Opinions

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.

Wampler v. N.D. Dep't of Transportation 2014 ND 24
Docket No.: 20130330
Filing Date: 2/13/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: The Department of Transportation must meet the basic and mandatory provisions of N.D.C.C. 39-20-03.1 to have authority to suspend a person's driving privileges.
Inclusion of the blood alcohol test results in the officer's certified report to the Department is a basic and mandatory provision of the statute.
Inclusion of the specific phrase "by weight" on the officer's certified report to the Department is not necessary to satisfy N.D.C.C. 39-20-03.1.

Hamre v. N.D. Dep't of Transportation 2014 ND 23
Docket No.: 20130257
Filing Date: 2/13/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: A person appealing to the district court from a Department of Transportation decision to suspend privileges must comply with the specifications of error requirements under N.D.C.C. 28-32-42(4).
The law the public is charged with having notice of includes judicial interpretations of statutes.

Brandt v. Brandt 2014 ND 22
Docket No.: 20130109
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Divorce judgment distributing parties' marital property and order denying post-judgment motion are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Swearingen v. State (cross-ref. w/20130063) 2014 ND 21
Docket No.: 20130319
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court judgment denying post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Oie v. State 2014 ND 20
Docket No.: 20130275
Filing Date: 2/13/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court judgment denying application for postconviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Summers (Consolidated w/ 20130415 & 20130416) 2014 ND 19
Docket No.: 20130414
Filing Date: 2/12/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

State v. Cook 2014 ND 18
Docket No.: 20130277
Filing Date: 2/10/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

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.

Disciplinary Board v. Howe 2014 ND 17
Docket No.: 20140035
Filing Date: 1/31/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension vacated.

Vacancy in Judgeship No. 8, SCJD 2014 ND 16
Docket No.: 20140003
Filing Date: 1/30/2014
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Linton.

Vacancy in Judgeship No. 1, ECJD 2014 ND 15
Docket No.: 20140008
Filing Date: 1/28/2014
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained in Fargo.

State v. Holbach (cross-reference w/ 20120155 & 20120215) 2014 ND 14
Docket No.: 20130016
Filing Date: 1/28/2014
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Due process prohibits the criminal prosecution of defendants who, as a result of a mental disease or defect, lack capacity to understand the proceedings against them or to assist in their defense.
Defendants found not competent to stand trial may be committed to the State Hospital under the statutory procedures and safeguards for civil commitment.

Schwalk v. Schwalk, et al. 2014 ND 13
Docket No.: 20130225
Filing Date: 1/17/2014
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A hearing is not required by law to modify a child support obligation.
A party seeking modification of a child support obligation has the burden of proving the existing amount of support does not conform to the guidelines.

Entzel v. Moritz Sport and Marine 2014 ND 12
Docket No.: 20130157
Filing Date: 1/17/2014
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A force majeure clause is equivalent to an affirmative defense.
A party relying on a force majeure clause to excuse performance bears the burden of proving that the event was beyond its control and without its fault or negligence.
Appellant was not a prevailing plaintiff where the district court's award of partial damages to appellant was reversed on appeal.

Forbes Equity Exchange, Inc. v. Jensen 2014 ND 11
Docket No.: 20130199
Filing Date: 1/17/2014
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An assignee acquires no greater rights than those of the assignor.
In an action on an assigned claim, the assignee is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor that could have been asserted against the assignor at the time of the assignment.

Phillips v. State 2014 ND 10
Docket No.: 20130151
Filing Date: 1/14/2014
Case Type: Appeal - Criminal - Post-Conviction Relief
Author: Sandstrom, Dale V.

Highlight: A separate appeal from an order denying the transcript of a post-conviction relief hearing is unnecessary when an appeal from an order denying post-conviction relief is already pending.
When an indigent defendant has demonstrated a particularized need for a transcript, the district court abuses its discretion in denying his request for a free transcript.

Holkesvig v. Dakota Spas 2014 ND 9
Docket No.: 20130214
Filing Date: 1/14/2014
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A disorderly conduct restraining order can be sought only against a human being.

Gustafson, et al. v. Gustafson, et al. 2014 ND 8
Docket No.: 20130206
Filing Date: 1/14/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A telephone call is not an appearance entitling a party to notice before entry of default judgment when the party speaks to no one and leaves only a recorded message stating his name and requesting a return call.

Trosen v. Trosen, et al. 2014 ND 7
Docket No.: 20130034
Filing Date: 1/4/2014
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: To satisfy the statute of frauds, a writing must contain all of the essential or material terms and conditions of the contract, and parole evidence may not be used to supply a missing essential term of the agreement.
Part performance of an agreement or contract for the leasing of property for longer than a one-year may bar the assertion of the statute of frauds.
To succeed on a claim of part performance, a party must first prove the circumstances of the case meet the general prerequisites to equitable relief and the party must show that the alleged part performance is consistent only with the existence of the alleged oral contract.

Broadwell v. State (cross-reference w/20120224) 2014 ND 6
Docket No.: 20130211
Filing Date: 1/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: 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 is encouraged to do so.

