Opinions

Interest of Thill (cross-reference w/ 20130291) 2015 ND 295
Docket No.: 20150147
Filing Date: 12/22/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court must make specific findings of fact supporting its determination that a defendant remains a sexually dangerous individual. Generally referencing medical reports without explaining which facts it considered in its determination is not sufficient.

Butterfield v. Levi 2015 ND 294
Docket No.: 20150249
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: A district court judgment affirming a Department of Transportation decision revoking driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of A.C. (CONFIDENTIAL)(Consolidated w/20150318) 2015 ND 293
Docket No.: 20150317
Filing Date: 12/22/2015
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).

Musick v. Levi 2015 ND 292
Docket No.: 20150252
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

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

Jodoin v. Levi 2015 ND 291
Docket No.: 20150185
Filing Date: 12/22/2015
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).

Johnson v. State 2015 ND 290
Docket No.: 20150209
Filing Date: 12/22/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Disciplinary Board v. Ward 2015 ND 289
Docket No.: 20150309
Filing Date: 12/11/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Disciplinary Board v. Varriano 2015 ND 288
Docket No.: 20150342
Filing Date: 12/11/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstatement ordered.

Fleck, et al. v. Missouri River Royalty Corp., et al. 2015 ND 287
Docket No.: 20150106
Filing Date: 12/7/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: The term "production" as used in a "so long thereafter" clause and any related savings clause extending an oil and gas lease generally will be interpreted to mean "production in paying quantities."
To determine whether a well is producing in paying quantities, a court must consider whether the well has yielded a profit over the operating costs over a reasonable period of time and whether a reasonably prudent operator would continue to operate a well in the manner in which the well was operated under all of the relevant circumstances.

Disciplinary Board v. Huisman 2015 ND 286
Docket No.: 20150281
Filing Date: 12/7/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Blume Construction, Inc. v. State 2015 ND 285
Docket No.: 20150103
Filing Date: 12/7/2015
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: McEvers, Lisa K. Fair

Highlight: A corporation may not be represented by a non-attorney agent in a legal proceeding, and any legal documents signed and filed by a corporation's non-attorney agent are void.
A request for an appeal from an administrative agency's initial determination, made on behalf of a corporate entity, is not conduct that can be performed by a non-lawyer.
Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by signing pleadings and appearing in an action filed in an administrative agency.
A party asserting an equitable estoppel claim has the burden of proving every element of the claim.

Knorr v. Norberg (cross ref. 20130084) 2015 ND 284
Docket No.: 20150107
Filing Date: 12/7/2015
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A long-term lease with an option to purchase real property ordinarily requires a signed written agreement.
Promissory estoppel provides for the enforceability of an otherwise void or legally unenforceable agreement when one of the parties has acted to his or her detriment because of a representation or promise made by the other party as to future events.
Before promissory estoppel may be invoked to enforce an agreement or to award damages, the terms of the promise must be clear, definite, and unambiguous.

State v. Hennings 2015 ND 283
Docket No.: 20150096
Filing Date: 12/2/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The law is violated when a defendant, under the influence of alcohol, is able to direct the movement of a vehicle in an area to which the public has a right of access for vehicular use.

Disciplinary Board v. Johnston 2015 ND 282
Docket No.: 20150048
Filing Date: 12/1/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A law firm employing a paralegal who formerly was employed by another firm may continue representing clients whose interests conflict with the interests of clients of the former employer on whose matters the paralegal worked, as long as the employing firm screens the nonlawyer from information about or participating in matters involving those clients.

State v. Walker 2015 ND 281
Docket No.: 20140441
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A receipt of a general consent to search a vehicle reasonably extends to any container in that vehicle which may contain the object of that search.

State v. Asbach 2015 ND 280
Docket No.: 20140471
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A defendant is not illegally seized while an officer is conducting duties related to the purpose of a traffic stop.
To prevail under the inevitable discovery exception to the exclusionary rule, the State must prove that the police have not acted in bad faith to accelerate the discovery of the challenged evidence and that the evidence would have otherwise been discovered by lawful means in the course of the investigation.

