Opinions

Benson, et al. v. Feland Brothers Properties, et al. 2018 ND 29
Docket No.: 20170132
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: Surveys are not conclusive evidence of boundary lines. While a water line may shift from time to time, it remains a valid boundary line.
The district court does not clearly err by tacking on time for purposes of adverse possession when the first adverse possessor makes improvements to the property, the second adverse possessor uses the property seasonally, and both pay taxes on the property.

Martin v. Marquee Pacific, LLC, et al. 2018 ND 28
Docket No.: 20170256
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Foreclosure
Author: Jensen, Jon J.

Highlight: The rule on joinder, N.D.R.Civ.P. 19, does not require dismissal of an action for failure to join a party in an earlier action.
A party with a single cause of action generally may not split that cause of action and maintain several lawsuits for different parts of the action.
For res judicata purposes, privity exists if one is so identified in interest with another that he or she represents the same legal right. Privity includes a person not technically a party to a judgment, but who is, nonetheless, connected with it by her interest in the prior litigation and by her right to participate therein.

Interest of C.B. (CONFIDENTIAL) 2018 ND 27
Docket No.: 20170155
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - Juvenile Law
Author: McEvers, Lisa K. Fair

Highlight: Jeopardy does not attach at a pretrial motion to dismiss.
If a defendant is not required to register as a sex offender in another state, the Full Faith and Credit Clause of the United States Constitution does not prohibit North Dakota from requiring a defendant to register.

Wieland v. City of Fargo 2018 ND 26
Docket No.: 20170196
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A district court does not have appellate jurisdiction unless authorized by statute.
An appeal is not a matter of right but a creature of statute, and no right to appeal exists unless authorized by statute.
Absent statutory authority, a city's resolution of necessity authorizing an eminent domain proceeding may not be directly appealed to the district court.

Brandt, et al. v. City of Fargo 2018 ND 26
Docket No.: 20170162
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A district court does not have appellate jurisdiction unless authorized by statute.
An appeal is not a matter of right but a creature of statute, and no right to appeal exists unless authorized by statute.
Absent statutory authority, a city's resolution of necessity authorizing an eminent domain proceeding may not be directly appealed to the district court.

Dixon v. Dixon 2018 ND 25
Docket No.: 20170212
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A case becomes moot when, because of the lapse of time or the occurrence of events, a court is unable to render effective relief.
People may waive rights and privileges which are conferred by statute and are intended for their benefit.
Summary judgment should not be used to conduct a mini-trial of disputed fact issues.

Horvath v. State 2018 ND 24
Docket No.: 20170329
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Once the State moves for summary disposition in a post-conviction relief proceeding pointing out the absence of supporting evidence for the defendant's allegations, the defendant is put on notice of the issue and a minimal burden shifts to the defendant to provide some competent evidence to support the claim. If competent evidence is provided, the defendant is entitled to an evidentiary hearing.
Summary dismissal is generally inappropriate for post-conviction relief claims arguing ineffective assistance of counsel because such claims typically require development of a record in an evidentiary hearing.

Kautzman, et al. v. Doll 2018 ND 23
Docket No.: 20170232
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: An appeal from a district court's refusal to vacate an order under Rule 60(b), N.D.R.Civ.P., does not permit the appellant to attack the underlying order from which an appeal could have been, but was not, brought.
To prevail on a motion for relief under N.D.R.Civ.P. 60(b)(6), the moving party must show exceptional circumstances exist to justify relief from the operation of the judgment or order.

Little v. Stark County Sheriff 2018 ND 22
Docket No.: 20170222
Filing Date: 1/22/2018
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: VandeWalle, Gerald

Highlight: Whether to issue a writ of mandamus is left to the district court's sound discretion. It is not an abuse of discretion for the district court to consider a petitioner's excessive delay in seeking remedy when denying a petition.

Thompson v. Thompson 2018 ND 21
Docket No.: 20170063
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Split residential responsibility is not preferred, but it is not expressly prohibited.
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. This Court will not reweigh the evidence nor reassess the credibility of witnesses.
A district court's determination on spousal support will not be set aside for failure to explicitly state the basis for its findings if that basis can be reasonably inferred from the record.

