Opinions

State v. Bergstrom 2004 ND 48
Docket No.: 20030160
Filing Date: 2/27/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A search warrant is valid if it is supported by probable cause and it particularly describes the place to be searched and the persons or things to be seized.
A four-factor balancing is used to evaluate the validity of a speedy trial claim: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused.

Vandall v. Trinity Hospitals, et al. 2004 ND 47
Docket No.: 20030255
Filing Date: 2/27/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: There is no common law tort for retaliatory discharge in North Dakota because of the statute.
A 180-day statute of limitations governs a claim for retaliatory discharge.
An individual who merely provides facts concerning the conduct of another to an administrative board possessing the authority to issue charges is not liable for wrongful use of civil proceedings before an administrative board.
In a claim for intentional infliction of emotional distress, the conduct must be so extreme in degree as to be beyond all possible bounds of decency and utterly intolerable in a civilized society.
A trial court may award attorneys' fees to a prevailing party in an action for retaliatory discharge brought under the statute.

Muhammed v. Welch 2004 ND 46
Docket No.: 20030182
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: Service on a decedent's widower is not service on the decedent's estate.
The fraudulent concealment necessary to extend a statute of limitations an additional year under section 28-01-24, N.D.C.C., relates to concealment of the cause of action, not concealment of the death of a party.
Equitable estoppel may preclude application of a statute of limitations as a defense by one whose actions mislead another, inducing that person to not file a claim within the statutory period.
An insurance adjuster acting for an insurance company may be considered the agent of the insured so as to estop the defendant-insured from raising the statute of limitations defense.
Representatives of a deceased defendant may have an affirmative duty to inform the plaintiff of the defendant's death.

Harfield, et al. v. Tate (Cross-ref. w/19980345) 2004 ND 45
Docket No.: 20030039
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: The commission of an act cannot be proved by showing the commission of similar acts by the same person at other times, or by showing the act was in conformity with the person's character or a character trait.

State v. Lemons 2004 ND 44
Docket No.: 20030029
Filing Date: 2/25/2004
Case Type: Appeal - Criminal - Assault
Author: Neumann, William

Highlight: A trial court's refusal to allow a defense witness to testify by telephone is not an abuse of discretion because the Rules of Criminal Procedure provide that all testimony is to be taken orally in open court.
Denial of a motion for continuance to procure an absent witness is not obvious error when a defendant fails to demonstrate the denial affected a substantial right.
Without a showing of prejudice, a trial court's denial of a motion for new trial is not an abuse of discretion.

State v. Ochoa (Consolidated w/20030133) 2004 ND 43
Docket No.: 20030132
Filing Date: 2/25/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Without an unequivocal waiver of the constitutional right to counsel or an unequivocal assertion of the constitutional right to self-representation, a trial court is not required to permit self-representation or inquire into the issue of self-representation.
Hybrid representation is not a constitutional right. A defendant's request to proceed in such a manner is not an unequivocal assertion of a defendant's Sixth Amendment right to self-representation.

Wutzke v. Hoberg, et al. 2004 ND 42
Docket No.: 20030300
Filing Date: 2/25/2004
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: A party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts to be compelled by the writ and must demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of law.

Seibel v. Seibel 2004 ND 41
Docket No.: 20030095
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Dixon v. McKenzie Co. Grazing Association 2004 ND 40
Docket No.: 20030005
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The governing body of a cooperative grazing association is subject to the general law governing directors of cooperatives.
The good-faith acts of cooperative directors within the cooperative's power and in the exercise of honest business judgment are valid.
A court generally will not interfere with or regulate the conduct of a cooperative's directors in the reasonable and honest exercise of their judgment and duties when their judgment is uninfluenced by personal consideration.

St. Claire, et al. v. St. Claire 2004 ND 39
Docket No.: 20030233
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Although prisoners have diminished constitutional protections, they maintain a due process right to reasonable access to the courts.
Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.
A person's due process right to appear may be satisfied by allowing appearance via telephone.

Interest of D.L.M. 2004 ND 38
Docket No.: 20030240
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The child support guidelines require the imputation of income when an obligor is unemployed.
A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining a child support obligation.
If the trial court finds the presumptively correct child support amount has been rebutted, it must make a specific finding.

