Opinions

Estate of Vestre 2011 ND 144
Docket No.: 20100400
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A trial court has broad discretion to grant relief from the waiver of the right to a jury trial.
If a case goes to trial after a motion for summary judgment is denied, the question whether the trial court erred in denying summary judgment is moot; the appropriate question on appeal is whether the trial court erred in denying the movant's subsequent motion for judgment as a matter of law.
To establish undue influence, the person challenging the will must prove: 1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence.

State v. Gonzalez 2011 ND 143
Docket No.: 20110051
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Appellate review of a sentencing court's decision is confined to whether the sentencing court acted within the limits prescribed by statute or substantially relied on an impermissible factor.

Interest of D.J. (CONFIDENTIAL) 2011 ND 142
Docket No.: 20100403
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A juvenile court may require production of court-ordered reports or evaluations for purposes of making necessary findings on the requirements for a juvenile to register as a sexual offender.

State v. Kleppe (consolidated w/20110029) 2011 ND 141
Docket No.: 20100354
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: The defense of depredation does not apply to the offense of unlawfully taking and possessing big game because deer is not a fur-bearer.
The offense of unlawfully taking and possessing big game is a strict liability offense because the statute defining the offense does not contain a culpability requirement. A statute establishing a strict liability offense, however, does not always preclude an affirmative defense.
A defendant may be entitled to a jury instruction on excuse and his conduct may be excused if the evidence shows the defendant believed the facts were such that his conduct was necessary and appropriate for any of the purposes that would establish a justification or excuse under N.D.C.C. ch. 12.1-05, even though his belief was mistaken. A mistaken belief of the law is rarely available as a defense and is generally precluded when the offense is a strict liability offense that contains no culpability requirement.
At a restitution hearing, the State has the burden of proving the amount of restitution by a preponderance of the evidence.

Silbernagel, et al. v. Silbernagel, et al. (Consol. w/ 20100394 & 20100395) 2011 ND 140
Docket No.: 20100393
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: When a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
A judgment is construed to give effect to each and every part of it and bring all different parts into harmony as far as can be done by a fair and reasonable interpretation.
Parties' objective manifestations from a settlement agreement and judgment, rather than their secret or subjective manifestations of intent, control the interpretation of the judgment.

State v. Stroh 2011 ND 139
Docket No.: 20100157
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The admissibility of an Intoxilyzer test result is governed by N.D.C.C. 39-20-07(5).
Fair administration of an Intoxilyzer test may be established by proof that the State Toxicologist's approved method for conducting the test has been scrupulously followed. However, "scrupulous" compliance does not mean "hypertechnical" compliance.
The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.
Observing the person to be tested is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.

Vanlishout v. ND Dept. of Transportation 2011 ND 138
Docket No.: 20110017
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Actual physical control does not require that the defendant be able to instantaneously operate the vehicle. Rather, defendant must be able to manipulate the controls of the vehicle and must be under the influence of intoxicating liquor, drugs, or other substances.

State v. McElya 2011 ND 137
Docket No.: 20100349
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: Double jeopardy is a defense that may be waived and must be raised at some point in proceedings before the district court.

Crandall v. Crandall 2011 ND 136
Docket No.: 20100402
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The child support guidelines require a parent who does not have primary residential responsibility of a child to pay child support to the parent awarded primary residential responsibility.
Financial misconduct and dissipation of assets are grounds for an unequal property distribution.

Willits v. Job Service of ND, et al. 2011 ND 135
Docket No.: 20100375
Filing Date: 7/13/2011
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: To be eligible for unemployment benefits, the employee must make reasonable efforts to preserve one's employment.
An employee who voluntarily quits before the employer has been given a reasonable chance to resolve identified problems is not entitled to unemployment benefits.

Krueger v. Krueger 2011 ND 134
Docket No.: 20100264
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: While the district court may not solely rely on a child's preferences regarding visitation, they may be a relevant consideration in the best interests of the child analysis.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure.

Gussiaas v. Neustel (cross-reference 20100086) 2011 ND 133
Docket No.: 20100386
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Change of primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Smith v. Martinez 2011 ND 132
Docket No.: 20100309
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A court must address the presumption against awarding primary residential responsibility to the perpetrator of domestic violence when there is evidence of domestic violence on the record.

