Opinions

Krueger v. Krueger (Cross-reference w/20070196) 2013 ND 245
Docket No.: 20130129
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A party seeking a contempt sanction must clearly and satisfactorily prove the alleged contempt was committed. An inability to comply with an order is a defense to contempt proceedings, but the alleged contemnor has the burden to prove the defense.

Stensland v. Disciplinary Board 2013 ND 244
Docket No.: 20130008
Filing Date: 12/19/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A suspended lawyer has the burden of establishing by clear and convincing evidence the requisite honesty and integrity to be reinstated to the practice of law.
A suspended lawyer who is engaging in the unauthorized practice of law and who makes false claims to the Supreme Court has failed to satisfy his burden for reinstatement.

Rath v. Rath (cross reference w/20130327 & 20130025) 2013 ND 243
Docket No.: 20130184
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a court order do not necessarily require a finding of contempt.
A district court's decision on a motion for recusal is reviewed under the abuse of discretion standard.

State, et al. v. B.B., et al. (confidential) 2013 ND 242
Docket No.: 20130178
Filing Date: 12/13/2013
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A paternity and support claim can be bifurcated from a related custody action.
A state district court has jurisdiction over a paternity and support action against a non-Indian.

Dahm v. Stark County Board of County Commissioners 2013 ND 241
Docket No.: 20130238
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a board of county commissioners on whether to approve an application for a zoning change and plat approval will be affirmed unless the board acted arbitrarily or unreasonably, or if there is not substantial evidence supporting the decision.
On appeal from a decision of a county board, a reconsideration of the evidence is limited to the extent that such evidence was presented to the county board, and the burden is on the moving party to show that the decision of the county board was arbitrary, capricious, or unreasonable.
The moving party cannot turn an appeal from a denial of a change in zoning request into an inverse condemnation action.

Bahtiraj v. State 2013 ND 240
Docket No.: 20130113
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Without more, the second Strickland prong is not satisfied by a self-serving statement that the petitioner would have insisted on going to trial. Factors to consider when determining the rationality of rejecting a guilty plea and insisting on going to trial include immigration consequences, strength of the case against the petitioner, and rational defenses to the charged crime.

State v. Otto 2013 ND 239
Docket No.: 20130096
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The automobile exception to the Fourth Amendment's warrant requirement applies to a readily mobile camper that is not in a place regularly used for residential purposes.

Kinsella v. State 2013 ND 238
Docket No.: 20130150
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Failure to move pretrial to suppress evidence, by itself, does not equate to ineffective assistance of counsel. Where evidence allegedly seized in violation of the Fourth Amendment, but where counsel has no reason to question the search and seizure, failure to file a motion to suppress does not render the representation ineffective.

Morton County Social Service Board, et al. v. Houim 2013 ND 237
Docket No.: 20130095
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a party moves to modify primary residential responsibility of a child, the district court must consider only the party's motion on briefs, affidavits, and other supporting documents to determine whether the moving party established a prima facie case and is entitled to an evidentiary hearing.
Evidence that the child's present environment may endanger the child's health or evidence of a parent's suicide attempt constitute material changes of circumstance that may justify a modification of primary residential responsibility and establish a prima facie case.

State v. Canfield 2013 ND 236
Docket No.: 20130141
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An inadequate record may make appellate review of the district court's denial of a suppression motion impossible, thus requiring reversal and remand for further proceedings.

Parsons v. WSI 2013 ND 235
Docket No.: 20130197
Filing Date: 12/19/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: A claimant for workers' compensation benefits must prove by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury.
If a claimant has a preexisting condition, but a preponderance of the evidence shows the medical condition for which benefits are being sought is causally related to a work injury and not attributable to a preexisting condition, the preexisting condition analysis to determine whether the injury is compensable does not apply.

State v. One 2002 Dodge Intrepid Automobile 2013 ND 234
Docket No.: 20130186
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Due process requires that a notice of forfeiture hearing be served on any interested party.
Mailing the required notice to an individual at a residential address, when that individual is presently incarcerated within the state, violates the individual's right to due process.

