Opinions

Interest of B.A.C. (CONFIDENTIAL) 2017 ND 247
Docket No.: 20170314
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Mental Health
Author: Tufte, Jerod E.

Highlight: Firearm restrictions under 18 U.S.C. 922(d)(4) and (g)(4) are a collateral consequence of involuntary commitment orders. Thus, the mootness doctrine does not apply.

State v. Campbell 2017 ND 246
Docket No.: 20160197
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: A district court's decisions relating to expert witness testimony will be affirmed absent an abuse of discretion.

Berry v. Berry 2017 ND 245
Docket No.: 20170085
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court's decision whether to grant relief under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion.
A district court's division of marital property is treated as a finding of fact subject to the clearly erroneous standard of review.

State v. Mayland 2017 ND 244
Docket No.: 20160453
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: A defendant fails to preserve a jury instruction issue for appellate review when he stipulates to the exclusion of a jury instruction regarding prior convictions.
Under N.D.C.C. § 39-08-01, the crime of actual physical control may occur on private property, including a private driveway.

Estate of Eagon 2017 ND 243
Docket No.: 20170075
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A boilerplate will provision directing payment of "federal and state taxes" from estate assets is not a clear and unambiguous directive that federal estate taxes be apportioned differently from the method provided by the estate tax apportionment statute.
Property passes upon death, not upon distribution.
Attorney fees may be awarded to petitioners in a probate proceeding if it results in added value to the estate or it determines the proper distribution of estate assets.

Brew v. Brew 2017 ND 242
Docket No.: 20170073
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: The district court is required to equitably distribute marital property in a divorce proceeding, and a property division does not need to be equal to be equitable.
Under the child support guidelines, a district court averages a self-employed obligor's income over the most recent five years to determine income from self-employment.
The district court has discretion to award attorney's fees when one party's actions have unreasonably increased the time spent on a case.

WSI v. Questar Energy Services, Inc. 2017 ND 241
Docket No.: 20170059
Filing Date: 10/17/2017
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Highlight: A challenge to Workforce Safety and Insurance employee classifications is a mixed question of law and fact, requiring a review of whether the findings of fact is supported by a preponderance of the evidence and whether those findings support the applied classification.
An administrative law judge may properly exclude evidence of changes to employee classification codes that arose after the relevant audit time period.

Beach Railport, LLC v. Michels, et al. 2017 ND 240
Docket No.: 20160457
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: District courts have wide judicial discretion in partition actions to do equity and to make a fair and just division of the property or proceeds between the parties, and great flexibility in fashioning appropriate relief for the parties.
A partition report of the referees, appointed under the statutes governing partition, is only a proposal for the district court's consideration. The court may confirm, change, modify, or set aside the report and, if necessary, may appoint new referees.
When a party makes a substantiated claim of factual or legal error in a referee partition report, due process protections and equitable concerns require the district court to hold a hearing to weigh the objections against the report and decide whether the report equitably divides the real property before confirming, changing, or modifying the report.

State v. Sahel 2017 ND 239
Docket No.: 20170178
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment entered after defendant pleaded guilty to gross sexual imposition and terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Clark v. State 2017 ND 238
Docket No.: 20170076
Filing Date: 10/17/2017
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. Whetsel 2017 ND 237
Docket No.: 20170141
Filing Date: 10/17/2017
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A district court's decisions relating to expert witness testimony will be affirmed absent an abuse of discretion.

Wisham v. State 2017 ND 236
Docket No.: 20170176
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of application for post-conviction relief alleging sentence time calculation error and violation of constitutional rights is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Wisham v. State 2017 ND 235
Docket No.: 20170164
Filing Date: 10/17/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a petitioner's application for post-conviction relief on the basis of ineffective assistance of counsel is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 9, ECJD 2017 ND 233
Docket No.: 20170327
Filing Date: 10/10/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: The judgeship vacancy created by the retirement of Norman G. Anderson in Fargo is retained.