State v. Aabrekke 2011 ND 131
Docket No.: 20100170
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In considering whether evidence of prior crimes, wrongs, or bad acts is admissible, a court must apply a three-step analysis to determine: (1) the purpose for which the evidence is introduced; (2) that the evidence of the prior acts is substantially reliable or clear and convincing; and (3) in criminal cases that there is proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented without consideration of the evidence of the prior acts.
A court must give a cautionary instruction about the limited purpose for the use of prior bad acts evidence and must further determine whether the probative value of the evidence substantially outweighs any possible prejudicial effect of the evidence.

State v. Ennen 2011 ND 130
Docket No.: 20110003
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for surreptitious intrusion is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Interest of A.S. (CONFIDENTIAL) (CONSOL. W/ 20110117 - 20110120) 2011 ND 129
Docket No.: 20110116
Filing Date: 7/13/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

Highlight: Juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Nemec v. Disciplinary Board 2011 ND 128
Docket No.: 20110136
Filing Date: 7/11/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstatement ordered.

State v. Blunt (Cross-reference w/20070247 & 20090110) 2011 ND 127
Docket No.: 20100308
Filing Date: 6/28/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The district court has discretion in applying a remedy when a violation of the discovery rules has been shown, and the court's decision will not be reversed on appeal unless the court abuses its discretion.
The court's decision on a discovery violation is reversible error only if the defendant has been denied a substantial right, and a substantial right has not been denied if the defendant is not significantly prejudiced.

Murchison v. State (Cross-reference 20030328) 2011 ND 126
Docket No.: 20100281
Filing Date: 6/27/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A court may deny an application for post-conviction relief if the same or similar issues supporting the application were considered on a direct appeal from a criminal judgment and are barred by res judicata.
A defendant bears a heavy burden in proving he received ineffective assistance of counsel, and he may be denied relief where he failed to prove any prejudice resulted.

Day v. Haskell, et al. 2011 ND 125
Docket No.: 20110096
Filing Date: 6/24/2011
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: When a criminal proceeding terminates after jeopardy attaches but before a verdict, double jeopardy does not prohibit the retrial of the accused if there was a manifest necessity for granting the mistrial.
There is no mechanical formula for deciding whether the termination of a criminal trial was supported by a manifest necessity, but the court should consider whether counsel were afforded an opportunity to be heard on the issue, whether alternatives to a mistrial were explored, and whether the court's decision was made after sufficient reflection.

Kaspari v. N.D. Dep't. of Human Services 2011 ND 124
Docket No.: 20100379
Filing Date: 6/24/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Administrative regulations are derivatives of statutes and are construed under rules for statutory construction.
A Medicaid applicant's recipient liability is the amount of monthly net income remaining after all appropriate deductions, disregards, and Medicaid income levels specified in the applicable Medicaid regulations have been allowed, and an applicant is not entitled to deductions for mortgage interest and real estate taxes paid for the applicant's interest in a life estate.

State v. Seewalker 2011 ND 123
Docket No.: 20100201
Filing Date: 6/24/2011
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Order denying motion to withdraw guilty pleas is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Zink, et al. v. Enzminger Steel LLC 2011 ND 122
Docket No.: 20100359
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: In the cautious exercise of its discretion, a district court may unilaterally dismiss a complaint for failure to state a valid claim. The court must, however, give the parties notice of its intentions and allow for an opportunity to respond.
If a motion to dismiss demands proof outside of the pleadings, the motion is treated as one for summary judgment.

Godon v. Kindred School District 2011 ND 121
Docket No.: 20100356
Filing Date: 6/23/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A written contract can be altered by a contract in writing or by an executed agreement, and the agreement to alter the terms of the contract must generally be supported by new or additional consideration.
A party asserting breach of contract has the burden of proving the elements of a prima facie case for breach, which are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the breach.
Frustration of purpose occurs when after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made.
Class-of-one protection does not apply to public employees under the equal protection clause of the United States Constitution.

In the Interest of L.T., a child (CONFIDENTIAL) 2011 ND 120
Docket No.: 20100329
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Sandstrom, Dale

Highlight: The statute restricting a parent's right to court-appointed counsel during certain phases of a juvenile delinquency proceeding does not violate the parent's constitutional right to equal protection under law.
A juvenile court is not required to inform a parent of the collateral consequences of a juvenile's admissions to charges.

