Opinions

State v. Tresenriter (Consolidated w/20120027-20120049 & 20120057) 2012 ND 240
Docket No.: 20120026
Filing Date: 11/27/2012
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A party who fails to object at trial to admission of offered evidence waives the objection and may not on appeal challenge admission of the evidence.
A defendant alleging obvious error has the burden to demonstrate plain error that affected his substantial rights, and the error must be a clear deviation from an applicable legal rule under current law.

Schwab v. Zajac 2012 ND 239
Docket No.: 20120172
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A party who voluntarily pays a judgment waives the right to appeal from the judgment.
Evidence of settlement negotiations is not admissible to prove liability for a claim that is disputed as to either the validity or the amount.
Error may not be predicated upon an exclusion of evidence unless a substantial right is affected and the substance of the evidence was made known to the trial court in an offer of proof.
A self-represented litigant is held to the same procedural rules as a litigant represented by counsel.
A plaintiff in a quiet title action involving a slander of title claim is entitled to attorney fees on appeal in defending a favorable judgment.

Holkesvig v. Welte (cons. w/20120204-205) (cross-ref listed in memo screen) 2012 ND 236
Docket No.: 20120203
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court judgment finding plaintiff in contempt is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Interest of A.J.L.H. (Confidential) (consolidated w/20120383-20120385) 2012 ND 235
Docket No.: 20120382
Filing Date: 11/27/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Keita v. Keita 2012 ND 234
Docket No.: 20110252
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Parenting time with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health. A restriction on 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.
An award of supervised parenting time based on a finding that a party is a flight risk must be supported by specific evidence that the parent has an intent to abscond or flee with the child or that the parent has hindered the other parent's custody of the child.
A district court errs in reserving jurisdiction to award spousal support only to ensure future compliance with its property division and attorney fees award.

Interest of G.L.D. (CONFIDENTIAL) (cross-reference w/20100230) 2012 ND 233
Docket No.: 20120175
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Waslaski v. State (consolidated w/ 20120292 & 20120293, cross reference in memo) 2012 ND 232
Docket No.: 20120291
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Jordet, et al. v. Jordet 2012 ND 231
Docket No.: 20120185
Filing Date: 11/5/2012
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The equitable remedy of setoff will be exercised to promote substantial justice and rests largely in the sound discretion of the district court.
Generally, a person who has been denied one remedy by a court is not prohibited from pursuing other available remedies.

State v. Jirinzu 2012 ND 230
Docket No.: 20120247
Filing Date: 10/25/2012
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court criminal judgment revoking David Jirinzu's probation and sentencing him to eighteen months of imprisonment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and 35.1(a)(7).

State v. Kirkpatrick 2012 ND 229
Docket No.: 20110312
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A criminal information needs to be sufficient enough to provide a defendant notice of the charge against him, to enable him to prepare a defense, and to plead the result in bar of a subsequent prosecution for the same offense.
Extreme emotional disturbance is a mitigating factor, and its application becomes attenuated as the amount of time between its triggering event and the crime increases.

Fonder v. Fonder 2012 ND 228
Docket No.: 20120134
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Krueger v. Tran 2012 ND 227
Docket No.: 20120152
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In modification of primary residential responsibility cases, a material change in circumstances can exist when one parent attempts to alienate a child's affection for the other parent, when parents are openly hostile towards each other and that hostility negatively affects the child, or when the noncustodial parent's situation improves accompanied by a general decline in the child's condition with the other parent over the same time period.
Methods other than a change of residential responsibility should be used initially to attempt to remedy a parent's misbehavior, but, after exhausting other remedies, a change may be the only method to correct the damage of a particularly stubborn and defiant custodial parent.

Herring, et al. v. Lisbon Partners, et al. 2012 ND 226
Docket No.: 20120090
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: The owner of a tree's trunk owns the entire tree, including branches and roots which encroach upon adjoining property.
The owner of a tree whose branches or roots encroach upon neighboring property may be liable when the encroaching branches or roots cause damage, or create imminent danger of causing damage, beyond merely casting shade or dropping leaves, flowers, or fruit.
A neighboring landowner may engage in self-help and cut back encroaching branches or roots to the property line.

