Opinions

Deckert v. McCormick, et al. 2014 ND 231
Docket No.: 20140151
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: To obtain an enforceable right to the property under an option, the optionee must exercise the option within the time and upon the terms and conditions provided in the option agreement.
If no consideration is given for an option to purchase real estate, the option may be withdrawn at any time before acceptance.

State v. Horn 2014 ND 230
Docket No.: 20140093
Filing Date: 12/18/2014
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: Even if a party has raised an unsuccessful challenge in a pretrial motion, in order to preserve the issue for appeal, the party must renew the objection when the evidence is offered at trial.
A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the fact-finder to find the defendant guilty beyond a reasonable doubt.

Frey v. Frey (cross-reference w/20120378) 2014 ND 229
Docket No.: 20140086
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's denial of a motion to modify primary residential responsibility will be affirmed, unless clearly erroneous.
A district court's decision of whether to award back interim child support is discretionary.
A district court may consider the significant impact military deployments have on the best interests of the child, among other factors.

State v. Brandborg 2014 ND 228
Docket No.: 20140141
Filing Date: 12/18/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: Hunting on posted land without permission in violation of N.D.C.C. 20.1-01-18 is a strict liability offense.

Abelmann, et al. v. SmartLease USA, L.L.C. 2014 ND 227
Docket No.: 20130349
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Landlord/Tenant
Author: Kapsner, Carol

Highlight: A district court's factual findings must be adequate to understand the basis for the court's decision.

Podrygula, et al. v. Bray, et al. 2014 ND 226
Docket No.: 20140090
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The discovery rule is an exception to the statute of limitations and, if applicable, postpones a claim's accrual until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury.
The discovery rule requires only that the plaintiff be aware of an injury; it does not require knowledge of the full extent of the injury.

Schmitt, et al. v. Schmitt, et al. 2014 ND 225
Docket No.: 20140164
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Landlord/Tenant
Author: McEvers, Lisa K. Fair

Highlight: Without a transcript, the record is considered when reviewing whether a district court's findings are clearly erroneous.

State v. Nagel 2014 ND 224
Docket No.: 20140179
Filing Date: 12/18/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: There is no logical difference between a pre-arrest onsite screening test and a post-arrest chemical test in terms of determining voluntariness of consent under the implied consent statute.

Guardianship of P.T. (CONFIDENTIAL)(consolidated w/20140167-20140170) 2014 ND 223
Docket No.: 20140166
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: Although it is preferable for trial courts to prepare their own findings of fact, a trial court will not be reversed for adopting proposed findings prepared by counsel.
A correct result based on correct reasoning under the wrong law will not be reversed if the result would be the same under the correct law.

George v. George 2014 ND 222
Docket No.: 20140063
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A district court has permissive or non-mandatory authority to grant a restraining order if it finds reasonable grounds to believe a respondent has engaged in disorderly conduct.

Albrecht v. Albrecht 2014 ND 221
Docket No.: 20130392
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A party's death before entry of a final divorce judgment abates a divorce action.

Coss v. Levi 2014 ND 220
Docket No.: 20140211
Filing Date: 12/18/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming a Department of Transportation hearing officer's decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Interest of D.C. 2014 ND 219
Docket No.: 20140416
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: An involuntary treatment with medication order is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Greybear v. State 2014 ND 218
Docket No.: 20140137
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Bentz v. State 2014 ND 217
Docket No.: 20140138
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Connelley v. Connelley 2014 ND 216
Docket No.: 20140214
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Appeal from amended divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Vivatson v. Haugen, et al. 2014 ND 215
Docket No.: 20140005
Filing Date: 12/18/2014
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).

