Opinions

State v. Mercier 2016 ND 160
Docket No.: 20150275
Filing Date: 8/17/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: An investigative stop must be justified by reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.
A search incident to arrest is a recognized exception to the search warrant requirement, and an officer making a lawful arrest may search the arrestee and an object immediately associated with the arrestee.
A search incident to arrest is not invalid simply because the search preceded the arrest so long as the arrest quickly followed the search and the fruits of the search were not needed for probable cause to arrest.

State v. Hoffer 2016 ND 159
Docket No.: 20160040
Filing Date: 7/28/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A district court order deferring imposition of sentence entered after a conditional guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3), and (7).

State v. Heier 2016 ND 158
Docket No.: 20160039
Filing Date: 7/28/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: The Fourth Amendment does not apply to searches or seizures by a private individual not acting as an agent of the government or with the participation and knowledge of any government official.

Peterson v. Peterson 2016 ND 157
Docket No.: 20150363
Filing Date: 7/26/2016
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: For obligors believing they can no longer pay the court-ordered spousal support, the appropriate procedure is to immediately move the court to abolish or reduce the court-ordered support because of a change of circumstances, not unilaterally to cease making the required payments.

Interest of D.W. (CONFIDENTIAL) 2016 ND 156
Docket No.: 20160002
Filing Date: 7/25/2016
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: For a sexually dangerous individual, the executive director of the department of human services may not be required to create a less restrictive treatment facility or treatment program specifically for the respondent or committed individual.

Sandahl, et al. v. City Council of the City of Larimore 2016 ND 155
Docket No.: 20150364
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: An appeal from a decision of a local governing body must be filed within 30 days of the decision.

State v. Francis 2016 ND 154
Docket No.: 20150280
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: Electioneering law prohibiting the gathering of signatures within 100 feet of the entrance to an open polling place is a reasonable time, place, and manner restriction on speech.
Prohibition on collecting signatures within 100 feet of the entrance to an open polling place is a reasonable restriction on the initiated ballot measure process.
To show abuse of prosecutorial discretion, defendants must establish similarly situated individuals were not prosecuted and prosecution of the defendant was based on an improper motive.

Klein v. Klein 2016 ND 153
Docket No.: 20160043
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Statute terminating permanent spousal support award upon habitual cohabitation of the spouse receiving support does not apply to cohabitation occurring prior to August 1, 2015.

State v. Asbach (cross-ref. w/20140471) 2016 ND 152
Docket No.: 20160055
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Bad faith is a question of fact.

State v. Horning (cross-reference w/20150148) 2016 ND 151
Docket No.: 20160086
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Once the presumption is established that property is forfeitable drug money, the person claiming the property must rebut the presumption.

City of Napoleon v. Kuhn (cross-ref. w/20140134) 2016 ND 150
Docket No.: 20150327
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: McEvers, Lisa K. Fair

Highlight: District courts have a wide discretion when setting restitution but must consider: (1) the reasonable damages sustained; (2) the ability of the defendant to pay monetary reparations; and (3) the likelihood that restitution will serve a valid rehabilitation purpose.
The State must prove the amount of restitution by a preponderance of the evidence.

Ratliff v. State 2016 ND 149
Docket No.: 20150330
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To prevail on a postconviction claim of ineffective assistance of counsel, the petitioner has the heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.

Garaas v. Cass County Joint Water Resource District 2016 ND 148
Docket No.: 20150350
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: As a prerequisite to issuing a valid order or judgment, a court must have both subject matter and personal jurisdiction.
A valid appeal of the decision of a local governing board requires that a copy of the appeal be served on a member of the board.

White Bird v. State 2016 ND 147
Docket No.: 20160025
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Counsel's conduct is presumed to be reasonable, and courts consciously attempt to limit the distorting effect of hindsight.

Hieb v. State 2016 ND 146
Docket No.: 20160019
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final, unless an exception applies.
When a post-conviction relief applicant claims an exception to the statute of limitations because a new interpretation of federal or state law retroactively applies to his case, the application must be filed within two years of the effective date of the retroactive application of law.

