Opinions

Saari v. State 2017 ND 94
Docket No.: 20160263
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: To prevail on a post-conviction claim of ineffective assistance of counsel, the petitioner has the heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.
If the petitioner fails to show that his or her attorney's representation fell below an objective standard of reasonableness on a claim of ineffective assistance of counsel, this Court need not analyze whether the petitioner was prejudiced by the attorney's representation.

Everett v. State 2017 ND 93
Docket No.: 20160160
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The right of appeal is governed solely by statute in this state, and without any statutory basis to hear an appeal, the Supreme Court must take notice of the lack of jurisdiction and dismiss the appeal.
Although statutes conferring the right to appeal must be liberally construed to maintain the right to appeal, the party appealing bears the burden of showing that the right to appeal comes within the language of a statute.

Goodall, et al. v. Monson, et al. 2017 ND 92
Docket No.: 20160235
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A latent ambiguity arises when a writing appears unambiguous on its face, but some collateral matter makes the meaning uncertain.
A latent ambiguity is shown to exist for the first time by matter outside the writing when an attempt is made to apply the language to the ground.
A party may not use extrinsic evidence to create a latent ambiguity in a deed and change the terms of an unambiguous deed.
Any evidence to prove the true intent of the parties or prove the existence of a mutual mistake is admissible in an action to reform a deed.

Lizakowski v. Lizakowski 2017 ND 91
Docket No.: 20160072
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A district court's determination on property division or spousal support will not be set aside for failure to explicitly state the basis for its findings if that basis is reasonably discernable by deduction or inference.
In deciding whether to award attorney fees in a divorce action, the district court must balance one party's needs against the other party's ability to pay and consideration of fault is only relevant to the extent one party has unreasonably escalated the fees.

State v. Howe 2017 ND 90
Docket No.: 20160331
Filing Date: 4/25/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction on two counts of possession of a controlled substance and two counts of possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Schnellbach 2017 ND 89
Docket No.: 20160342
Filing Date: 4/25/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of J.J.A.M. (Confidential) 2017 ND 88
Docket No.: 20170081
Filing Date: 4/25/2017
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. Caster 2017 ND 87
Docket No.: 20160335
Filing Date: 4/25/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Amended criminal judgment revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7). State v. McAvoy, 2008 ND 204,  9, 757 N.W.2d 394; State v. Wetzel, 2011 ND 218,  11, 806 N.W.2d 193.

Vacancy in Judgeship No. 1, Southeast Judicial District 2017 ND 86
Docket No.: 20170062
Filing Date: 4/19/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Jamestown.

Vacancy in Judgeship No. 2, Northeast Judicial District 2017 ND 85
Docket No.: 20170054
Filing Date: 4/19/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Rugby.

Glende v. State 2017 ND 84
Docket No.: 20160304
Filing Date: 4/12/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court judgment summarily dismissing an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Rufus v. State 2017 ND 83
Docket No.: 20160445
Filing Date: 4/12/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

City of Gwinner v. Vincent 2017 ND 82
Docket No.: 20160223
Filing Date: 4/6/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: A person arrested for DUI has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test.
The reasonableness of the opportunity to consult with an attorney before taking a chemical test for DUI is evaluated under the totality of the circumstances.
A law enforcement officer provided reasonable opportunity to a DUI arrestee who is unable to reach his lawyer and makes no further requests.

City of Dickinson v. Schank 2017 ND 81
Docket No.: 20160254
Filing Date: 4/6/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A person arrested for driving or being in actual physical control of a motor vehicle while under the influence has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test.
A DUI or APC arrestee being asked to submit to a chemical test is, upon request, entitled to a reasonable opportunity to contact a lawyer before deciding whether to take the test. The reasonableness of the opportunity to consult with counsel is evaluated under the totality of the circumstances.

Rath v. Rath (cross reference w/20150133) 2017 ND 80
Docket No.: 20160169
Filing Date: 4/5/2017
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Threats and activity intended to embarrass, annoy, or harass are not constitutionally protected speech.
Challenges to subject matter jurisdiction can be raised at anytime, even for the first time at oral argument.
The denial of a motion for reconsideration confirms the district court's order.

State v. Conrad 2017 ND 79
Docket No.: 20160301
Filing Date: 4/4/2017
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Whether the civil dispute doctrine applies in a criminal case is a question of law.
A joint account holder may be charged with theft and exploitation of a vulnerable adult for misuse of joint account funds.
The civil dispute doctrine bars criminal prosecution if the case presents a legitimate dispute on a unique issue of property, contract, or other civil law, and the issues in the case would be more appropriately settled in a civil forum.
For the civil dispute doctrine to apply, resolution of the legitimate dispute on a unique issue of civil law must impact the public in general, rather than only the defendant and the alleged victim in the criminal case.

THR Minerals, LLC. v. Robinson, et al. 2017 ND 78
Docket No.: 20160062
Filing Date: 4/3/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: Assignments and deeds are interpreted in the same manner as contracts, with the primary purpose to ascertain and effectuate the parties' or grantor's intent.
When an assignment is memorialized in a clear and unambiguous writing, a court should not look to extrinsic evidence to ascertain intent.

