Opinions

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.

Schoon v. N.D. Dep't of Transportation 2018 ND 210
Docket No.: 20180049
Filing Date: 9/13/2018
Case Type: Appeal - Administrative - Department of Transportation
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. Hussein 2018 ND 209
Docket No.: 20180008
Filing Date: 9/13/2018
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment for simple assault on a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7). State v. Hannah, 2016 ND 11, ¶ 9, 873 N.W.2d 668.

Pain is a qualifying, but not necessary, circumstance of bodily impairment under N.D.C.C. § 12.1-01-04(4).

State v. Kibble 2018 ND 208
Docket No.: 20180023
Filing Date: 9/13/2018
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment against defendant following a jury verdict of guilty of one count of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of I.N. (CONFIDENTIAL) 2018 ND 207
Docket No.: 20180291
Filing Date: 9/13/2018
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).

Greer v. Global Industries, et al. 2018 ND 206
Docket No.: 20170453
Filing Date: 8/30/2018
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Barna, Guzy & Steffen, Ltd. v. Johnson, et al. 2018 ND 205
Docket No.: 20170340
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Foreclosure
Author: McEvers, Lisa K. Fair

Highlight: Conclusory allegations in a brief, without citation to any evidence in the record to support the contentions, are insufficient to raise a genuine issue of material fact to defeat summary judgment or to show the district court abused its discretion in denying a motion for relief from judgment.

Courts do not apply statutes or rules differently when parties are self-represented.

Several contracts relating to the same matter between the same parties and made a part of substantially one transaction must be construed together

Tornabeni v. Creech, et al. 2018 ND 204
Docket No.: 20180016
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

State v. Finneman 2018 ND 203
Docket No.: 20170400
Filing Date: 8/28/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The procedure for transitioning from a charged greater offense to a lesser included offense requires an acquittal for the greater offense before consideration of the lesser included offense.

If an accused establishes a forfeited obvious error affects substantial rights, an appellate court has discretion to correct the error and should correct it if it seriously affects the fairness, integrity or public reputation of the judicial proceeding.

Gustafson v. Poitra, et al. 2018 ND 202
Docket No.: 20170423
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: An express determination on subject matter jurisdiction in a prior action can be given res judicata effect.

The inherent sovereign powers of an Indian tribe generally do not extend to activities of nonmembers on non-Indian fee land, but a tribe may regulate through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases or other arrangements, and a tribe may also exercise civil authority over the conduct of non-Indians on fee lands within the reservation when the conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Interest of D.D. (CONFIDENTIAL) 2018 ND 201
Docket No.: 20180207
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Mental Health
Author: Tufte, Jerod E.

Interest of J.B. (CONFIDENTIAL) 2018 ND 200
Docket No.: 20170460
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Juvenile Law
Author: Tufte, Jerod E.

Knudson v. Knudson 2018 ND 199
Docket No.: 20170435
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: In a divorce action, the district court must consider the needs of the spouse requesting spousal support and the ability of the other spouse to pay.

The definition of “gross income” in the child support guidelines is very broad and is intended to include any form of payment to an obligor which is not specifically excluded under the guidelines.

An oil and gas lease bonus is self-employment income for purposes of the child support guidelines.

State v. Pickens 2018 ND 198
Docket No.: 20170405
Filing Date: 8/28/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

State v. Simon (consol. w/ 20170404) 2018 ND 197
Docket No.: 20170374
Filing Date: 8/28/2018
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Tufte, Jerod E.

State v. Corona 2018 ND 196
Docket No.: 20180077
Filing Date: 8/28/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

State v. Rose 2018 ND 195
Docket No.: 20180015
Filing Date: 8/28/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

State v. Brickle-Hicks 2018 ND 194
Docket No.: 20180004
Filing Date: 8/28/2018
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A district court’s decision to deny a defendant’s motion to suppress evidence will not be reversed on appeal if there is sufficient competent evidence capable of supporting the court’s findings and if its decision is not contrary to the manifest weight of the evidence.

Interest of E.P. (CONFIDENTIAL) 2018 ND 193
Docket No.: 20180271
Filing Date: 8/28/2018
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).

Riemers v. Jaeger 2018 ND 192
Docket No.: 20180274
Filing Date: 8/3/2018
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Crothers, Daniel John

Highlight: A writ of mandamus may be issued to compel performance of an act which the law specifically enjoins as a duty resulting from an office.
The plain language of N.D.C.C. 16.1-16-01(1)(a) requires an automatic recount when an individual fails to be nominated in a primary election by one percent or less of the highest vote cast for a candidate for the office sought and does not require the candidate with the highest vote to be in the same political party as the individual obtaining the recount.

Interest of M.S.H. (CONFIDENTIAL)(consolidated w/20180173 & 20180174) 2018 ND 191
Docket No.: 20180172
Filing Date: 8/1/2018
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).

Interest of A.T. (Confidential) 2018 ND 190
Docket No.: 20180269
Filing Date: 7/31/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

N.D. Legislative Assembly, et al. v. Burgum 2018 ND 189
Docket No.: 20170436
Filing Date: 7/30/2018
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: The Governor cannot withdraw a veto or otherwise concede it was ineffective.
An "item" in an appropriation bill may be vetoed in its entirety, but it may not be reduced or scaled. If the "item" is an appropriation included in a larger subdivision or otherwise aggregated into a larger appropriation, the effect of an item veto is to subtract the item from the larger total. The Governor may strike words or numbers in a bill, but he may not insert them.
The Legislative Assembly may not insulate an item from veto by including it within a larger appropriation, funding that larger appropriation from multiple special funds, or failing to identify the funding source for the item. In the context of a legislative appropriation, the Legislative Assembly must specify (1) the amount, (2) the object or purpose for which the amount is authorized, and (3) the fund from which the amount is set apart.
The item veto power does not authorize the Governor to veto any part of a statement of legislative intent.

Disciplinary Board v. Turcotte 2018 ND 188
Docket No.: 20180262
Filing Date: 7/30/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

Disciplinary Board v. Bruhn 2018 ND 187
Docket No.: 20180243
Filing Date: 7/30/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

Disciplinary Board v. Bruhn 2018 ND 186
Docket No.: 20180242
Filing Date: 7/30/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspension ordered.

State v. Biwer 2018 ND 185
Docket No.: 20170458
Filing Date: 7/26/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Conclusory or bare information is not sufficient for probable cause to obtain a search warrant.
Information obtained from named members of the public with corroborating independent investigation by police may establish a nexus between the place to be searched and the contraband sought.,br> The North Dakota Constitution does not provide greater protection than the Fourth Amendment to the U.S. Constitution.

Kovalevich v. State 2018 ND 184
Docket No.: 20180109
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: Under N.D.C.C. § 29-32.1-01(3)(a)(1), a court may consider an application for post-conviction relief on the basis of newly discovered evidence outside of the general two-year statute of limitations if the petitioner meets the four-pronged test set forth in Greywind v. State, 2004 ND 213,  18, 689 N.W.2d 390.