Opinions

Wheeler v. Burgum 2018 ND 109
Docket No.: 20170444
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Because the Governor does not directly supervise or train the officials and staff of the North Dakota State Penitentiary, he cannot be held liable in his official capacity under 42 U.S.C. section 1983 for a failure of such action.

Krueger v. N.D. Dep't of Transportation 2018 ND 108
Docket No.: 20170425
Filing Date: 5/8/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A county deputy in fresh pursuit may enter another county to make an arrest if obtaining the aid of officers having jurisdiction would cause a delay permitting escape.
North Dakota law does not prohibit law enforcement from administering more than one chemical test to determine blood alcohol content.

Interest of F.M.G. (CONFIDENTIAL) 2018 ND 107
Docket No.: 20180139
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court's order for continuing treatment at the North Dakota State Hospital for a period not to exceed one year is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of R.C. (CONFIDENTIAL) 2018 ND 106
Docket No.: 20180090
Filing Date: 5/8/2018
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.H. (CONFIDENTIAL) 2018 ND 105
Docket No.: 20180107
Filing Date: 5/8/2018
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).

State v. Parks 2018 ND 104
Docket No.: 20170462
Filing Date: 5/8/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An amended criminal judgment for possession of a controlled substance and drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Popper 2018 ND 102
Docket No.: 20180113
Filing Date: 5/3/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

CHS Inc. v. Riemers 2018 ND 101
Docket No.: 20170331
Filing Date: 4/17/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Attorney's fees and costs may be awarded under N.D.C.C. 28-26-01(2) whether or not they are also available under N.D.R.Civ.P. 11.
Attorney's fees and costs may be assessed under N.D.C.C. 28-26-01(2) for a frivolous motion.
Post-judgment interest can accrue on a judgment that includes prejudgment costs and interest.
Unless an exception applies, a judgment or order entered in the district court, after the Supreme Court obtains jurisdiction, is void for lack of jurisdiction.

State v. Cook 2018 ND 100
Docket No.: 20170269
Filing Date: 4/12/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. N.D.R.Ev. 901(a).
Statutes are not retroactive unless expressly declared so by the legislature, noting an exception for ameliorating penal legislation. A statute cannot apply retroactively when it becomes effective after a person has been finally convicted otherwise it would constitute an invalid exercise by the legislature of the executive pardoning power.
A district court is allowed a wide range of discretion in fixing a criminal sentence. Appellate review of a criminal sentence is generally limited to whether the district court acted within sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.

Nelson, et al. v. Mattson, et al. (consolidated w/20170287) 2018 ND 99
Docket No.: 20170286
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Foreclosure
Author: Tufte, Jerod E.

Highlight: Joint ventures can own property similarly to partnerships.
In determining whether property is owned by a partnership or is individually-owned by a partner, the district court must rely on the intention of the partners.
A voluntary payment made under a mutual mistake of law precludes recovery of that payment.

Rath v. Rath 2018 ND 98
Docket No.: 20170419
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A claim for relief is frivolous only if there is such a complete absence of actual facts or law a reasonable person could not have expected a court would render a judgment in that person's favor.
The authority to issue supervisory writs is exercised rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.

Rocky Mountain Steel Foundations, Inc. v. Brockett Company, LLC, et al. 2018 ND 96
Docket No.: 20170407
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: An owner's full payment of the general contractor after receipt of notice of a subcontractor's oil and gas construction lien does not invalidate the subcontractor's lien.
In an action to enforce an oil and gas construction lien, the party for whom judgment is rendered is entitled to recover reasonable attorney fees

State v. Gunn 2018 ND 95
Docket No.: 20170138
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The criminal attempt statute does not require that the underlying offense be committed.
Speech integral to a crime is not protected by the First Amendment.

Olson v. N.D. Dep't of Transportation 2018 ND 94
Docket No.: 20170351
Filing Date: 4/10/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Jensen, Jon J.

Highlight: The revocation of driving privileges for refusal to submit to chemical testing requires a valid arrest.
In the absence of authority from Congress, the State lacks criminal jurisdiction over crimes committed by non-member Indians on tribal land.
Whether an officer has jurisdiction to arrest depends on the law of the place where the arrest is made.

State v. Wilder 2018 ND 93
Docket No.: 20170187
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A comment on the defendant's post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
The statutory sentencing provisions do not authorize the sentencing court to order no contact as part of a prison sentence.

State v. Rutherford 2018 ND 91
Docket No.: 20170370
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court's criminal judgment ordering restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of R.F. (CONFIDENTIAL) 2018 ND 90
Docket No.: 20180110
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court's order for continued treatment at the North Dakota State Hospital for a period not to exceed one year is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of S.B. (Consolidated w/20180057)(CONFIDENTIAL) 2018 ND 89
Docket No.: 20180056
Filing Date: 4/10/2018
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).

