Opinions

Estate of Glasoe, et al. v. Williams County, ND, et al. 2016 ND 18
Docket No.: 20150095
Filing Date: 1/19/2016
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: There must be strict compliance with mandatory jurisdictional requirements of the tax lien foreclosure statutes, and those statutes will be strictly construed in favor of the owners of the property.
Sufficiency of service of process is a question of fact that will not be reversed on appeal unless clearly erroneous.
The sale of property acquired by a county through tax deed by the acceptance of a valid bid cuts off the former owner's right of repurchase.

Palmer v. 999 Quebec, Inc., et al. 2016 ND 17
Docket No.: 20150031
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Generally, the existence of a duty is a preliminary question of law for the court. When a duty does not exist, there is no negligence.
In opposing a motion for summary judgment, the resisting party must present competent admissible evidence by affidavit or other means that raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record.

Ritter v. Ritter 2016 ND 16
Docket No.: 20150202
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A parent may establish a prima facie case for modification of residential responsibility following a stipulated divorce when the parent's affidavit evidences a significant change in employment resulting in a predictable work schedule and such modification is in the children's best interests.

State v. Knox 2016 ND 15
Docket No.: 20150125
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A district court's decision cannot be properly reviewed on appeal if the district court fails to make adequate findings explaining the evidentiary and legal basis for its decision.

Wanttaja v. Wanttaja 2016 ND 14
Docket No.: 20140436
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court has jurisdiction in divorce proceedings to award appropriate child support for a parties' child, even when a temporary support order has been entered by a district court in another county while the parties are still married.
In deciding whether to award attorney fees in a divorce, the district court must balance one party's needs against the other party's ability to pay, and fault is a consideration only to the extent one party has unreasonably escalated the fees.

State v. Atkins 2016 ND 13
Docket No.: 20150211
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Issues not brought before the district court are generally inappropriate for appeal.
Ineffective assistance of counsel claims generally should not be brought on direct appeal, because post-conviction relief proceedings provide a more appropriate forum to develop the evidentiary record necessary for such claims.

Forster v. Flaagan 2016 ND 12
Docket No.: 20150207
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A prima facie case for modification of primary residential responsibility is a bare minimum standard requiring facts that would support modification if proven at an evidentiary hearing.
If the moving party's allegations are supported by competent, admissible evidence, the court may conclude the moving party failed to establish a prima facie case only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.

State v. Hannah 2016 ND 11
Docket No.: 20150144
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: Pain is a phenomenon of common experience and understanding.
The weight given to a victim's testimony regarding pain is up to the jury.

State v. Horning 2016 ND 10
Docket No.: 20150148
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The State may move for civil forfeiture of property within a criminal case.
The State may appeal a district court order denying civil forfeiture.
Civil forfeiture is not dependent upon conviction in a criminal case.

State v. 1998 Jeep Grand Cherokee, et al. (cross-ref. w/20140444) 2016 ND 9
Docket No.: 20150270
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A district court abuses its discretion when it does not follow the procedural requirement of providing notice before amending an order or judgment to correct a clerical error.
A motion to amend a judgment or order to correct a clerical error cannot be used to make substantive changes to the judgment or order.
The dismissal of an appeal makes a judgment final and res judicata of all issues therein.

State v. Ballard 2016 ND 8
Docket No.: 20140333
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Suspicionless search of an unsupervised probationer's home is unreasonable under the Fourth Amendment of the United States Constitution.

State v. Russell 2016 ND 7
Docket No.: 20150205
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Amended criminal judgment revoking defendant's probation and sentencing him to prison is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

Sturre v. Levi 2016 ND 6
Docket No.: 20150242
Filing Date: 1/14/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Judgment affirming the Department of Transportation hearing officer's decision to suspend driving privileges for 180 days is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

Myers v. State 2016 ND 5
Docket No.: 20150223
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily reversed under N.D.R.App.P. 35.1(b).

State v. Suelzle 2016 ND 4
Docket No.: 20150004
Filing Date: 1/14/2016
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for aggravated assault, aggravated reckless driving, reckless endangerment, leaving the scene of an accident involving serious personal injury, leaving the scene of an accident involving an unattended vehicle and leaving the scene of an accident involving an attended vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Johnson v. State 2016 ND 3
Docket No.: 20150130
Filing Date: 1/14/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Vacancy in Judgeship No. 1, NEJD 2016 ND 2
Docket No.: 20150353
Filing Date: 1/12/2016
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Devils Lake.

Stock v. Stock 2016 ND 1
Docket No.: 20150011
Filing Date: 1/6/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: It is not clearly erroneous for a court to award permanent spousal support instead of rehabilitative spousal support where the circumstances warrant both awards.
The amount of a spousal support award is clearly erroneous where the amount unduly burdens the payor spouse by leaving the spouse in a nearly impossible financial position.
Although a district court and this Court have concurrent jurisdiction to award attorney's fees for an appeal in a divorce, we prefer the district court decide the issue of attorney's fees for a divorce appeal.

