Opinions

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).

State v. Nur 2017 ND 43
Docket No.: 20160257
Filing Date: 3/7/2017
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court's judgment following a jury finding the defendant guilty of burglary is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Romanick, et al. 2017 ND 42
Docket No.: 20160455
Filing Date: 3/3/2017
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Crothers, Daniel John

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.
A criminal complaint may be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
A date is an element of a criminal offense only if there would be no crime if the conduct occurred on the date alleged in the complaint.

State v. Mindt 2017 ND 41
Docket No.: 20160288
Filing Date: 3/1/2017
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A district court's order deferring imposition of sentence and an order denying motion for a new trial summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kovalevich v. State (Consolidated w/20160325) 2017 ND 40
Docket No.: 20160194
Filing Date: 3/1/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeals from denials of motions for new trial and an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of D.V.A.(Confidential-Cross-ref.w/20080319,20100091,20110358,20140384) 2017 ND 39
Docket No.: 20160315
Filing Date: 3/1/2017
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Wheeler v. Schmalenberger, et al. 2017 ND 38
Docket No.: 20160361
Filing Date: 3/1/2017
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Snyder v. Director, N.D. Dep't of Transportation 2017 ND 37
Docket No.: 20160321
Filing Date: 3/1/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Appeal from judgment reversing Department of Transportation decision suspending driving privileges is summarily reversed under N.D.R.App.P. 35.1(b) and Beylund v. Levi, 2017 ND 30.

Hofland v. Hofland 2017 ND 36
Docket No.: 20160178
Filing Date: 3/1/2017
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court's order awarding primary residential responsibility to the father once the child starts school is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Estate of Harris (consolidated w/20160085) 2017 ND 35
Docket No.: 20160084
Filing Date: 2/28/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Highlight: A party moving to vacate a judgment entered consistent with the terms of stipulations must first prove that, under the law of contracts, there is justification for setting the contract aside.
The statutory presumption of undue influence under N.D.C.C. § 59-18-01.1 is rebutted, as a matter of law, when a beneficiary of a trust enters into stipulations with a trustee while represented by counsel, after stating he understands the terms of the stipulations on the record, and the district court enters judgment consistent with the stipulations.

Estate of Brakke 2017 ND 34
Docket No.: 20160045
Filing Date: 2/23/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A district court may consider a compromise agreement settling litigation challenging a settlor's capacity to create a trust under statutory provisions in the Uniform Probate Code.
A settlement agreement must be written, executed by all competent persons and parents or guardians acting for minor children having beneficial interests affected by the compromise, the court must find the litigation is in good faith and the effect of the agreement is just and reasonable.

GEM Razorback, LLC v. Zenergy, Inc. 2017 ND 33
Docket No.: 20160170
Filing Date: 2/21/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: Dismissal for lack of subject matter jurisdiction is appropriate if the plaintiff failed to exhaust administrative remedies.
The parol evidence rule applies only to parties to a contract, and the rule has no application to a third person who is not a party to the contract or who is not attempting to enforce rights under the contract.

Golberg v. N.D. Dep't of Transportation 2017 ND 32
Docket No.: 20160218
Filing Date: 2/16/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Snider, et al. v. Dickinson Elks Building, LLC, et al. 2017 ND 31
Docket No.: 20160145
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A construction lien created as a matter of law ceases to exist for failure to comply with the limitations periods provided in the construction lien statutes.

Cody v. State 2017 ND 29
Docket No.: 20160138
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: When a defendant applies for post-conviction relief without requesting an evidentiary hearing and the State does not move for summary disposition in its response, the district court does not err by considering information outside the application in denying the defendant's application on the merits without holding an evidentiary hearing after the defendant received notice and an opportunity to present evidence.

Interest of Nelson 2017 ND 28
Docket No.: 20160113
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: For civil commitment as a sexually dangerous individual, substantive due process requires proof that the individual has serious difficulty controlling his behavior.
The district court must specifically state the facts on which it relied to determine that an individual has serious difficulty controlling his behavior.

Hoverson v. Hoverson (cross-ref.w/20120281 & 20140198) 2017 ND 27
Docket No.: 20160175
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished.
The question whether a judgment is ambiguous is a question of law. There is an ambiguity when language can be reasonably construed as having at least two alternative meanings.
A district court may clarify a divorce judgment if the judgment is vague, uncertain, or ambiguous.

Klein, et al. v. Sletto, et al. 2017 ND 26
Docket No.: 20160048
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A contract for the sale of property is invalid unless it is in writing.

Burk v. State of North Dakota, et al. 2017 ND 25
Docket No.: 20160108
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Tax Realted
Author: McEvers, Lisa K. Fair

Highlight: A settlement agreement is a contract and the parties' rights and responsibilities are limited by the terms of the agreement.
When the language of a contract is plain and unambiguous and the parties' intentions can be ascertained from the writing alone, extrinsic evidence is inadmissible to alter, vary, explain or change the document.

Rathbun v. Rathbun 2017 ND 24
Docket No.: 20160180
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court errs by failing to correctly apply the child support guidelines when imputing income to an obligor.

