Opinions

Guardianship of P.T. (CONFIDENTIAL)(consolidated w/20140167-20140170) 2014 ND 223
Docket No.: 20140166
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: Although it is preferable for trial courts to prepare their own findings of fact, a trial court will not be reversed for adopting proposed findings prepared by counsel.
A correct result based on correct reasoning under the wrong law will not be reversed if the result would be the same under the correct law.

George v. George 2014 ND 222
Docket No.: 20140063
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A district court has permissive or non-mandatory authority to grant a restraining order if it finds reasonable grounds to believe a respondent has engaged in disorderly conduct.

Albrecht v. Albrecht 2014 ND 221
Docket No.: 20130392
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A party's death before entry of a final divorce judgment abates a divorce action.

Coss v. Levi 2014 ND 220
Docket No.: 20140211
Filing Date: 12/18/2014
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)(5).

Interest of D.C. 2014 ND 219
Docket No.: 20140416
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: An involuntary treatment with medication order is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Greybear v. State 2014 ND 218
Docket No.: 20140137
Filing Date: 12/18/2014
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).

Bentz v. State 2014 ND 217
Docket No.: 20140138
Filing Date: 12/18/2014
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).

Connelley v. Connelley 2014 ND 216
Docket No.: 20140214
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Appeal from amended divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Vivatson v. Haugen, et al. 2014 ND 215
Docket No.: 20140005
Filing Date: 12/18/2014
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).

Luger v. State 2014 ND 214
Docket No.: 20140106
Filing Date: 12/18/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Thorson v. State 2014 ND 213
Docket No.: 20140144
Filing Date: 12/18/2014
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).

Interest of B.B.P. (Confidential)(consolidated w/20140375 & 20140376) 2014 ND 212
Docket No.: 20140374
Filing Date: 12/18/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Nguyen (cross-ref. w/20130159) 2014 ND 211
Docket No.: 20140183
Filing Date: 11/26/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A district court order deferring imposition of sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Nilles, Ilvedson, Plambeck & Selbo, Ltd., v. Langer 2014 ND 210
Docket No.: 20140212
Filing Date: 11/20/2014
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An order denying relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

State v. Yost (consolidated w/20140070 & 20140071) 2014 ND 209
Docket No.: 20140067
Filing Date: 11/12/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Sentencing is a critical stage at which a defendant is entitled to effective assistance of counsel.
A defendant's conduct may be the functional equivalent of a voluntary waiver of the right to counsel.
A trial court should make an on-the-record determination that the defendant voluntarily, knowingly, and intelligently waived the right to counsel to eliminate any ambiguity.

Harvey v. Harvey 2014 ND 208
Docket No.: 20140084
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court does not necessarily err by failing to find a primary caretaker of a child.
Reservation of jurisdiction to award spousal support is appropriate where a spouse is disabled, has a lower income than the other spouse, and has a slim chance of substantially increasing his or her income.

State v. Leppert 2014 ND 207
Docket No.: 20140087
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A noncriminal traffic case may not be appealed to the Supreme Court.

State v. Reddig 2014 ND 206
Docket No.: 20140123
Filing Date: 11/5/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: District court judgment denying motion to withdraw guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matter of Aune 2014 ND 205
Docket No.: 20140042
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order civilly committing an individual as a sexually dangerous offender is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Ayala v. State 2014 ND 204
Docket No.: 20140140
Filing Date: 11/12/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Jones 2014 ND 203
Docket No.: 20140100
Filing Date: 11/12/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Criminal judgment for possession of a controlled substance with intent to deliver within 1,000 feet of a school and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Murphy 2014 ND 202
Docket No.: 20140079
Filing Date: 11/5/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A district court is allowed a wide range of discretion in fixing a criminal sentence. Appellate review of a criminal sentence is generally confined to whether the district court acted within the sentencing limits set by statute, or substantially relied upon an impermissible factor.
A district court's interpretation of a statute in sentencing a defendant may be reviewed under limited circumstances.

Capps, et al. v. Weflen, et al. (cross-ref. w/20120184) 2014 ND 201
Docket No.: 20140110
Filing Date: 10/31/2014
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Under the abandoned mineral statutes, a surface owner is required to conduct a reasonable inquiry only if the mineral owner's address does not appear of record, even if the surface owner knows the mineral owner whose address appears of record is deceased.
The notice provisions of the abandoned mineral statutes are constitutional under the due process clause.

