Opinions

Interest of Graham 2013 ND 171
Docket No.: 20130090
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Res judicata does not apply to the second element of the sexually dangerous individual analysis, determining whether a committed individual has a congenital or acquired condition manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction, when evaluating a committed sexually dangerous individual's petition for discharge.

Stark County v. A motor vehicle, et al. 2013 ND 170
Docket No.: 20130102
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Movement of a vehicle for weighing at the direction of a police officer is not movement for purposes of a weight-restriction violation.

McColl Farms v. Pflaum 2013 ND 169
Docket No.: 20130053
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A complaint should not be dismissed for failure to state a claim unless it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.
Although a party is generally not entitled to an equitable remedy if there is an adequate legal remedy, a party may seek relief and proceed on both equitable and legal claims.
In summary judgment proceedings, a court may properly refuse to consider an attorney's affidavit if the affidavit is not based on the attorney's personal knowledge.
A party resisting a motion for summary judgment cannot merely rely on the pleadings and briefs, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.

Hallin, et al. v. Lyngstad, et al. 2013 ND 168
Docket No.: 20120354
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The language of the deed, if clear and explicit, governs its interpretation, and the parties' mutual intentions must be ascertained from the four corners of the deed, if possible.
Generally, under the common law, a reservation or exception in a deed of conveyance cannot operate as a conveyance to a third party who is a stranger to the title or deed. However, an exception or reservation in a deed may be effective to convey property to a spouse who does not have an interest in the property but joins in the deed's execution when that is determined to have been the grantor's intent.

Anderson v. Jenkins 2013 ND 167
Docket No.: 20130078
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may conclude the moving party failed to establish a prima facie case for change of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
Unless the opposing party's counter-affidavits conclusively establish the movant's allegations have no credibility, the district court must accept the truth of the moving party's allegations.

State v. Zander 2013 ND 166
Docket No.: 20130069
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Possession of a controlled substance conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

State v. Moran 2013 ND 165
Docket No.: 20130061
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of marijuana with intent to deliver and possession of marijuana paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Rebel v. Rebel (consolidated with 20130033) 2013 ND 164
Docket No.: 20130032
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The district court may grant a disorderly conduct restraining order if the petitioner complies with the statutory procedural requirements and if, after a hearing, the court finds reasonable grounds to believe the respondent has engaged in disorderly conduct.
Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person but does not include constitutionally protected activity. The constitutional right to freedom of speech does not protect "fighting words" that tend to incite an immediate breach of the peace.

State v. Nefzger 2013 ND 163
Docket No.: 20130085
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment after a defendant conditionally pled guilty to drug-related charges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Ratteray 2013 ND 162
Docket No.: 20120446
Filing Date: 9/25/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition and creation of sexually expressive images is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Interest of C.R. 2013 ND 161
Docket No.: 20130235
Filing Date: 9/25/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court judgment terminating a father's parental rights is affirmed under N.D.R.App.P. 35.1(a)(7).

Thimjon Farms Partnership, et al. v. First International Bank & Trust 2013 ND 160
Docket No.: 20120440
Filing Date: 9/6/2013
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Interference with an existing contract is justified if done for legitimate business reasons and without malice.
Unlawful interference with business requires that the defendant committed a tortious or otherwise unlawful act independent of the interference.
Equitable or promissory estoppel requires reliance on the defendant's representation.
The essential element of recovery for unjust enrichment is the receipt of a benefit by a defendant which would be inequitable to retain without paying for its value.
A plaintiff claiming conversion must show he had an interest in the property at the time of the conversion that entitled him to possession.
Deceit requires misrepresentation inducing the plaintiff to alter his position to his detriment.

Four Seasons Healthcare Center, Inc. v. Linderkamp, et al. (cons. w/20120433) 2013 ND 159
Docket No.: 20120432
Filing Date: 9/4/2013
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: Parol evidence may be used to establish the consideration for the conveyance of land.
A district court's findings of fact will not be overturned on appeal unless the findings are clearly erroneous, and under that standard, an appellate court may not reweigh evidence or reassess the credibility of witnesses.