Hammeren v. Hammeren 2012 ND 225
Docket No.: 20110345
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The district court must award primary residential responsibility to the parent who will better promote the child's best interests, and the court must consider all the relevant statutory best-interest factors. Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision.
The preference of a child who is capable of intelligently choosing between his parents for custody can be significant in determining the best interest of the child, but the child's preference is only one factor to consider and is not usually determinative.
Although rotating residential responsibility is not per se erroneous, a court's findings must support the conclusion such alternating custody is in the child's best interests.
A district court's decision on a motion to amend or make additional findings under N.D.R.Civ.P. 52(b), on a motion to alter or amend a judgment under N.D.R.Civ.P. 59(j), or on a motion for relief from the judgment under N.D.R.Civ.P. 60(b), will not be reversed on appeal absent an abuse of discretion.

Disciplinary Board v. McDonagh (Consolidated w/ 20120238) 2012 ND 224
Docket No.: 20120237
Filing Date: 10/23/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Gardner v. N.D. Dep't of Transportation 2012 ND 223
Docket No.: 20120230
Filing Date: 10/23/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Whether an officer failed to give an implied consent advisory is not an issue for the administrative hearing for the suspension of the individual's driver's license.
An individual may be deemed to have refused chemical testing for blood alcohol content when the individual repeatedly refuses to cooperate with police after chemical testing is requested.

Shannon v. Shannon 2012 ND 222
Docket No.: 20110340
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A judgment which does not adjudicate all claims of all of the parties is interlocutory and nonappealable unless the district court expressly certifies the judgment is final under N.D.R.Civ.P. 54(b).
A judgment or order that resolves only part of a single claim may not be certified as final under N.D.R.Civ.P. 54(b).

Zaiser v. Jaeger 2012 ND 221
Docket No.: 20120346
Filing Date: 10/23/2012
Case Type: Original Proceeding - Civil - Writ of Prohibition
Author: Kapsner, Carol

Highlight: The Secretary of State may not count elector signatures on initiative petitions accompanied by circulator affidavits that falsely swear each elector signature was executed in circulator's presence and each elector signature is the genuine signature of the individual whose name it purports to be.

Moseng v. Frey, et al. 2012 ND 220
Docket No.: 20120226
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: A plaintiff cannot recover damages for emotional distress resulting from an affair between the plaintiff's spouse and a third party.

Wenco v. EOG Resources, Inc., et al. 2012 ND 219
Docket No.: 20120194
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: If a mineral owner who owns a mineral interest subject to an outstanding royalty interest executes a mineral deed with a warranty clause to a party conveying mineral acres or interests in oil, gas and other minerals in and under without any reference to the outstanding royalty interest, the retained mineral interest of the mineral owner alone bears the outstanding royalty if the interest is large enough to satisfy the royalty interest.
Decisions are pronounced by a majority of the Supreme Court.
Although the existence or absence of waiver is generally a question of fact, the issue becomes a question of law if reasonable persons could draw only one conclusion from the circumstances.

Evenson v. Evenson (cross reference w/20060148 & 20080112) 2012 ND 218
Docket No.: 20120182
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: An order denying a motion to modify spousal support is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bishop v. WSI, et al. 2012 ND 217
Docket No.: 20120138
Filing Date: 10/23/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: A vocational rehabilitation plan is appropriate if it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.
Because the legislature intended for injured workers to be provided with actual rehabilitation with a realistic opportunity to return to work, and not merely a theoretical rehabilitation on paper only, WSI must consider all of the injured worker's functional limitations when determining whether the employment options identified in the rehabilitation plan present a realistic opportunity for substantial gainful employment.

State of N.D., et al. v. N.D. Insurance Reserve Fund 2012 ND 216
Docket No.: 20110368
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: The statutory procedure authorizing a proceeding to enforce an administrative subpoena in district court, is a special proceeding, and an order denying an application for enforcement of an administrative subpoena is appealable.
The particular controls general rule of statutory construction applies only when the conflict between two statutory provisions is irreconcilable.
The Department of Human Services was statutorily authorized to issue an administrative subpoena to the North Dakota Insurance Reserve Fund seeking information relevant to child support enforcement.

