Opinions

Knorr, et al. v. Norberg, et al. 2014 ND 74
Docket No.: 20130084
Filing Date: 4/9/2014
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A long-term lease with an option to purchase real property ordinarily requires a signed written agreement.
To take a contract out of the statute of frauds, the party seeking to enforce the oral contract must establish part performance that is consistent only with the existence of the alleged oral contract.
Promissory estoppel and constructive trust involve questions of fact subject to the clearly erroneous standard of review.

Matter of D.J.D. (CONFIDENTIAL) 2014 ND 73
Docket No.: 20140076
Filing Date: 4/9/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights and granting petition for adoption summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Finstad, et al. v. Gord, et al. 2014 ND 72
Docket No.: 20130342
Filing Date: 4/8/2014
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Extrinsic evidence is inadmissible to vary the terms of an unambiguous quitclaim deed which has been delivered and recorded.
When a party has no interest in a parcel of land, that party does not have standing to challenge the validity of another party's title to the land.

Stenehjem, ex rel. v. National Audubon Society, Inc. 2014 ND 71
Docket No.: 20130279
Filing Date: 4/8/2014
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Laches, as an affirmative defense, may in limited circumstances be applied against the government. Whether laches applies against the government is determined on a case-by-case basis with a careful weighing of the inequities that would result if the doctrine is not applied versus the public interest at stake and the resulting harm to the public interest if laches is applied.
Identical and conflicting presumptions balance and cancel each other out. Whether a presumption arises and whether a presumption has been rebutted are questions of fact governed by the clearly erroneous standard of review.

Lind v. Lind 2014 ND 70
Docket No.: 20130296
Filing Date: 4/8/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The party seeking modification of spousal support bears the burden of proving there has been a material change in the financial circumstances warranting a change in the amount of support.
A remedial sanction for contempt requires a willful and inexcusable intent to violate a court order.
Contempt of court includes intentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer.

Law v. Whittet, et al. 2014 ND 69
Docket No.: 20130241
Filing Date: 4/7/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Although not required to make a separate finding on each best interest factor or to address each minute detail presented in the evidence when determining primary residential responsibility, the district court may not wholly ignore and fail to acknowledge or explain significant evidence clearly favoring one party.
Domestic violence includes violence directed at any member of a household or family.
Domestic violence, even if not directed at the child, is presumed to affect the best interests of the child.

Topolski v. Topolski 2014 ND 68
Docket No.: 20130276
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court has substantial discretion in deciding primary residential responsibility, but the court must consider all of the applicable best interest factors.
A court's findings of fact are sufficient if they afford a clear understanding of the court's decision and assist the appellate court in conducting its review.
If the previous primary residential responsibility placement was based on a stipulation, the district court must consider all relevant evidence, including pre-divorce conduct and activities, when determining whether to modify primary residential responsibility.

JPMorgan Chase Bank v. Skoda, et al. 2014 ND 67
Docket No.: 20130370
Filing Date: 3/3/2014
Case Type: Appeal - Civil - Foreclosure
Author: McEvers, Lisa K. Fair

Highlight: All relevant facts are admitted when a party fails to respond to a request for admissions.
Submitting exhibits that are consistent with those exhibits submitted by the party moving for summary judgment and mere allegations do not evidence there is a genuine issue of material.

Erickson v. Olsen, et al. 2014 ND 66
Docket No.: 20130217
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court's determinations regarding mental capacity and undue influence are questions of fact subject to the clearly erroneous standard of review.

State v. Zeller 2014 ND 65
Docket No.: 20130290
Filing Date: 4/3/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: When a warrant application seeks authorization for a nighttime search, an additional showing of probable cause is required for the nighttime authorization.
Probable cause for a nighttime search exists upon a showing that the evidence sought may be quickly and easily disposed of if the warrant is not promptly executed.
Mere allegations about the presence of drugs does not lead to the inference that the drugs are easily disposable.

Estate of Wicklund (cross-reference w/20110081) 2014 ND 64
Docket No.: 20130181
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: A personal representative may be reimbursed for payment of a decedent's funeral and last illness expenses.
A personal representative may be entitled to attorney fees and expenses incurred in making claims to effectuate a testator's intent.

Interest of Hoff (cross-ref. w/20120248 & 20130216) 2014 ND 63
Docket No.: 20130323
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: The district court must make findings on each element of the sexually dangerous individual analysis, including the consideration of whether an individual has difficulty controlling his behavior.