State v. Montgomery 2018 ND 20
Docket No.: 20170192
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Voluntary consent to a warrantless blood test is determined by examining the totality of the circumstances, for which the State bears the burden of proof.
A district court's decision on a motion to suppress will not be reversed if there is sufficient competent evidence fairly capable of supporting the trial court's findings and the decision is not contrary to the manifest weight of the evidence.

Campbell v. Thompson 2018 ND 19
Docket No.: 20170184
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Under the North Dakota Rules of Civil Procedure, the exclusive means for opening a default judgment is through a motion to vacate the judgment. On a direct appeal from a default judgment granted under N.D.R.Civ.P. 55, the standard of review is limited to whether "irregularities appear on the face of the judgment roll."

State v. Adams 2018 ND 18
Docket No.: 20170163
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: When an individual does not own the vehicle, does not assert ownership of a container within the vehicle, does not provide evidence establishing possessory interest in the container, and there are no identifying markings on the container or the contents within, the individual has no reasonable expectation of privacy in the container located in the vehicle.
A district court's decision at a preliminary hearing that probable cause existed to bind a defendant over for trial is rendered moot once the trial is held, and the defendant may not, on appeal, challenge the decision that probable cause existed.

State v. Holkesvig (consolidated with 20170267) 2018 ND 17
Docket No.: 20170266
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - Other
Author: McEvers, Lisa K. Fair

Highlight: A district court order denying a defendant leave of court to file a postconviction application is not appealable.

Matter of Gomez 2018 ND 16
Docket No.: 20170159
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: An expert appointed for or retained by a respondent in a sexually dangerous individual commitment proceeding is subject to the same discovery rules as other experts.
A party may waive an objection to the discoverability of an expert opinion by failing to object during discovery.

State v. Rivera (consolidated w/20170235) 2018 ND 15
Docket No.: 20170234
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: Class A misdemeanors involving different crimes committed against different victims on different dates can be consecutively sentenced under N.D.C.C. § 12.1-32-11(3).

Glass v. Glass 2018 ND 14
Docket No.: 20170283
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Divorce - Property
Author: Tufte, Jerod E.

Highlight: Where an order terminating spousal support and an amended judgment and decree conflict, the amended judgment and decree controls.
The law of the case doctrine bars an appeal where the argument could have been brought in the first appeal.

Williams v. Williams 2018 ND 13
Docket No.: 20170152
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: If a district court issues a disorderly conduct restraining order without addressing constitutional claims, the court generally commits a reversible error unless the Supreme Court can say with certainty the court would have issued the restraining order based solely upon the uncontested conduct.

State v. Kostelecky 2018 ND 12
Docket No.: 20170291
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: Article I, § 25(1)(n), N.D. Const., does not require restitution beyond what is necessary to make the victim whole.
A district court abuses its discretion if it fails to consider the facts presented to it when ordering restitution.

Continental Resources, Inc. v. P&P Industries, LLC I, et al. 2018 ND 11
Docket No.: 20160452
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A jury's special verdict will be reversed on appeal if there is an inconsistency in the verdict such that it will not support the judgment and no reconciliation is possible.

Continental Resources, Inc. v. Counce Energy BC #1, LLC 2018 ND 10
Docket No.: 20170066
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Dismissal for lack of subject matter jurisdiction is generally appropriate if the plaintiff fails to exhaust administrative remedies because failure to exhaust those remedies precludes making a claim in court.
The Industrial Commission has extremely broad and comprehensive powers, which are continuous and exclusive, to regulate oil and gas development in this state.
A judgment entered by a court without subject matter jurisdiction is void and can be vacated.

Guthmiller v. N.D. Dep't of Transportation 2018 ND 9
Docket No.: 20170300
Filing Date: 1/22/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Jensen, Jon J.

Highlight: The unambiguous language of N.D.C.C. § 39-06.2-10(15) requires the conviction, not the commission, of two serious traffic violations while operating a noncommercial motor vehicle within three years to disqualify commercial driving privileges.