Luger v. State 2014 ND 214
Docket No.: 20140106
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Thorson v. State 2014 ND 213
Docket No.: 20140144
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of B.B.P. (Confidential)(consolidated w/20140375 & 20140376) 2014 ND 212
Docket No.: 20140374
Filing Date: 12/18/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Nguyen (cross-ref. w/20130159) 2014 ND 211
Docket No.: 20140183
Filing Date: 11/26/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A district court order deferring imposition of sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Nilles, Ilvedson, Plambeck & Selbo, Ltd., v. Langer 2014 ND 210
Docket No.: 20140212
Filing Date: 11/20/2014
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An order denying relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

State v. Yost (consolidated w/20140070 & 20140071) 2014 ND 209
Docket No.: 20140067
Filing Date: 11/12/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Sentencing is a critical stage at which a defendant is entitled to effective assistance of counsel.
A defendant's conduct may be the functional equivalent of a voluntary waiver of the right to counsel.
A trial court should make an on-the-record determination that the defendant voluntarily, knowingly, and intelligently waived the right to counsel to eliminate any ambiguity.

Harvey v. Harvey 2014 ND 208
Docket No.: 20140084
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court does not necessarily err by failing to find a primary caretaker of a child.
Reservation of jurisdiction to award spousal support is appropriate where a spouse is disabled, has a lower income than the other spouse, and has a slim chance of substantially increasing his or her income.

State v. Leppert 2014 ND 207
Docket No.: 20140087
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A noncriminal traffic case may not be appealed to the Supreme Court.

State v. Reddig 2014 ND 206
Docket No.: 20140123
Filing Date: 11/5/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: District court judgment denying motion to withdraw guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matter of Aune 2014 ND 205
Docket No.: 20140042
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order civilly committing an individual as a sexually dangerous offender is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Ayala v. State 2014 ND 204
Docket No.: 20140140
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Jones 2014 ND 203
Docket No.: 20140100
Filing Date: 11/12/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Criminal judgment for possession of a controlled substance with intent to deliver within 1,000 feet of a school and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Murphy 2014 ND 202
Docket No.: 20140079
Filing Date: 11/5/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A district court is allowed a wide range of discretion in fixing a criminal sentence. Appellate review of a criminal sentence is generally confined to whether the district court acted within the sentencing limits set by statute, or substantially relied upon an impermissible factor.
A district court's interpretation of a statute in sentencing a defendant may be reviewed under limited circumstances.

Capps, et al. v. Weflen, et al. (cross-ref. w/20120184) 2014 ND 201
Docket No.: 20140110
Filing Date: 10/31/2014
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Under the abandoned mineral statutes, a surface owner is required to conduct a reasonable inquiry only if the mineral owner's address does not appear of record, even if the surface owner knows the mineral owner whose address appears of record is deceased.
The notice provisions of the abandoned mineral statutes are constitutional under the due process clause.

Northstar Founders, LLC v. Hayden Capital USA, LLC, et al. 2014 ND 200
Docket No.: 20130245
Filing Date: 10/31/2014
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The district court has personal jurisdiction over a nonresident defendant if the nonresident defendant committed a tort within or outside the state causing injury to another person or property within the state and the exercise of personal jurisdiction comports with due process.
The exercise of personal jurisdiction over a nonresident defendant comports with due process if the defendant purposely directed his activities at residents of the state and the litigation results from alleged injuries arising out of or related to those activities.
Whether a contract is ambiguous is a question of law, but if the contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent and the interpretation becomes a question of fact.
A third party may benefit from a contractual arrangement between others, but a party fails to establish an unjust enrichment claim against the third party if the alleged impoverishment results from a valid contractual arrangement.
A decision is final for purposes of collateral estoppel if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court.

Wilson v. Wilson 2014 ND 199
Docket No.: 20140037
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The district court may order past child support covering a period when the parties are separated but divorce proceedings are not pending.
The district court may, but is not required to, apply the child support guidelines to determine the reasonable amount of past child support to order a party pay as reimbursement for a period when there is not a court order for support and a proceeding is not pending.
A child support obligor's military subsistence payments, including amounts for overseas cost of living and housing allowances, are gross income for child support purposes.

State v. Schneider 2014 ND 198
Docket No.: 20140153
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A law enforcement officer's following with flashing lights a moving vehicle constitutes a pursuit, which constitutes a seizure under the Fourth Amendment. No seizure occurs if the defendant does not move his vehicle and the officer does not pursue him with flashing lights.