State v. Davis 2016 ND 145
Docket No.: 20150287
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A district court may consider the circumstances and all relevant factors in determining whether to modify an order for conditional release.
In determining whether to modify an order for conditional release, a district court is required to make findings on the individual's mental status and level of risk to society, which are governed by the clearly erroneous standard of review.
While a district court cannot arbitrarily disregard expert testimony, it can assign the weight to give it, and does not have to accept experts' opinions as conclusive.

Interest of E.P. (CONFIDENTIAL)(consolidated w/20160185 & 20160186) 2016 ND 143
Docket No.: 20160184
Filing Date: 7/20/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Bjorneby, et al. v. Nodak Mutual Insurance Company, et al. 2016 ND 142
Docket No.: 20150255
Filing Date: 7/7/2016
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: When the evidence presented at trial is sufficient to create an issue of material fact, judgment as a matter of law is inappropriate.
A party must object to a jury instruction to argue it was improper on appeal. When the parties do not object to an instruction, it becomes the law of the case.

Constellation Development, LLC v. Western Trust Co., et al. 2016 ND 141
Docket No.: 20150319
Filing Date: 7/7/2016
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The substance of an agreement controls, not the titles or labels attached by the parties.
While a right of first refusal to purchase real estate is triggered when the owner receives an offer from a third party and decides to sell, a right of first offer is triggered when the owner decides to offer the property for sale without first receiving an offer from a third party.
A contract required by the statute of frauds to be in writing cannot be modified by a subsequent unexecuted oral agreement.

Limberg v. Sanford Medical Center Fargo, et al. 2016 ND 140
Docket No.: 20150348
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: The purpose of a motion for dismissal for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the statement of the claim presented in the complaint.
A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
When the pricing term in a contract is fixed and can be determined from the language of the contract, the contract is not silent or open concerning price and there is no need to judicially impute a fair and reasonable price term.

Viscito, et al. v. Christianson, et al. (cross-ref. w/20140252) 2016 ND 139
Docket No.: 20150285
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: The "law of the case" doctrine is the principle that when an appellate court has passed on a legal question and remanded the case to the court below for further proceedings, the legal question decided by the appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain the same.
The mandate rule requires the district court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry out the appellate court's mandate.

Bartholomay v. Plains Grain & Agronomy, LLC 2016 ND 138
Docket No.: 20160030
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Generally, when an employer complies with the workers compensation statutes, the employee's exclusive remedy against the employer is limited to recovery under the workers compensation statutes.
The sole exception to employer immunity from civil liability under the workers compensation laws requires both that the employer engage in an "intentional act" and that the employer have a "conscious purpose of inflicting the injury."

Riemers v. Hill, et al. (cross-ref 20130407) 2016 ND 137
Docket No.: 20150276
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Landlord/Tenant
Author: VandeWalle, Gerald

Highlight: A court has inherent power to sanction a litigant for misconduct, and sanctions may include award of attorney fees.
An abuse of process occurs when a person misuses a legal process against another primarily to accomplish a purpose for which the process was not designed.

Interest of G.A.S. (CONFIDENTIAL) 2016 ND 136
Docket No.: 20160212
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: A request to treat a patient with prescribed medication requires two signatures, one from the patient's treating psychiatrist and one from another medical professional not involved in the patient's current diagnosis or treatment.
A medical professional certifying a request to treat with medication is not prohibited from later becoming involved in the patient's treatment.

State v. Putney (cross-reference w/20150237) 2016 ND 135
Docket No.: 20160033
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: A restitution order is reviewed under the abuse of discretion standard.

Zajac v. Traill County Water Resource District 2016 ND 134
Docket No.: 20160028
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: An appeal from a decision by a local governing body must be filed with the district court within thirty days of the decision.

State v. Baker 2016 ND 133
Docket No.: 20150307
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: An indigent defendant facing a felony charge is entitled to have counsel provided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.
Before defendants will be allowed to represent themselves in legal proceedings, they must voluntarily, knowingly, and intelligently relinquish the benefits of counsel.

State v. Clayton 2016 ND 131
Docket No.: 20150357
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: Restitution is limited to those damages directly related to, and resulting from, the defendant's criminal action.
Whether there is a direct relationship between a defendant's criminal action and an injury is a question of fact subject to the clearly erroneous standard of review.
A district court is not required to accept uncontradicted testimony as fact.

