Opinions

Olsen v. State 2014 ND 173
Docket No.: 20140009
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: When the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance for purposes of an ineffective assistance of counsel claim.

Interest of T.R.C. (CONFIDENTIAL) 2014 ND 172
Docket No.: 20140206
Filing Date: 8/28/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: An appellate court cannot properly review a decision if the trial court does not provide an adequate explanation of the basis for its decision.

Rath v. Rath (cross-ref. w/20130025, 20130184 & 20130327) 2014 ND 171
Docket No.: 20140012
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decision on whether a contempt has been committed and remedial sanctions are warranted lies within its sound discretion, which will not be overturned on appeal unless there is a clear abuse of discretion.
Due process requires a party receive adequate notice and a fair opportunity to be heard. A fair hearing requires reasonable notice or opportunity to know of the claims of opposing parties, and the opportunity to rebut those claims.

Krueger v. Grand Forks County 2014 ND 170
Docket No.: 20130372
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: When parties move to compel discovery, they are required to include certification that they have in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.
A party has a duty to supplement its responses to interrogatories if the response is incomplete or incorrect, and supplemental responses must be made within a reasonable time before trial.

S.L.W. v. Huss 2014 ND 169
Docket No.: 20130425
Filing Date: 8/28/2014
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Under the hearsay exception for a child's statement about sexual abuse, if a child is unavailable as a witness there must be "corroborative evidence of the act which is the subject of the statement," in addition to guarantees of trustworthiness, for the statement to be admissible in a civil proceeding.

Disciplinary Board v. Kellington (Consolidated w/ 20140081) 2014 ND 168
Docket No.: 20140080
Filing Date: 8/28/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: After misconduct has been established, a hearing panel may, but is not required to consider mitigating factors when deciding what sanction to impose on a lawyer.
To revoke a lawyer's probation which has been implemented in a prior disciplinary proceeding, the violation must be proven by a preponderance of the evidence.

Interest of C.S.K. (Confidential) (consolidated w/ 20140234, 20140235) 2014 ND 167
Docket No.: 20140205
Filing Date: 8/6/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

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

State v. Klein (cross-referenced w/20000285 & 20130139) 2014 ND 166
Docket No.: 20140001
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A sentencing court may correct an illegal sentence at any time.
A sentence is illegal when it exceeds the maximum term authorized by statute.
A sentencing court has continuing power to modify the conditions of probation.

State v. Stewart 2014 ND 165
Docket No.: 20130374
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The exigent circumstances or emergency exception to the warrant requirement is satisfied only if the police have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
The inevitable discovery doctrine does not apply when the warrant requirement is simply bypassed without exigent circumstances.

State v. Yarbro 2014 ND 164
Docket No.: 20130311
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: After the denial of a pretrial motion to exclude evidence, the party must renew the objection to the admission of the evidence at trial, and the failure to object at trial is a waiver.
When a defendant moves for a new trial, the defendant is limited on appeal to the grounds presented in the district court in the motion for a new trial.
A juror may not testify about statements occurring during the course of a jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information by the jury or improper outside influence.

Inwards v. WSI 2014 ND 163
Docket No.: 20140015
Filing Date: 7/31/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: On a showing of good cause, a court may grant appropriate relief if electronic filing or electronic service was not completed due to technical problems.
Generally, the decision of an administrative agency, as to a matter within its power, is operative during the disposition of proceedings until stayed, reversed or suspended, even if that order is erroneously or improvidently granted.

State v. Gatlin 2014 ND 162
Docket No.: 20140083
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A house guest who is not present and does not flatly refuse a search at the time another individual with actual or apparent authority consents loses out on his opportunity to exclude evidence gathered in a search of the area in which the guest had a reasonable expectation of privacy.
Apparent authority exists where a person of reasonable caution would believe, on the basis of the facts available to the officer at the time of consent, that the consenting party had authority over the place or thing to be searched.