Nesvig v. Nesvig 2004 ND 37
Docket No.: 20030041
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The actual nature of the subject matter of an action determines whether an action is a legal malpractice case.
Good faith is not a defense to a legal malpractice action.
A fiduciary relationship exists when one is under a duty to give advice for the benefit of another upon matters within the scope of the relationship.
An attorney may undertake to manage or invest a client's property, and in doing so, the attorney not only must conform to the applicable standard of care and comply with the fiduciary obligations, but also may assume the responsibilities of a trustee.

State v. Utvick 2004 ND 36
Docket No.: 20030103
Filing Date: 2/25/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Probable cause is not established for a no-knock search warrant when the magistrate is not presented with any information regarding the suspect's ability to destroy the evidence or the ease with which evidence may be destroyed.
State courts apply the good-faith exception to the exclusionary rule in a manner consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
The good-faith exception to the federal exclusionary rule must be considered when a no-knock warrant has been issued in error.
A no-knock search warrant is not issued on a per se basis when the officer presents information sufficiently particularized to rebut any legal conclusion that the warrant was issued on a per se basis, even though the information was not sufficiently particularized to provide probable cause for a no-knock provision.

Swancy v. Tjon, et al. 2004 ND 35
Docket No.: 20030263
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment dismissing tort claims after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

United Community Bank v. Delorme, et al. (Consolidated w/20030262) 2004 ND 34
Docket No.: 20030251
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Foreclosure
Author: Per Curiam

Highlight: Judgment granting foreclosure and order approving sheriff's sale are summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Swensrud v. Gates 2004 ND 33
Docket No.: 20030232
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Distribution of property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Judicial Vacancy in District Judgeship No. 4, Northwest Judicial District 2004 ND 32
Docket No.: 20040017
Filing Date: 2/18/2004
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Minot.

Morton Co. S.S.B., et al. v. Schumacher 2004 ND 31
Docket No.: 20030226
Filing Date: 2/2/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Use of a dangerous weapon without domestic violence is not enough to create a rebuttable presumption against awarding custody under N.D.C.C. 14-09-06.2(1)(j).
Under some circumstances, destroying property with a dangerous weapon could be domestic violence.
If a presumption against custody arises under N.D.C.C. 14-09-6.2(1)(j), the presumption must be rebutted by clear and convincing evidence.
Clear and convincing evidence to rebut a presumption against custody may require the accused to demonstrate why custody with the accuser is not in the child's best interests.
Clear and convincing evidence exists to rebut the presumption when none of the "best interests of the child" factors favor the other party.

State v. Bollingberg (Consolidated w/20020349 & 20020350) 2004 ND 30
Docket No.: 20020348
Filing Date: 1/28/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A court may look to other parts of a search warrant to determine whether the command portion suffers from a clerical error.
When there is no indication of any logical reason why a requested search was prohibited in a search warrant, this may be evidence of a clerical error.

First Union National Bank v. RPB 2, LLC, et al. 2004 ND 29
Docket No.: 20030021
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Consideration is not required for the release or waiver of a mechanic's lien to be effective.
Once a lien claimant files a signed waiver or release of a mechanic's lien, the lien may not be revived by the subsequent filing of another lien.
Fraud in procuring release of a mechanic's lien must be proved by clear and convincing evidence.

Peters-Riemers v. Riemers 2004 ND 28
Docket No.: 20030081
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A pro se defendant in a contempt proceeding must be informed of the right to court-appointed counsel when a remedial contempt sanction includes the likelihood of incarceration.

Baier v. Job Service ND, et al. 2004 ND 27
Docket No.: 20030287
Filing Date: 1/28/2004
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: A person is disqualified from receiving unemployment benefits if discharged for misconduct in connection with employment.
An employee who deliberately violates or disregards standards of behavior that the employer rightfully expects is guilty of disqualifying misconduct.

Pierce, et al. v. B.P.O. of Elks 2004 ND 26
Docket No.: 20030017
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Whether a lessee has surrendered a lease by operation of law or made a good-faith attempt to mitigate damages for the lessor's breach of the lease is a question of fact not subject to disposition by summary judgment.

