Opinions

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.

State v. Butcher 2013 ND 93
Docket No.: 20120403
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for conspiracy to commit robbery is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Spotted Wolf v. State 2013 ND 92
Docket No.: 20120431
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Smith 2013 ND 91
Docket No.: 20120430
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Ratka v. N.D. Dep't of Transportation 2013 ND 90
Docket No.: 20130083
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative decision revoking driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Pearson (Consolidated w/ 20120438 & 20120439) 2013 ND 89
Docket No.: 20120437
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A judgment revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Grant 2013 ND 88
Docket No.: 20120391
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court criminal judgment and sentence for contact by bodily fluids is affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Gray v. State 2013 ND 87
Docket No.: 20130064
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and N.D.R.App.P. 35.1(a)(4).

Chambering of Judgeship No. 11 in the Northwest Judicial District 2013 ND 86
Docket No.: 20130135
Filing Date: 6/4/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Watford City.

Matthew Larson Trust Agreement 2013 ND 85
Docket No.: 20120319
Filing Date: 5/28/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A trust may be reformed when there is clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.
A mistake in the inducement occurs when the terms of the trust accurately reflect what the settlor intended to be included or excluded but this intention was based on a mistake of fact or law.

Disciplinary Board v. Triplett 2013 ND 84
Docket No.: 20130005
Filing Date: 5/23/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Olson, et al. v. Estate of Rustad 2013 ND 83
Docket No.: 20120318
Filing Date: 5/20/2013
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A wrongful death action accrues at the time of the death of the party injured while a survival action accrues at the time the deceased was first injured.
A wrongful death action and a survival action which sound in tort are claims subject to the nonclaim provisions of the Probate Code.
A personal representative need not give actual notice by mail of the notice to creditors to those with mere conjectural claims.
The Probate Code nonclaim statute does not divest a court of jurisdiction over untimely filed claims.
A nonclaim statute, by definition, is a law that sets a time limit for creditors to bring claims against a decedent's estate, and unlike a statute of limitations, a nonclaim statute is usually not subject to tolling and is not waivable.
The nonclaim statute under the Probate Code cannot be tolled during a person's minority.
Interpretation of an insurance contract is a question of law fully reviewable on appeal, and the Supreme Court independently examines and construes the insurance contract to determine coverage.

Chambering of Judgeship No. 10 in the Northwest Judicial District 2013 ND 82
Docket No.: 20130134
Filing Date: 5/17/2013
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Williston.

Chambering of Judgeship No. 9 in the East Central Judicial District 2013 ND 81
Docket No.: 20130132
Filing Date: 5/16/2013
Case Type: Judicial Administration - Rule - Rule
Author:

Highlight: New judgeship to be chambered in Fargo.

Maddock, et al. v. Andersen, et al. 2013 ND 80
Docket No.: 20120271
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: Violation of the reasonable use rule cannot be established where the source of surface water drainage cannot be conclusively shown.

State v. Estrada 2013 ND 79
Docket No.: 20120270
Filing Date: 5/14/2013
Case Type: Appeal - Criminal - Assault
Author: Sandstrom, Dale

Highlight: A modified self-defense jury instruction if, when considered with all jury instructions given as a whole, adequately informs the jury of the applicable law is not obvious error.

Johnson v. Bronson, et al. 2013 ND 78
Docket No.: 20120239
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Malpractice
Author: Kapsner, Carol

Highlight: A prima facie case of medical negligence requires expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.
The elements of a legal malpractice action against an attorney for professional negligence are [1] the existence of an attorney-client relationship, [2] a duty by the attorney to the client, [3] a breach of that duty by the attorney, and [4] damages to the client proximately caused by the breach of that duty.
Generally, expert testimony is necessary to establish the professional's standard of care (duty) and whether the professional's conduct in a particular case deviated from that standard of care (breach of duty).
The untimely submission of additional evidence to support a N.D.R.Civ.P. 60(b) motion does not create exceptional circumstances justifying relief.

