Opinions

Brooks v. Brooks 2015 ND 158
Docket No.: 20150044
Filing Date: 6/18/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A denial of an evidentiary hearing on a change of custody is reviewed under the de novo standard of review.
A reviewing court needs to know the reasons for the trial court's decision before it can intelligently rule on the issues.

Disciplinary Board v. Lee 2015 ND 157
Docket No.: 20150152
Filing Date: 6/16/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Peterka v. State 2015 ND 156
Docket No.: 20140425
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Multiple prosecutions and punishments are permitted on the basis of the number of pornographic images possessed rather than on the number of computers possessed containing those images.
A district court will be reversed if it does not act because it erroneously concluded the time for consideration had run.

Mattern v. Frank J. Mattern Estate 2015 ND 155
Docket No.: 20140296
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: If property claimed as a homestead exceeds the value of the homestead exemption, the homestead must be set off in such form as to exclude the excess, unless the homestead cannot be divided without material harm.
If the homestead cannot be divided without material injury, the family home must be preserved intact as against heirs even though the homestead exceeds the homestead exemption amount.

Wacht v. State 2015 ND 154
Docket No.: 20140418
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Claims raised on direct appeal cannot be raised again in a postconviction application.
Summary dismissal of an application for postconviction relief is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Baker v. Sabinash, et al. 2015 ND 153
Docket No.: 20140230
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Where the State is given a mortgage lien upon real property, and thereafter taxes are levied against said real estate and become due after the mortgage lien is created, the tax lien and the mortgage lien are not of equal rank.
The question of priority of liens against the same real estate held by the State is determined by the time of the creation of the liens, unless otherwise provided by statute, and taxes on the real estate becoming due after the mortgage lien of the State is created are subordinate to the lien of the mortgage.

Estate of Grengs 2015 ND 152
Docket No.: 20140220
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: Orders in a supervised probate proceeding are not final and appealable before approval of distribution of the estate and discharge of the personal representative.
A provision of a will is ambiguous if it is susceptible to more than one reasonable interpretation.
Whether an ambiguity exists in a will is a question of law, but resolution of the ambiguity is a finding of fact.

Ihli v. Lazzaretto 2015 ND 151
Docket No.: 20140415
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: When evidence relevant to a lawsuit is destroyed, the district court may sanction, and a court's decision to sanction will be reversed on appeal only if there was an abuse of discretion.
A district court has broad discretion in deciding whether to allow a party to amend the pleadings after the time for amendments has passed.

The Pifer Group, Inc. v. Liebelt, et al. 2015 ND 150
Docket No.: 20140442
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A corporation cannot be a licensed auctioneer.
A land auction sale agreement is not a contract for the sale of real property.
A court must give effect to each provision of a contract if possible, and if there is a conflict between written and printed parts of a contract, the written part controls.

Everett v. State 2015 ND 149
Docket No.: 20140288
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: An applicant for post-conviction relief has the burden of establishing grounds for relief.
To prevail on a post-conviction relief claim of ineffective assistance of counsel, an applicant must show counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's claimed unprofessional errors, the result of the proceeding would have been different.
A court may allow an applicant for post-conviction relief to withdraw a guilty plea to correct a manifest injustice.

Sweeney v. Kirby (cross-reference w/20120339 & 20130152) 2015 ND 148
Docket No.: 20140309
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A motion to modify primary residential responsibility made within two years of disposition of an earlier motion to modify primary residential responsibility is reviewed under stricter requirements.
A correct result will not be set aside merely because the district court applied an incorrect, more relaxed standard if the result is the same under the correct law and reasoning.

Estate of Bartelson (cross-ref. w/20110114 & 20130022) 2015 ND 147
Docket No.: 20140244
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: A decision on a petition to remove a personal representative lies within the discretion of the district court.
When a confidential relationship or fiduciary duty exists, the person in whom the confidence is reposed is deemed to be a trustee. All transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.
A presumption substitutes for evidence of the presumed fact until the trier of fact finds from credible evidence that the presumed fact does not exist.

State v. Leavitt 2015 ND 146
Docket No.: 20140404
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Whether probable cause exists to issue a search warrant is a question of law.
Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the evidence sought probably will be found in the place to be searched.
The admission and use of photographs in criminal trials is largely within the trial court's discretion.

