Opinions

State v. Keller 2013 ND 122
Docket No.: 20120416
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Whether a blood test for DUI was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.
Fair administration of a blood test can be established by proof that the directions found on Form 104 have been scrupulously followed. Scrupulous compliance does not mean hypertechnical compliance.

State v. Severinson 2013 ND 121
Docket No.: 20130004
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The State need not produce a witness designated by the defendant under N.D.R.Ev. 707 if the witness did not make a testimonial statement in an analytical report.
A report attesting to the peer review of an analytical report related to the accuracy of a testing procedure that does not prove the substance of the analytical report is not testimonial for the purposes of N.D.R.Ev. 707 and the Confrontation Clause.

Brown v. Burleigh County Housing Authority 2013 ND 120
Docket No.: 20120455
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: State courts do not have jurisdiction under the Administrative Agencies Practice Act to review city and county housing authorities' decisions to terminate housing assistance benefits.

State v. Webster 2013 ND 119
Docket No.: 20130021
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A Miranda warning that fails to inform a defendant his statements may be used against him in a court of law renders the warning deficient.
A defendant's waiver of his Miranda rights is made knowingly and intelligently if he has a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
The totality of the circumstances is considered when determining whether a Miranda waiver is made voluntarily, knowingly, and intelligently.

Davenport v. WSI 2013 ND 118
Docket No.: 20120449
Filing Date: 7/18/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: For a mental or psychological condition to be a compensable injury, the claimant must show the physical injury was at least 50 percent of the cause of the condition as compared to all other contributing causes combined.
Unless a claimant's employment substantially accelerates the progression of, or substantially worsens the severity of, a preexisting injury, disease, or other condition, it is not a compensable injury when the claimant's employment merely acts to trigger symptoms in the preexisting injury, disease, or other condition.

Alliance Pipeline L.P. v. Smith, et al. 2013 ND 117
Docket No.: 20120367
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A proceeding for a court order permitting entry on land for examinations and surveys is preliminary to a condemnation proceeding.
A party may waive issues about personal jurisdiction, but subject-matter jurisdiction may not be waived.

Rebel v. Rebel 2013 ND 116
Docket No.: 20120280
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court must make an equitable distribution of the property and debts of the parties, and a substantial disparity must be adequately explained.
When distributing marital property, a district court must either discount future cash payments to present value or add interest to the payments.
When a party receives property that is clearly worth less than the value ascribed to it by the district court, this Court cannot determine whether the resulting property distribution is equitable.
A court's decision whether to award past child support is discretionary and will not be overturned unless the court abuses its discretion.
Although a court must provide an adequate explanation for not awarding past child support, a district court's child support award will not be reversed if the basis for the court's decision is ascertainable in the record.

State v. Carpenter (cross-reference 20100085 & 20110283) 2013 ND 115
Docket No.: 20130014
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Varnson 2013 ND 114
Docket No.: 20130041
Filing Date: 7/18/2013
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)(2) and (3).

State v. Hamilton 2013 ND 113
Docket No.: 20120375
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for continuous sexual abuse of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Tweten v. COUNTRY Preferred Insurance Company, et al. 2013 ND 112
Docket No.: 20120306
Filing Date: 7/17/2013
Case Type: Certified Question - Civil - Civil
Author: Crothers, Daniel John

Highlight: Recovery of underinsured motorist benefits arising from a wrongful death claim depends on the decedent's status as an insured under an applicable policy.
The statutory anti-stacking provisions of N.D.C.C. ch. 26.1-40 prevent divorced parents of a minor son killed in an underinsured motor vehicle accident from recovering the full amount of underinsured motorist benefits from their respective policies.

Disciplinary Board v. McIntee (Consolidated w/ 20130120) 2013 ND 111
Docket No.: 20130119
Filing Date: 6/25/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

SolarBee, Inc. v. Walker, et al. 2013 ND 110
Docket No.: 20120125
Filing Date: 6/24/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Consent to try an unpleaded issue cannot be inferred from the lack of objection to evidence on one pleaded.
Amendment by implication is limited to situations in which the novelty of the issues sought to be raised is reasonably apparent and the intent to try these issues is clearly indicated by failure to object or otherwise.
A breach of contract requires (1) the existence of a contract, (2) a breach of the contract, and (3) damages which flow from the breach.
Evidentiary imprecision regarding the amount of damages does not preclude recovery. The uncertainty which prevents recovery is the uncertainty of the fact of damages, not the uncertainty of the amount.