Chisholm v. State 2015 ND 279
Docket No.: 20150099
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: To prevail on a post-conviction claim of ineffective assistance, the petitioner must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.

State v. Acker 2015 ND 278
Docket No.: 20150163
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: Before admitting a defendant's prior conviction, the district court must weigh the conviction's probative value against its prejudicial effect in accordance with N.D.R.Ev. 609(a)(1)(B).
Non-constitutional trial error warrants reversal when it prejudices the defendant.

Sargent County Water Resource District v. Mathews, et al. 2015 ND 277
Docket No.: 20140451
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The primary purpose in interpreting a deed is to ascertain and effectuate the grantor's intent. When a deed is unambiguous, the parties' intent is determined from the instrument itself.
A deed that conveys a "right" or "right of way" generally indicates an intent to convey an easement. When the phrase "right of way" is included in the granting clause limiting the estate conveyed or specifying the purpose of the grant, the use of the language supports finding an easement was conveyed.

Bye v. Robinette 2015 ND 276
Docket No.: 20150109
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Findings of fact must demonstrate that the district court followed the child support guidelines when imputing income.
A child support calculation must take into account all of the children in a case or the fact that an obligor owes an additional duty of support to children living with the obligor.

Yahna v. Altru Health System 2015 ND 275
Docket No.: 20150083
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: The presumption of at-will employment may be modified by an employment handbook creating contractual rights to employment, or by the statutory proscription against unlawful age discrimination.
A prima facie case of discrimination in the employment context requires a plaintiff to prove membership in a protected class, satisfactory performance of the duties of a job, an adverse employment decision, and others not in the protected class were treated more favorably.
An employment handbook must be read as a whole to determine whether it overcomes the presumption of employment at will.

Rooks v. Robb 2015 ND 274
Docket No.: 20150047
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: Affidavits must be made on personal knowledge and contain more than conclusory statements to raise a genuine issue of material fact.
For summary judgment, when a party has the burden of disputing a factual allegation for which no evidence is obtainable--e.g., the burden of proving something did not happen--the party may show there is a genuine dispute of material fact merely by pointing to the absence of probative evidence.

Williamson v. N.D. Dep't of Transportation 2015 ND 273
Docket No.: 20150179
Filing Date: 12/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Foundation for the admission of blood test results may be laid by a designee of the director of the state crime lab who has been authorized to sign and certify records.
Evidence supporting the admission of blood test results includes the director of the state crime laboratory's authorization of a designee to sign and certify records until revoked or terminated, a designee's authorization to appoint inspectors for breath alcohol testing programs, a designee's execution of certification pages for approved lists of chemical test operators and devices, and testimony that the administration of the chemical test was fair.

Huether, et al. v. Nodak Mutual Ins. Co. (cross-reference w/20150029) 2015 ND 272
Docket No.: 20150161
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: Insurance coverage for "direct physical loss or damage" is not ambiguous as a matter of law. A district court does not err in finding the ordinary meaning of the phrase does not include loss-of-use coverage.
The reasonable expectations doctrine is not adopted.

State v. Gackle 2015 ND 271
Docket No.: 20150090
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Section 39-20-07, N.D.C.C., is not the only method for offering blood test results into evidence. Blood test results may also be admitted under normal evidentiary rules.

Weigel v. Weigel 2015 ND 270
Docket No.: 20140412
Filing Date: 12/1/2015
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.
Due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case.

Anderson v. Baker, et al. 2015 ND 269
Docket No.: 20150049
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Johnson, et al. v. Buskohl Construction, Inc., et al. 2015 ND 268
Docket No.: 20150006
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: McEvers, Lisa K. Fair

Highlight: If a district court does not make detailed findings when admitting evidence under the residual exception to hearsay, an appellate court may review the record to determine whether the prerequisites to admissibility have been met.
The most important requirement to admit evidence under the residual exception to hearsay is that it possess circumstantial guarantees of trustworthiness equivalent to the next closest hearsay exception.
A party seeking to admit evidence under the residual exception to hearsay must give advance notice of its intent to use the evidence, including providing the name and address of the declarant to the opposing party, before trial.

