On appeal, Hoistad argued the chemical breath test was not fairly administered. The admissibility of Intoxilyzer test results are governed by a statute which is designed to ease the admissibility requirements of chemical test results while ensuring the test was fairly administered. Fair administration of the test may be established by proof the approved method was scrupulously followed. However, scrupulous compliance does not mean hypertechnical compliance. If the DOT fails to establish compliance with the approved method which goes to the scientific accuracy and reliability of the test, the DOT must prove fair administration of the test through expert testimony.
The Supreme Court found that the trooper’ s administration of the chemical test, when repeatedly instructing Hoistad to blow 11 times after the tone stopped, were directly contrary to the displayed instructions on the Intoxilyzer 8000 and the approved method. The DOT argued Hoistad failed to demonstrate the deviation affected the test’ s scientific accuracy. However, the Supreme Court found this argument improperly attempted to place the burden on Hoistad to show the deviation impacted the reliability and accuracy of the test. Unless the impact of a deviation is within the knowledge of an ordinary person, it is the DOT’ s burden to show through expert testimony whether a deviation from the approved method impacted the test. The Supreme Court found an ordinary person would not know what impact a subject’ s continued blowing into the Intoxilyzer after the tone stops has on the test results. The DOT did not provide expert testimony on the effect of the deviation. Because the trooper deviated from the approved method, and there was no expert testimony on the effect of the deviation on the accuracy or reliability of the test result, the DOT failed to show the test was fairly administered. As a result, the Supreme Court reversed the hearing officer’ s decision to revoke Hoistad’ s driving privileges for 91 days.
Bullinger v. Sundog Interactive, Inc., 2025 ND 31. Filed on 4 / 10 / 25.
Bullinger appealed the district court’ s judgment dismissing his claims with prejudice and awarding Sundog Interactive( Sundog) attorneys’ fees and costs. Bullinger argued the court erred in its interpretation of N. D. C. C. § 10-19.1-88( 5) in finding he was not a dissenting shareholder, in its interpretation of N. D. C. C. § 10- 19.1-88( 10) by finding he was not entitled to payment equal to his demand because he failed to enter into discussions with Sundog, erred in ruling he was not entitled to damages as a result of the individual defendants’ breach of their fiduciary duties, and erred in its award of attorneys’ fees and costs. The Supreme Court affirmed in part, reversed in part, and remanded, concluding the district court erred in finding Bullinger was not a dissenting shareholder and he was not entitled to payment equal to his demand for payment made pursuant to N. D. C. C. § 10-19.1-88( 9). The Supreme Court affirmed the district court’ s decision denying Bullinger’ s claim for breach of fiduciary duties.
In 2019, Sundog’ s shareholders voted to sell to Perficient, and Bullinger dissented to the sale. Bullinger submitted a Demand for Payment and deposited his shares with Sundog by delivering an Affidavit of Lost Stock Certificate. Sundog tendered him $ 646,106.09, its estimate of the fair value of his interest. Bullinger disagreed with this amount, claiming the estimated value of his interest was $ 1,164,102.50 plus interest. After an initial appeal and remand of the district court’ s decision for failing to make adequate findings, the district court issued an order dismissing Bullinger’ s claims with prejudice and awarding attorney’ s fees to Sundog.
On appeal for a second time, the parties agreed the case was governed by § 10-19.1-88, and Bullinger complied with § 10-19.1- 88( 3) by providing written notice of intent to demand the fair value of his shares and not voting in favor of the proposed sale. The parties also agreed he demanded payment, as required § 10-19.1-88( 5), and deposited certificated shares within 30 days after Sundog’ s notice. The parties disputed whether Bullinger’ s inclusion of a disputed amount of additional ownership in Sundog invalidated his demand, and disagreed whether Sundog’ s failure to take one of three actions permitted by § 10-19.1-88( 10) entitled him to payment of his full demand. Within 60 days of Bullinger’ s demand, Sundog did not pay Bullinger the amount he demanded, did not agree on an alternative amount, and did not file a petition with the court requesting a determination of the fair value of his ownership interest as required by § 10-19.1-88( 10).
The Supreme Court began its analysis by noting it recognized the North Dakota Business Corporations Act( the act) at chapter 10-19.1 provides significant protection and remedies to minority shareholders. Upon the sale of a corporation, the act affords dissenting shareholders the option to obtain the fair value of their shares. The Supreme Court concluded the district court’ s focus on determining the fair value of Sundog and whether the sale to Perficient was for fair value was misplaced and premature under the statutory procedure. Bullinger sought to enforce his statutory remedy to payment of his estimate of the fair market value following Sundog’ s failure to elect one of the three options under § 10-19.1- 88( 10) within 60 days. There is no requirement in the act at that juncture for formal valuations or any formal determination of the fair value of the corporation. Sundog could have elected to seek court intervention for a formal determination of the fair value but failed to timely make that election. The Supreme Court held the district court erred as a matter of law in determining Bullinger was required to challenge whether the sale to Perficient was made at fair market value. The Supreme Court further held that Bullinger was not required to enter into discussions after he made his demand for payment and provided his estimate of value as § 10-19.1-88( 10) does not impose any requirements on the dissenting shareholder. In light of its determination on Bullinger’ s entitlement to the statutory remedy for his undisputed shares plus interest, a remand was required as to the entry of judgment pursuant to the statutory remedy, and a review of the attorneys’ fees and costs.
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