Opinions

State v. Friesz 2017 ND 177
Docket No.: 20160147
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Warrantless and non-consensual searches and seizures made inside a home are presumptively unreasonable, unless an exception to the warrant requirement applies.
The exigent circumstances exception includes an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.
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 when it is shown that the evidence would have been gained even without the unlawful action.

Paving District 476 Group, et al. v. City of Minot 2017 ND 176
Docket No.: 20160317
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A property owner does not have a constitutional right to notice when a municipality initially decides to create an improvement district and construct an improvement.
The gift clause does not apply to limit a city in making internal improvements.

Zerr v. WSI 2017 ND 175
Docket No.: 20160314
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Dismissal for lack of subject matter jurisdiction is appropriate when a plaintiff fails to exhaust administrative remedies.
When the jurisdictional facts are not disputed, a dismissal for lack of subject matter jurisdiction is reviewed de novo on appeal.
A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim presented in the complaint, which is reviewed de novo on appeal.

Dixon v. Dixon, et al. 2017 ND 174
Docket No.: 20160438
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: A deed may be reformed if there is a mutual mistake and the contract does not truly express the parties' intention.
The district court has discretion in deciding whether to allow substitution of a party.

Leavitt v. State 2017 ND 173
Docket No.: 20160398
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: In opposing a State's motion for summary disposition, an applicant for post-conviction relief may not merely rely on the pleadings or on unsupported conclusory allegations but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.
To avoid summary dismissal of an ineffective assistance of counsel claim, an applicant for post-conviction relief must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness.

State v. Hawkins 2017 ND 172
Docket No.: 20160354
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A district court's decision on a motion to suppress evidence will be affirmed unless the decision is not supported by sufficient competent evidence, or unless the decision is against the manifest weight of the evidence.
Consent is an exception to the warrant requirement.
The voluntariness of consent is a finding of fact determined under the totality of the circumstances.

State v. Teggatz 2017 ND 171
Docket No.: 20160367
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A district court's decision to admit or exclude evidence is subject to review for abuse of discretion.
The "present sense impression" exception to the rule against hearsay, under N.D.R.Ev. 803, applies to "a statement describing or explaining an event or condition, made while or immediately after the declarant perceived the event or condition."

Schaffner v. Schaffner (cross reference w/20160388 & 20170021) 2017 ND 170
Docket No.: 20170044
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: For purposes of appealability, district court orders are treated as final judgments if the district judge intended the order to be a final judgment.

Mosser, et al. v. Denbury Resources, Inc., et al. 2017 ND 169
Docket No.: 20160379
Filing Date: 7/12/2017
Case Type: Certified Question - Civil - Civil
Author: Kapsner, Carol

Highlight: Absent a prior conveyance of pore space to a third party, the owner of a surface estate owns the pore space beneath the surface.
A surface owner may recover damages from a mineral developer for the developer's use of pore space for saltwater disposal.

State v. Glick 2017 ND 168
Docket No.: 20160439
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Motions for mistrial fall within the broad discretion of the district court and will not be reversed on appeal absent a showing that the court abused its discretion or that a manifest injustice would occur.