Opinions

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.

Williston Education Association v. Williston Public School Dist. No. 1 2016 ND 42
Docket No.: 20150256
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Agreements between teacher associations and school boards must be read in light of the comprehensive statutory framework governing those relations.
When reasonable differences of opinion exist as to the inferences to be drawn from undisputed facts, summary judgment is improper.

Annexation of a Part of Lewis & Clark Public School District 2016 ND 41
Docket No.: 20150182
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: A school district may be adversely affected by an annexation decision that causes the district to lose land or gain unwanted land.
The State Board of Public School Education may consider the amount of land involved in an annexation petition.
The catch-all statutory provision allowing the State Board to consider "[a]ll other relevant factors" in an annexation case is not unconstitutionally vague or an unconstitutional delegation of legislative authority.

Brouillet v. Brouillet 2016 ND 40
Docket No.: 20150097
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous or it is not sufficiently specific to show the factual basis for the decision.
Courts should be cautious about dividing custody of children.
When determining child support, unless the district court makes a specific finding that the income reflected on a prior year's tax return is not a reliable indicator of future income, the court must not extrapolate an obligor's income.
A touchstone for an effective appeal of an issue requires the issue to be properly raised in the district court so that court can intelligently rule on the issue.

State v. Reddig 2016 ND 39
Docket No.: 20150224
Filing Date: 2/18/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A defendant may not be convicted upon the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime.
If the prosecution intends to introduce an analytical report in a criminal trial, it must notify the defendant and serve a copy of the report on the defendant or the defendant's attorney at least 60 days prior to trial, but the report need not be certified at the time it is served on the defendant.

Sand v. Job Service, et al. 2016 ND 38
Docket No.: 20150238
Filing Date: 2/18/2016
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: N.D.R.Civ.P. 59 and 60 are not applicable to an administrative agency appeal to a district court.
An appeal is a creature of statute and not a matter of right, and no right to appeal exists unless authorized by statute.

Desert Partners IV, L.P., et al. v. Benson, et al. (cross-reference w/20140066) 2016 ND 37
Docket No.: 20150105
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: An unrecorded instrument is valid between the parties to the instrument and those with notice.
An unrecorded conveyance of land is void against any subsequent purchaser in good faith and for valuable consideration.
The recording of any instrument affecting title to real property is constructive notice to all subsequent purchasers or encumbrancers of the real property.

Dieterle v. Dieterle n/k/a Hansen (cross-reference w/20120329 & 20150030) 2016 ND 36
Docket No.: 20150087
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An appellant may not collaterally attack an earlier unappealed decision.
Absent a stay, a person found in contempt must comply with a court order pending appeal.
Procedural due process generally entails notice and a meaningful opportunity for a hearing appropriate for the nature of the case.
The determination whether or not a contempt has been committed is within the district court's sound discretion.

State v. Goodale 2016 ND 35
Docket No.: 20150230
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When a default judgment is entered, the defendant may move for relief from the default judgment under N.D.R.Civ.P. 60(b).
When a party fails to move to set aside the default judgment, review on appeal is limited to irregularities of procedure or process that appear on the face of the judgment roll.

Haag v. Haag 2016 ND 34
Docket No.: 20150193
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A material change of circumstances is an important new fact not known at the time of the prior order establishing residential responsibility.
A party's conduct before a prior decision establishing residential responsibility may be relevant if the prior decision was based on the parties' stipulation and the court was not aware of the facts at the time of the stipulation.

Erickson v. Olsen, et al. (cross-reference w/ 20130217) 2016 ND 33
Docket No.: 20150153
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Under N.D.R.Civ.P. 60(a), a court may correct a clerical mistake or mistake arising from oversight or omission when one is found in a judgment, but may not make substantive changes in a judgment.

Estate of Vaage 2016 ND 32
Docket No.: 20150121
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Highlight: Evidence justifying reformation of a written instrument must be clear, specific, and convincing.
When considering whether to reform a written instrument, a district court should exercise caution and require a high degree of proof, especially when the original parties are deceased.

