Opinions

State v. Taylor 2018 ND 132
Docket No.: 20170321
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: The requirements for a valid traffic stop are not an essential element of the crime of refusing a chemical test for intoxication.
A defendant's claim that a law enforcement officer did not have an articulable reason to stop the defendant's motor vehicle must be raised before trial and the failure to make an appropriate pretrial motion constitutes a waiver of the issue.

Pierce, et al. v. Anderson, et al. 2018 ND 131
Docket No.: 20180005
Filing Date: 6/5/2018
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Jensen, Jon J.

Highlight: This Court cautiously exercises its supervisory jurisdiction to prevent injustice in extraordinary cases where there is no adequate alternative remedy.
Under N.D.C.C. § 28-01-46, an occurrence is not obvious if it takes place during a technical surgical procedure and is beyond the understanding of a layperson.

Dickson v. Dickson 2018 ND 130
Docket No.: 20170334
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: An original determination to award primary residential responsibility is necessary when the parents have joint or equal residential responsibility or when the earlier residential responsibility determination is based on the parties' stipulation.
A court may consider, but is not bound by a finding of domestic violence in another proceeding under N.D.C.C. ch. 14-07.1. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. N.D.C.C. 14-09-06.2(1)(j).

Beeter v. State 2018 ND 129
Docket No.: 20180032
Filing Date: 6/5/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Contreras-Castillo 2018 ND 128
Docket No.: 20170362
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: An appeal from a district court order denying a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Interest of Hoff 2018 ND 127
Docket No.: 20170434
Filing Date: 6/5/2018
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).

Interest of K.B. (CONFIDENTIAL) 2018 ND 126
Docket No.: 20180123
Filing Date: 6/5/2018
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)(4).

State v. Ashford 2018 ND 125
Docket No.: 20170307
Filing Date: 6/5/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

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

Bjerk, et al. v. Anderson 2018 ND 124
Docket No.: 20170160
Filing Date: 5/14/2018
Case Type: Appeal - Civil - Personal Injury
Author: Tufte, Jerod E.

Highlight: Absent a heightened degree of foreseeability, a homeowner does not have a duty of care under a premises liability theory to protect a guest in the home from the guest's own voluntary consumption of illegal drugs.

N.D. Dep't of Transportation v. Rosie Glow, LLC 2018 ND 123
Docket No.: 20170248
Filing Date: 5/14/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A district court abuses its discretion in awarding attorney fees without adequate explanation for drastically reducing the award.
A district court abuses its discretion when it fails to consider expert witness costs in its order awarding attorney fees and costs under N.D.C.C. § 32-15-32.

Ferguson v. Ferguson 2018 ND 122
Docket No.: 20170213
Filing Date: 5/10/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Key Energy Services, LLC v. Ewing Construction Co., Inc., et. al. 2018 ND 121
Docket No.: 20170324
Filing Date: 5/9/2018
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: A district court in its discretion may allow amendment of a proof of service at any time.
To establish a basis for relief from a district court's denial of a motion for relief from a default judgment, a party must show the district court abused its discretion.
Although under some circumstances the amount of money at stake might be a legitimate factor for a court to consider on a motion to vacate a default judgment, this factor is not enough in the absence of a good excuse for the default.

Molbert v. Kornkven, et al. 2018 ND 120
Docket No.: 20170325
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Actions involving fraud are not commonly suited for summary judgment; however, if a party fails to support his or her opposition to summary judgment with sufficient facts to show there is a genuine issue for trial, then, even in these cases, summary judgment may be appropriate.
When specific performance is requested under North Dakota law, a court may inquire into the adequacy of the consideration supporting a contract. Mere inadequacy of consideration, however, does not justify a denial of specific performance in the absence of unfairness or undue influence.

Alerus Financial, N.A. v. Erwin 2018 ND 119
Docket No.: 20170275
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: When a party moves to amend a pleading in response to a motion for summary judgment, the proposed amendment must be theoretically viable and supported by substantial evidence.
A party requesting a continuance for additional time for discovery under N.D.R.Civ.P. 56(f) must identify with specificity what information is sought and explain how that information would preclude summary judgment and why the information was not previously obtained.

Estate of Nelson 2018 ND 118
Docket No.: 20170246
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A life tenant may convey or lease his or her interest, but may not disregard the rights of those who take when the life estate ends.
An appeal is frivolous when it is flagrantly groundless.

Matter of Hogen Trust B 2018 ND 117
Docket No.: 20170090
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: In the absence of trust language specifying a termination date for a trust, termination occurs when the object or purpose of the trust is accomplished.

A trustee has a fiduciary duty to a trust and may be liable to the trust for breaches of that duty.

An award of trustee fees and attorney fees is reviewed under the abuse-of-discretion standard.

IRET Properties v. Lee, et al. 2018 ND 116
Docket No.: 20170451
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The purpose of the summary eviction statute is to provide an inexpensive, expeditious, and simple means to determine possession of property. The right to the possession of disputed real estate is the only fact that can be rightfully litigated in a summary eviction action unless damages or rent is claimed.
Appellant's failure to file a transcript leaves this Court to only look to the record in reviewing the district court's findings.

Hoff v. Hoff 2018 ND 115
Docket No.: 20180022
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court need not make separate findings for each best interests factor but, as with custody, the court's findings must contain sufficient specificity to show the factual basis for the decision.
The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories.

Everett v. State 2018 ND 114
Docket No.: 20170431
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Orders denying leave to file additional motions or papers are not appealable.

N.D. Dep't of Transportation v. Schmitz 2018 ND 113
Docket No.: 20170397
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A trial court may award reasonable attorney fees, expert witness fees, or litigation costs to the prevailing party in an eminent domain action.
A trial court abuses its discretion if it misinterprets or misapplies the law.

State v. $3260.00 United States Currency, et al. 2018 ND 112
Docket No.: 20180045
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The application of N.D.R.Civ.P. 56, summary judgment, may be appropriate in a forfeiture action.
A district court may decide a motion for summary judgment without holding a hearing if the requesting party fails to secure a time for the hearing.
A district court does not err in granting summary judgment when the opposing party fails to present competent admissible evidence.

Botteicher, et al. v. Becker, et al. 2018 ND 111
Docket No.: 20170386
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Res judicata prevents the litigation of claims that were raised, or could have been raised, in a prior action between the same parties or their privies and were resolved by a final judgment in a court of competent jurisdiction.
The failure to file an appeal from a final decree of distribution within the time specified bars a party to the proceedings from attacking the final decree of distribution if he received notice of the distribution hearing.
Whether the threshold of extreme and outrageous conduct has been met to establish intentional infliction of emotional distress is a question of law for the court to decide.

Kettle Butte Trucking, LLC v. Kelly, et al. 2018 ND 110
Docket No.: 20170350
Filing Date: 5/8/2018
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: When a contempt order is appealed, challenges to the underlying order will not be considered unless the underlying order is also appealed.
When a court has issued an allegedly erroneous order, the party to whom the order was issued must obey it as long as it remains in force or until it is reversed on appeal, and the failure to obey the order is punishable as a contempt of court.

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.