Opinions

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.

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.