Opinions

Markegard v. Willoughby 2019 ND 170
Docket No.: 20180445
Filing Date: 6/27/2019
Case Type: Appeal - Civil - Divorce - Property
Author: Tufte, Jerod E.

Highlight: A party moving to terminate spousal support under N.D.C.C. § 14-05-24.1(3) has the initial burden to prove habitual cohabitation for a period of one year or more, and the party opposing the motion has the burden to prove any exceptions apply.

A spousal support provision of a marital termination agreement entered into after N.D.C.C. § 14-05-24.1(3) became effective that does not include language stating spousal support will continue even if the receiving spouse cohabits does not preclude termination of spousal support under the statute.

The district court has discretion in deciding when a spousal support obligation will terminate if the court finds the spouse receiving support is habitually cohabiting.

Matter of R.A.S. (Confidential) 2019 ND 169
Docket No.: 20190016
Filing Date: 6/27/2019
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: The district court must state the specific factual findings used as a base for determining an individual has serious difficulty controlling personal behavior, and errs as a matter of law if the findings are insufficient or does not support the legal conclusion.

Taszarek, et al. v. Lakeview Excavating, Inc., et al. 2019 ND 168
Docket No.: 20180303
Filing Date: 6/27/2019
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A district court’s decision on whether to pierce a corporation’s corporate veil is heavily fact-specific.
Under N.D.R.Civ.P. 52(a)(1), in an action tried on the facts without a jury, a district court must find the facts specially to allow the reviewing court to adequately understand the basis of the district court’s decision.
Conclusory, general findings do not comply with N.D.R.Civ.P. 52(a), and a finding of fact that simply states a party has failed in or has sustained its burden of proof is inadequate under the rule.

Morris v. State 2019 ND 166
Docket No.: 20180369
Filing Date: 6/27/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Accomplice to commit extreme indifference murder is a cognizable offense.

District court’s finding that petitioner’s post-conviction claim failed to establish trial counsel’s representation fell below an objective standard of reasonableness was not clearly erroneous.

District court did not abuse its discretion in denying post-conviction petitioner’s request to withdraw his guilty plea where petitioner failed to show a manifest injustice existed necessitating the withdrawal of his guilty plea.

Johnston Land Company, LLC v. Sorenson, et al. 2019 ND 165
Docket No.: 20180443
Filing Date: 6/27/2019
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported allegations, but must present competent admissible evidence that raises a genuine issue of material fact in support of their claim.

The mandate rule requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court’s mandate into effect according to its terms.

State v. Watson (Consolidated w/20180295 & 20180296) 2019 ND 164
Docket No.: 20180294
Filing Date: 6/27/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The district court must find good cause to delay a trial more than ninety days after the defendant has been arraigned and timely elected a right to a speedy trial under N.D.C.C. § 29-19-02.

State v. Hollis 2019 ND 163
Docket No.: 20180368
Filing Date: 6/27/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A police officer may take an apparently intoxicated individual to a jail for detoxification if the officer determines the person constitutes a danger to himself or others.
The inevitable discovery doctrine establishes that evidence derived from information obtained in an unlawful search is not inadmissible under the fruit-of-the-poisonous-tree doctrine where it is shown that the evidence would have been gained even without the unlawful action.

State v. Landrus 2019 ND 162
Docket No.: 20180343
Filing Date: 6/27/2019
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A district court’s use of a defense of property jury instruction did not improperly shift the burden of the State to disprove the absence of self-defense.
A lesser included offense instruction may be requested by the prosecution or defense, or the court may give such an instruction.
Evidence is sufficient if it allows the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction when viewed in the light most favorable to the verdict.

City of West Fargo v. Williams 2019 ND 161
Docket No.: 20180447
Filing Date: 6/27/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The right to an additional independent test under N.D.C.C. § 39-20-02 only arises when the driver submits to the chemical test requested by law enforcement.

An on-site screening test under N.D.C.C. § 39-20-14(3) is not the same as a chemical test under N.D.C.C. § 39-20-01(1) and therefore a person is not an “individual tested” under N.D.C.C. § 39-20-02 by virtue of his submission to on-site screening tests. Likewise, a person is not statutorily entitled to an independent test of his choosing because he submitted to on-site screening tests since a test in addition to “any administered” under N.D.C.C. § 39-20-02 refers to any administered chemical tests.

Klundt v. Benjamin 2019 ND 160
Docket No.: 20180419
Filing Date: 6/27/2019
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: The district court’s findings on the best interest factors, as well as its decision regarding primary residential responsibility, were not clearly erroneous.

The district court may discuss separation of siblings as part of, or separate from, the best interest factors, as long as the court adequately explains its decision.

The district court’s sua sponte decision to change the minor child’s last name was an abuse of discretion.