Opinions

State v. Doppler 2013 ND 54
Docket No.: 20120198
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A trial court abuses its discretion if the record does not show the court meaningfully or appropriately considered the relevant factors under N.D.R.Ev. 609(a)(1) when weighing a prior conviction's probative value and prejudicial effect.
Failure to weigh the probative value and prejudicial effect of a prior conviction under N.D.R.Ev. 609(a)(1) combined with improper use of the convictions as character evidence may adversely affect a defendant's substantial rights constituting obvious error.
Erroneous admission of a defendant's prior convictions, combined with the improper use of the convictions as improper character evidence in the State's closing argument and the lack of limiting jury instructions, is error affecting defendant's substantial rights and is not harmless.

Nienow v. Anderson 2013 ND 53
Docket No.: 20120434
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The N.D. Department of Human Service's determination of whether income is recurring is a finding of fact which will not be overturned on appeal unless it is not supported by a preponderance of the evidence.

Niles, et al. v. Eldridge 2013 ND 52
Docket No.: 20120294
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Issues raised for the first time on appeal will not be considered.
A district court does not abuse its discretion by denying a motion to amend an answer when the proposed amendment would be futile.

HIT, Inc. v. N.D. Dep't of Human Services 2013 ND 51
Docket No.: 20120299
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The N.D. Department of Human Services may set the margin requiring a refund of Individualized Supported Living Arrangements overpayments and does not require the margin be calculated in a particular way.

Estate of Christeson, et al. v. Gilstad, et al. 2013 ND 50
Docket No.: 20120328
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: When interpreting a statute, it must be presumed the legislature intended all that it said, said all that it intended to say, and meant what it has plainly expressed.
The recording of a lease executed by one who is the legal owner, but not the record owner, of a mineral interest constitutes a use of the mineral interest which will preclude forfeiture of the mineral interest under the abandoned mineral statutes.

State v. Stegall (consolidated w/ 20120365, 20120386) 2013 ND 49
Docket No.: 20120362
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: The fugitive-dismissal rule does not apply to a defendant who absconds during pre-trial and trial proceedings.
The trial court has discretion to extend its own deadlines, including deadlines established in a scheduling order before trial.
For purposes of criminal prosecution for endangerment of a child, an unborn child is not a child, and N.D.C.C. 19-03.1-22.2 does not apply to acts committed on an unborn child, regardless of whether the child is subsequently born alive or dies in utero.
There is no distinction between a factual scenario in which the pregnant woman prenatally ingests a controlled substance and the child subsequently dies in utero and the factual scenario in which the child is born alive for purposes of criminal prosecution of the mother.

Hoverson v. Hoverson 2013 ND 48
Docket No.: 20120281
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A property distribution need not be equal to be equitable, but a substantial disparity must be explained.
An upward deviation in child support may be made in an amount appropriate to the needs of the children and the ability of the parent to pay.

Jensen v. Deaver 2013 ND 47
Docket No.: 20120373
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A restriction of parenting time must be supported by a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.
A district court's findings restricting parenting time must be sufficient to understand the basis for the court's decision that the children would suffer physical or emotional harm without the restrictions on visitation.

Hayden, et al. v. Medcenter One, Inc., et al. 2013 ND 46
Docket No.: 20120337
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The proper method for a party to seek additional time for discovery is to make a motion under N.D.R.Civ.P. 56(f).
The essential element in recovering under the theory of unjust enrichment is the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value.
To prevail on a claim based on quantum meruit, the claimant must establish the recipient accepted benefits under circumstances which would reasonably notify the recipient that the claimant had an expectation of payment for the services rendered.
Equitable estoppel does not by itself give rise to a cause of action, and it cannot be used to create an enforceable agreement between the parties.
While parties who depend on the outcome of the litigation to recover their share of the funds are required to share in the costs of the litigation under the common fund doctrine, hospital lien creditors are entitled to payment regardless of the outcome of the litigation and therefore are not required to share in the litigation costs.

