market, the-importance of intellectual-property protection, and the uncertain results of the patent litigation with CPI.

In September 1998, Angeion entered an agreement with Cordis Webster, under which it transferred to Cordis Webster a small number of U.S. patents, U.S. pending patent applications, and patent applications. All of the patents and applications dealt with catheter-ablation technology. In exchange, Angeion received cash, future royalties, and funding for continued research in the catheter-ablation field.

In January 1999, Angeion reduced its workforce by 20%, iiicluding a 40% reduction of senior management. Angeion took the action to reduce its $2.5 million monthly cash “burn rate.” *

On April 8, 1999, Angeion announced its intention to “limit its participation in the ICD marketplace in order to redeploy its resources toward opportunities which may result in greater shareholder value.” An-geion stated it would “continue to explore strategic alternatives for the Company including potential license or sale of its assets.” In connection with its withdrawal from the ICD market, Angeion reduced its workforce by another 75%, retaining only employees needed for ongoing operations and to meet existing ICD obligations.

That same day, Angeion announced a settlement of the CPI patent litigation. Under the terms of the settlement, CPI paid $35 million for past infringement and future licensing. Angeion granted CPI nonexclusive licenses for all of its ICD patents. CPI agreed not to sue Angeion for certain of its ICD product lines, and, in return, Angeion agreed to pay royalties for use of patents licensed to CPI.

On May 12,1999, Angeion announced its withdrawal from its joint venture with ELA Medical. ELA Medical continued to distribute Angeion’s products under a supply agreement.

■ In June 1999, U.S. Bank received a letter from one of the noteholders, alleging that Angeion was in default on the indenture because it had sold all or substantially all of its assets and had failed to make a repurchase offer. U.S. Bank sent a letter to Angeion inquiring about the status of the company and warning that it may be in default. In August 1999, U.S. Bank sent a notice of default to Angeion; Angeion denied that it had defaulted.

On September 17, 1999, Angeion announced its intention to grant Medtronic a non-exclusive license to all of its ICD patents and patent applications for $9 million. On September 23, 1999, Angeion announced its intention to acquire all outstanding shares of Medical Graphics, Inc., a cardiopulmonary medical-device company, for $16.3 million in cash.

On September 24, 1999, U.S. Bank filed suit in district court, alleging that Angeion was in default on the indenture because it had sold all or substantially all of its assets and had not made a repurchase offer. U.S. Bank sought specific performance, equitable relief, declaratory judgment, imposition of a constructive trust, and damages. U.S. Bank then moved for a temporary injunction preventing Angeion from depleting its cash reserves. Angeion counterclaimed, alleging, among other things, breach of contract and interference with prospective economic advantage.

The district court denied U.S. Bank’s temporary-injunction motion, reasoning that the balance of harm weighed against granting the injunction. Angeion then moved for summary judgment on all of U.S. Bank’s claims. In turn, U.S. Bank moved for summary judgment on An-geion’s counterclaims, and served interrogatories on Angeion. Angeion refused to answer the interrogatories, asserting that U.S. Bank’s motion for summary judgment evidenced a concession that there were no material issues of fact and obviated further discovery. On February 9, 2000, U.S. Bank noticed a motion to compel discovery and Angeion noticed a motion for a protective order. Both motions were scheduled for hearing on February 23.

On February 22, the district court granted Angeion’s motion for summary judgment. The court concluded that, as a matter of law, Angeion had not conveyed or transferred all or substantially all of its assets because the catheter-ablation patents were a small part of Angeion’s intellectual-property portfolio and licensing of the ICD patent portfolio was not a conveyance, transfer, or lease of assets. The court reasoned that further discovery would be expensive and unnecessary.

U.S. Bank appeals both the entry of summary judgment and the denial of a temporary injunction.

ISSUES

I. Did U.S. Bank raise a genuine issue of fact in support of its claim that An-geion defaulted on the indenture by conveying, transferring, or leasing all ■or substantially all of its assets and failing to make a repurchase offer on the notes?

II. Did the district court abuse its discretion by denying U.S. Bank’s request for a temporary injunction to prevent Angeion from depleting its cash reserves?

ANALYSIS

I.

On appeal from summary judgment, we determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). The interpretation of indenture terms is essentially a question of contract law. Sharon Steel Corp. v. Chase Manhattan Bank, N.A., 691 F.2d 1039, 1049 (2d Cir.1982). Because the indenture contains a choice-of-law clause providing that New York law governs, we apply New York contract law to this dispute. See Milliken & Co. v. Eagle Packaging Co., 295 N.W.2d 377, 380 n. 1 (Minn.1980) (stating court will enforce parties choice-of-law agreement.)

Under New York law, the objective in interpreting an indenture is to effectuate the intent of the contracting parties. Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir.1985) (citing Hartford Accident & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907, 910 (1973)). The parties reasonable expectations and purpose serve as guideposts to determine intent. Uribe v. Merchants Bank, 91 N.Y.2d 336, 670 N.Y.S.2d 393, 693 N.E.2d 740, 743 (1998). If the terms of the indenture are plain and unambiguous, their interpretation is for the court. Rothenberg, 755 F.2d at 1019. If the language is susceptible to two or more reasonable interpretations, however, the interpretation of the contract creates an issue of fact and summary judgment may be inappropriate. Id.

The indenture obligates Angeion to make a repurchase offer on the notes if a “designated event” occurs. The indenture defines a designated event as a “change of control or termination of trading.” And a change of control occurs when “the [c]om-pany conveys, transfers or leases all or substantially all of its assets to any person.” The dispute centers on whether An-geion has conveyed, transferred, or leased all or substantially all of its assets.

U.S. .Bank alleges that five actions by Angeion collectively constitute a conveyance, transfer, or lease of all or substantially all assets: the September 1998 patent sale to Cordis Webster, the January 1999 workforce reduction, the April 1999 patent litigation settlement and patent licensing, the April 1999 workforce reduction, and the withdrawal from the joint venture with ELA Medical.

Although the two workforce reductions and the joint-venture withdrawal may demonstrate a shift in Angeion’s business plan, these three actions indisputably do not convey, transfer, or lease assets. The district court correctly decided that as a matter of law these actions could not trigger an obligation to make a repurchase offer. The issue then narrows to whether Angeion’s sale of its catheter-ablation patents in September 1998 and its licensing of the ICD patent portfolio in April 1999 constituted a conveyance, transfer, or lease of all or substantially all of its assets.

Angeion asserts that the licensing of its patents does not constitute a conveyance, transfer,'or lease as a matter of law. We are not persuaded by this argument. Although “convey,” “transfer,” and “lease” have historical origins relating to real property, the plain meaning of each of the terms encompasses transactions involving tangible and intangible personal property. See American Heritage Dictionary 412 (3rd ed.1992) (defining “convey” as “transfer ownership of or title to”), 1900 (defining “transfer” as “[t]o make over the possession or legal title of; convey”), 1025 (defining “lease” as “[t]o grant use or occupation of under the terms of a contract”); see also Black’s Law Dictionary 334 (7th ed.1999) (defining “convey” as “to transfer or deliver (something such as a right or property) to another”), 1503 (defining “transfer” as “[a]ny mode of disposing of or parting with an asset or an interest in an asset, including the payment of money, release, lease, or creation of a lien or other encumbrance”), 900 (defining “lease” as “[t]o grant the possession and use of property to another in return for rent or other consideration”).

Although “convey” and “lease” have retained a closer connection to transactions involving .tangible rather than intangible property, transfer “embraces every method — direct or indirect, absolute or conditional, voluntary or involuntary — of disposing of or parting with an interest in property.” Id. at 1503. In addition, the indenture’s use of all three of the terms— convey, lease, and transfer — in the change-of-control clause evidences an intent to broaden, rather than limit, the circumstances constituting a change of control that would trigger the repurchase offer. See Corhill Corp. v. S.D. Plants, Inc., 176 N.E.2d 37, 39 (N.Y.1961) (preferring an interpretation that gives reasonable and effective meaning to all terms of the contract). For these reasons, we conclude that the plain meaning of the word “transfer” includes Angeion’s action in granting nonexclusive patent licenses in exchange for cash.

Angeion alternatively asserts that a patent license as a matter of law cannot be an asset within the meaning of the indenture. Angeion does not seem to dispute that the patents themselves were assets. See Cyrix Corp. v. Intel Corp., 803 F.Supp. 1200, 1207 (E.D.Tex.1992) (recognizing acquisition of rights under patent licenses as valuable asset). Rather, it argues that the non-exclusive licensing of the patents did not constitute a transfer of assets because Angeion retained ownership of the patents and was not restricted from using them.