State v. Romero 2013 ND 77
Docket No.: 20110337
Filing Date: 5/14/2013
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Allowing the jury to view the scene of a charged offense rests in the trial court's sound discretion.
A motion for judgment of acquittal must be denied if, upon reviewing the evidence most favorable to the prosecution, there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.

Bachmeier v. Bachmeier 2013 ND 76
Docket No.: 20120358
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: An otherwise valid parenting plan that was attached to the judgment will not be invalidated because the district court did not recite formulaic words of incorporation.
A court order must be sufficiently clear, specific, and unambiguous to hold a person in contempt for violating it.

Interest of S.R.B. (Confidential) 2013 ND 75
Docket No.: 20130112
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: In an expedited appeal taken from an order for hospitalization and treatment, a trial court must make findings of fact specially under N.D.R.Civ.P. 52(a) as to whether the respondent is a person requiring treatment and hospitalization is the least restrictive treatment.
A mental health patient has the right to notice and a hearing prior to the trial court's issuing an order requiring the use of prescribed medication.

City of Grafton v. Wosick 2013 ND 74
Docket No.: 20120360
Filing Date: 5/14/2013
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: No obvious error is shown when the defendant anticipated the charge and prepared for trial accordingly.
The purpose of N.D.R.Ev. 707(a) is to ensure a defendant has an opportunity to object and confront witnesses.
A party failing to object to admission of evidence when offered may not challenge its admission on appeal.

Northern Oil & Gas, Inc. v. Creighton, et al. 2013 ND 73
Docket No.: 20120420
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Deciding an issue on a motion for summary judgment is not appropriate if there are disputed factual issues or if reasonable differences of opinion exist as to the inferences to be drawn from the undisputed facts.
Reformation of a contract is not permitted if it cannot be done without prejudice to the rights acquired by a third person in good faith and for value.
A good-faith purchaser must acquire rights without actual or constructive notice of another's rights.

Gadeco v. Industrial Commission, et al. (cross-ref. w/20110131 & 20110140) 2013 ND 72
Docket No.: 20120344
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The Industrial Commission has discretion to evaluate compliance with the requirements for an invitation to participate in the costs of drilling a well.
An election to participate in the costs of drilling a well must be received by the owner giving the invitation to participate within 30 days of the participating party's receipt of the invitation.

Dieterle v. Dieterle 2013 ND 71
Docket No.: 20120329
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court need not make separate findings of fact for each of the best-interest factors, a court's findings regarding one factor may be applicable to another factor, and a court need not consider irrelevant factors in its decision on primary residential responsibility for a child.
Allowing neutral individuals to resolve disputes between the parties, so long as access by the parties to the district court is allowed for ultimate resolution of the dispute, is not an improper delegation of judicial power.
Adverse rulings alone are not evidence of judicial bias or partiality.
Appellate briefs must contain references to the evidentiary record supporting statements of disputed facts.

Waslaski v. State (cross-reference w/ 20120257) 2013 ND 70
Docket No.: 20120342
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A motion for reconsideration is not a formally recognized motion and is not one of the enumerated appealable orders.
In appropriate circumstances, a motion for reconsideration may be treated as a motion to alter or amend a judgment or a motion for relief from a judgment or order.

Jassek v. Workforce Safety and Insurance 2013 ND 69
Docket No.: 20110225
Filing Date: 5/14/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: A binding dispute resolution decision under N.D.C.C. 65-02-20 requested by a medical provider concerning a request for treatment is not appealable to the district court.

Interest of Hoff 2013 ND 68
Docket No.: 20120248
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: A district court's decision whether to require an individual to be restrained during a civil commitment proceeding is reviewed for an abuse of discretion.
An individualized determination that restraints are necessary must be made after an individual requests that the restraints be removed. Restraints should not exceed what the particular situation requires.
The determination whether restraints are necessary requires an individualized determination on the record of the individual's record, temperament, and desperateness of his situation; the security situation at the courtroom and courthouse; the individual's physical condition; and whether there was an adequate means of providing security that was less prejudicial.
A district court abuses its discretion when it fails to make an independent assessment whether to require an individual to remain restrained during a civil commitment hearing.