Corman v. State 2012 ND 215
Docket No.: 20120307
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief application summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Stridiron v. State (cross-reference w/20080285) 2012 ND 214
Docket No.: 20120159
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Jones 2012 ND 213
Docket No.: 20120165
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for forgery entered upon a guilty plea summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of T.M. (CONFIDENTIAL) (consolidated w/20120117) 2012 ND 212
Docket No.: 20120116
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: Order finding juvenile committed disorderly conduct and is a deprived child, and placing him in custody of Social Services for one year with authority to remove him from mother's home, is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Corman v. State 2012 ND 211
Docket No.: 20120309
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Anaya-Verajerano 2012 ND 210
Docket No.: 20120268
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment entered upon a jury verdict finding defendant guilty of conspiracy to commit burglary and conspiracy to commit theft is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Smith 2012 ND 209
Docket No.: 20120234
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Holkesvig v. Grove (consol. w/ 20120225) 2012 ND 208
Docket No.: 20120169
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Summary judgment dismissing claims alleging misconduct by a law enforcement officer and orders denying post-judgment motions and prohibiting the plaintiff from filing further motions or pleadings is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. McGeehan 2012 ND 207
Docket No.: 20120164
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment after a jury found a defendant guilty of simple assault on a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Hankey 2012 ND 206
Docket No.: 20120304
Filing Date: 10/15/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Disciplinary Board v. Summers 2012 ND 205
Docket No.: 20120317
Filing Date: 10/1/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Walstad v. Walstad 2012 ND 204
Docket No.: 20120059
Filing Date: 10/1/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Punitive damages are not authorized in an independent action in equity challenging a prior divorce judgment.

Carlson v. Workforce Safety & Insurance, et al. (Cross-reference w/20080250) 2012 ND 203
Docket No.: 20110163
Filing Date: 10/1/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: The "law of the case" doctrine is the principle that if an appellate court has passed on a legal question and remanded the case to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.
The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court's mandate into effect according to its terms.

Tarnavsky v. Tarnavsky, et al. (cross-reference w/20020292, 20050457, 20070161) 2012 ND 202
Docket No.: 20120200
Filing Date: 9/28/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: Civil judgment denying an applicant's petition for an emergency temporary restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Wheeler v. Southport Seven Planned Unit Dev., et al. 2012 ND 201
Docket No.: 20110323
Filing Date: 9/27/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The creation of a planned unit development ("PUD") is a legislative act, and PUD provisions are zoning ordinances. Restrictive covenants and zoning ordinances are tools used to restrict the use of real property.
A covenant to contribute one's share of the neighborhood's maintenance expenses is an affirmative covenant.
Covenants contained in a grant of an estate in real property, which are made for the direct benefit of the property or some part of it then in existence, run with the land, including covenants for the payment of rent, taxes, or assessments upon the land on the part of a grantee.

Interest of B.K. (CONFIDENTIAL) 2012 ND 200
Docket No.: 20120330
Filing Date: 9/25/2012
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).

Kohanowski v. Burkhardt 2012 ND 199
Docket No.: 20110317
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An oral agreement to pay money in installments 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.

State v. Gagnon 2012 ND 198
Docket No.: 20110311
Filing Date: 9/25/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Plain view alone is never enough to justify the warrantless search or seizure of evidence.
Warrantless search of home is not justified by need to prevent imminent destruction of evidence when marijuana plants remain in window for days before officers approach the home without a warrant.
Warrantless search of home is not justified by need to protect officer safety when the only articulable fact supporting the safety concern is the possibility that an unknown person could be inside the residence.

Martire' v. Martire' 2012 ND 197
Docket No.: 20110197
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A parent who willfully alienates a child from the other parent may not be awarded custody based on that alienation.
Shared decision-making authority can be successful only when the parties have demonstrated an ability and willingness to cooperate in the children's best interests.
The best interests of children need not be sacrificed merely to foster general policies declared by the Supreme Court.

Bank of North Dakota v. Brown, et al. 2012 ND 196
Docket No.: 20120145
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A judgment granting foreclosure is summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6) and (7).