Interest of Leno 2018 ND 8
Docket No.: 20170289
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

State v. Evans 2018 ND 7
Docket No.: 20170274
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A district court's order denying a calculation of credit for time served is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
A defendant is only entitled to credit for time served from incarceration as a direct result of the immediate charge and not for time served as a result of probation revocation

Interest of Z.B. (Confidential) 2018 ND 6
Docket No.: 20170395
Filing Date: 1/22/2018
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).

Jose v. Jose 2018 ND 5
Docket No.: 20170193
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court amended judgment awarding primary residential responsibility to the father is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tucker 2018 ND 4
Docket No.: 20170278
Filing Date: 1/22/2018
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).

City of Bismarck v. Wells 2018 ND 3
Docket No.: 20170173
Filing Date: 1/22/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment for actual physical control of a motor vehicle while under the influence of an intoxicating liquor entered following denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Saucedo v. State 2018 ND 2
Docket No.: 20170224
Filing Date: 1/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Matter of Emelia Hirsch Trust 2017 ND 291
Docket No.: 20170195
Filing Date: 12/13/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: District court pre-filing order against vexatious litigant under N.D. Sup. Ct. Admin. R. 58 reviewed for an abuse of discretion.

Atkins v. State 2017 ND 290
Docket No.: 20170249
Filing Date: 12/11/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Once the State moves for summary disposition of application for post-conviction relief alleging ineffective assistance of counsel, pointing out the absence of supporting evidence, the defendant is put on notice of the issue and a minimal burden shifts to the defendant to provide some competent evidence to support his claim. Scheduling an evidentiary hearing does not relieve the petitioner of the burden of producing competent, admissible evidence raising an issue of material fact.

Interest of K.S.D. (CONFIDENTIAL) (consolidated with 20170273) 2017 ND 289
Docket No.: 20170272
Filing Date: 12/7/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Louser, Stacy Joan

Highlight: A juvenile court's decision to terminate parental rights in an ICWA case must be supported by evidence beyond a reasonable doubt, including qualified expert testimony, on whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Osborne v. Brown & Saenger, Inc. 2017 ND 288
Docket No.: 20170254
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Tufte, Jerod E.

Highlight: The standard of review of a district court's granting of a Rule 12(b)(3) motion to dismiss on the basis of a forum selection clause is de novo.
North Dakota has a strong public policy against non-competition agreements, causing the non-compete clause and forum-selection clause to be rendered unenforceable in an employment contract.

Gannaway, et al. v. Torres, et al. 2017 ND 287
Docket No.: 20170092
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Fraud in the execution of a deed must be undiminished by the negligence of the grantor, and the district court must consider the grantor's conduct in determining whether a deed is void or voidable.
If a deed is voidable, it may pass good title to a subsequent good-faith purchaser for value without notice.
If facts exist that would put a reasonably prudent person on notice about defects in a chain of title, the subsequent buyer is not a good-faith purchaser for value without notice.

Ceynar, et al. v. Barth, et al. 2017 ND 286
Docket No.: 20170135
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Restrictive covenants are strictly construed in favor of free use of land.
Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance, even if it effects material reduction in market value.

Vig v. Swenson 2017 ND 285
Docket No.: 20170032
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: Tufte, Jerod E.

Highlight: Before a court may set aside a transaction on the ground of mental incapacity, a party attacking the validity of the transaction has the burden to prove the grantor was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction.
A lease of agricultural land having a fixed, non-contingent term longer than ten years is entirely invalid and not simply invalid beyond ten years.

Black Hills Trucking, Inc. v. N.D. Industrial Commission 2017 ND 284
Docket No.: 20170086
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The Industrial Commission has jurisdiction over the illegal discharge of saltwater from the point it was generated to the point it is disposed.
A fine is unconstitutionally excessive if it is grossly disproportional to the gravity of a defendant's offense.

State v. Truelove 2017 ND 283
Docket No.: 20170043
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A conviction for gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a) requires the use of force either prior to or during the sexual act, but not after.

State v. $127,930 United States Currency, et al. 2017 ND 282
Docket No.: 20170154
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Nervousness, a large amount of cash, and a long distance, short-duration trip to a source city are pertinent factors in determining reasonable suspicion.

