Opinions

Disciplinary Board v. Craft 2013 ND 222
Docket No.: 20130318
Filing Date: 12/4/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Disciplinary Board v. Wolff (Consol. w/ 20130268-20130273) 2013 ND 221
Docket No.: 20130267
Filing Date: 12/4/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Reciprocal Discipline of Kalk 2013 ND 220
Docket No.: 20130249
Filing Date: 12/4/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Wagner v. Crossland Construction Company, Inc., et al. 2013 ND 219
Docket No.: 20130056
Filing Date: 11/25/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Use of the words "subject to" in a warranty deed connotes a limitation on the grantor's warranty and not a reservation of rights.
Although the district court's underlying findings of fact in implied easement cases are subject to the clearly erroneous standard of review, whether the underlying facts support the existence of an implied easement is a question of law subject to de novo review.

Van Sickle, et al. v. Hallmark & Assoc., Inc., et al. (cross-reference 20070154 2013 ND 218
Docket No.: 20130003
Filing Date: 11/25/2013
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: In a proceeding under N.D.C.C. 47-16-39.1 to recover unpaid oil and gas royalties, a "prevailing party" is entitled to reasonable attorney's fees.
The amount of statutory interest to be awarded on unpaid royalties is calculated using simple interest, rather than compound interest.
A corporation that purchases the assets of another corporation does not succeed to the liabilities of the selling corporation, subject to certain recognized exceptions, such as when there is an express or an implied agreement to assume the transferor's liability.

Oakland v. Bowman, et al. 2013 ND 217
Docket No.: 20130142
Filing Date: 11/25/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: North Dakota has not adopted equitable tolling as an exception to a statute of limitations.
When interpreting a statute, it must be presumed the legislature intended all that it said, said all that it intended to say, and meant what it has plainly expressed.
Section 1-01-06, N.D.C.C., provides that "there is no common law in any case in which the law is declared by code."

Ford Motor Credit Co. v. Halvorson 2013 ND 216
Docket No.: 20130188
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Debtor/Creditor
Author: VandeWalle, Gerald

Highlight: A party may renew a judgment by either complying with the affidavit procedure under N.D.C.C. 28-20-21 or commencing a separate action on the judgment.

Estates of Shubert 2013 ND 215
Docket No.: 20120276
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: An appeal is moot if no actual controversy exists because subsequent events have made it impossible for the court to provide effective relief.
In an unsupervised probate of an estate, each proceeding before a court is independent of any other proceeding involving the same estate, and a concluding order on a petition to remove a personal representative is appealable without a certification under N.D.R.Civ.P. 54(b).
The decision on a petition to remove a personal representative lies within the district court's discretion.

Moore v. State 2013 ND 214
Docket No.: 20130196
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: On appeal of a summary dismissal of an application for postconviction relief, a reviewing court must determine whether or not the information available to the district court, when viewed in a light most favorable to the opposing party, precludes the existence of a genuine issue of material fact and entitles the moving party to summary dismissal as a matter of law.
A claim of ineffective assistance of counsel is more effectively presented in a postconviction proceeding than in a direct appeal.

State v. Blagen 2013 ND 213
Docket No.: 20130203
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of marijuana with intent to deliver and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Wald v. Holmes 2013 ND 212
Docket No.: 20130124
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The doctrine of res judicata should not be strictly applied to preclude the trial court from hearing for the first time relevant primary residential responsibility-related evidence bearing on considerations of what is in a child's best interests.
A truthful affidavit may not be subsequently withdrawn from evidence when the affiant seeks withdrawal merely because she no longer wishes to be involved in a case.
In determining whether a prima facie case justifying modification of primary residential responsibility has been established, unless the opposing party's counter-affidavits conclusively establish the moving party's allegations have no credibility, the court must accept the truth of the moving party's allegations.
A district court's award of attorney fees is abuse of discretion when the district court did not apply the correct law in deciding substantive issues, and a party's claims were not frivolous when examined under the correct legal standards.

Adoption of I.R.R. (CONFIDENTIAL) 2013 ND 211
Docket No.: 20130287
Filing Date: 11/21/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: A parent's parental rights may be terminated by a court order in connection with an adoption action if the parent abandoned the child.

Pesanti v. N.D. Dep't of Transportation 2013 ND 210
Docket No.: 20130116
Filing Date: 11/21/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Continuous and gradual weaving significantly more pronounced than "slight" weaving, engine revving, and the time of day an incident occurred may all contribute to the totality of the circumstances providing an officer with a reasonable and articulable suspicion for a traffic stop.