State v. McClary 2016 ND 31
Docket No.: 20150218
Filing Date: 2/18/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A motion to correct an illegal sentence brought under the Rules of Criminal Procedure or brought under the Uniform Postconviction Procedure Act should be treated as equivalent to a motion under both provisions.
Trial courts ordinarily should appoint counsel for most indigent applicants seeking postconviction relief for the first time, and only in exceptional situations should counsel not be appointed.
A district court may not delegate its sentencing authority to a probation officer or counselor.

Black Gold Oil Field Services, LLC v. City of Williston, et al. 2016 ND 30
Docket No.: 20150112
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Granting or denying a preliminary injunction is based on: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest.
An injunction cannot be granted to prevent a legislative act by a municipality.
A party seeking an injunction generally must show that no adequate remedy at law exists and that irreparable injury will result if relief is not granted.

Interest of Johnson (cross-reference w/ 20120364 & 20140366) 2016 ND 29
Docket No.: 20150217
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: A district court must find a person has serious difficulty controlling his or her behavior to continue that person's commitment as a sexually dangerous individual.

State v. Anderson 2016 ND 28
Docket No.: 20150015
Filing Date: 2/18/2016
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: The State cannot use a defendant's post-arrest silence as evidence of guilt, and the burden is on the State to prove that a comment on a defendant's post-arrest silence is harmless beyond a reasonable doubt.
The State's inquiry into the amount of time a defendant spent preparing trial testimony is a legitimate means of attacking the veracity of a defendant's testimony on cross-examination.
The attorney-client privilege is personal to the client and is waived if it is not asserted at trial.
A defendant's flight immediately after a crime has been committed or during a continuing chain of events after a crime has been committed, while alone is insufficient to establish guilt, may be considered by the jury as circumstantial evidence of a defendant's consciousness of guilt.

State v. Stensaker (consolidated w/ 20150165) 2016 ND 27
Docket No.: 20150164
Filing Date: 2/18/2016
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Murder conviction and two counts of possession of a firearm by a convicted felon summarily affirmed under N.D.R.App.P. 35.1(a)(3); case remanded to fix clerical error in judgment.

Interest of G.L.D. (CONFIDENTIAL)(cross-reference w/20100230,20120175,&2014 2016 ND 26
Docket No.: 20150245
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying request for discharge from commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of G.L.D. (CONFIDENTIAL)(cross-reference w/20100230,20120175,&20140034) 2016 ND 25
Docket No.: 20150226
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Interest of N.C. (CONFIDENTIAL) 2016 ND 24
Docket No.: 20150367
Filing Date: 2/18/2016
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) and (4).

Gomez v. State 2016 ND 23
Docket No.: 20150258
Filing Date: 2/18/2016
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)(7).

Benson v. State (cross-reference w/20130179) 2016 ND 22
Docket No.: 20150232
Filing Date: 2/18/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Vacancy in Judgeship No. 7, SEJD (see 20160011) 2016 ND 21
Docket No.: 20160001
Filing Date: 2/16/2016
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeships retained at Jamestown and Valley City.

PHI Financial Services, Inc. v. Johnston Law Office, P.C., et al. 2016 ND 20
Docket No.: 20150008
Filing Date: 1/26/2016
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A party that acts as a "mere conduit" for a transfer of funds is not a "first transferee" for purposes of liability under the Uniform Fraudulent Transfer Act.
Whether reasonably equivalent value has been received in exchange for a transfer is a question of fact subject to the clearly erroneous standard of review.
Under the Uniform Commercial Code, a creditor may obtain a money judgment on the debt and foreclose on collateral in one or more proceedings if there is no double recovery.
The perfection of security interests in intangible collateral is governed by the law of the debtor's location.

Titan Machinery, Inc. v. Patterson Enterprises, Inc., et al. 2016 ND 19
Docket No.: 20150025
Filing Date: 1/21/2016
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A proponent may introduce into evidence a summary to prove the content of voluminous writings that cannot be conveniently examined in court.
A proponent of a summary must make the originals or duplicates of the underlying writings available for copying or examination by other parties at a reasonable time and place, and the underlying documents must be admissible.
A district court's findings must be sufficient to enable an appellate court to understand the court's decision.
A merchant who leases goods of that kind impliedly warrants the goods are fit for the ordinary purposes for which goods of that type are used.