Northstar Founders, LLC v. Hayden Capital USA, LLC, et al. 2014 ND 200
Docket No.: 20130245
Filing Date: 10/31/2014
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The district court has personal jurisdiction over a nonresident defendant if the nonresident defendant committed a tort within or outside the state causing injury to another person or property within the state and the exercise of personal jurisdiction comports with due process.
The exercise of personal jurisdiction over a nonresident defendant comports with due process if the defendant purposely directed his activities at residents of the state and the litigation results from alleged injuries arising out of or related to those activities.
Whether a contract is ambiguous is a question of law, but if the contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent and the interpretation becomes a question of fact.
A third party may benefit from a contractual arrangement between others, but a party fails to establish an unjust enrichment claim against the third party if the alleged impoverishment results from a valid contractual arrangement.
A decision is final for purposes of collateral estoppel if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court.

Wilson v. Wilson 2014 ND 199
Docket No.: 20140037
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The district court may order past child support covering a period when the parties are separated but divorce proceedings are not pending.
The district court may, but is not required to, apply the child support guidelines to determine the reasonable amount of past child support to order a party pay as reimbursement for a period when there is not a court order for support and a proceeding is not pending.
A child support obligor's military subsistence payments, including amounts for overseas cost of living and housing allowances, are gross income for child support purposes.

State v. Schneider 2014 ND 198
Docket No.: 20140153
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A law enforcement officer's following with flashing lights a moving vehicle constitutes a pursuit, which constitutes a seizure under the Fourth Amendment. No seizure occurs if the defendant does not move his vehicle and the officer does not pursue him with flashing lights.

MKB Management Corp, et al. v. Burdick, et al. 2014 ND 197
Docket No.: 20130259
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Constitutional Law
Author: Per Curiam

Highlight: The concurrence of four of the five justices of the North Dakota Supreme Court is necessary to declare a statute unconstitutional.
H.B. 1297, relating to the regulation of abortions, is not declared unconstitutional by a sufficient majority.

Interest of J.A.H. (Consolidated w/20140146) 2014 ND 196
Docket No.: 20140145
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Juvenile Law
Author: McEvers, Lisa K. Fair

Highlight: When a juvenile court provides insufficient findings to review, jurisdiction may be retained under N.D.R.App.P. 35(a)(3) and the case remanded with instructions that the juvenile court make expedited findings of fact.

State v. Fetch 2014 ND 195
Docket No.: 20140129
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A driver who has refused a chemical test but later changes his mind and consents to the test can cure the prior refusal.
Consent to a chemical test is not coerced and is not rendered involuntary merely by a law enforcement officer's reading of the implied consent advisory that accurately informs the arrestee of the consequences for refusal, including the criminal penalty, and presents the arrestee with a choice.

Interest of G.L.D. (CONFIDENTIAL) (cross-reference w/20100230 & 20120175) 2014 ND 194
Docket No.: 20140034
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: In proceedings for commitment of a sexually dangerous individual, the committed individual has a right to obtain individually identifiable health information and any confidential records provided to the state's attorney.
A district court has broad discretion regarding the scope of discovery in a civil proceeding, and its discovery decision will not be reversed on appeal absent an abuse of discretion.

State v. Patterson 2014 ND 193
Docket No.: 20140048
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: While a prosecutor's improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none, inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.
When a district court's curative instructions, the weight of the other evidence against the defendant, and overall lack of substantial prejudice show a lack of an adverse effect on a defendant's right to a fair trial, reversal under the obvious error doctrine is not warranted.

Desert Partners IV, L.P., et al. v. Benson, et al. 2014 ND 192
Docket No.: 20140066
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: The N.D. Rules of Court are ambiguous as to whether facsimile transmission is an acceptable method of filing for self-represented litigants.
A district court violates N.D.R.Ct. 3.2 when it holds a mandatory hearing requested under N.D.R.Ct. 3.2(a)(3) without giving parties notice of the hearing.

State v. Everett (Cross-ref.w/20070074, 20080063, 20090244, 20100222, 20100392) 2014 ND 191
Docket No.: 20140102
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: An order denying a petition alleging abuse of process and violation of due process in a criminal conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6) and (7).

State v. Tosseth 2014 ND 190
Docket No.: 20140098
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A district court denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4) and (7).

