Opinions

State v. Laverdure 2019 ND 72
Docket No.: 20180228
Filing Date: 3/13/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Sufficient probable cause existed to support the magistrate’s issuance of a search warrant.

State v. Rai 2019 ND 71
Docket No.: 20180244
Filing Date: 3/13/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: District court did not err in admitting lawfully obtained text message conversation from an undercover officer’s cell phone into evidence.

District court did not err in finding Miranda warnings were knowingly, voluntarily, and intelligently waived by defendant.

Defendant did not meet his burden of proof for N.D.R.Crim.P. Rule 29(a) motion for acquittal.

A rational fact-finder could find defendant failed to prove entrapment by a preponderance of the evidence.

Chisholm v. State 2019 ND 70
Docket No.: 20180340
Filing Date: 3/13/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: We distinguish peremptory demands for a change of judge from a demand for a change of judge based on bias.

Under N.D.C.C. § 29-15-21, subsequent applications for post-conviction relief are a continuation of the underlying action and considered a single proceeding.

Motions seeking the recusal of a judge for bias or prejudice must be considered by the judge who is sought to be disqualified.

Brewer v. State 2019 ND 69
Docket No.: 20180254
Filing Date: 3/13/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: An attorney’s failure to object to admission of evidence at trial because the attorney believes the record created in a pretrial motion in limine has preserved the issue falls outside the wide range of reasonable attorney performance. Where prejudice is also shown, such a failure to object to prior bad acts evidence at trial constitutes ineffective assistance of counsel.

Becker, et al. v. Burleigh County, et al. 2019 ND 68
Docket No.: 20180259
Filing Date: 3/13/2019
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: Injunctive relief may be granted against public entities without exhaustion of administrative remedies where the plaintiff challenges the legality and validity of a decision rather than the public entity’s wisdom, propriety, or correctness in making the decision.

Raising the grade of streets is consistent with travel or transportation, the primary use of streets.

A statutory dedication transfers the fee of the property to the public.

Publicly filed documents are presumed regular and correct until shown otherwise by evidence.

A party who fails to timely object to the clerk’s taxation of costs is precluded from seeking review of these costs on appeal.

Interest of Carter (cross-referenced w/20100180 & 20160236) 2019 ND 67
Docket No.: 20180189
Filing Date: 3/13/2019
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Tufte, Jerod E.

Highlight: A district court must find an individual has serious difficulty controlling his behavior to continue that person’s commitment as a sexually dangerous individual.

The conduct relied upon to demonstrate the individual’s serious difficulty controlling his behavior need not be sexual in nature.

State v. Alberts 2019 ND 66
Docket No.: 20180187
Filing Date: 3/13/2019
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Issues raised for the first time on appeal will not be considered unless they rise to the level of obvious error.
An unambiguous oral sentencing pronouncement will control over an ambiguous written sentence.
The district court has discretion in sentencing a criminal defendant, and review of a sentence on appeal is limited to determining whether the district court acted within the limits prescribed by statute or substantially relied on an impermissible factor.

State v. Thorsteinson 2019 ND 65
Docket No.: 20180233
Filing Date: 3/13/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In considering whether evidence of prior crimes, wrongs, or bad acts is admissible, a court must determine: (1) the purpose for which the evidence is introduced; (2) whether the evidence of the prior bad acts is substantially reliable or clear and convincing; and (3) whether proof of the crime charged permits the trier of fact to establish the defendant’s guilt or innocence independently on the evidence presented without considering the prior bad acts.

A court must give a cautionary instruction about the limited use of prior bad acts evidence, and must examine whether the probative value of the evidence substantially outweighs its possible prejudicial effect.

Jury instructions must correctly and adequately inform the jury of applicable law and it is not error to refuse to give defendant’s jury instruction if it may mislead or confuse the jury.

Gonzales v. WSI 2019 ND 63
Docket No.: 20180365
Filing Date: 3/13/2019
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

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

White v. State 2019 ND 62
Docket No.: 20180307
Filing Date: 3/13/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court’s finding that applicant for post-conviction relief failed to establish his counsel’s representation fell below an objective standard of reasonableness was not clearly erroneous.

