Opinions

State v. Brickle-Hicks 2018 ND 194
Docket No.: 20180004
Filing Date: 8/28/2018
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A district court’s decision to deny a defendant’s motion to suppress evidence will not be reversed on appeal if there is sufficient competent evidence capable of supporting the court’s findings and if its decision is not contrary to the manifest weight of the evidence.

Interest of E.P. (CONFIDENTIAL) 2018 ND 193
Docket No.: 20180271
Filing Date: 8/28/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Riemers v. Jaeger 2018 ND 192
Docket No.: 20180274
Filing Date: 8/3/2018
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Crothers, Daniel John

Highlight: A writ of mandamus may be issued to compel performance of an act which the law specifically enjoins as a duty resulting from an office.
The plain language of N.D.C.C. 16.1-16-01(1)(a) requires an automatic recount when an individual fails to be nominated in a primary election by one percent or less of the highest vote cast for a candidate for the office sought and does not require the candidate with the highest vote to be in the same political party as the individual obtaining the recount.

Interest of M.S.H. (CONFIDENTIAL)(consolidated w/20180173 & 20180174) 2018 ND 191
Docket No.: 20180172
Filing Date: 8/1/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.T. (Confidential) 2018 ND 190
Docket No.: 20180269
Filing Date: 7/31/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating a mother's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

N.D. Legislative Assembly, et al. v. Burgum 2018 ND 189
Docket No.: 20170436
Filing Date: 7/30/2018
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: The Governor cannot withdraw a veto or otherwise concede it was ineffective.
An "item" in an appropriation bill may be vetoed in its entirety, but it may not be reduced or scaled. If the "item" is an appropriation included in a larger subdivision or otherwise aggregated into a larger appropriation, the effect of an item veto is to subtract the item from the larger total. The Governor may strike words or numbers in a bill, but he may not insert them.
The Legislative Assembly may not insulate an item from veto by including it within a larger appropriation, funding that larger appropriation from multiple special funds, or failing to identify the funding source for the item. In the context of a legislative appropriation, the Legislative Assembly must specify (1) the amount, (2) the object or purpose for which the amount is authorized, and (3) the fund from which the amount is set apart.
The item veto power does not authorize the Governor to veto any part of a statement of legislative intent.

Disciplinary Board v. Turcotte 2018 ND 188
Docket No.: 20180262
Filing Date: 7/30/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

Disciplinary Board v. Bruhn 2018 ND 187
Docket No.: 20180243
Filing Date: 7/30/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

Disciplinary Board v. Bruhn 2018 ND 186
Docket No.: 20180242
Filing Date: 7/30/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

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.

State v. Grant 2018 ND 175
Docket No.: 20170443
Filing Date: 7/17/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Obvious error should be noticed on appeal only in exceptional circumstances and when there was a clear deviation from an applicable legal rule under current law.

Haider v. Moen 2018 ND 174
Docket No.: 20170348
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Jensen, Jon J.

Highlight: After requesting the jury to make factual findings relating to treble damages, the district court abuses its discretion by failing to instruct the jury on the statutory treble damages.
The district court has discretion to bifurcate a jury's determination on actual damages from the determination necessary for treble damages.
After a motion in limine is granted, failure to renew objections at trial waives the argument on appeal.

State v. Hunter 2018 ND 173
Docket No.: 20170345
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Whether a defendant voluntarily, knowingly, and intelligently waived his Miranda rights depends on the totality of the circumstances.
A lapse of time between a defendant's being given the Miranda warning and the custodial interrogation is one factor in determining whether a defendant has voluntarily waived his rights.
Drug use or fatigue are relevant factors in determining whether a defendant has voluntarily waived his rights.
Physician-patient privilege under N.D.R.Ev. 503 applies only to communications made for the purpose of diagnosis or treatment.

State v. Ngale 2018 ND 172
Docket No.: 20180031
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: A reserve deputy, who provides services on a non-salaried basis and has full arrest authority, is not required to be licensed to perform peace officer law enforcement duties.

State v. Blue (consolidated w/20170388) 2018 ND 171
Docket No.: 20170387
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Article I, Section 25(1)(n), N.D. Const., and N.D.C.C. 12.1-32-08(1)(b) are not in conflict, and the court must attempt to harmonize a statute and a constitutional provision when possible.
When a claim of disproportionality is made, the court first compares the gravity of the offense to the harshness of the penalty. If the court finds a gross disproportion ality exists, then the court should compare the defendant's sentence with sentences received by other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions.