Interest of J.P. and D.P. (CONFIDENTIAL)(Consolidated w/20030118) 2004 ND 25
Docket No.: 20030117
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: Under state law, a juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer, serious physical, mental, moral, or emotional harm.
Under the Indian Child Welfare Act, a petitioner for termination of parental rights must (1) demonstrate by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful, and (2) prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt.

Gross v. ND Dept. of Human Services (cross-reference w/20020086) 2004 ND 24
Docket No.: 20030224
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The Dept. of Human Services may place a Medicaid recipient in the lock-in program for excessive utilization of medical services from more than one provider when those excessive medical services may increase the possibility of adverse affects to the recipient's health or may result in a decrease in the overall quality of care to the recipient and when there is little or no evidence of a medical need.

State v. Roth 2004 ND 23
Docket No.: 20030102
Filing Date: 1/28/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Irrelevant information in an affidavit for a search warrant will not negate a magistrate's finding of probable cause, if there is also enough other information in the affidavit to support the finding of probable cause. It is the duty of the magistrate to filter out the non-probative information and examine the remaining information to determine whether probable cause exists for issuance of the search warrant.
There was no violation of defendant's right to be free from unreasonable searches and seizures when, in executing a valid search warrant with an invalid no-knock provision, officers functionally excised the invalid portion of the search warrant by knocking and announcing their presence prior to entering the residence.

Chapman v. Chapman 2004 ND 22
Docket No.: 20030094
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A party is entitled to have a court decide the merits of a dispute only after demonstrating standing to litigate the issues placed before the court.
Only parties may appeal district court decisions.
Issues may not be raised for the first time on appeal.

Winer v. Penny Enterprises, Inc., et al. 2004 ND 21
Docket No.: 20030114
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
A state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident on a state highway within the exterior boundaries of an Indian reservation.

Wohlwend v. Wohlwend 2004 ND 20
Docket No.: 20030243
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Judicial Vacancy in District Judgeship No. 3, East Central Judicial Dt 2004 ND 19
Docket No.: 20040029
Filing Date: 1/28/2004
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Matter of Edwardson (CONFIDENTIAL) 2004 ND 17
Docket No.: 20030331
Filing Date: 1/20/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Debra K. Edwardson transferred to incapacitated status.

Zuger v. State 2004 ND 16
Docket No.: 20030170
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Summary judgment is appropriate if the information available to the trial court does not establish a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
Factual assertions in a brief do not raise an issue of material fact satisfying N.D.R.Civ.P. 56(e).
The elements of an action for intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress.

Tank v. Tank 2004 ND 15
Docket No.: 20030111
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.

Mock v. Mock 2004 ND 14
Docket No.: 20030115
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A party seeking a change of child custody is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody change.
Potential endangerment to a child's physical or mental health may be a significant change of circumstances supporting a modification of custody.
The district court may consider pre-divorce conduct when the facts were unknown to the court at the time of the original stipulation.

Disciplinary Board v. Wilkes 2004 ND 13
Docket No.: 20040012
Filing Date: 1/15/2004
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Interim suspension of lawyer ordered.

Green v. Mid Dakota Clinic 2004 ND 12
Docket No.: 20030264
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: Assumption of the risk is no longer an affirmative defense in North Dakota but is one part of the analysis in determining comparative fault.
Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion.

Amsbaugh v. Amsbaugh 2004 ND 11
Docket No.: 20030059
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The owner of real property may testify as to the value of his land without further qualification or special knowledge.
If a property valuation is within the range of evidence, it is not clearly erroneous.
A property division need not be equal to be equitable, but a substantial disparity must be explained.
In determining an equitable allocation of repayment of debts, the trial court may consider which parties have incurred particular debts and the purposes for the debts.
Both economic and non-economic fault are proper factors for the trial court to consider in dividing marital property.
Uncontrolled drinking contributing to the breakdown of a marriage can be considered a matter of fault in determining whether a spouse is disadvantaged.

State v. Morales 2004 ND 10
Docket No.: 20030107
Filing Date: 1/14/2004
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: A court does not err by not giving a jury instruction on license or privilege on a criminal trespass charge when there is no evidence to support it.
A court does not err when it does not include a jury instruction on a lesser-included offense when the evidence does not permit the jury to rationally find the defendant not guilty of the greater offense and guilty of the lesser offense.
A jury verdict of assault on a police officer will be affirmed when the evidence is viewed in the light most favorable to the verdict, no rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt.

