Opinions

EOG Resources, Inc. v. Soo Line Railroad Co., et al. 2015 ND 187
Docket No.: 20140122
Filing Date: 7/15/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: The primary purpose in interpreting a deed is to ascertain and effectuate the grantor's intent, and if the deed is unambiguous, we determine the grantor's intent from the deed itself considering the entire instrument.
A deed conveying property to a railroad generally conveys a fee simple interest if the deed conveys a strip, piece, parcel, or tract of land and does not contain additional language limiting the conveyance or use of the land.

Interest of B.E. (CONFIDENTIAL) 2015 ND 186
Docket No.: 20150188
Filing Date: 7/13/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order continuing treatment for six months is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Kroschel v. Levi 2015 ND 185
Docket No.: 20140265
Filing Date: 7/7/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Police officers outside of their jurisdiction generally act without official capacity and without authority to arrest.
A North Dakota State University police officer is without authority to arrest a driver operating a motor vehicle outside university property.
Litigants are entitled to recover attorney's fees against an administrative agency only when the agency acts without substantial justification.

Gackle v. N.D. Dep't of Transportation 2015 ND 184
Docket No.: 20150022
Filing Date: 7/6/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming the Department of Transportation hearing officer's suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Dockter, et al. v. Burleigh County Board of County Commissioners 2015 ND 183
Docket No.: 20140379
Filing Date: 7/2/2015
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Spot zoning occurs when an individual lot is singled out for discriminatory or different treatment than that accorded surrounding property of a similar character and is beyond the authority of a zoning entity, absent a clear showing of a reasonable basis for different treatment.
A County Commissioners' zoning decision is a legislative function subject to limited review by a court.
A County Commissioners' zoning decision must be affirmed unless the decision is arbitrary, capricious, or unreasonable, or there is not substantial evidence supporting the decision.

Howe v. Disciplinary Board 2015 ND 182
Docket No.: 20150156
Filing Date: 7/2/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstated and reprimanded.

State v. Lang 2015 ND 181
Docket No.: 20140332
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: When considering the effects of comments made during jury selection, great faith is placed in a juror's ability to remain fair and impartial.
Motions for mistrial fall within the broad discretion of the district court and will not be reversed on appeal absent a showing that the court abused its discretion or that a manifest injustice would occur.

State v. Packineau 2015 ND 180
Docket No.: 20140353
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: When a defendant has actual notice of a proposed additional witness before trial, the additional witness serves as a foundational witness, and the defendant does not specify any instance of actual prejudice, a district court does not abuse its discretion in admitting the testimony.
Under N.D.R.Crim.P. 16, there is no functional distinction between disclosing to an opposing party a state-owned and maintained website address specifically identifying and containing requested documents, electronically sending those same documents to defendant's counsel, or providing a physical copy.

Schlittenhart v. N.D. Dep't of Transportation 2015 ND 179
Docket No.: 20140262
Filing Date: 7/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: A driver's license may not be suspended or revoked without due process, which requires notice and a meaningful opportunity to be heard appropriate to the nature of the case.
The department of transportation is required by statute to conduct in-person hearings and cannot unilaterally decide hearings will be conducted telephonically; however, the statute does not require in-person appearance at the hearing by the driver's attorney.

Havemeier v. N.D. Dep't of Transportation 2015 ND 178
Docket No.: 20140417
Filing Date: 7/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test is not established when a law enforcement officer, in violation of the approved method, prematurely terminates the testing sequence before the machine times out and no expert testimony is provided on the effect, if any, of the deviation.

State v. Gates (consol. w/ 20150036) (cross-reference w/20130358) 2015 ND 177
Docket No.: 20140317
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: District courts have a wide degree of discretion when determining restitution awards, and the court's decision will not be reversed on appeal unless the court abuses its discretion.

State v. Breiner 2015 ND 176
Docket No.: 20140427
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Documents showing the defendant had the benefit of legal counsel are sufficient to establish defendant had or waived counsel so that prior convictions could be used to enhance his DUI sentence.

Gonzalez v. State (consolidated w/20150051) 2015 ND 175
Docket No.: 20150050
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An issue, even a constitutional issue, not raised before the district court generally will not be addressed on appeal.

Fugere v. Fugere 2015 ND 174
Docket No.: 20140334
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court may unequally divide property in a short-term marriage and award the parties what each brought into the marriage.
There is no rule that the district court equally divide any increase in the net worth of the parties which occurred during the marriage.
The affirmance of a property division in one divorce case does not announce a rule of law requiring that all property divisions in future cases be handled similarly.

