Opinions

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.

City of Grand Forks v. Gale 2016 ND 58
Docket No.: 20150204
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Delay attributable to an accused's purposeful evasion of prosecution may not result in a speedy trial violation, but the accused have no duty to bring themselves to trial.
The government risks dismissal on speedy trial grounds when it is not diligent in its prosecution.
For speedy trial analysis, whether prejudice caused by pretrial delay must be actual or may be presumed is dependent upon the government's diligence in prosecution.

Martire' v. Martire' (cross ref 20110253, 20110197) 2016 ND 57
Docket No.: 20150139
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Even when it is undisputed an obligor's net monthly income exceeds the income maximum under the Child Support Guidelines, the district court must determine the obligor's net income before it determines the appropriate upward deviation from the presumptive guideline amount.
Mechanical use of multipliers in determining an upward deviation from the Child Support Guidelines is discouraged; there must be a balancing of the appropriate needs of the child against an amount of child support that would maintain the heightened level of support owed to a child given the high income of the obligor parent.
Imputing income is appropriate when an individual is underemployed.

Woody v. Pembina County Annual Fair and Exhibition Association 2016 ND 56
Docket No.: 20150236
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Owner of land inviting the public to use its property for recreational purposes without charge is protected from liability under N.D.C.C. ch. 53-08.
Recreational use immunity applies when a person is injured after entering a public fairground to watch a free fireworks display.

State v. Quantz 2016 ND 55
Docket No.: 20150208
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Convictions for disorderly conduct and indecent exposure are summarily affirmed under N.D.R.App.P. 35.1 (a)(3).

Eagleman v. State 2016 ND 54
Docket No.: 20150145
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Applicants for post-conviction relief are not entitled to relief when their claims have been rejected in prior proceedings.
The statute of limitations for post-conviction relief regarding a revocation of probation runs from the date the applicant foregoes or exhausts the appeals process relating to the revocation of probation, not the date of the original judgment of conviction.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.

State v. Mann 2016 ND 53
Docket No.: 20150069
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald W.

Highlight: North Dakota's criminal refusal statute is constitutional under the Fourth Amendment and North Dakota Constitution article I, section 8.
The authority to take judicial notice of prior offenses under N.D.C.C. 39-08-01(3) is limited to correcting errors or omissions in charging documents.

Matuska v. State 2016 ND 52
Docket No.: 20150235
Filing Date: 3/15/2016
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)(4).

State v. Odermann 2016 ND 51
Docket No.: 20150216
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A criminal judgment for burglary and theft of property is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of C.S. (Confidential) 2016 ND 50
Docket No.: 20160009
Filing Date: 3/15/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Erickstad v. State 2016 ND 49
Docket No.: 20150303
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (7).

Vogt v. State 2016 ND 48
Docket No.: 20150279
Filing Date: 3/3/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

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

Aker v. Neiber 2016 ND 47
Docket No.: 20150229
Filing Date: 3/3/2016
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order denying motion to amend parenting time is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Rath v. Rath (cross ref. 20130025, 184 & 252; 20140012 & 291) 2016 ND 46
Docket No.: 20150088
Filing Date: 2/24/2016
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's decision on whether a contempt has been committed and remedial sanctions are warranted lies within its sound discretion and will not be overturned on appeal unless there is a clear abuse of discretion.
The district court has broad discretion in controlling the time allotted for a hearing.
A district court has discretion to decide whether a claim is frivolous and the amount and reasonableness of an award of attorney fees, but when the court decides a claim is frivolous, the court must award attorney fees.
The district court's decision on a recusal motion is reviewed for an abuse of discretion.

Kittleson, et al. v. Grynberg Petroleum Company, et al. 2016 ND 44
Docket No.: 20150075
Filing Date: 2/22/2016
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: If a specific provision and a general provision in a contract conflict, the specific ordinarily prevails over the general.
A specific statute of limitation prevails over a general statute of limitation, and if there is a question, the longer statute of limitation generally applies.

Nodak Mutual Ins. Co. v. Koller, et al. 2016 ND 43
Docket No.: 20150079
Filing Date: 2/22/2016
Case Type: Appeal - Civil - Insurance
Author: McEvers, Lisa K. Fair

Highlight: Whether an individual is a resident of a named insured's household for the purposes of an automobile insurance policy is a question of fact and technical notions of legal residence are not controlling.
The nonexclusive factors for determining whether an individual is a resident of a named insured's household include the intent of the parties, the formality of the relationship, the permanence of that residence, the existence of another place of lodging for that person, and the age and self-sufficiency of that person.
A district court need not specifically decide each factor so long as it considers the totality of the circumstances in finding whether an individual is a resident of a named insured's household.