We recognize that the federal courts have in some, circumstances distinguished patent licenses from assets. See, e.g., First Nat’l Trust & Savs. Bank v. United States, 200 F.Supp. 274, 282 (S.D.Cal.1961) (holding that transfer of nonexclusive patent license was not transfer of capital asset under internal revenue laws). Federal cases have also held that a nonexclusive patent license does not pass title to the patent. See, e.g., Jim Arnold Corp. v. Hydrotech Sys., Inc., 109 F.3d 1567, 1577 (Fed.Cir.1997) (nonexclusive patent license is contract and does not pass title to the patent). But our interpretation of the indenture between U.S. Bank and Angeion is governed not by federal cases interpreting federal statutes in distinguishable circumstances, but rather by the intent and the reasonable expectations of the parties to the indenture, as evidenced in the plain meaning of the indenture.

Again, we find nothing in the plain meaning of “asset” that excludes the sale or license of the patents. Asset is broadly defined as “a useful or valuable quality, person, or thing; an advantage or a resource.” American Heritage Dictionary, supra, at 111; see also Black’s Law Dictionary, supra, at 112 (defining asset as “[a]n item that is owned and has value”). Angeion’s interpretation would limit a “transfer of assets” to a change of full ownership. This reading not only makes “transfer” meaningless as a duplication of “convey,” but also overlooks the law’s long history of recognizing that property rights are divisible and may be transferred divisi-bly. See Restatement of Property § 13 cmt. a (1936) (transfer “may be either of one or more specified interests or of an aggregate of interests”).

The transfer of property rights may include the right to possess, the right to use, or the right to exclude. Id. (describing transfer as a two-step process that first “extinguishes” the right in the transferor and then, “insofar as the interests thus extinguished are interests good against others than the transferee,” creates the similar interest in the transferee). When Angeion granted CPI non-exclusive licenses, it transferred one of the divisible rights in its bundles of patent rights. After the license, Angeion no longer had the right to exclude CPI from using its patents and, conversely, CPI had the right to use Angeion’s patents without being sued for infringement. We conclude that this transfer of value from Angeion to CPI, at a minimum, raises a genuine issue of fact regarding whether Angeion transferred assets within the meaning of the indenture.

To conclude otherwise would render the indenture language practically meaningless in the context of a company like Angeion, whose primary asset is intellectual property. Under Angeion’s urged application of the indenture language, the company would be allowed to cross-license its patents until it retained no practical ability to exclude competitors. As long as it did not sell its patents altogether, Angeion would be in no danger of triggering its obligation to repurchase the notes. We are not persuaded that an extensive licensing scheme is any less within the meaning of the indenture than the outright sale of the patents.

To prevail on its claim that An-geion’s transfer of assets triggered the requirement to make a repurchase offer, U.S. Bank must also demonstrate that An-geion transferred all or substantially all of its assets. “The words ‘all or substantially all’ are used in a variety of statutory and contractual provisions relating to transfers of assets and have been given meaning in light of the particular context and evident purpose.” Sharon Steel, 691 F.2d at 1049 (citations omitted).

Only two published cases have interpreted the words “all or substantially • all” in the context of an indenture. The first, a Delaware case interpreting Pennsylvania law, held that the sale of 75% of a corporation’s assets — -stock in another company— was a sale of all or substantially all of the corporation assets because of the high percentage of total assets and because it was the corporation’s only substantial income-producing asset. B.S.F. Co. v. Philadelphia Nat’l Bank, 204 A.2d 746, 750 (Del.Supr.Ct.1964). Reasoning that the notes were unsecured debt and that the indenture’s limitations were the only security afforded to the noteholders, the court emphasized the qualitative nature of the sale and considered the noteholder’s intentions and the goal of protecting the asset from dissipation. Id.

The second case, Sharon Steel Corp. v. Chase Manhattan Bank, N.A., interpreted a successor-obligor clause that' permitted the corporation to transfer its obligations on some notes to a corporate successor that bought all or substantially all of its assets. 691 F.2d at 1044-45. The court applied a quantitative analysis, reasoning that the transferred assets did not constitute all or substantially all of the assets because the assets accounted for only 38% of operating revenues, 13% of operating' profits, and 41% of the corporation’s book value at the time of the indenture. Id. at 1051. Because the court did not regard the question “as even close,” it did not determine how it would measure the sub-stantiality of corporate assets, what percentage meets the “all or substantially all” test, or what role a jury might play in determining those issues in a closer case. Id.

Outside the indenture context, the “all or substantially all” language has been used for much of the 20th century in shareholder-protection statutes. See, e.g., In Re Avard, 144 N.Y.S.2d 204, 208 (N.Y.Sup.Ct.1955) (interpreting shareholder-protection statute). Shareholder-protection statutes prohibit a corporation from selling all or substantially all of its assets-without shareholder approval.- See id. at 204 (citing New York statute); Winston v, Mandor, 710 A.2d.835, 838 (Del.Ch.1997) (citing Delaware statute). The authorities differ on whether courts’ interpretation of these statutes is relevant to interpreting similar language used in indentures. Compare B.S.F., 204 A.2d at 750 (“this question is not necessarily to be answered by references to the general law concerning the sale of assets by a corporation”), with Cyrix Corp. 803 F.Supp. at 1211 (“[e]xisting laws become a part of a contract”) (citation omitted). Because the shareholder-protection statutes have identical language and a similar purpose, we conclude that these interpretations may have affected the parties’ understanding at the time they entered the indenture and thus are relevant to intent and reasonable expectations.

New York courts first addressed the “all or substantially all” language in a shareholder-protection statute in Avard. The court interpreted a statute that required approval of two-thirds of a corporation’s shareholders before that corporation could sell or convey all or substantially all of its property, rights, privileges and franchises or an integral part essential to conduct of the business if the transaction was not made in the regular course of business. 144 N.Y.S.2d at 208. The court evalúated qualitative factors in applying the statute and determined that the need for shareholder consent depended not only on the amount involved, but also on the nature of the transaction. Id. at 209. Thus, Avard, applying the language of the statute, adopted a qualitative approach to applying the all-or-substantially-all language.

New York courts have in other cases applied a more quantitative approach in determining whether a corporation has sold all or substantially all of its assets. See Harry Rubin & Marcus D. Wilkinson, The Meaning of “Substantially All” of a Corporation’s Assets, Insights, July 1991, at 12. For instance, in Story v. Kennecott Copper Corp., 394 N.Y.S.2d 353 (N.Y.Sup.Ct.1977), the court rejected the argument that a corporation sold all or substantially all of its assets by selling its only income-producing assets. Id. at 354. Noting that the shareholder-protection statute had been amended since Avard to delete shareholder approval for the sale of assets constituting an “integral part” of the total business, the court held, without identifying the percentage of assets sold, that the amount did not meet the “all .or substantially all” requirement. Id. at 354-55.

Angeion argues that the persuasive effect of the cases interpreting the New York statute is minimal because the statutory language includes the additional requirements of “not in the usual course of business” and “integral part of the corporation’s business.” These elements, however, were imposed at common-law even before they were codified. The common-law rule was that a corporation could not “sell all its property, or even a part thereof so integral as to be essential for the transaction of its ordinary business,” because it resulted in a practical dissolution. In re Timmis, 93 N.E. 522, 523 (N.Y.1910). The qualitative aspects of the common-law rule also were evident in early interpretations of the shareholder-protection statute and formed a part of the analysis to determine what constituted “all or substantially all” before the statute specifically incorporated those aspects. See id.

The Delaware cases interpreting the “all or substantially all” language confirm that the language itself may impose a qualitative inquiry. Delaware’s shareholder-protection statute requires shareholder approval before a corporation may “sell, lease or exchange all or substantially all of its property and assets,” and does not include the “usual course of business” language. Winston, 710 A.2d at 838 (quotation omitted). Most recently in Winston v. Mandor, the Delaware Court of Chancery considered both qualitative and quantitative aspects of a transaction in determining whether a corporation’s sale of its only income-producing assets (amounting to 60% of its assets) is a sale of all or substantially all of its assets that requires shareholder approval. Id. at 843; see also Gimbel v. Signal Cos., 316 A.2d 599, 606-07 (Del.Ch.1974) (considering both quantitative and qualitative .aspects of asset transaction).

Applying New York law and persuasive authority from other jurisdictions interpreting the “all or substantially all” language, we conclude that whether An-geion transferred all or substantially all of its assets depends upon both the quantitative and the qualitative nature of the asset transfer. In some cases, a transfer of assets may be so quantitatively insignificant that an inquiry into the qualitative nature of the transfer is unwarranted. See, e.g., Sharon Steel, 691 F.2d at 1051. In other cases, however, a transfer that is moderate when judged quantitatively may still affect all or substantially all of a corporation’s assets because of its qualitative impact on the corporation. See, e.g., Winston, 710 A.2d at 843. Thus, in many cases, applying the “all or substantially all” language will require consideration of both the quantitative and the qualitative nature of the asset transfer.

The district court, because of its conclusion that granting a patent license was not a transfer of assets, considered only whether the sale of the catheter-ablation patents was 'a'transfer of all dr substantially all of Angeion’s assets. Because we have concluded that licensing of the ICD patent portfolio constitutes an asset transfer within the meaning of the indenture, we must consider the second part of the question:' whether the ICD patent licensing, in conjunction with the sale of the catheter-ablation patents, was a transfer of all or substantially all of Angeion’s assets.