State v. Carlson 2016 ND 130
Docket No.: 20150338
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A charging information may be amended at any time before the verdict or finding unless an additional or different offense is charged or a substantial right of the defendant is prejudiced.
A curative instruction is generally sufficient to remove prejudice caused by improper evidence or testimony.
Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial and is harmless error.

Ratliff v. State 2016 ND 129
Docket No.: 20150352
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The district court may take judicial notice of previously filed orders when sentencing a defendant.

State v. Beaulieu 2016 ND 128
Docket No.: 20150345
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A successor judge is not required to certify familiarity with the trial record before deciding a post-trial motion.
New evidence only impeaching witness testimony is generally insufficient to warrant a new trial.
Issues not raised at the district court, even of constitutional magnitude, will generally not be considered unless rising to the level of obvious error.

Robinson v. State 2016 ND 127
Docket No.: 20160026
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Lohmann v. N.D. Dep't of Transportation 2016 ND 126
Docket No.: 20160027
Filing Date: 6/30/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

State v. Phelps 2016 ND 125
Docket No.: 20160004
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Order suppressing evidence obtained from traffic stop is summarily reversed under N.D.R.App.P. 35.1(b).

Interest of M.S. (cross-reference w/20140304 & 20140435) 2016 ND 124
Docket No.: 20160230
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: A district court order for involuntary treatment with medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matthews v. State 2016 ND 123
Docket No.: 20160037
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

McCluskey v. McCluskey 2016 ND 122
Docket No.: 20150268
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Halo Holdings Group, LLLP v. Bird Industries, Inc. 2016 ND 121
Docket No.: 20160077
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Order dismissing intervener complaint summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Johnson v. State 2016 ND 120
Docket No.: 20160031
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Beeter v. State 2016 ND 119
Docket No.: 20160041
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Comes v. State 2016 ND 118
Docket No.: 20160056
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's order dismissing an application for post-conviction relief and orders denying motions for reconsideration are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Hirschkorn 2016 ND 117
Docket No.: 20160003
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Drivers must signal prior to turning out from an alley.
An officer's objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop.

Jangula v. N.D. Dep't of Transportation 2016 ND 116
Docket No.: 20150286
Filing Date: 6/30/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: A certified copy of an analytical report of a blood analysis issued by the director of the state crime laboratory or the director's designee must be accepted as prima facie evidence of the results of a chemical analysis.

Disciplinary Board v. Ward 2016 ND 115
Docket No.: 20150354
Filing Date: 6/10/2016
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An isolated instance of ordinary negligence does not constitute lack of competence or diligence under the rules of professional conduct.

PHI Financial Services, Inc. v. Johnston Law Office, P.C., et al. (20150008) 2016 ND 114
Docket No.: 20150301
Filing Date: 6/10/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The time to appeal an interlocutory order runs from service of notice of the appealable order or judgment, not from service of notice of the interlocutory order.
A judgment creditor may serve no more than 50 post-judgment interrogatories regardless of pre-judgment interrogatories.
A party's disagreement with how a court interpreted the law does not provide license to disobey a court order without consequence, and a party's failure to abide by an order is punishable as a contempt of court.

Disciplinary Board v. Ward 2016 ND 113
Docket No.: 20150337
Filing Date: 6/9/2016
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court defers to the Disciplinary Board's findings on the credibility of a witness.
A lawyer who has withdrawn or has been discharged by the client has a duty to surrender promptly all papers and other property to which the client is entitled.
Injury or potential injury warranting suspension may include a client suffering monetary losses or incurring additional costs when forced to hire another lawyer to handle the matter.

Norman v. State 2016 ND 112
Docket No.: 20150298
Filing Date: 6/8/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (6), and (7).

State v. Musselman (cross-reference w/20150071) 2016 ND 111
Docket No.: 20150250
Filing Date: 6/7/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: An investigative stop must be justified by the officer's reasonable and articulable suspicion that a law has been or is being violated.
An officer can use information received from other persons along with his or her personal observations to form the factual basis needed for a legal investigatory stop.

Disciplinary Board v. Enget 2016 ND 110
Docket No.: 20160139
Filing Date: 6/6/2016
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Holkesvig v. Maring 2016 ND 109
Docket No.: 20150247
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing complaint and order denying motion for relief are summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6), and (7).