North Central Electric Coop., Inc. v. Public Service Commission, et al. 2013 ND 158
Docket No.: 20130075
Filing Date: 9/3/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: A state may not assert regulatory authority over non-Indians on Indian-owned land within a reservation if the state's action infringes on tribal self-government.

Daniels v. Ziegler 2013 ND 157
Docket No.: 20130044
Filing Date: 8/29/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: A person appealing to the district court from an administrative decision to suspend driving privileges must file specifications of error that identify what matters are truly at issue with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.
The practice of incorporating by reference in an appellate brief arguments previously presented to the district court does not adequately raise those issues for consideration by the Supreme Court.

Brash v. Gulleson 2013 ND 156
Docket No.: 20120313
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Failure of consideration is an affirmative defense that arises when a valid contract has been formed, but the performance bargained for has not been rendered.
Failure of consideration is a question of fact which will not be disturbed on appeal unless clearly erroneous.
Although parol evidence is generally not admissible to vary or contradict the terms of a written contract, it is admissible to prove a failure of consideration.

State v. Nickel (consolidated w/20120418) 2013 ND 155
Docket No.: 20120395
Filing Date: 8/29/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The protection against unreasonable searches and seizures proscribes only government action.
A warrantless search or seizure is constitutionally impermissible unless it falls within a recognized exception to the warrant requirement.
Plain view alone does not justify the warrantless seizure of evidence, and no amount of probable cause can justify a warrantless seizure of evidence absent exigent circumstances.

Bloomquist v. The Goose River Bank, et al. 2013 ND 154
Docket No.: 20130059
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An oral agreement to loan money providing for repayment extending for a period longer than one year, and which does not include express terms governing prepayment, is barred by the statute of frauds.
Partial performance will remove an oral agreement from the statute of frauds only if it unmistakably points to and is consistent only with the existence of the oral agreement and cannot be accounted for on some other hypothesis.

Pifer v. McDermott (cross-reference 20110287) 2013 ND 153
Docket No.: 20130027
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A person may gift an option to purchase real property.
If no consideration is given for an option, the option may be withdrawn at any time before acceptance.
An option to purchase real property given without consideration is valid and enforceable if the option agreement was unconditionally accepted within the time prescribed therein and no attempt was made to withdraw it before acceptance.
Courts, whether trial or appellate, have no duty to search the record for evidence that might defeat a summary judgment motion.

Solid Comfort, Inc. v. Hatchett Hospitality, Inc., et al. 2013 ND 152
Docket No.: 20120415
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: If personal jurisdiction us challenged, the plaintiff bears the burden of proving jurisdiction exists. The plaintiff must make a prima facie showing of jurisdiction to defeat a motion to dismiss for lack of personal jurisdiction. If the court relies only on pleadings and affidavits, the court must look at the facts in the light most favorable to the plaintiff.
The court first must decide whether the requirements of the state's long-arm provision are satisfied and, if so, then must decide whether the exercise of personal jurisdiction comports with due process.
Review of a district court's decision on personal jurisdiction presents a question of law, reviewed under the de novo standard.

Disciplinary Board v. Lee 2013 ND 151
Docket No.: 20130017
Filing Date: 8/29/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The purpose of the prohibition against a lawyer charging an unreasonable fee is to protect clients and the public from excessive fees which exceed the bounds of reasonableness in light of the amount and quality of the work performed, the results obtained, and the fees customarily charged in the locality for similar legal services.

Estate of Cashmore (cross reference with 20090315) 2013 ND 150
Docket No.: 20130012
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: A remedial sanction for contempt, requires the alleged contemnor receive notice and a hearing.
Affirmance of a judgment on appeal leaves the judgment in the same state as if no appeal had been taken.
A verified or sworn statement closing an estate is ineffective if the personal representative fails to acknowledge a known and outstanding claim.

Johnson, et al. v. Finkle, et al. 2013 ND 149
Docket No.: 20130047
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Under the Duhig rationale, a grantor cannot grant and reserve the same mineral interest, and if a grantor does not own a large enough mineral interest to satisfy both the grant and the reservation, the grant must be satisfied first.
The Duhig rationale applies to a grantor's overconveyance of mineral interests, including when the mineral interests are transferred by a contract for deed and subsequent warranty deed.