State v. Cox 2017 ND 23
Docket No.: 20160228
Filing Date: 2/16/2017
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Issues that are not raised before the district court will not be addressed on appeal.

Nusviken, et al. v. Johnston, et al. 2017 ND 22
Docket No.: 20160233
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: Under an attorney's lien, the attorney is the equitable assignee of money due from the judgment debtor to the judgment creditor.
An attorney practicing in a professional corporation is not personally liable for improper or unethical actions toward parties who are not clients.

Tillich, et al. v. Bruce, et al. 2017 ND 21
Docket No.: 20160094
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: When a party requests attorney fees under N.D.C.C. § 28-26-01(2), the district court must first determine whether a claim is frivolous. If the court determines the claim is frivolous, the court must award reasonable attorney fees to the prevailing party.

Beckstrand v. Beckstrand, et al. (consolidated w/20160106) 2017 ND 20
Docket No.: 20160105
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Cancellation of a contract for deed by action is an action in equity, and the district court must base its decision on equitable principles.
In an equitable action, a court of equity has the power to adjust the rights of the parties with regard to interest, rents, and profits and make complete adjudication of all matters involved in the case.
A district court's findings of fact must be adequate to understand and explain the basis for its decision.

Krenz, et al. v. XTO Energy, Inc. (cross-reference w/20110147) 2017 ND 19
Docket No.: 20160096
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: The unauthorized use of land to develop mineral interests is a trespass.
A party may waive the tort for trespass and recover damages for unjust enrichment under a contract implied in law.
A mineral lessee generally has an implied right to use as much of the lease surface as reasonably necessary to develop minerals, and absent lease provisions to the contrary, production or operations on a part of land included within a lease will extend the lease beyond its primary term as to all land subject to the lease.

J B Construction, Inc. v. Job Service 2017 ND 18
Docket No.: 20160270
Filing Date: 2/16/2017
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: The exemption of certain officers from "employment" under the unemployment compensation law is granted to an officer as an individual, not to the officer's position.
Under the unemployment compensation law, if an exempt officer transfers his interest and position in a corporation to another individual, the individual must apply for his own exemption.

Glass v. Glass 2017 ND 17
Docket No.: 20160112
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Before N.D.C.C. § 14-05-24.1 was amended effective August 1, 2015, remarriage created a prima facie case to terminate permanent spousal support unless extraordinary circumstances existed to justify its continuance. The decision as to whether spousal support terminated, and if so, when, lied within the district court's discretion.

Sadek v. N.D. Dep't of Transportation 2017 ND 16
Docket No.: 20160328
Filing Date: 2/16/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Appeal from judgment reversing Department of Transportation decision revoking driving privileges is summarily reversed under Dettler v. Sprynczynatyk, 2004 ND 54, 675 N.W.2d 799, and N.D.R.App.P. 35.1(b).

State v. Gibson 2017 ND 15
Docket No.: 20160201
Filing Date: 2/16/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: Under N.D.C.C. § 29-19-02, a defendant "elects" his right to a speedy trial when the district court and the prosecutor receive the party's request.

Norberg, et al. v. Norberg 2017 ND 14
Docket No.: 20160098
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: Collateral estoppel means issue preclusion, and issues can be either legal or factual.
The Sixth Amendment's right to jury trial does not prohibit applying collateral estoppel when the earlier issue was decided without a jury.

Matter of C.D.G.E. (Confidential) 2017 ND 13
Docket No.: 20160150
Filing Date: 2/16/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: A district court does not abuse its discretion in denying a parental-termination petition unless the petitioner establishes that denying the petition would seriously affect the child's welfare.

Chatman v. State 2017 ND 12
Docket No.: 20160295
Filing Date: 2/16/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from summary denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Shelton v. Shelton 2017 ND 11
Docket No.: 20160126
Filing Date: 2/6/2017
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court's award of joint residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Louser, et al. 2017 ND 10
Docket No.: 20170023
Filing Date: 1/27/2017
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Per Curiam

Highlight: Supervision granted.

Ashley v. State 2017 ND 9
Docket No.: 20160238
Filing Date: 1/26/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's denial of a motion for post-conviction relief is summarily affirmed under N.D.R.App. P. 35.1 (a)(1).

Interest of Carter (cross-reference w/20100180) 2017 ND 8
Docket No.: 20160236
Filing Date: 1/26/2017
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Moline v. Workforce Safety and Insurance, et al. 2017 ND 7
Docket No.: 20160275
Filing Date: 1/26/2017
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative law judge's order, which affirmed WSI's order terminating a claimant's disability benefits, is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Harrison 2017 ND 6
Docket No.: 20160195
Filing Date: 1/26/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction on four counts of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4), and (7).

State v. Catch the Bear 2017 ND 5
Docket No.: 20160182
Filing Date: 1/26/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Lowe v. WSI 2017 ND 4
Docket No.: 20160287
Filing Date: 1/26/2017
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment dismissing an appeal from an administrative order is summarily affirmed under N.D.R.App.P. 35.1(a)(7).