Holkesvig v. Edison, et al. 2016 ND 108
Docket No.: 20150266
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing complaint, order denying motion for relief from judgment, and orders denying post-appeal motions are summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6), and (7).

Holkesvig v. VandeWalle, et al. 2016 ND 107
Docket No.: 20150246
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Neither the North Dakota Constitution nor the North Dakota Century Code provides the Supreme Court with the power to divest district courts of subject-matter jurisdiction.
The filing of a petition for rehearing stays the mandate of a Supreme Court judgement until disposition of the petition.
The Supreme Court will not set aside a district court's decision merely because the court applied an incorrect reason, if the result would be the same under the correct law and reasoning.
A petition for rehearing is the proper means to afford the Supreme Court an opportunity to correct factual misstatements in the original opinion.

Jury v. Barnes County Municipal Airport Authority 2016 ND 106
Docket No.: 20150374
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: McEvers, Lisa K. Fair

Highlight: A person acting as her own attorney is equally bound by rules of procedure, even if she lacks understanding of those rules or the correct procedures.
A district court is not required to independently give notice of a hearing when notice has been given by one of the parties.
A party must timely request oral argument on a motion; otherwise, a party waives its right to a hearing.

Rath v. Rath (cross ref w/ 20130025,20130252, 20130327, 20140012, 20140291, cont 2016 ND 105
Docket No.: 20150336
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a divorce judgment do not necessitate a finding of contempt.
Adverse or erroneous rulings alone do not demonstrate bias. For recusal to be warranted, a judge must be partial, or there must be some external influence that creates an appearance of impropriety.

Vogel v. Marathon Oil Corporation 2016 ND 104
Docket No.: 20150154
Filing Date: 5/31/2016
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: A royalty owner does not have a private right of action for damages for violations of the statute limiting flaring of gas from an oil well.
The Environmental Law Enforcement Act provides a cumulative remedy for a royalty owner seeking the payment of royalties for gas flaring in violations, but the royalty owner must exhaust administrative remedies before pursuing a claim in court.
There is no common law in any case in which the law is declared by statute.

Holverson v. Lundberg (cross reference 20140347) 2016 ND 103
Docket No.: 20150313
Filing Date: 5/31/2016
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Allegations of fraud ordinarily involve factual questions that are inappropriate for summary judgment.
A person engaging in transactions involving title to real property is charged with constructive notice of properly recorded instruments affecting title to the property.
Claims for fraud must be commenced within six years of discovery of facts constituting the fraud, and the claim accrues when the party has constructive notice of facts placing a reasonable person on notice of a claim.

Cheetah Properties 1, LLC v. Panther Pressure Testers, Inc. 2016 ND 102
Docket No.: 20150198
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Landlord/Tenant
Author: McEvers, Lisa K. Fair

Highlight: A tenant's holding over, upon the expiration of a lease for real property, is willful if the tenant holds over intentionally and not inadvertently.
After a summary proceeding, if a district court invites the parties to submit post-hearing briefing and neither party objects, the district court should resolve the issues raised, providing reasoned legal analysis.

Thompson v. State 2016 ND 101
Docket No.: 20150157
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To demonstrate prejudice resulting from counsel's deficient performance in the context of a guilty plea, a defendant must establish a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Plains Marketing, LP, et al. v. Mountrail County Board of County Commissioners 2016 ND 100
Docket No.: 20150346
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Tax Realted
Author: Kapsner, Carol

Highlight: A county auditor may not use the omitted property statutes to revalue previously assessed property.

Grzeskowiak v. State 2016 ND 99
Docket No.: 20150325
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An appellant's failure to comply with the rules of appellate procedure for briefs precludes meaningful review of the appellant's alleged errors and warrants affirmance of district court decision.

State v. Van Zomeren 2016 ND 98
Docket No.: 20150267
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Expert testimony is not required to show fair administration of a blood test if the directions for blood collection have been scrupulously followed.

State v. Wilkie (consolidated w/ 20150215) 2016 ND 97
Docket No.: 20150214
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A probationer, when arrested and charged with an additional crime, may be required to comply with conditions of probation as a condition of a bond order related to the subsequent charge.
Bail may be forfeited if a condition of the bond order is breached.

