Opinions

Schultz v. Schultz 2018 ND 259
Docket No.: 20180097
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: There is no bright-line rule to distinguish between short and long-term marriages.

This Court will not reverse a district court’s findings on valuation of marital property unless they are clearly erroneous.

When a distribution of property includes periodic cash payments from one spouse to another, a district court has broad authority to provide for the payment of interest in order to achieve an equitable distribution of the property.

Green v. Swiers 2018 ND 258
Docket No.: 20180114
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court’s decision on a motion to relocate is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.

To modify parenting time, the movant must establish a material change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order.

A material change in circumstances sufficient to amend a parenting time order is similar to, but distinct from, a material change in circumstances sufficient to change primary residential responsibility.

A district court’s decision to modify parenting time is a finding of fact, which will not be reversed on appeal unless clearly erroneous.

Interest of A.L.E. (CONFIDENTIAL) 2018 ND 257
Docket No.: 20180341
Filing Date: 12/6/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Jensen, Jon J.

Highlight: Prenatal exposure to any controlled substance is a ground for a finding of deprivation.

A parent’s past conduct can form the basis to predict future behavior and a parent’s lack of cooperation with social service agencies is evidence that the causes and conditions of deprivation will likely continue.

When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life.

State v. Bornsen 2018 ND 256
Docket No.: 20180093
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: Investigatory traffic stops are valid when the officer conducting the stop had a reasonable and articulable suspicion the motorist has violated or is violating the law.

Traffic violations, even if considered common or minor, constitute prohibited conduct which provide officers with requisite suspicion for conducting investigatory stops.

LeClair v. Sorel 2018 ND 255
Docket No.: 20180155
Filing Date: 12/6/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: The implied consent advisory provided to a driver after an arrest for driving under the influence must be substantively complete.
The entire substance of the advisory was conveyed despite the officer’s omission of the word “punishable” from the statutory language in N.D.C.C. 39-20-01(3)(a).

State v. Ferderer 2018 ND 254
Docket No.: 20180072
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A revocation of a sentence for a probation violation does not violate double jeopardy.

Tornabeni v. Wold, et al. 2018 ND 253
Docket No.: 20180164
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The existence and terms of an oral contract are findings of fact subject to the clearly erroneous rule.
A district court’s determination of whether the facts support a finding of unjust enrichment is fully reviewable on appeal.
An award of damages for an unjust enrichment claim is reviewed under the clearly erroneous standard.
Issues not raised in the district court are waived.

State v. Hebert 2018 ND 252
Docket No.: 20180171
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment convicting the defendant of tampering or damaging a public service is summarily reversed under N.D.R.App.P. 35.1(b).

Sabot v. State 2018 ND 251
Docket No.: 20180191
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of post-conviction relief summarily affirmed under N.D.R.App.P 35.1(a)(2) and (7).

Interest of D.V.A. (Confidential) 2018 ND 250
Docket No.: 20180166
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

State v. Mejia 2018 ND 249
Docket No.: 20180178
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Summary affirmance is appropriate when there is sufficient evidence to support a guilty verdict.

In a case tried without a jury, the court need only find the defendant guilty or not guilty.

Sorlie v. Sorlie 2018 ND 248
Docket No.: 20180071
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court’s award of residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Johnston Law Office, P.C. v. Brakke, et al. 2018 ND 247
Docket No.: 20180029
Filing Date: 11/19/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: If a party moving for summary judgment meets its initial burden of showing there are no genuine issues of material fact and it is entitled to judgment as a matter of law, the party opposing the motion must present competent admissible evidence to show the existence of a genuine issue of material fact.

Petition to Permit Temporary Provision of Legal Services 2018 ND 246
Docket No.: 20160436
Filing Date: 1/9/2019
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Order on petition for temporary lawyer practice.

Petition to Permit Temporary Provision of Legal Services 2018 ND 246
Docket No.: 20160436
Filing Date: 11/15/2018
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Order on petition for temporary lawyer practice.

Petition to Permit Temporary Provision of Legal Services 2018 ND 246
Docket No.: 20160436
Filing Date: 1/18/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Order on petition for temporary lawyer practice.

Thompson, et al. v. Molde, et al. 2018 ND 245
Docket No.: 20170127
Filing Date: 11/13/2018
Case Type: Appeal - Civil - Tax Realted
Author: Crothers, Daniel John

Highlight: Summary judgment allows for the prompt resolution of a controversy on the merits without a trial if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law.

The Supreme Court may award just damages and single or double costs, including reasonable attorney’s fees for a frivolous appeal.

State v. Rogers 2018 ND 244
Docket No.: 20170389
Filing Date: 11/6/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: Defendant appeals from a district court judgment for gross sexual imposition. Because the district court did not make individualized findings supporting closure of the competency hearing under Waller, the Sixth Amendment public trial guarantee wasviolated. The restitution award was proper and it is affirmed consistent with our remand. We remand for further proceedings.

Upton v. Nolan 2018 ND 243
Docket No.: 20180119
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Although a district court has continuing jurisdiction to modify parenting time, due process requires a parent receive adequate notice and a fair opportunity to be heard.

