Opinions

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.

State v. Carson (consolidated w/20160384) 2017 ND 196
Docket No.: 20160383
Filing Date: 7/31/2017
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Highlight: Under N.D.C.C. § 12.1-32-08(1)(a), "directly related" and "direct result" require an immediate and intimate causal connection between the criminal conduct for which the defendant was convicted and the damages or expenses for which restitution is ordered.

State v. Azure 2017 ND 195
Docket No.: 20160402
Filing Date: 7/31/2017
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: Under North Dakota Rules of Evidence 804, it does not matter that the defendant may have had significantly less incentive to cross-examine the witness at the preliminary examination hearing than at the trial, the testimony is permissible at trial if it meets the requirements under the rule.
If a prior consistent statement is to be admitted under Rule 801(d)(1)(B), the declarant must testify and be subject to cross-examination at the trial or hearing at which it is being offered.

Linstrom, et al. v. Normile 2017 ND 194
Docket No.: 20160394
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A district court has broad discretion on evidentiary matters and its decision to admit or exclude evidence will not be overturned unless it abused its discretion.
Issues not raised before the district court will not be considered for the first time on appeal.

Williams County v. Sorenson, et al. 2017 ND 193
Docket No.: 20160451
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Administrative res judicata is applied more cautiously than judicial res judicata, taking into consideration the subject matter decided by the administrative agency, the purpose of the administrative action, and the reasons for the later proceeding.
On appeal, the party opposing a motion for summary judgment will be given all favorable inferences that may be reasonably drawn from the evidence.

Chase v. State 2017 ND 192
Docket No.: 20160456
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Summary dismissal is normally inappropriate for post-conviction relief claims arguing ineffective assistance of counsel because such claims typically require development of a record in an evidentiary hearing.

Maragos, et al. v. Newfield Production Company 2017 ND 191
Docket No.: 20160441
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A party with a royalty interest in a property, who has not signed a division order with an oil company, may recover underpayments from the oil company.

State v. Blotske 2017 ND 190
Docket No.: 20160339
Filing Date: 7/31/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A district court's decision on a motion for mistrial will not be reversed on appeal absent a showing the court abused its discretion or that a manifest injustice would occur.
The cumulative effect of multiple errors may be productive of a manifest injustice which requires the district court to declare a mistrial.
For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser offense.

Booen v. Appel 2017 ND 189
Docket No.: 20170012
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court must analyze all four Stout-Hawkinson factors in determining whether a custodial parent may move out-of-state with a child.
A district court's contempt decision will not be overturned on appeal unless the court abused its discretion.

State v. Davison (consolidated w/ 20160390 & 20160454) 2017 ND 188
Docket No.: 20160372
Filing Date: 7/31/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Statutory interpretation is a question of law, which is fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless they are defined by statute or unless a contrary intention plainly appears.
An adult is guilty of patronizing a minor for commercial sexual activity when (1) with the intent to engage in commercial sexual activity with a minor; (2) the individual gives, agrees to give, or offers to give anything of value to a minor or another person; and (3) for the purpose of obtaining commercial sexual activity with a minor.

Adoption of J.L.F. (CONFIDENTIAL) 2017 ND 187
Docket No.: 20160399
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Adoption
Author: Tufte, Jerod E.

Highlight: An individual seeking to adopt a child must ordinarily obtain the written consent of the child's parents, though if written consent is not provided, it must be proven the parent either (1) for one year failed significantly without justifiable cause to communicate with the child or provide for the care and support of the child or (2) abandoned the child.

State v. Hyde 2017 ND 186
Docket No.: 20160437
Filing Date: 7/31/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: The State has the burden to prove the three elements of the emergency doctrine exist at the time of a warrantless entry into a residence.
An objective standard of reasonableness is used in determining whether law enforcement had reasonable grounds to believe there was an emergency at hand and an immediate need for their assistance for the protection of life or property.
A delay in law enforcement's responding to a potential emergency weighs against a finding of "immediate" need of police assistance.

State v. Von Ruden 2017 ND 185
Docket No.: 20170015
Filing Date: 7/31/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: An arresting officer's manual abortion of an Intoxilyzer breath test sequence after receiving a deficient sample does not invalidate the test results from a second, independent breath test sequence administered in accordance with the approved method.
A person arrested for DUI has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test and the arresting officer must provide the arrestee with a reasonable opportunity to speak with an attorney so long as that opportunity does not materially interfere with the test administration.