Interest of C.H. (CONFIDENTIAL) (CONSOLIDATED W/20190019-20180021) 2019 ND 61
Docket No.: 20190018
Filing Date: 3/13/2019
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court’s finding that the children were exposed to aggravated circumstances was not clearly erroneous.

Miles v. Holznagel, et al. 2019 ND 60
Docket No.: 20180388
Filing Date: 3/13/2019
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court’s orders changing primary residential responsibility, denying a motion for continuance and denying a motion for a new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(2),(3) and(4).

State v. Gomez 2019 ND 59
Docket No.: 20180364
Filing Date: 3/13/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Summary affirmance of district court’s revocation of probation and resentencing.

Trust of Linn 2019 ND 58
Docket No.: 20180206
Filing Date: 2/28/2019
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: The primary objective in construing a trust instrument is to ascertain the settlor’s intent.
When a trust instrument is unambiguous, the settlor’s intent is ascertained from the language of the trust document itself.
An ambiguity exists when rational arguments can be made in support of contrary positions as to the meaning of the term, phrase, or clause in question.
Whether a trust is ambiguous is a question of law, fully reviewable on appeal.

Robert Banderet,et al. vs. Sargent Count Water Resource District, et al. 2019 ND 57
Docket No.: 20180253
Filing Date: 2/26/2019
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: In general, when an appeal from a local governing body’s decision is authorized by law, equitable relief against the enforcement of the decision will not be allowed.
An appeal of a local governing body’s decision must be taken within 30 days of the decision.

Bindas v. Bindas 2019 ND 56
Docket No.: 20180232
Filing Date: 2/25/2019
Case Type: Appeal - Civil - Divorce - Property
Author: Tufte, Jerod E.

Highlight: Section 14-05-24.1(3), N.D.C.C., which authorizes the district court to terminate spousal support when the spouse receiving support has been habitually cohabiting with another individual in a relationship analogous to a marriage for more than one year, does not apply when the parties have a contrary written agreement.

Dick v. Erman 2019 ND 54
Docket No.: 20180236
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Lenertz v. City of Minot N.D. 2019 ND 53
Docket No.: 20180153
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner’s property for a public use and the public use was the proximate cause of the taking or damages.

Whether private property was taken for public use is a question of law, fully reviewable on appeal.

The district court has broad discretion determining whether to allow expert witness testimony, and its decision will not be reversed on appeal unless it abused its discretion.

The district court’s decision to grant a motion for judgment as a matter of law is based on whether the evidence, viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Whether the evidence is sufficient to create a question of fact for the jury is a question of law.

State v. Hansford 2019 ND 52
Docket No.: 20180179
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Whether a suspect is in custody is a mixed question of fact and law which is fully reviewable on appeal.

A reasonable person would not believe he was in custody when he traveled unrestrained to the police station, was not placed under arrest or otherwise restrained, was told he was free to leave at any time, sat closest to the door during the interview, was interviewed in a room with only one law enforcement agent present, did not show any apprehension about being in the agent’s company, and told the agent he understood he was free to leave at any time.

It is the State’s burden to prove the voluntariness of a defendant’s confession and to produce evidence on relevant factors.

Even if a suspect is not in custody and Miranda warnings are given gratuitously, they are not rendered wholly irrelevant in determining whether incriminating statements were given voluntarily.

Parties raising a constitutional claim must provide persuasive authority and a reasoned analysis to support the claim.

State v. Powley 2019 ND 51
Docket No.: 20180226
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A pre-trial order in limine excluding evidence is a preliminary order that does not dispense with the need for the proponent to make an offer of proof at trial so the district court can consider the proffered evidence in the context of other evidence presented during trial.

An appeal by the State of an order in limine excluding evidence is not statutorily authorized.

The authority to issue a supervisory writ is discretionary and we decide whether to exercise our supervisory jurisdiction on a case-by-case basis.

An appeal by the State of an order denying a motion to amend an information is not statutorily authorized.

State v. Dowdy 2019 ND 50
Docket No.: 20180204
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: An arresting officer’s inclusion of additional information in the implied consent advisory must not materially mislead or coerce a defendant.
Whether a defendant voluntarily consents to chemical testing must be determined by the totality of the circumstances.

