Opinions

Mowan v. Berg 2015 ND 95
Docket No.: 20140201
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: If competent evidence of domestic violence does not trigger the statutory presumption, the violence must be considered as one factor in deciding primary residential responsibility.

Hall v. Malloy, et al. 2015 ND 94
Docket No.: 20140196
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: An instrument may include a judgment for purposes of the after-acquired title doctrine.
An instrument that conveys only the grantor's interest or title, if any, in property, rather than a fee simple interest in the property itself, does not convey after-acquired title.

Moe v. State 2015 ND 93
Docket No.: 20140185
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The purpose of an appeal is to review the actions of the district court, not to give the appellant an opportunity to develop new strategies or theories.
Issues and arguments not raised before the district court will not be addressed on appeal.

Matter of Loy 2015 ND 92
Docket No.: 20140111
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: A licensure under probation with the State Board of Psychologist Examiners meets the statutory and evidentiary standard required to testify, and a witness's probationary status is an issue of weight and credibility of the testimony and not an issue of admissibility.
In a proceeding civilly committing a person as a sexually dangerous individual, an indigent respondent does not retain a right to choose an independent evaluator paid by the State.

Interest of T.J.S. (CONFIDENTIAL)(consolidated w/ 20140363 & 20140364) 2015 ND 91
Docket No.: 20140362
Filing Date: 4/28/2015
Case Type: Appeal - Criminal - Juvenile Law
Author: Per Curiam

Highlight: Order placing child in custody of Department of Corrections is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Complete Plumbing Services, Inc. v. Brenna 2015 ND 90
Docket No.: 20140289
Filing Date: 4/28/2015
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Money judgment requiring payment for unpaid costs of work and materials is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 4, Northeast Central Judicial District 2015 ND 89
Docket No.: 20150018
Filing Date: 4/27/2015
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Grand Forks.

Tresenriter v. State 2015 ND 88
Docket No.: 20140359
Filing Date: 4/22/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Parizek v. State 2015 ND 87
Docket No.: 20140356
Filing Date: 4/22/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Mesch v. Levi 2015 ND 86
Docket No.: 20140419
Filing Date: 4/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming a Department of Transportation hearing officer's decision to suspend driving privileges for 180 days is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of M.T. (CONFIDENTIAL) 2015 ND 85
Docket No.: 20150089
Filing Date: 4/22/2015
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).

Interest of D.V.A. (CONFIDENTIAL) (cross-ref 20030304, 20080319, 20100091) 2015 ND 84
Docket No.: 20140384
Filing Date: 4/15/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Orders denying request for discharge from civil commitment as a sexually dangerous individual are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Curtiss v. State 2015 ND 83
Docket No.: 20140365
Filing Date: 4/15/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of Hoff (cross-reference w/ 20120248, 20130216 & 20130323) 2015 ND 82
Docket No.: 20140424
Filing Date: 4/15/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court's findings of fact and order denying discharge and order for continued commitment are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Keller v. N.D. Dep't of Transportation 2015 ND 81
Docket No.: 20140341
Filing Date: 4/9/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the approved method for conducting the test has been scrupulously followed.
When there is a deviation from the approved method that affects the test's scientific accuracy or reliability and there is no expert witness testimony on the effect, the test has not been fairly administered.

State v. Trimble 2015 ND 80
Docket No.: 20140349
Filing Date: 4/8/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Revocation of the defendant's probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Pegg v. Kohn, et al. 2015 ND 79
Docket No.: 20140202
Filing Date: 4/2/2015
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A partnership agreement may be oral.
A party who has substantially performed the duties imposed upon him under a contract may recover for a breach of the contract because substantial performance is sufficient consideration to make the contract binding between the parties.

Ruddell v. State 2015 ND 78
Docket No.: 20140413
Filing Date: 4/1/2015
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).

Service Oil, Inc., et al. v. Gjestvang, et al. 2015 ND 77
Docket No.: 20130366
Filing Date: 3/30/2015
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: No damages can be recovered for a breach of contract if not clearly ascertainable in both nature and origin.
The gist of conversion is not in acquiring the complainant's property, but in wrongfully depriving him of it, whether temporarily or permanently, and it is of little relevance that the converter received no benefit from such deprivation.
A fraud or deceit which caused no injury cannot be the basis for an action.

Jordet v. Jordet, et al. 2015 ND 76
Docket No.: 20140221
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Conversion is the wrongful exercise of dominion or control over property inconsistent with or in defiance of the rights of the owner.
Abuse of process occurs when a person uses a legal process against another primarily to accomplish a purpose for which it is not designed.