Sateren v. Sateren (cross-referenced w/20120192) 2013 ND 209
Docket No.: 20130220
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: District court order explaining and reaffirming an earlier order denying reallocation of marital property and debt in a divorce case is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Klamm 2013 ND 208
Docket No.: 20130136
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment after a defendant conditionally pled guilty to driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of T.D., a Child (CONFIDENTIAL) 2013 ND 207
Docket No.: 20130248
Filing Date: 11/21/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court judgment terminating father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of H.D. (Confidential) 2013 ND 206
Docket No.: 20130320
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

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

Interest of C.N. (CONFIDENTIAL) 2013 ND 205
Docket No.: 20130231
Filing Date: 11/21/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: As part of a deprived child analysis, a parent must demonstrate present capability, or capability within the near future, to be an adequate parent.
The domestic relations chapter providing for continued child support payments despite the termination of parental rights may be read in concert with the termination of parental rights statute under the Uniform Juvenile Court Act, which does not contain such a provision.

State, et al. v. Eli 2013 ND 204
Docket No.: 20130227
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Default judgment imputing minimum wage as basis for child support calculation for unemployed incarcerated obligor summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Newman v. State 2013 ND 203
Docket No.: 20130258
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Klamm 2013 ND 202
Docket No.: 20130163
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court judgment entered after a conditional guilty plea to driving under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3), and (7).

Davis v. State 2013 ND 201
Docket No.: 20130073
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

City of Fargo v. White 2013 ND 200
Docket No.: 20130191
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A district court's summary affirmance of a municipal court judgment under N.D.R.Crim.P. 37(l) may not occur at proceedings which occur before the trial anew.

State v. Lattergrass 2013 ND 199
Docket No.: 20130146
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment for simple assault on a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Peterson v. Pierce, et al. 2013 ND 198
Docket No.: 20130164
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: In a dispute over a lost rental payment, the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Lang 2013 ND 197
Docket No.: 20130099
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Conviction for theft of property is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Danuser v. IDA Marketing Corp., et al. 2013 ND 196
Docket No.: 20120443
Filing Date: 10/30/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A director in a closely-held corporation may be liable to a single shareholder for actions that unfairly prejudice the shareholder.
A district court has broad equitable powers to remedy violations of duties by directors, and the court's determination of remedies is reviewed under the abuse-of-discretion standard.

State v. Evans 2013 ND 195
Docket No.: 20130121
Filing Date: 10/30/2013
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Lay witness testimony, in the form of an opinion, must be rationally based on the perception of the witness and also helpful to the jury's determination of a fact in question.
When a police officer simply relies on information gathered by other officers on which to base his opinion, he is not offering lay opinion testimony as N.D.R.Ev. 701 intends.
The harmless error standard is applied to a lay witness testifying as an expert.

State v. Mossey 2013 ND 194
Docket No.: 20130138
Filing Date: 10/23/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction for class B felony luring a minor by computer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Hillerson, et al. v. Bismarck Public Schools, et al. 2013 ND 193
Docket No.: 20130101
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: When reasonable differences of opinion exist as to the terms of a release of liability provision in a contract, the release of liability provision is ambiguous, and summary judgment is not appropriate.
When a release of liability provision is ambiguous, a question of fact exists as to the parties' intent, and extrinsic evidence may be offered to help determine the parties' intent.

Kukla v. Kukla 2013 ND 192
Docket No.: 20120451
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A party moving for relief from a judgment under N.D.R.Civ.P. 60(b) has the burden to establish sufficient grounds for disturbing the finality of the decree, and relief should be granted only in exceptional circumstances.
Whether a motion for relief from judgment has been timely made is within the district court's discretion and will not be overturned on appeal unless the court abuses its discretion.

Matter of Hehn (consolidated w/ 20130143) 2013 ND 191
Docket No.: 20130055
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A person civilly committed as a sexually dangerous individual is entitled as a matter of right to only one discharge hearing within a twelve-month period.

Matter of Rubey (cross-reference 20100292 & 20110322) 2013 ND 190
Docket No.: 20130093
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A proponent of excluded evidence must make an offer of proof to the trial court and show prejudice from the restriction to show an abuse of discretion.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.