Thorstad v. State 2018 ND 88
Docket No.: 20170427
Filing Date: 4/10/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

State v. Ali 2018 ND 87
Docket No.: 20170378
Filing Date: 4/10/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Warrantless, limited entry by a police officer into an open garage does not violate a defendant's federal or state constitutional rights under the hot pursuit exception to the warrant requirement.

Brekhus v. N.D. Dep't of Transportation 2018 ND 86
Docket No.: 20170296
Filing Date: 4/10/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Warrantless, limited entry by a police officer into an open garage does not violate a defendant's federal or state constitutional rights under the hot pursuit exception to the warrant requirement.

Grasser v. Grasser 2018 ND 85
Docket No.: 20170188
Filing Date: 3/29/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A motion for recusal and a demand for a change of judge are two separate motions. Unlike a demand under N.D.C.C. 29-15-21, a district court judge is not immediately divested of authority upon the filing of a motion to recuse. While a judge has a duty to recuse when required by the Code of Judicial Conduct, a judge also has an equally strong duty not to recuse when the facts do not require recusal.
An order finding a person guilty of contempt is a final order for purposes of appeal under N.D.C.C. 27-10-01.3(3). A district court's decision to impose sanctions under N.D.R.Civ.P. 11 rests within the sound discretion of the court and it will not be overturned on appeal unless the court has abused its discretion.
A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. This Court will not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result.
It is well-established that a property distribution does not need to be equal to be equitable, but a substantial disparity must be explained so as to provide some indication of the rationale of the district court in distributing the property.

City of Bismarck v. Brekhus (consolidated w/20170166 & 20170167) 2018 ND 84
Docket No.: 20170165
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: A police officer's warrantless, limited entry into a defendant's open garage while in "hot pursuit" does not violate the defendant's rights under either the federal or state constitutions.

J.B., et al. v. R.B. 2018 ND 83
Docket No.: 20180018
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Solwey v. Solwey 2018 ND 82
Docket No.: 20170379
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The effective date for a modification of child support depends upon the facts of each case. The modification generally should be made effective from the date of the motion to modify, absent good reason to set some other date.
If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The maturity of the child is a factually driven issue and will depend on the facts and circumstances of the case.

Carlson v. State 2018 ND 81
Docket No.: 20170252
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final under N.D.C.C. 29-32.1-01(2).
There are three exceptions to the two-year limitation for an application for post-conviction relief: (1) newly discovered evidence, (2) petitioner establishes that the petitioner suffered from a physical disability or mental disease that precluded timely assertion of the application for relief, and (3) petitioner asserts a new interpretation of federal or state constitutional or statutory law that is retroactively applicable to the petitioner's case. See N.D.C.C. 29-32.1-01(3)(b).

Arnegard, et al. v. Arnegard Township 2018 ND 80
Docket No.: 20170242
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner.
A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.
A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.
A claim of constitutional due process violation first requires a protected property interest created by an independent source of law. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.

Berg v. Berg 2018 ND 79
Docket No.: 20170336
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A district court does not clearly err in dividing property and awarding spousal support when it considers the Ruff-Fischer factors and adequately explains its findings regarding property division and spousal support.

State v. Terrill 2018 ND 78
Docket No.: 20170309
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Constructive possession of drug paraphernalia is sufficient probable cause to arrest. Constructive possession can be inferred from the totality of the circumstances including (1) an accused's presence in the place where a controlled substance is found; (2) his proximity to the place where it is found; and (3) the fact the controlled substance was found in plain view.
A search incident to arrest applies where an officer has probable cause prior to conducting the search, and the arrest is substantially contemporaneous to the search.

Chatman v. State 2018 ND 77
Docket No.: 20170384
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An application for post-conviction relief based on newly discovered evidence must be supported by competent, admissible evidence.
An applicant must move for leave and show good cause to use the discovery process in post-conviction relief proceedings.
An application for post-conviction relief generally may not raise claims that could have been addressed in earlier proceedings.

Interest of T.S.C. (CONFIDENTIAL)(Consolidated w/20180053 & 20180054) 2018 ND 76
Docket No.: 20180052
Filing Date: 3/22/2018
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: An untimely notice of appeal leaves the Supreme Court without jurisdiction to consider the appeal.

State v. Sauter 2018 ND 75
Docket No.: 20170339
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: A warrantless blood-alcohol test is unreasonable unless it falls within a recognized exception to the warrant requirement. A warrantless blood-alcohol test may be justified under the exigent circumstances exception to the warrant requirement.

State v. Redtomahawk 2018 ND 74
Docket No.: 20170353
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgment for robbery is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Mbulu 2018 ND 73
Docket No.: 20170341
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal convictions for conspiracy to commit gross sexual imposition, accomplice to gross sexual imposition, conspiracy to commit murder and attempted murder summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Petition of Bolinske 2018 ND 72
Docket No.: 20170333
Filing Date: 3/20/2018
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney subject to disciplinary proceedings is entitled to procedural due process, including fair notice of the nature of the charges and an opportunity to be heard.

