Opinions

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.

Yesel, et al. v. Brandon, et al. (consolidated w/20140187) 2015 ND 195
Docket No.: 20140186
Filing Date: 8/6/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: A royalty interest is not abandoned if the mineral interest related to the royalty interest has been used within the last 20 years.
On a party's motion for leave to amend a pleading to assert a counterclaim in an ongoing action, a district court must consider whether the counterclaim is compulsory or permissive, and also must consider whether justice requires that leave to amend be granted.

State v. Filkowski 2015 ND 194
Docket No.: 20140344
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Evidence establishing the approved methods, devices, or individuals administering analytical tests requires foundational support indicating approval from the director of the state crime laboratory or the director's designee.
Copies of the state crime laboratory certified records that have been electronically posted on the attorney general's website must be admitted as prima facie evidence of the matters stated in the record. Once prima facie evidence establishing the status of a designee is accepted, the burden shifts to the defendant to rebut the prima facie evidence.

City of Dickinson v. Etienne 2015 ND 193
Docket No.: 20140472
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A defendant may appeal a municipal court judgment of conviction to the district court, and the appeal must be taken in accordance with the Rules of Criminal Procedure.

State v. Jennewein (consolidated w/ 20140369) 2015 ND 192
Docket No.: 20140368
Filing Date: 8/5/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under the criminal discovery rules, the prosecution must furnish the defendant a copy of his prior criminal record that is within the prosecution's possession, custody, or control.
No compelling prejudice from consolidation of offenses is shown where a defendant asserts only a general desire to testify about some counts and not others.
If durng closing argument the prosecutor impermissibly comments on the defendant's failure to testify, the conviction must be reversed unless the error was harmless beyond a reasonable doubt after considering the entire record.

Guardianship/Conservatorship of B.K.J. 2015 ND 191
Docket No.: 20140446
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: The district court's selection of a guardian is reviewed on appeal using the abuse of discretion standard.
In applying the statutory order of priorities in the appointment of a guardian for an incapacitated person, the district court is not required to make specific findings regarding which priority applied, but the findings must be sufficient to afford a clear understanding of the district court's decision.

Prairie Supply, Inc. v. Apple Electric, Inc., et al. (consolidated w/ 20140357) 2015 ND 190
Docket No.: 20140354
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: When a motion for a new trial is made in the district court, the party making the motion is limited on appeal to a review of the grounds presented to the district court in the motion for a new trial.

The City of Moorhead v. Bridge Company, et al. 2015 ND 189
Docket No.: 20140431
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A franchise is a contract subject to the general rules of contract interpretation.
A fleeting reference in a brief to an unpled claim is insufficient to properly raise an issue for consideration.

Estate of Gassmann 2015 ND 188
Docket No.: 20140255
Filing Date: 7/28/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The pretrial exclusion of evidence by a motion in limine is a preliminary order and does not dispense with the need for the proponent of evidence to make an offer of proof at trial so the court can consider the proffered evidence in the context of other evidence presented at trial.

EOG Resources, Inc. v. Soo Line Railroad Co., et al. 2015 ND 187
Docket No.: 20140122
Filing Date: 7/15/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: The primary purpose in interpreting a deed is to ascertain and effectuate the grantor's intent, and if the deed is unambiguous, we determine the grantor's intent from the deed itself considering the entire instrument.
A deed conveying property to a railroad generally conveys a fee simple interest if the deed conveys a strip, piece, parcel, or tract of land and does not contain additional language limiting the conveyance or use of the land.

Interest of B.E. (CONFIDENTIAL) 2015 ND 186
Docket No.: 20150188
Filing Date: 7/13/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order continuing treatment for six months is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Kroschel v. Levi 2015 ND 185
Docket No.: 20140265
Filing Date: 7/7/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Police officers outside of their jurisdiction generally act without official capacity and without authority to arrest.
A North Dakota State University police officer is without authority to arrest a driver operating a motor vehicle outside university property.
Litigants are entitled to recover attorney's fees against an administrative agency only when the agency acts without substantial justification.

Gackle v. N.D. Dep't of Transportation 2015 ND 184
Docket No.: 20150022
Filing Date: 7/6/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming the Department of Transportation hearing officer's suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Dockter, et al. v. Burleigh County Board of County Commissioners 2015 ND 183
Docket No.: 20140379
Filing Date: 7/2/2015
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Spot zoning occurs when an individual lot is singled out for discriminatory or different treatment than that accorded surrounding property of a similar character and is beyond the authority of a zoning entity, absent a clear showing of a reasonable basis for different treatment.
A County Commissioners' zoning decision is a legislative function subject to limited review by a court.
A County Commissioners' zoning decision must be affirmed unless the decision is arbitrary, capricious, or unreasonable, or there is not substantial evidence supporting the decision.

Howe v. Disciplinary Board 2015 ND 182
Docket No.: 20150156
Filing Date: 7/2/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstated and reprimanded.

State v. Lang 2015 ND 181
Docket No.: 20140332
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: When considering the effects of comments made during jury selection, great faith is placed in a juror's ability to remain fair and impartial.
Motions for mistrial fall within the broad discretion of the district court and will not be reversed on appeal absent a showing that the court abused its discretion or that a manifest injustice would occur.