Matter of Muscha 2013 ND 233
Docket No.: 20130154
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order civilly committing appellant as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Fee (consol. 20130177) 2013 ND 232
Docket No.: 20130175
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A district court judgment forfeiting property connected to criminal activity is affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Ruddell 2013 ND 231
Docket No.: 20130209
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered for abandonment or nonsupport of a child is affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Kippen (consolidated w/20130263) 2013 ND 230
Docket No.: 20130239
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Convictions of driving under the influence of alcohol and driving with a suspended license are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Kaka 2013 ND 229
Docket No.: 20130158
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Conviction for burglary and theft of property is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Johnson v. State 2013 ND 228
Docket No.: 20130228
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Reciprocal Discipline of Murrin 2013 ND 227
Docket No.: 20130355
Filing Date: 12/18/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Industrial Contractors, Inc. v. WSI, et al. 2013 ND 226
Docket No.: 20130185
Filing Date: 12/16/2013
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 awarding benefits to a claimant, is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Vacancy in Judgeship No. 6, East Central Judicial District 2013 ND 225
Docket No.: 20130389
Filing Date: 12/10/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

State v. Rau 2013 ND 224
Docket No.: 20130187
Filing Date: 12/10/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A conviction of possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Kling 2013 ND 223
Docket No.: 20130103
Filing Date: 12/4/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment for disorderly conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Disciplinary Board v. Craft 2013 ND 222
Docket No.: 20130318
Filing Date: 12/4/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Disciplinary Board v. Wolff (Consol. w/ 20130268-20130273) 2013 ND 221
Docket No.: 20130267
Filing Date: 12/4/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Reciprocal Discipline of Kalk 2013 ND 220
Docket No.: 20130249
Filing Date: 12/4/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Wagner v. Crossland Construction Company, Inc., et al. 2013 ND 219
Docket No.: 20130056
Filing Date: 11/25/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Use of the words "subject to" in a warranty deed connotes a limitation on the grantor's warranty and not a reservation of rights.
Although the district court's underlying findings of fact in implied easement cases are subject to the clearly erroneous standard of review, whether the underlying facts support the existence of an implied easement is a question of law subject to de novo review.

Van Sickle, et al. v. Hallmark & Assoc., Inc., et al. (cross-reference 20070154 2013 ND 218
Docket No.: 20130003
Filing Date: 11/25/2013
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: In a proceeding under N.D.C.C. 47-16-39.1 to recover unpaid oil and gas royalties, a "prevailing party" is entitled to reasonable attorney's fees.
The amount of statutory interest to be awarded on unpaid royalties is calculated using simple interest, rather than compound interest.
A corporation that purchases the assets of another corporation does not succeed to the liabilities of the selling corporation, subject to certain recognized exceptions, such as when there is an express or an implied agreement to assume the transferor's liability.

Oakland v. Bowman, et al. 2013 ND 217
Docket No.: 20130142
Filing Date: 11/25/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: North Dakota has not adopted equitable tolling as an exception to a statute of limitations.
When interpreting a statute, it must be presumed the legislature intended all that it said, said all that it intended to say, and meant what it has plainly expressed.
Section 1-01-06, N.D.C.C., provides that "there is no common law in any case in which the law is declared by code."

Ford Motor Credit Co. v. Halvorson 2013 ND 216
Docket No.: 20130188
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Debtor/Creditor
Author: VandeWalle, Gerald

Highlight: A party may renew a judgment by either complying with the affidavit procedure under N.D.C.C. 28-20-21 or commencing a separate action on the judgment.

Estates of Shubert 2013 ND 215
Docket No.: 20120276
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: An appeal is moot if no actual controversy exists because subsequent events have made it impossible for the court to provide effective relief.
In an unsupervised probate of an estate, each proceeding before a court is independent of any other proceeding involving the same estate, and a concluding order on a petition to remove a personal representative is appealable without a certification under N.D.R.Civ.P. 54(b).
The decision on a petition to remove a personal representative lies within the district court's discretion.