Haynes v. Dep't of Transportation 2014 ND 161
Docket No.: 20140047
Filing Date: 7/31/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The license of a person licensed in another state may still be revoked for refusing to submit to BAC testing if there is a delay in issuing the temporary operator's permit and the person is not prejudiced by the delay.
Personal service is not required for issuance of a temporary operator's permit.
The issuance of a temporary operator's permit to a person who refused testing is a basic and mandatory requirement of N.D.C.C. 39-20-03.2.

Travelers Cas. Ins. Co. of America, et al. v. Williams Co. Construction, et al. 2014 ND 160
Docket No.: 20140020
Filing Date: 7/31/2014
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.
A motion for a new trial based on a claim of insufficient evidence is reviewed under the abuse of discretion standard.

State v. Brenny 2014 ND 159
Docket No.: 20140013
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving under the influence of alcohol summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Frank v. N.D. Dep't of Transportation 2014 ND 158
Docket No.: 20140082
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Certain foundational elements must be shown, by some form of evidence, in order to admit an analytical report under N.D.C.C. 39-20-07.
Evidence on the record must show the methods, devices, and individual administering analytical tests were approved by the director of the state crime laboratory or the director's designee.

Dickinson Education Association v. Dickinson Public School District 2014 ND 157
Docket No.: 20130350
Filing Date: 7/19/2014
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: VandeWalle, Gerald

Highlight: A petitioner seeking a writ of mandamus must show a clear legal right to performance of the particular act sought to be compelled by the writ. Whether to issue a writ of mandamus is left to the district court's sound discretion.
A school district may unilaterally issue a last-offer contract, but the last-offer contract is limited to contractual provisions for only the one school year under negotiation and may not contain provisions applicable to future school years.

State v. Ratliff (consolidated w/ 20130341 & 20130346) 2014 ND 156
Docket No.: 20130332
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: Denial of a motion for new trial is reviewed under the abuse of discretion standard.
Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial.

Gullickson v. State 2014 ND 155
Docket No.: 20130397
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.
Courts need not address both elements of the ineffective assistance of counsel test, and if a court can dispose of the case by addressing only one element, it imay do so.
Whether the failure to notify a client that a charge was improperly entered constitutes prejudice is subject to a fact-specific analysis of what happened.
An attorney's not filing a motion to suppress evidence discovered upon execution of a search warrant is ineffective assistance of counsel only if the attorney's representation fell below an objective standard of reasonableness constituting prejudice.

State v. Boehm 2014 ND 154
Docket No.: 20140045
Filing Date: 7/19/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The statutory requirements to request a preliminary breath test are: (1) a traffic violation has occurred; and (2) in conjunction with the violation, the officer, on the basis of observation, formulates an opinion the driver's body contains alcohol.
Probable cause to arrest an individual for DUI exists when the officer smells an odor of alcohol coming from the vehicle; observes the individual's red, bloodshot, watery eyes; the individual admits to consuming alcoholic beverages; and the individual fails a sobriety test.
The voluntariness of consent is a finding of fact.
Consent is not coerced because a law enforcement officer advised an individual of the implied consent law.
A blood test is not unreasonable because it was conducted in a place other than a hospital.

State v. Rahier (Consolidated w/ 20140041) 2014 ND 153
Docket No.: 20140004
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: A law enforcement officer may have reasonable and articulable suspicion for investigatory stop when observing a vehicle circling an area coupled with an additional factor that indicates criminal activity is afoot.

State v. Smith 2014 ND 152
Docket No.: 20130398
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: Consent is an exception to the warrant requirement.
The voluntariness of consent is determined under the totality of the circumstances.
An advisory, provided by a law enforcement officer, that informs an individual of the implied consent law, including the consequences of refusal, does not constitute per se coercion.

Baatz v. State (cross-reference w/20130066) 2014 ND 151
Docket No.: 20140018
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: In the absence of a specific instruction by the Supreme Court, an individual applying for postconviction relief is not entitled to an additional evidentiary hearing when the case is remanded to the district court.
A defendant has the burden of establishing he qualifies for appointment of counsel.
Issues not before the district court on remand will not be considered on appeal.