Matter of John T. Gassmann Trust 2017 ND 232
Docket No.: 20170033
Filing Date: 10/3/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: Res judicata bars the relitigation of claims that were raised, or could have been raised, in earlier actions between the same parties.
Under North Dakota law, if a trust has two or more beneficiaries, the trustee must act impartially in dealing with the trust property, giving due regard to the beneficiaries' respective interests. The trustee also has a duty to protect and preserve the trust assets and to defend actions which may result in loss to the trust.

Wilkinson, et al. v. Board of University and School Lands of the State of N.D. 2017 ND 231
Docket No.: 20160199
Filing Date: 9/28/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Chapter 61-33.1, N.D.C.C., governing minerals rights of land inundated by the Pick-Sloan Missouri Project dams, applies retroactively.
A property owner is entitled to compensation if the government "takes" or "damages" private property for public use.

Interest of F.S. (CONFIDENTIAL) (consolidated w/20170298 & 20170299) 2017 ND 230
Docket No.: 20170297
Filing Date: 9/20/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: A district court does not abuse its discretion in reopening the record after trial has concluded when the evidence is directly relevant to the matter and a final order has not been issued.

Baker v. Autos, Inc., et al. (cross-reference w/20140033) 2017 ND 229
Docket No.: 20170174
Filing Date: 9/20/2017
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Certification under N.D.R.Civ.P. 54(b) should not be routinely granted and is reserved for cases involving unusual circumstances where failure to allow an immediate appeal would create a demonstrated prejudice or hardship.

Interest of Jane Doe (CONFIDENTIAL) 2017 ND 228
Docket No.: 20170322
Filing Date: 9/20/2017
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court ordering Jane Doe's hospitalization and involuntary treatment with medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Osier (consolidated w/20170042)(cross-ref. w/19960346 & 19980088) 2017 ND 227
Docket No.: 20170041
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Order denying motion for relief from the judgment under N.D.R.Civ.P. 60(b) is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Doornek (Consolidated w/20170027) 2017 ND 226
Docket No.: 20170020
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found defendant guilty of one count of theft of property and two counts of assaulting a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Wagner 2017 ND 225
Docket No.: 20170093
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court's order denying Wagner's motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Duchaine 2017 ND 224
Docket No.: 20170037
Filing Date: 9/20/2017
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court's judgment entered after a jury found Duchaine guilty of burglary is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Phillips v. State (cross-reference w/20130151) 2017 ND 223
Docket No.: 20170131
Filing Date: 9/20/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary dismissal of application for post-conviction relief alleging newly discovered evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Matter of Reciprocal Discipline of Matson 2017 ND 222
Docket No.: 20170305
Filing Date: 9/18/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Disbared.

Disciplinary Board v. Nemec 2017 ND 221
Docket No.: 20170257
Filing Date: 9/18/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Disbared.

Vacancy in Judgeship No. 3, NECJD 2017 ND 220
Docket No.: 20170270
Filing Date: 9/18/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judicial Vacancy Filled.

Markgraf, et al. v. Welker, et al. (cross-reference w/ 20150116) 2017 ND 219
Docket No.: 20160449
Filing Date: 9/7/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: A resulting trust exists where the parties' acts or expressions indicate an intent that a trust relation resulted from their transaction conveying property.
The statute of limitations generally does not run between the trustee and the trust beneficiaries until the trustee clearly repudiates the trust.
To constitute a repudiation, the trustee must say or do something in open contravention of the terms of the trust and of such character that the parties' relations will become and continue to be hostile.

Kulczyk, et al. v. Tioga Ready Mix Co., et al. 2017 ND 218
Docket No.: 20160330
Filing Date: 9/1/2017
Case Type: Appeal - Civil - Foreclosure
Author: VandeWalle, Gerald

Highlight: Res judicata prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties.
An action against a guarantor is based on the contract of guaranty which is an obligation distinct from the obligation imposed by a promissory note and mortgage.

Zundel, et al. v. Zundel 2017 ND 217
Docket No.: 20170003
Filing Date: 9/1/2017
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: In general, property not used for the production of agricultural crops, livestock, or livestock products is not agricultural land.
If a claim is found to be frivolous, reasonable attorney's fees must be awarded.
If the law is unclear or unsettled on a particular claim, that circumstance makes it less likely that the claim will be found frivolous.