Guardianship and Conservatorship of M.E. (Confidential) 2015 ND 267
Docket No.: 20150117
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: Substantial compliance with the statute for the appointment of a guardian and conservator is required.
Deprivation of a protected person's rights to vote, to seek to change marital status, to obtain or retain a motor vehicle operator's license, or to testify in any judicial or administrative proceedings must be supported by specific findings.

State v. Moreno 2015 ND 266
Docket No.: 20150158
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for refusal to submit to chemical testing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Murray v. State 2015 ND 265
Docket No.: 20150124
Filing Date: 12/1/2015
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).

Wheeler v. State (consolidated w/20150114 & 20150115) 2015 ND 264
Docket No.: 20150113
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7) and Lehman v. State, 2014 ND 103, 847 N.W.2d 119.
Order prohibiting filing any further motions or pleadings is modified.

State v. Birnbaum 2015 ND 263
Docket No.: 20150064
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment for assault, violation of an order prohibiting contact, theft of property, and failure to halt is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Busby 2015 ND 262
Docket No.: 20150173
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for assault summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7). State v. Chisholm, 2012 ND 147,  16, 818 N.W.2d 707.

State v. Ford 2015 ND 261
Docket No.: 20150177
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: District court order for revocation of probation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of L.F. (CONFIDENTIAL) 2015 ND 260
Docket No.: 20150272
Filing Date: 12/1/2015
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).

Rusgrove v. Goter 2015 ND 259
Docket No.: 20150122
Filing Date: 11/6/2015
Case Type: Appeal - Civil - Malpractice
Author: Per Curiam

Highlight: A district court's summary judgment dismissing a plaintiff's lawsuit with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

In the Interest of A.S. (CONFIDENTIAL) 2015 ND 258
Docket No.: 20150120
Filing Date: 11/6/2015
Case Type: Appeal - Criminal - Juvenile Law
Author: Per Curiam

Highlight: A district court order adopting a referee's order that transferred the case from juvenile court to adult court is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sall v. Sall (cross-reference w/ 20100360 & 20120448) 2015 ND 257
Docket No.: 20150098
Filing Date: 10/29/2015
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court judgment adjusting the monthly amount of child support payments is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of T.A.G. 2015 ND 256
Docket No.: 20140445
Filing Date: 10/29/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Leno v. N.D. Dep't of Transportation 2015 ND 255
Docket No.: 20150091
Filing Date: 10/19/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: When the specimen submitter's checklist is not sent to the Department of Transportation or presented as evidence at the administrative hearing, testimony from the specimen submitter can be used to show scrupulous compliance with the methods approved by the state crime laboratory director.
The abuse of discretion standard applies to decisions allowing witnesses to refresh their memories.
Leading questions are permissible to refresh a witness's memory.

Capes v. Capes 2015 ND 254
Docket No.: 20140342
Filing Date: 10/14/2015
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To modify parenting time, the moving party must demonstrate that a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the best interests of the child.

Estate of Amundson, et al. 2015 ND 253
Docket No.: 20150046
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The district court is considered an expert in determining the value of reasonable attorney's fees for services rendered to an estate, and its decision will not be overturned on appeal absent a clear abuse of discretion.
Professional corporations organized for the purpose of engaging in the practice of law provide limited personal liability only for obligations of the professional corporation that are unrelated to the rendering of the professional legal service.

Poppe v. Stockert, et al. 2015 ND 252
Docket No.: 20140463
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: A landlord may dispose of a tenant's abandoned personal property under N.D.C.C. 47-16-30.1. The landlord must retain property valued at more than $1,500 for the time required by statute.
The statute create a lien on a tenant's abandoned personal property when there is an eviction judgment and special execution. The lien is a security interest for the reasonable costs of retaining the property for the statutory period.