Dakota Heritage Bank v. Pankonin, et al. (cross-reference w/20120335) 2014 ND 150
Docket No.: 20140016
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Notice of entry of judgment that is not properly served does not start the period for filing an appeal.
A judgment is not enforceable until notice of entry of judgment is properly served or the party it is being enforced against has actual knowledge of entry of the judgment.

Shae v. Shae 2014 ND 149
Docket No.: 20130282
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may deviate upward from the presumptively correct child support guidline amount when an obligor that earns more than $12,500 per month.
The presumptively correct amount of child support is rebutted if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children. Findings must support the specific upward deviation, rather than applying a straight percentage of the obligor's monthly income.
Net income received by an obligor from all sources must be considered in the determination of available money for child support before the appropriate upward deviation may be determined.
Net income is calculated by determining an obligor's gross income and then allowing for deductions. Gross income includes income from any source, in any form.

Rustad v. Rustad (cross-reference w/20130105) 2014 ND 148
Docket No.: 20140014
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's decision on primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
A party may not present issues in a second appeal which were resolved in the first appeal or which would have been resolved had they been presented in the first appeal.

Higginbotham v. WSI, et al. 2014 ND 147
Docket No.: 20140019
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Whether a potential commute or relocation is unreasonably expensive cannot be determined when the employee has not yet searched for or been offered employment.
Functional limitations at the time the claimant was performing a job should be considered when determining whether an employment option presents an opportunity for substantial gainful employment.
When there is no evidence of a functional limitation during the development of a vocational rehabilitation plan, WSI should develop the plan without considering the alleged limitation.

Finstad, et al. v. Ransom-Sargent Water Users, Inc., et al. 2014 ND 146
Docket No.: 20130222
Filing Date: 7/19/2014
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: North Dakota law does not recognize the economic duress doctrine.
A provision of a contract must in and of itself be inherently illegal to be unlawful.

Nieuwenhuis v. Nieuwenhuis 2014 ND 145
Docket No.: 20130394
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Duress occurs when an individual acts as a result of coercion or when the individual's actions are involuntary.
A district court abuses its discretion by vacating only portions of a judgment.
Implied findings are insufficient for an award of attorney's fees.

Middleton v. State 2014 ND 144
Docket No.: 20130395
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To demonstrate prejudice in an ineffective assistance of counsel claim, the defendant must establish a reasonable probability that but for counsel's errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result.
A motion for new trial must specify the alleged defects and errors with particularity. The defendant must assert all alleged errors in a motion for new trial.
If a defendant moves for a new trial, he is limited on appeal to the grounds presented to the district court in the motion.
A per se presumption of prejudice is reserved to the narrow set of cases where counsel fails to perfect a requested appeal.

Estates of Vizenor and Vizenor v. Mesling, et al. 2014 ND 143
Docket No.: 20130161
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A power of attorney is a written instrument that authorizes one person to act as another person's agent. An agency created under a durable power of attorney also entails a confidential relationship and fiduciary duties.
When a confidential relationship or fiduciary duty exists, the person in whom the confidence is reposed is deemed to be a trustee. All transactions between a trustee and a beneficiary, including gifts, are presumed to be without sufficient consideration and under undue influence.
A presumption substitutes for evidence of the presumed fact until the trier of fact finds from credible evidence that the presumed fact does not exist.

Vetter v. State (cross-reference w/20120015) 2014 ND 142
Docket No.: 20140028
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Comes v. State 2014 ND 141
Docket No.: 20140068
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary disposition of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Towry 2014 ND 140
Docket No.: 20130423
Filing Date: 7/14/2014
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Reciprocal Discipline of Wynne 2014 ND 139
Docket No.: 20140227
Filing Date: 7/14/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Hering v. WSI, et al. 2014 ND 138
Docket No.: 20140030
Filing Date: 7/14/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative law judge's order, which affirmed WSI's order denying benefits to a claimant, is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Hann v. Disciplinary Board 2014 ND 137
Docket No.: 20140171
Filing Date: 7/2/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstated.

State v. Cook 2014 ND 136
Docket No.: 20140040
Filing Date: 6/27/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: An appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, the issue will not be reviewed.
When an appellant fails to comply with the rules of appellate procedure so that meaningful review of his issues is impossible, the appeal may be dismissed.

