*1 71 for a motion denying Lillian’s The order FETZER, part, reversed Petitioner Michael J. trial is affirmed new proceedings further part, and remanded allow the opinion to consistent v. Well Ser- Sun value
trial court DIRECTOR, DEPART- NORTH DAKOTA accounts, vice, Inc., retirement Marvin’s TRANSPORTATION, Re- MENT OF Imperial Oil of Lillian’s interest Appellant. spondent and Dakota, Inc., and to redetermine North No. 910043. parties’ mari- equitable distribution property. tal Supreme Court 16, MESCHKE, J., ERICKSTAD, C.J., and WALLE, JJ., LEVINE in the result.
concur
PEDERSON, Judge, sitting Surrogate GIERKE, J., disqualified.
place of
PEDERSON, Surrogate Judge, dissent-
ing. without tried to the court
This case was appeal taken from There was no jury. appeal was taken from judgment. The declined court which
the order of the trial trial. The grant a motion for a new opinion appears to reexamine
majority appellate trial manner of an
evidence by authorized and limited
de novo or as 52(a) findings of fact NDRCivP when
Rule impres- challenged. I am left with the of a from the denial
sion that used as a for new trial can now be
motion timely appeal from
substitute for a there has been plainly do not showing in this case of “manifest abuse” There was noth- trial court discretion. “unreasonable, uncon- arbitrary, of the motion. about the denial
scionable” 450, 453 Kraft, v. 366 N.W.2d
See Kraft Rohweder, v.
(N.D.1985); Kerzmann Hoge, (N.D.1982); Hoge 84, (N.D.1979); Porter
281 N.W.2d
Porter, (N.D.1979). I denying the motion. affirm the order
would Office, Fargo, peti-
Duis Duis Law & appellee. tioner and *2 Gen., Atty. ney Ayers, Atty. Asst. then this court that he Elaine wrote elected Office, Bismarck, oppose not the respondent for to because Fetzer’s Gen.’s guilty plea any “rendered issues he could appellant. appel- raise moot.” Fetzer did not file an MESCHKE, Justice. present argument. late brief or oral of The Director the North Dakota De- We with the that (the partment Transportation Depart- of guilty plea Fetzer’s charges criminal ment) appealed judg- from a district court appeal. does not moot this If a driver reversing two-year Department’s ment 39-08-01, violates NDCC and refuses to revocation of Michael J. Fetzer’s driver’s submit to a test to determine his blood content, license. conclude that Fetzer’s license We alcohol his driver’s license can be revoked, and we therefore revoked under NDCC 39-20-04. Even judgment. though reverse the district court Fetzer’s criminal conviction of may suspension control in 9, 1990, police Fargo On June officer of his driver’s license under NDCC 39- dispatched investigate David to a Todd 06.1-10, suspension preclude a not report person an intoxicated driv- administrative revocation of Fetzer’s li ing pickup Fargo. a Ford in south brown refusing cense for a test under NDCC 39- pickup parked Officer Todd Fetzer’s 20-04. undeveloped on a hill in area within the congruence There is some between ad- city. in sleeping procedures ministrative for license with his feet in front of the driver’s seat sion and revocation. NDCC 39-06.1-10 on upper portion body lying and the of his suspensions administrative for traffic viola- keys the passenger side. The were in the provides tions for credit for time that a ignition running. but the motor wasn’t Of- imposed license revocation is for refusing a ficer Todd another officer woke Fetzer test. Subsection NDCC 39-06.1-10 appeared who to be under the influence of says: alcohol. The officers arrested Fetzer for After a of person conviction a for violate being a control of vehicle while 39-08-01, section the commissioner under of intoxicating liquor the influence shall, suspending person’s opera- 39-08-01, violation of NDCC and then license, give tor’s for the credit time in asked him to take test to determine his suspension which license or revocation blood alcohol content. Fetzer refused the being has been imposed under chap- test. 39-20 connection the same Fetzer later Depart- notified that the offense. ment to intended revoke his license under From provision, it is clear that refusing NDCC for to submit to Legislature intended to make license revo- testing required by as NDCC 39-20-01. refusing cation primary a test the ad- After an hearing, administrative the De- remedy. ministrative partment revoked his driver’s license for a Furthermore, subsection 2 of NDCC 39- period years. appealed of two Fetzer 20-04 lists the criteria met if to be a driver revocation district court. The dis- pleads guilty charges criminal is not trict court reversed the Department’s deci- to be subject administrative revocation ground sion on the that NDCC 39-08-01 refusing his license for a test. These inapplicable because Fetzer was found require criteria request the driver not in an area where the hearing administrative and that the driv- did not have vehicular er, days within 25 issuance a tem- use. porary operator’s permit, plead guilty both Department appealed from the dis- violating NDCC and notify trict Thereafter, to re- Department plea. Because none of charges solve against criminal him for his requirements these here, have been met arrest, June pled guilty privileges subject violating NDCC 39-08-01. Fetzer’s 39-20-04, attor- revocation under NDCC even pickups over the dirt hills. charges. people ran their guilty to criminal though pled he although therefore, appeal is there is conclude, that this Fetzer also We driving, road trucks also no where moot. purposes. We drove there for construction the De court reversed The district applicable 39-08-01 is hold that NDCC Fetzer’s license revocation of partment’s *3 contrary ruling the trial court’s was ground that NDCC the sole error. because, arrest apply when private prop court ed, judgment located on The of the district his public had no “the erty where reversed. rea For several for vehicular use.” ERICKSTAD, C.J., WALLE argues on sons, Department GIERKE, JJ., concluding and erred in court that the district apply. does not NDCC 39-08-01 LEVINE, Justice, concurring. specially opin- separate decision with Our recent court held that there is no district Department ions Wiederholt physical crime of actual control when the Transportation, accused is found to have committed district (N.D.1990), decided alleged private property. on offense Fetzer, ruling foreshadows interpreta the district court’s was arrest- case. Wiederholt that section 39- tion and with its conclusion physical control of a being in actual ed for 08-01, NDCC, apply private does not in violation while intoxicated motor vehicle public, to the but a property not accessible tips Based on and a 39-08-01. of NDCC majority of this court does not. Wieder road, driving gravel impaired trail of Transportation, holt v. tracks an officer followed Wiederholt’s (N.D.1990). farmyard. his Wiederholt continuing espouse purpose in I see no pickup, parked in his “passed out” in his and will henceforth my minority view road- farmyard, 100 feet from the about majority. meekly join ranks with the license was la- way. Wiederholt’s driver’s years by the commis- suspended for two
sioner, upheld court and this majority opinion held that NDCC
sion. The applied control of separate A private property.
vehicle justices concluded that concurrence of two TRUST, FIRST TRUST ADOLPH RUB inwas the record showed that Wiederholt DAKOTA, OF NORTH COMPANY highway and that it physical control on Plaintiff applica- unnecessary to decide whether physical control on applied statutes ble private property. Since RUB, Defendant Duane E. property ac- occurred on control violation Appellant, use, public it is for vehicular cessible separate analy- unnecessary repeat Rub, Marlys NoDak Ranch & Home M. used to decide ses Wiederholt. America, Supply and United States arrested, When Fetzer was through acting Farmers Home Admin- sitting on hills in a residential dirt istration, Department of United States 10 to 15 feet from a development about Agriculture, Defendants. roadway. did not own the paved Nos. 910051. upon but property which large at simply one of the Supreme Court “doing mud run- open used this area for running the little hills that were ning and working on home out there.” He had been
construction in that area and objected when developers hadn’t before