Opinions

State v. Booth (consolidated w/20140257 & 20140258) 2015 ND 59
Docket No.: 20140256
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: By voluntarily pleading guilty, a defendant waives any procedural defects in applying a habitual offender sentence enhancement.

Flynn, et al. v. Hurley Enterprises, Inc., et al. 2015 ND 58
Docket No.: 20130426
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: In a nuisance action, in balancing the utility of the defendant's conduct against the harm to the plaintiff, the property owner's conduct at issue in the balancing test is the invasive conduct that is alleged to constitute the nuisance, not conduct of the defendant in the community at large unrelated to the challenged conduct.
In a nuisance action, the statute granting immunity to a defendant must be strictly and narrowly construed.

Baker v. Autos, Inc., et al. 2015 ND 57
Docket No.: 20140033
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court may permit class certification if the numerosity, commonality, fair and efficient adjudication, and adequate representation factors are met. Thirteen sub-factors are used to help determine the fair and efficient adjudication factor.
Only one question of law or fact is required to establish commonality.
When determining whether the representative parties will fairly and adequately protect the class's interests, the district court must find the representative parties' attorney will adequately represent the class's interests, the representative parties do not have a conflict of interest, and the representative parties have or can acquire adequate financial resources to assure the class's interests will not be harmed.

State v. Eaglechasing 2015 ND 56
Docket No.: 20140336
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Otto v. State 2015 ND 55
Docket No.: 20140400
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Myers v. State 2015 ND 54
Docket No.: 20140295
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Pederson v. State 2015 ND 53
Docket No.: 20140343
Filing Date: 3/19/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's dismissal with prejudice of a post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Daye 2015 ND 52
Docket No.: 20140294
Filing Date: 3/19/2015
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgment for reckless endangerment and fleeing a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Nails v. US Bank (USA) N.A. 2015 ND 51
Docket No.: 20140329
Filing Date: 3/19/2015
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: Judgment of dissmissal of lawsuit is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Wojahn v. Levi 2015 ND 50
Docket No.: 20140315
Filing Date: 3/19/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

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

Kirkpatrick v. State (cross-reference w/20110312) 2015 ND 49
Docket No.: 20140321
Filing Date: 3/19/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Holkesvig v. Hutton, et al. 2015 ND 48
Docket No.: 20140320
Filing Date: 3/19/2015
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing complaint without prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Owens v. State 2015 ND 47
Docket No.: 20140282
Filing Date: 3/16/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Romero v. State (cross-reference w/20110337) 2015 ND 46
Docket No.: 20140287
Filing Date: 3/3/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A district court judgment denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Harns 2015 ND 45
Docket No.: 20140236
Filing Date: 2/25/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Driving under the influence conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Royal Jewelers, Inc., et al. v. Light, et al. 2015 ND 44
Docket No.: 20140125
Filing Date: 2/20/2015
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Payment must be applied in the manner directed by the debtor if a debtor manifests an intention or desire to apply a payment to one of two or more obligations to a creditor.
A district court's finding about a debtor's manifestation of intent for application of payment to one of two or more obligations is reviewed under the clearly erroneous rule.
A district court's finding about equitable estoppel is reviewed under the clearly erroneous rule.

State v. Gasal 2015 ND 43
Docket No.: 20140147
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Violations of the ministerial aspects of N.D.R.Crim.P. 41 relating to search warrants seldom result in the suppression of evidence unless there is a showing of prejudice, or an intentional or deliberate disregard of the rule.
N.D.R.Crim.P.36 regarding clerical errors, analyzes the ability of a district court to correct its own mistakes and does not apply in search warrant cases.

Seay v. Seay (cross-reference w/20110332) 2015 ND 42
Docket No.: 20140312
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court's decision on whether to modify primary residential responsibility is a finding of fact subject to the clearly erroneous standard of review.
If a court determines a material change of circumstances has occurred, it must analyze the best interest factors outlined in N.D.C.C. 14-09-06.2 before denying a motion to modify primary residential responsibility.

State v. White Bird (cross-reference w/ 20130381) 2015 ND 41
Docket No.: 20130402
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The corollary to a criminal defendant's constitutional right to counsel is a defendant's right to self-representation. To represent oneself, a criminal defendant must voluntarily, knowingly, and intelligently waive the right to counsel.
A district court has a continuing responsibility during trial to decide whether a self-represented defendant is competent to present his or her own defense. To ensure the defendant is afforded a fair trial, a district court can appoint counsel for the defendant during trial if the court determines the defendant is no longer competent to present his or her own defense.
A party may not challenge as error a ruling or other trial proceeding invited by that party.

State v. Eckroth 2015 ND 40
Docket No.: 20140136
Filing Date: 2/12/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge.
When a defendant pleads guilty to an enhanced offense, the defendant waives all violations of constitutional rights alleged to have occurred before the guilty plea was entered.
Failure to preserve an objection precludes a later assertion of error unless a defendant establishes obvious error affecting the defendant's substantial rights. Obvious error is recognized only with extreme caution.

Sterling Development Group Three, LLC, et al. v. Carlson 2015 ND 39
Docket No.: 20140188
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: A guarantor is exonerated from liability if the creditor alters the principal's obligation in any respect without the guarantor's consent.
An award of costs and disbursements will be reversed only if the district court abused its discretion.

Hoverson v. Hoverson (cross-ref. w/20120281) 2015 ND 38
Docket No.: 20140198
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A party seeking modification of spousal support must show a material change in financial circumstances warranting modification, which is a change that substantially affects the financial abilities or needs of the parties and that was not contemplated at the time of the original decree.
A party seeking modification of parenting time must demonstrate a material change in circumstances and that modification is in the best interests of the child.
A party who voluntarily pays a judgment waives the right to appeal from the judgment.

Nandan, LLP, et al. v. City of Fargo 2015 ND 37
Docket No.: 20140121
Filing Date: 2/12/2015
Case Type: Appeal - Civil - Tax Realted
Author: McEvers, Lisa K. Fair

Highlight: In reviewing a judgment dismissing a complaint for failure to state a claim, the complaint is construed in the light most favorable to the plaintiff and accept as true the allegations in the complaint.
A complaint should not be dismissed for failing to state a claim unless it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.

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).