State v. Hornor 2015 ND 145
Docket No.: 20140367
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: A criminal judgment for manufacture of methamphetamine, possession of a controlled substance, possession of amphetamine, and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Olson 2015 ND 144
Docket No.: 20150034
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

State v. Smith 2015 ND 143
Docket No.: 20150019
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for class C felony driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of B.E. (CONFIDENTIAL) 2015 ND 142
Docket No.: 20150146
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order for less restrictive treatment of a chemically dependent person is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Reciprocal Discipline of Delorme 2015 ND 141
Docket No.: 20150016
Filing Date: 6/10/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Peterbilt of Fargo, Inc. v. Red River Trucking, LLC, et al. 2015 ND 140
Docket No.: 20140243
Filing Date: 6/1/2015
Case Type: Appeal - Civil - Debtor/Creditor
Author: Sandstrom, Dale

Highlight: The full time for appeal runs from service of notice of entry of an order disposing of a timely motion to amend a judgment.
A failure to obtain a stay pending appeal of a court-authorized conveyance of property to third persons moots issues raised on appeal about the conveyance.
A person injured by wrongful acts of another has a duty to mitigate damages if the person can do so with reasonable exertion or at a trifling expense, and can recover only damages that could not have been avoided with reasonable effort.

Golberg v. N.D. Dep't of Transportation 2015 ND 139
Docket No.: 20140299
Filing Date: 6/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: An affidavit completed by the person who performed the blood analysis may establish the approved method was used.

Chambering of Four New District Judgeships 2015 ND 138
Docket No.: 20150141
Filing Date: 6/2/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Four new judgeships chambered.

Roberts v. N.D. Dep't of Transportation 2015 ND 137
Docket No.: 20140433
Filing Date: 5/27/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Taking the onsite screening test does not preclude revocation of a driver's license for refusal of a chemical blood test.

Ward Farms, et al. v. Enerbase Cooperative Resource, et al. 2015 ND 136
Docket No.: 20140104
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Fraud must be proven by clear and convincing evidence.
Statements of opinion, sales talk, or puffery do not constitute fraud.

Johnson, et al. v. Mid Dakota Clinic, P.C. 2015 ND 135
Docket No.: 20140274
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A prima facie case of professional negligence requires expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.
A prima facie case of negligence requires a duty to the plaintiff, the defendant's faillure to discharge that duty, and an injury to the plaintiff proximately caused by the defendant's negligence.

State v. Schmidt 2015 ND 134
Docket No.: 20140272
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.

State v. Smith 2015 ND 133
Docket No.: 20140219
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Obvious error will be corrected on appeal only when there is a clear deviation from an applicable legal rule under current law.

State v. Bauer 2015 ND 132
Docket No.: 20140453
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A defendant's refusal to expressly consent to chemical testing under N.D.C.C. 39-08-01 is not a violation of the Fifth Amendment protection against self-incrimination, nor contrary the Miranda.

Chegwidden, et al. v. Evenson, et al. 2015 ND 131
Docket No.: 20140340
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: Kapsner, Carol

Highlight: On termination of a lease, a lessor may apply the security deposit, plus accrued interest, towards any unpaid rent.
In a negligence action, the determination of whether a duty exists is generally a preliminary question of fact for the court to decide.
Liability for intentional infliction of emotional distress does not extend to mere indignities, annoyances, petty oppressions, or other trivialities.

Marhula v. Grand Forks Curling Club 2015 ND 130
Docket No.: 20140298
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The threshold membership requirements do not apply to a member's individual action against a nonprofit corporation claiming he was improperly terminated from membership.

Williams v. Williams 2015 ND 129
Docket No.: 20140313
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Rehabilitative spousal support is to equalize the burdens of divorce.

Rounkles v. Levi 2015 ND 128
Docket No.: 20140192
Filing Date: 5/27/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Issues raised in an amended specifications of error filed outside the seven-day period for filing a specifications of error will not be considered.

Broten, et al. v. Broten 2015 ND 127
Docket No.: 20140177
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Judicial estoppel is a doctrine designed to protect the integrity of the judicial process by prohibiting a party from assuming inconsistent or contradictory positions during the course of litigation..
Election of remedies is applied when there are two or more remedies, inconsistency between the remedies, and a choice of one remedy
A trial court may postpone the election of remedies until final judgment is entered.

State v. Lowe 2015 ND 126
Docket No.: 20140401
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Denial of a N.D.R.Crim.P. 35(b) motion for reduction of sentence is not appealable.