Matter of C.J.S. 2013 ND 45
Docket No.: 20120370
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court judgment changing a child's surname is affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Wisham 2013 ND 44
Docket No.: 20120355
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment for contributing to the delinquency of a minor is affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

State v. Bentz 2013 ND 43
Docket No.: 20120345
Filing Date: 4/4/2013
Case Type: Appeal - Criminal - Misc. Felony
Author:

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

Froistad v. Schmalenberger, et al. 2013 ND 42
Docket No.: 20120381
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order summarily dismissing Froistad's petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Gaede v. State 2013 ND 41
Docket No.: 20120326
Filing Date: 4/4/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court judgment denying an applicant's petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Estate of Dionne (cross-reference w/20090016 and 20100353) 2013 ND 40
Docket No.: 20120249
Filing Date: 3/18/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A will does not need to be admitted to probate when a valid distribution agreement signed by all parties with a possible claim in the estate disposes of all property in the estate.
The doctrines of res judicata and collateral estoppel prevent relitigation of issues or claims previously decided.

Disciplinary Board v. Gross 2013 ND 39
Docket No.: 20120456
Filing Date: 3/8/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer publicly reprimanded.

Hysjulien v. Hill Top Home of Comfort, et al. 2013 ND 38
Docket No.: 20120163
Filing Date: 3/4/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The time for filing a claim for an unlawful employment practice under Title VII or the Human Rights Act depends on whether the claim raises discrete discriminatory or retaliatory acts or alleges a hostile work environment.
Discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges, and each discrete discriminatory act starts a new period for filing charges alleging that act.
A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice. In deciding whether a hostile work environment exists, a court looks to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Intentional infliction of emotional distress requires proof of (1) extreme and outrageous conduct that is (2) intentional or reckless and causes (3) severe emotional distress.
A plaintiff claiming negligent infliction of emotional distress must also show bodily harm.

Hanisch v. Kroshus 2013 ND 37
Docket No.: 20120251
Filing Date: 3/1/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A district court has discretion in deciding to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order.
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.

Mees v. N.D. Dep't of Transportation 2013 ND 36
Docket No.: 20120348
Filing Date: 2/28/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: The Intoxilyzer test record and checklist is presumed to show fair administration of the approved method until the defendant shows that the evidence as a whole clearly negates the presumed fact.
If a fact-finder can draw reasonable inferences from the evidence and conclude the subject could not have eaten, drank, or smoked, the 20-minute wait requirement has been met.

Barrett, et al. v. Gilbertson 2013 ND 35
Docket No.: 20120279
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party claiming a breach of contract must prove the existence of a contract, a breach of the contract, and damages which flow from the breach.
In interpreting a contract, the court may consider proof of the existence of a separate oral stipulation or agreement as to any matter on which the written contract was silent and which is not inconsistent with its terms if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.
When one party prevents the other party's performance of a term of a contract, it excuses the nonperformance and provides a defense in a suit for breach by the nonperformance.

Davis v. State (cross-reference w/20080331 & 20090093) 2013 ND 34
Docket No.: 20120272
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Discovery in the post-conviction context requires good cause and may be used only to the extent and in the manner the district court has ordered.
To obtain discovery under the statutory good cause standard: (1) the evidence sought to be discovered, if established, must allow the applicant to obtain post-conviction relief, and (2) contain specific and particularized allegations.
Post-conviction relief may be granted when evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.
Post-conviction relief under N.D.C.C. 29-32.1-01(1)(e) is similar to a N.D.R.Crim.P. 33 request for new trial based on newly discovered evidence, and a defendant must show: (1) the evidence was discovered after trial; (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence; (3) the newly discovered evidence is material to the issues at trial; and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

Bakken, et al. v. Duchscher, et al. 2013 ND 33
Docket No.: 20120232
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Extrinsic evidence may not be used to vary or contradict the terms of an unambiguous agreement or to create an ambiguity.
The party invoking laches has the burden of proving he was prejudiced because his position has become so changed during the delay that he cannot be restored to the status quo.

Interest of S.R.L. 2013 ND 32
Docket No.: 20120282
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An award of joint residential responsibility will be affirmed if supported by sufficient findings of fact consistent with the children's best interests.
Uncooperative parents may be awarded joint residential responsibility when it is in the child's best interests.

