Opinions

Constellation Development, LLC v. Western Trust Co., et al. 2016 ND 141
Docket No.: 20150319
Filing Date: 7/7/2016
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The substance of an agreement controls, not the titles or labels attached by the parties.
While a right of first refusal to purchase real estate is triggered when the owner receives an offer from a third party and decides to sell, a right of first offer is triggered when the owner decides to offer the property for sale without first receiving an offer from a third party.
A contract required by the statute of frauds to be in writing cannot be modified by a subsequent unexecuted oral agreement.

Limberg v. Sanford Medical Center Fargo, et al. 2016 ND 140
Docket No.: 20150348
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: The purpose of a motion for dismissal for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the statement of the claim presented in the complaint.
A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
When the pricing term in a contract is fixed and can be determined from the language of the contract, the contract is not silent or open concerning price and there is no need to judicially impute a fair and reasonable price term.

Viscito, et al. v. Christianson, et al. (cross-ref. w/20140252) 2016 ND 139
Docket No.: 20150285
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: The "law of the case" doctrine is the principle that when an appellate court has passed on a legal question and remanded the case to the court below for further proceedings, the legal question decided by the appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain the same.
The mandate rule requires the district court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry out the appellate court's mandate.

Bartholomay v. Plains Grain & Agronomy, LLC 2016 ND 138
Docket No.: 20160030
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Generally, when an employer complies with the workers compensation statutes, the employee's exclusive remedy against the employer is limited to recovery under the workers compensation statutes.
The sole exception to employer immunity from civil liability under the workers compensation laws requires both that the employer engage in an "intentional act" and that the employer have a "conscious purpose of inflicting the injury."

Riemers v. Hill, et al. (cross-ref 20130407) 2016 ND 137
Docket No.: 20150276
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Landlord/Tenant
Author: VandeWalle, Gerald

Highlight: A court has inherent power to sanction a litigant for misconduct, and sanctions may include award of attorney fees.
An abuse of process occurs when a person misuses a legal process against another primarily to accomplish a purpose for which the process was not designed.

Interest of G.A.S. (CONFIDENTIAL) 2016 ND 136
Docket No.: 20160212
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: A request to treat a patient with prescribed medication requires two signatures, one from the patient's treating psychiatrist and one from another medical professional not involved in the patient's current diagnosis or treatment.
A medical professional certifying a request to treat with medication is not prohibited from later becoming involved in the patient's treatment.

State v. Putney (cross-reference w/20150237) 2016 ND 135
Docket No.: 20160033
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: A restitution order is reviewed under the abuse of discretion standard.

Zajac v. Traill County Water Resource District 2016 ND 134
Docket No.: 20160028
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: An appeal from a decision by a local governing body must be filed with the district court within thirty days of the decision.

State v. Baker 2016 ND 133
Docket No.: 20150307
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: An indigent defendant facing a felony charge is entitled to have counsel provided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.
Before defendants will be allowed to represent themselves in legal proceedings, they must voluntarily, knowingly, and intelligently relinquish the benefits of counsel.

State v. Clayton 2016 ND 131
Docket No.: 20150357
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: Restitution is limited to those damages directly related to, and resulting from, the defendant's criminal action.
Whether there is a direct relationship between a defendant's criminal action and an injury is a question of fact subject to the clearly erroneous standard of review.
A district court is not required to accept uncontradicted testimony as fact.

State v. Carlson 2016 ND 130
Docket No.: 20150338
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A charging information may be amended at any time before the verdict or finding unless an additional or different offense is charged or a substantial right of the defendant is prejudiced.
A curative instruction is generally sufficient to remove prejudice caused by improper evidence or testimony.
Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial and is harmless error.

Ratliff v. State 2016 ND 129
Docket No.: 20150352
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The district court may take judicial notice of previously filed orders when sentencing a defendant.

State v. Beaulieu 2016 ND 128
Docket No.: 20150345
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A successor judge is not required to certify familiarity with the trial record before deciding a post-trial motion.
New evidence only impeaching witness testimony is generally insufficient to warrant a new trial.
Issues not raised at the district court, even of constitutional magnitude, will generally not be considered unless rising to the level of obvious error.

Robinson v. State 2016 ND 127
Docket No.: 20160026
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Lohmann v. N.D. Dep't of Transportation 2016 ND 126
Docket No.: 20160027
Filing Date: 6/30/2016
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)(5) and (7).

State v. Phelps 2016 ND 125
Docket No.: 20160004
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Order suppressing evidence obtained from traffic stop is summarily reversed under N.D.R.App.P. 35.1(b).