After a thorough review of the record, we conclude that summary judgment was premature. Applying either a quantitative or a qualitative analysis, the record is not sufficiently developed for a determination whether Angeion transferred all or substantially all of its assets. U.S. Bank has not alleged, and Angeion has not disclosed, what percentage of operating revenue, operating profit, or book value the patents represented. Without this information, it is nearly impossible to weigh any of the factors that have, been used by the courts to determine whether a corporation has transferred all or substantially all assets.

To survive summary judgment, the nonmoving party generally has the burden to show that a genuine issue of fact exists. W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn.1998). But when the nonmoving party has been allowed only minimal discovery and the information that party needs to survive summary judgment is in the moving party’s sole possession, summary judgment may be premature. See Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins. Co., 958 F.2d 836, 838-39 (8th Cir.1992); Hennepin Broad. Assocs. v. American Fed’n of Television & Radio Artists, 301 Minn. 508, 511, 223 N.W.2d 391, 394 (1974). The “[rjelative availability of evidence to the parties is a circumstance to be considered in determining what should be required for making a submissible case.” Spencer v. Kroger Co., 941 F.2d 699, 704 (8th Cir.1991) (quotation omitted).

All of the information U.S. Bank needed to demonstrate a material issue of fact on whether Angeion transferred “all or substantially all” of its assets was within An-geion’s possession. Further, very little discovery had been conducted prior to the parties’ summary-judgment motions, and Angeion refused to answer further discovery while the motions were pending. The record consists primarily of Angeion’s financial reports to the SEC, along with its press releases, the depositions of the trustee and Angeion’s former CEO, and a handful of affidavits. On this record, we conclude that summary judgment was premature. Our ruling does not preclude An-geion from renewing its motion for summary judgment or the district court from granting that motion after further discovery has been conducted. See Hennepin Broad. Assocs., 301 Minn, at 511, 223 N.W.2d at 394 (“[i]t may very well be that plaintiff will be unable to produce sufficient evidence to withstand a later motion for summary judgment made after all discovery has been completed”).

II.

The district court may grant a temporary injunction if affidavits, deposition testimony, or oral testimony demonstrate sufficient grounds. Minn. R. Civ. P. 65.02(b). The party seeking the injunction must demonstrate that there is an inadequate legal remedy and that the injunction is necessary to prevent great and irreparable injury. Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 91 (Minn.1979); see also Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321 (1965) (listing considerations for determining whether temporary injunction appropriate). The district court has broad discretion to grant or deny a temporary injunction, and we will reverse only for abuse of that discretion. AMF Pinspotters, Inc. v. Harkins Bowling, Inc., 260 Minn. 499, 504, 110 N.W.2d 348, 351 (1961).

Relying on a U.S. Supreme Court case, Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), Angeion argues that a temporary injunction is unavailable regardless of whether U.S. Bank can show irreparable injury. In Grupo Mexicano, the Supreme Court held that a district court may not, under Fed.R.Civ.P. 65, issue a preliminary injunction prohibiting asset depletion in favor of a party seeking only money damages on a contract claim. Id. at 333, 119 S.Ct. at 1975. The court concluded that such an injunction was tantamount to a prejudgment attachment, which was not allowed at common-law. See id. at 319, 119 S.Ct. at 1968 (creditor’s bill could only be brought by creditor who had already obtained a judgment). Although the Supreme Court’s holding on the jurisdiction of the federal district courts does not control Minnesota courts’ authority to issue injunctions, the analysis is persuasive and consistent with Minnesota law.

We disagree with U.S. Bank’s argument that its claims on constructive trust, specific performance and declaratory judgment create a distinction that makes the Grupo Mexicano analysis inapposite. See United States ex. rel. Rahman v. Oncology Assocs., 198 F.3d 489, 496 (4th Cir.1999) (reasoning that Grupo Mexicano applies only to pure money damages claims); Fairview Mach. & Tool Co. v. Oakbrook Int’l, Inc., 77 F.Supp.2d 199, 202 (D.Mass.1999) (limiting Grupo Mexicano to cases where a plaintiff-creditor has no lien or equitable interests in defendant’s assets).

U.S. -Bank’s constructive trust claim does not identify any specific property that in equity belongs to the noteholders nor does it assert any wrongful conduct .in obtaining that property. See Martin v. Tucker, 217 Minn. 104, 106, 14 N.W.2d 105, 106 (1944) (declining to impose constructive trust because “record is barren of any proof of fraud, oppression, duress, undue influence, or any other wrongful conduct * * * necessary to create a constructive trust”). Further, U.S. Bank’s claims for specific performance and declaratory judgment are not rootéd in an equitable interest in U.S. Bank’s assets and thus are not the type of equitable claim that the courts have excepted from Grupo Mexicano's holding. See Rahman, 198 F.3d at 496-97 (stating that when plaintiff has no lien or equitable interest in property, plaintiff may not interfere with defendant’s assets prior to judgment).

Applying Minnesota procedural law and the reasoning in Grupo Mexicano, we conclude that the district court did not abuse its discretion in denying the temporary injunction. U.S. Bank’s complaint seeks declaratory relief and damages for failure to perform contractual obligations. U.S. Bank has not demonstrated that its requested relief will be inadequate without temporary injunctive relief. Neither has U.S. Bank demonstrated irreparable injury. Although Angeion may not maintain its large cash reserves, the cash will be replaced by other assets to which U.S. Bank may attach any judgment it receives. See Allstate Sales & Leasing Co. v. Geis, 412 N.W.2d 30, 33 (Minn.App.1987) (irreparable injury not shown just because party may spend money; money is fungible). Finally, as the district court emphasized, the harm that Angeion would have suffered under the requested injunction far outweighs any harm to the noteholders from the denial of the injunction. See Dahlberg, 272 Minn, at 274-75, 137 N.W.2d at 322 (stating that courts should consider relative harm to each party).

U.S. Bank’s argument that it will suffer irreparable injury because Angeion is depleting its cash reserves and no cash will remain to satisfy a judgment is not an argument for injunctive relief, but for a prejudgment security interest or attachment. Attachments are governed by statute in-Minnesota and are available only in limited, specified circumstances. See Minn.Stat. § 570.02, subd. 1 (1998); see also Allstate Sales, 412 N.W.2d at 32-33 (attachment statute appropriate remedy for party seeking prejudgment interest in property). We note that Minnesota cases have sometimes addressed injunctive relief and attachment intérchangeably, but we have not allowed injunctive relief that creates a prejudgment security interest when attachment would not be allowed under the statute. See Howe v. Howe, 384 N.W.2d 541, 543, 545-46 (Minn.App.1986) (holding that district court did not abuse its discretion by granting temporary injunction to prevent asset depletion when plaintiff claimed assets were fraudulently obtained); see also Minn.Stat, § 570.02, subd. 1(4) (allowing attachment when “respondent has committed an intentional fraud giving rise to the claim upon which the civil action is brought”). The district court did not abuse its discretion by denying a temporary injunction.

DECISION

The record is insufficiently developed to support summary judgment on whether Angeion breached its obligation to make a repurchase offer to noteholders because it transferred all' or substantially all of its assets. Because summary judgment was premature, we reverse and remand for further proceedings. We affirm the-district court’s denial of a temporary injunction.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 161
    In the Interest of S.F., J.F., and H.F., Children. Charles R. Sheeley, Sargent County Juvenile Supervisor, Petitioner and Appellee, and North Dakota Department of Human Services, Intervenor, v. S.F., J.F., H.F, Children, and M.F., parent of said children, Respondents, and A.F., parent of said children, Respondent and Appellant, and Wendy Jacobson, Director of the Sargent County Social Service Board, Respondent and Appellee.
    No. 20000024.
    Supreme Court of North Dakota.
    Aug. 18, 2000.
    Rehearing Denied Sept. 18, 2000.

      Lyle R. Bopp, State’s Attorney, Forman, N.D., for petitioner and appellee Charles R. Sheeley and respondent and appellee Wendy Jacobson.
    Mark A. Meyer, Meyer Law Firm, Wah-peton, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] A.F. appealed orders terminating his parental rights with respect to S.F., J.F., and H.F. We conclude there is clear and convincing evidence warranting termination of A.F.’s parental rights, and we affirm.

[¶ 2] A.F. and M.F., the father and mother, of S.F., J.F., and H.F., were divorced in 1997. The mother was awarded custody of the children, and the father was awarded visitation. The parents were ordered to attend various programs and the father was ordered to obtain a chemical dependency evaluation and follow resulting recommendations.

[¶ 3] On February 10, 1998, Charles R. Sheeley, Sargent County Juvenile Supervisor, petitioned for an order of disposition, alleging the children were deprived. On February 23, 1998, the parents voluntarily placed the children with A.F.’s brother and his wife, with whom the children continue to live.