Matter of Emelia Hirsch Trust 2014 ND 135
Docket No.: 20130365
Filing Date: 6/26/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court has discretion to determine claims are frivolous and order payment of attorney's fees.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation evidencing bad faith.

State v. Rogers 2014 ND 134
Docket No.: 20130357
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Whether a suspect is in custody, and therefore entitled to Miranda warnings, is a mixed question of fact and law which is fully reviewable on appeal.
Law enforcement is required to give Miranda warnings only when a person is subject to custodial interrogation.
A suspect is not in police custody simply because he or she is under a medical hold and does not have the ability to leave the hospital.

Lund v. Lund, et al. (cross reference with 20120210) 2014 ND 133
Docket No.: 20130373
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: Whether an implied-in-fact contract existed between parties is a question of fact subject to the clearly erroneous rule.
Unjust enrichment is an equitable doctrine based upon a quasi or constructive contract implied by law to prevent a person from being unjustly enriched at the expense of another.

Mairs v. Mairs 2014 ND 132
Docket No.: 20130293
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Any issue regarding whether a prima facie case has been established for modification of primary residential responsibility is moot once an evidentiary hearing is held.
Although a separate finding is not required for each statutory best-interest factor, the court's findings must contain sufficient specificity to show the factual basis for the residential responsibility decision.

Pokrzywinski v. N.D. Dep't of Transportation 2014 ND 131
Docket No.: 20140043
Filing Date: 6/24/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A report and notice form that includes the driver crashed, an odor of alcoholic beverage was detected, and the driver admitted consuming alcohol may be sufficient to support an officer's reasonable grounds to believe a driver operated a motor vehicle while under the influence of intoxicating liquor.
Under the implied consent law, whether a driver was incapable of refusal is a question of fact.

State v. Cone 2014 ND 130
Docket No.: 20130236
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A district court has discretion in applying a remedy for a discovery violation, and a court's decision not to exclude evidence or impose another sanction does not constitute an abuse of discretion unless the defendant shows he was significantly prejudiced by the violation.
The admission of evidence the defendant previously moved to exclude is not reversible error if the defendant presented the evidence before the court ruled on the defendant's motion.

Herrman v. N.D. Dep't of Transportation 2014 ND 129
Docket No.: 20130338
Filing Date: 6/24/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Constitutional questions will not be decided on appeal if a dispute may be decided on other grounds.
Absent authority and a reasoned analysis to support it, the mere assertion of a statute's unconstitutionality is insufficient to adequately raise a constitutional question.
If an arrested person requests to consult with an attorney before deciding to take a chemical test, the person must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.

C&C Plumbing and Heating, LLP v. Williams County, et al. 2014 ND 128
Docket No.: 20130297
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: If a party fails to plead and adequately brief unconscionability to the district court, the issue will not be considered on appeal.
A no damages for delay clause exculpates an owner from liability for damages resulting from delays in the performance of the contractor's work.
Active interference is a well-recognized exception to the enforceability of a no damages for delay clause.
A district court's determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review.

Meier v. Meier 2014 ND 127
Docket No.: 20130353
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: A motion for relief from judgment must be made within a reasonable time.

Hale, et al. v. Ward County, et al. (cross-ref. w/20110171) 2014 ND 126
Docket No.: 20130348
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A private person may maintain an action for a public nuisance if the public nuisance is specially injurious to that person or that person's property, but not otherwise.
A public nuisance is specially injurious to a private person if the person suffers harm of a kind different from that suffered by other members of the public exercising a right subject to the interference and common to the general public.

Chisholm v. State 2014 ND 125
Docket No.: 20130406
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A district court may summarily deny a meritless application for post-conviction relief if the claims in the application are facially invalid.
An applicant for post-conviction relief must be given notice and an opportunity to present evidence supporting his application before the court dismisses his application relying on matters outside the application.

State v. Daniels 2014 ND 124
Docket No.: 20130339
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect.
To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from searching.