Disciplinary Board v. Overboe (Consol. w/ 20130304-20130306) 2014 ND 62
Docket No.: 20130303
Filing Date: 4/3/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A long delay between a petition for discipline and the disciplinary hearing must destroy the fundamental fairness of the entire disciplinary process to warrant dismissal of the disciplinary case.
In disciplinary proceedings, an attorney must present sufficient evidence establishing an inability to assist in his defense owing to mental or physical incapacity to be transferred to disability inactive status.

Anderson v. Lyons, et al. 2014 ND 61
Docket No.: 20130284
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Landlord/Tenant
Author: VandeWalle, Gerald

Highlight: Service of notice of entry of judgment is not required to begin the time for filing a post-judgment motion or appeal if the record clearly evidences actual knowledge of entry of judgment through affirmative action of the moving or appealing party.
No lease or grant of agricultural land reserving any rent or service of any kind for a period longer than ten years is valid.
A lease of agricultural land in perpetuity with contingencies that may terminate the lease within ten years is not invalid.

Risovi v. Job Service 2014 ND 60
Docket No.: 20130302
Filing Date: 4/3/2014
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: McEvers, Lisa K. Fair

Highlight: A fact finder's conclusions that false statements were made for the purpose of obtaining unemployment benefits are affirmed if a reasoning mind could have determined that the factual conclusions were proved by the weight of the evidence.

State v. Johnson (cross ref. w/20130137 - briefs not published) 2014 ND 59
Docket No.: 20130336
Filing Date: 4/3/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment entered after a defendant conditionally pled guilty to possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Silva 2014 ND 58
Docket No.: 20130266
Filing Date: 4/3/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Convictions of gross sexual imposition and continuous sexual abuse of a child are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Holkesvig v. Grove (cross reference w/ 20120169 & 20120225) 2014 ND 57
Docket No.: 20130176
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Res judicata and collateral estoppel bar courts from relitigating claims and issues.
Although a district court is generally divested of jurisdiction over a case when a notice of appeal is filed, the court retains jurisdiction over certain collateral matters, including the court's inherent authority or power to control its docket.

Regan v. Lervold 2014 ND 56
Docket No.: 20130200
Filing Date: 4/3/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The party moving for modification of primary residential responsibility has the burden of proving a material change in circumstances has occurred.
A material change in circumstances is an important new fact not known at the time of the prior custody decree, but not every change will be sufficient to warrant a change of custody.

Vacancy in Judgeship No. 8, SCJD 2014 ND 55
Docket No.: 20140108
Filing Date: 3/31/2014
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Supreme Court takes judicial notice of prior proceeding and orders judgeship retained and filled according to law.

Vacancy in Judgeship No. 4, NCJD 2014 ND 54
Docket No.: 20140065
Filing Date: 3/26/2014
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained in Minot.

Hector v. City of Fargo 2014 ND 53
Docket No.: 20130223
Filing Date: 3/20/2014
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: An appeal from a decision imposing special assessments provides an adequate legal remedy for challenging special assessments, and a separate action for equitable relief generally will not lie for issues that are raised or could have been raised in the appeal.
Res judicata precludes relitigation of claims that were raised, or could have been raised, in prior actions between the same parties and means a valid, existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised or those that could have been raised in the prior action.

Union Bank v. Tarnavsky, et al. (consol. w/20130387; cross-ref. w/ 20110061) 2014 ND 52
Docket No.: 20130250
Filing Date: 3/14/2014
Case Type: Appeal - Civil - Foreclosure
Author: McEvers, Lisa K. Fair

Highlight: Orders denying motions for relief under N.D.R.Civ.P. 60(d)(1) and a judgment dismissing a cross-claim in a foreclosure case are summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Haugland v. City of Bismarck (cross ref. 20110077) 2014 ND 51
Docket No.: 20130100
Filing Date: 3/14/2014
Case Type: Appeal - Civil - Tax Realted
Author: Crothers, Daniel John

Highlight: Summary judgment is inappropriate when one can draw reasonable inferences that support the positions of both sides in a controversy and a fact-finder could draw negative inferences from the absence of documentation or records in a case.
A renewal project is authorized when it is included in a municipality's duly adopted renewal plan, and the municipality may thereafter request diversion of tax increment financing funds from the normal property tax recipients until the municipality determines the cost of renewal of the area has been paid.