Datz v. Dosch (cross-reference w/ 20120167) 2013 ND 148
Docket No.: 20120435
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The district court's findings under the statutory best interest of the child factors must contain sufficient specificity to show the factual basis for the court's decision.
Evidence of domestic violence must be considered by a court when weighing the statutory best interest of the child factors.

Bell, et al. v. Pro Tune Plus, et al. 2013 ND 147
Docket No.: 20130068
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court does not have the authority to remand an action properly removed from the small claims court.
A plaintiff has standing to appeal an order of remand to small claims court because the rights afforded in the district court vested in both parties immediately upon removal.
An order of remand to small claims court is not analogous to a traditional dismissal without prejudice, because a procedural barrier exists to prevent the case being filed again in the district court.

Interest of Johnson 2013 ND 146
Docket No.: 20120364
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: The district court is the best credibility evaluator in cases of conflicting testimony.
A party may waive an objection by failing to object to the admission or exclusion of testimony.

Charvat v. Charvat 2013 ND 145
Docket No.: 20130042
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A court may conclude the moving party failed to establish a prima facie case for modification of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
A suicide attempt by a parent with primary residential responsibility may be a material change in circumstances justifying a modification of primary residential responsibility.

Jensen v. Jensen 2013 ND 144
Docket No.: 20120450
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A court may conclude the moving party failed to establish a prima facie case for modification of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
A move by a parent with primary residential responsibility, particularly when coupled with the parent's remarriage, may be a material change in circumstances.

Interest of Whitetail 2013 ND 143
Docket No.: 20120452
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: A decision that an individual is a sexually dangerous individual will be affirmed unless it is induced by an erroneous view of the law or the reviewing court is firmly convinced the decision is not supported by clear and convincing evidence.
A sexually dangerous individual must be placed in the least restrictive available treatment facility or program necessary.

Schiff v. Schiff 2013 ND 142
Docket No.: 20120394
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: The basis for the decision regarding spousal support must be articulated.
Debts incurred during the parties' separation but before their divorce are included in the calculation of the marital estate.
A district court's valuation of marital assets is not clearly erroneous when it is within the range of the evidence presented by the parties.

State v. Borner 2013 ND 141
Docket No.: 20120388
Filing Date: 8/29/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: Conspiracy to commit murder under N.D.C.C. 12.1-06-04, criminal conspiracy, and 12.1-16-01(1)(b), extreme indifference murder, is not a cognizable offense.
Intent to achieve a particular result which is criminal is an essential element of criminal conspiracy.
Conspiracy to commit murder requires (1) an intent to cause death, (2) an agreement to commit murder, and (3) an overt act in furtherance of the agreement.

Interest of M.S. (CONFIDENTIAL) 2013 ND 140
Docket No.: 20130230
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Mental health commitment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of N.R., a Child (CONFIDENTIAL) (Consolidated w/ 20130213 & 20130218) 2013 ND 139
Docket No.: 20130212
Filing Date: 8/29/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

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

Judicial Vacancy in Judgeship No. 3, Northeast Central Judicial District 2013 ND 138
Docket No.: 20130190
Filing Date: 8/14/2013
Case Type: Judicial Administration - Rule - Rule
Author:

Highlight: Judgeship retained in Grand Forks.

Disciplinary Board v. Hoffman 2013 ND 137
Docket No.: 20120290
Filing Date: 7/23/2013
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: A lawyer is precluded from making an agreement to charge or collect an unreasonable fee.
Even though an agreement between a lawyer and client may designate a minimum fee as nonrefundable, a lawyer may still be required to refund unearned portions under the Rules of Professional Conduct.

Schmitt v. MeritCare Health System, et al. 2013 ND 136
Docket No.: 20130013
Filing Date: 7/22/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: A party resisting a motion for summary judgment cannot rely on unsupported and conclusory allegations but must present competent admissible evidence to raise a material issue of fact.
A communication is not libelous if the language is not fairly susceptible to a defamatory meaning.
A plaintiff claiming tortious interference with a prospective business advantage must prove an independently tortious or otherwise unlawful act of interference.
A plaintiff claiming a state antitrust violation must show a contract, combination or conspiracy between two or more people in restraint of, or to monopolize, trade or commerce.