MKB Management Corp, et al. v. Burdick, et al. 2014 ND 197
Docket No.: 20130259
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Constitutional Law
Author: Per Curiam

Highlight: The concurrence of four of the five justices of the North Dakota Supreme Court is necessary to declare a statute unconstitutional.
H.B. 1297, relating to the regulation of abortions, is not declared unconstitutional by a sufficient majority.

Interest of J.A.H. (Consolidated w/20140146) 2014 ND 196
Docket No.: 20140145
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Juvenile Law
Author: McEvers, Lisa K. Fair

Highlight: When a juvenile court provides insufficient findings to review, jurisdiction may be retained under N.D.R.App.P. 35(a)(3) and the case remanded with instructions that the juvenile court make expedited findings of fact.

State v. Fetch 2014 ND 195
Docket No.: 20140129
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A driver who has refused a chemical test but later changes his mind and consents to the test can cure the prior refusal.
Consent to a chemical test is not coerced and is not rendered involuntary merely by a law enforcement officer's reading of the implied consent advisory that accurately informs the arrestee of the consequences for refusal, including the criminal penalty, and presents the arrestee with a choice.

Interest of G.L.D. (CONFIDENTIAL) (cross-reference w/20100230 & 20120175) 2014 ND 194
Docket No.: 20140034
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: In proceedings for commitment of a sexually dangerous individual, the committed individual has a right to obtain individually identifiable health information and any confidential records provided to the state's attorney.
A district court has broad discretion regarding the scope of discovery in a civil proceeding, and its discovery decision will not be reversed on appeal absent an abuse of discretion.

State v. Patterson 2014 ND 193
Docket No.: 20140048
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: While a prosecutor's improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none, inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.
When a district court's curative instructions, the weight of the other evidence against the defendant, and overall lack of substantial prejudice show a lack of an adverse effect on a defendant's right to a fair trial, reversal under the obvious error doctrine is not warranted.

Desert Partners IV, L.P., et al. v. Benson, et al. 2014 ND 192
Docket No.: 20140066
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: The N.D. Rules of Court are ambiguous as to whether facsimile transmission is an acceptable method of filing for self-represented litigants.
A district court violates N.D.R.Ct. 3.2 when it holds a mandatory hearing requested under N.D.R.Ct. 3.2(a)(3) without giving parties notice of the hearing.

State v. Everett (Cross-ref.w/20070074, 20080063, 20090244, 20100222, 20100392) 2014 ND 191
Docket No.: 20140102
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: An order denying a petition alleging abuse of process and violation of due process in a criminal conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6) and (7).

State v. Tosseth 2014 ND 190
Docket No.: 20140098
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A district court denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4) and (7).

State v. Tveito 2014 ND 189
Docket No.: 20140075
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court denial of a motion to suppress the results of a blood-alcohol test is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Tveito v. N.D. Dep't of Transportation 2014 ND 188
Docket No.: 20140132
Filing Date: 10/28/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: A district court judgment affirming a Department of Transportation hearing officer's order suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5), (7).

Ruddell v. State (cross reference with 20120369) 2014 ND 187
Docket No.: 20140073
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Pankowski v. State 2014 ND 186
Docket No.: 20140094
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Hamilton, et al., v. Woll, et al. (cross-ref. w/20120269) 2014 ND 185
Docket No.: 20140011
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A judgment construing deeds and quieting title is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 1, Northeast Central Judicial District (cross ref. 352) 2014 ND 184
Docket No.: 20140310
Filing Date: 10/21/2014
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeships retained at Grand Forks.

Matter of Carter (CONFIDENTIAL) 2014 ND 183
Docket No.: 20140335
Filing Date: 10/2/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer transferred to incapacitated status.

Crocker, et al. v. Morales-Santana, et al. 2014 ND 182
Docket No.: 20140021
Filing Date: 9/29/2014
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: A motor carrier may be vicariously liable for the negligence of its statutory employees.
An employer may be liable for an independent contractor's work if the employer retains control over the independent contractor's work.