Frazer v. WSI, et al. 2012 ND 195
Docket No.: 20120189
Filing Date: 9/25/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: District court judgment affirming an order of Workforce Safety and Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Delage 2012 ND 194
Docket No.: 20120173
Filing Date: 9/25/2012
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment after a jury found a defendant guilty of two counts of simple assault on a correctional officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Application of Covert 2012 ND 193
Docket No.: 20120174
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Civil judgment denying an applicant's petition for name change is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Quilt (cross reference w/20100397) 2012 ND 192
Docket No.: 20120176
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Matter of Hehn (cross-reference 20110053) 2012 ND 191
Docket No.: 20120070
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

State v. VanDyke 2012 ND 190
Docket No.: 20110325
Filing Date: 9/25/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Everett v. State 2012 ND 189
Docket No.: 20120179
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

CitiMortgage, Inc. v. Adolph, et al. 2012 ND 188
Docket No.: 20120208
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Foreclosure
Author: Per Curiam

Highlight: District court order granting foreclosure on mortgaged property is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Disciplinary Board v. Jensen 2012 ND 187
Docket No.: 20120308
Filing Date: 9/18/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

George v. Veeder 2012 ND 186
Docket No.: 20120081
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The term "minerals" as used in reservation language in a warranty deed does not include gravel, clay, or scoria.
A party seeking reformation of a deed must establish by clear and convincing evidence that the document does not state the parties' intended agreement.

Ennis v. N.D. Dep't of Human Services 2012 ND 185
Docket No.: 20110352
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: For eligibility for food stamps, self-employment income is generally to be determined on the basis of an averaging of prior income, but self-employment income must be calculated on the basis of anticipated rather than prior earnings if the averaged amount does not accurately reflect the household's actual circumstances because the household has experienced a substantial increase or decrease in business.

Forsman v. Blues Brews and Bar-B-Ques Inc., et al. 2012 ND 184
Docket No.: 20110356
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Persons injured by an obviously intoxicated person may bring a dram shop action against any person who knowingly provides alcoholic beverages to the obviously intoxicated person.
The causation element for dram shop liability requires a dram shop violation to contribute to the obviously intoxicated person's intoxication and requires the plaintiff's injuries to have been inflicted by the intoxicated person.

Dahly v. Anderson 2012 ND 183
Docket No.: 20120013
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The caregiver child exemption under 42 U.S.C. 1396p(c)(2)(A)(iv) provides that the transfer of a parent's home to a child who provided live-in care to the parent for at least two years, which allowed the parent to reside at home rather than in a nursing care facility, is not a disqualifying transfer under federal Medicaid law.
The caregiver child exemption is not limited to situations where the home is transferred personally by a mentally competent parent, but also applies when the transfer of a mentally incompetent parent's home is made by the parent's attorney-in-fact.

Nuveen v. Nuveen 2012 ND 182
Docket No.: 20120080
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A motion for an extension of time to file a notice of appeal based upon excusable neglect is addressed to the sound discretion of the district court, and its decision will not be set aside on appeal absent an abuse of discretion.
Intentional, willful, and inexcusable disobedience of a court order constitutes contempt of court.

State v. Middleton 2012 ND 181
Docket No.: 20120082
Filing Date: 8/30/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: If a party moves for a new trial, the party is limited on appeal to the grounds presented to the district court in the motion.

Waldock v. Amber Harvest Corp., et al. 2012 ND 180
Docket No.: 20120064
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: If a grantor does not own a large enough mineral interest to satisfy both a grant and a reservation of the mineral interest, the grant must be satisfied first because the grant is superior to the reservation.
In analyzing conveyances and reservations of mineral interests, the focus is on what the grantor purported to convey to the grantee in the granting clause.

Seay v. Seay 2012 ND 179
Docket No.: 20110332
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A divorce judgment provision requiring a child support and spousal support obligor to obtain and maintain a life insurance policy on himself as security for his future support obligations is not an improper upward deviation from the child support guidelines.
When an initial determination of custody and a parent's request to move from the state with the children are raised in the same proceeding, the court should first consider the initial custody determination, applying the best interests factors under N.D.C.C. 14-09-06.2(1), although it may consider the proposed move as part of its assessment of the best interests factors for determining custody.
A district court's failure to address all four Stout-Hawkinson factors when evaluating whether a proposed move is in the child's best interests is reversible error.

Nichols, et al. v. Goughnour, et al. 2012 ND 178
Docket No.: 20110336
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Instruments executed at the same time, by the same parties, in the course of the same transaction, and concerning the same subject matter, may be read and construed together.
Several contracts relating to the same matter between the same parties and made as parts of substantially one transaction may be taken together for purposes of construction but may not be united into a single contract.
When a grantor overconveys mineral interests to a third party so a grant and a reservation cannot be given effect, the risk of title loss is on the grantor.

