Opinions

State v. Biwer 2018 ND 185
Docket No.: 20170458
Filing Date: 7/26/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Conclusory or bare information is not sufficient for probable cause to obtain a search warrant.
Information obtained from named members of the public with corroborating independent investigation by police may establish a nexus between the place to be searched and the contraband sought.,br> The North Dakota Constitution does not provide greater protection than the Fourth Amendment to the U.S. Constitution.

Kovalevich v. State 2018 ND 184
Docket No.: 20180109
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: Under N.D.C.C. § 29-32.1-01(3)(a)(1), a court may consider an application for post-conviction relief on the basis of newly discovered evidence outside of the general two-year statute of limitations if the petitioner meets the four-pronged test set forth in Greywind v. State, 2004 ND 213,  18, 689 N.W.2d 390.

Johnston Land Company, LLC v. Sorenson, et al. 2018 ND 183
Docket No.: 20170403
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A justiciable controversy subject to appellate jurisdiction exists when a district court order does not fully dispose of the petitioner's claims.
An affidavit filed with a county recorder that claims no interest in property is not a nonconsensual common-law lien

Kalmio v. State 2018 ND 182
Docket No.: 20170437
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court has discretion to allow amendments to pleadings.
An applicant for post-conviction relief may claim ineffective assistance of appellate counsel.
A district court clearly errs by finding an applicant for post-conviction relief did not meet his burden on the first Strickland prong, despite appellate counsel waiving an evidentiary argument on direct appeal because counsel erroneously believed the issue would have a greater chance of success in a post-conviction relief action.

Interest of Voisine 2018 ND 181
Docket No.: 20170442
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: When an individual petitions for discharge from commitment as a sexually dangerous individual, the State must prove the individual remains a sexually dangerous individual by clear and convincing evidence.
In sexually dangerous individual proceedings, expert testimony will not be reweighed on appeal. A choice between two permissible views of the weight of the evidence is not clearly erroneous.

Gerrity Bakken, LLC v. Oasis Petroleum North America LLC, et al. 2018 ND 180
Docket No.: 20180017
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: Deeds must be construed as a whole to give effect to each provision, if reasonably possible.
The law presumes that differently spelled names refer to the same person when they sound alike or when common usage has by corruption or abbreviation made their pronunciation identical.
A quiet title judgment is not binding on any persons having interests in leases and wells who were not made parties to the action.
A non-party may maintain a suit to set aside an allegedly damaging judgment if he has an interest which is jeopardized by enforcement of the judgment and the circumstances support a present grant of relief.

Ramirez v. Walmart 2018 ND 179
Docket No.: 20180027
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Although an order dismissing a complaint without prejudice is generally not appealable, when a statute of limitations has run, a dismissal without prejudice is appealable because it forecloses litigation in the plaintiff's chosen forum.
The retaliatory discharge statute prohibits an employer from discharging an employee for reporting illegalities, and was not intended to protect an employee who acts for a purpose other than exposing an illegality.

Interest of B.H. (CONFIDENTIAL) 2018 ND 178
Docket No.: 20180165
Filing Date: 7/18/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: The findings in an oral order may control if they are not inconsistent with the written order.
Even if a juvenile court finds that a child has been subjected to aggravated circumstances pursuant to N.D.C.C. § 27-20-44(1)(b), it does not abuse its discretion by denying a termination of parental rights if it concludes the child's welfare will not be seriously affected.

Bickler, et al. v. Happy House Movers, L.L.P. 2018 ND 177
Docket No.: 20180086
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: This Court does not consider questions that were not presented to the district court and are raised for the first time on appeal.
The moving party bears the burden of establishing sufficient grounds for disturbing the finality of the judgment under N.D.R.Civ.P. 60(b).

Interest of G.L. (CONFIDENTIAL) 2018 ND 176
Docket No.: 20170406
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: After finding a parent has removed the impediments causing a child's initial deprivation leading to a guardianship, the juvenile court must find exceptional circumstances before it may analyze the child's best interests in continuing the guardianship.
The juvenile court may not delegate determination of a visitation schedule.