Interest of M.R. (CONFIDENTIAL) (consolidated w/20170364 & 20170365) 2017 ND 281
Docket No.: 20170363
Filing Date: 12/7/2017
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) and (7).

State v. Sabot 2017 ND 280
Docket No.: 20170100
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment for terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Coppage v. State 2017 ND 279
Docket No.: 20170277
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order summarily dismissing defendant's application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Todd 2017 ND 278
Docket No.: 20170240
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment entered after the district court found defendant guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor is summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4), and (7).

Interest of Jane Doe (CONFIDENTIAL) 2017 ND 277
Docket No.: 20170398
Filing Date: 12/7/2017
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).

State v. De La Cruz 2017 ND 276
Docket No.: 20170207
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of patronizing a minor for commercial sexual activity is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Vann 2017 ND 275
Docket No.: 20170171
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal convictions for terrorizing are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Anderson 2017 ND 274
Docket No.: 20170197
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment entered after the defendant pled guilty to gross sexual imposition, aggravated assault - domestic violence, and felonious restraint is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Palacio (consolidated w/20170181) 2017 ND 273
Docket No.: 20170180
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An appellant who fails to provide a trial transcript on appeal makes it impossible for the Court to conduct a meaningful and intelligent review of a claim of insufficiency of the evidence.

Matter of Reciprocal Discipline of Huisman 2017 ND 272
Docket No.: 20170369
Filing Date: 12/4/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

Rogers v. State 2017 ND 271
Docket No.: 20170026
Filing Date: 11/27/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: Whether a defendant received ineffective assistance of counsel is a mixed question of fact and law fully reviewable on appeal.
A district court's decisions on a motion to amend findings, a motion for a new trial, and a motion to correct the record, are reviewed for an abuse of discretion.

Altru Specialty Services, Inc. v. N.D. Dep't of Human Services, et al. 2017 ND 270
Docket No.: 20170146
Filing Date: 11/20/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The district court does not acquire subject matter jurisdiction over an appeal from an administrative agency decision unless the appellant satisfies statutory requirements for perfecting an appeal.

Sundance Oil and Gas, LLC v. Hess Corporation 2017 ND 269
Docket No.: 20170148
Filing Date: 11/20/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Highlight: A district court may not use the findings in an unlocatable mineral owner trust action as res judicata in a subsequent quiet title action to resolve all factual disputes regarding whether a later purchaser was a good-faith purchaser for value.

State v. Montgomery 2017 ND 268
Docket No.: 20170170
Filing Date: 11/20/2017
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Motter, et al. v. Traill Rural Water District 2017 ND 267
Docket No.: 20170122
Filing Date: 11/20/2017
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Raising the decisive issue for a judgment in post-trial briefing can constitute "surprise which ordinary prudence could not have guarded against" sufficient to grant a new trial.
A district court's grant of a motion for a new trial is reviewed for abuse of discretion.
A party claiming mutual mistake in a contract must present clear and convincing evidence to obtain reformation.
A district court's finding that a party failed to prove mutual mistake by clear and convincing evidence will not be overturned unless clearly erroneous.

Forsman v. Blues Brews and Bar-B-Ques Inc., et al. (cross-ref. w/20110356) 2017 ND 266
Docket No.: 20170088
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Under a Miller-Shugart agreement and judgment, an insured defendant may stipulate for settlement of a plaintiff's claims and stipulate judgment may be collected only from the proceeds of any insurance policy, with no personal liability to the defendant. The stipulated judgment is not conclusive on the insurer.
While the burden of proof rests on a party claiming coverage under an insurance policy, the insurer has the burden of establishing the applicability of exclusions.
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.

State v. Myers (cross-reference w/20130172) 2017 ND 265
Docket No.: 20170094
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: Under N.D.R.Crim.P. 35(a)(2), a sentencing court may correct a sentence that resulted from arithmetical, technical, or other clear error.
A subsequent statutory amendment removing class C felony aggravated assault from the provision requiring an offender to serve eighty-five percent of a sentence of incarceration is not an error that may be corrected under N.D.R.Crim.P. 35(a)(2).

