Opinions

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.

State v. Garg (consolidated w/20110299) 2012 ND 138
Docket No.: 20110298
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: An appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal.
A defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.
A petitioner who knows his guilty plea could result in deportation cannot prove he was prejudiced by his attorney's alleged failure to advise of the deportation consequences of the plea.

Castro v. Castro 2012 ND 137
Docket No.: 20110369
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: In an interstate child custody proceeding, jurisdiction generally exists in the child's home state.
A home state court may decline jurisdiction of a child custody determination on the ground the court is an inconvenient forum.
Under the Uniform Child Custody Jurisdiction Enforcement Act, a child custody determination includes a proceeding in which visitation is an issue.

Thorsrud v. N.D. Dep't of Transportation 2012 ND 136
Docket No.: 20120136
Filing Date: 7/12/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Under N.D.C.C. 39-20-05(4), admission of an Intoxilyzer Test Record and Checklist into evidence establishes prima facie their contents.
A defendant may present sufficient evidence to rebut prima facie evidence established by the admission of an Intoxilyzer test record and checklist into evidence.
If a defendant successfully rebuts the prosecution's prima facie evidence, the prosecution may present evidence to demonstrate fair administration despite the defendant's rebuttal.

State v. Clark 2012 ND 135
Docket No.: 20110359
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense.
There is no presumption of vindictiveness when a defendant receives a more severe sentence after a trial than he received when he pled guilty to the same offense before his initial conviction was reversed on appeal.

Meier v. N.D. Dep't of Human Services 2012 ND 134
Docket No.: 20120063
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Service of the notice of appeal and specifications of error on Human Resource Management Services is necessary to properly perfect an appeal from administrative law judge decisions under the Central Personnel System Act.

Matter of Rubey (cross-reference 20100292) 2012 ND 133
Docket No.: 20110322
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: On appeal, conflicting evidence is not re-weighed nor is the credibility of witnesses re-decided.

Matter of D.A. (CONFIDENTIAL) 2012 ND 132
Docket No.: 20110358
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying a petitioner's application for discharge from civil commitment as a sexually dangerous individual under N.D.C.C. ch. 25-03.3 is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Ayala 2012 ND 131
Docket No.: 20120092
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Criminal judgment of conviction of murder is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Toppen v. Toppen 2012 ND 130
Docket No.: 20120072
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order affirming an administrative enforcement action placing a lien on an individual's personal property held by the Department of Corrections and Rehabilitation is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Eide (consolidated w/20110264-20110269) 2012 ND 129
Docket No.: 20110263
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A district court must comply with a statutory notice requirement prior to modifyig probation.

Matter of Wedmore 2012 ND 128
Docket No.: 20120106
Filing Date: 7/12/2012
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).

Interest of Tanner 2012 ND 127
Docket No.: 20120084
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: An order civilly committing a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Palmer (Consolidated w/20120078)(cross-reference w/20010125 & 20110347) 2012 ND 126
Docket No.: 20120077
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A district court order denying a motion to dismiss a probation revocation petition and revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Foreid v. State (cross-reference w/20080128, 20100325, & 20110315) 2012 ND 125
Docket No.: 20120105
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A 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).

Disciplinary Board v. Mahler 2012 ND 124
Docket No.: 20120093
Filing Date: 7/17/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Haugland v. City of Bismarck 2012 ND 123
Docket No.: 20110077
Filing Date: 7/6/2012
Case Type: Appeal - Civil - Tax Realted
Author: Sandstrom, Dale

Highlight: Urban renewal statutes authorize a municipality to engage in an enterprise for a public purpose within the meaning of the gift clause provision of the state constitution.
Urban renewal statutes are rationally related to legitimate government purpose.
A modification of an urban renewal plan that substantially changes a prior renewal plan requires a municipal resolution that the renewal area consists of slum or blighted area.
A municipality is not required to remove parcels of property from a renewal area after the specific parcel has been redeveloped.
Urban renewal law does not authorize a perpetual urban renewal plan for a renewal area.

Kosobud v. Kosobud 2012 ND 122
Docket No.: 20110296
Filing Date: 6/13/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Assets accumulated after separation but prior to divorce are included in the marital estate.
The sporadic nature of the parties' marriage is a valid consideration for a court in making an equitable division of property.
Marital property valuations are not clearly erroneous if they are within the range of evidence presented.
When the exact dates of retirement and the resulting income reductions following retirement are unknown, a court may order permanent spousal support despite the obligor's approaching retirement.
When a motion for new trial is made in the district court, the moving party is limited on appeal to a review of the grounds presented to the district court.