Estate of Hogen 2015 ND 125
Docket No.: 20140119
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A devisee's right to a decedent's real property is subject to administration by a personal representative, which continues until termination of the personal representative's appointment.
A devisee's cash rent and crop-share obligations to a decedent are a noncontingent indebtedness for purposes of a retainer against the devisee's interest in real property in the estate and may be pursued in a probate proceeding.
A personal representative may be entitled to a retainer against real property even if the personal representative does not take actual possession of the real property during administration of an estate.
A district court has discretion to award personal representative fees and attorney fees from an estate.

State v. Kopperud 2015 ND 124
Docket No.: 20150024
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: A district court may not assess jury expenses to a defendant in a criminal case when the defendant fails to appear for trial.

Funke, et al. v. Aggregate Construction, Inc., et al. (cross-ref. 20120405) 2015 ND 123
Docket No.: 20140052
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: VandeWalle, Gerald

Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable.
A statute providing for supplemental relief applies when the additional relief is requested after a declaratory judgment has been granted to supplement or enforce the declaratory judgment.
Basic rules of contract construction apply to leases in deciding the scope and effect of provisions within a lease.
Ratification requires full knowledge of all the material facts on the part of the corporate principal.

Estate of Nelson 2015 ND 122
Docket No.: 20140377
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: Appellate review is not possible when the rationale of the district court's decision is not clear.

Carlson, et al. v. GMR Transportation, Inc. 2015 ND 121
Docket No.: 20140319
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: In a tort action to recover damages for a work-related injury, the employer has the burden of establishing by a preponderance of the evidence the defense that the employer is immune from suit under the workers' compensation act.
Issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts.

Riak v. State 2015 ND 120
Docket No.: 20140128
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Motions for reconsideration of a judgment or order may be treated as motions to alter or amend a judgment or as motions for relief from a judgment or order.
Denial of a motion for reconsideration will not be reversed on appeal absent a manifest abuse of discretion.

State v. Matthews 2015 ND 119
Docket No.: 20140390
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

White, et al. v. T.P. Motel, L.L.C., et al. 2015 ND 118
Docket No.: 20140203
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: To intervene as a matter of right, a proposed intervenor must show (1) an interest relating to the subject matter of the litigation; (2) the interest may be impaired as a result of the litigation; and (3) the interest is not adequately protected by an existing party to the litigation.

Interest of Thorson 2015 ND 117
Docket No.: 20140443
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Highlight: Order civilly committing an person as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Maxon v. State (consolidated w/20140473) 2015 ND 116
Docket No.: 20140314
Filing Date: 5/27/2015
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).

State v. 1986 Collins Fifth Wheel Camper 2015 ND 115
Docket No.: 20140406
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting forfeiture of property is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Disciplinary Board v. Foster 2015 ND 114
Docket No.: 20150143
Filing Date: 5/8/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Disciplinary Board v. Fahrenholtz (consol w/ 20150081-20150082) 2015 ND 113
Docket No.: 20150080
Filing Date: 5/7/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Adams v. Adams 2015 ND 112
Docket No.: 20140259
Filing Date: 5/4/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's valuation of marital property within the range of the evidence presented is not clearly erroneous.
When a distribution of marital property includes periodic cash payments from one spouse to another, a district court has broad authority to provide for the payment of interest to achieve an equitable distribution of the property.

Disciplinary Board v. Carpenter 2015 ND 111
Docket No.: 20140254
Filing Date: 5/1/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: In disciplinary proceedings, the Supreme Court defers to a hearing panel's findings on the credibility of a witness, because the hearing panel has the opportunity to observe the witness's demeanor and hear the witness testify.
A determination whether information disclosed by a "potential client" is "significantly harmful" is fact-sensitive.

Estate of Johnson 2015 ND 110
Docket No.: 20140173
Filing Date: 5/1/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A personal representative has a right to take possession of the decedent's property for purposes of administration, and a personal representative's decision to take possession of estate property is conclusive against the heirs and devisees.
A personal representative, acting reasonably for the benefit of the interested persons, may lease or sell an estate's real property.

Carnes v. Snider 2015 ND 109
Docket No.: 20140345
Filing Date: 5/1/2015
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A primary residential responsibility determination is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Blackcloud 2015 ND 108
Docket No.: 20140229
Filing Date: 4/29/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Baxter 2015 ND 107
Docket No.: 20140325
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: The implied consent laws criminalizing refusal to submit to onsite screening or chemical tests do not violate the Fourth Amendment and its state counterpart, the unconstitutional conditions doctrine, or the due process clause.