State, et al. v. Peltier 2018 ND 170
Docket No.: 20170463
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A state court has subject matter jurisdiction to decide an Indian father's child support obligation if the action does not infringe on the right of Indian tribes to govern themselves.

State v. Jorgenson 2018 ND 169
Docket No.: 20180079
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Highlight: Orders approving pretrial diversion and orders of restitution are not appealable under N.D.C.C. § 29-28-06.
A pretrial diversion agreement pursuant to N.D.R.Crim.P. 32.2(a) cannot require restitution to be determined by the district court.

City of Bismarck v. Schaffner 2018 ND 168
Docket No.: 20180030
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: Entry of a not guilty plea in a criminal bench trial does not preserve the issue of whether city and state laws conflict.

State v. Vanberkom 2018 ND 167
Docket No.: 20180021
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Tufte, Jerod E.

Highlight: Double jeopardy does not attach when a defendant is assessed an administrative penalty for violation of N.D.C.C. § 39-09-01.1 ("Care required in operating vehicle") and prosecuted for reckless driving under N.D.C.C. § 39-08-03.

State v. Beltran 2018 ND 166
Docket No.: 20180041
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: A district court does not err by instructing a jury on the crime of refusal to submit to a chemical test when there is evidence presented indicating the defendant refused to submit to a breath test.
A party challenging the exclusion of evidence must provide an offer of proof to preserve the issue on appeal.
A district court does not abuse its discretion in denying a defendant's proposed stipulation to his driver's license being under suspension.

Interest of J.J.T. (CONFIDENTIAL) 2018 ND 165
Docket No.: 20180136
Filing Date: 7/11/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Jensen, Jon J.

Highlight: A parent's delay and obstruction of the legal process may constitute the functional equivalent of a voluntary, knowing, and intelligent waiver of the right to counsel in a proceeding to terminate parental rights.

Siana Oil & Gas Co., LLC v. Dublin Co., et al. (consolidated w/20180010) 2018 ND 164
Docket No.: 20180009
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: A county's tax deed gives it title or color of title to the whole estate in the land including the royalty interests.
A tax deed, valid upon its face, creates a presumptive title to the entire estate in the land which continues until it has been overcome by the affirmative action in court, by suit or counterclaim on the part of a person who has a sufficient interest to challenge the title.
Royalty interests cannot be "possessed" for purposes of the statute of limitations or adverse possession.<r> Laches is generally a question of fact.

Odom v. State 2018 ND 163
Docket No.: 20180089
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying petitioner's application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Everett, Jr. 2018 ND 162
Docket No.: 20170367
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition, and order denying motion for a new trial summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Butts v. State 2018 ND 161
Docket No.: 20180002
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of N.F.F. (CONFIDENTIAL) (consolidated w/20180220 & 20180221) 2018 ND 160
Docket No.: 20180219
Filing Date: 7/11/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Adoption of B.A.T. (CONFIDENTIAL) 2018 ND 159
Docket No.: 20180137
Filing Date: 7/11/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating a father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

S&B Dickinson Apartments I, LLC, et al. v. Stark County Board of Commissioners 2018 ND 158
Docket No.: 20170428
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: For a court to have subject matter jurisdiction over an appeal, the appealing party must meet the statutory requirements for perfecting the appeal.
To properly appeal a board of county commissioners' decision relating to tax matters, a landowner must file a notice of appeal with the district court and serve the notice of appeal on a board member and the state tax commissioner within thirty days of the board's decision.

State v. Yost (consolidated w/20170359 & 20170360) 2018 ND 157
Docket No.: 20170358
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion in denying a motion to withdraw guilty pleas where the defendant has not shown manifest injustice or upon finding the State would be substantially prejudiced by withdrawal.
A district court need not directly question a defendant about the factual basis for a guilty plea.
An ineffective assistance of counsel claim requires a defendant to establish counsel's representation fell below an objective standard of reasonableness and prejudice by counsel's deficient performance.
A district court may not amend judgments during the pendency of an appeal.

Agri Industries v. Franson, et al. (Consolidated w/20170412) 2018 ND 156
Docket No.: 20170319
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Contracts
Author: Jensen, Jon J.