Larimore Public School District No. 44, et al. v. Aamodt, et al. 2018 ND 71
Docket No.: 20170258
Filing Date: 3/19/2018
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: McEvers, Lisa K. Fair

Highlight: The statutory cap on tort damages recoverable from a political subdivision does not violate the open court, jury trial, equal protection, or special law provisions of the state constitution.

Melendez v. Horning III, et al. 2018 ND 70
Docket No.: 20170183
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Nonsignatories to arbitration agreement may compel signatories to the agreement to arbitrate under some circumstances.
Arbitration clauses are construed under principles for contract interpretation in view of public policy favoring arbitration.

Parshall v. State 2018 ND 69
Docket No.: 20170301
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Plea agreements are interpreted according to general contract principles.
A district court's interpretation of a contract may be examined independently on review for error.

Owego Township v. Pfingsten 2018 ND 68
Docket No.: 20170190
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A township's determination or award of damages must be appealed within thirty days of filing under N.D.C.C. §§ 24-07-22 and 28-34-01.

Estate of Albrecht 2018 ND 67
Docket No.: 20170087
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: An estate's motion for summary judgment satisfies the statutory requirement that a proceeding on a claim be commenced within sixty days after the personal representative mailed the notice of disallowance.
An individual who consents to a final decree of divorce is not a surviving spouse even if the final decree of divorce is determined to not be valid.
A request for a remedial sanction for contempt may be raised within the proceeding to which the alleged improper conduct is related.
A court has equitable power to order a return to the status quo when a party violating a temporary restraining order has died.
The assertion of an independent claim for economic waste outside of a divorce proceeding is inappropriate.

Yahnke v. State 2018 ND 66
Docket No.: 20170185
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's order denying Yahnke's post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Carroll v. Carroll (cross-reference w/20160190) 2018 ND 65
Docket No.: 20170292
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An amended divorce judgment entered on remand and an order reducing child support obligation are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Huft v. Huft 2018 ND 64
Docket No.: 20170432
Filing Date: 3/8/2018
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting disorderly conduct restraining order is summarily reversed under N.D.R.App.P. 35.1(b).

James Vault & Precast Co., et al. v. B&B Hot Oil Service, Inc., et al. 2018 ND 63
Docket No.: 20170130
Filing Date: 3/1/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: In a multi-claim or a multi-party lawsuit with some adjudicated claims, the Supreme Court will not exercise appellate jurisdiction in cases in which parties voluntarily dismiss without prejudice all remaining unadjudicated claims with an intent to circumvent the requirements of N.D.R.Civ.P. 54(b) and artificially manufacture finality for purposes of appellate jurisdiction.

Riddle v. Riddle 2018 ND 62
Docket No.: 20170233
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Under the plain language of N.D.R.Civ.P. 59(b)(1), an irregularity in the proceeding must result from an action "of the court, jury, or adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial."
Under N.D.R.Civ.P. 59(b)(4), evidence is not newly discovered merely because it was not presented to the court in the first instance if it was discoverable before trial.
Due process does not require a court to ensure a litigant's presence at a civil proceeding.
An ineffective assistance of counsel claim is a procedural remedy reserved for those who are statutorily or constitutionally guaranteed right to counsel.

State v. Kremer 2018 ND 61
Docket No.: 20170198
Filing Date: 2/22/2018
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Self-represented parties should not be treated differently nor allowed any more or any less consideration than parties represented by counsel. "Property" subject to forfeiture includes noncontraband computer files as well as contraband computer files contained on an electronic device.
The possibility a defendant might use otherwise unforfeitable property in an unlawful manner after completion of his criminal sentence does not render the property forfeitable.
Issues not raised in the district court will not be addressed on appeal.

State v. Isom 2018 ND 60
Docket No.: 20170261
Filing Date: 2/22/2018
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A sentence for supervised probation may not exceed the legal maximum.
Jeopardy attaches when a jury is empaneled and then sworn to hear the case.
Evidence is sufficient if it allows the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction when viewed in the light most favorable to the verdict.

Koenig v. State 2018 ND 59
Docket No.: 20170253
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A defendant's statutory right to a speedy trial must be made within the 14-day window following arraignment.
Evaluating a defendant's constitutional right to a speedy trial requires balancing four factors: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused.
A court may summarily dismiss an application for post-conviction relief under N.D.C.C. § 29-32.1-09 if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

State, et al. v. White 2018 ND 58
Docket No.: 20170263
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Relief from a final order or judgment under N.D.R.Civ.P. 60(b) should be granted only when extraordinary circumstances are present.
A N.D.R.Civ.P. 60(b) motion should not be used to relieve a party from free, calculated, and deliberate choices, and a party is obligated to take legal steps to protect his or her own interests.

Sauter v. Miller, et al. 2018 ND 57
Docket No.: 20170260
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The right to ownership of land and passage of title, as a consequence of adverse possession or acquiescence, occur when the statutory period for possession has been satisfied.
The continuous possession requirement for adverse possession and acquiescence is not disturbed by a nonacquiescent action that brings rise to the quiet title action.