Skachenko v. Skachenko 2012 ND 121
Docket No.: 20110370
Filing Date: 6/12/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A district court does not abuse its discretion when it denies a party's motion to use frozen marital funds to conduct a business evaluation when the moving party has access to non-frozen, separate funds and has not addressed why the non-frozen, separate funds cannot be used.
A district court does not abuse its discretion when it denies a post-trial motion to include, as a separate asset of the marital estate, a loan owed by a party's business to the party when the loan was not included on the property and debt listing filed with the court and was not at issue prior to or during trial.
A district court has discretion to award attorney fees as a sanction for misconduct during litigation and must make findings regarding culpability of the party against whom sanctions are being imposed, prejudice against the moving party, and the availability of less severe alternative sanctions.

State v. Schmidt 2012 ND 120
Docket No.: 20110234
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A private party cannot be considered an agent of the State merely because a police officer requested surveillance video from him as part of the investigation.
A police officer's failure to collect evidence in the first instance is not a violation of Brady v. Maryland, 373 U.S. 83 (1963).
A defendant is not deprived of his right to confront a witness against him when the witness testified at trial and was subject to the defendant's cross-examination.

Empower the Taxpayer, et al. v. Cory Fong, et al. 2012 ND 119
Docket No.: 20120191
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: There is no private right of action to enforce the provisions of the Corrupt Practices Act.

Disciplinary Board v. Dyer (CONSOLIDATED W/ 20120021-20120023) 2012 ND 118
Docket No.: 20120020
Filing Date: 6/7/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Evidence that the balance of a trust account fell below the total amount held in trust supports a finding that the lawyer violated N.D.R. Prof. Conduct 1.15.
A lawyer is permitted to disclose information related to the representation of a client when the lawyer is defending himself or herself in any proceeding concerning the lawyer's representation of the client, including disciplinary proceedings initiated by a third party.
A lawyer is required to comply with a hearing panel's order to disclose information related to the representation of a client during a disciplinary proceeding after the lawyer asserts all nonfrivolous claims to protect the confidential information.

Holbach v. City of Minot (Consolidated w/20110278) 2012 ND 117
Docket No.: 20110277
Filing Date: 6/7/2012
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: Municipal courts are not courts of record.
Post-conviction relief under N.D.C.C. ch. 29-32.1 is not available in municipal courts in North Dakota.

Disciplinary Board v. Summers 2012 ND 116
Docket No.: 20120061
Filing Date: 6/7/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court reviews disciplinary proceedings de novo.

Working Capital #1 v. Quality Auto Body, et al. 2012 ND 115
Docket No.: 20110294
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An eviction to recover possession of real estate is maintainable when a lessee holds over after the termination of the lease or expiration of the lessee's term.
N.D.C.C. 47-16-06 does not automatically renew a lease for up to one year when a tenant holds over and a landlord accepts a rent payment; rather, the section only raises a disputable presumption that the lease was renewed on the same terms.
Issues or arguments not raised in the district court are generally not considered on appeal.

Dakota Resource Council, et al. v. Stark County Board of County Commissioners 2012 ND 114
Docket No.: 20110172
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A nonprofit organization that has not suffered an injury itself can sue as the representative of its members if: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Although interpretation of an ordinance presents a question of law fully reviewable on appeal, the interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.

State v. Chacano 2012 ND 113
Docket No.: 20110218
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The purpose of requiring the court's consent to dismissal under N.D.R.Crim.P. 48(a) is to prevent harassment of a defendant by charging, dismissing and recharging without placing a defendant in jeopardy.
Rule 48(a) applies to the dismissal of a criminal charge and does not require the prosecuting attorney to take any specific action before a charge dismissed without prejudice can be refiled.

