Opinions

Riemers v. Anderson, et al. (CONSOLIDATED w/20030318) (see Docket Memo) 2004 ND 109
Docket No.: 20030317
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.
Questions unnecessary to the determination of an appeal are not answered.

Kostrzewski v. Frisinger 2004 ND 108
Docket No.: 20040009
Filing Date: 6/3/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: As a general rule of statutory construction, a specific statute governs over a more general statute.
When a party files a foreign child custody judgment, a trial court shall confirm the judgment unless a person contesting the validity of the registered judgment establishes one of the three grounds listed in N.D.C.C. 14-14.1-25(4).
Mere registration of a foreign child custody judgment does not require determination of the registering court's jurisdiction under N.D.C.C. 14-14.1-14.

Minto Grain v. Tibert, et al. (Cross-Ref w/20010302, 20030207 & 208) 2004 ND 107
Docket No.: 20030297
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The right to the possession of disputed real estate is the only fact that can be rightfully litigated in a summary eviction action unless damages or rent is claimed.
Adverse possession and acquiescence may be asserted as a defense or counterclaim in a summary eviction action.

State v. Nordahl 2004 ND 106
Docket No.: 20030269
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: A district court does not abuse its discretion when it revokes probation for failure to pay restitution without holding a hearing when a defendant agreed to restitution as part of a plea agreement.

Baker v. Mayer 2004 ND 105
Docket No.: 20030324
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A trial court's decision to grant a disorderly conduct restraining order will not be reversed unless the trial court clearly abused its discretion.
"Reasonable grounds" for a disorderly conduct restraining order is synonymous with "probable cause."
An alleged victim of disorderly conduct must show more than that the person's actions are unwanted; the alleged victim must show that the actions were intended to adversely affect the alleged victim's safety, privacy, or security.

Duma v. Keena, et al. 2004 ND 104
Docket No.: 20030302
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Unopposed instructions become the law of the case.
A special verdict will be set aside only if it is perverse and clearly contrary to the evidence. Reconciliation of a verdict includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

State v. Markel 2004 ND 103
Docket No.: 20030299
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for class B felony possession of a controlled substance with intent to deliver is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Reishus v. Thompson 2004 ND 102
Docket No.: 20040007
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: A trial court judgment dismissing a negligence action is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Peterson 2004 ND 101
Docket No.: 20040134
Filing Date: 5/28/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

State v. Guthmiller 2004 ND 100
Docket No.: 20030298
Filing Date: 5/7/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness.
A district court's decision on a suppression motion is affirmed unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence to support the decision or the decision goes against the manifest weight of the evidence.

Disciplinary Board v. Balerud (CONFIDENTIAL) 2004 ND 99
Docket No.: 20040113
Filing Date: 5/7/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer placed on disability inactive status until further order of the Court.

State v. McClary 2004 ND 98
Docket No.: 20030237
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: A jury verdict is inconsistent when, under the jury instructions and evidence, the verdict cannot be rationally reconciled.
A trial court may not question the jury about how it arrived at its verdict.

Tibert, et al. v. City of Minto, et al. (Cross ref. w/20030208) 2004 ND 97
Docket No.: 20030207
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A district court's legal conclusion of mootness is reviewed de novo.
A common-law dedication must be proven by clear and convincing evidence. The party attempting to establish the existence of the common-law dedication must show there was an intention to dedicate and a public acceptance of the dedication.
Whether a common-law dedication occurred is a question of fact which will not be disturbed on appeal unless clearly erroneous.

Haley v. Dennis, et al. 2004 ND 96
Docket No.: 20030284
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Malpractice
Author: Maring, Mary

Highlight: A jury verdict that assesses a percentage of fault to the defendant after finding the defendant was not negligent is an inconsistent and irreconcilable verdict.
When the jury during deliberations requests additional instruction on a substantive point of law, the court must notify the parties or counsel before responding to the jury's request.