Sall v. Sall (cross-reference w/ 20100360) 2013 ND 108
Docket No.: 20120448
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Res judicata prohibits relitigation of claims that were raised in a prior action between the same parties and were resolved by final judgment.
A claim is frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected a court to render a judgment in that party's favor.

Smedshammer v. Smedshammer 2013 ND 107
Docket No.: 20120441
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Modification of primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Kartes v. Kartes 2013 ND 106
Docket No.: 20120311
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court's decision that a prima facie case justifying a modification of primary residential responsibility has been established is rendered moot once the evidentiary hearing is held, and the opposing party may not, on appeal from the final order or judgment, challenge the conclusion that a prima facie case was established.
When a parent with primary residential responsibility unilaterally decides to move with the children several hours away from the other parent, for the purpose of precluding or substantially impeding compliance with the existing parenting time arrangement, it constitutes a persistent and willful denial or interference with parenting time.

State v. Goldmann 2013 ND 105
Docket No.: 20120366
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: The State's right to appeal must be expressly granted by statute.
Because the statute does not specifically limit appealability to an order quashing with prejudice, an order dismissing a complaint, information, indictment, or any count, with or without prejudice, is appealable.
For purposes of grading, the amount of a theft is the highest value by any reasonable standard.

Olson v. N.D. Dep't of Transportation 2013 ND 104
Docket No.: 20120352
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Once the Intoxilyzer test record and checklist is admitted into evidence, the department has established prima facie that the officer followed the approved method and ascertained the twenty-minute wait period.
A defendant may rebut the department's prima facie case of fair administration, but he must do more than raise the mere possibility of error.
Observing a defendant is not the only manner of ascertaining that the driver had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample.

Miller v. Miller 2013 ND 103
Docket No.: 20120424
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A mature child's reasonable preference to live with a particular parent may constitute a material change in circumstances to justify a change in primary residential responsibility if there are persuasive reasons for that preference.
Res judicata makes it is inappropriate to rehash issues which were tried or could have been tried by the court in prior proceedings.

Knudson v. Kyllo (cross-reference w/ 20110282) 2013 ND 102
Docket No.: 20120421
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A partner violates his duty of loyalty to the partnership and the other partners when he misappropriates a partnership opportunity.
Whether an opportunity is a partnership opportunity is largely a question of fact, which will not be reversed on appeal unless it is clearly erroneous.

State v. Eagleman (Cross-reference w/20030149 & 20040359) 2013 ND 101
Docket No.: 20120406
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A sentence will be vacated only if the court acted outside the limits prescribed by statute or substantially relied on an impermissible factor in determining the severity of the sentence.
An illegal probationary term in a sentence invalidates the sentence in its entirety.
Judges do not, and should not, operate in a vacuum in sentencing.

Frey v. Frey 2013 ND 100
Docket No.: 20120378
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent's move out of state and a non-custodial parent's temporary custody of a child are a material change in circumstances.
When determining whether modification of prima
A district court's decision to modify a child support obligation after reserving the issue in an interim order is a matter of discretion.
A district court's denial of interim child support must be explained.

Wotzka v. Minndakota Limited Partnership 2013 ND 99
Docket No.: 20120301
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A condition that creates an open and obvious danger may limit the landowner's duty to its lawful entrants, but if the harm is expected from the standpoint of the landowner, the landowner is not relieved from his duty to keep the premises reasonably safe under the circumstances.
When a landowner has reason to anticipate that a lawful entrant will proceed to encounter a condition, despite its open and obvious nature, the factfinder must still consider whether the landowner acted reasonably under the circumstances.

Lario Oil & Gas Company, et al. v. EOG Resources, Inc. 2013 ND 98
Docket No.: 20120349
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The specific description in a mineral lease is controlling when a discrepancy exists between the specific description of the property conveyed and an expression of the quantity conveyed.