Rasnic v. ConocoPhillips Co., et al. 2014 ND 181
Docket No.: 20140032
Filing Date: 9/26/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A mortgage is a contract and is construed under rules of contract interpretation.
Written contracts are construed to give effect to the parties' mutual intentions when the contract was executed, and the parties' mutual intentions must be ascertained from the writing alone, if possible.

State v. Ostby 2014 ND 180
Docket No.: 20130411
Filing Date: 9/23/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: An order denying a suppression motion is not appealable in itself, but is reviewable in an appeal from the subsequently entered criminal judgment.
Traffic violations, even if pretextual, provide a lawful basis to conduct an investigatory vehicle stop, and evidence discovered during those stops is admissible.
Unless a criminal defendant shows bad faith on the part of law enforcement, failure to preserve potentially useful evidence does not violate the defendant's due process rights.

Golden Eye Resources, LLC v. Ganske, et al. 2014 ND 179
Docket No.: 20130219
Filing Date: 9/23/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: If a party's apparent free consent to a contract has been obtained by fraud, the defrauded party may rescind the contract.
The parol evidence rule does not apply when a party alleges to have been fraudulently induced to enter into a contract, and parol or extrinsic evidence is admissible to prove fraud.
Statements of opinion, sales talk, or puffery do not constitute fraud, but the making of an affirmative statement of fact, known to be untrue, with intent to induce another to enter into a contract is actionable fraud.
The making of a promise with no intention of performing it with intent to induce another to enter into a contract is actual fraud which nullifies free consent to the contract.
Whether a party is entitled to a jury trial in a rescission action depends upon whether it is an action at law or a claim in equity.

Interest of Voisine (cross-ref. w/20090182, 20100163 & 20120325) 2014 ND 178
Docket No.: 20140051
Filing Date: 9/23/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

State v. Grzeskowiak (cross reference w/20130396) 2014 ND 177
Docket No.: 20140126
Filing Date: 9/23/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Denial of a motion for an extension of time to file an appeal of a criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Disciplinary Board v. Meidinger 2014 ND 176
Docket No.: 20140131
Filing Date: 9/18/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Western Horizons Living Centers v. Feland, et al. 2014 ND 175
Docket No.: 20140184
Filing Date: 9/2/2014
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: VandeWalle, Gerald

Highlight: The Supreme Court exercises discretionary authority to issue supervisory writs rarely and cautiously to rectify errors and prevent injustice in extraordinary cases in which no adequate alterative remedy exists.
Before compelling discovery, a district court must conduct an in camera review of information which, on its face, raises claims involving lawyer-client privilege or communications during settlement negotiations.

Lindsey v. State 2014 ND 174
Docket No.: 20140036
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The affirmative defense of laches, when properly raised and supported, presents a question of fact and is inappropriate for a district court to decide on summary judgment.
When a post-conviction relief applicant seeks to withdraw a guilty plea, the district court looks to whether relief is necessary to correct a manifest injustice.

Olsen v. State 2014 ND 173
Docket No.: 20140009
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: When the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance for purposes of an ineffective assistance of counsel claim.

Interest of T.R.C. (CONFIDENTIAL) 2014 ND 172
Docket No.: 20140206
Filing Date: 8/28/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: An appellate court cannot properly review a decision if the trial court does not provide an adequate explanation of the basis for its decision.

Rath v. Rath (cross-ref. w/20130025, 20130184 & 20130327) 2014 ND 171
Docket No.: 20140012
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decision on whether a contempt has been committed and remedial sanctions are warranted lies within its sound discretion, which will not be overturned 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.

Krueger v. Grand Forks County 2014 ND 170
Docket No.: 20130372
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: When parties move to compel discovery, they are required to include certification that they have in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.
A party has a duty to supplement its responses to interrogatories if the response is incomplete or incorrect, and supplemental responses must be made within a reasonable time before trial.

