Opinions

Yellow Book Sales v. Bolinske Partnership, et al. 2011 ND 43
Docket No.: 20100283
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court order and judgment in a contract case summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Klein 2011 ND 42
Docket No.: 20100261
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court order denying a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4), and a criminal judgment sentencing a defendant as a dangerous special offender is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Deng 2011 ND 41
Docket No.: 20100247
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Assault
Author:

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

Disciplinary Board v. Delorme 2011 ND 40
Docket No.: 20100414
Filing Date: 3/17/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Vicknair, et al. v. Phelps Dodge Industries, Inc., et al. 2011 ND 39
Docket No.: 20100029
Filing Date: 2/18/2011
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: When a statute is derived from a uniform act it must be construed to effectuate its general purpose to make uniform the laws of those states which enact it.
A party seeking application of the "escape clause" in N.D.C.C. 28-01.2-04, which provides an exception to the general rule that the statute of limitations of the state whose substantive law governs the case should be applied, bears the burden of proving the escape clause applies.
A party who responds to a motion for summary judgment by requesting additional time for discovery under N.D.R.Civ.P. 56(f) must identify with specificity the particular information sought and explain how that information would preclude summary judgment and why it has not previously been obtained.

Brown v. Montana-Dakota Utilities Co., et al. 2011 ND 38
Docket No.: 20100220
Filing Date: 2/14/2011
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A municipality may enact ordinances allowing it to terminate a resident's services due to nonpayment for services.
A utility company may combine balances from a customer's separate accounts and terminate services if the combined balance remains unpaid, as long as the balances are from services of the same class and for the same customer.
A customer has received personal notice by delivery, as required by regulations, when it is evident on the record the customer was aware of an unpaid utility balance and the utility company's intent to disconnect services.

Hildenbrand v. Capital RV Center, Inc. 2011 ND 37
Docket No.: 20100118
Filing Date: 2/11/2011
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The law of the case doctrine and the scope of the parties' appeal define the parameters of appellate review.
A district court has broad discretion over the nature and scope of written questions submitted to the jury.
Contract provisions may establish entitlement to possession for conversion purposes.
The invocation of the shorthand expression "meeting of the minds" is more misleading than helpful in deciding contract issues.
A failure to explicitly request specific equitable relief is not fatal to a court's grant of equitable relief.

Sorenson v. Alinder, et al. 2011 ND 36
Docket No.: 20100254
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Under North Dakota's abandoned mineral statutes, the requirement of mailing a notice of lapse under N.D.C.C. 38-18.1-06(2) requires a "reasonable inquiry" only when the mineral owner's address does not appear of record.

Eaton v. State 2011 ND 35
Docket No.: 20100235
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The sufficiency of the factual basis to support a guilty plea is a question of law on appeal from a summary denial of an application of post-conviction relief, where the parties agree there were no disputed issues of fact.
Courts in post-conviction relief proceedings may consider information from the plea proceedings in addition to the factual basis presented to ensure there was a sufficient factual basis to support the guilty plea.
A court does not improperly infer an intent to deliver a controlled substance while establishing a factual basis to support a guilty plea, where the court relies on evidence of possession of a significant amount of the controlled substance and other items suggesting an intent to deliver.

Johnson, et al. v. Taliaferro, et al. 2011 ND 34
Docket No.: 20100314
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Subsequently enacted legislation cannot take away a vested right.

Sorenson v. Felton 2011 ND 33
Docket No.: 20100256
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The word 'or' is disjunctive in nature and ordinarily indicates an alternative between different things or actions. Terms or phrases separated by 'or' have separate and independent significance.
When the letter of the law is clear and free from ambiguity, a court need look no further than the statutory language, and it is neither necessary nor appropriate to delve into legislative history to determine legislative intent.

Kalvoda v. Bismarck Public School Dist. #1 2011 ND 32
Docket No.: 20100320
Filing Date: 2/8/2011
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: On appeal, the appellee is entitled to argue any grounds raised at the district court without cross-appealing, including those that were rejected. A cross-appeal is necessary only if the appellee seeks a more favorable result on appeal than it received in the district court.
The party seeking a writ of mandamus must demonstrate a clear legal right to performance of the acts sought and have no other plain, speedy, and adequate remedy in the ordinary course of law.