Interest of R.A. (CONFIDENTIAL) 2011 ND 119
Docket No.: 20100343
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A juvenile case must be transferred to district court if the child was fourteen years of age or more at the time of the alleged conduct and the court determines there is probable cause to believe the child committed the offense of gross sexual imposition of a victim by threat of imminent death, serious bodily injury, or kidnapping.
Probable cause is a minimal burden of proof, and probable cause exists if there is a definite probability based on substantial evidence the offense has been committed.
Imminent means near at hand, mediate rather than immediate, close rather than touching, on the point of happening, threatening, menacing, or perilous.
The juvenile transfer statute requires a juvenile court to transfer the offense of gross sexual imposition by threat of imminent death, serious bodily injury, or kidnapping, and does not require the threat be of physical harm to the victim.

Interest of T.S. (CONFIDENTIAL) 2011 ND 118
Docket No.: 20100322
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: The legislature has the power to determine the age of criminal responsibility. Children over the age of seven are presumed capable of committing a criminal offense.
Juveniles have a due process right not to be subjected to the adjudicative stage of juvenile proceedings while incompetent. A juvenile court must hold a competency hearing when evidence establishes sufficient doubt as to the juvenile's competency to proceed.

State v. Howard 2011 ND 117
Docket No.: 20110008
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A court does not abuse its discretion in denying an application for post-conviction relief when the factual basis to support the defendant's plea of guilty to delivery of a controlled substance establishes the defendant admitted to transferring the controlled substance to the buyer in his vehicle.

State v. Hinojosa 2011 ND 116
Docket No.: 20100218
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: When a defendant, through his own actions or the actions of his attorney, substantially contributes to the State's not bringing charges to trial within the 90-day period required by the Uniform Mandatory Disposition of Detainers Act, the defendant cannot merely rely upon expiration of the 90-day period to have the charges against him dismissed.
Good cause for delay exists when defense counsel requires additional time for preparation and investigation to ensure that a defendant receives effective assistance of counsel.
A defendant who claims insufficient evidence bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

G.K.T. v. T.L.T., et al. (CONFIDENTIAL) 2011 ND 115
Docket No.: 20100381
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: In assessing a claim for intentional infliction of emotional distress, the district court must first determine if, as a matter of law, the defendant's conduct is sufficiently extreme and outrageous to permit recovery; but if the district court determines that reasonable people could differ, the question of whether the defendant's conduct is sufficiently extreme and outrageous is left to the trier-of-fact.
Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

State v. Midell 2011 ND 114
Docket No.: 20100286
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: In light of the limited purpose and scope of a preliminary hearing, the district court has the authority to assess the credibility of witnesses only when, as a matter of law, the testimony is implausible or incredible.
A mere conflict of testimony in a preliminary hearing is a question of fact left for the jury, and that the district court must draw the inference favorable to the prosecution.
Section 12.1-20-03(1)(c), N.D.C.C., does not require the victim to have been actually unaware that a sexual act was being committed upon her; it requires the defendant to have actually known, or have reasonable cause to believe, that the victim was unaware a sexual act was being committed upon her.

F/S Manufacturing v. Kensmoe 2011 ND 113
Docket No.: 20100167
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A judgment is canceled of record ten years after its entry if it has not been renewed, or after twenty years if it has been renewed.
A judgment creditor may renew a judgment either by commencing a separate action to renew or by filing an affidavit under the simplified statutory procedure.
Under North Dakota law, the statute of limitations for an action against a person may be tolled based on that person's absence from the state, but the time for filing a affidavit of renewal is not tolled.
Under North Dakota law, the time for the judgment creditor to file a renewal affidavit is not tolled by the judgment debtor's bankruptcy proceedings.

Varriano v. Varriano 2011 ND 112
Docket No.: 20100278
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The factors a court should rely on in determining whether two people cohabited include whether a common residence was established; whether there was a long-term sexual, intimate, or romantic involvement; whether there were shared assets or common bank accounts; whether there was joint contribution to household expenses; and whether there was a recognition of the relationship by the community as a relationship including cohabitation.
There is no one factor that is an absolute prerequisite for a finding of cohabitation.

