Opinions

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.

State, et al. v. Andres 2016 ND 90
Docket No.: 20150328
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Paternity
Author: Crothers, Daniel John

Highlight: When a district court grants primary residential responsibility, it must calculate child support obligations for each parent assuming the other parent has primary residential responsibility for the child.
A district court's parenting must include the child's legal residence for school purposes and transportation and exchange information or provide an explanation for the omission.

Interest of Thill (cross-reference w/ 20130291 & 20150147) 2016 ND 89
Docket No.: 20160047
Filing Date: 5/26/2016
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).

State v. Trower 2016 ND 88
Docket No.: 20150306
Filing Date: 5/26/2016
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Possession of stolen property and fleeing or attempting to elude a police officer convictions summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Schmuck v. Schmuck 2016 ND 87
Docket No.: 20150210
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: In determining whether to award spousal support, a party's need for support is not dispositive, and the district court must also consider whether the other party has an ability to pay.
A district court need not retain jurisdiction over spousal support when there is no evidence a party sacrificed a career that would have led to greater future income or when a party's education was interrupted or terminated to accommodate the other's career track.

Kapple v. N.D. Dep't of Transportation 2016 ND 86
Docket No.: 20160029
Filing Date: 5/26/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment reversing an administrative hearing officer's decision revoking driving privileges is summarily reversed under N.D.R.App.P. 35.1(b).

The Next Step v. Redmon 2016 ND 85
Docket No.: 20150333
Filing Date: 5/26/2016
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Unless an exception applies, an unincorporated associations are incapable of holding title to real property because they are not legal entities.

Valentina Williston, LLC v. Gadeco, LLC 2016 ND 84
Docket No.: 20150180
Filing Date: 4/21/2016
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: When an oil and gas lease does not provide how the parties may modify its terms, the parties may alter the lease by a contract in writing, or by an executed oral agreement, and not otherwise.
For the doctrine of promissory estoppel to apply, a party must establish a promise which the promisor should reasonably expect will cause the promisee to change his position, a substantial change of the promisee's position through action or forbearance, justifiable reliance on the promise, and injustice which can be avoided only by enforcing the promise.
The doctrine of promissory estoppel is inapplicable when there is no promise or agreement between the parties.
The promise must be clear, definite, and unambiguous as to essential terms before the doctrine of promissory estoppel may be invoked to enforce an agreement.
A promise is too indefinite for reasonable enforcement when a party retains the right to determine the extent of his performance.

Rath v. Rath (cross ref w/ 20130025, 20130184, 20130327, 20140012, 20140291, 2016 ND 83
Docket No.: 20160006
Filing Date: 4/18/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a divorce judgment do not necessitate a finding of contempt.
A district court may dismiss a meritless motion to initiate contempt proceedings on its own initiative.

Gray v. Berg 2016 ND 82
Docket No.: 20150305
Filing Date: 4/18/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A party claiming bias must present more than general allegations amounting to nothing more than dissatisfaction with unfavorable court rulings.
A party commits civil trespass by entering land in possession of another, or causing a third party or thing to do so, without consent or privilege.
A district court concluding a claim is frivolous does not make an appeal on the claim frivolous.

Langwald v. Langwald 2016 ND 81
Docket No.: 20150222
Filing Date: 4/15/2016
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In a divorce proceeding, a district court's valuation and distribution of marital property will not be reversed on appeal unless clearly erroneous.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure.

Schmidt v. Levi 2016 ND 80
Docket No.: 20150344
Filing Date: 4/12/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: North Dakota's implied consent and criminal refusal laws are constitutional.
An officer does not need to inform an arrestee that no test will be given upon refusal.

City of Fargo v. Rakowski 2016 ND 79
Docket No.: 20150349
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: A city has discretion to decide how to implement laws that promote public safety.
State law permits cities to levy and collect a fee for re-inspection of rental property.
An ordinance is not made a bill of attainder by the fact the activity it regulates is described with such particularity that few fall within its purview.

Everett v. State 2016 ND 78
Docket No.: 20150269
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final, unless an exception applies.
Newly discovered evidence that would likely result in an acquittal is an exception to the two-year time limit to apply for post-conviction relief.
The district court has the inherent authority to stem the abuses of the judicial process when a litigant has engaged in a clear pattern of frivolous, repetitive litigation.

Gillmore v. Levi 2016 ND 77
Docket No.: 20150321
Filing Date: 4/12/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Whether a driver has voluntarily consented to field sobriety testing is not an issue for consideration in an administrative proceeding to suspend driving privileges.
The department of transportation's report and notice form is admissible as prima facie evidence of its contents once it is forwarded to the director of the department.
If a party seeks to prove an issue that is beyond the knowledge of the factfinder, that party must present expert testimony.

Larson v. Larson 2016 ND 76
Docket No.: 20150178
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court may modify primary residential responsibility if it finds: (1) a material change in circumstances has occurred; and (2) a modification is necessary to serve the child's best interests.
A district court may consider a parent's past behavior in ruling on a motion to relocate.

State v. Peltier 2016 ND 75
Docket No.: 20150274
Filing Date: 4/12/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Admitting evidence of sexual history for impeachment for a prior inconsistent statement requires an inconsistent statement.