State v. Martinez 2015 ND 173
Docket No.: 20140260
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.
When a criminal defendant is charged with multiple counts of gross sexual imposition, the jury instructions must include information identifying the underlying acts for each count, or the court must instruct the jury that it must unanimously agree about the act or acts committed for each count.
A trial court has discretion to exclude evidence about a person's sexual history.

City of Williston v. Werkmeister 2015 ND 172
Docket No.: 20140361
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A defendant may appeal from a municipal court's judgment of conviction, and the appeal must be taken in accordance with the Rules of Criminal Procedure.

Votava v. Votava 2015 ND 171
Docket No.: 20140460
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court has broad discretion in deciding whether contempt has been committed, and the court's decision will not be reversed on appeal unless there is a clear abuse of discretion.
Due process requires a party receive adequate notice and a fair opportunity to be heard.
A fair hearing requires reasonable notice or opportunity to know of the claims of opposing parties, and the opportunity to rebut those claims.

Savre v. Santoyo 2015 ND 170
Docket No.: 20140358
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: McEvers, Lisa K. Fair

Highlight: A breach of contract occurs when there is nonperformance of a contractual duty when it is due.
Whether a party has breached a contract is a finding of fact that will not be reversed on appeal unless it is clearly erroneous.
A person who receives an option from another to purchase property must strictly comply with the contractual requirements for exercising an option to purchase.
Waiver may be found from an unexplained delay in enforcing contractual rights or accepting performance different than called for by the contract.

Schiele v. Schiele 2015 ND 169
Docket No.: 20140371
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Parents have a mutual duty to support their children, and a court may compel either or both of the parents to provide for the support of their children.
A determination of a child support obligation is appropriate in any matter where the child and both of the child's parents do not reside together.
A divorce judgment's language controls, regardless of the actual custodial arrangement exercised by the parties.

Weston v. Crummy 2015 ND 168
Docket No.: 20140421
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A primary residential responsibility determination is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Adoption of A.J.S. and T.J.S. (CONFIDENTIAL) 2015 ND 167
Docket No.: 20150140
Filing Date: 7/1/2015
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Termination of a parent's parental rights and a stepparent adoption are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Horvath (consolidated w/20140469 & 20140470) 2015 ND 166
Docket No.: 20140468
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgments entered after a jury found defendant guilty of terrorizing, reckless endangerment, and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of C.S. (CONFIDENTIAL) (cross-ref 20110302) 2015 ND 165
Docket No.: 20140439
Filing Date: 7/1/2015
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).

State v. Feist 2015 ND 164
Docket No.: 20150041
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for criminal mischief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kirkpatrick v. State 2015 ND 163
Docket No.: 20150039
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court judgment summarily dismissing an application for postconviction relief from conspiracy to commit murder conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Everett v. State 2015 ND 162
Docket No.: 20140464
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying post-conviction relief from a gross sexual imposition conviction and a motion to substitute judge summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).

State v. Schwab 2015 ND 161
Docket No.: 20140467
Filing Date: 7/1/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for accomplice to gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Gaede v. State 2015 ND 160
Docket No.: 20150026
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief from murder conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Curtiss v. State 2015 ND 159
Docket No.: 20150007
Filing Date: 7/1/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Brooks v. Brooks 2015 ND 158
Docket No.: 20150044
Filing Date: 6/18/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A denial of an evidentiary hearing on a change of custody is reviewed under the de novo standard of review.
A reviewing court needs to know the reasons for the trial court's decision before it can intelligently rule on the issues.

Disciplinary Board v. Lee 2015 ND 157
Docket No.: 20150152
Filing Date: 6/16/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Peterka v. State 2015 ND 156
Docket No.: 20140425
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Multiple prosecutions and punishments are permitted on the basis of the number of pornographic images possessed rather than on the number of computers possessed containing those images.
A district court will be reversed if it does not act because it erroneously concluded the time for consideration had run.

Mattern v. Frank J. Mattern Estate 2015 ND 155
Docket No.: 20140296
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: If property claimed as a homestead exceeds the value of the homestead exemption, the homestead must be set off in such form as to exclude the excess, unless the homestead cannot be divided without material harm.
If the homestead cannot be divided without material injury, the family home must be preserved intact as against heirs even though the homestead exceeds the homestead exemption amount.

