Opinions

State v. Bear 2015 ND 36
Docket No.: 20140253
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: To successfully challenge the sufficiency of the evidence on appeal, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.
So long as the prosecutor has probable cause to believe the accused committed an offense defined by statute, the decision whether to prosecute generally rests entirely in the prosecutor's discretion.

Peltier v. State 2015 ND 35
Docket No.: 20140178
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: When a court has accepted a guilty plea and imposed a sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice.
While laches is ordinarily a question of fact which is inappropriate for summary judgment, the issue becomes one of law if the evidence is such that reasonable minds could draw but one conclusion.

Steinbach v. State 2015 ND 34
Docket No.: 20140069
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Evidence of other acts or crimes the defendant committed are excluded under N.D.R.Ev. 404(b) only when the acts or crimes are independent of the charged crime and do not fit into the rule's exceptions.
When a prosecutor makes improper comments about the evidence or the witnesses' credibility during a trial, the trial court's instruction to a jury that they have the duty to weigh the evidence and determine the witnesses' credibility may minimize any prejudice caused by a prosecutor's comments.

City of Harwood, et al. v. The City of Reiles Acres,et al.(cross-ref w/20130309) 2015 ND 33
Docket No.: 20140089
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A district court has subject matter jurisdiction to construe a contract in a declaratory judgment action and to consider partition claims.
A contractual obligation may be discharged for frustration of purpose when after a contract is executed, a party's principal purpose is substantially frustrated without fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made.
Partition is a matter of right between cotenants, and a district court has wide discretion in partition actions to equitably divide property or proceeds between the parties.

Runge v. Disciplinary Board 2015 ND 32
Docket No.: 20140135
Filing Date: 2/12/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A violation of the rules of professional conduct must be established by clear and convincing evidence.
A lawyer representing a client with questionable capacity is generally given a range of professional judgment to ascertain capacity.

State v. Glaser 2015 ND 31
Docket No.: 20140174
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: When a statutory definition is limited by prefatory language such as "in this title" or "for the purposes of this title," there is an expressly evidenced intent that the definition have no application beyond that act.
The word "may" in a statute is merely permissive, does not require action, and operates simply to confer discretion.
A trial court may conclude a factual basis for a guilty plea exists from anything that appears on the record.

Waslaski v. State 2015 ND 30
Docket No.: 20140245
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Apland 2015 ND 29
Docket No.: 20140150
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A factual challenge made against evidence obtained through an alleged unconstitutional warrantless search, which establishes probable cause in an affidavit used to secure a search warrant, may be considered at an evidentiary hearing.
A district court may consider information outside the four corners of the affidavit only when a defendant presents specific challenges to the facts in an affidavit.

Mackey v. State (cross-ref. w/20120119, 20100337) 2015 ND 28
Docket No.: 20140181
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying application for post-conviction relief and denying motion to reopen judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Beylund 2015 ND 27
Docket No.: 20140105
Filing Date: 2/12/2015
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)(2) and (7).

Culver v. Levi 2015 ND 26
Docket No.: 20140195
Filing Date: 2/12/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Appeal from judgment affirming decision of the Department of Transportation to suspend driving privileges for 91 days is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Haugen v. Simmons 2015 ND 25
Docket No.: 20140261
Filing Date: 2/12/2015
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).

Interest of D.D. (CONFIDENTIAL)(Cons. w/20140457, 20140465, & 20140466) 2015 ND 24
Docket No.: 20140456
Filing Date: 2/12/2015
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A district court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Huffman Inc. v. WSI 2015 ND 23
Docket No.: 20140348
Filing Date: 2/12/2015
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative law judge's order finding Huffco's drivers are employees is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Rath v. Rath (Cross-ref. w/20130025, 20130184, 20130327 & 20140012) 2015 ND 22
Docket No.: 20140291
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order denying Mark Rath's motion to vacate the judgment and orders is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7).

Winarske v. State (consolidated w/20140113-20140118) 2015 ND 21
Docket No.: 20140112
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Johnson 2015 ND 19
Docket No.: 20140286
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A district court order revoking probation and sentencing a defendant is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Beylund v. Levi 2015 ND 18
Docket No.: 20140133
Filing Date: 2/12/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The implied consent laws do not violate the Fourth Amendment, under the doctrine of unconstitutional conditions.

Disciplinary Board v. Stanley 2015 ND 17
Docket No.: 20140420
Filing Date: 2/10/2015
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Law v. Whittet, et al. (cross-reference w/20130241 & 20140248) 2015 ND 16
Docket No.: 20140268
Filing Date: 1/22/2015
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court amended judgment will be reversed and remanded for failure to follow the mandate of the Supreme Court.
A change of judge may be ordered on remand when a judge is unable or unwilling to follow the mandate of the Supreme Court.