Albright v. WSI, et al. 2013 ND 97
Docket No.: 20120298
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: When presented with conflicting expert medical opinions, it is for WSI, not the district court, to weigh credibility and resolve conflicts.
If WSI disregards medical evidence favorable to a claimant, WSI must consider the entire record, clarify inconsistencies, and adequately explain the reason for disregarding medical evidence favorable to the claimant, applying the two tests and the factors identified in the statute.

City of Fargo v. Moran 2013 ND 96
Docket No.: 20130065
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

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

Painte v. Dep't of Transportation 2013 ND 95
Docket No.: 20120316
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Actual physical control of a vehicle does not require a defendant be able to drive a An affidavit attesting to the affiant's status as a designee of the director of the North Dakota Crime Laboratory is sufficient foundation for establishing prima facie evidence of the affiant's status as a designee for the purposes of section 29-20-07, N.D.C.C.

State v. Butcher 2013 ND 93
Docket No.: 20120403
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for conspiracy to commit robbery is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Spotted Wolf v. State 2013 ND 92
Docket No.: 20120431
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Smith 2013 ND 91
Docket No.: 20120430
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Ratka v. N.D. Dep't of Transportation 2013 ND 90
Docket No.: 20130083
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative decision revoking driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Pearson (Consolidated w/ 20120438 & 20120439) 2013 ND 89
Docket No.: 20120437
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A judgment revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Grant 2013 ND 88
Docket No.: 20120391
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court criminal judgment and sentence for contact by bodily fluids is affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Gray v. State 2013 ND 87
Docket No.: 20130064
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and N.D.R.App.P. 35.1(a)(4).

Chambering of Judgeship No. 11 in the Northwest Judicial District 2013 ND 86
Docket No.: 20130135
Filing Date: 6/4/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Watford City.

Matthew Larson Trust Agreement 2013 ND 85
Docket No.: 20120319
Filing Date: 5/28/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A trust may be reformed when there is clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.
A mistake in the inducement occurs when the terms of the trust accurately reflect what the settlor intended to be included or excluded but this intention was based on a mistake of fact or law.

Disciplinary Board v. Triplett 2013 ND 84
Docket No.: 20130005
Filing Date: 5/23/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Olson, et al. v. Estate of Rustad 2013 ND 83
Docket No.: 20120318
Filing Date: 5/20/2013
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A wrongful death action accrues at the time of the death of the party injured while a survival action accrues at the time the deceased was first injured.
A wrongful death action and a survival action which sound in tort are claims subject to the nonclaim provisions of the Probate Code.
A personal representative need not give actual notice by mail of the notice to creditors to those with mere conjectural claims.
The Probate Code nonclaim statute does not divest a court of jurisdiction over untimely filed claims.
A nonclaim statute, by definition, is a law that sets a time limit for creditors to bring claims against a decedent's estate, and unlike a statute of limitations, a nonclaim statute is usually not subject to tolling and is not waivable.
The nonclaim statute under the Probate Code cannot be tolled during a person's minority.
Interpretation of an insurance contract is a question of law fully reviewable on appeal, and the Supreme Court independently examines and construes the insurance contract to determine coverage.

Chambering of Judgeship No. 10 in the Northwest Judicial District 2013 ND 82
Docket No.: 20130134
Filing Date: 5/17/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Williston.

Chambering of Judgeship No. 9 in the East Central Judicial District 2013 ND 81
Docket No.: 20130132
Filing Date: 5/16/2013
Case Type: Judicial Administration - Rule - Rule
Author:

Highlight: New judgeship to be chambered in Fargo.

Maddock, et al. v. Andersen, et al. 2013 ND 80
Docket No.: 20120271
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: Violation of the reasonable use rule cannot be established where the source of surface water drainage cannot be conclusively shown.

State v. Estrada 2013 ND 79
Docket No.: 20120270
Filing Date: 5/14/2013
Case Type: Appeal - Criminal - Assault
Author: Sandstrom, Dale

Highlight: A modified self-defense jury instruction if, when considered with all jury instructions given as a whole, adequately informs the jury of the applicable law is not obvious error.

