Opinions

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.

State v. Evans 2013 ND 195
Docket No.: 20130121
Filing Date: 10/30/2013
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Lay witness testimony, in the form of an opinion, must be rationally based on the perception of the witness and also helpful to the jury's determination of a fact in question.
When a police officer simply relies on information gathered by other officers on which to base his opinion, he is not offering lay opinion testimony as N.D.R.Ev. 701 intends.
The harmless error standard is applied to a lay witness testifying as an expert.

State v. Mossey 2013 ND 194
Docket No.: 20130138
Filing Date: 10/23/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction for class B felony luring a minor by computer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Hillerson, et al. v. Bismarck Public Schools, et al. 2013 ND 193
Docket No.: 20130101
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: When reasonable differences of opinion exist as to the terms of a release of liability provision in a contract, the release of liability provision is ambiguous, and summary judgment is not appropriate.
When a release of liability provision is ambiguous, a question of fact exists as to the parties' intent, and extrinsic evidence may be offered to help determine the parties' intent.

Kukla v. Kukla 2013 ND 192
Docket No.: 20120451
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A party moving for relief from a judgment under N.D.R.Civ.P. 60(b) has the burden to establish sufficient grounds for disturbing the finality of the decree, and relief should be granted only in exceptional circumstances.
Whether a motion for relief from judgment has been timely made is within the district court's discretion and will not be overturned on appeal unless the court abuses its discretion.

Matter of Hehn (consolidated w/ 20130143) 2013 ND 191
Docket No.: 20130055
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A person civilly committed as a sexually dangerous individual is entitled as a matter of right to only one discharge hearing within a twelve-month period.

Matter of Rubey (cross-reference 20100292 & 20110322) 2013 ND 190
Docket No.: 20130093
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A proponent of excluded evidence must make an offer of proof to the trial court and show prejudice from the restriction to show an abuse of discretion.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.

State ex rel. City of Marion v. Alber 2013 ND 189
Docket No.: 20130094
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A district court does not abuse its discretion when a finding of willful contempt is supported by the evidence and inferences from the evidence.
Findings of fact and conclusions of law are sufficient for a finding of contempt when the district court's statements clearly demonstrate the basis for its decision.
Methods of objection, such as motions to strike, are available post-hearing and must be made to preserve argument on appeal contesting the submission of post-hearing evidence.

State v. Samshal 2013 ND 188
Docket No.: 20120436
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: In criminal cases, a defendant's testimony about statements made by the victim of the alleged offense, offered to establish the defendant's state of mind, are not hearsay because they are not offered to prove the truth of the matter asserted.
A defendant is not entitled to assert a defense of premises claim when the victim and defendant reside in the same premises and the victim was not unlawfully within the premises.

Empower the Taxpayer, et al. v. Fong, et al.(cross-ref w/20120191, 197, 444 2013 ND 187
Docket No.: 20130011
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A reviewing court cannot perform its appellate function unless it is able to understand the basis for the trial court's decision, and therefore the trial court must provide an adequate explanation of the evidentiary and legal basis for its decision.
A court may not impose monetary sanctions against a represented party for bringing a frivolous action in violation of N.D.R.Civ.P. 11(b)(2).

Kershaw v. WSI 2013 ND 186
Docket No.: 20130131
Filing Date: 10/22/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: Separation of powers prevents the Supreme Court from making independent findings of fact or substituting its judgment for that of the agency fact finder.
In WSI cases, a presumption may not be established favoring one doctor's opinion over another's. To resolve a conflicting medical opinion, an organization may consider the nature and length of the treatment relationship, the amount of evidence in support of the opinion, the opinion's consistency with the record, possible bias, whether the doctor specializes in the issues relevant to the opinion, and other relevant factors.

Rustad v. Rustad 2013 ND 185
Docket No.: 20130105
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In determining primary residential responsibility, the district court is required to consider all of the best interest factors and make findings with sufficient specificity to enable the reviewing court to understand the factual basis for the court's decision.
Parental alienation is a significant factor in determining primary residential responsibility.

State v. Howard 2013 ND 184
Docket No.: 20120422
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Issues not raised at the trial court level, even constitutional issues, generally will not be addressed for the first time on appeal.
The district court should generally wait to rule on a motion for a change of venue until after voir dire has been conducted to determine whether it is possible to select a fair and impartial jury.
In reviewing a sufficiency of the evidence claim, a criminal judgment will be affirmed if the judgment is supported by substantial evidence.

State v. Whitman 2013 ND 183
Docket No.: 20120374
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: Plain error under N.D.R.Crim.P. 52(b) may be noticed by the Court on its own motion.
N.D.R.App.P. 2 may be invoked to avoid manifest injustice and provide a defendant with the same relief granted his codefendant.
A defendant's use of the word lawyer during an interview is ambiguous when coupled with conduct evidencing the defendant wishes not to remain silent.

State v. Arot 2013 ND 182
Docket No.: 20120379
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: For the district court to have jurisdiction, the State must prove, by the preponderance of the evidence, that a defendant is not a minor.
There is no irrebuttable presumption that a defendant's date of birth stated on official documents is his actual date of birth.

State v. Johnson 2013 ND 181
Docket No.: 20130144
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Beauclair v. Vanderveer 2013 ND 180
Docket No.: 20130115
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Divorce judgment distributing the parties' property under the terms of a premarital agreement is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sweeney v. Kirby (cross-reference w/20120339) 2013 ND 179
Docket No.: 20130152
Filing Date: 10/22/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Denial of a motion to modify primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Clements 2013 ND 178
Docket No.: 20130140
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A crimnal judgment for disorderly conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Goulet 2013 ND 177
Docket No.: 20130148
Filing Date: 10/22/2013
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Walstad v. Walstad (cross-reference 20120059) 2013 ND 176
Docket No.: 20130023
Filing Date: 10/11/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: An independent action in equity is available only to prevent a grave miscarriage of justice.
To award attorney fees and costs under N.D.C.C. 14-05-23, the trial court must balance one party's needs against the other party's ability to pay and whether the action of either party unreasonably increased litigation costs, but in an independent action in equity for fraudulent concealment of marital assets, balancing one party's ability to pay with the other's needs is secondary to considering whether the actions of one party unreasonably increased litigation costs.
The secreting of assets in a divorce action is a clear and blatant form of economic misconduct, and it also implicates economic misconduct in the form of intentional non-disclosure of substantial marital assets.

Rolla v. Tank, et al. 2013 ND 175
Docket No.: 20130035
Filing Date: 10/2/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A caption on a deed is of no effect when the conveyance is clear.
Courts will not strain to find an ambiguity where none appears on the face of the instrument.

Holte v. Holte 2013 ND 174
Docket No.: 20120312
Filing Date: 9/30/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: When a substantial marital debt has been excluded from the marital estate, it is not possible to determine whether the district court would have reached the same result in allocating the assets and debts had it included the debt.
Trusts are generally included as marital property subject to equitable distribution by the district court and may be divided at the time of divorce either by awarding the present value of the benefits or, when the present valuation is too speculative, by awarding a percentage of future payments.
Marital property is ordinarily valued as of the date of trial.

Seibold v. Leverington (cross-reference w/ 20110152) 2013 ND 173
Docket No.: 20130026
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.
To modify parenting time, the moving party must demonstrate that a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the best interests of the child. Parents are required to submit a parenting plan to the district court to be included in the court's decree, but when the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interests of the child.

Baatz v. State 2013 ND 172
Docket No.: 20130066
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Questions raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, because the decision on the first appeal, whether right or wrong, is the law of the case.