Highlight: A district court does not err by granting summary judgment to a mineral developer for damage to a water well when the property owner did not comply with N.D.C.C. § 38-11.1-06, which requires a certified water quality test before proceeding with an action.
A district court errs by granting a motion for prejudgment interest when the unobjected-to jury instruction on awarding interest became the law of the case.

State v. Cullett 2018 ND 155
Docket No.: 20170390
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court judgment entered after a jury found Cullett guilty of terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Chase v. State 2018 ND 154
Docket No.: 20180073
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Tillich, et al. v. Bruce, et al. 2018 ND 153
Docket No.: 20170438
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: An award of costs and attorney fees is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of A.C. (CONFIDENTIAL)(CONSOLIDATED W/20180201) 2018 ND 152
Docket No.: 20180200
Filing Date: 7/11/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating a father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of Z.F.T. (CONFIDENTIAL)(consolidated w/ 20180182-20180185) 2018 ND 151
Docket No.: 20180181
Filing Date: 7/11/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: A juvenile court order terminating a mother's and a father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Oien v. State 2018 ND 150
Docket No.: 20180078
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying defendant's application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Matthews v. State 2018 ND 149
Docket No.: 20180060
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment summarily dismissing application for post-conviction relief is affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

RAD Development-Main Street, LLC v. Leunguen-Koundjo, et al. 2018 ND 148
Docket No.: 20170447
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment of eviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Kisi 2018 ND 147
Docket No.: 20170373
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgments for gross sexual imposition and accomplice to attempted murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3)

Vacancy in Judgeship No. 2, South Central Judicial District 2018 ND 145
Docket No.: 20180224
Filing Date: 6/25/2018
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bismarck.

Poochigian, et al. v. City of Grand Forks 2018 ND 144
Docket No.: 20170335
Filing Date: 6/11/2018
Case Type: Appeal - Civil - Election Contest
Author: Tufte, Jerod E.

Highlight: A post-election claim challenging pre-election irregularities is rendered moot by the completion of the election.

Zuraff v. Reiger, et al. 2018 ND 143
Docket No.: 20170441
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court does not clearly err by concluding the domestic violence presumption under N.D.C.C. § 14-09-06.2(1)(j) did not apply because there was insufficient evidence of domestic violence involving serious bodily injury.
A district court does not abuse its discretion by administering an oath from North Dakota to an out-of-state witness and allowing the witness to testify telephonically.

Thompson, et al. v. Johnson 2018 ND 142
Docket No.: 20170357
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A correct finding of an obligor's net income is essential to determine the proper amount of child support.
If the obligor's tax returns are not available or do not reasonably reflect the income from self-employment, profit and loss statements which more accurately reflect the obligor's current status must be used.

Morel v. State 2018 ND 141
Docket No.: 20170380
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A new rule applies retroactively to final convictions in very limited circumstances. Substantive rules are generally applied retroactively because they carry a significant risk that a defendant stands convicted of an act the law does not make criminal or faces punishment the law cannot impose on him.
The rule announced in Birchfield, as it applies to criminal refusal to submit to a warrantless chemical blood test, is substantive and applies retroactively because the State no longer has authority to punish an individual for refusing to submit to a warrantless blood test.

Pettinger v. Carroll 2018 ND 140
Docket No.: 20170376
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: On review of a summary judgment, if reasonable persons could reach only one conclusion from the facts, issues of fact may become issues of law.
Issues not pled or adequately briefed to the district court will not be considered on appeal.

Interest of B.A.K. (CONFIDENTIAL) 2018 ND 139
Docket No.: 20180176
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Mental Health
Author: Jensen, Jon J.

Highlight: A district court clearly errs by finding an individual is a person requiring treatment under N.D.C.C. § 25-03.1-02 when the evidence does not support the conclusion the individual's mental health deterioration would predictably result in dangerousness to the individual, others, or property.

Rath v. Rath 2018 ND 138
Docket No.: 20170239
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The district court has broad discretion over the presentation of evidence and conduct of a trial, in addition to whether to grant a continuance.
An appellant assumes the consequences and the risks of failing to provide a complete transcript.
A district court does not operate in a vacuum and may take judicial notice of its prior orders.
A district court's orders denying a motion for new trial and motion to reconsider will not be reversed on appeal absent an abuse of discretion.

