Opinions

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).

Interest of R.F. (CONFIDENTIAL) 2018 ND 90
Docket No.: 20180110
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court's order for continued 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 S.B. (Consolidated w/20180057)(CONFIDENTIAL) 2018 ND 89
Docket No.: 20180056
Filing Date: 4/10/2018
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).

Thorstad v. State 2018 ND 88
Docket No.: 20170427
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Ali 2018 ND 87
Docket No.: 20170378
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Warrantless, limited entry by a police officer into an open garage does not violate a defendant's federal or state constitutional rights under the hot pursuit exception to the warrant requirement.

Brekhus v. N.D. Dep't of Transportation 2018 ND 86
Docket No.: 20170296
Filing Date: 4/10/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Warrantless, limited entry by a police officer into an open garage does not violate a defendant's federal or state constitutional rights under the hot pursuit exception to the warrant requirement.

Grasser v. Grasser 2018 ND 85
Docket No.: 20170188
Filing Date: 3/29/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A motion for recusal and a demand for a change of judge are two separate motions. Unlike a demand under N.D.C.C. 29-15-21, a district court judge is not immediately divested of authority upon the filing of a motion to recuse. While a judge has a duty to recuse when required by the Code of Judicial Conduct, a judge also has an equally strong duty not to recuse when the facts do not require recusal.
An order finding a person guilty of contempt is a final order for purposes of appeal under N.D.C.C. 27-10-01.3(3). A district court's decision to impose sanctions under N.D.R.Civ.P. 11 rests within the sound discretion of the court and it will not be overturned on appeal unless the court has abused its discretion.
A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. This Court will not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result.
It is well-established that a property distribution does not need to be equal to be equitable, but a substantial disparity must be explained so as to provide some indication of the rationale of the district court in distributing the property.

City of Bismarck v. Brekhus (consolidated w/20170166 & 20170167) 2018 ND 84
Docket No.: 20170165
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: A police officer's warrantless, limited entry into a defendant's open garage while in "hot pursuit" does not violate the defendant's rights under either the federal or state constitutions.

J.B., et al. v. R.B. 2018 ND 83
Docket No.: 20180018
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Solwey v. Solwey 2018 ND 82
Docket No.: 20170379
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The effective date for a modification of child support depends upon the facts of each case. The modification generally should be made effective from the date of the motion to modify, absent good reason to set some other date.
If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The maturity of the child is a factually driven issue and will depend on the facts and circumstances of the case.

Carlson v. State 2018 ND 81
Docket No.: 20170252
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final under N.D.C.C. 29-32.1-01(2).
There are three exceptions to the two-year limitation for an application for post-conviction relief: (1) newly discovered evidence, (2) petitioner establishes that the petitioner suffered from a physical disability or mental disease that precluded timely assertion of the application for relief, and (3) petitioner asserts a new interpretation of federal or state constitutional or statutory law that is retroactively applicable to the petitioner's case. See N.D.C.C. 29-32.1-01(3)(b).

Arnegard, et al. v. Arnegard Township 2018 ND 80
Docket No.: 20170242
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner.
A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.
A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.
A claim of constitutional due process violation first requires a protected property interest created by an independent source of law. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.

Berg v. Berg 2018 ND 79
Docket No.: 20170336
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A district court does not clearly err in dividing property and awarding spousal support when it considers the Ruff-Fischer factors and adequately explains its findings regarding property division and spousal support.

State v. Terrill 2018 ND 78
Docket No.: 20170309
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Constructive possession of drug paraphernalia is sufficient probable cause to arrest. Constructive possession can be inferred from the totality of the circumstances including (1) an accused's presence in the place where a controlled substance is found; (2) his proximity to the place where it is found; and (3) the fact the controlled substance was found in plain view.
A search incident to arrest applies where an officer has probable cause prior to conducting the search, and the arrest is substantially contemporaneous to the search.

Chatman v. State 2018 ND 77
Docket No.: 20170384
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An application for post-conviction relief based on newly discovered evidence must be supported by competent, admissible evidence.
An applicant must move for leave and show good cause to use the discovery process in post-conviction relief proceedings.
An application for post-conviction relief generally may not raise claims that could have been addressed in earlier proceedings.

Interest of T.S.C. (CONFIDENTIAL)(Consolidated w/20180053 & 20180054) 2018 ND 76
Docket No.: 20180052
Filing Date: 3/22/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: An untimely notice of appeal leaves the Supreme Court without jurisdiction to consider the appeal.

State v. Sauter 2018 ND 75
Docket No.: 20170339
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: A warrantless blood-alcohol test is unreasonable unless it falls within a recognized exception to the warrant requirement. A warrantless blood-alcohol test may be justified under the exigent circumstances exception to the warrant requirement.

State v. Redtomahawk 2018 ND 74
Docket No.: 20170353
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

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

State v. Mbulu 2018 ND 73
Docket No.: 20170341
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal convictions for conspiracy to commit gross sexual imposition, accomplice to gross sexual imposition, conspiracy to commit murder and attempted murder summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Petition of Bolinske 2018 ND 72
Docket No.: 20170333
Filing Date: 3/20/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney subject to disciplinary proceedings is entitled to procedural due process, including fair notice of the nature of the charges and an opportunity to be heard.

Larimore Public School District No. 44, et al. v. Aamodt, et al. 2018 ND 71
Docket No.: 20170258
Filing Date: 3/19/2018
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: McEvers, Lisa K. Fair

Highlight: The statutory cap on tort damages recoverable from a political subdivision does not violate the open court, jury trial, equal protection, or special law provisions of the state constitution.

Melendez v. Horning III, et al. 2018 ND 70
Docket No.: 20170183
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Nonsignatories to arbitration agreement may compel signatories to the agreement to arbitrate under some circumstances.
Arbitration clauses are construed under principles for contract interpretation in view of public policy favoring arbitration.

Parshall v. State 2018 ND 69
Docket No.: 20170301
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Plea agreements are interpreted according to general contract principles.
A district court's interpretation of a contract may be examined independently on review for error.

Owego Township v. Pfingsten 2018 ND 68
Docket No.: 20170190
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A township's determination or award of damages must be appealed within thirty days of filing under N.D.C.C. §§ 24-07-22 and 28-34-01.

Estate of Albrecht 2018 ND 67
Docket No.: 20170087
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: An estate's motion for summary judgment satisfies the statutory requirement that a proceeding on a claim be commenced within sixty days after the personal representative mailed the notice of disallowance.
An individual who consents to a final decree of divorce is not a surviving spouse even if the final decree of divorce is determined to not be valid.
A request for a remedial sanction for contempt may be raised within the proceeding to which the alleged improper conduct is related.
A court has equitable power to order a return to the status quo when a party violating a temporary restraining order has died.
The assertion of an independent claim for economic waste outside of a divorce proceeding is inappropriate.

Yahnke v. State 2018 ND 66
Docket No.: 20170185
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's order denying Yahnke's post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Carroll v. Carroll (cross-reference w/20160190) 2018 ND 65
Docket No.: 20170292
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An amended divorce judgment entered on remand and an order reducing child support obligation are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).