Opinions

Winter v. Solheim, et al. 2015 ND 210
Docket No.: 20140458
Filing Date: 8/25/2015
Case Type: Original Proceeding - Civil - Writ of Certiorari
Author: VandeWalle, Gerald

Highlight: If a small claims court has jurisdiction over the parties and subject matter of an action, a writ of certiorari may not be used to review an alleged erroneous decision by the small claims court.

Olson, et al. v. Alerus Financial Corp., et al. 2015 ND 209
Docket No.: 20150009
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A real estate agent owes fiduciary duties to a client, and the legislature intended to create a private remedy to enforce violations of those duties.

State v. Zacher 2015 ND 208
Docket No.: 20150001
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Plain view is a recognized exception to the search warrant requirement, allowing law enforcement officers to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they can view an object and the object's incriminating character is immediately apparent.

Matter of J.G. (CONFIDENTIAL)(cross-reference w/20100366 & 20120199) 2015 ND 207
Docket No.: 20140448
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: The least restrictive treatment available for a sexually dangerous individual is initially made by the executive director of the department of human services, but the individual may challenge continued commitment if statutory requirements are being violated.

Interest of Whitetail 2015 ND 206
Docket No.: 20140455
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A sexually dangerous individual who is committed is to be placed in the least restrictive available treatment facility or program.
The executive director may petition the court to place a committed individual in the community for treatment on an outpatient basis.

Anderson v. WSI 2015 ND 205
Docket No.: 20140346
Filing Date: 8/25/2015
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A vocational rehabilitation plan is appropriate if it meets the statutory requirements and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.
Whether a vocational rehabilitation plan will return an injured worker to substantial gainful employmen must be assessed on the basis of the information WSI had before it at the time it selected the plan.

Moody, et al. v. Sundley 2015 ND 204
Docket No.: 20140408
Filing Date: 8/24/2015
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: All the elements for adverse possession must be satisfied for a claim of adverse possession under any of the statutory provisions, and if any element is not satisfied the possession will not confer title.
A pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and is not relevant to any issue pleaded in the case.

Gray v. Berg 2015 ND 203
Docket No.: 20150040
Filing Date: 8/24/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A peremptory demand for a change of judge differs from a demand for a change of judge based on bias. Peremptory demands are untimely if filed more than 10 days after notice of assignment or reassignment of a judge for trial of a case, notice that trial had been scheduled, or date of service of an ex parte order in the case signed by the judge against whom the demand is filed. Allegations of bias are not subject to the same time constraints.

Messer, et al. v. B&B Hot Oil Service, Inc., et al. 2015 ND 202
Docket No.: 20150065
Filing Date: 8/17/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: For negligence claims based on defective products, the focus is on whether or not the conduct of the manufacturer or seller falls below the standard of reasonable care. One who has been injured by a product may seek to hold the manufacturer or seller liable on the theory that the design of the product made it dangerous and, apart from whether it was negligent in its design, negligence is inhered in a failure to warn of the danger.
If the existence of a duty depends on factual determinations, their resolution is for the trier of fact. The appropriate procedure in such cases is for the court to instruct the jury as to the defendant's duty, or absence of duty, if certain facts are found.

State v. Clark 2015 ND 201
Docket No.: 20140405
Filing Date: 8/13/2015
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A conviction rests upon insufficient evidence only when, after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

Johnson, et al. v. Shield, et al. 2015 ND 200
Docket No.: 20150053
Filing Date: 8/13/2015
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Reservations or exceptions of property interests may appear in any part of a deed, including the warranty clause.
Exceptions or exclusions of property should be set forth in the granting clause with the same prominence as the property granted, or, if placed elsewhere, should be so explicit as to leave no room for doubt.

BAHA Petroleum Consulting Corp. v. Job Service 2015 ND 199
Docket No.: 20140452
Filing Date: 8/11/2015
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: McEvers, Lisa K. Fair

Highlight: Whether a worker is an independent contractor or an employee is a mixed question of fact and law, and the employer bears the burden of showing the worker is an independent contractor.