[¶ 4] On March 5, 1998, the parents stipulated the children were deprived, and:

2. That the parents of said children shall involve themselves in any type of counseling programs as previously Ordered by the District Court or upon the recommendations of any counselor(s) or any social workers having an interest in said matter;
3. That visitation between said children and their parents shall be arranged by and through the Sargent County Social Service Department with the understanding that said visitations may become unsupervised at such a time deemed appropriate by any counselor(s) or social workers having an interest in said matter;
4. That the parents of said children shall follow any and all Orders previously imposed by Judge Ronald E. Goodman....

On March 15, 1998, the juvenile court incorporated the parents’ stipulation in an order.

[¶ 5] On August 7, 1998, Sheeley petitioned for termination of the parents’ parental rights with respect to the children. After a hearing on December 7, 1998, the juvenile court issued a December 17, 1998, order terminating the parents’ parental rights. The juvenile court found the children were deprived, and further found:

VIII.
That by clear and convincing evidence the conditions and causes of the deprivation of said children are likely to continue and will not be remedied, and that by reason thereof said children are suffering and in the future will probably suffer serious physical, mental, moral, or emotional harm;
IX.
That Sargent County Social Services and their designee’s [sic] have made all reasonable efforts to provide necessary services to both parents in order that the children may return to their care but [A.F.] has substantially and willfully failed or refused to utilize said services without justifiable excuse;
X.
That the prognostic evidence provided at the hearing held on the 7th day of December, 1998, provided by Dr. Richard Geiselhart, MeritCare Clinic, Wah-peton, North Dakota, indicates by clear and convincing evidence, that the provision of any programs or services for [A.F.] will probably not lead, in any reasonable time, to [A.F.] being able to provide the minimum parental care necessary for him to satisfy minimum community standards; moreover, the evidence at said hearing shows, by clear and convincing evidence [ ] that [A.F.] is unwilling or has failed without justifiable excuse to even substantially engage in programs and services provided to him and which are absolutely necessary for him to be able to be a responsible parent pursuant to minimum requirements required by law....

[¶ 6] On February 3, 1999, the juvenile court granted A.F.’s motion to reopen the case for presentation of additional evidence. A second hearing was held on March 5, 1999. Pursuant to agreement of the parties, the juvenile court issued a judgment deferring a decision for six months, upon the following conditions:

1. The respondent, [A.F.], would immediately obtain a chemical dependency evaluation within forty-five days of March 5, 1999 and complete and do all things necessary as recommend[ed] by the chemical dependency evaluator.... 2. The respondent shall obtain an anger management evaluation .... and the respondent shall abide by each of the recommendations made by such evaluator.

[¶ 7] After another hearing on November 22, 1999, the juvenile court made the following finding of fact on December 6, 1999:

VI.
That said children continue to be without proper parental care or control, or subsistence, education required by law, or other control necessary for the physical, mental, and emotional health, or morals, as follows:
1. That evidence provided at the hearing held on the 22nd day of November, 1999, indicates by clear and convincing evidence, that the Respondent [A.F.], is unwilling or has failed without justifiable excuse to substantially engage in programs and services provided to him and agreed upon by him and are necessary for him to provide the minimum parental care necessary for him to satisfy community standards or pursuant to minimum requirements required by law, to wit:
a. That the Respondent [A.F.], failed to follow recommendations set forth by the Hope Unit, Breckenridge, Minnesota, specifically designed for his anger management and chemical dependency issues and his case was closed due to his noncompliance.

The court further found the children were deprived, “the conditions and causes of the deprivation ... are likely to continue and will not be remedied,” and the “children are suffering or in the future will probably suffer serious physical, mental, moral, or emotional harm if returned to the parents.”

[¶ 8] The juvenile court ordered A.F.’s parental rights terminated with respect to the children, and A.F. appealed the December 17, 1998, order and the December 6, 1999, order. A.F. contends the State failed to prove, by clear and convincing evidence, that his parental rights should be terminated, arguing, 1) “The state has failed to prove that the children are deprived,” and 2) “The state has failed to show that the conditions and causes of the deprivation are likely to continue or will not be remedied.”

[¶ 9] On appeal, we review a juvenile court’s decision to terminate parental rights in a manner similar to trial de novo, giving deference to the juvenile court’s decision, because that court had the opportunity to observe the candor and demeanor of the witnesses. In re A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853. “Because evidence of past deprivation alone is not enough, prognostic evidence is evaluated to determine continued or future deprivation.” Id. at ¶ 19.

[¶10] “Section 27-20-44(l)(b), N.D.C.C. (1969), creates a three-part test for terminating parental rights: 1) Is the child deprived? 2) Are the conditions and causes of the deprivation likely to continue? 3) Is the child suffering, or will the child in the future probably suffer serious physical, mental, moral, or emotional harm?” In re A.M., 1999 ND 195, ¶ 7, 601 N.W.2d 253. To terminate parental rights, the State must prove all three parts by clear and convincing evidence. Id. “While we are not bound by the juvenile court’s findings, we give them appreciable weight.” Id. “Prognostic evidence forming the basis for a reasonable prediction about future behavior may be considered in determining if deprivation is likely to continue.” Id. In determining the likelihood of continuing deprivation, a court may consider parental cooperation- with social-service agencies. McBeth v. J.J.H., 343 N.W.2d 355, 360 (N.D.1984). While lack of parental cooperation is insufficient by itself to establish deprivation, it is pertinent to the issue of whether deprivation will continue. In re A.M., 1999 ND 195, ¶ 7, 601 N.W.2d 253; In re R.M.B., 402 N.W.2d 912, 918 (N.D.1987).

[¶ 11] There is clear and convincing evidence A.F.’s children were deprived. A.F. agreed to, and had been ordered to, obtain a chemical dependency evaluation and comply with the chemical dependency evaluator’s recommendations. A.F. agreed to, and was ordered to, obtain an anger management evaluation and abide by the anger management evaluator’s recommendations. The juvenile court gave A.F. a number of opportunities to show an ability and willingness to be a responsible parent and avoid termination of his parental rights. Nevertheless, A.F. failed to complete the necessary chemical dependency and anger management evaluations and follow the recommendations of the evaluators. A.F.’s failure to take the steps he agreed to take, and was ordered to take, “demonstrates a serious indifference toward his responsibilities and obligations as a parent,” In re C.R., 1999 ND 221, ¶ 10, 602 N.W.2d 520. We conclude there is clear and convincing evidence the conditions and causes of the children’s deprivation are likely to continue.

[¶ 12] The orders terminating A.F.’s parental rights with respect to S.F., J.F., and H.F. are affirmed.

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

      . M.F., the mother of the children, has not appealed the order terminating her parental rights.

      . The Honorable Ronald E. Goodman presided over the divorce proceeding.


author: SANDSTROM, Justice.

text:
    2000 ND 154
    STATE of North Dakota, Plaintiff and Appellee, v. Robert Dean GREGG, Defendant and Appellant.
    No. 20000009.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      Brett M. Shasky, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Douglas W. Nesheim of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Robert Dean Gregg appeals from a criminal judgment and commitment of the East Central Judicial District Court upon a conditional plea of guilty to possession of a controlled substance and drug paraphernalia. We affirm, concluding the district court properly denied Gregg’s motion to suppress evidence.

I

[¶ 2] On July 20, 1999, West Fargo police were dispatched to the Hi-10 Motel, to investigate a disturbance. At the motel, Sergeant Michael Reitan talked with Robert Gregg, Joey Johnson, and Julie Dodd in the motel lobby. The three had been involved in the disturbance, which they described to Sergeant Reitan. Gregg, Johnson, and Dodd reported they had been in the motel room where Gregg “had been residing at for a period of time,” when a man came to the door, demanded entry, and threatened them with a knife. The man kicked his way into the room, and Johnson struck him in the head with a bottle.

[¶ 3] While Sergeant Reitan was talking with Gregg, Johnson, and Dodd, Officers Donald Loberg and Jason Dura went to Gregg’s room to look for the knife and other evidence related to the disturbance. While looking under the bed in Gregg’s room, the officers found a gym bag containing drug paraphernalia, including syringes and smoking devices. They informed Sergeant Reitan about the discovery, and he told them to return the paraphernalia to the bag and put the bag back underneath the bed. The officers followed Sergeant Reitan’s instructions.

[¶ 4] Sometime during the course of the interview in the lobby and the search of the room, the officers ran Gregg’s, Dodd’s, and Johnson’s names and dates of birth “through driver’s license and wants and warrants checks.” Sergeant Reitan testified this was a standard practice. The check revealed Dodd and Gregg had their driving privileges suspended but Johnson had a valid North Dakota license.

[¶ 5] Officer Loberg told Gregg it would be best if he left West Fargo. Gregg, Johnson, and Dodd then transported some items from the room to a car registered to Gregg, and the officers left the scene.

[¶ 6] Sergeant Reitan testified that the officers then remained in the area of the motel, so if one of the three drove, the officers could stop the driver for driving under suspension. After leaving the motel, the officers learned Johnson’s driving privileges had been suspended in Minnesota.

[¶ 7] Johnson eventually drove away from the motel in Gregg’s car, with Gregg and Dodd as passengers. The officers pulled the car over.