Interest of M.S. (cross-reference w/20140304 & 20140435) 2016 ND 124
Docket No.: 20160230
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: A district court order for involuntary treatment with medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matthews v. State 2016 ND 123
Docket No.: 20160037
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

McCluskey v. McCluskey 2016 ND 122
Docket No.: 20150268
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Halo Holdings Group, LLLP v. Bird Industries, Inc. 2016 ND 121
Docket No.: 20160077
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Order dismissing intervener complaint summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Johnson v. State 2016 ND 120
Docket No.: 20160031
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Beeter v. State 2016 ND 119
Docket No.: 20160041
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Comes v. State 2016 ND 118
Docket No.: 20160056
Filing Date: 6/30/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's order dismissing an application for post-conviction relief and orders denying motions for reconsideration are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Hirschkorn 2016 ND 117
Docket No.: 20160003
Filing Date: 6/30/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Drivers must signal prior to turning out from an alley.
An officer's objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop.

Jangula v. N.D. Dep't of Transportation 2016 ND 116
Docket No.: 20150286
Filing Date: 6/30/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: A certified copy of an analytical report of a blood analysis issued by the director of the state crime laboratory or the director's designee must be accepted as prima facie evidence of the results of a chemical analysis.

Disciplinary Board v. Ward 2016 ND 115
Docket No.: 20150354
Filing Date: 6/10/2016
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An isolated instance of ordinary negligence does not constitute lack of competence or diligence under the rules of professional conduct.

PHI Financial Services, Inc. v. Johnston Law Office, P.C., et al. (20150008) 2016 ND 114
Docket No.: 20150301
Filing Date: 6/10/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The time to appeal an interlocutory order runs from service of notice of the appealable order or judgment, not from service of notice of the interlocutory order.
A judgment creditor may serve no more than 50 post-judgment interrogatories regardless of pre-judgment interrogatories.
A party's disagreement with how a court interpreted the law does not provide license to disobey a court order without consequence, and a party's failure to abide by an order is punishable as a contempt of court.

Disciplinary Board v. Ward 2016 ND 113
Docket No.: 20150337
Filing Date: 6/9/2016
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court defers to the Disciplinary Board's findings on the credibility of a witness.
A lawyer who has withdrawn or has been discharged by the client has a duty to surrender promptly all papers and other property to which the client is entitled.
Injury or potential injury warranting suspension may include a client suffering monetary losses or incurring additional costs when forced to hire another lawyer to handle the matter.

Norman v. State 2016 ND 112
Docket No.: 20150298
Filing Date: 6/8/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (6), and (7).

State v. Musselman (cross-reference w/20150071) 2016 ND 111
Docket No.: 20150250
Filing Date: 6/7/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: An investigative stop must be justified by the officer's reasonable and articulable suspicion that a law has been or is being violated.
An officer can use information received from other persons along with his or her personal observations to form the factual basis needed for a legal investigatory stop.

Disciplinary Board v. Enget 2016 ND 110
Docket No.: 20160139
Filing Date: 6/6/2016
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Holkesvig v. Maring 2016 ND 109
Docket No.: 20150247
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing complaint and order denying motion for relief are summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6), and (7).

Holkesvig v. Edison, et al. 2016 ND 108
Docket No.: 20150266
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing complaint, order denying motion for relief from judgment, and orders denying post-appeal motions are summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6), and (7).

Holkesvig v. VandeWalle, et al. 2016 ND 107
Docket No.: 20150246
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Neither the North Dakota Constitution nor the North Dakota Century Code provides the Supreme Court with the power to divest district courts of subject-matter jurisdiction.
The filing of a petition for rehearing stays the mandate of a Supreme Court judgement until disposition of the petition.
The Supreme Court will not set aside a district court's decision merely because the court applied an incorrect reason, if the result would be the same under the correct law and reasoning.
A petition for rehearing is the proper means to afford the Supreme Court an opportunity to correct factual misstatements in the original opinion.

Jury v. Barnes County Municipal Airport Authority 2016 ND 106
Docket No.: 20150374
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: McEvers, Lisa K. Fair

Highlight: A person acting as her own attorney is equally bound by rules of procedure, even if she lacks understanding of those rules or the correct procedures.
A district court is not required to independently give notice of a hearing when notice has been given by one of the parties.
A party must timely request oral argument on a motion; otherwise, a party waives its right to a hearing.

Rath v. Rath (cross ref w/ 20130025,20130252, 20130327, 20140012, 20140291, cont 2016 ND 105
Docket No.: 20150336
Filing Date: 6/2/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a divorce judgment do not necessitate a finding of contempt.
Adverse or erroneous rulings alone do not demonstrate bias. For recusal to be warranted, a judge must be partial, or there must be some external influence that creates an appearance of impropriety.