Johnson v. Bronson, et al. 2013 ND 78
Docket No.: 20120239
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Malpractice
Author: Kapsner, Carol

Highlight: A prima facie case of medical negligence requires expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.
The elements of a legal malpractice action against an attorney for professional negligence are [1] the existence of an attorney-client relationship, [2] a duty by the attorney to the client, [3] a breach of that duty by the attorney, and [4] damages to the client proximately caused by the breach of that duty.
Generally, expert testimony is necessary to establish the professional's standard of care (duty) and whether the professional's conduct in a particular case deviated from that standard of care (breach of duty).
The untimely submission of additional evidence to support a N.D.R.Civ.P. 60(b) motion does not create exceptional circumstances justifying relief.

State v. Romero 2013 ND 77
Docket No.: 20110337
Filing Date: 5/14/2013
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Allowing the jury to view the scene of a charged offense rests in the trial court's sound discretion.
A motion for judgment of acquittal must be denied if, upon reviewing the evidence most favorable to the prosecution, there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.

Bachmeier v. Bachmeier 2013 ND 76
Docket No.: 20120358
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: An otherwise valid parenting plan that was attached to the judgment will not be invalidated because the district court did not recite formulaic words of incorporation.
A court order must be sufficiently clear, specific, and unambiguous to hold a person in contempt for violating it.

Interest of S.R.B. (Confidential) 2013 ND 75
Docket No.: 20130112
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: In an expedited appeal taken from an order for hospitalization and treatment, a trial court must make findings of fact specially under N.D.R.Civ.P. 52(a) as to whether the respondent is a person requiring treatment and hospitalization is the least restrictive treatment.
A mental health patient has the right to notice and a hearing prior to the trial court's issuing an order requiring the use of prescribed medication.

City of Grafton v. Wosick 2013 ND 74
Docket No.: 20120360
Filing Date: 5/14/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: No obvious error is shown when the defendant anticipated the charge and prepared for trial accordingly.
The purpose of N.D.R.Ev. 707(a) is to ensure a defendant has an opportunity to object and confront witnesses.
A party failing to object to admission of evidence when offered may not challenge its admission on appeal.

Northern Oil & Gas, Inc. v. Creighton, et al. 2013 ND 73
Docket No.: 20120420
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Deciding an issue on a motion for summary judgment is not appropriate if there are disputed factual issues or if reasonable differences of opinion exist as to the inferences to be drawn from the undisputed facts.
Reformation of a contract is not permitted if it cannot be done without prejudice to the rights acquired by a third person in good faith and for value.
A good-faith purchaser must acquire rights without actual or constructive notice of another's rights.

Gadeco v. Industrial Commission, et al. (cross-ref. w/20110131 & 20110140) 2013 ND 72
Docket No.: 20120344
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The Industrial Commission has discretion to evaluate compliance with the requirements for an invitation to participate in the costs of drilling a well.
An election to participate in the costs of drilling a well must be received by the owner giving the invitation to participate within 30 days of the participating party's receipt of the invitation.

Dieterle v. Dieterle 2013 ND 71
Docket No.: 20120329
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court need not make separate findings of fact for each of the best-interest factors, a court's findings regarding one factor may be applicable to another factor, and a court need not consider irrelevant factors in its decision on primary residential responsibility for a child.
Allowing neutral individuals to resolve disputes between the parties, so long as access by the parties to the district court is allowed for ultimate resolution of the dispute, is not an improper delegation of judicial power.
Adverse rulings alone are not evidence of judicial bias or partiality.
Appellate briefs must contain references to the evidentiary record supporting statements of disputed facts.

Waslaski v. State (cross-reference w/ 20120257) 2013 ND 70
Docket No.: 20120342
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A motion for reconsideration is not a formally recognized motion and is not one of the enumerated appealable orders.
In appropriate circumstances, a motion for reconsideration may be treated as a motion to alter or amend a judgment or a motion for relief from a judgment or order.