State v. Tveito 2014 ND 189
Docket No.: 20140075
Filing Date: 10/28/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court denial of a motion to suppress the results of a blood-alcohol test is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Tveito v. N.D. Dep't of Transportation 2014 ND 188
Docket No.: 20140132
Filing Date: 10/28/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: A district court judgment affirming a Department of Transportation hearing officer's order suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5), (7).

Ruddell v. State (cross reference with 20120369) 2014 ND 187
Docket No.: 20140073
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Pankowski v. State 2014 ND 186
Docket No.: 20140094
Filing Date: 10/28/2014
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).

Hamilton, et al., v. Woll, et al. (cross-ref. w/20120269) 2014 ND 185
Docket No.: 20140011
Filing Date: 10/28/2014
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A judgment construing deeds and quieting title is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 1, Northeast Central Judicial District (cross ref. 352) 2014 ND 184
Docket No.: 20140310
Filing Date: 10/21/2014
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeships retained at Grand Forks.

Matter of Carter (CONFIDENTIAL) 2014 ND 183
Docket No.: 20140335
Filing Date: 10/2/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer transferred to incapacitated status.

Crocker, et al. v. Morales-Santana, et al. 2014 ND 182
Docket No.: 20140021
Filing Date: 9/29/2014
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: A motor carrier may be vicariously liable for the negligence of its statutory employees.
An employer may be liable for an independent contractor's work if the employer retains control over the independent contractor's work.

Rasnic v. ConocoPhillips Co., et al. 2014 ND 181
Docket No.: 20140032
Filing Date: 9/26/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A mortgage is a contract and is construed under rules of contract interpretation.
Written contracts are construed to give effect to the parties' mutual intentions when the contract was executed, and the parties' mutual intentions must be ascertained from the writing alone, if possible.

State v. Ostby 2014 ND 180
Docket No.: 20130411
Filing Date: 9/23/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: An order denying a suppression motion is not appealable in itself, but is reviewable in an appeal from the subsequently entered criminal judgment.
Traffic violations, even if pretextual, provide a lawful basis to conduct an investigatory vehicle stop, and evidence discovered during those stops is admissible.
Unless a criminal defendant shows bad faith on the part of law enforcement, failure to preserve potentially useful evidence does not violate the defendant's due process rights.

Golden Eye Resources, LLC v. Ganske, et al. 2014 ND 179
Docket No.: 20130219
Filing Date: 9/23/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: If a party's apparent free consent to a contract has been obtained by fraud, the defrauded party may rescind the contract.
The parol evidence rule does not apply when a party alleges to have been fraudulently induced to enter into a contract, and parol or extrinsic evidence is admissible to prove fraud.
Statements of opinion, sales talk, or puffery do not constitute fraud, but the making of an affirmative statement of fact, known to be untrue, with intent to induce another to enter into a contract is actionable fraud.
The making of a promise with no intention of performing it with intent to induce another to enter into a contract is actual fraud which nullifies free consent to the contract.
Whether a party is entitled to a jury trial in a rescission action depends upon whether it is an action at law or a claim in equity.

Interest of Voisine (cross-ref. w/20090182, 20100163 & 20120325) 2014 ND 178
Docket No.: 20140051
Filing Date: 9/23/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

State v. Grzeskowiak (cross reference w/20130396) 2014 ND 177
Docket No.: 20140126
Filing Date: 9/23/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Denial of a motion for an extension of time to file an appeal of a criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Disciplinary Board v. Meidinger 2014 ND 176
Docket No.: 20140131
Filing Date: 9/18/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Western Horizons Living Centers v. Feland, et al. 2014 ND 175
Docket No.: 20140184
Filing Date: 9/2/2014
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: VandeWalle, Gerald

Highlight: The Supreme Court exercises discretionary authority to issue supervisory writs rarely and cautiously to rectify errors and prevent injustice in extraordinary cases in which no adequate alterative remedy exists.
Before compelling discovery, a district court must conduct an in camera review of information which, on its face, raises claims involving lawyer-client privilege or communications during settlement negotiations.

Lindsey v. State 2014 ND 174
Docket No.: 20140036
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The affirmative defense of laches, when properly raised and supported, presents a question of fact and is inappropriate for a district court to decide on summary judgment.
When a post-conviction relief applicant seeks to withdraw a guilty plea, the district court looks to whether relief is necessary to correct a manifest injustice.