Hilgers v. Hilgers (Cross-reference w/ 20010208) 2004 ND 95
Docket No.: 20030252
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: N.D.R.Civ.P. 6(e), permitting an additional three days to be added to the time for service by mail, does not apply to extend the time when the time begins to run only after actual receipt of notice.
A letter opinion is not an appealable order unless followed by a subsequently entered consistent judgment or order.
The Supreme Court exercises its supervisory authority only to rectify errors and prevent injustice when no adequate alternative remedies exist.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.

Jaste v. Gailfus, et al. 2004 ND 94
Docket No.: 20030261
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: A court errs by deciding summary judgment on a legal doctrine other than those raised by the parties unless the parties are given notice and an opportunity to be heard. The error is reversible if not harmless.

Wetsch v. ND Dept. of Transportation 2004 ND 93
Docket No.: 20030254
Filing Date: 5/5/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Refusal to submit to an onsite screening test constitutes a violation of informed consent law and may properly result in a one-year suspension of an individual's driver's license.
An individual's demand to have blood drawn for a chemical screening in a medical environment, such as a hospital, constitutes refusal under North Dakota's informed consent statute.

Airport Inn Enterprises, Inc. v. Ramage 2004 ND 92
Docket No.: 20040032
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A condition precedent is one that must be performed or happen before a duty of immediate performance arises on the promise that the condition qualifies.
When an agreement is conditioned upon obtaining financing, a condition precedent to performance of the agreement is created.
When financing is a condition precedent, there is no enforceable agreement until the financing is obtained.

All New Gutter Service, Inc. v. Dusek 2004 ND 91
Docket No.: 20030321
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment finding no oral contract after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tweeten 2004 ND 90
Docket No.: 20030151
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A district court may not dismiss a case with prejudice for prosecutorial misconduct unless a hearing is held in which it is determined by clear and convincing evidence the prosecution has proceeded in bad faith.

Meyer v. Meyer 2004 ND 89
Docket No.: 20030214
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A change in spousal support, which was initially awarded upon the parties' stipulation, should be made only with great reluctance by the trial court upon a showing of a material change in circumstances.
Findings of fact should be sufficiently stated so the reviewing court is able to understand the factual basis for the trial court's decision, particularly in view of our standards for modification of spousal support.
A case will be remanded if the reviewing court cannot discern the rationale for the result reached by the trial court.

State v. Helm 2004 ND 88
Docket No.: 20030273
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for class C felony terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Reciprocal Discipline of Chinquist 2004 ND 87
Docket No.: 20040100
Filing Date: 4/26/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Oliver-Mercer Electric Coop. v. Davis, et al. (Consol. w/ 20030158) 2004 ND 86
Docket No.: 20030157
Filing Date: 4/19/2004
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The right to a trial by jury is determined by the character of the issues as framed by the complaint or appearing on the face of the pleadings.
A secured creditor must give reasonable notice of the time and place of a sale of collateral and must conduct the sale in a commercially reasonable manner.
When a secured creditor who failed to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
For purposes of a deficiency judgment, the fair market value of the collateral must be determined at the time of the sale. A secured creditor who failed to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral. If a secured creditor has failed to provide the debtor proper notice of the sale of collateral, the selling price of the collateral is not credible evidence.
Every aspect of a sale of collateral must be commercially reasonable, including the method, manner, time, place, and terms.

State v. Clark 2004 ND 85
Docket No.: 20030238
Filing Date: 4/19/2004
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: An appellate court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.
A prosecutor's closing arguments may properly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs into the argument.
An argument that asks jurors to place themselves in the shoes of a party is improper and should be avoided.

Matter of the Reciprocal Discipline of Johannson 2004 ND 84
Docket No.: 20040102
Filing Date: 4/16/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Reciprocal Discipline of Schaefer 2004 ND 83
Docket No.: 20040101
Filing Date: 4/16/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Peterson v. ND University System, et al. 2004 ND 82
Docket No.: 20030249
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A writ of mandamus is not the appropriate avenue for judicial review of State Board of Higher Education decisions to dismiss tenured faculty members because tenure rights are contractual and not statutory in nature.
The proper standard of judicial review of a substantive State Board of Higher Education decision to dismiss a tenured faculty member for cause is whether a reasoning mind could have reasonably determined that the factual conclusions were supported by clear and convincing evidence.