[¶ 8] Officer Loberg had Johnson exit the car and placed him under arrest. Officer Loberg went to the passenger side of the car to ask Gregg whether he had insurance on the car. Gregg responded the car was not insured.

[¶ 9] While questioning Gregg, Officer Loberg noticed a syringe by Gregg’s feet. The officer asked Gregg whether he or anyone else in the car was a diabetic. After Gregg responded “no,” Officer Lo-berg asked him to exit the car.

[¶ 10] Officer Loberg retrieved the syringe and noticed a plastic bag containing a white powdery substance underneath the seat. Gregg was then arrested.

' [¶ 11] The front passenger area of the car was searched, and drug paraphernalia was found. Officer Loberg decided Gregg’s car should be impounded because it was parked “on the on ramp of 1-94” and was a traffic hazard. The impound inventory revealed additional drugs and drug paraphernalia. The gym bag found at the motel room was found in the car.

[¶ 12] Gregg was charged with possession of drug paraphernalia and with two counts of possession of a controlled substance. He brought a motion to suppress all evidence seized from his car, arguing the stop and search violated the Fourth Amendment of the U.S. Constitution and N.D. Const, art. I, § 8.

[¶ 13] The district court denied the motion, finding the search and seizure was proper “under various exceptions to the warrant requirement, including plain view and impound inventory.” The district court stated:

my view is that if we keep the black bag under the bed and assume that nobody looked in the black bag, because there really were no consequences that followed from that discovery, Officer Reiten [sic] said this is wrong, put the bag back under the bed, in my view that negates anything to do with that bag, and we just start fresh.

[¶ 14] The district court found Gregg and Johnson “gave the officers the second crack at the black bag by virtue of getting in a vehicle and driving when all three drivers had their licenses suspended.” The court' further concluded the syringe was found in plain view, which opened up a further search of Gregg’s car.

[¶ 15] In addition, the eourt'found:

They just happened to not have liability insurance on the 'car. Again, that was the defendants again assisting the officers with building their case. I don’t know that there would have been a legitimate basis for the inventory search if the car had been insured and they could have gotten somebody to come out and get it and drive it away. But by virtue of their own — circumstance of their own making, I think they’ve put themselves, in a box that requires that I dismiss your motion to suppress.

[¶ 16] On December 27, 1999, Gregg entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) in order to appeal the district court’s order denying his motion to suppress evidence.

[¶ 17] The district court’s criminal judgment and commitment was filed December 27, 1999, and Gregg’s appeal was timely. N.D.R.Crim.P. 37(b); N.D.R.App.P. 4(b). The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 18] The issue on appeal is whether the district court erred in denying Gregg’s motion to suppress drugs and drug paraphernalia obtained from the search of his car, because the evidence was a result of an illegal search and is “fruit of the poisohous.tree.”

[¶ 19] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996) (citing City of Grand Forks v. Egley, 542 N.W.2d 104 (N.D.1996)). We affirm the district court’s decision unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994).

[¶ 20] “Although the underlying factual disputes are findings of fact, whether the findings meet a legal standard, in this instance a reasonable and articulable suspicion, is a question of law.” Zejdlik, 551 N.W.2d at 774 (citations omitted). Questions of law are fully reviewable. Id. (citing State v. Glaesman, 545 N.W.2d 178 (N.D.1996)). The ultimate conclusion of whether the facts support a reasonable and articulable suspicion is fully reviewable on appeal. State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995).

A

[¶ 21] Gregg argues the evidence found in his car should have been suppressed under the “fruit of the poisonous tree” doctrine because the police officers exploited an illegal search and, there was no intervening circumstance to purge the evidence of its original taint.

[¶ 22] We begin our analysis by evaluating each of the three warrantless searches that occurred in this case. The United States Supreme Court has defined a search, within the meaning of the Fourth Amendment, as an intrusion into a person’s reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution protect individuals from ■ unreasonable searches and seizures by the government.” State v. Blumler, 458 N.W.2d 300, 301 (N.D.1990).

[¶ 23] When an individual reasonably expects privacy in an area, the government, under the Fourth Amendment, must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement. Blumler, 458 N.W.2d at 302. “In the absence of such an exception, evidence obtained in violation of the Fourth Amendment’s protections against unreasonable searches must be suppressed as inadmissible under the exclusionary rule.” Id. (citations omitted) (footnote omitted).

1

[¶ 24] The first search that occurred in this case was the search by Officers Loberg and Dura of the gym bag found underneath the bed in Gregg’s hotel room, where Gregg was living at the time. A person’s home is an area that is constitutionally protected. State v. Kitchen, 1997 ND 241, 1113, 572 N.W.2d 106. “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Id. (quoting Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Even if “a police officer is on legitimate duty,” that does not give the officer automatic access to a person’s property. Kitchen, at ¶ 16.

[¶ 25] In this case, the State concedes the search of the gym bag at Gregg’s motel room was illegal.

2

[¶ 26] The second search in this case was the search of the front passenger area of Gregg’s car. The officers conducted this search after Gregg’s ear was stopped and Johnson was arrested. We conclude the evidence from this search is admissible under two exceptions to the warrant requirement.

[¶ 27] To stop a moving vehicle for investigative purposes, an officer must have an articulable and reasonable suspicion that a law has been or is being violated. City of Fargo v. Sivertson, 1997 ND 204, ¶ 9, 571 N.W.2d 137 (citing State v. Neis, 469 N.W.2d 568, 569 (N.D.1991)). The test is whether a reasonable person in the officer’s position would be justified by some objective manifestation in suspecting potential criminal activity. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 775 (N.D.1996).

[¶28] In this case, the officers’ stop of Gregg’s car was valid because the officers observed Johnson driving Gregg’s car and they knew Gregg, Johnson, and Dodd all had suspended driver’s licenses. See State v. Mische, 448 N.W.2d 412, 414 (N.D.1989). Thus, the stop was based on probable cause and reasonable grounds for believing Johnson was driving under suspension.

[¶ 29] Officer Loberg testified that after the car was stopped, he saw, in plain view, a syringe on the floor next to Gregg’s feet. After learning no one in the car was a diabetic, Officer Loberg retrieved the syringe and in doing so discovered what he suspected was a controlled substance.

[¶ 30] An officer with a plain view of contraband which gives rise to probable cause is not immunized from the warrant requirement unless the search falls within one of the exceptions to the requirement. State v. Garrett, 1998 ND 173, ¶ 16, 584 N.W.2d 502 (citing State v. Koskela, 329 N.W.2d 587, 591 (N.D.1983)). The State argues that two exceptions to the warrant requirement apply to the evidence found in the front passenger area of Gregg’s car.

a

[¶ 31] The first exception the State argues is the search incident to a valid arrest. See State v. Olson, 1998 ND 41, ¶ 13, 575 N.W.2d 649. In New York v. Belton, the United States Supreme Court held that when a police officer has made a lawful arrest of the occupant of an automobile, the officer may, “as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” without a warrant. 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (footnote omitted). See State v. Erbele, 554 N.W.2d 448, 450-51 (N.D.1996).

[¶ 32] In this case, the search of the front passenger area of Gregg’s car was within the search-incident-to-a-lawful-arrest exception to the warrant requirement. The arrest of Johnson, based upon probable cause, gave the officer the right to perform a search incident to arrest. We conclude the search of the passenger compartment was a valid search incident to arrest.

b

[¶ 33] The second exception the State argues is the automobile exception to the warrant requirement. Under the automobile exception, “if the search of an automobile without warrant is made upon probable cause, based upon a reasonable belief arising out of the circumstances known to the officer — that the automobile contains articles which are subject to seizure — the search is valid.” State v. Kottenbroch, 319 N.W.2d 465, 469 (N.D.1982) (citing State v. Binns, 194 N.W.2d 756, 759 (N.D.1972)) (emphasis omitted).

[¶ 34] Here, Officer Loberg testified he saw, in plain view, a syringe on the floor next to Gregg’s feet. The officer retrieved the syringe and in doing so discovered what he suspected was a controlled substance.

[¶ 35] The district court’s finding that this search was valid, based on the syringe in plain view opening up further search of Gregg’s car, is supported by the evidence. See State v. Olson, 1998 ND 41, 575 N.W.2d 649. Based on these circumstances, the officers had sufficient cause to believe the car contained additional contraband. Thus, the evidence found in the front passenger area of Gregg’s car is also admissible under the automobile exception to the warrant requirement.

3

[¶ 36] The last search in this case was the search of the remainder of Gregg’s car after the car was impounded. This Court has held that securing and inventorying the contents of motor vehicles “in police custody is predicated on the interest in protecting the owner’s property while it is in police custody, protecting the police against claims of lost, stolen or vandalized property and protecting the police against danger posed by the inventoried property.” State v. Kunkel, 455 N.W.2d 208, 211 (N.D.1990) (citations omitted). An inventory conducted using “reasonable police regulations relating to inventory procedures administered in good faith” is permissible under the Fourth Amendment. Id. In addition, a warrantless search of an impounded vehicle is acceptable “when the inventory is a routine caretaking procedure rather than one motivated by investigatory purposes.” Id. (citing South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)).

