Opinions

State v. Gray 2017 ND 108
Docket No.: 20160289
Filing Date: 4/25/2017
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: When an affidavit is filed with a complaint, these documents may be read together to test the sufficiency of the complaint in a motion to dismiss. When an appellant assumes the consequences and the risk for the failure to file a transcript on appeal, and this Court will not review an issue if the record on appeal does not allow a meaningful and intelligent review of the district court's alleged error.
This Court will not address arguments raised for the first time on appeal.
A motion to correct an illegal sentence may not be used to reopen a final judgment and collaterally attack an underlying conviction.

Greene v. Matthys 2017 ND 107
Docket No.: 20160284
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: Section 28-01-46, N.D.C.C., requires a plaintiff in a medical negligence action to serve on the defendant an expert's affidavit containing, among other things, an opinion to support a prima facia case of professional negligence.
Cases involving technical surgical procedures are generally beyond the understanding of a layperson, and do not fall under the "obvious occurrence" exception under N.D.C.C. § 28-01-46.
In order for the "obvious occurrence" exception to apply, it is the occurrence itself, not the result of the surgery, that must be obvious.

State, et al. v. Winegar 2017 ND 106
Docket No.: 20160281
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Ogren, et al. v. Sandaker, et al. 2017 ND 105
Docket No.: 20160279
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Royalty interests in a mineral estate may be conveyed or reserved as a fractional royalty interest or a fraction of royalty interest.
A fractional royalty interest is a fixed fraction of total production that remains constant regardless of the amount of royalty in a subsequent oil and gas lease. A fraction of royalty is a fraction of the total royalty interest and varies according to the size of the landowner's royalty in a mineral lease.

Morris v. State 2017 ND 104
Docket No.: 20160350
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 counsel's representation.

Crawford v. N.D. Dep't of Transportation 2017 ND 103
Docket No.: 20160252
Filing Date: 4/25/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Traffic violations constitute prohibited conduct and provide law enforcement officers with sufficient grounds for an initial investigatory traffic stop.
Assuming consent to warrantless blood test incident to arrest was involuntary, the exclusionary rule and North Dakota law does not require the suppression of the blood test results in civil administrative license suspension proceedings.

State v. Rourke 2017 ND 102
Docket No.: 20160302
Filing Date: 4/25/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A criminal defendant must preserve a sufficiency of the evidence argument for appeal by moving for a judgment of acquittal at trial under N.D.R.Crim.P. 29.
This Court exercises its power to notice obvious error cautiously, and only in exceptional circumstances. This Court need not exercise its discretion to notice obvious error when the appellee, not the appellant, raises the issue of obvious error on appeal, and the appellant does not point this Court to an obvious error that affects his substantial rights.

Opp v. N.D. Dep't of Transportation (consolidated w/20160215) 2017 ND 101
Docket No.: 20160211
Filing Date: 4/25/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A Department of Transportation decision suspending or revoking driving privileges may be appealed to the district court by serving the director and filing a notice of appeal with specifications of error in the district court within seven days after t

Estate of Nohle 2017 ND 100
Docket No.: 20160274
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: Issues that are not briefed or argued on appeal are deemed abandoned.
Courts do not issue advisory opinions.
A motion for relief from a judgment or order must be made within a reasonable time.

Mid Dakota Clinic v. Livengood 2017 ND 99
Docket No.: 20170029
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: VandeWalle, Gerald

Highlight: The right to vacate satisfactions is based upon the inherent right of courts to correct its records to conform to the facts.
There is no fixed time line in which to vacate a satisfaction of judgment.

Addai v. State 2017 ND 98
Docket No.: 20160336
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An application for post-conviction relief alleging newly discovered evidence, filed more than two years after the conviction becomes final, may be considered if the new evidence proves the applicant did not engage in the criminal conduct for which he was convicted. N.D.C.C. § 29-32.1-01(3)(a)(1).
To obtain post-conviction relief on the basis of newly discovered evidence, the applicant must show (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

Booth v. State 2017 ND 97
Docket No.: 20160200
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: To establish prejudice under Strickland in a plea bargain situation, the petitioner must allege facts that, if proven, would support a conclusion that rejection of the plea bargain would have been rational because valid defenses existed, a suppression motion could have undermined the prosecution's case, or there was a realistic potential for a lower sentence.
Supreme Court does not consider arguments first raised during oral argument.

Holm v. Holm 2017 ND 96
Docket No.: 20160299
Filing Date: 4/25/2017
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: The written description of stock dividends in an employment agreement is not necessarily determinative of their nature, but the underlying purpose of the dividends is the primary consideration in marital property cases.
The value given to marital property by the district court depends on the evidence presented by the parties.
Courts in divorce cases should try to disentangle the parties' financial affairs to reduce further conflict, litigation, and rancor between them.

State v. Brewer 2017 ND 95
Docket No.: 20160241
Filing Date: 4/25/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: When a party objects to the State's admission of evidence with a pretrial motion in limine, the party must renew their objection at trial in order to give the district court an opportunity to rule on the issue in the trial context. A party's failure to renew their objection at trial acts as a waiver of the claim of error.

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).