Steen v. State (consolidated w/20120399 - 20120402) 2013 ND 67
Docket No.: 20120398
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from order denying application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Ennen v. State (cross-reference with 20110003) 2013 ND 66
Docket No.: 20120408
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of J.P. (Confidential) (consolidated with 20130057 & 20130058) 2013 ND 65
Docket No.: 20130048
Filing Date: 5/14/2013
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court judgments terminating a mother's parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Waslaski v. State 2013 ND 64
Docket No.: 20120453
Filing Date: 5/14/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Matter of Emelia Hirsch Trust (Cross-reference w/20080209,20120141,20120241) 2013 ND 63
Docket No.: 20120371
Filing Date: 4/11/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: An order denying a motion to vacate an order reforming a trust is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Dawson v. N.D. Dep't of Transportation 2013 ND 62
Docket No.: 20120417
Filing Date: 4/11/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Hearsay statements may not be admitted under the present sense impression exception when a sufficient lapse in time has occurred between the event and the declarant's statement, allowing for reflective thought.
Suspension of an individual's driving privileges is improper when a reasonable mind cannot reasonably conclude that the individual drove or was in physical control of a vehicle within two hours of the performance of a chemical test.

Interest of M.H.P. (CONFIDENTIAL) 2013 ND 61
Docket No.: 20120340
Filing Date: 4/10/2013
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: The Double Jeopardy Clause of the U.S. Constitution bars review of a juvenile court finding that a juvenile who committed a delinquent act is not in need of treatment or rehabilitation.
The Double Jeopardy Clause of the U.S. Constitution does not bar review of whether a juvenile should have been required to register as a sexual offender.
Once a juvenile court dismisses a juvenile proceeding under N.D.C.C. 27-20-29(2), the State's petition is dismissed, and nothing remains to be adjudicated.

Larson, et al. v. Norheim, et al. 2013 ND 60
Docket No.: 20120236
Filing Date: 4/8/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The owners of a mineral interest may preserve their interest by recording a statement of claim within sixty days of the publication of a notice of lapse of mineral interest.
The statement of claim may be recorded by an owner's representative, and the representative's authorization to record the claim on the owner's behalf is not required to be in writing.

Kruckenberg v. State (cross-reference w/20080106 & 20110333) 2013 ND 59
Docket No.: 20120387
Filing Date: 4/8/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Woodward v. Woodward 2013 ND 58
Docket No.: 20120315
Filing Date: 4/8/2013
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: When deciding whether spousal support is appropriate, even if a spouse can be rehabilitated, a court may award permanent spousal support to ensure one party does not bear the brunt of the overall reduction in standard of living.
Spousal support does not terminate automatically upon cohabitation, because unmarried cohabitants have no obligation to support each other.

K & L Homes, Inc. v. American Family Mutual Ins. Co. 2013 ND 57
Docket No.: 20120060
Filing Date: 4/5/2012
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: In an insurance policy, an exception to an exclusion may result in coverage, but is applicable only if the policy initially grants coverage and an exclusion precluding coverage applies.
Faulty workmanship may constitute an occurrence under a commercial general liability policy if the faulty work was unexpected and not intended by the insured, and the property damage was not anticipated or intentional, so that neither the cause nor the harm was anticipated, intended, or expected.
The definition of occurrence in a commercial general liability policy is not defined by terms of ownership or the character of the property damaged.
If a general contractor is liable for damages to work, including its own work product, arising out of a subcontractor's workmanship, the subcontractor exception preserves coverage that the "your work" exclusion precludes.

Waslaski v. State 2013 ND 56
Docket No.: 20120368
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Arguments raised for the first time on appeal generally will not be considered by this Court.

State v. Farrell 2013 ND 55
Docket No.: 20120338
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: The Interstate Agreement on Detainers Act provides no relief by dismissing criminal judgments entered before the request for disposition of charges, nor does it make available monetary relief.