[¶ 37] In the present case, Officer Loberg impounded Gregg’s car because it was parked “on the on ramp of 1-94” and was a traffic hazard. The district court found there was a legitimate impoundment and inventory search because the car was not insured. For these reasons, the officers’ impound inventory was justified as a caretaking function. Thus, the car was properly impounded, and the evidence found in the impound inventory search is admissible under the inventory exception to the warrant requirement.

B

[¶ 38] Gregg argues the evidence found in the second and third searches was tainted by the illegal search of the gym bag in his motel room. He claims this evidence should have been suppressed under the “fruit of the poisonous tree” doctrine because the officers exploited the illegal search. He further argues there was no intervening circumstance to purge the evidence of its original taint.

[¶ 39] Any evidence obtained as a result of illegally acquired evidence must be suppressed as “fruit of the poisonous tree” unless an exception to the warrant requirement applies. State v. Blunder, 458 N.W.2d 300, 302 (N.D.1990) (citations omitted). See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Even though evidence may be characterized as fruit of the poisonous tree, it can be admitted if it was not produced by exploiting the illegally acquired information. State v. Wahl, 450 N.W.2d 710, 714 (N.D.1990) (citing C. Whitebread, Criminal Procedure § 2.04 (1986)).

[¶ 40] This “unpoisoning” of the fruit may be achieved by the State through the use of the “independent-source exception,” the “inevitable-discovery exception,” or the “attenuation exception” to the exclusionary rule. Wahl, 450 N.W.2d at 714 (citing C. Whitebread, Criminal Procedure § 2.04 (1986); 1 W. LaFave, Criminal Procedure § 9.3 (1984)). Because all three of these methods of “unpoisoning” are argued by the State, we will discuss each.

1

[¶41] Under the attenuation exception, suppression is not warranted unless “ ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ” Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)). Information is not the fruit of a poisonous tree simply because it would not have come to light without the illegal action of the police; rather, the proper inquiry is whether the evidence was obtained by exploitation of the illegal action or by means sufficiently distinguishable to purge the evidence of the primary taint. State v. Handtmann, 437 N.W.2d 830, 837 (N.D.1989) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). Evidence cannot be suppressed as fruit unless the government’s illegal action is at least the “but for” cause of the later discovery of the evidence. Segura, at 815, 104 S.Ct. 3380 (citation omitted) (finding the illegal entry into the defendants’ home did not contribute to the discovery of evidence seized under a warrant; thus, not even the threshold “but for” test was met).

[¶ 42] In State v. Saavedra, this Court held the defendant’s actions — ignoring an officer’s request to remain in the patrol car, attempting to return to his vehicle before the officers had finished investigating, and engaging in a scuffle with the officers — broke the chain of causation and dissipated the taint of the earlier illegal search. 396 N.W.2d 304, 305 (N.D.1986). See State v. Indvik, 382 N.W.2d 623 (N.D.1986). This Court concluded the evidence supporting the defendant’s disorderly conduct conviction resulted from his own willful acts and not from police misuse of the earlier illegal search. Saavedra, at 305. Accordingly, this Court held the trial court did not err in failing to suppress the evidence of the defendant’s disorderly conduct. Id.

[¶ 43] To decide whether a defendant’s actions break the chain of causation and dissipate the taint of an earlier illegal search, the following factors may be examined: “the temporal proximity of the illegality and the fruit of that illegality, the presence of intervening circumstances, and the purpose and flagrancy of the police misconduct.” Saavedra, 396 N.W.2d at 305.

[¶ 44] The flagrancy of the police misconduct, important because of the exclusionary rule’s purpose of discouraging such behavior, includes acts such as intentional harassment and use of excessive force. Id. The function of deterring police misconduct, however, does not extend to evidence of an independent crime even though it was precipitated by an unlawful search by the government. State v. Ritter, 472 N.W.2d 444, 450 (N.D.1991) (citing State v. Saavedra, 396 N.W.2d 304, 305 (N.D.1986)).

[¶ 45] Gregg claims the drugs and drug paraphernalia found in his car would not have been found without the illegal search. In support of his argument, Gregg points to the closeness in- time of the stop to the discovery of the drug paraphernalia in the gym bag in the motel room.

[¶ 46] In addition, he claims the police encouraging him to leave town “can only be reasonably explained by the desire to make a drug bust because of the fruits of the illegal search.” In Whren v. United States, the United States Supreme Court held “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.’’ Id. at 814, 116 S.Ct. 1769. This rule gives police officers “broad leeway” to perform searches and seizures regardless of whether their subjective intent matches the legal basis for their actions. United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998) (footnote omitted). Under Whren rule, a party “is going to have difficulty in using subjective motive to attack an arrest which is otherwise objectively justified by probable cause.” Holland v. City of Portland, 102 F.3d 6, 11 (1st Cir.1996).

[¶ 47] The attenuation analysis applies to the present case. The stop and search of Gregg’s car occurred shortly after the illegal search. Even though the State admits the officers’ search of the gym bag was illegal, the record does not reflect “flagrant” police misconduct such as intentional harassment or excessive force.

■ [¶ 48] The district court found the stop of Gregg’s car was not prompted by the officers’ observations made during the illegal search. The district court found that even without the illegal discovery of the contents of the gym bag, the officers still would have found the evidence in the car because Gregg and Johnson “gave the officers the second crack at the black bag by virtue of getting in a vehicle and driving when all three drivers had their licensés suspended.”

' [¶ 49] The officers’ illegal search was not the “but for” cause of the discovery of the evidence found in Gregg’s car. As in Saavedra, the facts support the conclusion that the discovery of the drugs and drug paraphernalia resulted from the intervening circumstances and the willful acts of Johnson and Gregg, not from misuse of the earlier illegal search. We conclude Johnson’s crime of driving under suspension and the drug paraphernalia lying in plain view by Gregg’s feet are means sufficiently distinguishable to purge the evidence of any primary taint.

2

[¶ 50] The State argues the evidence is also admissible under the inevitable-discovery and independent-source exceptions. The independent-source doctrine is based on evidence actually discovered through unrelated means, while inevitable discovery involves a question whether the evidence would have been discovered absent the illegal search. See Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (the inevitable-discovery doctrine is merely an “extrapolation” of the independent-source doctrine); State v. Handtmann, 437 N.W.2d 830, 837 (N.D.1989).

[¶ 51] The inevitable-discovery doctrine provides that evidence obtained from information procured in an unlawful search or seizure is admissible under the fruit-of-the-poisonous-tree doctrine if the evidence would inevitably have been discovered without the unlawful conduct. Handtmann, 437 N.W.2d at 837. This doctrine applies to evidence that is not actually discovered by lawful means, but inevitably would have been found. State v. Winkler, 552 N.W.2d 347, 358 n. 4 (N.D.1996) (citing United States v. Markling, 7 F.3d 1309, 1318 n. 1 (7th Cir.1993)). Because we conclude the evidence was discovered by lawful means, the inevitable-discovery exception does not apply in this case.

3

[¶ 52] The independent-source exception “allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.” Winkler, 552 N.W.2d at 353 (citations omitted). See Murray v. United States, 487 U.S. 533, 538-40, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Unlike the inevitable-discovery doctrine, the independent-source doctrine applies when the evidence has been discovered by lawful means. Winkler, at 358 n. 4 (citing United States v. Markling, 7 F.3d 1309, 1318 n. 1 (7th Cir.1993)).

[¶ 53] Suppression of evidence should put the police in the same position they would have occupied had no violation occurred, rather than in a worse position. State v. Winkler, 1997 ND 144, ¶6, 567 N.W.2d 330 (citations omitted). In Murray v. United States, the United States Supreme Court held:

Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was-also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one.

487 U.S. 533, 541, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (citation omitted).

[¶ 54] In applying the independent-source exception, we have used a two-step analysis. Winkler, 1997 ND 144, ¶ 12, 567 N.W.2d 330. First, the warrant must be supported by probable cause derived from sources independent of the illegal search; and second, the decision to seek the warrant must not be prompted by observations made during the illegal search. Id. (citation omitted). See Murray, 487 U.S. at 540 n. 2, 108 S.Ct. 2529 (police officers’ assurances are not to be given dispositive effect when the assurances are not supported by the facts; in such cases, the independent-source exception will not apply).

[¶ 55] This two-part test may be applied to the present case by analogizing the search warrant to the officers’ stop of Gregg’s car. The first part of the test, requiring that the stop must be supported by probable cause derived from sources independent of the illegal search, is met by our earlier conclusion the stop was made with probable cause to believe Johnson was driving with a suspended driver’s license.

[¶ 56] The second part of the test, rephrased, requires that the stop of Gregg’s car must not have been prompted by the officers’ observations made during the illegal search. The district court found the stop of Gregg’s car was not prompted by the officers’ observations made during the illegal search. The court concluded that after the officers put the gym bag back underneath the bed, the officers “start[ed] fresh” and that “no consequences followed from that discovery.” The court found its analysis should then proceed from the assumption that there never was an illegal search.