Disciplinary Board v. Hoffman (Cross-Reference w/ 20030141 & 20030142) 2012 ND 177
Docket No.: 20120284
Filing Date: 8/29/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

State v. $44,140 U.S. Currency, et al. 2012 ND 176
Docket No.: 20110327
Filing Date: 8/22/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A presumption of forfeiture for currency furnished in exchange for a controlled substance exists if there is a reasonable basis to believe there is a connection between the property and enumerated drug offenses and the property was acquired when the person who acquired the property was engaged in the drug offense and there is no likely source for the property other than the drug offense.
The clearly erroneous standard of review applies to civil forfeiture proceedings.

Fines, et al. v. Ressler Enterprises, Inc., et al. 2012 ND 175
Docket No.: 20110357
Filing Date: 8/21/2012
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A district court may exercise its inherent power to sanction for the spoliation of evidence after considering: the culpability of the party against whom sanctions are sought; the prejudice to the moving party, and the degree of the prejudice; and the availability of less severe alternative sanctions.

Disciplinary Board v. Feland 2012 ND 174
Docket No.: 20110321
Filing Date: 8/20/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Sandstrom, Dale

Highlight: A prosecutor's ethical duty to disclose all exculpatory evidence to the defense under N.D.R. Prof. Conduct 3.8(d) is broader than the duties imposed by N.D.R.Crim.P. 16 and Brady v. Maryland, and does not vary depending upon the strength of the other evidence in the case.
A prosecutor violates N.D.R. Prof. Conduct 3.8(d) if she intentionally, knowingly, or negligently fails to disclose exculpatory evidence to the defense.
An attorney may be disciplined for an isolated instance of negligent conduct.
Although an admonition is intended to be a non-public form of discipline that would ordinarily be issued by an Inquiry Committee, the Supreme Court may nevertheless order an admonition when that is the appropriate sanction for the lawyer's conduct under the North Dakota Standards for Imposing Lawyer Sanctions.
Although the full costs and expenses of a disciplinary proceeding will ordinarily be assessed against the disciplined lawyer, the Supreme Court has discretion to order payment of a lesser amount.

City of Mandan, et al. v. Strata Corp., et al. 2012 ND 173
Docket No.: 20120006
Filing Date: 8/20/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Certification under N.D.R.Civ.P. 54(b) is inappropriate when further developments in the trial court may moot the issue raised on appeal.

Clausnitzer v. Tesoro Refining and Marketing Co. 2012 ND 172
Docket No.: 20120107
Filing Date: 8/20/2012
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: To establish a prima facie case of lawful activity discrimination under the Human Rights Act, the plaintiff must raise a genuine issue of material fact that he participated in lawful activity off the employer's premises during nonworking hours which was not in direct conflict with the essential business-related interests of the employer.
The strong societal public policy of preventing people from drinking and driving is embodied in the caselaw, the applicable regulations, statutory laws, and pure common sense.

Heier v. N.D. Department of Corrections and Rehabilitation 2012 ND 171
Docket No.: 20120128
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: An agency may not punish an employee multiple times for one instance of misconduct.

Bakke v. D&A Landscaping Co., et al. 2012 ND 170
Docket No.: 20110308
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A precursor to piercing a limited liability company owner's liability shield is that the company be liable to the claimant in the first instance.
Jury instructions on fraud which are given without objection become law of the case.

Burke v. State 2012 ND 169
Docket No.: 20110286
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A person convicted of a crime may move for forensic DNA testing to demonstrate the person's actual innocence if the testing is to be performed on evidence secured in relation to the trial that resulted in the conviction and the evidence was not subje the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
Whether evidence at issue is "materially relevant" to the defendant's assertion of actual innocence requires consideration of the evidence introduced at trial, as well as an assessment of the evidence defendant is seeking to test.

Matter of S.E. (Confidential) 2012 ND 168
Docket No.: 20120161
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A trial court may not enter an order or judgment that affects the merits of issues properly on appeal.
Dismissal of a petition for adoption is not proper, despite a technical defect in the petition, if the party from whom consent is sought has notice of the petition and can timely exercise its ability to withhold consent.

