Opinions

Vacancy in Judgeship No. 3, Northeast Judicial District 2015 ND 221
Docket No.: 20150160
Filing Date: 8/26/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bottineau.

Kuntz v. Disciplinary Board 2015 ND 220
Docket No.: 20150086
Filing Date: 8/25/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer's violation of the rules of professional conduct must be established by clear and convincing evidence.
Payment of fees for an initial consultation with a lawyer does not, by itself, establish a lawyer-client relationship.
A lawyer is not prohibited from representing a client with interests adverse to those of a potential client in the same or a substantially-related matter unless the lawyer has received significantly harmful information from the potential client.

State v. Weight 2015 ND 219
Docket No.: 20140382
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Double Jeopardy prohibits successive prosecutions and punishments for the same criminal offense.
An acquittal due to insufficient evidence precludes retrial whether the district court's evaluation of the evidence was correct or not and regardless of whether the court's decision flowed from an incorrect ruling of law.

Matter of Hehn (cross-reference 20110053; 20120070; 20120212; 20130055;20130143) 2015 ND 218
Docket No.: 20140430
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: When a party fails to raise an issue before the district court, even a constitutional issue, an appellate court generally will not address the issue on appeal. A party must do more than submit bare assertions to adequately raise constitutional issues.
An individual committed as sexually dangerous has the right to obtain individually identifiable health information and any confidential records provided to the state's attorney regarding the committed individual in a commitment proceeding.
Restraints in involuntary commitment proceedings must be based on individualized determination by the court on the record.

Gerber v. Disciplinary Board 2015 ND 217
Docket No.: 20150032
Filing Date: 8/25/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Under the rules of professional conduct, a lawyer who is not admitted to practice in this jurisdiction is prohibited from representing or holding out to the public that he is admitted to practice law in this jurisdiction.

Hale v. City of Minot 2015 ND 216
Docket No.: 20140337
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A local governing body's decision is affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.
A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.

Freidig, et al. v. Weed, et al. 2015 ND 215
Docket No.: 20140387
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A warranty deed that does not express the parties' intent may be reformed on the ground of mutual mistake.
Issues not raised in the district court will not be considered for the first time on appeal.

Gabaldon-Cochran v. Cochran 2015 ND 214
Docket No.: 20140338
Filing Date: 8/25/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: Distribution of marital property does not need to be equal, but the distribution must be equitable and a substantial disparity must be explained.
A court may unequally divide the marital estate in a short-term marriage and award the parties what each brought into the marriage.
A court may order one party to pay a cash payment to another party as part of the property distribution in any divorce case so long as the distribution is equitable.

State v. Weinmann (consolidated w/ 20140440) 2015 ND 213
Docket No.: 20140432
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The reliability of informants within the criminal milieu must be established.

State v. Rufus 2015 ND 212
Docket No.: 20140378
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The word "obtain," in the context of the human trafficking statute, encompasses acquiring temporary custody of a person for the purpose of engaging in commercial sex acts with that person.
A court may not stray from the classification the legislative assembly set for violation of a statute.

State v. Pogue 2015 ND 211
Docket No.: 20140355
Filing Date: 8/25/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: A motion to reconsider does not toll the time for filing a notice of appeal from an order suppressing evidence in a criminal matter.
Under the inventory search exception to the warrant requirement, the State has the burden to show law enforcement's reasons for impounding a vehicle are not only for an investigative function.
Under the good-faith exception to the exclusionary rule, good faith is a finding of fact.

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.