Opinions

State v. Gackle 2015 ND 271
Docket No.: 20150090
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Section 39-20-07, N.D.C.C., is not the only method for offering blood test results into evidence. Blood test results may also be admitted under normal evidentiary rules.

Weigel v. Weigel 2015 ND 270
Docket No.: 20140412
Filing Date: 12/1/2015
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.
Due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case.

Anderson v. Baker, et al. 2015 ND 269
Docket No.: 20150049
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Johnson, et al. v. Buskohl Construction, Inc., et al. 2015 ND 268
Docket No.: 20150006
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: McEvers, Lisa K. Fair

Highlight: If a district court does not make detailed findings when admitting evidence under the residual exception to hearsay, an appellate court may review the record to determine whether the prerequisites to admissibility have been met.
The most important requirement to admit evidence under the residual exception to hearsay is that it possess circumstantial guarantees of trustworthiness equivalent to the next closest hearsay exception.
A party seeking to admit evidence under the residual exception to hearsay must give advance notice of its intent to use the evidence, including providing the name and address of the declarant to the opposing party, before trial.

Guardianship and Conservatorship of M.E. (Confidential) 2015 ND 267
Docket No.: 20150117
Filing Date: 12/1/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: Substantial compliance with the statute for the appointment of a guardian and conservator is required.
Deprivation of a protected person's rights to vote, to seek to change marital status, to obtain or retain a motor vehicle operator's license, or to testify in any judicial or administrative proceedings must be supported by specific findings.

State v. Moreno 2015 ND 266
Docket No.: 20150158
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for refusal to submit to chemical testing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Murray v. State 2015 ND 265
Docket No.: 20150124
Filing Date: 12/1/2015
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)(6) and (7).

Wheeler v. State (consolidated w/20150114 & 20150115) 2015 ND 264
Docket No.: 20150113
Filing Date: 12/1/2015
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)(7) and Lehman v. State, 2014 ND 103, 847 N.W.2d 119.
Order prohibiting filing any further motions or pleadings is modified.

State v. Birnbaum 2015 ND 263
Docket No.: 20150064
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment for assault, violation of an order prohibiting contact, theft of property, and failure to halt is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Busby 2015 ND 262
Docket No.: 20150173
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for assault summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7). State v. Chisholm, 2012 ND 147,  16, 818 N.W.2d 707.

State v. Ford 2015 ND 261
Docket No.: 20150177
Filing Date: 12/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: District court order for revocation of probation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of L.F. (CONFIDENTIAL) 2015 ND 260
Docket No.: 20150272
Filing Date: 12/1/2015
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).

Rusgrove v. Goter 2015 ND 259
Docket No.: 20150122
Filing Date: 11/6/2015
Case Type: Appeal - Civil - Malpractice
Author: Per Curiam

Highlight: A district court's summary judgment dismissing a plaintiff's lawsuit with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

In the Interest of A.S. (CONFIDENTIAL) 2015 ND 258
Docket No.: 20150120
Filing Date: 11/6/2015
Case Type: Appeal - Criminal - Juvenile Law
Author: Per Curiam

Highlight: A district court order adopting a referee's order that transferred the case from juvenile court to adult court is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sall v. Sall (cross-reference w/ 20100360 & 20120448) 2015 ND 257
Docket No.: 20150098
Filing Date: 10/29/2015
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court judgment adjusting the monthly amount of child support payments is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of T.A.G. 2015 ND 256
Docket No.: 20140445
Filing Date: 10/29/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Leno v. N.D. Dep't of Transportation 2015 ND 255
Docket No.: 20150091
Filing Date: 10/19/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: When the specimen submitter's checklist is not sent to the Department of Transportation or presented as evidence at the administrative hearing, testimony from the specimen submitter can be used to show scrupulous compliance with the methods approved by the state crime laboratory director.
The abuse of discretion standard applies to decisions allowing witnesses to refresh their memories.
Leading questions are permissible to refresh a witness's memory.

Capes v. Capes 2015 ND 254
Docket No.: 20140342
Filing Date: 10/14/2015
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To modify parenting time, the moving party must demonstrate that a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the best interests of the child.