Martinson v. N.D. Dep't of Transportation 2017 ND 264
Docket No.: 20170175
Filing Date: 11/16/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Absent a showing of authority, threat, or demand, an officer calling out and running up ahead of person to get their attention does not constitute a seizure implicating the Fourth Amendment.
Under N.D.C.C. § 39-08-01, whether a driveway is a private area to which the public has a right to access is a question of fact. A fact-finder could reasonably conclude the driveway at issue, although private, was an area "to which the public has a right of access for vehicular use."

Garcia v. State 2017 ND 263
Docket No.: 20170030
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A sentencing court must consider a juvenile offender's youth and attendant characteristics before sentencing the juvenile offender to life in prison without the possibility of parole.

Haugrud v. Craig 2017 ND 262
Docket No.: 20170157
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Corporate shareholders and limited liability company members generally have no right to bring actions in their individual names and on their own behalf for a wrong committed against the entity.
To have standing to sue individually, a shareholder or member must allege an injury separate and distinct from other shareholders or members, or a wrong involving a contractual right of the individual that exists independently of any right of the entity.
Ordinarily a claim against the plaintiff in a representative capacity cannot be set off in a suit brought in his or her individual capacity, and vice versa.
A complaint should not be dismissed for failure to state a claim if the court can discern a potential for proof to support it.

American Express Centurion Bank v. Corum (consolidated w/20170134) 2017 ND 261
Docket No.: 20170133
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: McEvers, Lisa K. Fair

Highlight: A party who is not represented by a licensed attorney cannot be represented by another person, including their spouse, in any court of record in this state, absent authorization provided by state law or supreme court rule.
The right of free speech does not encompass in-court advocacy by a non-lawyer on behalf of another person, including a spouse.

State v. Sheperd 2017 ND 260
Docket No.: 20170186
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Section 12.1-41-06(1)(a), N.D.C.C., does not require the presence of a minor to obtain a conviction.
Under the plain language of N.D.C.C. § 12.1-41-06(1)(a), an individual may be convicted of an offense if the agreement is made with someone other than a minor.

Candee, et al. v. Candee 2017 ND 259
Docket No.: 20170028
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Foreclosure
Author: Tufte, Jerod E.

Highlight: Parties to an agreement may stipulate as to choice of law.
Applying California law, a creditor is barred from obtaining a deficiency judgment following foreclosure unless the creditor brings an action for a deficiency judgment within three months of the foreclosure sale.

State v. Toure (consolidated w/20170039 & 20170040) 2017 ND 258
Docket No.: 20170038
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Analysis of a speedy trial claim requires balancing the length of delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused.
A district court's judgments entered after a jury found the defendant guilty of reckless endangerment, kidnapping, aggravated assault, and two counts of terrorizing are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3), and (7).

State v. Hojian 2017 ND 257
Docket No.: 20170142
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of violation of a domestic violence protection order and forgery is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Matson (Consolidated w/20170344) 2017 ND 256
Docket No.: 20170343
Filing Date: 11/13/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Estate of Feldmann 2017 ND 255
Docket No.: 20170034
Filing Date: 10/26/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: The appellate court does not reweigh evidence, reassess witness credibility, or substitute its judgment for the trial court's decision merely because it would have reached a different result.
Standing crops at the time of death pass with the real estate to which they are attached unless otherwise specified in a will.

Hallin, et al. v. Inland Oil & Gas Corporation 2017 ND 254
Docket No.: 20170145
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Highlight: Oil and gas leases are interpreted in the same manner as contracts.
Extrinsic evidence is not admissible to alter, vary, explain, or change a clear and unambiguous contract.

Glaser v. N.D. Dept. of Transportation 2017 ND 253
Docket No.: 20170129
Filing Date: 10/17/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A police officer's testimony regarding the time of driving on his report and notice form may call the time of driving into question but does not rebut the prima facie evidence in the report when the hearing officer relies on additional admissible evidence establishing a time frame for driving.
It is the petitioner's burden to rebut prima facie evidence introduced by the Department of Transportation.