Guardianship/Conservatorship of R.G. 2016 ND 96
Docket No.: 20150184
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Guardian/Conservator
Author: Sandstrom, Dale

Highlight: An order appointing a conservator and guardian is appealable without a certification under N.D.R.Civ.P. 54(a).
For good cause, a court may pass over a person named in a most recent durable power of attorney and appoint another entity or individual as a conservator and guardian.

26th Street Hospitality v. Real Builders, et al. 2016 ND 95
Docket No.: 20150259
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Under the Federal Arbitration Act, the court is required to determine the validity of an arbitration agreement before arbitration may be ordered, but only if a party specifically challenges the arbitration provision.
Arbitrability is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.
A nonsignatory to an arbitration agreement may compel arbitration if a signatory raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more signatories to the contract.

City of Bismarck v. Sokalski 2016 ND 94
Docket No.: 20150151
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A district court's decision on a motion for a new trial is reviewed for an abuse of discretion.
A prosecutor's knowing use of perjured testimony violates the due process defendant clause. To establish this kind of prosecutorial misconduct claim, a defendant must prove: (1) the prosecution either introduced or failed to correct false testimony; (2) the false or perjured testimony was given at trial; (3) the prosecution knew the perjured testimony was false; (4) the testimony was "material"; and (5) the defendant has not waived the claim by failing to raise it at trial if he had reason to know of the falsity of the subject testimony.

State v. Rogahn 2016 ND 93
Docket No.: 20150297
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause depends on the combined effect of all facts and circumstances included in the affidavit of probable cause, not the isolated effect of individual facts or circumstances.
The realities of a case may warrant executing a daytime search warrant within minutes of 10 p.m.
To warrant a Franks hearing, a defendant must make a substantial preliminary showing of false or misleading statements within the affidavit of probable cause.

State v. Timm 2016 ND 92
Docket No.: 20150332
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: DUI conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of N.A. (Confidential) 2016 ND 91
Docket No.: 20160099
Filing Date: 5/26/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: In termination of parental rights cases, a guardian ad litem's failure to interview an available parent is error.
A guardian ad litem's failure to interview an available parent is not a constitutional violation where the parent testifies and is represented by counsel in a parental rights termination proceeding.

State, et al. v. Andres 2016 ND 90
Docket No.: 20150328
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Paternity
Author: Crothers, Daniel John

Highlight: When a district court grants primary residential responsibility, it must calculate child support obligations for each parent assuming the other parent has primary residential responsibility for the child.
A district court's parenting must include the child's legal residence for school purposes and transportation and exchange information or provide an explanation for the omission.

Interest of Thill (cross-reference w/ 20130291 & 20150147) 2016 ND 89
Docket No.: 20160047
Filing Date: 5/26/2016
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).

State v. Trower 2016 ND 88
Docket No.: 20150306
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Possession of stolen property and fleeing or attempting to elude a police officer convictions summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Schmuck v. Schmuck 2016 ND 87
Docket No.: 20150210
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: In determining whether to award spousal support, a party's need for support is not dispositive, and the district court must also consider whether the other party has an ability to pay.
A district court need not retain jurisdiction over spousal support when there is no evidence a party sacrificed a career that would have led to greater future income or when a party's education was interrupted or terminated to accommodate the other's career track.

Kapple v. N.D. Dep't of Transportation 2016 ND 86
Docket No.: 20160029
Filing Date: 5/26/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment reversing an administrative hearing officer's decision revoking driving privileges is summarily reversed under N.D.R.App.P. 35.1(b).

The Next Step v. Redmon 2016 ND 85
Docket No.: 20150333
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Unless an exception applies, an unincorporated associations are incapable of holding title to real property because they are not legal entities.

Valentina Williston, LLC v. Gadeco, LLC 2016 ND 84
Docket No.: 20150180
Filing Date: 4/21/2016
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: When an oil and gas lease does not provide how the parties may modify its terms, the parties may alter the lease by a contract in writing, or by an executed oral agreement, and not otherwise.
For the doctrine of promissory estoppel to apply, a party must establish a promise which the promisor should reasonably expect will cause the promisee to change his position, a substantial change of the promisee's position through action or forbearance, justifiable reliance on the promise, and injustice which can be avoided only by enforcing the promise.
The doctrine of promissory estoppel is inapplicable when there is no promise or agreement between the parties.
The promise must be clear, definite, and unambiguous as to essential terms before the doctrine of promissory estoppel may be invoked to enforce an agreement.
A promise is too indefinite for reasonable enforcement when a party retains the right to determine the extent of his performance.