[¶ 57] The district court’s findings are supported by the evidence. As in Murray, after the misconduct of the officers is removed, it is clear the officers had gained independent knowledge that Gregg, Johnson, and Dodd all had suspended driver’s licenses. Thus, the officers still would have been justified in stopping the car for the driving offense, at which time the officers would have discovered the same evidence challenged here.

[¶ 58] Excluding the evidence the police officers ultimately obtained by the stop and seizure would not put the officers in the same position they would have been in had they not committed any unlawful conduct; instead, it would put them in a worse position. Accordingly, the evidence is admissible under the independent-source doctrine.

C

[¶ 59] Because we find the second and third searches of Gregg’s car are excepted from the warrant requirement, the evidence gained from these searches need not be suppressed. The district court’s denial of Gregg’s motion to suppress the evidence found in his car is supported by sufficient competent evidence and is not contrary to the manifest weight of the evidence,

m

[¶ 60] The criminal judgment of the district court is affirmed.

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


author: NEUMANN, Justice.

text:
    2000 ND 160
    Arlan MANN and Laurie Mann, Plaintiffs, v. Anton “Tony” ZABOLOTNY, Bernel Zabolotny, Defendants and Appellants, John Mueller, Defendant and Appellee.
    No. 20000038.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      Michael J. Maus, Hardy, Maus & Nord-sven, Dickinson, N.D., for defendants and appellants.
    Ronald A. Reichert, Reichert & Herauf, PC, Dickinson, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Anton and Bernel Zabolotny appeal from a district court judgment awarding John Mueller $18,000 on a cross-claim for breach of contract. Concluding the trial court abused its discretion in amending the pleadings on its own motion after trial, we reverse and remand for further proceedings.

I

[¶2] The Zabolotnys owned a bowling alley, restaurant, and bar in Killdeer. The business was being run by Arlan and Laurie Mann. On February 16, 1996, the Zabo-lotnys and Mueller entered into a contract for deed whereby the Zabolotnys agreed to sell the business, including the realty and inventory, to Mueller. By the terms of the contract for deed, Mueller was entitled to immediate possession of the premises. That same day, Mueller and Anton Zabo-lotny went to the bowling alley and Anton Zabolotny informed the Manns thé business had' been sold to Mueller. Mueller arranged to have the locks changed that day, and the Manns were essentially evicted from the premises.

[¶ 3] The Manns subsequently sued the Zabolotnys and Mueller for breach of contract, conversion of personal property, forcible exclusion from realty, interference with business relationship, and intentional infliction of emotional distress. The Zabo-lotnys counterclaimed against the Manns for breach of contract, alleging the Manns had failed to repay loans, failed to pay rent, and damaged the building. Mueller cross-claimed against the Zabolotnys, seeking indemnification for any damages assessed in favor of the Manns against him.

[¶ 4] The trial court severed the cross-claim, reserving the indemnity issue. Following a four-day trial, the jury awarded the Manns $18,600 against Mueller, and $18,600 against the Zabolotnys. The jury also awarded the Zabolotnys $10,000 on their counterclaim against the Manns. Judgments in favor of the Manns were entered accordingly, and the parties do not challenge those judgments on appeal.

[¶ 5] Following trial, Mueller moved for indemnity. against the Zabolotnys. The parties filed briefs, but did not request a hearing on the motion. The court determined Mueller’s claim was “more precisely one for breach of contract rather than indemnity.” Citing N.D.R.Civ.P. 15(b), the court then on its own motion amended Mueller’s cross-claim to allege breach of contract rather than indemnity. The Za-bolotnys were given no opportunity to respond, present additional evidence, plead counterclaims, or seek a jury trial on the amended, claim of breach of contract.

[¶ 6] Concluding the Zabolotnys had breached an implied covenant of quiet enjoyment under N.D.C.C. § 47-04-26, the trial court awarded judgment in favor of Mueller for $18,000, representing the Manns’ damages against Mueller for conversion and forcible exclusion from realty. The. court _ concluded the Zabolotnys were not liable to Mueller for the $600 damages awarded to the Manns against Mueller for interference with business relationship. Judgment was entered accordingly, and the Zabolotnys have appealed.

II

[¶ 7] The trial court, by rejecting the indemnity theory and amending the pleadings to allege breach of contract, impliedly found that this was not an appropriate case for indemnity. Indemnification is a remedy which allows a party to recover reimbursement from another for the discharge of a liability which, as between thém, should have been discharged by the other. Nelson v. Johnson, 1999 ND 171, ¶ 19 n. 3, 599 N.W.2d 246; GeoStar Corp. v. Parkway Petroleum, Inc., 495 N.W.2d 61, 68 (N.D.1993); Blackburn, Nickels & Smith, Inc. v. National Farmers Union Property and Casualty Co., 482 N.W.2d 600, 605 (N.D.1992); see N.D.C.C. § 22-02-01. We have noted that indemnity is an equitable doctrine, which is not amenable to hard and fast rules. Nelson, at ¶ 20; Troutman v. Pierce, Inc., 402 N.W.2d 920, 924 (N.D.1987).

[¶ 8] A right of indemnity may arise by express agreement or by implication. See GeoStar Corp., 495 N.W.2d at 68. There are two bases for implied indemnity, contract and tort:

When, as here, there is no express agreement creating a right to indemnification, an implied right to indemnification can still be found in either of two sets of circumstances. In one, an implied right to indemnification may be based on the special nature of a contractual relationship between parties. This has been called an “implied contract theory” of indemnity, or an “implied in fact” indemnity. A second set of circumstances in which indemnity may be found has been called “implied in law” indemnity. This is a tort-based right to indemnification found when there is a great disparity in the fault of two tort-feasors, and one of the tortfeasors has paid for a loss that was primarily the responsibility of the other.

Peoples’ Democratic Republic of Yemen v. Goodpasture, Inc., 782 F.2d 346, 351 (2d Cir.1986) (citations omitted).

[¶ 9] In this case, the trial court rejected application of indemnity. On appeal, Mueller has not raised an issue challenging the trial court’s refusal to award indemnity. We therefore need not address the application of implied indemnity to this case.

Ill

[¶ 10] The Zabolotnys argue the trial court erred in amending the pleadings, on its own motion and without notice to the parties, to conform to the evidence. We agree.

[¶ 11] Rule 15(b), N.D.R.Civ.P., allows amendment of the pleadings to conform to the evidence:

If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment' of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of those issues.

Generally, the determination whether an issue was tried by the express or implied consent of the parties is a matter within the sound discretion of the trial court and will not be reversed on appeal unless an abuse of discretion is shown. Schumacher v. Schumacher, 1999 ND 149, ¶ 26, 598 N.W.2d 131; Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 357 (N.D.1987).

[¶ 12] Under N.D.R.Civ.P. 15(b), a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings. Aho v. Maragos, 2000 ND 14, ¶ 7, 605 N.W.2d 161; Schumacher, 1999 ND 149, ¶ 26, 598 N.W.2d 131. However, amendment of pleadings by implication may only arise when the evidence introduced is not relevant to any issue pleaded in the case. See Tormaschy v. Tormaschy, 1997 ND 2, ¶ 17, 559 N.W.2d 813; Fleck v. Jacques Seed Co., 445 N.W.2d 649, 652 (N.D.1989); Soby Construction, Inc. v. Skjonsby Truck Line, Inc., 275 N.W.2d 336, 340-41 (N.D.1979), overruled on other grounds, Shark v. Thompson, 373 N.W.2d 859, 867-69 (N.D.1985). As this .Court explained in Fleck, at 652:

Consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpleaded issue. Soby Const., Inc. v. Skjonsby Truck Line, supra, pointed this distinction out:
“ ‘[W]hen the evidence that is claimed to show that an issue, was tried by consent is relevant to an issue already in the case, as-well as to the one that is the subject matter of the amendment, and there was no indication at trial-that the party who introduced the evidence was seeking to raise a new issue, the pleadings will not be deemed amended under the first portion of Rule 15(b). The reasoning behind this view is sound since if evidence is introduced to support basic issues that already have been pleaded, the opposing party may not be conscious of its relevance to issues not raised by the pleadings unless that fact is specifically brought to his aííetóou’[Emphasis added.]” 275 N.W.2d at 340-341 [quoting 6 Wright & Miller, Federal Practice and Procedure: Civil § 1493, at pp. 466-467 (1971) ].
Consent to try an unpleaded issue cannot be inferred from the lack of objection to evidence on one pleaded.

[¶ 13] Accordingly, amendment by implication under N.D.R.Civ.P. 15(b) is limited to situations “where the novelty of the issues sought to be raised is reasonably apparent and the intent to try these issues is clearly indicated by failure to object or otherwise.” Soby Construction, 275 N.W.2d at 340 (quoting Roberge v. Cambridge Cooperative Creamery Co., 243 Minn. 230, 67 N.W.2d 400, 404 (1954)). Furthermore, the trial court should not permit amendment to include collateral issues for which there is only incidental support in the record. Napoleon Livestock, 406 N.W.2d at 357.