Rourke v. State 2018 ND 137
Docket No.: 20170375
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: In order to prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) "show that counsel's representation fell below an objective standard of reasonableness" and (2) "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
A district court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous.

Flaten v. Couture, et al. 2018 ND 136
Docket No.: 20170255
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: If the language of a contract is unambiguous, extrinsic evidence is inadmissible to alter, vary, explain, or change the document.
Generally, a person who contracts as an agent for a nonexistent or fictitious entity will be personally liable on the contract.
A motion to alter or amend a judgment under N.D.R.Civ.P. 59(j) allows the court to correct errors of law, but the court may decline to consider issues raised for the first time.<br A motion for relief from judgment under N.D.R.Civ.P. 60(b) is not to be used as a substitute for appeal or to relieve a party from calculated and deliberate choices he has made.

State v. Broom 2018 ND 135
Docket No.: 20170411
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A law enforcement officer may conduct a frisk, or a pat-down search, of a person only when the officer possesses an articulable suspicion that an individual is armed and dangerous.
When conducting an outer clothing pat-down search for weapons, an officer is only entitled to continue to a more intrusive search of a person's inner garments if the pat-down reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon. The purpose of the more invasive search is to ensure officer safety and to determine whether the object is in fact a weapon.

Jensen v. State 2018 ND 134
Docket No.: 20170402
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: The right to a preliminary hearing is waived when a defendant fails to raise the issue at an arraignment or change of plea hearing and proceeds to plead guilty.

State v. Erickson 2018 ND 133
Docket No.: 20170320
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: If an officer's reasonable suspicion is dispelled after lawfully stopping an individual, the officer may make contact with the individual only to briefly explain the reason for the stop.

State v. Taylor 2018 ND 132
Docket No.: 20170321
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: The requirements for a valid traffic stop are not an essential element of the crime of refusing a chemical test for intoxication.
A defendant's claim that a law enforcement officer did not have an articulable reason to stop the defendant's motor vehicle must be raised before trial and the failure to make an appropriate pretrial motion constitutes a waiver of the issue.

Pierce, et al. v. Anderson, et al. 2018 ND 131
Docket No.: 20180005
Filing Date: 6/5/2018
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Jensen, Jon J.

Highlight: This Court cautiously exercises its supervisory jurisdiction to prevent injustice in extraordinary cases where there is no adequate alternative remedy.
Under N.D.C.C. § 28-01-46, an occurrence is not obvious if it takes place during a technical surgical procedure and is beyond the understanding of a layperson.

Dickson v. Dickson 2018 ND 130
Docket No.: 20170334
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: An original determination to award primary residential responsibility is necessary when the parents have joint or equal residential responsibility or when the earlier residential responsibility determination is based on the parties' stipulation.
A court may consider, but is not bound by a finding of domestic violence in another proceeding under N.D.C.C. ch. 14-07.1. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. N.D.C.C. 14-09-06.2(1)(j).

Beeter v. State 2018 ND 129
Docket No.: 20180032
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Contreras-Castillo 2018 ND 128
Docket No.: 20170362
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: An appeal from a district court order denying a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Interest of Hoff 2018 ND 127
Docket No.: 20170434
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order denying discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of K.B. (CONFIDENTIAL) 2018 ND 126
Docket No.: 20180123
Filing Date: 6/5/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Ashford 2018 ND 125
Docket No.: 20170307
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for delivery of a controlled substance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Bjerk, et al. v. Anderson 2018 ND 124
Docket No.: 20170160
Filing Date: 5/14/2018
Case Type: Appeal - Civil - Personal Injury
Author: Tufte, Jerod E.

Highlight: Absent a heightened degree of foreseeability, a homeowner does not have a duty of care under a premises liability theory to protect a guest in the home from the guest's own voluntary consumption of illegal drugs.

N.D. Dep't of Transportation v. Rosie Glow, LLC 2018 ND 123
Docket No.: 20170248
Filing Date: 5/14/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A district court abuses its discretion in awarding attorney fees without adequate explanation for drastically reducing the award.
A district court abuses its discretion when it fails to consider expert witness costs in its order awarding attorney fees and costs under N.D.C.C. § 32-15-32.