State v. DeLeon (consol.w/20110351) 2012 ND 112
Docket No.: 20110350
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Order revoking probation and resentencing defendant to prison is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Duffy v. State 2012 ND 111
Docket No.: 20120025
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a petitioner's application for post-conviction relief on the basis of ineffective assistance of counsel is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State, et al. v. Nelson (cross-reference w/20100413) 2012 ND 110
Docket No.: 20110377
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order denying motion to dismiss an administrative lien placed on prisoner spending accounts is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Thorson v. State (cross-reference w/ 20020212) 2012 ND 109
Docket No.: 20120002
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Gress v. State (cross-reference w/20110047) 2012 ND 108
Docket No.: 20120129
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Unruh 2012 ND 107
Docket No.: 20110301
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court order revoking probation and an amended criminal judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Hangsleben v. Halverson 2012 ND 106
Docket No.: 20110307
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Summary judgment and award of costs and attorney's fees are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Minnkota Power Cooperative, Inc. v. Anderson, et al. (cons. w/20120024) 2012 ND 105
Docket No.: 20120017
Filing Date: 5/21/2012
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A party seeking to enter property to conduct testing and surveying under N.D.C.C. 32-15-06 must establish it is in the category of persons entitled to seek eminent domain.
Foreign cooperatives that have received a certificate of authority from the secretary of state are entitled to the same rights, exemptions, and privileges as similar North Dakota cooperatives. Those rights, exemptions, and privileges include the right to exercise the power of eminent domain if similar North Dakota cooperatives also have the right to exercise the power of eminent domain.

Estate of Boehm 2012 ND 104
Docket No.: 20110212
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: When technical language is used, meaning words that have acquired a peculiar and appropriate meaning in law, or are defined by statute, such words must be construed according to such peculiar and appropriate meaning or definition.
When a chapter or title of the Century Code conflicts with another chapter or title of the Code, the provisions of the chapter or title must prevail as to all matters in question arising thereunder out of the same subject matter.

State v. Parizek 2012 ND 103
Docket No.: 20110329
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Bell v. N.D. Dept. of Transportation 2012 ND 102
Docket No.: 20110201
Filing Date: 5/17/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: An individual who asks to consult with an attorney before deciding to take a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.
An individual given a telephone and a telephone book approximately eighteen minutes before the two-hour period for administering a chemical test expired had a reasonable opportunity to contact an attorney when the individual delayed the DUI investigation and called a friend rather than an attorney.

Kooser v. State 2012 ND 101
Docket No.: 20120058
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: North Dakota courts may accept a guilty plea accompanied by an assertion of innocence as permitted by the United States Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25 (1970).
A defendant entering an Alford plea need not personally provide the factual basis for the plea.

Dorothy J. Pierce Family Mineral Trust v. Jorgenson, et al. 2012 ND 100
Docket No.: 20110355
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable.

Watts, et al. v. Magic 2 x 52 Management, Inc., et al. 2012 ND 99
Docket No.: 20110145
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Post-judgment motion seeking to pierce corporate veil and to recover punitive damages based on prejudgment and post-judgment evidence must be brought under N.D.R.Civ.P. 59 or 60 when district court already considered and denied the requested relief in entering the judgment after trial.

Palmer v. State (consol.w/20110346-20110348)(cross-ref.w/20010123-20010126) 2012 ND 98
Docket No.: 20110344
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A decision cannot be properly reviewed on appeal if the district court does not provide an adequate explanation of its rationale for its decision.

State v. Lee 2012 ND 97
Docket No.: 20110121
Filing Date: 5/17/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A person arrested for DUI has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test.
If a DUI arrestee asked to take a chemical test makes any mention of a need for an attorney, the arresting officer must assume the arrestee is requesting an opportunity to consult with an attorney.
Defendant's mention of an attorney's name and passing reference to desire to fight DUI charge were not requests to consult with an attorney before taking a chemical test.
The bright-line rule for determining whether an arrestee has invoked the right to consult with an attorney before submitting to a chemical test adopted in Baillie v. Moore, 522 N.W.2d 748, 750 (N.D. 1994), applies in both administrative and criminal proceedings.

Wilson v. State (consolidated w/20110363) 2012 ND 96
Docket No.: 20110362
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

State v. Sandoval 2012 ND 95
Docket No.: 20110300
Filing Date: 5/17/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Amended criminal judgment after the district court revoked a defendant's probation and ordered him to serve a sentence longer than the original sentence the court imposed after he pled guilty to a felony and two misdemeanors is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matter of C.S. (CONFIDENTIAL) 2012 ND 94
Docket No.: 20110302
Filing Date: 5/17/2012
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 Richardson 2012 ND 93
Docket No.: 20110330
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Order civilly committing a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Tollefson (CONSOLIDATED W/ 20120131 & 20120132) 2012 ND 92
Docket No.: 20120130
Filing Date: 5/14/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Come Big or Stay Home, LLC v. EOG Resources, Inc. 2012 ND 91
Docket No.: 20110305
Filing Date: 5/4/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An agreement may be supplemented by custom or usage, under appropriate circumstances
Pooling and unitization of separately owned tracts do not create a cotenancy between the several leaseholders.
When a claim for conversion and a claim for breach of contract arise under the same facts, tort liability for conversion does not occur unless the conduct that constitutes a breach of contract also gives rise to liability independent of the existence of a contract between the parties.