State v. Gonzalez (cross-ref. w/20110051) 2015 ND 106
Docket No.: 20140213
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A valid probationary search is an exception to the warrant requirement under the Fourth Amendment.
A probationary search authorized by a condition of probation and supported by reasonable suspicion is a valid probationary search.
The district court is not required to explicitly list every item that may be searched in a search condition of a probation order.
A warrant is not required to search a probationer's cell phone if the search is a valid probationary search.

State v. Holkesvig (consolidated w/20140210) 2015 ND 105
Docket No.: 20140209
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: 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.
Statute provides the district court with the specific authority to dismiss on its own frivolous post-conviction relief applications.

Filkowski v. N.D. Dep't of Transportation 2015 ND 104
Docket No.: 20140290
Filing Date: 4/28/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Law enforcement must send the director of the Department of Transportation a certified copy of the analytical report of a blood test for the department to have authority to suspend a person's driving privileges.
Whether a blood test was fairly administered is a preliminary question of admissibility left to the administrative hearing officer's discretion.
Expert testimony is not required to admit an analytical report using the word "ethanol" instead of "alcohol."

State v. Williams 2015 ND 103
Docket No.: 20140370
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A search does not occur unless the government violates an individual's reasonable expectation of privacy.
An individual's expectation of privacy is diminished in the common areas of a multi-family dwelling.
A common hallway in a condominium building is not curtilage.

Howard v. State 2015 ND 102
Docket No.: 20140233
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: To resist summary disposition of a post-conviction relief claim, the non-moving party must present competent, admissible evidence capable of raising genuine issues of material fact.

State v. Jasmann 2015 ND 101
Docket No.: 20140322
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: It is not prosecutorial misconduct for the State to read an interview transcript into evidence at trial at the defendant's request when the defendant had reviewed the transcript and noticed it included a questionable statement.
A court's failure to give a jury instruction not requested does not qualify as a clear deviation from an applicable legal rule.

State v. Taylor 2015 ND 100
Docket No.: 20140318
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: Whether a person has a reasonable expectation of privacy in a bedroom, separate and above that for a residence as a whole, must be decided on a case-by-case basis.

Stai-Johnson v. Johnson 2015 ND 99
Docket No.: 20140339
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court may consider the effect of the separation of siblings in ruling on a motion to relocate.

Feist v. Feist 2015 ND 98
Docket No.: 20140323
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A district court's distribution of marital property is reviewed under the clearly erroneous standard of review.
Separate property, even if it is inherited, must initially be included in the marital estate, but the property's origin may be considered when equitably dividing the estate.

Viscito, et al. v. Christianson, et al. 2015 ND 97
Docket No.: 20140252
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A judgment dismissing a case without prejudice may be appealable if attorney's fees and costs are awarded as a sanction.
Objecting to a sanction in district court preserves the issue for appeal.
Attorney's fees and costs as a sanction under N.D.R.Civ.P. 16(f) are limited to the reasonable expenses incurred as a result of the failure to obey a pretrial order.

The Evangelical Good Samaritan Society v. N.D. Dep't of Human Services 2015 ND 96
Docket No.: 20140297
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: Public notice of future effective dates of federal regulations gives persons affected by the change in the law time to prepare to comply with the new rule.

Mowan v. Berg 2015 ND 95
Docket No.: 20140201
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: If competent evidence of domestic violence does not trigger the statutory presumption, the violence must be considered as one factor in deciding primary residential responsibility.

Hall v. Malloy, et al. 2015 ND 94
Docket No.: 20140196
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: An instrument may include a judgment for purposes of the after-acquired title doctrine.
An instrument that conveys only the grantor's interest or title, if any, in property, rather than a fee simple interest in the property itself, does not convey after-acquired title.

Moe v. State 2015 ND 93
Docket No.: 20140185
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The purpose of an appeal is to review the actions of the district court, not to give the appellant an opportunity to develop new strategies or theories.
Issues and arguments not raised before the district court will not be addressed on appeal.

Matter of Loy 2015 ND 92
Docket No.: 20140111
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: A licensure under probation with the State Board of Psychologist Examiners meets the statutory and evidentiary standard required to testify, and a witness's probationary status is an issue of weight and credibility of the testimony and not an issue of admissibility.
In a proceeding civilly committing a person as a sexually dangerous individual, an indigent respondent does not retain a right to choose an independent evaluator paid by the State.