Jassek v. Workforce Safety and Insurance 2013 ND 69
Docket No.: 20110225
Filing Date: 5/14/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: A binding dispute resolution decision under N.D.C.C. 65-02-20 requested by a medical provider concerning a request for treatment is not appealable to the district court.

Interest of Hoff 2013 ND 68
Docket No.: 20120248
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: A district court's decision whether to require an individual to be restrained during a civil commitment proceeding is reviewed for an abuse of discretion.
An individualized determination that restraints are necessary must be made after an individual requests that the restraints be removed. Restraints should not exceed what the particular situation requires.
The determination whether restraints are necessary requires an individualized determination on the record of the individual's record, temperament, and desperateness of his situation; the security situation at the courtroom and courthouse; the individual's physical condition; and whether there was an adequate means of providing security that was less prejudicial.
A district court abuses its discretion when it fails to make an independent assessment whether to require an individual to remain restrained during a civil commitment hearing.

Steen v. State (consolidated w/20120399 - 20120402) 2013 ND 67
Docket No.: 20120398
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from order denying application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Ennen v. State (cross-reference with 20110003) 2013 ND 66
Docket No.: 20120408
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of J.P. (Confidential) (consolidated with 20130057 & 20130058) 2013 ND 65
Docket No.: 20130048
Filing Date: 5/14/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court judgments terminating a mother's parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Waslaski v. State 2013 ND 64
Docket No.: 20120453
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Matter of Emelia Hirsch Trust (Cross-reference w/20080209,20120141,20120241) 2013 ND 63
Docket No.: 20120371
Filing Date: 4/11/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: An order denying a motion to vacate an order reforming a trust is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Dawson v. N.D. Dep't of Transportation 2013 ND 62
Docket No.: 20120417
Filing Date: 4/11/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Hearsay statements may not be admitted under the present sense impression exception when a sufficient lapse in time has occurred between the event and the declarant's statement, allowing for reflective thought.
Suspension of an individual's driving privileges is improper when a reasonable mind cannot reasonably conclude that the individual drove or was in physical control of a vehicle within two hours of the performance of a chemical test.

Interest of M.H.P. (CONFIDENTIAL) 2013 ND 61
Docket No.: 20120340
Filing Date: 4/10/2013
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: The Double Jeopardy Clause of the U.S. Constitution bars review of a juvenile court finding that a juvenile who committed a delinquent act is not in need of treatment or rehabilitation.
The Double Jeopardy Clause of the U.S. Constitution does not bar review of whether a juvenile should have been required to register as a sexual offender.
Once a juvenile court dismisses a juvenile proceeding under N.D.C.C. 27-20-29(2), the State's petition is dismissed, and nothing remains to be adjudicated.

Larson, et al. v. Norheim, et al. 2013 ND 60
Docket No.: 20120236
Filing Date: 4/8/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The owners of a mineral interest may preserve their interest by recording a statement of claim within sixty days of the publication of a notice of lapse of mineral interest.
The statement of claim may be recorded by an owner's representative, and the representative's authorization to record the claim on the owner's behalf is not required to be in writing.

Kruckenberg v. State (cross-reference w/20080106 & 20110333) 2013 ND 59
Docket No.: 20120387
Filing Date: 4/8/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Woodward v. Woodward 2013 ND 58
Docket No.: 20120315
Filing Date: 4/8/2013
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: When deciding whether spousal support is appropriate, even if a spouse can be rehabilitated, a court may award permanent spousal support to ensure one party does not bear the brunt of the overall reduction in standard of living.
Spousal support does not terminate automatically upon cohabitation, because unmarried cohabitants have no obligation to support each other.

K & L Homes, Inc. v. American Family Mutual Ins. Co. 2013 ND 57
Docket No.: 20120060
Filing Date: 4/5/2012
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: In an insurance policy, an exception to an exclusion may result in coverage, but is applicable only if the policy initially grants coverage and an exclusion precluding coverage applies.
Faulty workmanship may constitute an occurrence under a commercial general liability policy if the faulty work was unexpected and not intended by the insured, and the property damage was not anticipated or intentional, so that neither the cause nor the harm was anticipated, intended, or expected.
The definition of occurrence in a commercial general liability policy is not defined by terms of ownership or the character of the property damaged.
If a general contractor is liable for damages to work, including its own work product, arising out of a subcontractor's workmanship, the subcontractor exception preserves coverage that the "your work" exclusion precludes.