Stewart v. State 2017 ND 77
Docket No.: 20160253
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: An applicant for post-conviction relief claiming ineffective assistance of counsel must establish counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced the applicant's defense.
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.

Voigt v. N.D. Public Service Commission, et al. 2017 ND 76
Docket No.: 20160046
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: Section 38-14.1-21, N.D.C.C., provides for surface coal mining permit approval and denial standards, including protection for statutorily-defined "alluvial valley floors," certain types of valleys with special importance to farming.
In reviewing an administrative agency's findings of fact, courts determine 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.
Courts generally defer to an administrative agency's reasonable interpretation of its own regulations when the language is so technical that only a specialized agency has the experience and expertise to understand it or when the language is ambiguous.

State v. Webster 2017 ND 75
Docket No.: 20160155
Filing Date: 3/30/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: An individual may not be criminally prosecuted for refusing a warrantless blood test incident to arrest.
The requirements for requesting an onsite breath screening test are not essential elements of the crime of refusing an onsite breath screening test.

State v. Ashby 2017 ND 74
Docket No.: 20160157
Filing Date: 3/30/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: To justify stopping a moving vehicle for investigation, a law enforcement officer must have a reasonable and articulable suspicion a motorist has violated or is violating the law.
Whether an officer had a reasonable and articulable suspicion is a fact-specific inquiry that is evaluated under an objective standard considering the totality of the circumstances.
Information from an informant whose identity is easily ascertainable has a higher indicia of reliability than information obtained from a purely anonymous informant.

Carroll v. Carroll 2017 ND 73
Docket No.: 20160190
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decision whether to vacate a judgment or grant a new trial rests entirely within the its discretion.
The district court has broad discretion whether to grant a motion for a continuance, and its decision will not be reversed on appeal absent an abuse of discretion.
The State is a statutory real party in interest in certain child support matters.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

Nandan, LLP, et al. v. City of Fargo (cross-ref. w/20140121) 2017 ND 72
Docket No.: 20160166
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Tax Realted
Author: VandeWalle, Gerald

Highlight: Summary judgment generally is an appropriate method for resolving statutory construction issues.
A municipality may use a county drain as part of, or as an outlet for, its storm sewer system.

Estate of Vendsel (consolidated w/20160164) 2017 ND 71
Docket No.: 20160163
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Highlight: A self-represented litigant is subject to the rules of appellate procedure and has a duty to bring to the court's attention the proper rules of law that apply to a case.
A party claiming a breach of fiduciary duties must specify which fiduciary duty was breached, the breach caused her damages, and must properly plead damages in order to prevail on her claim.

State v. Belgarde 2017 ND 70
Docket No.: 20160364
Filing Date: 3/30/2017
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Highlight: The starting point for whether a late alibi notice should be excused under N.D.R.Crim.P. 12.1(d) is some showing of good cause by the defendant to justify an exception.
Where an alibi defense is raised late but before trial, the district court should still consider possible prejudice against the prosecution.

Gaede v. Bertsch 2017 ND 69
Docket No.: 20160073
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Section 23-06-03, N.D.C.C., requires a deceased inmate's county of residence to arrange for and supervise the deceased inmate's burial only if the inmate does not have a surviving spouse or kindred and did not leave sufficient means to pay the funeral expenses.
The Department of Corrections and Rehabilitation has authority to deposit a portion of an inmate's earnings in a release aid account.

A. R. Audit Services, Inc. v. Tuttle 2017 ND 68
Docket No.: 20160162
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: VandeWalle, Gerald

Highlight: On review of a summary judgment, if reasonable persons could reach only one conclusion from the facts, issues of fact may become issues of law.

Gagnon v. Gagnon 2017 ND 67
Docket No.: 20160239
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: If the district court finds credible evidence of domestic violence exists, it is the predominate factor to be considered in a primary residential responsibility decision.

Myers v. State (cross-reference w/20150223) 2017 ND 66
Docket No.: 20160256
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: An applicant who inexcusably fails to raise all claims in a single postconviction relief proceeding misuses the postconviction relief process by filing a subsequent application raising issues that could have been raised in the earlier proceeding.

Roe v. State 2017 ND 65
Docket No.: 20160179
Filing Date: 3/20/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A victim's recantation does not by itself make her initial allegation of sexual abuse implausible or incredible, because she may have a variety of reasons to testify in apparent conflict with her prior statement.

Judicial Conduct Commission v. Hagar 2017 ND 64
Docket No.: 20160283
Filing Date: 3/30/2017
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: A judge may be suspended without pay for violations of the Code of Judicial Conduct.