Rath v. Rath (cross ref w/ 20130025, 20130184, 20130327, 20140012, 20140291, 2016 ND 83
Docket No.: 20160006
Filing Date: 4/18/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a divorce judgment do not necessitate a finding of contempt.
A district court may dismiss a meritless motion to initiate contempt proceedings on its own initiative.

Gray v. Berg 2016 ND 82
Docket No.: 20150305
Filing Date: 4/18/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A party claiming bias must present more than general allegations amounting to nothing more than dissatisfaction with unfavorable court rulings.
A party commits civil trespass by entering land in possession of another, or causing a third party or thing to do so, without consent or privilege.
A district court concluding a claim is frivolous does not make an appeal on the claim frivolous.

Langwald v. Langwald 2016 ND 81
Docket No.: 20150222
Filing Date: 4/15/2016
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In a divorce proceeding, a district court's valuation and distribution of marital property will not be reversed on appeal unless clearly erroneous.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure.

Schmidt v. Levi 2016 ND 80
Docket No.: 20150344
Filing Date: 4/12/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: North Dakota's implied consent and criminal refusal laws are constitutional.
An officer does not need to inform an arrestee that no test will be given upon refusal.

City of Fargo v. Rakowski 2016 ND 79
Docket No.: 20150349
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: A city has discretion to decide how to implement laws that promote public safety.
State law permits cities to levy and collect a fee for re-inspection of rental property.
An ordinance is not made a bill of attainder by the fact the activity it regulates is described with such particularity that few fall within its purview.

Everett v. State 2016 ND 78
Docket No.: 20150269
Filing Date: 4/12/2016
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, unless an exception applies.
Newly discovered evidence that would likely result in an acquittal is an exception to the two-year time limit to apply for post-conviction relief.
The district court has the inherent authority to stem the abuses of the judicial process when a litigant has engaged in a clear pattern of frivolous, repetitive litigation.

Gillmore v. Levi 2016 ND 77
Docket No.: 20150321
Filing Date: 4/12/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Whether a driver has voluntarily consented to field sobriety testing is not an issue for consideration in an administrative proceeding to suspend driving privileges.
The department of transportation's report and notice form is admissible as prima facie evidence of its contents once it is forwarded to the director of the department.
If a party seeks to prove an issue that is beyond the knowledge of the factfinder, that party must present expert testimony.

Larson v. Larson 2016 ND 76
Docket No.: 20150178
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court may modify primary residential responsibility if it finds: (1) a material change in circumstances has occurred; and (2) a modification is necessary to serve the child's best interests.
A district court may consider a parent's past behavior in ruling on a motion to relocate.

State v. Peltier 2016 ND 75
Docket No.: 20150274
Filing Date: 4/12/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Admitting evidence of sexual history for impeachment for a prior inconsistent statement requires an inconsistent statement.

Lumley, et al. v. Kapusta 2016 ND 74
Docket No.: 20150228
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The existence of an oral contract and its terms are questions of fact that will not be overturned on appeal unless they are clearly erroneous.
The purchase price is an essential term that must be identified and agreed upon to form a valid contract for the sale of real property.

Capital Electric Cooperative, Inc. v. N.D. Public Service Commission, et al. 2016 ND 73
Docket No.: 20150227
Filing Date: 3/28/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: Appellate review of Commission findings of fact is limited to whether a reasoning mind reasonably could have determined that the factual conclusions reached were proven by the weight of the evidence from the entire record.
Customer preference is a proper consideration for the Commission in deciding whether a certificate of public convenience and necessity should be issued.
Which electric supplier's facilities are actually duplicative or wasteful is a question of fact for the Commission.

State v. O'Connor 2016 ND 72
Docket No.: 20150299
Filing Date: 3/28/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: If a law enforcement officer fails to provide a defendant a complete chemical test implied consent advisory after the defendant's arrest and before his submission to the chemical test, the result is inadmissible in any criminal or administrative proceeding under the implied consent laws.