Gronland v. Gronland (cross-reference w/19940193) 2015 ND 251
Docket No.: 20150108
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Jurisdiction to modify spousal support does not extend beyond the support period, unless the court reserves that jurisdiction.
The Supreme Court may sanction a person failing to abide by the Rules of Appellate Procedure.

Olson v. Levi 2015 ND 250
Docket No.: 20150131
Filing Date: 10/13/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The report and notice form forwarded to the department of transportation must include adequate probable cause information showing the arrestee was in actual physical control of or was driving a vehicle under the influence of alcohol to provide the department authority to suspend driving privileges.

City of Jamestown v. Hanson 2015 ND 249
Docket No.: 20150005
Filing Date: 10/13/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Testimony regarding blood-alcohol testing procedures may be admitted into evidence without satisfying the statutory requirements for admission of blood-alcohol test results.

Tidd v. Kroshus 2015 ND 248
Docket No.: 20140426
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Jury instructions on issues not supported by the evidence are erroneous but arereversible error only when they are prejudicial or mislead the jury.
Every unexpected occurrence is not a sudden emergency, and whether a sudden emergency exists is a question for the jury unless a reasonable person could draw only one conclusion from the evidence.

Guardianship/Conservatorship of V.A.M. 2015 ND 247
Docket No.: 20150043
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: A district court's decision cannot be properly reviewed on appeal if the appellate court is unable to understand the rationale underlying the district court's decision.

Interest of W.M. (Confidential) 2015 ND 246
Docket No.: 20150257
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: District court order finding W.M. mentally ill and in need of treatment with medication summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of B.K. (CONFIDENTIAL) 2015 ND 245
Docket No.: 20150260
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Mental health commitment for up to 90 days is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Dubray v. State 2015 ND 244
Docket No.: 20140428
Filing Date: 10/13/2015
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).

Matter of Bartole (cross-ref w/ 20110243) 2015 ND 243
Docket No.: 20150134
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Highlight: A district court order for continued commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Meyer, et al. v. Engebretson, et al. 2015 ND 242
Docket No.: 20150170
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Summary judgment deciding ownership of mineral interests is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Kitzan v. State 2015 ND 241
Docket No.: 20150045
Filing Date: 10/13/2015
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. Berg 2015 ND 240
Docket No.: 20150076
Filing Date: 10/13/2015
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: District court order for revocation of probation and amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Wedemeyer v. State 2015 ND 239
Docket No.: 20150021
Filing Date: 10/13/2015
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)(2).

Border Resources, LLC v. Irish Oil & Gas, Inc., et al. 2015 ND 238
Docket No.: 20140264
Filing Date: 9/21/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A fiduciary duty, including a corresponding duty of loyalty and honesty, arises between an oil company and its landman based on a confidential relationship.
The existence and scope of a fiduciary duty depends on the language of the parties' agreement.
A district court has wide discretion in deciding whether to permit amended pleadings after the time for an amendment has passed.

State v. Montplaisir 2015 ND 237
Docket No.: 20140459
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: An information is sufficient if it sets forth the offense in the words of the statute and is specific enough to provide a defendant with notice of the pending charges to enable the defendant to prepare a defense.
A statute is not unconstitutionally vague if the challenged language, when viewed under a reasonable person standard, gives adequate and fair warning of the prohibited conduct and creates minimum guidelines for those whose duty is to enforce the statute.
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.

Klein v. Klein 2015 ND 236
Docket No.: 20140449
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Under the child support guidelines, "self-employment" means employment that results in an obligor earning income from any business organization or entity which the obligor is, to a significant extent, able to directly or indirectly control.
The child support guidelines restrict when a loss from self-employment may be applied to reduce income unrelated to self-employment.
When tax returns are not available or are unreliable, the guidelines require the district court to use profit and loss statements that more accurately reflect the obligor's current self-employment income to properly calculate income.