Pember v. Shapiro 2011 ND 31
Docket No.: 20100149
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may consider a mother's plan to relocate in making an initial custody award, but must do so within the best interests of the child factors.
A district court may make an initial custody award using the best interest of the child factors and proceed in the same judgment to consider the custodial parent's request to relocate with the children under the Stout-Hawkinson factors.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure and must credit any downward deviation for extended visitation for the entire year.

State v. Boespflug 2011 ND 30
Docket No.: 20100121
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The Legislature did not explicitly designate the three-year age difference requirement under N.D.C.C. 12.1-20-01(3) as an affirmative defense.
The Legislature did not make the reasonableness of the defendant's belief of the age difference a part of the three-year age difference requirement under N.D.C.C. 12.1-20-01(3).

State v. Gomez 2011 ND 29
Docket No.: 20100100
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The use of special verdicts or general verdicts with special interrogatories is disfavored in criminal cases and the rules of criminal procedure generally do not provide for special verdicts or interrogatories.
Sexual contact, as defined in N.D.C.C. 12.1-20-02(5), includes any touching, whether through clothing or other covering, of the sexual parts of the person. The language of the statute does not limit sexual contact to any touching of the sexual parts of a child.
A criminal defendant has a constitutional right to a jury trial with an impartial jury selected from a representative cross-section of the community.
To establish a prima facie violation of the fair-cross-section requirement, a defendant must show that there was an underrepresentation of a distinctive group in jury venires and that the underrepresentation was due to systemic exclusion of the group in the jury-selection process.
A punishment in a non-capital case that is grossly disproportionate to the offense is cruel and unusual punishment.

Estate of Haugen 2011 ND 28
Docket No.: 20100165
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: When the entire estate is distributed to the surviving spouse under section 30.1-04-02, N.D.C.C., nothing is distributed under section 30.1-04-03, N.D.C.C.
The district court is required to make specific findings that allow meaningful appellate review.

Community Homes of Bismarck, Inc. v. Main 2011 ND 27
Docket No.: 20100095
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: A proper foundation must be established before witnesses may refer to notes or to other documents to refresh their memory, and the proper foundation requires witnesses to show a need to refresh their memory and to confirm the notes will assist them in refreshing their memory.
Opposing counsel has the right at trial to inspect a document used to refresh witnesses' recollections, to cross-examine the witnesses on the document, and to introduce relevant portions of the document into evidence.
A new written promise to pay a debt may revive a debt that is barred by the statute of limitations.
Whether a party has breached a lease is a finding of fact.

Whelan v. A.O. (CONFIDENTIAL) 2011 ND 26
Docket No.: 20100219
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A trial court's findings of fact and conclusions of law on whether a sexually dangerous individual's treatment program is the least restrictive treatment facility or program available must be supported by clear and convincing evidence.
An appellate court will address only those issues that are thoroughly briefed and argued. Mere assertions of unconstitutionality are insufficient to adequately raise a constitutional question.

Interest of L.D.M. (CONFIDENTIAL) 2011 ND 25
Docket No.: 20100137
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A trial court reviewing the civil commitment of a sexually dangerous individual must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

Doll v. Doll 2011 ND 24
Docket No.: 20100133
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: On appeal from a trial court's award of primary residential responsibility, the evidence is not reweighed nor the credibility of witnesses reassessed.

State v. Huber 2011 ND 23
Docket No.: 20100209
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Warrantless discovery of evidence in a defendant's home is justified under the emergency exception if entry was actually motivated by a perceived need to render aid or assistance.
Exigent circumstances and the emergency exception are analogous, but the emergency exception is focused on law enforcement protecting citizens and property as part of its general caretaking responsibilities.

Irish Oil & Gas, Inc. v. Riemer, et al. 2011 ND 22
Docket No.: 20100064
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A contract must be read in its entirety so that all of its provisions are taken into consideration to determine the true intent of the parties.
Distinguishing between a partial or a total failure of consideration is important because it dictates the remedy.