State ex rel. City of Marion v. Alber 2013 ND 189
Docket No.: 20130094
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A district court does not abuse its discretion when a finding of willful contempt is supported by the evidence and inferences from the evidence.
Findings of fact and conclusions of law are sufficient for a finding of contempt when the district court's statements clearly demonstrate the basis for its decision.
Methods of objection, such as motions to strike, are available post-hearing and must be made to preserve argument on appeal contesting the submission of post-hearing evidence.

State v. Samshal 2013 ND 188
Docket No.: 20120436
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: In criminal cases, a defendant's testimony about statements made by the victim of the alleged offense, offered to establish the defendant's state of mind, are not hearsay because they are not offered to prove the truth of the matter asserted.
A defendant is not entitled to assert a defense of premises claim when the victim and defendant reside in the same premises and the victim was not unlawfully within the premises.

Empower the Taxpayer, et al. v. Fong, et al.(cross-ref w/20120191, 197, 444 2013 ND 187
Docket No.: 20130011
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A reviewing court cannot perform its appellate function unless it is able to understand the basis for the trial court's decision, and therefore the trial court must provide an adequate explanation of the evidentiary and legal basis for its decision.
A court may not impose monetary sanctions against a represented party for bringing a frivolous action in violation of N.D.R.Civ.P. 11(b)(2).

Kershaw v. WSI 2013 ND 186
Docket No.: 20130131
Filing Date: 10/22/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: Separation of powers prevents the Supreme Court from making independent findings of fact or substituting its judgment for that of the agency fact finder.
In WSI cases, a presumption may not be established favoring one doctor's opinion over another's. To resolve a conflicting medical opinion, an organization may consider the nature and length of the treatment relationship, the amount of evidence in support of the opinion, the opinion's consistency with the record, possible bias, whether the doctor specializes in the issues relevant to the opinion, and other relevant factors.

Rustad v. Rustad 2013 ND 185
Docket No.: 20130105
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In determining primary residential responsibility, the district court is required to consider all of the best interest factors and make findings with sufficient specificity to enable the reviewing court to understand the factual basis for the court's decision.
Parental alienation is a significant factor in determining primary residential responsibility.

State v. Howard 2013 ND 184
Docket No.: 20120422
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Issues not raised at the trial court level, even constitutional issues, generally will not be addressed for the first time on appeal.
The district court should generally wait to rule on a motion for a change of venue until after voir dire has been conducted to determine whether it is possible to select a fair and impartial jury.
In reviewing a sufficiency of the evidence claim, a criminal judgment will be affirmed if the judgment is supported by substantial evidence.

State v. Whitman 2013 ND 183
Docket No.: 20120374
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: Plain error under N.D.R.Crim.P. 52(b) may be noticed by the Court on its own motion.
N.D.R.App.P. 2 may be invoked to avoid manifest injustice and provide a defendant with the same relief granted his codefendant.
A defendant's use of the word lawyer during an interview is ambiguous when coupled with conduct evidencing the defendant wishes not to remain silent.

State v. Arot 2013 ND 182
Docket No.: 20120379
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: For the district court to have jurisdiction, the State must prove, by the preponderance of the evidence, that a defendant is not a minor.
There is no irrebuttable presumption that a defendant's date of birth stated on official documents is his actual date of birth.

State v. Johnson 2013 ND 181
Docket No.: 20130144
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Beauclair v. Vanderveer 2013 ND 180
Docket No.: 20130115
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Divorce judgment distributing the parties' property under the terms of a premarital agreement is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sweeney v. Kirby (cross-reference w/20120339) 2013 ND 179
Docket No.: 20130152
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Denial of a motion to modify primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Clements 2013 ND 178
Docket No.: 20130140
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A crimnal judgment for disorderly conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Goulet 2013 ND 177
Docket No.: 20130148
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Walstad v. Walstad (cross-reference 20120059) 2013 ND 176
Docket No.: 20130023
Filing Date: 10/11/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: An independent action in equity is available only to prevent a grave miscarriage of justice.
To award attorney fees and costs under N.D.C.C. 14-05-23, the trial court must balance one party's needs against the other party's ability to pay and whether the action of either party unreasonably increased litigation costs, but in an independent action in equity for fraudulent concealment of marital assets, balancing one party's ability to pay with the other's needs is secondary to considering whether the actions of one party unreasonably increased litigation costs.
The secreting of assets in a divorce action is a clear and blatant form of economic misconduct, and it also implicates economic misconduct in the form of intentional non-disclosure of substantial marital assets.