Rudnick v. Rode 2012 ND 167
Docket No.: 20120076
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The district court must comply with the procedural requirements in N.D.R.Ct. 8.2 when it issues an ex parte interim order, and it must find there are exceptional circumstances justifying the order based on evidence presented by affidavit.
A party moving to modify primary residential responsibility more than two years after a prior order must prove a material change of circumstances has occurred and modification is necessary to serve the child's best interests.
Evidence of child abuse is a material change of circumstances.
A parent is justified in using reasonable force to discipline a child as long as the force does not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
In considering whether a modification of residential responsibility is necessary to serve the child's best interests, the district court must gauge the best interest factors against the backdrop of the stability of the child's relationship with the custodial parent.

Smestad v. Harris (cross-ref. with 20100216) 2012 ND 166
Docket No.: 20120051
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Absent specific instructions from this Court, a district court deciding an issue on remand must exercise its discretion when determining the procedure to follow.
An individual who has performed in accordance with a contract that is unenforceable under the statute of frauds may be entitled to the equitable remedy of restitution.

Falkenstein, et al. v. Dill, et al. 2012 ND 165
Docket No.: 20120113
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: The substance of a complaint is considered to determine whether the complaint sufficiently raised a claim.
A district court does not abuse its discretion in effectively denying a motion to amend a pleading when such an amendment would result in prejudice to the opposing party.
The least-sophisticated-consumer standard applies in determining whether a debt collector's communication violates the Fair Debt Collection Practices Act.

Mickelson v. Workforce Safety and Insurance 2012 ND 164
Docket No.: 20110232
Filing Date: 8/16/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Injuries attributable to a preexisting injury, disease, or other condition are compensable under workers' compensation law when employment substantially accelerates the progression or substantially worsens the severity of the injury, disease, or other condition.
Employment substantially accelerates the progression or substantially worsens the severity of a preexisting injury, disease, or other condition when the underlying condition likely would not have progressed similarly in the absence of employment.

Schulte v. Kramer (cross-ref. 20050222) 2012 ND 163
Docket No.: 20110231
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: To justify a modification of spousal support, the moving party must demonstrate a material change in financial circumstances. A material change is one that substantially affects the financial abilities or needs of the parties and was not contemplated by the parties at the time the original divorce decree was entered.
Once a trial court finds a material change in circumstances exists, it must examine the reason for the material change to determine whether modification of support is warranted. A self-induced decline in income does not, in the absence of a substantial showing of good faith or cause, constitute such an exceptional change in circumstances as to afford the required basis for modifying an alimony award.
An item in a divorce separation agreement or divorce judgment is more likely spousal support than part of the division of property if it is directed to be monthly, unsecured, and terminable upon designated events.

Kruckenberg v. State 2012 ND 162
Docket No.: 20110333
Filing Date: 8/1/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Under N.D.R.Civ.P. 52(a) of the North Dakota Rules of Civil Procedure, in an action without a jury, the court must find the facts specially and state its conclusions of law separately.
A court's findings of fact may be sufficient under N.D.R.Civ.P. 52(a) if they provide this Court with an understanding of the trial court's factual basis used in reaching its decision.

Disciplinary Board v. Lawler 2012 ND 161
Docket No.: 20120297
Filing Date: 7/26/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Disciplinary Board v. Hann (CONSOLIDATED W/ 20110247 & 20110248) 2012 ND 160
Docket No.: 20110246
Filing Date: 7/26/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction.
Due weight is given to the disciplinaryboard's findings, conclusions, and recommendations.
Depending on the agreement between a lawyer and client, a "nonrefundable" retainer may violate the Rules of Professional Conduct.

Mackey v. State (cross-reference 20100377) 2012 ND 159
Docket No.: 20120119
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A court need not personally address a defendant when establishing the factual basis for the defendant's guilty plea.
The lack of a factual basis for a guilty plea is a fundamental defect that calls into question the validity and voluntariness of the plea.
The ideal means of establishing the factual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant's own words, what the defendant did that he believes constitutes the crime to which he is pleading guilty.
A trial court may conclude that a factual basis exists from anything that appears on the record, including the facts gleaned from the plea agreement and plea colloquy, the factual findings relied upon in the presentence report, and any inferences fairly drawn from the evidence presented both post-plea and at the sentencing hearing.

