Opinions

Lund v. Lund, et al. 2012 ND 255
Docket No.: 20120210
Filing Date: 12/18/2012
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The phrase "transacting any business in this state" in the long-arm jurisdiction provision under N.D.R.Civ.P. 4(b)(2)(A) must be given a broad, expansive interpretation.
Contacts sufficient to support personal jurisdiction under N.D.R.Civ.P. 4(b)(2) need not be current but may arise from past conduct, and personal jurisdiction may be exercised over a former resident for claims arising from activities she engaged in while previously residing in the state.

Interest of T.H. (CONFIDENTIAL)(cross reference with 20110084) 2012 ND 254
Docket No.: 20120168
Filing Date: 12/18/2012
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: Unless a statute imposing a time limit declares that the time limit is jurisdictional, the time limit will not be treated as affecting the jurisdiction of a court or administrative agency.
Whether a child remains deprived is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.

D.E. v. K.F., et al. (CONFIDENTIAL) 2012 ND 253
Docket No.: 20120069
Filing Date: 12/18/2012
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A presumption of paternity arises when a man is married to the mother of a child and the child is born during the marriage.
Only a person for whose benefit a statute of limitations inures or someone standing in that person's place may take advantage of the statute. A statute of limitations defense may not be asserted by one party on behalf of another person.
In proceedings to adjudicate parentage, the court shall appoint a guardian ad litem to represent a minor or incapacitated child if the child is a party or if the court finds that the interests of the child are not adequately represented.

State v. Benefiel (Consolidated w/20120275) 2012 ND 252
Docket No.: 20120274
Filing Date: 12/18/2012
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Two district court orders revoking a defendant's probation and resentencing him to five years' imprisonment are summarily affirmed under N.D.R.App.P 35.1(a)(2) and (4).

State v. Wolfgram 2012 ND 251
Docket No.: 20120286
Filing Date: 12/18/2012
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Criminal judgment sentencing defendant to imprisonment within statutory range summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Interest of Voisine (Cross-reference w/20090182 & 20100163) 2012 ND 250
Docket No.: 20120325
Filing Date: 12/18/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying request for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. McCray 2012 ND 249
Docket No.: 20120363
Filing Date: 12/3/2012
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Lawyer suspension ordered.

Deyle v. Deyle 2012 ND 248
Docket No.: 20120157
Filing Date: 11/30/2012
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: District courts must look both forward and backward when making primary residential responsibility findings under N.D.C.C. 14-09-06.2(1)(d) after factor (d) was amended in 2009.
A district court's denial of attorney fees or interim child support must be explained.
A district court's denial of extended summer parenting time between a non-custodial parent and a child of sufficient age must be explained.

State v. Herzig 2012 ND 247
Docket No.: 20110304
Filing Date: 11/28/2012
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: When a legitimate dispute exists as to whether a road is a public road by prescription, resolution should take place civilly and not in a criminal trespass action.

Ehlen v. Melvin, et al. 2012 ND 246
Docket No.: 20120233
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: For the existence of a contract, the parties must consent to the agreement, and consent is not mutual unless the parties all agree upon the same thing in the same sense.
The acceptance of a contract must be absolute and unqualified, and a qualified acceptance is a counteroffer.

Niska v. Falconer 2012 ND 245
Docket No.: 20120252
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A district court's finding of domestic violence may be based on actual harm, or the infliction of fear of imminent harm.
A district court's finding of domestic violence must be adequate to understand the basis for its decision.

Muldoon v. WSI, et al. 2012 ND 244
Docket No.: 20120273
Filing Date: 11/27/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: Conflicting testimony will not be reweighed and credibility of witnesses will not be reassessed on appeal.
Willful conduct is conduct engaged in intentionally and not inadvertently. Such a state of mind can rarely be proven directly and must usually be inferred from conduct and circumstantial evidence.
An issue not properly raised before the trial court cannot be brought for the first time on appeal.

State v. Dominguez 2012 ND 243
Docket No.: 20120240
Filing Date: 11/27/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: A trial court may not grant a new trial on its own motion and may act only upon a timely motion made by the defendant.
An order entered by a trial court without jurisdiction is void and may be vacated by the Supreme Court.
The Supreme Court lacks jurisdiction to decide the merits of an appeal from an order denying an untimely motion for a new trial.

State, ex rel. Madden v. Rustad, et al. 2012 ND 242
Docket No.: 20120305
Filing Date: 11/27/2012
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: Under the Confrontation Clause, an accused is entitled to confront witnesses who make testimonial statements in analytical reports.

Haag v. State 2012 ND 241
Docket No.: 20120196
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The Board of Pharmacy has authority to adopt administrative rules designating prohibited controlled substances, and upon becoming effective, a final administrative rule designating a prohibited controlled substance has the force and effect of law.