Moore v. State 2013 ND 214
Docket No.: 20130196
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: On appeal of a summary dismissal of an application for postconviction relief, a reviewing court must determine whether or not the information available to the district court, when viewed in a light most favorable to the opposing party, precludes the existence of a genuine issue of material fact and entitles the moving party to summary dismissal as a matter of law.
A claim of ineffective assistance of counsel is more effectively presented in a postconviction proceeding than in a direct appeal.

State v. Blagen 2013 ND 213
Docket No.: 20130203
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of marijuana with intent to deliver and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Wald v. Holmes 2013 ND 212
Docket No.: 20130124
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The doctrine of res judicata should not be strictly applied to preclude the trial court from hearing for the first time relevant primary residential responsibility-related evidence bearing on considerations of what is in a child's best interests.
A truthful affidavit may not be subsequently withdrawn from evidence when the affiant seeks withdrawal merely because she no longer wishes to be involved in a case.
In determining whether a prima facie case justifying modification of primary residential responsibility has been established, unless the opposing party's counter-affidavits conclusively establish the moving party's allegations have no credibility, the court must accept the truth of the moving party's allegations.
A district court's award of attorney fees is abuse of discretion when the district court did not apply the correct law in deciding substantive issues, and a party's claims were not frivolous when examined under the correct legal standards.

Adoption of I.R.R. (CONFIDENTIAL) 2013 ND 211
Docket No.: 20130287
Filing Date: 11/21/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: A parent's parental rights may be terminated by a court order in connection with an adoption action if the parent abandoned the child.

Pesanti v. N.D. Dep't of Transportation 2013 ND 210
Docket No.: 20130116
Filing Date: 11/21/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Continuous and gradual weaving significantly more pronounced than "slight" weaving, engine revving, and the time of day an incident occurred may all contribute to the totality of the circumstances providing an officer with a reasonable and articulable suspicion for a traffic stop.

Sateren v. Sateren (cross-referenced w/20120192) 2013 ND 209
Docket No.: 20130220
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: District court order explaining and reaffirming an earlier order denying reallocation of marital property and debt in a divorce case is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Klamm 2013 ND 208
Docket No.: 20130136
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment after a defendant conditionally pled guilty to driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of T.D., a Child (CONFIDENTIAL) 2013 ND 207
Docket No.: 20130248
Filing Date: 11/21/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court judgment terminating father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of H.D. (Confidential) 2013 ND 206
Docket No.: 20130320
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

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

Interest of C.N. (CONFIDENTIAL) 2013 ND 205
Docket No.: 20130231
Filing Date: 11/21/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: As part of a deprived child analysis, a parent must demonstrate present capability, or capability within the near future, to be an adequate parent.
The domestic relations chapter providing for continued child support payments despite the termination of parental rights may be read in concert with the termination of parental rights statute under the Uniform Juvenile Court Act, which does not contain such a provision.

State, et al. v. Eli 2013 ND 204
Docket No.: 20130227
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Default judgment imputing minimum wage as basis for child support calculation for unemployed incarcerated obligor summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Newman v. State 2013 ND 203
Docket No.: 20130258
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Klamm 2013 ND 202
Docket No.: 20130163
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court judgment entered after a conditional guilty plea to driving under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3), and (7).

Davis v. State 2013 ND 201
Docket No.: 20130073
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

City of Fargo v. White 2013 ND 200
Docket No.: 20130191
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A district court's summary affirmance of a municipal court judgment under N.D.R.Crim.P. 37(l) may not occur at proceedings which occur before the trial anew.

State v. Lattergrass 2013 ND 199
Docket No.: 20130146
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment for simple assault on a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Peterson v. Pierce, et al. 2013 ND 198
Docket No.: 20130164
Filing Date: 11/21/2013
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: In a dispute over a lost rental payment, the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Lang 2013 ND 197
Docket No.: 20130099
Filing Date: 11/21/2013
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Conviction for theft of property is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Danuser v. IDA Marketing Corp., et al. 2013 ND 196
Docket No.: 20120443
Filing Date: 10/30/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A director in a closely-held corporation may be liable to a single shareholder for actions that unfairly prejudice the shareholder.
A district court has broad equitable powers to remedy violations of duties by directors, and the court's determination of remedies is reviewed under the abuse-of-discretion standard.