Garcia v. State (consolidated w/20030307) 2004 ND 81
Docket No.: 20030162
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel's performance was deficient and the deficient performance prejudiced him.
Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms.
The prejudice element requires a petitioner to establish a reasonable probability that, but for his trial counsel's errors, the result of the proceeding would have been different.
A petitioner misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in an earlier proceeding.

Keller v. Bolding 2004 ND 80
Docket No.: 20030221
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A person's willful failure to destroy or prevent the spread of Canada thistle on land in the person's possession violates North Dakota's public policy.
Forfeitures of estates under leases are not favored.
A condition involving a forfeiture must be interpreted strictly against the party for whose benefit it is created.
A contract cannot be arbitrarily terminated under a provision authorizing termination.
Evidentiary imprecision on the amount of damages does not preclude recovery.

Riemers v. O'Halloran, et al. 2004 ND 79
Docket No.: 20030280
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Court-appointed expert witnesses are absolutely immune from suit on the basis of their testimony.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.

State v. Parizek (consolidated w/20030086 through 20030088) 2004 ND 78
Docket No.: 20030085
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Police officers may freeze a situation and conduct a limited investigative stop of persons present at the scene of a recently committed crime without violating the Fourth Amendment.
A law enforcement officer may conduct a frisk or pat down search of a person only when the officer possesses an articulable suspicion the individual is armed and dangerous.
Certainty that an object is a weapon is not required before an officer may continue a pat down search to the inner clothing site where the object is located.
Generally, where an object recovered from a suspect during a pat down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby.
Evidence obtained by unlawful police conduct is admissible if the prosecution proves by a preponderance of the evidence that the evidence would have inevitably been discovered by lawful means.

State v. Buchholz 2004 ND 77
Docket No.: 20030275
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Neumann, William

Highlight: A party's failure to object at trial to references to, and evidence of, other alleged bad acts waives that issue.
A party's failure to submit a proposed jury instruction on consideration of evidence of other bad acts precludes a party from claiming the trial court erred in failing to instruct the jury on that issue.
The statute of limitations in the 1993 version of N.D.C.C. 29-04-03.1 applies to offenses for which the statute of limitations had not expired under prior law.
In the absence of specific language in a sequestration order, N.D.R.Ev. 615 does not apply to witnesses' out-of-court communications during trial.
The failure to raise a violation of the ten-day, pre-sentence report notice at sentencing waives that issue.

Gullickson v. Kline 2004 ND 76
Docket No.: 20030223
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: Only a person who has been the victim of disorderly conduct, or the parent or guardian of a minor who has been a victim, may seek a disorderly conduct restraining order.
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.

State v. Causer 2004 ND 75
Docket No.: 20030124
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Neumann, William

Highlight: The State is required to provide prior written notice of the alleged probation violations to a probationer.
The trial court is not required to inform a probationer of his statutory right to appeal from a probation revocation. A probationer has no constitutional right to appeal and there is no notification requirement in North Dakota's statutes or rules of procedure.
A probationer does not have a constitutional right to counsel on appeal from a probation revocation because there is no constitutional right to appeal. A trial court has no duty to inform a probationer of his state-granted right to counsel, nor does a trial court have a duty to appoint counsel for a probationer, absent a probationer's request.
A probationer's right against double jeopardy is not violated by a trial court's imposition of additional probation as part of resentencing after probation is revoked.
North Dakota's statutory scheme provides a probationer with actual notice that a probation violation could result in the imposition of a sentence more severe than his originally imposed sentence.

Danzl, et al. v. Heidinger, et al. 2004 ND 74
Docket No.: 20030239
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Absent statutory or contractual authority, each party to a lawsuit bears the party's own attorney fees.