Guardianship of J.S.L.F. 2013 ND 31
Docket No.: 20120162
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Guardian/Conservator
Author: VandeWalle, Gerald

Highlight: A guardianship proceeding is an inappropriate method for testing the fitness of a parent.
To prove a parent's rights to his or her child have been suspended by circumstances due to abandonment, the petitioner must satisfy the same standards to prove abandonment required in the Uniform Juvenile Court Act and the Revised Uniform Adoption Act.

Riemers v. Jaeger 2013 ND 30
Docket No.: 20120353
Filing Date: 2/26/2013
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Crothers, Daniel John

Highlight: A party seeking writs of mandamus, prohibition, or injunction must demonstrate a clear legal right to the relief requested.
Injunctive relief must state its terms specifically and describe in reasonable detail the acts restrained or required.
A state official is not required to request an attorney general's written opinion for all legal questions that may arise during the course of the official's discharge of public duties.

Hageman v. Hageman 2013 ND 29
Docket No.: 20120183
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decision to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review.
Strong public policy favors prompt and peaceful resolution of divorce disputes and generates a judicial bias in favor of the adoption of a stipulated agreement of the parties.

Morrow v. Ziegler 2013 ND 28
Docket No.: 20120323
Filing Date: 2/26/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The requirement that an officer include his or her observation that a driver's body contained alcohol on the report and notice is basic and mandatory for the Department of Transportation to have authority to suspend the driver's license for refusal to submit to an onsite screening test.
Allowing the Department to infer elements that are basic and mandatory without any factual basis on the report to support the inference slants the law too much toward the Department's convenience.

Burgard v. Burgard 2013 ND 27
Docket No.: 20120285
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A motion made under N.D.R.Civ.P. 60(b) is the exclusive remedial procedure to set aside a default judgment.
On direct appeal from a default judgment granted under N.D.R.Civ.P. 55, the standard of review is limited to whether "irregularities appear on the face of the judgment roll."

Matter of J.G. (CONFIDENTIAL) (cross-ref. w/20100366) 2013 ND 26
Docket No.: 20120199
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Whether an individual engaged in sexually predatory conduct is barred by res judicata from being relitigated on a petition for discharge.

Dahl v. State (Consolidated w/20120211)(Cross-reference w/20090262) 2013 ND 25
Docket No.: 20120209
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The district court has discretion in deciding whether to grant a defendant's request for a bifurcated trial in a case in which there is an issue of lack of criminal responsibility.
When the issue of lack of criminal responsibility is submitted to the trier of fact, N.D.C.C. 12.1-04.1-18 provides for the appropriate form of the verdict or finding and requires the trier of fact to find the defendant not guilty by lack of criminal responsibility if the trier of fact finds the defendant committed the offense but was not criminally responsible.

Olson, et al. v. Job Service, et al. 2013 ND 24
Docket No.: 20120250
Filing Date: 2/26/2013
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Kapsner, Carol

Highlight: The phrase "a claimant's work stoppage dispute of any kind" in N.D.C.C. 52-06-02(4) refers to employee-initiated work stoppages, and an employer's lockout of its employees as a result of a labor dispute is not an employee-initiated work stoppage.

State v. Kusy 2013 ND 23
Docket No.: 20120377
Filing Date: 2/26/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment for luring a minor by computer and for sexual assault is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Flah 2013 ND 22
Docket No.: 20120357
Filing Date: 2/26/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A district court judgment of conviction for possession of drug paraphernalia after a jury trial is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

In the Matter of Finstad (CONFIDENTIAL) 2013 ND 21
Docket No.: 20130051
Filing Date: 2/15/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Transferred to incapacity to practice law status.

Disciplinary Board v. McDonagh (Cross-ref. w/ 20110167,20120237 & 20120238) 2013 ND 20
Docket No.: 20120445
Filing Date: 2/13/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer discipline ordered.

Reciprocal Discipline of Kleinsmith 2013 ND 19
Docket No.: 20130019
Filing Date: 2/12/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimand and probation ordered.