Judicial Conduct Commission v. Corwin 2014 ND 50
Docket No.: 20130328
Filing Date: 3/14/2014
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: In a judicial disciplinary proceeding, whether a judge's conduct constituted sexual harassment as defined under federal or state laws is not a relevant inquiry.
The Supreme Court may suspend a judge without pay and assess costs against him for violations of the Code of Judicial Conduct.

Rodriguez v. N.D. State Penitentiary, et al. 2014 ND 49
Docket No.: 20130335
Filing Date: 3/11/2014
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: McEvers, Lisa K. Fair

Highlight: An appeal regarding calculation of eligibility for parole becomes moot when the defendant becomes eligible for parole.

Potratz v. N.D. Dep't of Transportation 2014 ND 48
Docket No.: 20130322
Filing Date: 3/11/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Repeating the inclusion of the date within the test result portion of an officer's certified report to the Department is not necessary to satisfy the statute.
Inclusion of the percent symbol and BRAC after the numerical test result within the test result portion of a deputy's certified report to the Department does not disqualify an otherwise valid test result that satisfies the statute.
Once an analytical report is accepted by the administrative hearing officer, the burden shifts to the defendant to rebut the prima facie fairness and accuracy of the analytical report.

Fossum v. N.D. Dep't of Transportation 2014 ND 47
Docket No.: 20130310
Filing Date: 3/11/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: When a person voluntarily consents to to testing, it is unnecessary to arrest and inform an individual of the reasons for arrest prior to chemical testing under the implied consent.

State v. Vandermeer 2014 ND 46
Docket No.: 20130265
Filing Date: 3/11/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: As an exception to the hearsay rule, a person may testify as to his or her age and date of birth.
When the criminality of conduct depends on a child's being below the age of fifteen, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than the age of fourteen.

Vandal v. Leno 2014 ND 45
Docket No.: 20130301
Filing Date: 3/11/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: In deciding a primary residential responsibility, the district court must consider all the best interest of the child factors. A separate finding for each factor is not required, but the findings must be sufficiently specific to show the factual basis for the decision.
The district court has broad discretion in permitting, or refusing to permit, a party to reopen a case to introducie additional proof after that party has rested.

Disciplinary Board v. Howe 2014 ND 44
Docket No.: 20130299
Filing Date: 3/11/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court may exercise jurisdiction over disciplinary matters arising from federal immigration proceedings involving a North Dakota lawyer.

State v. Benson 2014 ND 43
Docket No.: 20130179
Filing Date: 3/11/2014
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of continuous sexual abuse of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Coppage v. State (cross reference w/20070304, 20110076, & 20120267) 2014 ND 42
Docket No.: 20130180
Filing Date: 3/11/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Attempted murder under circumstances manifesting an extreme indifference to the value of human life is not a cognizable offense.
Obvious error may be noticed by the Court on its own motion.
Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.

Osier v. State 2014 ND 41
Docket No.: 20130226
Filing Date: 3/11/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To meet the prejudice prong of the Strickland ineffective assistance of counsel test, the defendant bears the heavy burden of establishing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Peterson, et al. v. Jasmanka, et al. 2014 ND 40
Docket No.: 20130162
Filing Date: 2/21/2014
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The statutory procedure in N.D.C.C. ch. 38-18.1 allowing a surface owner to acquire abandoned minerals is a separate, distinct procedure from a subsequent quiet title action.
An alleged error in service of the notice of lapse of mineral interest upon the owner of record under N.D.C.C. 38-18.1-06(2) does not deprive the district court of personal jurisdiction in a subsequent quiet title action.
The one-year time to bring a motion for relief from judgment under N.D.R.Civ.P. 60(b)(1), (2), or (3) begins to run from the notice of entry of judgment if the opposing party appeared, but runs from the date of entry of a default judgment.

Nodak Mutual Insurance Co. v. Bahr-Renner, et al. 2014 ND 39
Docket No.: 20130091
Filing Date: 2/20/2014
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: The phrase "resident of your household" in an automobile insurance policy is not ambiguous, and the determination of whether a person falls within the meaning of the phrase is a question of fact.
A restrictive endorsement to an automobile insurance policy containing a step-down provision is not required to be a written agreement.
Step-down provisions that limit coverage to the statutory minimum, without stating the dollar amount of coverage, are valid.