Matter of G.R.H. (CONFIDENTIAL) 2011 ND 21
Docket No.: 20100114
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: North Dakota's statutes for the commitment of sexually dangerous individuals function as a proper civil commitment framework because they contain rigid procedural and evidentiary safeguards.
In reviewing a petition for discharge as a sexually dangerous individual, the district court must consider all evidence regarding the individual's treatment to ensure adequate protection for the public and treatment for the individual.

State v. Carpenter 2011 ND 20
Docket No.: 20100085
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A trial court must determine whether a person convicted of a crime is a habitual offender under the statute before enhancing the convicted person's sentence.
Reasonable notice must be given of the State's intention to seek a sentence enhancement for a criminal offender based on a habitual offender status.

State v. Curtis (Cross-reference No. 20080007) 2011 ND 19
Docket No.: 20100154
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgment revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Wilson 2011 ND 18
Docket No.: 20100236
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

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

State v. Pederson 2011 ND 17
Docket No.: 20100187
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition and sexual assault, and order denying motion for a new trial summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Foreid v. State (cross-reference w/20080128) 2011 ND 16
Docket No.: 20100325
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Binstock v. N.D. Dep't. of Transportation 2011 ND 15
Docket No.: 20100287
Filing Date: 2/8/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The district court's judgment affirming the Department of Transportation's revocation of a driver's license is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Interest of J.W., a child (CONFIDENTIAL) 2011 ND 14
Docket No.: 20100376
Filing Date: 2/8/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Rudolph v. State 2011 ND 13
Docket No.: 20100249
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

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

Howard Venture, LLC, et al. v. Heinze 2011 ND 12
Docket No.: 20100119
Filing Date: 1/14/2011
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Summary judgment ordering reimbursement in a contract dispute summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

State v. Thompson (Consolidated w/20100176) 2011 ND 11
Docket No.: 20100175
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A person has been 'seized' within the meaning of the Fourth Amendment only if a reasonable person would have believed that he was not free to leave.

Guardianship/Conservatorship of G.L. 2011 ND 10
Docket No.: 20100246
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Guardian/Conservator
Author: Sandstrom, Dale

Highlight: A party may not collaterally attack a prior unappealed order in a subsequent proceeding.
A guardian and a conservator are entitled to reasonable compensation for services, and a district court has discretion to determine the amount of reasonable compensation.

Matter of T.O. (CONFIDENTIAL) (cross-reference w/20090181) 2011 ND 9
Docket No.: 20100270
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court reviewing the civil commitment of a sexually dangerous individual must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

Disciplinary Board v. Kirschner (Consolidated w/ 20100251) 2011 ND 8
Docket No.: 20100250
Filing Date: 1/12/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Personal matters do not justify or excuse an attorney's misconduct but are mitigating factors that may reduce a disciplinary sanction.
Under the standards for imposing lawyer sanctions, a court imposing a disciplinary sanction against a lawyer should consider the ethical duty violated by the lawyer, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.

Investors Title Insurance Co. v. Herzig, et al. 2011 ND 7
Docket No.: 20100108
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Although a district court generally loses jurisdiction when a notice of appeal is filed, an appeal does not stay proceedings for the enforcement of a judgment.
After the time periods set forth in the statute governing cancellation of judgments have passed, a judgment is unenforceable against the judgment debtor.

State v. Martin 2011 ND 6
Docket No.: 20100204
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: In interpreting a statute, the word "or" is generally disjunctive in nature and indicates an alternative between different things and actions. The literal meaning of the word "or" will apply unless it renders the statute inoperable or its meaning becomes questionable.
The State may pursue both a criminal and civil action simultaneously against the same individual for a public nuisance.

State v. Golden (Cross-reference w/20080301) 2011 ND 5
Docket No.: 20100132
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for class C felony reckless endangerment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Berg v. Wysocki 2011 ND 4
Docket No.: 20100179
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A judgment granting primary residential responsibility of a child to one parent, and parenting time to the other, is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Pelzl 2011 ND 3
Docket No.: 20100227
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Judgment revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Ames 2011 ND 2
Docket No.: 20100224
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Buller 2011 ND 1
Docket No.: 20100215
Filing Date: 1/11/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Sex offernder registration order summarily affirmed under N.D.R.App.P. 35.1(a)(7).

