Opinions

Olson v. Workforce Safety and Insurance 2008 ND 59
Docket No.: 20070094
Filing Date: 3/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 2003 version of N.D.C.C. 65-01-02(5)(b), the calculation of a self-employed worker's average weekly wage was based upon the net profit shown on Schedule C of his preceding year's tax return.

Hitz v. Hitz 2008 ND 58
Docket No.: 20070211
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.

Erickson, et al. v. Brown, et al. 2008 ND 57
Docket No.: 20070044
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.

Serr v. Serr 2008 ND 56
Docket No.: 20070231
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

Young v. Young 2008 ND 55
Docket No.: 20070293
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.

Niemann v. Niemann 2008 ND 54
Docket No.: 20060332
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.

Buchholtz v. Director, N.D. Dept. of Transportation 2008 ND 53
Docket No.: 20070241
Filing Date: 3/20/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed.
"Observing" a DUI arrestee is not the only manner of "ascertaining" that the arrestee had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

State v. Jacobsen 2008 ND 52
Docket No.: 20070105
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: An order revoking probation is reviewed under a two-step analysis, determining (1) whether the factual finding of a probation violation was clearly erroneous and (2) whether the district court abused its discretion when it decided revocation of probation was warranted.
Although the State generally has the burden of proving by a preponderance of the evidence that the defendant violated the terms of probation, when revocation proceedings are triggered by a failure to pay restitution, the defendant has the burden to raise and prove an inability to pay restitution as ordered by the court.
A sentencing court generally may revoke probation and impose incarceration for failure to pay restitution only after considering the reason for nonpayment and whether there are adequate alternative forms of punishment, but this limitation does not apply when restitution is ordered as part of a plea agreement.

Interest of B.B. (CONFIDENTIAL) (Cross-ref. w/ 20060322) 2008 ND 51
Docket No.: 20070233
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Juvenile Law
Author: VandeWalle, Gerald

Highlight: A child is deprived if clear and convincing evidence shows the child is without the proper parental care necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents or guardians.
Reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home, and to make it possible for a child to return safely to the child's home.

State v. Brockel 2008 ND 50
Docket No.: 20070139
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: An officer can order a driver to sit in the patrol car when the officer issues a citation.
To justify a pat-down search, an officer must have a reasonable suspicion the person is armed and dangerous, or the person consented to the search.

Makedonsky v. ND Department of Human Services 2008 ND 49
Docket No.: 20070183
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: An applicant for Medicaid benefits has the burden of proving eligibility.
An applicant for Medicaid benefits may be required to initiate an appropriate legal action to make an asset available for purposes of calculating eligibility for Medicaid benefits.
An attorney in fact has a relation of personal confidence with the principal and is deemed a trustee, and all transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.

White v. Altru Health System, et al. 2008 ND 48
Docket No.: 20070031
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: The medical malpractice statute in effect at the time of injury applies.

Huwe v. Workforce Safety and Insurance 2008 ND 47
Docket No.: 20070067
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Although WSI has the authority to weigh the credibility of medical evidence and resolve conflicting medical opinions, it may not do so in an unreasoned manner but must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.
A claimant reapplying for disability benefits under N.D.C.C. 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition.

Mulske v. State 2008 ND 46
Docket No.: 20070245
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Not Available

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Heyen v. State 2008 ND 45
Docket No.: 20070271
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Tibor (Consolidated w/ 20070190 & 20070191) 2008 ND 44
Docket No.: 20070189
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: District court criminal judgments for guilty of gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Darby (Cross Reference w/20060368 & 20060278) 2008 ND 43
Docket No.: 20070092
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Theft
Author: Not Available

Highlight: A criminal judgment for burglary and simple assault is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Disciplinary Board v. Vela (Consol. w/ 20080032; Cross ref. 20050173) 2008 ND 42
Docket No.: 20080031
Filing Date: 3/17/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered

Sabo, et al. v. Keidel, et al. 2008 ND 41
Docket No.: 20070206
Filing Date: 3/3/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Summary judgment may be appropriate in a case regarding an unambiguous trust.
Extrinsic evidence is not admissible to contradict the terms of an unambiguous trust instrument.
A life estate holder's interest in property includes both the right to possession and use including the right to profits generated by the property during the tenant's life.

Langer, et al. v. Bartholomay, et al. 2008 ND 40
Docket No.: 20070056
Filing Date: 2/29/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Custom and usage may be given effect as part of a written contract if the agreement is silent or ambiguous on a point and there is a well-established custom concerning a subject so that the parties may be presumed to have acted with reference to the custom.
Time is generally of the essence in exercising an option, and the optionee must perform the terms of the option within the specified time and upon the terms and conditions provided in the agreement.
There are many different methods that may be used to prove damages for lost profits resulting from a breach of contract, but whichever method is used must be reasonably accurate and provide a fair basis for calculating the damages.
The injured party can recover lost profits resulting from a breach of contract only to the extent the evidence he produces affords a sufficient basis for estimating with reasonable certainty the amount of profits prevented by the breach.