Kulbacki v. Michael (cross-reference 20130283) 2017 ND 184
Docket No.: 20160353
Filing Date: 7/31/2017
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A motion to modify grandparent visitation with a minor child requires the moving party to show a material change of circumstances has occurred since the prior visitation order and it is in the child's best interests to modify the order.
In a proceeding relating to the modification of grandparent visitation, the termination of a parent's rights is a material change in circumstances.

Industrial Contractors Inc. v. Taylor, et al. 2017 ND 183
Docket No.: 20160322
Filing Date: 7/31/2017
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Under workers' compensation law, seasonal employment includes occupations that are not permanent or that do not customarily operate throughout the entire year and is determined by what is customary with respect to the employer at the time of injury.

Disciplinary Board v. Widdel 2017 ND 182
Docket No.: 20170204
Filing Date: 7/25/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Suspended.

Vacancy in Judgeship No. 6, NEJD 2017 ND 181
Docket No.: 20170158
Filing Date: 7/24/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Grafton.

Ritter v. Ritter (Cross-reference w/20150202) 2017 ND 180
Docket No.: 20160442
Filing Date: 7/19/2017
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court's second amended judgment denying a motion for equal residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Langved v. Continental Resources, Inc., et al. (cross-reference 20150335) 2017 ND 179
Docket No.: 20160363
Filing Date: 7/17/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: Appeals from decisions of the Industrial Commission cannot be turned into inverse condemnation actions.
The Industrial Commission is authorized to modify previously designated spacing units.
The correlative right is having the opportunity to produce, not having a guaranteed share of production.

Interest of A.B. (consolidated with 20170206)(confidential) 2017 ND 178
Docket No.: 20170205
Filing Date: 7/12/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: In terminating parental rights, a parent's lack of cooperation with social services is relevant and indicates the causes and conditions of deprivation are likely to continue.
Children should not be required to remain in an indeterminate status between foster care and the need for permanent placement while parents attempt to improve their lives.

State v. Friesz 2017 ND 177
Docket No.: 20160147
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Warrantless and non-consensual searches and seizures made inside a home are presumptively unreasonable, unless an exception to the warrant requirement applies.
The exigent circumstances exception includes an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.
The inevitable discovery doctrine establishes that evidence derived from information obtained in an unlawful search is not inadmissible under the fruit-of-the-poisonous-tree doctrine when it is shown that the evidence would have been gained even without the unlawful action.

Paving District 476 Group, et al. v. City of Minot 2017 ND 176
Docket No.: 20160317
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A property owner does not have a constitutional right to notice when a municipality initially decides to create an improvement district and construct an improvement.
The gift clause does not apply to limit a city in making internal improvements.

Zerr v. WSI 2017 ND 175
Docket No.: 20160314
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Dismissal for lack of subject matter jurisdiction is appropriate when a plaintiff fails to exhaust administrative remedies.
When the jurisdictional facts are not disputed, a dismissal for lack of subject matter jurisdiction is reviewed de novo on appeal.
A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim presented in the complaint, which is reviewed de novo on appeal.

Dixon v. Dixon, et al. 2017 ND 174
Docket No.: 20160438
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: A deed may be reformed if there is a mutual mistake and the contract does not truly express the parties' intention.
The district court has discretion in deciding whether to allow substitution of a party.

Leavitt v. State 2017 ND 173
Docket No.: 20160398
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: In opposing a State's motion for summary disposition, an applicant for post-conviction relief may not merely rely on the pleadings or on unsupported conclusory allegations but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.
To avoid summary dismissal of an ineffective assistance of counsel claim, an applicant for post-conviction relief must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness.

State v. Hawkins 2017 ND 172
Docket No.: 20160354
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A district court's decision on a motion to suppress evidence will be affirmed unless the decision is not supported by sufficient competent evidence, or unless the decision is against the manifest weight of the evidence.
Consent is an exception to the warrant requirement.
The voluntariness of consent is a finding of fact determined under the totality of the circumstances.

State v. Teggatz 2017 ND 171
Docket No.: 20160367
Filing Date: 7/12/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A district court's decision to admit or exclude evidence is subject to review for abuse of discretion.
The "present sense impression" exception to the rule against hearsay, under N.D.R.Ev. 803, applies to "a statement describing or explaining an event or condition, made while or immediately after the declarant perceived the event or condition."

Schaffner v. Schaffner (cross reference w/20160388 & 20170021) 2017 ND 170
Docket No.: 20170044
Filing Date: 7/12/2017
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: For purposes of appealability, district court orders are treated as final judgments if the district judge intended the order to be a final judgment.