Disciplinary Board v. Lee 2017 ND 216
Docket No.: 20170241
Filing Date: 8/30/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Disbarred.

Coon, et al. v. N.D. Dep't of Health, et al. 2017 ND 215
Docket No.: 20170089
Filing Date: 8/30/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The Department of Health administrative regulations require all concentrated animal feeding operations to apply for and obtain a pollutant discharge elimination system permit.
An administrative agency's decision to grant a permit will not be reversed on appeal if under the facts and circumstances of the case reversal would be a useless act.
The Department of Health is not required to reopen the public comment period when an applicant submits additional information in support of its application for a permit.

Lewis v. Smart 2017 ND 214
Docket No.: 20160341
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Divorce - Property
Author: Tufte, Jerod E.

Highlight: A district court's decision whether to grant relief under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion.
A district court must equitably distribute the parties' property and debts. Where a party has hidden assets and has chosen not to comply with the court's distribution order, the court may alter an agreement to restore equity despite that party's protestations.
A court does not abuse its discretion in awarding attorney's fees where it finds a party's actions have unreasonably increased the time spent on a case.

State v. Rath 2017 ND 213
Docket No.: 20170077
Filing Date: 8/29/2017
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: McEvers, Lisa K. Fair

Highlight: A supervisory writ is issued rarely and cautiously only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

Conrad v. Wilkinson 2017 ND 212
Docket No.: 20170074
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A pending lawsuit that does not affect title to real property may not be the basis for a party to file a lis pendens against the real property and an improperly filed lis pendens may be cancelled.

Schwartzenberger v. McKenzie County Board of County Commissioners 2017 ND 211
Docket No.: 20170024
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: An appeal is not moot if the controversy is one of great public interest and involves the authority and power of public officials, or alternatively, if the matter is capable of repetition yet evading review.
A board of county commissioners may not restrict an elected county sheriff's authority to fire an employee hired by the sheriff except through personnel policies that do not usurp or significantly interfere with the sheriff's authority to fire employee's in the sheriff's office.

Welch v. WSI, et al. 2017 ND 210
Docket No.: 20160316
Filing Date: 8/29/2017
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: In an administrative appeal, the Court determines only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.
To trigger the civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
For purposes of the statute's civil penalties, "willfully" means conduct engaged in intentionally and not inadvertently, but does not require an intent to defraud.

State v. Newark 2017 ND 209
Docket No.: 20160360
Filing Date: 8/29/2017
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: A district court's decision whether to grant a motion for continuance will not be set aside on appeal absent an abuse of discretion.
The district court has broad discretion to control the introduction of evidence at trial.

Interest of M.S. (CONFIDENTIAL) (cross-reference w/20140304, 20140435 & 2016023 2017 ND 208
Docket No.: 20170280
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: A demand for a change of judge under N.D.C.C. § 29-15-21 is not valid in a mental health proceeding if the judge sought to be disqualified has already ruled on any matter pertaining to the proceeding.

State v. Helm 2017 ND 207
Docket No.: 20170036
Filing Date: 8/29/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: A warrantless urine test may not be administered as a search incident to a lawful arrest for driving while impaired, and a driver may not be prosecuted for refusing a warrantless urine test incident to arrest.

Nygaard v. Taylor (consolidated w/ 20170017) 2017 ND 206
Docket No.: 20170016
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: The Supreme Court may exercise supervisory jurisdiction when issues of vital concern regarding matters of important public interest are presented.
A contemnor may not be imprisoned for more than six months as a remedial sanction unless the district court expressly finds that the six-month statutory limitation would be ineffectual to terminate a continuing contempt.

State v. Majetic 2017 ND 205
Docket No.: 20160385
Filing Date: 8/29/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Under the obvious error rule in criminal proceedings, an appellate court may not notice a claimed error that was not brought to the attention of a trial court unless there is error that is plain and affects a defendant's substantial rights.
For a claimed error to be obvious error, there must be a clear deviation from an applicable legal rule under current law.