State v. Perales 2012 ND 158
Docket No.: 20120114
Filing Date: 7/26/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A defendant who violates a probation condition may be resentenced to any sentence available at the time of initial sentencing.
The district court may to impose only one additional period of probation following a violation of felony probation conditions.
When the district court revokes probation and resentences a defendant, the existing probationary period ends and the district court may not order the defendant to complete the unserved portion of the existing probationary term.

Kilber v. Grand Forks Public School District 2012 ND 157
Docket No.: 20110178
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A school board may dismiss an individual as a teacher before the expiration of the individual's contract for certain statutorily specified causes, including insubordination and conduct unbecoming the position held by the individual.
Proceedings for a Board to discharge a teacher for cause from employment during the school year equire appointing an administrative law judge to preside over a hearing, which must be conducted in accordance with the Administrative Agencies Practice Act.
An argument implicating a due process issue presents a question of law, which is fully reviewable on appeal.
Due process requires a person be given notice and an opportunity to be heard before the government deprives the person of property.
Due process is flexible and must be analyzed on a case-by-case basis, balancing the competing interests and assessing whether the basic due process requirement of fairness has been satisfied. To provide redress for a procedural violation, a party must demonstrate prejudice or harm.

State v. Lutz 2012 ND 156
Docket No.: 20120091
Filing Date: 7/26/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: N.D.R.Ev. 707, which must be interpreted with N.D.C.C. 39-20-07, requires the State to produce at trial the person who drew the defendant's blood sample.
N.D.R.Ev. 707 does not require the State to produce at trial the person who prepared the volatiles solution used in conducting a chemical test.
The prosecution has the burden of establishing the chain of custody of evidence; however, this does not mean that every person who laid hands on the evidence must be called as a witness.

Knudson v. Kyllo 2012 ND 155
Docket No.: 20110282
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Copartners owe a duty of loyalty to each other and have a right to expect from their partners full, fair, open and honest disclosure of everything affecting the partnership.
A partner may not exclude another partner from an interest in properties which are the subject matter of the partnership by purchasing the property for the partner's individual account.

State v. Pavlicek 2012 ND 154
Docket No.: 20120012
Filing Date: 7/26/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: In sufficiency of the evidence challenges, the appellate court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
Verdicts are not legally inconsistent if, when a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is substantial evidence to support the charge on which the defendant is convicted.
The last sentence of N.D.C.C. 12.1-05-05(1), which addresses justification in use of force by a person responsible for caring for a minor, is not an exclusive listing, but merely a legislative acknowledgment that use of force creating a substantial risk of death, serious bodily injury, disfigurement, or gross degradation is per se unreasonable when purportedly used for disciplinary purposes.
Counsel for a party desiring more comprehensive jury instructions has a duty to draft a specific instruction and to submit the instruction in writing to the trial judge.

Interest of A.W. (CONFIDENTIAL) 2012 ND 153
Docket No.: 20120245
Filing Date: 7/26/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A child is a deprived child for purposes of termination of parental rights if the child has been abandoned by the child's parent, guardian, or other custodian.
Paying child support, alone, is not sufficient to prevent a finding of abandonment.
Adequate care from a foster parent or other source does not prevent a finding of deprivation.

Miller, et al. v. Walsh County Water Resource District 2012 ND 152
Docket No.: 20120018
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The legality of dikes is measured by the law in effect at the time the dikes were constructed.
A person asserting equitable or promissory estoppel must show on his own part lack of knowledge and of the means of knowledge of the truth as to the facts in question.
Mere negligence, oversight, or thoughtlessness does not create a waiver.

State, ex rel. Roseland v. Herauf, et al. 2012 ND 151
Docket No.: 20120170
Filing Date: 7/26/2012
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: VandeWalle, Gerald

Highlight: The Supreme Court exercises supervisory jurisdiction only in extraordinary cases to rectify errors and prevent injustice when no adequate alternative remedy exists.
N.D.R.Ev. 707 must be interpreted in light of N.D.C.C. § 39-20-07, which governs the admission of analytical reports into evidence, because the rule and the statute are interconnected regarding analytical reports.
N.D.R.Ev. 707, construed with N.D.C.C. § 39-20-07, requires the State to produce the person who drew the defendant's blood sample at trial to satisfy the constitutional requirements of N.D.C.C. § 39-20-07.
The signed statement contemplated under N.D.C.C. § 39-20-07(10) is a testimonial statement subject to a defendant's right to confrontation.