Thompson v. State (cross-reference w/20150157) 2017 ND 63
Docket No.: 20160320
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order entered on remand denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Russell 2017 ND 62
Docket No.: 20160310
Filing Date: 3/30/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgments entered after a jury found defendant guilty of possession of a controlled substance and possession of drug paraphernalia are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Matter of Wegley 2017 ND 61
Docket No.: 20160266
Filing Date: 3/30/2017
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order continuing civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Evans v. State 2017 ND 59
Docket No.: 20160345
Filing Date: 3/15/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Follman v. Follman 2017 ND 58
Docket No.: 20160246
Filing Date: 3/15/2017
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court amended judgment awarding primary residential responsibility to the father and order denying a motion for continuance is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

EduCap, Inc. v. Elder, et al. 2017 ND 57
Docket No.: 20160340
Filing Date: 3/15/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: A district court's orders denying a request for relief from judgment under N.D.R.Civ.P. 60(d) and a motion to reconsider are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Kaul 2017 ND 56
Docket No.: 20160149
Filing Date: 3/13/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An investigative stop must be justified by reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.
The United States Supreme Court's rule in Michigan v. Summers, 452 U.S. 692 (1981), which categorically permits the detention of occupants without reasonable suspicion incident to the execution of a search warrant, does not apply to the seizure of a visitor incident to a probationary search of another individual's residence.

Ueckert v. N.D. Dep't of Transportation 2017 ND 55
Docket No.: 20160152
Filing Date: 3/8/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming the Department of Transportation hearing officer's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(7); Beylund v. Levi, 2017 ND 30.

Hamilton v. State 2017 ND 54
Docket No.: 20160276
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A district court's erroneous construction and application of N.D. Sup. Ct. Admin. R. 52, § 2(D) and (E) amounted to harmless error.
An applicant for post-conviction relief does not have an absolute right to be personally present at an evidentiary hearing when represented by counsel and permitted to testify by telephone.

O'Hara v. Schneider 2017 ND 53
Docket No.: 20160318
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: Where the initial order establishing primary residential responsibility or parenting time included consideration of a pattern of domestic violence, a new domestic violence act by the same parent satisfies the "material change" prong as a matter of law.
When the original order establishing primary residential responsibility or parenting time is based on a stipulated agreement, district courts retain limited discretion to decide whether to consider relevant pre-custody evidence only if the previous judge issued court-made findings on such evidence.
In cases in which a party alleges domestic violence, the analysis requires consideration of the domestic violence factor under either N.D.C.C. § 14-09-06.2(1)(j) or N.D.C.C. § 14-09-29, depending on whether the case involves residential responsibility or parenting time, before turning to the additional best interests factors under § 14-09-06.2.
Any domestic violence negatively impacts the best interests of the children, regardless of whether the domestic violence was between the parents rather than directed at the children.

City of Grand Forks v. Opp 2017 ND 52
Docket No.: 20160329
Filing Date: 3/7/2017
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A defendant is limited on appeal to issues raised in motion for new trial.
A motion for severance must be brought at the close of evidence to properly preserve an objection to joinder.
A district court's consolidation of two charges into one trial was not obvious error when defendant failed to make compelling showing of need to present evidence concerning one charge and the inability to present the evidence to defend the other charge.

State v. White 2017 ND 51
Docket No.: 20160227
Filing Date: 3/7/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A probationary search, supported by reasonable suspicion and authorized by a condition of supervised probation, is reasonable and does not violate the probationer's constitutional rights.

Jalbert v. Eagle Rigid Spans, Inc. 2017 ND 50
Docket No.: 20160173
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A trial court's decision to grant or deny a new trial for an excessive damage verdict is discretionary and will not be overturned unless an abuse of discretion has been demonstrated. It is presumed that a damage verdict is proper, and this presumption is overcome only when the jury's verdict is so excessive that it shocks the conscience of the court.
A court may impose reasonable restrictions upon the length of the trial or hearing and upon the number of witnesses allowed.

Nelson v. McAlester Fuel Company, et al. 2017 ND 49
Docket No.: 20160007
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: The statutory procedure in N.D.C.C. ch. 38-18.1 allowing a surface owner to acquire abandoned mineral interests is a separate, distinct procedure from a subsequent quiet title action.
The primary objective in interpreting a statute is to determine the intent of the legislature by first looking at the language of the statute and giving words their plain, ordinary, and commonly understood meaning.
Statutes are construed in a practical manner.

Mitzel v. Larson 2017 ND 48
Docket No.: 20160208
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A party may waive a personal jurisdiction argument by voluntarily submitting to the personal jurisdiction of the district court.
A petitioner for a disorderly conduct restraining order must allege specific facts or threats showing the acts are intended to affect the petitioner's safety, security, or privacy.

Broten, et al. v. Broten (cross-reference w/20140177) 2017 ND 47
Docket No.: 20160151
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: An unjust enrichment claim is fully reviewable on appeal, and the essential element in recovering under the theory is the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value.
A court's findings of fact supporting its unjust enrichment determination are subject to the clearly erroneous standard of review.

State v. Borden 2017 ND 46
Docket No.: 20160187
Filing Date: 3/7/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition, aggravated assault, and menacing is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Environmental Driven Solutions v. Dunn County, et al. 2017 ND 45
Docket No.: 20160100
Filing Date: 3/7/2017
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A county has no authority through its zoning regulations to veto the Industrial Commission's siting of an oil and gas waste treating plant.

Interest of A.D. (Confidential) 2017 ND 44
Docket No.: 20170014
Filing Date: 3/7/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).