American Bank Center v. Wiest, et al. 2010 ND 251
Docket No.: 20100027
Filing Date: 12/23/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Fraud and deceit may be imputed from an agent to the principal.
A principal cannot take the benefit of the transaction conducted by its agent ostensibly on its behalf without assuming full responsibility, not only for his acts, but also for his knowledge.
The adverse interest exception applies only when a third person seeks to enforce some demand against the corporation, but has no application where the corporation seeks to enforce the benefit of a fraud perpetrated by its officer on a third person.
Rescission of a contract is not a matter of absolute right, but instead is committed to the district court's sound discretion.

RECALLND v. Jaeger 2010 ND 250
Docket No.: 20100228
Filing Date: 12/21/2010
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: The North Dakota Constitution limits the people's recall power to "certain elected officials" holding offices created under the laws of North Dakota.
The Secretary of State must exercise a certain amount of discretion in carrying out his duties under N.D. Const. art. III, and it is appropriate for him to rely on the Attorney General's opinion when uncertain about a legal question.

Interest of A.B., a Child (CONFIDENTIAL)(CONSOLIDATED W/201000352) 2010 ND 249
Docket No.: 20100351
Filing Date: 12/21/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A juvenile court may terminate a parent's right to a child if the court finds the child is a deprived child; the conditions and causes of deprivation are likely to continue; and the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.

State v. Buckley 2010 ND 248
Docket No.: 20100033
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A conviction for manslaughter does not improperly rely on guilt by omission where the prosecution proves the defendant engaged in conduct recklessly and failed to provide the proper level of care for the victim, the defendant's child.
A trial court does not err by rejecting the defendant's request to instruct the jury on a civil instruction for proximate cause where the statutory definitions of manslaughter and recklessness are sufficient.
Evidence of a defendant's drug possession and use is relevant to criminal charges of drug possession, and to the level of care the defendant's child received from the defendant.
Prejudice resulting from the probative value of evidence does not make the evidence unfairly prejudicial.

Duff v. Kearns-Duff 2010 ND 247
Docket No.: 20100116
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A parent's recent and relative financial contribution to a marriage is an impermissible consideration for analyzing child custody.
Rehabilitative spousal support may be awarded to equalize the burdens of a divorce or to restore an economically disadvantaged spouse to independent status by providing the disadvantaged spouse an opportunity to acquire an education, training, work skills, or experience to become adequately rehabilitated.

State v. Charbonneau 2010 ND 246
Docket No.: 20100089
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The Uniform Controlled Substances Act is not a habitual offender statute.
The term "offense" under the Uniform Controlled Substances Act means "the actor's conduct, not the ultimate conviction."
Under the Uniform Controlled Substances Act, a plea or finding of guilty for a prior offense must occur before new criminal conduct occurs.

Grand Forks Housing Authority v. Grand Forks Board of County Commissioners 2010 ND 245
Docket No.: 20100196
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A housing authority may agree to make payments to the state or a political subdivision in lieu of taxes, even when the property is tax-exempt.
A board of county commissioners does not act arbitrarily, capriciously, or unreasonably when substantial evidence supports its factual findings.
A district court does not abuse its discretion by denying a motion to remand for additional evidence when the party seeking remand had the opportunity, but failed to present such additional evidence at the hearing before the local governing body and when such additional evidence is not material to the district court's review of the local governing body's decision.

State v. Franzen 2010 ND 244
Docket No.: 20100105
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The continued seizure of a traffic violator after the purposes of the initial traffic stop are completed violates the Fourth Amendment unless the officer has reasonable suspicion for believing criminal activity is afoot.
The use of a masking odor and extreme nervousness are relevant factors in deciding whether reasonable suspicion exists.

Pizza Corner v. C.F.L. Transport 2010 ND 243
Docket No.: 20100084
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The business records exception to the hearsay rule can apply to a document created by a third party if the offering company integrated the record into its own records and relied on it, and if the record meets the other requirements of N.D.R.Ev. 803(6).