Reiser, et al. v. Thorpe, et al. 2012 ND 150
Docket No.: 20120137
Filing Date: 7/19/2012
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment awarding $98,543.84 in costs and disbursements for defending against a negligence and breach of contract lawsuit is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

D&P Terminal, et al. v. City of Fargo 2012 ND 149
Docket No.: 20110194
Filing Date: 7/18/2012
Case Type: Appeal - Civil - Tax Realted
Author: Crothers, Daniel John

Highlight: A special assessment commission is not prohibited from using a formula such as front footage or square footage to determine the amount of benefit to properties within an improvement district.

Hale v. State of North Dakota, et al. 2012 ND 148
Docket No.: 20110146
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Economic development constitutes an enterprise for a public purpose under the gift clause provision of the state constitution.
A party must do more than submit bare assertions to adequately raise constitutional issues, and without supportive reasoning or citation to relevant authorities, a constitutional argument is without merit.

State v. Chisholm 2012 ND 147
Docket No.: 20110228
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: When a defendant in a homicide case argues self-defense, evidence of specific instances of prior violent conduct by the victim may be admissible to show the defendant's state of mind if he was aware of the prior conduct, but the district court may in its discretion refuse to admit evidence of prior conduct which is too remote in time.

Rinas v. Engelhardt 2012 ND 146
Docket No.: 20120019
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Review of the specific terms of relief provided in a domestic violence protection order is limited to whether the district court acted within its statutory authority in granting the relief. This standard of review has been called the abuse-of-discretion standard in other, similar contexts.
A domestic violence protection order may be modified at any time upon a petition filed by either party.
District courts should attempt to reconcile the visitation terms in a domestic violence protection order and those established in a future custody action.

State v. Mertz 2012 ND 145
Docket No.: 20120087
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: The specific crime intended to be committed in the premises is not an element of burglary.
Testimony that a defendant without permission to enter residence forced his way through a locked door is sufficient to support a jury finding that the defendant entered the residence with intent to commit a crime therein.

Hale v. Ward County, et al. 2012 ND 144
Docket No.: 20110171
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: The district court may not weigh the evidence, determine credibility or attempt to discern the truth of the matter when ruling on a motion for summary judgment.
Property owner's speculation that a shooting range posed a danger to his property is not sufficient to raise a genuine issue whether the shooting range was a private nuisance.

Recovery Resources, LLC v. Cupido, et al. 2012 ND 143
Docket No.: 20120177
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Maring, Mary

Highlight: A court's division of debts in a divorce action does not affect the rights of third-party creditors.
Under N.D.C.C. 14-07-08(3), a husband and wife are jointly and severally liable for any debts contracted by either, while living together, for certain necessary goods and services.

Holkesvig v. Welte (cons. w/20110374-375)(cross-ref 20100315-317 & 20110102-104) 2012 ND 142
Docket No.: 20110373
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: After a district court has issued an order enjoining a litigant from filing certain further lawsuits without leave of court, the court does not abuse its discretion in denying the litigant's motion to file new lawsuits when the new lawsuits are derivative of the claims previously raised by the litigant.
District courts have inherent authority to protect against abuses of judicial process, and a district court does not abuse its discretion when it narrowly tailors an injunction to enjoin conduct specifically related to a litigant's prior abuses.

EVI Columbus, LLC v. Lamb, et al. 2012 ND 141
Docket No.: 20110320
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: If the time allowing a party to amend a pleading as a matter of course has passed, the party may still amend the pleading after obtaining the opposing party's written consent or the court's leave.
Under N.D.R.Civ.P. 8(a), a pleading must contain a short and plain statement showing the pleader is entitled to relief and a demand for the relief sought.
Issues or arguments raised for the first time on appeal are usually not considered.

State v. Bruce 2012 ND 140
Docket No.: 20110360
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: For menacing, a victim's subjective fear of imminent serious bodily injury resulting from an encounter with a defendant may be considered.

City of Lincoln v. Johnston 2012 ND 139
Docket No.: 20120068
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A bicycle is a vehicle for purposes of the driving under the influence law.