Judicial Redistricting (consol. w/ 20130221) 2013 ND 135
Docket No.: 20130153
Filing Date: 7/18/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Counties moved from South Central to Southeast Judicial District and Northwest Judicial District divided into two districts, effective January 1, 2014.

State v. Gipp 2013 ND 134
Docket No.: 20120412
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Evidence not relevant to the proceeding is not admissible.

Investors Title Ins. Co. v. Herzig, et al. (Cons. w/20130050) 2013 ND 133
Docket No.: 20130049
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings. A party cannot on a second appeal relitigate issues which were resolved in the first appeal or which would have been resolved had they been properly presented in the first appeal.
The mandate rule, a more specific application of law of the case, requires the district court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case.

Interest of N.C.M., D.C.M., and J.J.M. 2013 ND 132
Docket No.: 20120266
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Yellowbird v. N.D. Dep't of Transportation 2013 ND 131
Docket No.: 20130082
Filing Date: 7/18/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: An officer must be certified as a chemical test operator to administer an on-site screening test, but an officer need not be certified to request a driver to submit to the test.

State v. Dieterle 2013 ND 130
Docket No.: 20120372
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Error under N.D.R.Ev. 404(b) is harmless when ample evidence exists to support a conviction independent of the evidence of the prior bad acts.

Estate of Bartelson (cross reference with 20110114) 2013 ND 129
Docket No.: 20130022
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: An interested person, which includes a child of the decedent, is entitled to a hearing on a petition to remove the personal representative of an estate.

Johnson v. Mark, et al. 2013 ND 128
Docket No.: 20120343
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: An unpled affirmative defense may be tried by the express or implied consent of the parties.
A continuance is the proper remedy for a party claiming surprise.
Abandonment is a finding of fact.
An agreement need not specifically state time is of the essence if the terms unambiguously manifest an intent that time is of the essence for the agreement.
A party to a written contract for the sale of land may waive rights by parol, and the contract may be annulled and abandoned and extinguished by parol.
In an action to cancel a contract for deed, the period of redemption, if any, is left to the court's sound discretion.

Ramsey v. State (cross reference w/ 20040035) 2013 ND 127
Docket No.: 20120407
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A post-conviction application based on newly discovered evidence is treated as a motion for a new trial, and the trial court's denial of post-conviction relief based on newly discovered evidence will be sustained unless the trial court abused its discretion.
Recantation evidence is looked on with suspicion and disfavor, especially in child sexual abuse cases.

State v. Wacht 2013 ND 126
Docket No.: 20120320
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Probable cause is the sum total of layers of information, not weighed in individual layers, but in the laminated total.
To assess the reliability of information given by a citizen informant, courts must look to the nature of their report, their opportunity to observe the matters reported, and the extent to which it can be verified by independent investigation.
Actions in furtherance of the criminal activity charged are not other acts, crimes or wrongs and are not excluded by N.D.R.Ev. 404(b).

Swearingen v. State 2013 ND 125
Docket No.: 20130063
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant is entitled to a jury trial unless he waives in writing or in open court and the State consents, the court approves, and the waiver is knowing, intelligent, and voluntary.
The denial of a post-conviction relief evidentiary hearing transcript is reviewed under an abuse of discretion standard.

Wilson v. State (consolidated w/ 20120426-20120428) 2013 ND 124
Docket No.: 20120425
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A trial court's failure to advise a defendant of his right to appeal after sentencing is sufficient grounds for relief only when the defendant is prejudiced by the failure.
A defendant who represents himself must voluntarily, knowingly, and intelligently relinquish the benefits of counsel.

State v. Delorme 2013 ND 123
Docket No.: 20120380
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: Challenges to a district court's subject matter jurisdiction are reviewed de novo when the jurisdictional facts are not in dispute.
Absent federal law to the contrary, Indians outside reservation boundaries are generally held subject to state law otherwise applicable to all citizens of the state.

State v. Keller 2013 ND 122
Docket No.: 20120416
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Whether a blood test for DUI was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.
Fair administration of a blood test can be established by proof that the directions found on Form 104 have been scrupulously followed. Scrupulous compliance does not mean hypertechnical compliance.