Opinions

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.

Johnston Land Company, LLC v. Sorenson, et al. 2018 ND 183
Docket No.: 20170403
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A justiciable controversy subject to appellate jurisdiction exists when a district court order does not fully dispose of the petitioner's claims.
An affidavit filed with a county recorder that claims no interest in property is not a nonconsensual common-law lien

Kalmio v. State 2018 ND 182
Docket No.: 20170437
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court has discretion to allow amendments to pleadings.
An applicant for post-conviction relief may claim ineffective assistance of appellate counsel.
A district court clearly errs by finding an applicant for post-conviction relief did not meet his burden on the first Strickland prong, despite appellate counsel waiving an evidentiary argument on direct appeal because counsel erroneously believed the issue would have a greater chance of success in a post-conviction relief action.

Interest of Voisine 2018 ND 181
Docket No.: 20170442
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: When an individual petitions for discharge from commitment as a sexually dangerous individual, the State must prove the individual remains a sexually dangerous individual by clear and convincing evidence.
In sexually dangerous individual proceedings, expert testimony will not be reweighed on appeal. A choice between two permissible views of the weight of the evidence is not clearly erroneous.

Gerrity Bakken, LLC v. Oasis Petroleum North America LLC, et al. 2018 ND 180
Docket No.: 20180017
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: Deeds must be construed as a whole to give effect to each provision, if reasonably possible.
The law presumes that differently spelled names refer to the same person when they sound alike or when common usage has by corruption or abbreviation made their pronunciation identical.
A quiet title judgment is not binding on any persons having interests in leases and wells who were not made parties to the action.
A non-party may maintain a suit to set aside an allegedly damaging judgment if he has an interest which is jeopardized by enforcement of the judgment and the circumstances support a present grant of relief.

Ramirez v. Walmart 2018 ND 179
Docket No.: 20180027
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Although an order dismissing a complaint without prejudice is generally not appealable, when a statute of limitations has run, a dismissal without prejudice is appealable because it forecloses litigation in the plaintiff's chosen forum.
The retaliatory discharge statute prohibits an employer from discharging an employee for reporting illegalities, and was not intended to protect an employee who acts for a purpose other than exposing an illegality.

Interest of B.H. (CONFIDENTIAL) 2018 ND 178
Docket No.: 20180165
Filing Date: 7/18/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: The findings in an oral order may control if they are not inconsistent with the written order.
Even if a juvenile court finds that a child has been subjected to aggravated circumstances pursuant to N.D.C.C. § 27-20-44(1)(b), it does not abuse its discretion by denying a termination of parental rights if it concludes the child's welfare will not be seriously affected.

Bickler, et al. v. Happy House Movers, L.L.P. 2018 ND 177
Docket No.: 20180086
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: This Court does not consider questions that were not presented to the district court and are raised for the first time on appeal.
The moving party bears the burden of establishing sufficient grounds for disturbing the finality of the judgment under N.D.R.Civ.P. 60(b).

Interest of G.L. (CONFIDENTIAL) 2018 ND 176
Docket No.: 20170406
Filing Date: 7/18/2018
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: After finding a parent has removed the impediments causing a child's initial deprivation leading to a guardianship, the juvenile court must find exceptional circumstances before it may analyze the child's best interests in continuing the guardianship.
The juvenile court may not delegate determination of a visitation schedule.

State v. Grant 2018 ND 175
Docket No.: 20170443
Filing Date: 7/17/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Obvious error should be noticed on appeal only in exceptional circumstances and when there was a clear deviation from an applicable legal rule under current law.

Haider v. Moen 2018 ND 174
Docket No.: 20170348
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Jensen, Jon J.

Highlight: After requesting the jury to make factual findings relating to treble damages, the district court abuses its discretion by failing to instruct the jury on the statutory treble damages.
The district court has discretion to bifurcate a jury's determination on actual damages from the determination necessary for treble damages.
After a motion in limine is granted, failure to renew objections at trial waives the argument on appeal.