Ferguson v. Ferguson 2018 ND 122
Docket No.: 20170213
Filing Date: 5/10/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Key Energy Services, LLC v. Ewing Construction Co., Inc., et. al. 2018 ND 121
Docket No.: 20170324
Filing Date: 5/9/2018
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: A district court in its discretion may allow amendment of a proof of service at any time.
To establish a basis for relief from a district court's denial of a motion for relief from a default judgment, a party must show the district court abused its discretion.
Although under some circumstances the amount of money at stake might be a legitimate factor for a court to consider on a motion to vacate a default judgment, this factor is not enough in the absence of a good excuse for the default.

Molbert v. Kornkven, et al. 2018 ND 120
Docket No.: 20170325
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Actions involving fraud are not commonly suited for summary judgment; however, if a party fails to support his or her opposition to summary judgment with sufficient facts to show there is a genuine issue for trial, then, even in these cases, summary judgment may be appropriate.
When specific performance is requested under North Dakota law, a court may inquire into the adequacy of the consideration supporting a contract. Mere inadequacy of consideration, however, does not justify a denial of specific performance in the absence of unfairness or undue influence.

Alerus Financial, N.A. v. Erwin 2018 ND 119
Docket No.: 20170275
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: When a party moves to amend a pleading in response to a motion for summary judgment, the proposed amendment must be theoretically viable and supported by substantial evidence.
A party requesting a continuance for additional time for discovery under N.D.R.Civ.P. 56(f) must identify with specificity what information is sought and explain how that information would preclude summary judgment and why the information was not previously obtained.

Estate of Nelson 2018 ND 118
Docket No.: 20170246
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A life tenant may convey or lease his or her interest, but may not disregard the rights of those who take when the life estate ends.
An appeal is frivolous when it is flagrantly groundless.

Matter of Hogen Trust B 2018 ND 117
Docket No.: 20170090
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: In the absence of trust language specifying a termination date for a trust, termination occurs when the object or purpose of the trust is accomplished.

A trustee has a fiduciary duty to a trust and may be liable to the trust for breaches of that duty.

An award of trustee fees and attorney fees is reviewed under the abuse-of-discretion standard.

IRET Properties v. Lee, et al. 2018 ND 116
Docket No.: 20170451
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The purpose of the summary eviction statute is to provide an inexpensive, expeditious, and simple means to determine possession of property. 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.
Appellant's failure to file a transcript leaves this Court to only look to the record in reviewing the district court's findings.

Hoff v. Hoff 2018 ND 115
Docket No.: 20180022
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court need not make separate findings for each best interests factor but, as with custody, the court's findings must contain sufficient specificity to show the factual basis for the decision.
The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories.

Everett v. State 2018 ND 114
Docket No.: 20170431
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Orders denying leave to file additional motions or papers are not appealable.

N.D. Dep't of Transportation v. Schmitz 2018 ND 113
Docket No.: 20170397
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A trial court may award reasonable attorney fees, expert witness fees, or litigation costs to the prevailing party in an eminent domain action.
A trial court abuses its discretion if it misinterprets or misapplies the law.

State v. $3260.00 United States Currency, et al. 2018 ND 112
Docket No.: 20180045
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The application of N.D.R.Civ.P. 56, summary judgment, may be appropriate in a forfeiture action.
A district court may decide a motion for summary judgment without holding a hearing if the requesting party fails to secure a time for the hearing.
A district court does not err in granting summary judgment when the opposing party fails to present competent admissible evidence.

Botteicher, et al. v. Becker, et al. 2018 ND 111
Docket No.: 20170386
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Res judicata prevents the litigation of claims that were raised, or could have been raised, in a prior action between the same parties or their privies and were resolved by a final judgment in a court of competent jurisdiction.
The failure to file an appeal from a final decree of distribution within the time specified bars a party to the proceedings from attacking the final decree of distribution if he received notice of the distribution hearing.
Whether the threshold of extreme and outrageous conduct has been met to establish intentional infliction of emotional distress is a question of law for the court to decide.

Kettle Butte Trucking, LLC v. Kelly, et al. 2018 ND 110
Docket No.: 20170350
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: When a contempt order is appealed, challenges to the underlying order will not be considered unless the underlying order is also appealed.
When a court has issued an allegedly erroneous order, the party to whom the order was issued must obey it as long as it remains in force or until it is reversed on appeal, and the failure to obey the order is punishable as a contempt of court.