Vogel v. Marathon Oil Corporation 2016 ND 104
Docket No.: 20150154
Filing Date: 5/31/2016
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: A royalty owner does not have a private right of action for damages for violations of the statute limiting flaring of gas from an oil well.
The Environmental Law Enforcement Act provides a cumulative remedy for a royalty owner seeking the payment of royalties for gas flaring in violations, but the royalty owner must exhaust administrative remedies before pursuing a claim in court.
There is no common law in any case in which the law is declared by statute.

Holverson v. Lundberg (cross reference 20140347) 2016 ND 103
Docket No.: 20150313
Filing Date: 5/31/2016
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Allegations of fraud ordinarily involve factual questions that are inappropriate for summary judgment.
A person engaging in transactions involving title to real property is charged with constructive notice of properly recorded instruments affecting title to the property.
Claims for fraud must be commenced within six years of discovery of facts constituting the fraud, and the claim accrues when the party has constructive notice of facts placing a reasonable person on notice of a claim.

Cheetah Properties 1, LLC v. Panther Pressure Testers, Inc. 2016 ND 102
Docket No.: 20150198
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Landlord/Tenant
Author: McEvers, Lisa K. Fair

Highlight: A tenant's holding over, upon the expiration of a lease for real property, is willful if the tenant holds over intentionally and not inadvertently.
After a summary proceeding, if a district court invites the parties to submit post-hearing briefing and neither party objects, the district court should resolve the issues raised, providing reasoned legal analysis.

Thompson v. State 2016 ND 101
Docket No.: 20150157
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To demonstrate prejudice resulting from counsel's deficient performance in the context of a guilty plea, a defendant must establish a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Plains Marketing, LP, et al. v. Mountrail County Board of County Commissioners 2016 ND 100
Docket No.: 20150346
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Tax Realted
Author: Kapsner, Carol

Highlight: A county auditor may not use the omitted property statutes to revalue previously assessed property.

Grzeskowiak v. State 2016 ND 99
Docket No.: 20150325
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An appellant's failure to comply with the rules of appellate procedure for briefs precludes meaningful review of the appellant's alleged errors and warrants affirmance of district court decision.

State v. Van Zomeren 2016 ND 98
Docket No.: 20150267
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Expert testimony is not required to show fair administration of a blood test if the directions for blood collection have been scrupulously followed.

State v. Wilkie (consolidated w/ 20150215) 2016 ND 97
Docket No.: 20150214
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A probationer, when arrested and charged with an additional crime, may be required to comply with conditions of probation as a condition of a bond order related to the subsequent charge.
Bail may be forfeited if a condition of the bond order is breached.

Guardianship/Conservatorship of R.G. 2016 ND 96
Docket No.: 20150184
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Guardian/Conservator
Author: Sandstrom, Dale

Highlight: An order appointing a conservator and guardian is appealable without a certification under N.D.R.Civ.P. 54(a).
For good cause, a court may pass over a person named in a most recent durable power of attorney and appoint another entity or individual as a conservator and guardian.

26th Street Hospitality v. Real Builders, et al. 2016 ND 95
Docket No.: 20150259
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Under the Federal Arbitration Act, the court is required to determine the validity of an arbitration agreement before arbitration may be ordered, but only if a party specifically challenges the arbitration provision.
Arbitrability is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.
A nonsignatory to an arbitration agreement may compel arbitration if a signatory raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more signatories to the contract.

City of Bismarck v. Sokalski 2016 ND 94
Docket No.: 20150151
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A district court's decision on a motion for a new trial is reviewed for an abuse of discretion.
A prosecutor's knowing use of perjured testimony violates the due process defendant clause. To establish this kind of prosecutorial misconduct claim, a defendant must prove: (1) the prosecution either introduced or failed to correct false testimony; (2) the false or perjured testimony was given at trial; (3) the prosecution knew the perjured testimony was false; (4) the testimony was "material"; and (5) the defendant has not waived the claim by failing to raise it at trial if he had reason to know of the falsity of the subject testimony.

State v. Rogahn 2016 ND 93
Docket No.: 20150297
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause depends on the combined effect of all facts and circumstances included in the affidavit of probable cause, not the isolated effect of individual facts or circumstances.
The realities of a case may warrant executing a daytime search warrant within minutes of 10 p.m.
To warrant a Franks hearing, a defendant must make a substantial preliminary showing of false or misleading statements within the affidavit of probable cause.

State v. Timm 2016 ND 92
Docket No.: 20150332
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

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

Interest of N.A. (Confidential) 2016 ND 91
Docket No.: 20160099
Filing Date: 5/26/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: In termination of parental rights cases, a guardian ad litem's failure to interview an available parent is error.
A guardian ad litem's failure to interview an available parent is not a constitutional violation where the parent testifies and is represented by counsel in a parental rights termination proceeding.