[¶ 14] In this case, neither the trial court nor Mueller has drawn our attention to the introduction of any evidence which is relevant only to breach of contract and not to other issues pleaded in the case. In fact, in his brief on appeal Mueller concedes that “[t]he facts supporting indemnity and contractual relief are for all practical purposes identical.” Nor does Mueller show how the relevance of any evidence was brought to the Zabolotnys’ attention so as to put them on notice of a change in Mueller’s theory of the case. Under similar circumstances, this Court concluded in Soby Construction, 275 N.W.2d at 341:

In the present case, Soby made no motion to amend the pleadings to change the theory of its case from one of specific negligence to one of the presumption of negligence based upon bailment. Neither did Soby present any evidence that would sufficiently notify Skjonsby that Soby was changing its theory to a presumption of negligence. The evidence presented by Soby at trial was relevant to and consistent with the specific negligence theory stated in its complaint. Consequently, it cannot be said that Skjonsby allowed an amendment of the pleadings by consent.

Additionally, the Zabolotnys point out that, had they been aware of a pending breach of contract claim, they would have presented evidence on the issue, pleaded a counterclaim against Mueller for his alleged breach of the contract, and sought a jury trial. See Fleck, 445 N.W.2d at 653.

[¶ 15] Under these circumstances, the trial court abused its discretion in amending the pleadings to allege a breach of contract claim. We reverse the judgment awarding damages against the Zabolotnys based upon the court’s amendment of the pleadings under N.D.R.Civ.P. 15(b) and remand for further proceedings. Upon remand the court may entertain a motion to amend the pleadings under N.D.R.Civ.P. 15(a), with the Zabolotnys to have an opportunity to file responsive pleadings, including counterclaims, present additional evidence, and seek a jury trial.

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

      . We note the trial court based its finding of a breach of contract in part on its conclusion that "[i]n all contracts granting an estate in real property certain 'covenants running with the land' are added by N.D.C.C. 47-04-26, which includes a covenant for 'quiet enjoyment.’ ” The trial court misconstrued N.D.C.C. § 47-04-26. That statute does not require that every transfer of property must include a covenant of quiet enjoyment, but merely provides that, if such a covenant is included in a grant, it runs with the land. Section 47-10-19, N.D.C.C., specifies the covenants which are automatically implied in a ''grant,” and does not include a covenant of quiet enjoyment. Furthermore, N.D.C.C. § 47-10-03 provides:

        Agreement to give usual covenants on sale — Duty imposed. An agreement on the part of a seller of real property to give the usual covenants binds the seller to insert in the grant covenants of seizin, quiet enjoyment, further assurance, general warranty, and against encumbrances.
      If, as Mueller argues, every grant and every contract for deed included a covenant of quiet enjoyment, inclusion of a covenant of quiet enjoyment in this statute would be superfluous.
      A further problem with the trial court’s interpretation is that a contract for deed is merely an agreement to later deliver a grant by deed upon full performance by the buyer. See N.D.C.C. §§ 47-09-05, 47-09-06, 47-09-07, and 47-09-16. In fact, it appears that, not only is there not an automatic covenant of quiet enjoyment in every contact for deed, but a vendee under a contract for deed is not entitled to possession of the land until full performance unless the contract provides for possession. See Olson v. Brodell, 128 N.W.2d 169, 176-77 (N.D.1964); Lee v. Shide, 69 N.D. 541, 544, 288 N.W. 556, 557 (1939); 77 Am. Jur.2d Vendor and Purchaser § 355 (1997); 92A C.J.S. Vendor and Purchaser § 446 • (2000).


text:
    2000 ND 153
    STATE of North Dakota, Plaintiff and Appellant, v. Nevada Earl NORTON, Defendant and Appellee.
    No. 20000045.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      Allen M. Koppy, State’s Attorney, Man-dan, N.D., for plaintiff and appellant.
    Loren C. McCray, Alexander & Solem Law Office, Beulah, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] The State has appealed an order granting, in part, Nevada Earl Norton’s motion to suppress evidence. We dismiss the appeal, because the State’s notice of appeal was not accompanied by the statutorily required statement of the prosecuting attorney.

[¶ 2] On October 2, 1999, a North Dakota Highway Patrol officer discovered a vehicle parked on 1-94 Exit 110. The officer asked Norton, who was in the driver’s seat of the parked vehicle, to get into the officer’s patrol car. After Norton was in the patrol car, the officer asked Norton for his driver’s license. Norton told the officer his license had been suspended. The officer then asked Norton if he had driven to that location, and Norton admitted driving the vehicle. The officer, who had not given Norton a Miranda warning, issued Norton a citation for driving a motor vehicle while his license was suspended, in violation of N.D.C.C. § 39-06^12.

[¶ 3] Norton moved to suppress his statements about driving the vehicle. On February 10, 2000, the trial court suppressed Norton’s statements about driving, explaining:

There can be no reasonable doubt that Officer Hulm, subsequent to the defendant’s voluntary statement that the defendant’s driving privileges were under suspension, then focused upon the defendant’s use of said motor vehicle so as to charge the defendant with the offense of driving while under the suspension. Said officer having focused his investigation upon the defendant and the specific offense of driving under suspension, was then obligated to advise the defendant of his Fourth Amendment rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The officer’s inquiry with respect to whether or not the defendant was the operator of said motor vehicle was a custodial interrogation, and mandated that the officer advise the defendant of his right to remain silent, and that any statements made by him would be used in the prosecution of the alleged offense. State v. Martin, 543 N.W.2d [224] (N.D.1996).

The State filed an interlocutory appeal from the trial court’s suppression order on February 17, 2000.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-07.

[¶ 5] The State’s right to appeal is limited by statute. State v. Schindele, 540 N.W.2d 139, 141 (N.D.1995). Section 29-28-07(5), N.D.C.C., provides the State may appeal from “[a]n order ... suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal -is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” “We require prosecutors to support their appeals with an explanation,” which “cannot be a mere paraphrase of the statutory language.” • Schindele, at 141. The purpose of the prosecuting attorney’s statement is to compel the prosecutor to carefully evaluate the State’s case, and the actual effect of a suppression order, before appealing. Schindele, at 141; State v. Grant, 361 N.W.2d 243, 245 (Ñ.D.1985).

[¶ 6] The State’s February 17, 2000, notice of appeal was not “accompanied by a statement of the prosecuting attorney,” as required by N.D.C.C. § 29-28-07(5). The State has moved for permission to file a late statement, dated April 10, 2000. Rule .3, N.D.R.App.P., and N.D.R.Crim.P. 37 provide a. notice of appeal need only “designate the party or parties taking the appeal, what is being appealed from, and the court to which the appeal is taken.” State v. Freed, 340 N.W.2d 172, 174 (N.D.1983). Thus, the prosecutor’s statement -required by N.D.C.C. § 29-28-07 to accompany the State’s notice of appeal is not necessary to confer jurisdiction. Freed, at 174. However, under N.D.R.Crim.P. 37(a) and N.D.RApp.P. 3(a), this Court may “impose whatever sanctions, including dismissal, that it deems appropriate for failure to comply with the statute.”. Freed, at 174.

[¶ 7] We addressed late statements in State v. Grant, 361 N.W.2d 243, 245 (N.D.1985):

In enacting Section 29-28-07(5), N.D.C.C., the Legislature granted only a limited right of appeal from suppression orders. State v. Rambousek, 358 N.W.2d 223 (N.D.1984); State v. Anderson, 353 N.W.2d 324 (N.D.1984); State v. Kisse, 351 N.W.2d 97 (N.D.1984). The State must make a good-faith evaluation of its case before it appeals from a suppression order. State v. Anderson, supra; State v. Frank, 350 N.W.2d 596 (N.D.1984). The purpose of the' státutory requirement will be thwarted if we continue to allow the State to ignore it. We will not condone the State’s disregard of the statutory requirement, and we therefore dismiss the appeal

Overlooking the State’s failure to file a statement of the prosecuting attorney with the notice of appeal, and accepting its tardy statement would thwart the statutory purpose of requiring the State’s prosecutors to “make a good-faith evaluation of its case before it appeals from a suppression order.” Grant, at 245. We conclude we must deny the State’s motion to file a late statement, and we therefore dismiss the State’s appeal.

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

      . In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held prosecutors may not use statements made by suspects in police custody against them, unless, before police questioning begins, the suspect is warned he has a right to remain silent, any statement he makes may be used against him, and he has a right to the presence of an attorney. "[T]he warnings have become part of our national culture.” Dickerson v. United States,-U.S. -,-, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405,-(2000).

      . Mere investigatory focus does not require Miranda warnings. State v. Stewart, 1999 ND 154, ¶ 8 n. 4, 598 N.W.2d 773; State v. Fields, 294 N.W.2d 404, 406 (N.D.1980). "[C]uslody is the determinative factor in deciding if the Miranda warnings are required.” Fields, at 407. Because we dismiss the appeal for failure to comply with N.D.C.C. § 29-28-07, we do not address the merits of the trial court’s ruling on suppression.