City of Napoleon v. Kuhn 2015 ND 75
Docket No.: 20140134
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: In reviewing the sufficiency of the evidence to convict, an appellate court looks only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see whether there is substantial evidence to warrant a conviction.
Appellate review of a criminal sentence is generally confined to whether the district court acted within the sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.

State, et al. v. Lavallie 2015 ND 74
Docket No.: 20140328
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A child support order issued by another state, not challenged within 20 days of being registered for enforcement in this state, is confirmed by operation of law.

Jordet v. Jordet (cross-ref w/20120185) 2015 ND 73
Docket No.: 20140232
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The appealability of an order will be considered even if neither party raises the issue on appeal.
An interlocutory order is not a final, appealable order, and an appeal from an interlocutory order will generally be dismissed.

State v. Dahl 2015 ND 72
Docket No.: 20140216
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Probable cause to support the issuance of a search warrant for a defendant's luggage is reviewed under the "totality of the circumstances."
Probable cause to search exists if the facts and circumstances relied on by a magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.

Interest of Johnson (cross-reference w/20120364) 2015 ND 71
Docket No.: 20140366
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: For civil commitment as a sexually dangerous individual, substantive due process requires proof that the individual has serious difficulty controlling his behavior.
The district court must specifically state the facts on which it relied to determine an individual has serious difficulty controlling his behavior.

Hankey v. Hankey 2015 ND 70
Docket No.: 20140350
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Whether a moving party has established a prima facie case for a modification of primary residential responsibility is a question of law reviewed under the de novo standard of review.
When determining whether a prima facie case has been established justifying a modification of residential responsibility, the district court must accept the moving party's allegations as truth, and may not weigh conflicting allegations.

Lavallie v. Lavallie 2015 ND 69
Docket No.: 20140306
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A state district court and a tribal court may have concurrent subject-matter jurisdiction to determine an obligor's child support obligation.

State v. Owens (consolidated w/20140143) 2015 ND 68
Docket No.: 20140142
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Analysis of a speedy trial claim requires balancing the length of a delay, the reason for the delay, a proper assertion of the right to a speedy trial, and actual prejudice to the accused.
In a criminal prosecution, the State must disclose information or documents that are in the State's possession, custody, or control, or that the State could have obtained through reasonable diligence if the prosecution intends to use the items in its case-in-chief, or the item is material to preparing a defense.
A prosecutor may question a defendant's credibility during final argument to a jury by arguing the defendant's presence during trial allowed the defendant to listen to the other witnesses' testimony before testifying.

Holkesvig v. Rost, et al. 2015 ND 67
Docket No.: 20140399
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A continued and clear pattern of bringing frivolous and repetitious litigation may result in a requirement of prior approval for commencing further actions.

State v. Steen 2015 ND 66
Docket No.: 20140160
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Even if there was a pretrial motion, failure to object at trial waives the claim of error unless it amounts to an obvious error affecting the substantial rights of the defendant.
A trial court does not err in admitting photographic evidence of a murder victim if the photos are evidence showing concealment and decay of the body under a charge of hindering law enforcement.

Eggers v. Eggers 2015 ND 65
Docket No.: 20140165
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A parent with primary residential responsibility does not need court approval to change the primary residence of the child to another state when the other parent has moved outside the state and lives more than fifty miles from the residence of the parent with primary residential responsibility. The parent need not change legal residence for waiver of a court order, only move outside the state.

State v. Barnes 2015 ND 64
Docket No.: 20140159
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A voluntary guilty plea waives all non-jurisdictional defects alleged to have occurred prior to the guilty plea, including alleged violations of constitutional rights.

Rencountre v. State (cross-ref. w/20110157) 2015 ND 62
Docket No.: 20140197
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Proof of ineffective assistance of counsel based on an attorney's failure to file a pretrial suppression motion requires the defendant prove he would have prevailed on his motion to suppress and that there is a reasonable probability a successful motion would have affected the outcome of the trial.
Proof of ineffective assistance of counsel based on an attorney's failure to request a second mental health examination requires the defendant show that a second evaluation would have benefited him or that the result of the proceedings would have been different if he had received another evaluation.
A party cannot complain about legal errors which are to their benefit, rather than to their prejudice.

State v. Berg (consolidated w/ 20140176) 2015 ND 61
Docket No.: 20140175
Filing Date: 3/24/2015
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A party who voluntarily pleads guilty, knowingly waives a previously raised factual dispute regarding the statute of limitations.

Irwin, et al. v. City of Minot 2015 ND 60
Docket No.: 20140217
Filing Date: 3/24/2015
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A police power taking of property by a public entity in a sudden emergency requires the entity show there was an actual necessity to take the property to prevent the imminent peril.

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).