Waslaski v. State 2013 ND 56
Docket No.: 20120368
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Arguments raised for the first time on appeal generally will not be considered by this Court.

State v. Farrell 2013 ND 55
Docket No.: 20120338
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: The Interstate Agreement on Detainers Act provides no relief by dismissing criminal judgments entered before the request for disposition of charges, nor does it make available monetary relief.

State v. Doppler 2013 ND 54
Docket No.: 20120198
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A trial court abuses its discretion if the record does not show the court meaningfully or appropriately considered the relevant factors under N.D.R.Ev. 609(a)(1) when weighing a prior conviction's probative value and prejudicial effect.
Failure to weigh the probative value and prejudicial effect of a prior conviction under N.D.R.Ev. 609(a)(1) combined with improper use of the convictions as character evidence may adversely affect a defendant's substantial rights constituting obvious error.
Erroneous admission of a defendant's prior convictions, combined with the improper use of the convictions as improper character evidence in the State's closing argument and the lack of limiting jury instructions, is error affecting defendant's substantial rights and is not harmless.

Nienow v. Anderson 2013 ND 53
Docket No.: 20120434
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The N.D. Department of Human Service's determination of whether income is recurring is a finding of fact which will not be overturned on appeal unless it is not supported by a preponderance of the evidence.

Niles, et al. v. Eldridge 2013 ND 52
Docket No.: 20120294
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Issues raised for the first time on appeal will not be considered.
A district court does not abuse its discretion by denying a motion to amend an answer when the proposed amendment would be futile.

HIT, Inc. v. N.D. Dep't of Human Services 2013 ND 51
Docket No.: 20120299
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The N.D. Department of Human Services may set the margin requiring a refund of Individualized Supported Living Arrangements overpayments and does not require the margin be calculated in a particular way.

Estate of Christeson, et al. v. Gilstad, et al. 2013 ND 50
Docket No.: 20120328
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: 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.
The recording of a lease executed by one who is the legal owner, but not the record owner, of a mineral interest constitutes a use of the mineral interest which will preclude forfeiture of the mineral interest under the abandoned mineral statutes.

State v. Stegall (consolidated w/ 20120365, 20120386) 2013 ND 49
Docket No.: 20120362
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: The fugitive-dismissal rule does not apply to a defendant who absconds during pre-trial and trial proceedings.
The trial court has discretion to extend its own deadlines, including deadlines established in a scheduling order before trial.
For purposes of criminal prosecution for endangerment of a child, an unborn child is not a child, and N.D.C.C. 19-03.1-22.2 does not apply to acts committed on an unborn child, regardless of whether the child is subsequently born alive or dies in utero.
There is no distinction between a factual scenario in which the pregnant woman prenatally ingests a controlled substance and the child subsequently dies in utero and the factual scenario in which the child is born alive for purposes of criminal prosecution of the mother.

Hoverson v. Hoverson 2013 ND 48
Docket No.: 20120281
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A property distribution need not be equal to be equitable, but a substantial disparity must be explained.
An upward deviation in child support may be made in an amount appropriate to the needs of the children and the ability of the parent to pay.

Jensen v. Deaver 2013 ND 47
Docket No.: 20120373
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A restriction of parenting time must be supported by a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.
A district court's findings restricting parenting time must be sufficient to understand the basis for the court's decision that the children would suffer physical or emotional harm without the restrictions on visitation.

Hayden, et al. v. Medcenter One, Inc., et al. 2013 ND 46
Docket No.: 20120337
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The proper method for a party to seek additional time for discovery is to make a motion under N.D.R.Civ.P. 56(f).
The essential element in recovering under the theory of unjust enrichment is the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value.
To prevail on a claim based on quantum meruit, the claimant must establish the recipient accepted benefits under circumstances which would reasonably notify the recipient that the claimant had an expectation of payment for the services rendered.
Equitable estoppel does not by itself give rise to a cause of action, and it cannot be used to create an enforceable agreement between the parties.
While parties who depend on the outcome of the litigation to recover their share of the funds are required to share in the costs of the litigation under the common fund doctrine, hospital lien creditors are entitled to payment regardless of the outcome of the litigation and therefore are not required to share in the litigation costs.