Rath v. Rath 2016 ND 71
Docket No.: 20150133
Filing Date: 3/28/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Due process dictates a decision to deviate from standard trial practices requires more than conclusory justifications.
A respondent's claim some or all of the conduct allegedly constituting disorderly conduct was constitutionally protected requires the court to determine the validity of the constitutional argument before granting a disorderly conduct restraining order.

Welch Construction & Excavating, LLC v. Duong 2016 ND 70
Docket No.: 20150197
Filing Date: 3/18/2016
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A party claiming breach of contract must prove the existence of a contract, a breach of the contract, and damages flowing from the breach.
Whether a party has breached a contract is a finding of fact subject to the clearly erroneous standard of review.

Schurmann v. Schurmann 2016 ND 69
Docket No.: 20150206
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To modify parenting time, the moving party must demonstrate a material change in circumstances has occurred since entry of the previous parenting time order and the modification is in the best interests of the child.
A restriction on parenting time must be supported by a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.
If an obligor fails to furnish reliable information concerning the obligor's gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed.

State v. James 2016 ND 68
Docket No.: 20150111
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: To justify stopping a moving vehicle for investigation, a law enforcement officer must have a reasonable and articulable suspicion a motorist has violated or is violating the law.
Whether an officer had a reasonable and articulable suspicion is a fact-specific inquiry that is evaluated under an objective standard considering the totality of the circumstances.

Matter of K.J.C. (Confidential) 2016 ND 67
Docket No.: 20150373
Filing Date: 3/15/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: In termination of parental rights proceedings, the custodial parent's refusal to cooperate with the noncustodial parent's attempts to maintain a relationship with the child is not insignificant in deciding whether the noncustodial parent abandoned the child, but the noncustodial parent must take affirmative steps to perform parental duties and foster a relationship with the child.
Parents have a duty to support their children.

4APM, LLP v. TCI Insurance Agency, Inc. 2016 ND 66
Docket No.: 20150243
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: Generally, an insurance agent's duty of care to an insured requires the agent to act in good faith and follow instructions.
An insurance agent's duty of care may be enhanced if there is a special relationship between the agent and the insured.

State v. Costa 2016 ND 65
Docket No.: 20150248
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Counsel may not comment on facts not in evidence during closing argument, and a prosecutor may not vouch for evidence during closing argument.

Cudmore v. N.D. Dep't of Transportation 2016 ND 64
Docket No.: 20150282
Filing Date: 3/15/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Before deciding whether to submit to chemical testing, an individual has a qualified statutory right to consult with an attorney.
If a DUI arrestee who has been asked to take a chemical test makes any mention of a need for an attorney, the officer must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity for the arrestee to do so.
If an arrestee makes only a passing reference to an attorney rather than mentioning a need for an attorney, an arrestee is not denied his limited statutory right to counsel prior to chemical testing.

State v. Keller 2016 ND 63
Docket No.: 20150132
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion by refusing to give jury instructions that inadequately and inaccurately reflect the law.

Curtiss v. State (cross-ref. w/20150007) 2016 ND 62
Docket No.: 20150284
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The applicant in a post-conviction relief case has the burden of establishing grounds for relief.
When deciding an application for post-conviction relief, the district court is not required to review the criminal trial transcript when the transcript has not been filed with the court.
Harmless error is error that does not affect the parties' substantial rights.

Degnan v. Degnan 2016 ND 61
Docket No.: 20150244
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion in granting spousal support and attorney's fee awards in amounts less than the requesting spouse's alleged need.
A district court does not abuse its discretion by denying a motion for a new trial when the facts and circumstances of the case do not display an unreasonable, arbitrary or unconscionable attitude.

Werven v. Werven 2016 ND 60
Docket No.: 20150201
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Modification of spousal support is not warranted when the change in a party's financial circumstances is self-induced.
An inability to comply with a court order is a defense to contempt, but the alleged contemnor has the burden to establish the defense and show an inability to comply.

State v. Putney 2016 ND 59
Docket No.: 20150237
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
A district court must deny a motion for judgment of acquittal if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.
Courts are free to judicially notice municipal ordinances, and whether to take judicial notice of a municipal ordinance is within the district court's discretion.