State v. Guttormson 2015 ND 235
Docket No.: 20150035
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Statements admitted to prove a point other than the truth of the matter asserted are not testimonial hearsay statements.
Insufficient evidence to support a conviction exists only when, after reviewing the evidence in the light most favorable to the verdict and giving the benefit of all inferences reasonably to be drawn in favor of the verdict, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

State v. Chase 2015 ND 234
Docket No.: 20150010
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A trial court does not abuse its discretion by excluding evidence of prior sexual activity between a victim and defendant when the defendant has not provided the required notice of intent to offer such evidence.

Interest of M.R., a Child (CONFIDENTIAL) 2015 ND 233
Docket No.: 20150175
Filing Date: 9/17/2015
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: The juvenile court is not required to second-guess an attorney's statement regarding his client's decision not to appear by telephone at a termination of parental rights trial.
A parent is not denied due process when his parental rights were terminated while he was not present because he was given proper notice, afforded the opportunity to appear telephonically, and represented by counsel.
When a juvenile court sends notice to intervene to the proper tribe and the tribe declines to exercise jurisdiction, the juvenile court has satisfied ICWA's requirements and may proceed with the case.

Norby v. Estate of Kuykendall, et al. 2015 ND 232
Docket No.: 20140380
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: When a boundary is fixed by a deed at a specified line without reference to the water, the grantee cannot claim accretions beyond that line.

Greywind v. State 2015 ND 231
Docket No.: 20150070
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A district court summarily dismissing a post-conviction relief application under N.D.C.C. 29-32.1-09(1) must rely on information found solely within the application.
A party opposing the motion for summary judgment is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and entitled to present supporting material justifying an evidentiary hearing.

State v. Morales 2015 ND 230
Docket No.: 20140407
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

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

Grigg v. Grigg 2015 ND 229
Docket No.: 20140403
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Unless the opposing party's counter-affidavits conclusively establish the movant's allegations have no credibility, the district court must accept the truth of the moving party's allegations.

Keller v. State 2015 ND 228
Docket No.: 20140438
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A motion to correct an illegal sentence cannot be used to attack the underlying conviction.
To show the new interpretation of law exception to the post-conviction relief two-year statute of limitations applies, the petitioner must establish (1) a new interpretation of state or federal constitutional or statutory law applies to the petitioner's case, and (2) the interpretation is retroactively applicable.
A defendant is not convicted of the incognizable offense of attempt to commit extreme indifference murder where the information alleges only intentional conduct and the jury instructions reflect intentional language of attempting to cause death.

State v. Korynta 2015 ND 227
Docket No.: 20150077
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of E.V. (Confidential) 2015 ND 226
Docket No.: 20150078
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: District court judgment finding a child is deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Holverson v. Lundberg 2015 ND 225
Docket No.: 20140347
Filing Date: 9/4/2015
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: There is not jurisdiction to hear appeal from a judgment where unadjudicated claim has not been decided by district court.

Vacancy in Judgeship No. 1, Southwest Judicial District 2015 ND 224
Docket No.: 20150225
Filing Date: 9/1/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Dickinson.

State v. New Holland 2015 ND 223
Docket No.: 20140409
Filing Date: 8/31/2015
Case Type: Appeal - Criminal - Contempt of Court
Author: Sandstrom, Dale

Highlight: A person seeking compensatory remedial contempt sanctions against the state or a state employee must comply with the statutory requirements for claims against the state.

Disciplinary Board v. Matson (consolidated w/ 20150220-20150221) 2015 ND 222
Docket No.: 20150219
Filing Date: 8/31/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Vacancy in Judgeship No. 3, Northeast Judicial District 2015 ND 221
Docket No.: 20150160
Filing Date: 8/26/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bottineau.

Kuntz v. Disciplinary Board 2015 ND 220
Docket No.: 20150086
Filing Date: 8/25/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer's violation of the rules of professional conduct must be established by clear and convincing evidence.
Payment of fees for an initial consultation with a lawyer does not, by itself, establish a lawyer-client relationship.
A lawyer is not prohibited from representing a client with interests adverse to those of a potential client in the same or a substantially-related matter unless the lawyer has received significantly harmful information from the potential client.