Matter of C.J.S. 2013 ND 45
Docket No.: 20120370
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court judgment changing a child's surname is affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Wisham 2013 ND 44
Docket No.: 20120355
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment for contributing to the delinquency of a minor is affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

State v. Bentz 2013 ND 43
Docket No.: 20120345
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Felony
Author:

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

Froistad v. Schmalenberger, et al. 2013 ND 42
Docket No.: 20120381
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order summarily dismissing Froistad's petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Gaede v. State 2013 ND 41
Docket No.: 20120326
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Estate of Dionne (cross-reference w/20090016 and 20100353) 2013 ND 40
Docket No.: 20120249
Filing Date: 3/18/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A will does not need to be admitted to probate when a valid distribution agreement signed by all parties with a possible claim in the estate disposes of all property in the estate.
The doctrines of res judicata and collateral estoppel prevent relitigation of issues or claims previously decided.

Disciplinary Board v. Gross 2013 ND 39
Docket No.: 20120456
Filing Date: 3/8/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer publicly reprimanded.

Hysjulien v. Hill Top Home of Comfort, et al. 2013 ND 38
Docket No.: 20120163
Filing Date: 3/4/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The time for filing a claim for an unlawful employment practice under Title VII or the Human Rights Act depends on whether the claim raises discrete discriminatory or retaliatory acts or alleges a hostile work environment.
Discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges, and each discrete discriminatory act starts a new period for filing charges alleging that act.
A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice. In deciding whether a hostile work environment exists, a court looks to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Intentional infliction of emotional distress requires proof of (1) extreme and outrageous conduct that is (2) intentional or reckless and causes (3) severe emotional distress.
A plaintiff claiming negligent infliction of emotional distress must also show bodily harm.

Hanisch v. Kroshus 2013 ND 37
Docket No.: 20120251
Filing Date: 3/1/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A district court has discretion in deciding to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order.
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.

Mees v. N.D. Dep't of Transportation 2013 ND 36
Docket No.: 20120348
Filing Date: 2/28/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: The Intoxilyzer test record and checklist is presumed to show fair administration of the approved method until the defendant shows that the evidence as a whole clearly negates the presumed fact.
If a fact-finder can draw reasonable inferences from the evidence and conclude the subject could not have eaten, drank, or smoked, the 20-minute wait requirement has been met.

Barrett, et al. v. Gilbertson 2013 ND 35
Docket No.: 20120279
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party claiming a breach of contract must prove the existence of a contract, a breach of the contract, and damages which flow from the breach.
In interpreting a contract, the court may consider proof of the existence of a separate oral stipulation or agreement as to any matter on which the written contract was silent and which is not inconsistent with its terms if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.
When one party prevents the other party's performance of a term of a contract, it excuses the nonperformance and provides a defense in a suit for breach by the nonperformance.

Davis v. State (cross-reference w/20080331 & 20090093) 2013 ND 34
Docket No.: 20120272
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Discovery in the post-conviction context requires good cause and may be used only to the extent and in the manner the district court has ordered.
To obtain discovery under the statutory good cause standard: (1) the evidence sought to be discovered, if established, must allow the applicant to obtain post-conviction relief, and (2) contain specific and particularized allegations.
Post-conviction relief may be granted when evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.
Post-conviction relief under N.D.C.C. 29-32.1-01(1)(e) is similar to a N.D.R.Crim.P. 33 request for new trial based on newly discovered evidence, and a defendant must show: (1) the evidence was discovered after trial; (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence; (3) the newly discovered evidence is material to the issues at trial; and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

Bakken, et al. v. Duchscher, et al. 2013 ND 33
Docket No.: 20120232
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Extrinsic evidence may not be used to vary or contradict the terms of an unambiguous agreement or to create an ambiguity.
The party invoking laches has the burden of proving he was prejudiced because his position has become so changed during the delay that he cannot be restored to the status quo.

