Opinions

State v. Strom 2019 ND 9
Docket No.: 20180167
Filing Date: 1/15/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: When ordering restitution for a victim of a criminal act, district courts must not consider the defendant’s ability to pay under N.D.C.C. § 12.1-32-08(1). North Dakota Constitution article I, § 25(1)(n) requires “full” restitution be awarded to the victim for “all losses” sustained. This amendment to the constitution implicitly repealed the statutory requirement to consider ability to pay.

Interest of D.M.W. (CONFIDENTIAL) 2019 ND 8
Docket No.: 20180413
Filing Date: 1/15/2019
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State, et al. v. McGath 2019 ND 7
Docket No.: 20180186
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An appeal from a divorce judgment is summarily affirmed under Koenig v. Schuh, 2016 ND 252, 888 N.W.2d 385, and N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Simundson 2019 ND 6
Docket No.: 20180223
Filing Date: 1/15/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Summary affirmance of jury conviction for actual physical control under N.D.C.C. § 39-08-01.

Lunde v. Paulson 2019 ND 5
Docket No.: 20180248
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: Summarily affirm default judgment based on a lack of errors appearing on the face of the judgment roll.

Schwab v. State 2019 ND 4
Docket No.: 20180230
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An appeal from a district court’s order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Interest of P.T.D. (CONFIDENTIAL) (consolidated w/20180193-20180196) 2019 ND 3
Docket No.: 20180192
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: An appeal from a juvenile court order finding five children to be deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

DeLong v. Shields, et al. 2019 ND 2
Docket No.: 20180198
Filing Date: 1/15/2019
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

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

Berg v. North Dakota State Board of Registration (cons.w/20170414 cont. in memo) 2018 ND 274
Docket No.: 20170413
Filing Date: 12/11/2018
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

Highlight: In reviewing an administrative agency’s findings of fact, the Supreme Court does not make independent findings of fact or substitute its judgment for that of the agency.
In an administrative proceeding, the administrative agency resolves conflicts of evidence and weighs the credibility of witnesses.

Bakke v. Magi-Touch Carpet One Floor & Home, Inc., et al. 2018 ND 273
Docket No.: 20180116
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Contracts
Author: Jensen, Jon J.

Highlight: An employer of an independent contractor generally is not liable for the negligence of the independent contractor.

North Dakota law recognizes an implied warranty of fitness for a particular purpose in construction contracts.

A contracting party cannot escape its liability on the contract by merely assigning its duties and rights under the contract to a third party.

The remedy for fraud is rescission of the contract and requires returning the parties back to their original positions.

Deceit is not an action dependent on a contract; it is a tort cause of action, and allows recovery of damages upon proof of an affirmative misrepresentation or suppression of material facts.

When a party requests leave to amend without requesting additional discovery and a summary judgment motion has been docketed, the proposed amendment must be both theoretically viable and solidly grounded in the record.

The measure of damages for breach of contract is the amount which will compensate the injured person for the loss which fulfillment of the contract would have prevented or the breach of the contract now requires.

City of Grand Forks v. Barendt 2018 ND 272
Docket No.: 20180227
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The implied consent advisory under N.D.C.C. 39-20-01(3) must be read after placing an individual under arrest and before administering a chemical test to determine alcohol concentration or the presence of other drugs.

Dale Exploration, LLC, et al. v. Hiepler, et al. 2018 ND 271
Docket No.: 20180065
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The settlor of an irrevocable trust with the power to remove trust property must convey mineral interests that he sold in an individual capacity while the property was titled under the trust.

Lechner v. WSI, et al. 2018 ND 270
Docket No.: 20180203
Filing Date: 12/6/2018
Case Type: Appeal - Administrative - Workers Compensation
Author: Tufte, Jerod E.

Highlight: A claim for workers’ compensation benefits must be filed within one year after the injury.
The date of injury for purposes of determining whether a claim for benefits is timely filed is the first date a reasonable lay person, not learned in medicine, knew or should have known that he suffered a compensable work-related injury and has either lost wages or received medical treatment.

State v. Vollrath 2018 ND 269
Docket No.: 20180161
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Once a judgment is final, a district court generally no longer has jurisdiction to alter, amend, or modify that judgment.

Rustad v. Baumgartner 2018 ND 268
Docket No.: 20180080
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A parenting plan is clearly erroneous when it denies a parent overnights or extended summer visitation without evidence of endangerment to the child’s physical or emotional health.

State ex rel. City of Marion v. Alber 2018 ND 267
Docket No.: 20180074
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Under N.D.R.Civ.P. 60(b), a district court cannot amend an order to impose further affirmative relief. If an amendment grants no further relief but merely more clearly articulates the same substantive relief, it may be made under Rule 60(a) at any time.

State v. White 2018 ND 266
Docket No.: 20180020
Filing Date: 12/6/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The warrantless search of supervised probationer’s home is reasonable under totality of the circumstances and does not violate Fourth Amendment protections against unreasonable search and seizure.

Adoption of A.S. (CONFIDENTIAL)(consolidated w/ 20180327) 2018 ND 265
Docket No.: 20180326
Filing Date: 12/6/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: A district court's findings of fact in a termination of parental rights proceeding will not be reversed on appeal unless they are clearly erroneous.

A finding on one of three alternative grounds authorizing termination of parental rights under N.D.C.C. 14-15-19(3) is sufficient to uphold a district court's order terminating parental rights on that ground.

Stein v. State 2018 ND 264
Docket No.: 20180128
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Ineffective assistance of counsel issues are mixed questions of law and fact, which are fully reviewable on appeal.

When a claim made in an application for post-conviction relief is clearly and unambiguously contradicted by the record, summary disposition is appropriate.

When determining if summary disposition is appropriate on claims of ineffective assistance of counsel, the record and transcripts are generally not adequate if the petitioner alleges incidents outside of the record.

Dahms, et al. v. Nodak Mutual Insurance Co., et al. 2018 ND 263
Docket No.: 20180202
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: A detached garage connected to a dwelling by a deck constituted an “other structure” rather than a “dwelling” for purposes of determining insurance coverage.

Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial.

State, et al. v. Martin 2018 ND 262
Docket No.: 20180141
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: District court did not err in denying a Rule 60(b) motion for relief from judgment where party was properly provided notice and served with the motion for default judgment.

Hunts Along v. N.D. Dep't of Transportation 2018 ND 261
Docket No.: 20180146
Filing Date: 12/6/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Department did not err in revoking defendant’s drivers license under N.D.C.C. § 39-20-14 following defendant’s refusal of on-site breath test.

A party who refuses a screening or chemical test cannot challenge the unperformed tests’ compliance with statutory requirements.

We cannot logically construe the statutes to require the State to provide foundational evidence for a test which was refuse, thus making the foundational evidence irrelevant.

Matter of Kulink 2018 ND 260
Docket No.: 20180083
Filing Date: 12/6/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Tufte, Jerod E.

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)

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.