Interest of T.T., a Child (CONFIDENTIAL) 2011 ND 111
Docket No.: 20110066
Filing Date: 6/21/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: A sequestration order does not prohibit out-of-court communication unless the court specifically states the communication is prohibited.
Social services can pursue termination of parental rights and reunification of a parent and child at the same time.

Disciplinary Board v. Stensland 2011 ND 110
Docket No.: 20100304
Filing Date: 6/21/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court defers to a hearing panel's findings on the credibility of witnesses in a disciplinary proceeding because the hearing panel had the opportunity to observe the witnesses' demeanor and hear the witnesses testify.
Sequestration of witnesses is intended to prevent witnesses from tailoring their testimony in light of the testimony of other witnesses and to permit discovery of false testimony and other credibility problems.
Each disciplinary matter must be considered on its own facts when deciding the appropriate sanction to apply.

Landrum v. Workforce Safety and Insurance 2011 ND 108
Docket No.: 20100374
Filing Date: 6/21/2011
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Administrative res judicata must be applied in light of N.D.C.C. 65-05-04, which grants WSI continuing jurisdiction to review an award of benefits.
WSI's continuing jurisdiction is not contingent on the presence of new medical evidence.
The underlying purpose of administrative res judicata, to preserve scarce administrative resources and avoid wasteful expense and delay, guides the application of the doctrine.
The claimant bears the burden of proving by a preponderance of the evidence a continuing entitlement to benefits.

Becker v. Becker 2011 ND 107
Docket No.: 20100225
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court must comply with the child support guidelines to determine an obligor's child support obligation, and a court errs as a matter of law if it fails to comply with the guidelines.
A court must properly find an obligor's net income, applying the child support guidelines, and must make specific findings about the net income and how it was determined.
An unemployed or underemployed child support obligor's income cannot be imputed if the obligor's actual gross earnings from all types of income exceed the greatest amount of income that could be imputed.

State v. Zottnick (CONSOLIDATED W/20110069) 2011 ND 106
Docket No.: 20100111
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for simple assault-domestic violence (second offense or more) and order denying post-conviction relief application affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Matter of J.M. (CONFIDENTIAL) 2011 ND 105
Docket No.: 20100398
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order continuing commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Rogers 2011 ND 104
Docket No.: 20110033
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Amended criminal judgment and order revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Shoup 2011 ND 103
Docket No.: 20110005
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of C.L.(CONFIDENTIAL) 2011 ND 102
Docket No.: 20110111
Filing Date: 6/21/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order granting motion to terminate parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Application of Bjerke 2011 ND 101
Docket No.: 20110022
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Other
Author:

Highlight: Order granting application to change minor child's name summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Garten v. State 2011 ND 100
Docket No.: 20100382
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: The district court judgment denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Quilt 2011 ND 99
Docket No.: 20100397
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order civilly committing a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Johnson v. State (consolidated w/20110042) 2011 ND 98
Docket No.: 20110041
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment summarily dismissing application for post-conviction relief is affirmed under N.D.R.App.P. 35.1(a)(6).

Estate of Dionne (cross-reference w/20090016) 2011 ND 97
Docket No.: 20100353
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Judgment that parties intended to convey the entirety of certain real estate summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Disciplinary Board v. McDonagh 2011 ND 96
Docket No.: 20110167
Filing Date: 6/10/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Riverwood Commercial Park, et al. v. Standard Oil Co., et al. (Cross w/20060122 2011 ND 95
Docket No.: 20100268
Filing Date: 5/20/2011
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Grants of interests in real property are interpreted in like manner with contracts in general.
The principal difference between an easement and a license is that a license is revocable at will.
If extrinsic evidence is conclusive and undisputed, the determination of the meaning of a contract is a function for the court to resolve as a matter of law.

Spratt v. MDU Resources Group, Inc., et al. 2011 ND 94
Docket No.: 20100266
Filing Date: 5/18/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The modified McDonnell Douglas test used in employment discrimination cases is inapplicable when the plaintiff presents direct evidence of discrimination.
To survive a motion for summary judgment in an age discrimination case, there must be some showing beyond the mere fact that the terminated employee was over age forty.