Rolla v. Tank, et al. 2013 ND 175
Docket No.: 20130035
Filing Date: 10/2/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A caption on a deed is of no effect when the conveyance is clear.
Courts will not strain to find an ambiguity where none appears on the face of the instrument.

Holte v. Holte 2013 ND 174
Docket No.: 20120312
Filing Date: 9/30/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: When a substantial marital debt has been excluded from the marital estate, it is not possible to determine whether the district court would have reached the same result in allocating the assets and debts had it included the debt.
Trusts are generally included as marital property subject to equitable distribution by the district court and may be divided at the time of divorce either by awarding the present value of the benefits or, when the present valuation is too speculative, by awarding a percentage of future payments.
Marital property is ordinarily valued as of the date of trial.

Seibold v. Leverington (cross-reference w/ 20110152) 2013 ND 173
Docket No.: 20130026
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.
To modify parenting time, the moving party must demonstrate that a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the best interests of the child. Parents are required to submit a parenting plan to the district court to be included in the court's decree, but when the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interests of the child.

Baatz v. State 2013 ND 172
Docket No.: 20130066
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Questions raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, because the decision on the first appeal, whether right or wrong, is the law of the case.

Interest of Graham 2013 ND 171
Docket No.: 20130090
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Res judicata does not apply to the second element of the sexually dangerous individual analysis, determining whether a committed individual has a congenital or acquired condition manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction, when evaluating a committed sexually dangerous individual's petition for discharge.

Stark County v. A motor vehicle, et al. 2013 ND 170
Docket No.: 20130102
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Movement of a vehicle for weighing at the direction of a police officer is not movement for purposes of a weight-restriction violation.

McColl Farms v. Pflaum 2013 ND 169
Docket No.: 20130053
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A complaint should not be dismissed for failure to state a claim unless it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.
Although a party is generally not entitled to an equitable remedy if there is an adequate legal remedy, a party may seek relief and proceed on both equitable and legal claims.
In summary judgment proceedings, a court may properly refuse to consider an attorney's affidavit if the affidavit is not based on the attorney's personal knowledge.
A party resisting a motion for summary judgment cannot merely rely on the pleadings and briefs, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.

Hallin, et al. v. Lyngstad, et al. 2013 ND 168
Docket No.: 20120354
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The language of the deed, if clear and explicit, governs its interpretation, and the parties' mutual intentions must be ascertained from the four corners of the deed, if possible.
Generally, under the common law, a reservation or exception in a deed of conveyance cannot operate as a conveyance to a third party who is a stranger to the title or deed. However, an exception or reservation in a deed may be effective to convey property to a spouse who does not have an interest in the property but joins in the deed's execution when that is determined to have been the grantor's intent.

Anderson v. Jenkins 2013 ND 167
Docket No.: 20130078
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may conclude the moving party failed to establish a prima facie case for change of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
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.

State v. Zander 2013 ND 166
Docket No.: 20130069
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Possession of a controlled substance conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

State v. Moran 2013 ND 165
Docket No.: 20130061
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of marijuana with intent to deliver and possession of marijuana paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Rebel v. Rebel (consolidated with 20130033) 2013 ND 164
Docket No.: 20130032
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The district court may grant a disorderly conduct restraining order if the petitioner complies with the statutory procedural requirements and if, after a hearing, the court finds reasonable grounds to believe the respondent has engaged in disorderly conduct.
Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person but does not include constitutionally protected activity. The constitutional right to freedom of speech does not protect "fighting words" that tend to incite an immediate breach of the peace.

State v. Nefzger 2013 ND 163
Docket No.: 20130085
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment after a defendant conditionally pled guilty to drug-related charges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Ratteray 2013 ND 162
Docket No.: 20120446
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition and creation of sexually expressive images is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Interest of C.R. 2013 ND 161
Docket No.: 20130235
Filing Date: 9/25/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court judgment terminating a father's parental rights is affirmed under N.D.R.App.P. 35.1(a)(7).