City of Grand Forks v. Riemers 2010 ND 242
Docket No.: 20100107
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for driving without liability insurance summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

In the Interest of Voisine 2010 ND 241
Docket No.: 20100163
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Civil commitment of a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Miller 2010 ND 240
Docket No.: 20100127
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgment for unlawfully acting in the capacity of a contractor and two counts of theft of property summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Foss 2010 ND 239
Docket No.: 20100151
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of a controlled substance and unlawful possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Cody v. State 2010 ND 238
Docket No.: 20100177
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Gajewski v. State, et al. 2010 ND 237
Docket No.: 20100231
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Constitutional Law
Author: Per Curiam

Highlight: Order denying motion to vacate judgment summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Cavendish Farms v. Mathiason Farms (consolidated w/20100123) 2010 ND 236
Docket No.: 20090380
Filing Date: 12/14/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Although N.D.C.C. 41-01-18 does not authorize a separate, independent claim for relief for breach of the duty of good faith, a failure to perform or enforce a contractual duty or obligation in good faith constitutes a breach of the contract.
A contract to purchase a future crop is a contract for the sale of goods under N.D.C.C. tit. 41, even if the crop has not yet been planted.
When one party is given substantial discretion in its manner of performance of a duty or exercise of a right under a contract, N.D.C.C. 41-01-18 requires that the party exercise that discretion in good faith and in a commercially reasonable manner.
An award of damages that is within the range of the evidence presented will be sustained on appeal.

B.D.H., et al. v. Mickelson, et al. 2010 ND 235
Docket No.: 20100152
Filing Date: 12/7/2010
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: North Dakota law precludes a child from bringing a claim against medical providers for wrongful life claim in which the child alleges he or she was born with impairments and would not have been born but for a doctor's negligent advice or treatment of the child's mother.

Hoover v. N.D. Dept. of Transportation (cross-reference 20070258) 2010 ND 234
Docket No.: 20100226
Filing Date: 12/7/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment revoking a driver's license is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Huether 2010 ND 233
Docket No.: 20100018
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Voluntary consent is an exception to the warrant requirement, and the prohibition against the warrantless entry of a person's home does not apply when voluntary consent has been obtained from the individual whose property is searched or from a third party who possesses common authority over the premises.
The Fourth Amendment is not violated if police officers reasonably believe a consenting third party has authority over the property, when viewed from the officers' prospective.
In deciding whether a person is in custody for purposes of a Miranda warning, the relevant inquiry is how a reasonable person in that position would have understood the situation.
A trust relationship between an adult and a child is not an impermissible factor for sentencing.

State v. Steffes 2010 ND 232
Docket No.: 20100148
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A Fourth Amendment seizure occurs when a police officer orders a person to do something or demands a response.

Hunt v. Hunt 2010 ND 231
Docket No.: 20100178
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A property division need not be equal to be equitable--especially when a marriage is not long-term--but a substantial disparity must be explained.
Damaging a vehicle and setting fire to a mobile home, regardless of the amount of monetary damage, is serious misconduct the district court can and should consider in an equitable division of property.

State v. Zink 2010 ND 230
Docket No.: 20100117
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A district court's denial of a motion to suppress evidence will be affirmed unless there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence.
Appellate review is limited to issues raised before the district court.

State v. Moore 2010 ND 229
Docket No.: 20100238
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: The substance of a motion, not the district court's label, determines its proper classification.
Res judicata and misuse of process are affirmative defenses that must be raised by the State before a district court may dismiss an application for post-conviction relief on those grounds.

State v. Duffy 2010 ND 228
Docket No.: 20100126
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Curran v. N.D. Workforce Safety & Insurance 2010 ND 227
Docket No.: 20090260
Filing Date: 12/2/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A preexisting injury is not compensable unless the employment substantially accelerates its progression or substantially worsens its severity.
In a "battle of the experts," WSI, and following the enactment of N.D.C.C. 65-02-22.1, the administrative law judge, may choose to rely upon either party's expert witnesses but must adequately explain its reasoning for disregarding medical evidence favorable to the claimant.

Everett v. State (cross-reference 20080063 and 20090244) 2010 ND 226
Docket No.: 20100222
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Schmidt v. Warwick Public School District #29, et al. 2010 ND 225
Docket No.: 20100129
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment of dismissal in a wrongful termination case is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), and (6).