Estate of Amundson, et al. 2015 ND 253
Docket No.: 20150046
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The district court is considered an expert in determining the value of reasonable attorney's fees for services rendered to an estate, and its decision will not be overturned on appeal absent a clear abuse of discretion.
Professional corporations organized for the purpose of engaging in the practice of law provide limited personal liability only for obligations of the professional corporation that are unrelated to the rendering of the professional legal service.

Poppe v. Stockert, et al. 2015 ND 252
Docket No.: 20140463
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: A landlord may dispose of a tenant's abandoned personal property under N.D.C.C. 47-16-30.1. The landlord must retain property valued at more than $1,500 for the time required by statute.
The statute create a lien on a tenant's abandoned personal property when there is an eviction judgment and special execution. The lien is a security interest for the reasonable costs of retaining the property for the statutory period.

Gronland v. Gronland (cross-reference w/19940193) 2015 ND 251
Docket No.: 20150108
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Jurisdiction to modify spousal support does not extend beyond the support period, unless the court reserves that jurisdiction.
The Supreme Court may sanction a person failing to abide by the Rules of Appellate Procedure.

Olson v. Levi 2015 ND 250
Docket No.: 20150131
Filing Date: 10/13/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The report and notice form forwarded to the department of transportation must include adequate probable cause information showing the arrestee was in actual physical control of or was driving a vehicle under the influence of alcohol to provide the department authority to suspend driving privileges.

City of Jamestown v. Hanson 2015 ND 249
Docket No.: 20150005
Filing Date: 10/13/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Testimony regarding blood-alcohol testing procedures may be admitted into evidence without satisfying the statutory requirements for admission of blood-alcohol test results.

Tidd v. Kroshus 2015 ND 248
Docket No.: 20140426
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Jury instructions on issues not supported by the evidence are erroneous but arereversible error only when they are prejudicial or mislead the jury.
Every unexpected occurrence is not a sudden emergency, and whether a sudden emergency exists is a question for the jury unless a reasonable person could draw only one conclusion from the evidence.

Guardianship/Conservatorship of V.A.M. 2015 ND 247
Docket No.: 20150043
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: A district court's decision cannot be properly reviewed on appeal if the appellate court is unable to understand the rationale underlying the district court's decision.

Interest of W.M. (Confidential) 2015 ND 246
Docket No.: 20150257
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: District court order finding W.M. mentally ill and in need of treatment with medication summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of B.K. (CONFIDENTIAL) 2015 ND 245
Docket No.: 20150260
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Mental health commitment for up to 90 days is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Dubray v. State 2015 ND 244
Docket No.: 20140428
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Matter of Bartole (cross-ref w/ 20110243) 2015 ND 243
Docket No.: 20150134
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Highlight: A district court order for continued commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Meyer, et al. v. Engebretson, et al. 2015 ND 242
Docket No.: 20150170
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Summary judgment deciding ownership of mineral interests is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Kitzan v. State 2015 ND 241
Docket No.: 20150045
Filing Date: 10/13/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Berg 2015 ND 240
Docket No.: 20150076
Filing Date: 10/13/2015
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: District court order for revocation of probation and amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Wedemeyer v. State 2015 ND 239
Docket No.: 20150021
Filing Date: 10/13/2015
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).

Border Resources, LLC v. Irish Oil & Gas, Inc., et al. 2015 ND 238
Docket No.: 20140264
Filing Date: 9/21/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A fiduciary duty, including a corresponding duty of loyalty and honesty, arises between an oil company and its landman based on a confidential relationship.
The existence and scope of a fiduciary duty depends on the language of the parties' agreement.
A district court has wide discretion in deciding whether to permit amended pleadings after the time for an amendment has passed.

State v. Montplaisir 2015 ND 237
Docket No.: 20140459
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: An information is sufficient if it sets forth the offense in the words of the statute and is specific enough to provide a defendant with notice of the pending charges to enable the defendant to prepare a defense.
A statute is not unconstitutionally vague if the challenged language, when viewed under a reasonable person standard, gives adequate and fair warning of the prohibited conduct and creates minimum guidelines for those whose duty is to enforce the statute.
A district court's decision at a preliminary hearing that probable cause existed to bind a defendant over for trial is rendered moot once the trial is held, and the defendant may not, on appeal, challenge the decision that probable cause existed.