Thimjon Farms Partnership, et al. v. First International Bank & Trust 2013 ND 160
Docket No.: 20120440
Filing Date: 9/6/2013
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Interference with an existing contract is justified if done for legitimate business reasons and without malice.
Unlawful interference with business requires that the defendant committed a tortious or otherwise unlawful act independent of the interference.
Equitable or promissory estoppel requires reliance on the defendant's representation.
The essential element of recovery for unjust enrichment is the receipt of a benefit by a defendant which would be inequitable to retain without paying for its value.
A plaintiff claiming conversion must show he had an interest in the property at the time of the conversion that entitled him to possession.
Deceit requires misrepresentation inducing the plaintiff to alter his position to his detriment.

Four Seasons Healthcare Center, Inc. v. Linderkamp, et al. (cons. w/20120433) 2013 ND 159
Docket No.: 20120432
Filing Date: 9/4/2013
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: Parol evidence may be used to establish the consideration for the conveyance of land.
A district court's findings of fact will not be overturned on appeal unless the findings are clearly erroneous, and under that standard, an appellate court may not reweigh evidence or reassess the credibility of witnesses.

North Central Electric Coop., Inc. v. Public Service Commission, et al. 2013 ND 158
Docket No.: 20130075
Filing Date: 9/3/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: A state may not assert regulatory authority over non-Indians on Indian-owned land within a reservation if the state's action infringes on tribal self-government.

Daniels v. Ziegler 2013 ND 157
Docket No.: 20130044
Filing Date: 8/29/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: A person appealing to the district court from an administrative decision to suspend driving privileges must file specifications of error that identify what matters are truly at issue with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.
The practice of incorporating by reference in an appellate brief arguments previously presented to the district court does not adequately raise those issues for consideration by the Supreme Court.

Brash v. Gulleson 2013 ND 156
Docket No.: 20120313
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Failure of consideration is an affirmative defense that arises when a valid contract has been formed, but the performance bargained for has not been rendered.
Failure of consideration is a question of fact which will not be disturbed on appeal unless clearly erroneous.
Although parol evidence is generally not admissible to vary or contradict the terms of a written contract, it is admissible to prove a failure of consideration.

State v. Nickel (consolidated w/20120418) 2013 ND 155
Docket No.: 20120395
Filing Date: 8/29/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The protection against unreasonable searches and seizures proscribes only government action.
A warrantless search or seizure is constitutionally impermissible unless it falls within a recognized exception to the warrant requirement.
Plain view alone does not justify the warrantless seizure of evidence, and no amount of probable cause can justify a warrantless seizure of evidence absent exigent circumstances.

Bloomquist v. The Goose River Bank, et al. 2013 ND 154
Docket No.: 20130059
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An oral agreement to loan money providing for repayment extending for a period longer than one year, and which does not include express terms governing prepayment, is barred by the statute of frauds.
Partial performance will remove an oral agreement from the statute of frauds only if it unmistakably points to and is consistent only with the existence of the oral agreement and cannot be accounted for on some other hypothesis.

Pifer v. McDermott (cross-reference 20110287) 2013 ND 153
Docket No.: 20130027
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A person may gift an option to purchase real property.
If no consideration is given for an option, the option may be withdrawn at any time before acceptance.
An option to purchase real property given without consideration is valid and enforceable if the option agreement was unconditionally accepted within the time prescribed therein and no attempt was made to withdraw it before acceptance.
Courts, whether trial or appellate, have no duty to search the record for evidence that might defeat a summary judgment motion.

Solid Comfort, Inc. v. Hatchett Hospitality, Inc., et al. 2013 ND 152
Docket No.: 20120415
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: If personal jurisdiction us challenged, the plaintiff bears the burden of proving jurisdiction exists. The plaintiff must make a prima facie showing of jurisdiction to defeat a motion to dismiss for lack of personal jurisdiction. If the court relies only on pleadings and affidavits, the court must look at the facts in the light most favorable to the plaintiff.
The court first must decide whether the requirements of the state's long-arm provision are satisfied and, if so, then must decide whether the exercise of personal jurisdiction comports with due process.
Review of a district court's decision on personal jurisdiction presents a question of law, reviewed under the de novo standard.

Disciplinary Board v. Lee 2013 ND 151
Docket No.: 20130017
Filing Date: 8/29/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The purpose of the prohibition against a lawyer charging an unreasonable fee is to protect clients and the public from excessive fees which exceed the bounds of reasonableness in light of the amount and quality of the work performed, the results obtained, and the fees customarily charged in the locality for similar legal services.