Interest of S.R.L. 2013 ND 32
Docket No.: 20120282
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An award of joint residential responsibility will be affirmed if supported by sufficient findings of fact consistent with the children's best interests.
Uncooperative parents may be awarded joint residential responsibility when it is in the child's best interests.

Guardianship of J.S.L.F. 2013 ND 31
Docket No.: 20120162
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Guardian/Conservator
Author: VandeWalle, Gerald

Highlight: A guardianship proceeding is an inappropriate method for testing the fitness of a parent.
To prove a parent's rights to his or her child have been suspended by circumstances due to abandonment, the petitioner must satisfy the same standards to prove abandonment required in the Uniform Juvenile Court Act and the Revised Uniform Adoption Act.

Riemers v. Jaeger 2013 ND 30
Docket No.: 20120353
Filing Date: 2/26/2013
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Crothers, Daniel John

Highlight: A party seeking writs of mandamus, prohibition, or injunction must demonstrate a clear legal right to the relief requested.
Injunctive relief must state its terms specifically and describe in reasonable detail the acts restrained or required.
A state official is not required to request an attorney general's written opinion for all legal questions that may arise during the course of the official's discharge of public duties.

Hageman v. Hageman 2013 ND 29
Docket No.: 20120183
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decision to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review.
Strong public policy favors prompt and peaceful resolution of divorce disputes and generates a judicial bias in favor of the adoption of a stipulated agreement of the parties.

Morrow v. Ziegler 2013 ND 28
Docket No.: 20120323
Filing Date: 2/26/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The requirement that an officer include his or her observation that a driver's body contained alcohol on the report and notice is basic and mandatory for the Department of Transportation to have authority to suspend the driver's license for refusal to submit to an onsite screening test.
Allowing the Department to infer elements that are basic and mandatory without any factual basis on the report to support the inference slants the law too much toward the Department's convenience.

Burgard v. Burgard 2013 ND 27
Docket No.: 20120285
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A motion made under N.D.R.Civ.P. 60(b) is the exclusive remedial procedure to set aside a default judgment.
On direct appeal from a default judgment granted under N.D.R.Civ.P. 55, the standard of review is limited to whether "irregularities appear on the face of the judgment roll."

Matter of J.G. (CONFIDENTIAL) (cross-ref. w/20100366) 2013 ND 26
Docket No.: 20120199
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Whether an individual engaged in sexually predatory conduct is barred by res judicata from being relitigated on a petition for discharge.

Dahl v. State (Consolidated w/20120211)(Cross-reference w/20090262) 2013 ND 25
Docket No.: 20120209
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The district court has discretion in deciding whether to grant a defendant's request for a bifurcated trial in a case in which there is an issue of lack of criminal responsibility.
When the issue of lack of criminal responsibility is submitted to the trier of fact, N.D.C.C. 12.1-04.1-18 provides for the appropriate form of the verdict or finding and requires the trier of fact to find the defendant not guilty by lack of criminal responsibility if the trier of fact finds the defendant committed the offense but was not criminally responsible.

Olson, et al. v. Job Service, et al. 2013 ND 24
Docket No.: 20120250
Filing Date: 2/26/2013
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Kapsner, Carol

Highlight: The phrase "a claimant's work stoppage dispute of any kind" in N.D.C.C. 52-06-02(4) refers to employee-initiated work stoppages, and an employer's lockout of its employees as a result of a labor dispute is not an employee-initiated work stoppage.

State v. Kusy 2013 ND 23
Docket No.: 20120377
Filing Date: 2/26/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment for luring a minor by computer and for sexual assault is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Flah 2013 ND 22
Docket No.: 20120357
Filing Date: 2/26/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A district court judgment of conviction for possession of drug paraphernalia after a jury trial is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

In the Matter of Finstad (CONFIDENTIAL) 2013 ND 21
Docket No.: 20130051
Filing Date: 2/15/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Transferred to incapacity to practice law status.