Wheeler v. Burgum 2018 ND 109
Docket No.: 20170444
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Because the Governor does not directly supervise or train the officials and staff of the North Dakota State Penitentiary, he cannot be held liable in his official capacity under 42 U.S.C. section 1983 for a failure of such action.

Krueger v. N.D. Dep't of Transportation 2018 ND 108
Docket No.: 20170425
Filing Date: 5/8/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A county deputy in fresh pursuit may enter another county to make an arrest if obtaining the aid of officers having jurisdiction would cause a delay permitting escape.
North Dakota law does not prohibit law enforcement from administering more than one chemical test to determine blood alcohol content.

Interest of F.M.G. (CONFIDENTIAL) 2018 ND 107
Docket No.: 20180139
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court's order for continuing treatment at the North Dakota State Hospital for a period not to exceed one year is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of R.C. (CONFIDENTIAL) 2018 ND 106
Docket No.: 20180090
Filing Date: 5/8/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.H. (CONFIDENTIAL) 2018 ND 105
Docket No.: 20180107
Filing Date: 5/8/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Parks 2018 ND 104
Docket No.: 20170462
Filing Date: 5/8/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An amended criminal judgment for possession of a controlled substance and drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Popper 2018 ND 102
Docket No.: 20180113
Filing Date: 5/3/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

CHS Inc. v. Riemers 2018 ND 101
Docket No.: 20170331
Filing Date: 4/17/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Attorney's fees and costs may be awarded under N.D.C.C. 28-26-01(2) whether or not they are also available under N.D.R.Civ.P. 11.
Attorney's fees and costs may be assessed under N.D.C.C. 28-26-01(2) for a frivolous motion.
Post-judgment interest can accrue on a judgment that includes prejudgment costs and interest.
Unless an exception applies, a judgment or order entered in the district court, after the Supreme Court obtains jurisdiction, is void for lack of jurisdiction.

State v. Cook 2018 ND 100
Docket No.: 20170269
Filing Date: 4/12/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. N.D.R.Ev. 901(a).
Statutes are not retroactive unless expressly declared so by the legislature, noting an exception for ameliorating penal legislation. A statute cannot apply retroactively when it becomes effective after a person has been finally convicted otherwise it would constitute an invalid exercise by the legislature of the executive pardoning power.
A district court is allowed a wide range of discretion in fixing a criminal sentence. Appellate review of a criminal sentence is generally limited to whether the district court acted within sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.

Nelson, et al. v. Mattson, et al. (consolidated w/20170287) 2018 ND 99
Docket No.: 20170286
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Foreclosure
Author: Tufte, Jerod E.

Highlight: Joint ventures can own property similarly to partnerships.
In determining whether property is owned by a partnership or is individually-owned by a partner, the district court must rely on the intention of the partners.
A voluntary payment made under a mutual mistake of law precludes recovery of that payment.

Rath v. Rath 2018 ND 98
Docket No.: 20170419
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A claim for relief is frivolous only if there is such a complete absence of actual facts or law a reasonable person could not have expected a court would render a judgment in that person's favor.
The authority to issue supervisory writs is exercised rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.

Rocky Mountain Steel Foundations, Inc. v. Brockett Company, LLC, et al. 2018 ND 96
Docket No.: 20170407
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: An owner's full payment of the general contractor after receipt of notice of a subcontractor's oil and gas construction lien does not invalidate the subcontractor's lien.
In an action to enforce an oil and gas construction lien, the party for whom judgment is rendered is entitled to recover reasonable attorney fees

State v. Gunn 2018 ND 95
Docket No.: 20170138
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The criminal attempt statute does not require that the underlying offense be committed.
Speech integral to a crime is not protected by the First Amendment.

Olson v. N.D. Dep't of Transportation 2018 ND 94
Docket No.: 20170351
Filing Date: 4/10/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Jensen, Jon J.

Highlight: The revocation of driving privileges for refusal to submit to chemical testing requires a valid arrest.
In the absence of authority from Congress, the State lacks criminal jurisdiction over crimes committed by non-member Indians on tribal land.
Whether an officer has jurisdiction to arrest depends on the law of the place where the arrest is made.

State v. Wilder 2018 ND 93
Docket No.: 20170187
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A comment on the defendant's post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
The statutory sentencing provisions do not authorize the sentencing court to order no contact as part of a prison sentence.

State v. Rutherford 2018 ND 91
Docket No.: 20170370
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court's criminal judgment ordering restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(4).