State v. Weight 2015 ND 219
Docket No.: 20140382
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Double Jeopardy prohibits successive prosecutions and punishments for the same criminal offense.
An acquittal due to insufficient evidence precludes retrial whether the district court's evaluation of the evidence was correct or not and regardless of whether the court's decision flowed from an incorrect ruling of law.

Matter of Hehn (cross-reference 20110053; 20120070; 20120212; 20130055;20130143) 2015 ND 218
Docket No.: 20140430
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: When a party fails to raise an issue before the district court, even a constitutional issue, an appellate court generally will not address the issue on appeal. A party must do more than submit bare assertions to adequately raise constitutional issues.
An individual committed as sexually dangerous has the right to obtain individually identifiable health information and any confidential records provided to the state's attorney regarding the committed individual in a commitment proceeding.
Restraints in involuntary commitment proceedings must be based on individualized determination by the court on the record.

Gerber v. Disciplinary Board 2015 ND 217
Docket No.: 20150032
Filing Date: 8/25/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Under the rules of professional conduct, a lawyer who is not admitted to practice in this jurisdiction is prohibited from representing or holding out to the public that he is admitted to practice law in this jurisdiction.

Hale v. City of Minot 2015 ND 216
Docket No.: 20140337
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A local governing body's decision is affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.
A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.

Freidig, et al. v. Weed, et al. 2015 ND 215
Docket No.: 20140387
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A warranty deed that does not express the parties' intent may be reformed on the ground of mutual mistake.
Issues not raised in the district court will not be considered for the first time on appeal.

Gabaldon-Cochran v. Cochran 2015 ND 214
Docket No.: 20140338
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: Distribution of marital property does not need to be equal, but the distribution must be equitable and a substantial disparity must be explained.
A court may unequally divide the marital estate in a short-term marriage and award the parties what each brought into the marriage.
A court may order one party to pay a cash payment to another party as part of the property distribution in any divorce case so long as the distribution is equitable.

State v. Weinmann (consolidated w/ 20140440) 2015 ND 213
Docket No.: 20140432
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The reliability of informants within the criminal milieu must be established.

State v. Rufus 2015 ND 212
Docket No.: 20140378
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The word "obtain," in the context of the human trafficking statute, encompasses acquiring temporary custody of a person for the purpose of engaging in commercial sex acts with that person.
A court may not stray from the classification the legislative assembly set for violation of a statute.

State v. Pogue 2015 ND 211
Docket No.: 20140355
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: A motion to reconsider does not toll the time for filing a notice of appeal from an order suppressing evidence in a criminal matter.
Under the inventory search exception to the warrant requirement, the State has the burden to show law enforcement's reasons for impounding a vehicle are not only for an investigative function.
Under the good-faith exception to the exclusionary rule, good faith is a finding of fact.

Winter v. Solheim, et al. 2015 ND 210
Docket No.: 20140458
Filing Date: 8/25/2015
Case Type: Original Proceeding - Civil - Writ of Certiorari
Author: VandeWalle, Gerald

Highlight: If a small claims court has jurisdiction over the parties and subject matter of an action, a writ of certiorari may not be used to review an alleged erroneous decision by the small claims court.

Olson, et al. v. Alerus Financial Corp., et al. 2015 ND 209
Docket No.: 20150009
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A real estate agent owes fiduciary duties to a client, and the legislature intended to create a private remedy to enforce violations of those duties.

State v. Zacher 2015 ND 208
Docket No.: 20150001
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Plain view is a recognized exception to the search warrant requirement, allowing law enforcement officers to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they can view an object and the object's incriminating character is immediately apparent.