Klein v. Klein 2015 ND 236
Docket No.: 20140449
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Under the child support guidelines, "self-employment" means employment that results in an obligor earning income from any business organization or entity which the obligor is, to a significant extent, able to directly or indirectly control.
The child support guidelines restrict when a loss from self-employment may be applied to reduce income unrelated to self-employment.
When tax returns are not available or are unreliable, the guidelines require the district court to use profit and loss statements that more accurately reflect the obligor's current self-employment income to properly calculate income.

State v. Guttormson 2015 ND 235
Docket No.: 20150035
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Statements admitted to prove a point other than the truth of the matter asserted are not testimonial hearsay statements.
Insufficient evidence to support a conviction exists only when, after reviewing the evidence in the light most favorable to the verdict and giving the benefit of all inferences reasonably to be drawn in favor of the verdict, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

State v. Chase 2015 ND 234
Docket No.: 20150010
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A trial court does not abuse its discretion by excluding evidence of prior sexual activity between a victim and defendant when the defendant has not provided the required notice of intent to offer such evidence.

Interest of M.R., a Child (CONFIDENTIAL) 2015 ND 233
Docket No.: 20150175
Filing Date: 9/17/2015
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: The juvenile court is not required to second-guess an attorney's statement regarding his client's decision not to appear by telephone at a termination of parental rights trial.
A parent is not denied due process when his parental rights were terminated while he was not present because he was given proper notice, afforded the opportunity to appear telephonically, and represented by counsel.
When a juvenile court sends notice to intervene to the proper tribe and the tribe declines to exercise jurisdiction, the juvenile court has satisfied ICWA's requirements and may proceed with the case.

Norby v. Estate of Kuykendall, et al. 2015 ND 232
Docket No.: 20140380
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: When a boundary is fixed by a deed at a specified line without reference to the water, the grantee cannot claim accretions beyond that line.

Greywind v. State 2015 ND 231
Docket No.: 20150070
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A district court summarily dismissing a post-conviction relief application under N.D.C.C. 29-32.1-09(1) must rely on information found solely within the application.
A party opposing the motion for summary judgment is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and entitled to present supporting material justifying an evidentiary hearing.

State v. Morales 2015 ND 230
Docket No.: 20140407
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A warrantless blood-alcohol test is unreasonable unless it falls within a recognized exception to the warrant requirement.
A warrantless blood-alcohol test may be justified under the exigent circumstance exception to the warrant requirement.

Grigg v. Grigg 2015 ND 229
Docket No.: 20140403
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Unless the opposing party's counter-affidavits conclusively establish the movant's allegations have no credibility, the district court must accept the truth of the moving party's allegations.

Keller v. State 2015 ND 228
Docket No.: 20140438
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A motion to correct an illegal sentence cannot be used to attack the underlying conviction.
To show the new interpretation of law exception to the post-conviction relief two-year statute of limitations applies, the petitioner must establish (1) a new interpretation of state or federal constitutional or statutory law applies to the petitioner's case, and (2) the interpretation is retroactively applicable.
A defendant is not convicted of the incognizable offense of attempt to commit extreme indifference murder where the information alleges only intentional conduct and the jury instructions reflect intentional language of attempting to cause death.

State v. Korynta 2015 ND 227
Docket No.: 20150077
Filing Date: 9/17/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of E.V. (Confidential) 2015 ND 226
Docket No.: 20150078
Filing Date: 9/17/2015
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: District court judgment finding a child is deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Holverson v. Lundberg 2015 ND 225
Docket No.: 20140347
Filing Date: 9/4/2015
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: There is not jurisdiction to hear appeal from a judgment where unadjudicated claim has not been decided by district court.

Vacancy in Judgeship No. 1, Southwest Judicial District 2015 ND 224
Docket No.: 20150225
Filing Date: 9/1/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Dickinson.

State v. New Holland 2015 ND 223
Docket No.: 20140409
Filing Date: 8/31/2015
Case Type: Appeal - Criminal - Contempt of Court
Author: Sandstrom, Dale

Highlight: A person seeking compensatory remedial contempt sanctions against the state or a state employee must comply with the statutory requirements for claims against the state.

Disciplinary Board v. Matson (consolidated w/ 20150220-20150221) 2015 ND 222
Docket No.: 20150219
Filing Date: 8/31/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.