Estate of Cashmore (cross reference with 20090315) 2013 ND 150
Docket No.: 20130012
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: A remedial sanction for contempt, requires the alleged contemnor receive notice and a hearing.
Affirmance of a judgment on appeal leaves the judgment in the same state as if no appeal had been taken.
A verified or sworn statement closing an estate is ineffective if the personal representative fails to acknowledge a known and outstanding claim.

Johnson, et al. v. Finkle, et al. 2013 ND 149
Docket No.: 20130047
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Under the Duhig rationale, a grantor cannot grant and reserve the same mineral interest, and if a grantor does not own a large enough mineral interest to satisfy both the grant and the reservation, the grant must be satisfied first.
The Duhig rationale applies to a grantor's overconveyance of mineral interests, including when the mineral interests are transferred by a contract for deed and subsequent warranty deed.

Datz v. Dosch (cross-reference w/ 20120167) 2013 ND 148
Docket No.: 20120435
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The district court's findings under the statutory best interest of the child factors must contain sufficient specificity to show the factual basis for the court's decision.
Evidence of domestic violence must be considered by a court when weighing the statutory best interest of the child factors.

Bell, et al. v. Pro Tune Plus, et al. 2013 ND 147
Docket No.: 20130068
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court does not have the authority to remand an action properly removed from the small claims court.
A plaintiff has standing to appeal an order of remand to small claims court because the rights afforded in the district court vested in both parties immediately upon removal.
An order of remand to small claims court is not analogous to a traditional dismissal without prejudice, because a procedural barrier exists to prevent the case being filed again in the district court.

Interest of Johnson 2013 ND 146
Docket No.: 20120364
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: The district court is the best credibility evaluator in cases of conflicting testimony.
A party may waive an objection by failing to object to the admission or exclusion of testimony.

Charvat v. Charvat 2013 ND 145
Docket No.: 20130042
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A court may conclude the moving party failed to establish a prima facie case for modification of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
A suicide attempt by a parent with primary residential responsibility may be a material change in circumstances justifying a modification of primary residential responsibility.

Jensen v. Jensen 2013 ND 144
Docket No.: 20120450
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A court may conclude the moving party failed to establish a prima facie case for modification of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
A move by a parent with primary residential responsibility, particularly when coupled with the parent's remarriage, may be a material change in circumstances.

Interest of Whitetail 2013 ND 143
Docket No.: 20120452
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: A decision that an individual is a sexually dangerous individual will be affirmed unless it is induced by an erroneous view of the law or the reviewing court is firmly convinced the decision is not supported by clear and convincing evidence.
A sexually dangerous individual must be placed in the least restrictive available treatment facility or program necessary.

Schiff v. Schiff 2013 ND 142
Docket No.: 20120394
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: The basis for the decision regarding spousal support must be articulated.
Debts incurred during the parties' separation but before their divorce are included in the calculation of the marital estate.
A district court's valuation of marital assets is not clearly erroneous when it is within the range of the evidence presented by the parties.

State v. Borner 2013 ND 141
Docket No.: 20120388
Filing Date: 8/29/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: Conspiracy to commit murder under N.D.C.C. 12.1-06-04, criminal conspiracy, and 12.1-16-01(1)(b), extreme indifference murder, is not a cognizable offense.
Intent to achieve a particular result which is criminal is an essential element of criminal conspiracy.
Conspiracy to commit murder requires (1) an intent to cause death, (2) an agreement to commit murder, and (3) an overt act in furtherance of the agreement.

Interest of M.S. (CONFIDENTIAL) 2013 ND 140
Docket No.: 20130230
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Mental health commitment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of N.R., a Child (CONFIDENTIAL) (Consolidated w/ 20130213 & 20130218) 2013 ND 139
Docket No.: 20130212
Filing Date: 8/29/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

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

Judicial Vacancy in Judgeship No. 3, Northeast Central Judicial District 2013 ND 138
Docket No.: 20130190
Filing Date: 8/14/2013
Case Type: Judicial Administration - Rule - Rule
Author:

Highlight: Judgeship retained in Grand Forks.

Disciplinary Board v. Hoffman 2013 ND 137
Docket No.: 20120290
Filing Date: 7/23/2013
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: A lawyer is precluded from making an agreement to charge or collect an unreasonable fee.
Even though an agreement between a lawyer and client may designate a minimum fee as nonrefundable, a lawyer may still be required to refund unearned portions under the Rules of Professional Conduct.