Wacht v. State 2015 ND 154
Docket No.: 20140418
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Claims raised on direct appeal cannot be raised again in a postconviction application.
Summary dismissal of an application for postconviction relief is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Baker v. Sabinash, et al. 2015 ND 153
Docket No.: 20140230
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Where the State is given a mortgage lien upon real property, and thereafter taxes are levied against said real estate and become due after the mortgage lien is created, the tax lien and the mortgage lien are not of equal rank.
The question of priority of liens against the same real estate held by the State is determined by the time of the creation of the liens, unless otherwise provided by statute, and taxes on the real estate becoming due after the mortgage lien of the State is created are subordinate to the lien of the mortgage.

Estate of Grengs 2015 ND 152
Docket No.: 20140220
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: Orders in a supervised probate proceeding are not final and appealable before approval of distribution of the estate and discharge of the personal representative.
A provision of a will is ambiguous if it is susceptible to more than one reasonable interpretation.
Whether an ambiguity exists in a will is a question of law, but resolution of the ambiguity is a finding of fact.

Ihli v. Lazzaretto 2015 ND 151
Docket No.: 20140415
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: When evidence relevant to a lawsuit is destroyed, the district court may sanction, and a court's decision to sanction will be reversed on appeal only if there was an abuse of discretion.
A district court has broad discretion in deciding whether to allow a party to amend the pleadings after the time for amendments has passed.

The Pifer Group, Inc. v. Liebelt, et al. 2015 ND 150
Docket No.: 20140442
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A corporation cannot be a licensed auctioneer.
A land auction sale agreement is not a contract for the sale of real property.
A court must give effect to each provision of a contract if possible, and if there is a conflict between written and printed parts of a contract, the written part controls.

Everett v. State 2015 ND 149
Docket No.: 20140288
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: An applicant for post-conviction relief has the burden of establishing grounds for relief.
To prevail on a post-conviction relief claim of ineffective assistance of counsel, an applicant must show counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's claimed unprofessional errors, the result of the proceeding would have been different.
A court may allow an applicant for post-conviction relief to withdraw a guilty plea to correct a manifest injustice.

Sweeney v. Kirby (cross-reference w/20120339 & 20130152) 2015 ND 148
Docket No.: 20140309
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A motion to modify primary residential responsibility made within two years of disposition of an earlier motion to modify primary residential responsibility is reviewed under stricter requirements.
A correct result will not be set aside merely because the district court applied an incorrect, more relaxed standard if the result is the same under the correct law and reasoning.

Estate of Bartelson (cross-ref. w/20110114 & 20130022) 2015 ND 147
Docket No.: 20140244
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: A decision on a petition to remove a personal representative lies within the discretion of the district court.
When a confidential relationship or fiduciary duty exists, the person in whom the confidence is reposed is deemed to be a trustee. All transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.
A presumption substitutes for evidence of the presumed fact until the trier of fact finds from credible evidence that the presumed fact does not exist.

State v. Leavitt 2015 ND 146
Docket No.: 20140404
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Whether probable cause exists to issue a search warrant is a question of law.
Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the evidence sought probably will be found in the place to be searched.
The admission and use of photographs in criminal trials is largely within the trial court's discretion.

State v. Hornor 2015 ND 145
Docket No.: 20140367
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: A criminal judgment for manufacture of methamphetamine, possession of a controlled substance, possession of amphetamine, and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Olson 2015 ND 144
Docket No.: 20150034
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment for forgery is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Smith 2015 ND 143
Docket No.: 20150019
Filing Date: 6/11/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for class C felony driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of B.E. (CONFIDENTIAL) 2015 ND 142
Docket No.: 20150146
Filing Date: 6/11/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order for less restrictive treatment of a chemically dependent person is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Reciprocal Discipline of Delorme 2015 ND 141
Docket No.: 20150016
Filing Date: 6/10/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Peterbilt of Fargo, Inc. v. Red River Trucking, LLC, et al. 2015 ND 140
Docket No.: 20140243
Filing Date: 6/1/2015
Case Type: Appeal - Civil - Debtor/Creditor
Author: Sandstrom, Dale

Highlight: The full time for appeal runs from service of notice of entry of an order disposing of a timely motion to amend a judgment.
A failure to obtain a stay pending appeal of a court-authorized conveyance of property to third persons moots issues raised on appeal about the conveyance.
A person injured by wrongful acts of another has a duty to mitigate damages if the person can do so with reasonable exertion or at a trifling expense, and can recover only damages that could not have been avoided with reasonable effort.

Golberg v. N.D. Dep't of Transportation 2015 ND 139
Docket No.: 20140299
Filing Date: 6/1/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: An affidavit completed by the person who performed the blood analysis may establish the approved method was used.

Chambering of Four New District Judgeships 2015 ND 138
Docket No.: 20150141
Filing Date: 6/2/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Four new judgeships chambered.