S.L.W. v. Huss 2014 ND 169
Docket No.: 20130425
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Under the hearsay exception for a child's statement about sexual abuse, if a child is unavailable as a witness there must be "corroborative evidence of the act which is the subject of the statement," in addition to guarantees of trustworthiness, for the statement to be admissible in a civil proceeding.

Disciplinary Board v. Kellington (Consolidated w/ 20140081) 2014 ND 168
Docket No.: 20140080
Filing Date: 8/28/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: After misconduct has been established, a hearing panel may, but is not required to consider mitigating factors when deciding what sanction to impose on a lawyer.
To revoke a lawyer's probation which has been implemented in a prior disciplinary proceeding, the violation must be proven by a preponderance of the evidence.

Interest of C.S.K. (Confidential) (consolidated w/ 20140234, 20140235) 2014 ND 167
Docket No.: 20140205
Filing Date: 8/6/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

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

State v. Klein (cross-referenced w/20000285 & 20130139) 2014 ND 166
Docket No.: 20140001
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A sentencing court may correct an illegal sentence at any time.
A sentence is illegal when it exceeds the maximum term authorized by statute.
A sentencing court has continuing power to modify the conditions of probation.

State v. Stewart 2014 ND 165
Docket No.: 20130374
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The exigent circumstances or emergency exception to the warrant requirement is satisfied only if the police have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
The inevitable discovery doctrine does not apply when the warrant requirement is simply bypassed without exigent circumstances.

State v. Yarbro 2014 ND 164
Docket No.: 20130311
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: After the denial of a pretrial motion to exclude evidence, the party must renew the objection to the admission of the evidence at trial, and the failure to object at trial is a waiver.
When a defendant moves for a new trial, the defendant is limited on appeal to the grounds presented in the district court in the motion for a new trial.
A juror may not testify about statements occurring during the course of a jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information by the jury or improper outside influence.

Inwards v. WSI 2014 ND 163
Docket No.: 20140015
Filing Date: 7/31/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: On a showing of good cause, a court may grant appropriate relief if electronic filing or electronic service was not completed due to technical problems.
Generally, the decision of an administrative agency, as to a matter within its power, is operative during the disposition of proceedings until stayed, reversed or suspended, even if that order is erroneously or improvidently granted.

State v. Gatlin 2014 ND 162
Docket No.: 20140083
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A house guest who is not present and does not flatly refuse a search at the time another individual with actual or apparent authority consents loses out on his opportunity to exclude evidence gathered in a search of the area in which the guest had a reasonable expectation of privacy.
Apparent authority exists where a person of reasonable caution would believe, on the basis of the facts available to the officer at the time of consent, that the consenting party had authority over the place or thing to be searched.

Haynes v. Dep't of Transportation 2014 ND 161
Docket No.: 20140047
Filing Date: 7/31/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The license of a person licensed in another state may still be revoked for refusing to submit to BAC testing if there is a delay in issuing the temporary operator's permit and the person is not prejudiced by the delay.
Personal service is not required for issuance of a temporary operator's permit.
The issuance of a temporary operator's permit to a person who refused testing is a basic and mandatory requirement of N.D.C.C. 39-20-03.2.

Travelers Cas. Ins. Co. of America, et al. v. Williams Co. Construction, et al. 2014 ND 160
Docket No.: 20140020
Filing Date: 7/31/2014
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.
A motion for a new trial based on a claim of insufficient evidence is reviewed under the abuse of discretion standard.

State v. Brenny 2014 ND 159
Docket No.: 20140013
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

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

Frank v. N.D. Dep't of Transportation 2014 ND 158
Docket No.: 20140082
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Certain foundational elements must be shown, by some form of evidence, in order to admit an analytical report under N.D.C.C. 39-20-07.
Evidence on the record must show the methods, devices, and individual administering analytical tests were approved by the director of the state crime laboratory or the director's designee.