Markgraf, et al. v. Welker, et al. 2015 ND 303
Docket No.: 20150116
Filing Date: 12/31/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: Summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment.
The statute of limitations for recovery or possession of real property, applies to any action for the recovery or possession of real property and is not limited to adverse possession or acquiescence actions.
When summary judgment is inappropriate but no further evidence would be presented at trial, parties may submit the case to the district court for a trial based on the record if the parties provide a stipulation of facts and exhibits, together with any argument the court permits.

Arrow Midstream Holdings, LLC, et al. v. 3 Bears Construction, LLC, et al. 2015 ND 302
Docket No.: 20150057
Filing Date: 12/29/2015
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A dismissal without prejudice is final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
Generally, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation.
It is not the particular form of business entity used by a tribe or tribal member, but whether the business entity was created under tribal law or state law that determines if the business entity should be treated as a tribe or tribal member.
State court jurisdiction over claims arising on Indian reservations is foreclosed if it is preempted by incompatible federal law or if it would undermine the right of reservation Indians to make their own laws and be ruled by them.

State v. Nelson (consolidated w/ 20150213) 2015 ND 301
Docket No.: 20150212
Filing Date: 12/22/2015
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: Restitution hearings are required when a defendant has pled guilty and the amount of restitution is in dispute or uncertain.
District courts have a wide degree of discretion when setting restitution, and the court's decision will not be reversed on appeal unless the court acted outside the limits set by statute, which is similar to an abuse of discretion standard.

Clark v. Farmers Union Mutual Ins., et al. 2015 ND 300
Docket No.: 20150199
Filing Date: 12/22/2015
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Interpretation of an insurance contract is a question of law fully reviewable on appeal.
Courts look first to the language of an insurance contract, and if the policy language is clear on its face, there is no room for construction.

Washburn v. Levi 2015 ND 299
Docket No.: 20150149
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: If an arrestee makes any affirmative mention of a need for an attorney before deciding whether to submit to chemical testing, law enforcement personnel must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity to do so.
A failure to provide a reasonable opportunity to consult with counsel after the arrestee requests as much disallows the Department from revoking the arrestee's driver's license because of the arrestee's refusal to submit to chemical testing.

Bayles v. N.D. Dep't of Transportation 2015 ND 298
Docket No.: 20150200
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A district court may not reverse a hearing officer's decision to suspend driving privileges when the only basis was failure to file the transcript within the statutory period.
For reversal based on noncompliance with the statutory period to file a hearing transcript with the district court, a defendant must show either prejudice caused by the delay or systematically disregarded the requirements of the law.

State v. Williams 2015 ND 297
Docket No.: 20150042
Filing Date: 12/22/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The district court has discretion in deciding whether to grant a request for a transcript, and the court abuses its discretion by refusing the request if a particularized need, necessity, or justification for its preparation and use is shown.

State v. Chatman 2015 ND 296
Docket No.: 20150037
Filing Date: 12/22/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Illegally obtained evidence cannot be used to establish probable cause to issue a search warrant, but a court is not required to suppress evidence obtained as a result of the search warrant if there was sufficient legal evidence presented to the issuing magistrate to establish probable cause.
Anticipatory search warrants do not delegate the issuing magistrate's power to law enforcement.

Interest of Thill (cross-reference w/ 20130291) 2015 ND 295
Docket No.: 20150147
Filing Date: 12/22/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court must make specific findings of fact supporting its determination that a defendant remains a sexually dangerous individual. Generally referencing medical reports without explaining which facts it considered in its determination is not sufficient.

Butterfield v. Levi 2015 ND 294
Docket No.: 20150249
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: A district court judgment affirming a Department of Transportation decision revoking driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of A.C. (CONFIDENTIAL)(Consolidated w/20150318) 2015 ND 293
Docket No.: 20150317
Filing Date: 12/22/2015
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).

Musick v. Levi 2015 ND 292
Docket No.: 20150252
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Revocation of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

Jodoin v. Levi 2015 ND 291
Docket No.: 20150185
Filing Date: 12/22/2015
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).

Johnson v. State 2015 ND 290
Docket No.: 20150209
Filing Date: 12/22/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Disciplinary Board v. Ward 2015 ND 289
Docket No.: 20150309
Filing Date: 12/11/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Disciplinary Board v. Varriano 2015 ND 288
Docket No.: 20150342
Filing Date: 12/11/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstatement ordered.

Fleck, et al. v. Missouri River Royalty Corp., et al. 2015 ND 287
Docket No.: 20150106
Filing Date: 12/7/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: The term "production" as used in a "so long thereafter" clause and any related savings clause extending an oil and gas lease generally will be interpreted to mean "production in paying quantities."
To determine whether a well is producing in paying quantities, a court must consider whether the well has yielded a profit over the operating costs over a reasonable period of time and whether a reasonably prudent operator would continue to operate a well in the manner in which the well was operated under all of the relevant circumstances.