State v. Delaney 2010 ND 224
Docket No.: 20100160
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Blurton v. State 2010 ND 223
Docket No.: 20100182
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

State v. Berglund 2010 ND 222
Docket No.: 20100186
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for a second or subsequent violation of a domestic violence protection order summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Missouri Breaks, et al. v. Burns, et al. 2010 ND 221
Docket No.: 20100124
Filing Date: 11/16/2010
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A bankruptcy court's confirmation of a reorganization plan is binding on the debtor and any creditor, and, for purposes of res judicata, confirmation is a valid, final judgment by a court of competent jurisdiction.
The Bankruptcy Code vests the trustee with the rights of a bona fide purchaser of real property for value and permits the invalidation of security interests in real property which, although enforceable between the parties, are not perfected at the start of the case because the creditor has failed to fully comply with state recording laws.

Markwed Excavating, Inc. v. City of Mandan 2010 ND 220
Docket No.: 20100076
Filing Date: 11/15/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A clause in a construction contract prohibiting a contractor from recovering damages for delay and granting an extension of time is enforceable if the requirements for a valid contract are satisfied.
Unambiguous language in a no damages for delay clause in a construction contract does not include an exception for uncontemplated delays and includes delays allegedly caused by an owner or another contractor.
A no damages for delay clause in a contract between a public entity and a private contractor is not unconscionable.

Wong v. State 2010 ND 219
Docket No.: 20100171
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A district court cannot on its own put an applicant for post-conviction relief to his proof. Only a party can move for summary disposition under post-conviction relief.

Sanders v. Gravel Products, Inc. (cross-ref w/ 20080001) 2010 ND 218
Docket No.: 20090318
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Federal and state courts have concurrent jurisdiction over participant or beneficiary suits to recover benefits under an ERISA plan, to enforce rights under the plan, or to clarify rights to future benefits.
"Top hat" plans are not subject to ERISA's requirements for vesting and funding, and administrators of these plans are not subject to ERISA's fiduciary requirements.
A court must interpret a plan's terms by giving the language its common and ordinary meaning as a reasonable person in the position of the plan participant would have understood the words to mean.

State v. Hager 2010 ND 217
Docket No.: 20100090
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Federal securities laws do not preempt state securities laws that require registration of individuals involved in the sale of securities.
The definition of agent for purposes of the North Dakota Securities Act is not limited to third-party individuals who are not employees or owners of the securities issuer.

Gussiaas v. Neustel 2010 ND 216
Docket No.: 20100086
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A move by a parent with primary residential responsibility either out-of-state or in-state, accompanied by other circumstances, may be viewed as a material change of circumstances.
If a district court finds a material change of circumstances has occurred, the court cannot change primary residential responsibility for the child unless it further finds that the modification is necessary to serve the best interests of the child.
A district court's findings of fact must be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the trial court's decision.

JLY Transport v. WSI 2010 ND 215
Docket No.: 20100156
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The Workforce Safety & Insurance fund is not required to prove a compensable injury occurred before entering into a stipulated settlement with a worker.

State v. Walker 2010 ND 214
Docket No.: 20100112
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A defendant may be treated as the principal actor in a crime and convicted of an offense on the basis of the actions of an accomplice.
Neither the State nor a defendant may appeal a sentence alone, but either may appeal a post-judgment order denying a motion to correct an illegal sentence.

Johnson v. State (CONSOLIDATED W/20090322) 2010 ND 213
Docket No.: 20090321
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The Uniform Post-Conviction Procedure Act does not entitle a district court, on its own motion, to dismiss a claim on the basis of the affirmative defenses of res judicata or misuse of process.

Flemming v. Flemming 2010 ND 212
Docket No.: 20100041
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A default divorce judgment is subject to N.D.R.Civ.P. 60(b) and is not typically appropriate for appeal.

Masset v. N.D. Dep't of Transportation 2010 ND 211
Docket No.: 20100098
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Every administrative agency must maintain an official record of each adjudicative proceeding heard by it.