Varty v. Varty 2019 ND 49
Docket No.: 20180279
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: Agreements between divorcing parties are encouraged, and stipulated spousal support awards should be changed only with great reluctance.
The party seeking modification of spousal support must prove a material change in the financial circumstances of the parties warranting a change in support.
The district court must consider the relevant factors under the Ruff-Fischer guidelines in determining an award of spousal support.

Smith v. Erickson 2019 ND 48
Docket No.: 20180124
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Gonzalez v. State 2019 ND 47
Docket No.: 20180188
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: When an applicant for post-conviction relief alleges newly discovered evidence, a district court errs in sua sponte summarily denying the application, after the State has responded to the application, without providing the applicant notice and the opportunity to submit an answer with supporting materials to show the existence of a genuine issue of material fact.

A district court’s error in sua sponte summarily denying an application for post-conviction relief alleging newly discovered evidence after response by the State does not prejudice the applicant if the district court later considers and correctly rules on the merits in the applicant’s subsequent motion for reconsideration.

Kuntz v. State 2019 ND 46
Docket No.: 20180135
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court’s decision granting judgment on the pleadings under N.D.R.Civ.P. 12(c) is reviewed de novo.

A public entity violates the open records law when a person’s right to review or receive a copy of a record that is not exempt or confidential is denied or unreasonably delayed or when an excessive fee is charged.

A civil action for a violation of the open records law may be filed after an unreasonably delayed disclosure if a person alleges prejudice or harm caused by the delay.

An affidavit of service by mail filed with the court establishes service of the referenced documents. Service of an unsigned copy of the affidavit does not vitiate the evidence of service presented to the court by filing the signed affidavit.

Heidt v. Heidt 2019 ND 45
Docket No.: 20180250
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: District court erred in finding mother had not made a prima facie case for modification of primary residential responsibility.

State v. Abuhamda 2019 ND 44
Docket No.: 20180127
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: The right to appeal in this state is purely statutory, and without statutory authorization to hear an appeal this Court lacks jurisdiction.

An order approving pretrial diversion is not appealable under statutory authority contained in N.D.C.C. 29-28-06.

Supervisory writs may be issued in extraordinary cases to prevent injustice when no adequate alternative remedies exist.

While it is true N.D.R.Crim.P. 11(a)(2) does not require ritualistic compliance to enter a conditional guilty plea, courts must substantially comply with the rule’s procedural requirements to ensure defendants enter the plea voluntarily and intelligently.

State v. Vetter 2019 ND 43
Docket No.: 20180142
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: The statutory implied consent advisory must be read after a person is placed under arrest and before a chemical test may be administered to determine alcohol concentration.

The totality of the circumstances must be considered to determine whether a person voluntarily consented to submit to a blood test to determine blood-alcohol concentration.

An accurate reading of the implied consent advisory does not constitute per se coercion.

Estate of Krueger 2019 ND 42
Docket No.: 20180237
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: For purposes of Medicaid recovery from a surviving spouse’s estate, the Department’s recovery from a deceased recipient’s joint tenancy property is limited to the deceased recipient’s fractional interest in the property.

Schindler, et al. v. Wageman, et al. 2019 ND 41
Docket No.: 20180024
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Party was required to provide clear and convincing evidence that warranty deeds did not correctly state the parties’ intent.

Consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpled issue.

State v. Christie 2019 ND 40
Docket No.: 20180286
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Heldstab v. Heldstab 2019 ND 39
Docket No.: 20180299
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court’s divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Cody 2019 ND 38
Docket No.: 20180229
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Jury verdict finding defendant guilty of willfully giving false information to a law enforcement officer under N.D.C.C. § 12.1-11-03(1) and preventing arrest under N.D.C.C. § 12.1-08-02(1) is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Hagen v. Horst 2019 ND 37
Docket No.: 20180344
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court’s award of residential responsibility and child support, the implementation of supervised parenting time, and decision to issue an emergency ex parte custody order are summarily affirmed under N.D.R.App.P. 35.1(a) (2), (3) and(4).

State v. Goldsack (consolidated w/20180266) 2019 ND 36
Docket No.: 20180265
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment revoking probation and sentencing defendant to six years’ imprisonment summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4) and (7).