State v. Tresenriter (Consolidated w/20120027-20120049 & 20120057) 2012 ND 240
Docket No.: 20120026
Filing Date: 11/27/2012
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A party who fails to object at trial to admission of offered evidence waives the objection and may not on appeal challenge admission of the evidence.
A defendant alleging obvious error has the burden to demonstrate plain error that affected his substantial rights, and the error must be a clear deviation from an applicable legal rule under current law.

Schwab v. Zajac 2012 ND 239
Docket No.: 20120172
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A party who voluntarily pays a judgment waives the right to appeal from the judgment.
Evidence of settlement negotiations is not admissible to prove liability for a claim that is disputed as to either the validity or the amount.
Error may not be predicated upon an exclusion of evidence unless a substantial right is affected and the substance of the evidence was made known to the trial court in an offer of proof.
A self-represented litigant is held to the same procedural rules as a litigant represented by counsel.
A plaintiff in a quiet title action involving a slander of title claim is entitled to attorney fees on appeal in defending a favorable judgment.

Holkesvig v. Welte (cons. w/20120204-205) (cross-ref listed in memo screen) 2012 ND 236
Docket No.: 20120203
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court judgment finding plaintiff in contempt is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Interest of A.J.L.H. (Confidential) (consolidated w/20120383-20120385) 2012 ND 235
Docket No.: 20120382
Filing Date: 11/27/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Keita v. Keita 2012 ND 234
Docket No.: 20110252
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Parenting time with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health. A restriction on 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.
An award of supervised parenting time based on a finding that a party is a flight risk must be supported by specific evidence that the parent has an intent to abscond or flee with the child or that the parent has hindered the other parent's custody of the child.
A district court errs in reserving jurisdiction to award spousal support only to ensure future compliance with its property division and attorney fees award.

Interest of G.L.D. (CONFIDENTIAL) (cross-reference w/20100230) 2012 ND 233
Docket No.: 20120175
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying request for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Waslaski v. State (consolidated w/ 20120292 & 20120293, cross reference in memo) 2012 ND 232
Docket No.: 20120291
Filing Date: 11/27/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order summarily dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Jordet, et al. v. Jordet 2012 ND 231
Docket No.: 20120185
Filing Date: 11/5/2012
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The equitable remedy of setoff will be exercised to promote substantial justice and rests largely in the sound discretion of the district court.
Generally, a person who has been denied one remedy by a court is not prohibited from pursuing other available remedies.

State v. Jirinzu 2012 ND 230
Docket No.: 20120247
Filing Date: 10/25/2012
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court criminal judgment revoking David Jirinzu's probation and sentencing him to eighteen months of imprisonment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and 35.1(a)(7).

State v. Kirkpatrick 2012 ND 229
Docket No.: 20110312
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A criminal information needs to be sufficient enough to provide a defendant notice of the charge against him, to enable him to prepare a defense, and to plead the result in bar of a subsequent prosecution for the same offense.
Extreme emotional disturbance is a mitigating factor, and its application becomes attenuated as the amount of time between its triggering event and the crime increases.

Fonder v. Fonder 2012 ND 228
Docket No.: 20120134
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Krueger v. Tran 2012 ND 227
Docket No.: 20120152
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In modification of primary residential responsibility cases, a material change in circumstances can exist when one parent attempts to alienate a child's affection for the other parent, when parents are openly hostile towards each other and that hostility negatively affects the child, or when the noncustodial parent's situation improves accompanied by a general decline in the child's condition with the other parent over the same time period.
Methods other than a change of residential responsibility should be used initially to attempt to remedy a parent's misbehavior, but, after exhausting other remedies, a change may be the only method to correct the damage of a particularly stubborn and defiant custodial parent.

Herring, et al. v. Lisbon Partners, et al. 2012 ND 226
Docket No.: 20120090
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: The owner of a tree's trunk owns the entire tree, including branches and roots which encroach upon adjoining property.
The owner of a tree whose branches or roots encroach upon neighboring property may be liable when the encroaching branches or roots cause damage, or create imminent danger of causing damage, beyond merely casting shade or dropping leaves, flowers, or fruit.
A neighboring landowner may engage in self-help and cut back encroaching branches or roots to the property line.

Hammeren v. Hammeren 2012 ND 225
Docket No.: 20110345
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The district court must award primary residential responsibility to the parent who will better promote the child's best interests, and the court must consider all the relevant statutory best-interest factors. Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision.
The preference of a child who is capable of intelligently choosing between his parents for custody can be significant in determining the best interest of the child, but the child's preference is only one factor to consider and is not usually determinative.
Although rotating residential responsibility is not per se erroneous, a court's findings must support the conclusion such alternating custody is in the child's best interests.
A district court's decision on a motion to amend or make additional findings under N.D.R.Civ.P. 52(b), on a motion to alter or amend a judgment under N.D.R.Civ.P. 59(j), or on a motion for relief from the judgment under N.D.R.Civ.P. 60(b), will not be reversed on appeal absent an abuse of discretion.