Kramlich, et al. v. Hale, et al. 2017 ND 204
Docket No.: 20160386
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A broadly-worded agreement in one contract can require arbitration of disputes arising under related contracts.
To determine whether an arbitration provision in one agreement should be applied to other agreements, in addition to the relationship between two or more agreements and their subject matter, courts consider whether the parties to the separate agreements are identical, whether the underlying agreements were executed closely in time, and the breadth of the language used in the arbitration clause.
The question whether a particular dispute is arbitrable usually is for judicial determination unless the parties agree otherwise.
A party may waive the jury trial right by signing an agreement to arbitrate or by binding itself to arbitration as a nonsignatory through traditional principles of contract or agency law.

State v. Pulkrabek 2017 ND 203
Docket No.: 20160332
Filing Date: 8/17/2017
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: The different subsections of the theft statute, N.D.C.C. § 12.1-23-02, are alternative means of committing the crime of theft and are not separate, independent, offenses.
A jury is not required to unanimously agree upon which action the defendant committed under the subsections of § 12.1.-23-02.

Vail v. S/L Services, Inc. 2017 ND 202
Docket No.: 20170011
Filing Date: 8/11/2017
Case Type: Certified Question - Civil - Civil
Author: McEvers, Lisa K. Fair

Highlight: An employer may not willfully misrepresent to Workforce Safety and Insurance the amount of payroll used to calculate insurance premiums, or willfully fail to secure coverage for employees.
An employer's conduct is willful if engaged in intentionally and not inadvertently.

Public Service Commission v. Grand Forks Bean Company, Inc., et al. 2017 ND 201
Docket No.: 20160303
Filing Date: 8/9/2017
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A noncredit-sale receipt holder of an insolvent grain warehouseman is entitled to participate in an insolvency trust fund administered by the Public Service Commission, and a credit-sale contractor is not entitled to participate in that trust fund.
A licensed grain warehouseman is insolvent when the licensee refuses, neglects, or is unable upon proper demand to (1) make payment for grain purchased or marketed by the licensee, or (2) make redelivery or payment for grain stored.
The PSC is entitled to costs and expenses incurred in administrating a grain warehouseman's insolvency trust fund.

Fahey, et al. v. Fife, et al. 2017 ND 200
Docket No.: 20160305
Filing Date: 8/7/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Arguments not raised to the district court will not be addressed on appeal.
Absent clear error, a district court's valuation of a decedent's estate will not be reversed on appeal.

Disciplinary Board v. Allen 2017 ND 199
Docket No.: 20170061
Filing Date: 8/2/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Although N.D.R. Prof. Conduct 1.8(l) exempts attorneys with familial relationships from the absolute ban against serving in the dual capacities of fiduciary and lawyer for the fiduciary, it does not relieve them from duties owed under the law and the rules of professional conduct.
The Supreme Court defers to a hearing panel's findings on the credibility of a witness.
Circumstantial evidence can establish clear and convincing evidence of a violation of the rules of professional conduct.
For violations of N.D.R. Prof. Conduct 1.7 (conflict of interest), 1.9 (duties to former client), and 8.4 (misconduct) while serving as his mother's attorney-in-fact and as the personal representative of her estate, a lawyer is suspended from the practice of law for six months and ordered to pay $15,360.77 for the costs and expenses of the proceedings.

Stuber, et al. v. Engel, et al. 2017 ND 198
Docket No.: 20160391
Filing Date: 8/2/2017
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: Under N.D.C.C. § 30.1-18-14, a person dealing with a personal representative in good faith is protected as if the personal representative properly exercised the personal representative's power.
A person dealing with a personal representative does not receive the protections of N.D.C.C. § 30.1-18-14 unless the person obtains the personal representative's letters of appointment or any other court order giving the personal representative authority to act in this state.
A damage award will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.

Hokanson, et al. v. Zeigler, et al. 2017 ND 197
Docket No.: 20160359
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: Under an installment sales contract for patent from the State Board of University and School Lands, the State retains the legal title to the property and holds it in trust for the purchaser and as security for the purchaser's compliance with the contract.
The purchaser of such land holds equitable title until the terms of the installment sales contract have been completed and a patent has been issued, at which time the legal title merges with the equitable title.
Completion of the terms of the installment sales contract for patent perfects title relating back to the date of the contract.