Due process notice requirements are satisfied when an unpled issue is tried by the implied consent of the parties.

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 unpleaded issue.

A district court has broad discretion in making contempt decisions and in awarding attorney fees as reimbursement for costs and expenses incurred as a result of the contempt.

State v. Sanchez (consolidated w/20180064) 2018 ND 242
Docket No.: 20180063
Filing Date: 11/6/2018
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Highlight: A district court may extend on its own a self-imposed deadline for scheduling or holding a restitution hearing.

State v. Jessee 2018 ND 241
Docket No.: 20180047
Filing Date: 11/6/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: Questions of fact in a criminal bench trial are reviewed in the same manner as questions of fact in a criminal jury trial.

Tampering with a public service requires an alteration or harmful change towards property under the control of the public service.

State v. Etemad 2018 ND 240
Docket No.: 20170421
Filing Date: 11/6/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court judgment entered after a jury found Etemad guilty of terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Under an obvious error analysis, in order to find a violation affects substantial rights a moving party must demonstrate the violation significantly prejudiced him.

Pederson v. State 2018 ND 239
Docket No.: 20180126
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying motion for relief under N.D.R.Civ.P. 60(b) and application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Marler v. Martin, et al. 2018 ND 238
Docket No.: 20180019
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: A judgment and order denying a motion for a new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

City of Fargo v. Nelson 2018 ND 237
Docket No.: 20170424
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Civil judgment finding appellant's property constitutes a public nuisance, requiring abatement of the nuisance, and granting a permanent injunction from maintaining a nuisance on the property is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4),(7).

Interest of G.F. (CONFIDENTIAL) 2018 ND 236
Docket No.: 20180332
Filing Date: 11/6/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court order terminating parental rights under N.D.C.C.  27-20-44(1)(c)(1) and N.D.C.C.  27-20-44(1)(c)(2) is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Guardianship/Conservatorship of M.J.K. 2018 ND 235
Docket No.: 20180058
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: District Court’s finding that the ward fails to make a prima facie case to terminate guardianship is summarily affirmed under N.D.App.P. 35.1(a)(2) and (7).

Constitutional issues not pursued in the district court cannot be raised for the first time on appeal.

McGath v. Waide 2018 ND 234
Docket No.: 20180159
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Prairie Winds Apartments 1, LLC v. Stark County Board of Commissioners (cons 2018 ND 233
Docket No.: 20180149
Filing Date: 11/6/2018
Case Type: Appeal - Civil - Administrative Proceeding
Author: Per Curiam

Highlight: To properly appeal a board of county commissioners’ decision relating to tax matters, a landowner must file a notice of appeal on a board member and the state tax commissioner within thirty days of the board’s decision.

Vacancy in Judgeship No. 2, East Central Judicial District 2018 ND 232
Docket No.: 20180334
Filing Date: 10/18/2018
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Knapp v. Commissioner of Minnesota Department of Revenue, et al. 2018 ND 231
Docket No.: 20180013
Filing Date: 10/15/2018
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A court may issue a writ of prohibition to prevent an inferior tribunal from acting without or in excess of jurisdiction when there is no plain, speedy, and adequate remedy in the ordinary course of law.

State v. Schlieve 2018 ND 230
Docket No.: 20180108
Filing Date: 10/11/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

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

State v. Brown (consol. w/ 20180092) 2018 ND 229
Docket No.: 20180091
Filing Date: 10/10/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A district court decision to dismiss a criminal charge is reviewed for abuse of discretion.

An exception to the definition of “manufacturing” exists when “preparation” or “compounding” of a controlled substance is done by an individual for the individual's own use. But “preparation” and “compounding” are only two of six statutory methods of manufacturing a controlled substance. The remaining four acts of “manufacturing” are “production,” “propagation,” “conversion,” or “processing.” Each of the remaining four acts can be done by an individual for individual use and still meet the statutory definition of “manufacturing.”

At a preliminary hearing, the State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred.

The element of intent rarely is established by direct evidence, and is a question for the jury if there is sufficient evidence to support an inference of the required intent.

Cass County Joint Water Resource District v. Erickson, et al. 2018 ND 228
Docket No.: 20180028
Filing Date: 10/9/2018
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: An owner whose property has been taken by condemnation is entitled to compensation for the property at the highest and best use.

The district court has discretion to award attorney fees and costs in an eminent domain action under N.D.C.C. § 32-15-32, even if the court’s damage award is less than the amount offered.

Johnson, et al. v. Statoil Oil & Gas LP, et al. 2018 ND 227
Docket No.: 20180050
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Pugh clauses require an individualized analysis.

Under N.D.C.C. § 9-07-16, when there is a conflict in provisions of a contract, the purely original portions prevail over boilerplate language from a form contract.

Korb v. N.D. Dep't of Transportation 2018 ND 226
Docket No.: 20180106
Filing Date: 10/3/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Accurate additional language provided by an officer does not alter the sufficiency of a complete, accurate implied consent advisory under N.D.C.C. § 39-20-01(3).