Disciplinary Board v. Huisman 2015 ND 286
Docket No.: 20150281
Filing Date: 12/7/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Blume Construction, Inc. v. State 2015 ND 285
Docket No.: 20150103
Filing Date: 12/7/2015
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: McEvers, Lisa K. Fair

Highlight: A corporation may not be represented by a non-attorney agent in a legal proceeding, and any legal documents signed and filed by a corporation's non-attorney agent are void.
A request for an appeal from an administrative agency's initial determination, made on behalf of a corporate entity, is not conduct that can be performed by a non-lawyer.
Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by signing pleadings and appearing in an action filed in an administrative agency.
A party asserting an equitable estoppel claim has the burden of proving every element of the claim.

Knorr v. Norberg (cross ref. 20130084) 2015 ND 284
Docket No.: 20150107
Filing Date: 12/7/2015
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A long-term lease with an option to purchase real property ordinarily requires a signed written agreement.
Promissory estoppel provides for the enforceability of an otherwise void or legally unenforceable agreement when one of the parties has acted to his or her detriment because of a representation or promise made by the other party as to future events.
Before promissory estoppel may be invoked to enforce an agreement or to award damages, the terms of the promise must be clear, definite, and unambiguous.

State v. Hennings 2015 ND 283
Docket No.: 20150096
Filing Date: 12/2/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The law is violated when a defendant, under the influence of alcohol, is able to direct the movement of a vehicle in an area to which the public has a right of access for vehicular use.

Disciplinary Board v. Johnston 2015 ND 282
Docket No.: 20150048
Filing Date: 12/1/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A law firm employing a paralegal who formerly was employed by another firm may continue representing clients whose interests conflict with the interests of clients of the former employer on whose matters the paralegal worked, as long as the employing firm screens the nonlawyer from information about or participating in matters involving those clients.

State v. Walker 2015 ND 281
Docket No.: 20140441
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A receipt of a general consent to search a vehicle reasonably extends to any container in that vehicle which may contain the object of that search.

State v. Asbach 2015 ND 280
Docket No.: 20140471
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A defendant is not illegally seized while an officer is conducting duties related to the purpose of a traffic stop.
To prevail under the inevitable discovery exception to the exclusionary rule, the State must prove that the police have not acted in bad faith to accelerate the discovery of the challenged evidence and that the evidence would have otherwise been discovered by lawful means in the course of the investigation.

Chisholm v. State 2015 ND 279
Docket No.: 20150099
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: To prevail on a post-conviction claim of ineffective assistance, the petitioner must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.

State v. Acker 2015 ND 278
Docket No.: 20150163
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: Before admitting a defendant's prior conviction, the district court must weigh the conviction's probative value against its prejudicial effect in accordance with N.D.R.Ev. 609(a)(1)(B).
Non-constitutional trial error warrants reversal when it prejudices the defendant.

Sargent County Water Resource District v. Mathews, et al. 2015 ND 277
Docket No.: 20140451
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The primary purpose in interpreting a deed is to ascertain and effectuate the grantor's intent. When a deed is unambiguous, the parties' intent is determined from the instrument itself.
A deed that conveys a "right" or "right of way" generally indicates an intent to convey an easement. When the phrase "right of way" is included in the granting clause limiting the estate conveyed or specifying the purpose of the grant, the use of the language supports finding an easement was conveyed.

Bye v. Robinette 2015 ND 276
Docket No.: 20150109
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Findings of fact must demonstrate that the district court followed the child support guidelines when imputing income.
A child support calculation must take into account all of the children in a case or the fact that an obligor owes an additional duty of support to children living with the obligor.

Yahna v. Altru Health System 2015 ND 275
Docket No.: 20150083
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: The presumption of at-will employment may be modified by an employment handbook creating contractual rights to employment, or by the statutory proscription against unlawful age discrimination.
A prima facie case of discrimination in the employment context requires a plaintiff to prove membership in a protected class, satisfactory performance of the duties of a job, an adverse employment decision, and others not in the protected class were treated more favorably.
An employment handbook must be read as a whole to determine whether it overcomes the presumption of employment at will.

Rooks v. Robb 2015 ND 274
Docket No.: 20150047
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: Affidavits must be made on personal knowledge and contain more than conclusory statements to raise a genuine issue of material fact.
For summary judgment, when a party has the burden of disputing a factual allegation for which no evidence is obtainable--e.g., the burden of proving something did not happen--the party may show there is a genuine dispute of material fact merely by pointing to the absence of probative evidence.

Williamson v. N.D. Dep't of Transportation 2015 ND 273
Docket No.: 20150179
Filing Date: 12/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Foundation for the admission of blood test results may be laid by a designee of the director of the state crime lab who has been authorized to sign and certify records.
Evidence supporting the admission of blood test results includes the director of the state crime laboratory's authorization of a designee to sign and certify records until revoked or terminated, a designee's authorization to appoint inspectors for breath alcohol testing programs, a designee's execution of certification pages for approved lists of chemical test operators and devices, and testimony that the administration of the chemical test was fair.

Huether, et al. v. Nodak Mutual Ins. Co. (cross-reference w/20150029) 2015 ND 272
Docket No.: 20150161
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: Insurance coverage for "direct physical loss or damage" is not ambiguous as a matter of law. A district court does not err in finding the ordinary meaning of the phrase does not include loss-of-use coverage.
The reasonable expectations doctrine is not adopted.