State v. Packineau 2015 ND 180
Docket No.: 20140353
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: When a defendant has actual notice of a proposed additional witness before trial, the additional witness serves as a foundational witness, and the defendant does not specify any instance of actual prejudice, a district court does not abuse its discretion in admitting the testimony.
Under N.D.R.Crim.P. 16, there is no functional distinction between disclosing to an opposing party a state-owned and maintained website address specifically identifying and containing requested documents, electronically sending those same documents to defendant's counsel, or providing a physical copy.

Schlittenhart v. N.D. Dep't of Transportation 2015 ND 179
Docket No.: 20140262
Filing Date: 7/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: A driver's license may not be suspended or revoked without due process, which requires notice and a meaningful opportunity to be heard appropriate to the nature of the case.
The department of transportation is required by statute to conduct in-person hearings and cannot unilaterally decide hearings will be conducted telephonically; however, the statute does not require in-person appearance at the hearing by the driver's attorney.

Havemeier v. N.D. Dep't of Transportation 2015 ND 178
Docket No.: 20140417
Filing Date: 7/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test is not established when a law enforcement officer, in violation of the approved method, prematurely terminates the testing sequence before the machine times out and no expert testimony is provided on the effect, if any, of the deviation.

State v. Gates (consol. w/ 20150036) (cross-reference w/20130358) 2015 ND 177
Docket No.: 20140317
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: District courts have a wide degree of discretion when determining restitution awards, and the court's decision will not be reversed on appeal unless the court abuses its discretion.

State v. Breiner 2015 ND 176
Docket No.: 20140427
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Documents showing the defendant had the benefit of legal counsel are sufficient to establish defendant had or waived counsel so that prior convictions could be used to enhance his DUI sentence.

Gonzalez v. State (consolidated w/20150051) 2015 ND 175
Docket No.: 20150050
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An issue, even a constitutional issue, not raised before the district court generally will not be addressed on appeal.

Fugere v. Fugere 2015 ND 174
Docket No.: 20140334
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court may unequally divide property in a short-term marriage and award the parties what each brought into the marriage.
There is no rule that the district court equally divide any increase in the net worth of the parties which occurred during the marriage.
The affirmance of a property division in one divorce case does not announce a rule of law requiring that all property divisions in future cases be handled similarly.

State v. Martinez 2015 ND 173
Docket No.: 20140260
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.
When a criminal defendant is charged with multiple counts of gross sexual imposition, the jury instructions must include information identifying the underlying acts for each count, or the court must instruct the jury that it must unanimously agree about the act or acts committed for each count.
A trial court has discretion to exclude evidence about a person's sexual history.

City of Williston v. Werkmeister 2015 ND 172
Docket No.: 20140361
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A defendant may appeal from a municipal court's judgment of conviction, and the appeal must be taken in accordance with the Rules of Criminal Procedure.

Votava v. Votava 2015 ND 171
Docket No.: 20140460
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court has broad discretion in deciding whether contempt has been committed, and the court's decision will not be reversed on appeal unless there is a clear abuse of discretion.
Due process requires a party receive adequate notice and a fair opportunity to be heard.
A fair hearing requires reasonable notice or opportunity to know of the claims of opposing parties, and the opportunity to rebut those claims.

Savre v. Santoyo 2015 ND 170
Docket No.: 20140358
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: McEvers, Lisa K. Fair

Highlight: A breach of contract occurs when there is nonperformance of a contractual duty when it is due.
Whether a party has breached a contract is a finding of fact that will not be reversed on appeal unless it is clearly erroneous.
A person who receives an option from another to purchase property must strictly comply with the contractual requirements for exercising an option to purchase.
Waiver may be found from an unexplained delay in enforcing contractual rights or accepting performance different than called for by the contract.

Schiele v. Schiele 2015 ND 169
Docket No.: 20140371
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Parents have a mutual duty to support their children, and a court may compel either or both of the parents to provide for the support of their children.
A determination of a child support obligation is appropriate in any matter where the child and both of the child's parents do not reside together.
A divorce judgment's language controls, regardless of the actual custodial arrangement exercised by the parties.

Weston v. Crummy 2015 ND 168
Docket No.: 20140421
Filing Date: 7/1/2015
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)(2).

Adoption of A.J.S. and T.J.S. (CONFIDENTIAL) 2015 ND 167
Docket No.: 20150140
Filing Date: 7/1/2015
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Termination of a parent's parental rights and a stepparent adoption are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Horvath (consolidated w/20140469 & 20140470) 2015 ND 166
Docket No.: 20140468
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgments entered after a jury found defendant guilty of terrorizing, reckless endangerment, and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of C.S. (CONFIDENTIAL) (cross-ref 20110302) 2015 ND 165
Docket No.: 20140439
Filing Date: 7/1/2015
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).

State v. Feist 2015 ND 164
Docket No.: 20150041
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for criminal mischief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kirkpatrick v. State 2015 ND 163
Docket No.: 20150039
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court judgment summarily dismissing an application for postconviction relief from conspiracy to commit murder conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Everett v. State 2015 ND 162
Docket No.: 20140464
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying post-conviction relief from a gross sexual imposition conviction and a motion to substitute judge summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).

State v. Schwab 2015 ND 161
Docket No.: 20140467
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for accomplice to gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Gaede v. State 2015 ND 160
Docket No.: 20150026
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief from murder conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Curtiss v. State 2015 ND 159
Docket No.: 20150007
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

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.