Matter of J.G. (CONFIDENTIAL)(cross-reference w/20100366 & 20120199) 2015 ND 207
Docket No.: 20140448
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: The least restrictive treatment available for a sexually dangerous individual is initially made by the executive director of the department of human services, but the individual may challenge continued commitment if statutory requirements are being violated.

Interest of Whitetail 2015 ND 206
Docket No.: 20140455
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A sexually dangerous individual who is committed is to be placed in the least restrictive available treatment facility or program.
The executive director may petition the court to place a committed individual in the community for treatment on an outpatient basis.

Anderson v. WSI 2015 ND 205
Docket No.: 20140346
Filing Date: 8/25/2015
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A vocational rehabilitation plan is appropriate if it meets the statutory requirements and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.
Whether a vocational rehabilitation plan will return an injured worker to substantial gainful employmen must be assessed on the basis of the information WSI had before it at the time it selected the plan.

Moody, et al. v. Sundley 2015 ND 204
Docket No.: 20140408
Filing Date: 8/24/2015
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: All the elements for adverse possession must be satisfied for a claim of adverse possession under any of the statutory provisions, and if any element is not satisfied the possession will not confer title.
A pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and is not relevant to any issue pleaded in the case.

Gray v. Berg 2015 ND 203
Docket No.: 20150040
Filing Date: 8/24/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A peremptory demand for a change of judge differs from a demand for a change of judge based on bias. Peremptory demands are untimely if filed more than 10 days after notice of assignment or reassignment of a judge for trial of a case, notice that trial had been scheduled, or date of service of an ex parte order in the case signed by the judge against whom the demand is filed. Allegations of bias are not subject to the same time constraints.

Messer, et al. v. B&B Hot Oil Service, Inc., et al. 2015 ND 202
Docket No.: 20150065
Filing Date: 8/17/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: For negligence claims based on defective products, the focus is on whether or not the conduct of the manufacturer or seller falls below the standard of reasonable care. One who has been injured by a product may seek to hold the manufacturer or seller liable on the theory that the design of the product made it dangerous and, apart from whether it was negligent in its design, negligence is inhered in a failure to warn of the danger.
If the existence of a duty depends on factual determinations, their resolution is for the trier of fact. The appropriate procedure in such cases is for the court to instruct the jury as to the defendant's duty, or absence of duty, if certain facts are found.

State v. Clark 2015 ND 201
Docket No.: 20140405
Filing Date: 8/13/2015
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A conviction rests upon insufficient evidence only when, after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

Johnson, et al. v. Shield, et al. 2015 ND 200
Docket No.: 20150053
Filing Date: 8/13/2015
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Reservations or exceptions of property interests may appear in any part of a deed, including the warranty clause.
Exceptions or exclusions of property should be set forth in the granting clause with the same prominence as the property granted, or, if placed elsewhere, should be so explicit as to leave no room for doubt.

BAHA Petroleum Consulting Corp. v. Job Service 2015 ND 199
Docket No.: 20140452
Filing Date: 8/11/2015
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: McEvers, Lisa K. Fair

Highlight: Whether a worker is an independent contractor or an employee is a mixed question of fact and law, and the employer bears the burden of showing the worker is an independent contractor.

State v. Morel 2015 ND 198
Docket No.: 20140454
Filing Date: 8/11/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Conviction of refusal to submit to a chemical test is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Kordonowy 2015 ND 197
Docket No.: 20140327
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The implied consent statute criminalizing refusal to consent to chemical testing is not unconstitutional under the Fourth Amendment or N.D. Constitution article I, section 8, and it is not unconstitutionally vague.
The statutory right to refuse to submit to chemical testing is not a defense to the charge of refusal to submit to a chemical test.
The district court does not have a duty to draft a jury instruction requested by the defendant.

State v. Kardor 2015 ND 196
Docket No.: 20140410
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A Brady v. Maryland violation is established if a defendant proves: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A Brady violation is not established if a defendant was aware of the information allegedly withheld by the State.
A defendant's failure to discover evidence from a lack of reasonable diligence defeats a Brady claim that the prosecution withheld evidence.