Interest of R.P. (CONFIDENTIAL) 2008 ND 39
Docket No.: 20070151
Filing Date: 2/27/2008
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: Juveniles have a statutory right to a reasonable opportunity to consult with a parent, guardian, custodian, or legal counsel before submitting to chemical testing when providing the opportunity to consult does not materially interfere with administration of the chemical test.
A totality of the circumstances test applies to determine the reasonableness of a juvenile's opportunity to consult with his or her counsel, parent, guardian, or custodian before submitting to chemical testing.

City of Minot v. Keller (Consolidated w/20070117) 2008 ND 38
Docket No.: 20070116
Filing Date: 2/25/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: For reasonable and articulable suspicion to stop a vehicle, officer to officer communications are presumptively reliable.

Interest of P.F. (Confidential) 2008 ND 37
Docket No.: 20070133
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: The court must decide whether an individual who is committed because he is sexually dangerous may be discharged.
The equal protection clauses of the state and federal constitutions do not prohibit legislative classifications or require identical treatment of different groups of people.

Matter of Hehn 2008 ND 36
Docket No.: 20070167
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: In a civil commitment of a sexually dangerous individual, the fact that actuarial test scores do not give rise to scores showing a high re-offending risk does not preclude the fact-finder from coming to an alternative conclusion.
The importance of independent judicial decision-making means the court, rather than the test scores or the psychologists who create them, is the ultimate decision-maker as to whether the State has met its burden of clear and convincing evidence to sustain a civil commitment for a sexually dangerous individual.

State of Michigan, ex. rel. Schneider v. Schneider, et al. 2008 ND 35
Docket No.: 20070230
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Any deviation from the child support guidelines requires the court to make a written finding or a specific finding on the record.
Child support must be ordered in the presumptive amount unless, taking into consideration the best interests of the children, the court finds the presumptive amount is not the correct amount of child support.

People to Save the Sheyenne River, et al. v. Dept. of Health, et al. 2008 ND 34
Docket No.: 20070118
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The Health Department's decision to modify a North Dakota Pollutant Discharge Elimination System permit will not be reversed on appeal unless the decision is arbitrary, capricious, or unreasonable.
An administrative agency has a reasonable range of discretion to apply its own regulations, and the agency's expertise is entitled to deference when the subject matter is complex.
A North Dakota Pollutant Discharge Elimination System permit may be modified for cause, which includes new information or to correct a technical mistake.

State v. Lium 2008 ND 33
Docket No.: 20070135
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: A plea agreement for a specific sentence or sentencing range which is binding on a district court may be accepted, rejected, or deferred until the court has reviewed a presentence report.
After a guilty plea has been accepted but before sentencing, a defendant may withdraw the plea if necessary to correct a manifest injustice, or if allowed in the court's discretion for any fair and just reason unless the prosecution has been prejudiced by reliance on the plea.
A district court misapplies the law if a motion to withdraw a guilty plea is made before sentencing and the court does not decide whether there was a fair and just reason for withdrawal of the plea.

State v. Fischer (Cross-Ref. w/20050437 & 20060153) 2008 ND 32
Docket No.: 20060140
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Consent to search may be given by parties with actual or apparent authority, when viewed from the officer's perspective.
When ineffective assistance of counsel is raised on direct appeal, an appellate court reviews the record to determine if counsel was plainly defective.
Before accepting a waiver of the right to counsel, the district court must determine whether the waiver was voluntary and was made knowingly and intelligently.
A criminal defendant who knowingly and intelligently waives the right to counsel and elects self-representation, and who has been appointed standby counsel, is not constitutionally entitled to access to a law library.
Pretrial bail issues are moot after conviction, unless the amount prejudiced the defendant in the preparation of his defense.
A presumptively prejudicial delay of one year or more does not alone create a speedy-trial violation.
Government employment does not constitute an implied bias for purposes of excusing a juror.

State v. Skarsgard 2008 ND 31
Docket No.: 20070223
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Under N.D.R.Crim.P. 12(b), a defendant is required to make certain motions before trial, and failure to do so may waive defenses under the rule.
The Supreme Court may grant relief from a waiver if the movant establishes just cause.

Lies v. N.D. Dept. of Transportation 2008 ND 30
Docket No.: 20070257
Filing Date: 2/21/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Individuals arrested for DUI must be afforded a reasonable opportunity to consult with counsel before deciding whether to submit to a chemical test.
The failure to allow a DUI arrestee a reasonable opportunity to consult with a lawyer after the arrestee has made such a request prevents the revocation of his driver's license for refusal to take a chemical test.
There are no bright-line rules for determining whether a "reasonable opportunity" to consult with an attorney has been afforded; rather, the determination of whether a reasonable opportunity has been provided turns on an objective review of the totality of the circumstances.

Patten v. State 2008 ND 29
Docket No.: 20070144
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A lawyer must abide by a competent defendant's decision regarding the plea to be entered.
If a defendant is competent and voluntarily pleads guilty, the defendant waives the right to raise the defense of lack of criminal responsibility when the acts occurred.