Dickinson Education Association v. Dickinson Public School District 2014 ND 157
Docket No.: 20130350
Filing Date: 7/19/2014
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: VandeWalle, Gerald

Highlight: A petitioner seeking a writ of mandamus must show a clear legal right to performance of the particular act sought to be compelled by the writ. Whether to issue a writ of mandamus is left to the district court's sound discretion.
A school district may unilaterally issue a last-offer contract, but the last-offer contract is limited to contractual provisions for only the one school year under negotiation and may not contain provisions applicable to future school years.

State v. Ratliff (consolidated w/ 20130341 & 20130346) 2014 ND 156
Docket No.: 20130332
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: Denial of a motion for new trial is reviewed under the abuse of discretion standard.
Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial.

Gullickson v. State 2014 ND 155
Docket No.: 20130397
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.
Courts need not address both elements of the ineffective assistance of counsel test, and if a court can dispose of the case by addressing only one element, it imay do so.
Whether the failure to notify a client that a charge was improperly entered constitutes prejudice is subject to a fact-specific analysis of what happened.
An attorney's not filing a motion to suppress evidence discovered upon execution of a search warrant is ineffective assistance of counsel only if the attorney's representation fell below an objective standard of reasonableness constituting prejudice.

State v. Boehm 2014 ND 154
Docket No.: 20140045
Filing Date: 7/19/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The statutory requirements to request a preliminary breath test are: (1) a traffic violation has occurred; and (2) in conjunction with the violation, the officer, on the basis of observation, formulates an opinion the driver's body contains alcohol.
Probable cause to arrest an individual for DUI exists when the officer smells an odor of alcohol coming from the vehicle; observes the individual's red, bloodshot, watery eyes; the individual admits to consuming alcoholic beverages; and the individual fails a sobriety test.
The voluntariness of consent is a finding of fact.
Consent is not coerced because a law enforcement officer advised an individual of the implied consent law.
A blood test is not unreasonable because it was conducted in a place other than a hospital.

State v. Rahier (Consolidated w/ 20140041) 2014 ND 153
Docket No.: 20140004
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: A law enforcement officer may have reasonable and articulable suspicion for investigatory stop when observing a vehicle circling an area coupled with an additional factor that indicates criminal activity is afoot.

State v. Smith 2014 ND 152
Docket No.: 20130398
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: Consent is an exception to the warrant requirement.
The voluntariness of consent is determined under the totality of the circumstances.
An advisory, provided by a law enforcement officer, that informs an individual of the implied consent law, including the consequences of refusal, does not constitute per se coercion.

Baatz v. State (cross-reference w/20130066) 2014 ND 151
Docket No.: 20140018
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: In the absence of a specific instruction by the Supreme Court, an individual applying for postconviction relief is not entitled to an additional evidentiary hearing when the case is remanded to the district court.
A defendant has the burden of establishing he qualifies for appointment of counsel.
Issues not before the district court on remand will not be considered on appeal.

Dakota Heritage Bank v. Pankonin, et al. (cross-reference w/20120335) 2014 ND 150
Docket No.: 20140016
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Notice of entry of judgment that is not properly served does not start the period for filing an appeal.
A judgment is not enforceable until notice of entry of judgment is properly served or the party it is being enforced against has actual knowledge of entry of the judgment.

Shae v. Shae 2014 ND 149
Docket No.: 20130282
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may deviate upward from the presumptively correct child support guidline amount when an obligor that earns more than $12,500 per month.
The presumptively correct amount of child support is rebutted if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children. Findings must support the specific upward deviation, rather than applying a straight percentage of the obligor's monthly income.
Net income received by an obligor from all sources must be considered in the determination of available money for child support before the appropriate upward deviation may be determined.
Net income is calculated by determining an obligor's gross income and then allowing for deductions. Gross income includes income from any source, in any form.

Rustad v. Rustad (cross-reference w/20130105) 2014 ND 148
Docket No.: 20140014
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's decision on primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
A party may not present issues in a second appeal which were resolved in the first appeal or which would have been resolved had they been presented in the first appeal.