Conzemius v. Conzemius 2014 ND 5
Docket No.: 20130125
Filing Date: 1/14/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court is not required to calculate speculative, distant future tax consequences when dividing marital property.
A party's income under the Child Support Guidelines will not necessarily be equal to the party's earning ability under a spousal support analysis.

State v. Hart (consolidated w/20130168) 2014 ND 4
Docket No.: 20130165
Filing Date: 1/14/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Police may conduct a warrantless protective sweep inside a home when officers possess a reasonable belief, based on specific and articulable facts, which, taken together with rational inferences drawn from those facts, reasonably warrant the officer in believing that the area to be swept harbors an individual posing a danger to the officer or others.
A warrantless protective sweep of a home is not justified when officers rely on evidence seized from a different residence and the only connection between the two houses is the fact that one of the suspects was previously at the first residence searched and then left.

Sagebrush Resources, LLC v. Peterson, et al. 2014 ND 3
Docket No.: 20130080
Filing Date: 1/14/2014
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A district court may award attorney fees for allegations and denials in any pleadings in court that are made without reasonable cause and not in good faith and are found to be untrue.

Lucas v. Lucas (cross-reference w/20110365) 2014 ND 2
Docket No.: 20130070
Filing Date: 1/14/2014
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court has broad discretion in making a primary residential responsibility decision, but the court must consider all of the relevant statutory best-interest factors in reaching its decision.
Although a separate finding is not required for each statutory best-interest factor, the district court's findings must contain sufficient specificity to show the factual basis for the primary residential responsibility decision.

Disciplinary Board v. Tollefson (Consolidated w/ 20130344 & 20130345) 2014 ND 1
Docket No.: 20130343
Filing Date: 1/9/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Reep, et al. v. State, et al. (consolidated w/20130111) 2013 ND 253
Docket No.: 20130110
Filing Date: 12/26/2013
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: The State of North Dakota owned mineral interests under the shore zone of navigable waters upon admission to the Union, and the anti-gift clause of the state constitution precludes construing a statute as a gift of the State's mineral interests to upland owners.
Ownership of mineral interests under the shore zone of navigable waters may differ for individual upland owners.
If the chain of title reflects the State granted its equal footing interests to upland owners, those upland owners take to the low watermark, subject to the public trust doctrine and except where the deed provides otherwise.

State v. Nguyen 2013 ND 252
Docket No.: 20130159
Filing Date: 12/26/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The use of a drug-sniffing dog in a common hallway of a secured apartment building does not constitute an unreasonable search.

Tollefson v. Bjornstad, et al. (cross-reference w/20120347) 2013 ND 251
Docket No.: 20130229
Filing Date: 12/24/2013
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: An order denying a motion under N.D.R.Civ.P. 60(b) to vacate prior orders entered in a civil RICO action is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Disciplinary Board v. Hardwick (Consolidated w/ 20130289) 2013 ND 250
Docket No.: 20130288
Filing Date: 12/23/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer discipline imposed.

Dominguez v. State 2013 ND 249
Docket No.: 20130098
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: To commit an attempt offense, the accused must have an intent to commit the underlying crime.
Attempted murder committed under circumstances manifesting an extreme indifference to the value of human life is not a cognizable offense, because the accused must have an intent to kill for attempted murder and murder under circumstance manifesting an extreme indifference to the value of human life results in an unintentional death.

Guthmiller Farms v. Guthmiller, et al. 2013 ND 248
Docket No.: 20130156
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A limited liability partnership that loses its registration is still a partnership for the purposes of conducting business. A successor partnership has the ability to sue and be sued in the name of the partnership under N.D.C.C. 45-15-07.
A consideration clause in an agreement is presumptive evidence that consideration exists for the agreement.
Consideration may be executed or executory in whole or in part, so long as it was given in consideration of the agreement at issue.

Interest of D.O. (Confidential) 2013 ND 247
Docket No.: 20130174
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: When a defendant argues false or misleading testimony was presented in support of a search warrant, a Franks hearing must be held to determine whether law enforcement omitted facts with the intent or in reckless disregard of whether they were misleading. The affidavit also must not have been sufficient to support probable cause for the search warrant if omitted information had been included.
All information providing probable cause must be considered together, and in a commonsense and realistic fashion.
The right to confrontation is a trial right and does not apply to the same extent in pretrial hearings.
The State must show reasonable grounds exist to transfer a juvenile's case to the district court.

Peltier v. State (consolidated w/20130010) 2013 ND 246
Docket No.: 20120447
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A clerical error correctable under N.D.R.Crim.P. 36 includes a failure to accurately record action taken by the court, but the rule does not extend to correction of errors of substance.
Resentencing under N.D.R.Crim.P. 35 is proper in order to correct an illegal sentence.
Probationary sentences for conviction of the crime of failure to register as a sexual offender are imposed under N.D.C.C. 12.1-32-15(9), not N.D.C.C. 12.1-32-06.1(3).