Pifer v. McDermott 2012 ND 90
Docket No.: 20110287
Filing Date: 5/4/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A partial judgment that disposes of fewer than all claims against all parties will not be considered on appeal absent N.D.R.Civ.P. 54(b) certification.
On appeal, the appropriateness of N.D.R.Civ.P. 54(b) certification is reviewed.

Raymond J. German, Ltd. v. Brossart 2012 ND 89
Docket No.: 20110338
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When a default judgment, rather than a district court's order regarding a N.D.R.Civ.P. 60(b) motion to vacate the default judgment, is appealed, it is reviewed to determine whether irregularities appear on the face of the judgment.
District courts have broad discretion in the quality of proof necessary for entering a default judgment.
An appearance is any response sufficient to give a plaintiff or his or her attorney notice of an intent to contest the claim.

Lynch v. The New Public School District No. 8 2012 ND 88
Docket No.: 20110109
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Although a teacher who does not receive a notice of nonrenewal is entitled to an offer of reemployment under the same terms and conditions as the current contract, the teacher does not have a right to an identical contract with identical duties and assignments as the current year.
A teacher's right to an offer of reemployment is the right to continued employment in the district in a position for which the teacher is qualified, not the right to teach at a particular school or a particular grade level.
A notice of nonrenewal is required when a change in a teacher's assigned curricular duties is coupled with a severe reduction in salary; however, incidental financial or time consequences of a reassignment, including extra travel expenses and travel time, do not trigger the right to a notice of nonrenewal.

Johnson v. WSI, et al. 2012 ND 87
Docket No.: 20110262
Filing Date: 5/3/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: To receive WSI benefits, a claimant must prove, by a preponderance of the evidence, a compensable injury was suffered.
The definition of "compensable injury" excludes preexisting injuries unless the employment substantially accelerated or substantially worsened an injury's severity.
A compensable injury does not exist when a claimant's employment merely triggered symptoms of a preexisting injury.
When an employee cannot be returned to substantial gainful employment under the hierarchy of options in section 65-05.1-01(4), N.D.C.C., but meets the income test under section 65-05.1-01(6)(a)(3), N.D.C.C., the employee has a retained earnings capacity and is entitled to partial disability benefits.

Vining v. Renton 2012 ND 86
Docket No.: 20110233
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When considering modification of primary residential responsibility, a district court must gauge the best interests of the child factors against the backdrop of the stability of the child's relationship with the custodial parent.
Cases that are "close calls" may result in a change of primary residential responsibility when other considerations are weightier than the custodial stability factor.
Although a change of primary residential responsibility is legally permissible without resorting to other remedies, that result should be a rare event rather than the first choice.

Pelzl v. State (cross-reference 20100227) 2012 ND 85
Docket No.: 20110364
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Tibor v. State 2012 ND 84
Docket No.: 20110313
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Harmon v. State (Cross-reference w/19960206 & 19970100) 2012 ND 83
Docket No.: 20110343
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: A 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).

Willard v. Allstate Ins. Co., et al. 2012 ND 82
Docket No.: 20110314
Filing Date: 4/18/2012
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: Summary judgment in a wrongful death action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Tibert et al. v. Nodak Mutual 2012 ND 81
Docket No.: 20110143
Filing Date: 4/12/2012
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Public policy precludes an insured from being indemnified for losses caused by the insured's intentional or willful conduct.
In determining whether coverage is barred by an intentional acts exclusion in an insurance policy or by the statutory prohibition against coverage for intentional or willful conduct, intent to cause the injury or damages can be inferred when the act was done intentionally and was of such a character that harmful consequences are substantially certain to result from the act.
A tortfeasor who acted in concert with another by agreeing to pursue a common plan to commit wrongful acts, with knowledge of the plan and its purpose, intended the harm and injury caused by the wrongful act.
A liability insurer has a duty to defend an underlying action against its insured if the allegations in the complaint give rise to potential liability or the possibility of coverage under the policy, and any doubt about whether a duty to defend exists must be resolved in favor of the insured.

Hector v. City of Fargo 2012 ND 80
Docket No.: 20110187
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A resolution of necessity for an improvement district must set forth the general nature of the improvement, the approximate amount the municipality will be obligated to pay, and the amount proposed to be paid by special assessments.
The resolution of necessity and engineer's report for a proposed improvement does not include the final costs of the project, and the actual amount specially assessed may exceed the amount proposed in the resolution and engineer's report.
A special assessment commission has broad discretion in choosing the method used to decide the benefit a property receives from an improvement and to apportion the costs to individual properties.

