Opinions

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.

Roberts v. N.D. Dep't of Transportation 2015 ND 137
Docket No.: 20140433
Filing Date: 5/27/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Taking the onsite screening test does not preclude revocation of a driver's license for refusal of a chemical blood test.

Ward Farms, et al. v. Enerbase Cooperative Resource, et al. 2015 ND 136
Docket No.: 20140104
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Fraud must be proven by clear and convincing evidence.
Statements of opinion, sales talk, or puffery do not constitute fraud.

Johnson, et al. v. Mid Dakota Clinic, P.C. 2015 ND 135
Docket No.: 20140274
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A prima facie case of professional negligence requires expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.
A prima facie case of negligence requires a duty to the plaintiff, the defendant's faillure to discharge that duty, and an injury to the plaintiff proximately caused by the defendant's negligence.

State v. Schmidt 2015 ND 134
Docket No.: 20140272
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.

State v. Smith 2015 ND 133
Docket No.: 20140219
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Obvious error will be corrected on appeal only when there is a clear deviation from an applicable legal rule under current law.

State v. Bauer 2015 ND 132
Docket No.: 20140453
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A defendant's refusal to expressly consent to chemical testing under N.D.C.C. 39-08-01 is not a violation of the Fifth Amendment protection against self-incrimination, nor contrary the Miranda.

Chegwidden, et al. v. Evenson, et al. 2015 ND 131
Docket No.: 20140340
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: Kapsner, Carol

Highlight: On termination of a lease, a lessor may apply the security deposit, plus accrued interest, towards any unpaid rent.
In a negligence action, the determination of whether a duty exists is generally a preliminary question of fact for the court to decide.
Liability for intentional infliction of emotional distress does not extend to mere indignities, annoyances, petty oppressions, or other trivialities.

Marhula v. Grand Forks Curling Club 2015 ND 130
Docket No.: 20140298
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The threshold membership requirements do not apply to a member's individual action against a nonprofit corporation claiming he was improperly terminated from membership.

Williams v. Williams 2015 ND 129
Docket No.: 20140313
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Rehabilitative spousal support is to equalize the burdens of divorce.

Rounkles v. Levi 2015 ND 128
Docket No.: 20140192
Filing Date: 5/27/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Issues raised in an amended specifications of error filed outside the seven-day period for filing a specifications of error will not be considered.

Broten, et al. v. Broten 2015 ND 127
Docket No.: 20140177
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Judicial estoppel is a doctrine designed to protect the integrity of the judicial process by prohibiting a party from assuming inconsistent or contradictory positions during the course of litigation..
Election of remedies is applied when there are two or more remedies, inconsistency between the remedies, and a choice of one remedy
A trial court may postpone the election of remedies until final judgment is entered.

State v. Lowe 2015 ND 126
Docket No.: 20140401
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Denial of a N.D.R.Crim.P. 35(b) motion for reduction of sentence is not appealable.

Estate of Hogen 2015 ND 125
Docket No.: 20140119
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A devisee's right to a decedent's real property is subject to administration by a personal representative, which continues until termination of the personal representative's appointment.
A devisee's cash rent and crop-share obligations to a decedent are a noncontingent indebtedness for purposes of a retainer against the devisee's interest in real property in the estate and may be pursued in a probate proceeding.
A personal representative may be entitled to a retainer against real property even if the personal representative does not take actual possession of the real property during administration of an estate.
A district court has discretion to award personal representative fees and attorney fees from an estate.

State v. Kopperud 2015 ND 124
Docket No.: 20150024
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: A district court may not assess jury expenses to a defendant in a criminal case when the defendant fails to appear for trial.

Funke, et al. v. Aggregate Construction, Inc., et al. (cross-ref. 20120405) 2015 ND 123
Docket No.: 20140052
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: VandeWalle, Gerald

Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable.
A statute providing for supplemental relief applies when the additional relief is requested after a declaratory judgment has been granted to supplement or enforce the declaratory judgment.
Basic rules of contract construction apply to leases in deciding the scope and effect of provisions within a lease.
Ratification requires full knowledge of all the material facts on the part of the corporate principal.

Estate of Nelson 2015 ND 122
Docket No.: 20140377
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: Appellate review is not possible when the rationale of the district court's decision is not clear.

Carlson, et al. v. GMR Transportation, Inc. 2015 ND 121
Docket No.: 20140319
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: In a tort action to recover damages for a work-related injury, the employer has the burden of establishing by a preponderance of the evidence the defense that the employer is immune from suit under the workers' compensation act.
Issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts.

Riak v. State 2015 ND 120
Docket No.: 20140128
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Motions for reconsideration of a judgment or order may be treated as motions to alter or amend a judgment or as motions for relief from a judgment or order.
Denial of a motion for reconsideration will not be reversed on appeal absent a manifest abuse of discretion.

State v. Matthews 2015 ND 119
Docket No.: 20140390
Filing Date: 5/27/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

White, et al. v. T.P. Motel, L.L.C., et al. 2015 ND 118
Docket No.: 20140203
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: To intervene as a matter of right, a proposed intervenor must show (1) an interest relating to the subject matter of the litigation; (2) the interest may be impaired as a result of the litigation; and (3) the interest is not adequately protected by an existing party to the litigation.