State, et al. v. Haskell, et al. 2017 ND 252
Docket No.: 20170293
Filing Date: 10/17/2017
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Highlight: The Supreme Court exercises its discretionary authority to issue supervisory writs on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.
Plaintiffs must allege sufficient facts to raise a genuine issue of material fact that an employer engaged in an intentional act with the conscious purpose of inflicting injury to overcome an employer's immunity from civil liability under § 65-01-01.

State v. Lark 2017 ND 251
Docket No.: 20170143
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Whether probable cause exists is a question of law, fully reviewable on appeal. The test for probable cause is not based on the subjective view of a law enforcement officer, but rather is an objective standard based on the totality of the circumstances.

Giwa v. State 2017 ND 250
Docket No.: 20170168
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court may appropriately decline to apply a new rule of criminal procedure retroactively when applying the rule would not prevent manifest injustice and there is no indication the rule was meant to be applied retroactively.
The voluntary and knowing nature of a guilty plea is not affected by the district court's failure to notify a defendant of a collateral consequence of the plea.

State v. Crissler 2017 ND 249
Docket No.: 20170126
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: Under N.D.R.Ev. 701, lay witness testimony is properly admitted when it is based on the witness's perception and is helpful to understanding a fact in issue.

Interest of P.T.D. (CONFIDENTIAL)(cons. w/ 20170069 - 20170072) 2017 ND 248
Docket No.: 20170068
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Juvenile Law
Author: Jensen, Jon J.

Highlight: When the juvenile court makes insufficient findings of fact, this Court may remand with instructions requiring the juvenile court to make additional findings of fact.

Interest of B.A.C. (CONFIDENTIAL) 2017 ND 247
Docket No.: 20170314
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Mental Health
Author: Tufte, Jerod E.

Highlight: Firearm restrictions under 18 U.S.C. 922(d)(4) and (g)(4) are a collateral consequence of involuntary commitment orders. Thus, the mootness doctrine does not apply.

State v. Campbell 2017 ND 246
Docket No.: 20160197
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: A district court's decisions relating to expert witness testimony will be affirmed absent an abuse of discretion.

Berry v. Berry 2017 ND 245
Docket No.: 20170085
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court's decision whether to grant relief under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion.
A district court's division of marital property is treated as a finding of fact subject to the clearly erroneous standard of review.

State v. Mayland 2017 ND 244
Docket No.: 20160453
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: A defendant fails to preserve a jury instruction issue for appellate review when he stipulates to the exclusion of a jury instruction regarding prior convictions.
Under N.D.C.C. § 39-08-01, the crime of actual physical control may occur on private property, including a private driveway.

Estate of Eagon 2017 ND 243
Docket No.: 20170075
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A boilerplate will provision directing payment of "federal and state taxes" from estate assets is not a clear and unambiguous directive that federal estate taxes be apportioned differently from the method provided by the estate tax apportionment statute.
Property passes upon death, not upon distribution.
Attorney fees may be awarded to petitioners in a probate proceeding if it results in added value to the estate or it determines the proper distribution of estate assets.

Brew v. Brew 2017 ND 242
Docket No.: 20170073
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: The district court is required to equitably distribute marital property in a divorce proceeding, and a property division does not need to be equal to be equitable.
Under the child support guidelines, a district court averages a self-employed obligor's income over the most recent five years to determine income from self-employment.
The district court has discretion to award attorney's fees when one party's actions have unreasonably increased the time spent on a case.

WSI v. Questar Energy Services, Inc. 2017 ND 241
Docket No.: 20170059
Filing Date: 10/17/2017
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Highlight: A challenge to Workforce Safety and Insurance employee classifications is a mixed question of law and fact, requiring a review of whether the findings of fact is supported by a preponderance of the evidence and whether those findings support the applied classification.
An administrative law judge may properly exclude evidence of changes to employee classification codes that arose after the relevant audit time period.

Beach Railport, LLC v. Michels, et al. 2017 ND 240
Docket No.: 20160457
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: District courts have wide judicial discretion in partition actions to do equity and to make a fair and just division of the property or proceeds between the parties, and great flexibility in fashioning appropriate relief for the parties.
A partition report of the referees, appointed under the statutes governing partition, is only a proposal for the district court's consideration. The court may confirm, change, modify, or set aside the report and, if necessary, may appoint new referees.
When a party makes a substantiated claim of factual or legal error in a referee partition report, due process protections and equitable concerns require the district court to hold a hearing to weigh the objections against the report and decide whether the report equitably divides the real property before confirming, changing, or modifying the report.

