Opinions

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.

State v. Severinson 2013 ND 121
Docket No.: 20130004
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The State need not produce a witness designated by the defendant under N.D.R.Ev. 707 if the witness did not make a testimonial statement in an analytical report.
A report attesting to the peer review of an analytical report related to the accuracy of a testing procedure that does not prove the substance of the analytical report is not testimonial for the purposes of N.D.R.Ev. 707 and the Confrontation Clause.

Brown v. Burleigh County Housing Authority 2013 ND 120
Docket No.: 20120455
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: State courts do not have jurisdiction under the Administrative Agencies Practice Act to review city and county housing authorities' decisions to terminate housing assistance benefits.

State v. Webster 2013 ND 119
Docket No.: 20130021
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A Miranda warning that fails to inform a defendant his statements may be used against him in a court of law renders the warning deficient.
A defendant's waiver of his Miranda rights is made knowingly and intelligently if he has a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
The totality of the circumstances is considered when determining whether a Miranda waiver is made voluntarily, knowingly, and intelligently.

Davenport v. WSI 2013 ND 118
Docket No.: 20120449
Filing Date: 7/18/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: For a mental or psychological condition to be a compensable injury, the claimant must show the physical injury was at least 50 percent of the cause of the condition as compared to all other contributing causes combined.
Unless a claimant's employment substantially accelerates the progression of, or substantially worsens the severity of, a preexisting injury, disease, or other condition, it is not a compensable injury when the claimant's employment merely acts to trigger symptoms in the preexisting injury, disease, or other condition.

Alliance Pipeline L.P. v. Smith, et al. 2013 ND 117
Docket No.: 20120367
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A proceeding for a court order permitting entry on land for examinations and surveys is preliminary to a condemnation proceeding.
A party may waive issues about personal jurisdiction, but subject-matter jurisdiction may not be waived.

Rebel v. Rebel 2013 ND 116
Docket No.: 20120280
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court must make an equitable distribution of the property and debts of the parties, and a substantial disparity must be adequately explained.
When distributing marital property, a district court must either discount future cash payments to present value or add interest to the payments.
When a party receives property that is clearly worth less than the value ascribed to it by the district court, this Court cannot determine whether the resulting property distribution is equitable.
A court's decision whether to award past child support is discretionary and will not be overturned unless the court abuses its discretion.
Although a court must provide an adequate explanation for not awarding past child support, a district court's child support award will not be reversed if the basis for the court's decision is ascertainable in the record.

State v. Carpenter (cross-reference 20100085 & 20110283) 2013 ND 115
Docket No.: 20130014
Filing Date: 7/18/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Varnson 2013 ND 114
Docket No.: 20130041
Filing Date: 7/18/2013
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)(2) and (3).

State v. Hamilton 2013 ND 113
Docket No.: 20120375
Filing Date: 7/18/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for continuous sexual abuse of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Tweten v. COUNTRY Preferred Insurance Company, et al. 2013 ND 112
Docket No.: 20120306
Filing Date: 7/17/2013
Case Type: Certified Question - Civil - Civil
Author: Crothers, Daniel John

Highlight: Recovery of underinsured motorist benefits arising from a wrongful death claim depends on the decedent's status as an insured under an applicable policy.
The statutory anti-stacking provisions of N.D.C.C. ch. 26.1-40 prevent divorced parents of a minor son killed in an underinsured motor vehicle accident from recovering the full amount of underinsured motorist benefits from their respective policies.

Disciplinary Board v. McIntee (Consolidated w/ 20130120) 2013 ND 111
Docket No.: 20130119
Filing Date: 6/25/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

SolarBee, Inc. v. Walker, et al. 2013 ND 110
Docket No.: 20120125
Filing Date: 6/24/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Consent to try an unpleaded issue cannot be inferred from the lack of objection to evidence on one pleaded.
Amendment by implication is limited to situations in which the novelty of the issues sought to be raised is reasonably apparent and the intent to try these issues is clearly indicated by failure to object or otherwise.
A breach of contract requires (1) the existence of a contract, (2) a breach of the contract, and (3) damages which flow from the breach.
Evidentiary imprecision regarding the amount of damages does not preclude recovery. The uncertainty which prevents recovery is the uncertainty of the fact of damages, not the uncertainty of the amount.

Sall v. Sall (cross-reference w/ 20100360) 2013 ND 108
Docket No.: 20120448
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Res judicata prohibits relitigation of claims that were raised in a prior action between the same parties and were resolved by final judgment.
A claim is frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected a court to render a judgment in that party's favor.