State v. Morel 2015 ND 198
Docket No.: 20140454
Filing Date: 8/11/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Conviction of refusal to submit to a chemical test is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Kordonowy 2015 ND 197
Docket No.: 20140327
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The implied consent statute criminalizing refusal to consent to chemical testing is not unconstitutional under the Fourth Amendment or N.D. Constitution article I, section 8, and it is not unconstitutionally vague.
The statutory right to refuse to submit to chemical testing is not a defense to the charge of refusal to submit to a chemical test.
The district court does not have a duty to draft a jury instruction requested by the defendant.

State v. Kardor 2015 ND 196
Docket No.: 20140410
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A Brady v. Maryland violation is established if a defendant proves: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A Brady violation is not established if a defendant was aware of the information allegedly withheld by the State.
A defendant's failure to discover evidence from a lack of reasonable diligence defeats a Brady claim that the prosecution withheld evidence.

Yesel, et al. v. Brandon, et al. (consolidated w/20140187) 2015 ND 195
Docket No.: 20140186
Filing Date: 8/6/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: A royalty interest is not abandoned if the mineral interest related to the royalty interest has been used within the last 20 years.
On a party's motion for leave to amend a pleading to assert a counterclaim in an ongoing action, a district court must consider whether the counterclaim is compulsory or permissive, and also must consider whether justice requires that leave to amend be granted.

State v. Filkowski 2015 ND 194
Docket No.: 20140344
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Evidence establishing the approved methods, devices, or individuals administering analytical tests requires foundational support indicating approval from the director of the state crime laboratory or the director's designee.
Copies of the state crime laboratory certified records that have been electronically posted on the attorney general's website must be admitted as prima facie evidence of the matters stated in the record. Once prima facie evidence establishing the status of a designee is accepted, the burden shifts to the defendant to rebut the prima facie evidence.

City of Dickinson v. Etienne 2015 ND 193
Docket No.: 20140472
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

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

State v. Jennewein (consolidated w/ 20140369) 2015 ND 192
Docket No.: 20140368
Filing Date: 8/5/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under the criminal discovery rules, the prosecution must furnish the defendant a copy of his prior criminal record that is within the prosecution's possession, custody, or control.
No compelling prejudice from consolidation of offenses is shown where a defendant asserts only a general desire to testify about some counts and not others.
If durng closing argument the prosecutor impermissibly comments on the defendant's failure to testify, the conviction must be reversed unless the error was harmless beyond a reasonable doubt after considering the entire record.

Guardianship/Conservatorship of B.K.J. 2015 ND 191
Docket No.: 20140446
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: The district court's selection of a guardian is reviewed on appeal using the abuse of discretion standard.
In applying the statutory order of priorities in the appointment of a guardian for an incapacitated person, the district court is not required to make specific findings regarding which priority applied, but the findings must be sufficient to afford a clear understanding of the district court's decision.

Prairie Supply, Inc. v. Apple Electric, Inc., et al. (consolidated w/ 20140357) 2015 ND 190
Docket No.: 20140354
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: When a motion for a new trial is made in the district court, the party making the motion is limited on appeal to a review of the grounds presented to the district court in the motion for a new trial.

The City of Moorhead v. Bridge Company, et al. 2015 ND 189
Docket No.: 20140431
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A franchise is a contract subject to the general rules of contract interpretation.
A fleeting reference in a brief to an unpled claim is insufficient to properly raise an issue for consideration.

Estate of Gassmann 2015 ND 188
Docket No.: 20140255
Filing Date: 7/28/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The pretrial exclusion of evidence by a motion in limine is a preliminary order and does not dispense with the need for the proponent of evidence to make an offer of proof at trial so the court can consider the proffered evidence in the context of other evidence presented at trial.

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).