Reciprocal Discipline of Kitchen 2013 ND 18
Docket No.: 20130018
Filing Date: 2/13/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

A.G. Golden, et al. v. SM Energy Company 2013 ND 17
Docket No.: 20120265
Filing Date: 2/1/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: An area of mutual interest clause is not a covenant that runs with the land, but is a personal covenant that is enforceable only between the original parties to the agreement.
An assignment is an expression of intention by the assignor that his duty shall immediately pass to the assignee, and the benefitted party's consent to the transfer can be manifested either expressly or by implication.
An assignee is responsible only for the obligations of the assignor which the assignee contracts to undertake.
A district court cannot grant relief on the basis of issues that are neither pleaded nor voluntarily litigated.
A well operator is not automatically insulated from liability for underpayment of royalties simply because the incorrect payments were made in accordance with an executed division order.

Capps, et al. v. Weflen, et al. 2013 ND 16
Docket No.: 20120184
Filing Date: 1/29/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Certification under N.D.R.Civ.P. 54(b) should not be routinely granted and is reserved for cases involving unusual circumstances where failure to allow an immediate appeal would create a demonstrated prejudice or hardship.

Dakota Heritage Bank v. Pankonin, et al. 2013 ND 15
Docket No.: 20120335
Filing Date: 1/28/2013
Case Type: Appeal - Civil - Foreclosure
Author: Per Curiam

Highlight: District court order denying a motion for relief from summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Riedlinger, et al. v. Steam Brothers, Inc. 2013 ND 14
Docket No.: 20120111
Filing Date: 1/28/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A contract is ambiguous if rational arguments can be made for different interpretations of the contract.
If a contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent, and the terms of the contract and the parties' intent become questions of fact.

Investors Title Ins. Co. v. Herzig, et al. (Cons. w/20120214) 2013 ND 13
Docket No.: 20120213
Filing Date: 1/23/2013
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The district court is required to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court's mandate into effect according to its terms.

Sateren v. Sateren 2013 ND 12
Docket No.: 20120192
Filing Date: 1/23/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Generally, individuals that unconditionally, voluntarily, and consciously accept a substantial benefit from a divorce judgment waive the right to appeal the judgment.
The appellate court must be able to understand the basis for the district court's decision.
Violations of interim provisions affecting marital property before entry of final judgments in divorce cases are not condoned.

Interest of J.M. (CONFIDENTIAL) 2013 ND 11
Docket No.: 20120253
Filing Date: 1/23/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A district court has broad discretion in deciding whether a proffered expert witness's testimony will assist the trier of fact and in evaluating whether there is an adequate factual basis for the expert's opinion.

Coppage v. State 2013 ND 10
Docket No.: 20120267
Filing Date: 1/23/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: N.D.R.Ev. 609 governs the admission of evidence of certain criminal convictions for the purpose of attacking a witness's general character for truthfulness. Rule 609 does not apply to the admission of evidence of a prior conviction for purposes of impeachment by contradiction.
Evidence that is otherwise inadmissible, may be admitted if the opposing party opens the door through his testimony and invites any error.
A district court is required to follow the pronouncement of any appellate court on legal issues in subsequent proceedings and to carry out the appellate court's mandate according to its terms.

Sweeney v. Kirby 2013 ND 9
Docket No.: 20120339
Filing Date: 1/23/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A party seeking to modify primary residential responsibility who provides competent evidence demonstrating a prima facie case for modification is entitled to an evidentiary hearing.

State v. Chacano 2013 ND 8
Docket No.: 20120187
Filing Date: 1/23/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A failure to make a proper trial objection to evidence prevents a defendant from arguing on appeal the trial court erred in admitting the evidence.
A prosecutor errs by arguing to the jury the defendant's testimony is a lie.
A defendant must establish his substantial rights were affected by a prosecutor's improper argument for the conviction to be reversed.

Pederson v. State 2013 ND 7
Docket No.: 20120331
Filing Date: 1/23/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Chase 2013 ND 6
Docket No.: 20120332
Filing Date: 1/23/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of continuous sexual abuse of a child summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Poitra v. State (cross-reference w/20090339) 2013 ND 5
Docket No.: 20120283
Filing Date: 1/23/2013
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).