M.M., et al. v. Fargo Public School Dist. #1, et al.(cross-reference w/ 20090121 2012 ND 79
Docket No.: 20110260
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: When statutes are silent on an issue, courts may consider authorities from outside the state to resolve the issue.
A parent is not entitled to recover medical expenses paid on behalf of an injured minor child whose comparative fault exceeds the fault of the tortfeasor.

Northern Excavating v. Sisters of Mary of the Presentation 2012 ND 78
Docket No.: 20110209
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: When no amount is stated in a construction contract, the amount of a filed construction lien must be reasonably accurate for the lienholder to avoid liability for the owner's costs and reasonable attorney's fees.
Under N.D.C.C. 35-27-24.1, an owner who successfully contests the validity or accuracy of a construction lien is entitled to all attorney's fees and costs associated with the lien contest.
Determination of who is a prevailing party is based upon success on the merits, not damages.

Schock v. N.D. Dept. of Transportation 2012 ND 77
Docket No.: 20110254
Filing Date: 4/10/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Common sense and experience permit an administrative hearing officer to aid in drawing inferences from the evidence presented.
An administrative hearing officer may take official notice of daylight savings time.
The statute requiring a hearing officer to "immediately deliver to the person a copy of the decision," is not basic and mandatory.

State v. Alaniz 2012 ND 76
Docket No.: 20110259
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The Fourth Amendment right to be free from unreasonable searches applies to searches by school authorities, and the legality of the search depends on its reasonableness.
A search by a school official is reasonable if the search was justified at its inception and the search was reasonably related in scope to the circumstances which justified the interference in the first place.
Generally, the reasonableness standard for school searches will apply when the search involves a school resource officer acting on his or her own initiative or at the direction of other school officials to further educationally related goals.

State v. Morin 2012 ND 75
Docket No.: 20110303
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A district court decision on a motion to suppress evidence will be affirmed if there is sufficient competent evidence to support the district court's findings and the decision is not contrary to the manifest weight of the evidence.
When determining whether consent to a warrantless search was voluntary, the existence or absence of certain factors concerning the condition and characteristics of the individual at the time of consent and the details of the setting in which consent was obtained are significant, but no one factor is dispositive.

Morris v. Moller 2012 ND 74
Docket No.: 20110196
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Parenting investigators must strictly adhere to their Code of Conduct when rendering services.
The fact that a district court agreed with a parenting investigator's analysis and conclusions is not in itself clearly erroneous.

Fetzer v. Workforce Safety and Insurance 2012 ND 73
Docket No.: 20110251
Filing Date: 4/10/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Claimants for workers' compensation benefits must prove a causal connection between their employment and injury.
The positional-risk doctrine is rejected because it negates the necessity of proving causation.

Dakota Resource Council v. ND Public Service Commission, et al. 2012 ND 72
Docket No.: 20110226
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Section 38-14.1-24(2), N.D.C.C., does not establish a hierarchy of postmining land uses.

Holbach v. City of Minot (cross-ref. 20070042, 20070289, 20090038 & 20100144) 2012 ND 71
Docket No.: 20110276
Filing Date: 4/10/2012
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)(4) and (7).

Adoption of K.R.H.N. (CONFIDENTIAL) 2012 ND 70
Docket No.: 20120139
Filing Date: 4/10/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Decree terminating parental rights and granting petition for adoption is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mendez 2012 ND 69
Docket No.: 20110274
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Other
Author:

Highlight: Criminal judgment for assault on a peace officer and contact by bodily fluids is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Order denying motion for mistrial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Guardianship/Conservatorship of D.F.S. 2012 ND 68
Docket No.: 20110335
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Guardian/Conservator
Author:

Highlight: Judgment dismissing with prejudice a petition for appointment as a guardian and conservator because of improper service is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
A district court without personal jurisdiction over a defendant may not dismiss the claim with prejudice.

State v. White 2012 ND 67
Docket No.: 20110288
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment entered after a defendant pled guilty to criminal trespass, menacing, preventing arrest, and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Yellow v. State (Consolidated w/20110310) 2012 ND 66
Docket No.: 20110309
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a petitioner's application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Rudolph v. N.D. Dept. of Transportation 2012 ND 65
Docket No.: 20110334
Filing Date: 4/10/2012
Case Type: Appeal - Administrative - Department of Transportation
Author:

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