Interest of H.B. (CONFIDENTIAL) (CONSOLIDATED W/20180440 & 20180441) 2019 ND 35
Docket No.: 20180439
Filing Date: 2/21/2019
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating parental rights to H.B., V.B, and A.B. is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Brakke 2019 ND 34
Docket No.: 20180275
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment for driving with a suspended license is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Smith v. State 2019 ND 33
Docket No.: 20180276
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Tollefson v. Anderson & Fercho, PLLP, et al. 2019 ND 32
Docket No.: 20180310
Filing Date: 1/31/2019
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Appellant’s appeal of the district court’s order granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), (7).

This Court may award just damages and single or double costs, including reasonable attorney fees, if it determines an appeal is frivolous.

Wald v. Benedictine Living Communities, Inc. 2019 ND 31
Docket No.: 20180048
Filing Date: 1/25/2019
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: McEvers, Lisa K. Fair

Highlight: A post-verdict motion for judgment as a matter of law is a renewal of the pre-verdict motion and can be granted only on grounds advanced in the pre-verdict motion.

A jury verdict may not be based upon speculation of conjecture.

Friesner v. Friesner, et al. 2019 ND 30
Docket No.: 20180094
Filing Date: 1/22/2019
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A district court’s choice for primary residential responsibility between two fit parents is a difficult one, and the Supreme Court will not retry the case or substitute its judgment for that of the district court when its decision is supported by the evidence.

Permanent spousal support may be appropriate when there is a substantial income disparity between the spouses that cannot be remedied by property division or rehabilitative spousal support.

State v. Bearrunner 2019 ND 29
Docket No.: 20180258
Filing Date: 1/22/2019
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: Whether a fence is so enclosed as manifestly to exclude intruders is a finding of fact.

Appellant’s conduct did not rise to the level of “tumultuous and violent” as required under N.D.C.C. § 12.1-25-01.

State v. Foster 2019 ND 28
Docket No.: 20180098
Filing Date: 1/15/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: A witness may testify from personal knowledge about the witness’s own actions and observations even when they relate to acts technical in nature. If evidence is admitted in error, this Court will consider the entire record and decide in light of all the evidence whether the error was so prejudicial the defendant’s rights were affected and a different decision would have occurred absent the error.

Helbling v. Helbling 2019 ND 27
Docket No.: 20180095
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: When a divorce settlement agreement is incorporated and merged into a judgment, only the final judgment is interpreted and enforced, not the underlying contract between the parties.

Western Energy Corporation v. Stauffer, et al. 2019 ND 26
Docket No.: 20180283
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: District court judgment finding reformation of 1959 warranty deed barred by the ten-year statute of limitation under N.D.C.C. § 28-01-15(2) is affirmed.

Swanson v. Swanson 2019 ND 25
Docket No.: 20180158
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: District court division of marital property was not clearly erroneous.

While long-term marriages generally support an equal distribution of the marital property, a court does not err by considering how the property was acquired and acting to preserve the viability of a business operation like a family farm by awarding a majority of the marital property, and its corresponding debt, to one party.

Grina v. Job Service, et al. 2019 ND 24
Docket No.: 20180284
Filing Date: 1/15/2019
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: A Job Service decision is affirmed when a reasoning mind reasonably could have determined the agency’s factual conclusions were proved by the weight of evidence.

Interest of Jane Doe (CONFIDENTIAL) 2019 ND 23
Docket No.: 20180409
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: A district court’s finding that a person is mentally ill and in need of treatment will not be reversed unless it is clearly erroneous.

In determining whether an individual is a person requiring treatment a district court must consider whether the individual is mentally ill, and whether there is a reasonable expectation that, if the individual is not hospitalized, there exists a serious risk of harm to himself, others, or property.

State v. Pittenger 2019 ND 22
Docket No.: 20170279
Filing Date: 1/15/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Closing a trial to the public without proper analysis is a structural error requiring automatic reversal.

State v. Lyon 2019 ND 21
Docket No.: 20180130
Filing Date: 1/15/2019
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: A sentence in excess of a statutory provision or in some other way contrary to an applicable statute is an illegal sentence.