State v. Sahel 2017 ND 239
Docket No.: 20170178
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment entered after defendant pleaded guilty to gross sexual imposition and terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Clark v. State 2017 ND 238
Docket No.: 20170076
Filing Date: 10/17/2017
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. Whetsel 2017 ND 237
Docket No.: 20170141
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A district court's decisions relating to expert witness testimony will be affirmed absent an abuse of discretion.

Wisham v. State 2017 ND 236
Docket No.: 20170176
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of application for post-conviction relief alleging sentence time calculation error and violation of constitutional rights is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Wisham v. State 2017 ND 235
Docket No.: 20170164
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a petitioner's application for post-conviction relief on the basis of ineffective assistance of counsel is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 9, ECJD 2017 ND 233
Docket No.: 20170327
Filing Date: 10/10/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: The judgeship vacancy created by the retirement of Norman G. Anderson in Fargo is retained.

Matter of John T. Gassmann Trust 2017 ND 232
Docket No.: 20170033
Filing Date: 10/3/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: Res judicata bars the relitigation of claims that were raised, or could have been raised, in earlier actions between the same parties.
Under North Dakota law, if a trust has two or more beneficiaries, the trustee must act impartially in dealing with the trust property, giving due regard to the beneficiaries' respective interests. The trustee also has a duty to protect and preserve the trust assets and to defend actions which may result in loss to the trust.

Wilkinson, et al. v. Board of University and School Lands of the State of N.D. 2017 ND 231
Docket No.: 20160199
Filing Date: 9/28/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Chapter 61-33.1, N.D.C.C., governing minerals rights of land inundated by the Pick-Sloan Missouri Project dams, applies retroactively.
A property owner is entitled to compensation if the government "takes" or "damages" private property for public use.

Interest of F.S. (CONFIDENTIAL) (consolidated w/20170298 & 20170299) 2017 ND 230
Docket No.: 20170297
Filing Date: 9/20/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: A district court does not abuse its discretion in reopening the record after trial has concluded when the evidence is directly relevant to the matter and a final order has not been issued.

Baker v. Autos, Inc., et al. (cross-reference w/20140033) 2017 ND 229
Docket No.: 20170174
Filing Date: 9/20/2017
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Certification under N.D.R.Civ.P. 54(b) should not be routinely granted and is reserved for cases involving unusual circumstances where failure to allow an immediate appeal would create a demonstrated prejudice or hardship.

Interest of Jane Doe (CONFIDENTIAL) 2017 ND 228
Docket No.: 20170322
Filing Date: 9/20/2017
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court ordering Jane Doe's hospitalization and involuntary treatment with medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Osier (consolidated w/20170042)(cross-ref. w/19960346 & 19980088) 2017 ND 227
Docket No.: 20170041
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Order denying motion for relief from the judgment under N.D.R.Civ.P. 60(b) is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Doornek (Consolidated w/20170027) 2017 ND 226
Docket No.: 20170020
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found defendant guilty of one count of theft of property and two counts of assaulting a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Wagner 2017 ND 225
Docket No.: 20170093
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court's order denying Wagner's motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Duchaine 2017 ND 224
Docket No.: 20170037
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court's judgment entered after a jury found Duchaine guilty of burglary is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Phillips v. State (cross-reference w/20130151) 2017 ND 223
Docket No.: 20170131
Filing Date: 9/20/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of application for post-conviction relief alleging newly discovered evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Matter of Reciprocal Discipline of Matson 2017 ND 222
Docket No.: 20170305
Filing Date: 9/18/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Disbared.

Disciplinary Board v. Nemec 2017 ND 221
Docket No.: 20170257
Filing Date: 9/18/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Disbared.

Vacancy in Judgeship No. 3, NECJD 2017 ND 220
Docket No.: 20170270
Filing Date: 9/18/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judicial Vacancy Filled.