State v. Galvez 2015 ND 14
Docket No.: 20140029
Filing Date: 1/15/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Under the Equal Protection Clause, the use of peremptory challenges to exclude jurors solely on the basis of their gender is unconstitutional.
A party claiming gender discrimination during the selection of the jury pool bears the burden of establishing a prima facie case of purposeful discrimination.
A party challenging the sufficiency of the evidence to sustain a conviction entered on a jury verdict must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.

Mertz v. Mertz 2015 ND 13
Docket No.: 20140072
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: Comprehensive analysis under the Ruff-Fischer guidelines is emphasized over the disadvantaged spouse doctrine, which has been eliminated.
The district court must consider all the relevant factors under the Ruff-Fischer guidelines in determining spousal support, explaining its rationale for its determination.
Because of the interrelation, the district court may reconsider the property distribution when determining spousal support.

Interest of L.B. (CONFIDENTIAL) 2015 ND 12
Docket No.: 20140447
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's finding that a person is chemically dependent and requires treatment will not be reversed unless it is clearly erroneous.
A respondent has no statutory right to examine an expert examiner who does not testify at the hearing.

State v. Kovalevich 2015 ND 11
Docket No.: 20140091
Filing Date: 1/15/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A criminal defendant must raise post-trial arguments about alleged discovery violations in a motion for a new trial.
A juror may testify about the receipt of extraneous prejudicial information by the jury, but the juror may not testify about its subjective effect on the verdict or on the jury's individual deliberations.
A motion for a new trial must specify the alleged defects and errors with particularity.

Combs v. Lund 2015 ND 10
Docket No.: 20140163
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A respondent's right to due process is violated by a disorderly conduct restraining order that creates a right of review in a divorce proceeding to which the respondent is not a party.
Disorderly conduct restraining orders require findings of fact sufficient to enable an appellate review.

Keller v. N.D. Dep't of Transportation 2015 ND 9
Docket No.: 20140238
Filing Date: 1/15/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The failure of law enforcement to forward the results of a drug analytical report of a blood sample to the Department of Transportation does not deprive the Department of its authority to suspend an individual's driving privileges for driving under the influence of alcohol.

State v. Washburn 2015 ND 8
Docket No.: 20140154
Filing Date: 1/15/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: An order dismissing a criminal prosecution for refusing to submit to a chemical test for intoxication is summarily reversed under N.D.R.App.P. 35.1(b).

Johnson v. State 2015 ND 7
Docket No.: 20140191
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A petitioner must provide evidentiary support that the petitioner was innocent to satisfy the newly discovered evidence exception to the two-year time limit for applying for post-conviction relief.

State v. Birchfield 2015 ND 6
Docket No.: 20140109
Filing Date: 1/15/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Ratchenski v. Lindell, et al. 2015 ND 5
Docket No.: 20140180
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order denying parent's motion for parenting time summarily .affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Evans 2015 ND 4
Docket No.: 20140218
Filing Date: 1/15/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Interest of M.S. (CONFIDENTIAL) (cross-ref w/ 20140304) 2015 ND 3
Docket No.: 20140435
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Order modifying an alternate treatment order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of E.L. (CONFIDENTIAL) 2015 ND 2
Docket No.: 20140462
Filing Date: 1/15/2015
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order for involuntary treatment with medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Brossart (CONSOLIDATED W/ 20140027) 2015 ND 1
Docket No.: 20140024
Filing Date: 1/12/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: The First Amendment precludes states from enacting laws "abridging the freedom of speech," but not all speech is protected, and speech that is a "true threat" may be restricted.
Whether speech constitutes a "threat" is a question of fact for the jury.
An estray is an animal escaped away from the control of its owner, with no knowledge of the animal's location.
A person is required to notify the sheriff or chief brand inspector when the person takes possession of an estray and does not know who owns the estray.
Whether an officer used excessive force in arresting a defendant is a question of fact, and a defendant may raise the issue to the jury and offer his resistance as a justification defense to a preventing-arrest charge.

Guardianship and Conservatorship of J.G.S. 2014 ND 239
Docket No.: 20140017
Filing Date: 12/30/2014
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: A conservatorship is designed to protect the property of a person who is under disability and, as such, unable to maintain his or her property.
Under the conservatorship statutes, for the district court to acquire personal jurisdiction over the person to be protected on a petition for appointment of a conservator, the person to be protected must be personally served with notice of the proceeding at least fourteen days before the date of hearing.
This Court applies the clearly erroneous standard of review to the district court's findings of fact in a proceeding to establish a conservatorship.

