Opinions

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.

Carlson v. Workforce Safety & Insurance, et al. (Cross-reference w/20080250) 2012 ND 203
Docket No.: 20110163
Filing Date: 10/1/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: The "law of the case" doctrine is the principle that if an appellate court has passed on a legal question and remanded the case to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.
The mandate rule, a more specific application of law of the case, requires the trial court 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.

Tarnavsky v. Tarnavsky, et al. (cross-reference w/20020292, 20050457, 20070161) 2012 ND 202
Docket No.: 20120200
Filing Date: 9/28/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: Civil judgment denying an applicant's petition for an emergency temporary restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Wheeler v. Southport Seven Planned Unit Dev., et al. 2012 ND 201
Docket No.: 20110323
Filing Date: 9/27/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The creation of a planned unit development ("PUD") is a legislative act, and PUD provisions are zoning ordinances. Restrictive covenants and zoning ordinances are tools used to restrict the use of real property.
A covenant to contribute one's share of the neighborhood's maintenance expenses is an affirmative covenant.
Covenants contained in a grant of an estate in real property, which are made for the direct benefit of the property or some part of it then in existence, run with the land, including covenants for the payment of rent, taxes, or assessments upon the land on the part of a grantee.

Interest of B.K. (CONFIDENTIAL) 2012 ND 200
Docket No.: 20120330
Filing Date: 9/25/2012
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).

Kohanowski v. Burkhardt 2012 ND 199
Docket No.: 20110317
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An oral agreement to pay money in installments for a period longer than one year, and which does not include express terms governing prepayment, is barred by the statute of frauds.
Partial performance will remove an oral agreement from the statute of frauds only if it unmistakably points to and is consistent only with the existence of the oral agreement and cannot be accounted for on some other hypothesis.

State v. Gagnon 2012 ND 198
Docket No.: 20110311
Filing Date: 9/25/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Plain view alone is never enough to justify the warrantless search or seizure of evidence.
Warrantless search of home is not justified by need to prevent imminent destruction of evidence when marijuana plants remain in window for days before officers approach the home without a warrant.
Warrantless search of home is not justified by need to protect officer safety when the only articulable fact supporting the safety concern is the possibility that an unknown person could be inside the residence.

Martire' v. Martire' 2012 ND 197
Docket No.: 20110197
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A parent who willfully alienates a child from the other parent may not be awarded custody based on that alienation.
Shared decision-making authority can be successful only when the parties have demonstrated an ability and willingness to cooperate in the children's best interests.
The best interests of children need not be sacrificed merely to foster general policies declared by the Supreme Court.

Bank of North Dakota v. Brown, et al. 2012 ND 196
Docket No.: 20120145
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A judgment granting foreclosure is summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6) and (7).

Frazer v. WSI, et al. 2012 ND 195
Docket No.: 20120189
Filing Date: 9/25/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: District court judgment affirming an order of Workforce Safety and Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Delage 2012 ND 194
Docket No.: 20120173
Filing Date: 9/25/2012
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment after a jury found a defendant guilty of two counts of simple assault on a correctional officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Application of Covert 2012 ND 193
Docket No.: 20120174
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Civil judgment denying an applicant's petition for name change is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Quilt (cross reference w/20100397) 2012 ND 192
Docket No.: 20120176
Filing Date: 9/25/2012
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).

Matter of Hehn (cross-reference 20110053) 2012 ND 191
Docket No.: 20120070
Filing Date: 9/25/2012
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).

State v. VanDyke 2012 ND 190
Docket No.: 20110325
Filing Date: 9/25/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition is affirmed under N.D.R.App.P. 35.1(a)(3).

Everett v. State 2012 ND 189
Docket No.: 20120179
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

CitiMortgage, Inc. v. Adolph, et al. 2012 ND 188
Docket No.: 20120208
Filing Date: 9/25/2012
Case Type: Appeal - Civil - Foreclosure
Author: Per Curiam

Highlight: District court order granting foreclosure on mortgaged property is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Disciplinary Board v. Jensen 2012 ND 187
Docket No.: 20120308
Filing Date: 9/18/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

George v. Veeder 2012 ND 186
Docket No.: 20120081
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The term "minerals" as used in reservation language in a warranty deed does not include gravel, clay, or scoria.
A party seeking reformation of a deed must establish by clear and convincing evidence that the document does not state the parties' intended agreement.

Ennis v. N.D. Dep't of Human Services 2012 ND 185
Docket No.: 20110352
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: For eligibility for food stamps, self-employment income is generally to be determined on the basis of an averaging of prior income, but self-employment income must be calculated on the basis of anticipated rather than prior earnings if the averaged amount does not accurately reflect the household's actual circumstances because the household has experienced a substantial increase or decrease in business.

Forsman v. Blues Brews and Bar-B-Ques Inc., et al. 2012 ND 184
Docket No.: 20110356
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Persons injured by an obviously intoxicated person may bring a dram shop action against any person who knowingly provides alcoholic beverages to the obviously intoxicated person.
The causation element for dram shop liability requires a dram shop violation to contribute to the obviously intoxicated person's intoxication and requires the plaintiff's injuries to have been inflicted by the intoxicated person.

Dahly v. Anderson 2012 ND 183
Docket No.: 20120013
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The caregiver child exemption under 42 U.S.C. 1396p(c)(2)(A)(iv) provides that the transfer of a parent's home to a child who provided live-in care to the parent for at least two years, which allowed the parent to reside at home rather than in a nursing care facility, is not a disqualifying transfer under federal Medicaid law.
The caregiver child exemption is not limited to situations where the home is transferred personally by a mentally competent parent, but also applies when the transfer of a mentally incompetent parent's home is made by the parent's attorney-in-fact.

Nuveen v. Nuveen 2012 ND 182
Docket No.: 20120080
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A motion for an extension of time to file a notice of appeal based upon excusable neglect is addressed to the sound discretion of the district court, and its decision will not be set aside on appeal absent an abuse of discretion.
Intentional, willful, and inexcusable disobedience of a court order constitutes contempt of court.

State v. Middleton 2012 ND 181
Docket No.: 20120082
Filing Date: 8/30/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: If a party moves for a new trial, the party is limited on appeal to the grounds presented to the district court in the motion.

Waldock v. Amber Harvest Corp., et al. 2012 ND 180
Docket No.: 20120064
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: If a grantor does not own a large enough mineral interest to satisfy both a grant and a reservation of the mineral interest, the grant must be satisfied first because the grant is superior to the reservation.
In analyzing conveyances and reservations of mineral interests, the focus is on what the grantor purported to convey to the grantee in the granting clause.