Smedshammer v. Smedshammer 2013 ND 107
Docket No.: 20120441
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Modification of primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Kartes v. Kartes 2013 ND 106
Docket No.: 20120311
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court's decision that a prima facie case justifying a modification of primary residential responsibility has been established is rendered moot once the evidentiary hearing is held, and the opposing party may not, on appeal from the final order or judgment, challenge the conclusion that a prima facie case was established.
When a parent with primary residential responsibility unilaterally decides to move with the children several hours away from the other parent, for the purpose of precluding or substantially impeding compliance with the existing parenting time arrangement, it constitutes a persistent and willful denial or interference with parenting time.

State v. Goldmann 2013 ND 105
Docket No.: 20120366
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: The State's right to appeal must be expressly granted by statute.
Because the statute does not specifically limit appealability to an order quashing with prejudice, an order dismissing a complaint, information, indictment, or any count, with or without prejudice, is appealable.
For purposes of grading, the amount of a theft is the highest value by any reasonable standard.

Olson v. N.D. Dep't of Transportation 2013 ND 104
Docket No.: 20120352
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Once the Intoxilyzer test record and checklist is admitted into evidence, the department has established prima facie that the officer followed the approved method and ascertained the twenty-minute wait period.
A defendant may rebut the department's prima facie case of fair administration, but he must do more than raise the mere possibility of error.
Observing a defendant is not the only manner of ascertaining that the driver had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample.

Miller v. Miller 2013 ND 103
Docket No.: 20120424
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A mature child's reasonable preference to live with a particular parent may constitute a material change in circumstances to justify a change in primary residential responsibility if there are persuasive reasons for that preference.
Res judicata makes it is inappropriate to rehash issues which were tried or could have been tried by the court in prior proceedings.

Knudson v. Kyllo (cross-reference w/ 20110282) 2013 ND 102
Docket No.: 20120421
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A partner violates his duty of loyalty to the partnership and the other partners when he misappropriates a partnership opportunity.
Whether an opportunity is a partnership opportunity is largely a question of fact, which will not be reversed on appeal unless it is clearly erroneous.

State v. Eagleman (Cross-reference w/20030149 & 20040359) 2013 ND 101
Docket No.: 20120406
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A sentence will be vacated only if the court acted outside the limits prescribed by statute or substantially relied on an impermissible factor in determining the severity of the sentence.
An illegal probationary term in a sentence invalidates the sentence in its entirety.
Judges do not, and should not, operate in a vacuum in sentencing.

Frey v. Frey 2013 ND 100
Docket No.: 20120378
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent's move out of state and a non-custodial parent's temporary custody of a child are a material change in circumstances.
When determining whether modification of prima
A district court's decision to modify a child support obligation after reserving the issue in an interim order is a matter of discretion.
A district court's denial of interim child support must be explained.

Wotzka v. Minndakota Limited Partnership 2013 ND 99
Docket No.: 20120301
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A condition that creates an open and obvious danger may limit the landowner's duty to its lawful entrants, but if the harm is expected from the standpoint of the landowner, the landowner is not relieved from his duty to keep the premises reasonably safe under the circumstances.
When a landowner has reason to anticipate that a lawful entrant will proceed to encounter a condition, despite its open and obvious nature, the factfinder must still consider whether the landowner acted reasonably under the circumstances.

Lario Oil & Gas Company, et al. v. EOG Resources, Inc. 2013 ND 98
Docket No.: 20120349
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The specific description in a mineral lease is controlling when a discrepancy exists between the specific description of the property conveyed and an expression of the quantity conveyed.

Albright v. WSI, et al. 2013 ND 97
Docket No.: 20120298
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: When presented with conflicting expert medical opinions, it is for WSI, not the district court, to weigh credibility and resolve conflicts.
If WSI disregards medical evidence favorable to a claimant, WSI must consider the entire record, clarify inconsistencies, and adequately explain the reason for disregarding medical evidence favorable to the claimant, applying the two tests and the factors identified in the statute.

City of Fargo v. Moran 2013 ND 96
Docket No.: 20130065
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

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

Painte v. Dep't of Transportation 2013 ND 95
Docket No.: 20120316
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Actual physical control of a vehicle does not require a defendant be able to drive a An affidavit attesting to the affiant's status as a designee of the director of the North Dakota Crime Laboratory is sufficient foundation for establishing prima facie evidence of the affiant's status as a designee for the purposes of section 29-20-07, N.D.C.C.