State v. Aguero (Consol. w/ 20090254) 2010 ND 210
Docket No.: 20090241
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: The U.SConstitution forbids the routine use of visible physical restraints during the guilt phase of a criminal trial, unless the use is justified by an essential state interest.
The Sixth Amendment Confrontation Clause does not require exclusion of non-testimonial statements.
Miranda warnings carry an implicit assurance that silence will not carry a penalty, and the State may not use a criminal defendant's post-Miranda silence at trial against him.

Holbach v. State (Consolidated w/ 20100142-20100146) 2010 ND 209
Docket No.: 20100141
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying application for post-conviction relief, order denying motion to amend the judgment, and order on request for return of personal property are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of Disbrow 2010 ND 208
Docket No.: 20100028
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order of commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of R.J. (CONFIDENTIAL)(CONS. w/20100299 - 20100303) 2010 ND 207
Docket No.: 20100298
Filing Date: 11/9/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Nelson v. Nelson 2010 ND 206
Docket No.: 20100122
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment denying request for spousal support summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Szklarski 2010 ND 205
Docket No.: 20100087
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Johnson (cross ref. 20100001) 2010 ND 204
Docket No.: 20100135
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: District court order denying a motion to extend the time to file a notice of appeal is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kidwell v. McLean County et al. 2010 ND 203
Docket No.: 20100168
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Vanderscoff v. Vanderscoff 2010 ND 202
Docket No.: 20100092
Filing Date: 10/26/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A motion for reconsideration may be treated as a motion to alter or amend a judgment under N.D.R.Civ.P. 59(j) or as a motion for relief from a judgment or order under N.D.R.Civ.P. 60(b).
On appeal, a court's decision denying a motion for relief from a judgment or order is reviewed to determine whether the court abused its discretion in ruling the moving party did not establish sufficient grounds for disturbing the judgment or order.

Lange v. Dep't of Transp. 2010 ND 201
Docket No.: 20100096
Filing Date: 10/25/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: An arrestee has the responsibility to assert the right to an independent chemical test for intoxication.
The arrestee suffers the consequences of ambiguities in requesting an independent chemical test for intoxication when a law enforcement officer reasonably does not understand that the arrestee is attempting to assert the right to an independent test.
Law enforcement officers cannot interfere with an arrestee's attempts to secure an independent test, but unless an arrestee has done more than request an independent test, law enforcement does not need to assist the arrestee beyond providing access to a telephone.

Renville v. Renville 2010 ND 200
Docket No.: 20090343
Filing Date: 10/22/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Trial court's valuation of parties' business in divorce proceedings summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Joyce v. Joyce 2010 ND 199
Docket No.: 20100185
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A prima facie case for a change of primary residential responsibility requires facts that, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed.
An actual arrangement for primary residential responsibility that is substantially different from a prior judgment may constitute a material change in circumstances for a change of primary residential responsibility.

Johnson v. N.D. Workforce Safety & Insurance, et al. 2010 ND 198
Docket No.: 20090371
Filing Date: 10/19/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: In reapplying for workers compensation disability benefits, a claimant must show both a significant change in a compensable medical condition and an actual wage loss caused by the significant change in the medical condition.

Hoggarth, et al. v. Kropp 2010 ND 197
Docket No.: 20090326
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: "Disorderly conduct" for the purposes of a disorderly conduct restraining order depends on the total behavior of the respondent, not merely the particular content of speech.
A disorderly conduct restraining order must be narrowly tailored as to time and distance to balance the protection interests of the petitioner with the freedom interests of the respondent.

Marsden v. Koop 2010 ND 196
Docket No.: 20090285
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An extramarital relationship may be relevant to primary residential responsibility if the children were affected by it.
Inherited property is included in the marital estate and is subject to equitable distribution.

R.F. v. M.M., et al. (CONFIDENTIAL) 2010 ND 195
Docket No.: 20100046
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: When the plaintiff is not the appropriate party to bring an action under a statute, the court must give the party a reasonable time for ratification, joinder, or substitution of the real party in interest before dismissing the action.
A court's decision on grandparent visitation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
A grandparent does not have to have an existing relationship with the child before a court may award grandparent visitation, but the court must find that the visitation is in the child's best interests and that the visitation will not interfere with the parent-child relationship.