Interest of T.J.S. (CONFIDENTIAL)(consolidated w/ 20140363 & 20140364) 2015 ND 91
Docket No.: 20140362
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Juvenile Law
Author: Per Curiam

Highlight: Order placing child in custody of Department of Corrections is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Complete Plumbing Services, Inc. v. Brenna 2015 ND 90
Docket No.: 20140289
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Money judgment requiring payment for unpaid costs of work and materials is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 4, Northeast Central Judicial District 2015 ND 89
Docket No.: 20150018
Filing Date: 4/27/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Grand Forks.

Tresenriter v. State 2015 ND 88
Docket No.: 20140359
Filing Date: 4/22/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Parizek v. State 2015 ND 87
Docket No.: 20140356
Filing Date: 4/22/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Mesch v. Levi 2015 ND 86
Docket No.: 20140419
Filing Date: 4/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming a Department of Transportation hearing officer's decision to suspend driving privileges for 180 days is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of M.T. (CONFIDENTIAL) 2015 ND 85
Docket No.: 20150089
Filing Date: 4/22/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

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

Interest of D.V.A. (CONFIDENTIAL) (cross-ref 20030304, 20080319, 20100091) 2015 ND 84
Docket No.: 20140384
Filing Date: 4/15/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Orders denying request for discharge from civil commitment as a sexually dangerous individual are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Curtiss v. State 2015 ND 83
Docket No.: 20140365
Filing Date: 4/15/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of Hoff (cross-reference w/ 20120248, 20130216 & 20130323) 2015 ND 82
Docket No.: 20140424
Filing Date: 4/15/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court's findings of fact and order denying discharge and order for continued commitment are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Keller v. N.D. Dep't of Transportation 2015 ND 81
Docket No.: 20140341
Filing Date: 4/9/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the approved method for conducting the test has been scrupulously followed.
When there is a deviation from the approved method that affects the test's scientific accuracy or reliability and there is no expert witness testimony on the effect, the test has not been fairly administered.

State v. Trimble 2015 ND 80
Docket No.: 20140349
Filing Date: 4/8/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Revocation of the defendant's probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Pegg v. Kohn, et al. 2015 ND 79
Docket No.: 20140202
Filing Date: 4/2/2015
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A partnership agreement may be oral.
A party who has substantially performed the duties imposed upon him under a contract may recover for a breach of the contract because substantial performance is sufficient consideration to make the contract binding between the parties.

Ruddell v. State 2015 ND 78
Docket No.: 20140413
Filing Date: 4/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Service Oil, Inc., et al. v. Gjestvang, et al. 2015 ND 77
Docket No.: 20130366
Filing Date: 3/30/2015
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: No damages can be recovered for a breach of contract if not clearly ascertainable in both nature and origin.
The gist of conversion is not in acquiring the complainant's property, but in wrongfully depriving him of it, whether temporarily or permanently, and it is of little relevance that the converter received no benefit from such deprivation.
A fraud or deceit which caused no injury cannot be the basis for an action.

Jordet v. Jordet, et al. 2015 ND 76
Docket No.: 20140221
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Conversion is the wrongful exercise of dominion or control over property inconsistent with or in defiance of the rights of the owner.
Abuse of process occurs when a person uses a legal process against another primarily to accomplish a purpose for which it is not designed.

City of Napoleon v. Kuhn 2015 ND 75
Docket No.: 20140134
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: In reviewing the sufficiency of the evidence to convict, an appellate court looks only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see whether there is substantial evidence to warrant a conviction.
Appellate review of a criminal sentence is generally confined to whether the district court acted within the sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.

State, et al. v. Lavallie 2015 ND 74
Docket No.: 20140328
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A child support order issued by another state, not challenged within 20 days of being registered for enforcement in this state, is confirmed by operation of law.

Jordet v. Jordet (cross-ref w/20120185) 2015 ND 73
Docket No.: 20140232
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The appealability of an order will be considered even if neither party raises the issue on appeal.
An interlocutory order is not a final, appealable order, and an appeal from an interlocutory order will generally be dismissed.

State v. Dahl 2015 ND 72
Docket No.: 20140216
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Probable cause to support the issuance of a search warrant for a defendant's luggage is reviewed under the "totality of the circumstances."
Probable cause to search exists if the facts and circumstances relied on by a magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.