Higginbotham v. WSI, et al. 2014 ND 147
Docket No.: 20140019
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Whether a potential commute or relocation is unreasonably expensive cannot be determined when the employee has not yet searched for or been offered employment.
Functional limitations at the time the claimant was performing a job should be considered when determining whether an employment option presents an opportunity for substantial gainful employment.
When there is no evidence of a functional limitation during the development of a vocational rehabilitation plan, WSI should develop the plan without considering the alleged limitation.

Finstad, et al. v. Ransom-Sargent Water Users, Inc., et al. 2014 ND 146
Docket No.: 20130222
Filing Date: 7/19/2014
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: North Dakota law does not recognize the economic duress doctrine.
A provision of a contract must in and of itself be inherently illegal to be unlawful.

Nieuwenhuis v. Nieuwenhuis 2014 ND 145
Docket No.: 20130394
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Duress occurs when an individual acts as a result of coercion or when the individual's actions are involuntary.
A district court abuses its discretion by vacating only portions of a judgment.
Implied findings are insufficient for an award of attorney's fees.

Middleton v. State 2014 ND 144
Docket No.: 20130395
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To demonstrate prejudice in an ineffective assistance of counsel claim, the defendant must establish a reasonable probability that but for counsel's errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result.
A motion for new trial must specify the alleged defects and errors with particularity. The defendant must assert all alleged errors in a motion for new trial.
If a defendant moves for a new trial, he is limited on appeal to the grounds presented to the district court in the motion.
A per se presumption of prejudice is reserved to the narrow set of cases where counsel fails to perfect a requested appeal.

Estates of Vizenor and Vizenor v. Mesling, et al. 2014 ND 143
Docket No.: 20130161
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A power of attorney is a written instrument that authorizes one person to act as another person's agent. An agency created under a durable power of attorney also entails a confidential relationship and fiduciary duties.
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, including gifts, 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.

Vetter v. State (cross-reference w/20120015) 2014 ND 142
Docket No.: 20140028
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Comes v. State 2014 ND 141
Docket No.: 20140068
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Towry 2014 ND 140
Docket No.: 20130423
Filing Date: 7/14/2014
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Reciprocal Discipline of Wynne 2014 ND 139
Docket No.: 20140227
Filing Date: 7/14/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Hering v. WSI, et al. 2014 ND 138
Docket No.: 20140030
Filing Date: 7/14/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative law judge's order, which affirmed WSI's order denying benefits to a claimant, is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Hann v. Disciplinary Board 2014 ND 137
Docket No.: 20140171
Filing Date: 7/2/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstated.

State v. Cook 2014 ND 136
Docket No.: 20140040
Filing Date: 6/27/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: An appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, the issue will not be reviewed.
When an appellant fails to comply with the rules of appellate procedure so that meaningful review of his issues is impossible, the appeal may be dismissed.

Matter of Emelia Hirsch Trust 2014 ND 135
Docket No.: 20130365
Filing Date: 6/26/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court has discretion to determine claims are frivolous and order payment of attorney's fees.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation evidencing bad faith.

State v. Rogers 2014 ND 134
Docket No.: 20130357
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Whether a suspect is in custody, and therefore entitled to Miranda warnings, is a mixed question of fact and law which is fully reviewable on appeal.
Law enforcement is required to give Miranda warnings only when a person is subject to custodial interrogation.
A suspect is not in police custody simply because he or she is under a medical hold and does not have the ability to leave the hospital.

Lund v. Lund, et al. (cross reference with 20120210) 2014 ND 133
Docket No.: 20130373
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: Whether an implied-in-fact contract existed between parties is a question of fact subject to the clearly erroneous rule.
Unjust enrichment is an equitable doctrine based upon a quasi or constructive contract implied by law to prevent a person from being unjustly enriched at the expense of another.

Mairs v. Mairs 2014 ND 132
Docket No.: 20130293
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Any issue regarding whether a prima facie case has been established for modification of primary residential responsibility is moot once an evidentiary hearing is held.
Although a separate finding is not required for each statutory best-interest factor, the court's findings must contain sufficient specificity to show the factual basis for the residential responsibility decision.