State v. Hunter 2018 ND 173
Docket No.: 20170345
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Whether a defendant voluntarily, knowingly, and intelligently waived his Miranda rights depends on the totality of the circumstances.
A lapse of time between a defendant's being given the Miranda warning and the custodial interrogation is one factor in determining whether a defendant has voluntarily waived his rights.
Drug use or fatigue are relevant factors in determining whether a defendant has voluntarily waived his rights.
Physician-patient privilege under N.D.R.Ev. 503 applies only to communications made for the purpose of diagnosis or treatment.

State v. Ngale 2018 ND 172
Docket No.: 20180031
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: A reserve deputy, who provides services on a non-salaried basis and has full arrest authority, is not required to be licensed to perform peace officer law enforcement duties.

State v. Blue (consolidated w/20170388) 2018 ND 171
Docket No.: 20170387
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Article I, Section 25(1)(n), N.D. Const., and N.D.C.C. 12.1-32-08(1)(b) are not in conflict, and the court must attempt to harmonize a statute and a constitutional provision when possible.
When a claim of disproportionality is made, the court first compares the gravity of the offense to the harshness of the penalty. If the court finds a gross disproportion ality exists, then the court should compare the defendant's sentence with sentences received by other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions.

State, et al. v. Peltier 2018 ND 170
Docket No.: 20170463
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A state court has subject matter jurisdiction to decide an Indian father's child support obligation if the action does not infringe on the right of Indian tribes to govern themselves.

State v. Jorgenson 2018 ND 169
Docket No.: 20180079
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Highlight: Orders approving pretrial diversion and orders of restitution are not appealable under N.D.C.C. § 29-28-06.
A pretrial diversion agreement pursuant to N.D.R.Crim.P. 32.2(a) cannot require restitution to be determined by the district court.

City of Bismarck v. Schaffner 2018 ND 168
Docket No.: 20180030
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: Entry of a not guilty plea in a criminal bench trial does not preserve the issue of whether city and state laws conflict.

State v. Vanberkom 2018 ND 167
Docket No.: 20180021
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Tufte, Jerod E.

Highlight: Double jeopardy does not attach when a defendant is assessed an administrative penalty for violation of N.D.C.C. § 39-09-01.1 ("Care required in operating vehicle") and prosecuted for reckless driving under N.D.C.C. § 39-08-03.

State v. Beltran 2018 ND 166
Docket No.: 20180041
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: A district court does not err by instructing a jury on the crime of refusal to submit to a chemical test when there is evidence presented indicating the defendant refused to submit to a breath test.
A party challenging the exclusion of evidence must provide an offer of proof to preserve the issue on appeal.
A district court does not abuse its discretion in denying a defendant's proposed stipulation to his driver's license being under suspension.

Interest of J.J.T. (CONFIDENTIAL) 2018 ND 165
Docket No.: 20180136
Filing Date: 7/11/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Jensen, Jon J.

Highlight: A parent's delay and obstruction of the legal process may constitute the functional equivalent of a voluntary, knowing, and intelligent waiver of the right to counsel in a proceeding to terminate parental rights.

Siana Oil & Gas Co., LLC v. Dublin Co., et al. (consolidated w/20180010) 2018 ND 164
Docket No.: 20180009
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: A county's tax deed gives it title or color of title to the whole estate in the land including the royalty interests.
A tax deed, valid upon its face, creates a presumptive title to the entire estate in the land which continues until it has been overcome by the affirmative action in court, by suit or counterclaim on the part of a person who has a sufficient interest to challenge the title.
Royalty interests cannot be "possessed" for purposes of the statute of limitations or adverse possession.<r> Laches is generally a question of fact.

Odom v. State 2018 ND 163
Docket No.: 20180089
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying petitioner's application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Everett, Jr. 2018 ND 162
Docket No.: 20170367
Filing Date: 7/11/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Butts v. State 2018 ND 161
Docket No.: 20180002
Filing Date: 7/11/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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