Interest of Johnson (cross-reference w/20120364) 2015 ND 71
Docket No.: 20140366
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: For civil commitment as a sexually dangerous individual, substantive due process requires proof that the individual has serious difficulty controlling his behavior.
The district court must specifically state the facts on which it relied to determine an individual has serious difficulty controlling his behavior.

Hankey v. Hankey 2015 ND 70
Docket No.: 20140350
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Whether a moving party has established a prima facie case for a modification of primary residential responsibility is a question of law reviewed under the de novo standard of review.
When determining whether a prima facie case has been established justifying a modification of residential responsibility, the district court must accept the moving party's allegations as truth, and may not weigh conflicting allegations.

Lavallie v. Lavallie 2015 ND 69
Docket No.: 20140306
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A state district court and a tribal court may have concurrent subject-matter jurisdiction to determine an obligor's child support obligation.

State v. Owens (consolidated w/20140143) 2015 ND 68
Docket No.: 20140142
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Analysis of a speedy trial claim requires balancing the length of a delay, the reason for the delay, a proper assertion of the right to a speedy trial, and actual prejudice to the accused.
In a criminal prosecution, the State must disclose information or documents that are in the State's possession, custody, or control, or that the State could have obtained through reasonable diligence if the prosecution intends to use the items in its case-in-chief, or the item is material to preparing a defense.
A prosecutor may question a defendant's credibility during final argument to a jury by arguing the defendant's presence during trial allowed the defendant to listen to the other witnesses' testimony before testifying.

Holkesvig v. Rost, et al. 2015 ND 67
Docket No.: 20140399
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A continued and clear pattern of bringing frivolous and repetitious litigation may result in a requirement of prior approval for commencing further actions.

State v. Steen 2015 ND 66
Docket No.: 20140160
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Even if there was a pretrial motion, failure to object at trial waives the claim of error unless it amounts to an obvious error affecting the substantial rights of the defendant.
A trial court does not err in admitting photographic evidence of a murder victim if the photos are evidence showing concealment and decay of the body under a charge of hindering law enforcement.

Eggers v. Eggers 2015 ND 65
Docket No.: 20140165
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A parent with primary residential responsibility does not need court approval to change the primary residence of the child to another state when the other parent has moved outside the state and lives more than fifty miles from the residence of the parent with primary residential responsibility. The parent need not change legal residence for waiver of a court order, only move outside the state.

State v. Barnes 2015 ND 64
Docket No.: 20140159
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A voluntary guilty plea waives all non-jurisdictional defects alleged to have occurred prior to the guilty plea, including alleged violations of constitutional rights.

Rencountre v. State (cross-ref. w/20110157) 2015 ND 62
Docket No.: 20140197
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Proof of ineffective assistance of counsel based on an attorney's failure to file a pretrial suppression motion requires the defendant prove he would have prevailed on his motion to suppress and that there is a reasonable probability a successful motion would have affected the outcome of the trial.
Proof of ineffective assistance of counsel based on an attorney's failure to request a second mental health examination requires the defendant show that a second evaluation would have benefited him or that the result of the proceedings would have been different if he had received another evaluation.
A party cannot complain about legal errors which are to their benefit, rather than to their prejudice.

State v. Berg (consolidated w/ 20140176) 2015 ND 61
Docket No.: 20140175
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A party who voluntarily pleads guilty, knowingly waives a previously raised factual dispute regarding the statute of limitations.

Irwin, et al. v. City of Minot 2015 ND 60
Docket No.: 20140217
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A police power taking of property by a public entity in a sudden emergency requires the entity show there was an actual necessity to take the property to prevent the imminent peril.

State v. Booth (consolidated w/20140257 & 20140258) 2015 ND 59
Docket No.: 20140256
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: By voluntarily pleading guilty, a defendant waives any procedural defects in applying a habitual offender sentence enhancement.

Flynn, et al. v. Hurley Enterprises, Inc., et al. 2015 ND 58
Docket No.: 20130426
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: In a nuisance action, in balancing the utility of the defendant's conduct against the harm to the plaintiff, the property owner's conduct at issue in the balancing test is the invasive conduct that is alleged to constitute the nuisance, not conduct of the defendant in the community at large unrelated to the challenged conduct.
In a nuisance action, the statute granting immunity to a defendant must be strictly and narrowly construed.