Lumley, et al. v. Kapusta 2016 ND 74
Docket No.: 20150228
Filing Date: 4/12/2016
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The existence of an oral contract and its terms are questions of fact that will not be overturned on appeal unless they are clearly erroneous.
The purchase price is an essential term that must be identified and agreed upon to form a valid contract for the sale of real property.

Capital Electric Cooperative, Inc. v. N.D. Public Service Commission, et al. 2016 ND 73
Docket No.: 20150227
Filing Date: 3/28/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: Appellate review of Commission findings of fact is limited to whether a reasoning mind reasonably could have determined that the factual conclusions reached were proven by the weight of the evidence from the entire record.
Customer preference is a proper consideration for the Commission in deciding whether a certificate of public convenience and necessity should be issued.
Which electric supplier's facilities are actually duplicative or wasteful is a question of fact for the Commission.

State v. O'Connor 2016 ND 72
Docket No.: 20150299
Filing Date: 3/28/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: If a law enforcement officer fails to provide a defendant a complete chemical test implied consent advisory after the defendant's arrest and before his submission to the chemical test, the result is inadmissible in any criminal or administrative proceeding under the implied consent laws.

Rath v. Rath 2016 ND 71
Docket No.: 20150133
Filing Date: 3/28/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Due process dictates a decision to deviate from standard trial practices requires more than conclusory justifications.
A respondent's claim some or all of the conduct allegedly constituting disorderly conduct was constitutionally protected requires the court to determine the validity of the constitutional argument before granting a disorderly conduct restraining order.

Welch Construction & Excavating, LLC v. Duong 2016 ND 70
Docket No.: 20150197
Filing Date: 3/18/2016
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A party claiming breach of contract must prove the existence of a contract, a breach of the contract, and damages flowing from the breach.
Whether a party has breached a contract is a finding of fact subject to the clearly erroneous standard of review.

Schurmann v. Schurmann 2016 ND 69
Docket No.: 20150206
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To modify parenting time, the moving party must demonstrate a material change in circumstances has occurred since entry of the previous parenting time order and the modification is in the best interests of the child.
A restriction on parenting time must be supported by a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.
If an obligor fails to furnish reliable information concerning the obligor's gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed.

State v. James 2016 ND 68
Docket No.: 20150111
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

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.

Matter of K.J.C. (Confidential) 2016 ND 67
Docket No.: 20150373
Filing Date: 3/15/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: In termination of parental rights proceedings, the custodial parent's refusal to cooperate with the noncustodial parent's attempts to maintain a relationship with the child is not insignificant in deciding whether the noncustodial parent abandoned the child, but the noncustodial parent must take affirmative steps to perform parental duties and foster a relationship with the child.
Parents have a duty to support their children.

4APM, LLP v. TCI Insurance Agency, Inc. 2016 ND 66
Docket No.: 20150243
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: Generally, an insurance agent's duty of care to an insured requires the agent to act in good faith and follow instructions.
An insurance agent's duty of care may be enhanced if there is a special relationship between the agent and the insured.

State v. Costa 2016 ND 65
Docket No.: 20150248
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Counsel may not comment on facts not in evidence during closing argument, and a prosecutor may not vouch for evidence during closing argument.

Cudmore v. N.D. Dep't of Transportation 2016 ND 64
Docket No.: 20150282
Filing Date: 3/15/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Before deciding whether to submit to chemical testing, an individual has a qualified statutory right to consult with an attorney.
If a DUI arrestee who has been asked to take a chemical test makes any mention of a need for an attorney, the officer must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity for the arrestee to do so.
If an arrestee makes only a passing reference to an attorney rather than mentioning a need for an attorney, an arrestee is not denied his limited statutory right to counsel prior to chemical testing.

State v. Keller 2016 ND 63
Docket No.: 20150132
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion by refusing to give jury instructions that inadequately and inaccurately reflect the law.

Curtiss v. State (cross-ref. w/20150007) 2016 ND 62
Docket No.: 20150284
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The applicant in a post-conviction relief case has the burden of establishing grounds for relief.
When deciding an application for post-conviction relief, the district court is not required to review the criminal trial transcript when the transcript has not been filed with the court.
Harmless error is error that does not affect the parties' substantial rights.

Degnan v. Degnan 2016 ND 61
Docket No.: 20150244
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion in granting spousal support and attorney's fee awards in amounts less than the requesting spouse's alleged need.
A district court does not abuse its discretion by denying a motion for a new trial when the facts and circumstances of the case do not display an unreasonable, arbitrary or unconscionable attitude.

Werven v. Werven 2016 ND 60
Docket No.: 20150201
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Modification of spousal support is not warranted when the change in a party's financial circumstances is self-induced.
An inability to comply with a court order is a defense to contempt, but the alleged contemnor has the burden to establish the defense and show an inability to comply.

State v. Putney 2016 ND 59
Docket No.: 20150237
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
A district court must deny a motion for judgment of acquittal if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.
Courts are free to judicially notice municipal ordinances, and whether to take judicial notice of a municipal ordinance is within the district court's discretion.