Zavadil, et al. v. Rud, et al. 2014 ND 38
Docket No.: 20130182
Filing Date: 2/18/2014
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: An accommodation party is obliged to pay an instrument in the capacity in which the accommodation party signs.

Balvitsch, et al. v. Dakota Burger N Fries Corp., et al. 2014 ND 37
Docket No.: 20130202
Filing Date: 2/18/2014
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Due process requires a contemnor receive notice and a fair hearing when the alleged contempt involves conduct outside the court's presence.
To meet due process requirements, notice must apprise the contemnor of the pendency of the action and afford an opportunity to present objections.

Tweed v. State 2014 ND 36
Docket No.: 20130246
Filing Date: 2/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Shaft 2014 ND 35
Docket No.: 20140050
Filing Date: 2/13/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Anderson, et al. v. Zimbelman, et al. 2014 ND 34
Docket No.: 20130207
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Constructive fraud requires a breach of duty leading to an advantage for the party misleading. The breach of duty generally arises from a confidential or fiduciary relationship between the parties.
A sheriff may collect sheriff's fees on an execution sale when moneys are received and disbursed by the sheriff. A sheriff may collect a commission on the appraised value of the property if personal property is taken by the sheriff and applied in satisfaction of a debt without sale.
Compromise of a bona fide controversy constitutes good consideration for a promise.
N.D.R.Civ.P. 52(a)(3) does not require the court to state findings or conclusions when ruling on a motion under Rule 56.

Judicial Conduct Commission v. Hagar 2014 ND 33
Docket No.: 20130278
Filing Date: 2/13/2014
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: A judge may be suspended without pay for a violation of the Code of Judicial Conduct.

Interest of G.R. (Confidential) 2014 ND 32
Docket No.: 20130376
Filing Date: 2/13/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: In termination of parental rights cases, the petitioner must prove, by clear and convincing evidence, that the child is deprived, the conditions and causes of deprivation are likely to continue or will not be remedied, and the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
The juvenile court's findings of fact in a termination of parental rights proceeding will not be reversed on appeal unless they are clearly erroneous.

Matter of Mangelsen 2014 ND 31
Docket No.: 20130155
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: For civil commitment as a sexually dangerous individual, the conduct relied upon to demonstrate the individual's serious difficulty controlling his behavior need not be sexual in nature.

State v. Reis (consol. w/ 20130193 & 20130194) 2014 ND 30
Docket No.: 20130192
Filing Date: 2/13/2014
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A police officer may search a vehicle without a warrant if there is probable cause to believe the vehicle contains contraband.
When a police officer has probable cause to believe a vehicle contains contraband, the officer may search the vehicle and any containers within the vehicle that may contain the object of the search, including locked containers.

Estate of Huston 2014 ND 29
Docket No.: 20130126
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: An order denying a petition to remove a personal representative in the unsupervised probate of an estate is appealable without a certification under N.D.R.Civ.P. 54(b).
A decision on a petition to remove a personal representative lies within the discretion of the district court.

Interest of R.L.-P. (consolidated w/ 20130383-20130386 & 20130388) 2014 ND 28
Docket No.: 20130382
Filing Date: 2/13/2014
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: Parental rights may be terminated when the children are deprived and have been in foster care more than 450 out of the previous 660 nights.
Social services has made reasonable efforts to reunite parents and their children when services have been made available and a plan has been in place to enable visitation and placement.
The Indian Child Welfare Act does not apply when an Indian tribe has determined the parent is not a member of the tribe.

Delaney v. State 2014 ND 27
Docket No.: 20130260
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Brockel v. WSI 2014 ND 26
Docket No.: 20130166
Filing Date: 2/13/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Until proper notice is given, Workforce Safety and Insurance cannot terminate disability benefits on the basis that the claimant failed to verify disability.
When treatment for a work-related injury is prolonged because of nonwork-related medical conditions, the claimant is entitled to continued disability benefits during the entire period because the existence of the nonwork-related condition does not change the fact that the work-related injury rendered the claimant unable to work.
The essence of the concept of disability under workers compensation law is the proper balancing of medical and wage-loss factors.

Bredeson v. Mackey 2014 ND 25
Docket No.: 20130254
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Marriage of one or both parents may constitute a change of circumstances that is not material and therefore does not require modification of parenting time.
Non-parental visitation requires exceptional circumstances, such as a long-standing relationship between the child and the stepparent or a stepparent who is a psychological parent to the child.