Schmitt v. MeritCare Health System, et al. 2013 ND 136
Docket No.: 20130013
Filing Date: 7/22/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: A party resisting a motion for summary judgment cannot rely on unsupported and conclusory allegations but must present competent admissible evidence to raise a material issue of fact.
A communication is not libelous if the language is not fairly susceptible to a defamatory meaning.
A plaintiff claiming tortious interference with a prospective business advantage must prove an independently tortious or otherwise unlawful act of interference.
A plaintiff claiming a state antitrust violation must show a contract, combination or conspiracy between two or more people in restraint of, or to monopolize, trade or commerce.

Judicial Redistricting (consol. w/ 20130221) 2013 ND 135
Docket No.: 20130153
Filing Date: 7/18/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Counties moved from South Central to Southeast Judicial District and Northwest Judicial District divided into two districts, effective January 1, 2014.

State v. Gipp 2013 ND 134
Docket No.: 20120412
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Evidence not relevant to the proceeding is not admissible.

Investors Title Ins. Co. v. Herzig, et al. (Cons. w/20130050) 2013 ND 133
Docket No.: 20130049
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings. A party cannot on a second appeal relitigate issues which were resolved in the first appeal or which would have been resolved had they been properly presented in the first appeal.
The mandate rule, a more specific application of law of the case, requires the district court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case.

Interest of N.C.M., D.C.M., and J.J.M. 2013 ND 132
Docket No.: 20120266
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Yellowbird v. N.D. Dep't of Transportation 2013 ND 131
Docket No.: 20130082
Filing Date: 7/18/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: An officer must be certified as a chemical test operator to administer an on-site screening test, but an officer need not be certified to request a driver to submit to the test.

State v. Dieterle 2013 ND 130
Docket No.: 20120372
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Error under N.D.R.Ev. 404(b) is harmless when ample evidence exists to support a conviction independent of the evidence of the prior bad acts.

Estate of Bartelson (cross reference with 20110114) 2013 ND 129
Docket No.: 20130022
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: An interested person, which includes a child of the decedent, is entitled to a hearing on a petition to remove the personal representative of an estate.

Johnson v. Mark, et al. 2013 ND 128
Docket No.: 20120343
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: An unpled affirmative defense may be tried by the express or implied consent of the parties.
A continuance is the proper remedy for a party claiming surprise.
Abandonment is a finding of fact.
An agreement need not specifically state time is of the essence if the terms unambiguously manifest an intent that time is of the essence for the agreement.
A party to a written contract for the sale of land may waive rights by parol, and the contract may be annulled and abandoned and extinguished by parol.
In an action to cancel a contract for deed, the period of redemption, if any, is left to the court's sound discretion.

Ramsey v. State (cross reference w/ 20040035) 2013 ND 127
Docket No.: 20120407
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A post-conviction application based on newly discovered evidence is treated as a motion for a new trial, and the trial court's denial of post-conviction relief based on newly discovered evidence will be sustained unless the trial court abused its discretion.
Recantation evidence is looked on with suspicion and disfavor, especially in child sexual abuse cases.

State v. Wacht 2013 ND 126
Docket No.: 20120320
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Probable cause is the sum total of layers of information, not weighed in individual layers, but in the laminated total.
To assess the reliability of information given by a citizen informant, courts must look to the nature of their report, their opportunity to observe the matters reported, and the extent to which it can be verified by independent investigation.
Actions in furtherance of the criminal activity charged are not other acts, crimes or wrongs and are not excluded by N.D.R.Ev. 404(b).

Swearingen v. State 2013 ND 125
Docket No.: 20130063
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant is entitled to a jury trial unless he waives in writing or in open court and the State consents, the court approves, and the waiver is knowing, intelligent, and voluntary.
The denial of a post-conviction relief evidentiary hearing transcript is reviewed under an abuse of discretion standard.

Wilson v. State (consolidated w/ 20120426-20120428) 2013 ND 124
Docket No.: 20120425
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A trial court's failure to advise a defendant of his right to appeal after sentencing is sufficient grounds for relief only when the defendant is prejudiced by the failure.
A defendant who represents himself must voluntarily, knowingly, and intelligently relinquish the benefits of counsel.

State v. Delorme 2013 ND 123
Docket No.: 20120380
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: Challenges to a district court's subject matter jurisdiction are reviewed de novo when the jurisdictional facts are not in dispute.
Absent federal law to the contrary, Indians outside reservation boundaries are generally held subject to state law otherwise applicable to all citizens of the state.