Disciplinary Board v. McDonagh (Consolidated w/ 20120238) 2012 ND 224
Docket No.: 20120237
Filing Date: 10/23/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Gardner v. N.D. Dep't of Transportation 2012 ND 223
Docket No.: 20120230
Filing Date: 10/23/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Whether an officer failed to give an implied consent advisory is not an issue for the administrative hearing for the suspension of the individual's driver's license.
An individual may be deemed to have refused chemical testing for blood alcohol content when the individual repeatedly refuses to cooperate with police after chemical testing is requested.

Shannon v. Shannon 2012 ND 222
Docket No.: 20110340
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A judgment which does not adjudicate all claims of all of the parties is interlocutory and nonappealable unless the district court expressly certifies the judgment is final under N.D.R.Civ.P. 54(b).
A judgment or order that resolves only part of a single claim may not be certified as final under N.D.R.Civ.P. 54(b).

Zaiser v. Jaeger 2012 ND 221
Docket No.: 20120346
Filing Date: 10/23/2012
Case Type: Original Proceeding - Civil - Writ of Prohibition
Author: Kapsner, Carol

Highlight: The Secretary of State may not count elector signatures on initiative petitions accompanied by circulator affidavits that falsely swear each elector signature was executed in circulator's presence and each elector signature is the genuine signature of the individual whose name it purports to be.

Moseng v. Frey, et al. 2012 ND 220
Docket No.: 20120226
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: A plaintiff cannot recover damages for emotional distress resulting from an affair between the plaintiff's spouse and a third party.

Wenco v. EOG Resources, Inc., et al. 2012 ND 219
Docket No.: 20120194
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: If a mineral owner who owns a mineral interest subject to an outstanding royalty interest executes a mineral deed with a warranty clause to a party conveying mineral acres or interests in oil, gas and other minerals in and under without any reference to the outstanding royalty interest, the retained mineral interest of the mineral owner alone bears the outstanding royalty if the interest is large enough to satisfy the royalty interest.
Decisions are pronounced by a majority of the Supreme Court.
Although the existence or absence of waiver is generally a question of fact, the issue becomes a question of law if reasonable persons could draw only one conclusion from the circumstances.

Evenson v. Evenson (cross reference w/20060148 & 20080112) 2012 ND 218
Docket No.: 20120182
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: An order denying a motion to modify spousal support is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bishop v. WSI, et al. 2012 ND 217
Docket No.: 20120138
Filing Date: 10/23/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: A vocational rehabilitation plan is appropriate if it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.
Because the legislature intended for injured workers to be provided with actual rehabilitation with a realistic opportunity to return to work, and not merely a theoretical rehabilitation on paper only, WSI must consider all of the injured worker's functional limitations when determining whether the employment options identified in the rehabilitation plan present a realistic opportunity for substantial gainful employment.

State of N.D., et al. v. N.D. Insurance Reserve Fund 2012 ND 216
Docket No.: 20110368
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: The statutory procedure authorizing a proceeding to enforce an administrative subpoena in district court, is a special proceeding, and an order denying an application for enforcement of an administrative subpoena is appealable.
The particular controls general rule of statutory construction applies only when the conflict between two statutory provisions is irreconcilable.
The Department of Human Services was statutorily authorized to issue an administrative subpoena to the North Dakota Insurance Reserve Fund seeking information relevant to child support enforcement.

Corman v. State 2012 ND 215
Docket No.: 20120307
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief application summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Stridiron v. State (cross-reference w/20080285) 2012 ND 214
Docket No.: 20120159
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order summarily dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

State v. Jones 2012 ND 213
Docket No.: 20120165
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for forgery entered upon a guilty plea summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of T.M. (CONFIDENTIAL) (consolidated w/20120117) 2012 ND 212
Docket No.: 20120116
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: Order finding juvenile committed disorderly conduct and is a deprived child, and placing him in custody of Social Services for one year with authority to remove him from mother's home, is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Corman v. State 2012 ND 211
Docket No.: 20120309
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Anaya-Verajerano 2012 ND 210
Docket No.: 20120268
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment entered upon a jury verdict finding defendant guilty of conspiracy to commit burglary and conspiracy to commit theft is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Smith 2012 ND 209
Docket No.: 20120234
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Holkesvig v. Grove (consol. w/ 20120225) 2012 ND 208
Docket No.: 20120169
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Summary judgment dismissing claims alleging misconduct by a law enforcement officer and orders denying post-judgment motions and prohibiting the plaintiff from filing further motions or pleadings is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. McGeehan 2012 ND 207
Docket No.: 20120164
Filing Date: 10/23/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment after a jury found a defendant guilty of simple assault on a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Hankey 2012 ND 206
Docket No.: 20120304
Filing Date: 10/15/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Disciplinary Board v. Summers 2012 ND 205
Docket No.: 20120317
Filing Date: 10/1/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Walstad v. Walstad 2012 ND 204
Docket No.: 20120059
Filing Date: 10/1/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Punitive damages are not authorized in an independent action in equity challenging a prior divorce judgment.