Testimony from an officer describing the steps taken in sealing and packaging a blood vial showed scrupulous compliance with Form 104.

State v. Wallace 2018 ND 225
Docket No.: 20170459
Filing Date: 10/3/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: Before accepting a guilty plea, the district court must inform the defendant of and determine that the defendant understands any mandatory minimum penalty, including any mandatory minimum term of probation.
When making a recusal decision, the assigned judge must determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge’s impartiality.

DeForest v. N.D. Dep't of Transportation 2018 ND 224
Docket No.: 20180140
Filing Date: 10/3/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: District court judgment finding an incomplete implied consent advisory and reversing the suspension of driver’s license is reversed. The Department’s decision is affirmed, and the appellee’s driving privileges are suspended for 91 days.

IRET Properties, et al. v. Williams County Board of Commissioners 2018 ND 223
Docket No.: 20180070
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Administrative Proceeding
Author: Per Curiam

Highlight: Motion to dismiss granted.

Interest of S.R. (CONFIDENTIAL) 2018 ND 222
Docket No.: 20180346
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: An appeal from a district court order granting Prairie St. John’s Hospital’s request to involuntarily treat S.R. with prescription medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Estate of Moore 2018 ND 221
Docket No.: 20170332
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A contract’s language governs its interpretation if the language is clear and explicit and does not involve an absurdity.
The general partnership laws, N.D.C.C. chapters 45-13 through 45-21, govern a partnership to the extent a partnership agreement does not otherwise provide.

Tamba v. State 2018 ND 220
Docket No.: 20180046
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Borsheim Builders Supply, Inc. v. Manger Insurance, Inc., et al. 2018 ND 218
Docket No.: 20180082
Filing Date: 9/25/2018
Case Type: Appeal - Civil - Insurance
Author: McEvers, Lisa K. Fair

Highlight: Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.

The burden of proof rests on a party claiming coverage under an insurance policy, but the insurer has the burden of establishing the applicability of exclusions.

State v. Wangstad 2018 ND 217
Docket No.: 20170452
Filing Date: 9/25/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: It is not obvious error for a district court to admit into evidence statements concerning a defendant’s prior bad acts at the defendant’s request.

When a defendant does not object to jury instructions at trial, this Court’s review is limited to whether the jury instructions constitute plain error.

When considering a challenge to sufficiency of the evidence, this Court draws all reasonable inferences in favor of the verdict.

State v. Bohe 2018 ND 216
Docket No.: 20170456
Filing Date: 9/25/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: If a law enforcement officer fails to provide a driver the complete statutory implied consent advisory after the defendant’s arrest and before the driver’s submission to the chemical test, the result is inadmissible in any criminal or administrative proceeding.

The United States Supreme Court decision in Birchfield v. North Dakota did not abrogate the statutory advisory or admissibility standard.

State v. Seidel 2018 ND 215
Docket No.: 20180035
Filing Date: 9/25/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court may impose both a maximum probation sentence and a maximum imprisonment sentence for misdemeanors.

Constitutional issues will not be considered for the first time on appeal.

Riskey v. Riskey (consolidated w/20170393) 2018 ND 214
Docket No.: 20170392
Filing Date: 9/20/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A trust is void or subject to reformation by the court to the extent its creation was induced by fraud, duress, or undue influence.
The “law of the case” doctrine and the scope of the parties’ appeal define the parameters of review on appeal.
Claims of undue influence can be properly disposed of by summary judgment when the parties claiming undue influence have failed to support their opposition to the summary judgment motion with sufficient facts showing that there is a genuine issue for trial.

WSI v. Beaulieu, et al. 2018 ND 213
Docket No.: 20180037
Filing Date: 9/13/2018
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: WSI may not issue a permanent impairment award unless identified and quantified within the sixth edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.”
For purposes of a permanent impairment award, a doctor evaluating permanent impairment must include a clinical report in sufficient detail to support the percentage ratings assigned.

Nelson, et al. v. Nelson 2018 ND 212
Docket No.: 20170356
Filing Date: 9/13/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The determination of mental capacity and whether undue influence exists are ordinarily questions of fact.

A district court’s decision regarding discovery matters will not be reversed on appeal absent an abuse of discretion.

Whether a cotenant has ousted another cotenant from property is a question of fact.

A tenant in common who has ousted his cotenant is liable to the cotenant for rent or for use of the property.
In exercising its discretion in a partition action, the district court has great flexibility in fashioning appropriate relief for the parties.

A district court has broad discretion over evidentiary matters.

Davies v. State 2018 ND 211
Docket No.: 20180059
Filing Date: 9/13/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Summary disposition is generally inappropriate for post-conviction claims of ineffective assistance of counsel because the underlying record and transcripts do not fully develop the record.

In opposing a State’s motion for summary disposition, an applicant for post-conviction relief may not merely rely on the pleadings or on unsupported conclusory allegations but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. A verified application for post-conviction relief may be treated as an affidavit to provide evidence to resist a motion for summary disposition.

If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing.

When a criminal defendant is charged with continuous sexual abuse of a child, the charging document need not include specific dates of the sexual abuse.