Chornuk, et al. v. Nelson, et al. (cross-ref. w/20120071) 2014 ND 238
Docket No.: 20140124
Filing Date: 12/22/2014
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A party who pays a judgment against him under coercion or duress does not waive the right to appeal from the judgment.
An unrecorded deed is void against any subsequent purchaser in good faith.
A good-faith purchaser must acquire rights without actual or constructive notice of another's rights.
A person who has actual notice of circumstances sufficient to put a prudent person upon inquiry as to a particular fact and who omits to make such inquiry with reasonable diligence is deemed to have constructive notice of the fact itself.

Estate of Pedro 2014 ND 237
Docket No.: 20140074
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: Under the probate code, a personal representative has certain duties regarding the inventory and appraisement and, when appropriate, to provide a supplementary inventory.
An "interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person.
A claim for relief is frivolous under N.D.C.C. 28-26-01(2) only if there is such a complete absence of actual facts or law that a reasonable person could not have expected a court would render a judgment in that person's favor.

Across Big Sky Flow Testing, LLC v. WSI, et al. 2014 ND 236
Docket No.: 20140193
Filing Date: 12/18/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: For a workers compensation claim, where expert medical testimony is desirable, if not essential, to determining causation, an ALJ may not reject competent medical testimony without adequate explanation.

Grossman v. Lerud 2014 ND 235
Docket No.: 20140182
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: For imputation of income to an underemployed obligor under the child support guidelines, a court may consider only the North Dakota statewide average earnings of an occupation, and an obligor may dispute that employment opportunities are available within one hundred miles of the obligor's actual place of residence.

McCarthy v. McCarthy 2014 ND 234
Docket No.: 20140044
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In a divorce, a property division need not be equal to be equitable, but a substantial disparity must be explained.

Sorum v. Dalrymple, et al. 2014 ND 233
Docket No.: 20140194
Filing Date: 12/18/2014
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: All provisions of election law are mandatory if enforcement is sought prior to an election, and directory in support of the result after an election unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election.

Deeth v. N.D. Dep't of Transportation 2014 ND 232
Docket No.: 20140161
Filing Date: 12/18/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: If a person's driver's license is revoked for refusing to submit to an alcohol test, the only facts that must be proven are those that establish probable cause to believe the offense has been committed, arrest for the offense, and refusal of the test after the implied consent advisory.
"Reasonable grounds to believe an offense has been committed" is synonymous with "probable cause."

Deckert v. McCormick, et al. 2014 ND 231
Docket No.: 20140151
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: To obtain an enforceable right to the property under an option, the optionee must exercise the option within the time and upon the terms and conditions provided in the option agreement.
If no consideration is given for an option to purchase real estate, the option may be withdrawn at any time before acceptance.

State v. Horn 2014 ND 230
Docket No.: 20140093
Filing Date: 12/18/2014
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: Even if a party has raised an unsuccessful challenge in a pretrial motion, in order to preserve the issue for appeal, the party must renew the objection when the evidence is offered at trial.
A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the fact-finder to find the defendant guilty beyond a reasonable doubt.

Frey v. Frey (cross-reference w/20120378) 2014 ND 229
Docket No.: 20140086
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's denial of a motion to modify primary residential responsibility will be affirmed, unless clearly erroneous.
A district court's decision of whether to award back interim child support is discretionary.
A district court may consider the significant impact military deployments have on the best interests of the child, among other factors.

State v. Brandborg 2014 ND 228
Docket No.: 20140141
Filing Date: 12/18/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: Hunting on posted land without permission in violation of N.D.C.C. 20.1-01-18 is a strict liability offense.

Abelmann, et al. v. SmartLease USA, L.L.C. 2014 ND 227
Docket No.: 20130349
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Landlord/Tenant
Author: Kapsner, Carol

Highlight: A district court's factual findings must be adequate to understand the basis for the court's decision.

Podrygula, et al. v. Bray, et al. 2014 ND 226
Docket No.: 20140090
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The discovery rule is an exception to the statute of limitations and, if applicable, postpones a claim's accrual until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury.
The discovery rule requires only that the plaintiff be aware of an injury; it does not require knowledge of the full extent of the injury.

Schmitt, et al. v. Schmitt, et al. 2014 ND 225
Docket No.: 20140164
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Landlord/Tenant
Author: McEvers, Lisa K. Fair

Highlight: Without a transcript, the record is considered when reviewing whether a district court's findings are clearly erroneous.

State v. Nagel 2014 ND 224
Docket No.: 20140179
Filing Date: 12/18/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: There is no logical difference between a pre-arrest onsite screening test and a post-arrest chemical test in terms of determining voluntariness of consent under the implied consent statute.