Rydberg, et al. v. Rydberg 2004 ND 73
Docket No.: 20030212
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Issues on appeal are not restricted to those raised in a motion to alter or amend the judgment as long as the issues were raised at the district court.
A statute of limitations acts only to bar the bringing of the specified action and does not affect other remedies.
Paternity can be rebutted by clear and convincing evidence or by a court decree establishing paternity of the child by another man.
Genetic tests are enough to rebut the presumption of paternity by clear and convincing evidence.

Roth v. Hoffer 2004 ND 72
Docket No.: 20030282
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

State v. Guscette 2004 ND 71
Docket No.: 20030177
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A person is seized under the Fourth Amendment if, in view of all the surrounding circumstances, a reasonable person would believe he or she is not free to leave the area.
A seizure does not occur under the Fourth Amendment simply because a law enforcement officer asks a person questions, and as long as reasonable persons would feel free to disregard the officer and go about their business, the encounter is consensual and no reasonable suspicion of criminal activity is required.
Consent to a search is voluntary if, under the totality of the circumstances, it is the product of an essentially free choice and not the product of coercion.

State v. Lura (Consolidated w/20030186-20030194) 2004 ND 70
Docket No.: 20030185
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Drug convictions summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Weaver v. State 2004 ND 69
Docket No.: 20030325
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Dismissal of second petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

State v. Provost (cross-ref. w/20030227 & 20030229-20030231) 2004 ND 68
Docket No.: 20030228
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for simple assault on a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Stensaker 2004 ND 67
Docket No.: 20030204
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for unauthorized use of a motor vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Heinz v. Heinz 2004 ND 66
Docket No.: 20030301
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Amended divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Jundt v. Jurassic Resources, et al. (cross-ref. w/20010313) 2004 ND 65
Docket No.: 20030216
Filing Date: 3/26/2004
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: What could have been presented in a prior appeal may not be heard on a later appeal.
A N.D.R.Civ.P. 68 settlement offer must present a clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer.
To trigger the mandatory cost-shifting provision, a defendant seeking costs under N.D.R.Civ.P. 68 must show that the offer was more favorable than the judgment.

Graves v. State Board of Law Examiners 2004 ND 64
Docket No.: 20030137
Filing Date: 3/26/2004
Case Type: Board of Law Examiners - Other - Other
Author: Per Curiam

Highlight: The due process clause requires that the State Board of Law Examiners employ fair procedures, including a fair and impartial tribunal, when processing applications for admission to the bar.

St. Benedict's Health Center v. ND Dept. of Human Services 2004 ND 63
Docket No.: 20030289
Filing Date: 3/25/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Administrative regulations for setting Medicaid reimbursement rates involve complex and technical matters calling for agency expertise, and the Department of Human Services' expertise in interpreting its reimbursement regulations is entitled to deference.

Oldham v. Oldham 2004 ND 62
Docket No.: 20030072
Filing Date: 3/25/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A party waives an issue by not providing supporting argument.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.

Gratech Company, Ltd., et al. v. ND Dept. of Transportation 2004 ND 61
Docket No.: 20030203
Filing Date: 3/23/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: All disputes arising out of any contract entered into by the Department of Transportation for the construction or repair of highways must be submitted to arbitration.
As a condition precedent to arbitration of a highway construction dispute, a contractor seeking additional compensation for work not covered in the contract must file a written notice of claim.

Nodak Mutual Ins. Co., et al. v. Ward Co. Farm Bureau, et al. 2004 ND 60
Docket No.: 20030134
Filing Date: 3/23/2004
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: A defendant must have standing to assert a counterclaim against a plaintiff.
The existence of standing is a question of law which is reviewed de novo.
Individual shareholders generally have no right to bring actions in their individual names and on their own behalf for a wrong committed against the corporation.
To have standing to sue individually, a shareholder must allege an injury separate and distinct from other shareholders.
The statutory right to shareholder access to corporate documents and records provides a right of inspection, not a right to receive answers to questions submitted by shareholders.