Interest of Thorson 2015 ND 117
Docket No.: 20140443
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Highlight: Order civilly committing an person as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Maxon v. State (consolidated w/20140473) 2015 ND 116
Docket No.: 20140314
Filing Date: 5/27/2015
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. 1986 Collins Fifth Wheel Camper 2015 ND 115
Docket No.: 20140406
Filing Date: 5/27/2015
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting forfeiture of property is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Disciplinary Board v. Foster 2015 ND 114
Docket No.: 20150143
Filing Date: 5/8/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Disciplinary Board v. Fahrenholtz (consol w/ 20150081-20150082) 2015 ND 113
Docket No.: 20150080
Filing Date: 5/7/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Adams v. Adams 2015 ND 112
Docket No.: 20140259
Filing Date: 5/4/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's valuation of marital property within the range of the evidence presented is not clearly erroneous.
When a distribution of marital property includes periodic cash payments from one spouse to another, a district court has broad authority to provide for the payment of interest to achieve an equitable distribution of the property.

Disciplinary Board v. Carpenter 2015 ND 111
Docket No.: 20140254
Filing Date: 5/1/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: In disciplinary proceedings, the Supreme Court defers to a hearing panel's findings on the credibility of a witness, because the hearing panel has the opportunity to observe the witness's demeanor and hear the witness testify.
A determination whether information disclosed by a "potential client" is "significantly harmful" is fact-sensitive.

Estate of Johnson 2015 ND 110
Docket No.: 20140173
Filing Date: 5/1/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A personal representative has a right to take possession of the decedent's property for purposes of administration, and a personal representative's decision to take possession of estate property is conclusive against the heirs and devisees.
A personal representative, acting reasonably for the benefit of the interested persons, may lease or sell an estate's real property.

Carnes v. Snider 2015 ND 109
Docket No.: 20140345
Filing Date: 5/1/2015
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)(7).

State v. Blackcloud 2015 ND 108
Docket No.: 20140229
Filing Date: 4/29/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Baxter 2015 ND 107
Docket No.: 20140325
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: The implied consent laws criminalizing refusal to submit to onsite screening or chemical tests do not violate the Fourth Amendment and its state counterpart, the unconstitutional conditions doctrine, or the due process clause.

State v. Gonzalez (cross-ref. w/20110051) 2015 ND 106
Docket No.: 20140213
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A valid probationary search is an exception to the warrant requirement under the Fourth Amendment.
A probationary search authorized by a condition of probation and supported by reasonable suspicion is a valid probationary search.
The district court is not required to explicitly list every item that may be searched in a search condition of a probation order.
A warrant is not required to search a probationer's cell phone if the search is a valid probationary search.

State v. Holkesvig (consolidated w/20140210) 2015 ND 105
Docket No.: 20140209
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: The district court has the inherent authority to stem the abuses of the judicial process when a litigant has engaged in a clear pattern of frivolous, repetitive litigation.
Statute provides the district court with the specific authority to dismiss on its own frivolous post-conviction relief applications.

Filkowski v. N.D. Dep't of Transportation 2015 ND 104
Docket No.: 20140290
Filing Date: 4/28/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Law enforcement must send the director of the Department of Transportation a certified copy of the analytical report of a blood test for the department to have authority to suspend a person's driving privileges.
Whether a blood test was fairly administered is a preliminary question of admissibility left to the administrative hearing officer's discretion.
Expert testimony is not required to admit an analytical report using the word "ethanol" instead of "alcohol."

State v. Williams 2015 ND 103
Docket No.: 20140370
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A search does not occur unless the government violates an individual's reasonable expectation of privacy.
An individual's expectation of privacy is diminished in the common areas of a multi-family dwelling.
A common hallway in a condominium building is not curtilage.

Howard v. State 2015 ND 102
Docket No.: 20140233
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: To resist summary disposition of a post-conviction relief claim, the non-moving party must present competent, admissible evidence capable of raising genuine issues of material fact.

State v. Jasmann 2015 ND 101
Docket No.: 20140322
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: It is not prosecutorial misconduct for the State to read an interview transcript into evidence at trial at the defendant's request when the defendant had reviewed the transcript and noticed it included a questionable statement.
A court's failure to give a jury instruction not requested does not qualify as a clear deviation from an applicable legal rule.

State v. Taylor 2015 ND 100
Docket No.: 20140318
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: Whether a person has a reasonable expectation of privacy in a bedroom, separate and above that for a residence as a whole, must be decided on a case-by-case basis.

Stai-Johnson v. Johnson 2015 ND 99
Docket No.: 20140339
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court may consider the effect of the separation of siblings in ruling on a motion to relocate.

Feist v. Feist 2015 ND 98
Docket No.: 20140323
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A district court's distribution of marital property is reviewed under the clearly erroneous standard of review.
Separate property, even if it is inherited, must initially be included in the marital estate, but the property's origin may be considered when equitably dividing the estate.

Viscito, et al. v. Christianson, et al. 2015 ND 97
Docket No.: 20140252
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A judgment dismissing a case without prejudice may be appealable if attorney's fees and costs are awarded as a sanction.
Objecting to a sanction in district court preserves the issue for appeal.
Attorney's fees and costs as a sanction under N.D.R.Civ.P. 16(f) are limited to the reasonable expenses incurred as a result of the failure to obey a pretrial order.

The Evangelical Good Samaritan Society v. N.D. Dep't of Human Services 2015 ND 96
Docket No.: 20140297
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: Public notice of future effective dates of federal regulations gives persons affected by the change in the law time to prepare to comply with the new rule.