Nagel v. City of Bismarck 2004 ND 9
Docket No.: 20030265
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Maring, Mary

Highlight: A writ of mandamus may be the proper remedy for a city police officer who claims wrongful termination in violation of city ordinances and police department general orders.
Absent an abuse of discretion, a trial court's denial of a petition for a writ of mandamus will not be overturned.
A party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts sought to be compelled by the writ.
A party seeking a writ of mandamus must have no other plain, speedy, and adequate remedy in the ordinary course of the law.
Mandamus is unavailable if an appeal is authorized from an adverse decision.

Interest of W.O. (CONFIDENTIAL) (cross-reference w/20030323 & 20030340) 2004 ND 8
Docket No.: 20030358
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: An appeal of a district court's amended order revoking less restrictive treatment is rendered moot once the patient is released from the hospital and is placed on an identical order for less restrictive treatment.

Lee v. ND Dept. of Transportation 2004 ND 7
Docket No.: 20030168
Filing Date: 1/14/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: In a driver's license administrative hearing involving an Intoxilyzer test, documentation requirements are not met when the approved method of administering the test is not admitted into evidence.

Eagleman v. State 2004 ND 6
Docket No.: 20030149
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: The movant for summary disposition of a petition for post-conviction relief bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts and that the movant is entitled to judgment as a matter of law.
Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel's performance and the impact on the defendant's case.
An unconditional guilty plea constitutes an admission of all the essential elements of the crime charged, including admission of jurisdictional facts.

Binek v. Binek 2004 ND 5
Docket No.: 20030154
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: The enforceability of a premarital agreement entered into prior to the adoption of N.D.C.C. ch. 14-03.1 is governed by common law.
A premarital agreement is enforceable under the common law if it is fair, reasonable, equitable, and just; does not contravene public policy; and was fairly entered into.
An award of spousal support is not precluded by a premarital agreement that applies only to the couple's property in the form of a property distribution as a result of divorce.

Fargo Glass and Paint v. Randall 2004 ND 4
Docket No.: 20030196
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Under N.D.R.Civ.P. 60(a), there is no clerical mistake in a judgment if it accurately reflects uncontroverted evidence in the proceedings.
Rule 60(a) cannot be used to introduce a new party to an action.

State v. Heckelsmiller 2004 ND 3
Docket No.: 20030179
Filing Date: 1/14/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction of Criminal Trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Judicial Vacancy in District Judgeship No. 2, East Central Judicial Dt 2004 ND 2
Docket No.: 20040008
Filing Date: 1/14/2004
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

State v. Skalicky (Consol. w/20030164-20030167) 2004 ND 1
Docket No.: 20030163
Filing Date: 1/14/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Saefke v. Stenehjem, et al. 2003 ND 202
Docket No.: 20030202
Filing Date: 12/29/2003
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An action by a private party against the attorney general to challenge the correctness of an attorney general's opinion does not present a justiciable controversy.
A petitioner is not entitled to a writ of mandamus to compel a state's attorney to institute proceedings because the petitioner has a plain, speedy, and adequate remedy available under N.D.C.C. 11-16-06.
An order refusing to appoint a private attorney to initiate proceedings under N.D.C.C. 11-16-06 is not appealable.
The Supreme Court's jurisdiction to issue a supervisory writ is discretionary.

DuPaul v. ND Dept. of Transportation 2003 ND 201
Docket No.: 20030173
Filing Date: 12/23/2003
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: A motorist may not appeal an administrative decision by the Department of Transportation to the district court and simultaneously petition for reconsideration of the Department's denial. If the motorist files a petition for reconsideration, the motorist may appeal the order on reconsideration to the district court.

Gratech Co., Ltd. v. Wold Engineering, P.C. 2003 ND 200
Docket No.: 20030181
Filing Date: 12/23/2003
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Contracts for the construction and repair of a highway can include contracts for engineering and other professional services needed to complete the construction or repair.
Controversies between a contractor and a third party arising out of any contract for the construction or repair of highways entered into by the director of the department of transportation must be submitted to arbitration, and the arbitrators shall determine all controversies growing out of the contract.