State v. Kochel 2008 ND 28
Docket No.: 20070174
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Whether an individual has a reasonable expectation of privacy is reviewed de novo.

State v. Schmalz (CONSOLIDATED w/20070128) 2008 ND 27
Docket No.: 20070127
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.
"Bare-bones" information is not sufficient to satisfy the probable cause requirement for a warrant.
The determination of whether probable cause exists to issue a search warrant is a question of law.
Simply because a warrant application contains some information that is not relevant, or is, in and of itself, insufficient to create probable cause, does not necessarily mean probable cause did not exist to validly issue the warrant.
While the our state constitution may, in certain instances, provide greater individual rights than those afforded under the federal constitution, like the Fourth Amendment, Article I, section 8 of the North Dakota Constitution is not implicated unless a reasonable expectation of privacy is invaded.

Frueh v. Frueh 2008 ND 26
Docket No.: 20070254
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In considering whether the moving party has established a prima facie case warranting an evidentiary hearing on a motion to change custody, a district court may not weigh conflicting issues of fact raised in the parties' affidavits.
On appeal, the denial of an evidentiary hearing on a motion to change custody is reviewed under an abuse-of-discretion standard.

Matter of Barrera 2008 ND 25
Docket No.: 20070125
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Under the statute for committing a sexually dangerous person, proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in a criminal case.

Bertram v. State 2008 ND 24
Docket No.: 20070176
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).

Hammer v. Director, ND Dept. of Transportation 2008 ND 23
Docket No.: 20070284
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Not Available

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Sandoval v. Department of Transportation 2008 ND 22
Docket No.: 20070295
Filing Date: 2/21/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Not Available

Highlight: Revocation of driving privileges for three years is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Larson 2008 ND 21
Docket No.: 20070210
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court order dismissing a DUI criminal complaint is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Gress 2008 ND 20
Docket No.: 20070298
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Not Available

Highlight: Conviction of attempt to steal a vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Schumacher v. Director, N.D. Dept. of Transportation 2008 ND 19
Docket No.: 20070256
Filing Date: 2/21/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Not Available

Highlight: Revocation of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Brandt 2008 ND 18
Docket No.: 20070172
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Convictions for aggravated assault, knowing or reckless interference with a telephone during an emergency call and felonious restraint are summarily affirmed under N.D.R.App.P. 35.1(a) (3), (4) and (7).

Disciplinary Board v. O'Donnell (cross ref. 20070340) 2008 ND 17
Docket No.: 20080039
Filing Date: 2/20/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer orderd.

State v. Carlsen 2008 ND 16
Docket No.: 20070126
Filing Date: 2/4/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction of reckless endangerment under circumstances manifesting extreme indifference to the value of human life is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Judicial Vacancy in Judgeship No. 1, East Central Judicial District 2008 ND 15
Docket No.: 20070368
Filing Date: 2/4/2008
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo in the East Central Judicial District.

Wold v. Wold 2008 ND 14
Docket No.: 20060342
Filing Date: 1/23/2007
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Generally, in a divorce, a court's property valuations are not clearly erroneous if they are within the range of the evidence presented.
Under N.D.C.C. 14-05-24.1, a district court in a divorce case may require one party to pay spousal support to the other for any period of time.
Spousal support awards must be made in consideration of the disadvantaged spouse's needs and the supporting spouse's needs and ability to pay, but it is not necessary for the court to determine a spouse is disadvantaged by the divorce to award spousal support to that spouse.
Property division and spousal support are interrelated and often must be considered together.
It is within the district court's discretion to order security for a spousal support obligation.

State v. Desjarlais (Consolidated w/20070157) 2008 ND 13
Docket No.: 20070156
Filing Date: 1/22/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: There is no obvious error under N.D.R.Crim.P. 52(b) unless there is a clear deviation from a clearly established rule of law.

Van Sickle, et al. v. Hallmark & Assoc., Inc., et al. 2008 ND 12
Docket No.: 20070154
Filing Date: 1/22/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A debt cannot be discharged in bankruptcy unless the creditor received notice of the bankruptcy proceedings.
State and federal courts have concurrent jurisdiction to decide whether a creditor's claim has been discharged in a bankruptcy proceeding if the creditor claims he did not have notice or actual knowledge of the bankruptcy proceeding.
Claims for conversion and breach of contract may arise under the same facts if the defendant's conduct would give rise to liability independent of the fact that a contract exists between the parties.
A claim for tortious interference ordinarily requires a showing that a person who is not a party to the contract interfered with the contract.
The Supreme Court does not issue advisory opinions.

Koble v. Koble 2008 ND 11
Docket No.: 20070198
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Leno v. Department of Transportation 2008 ND 10
Docket No.: 20070213
Filing Date: 1/17/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department is not required to show an Intoxilyzer machine has been recalibrated following a movement of the machine to prove an Intoxilyzer test was fairly administered.
An agency's decision will be affirmed if its findings of fact are supported by a preponderance of the evidence. When deciding whether a preponderance of the evidence supports an agency's findings, we do not re-weigh the evidence or substitute our judgment for that of the agency.