Opinions

Interest of A.W. (CONFIDENTIAL) 2012 ND 153
Docket No.: 20120245
Filing Date: 7/26/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A child is a deprived child for purposes of termination of parental rights if the child has been abandoned by the child's parent, guardian, or other custodian.
Paying child support, alone, is not sufficient to prevent a finding of abandonment.
Adequate care from a foster parent or other source does not prevent a finding of deprivation.

Miller, et al. v. Walsh County Water Resource District 2012 ND 152
Docket No.: 20120018
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The legality of dikes is measured by the law in effect at the time the dikes were constructed.
A person asserting equitable or promissory estoppel must show on his own part lack of knowledge and of the means of knowledge of the truth as to the facts in question.
Mere negligence, oversight, or thoughtlessness does not create a waiver.

State, ex rel. Roseland v. Herauf, et al. 2012 ND 151
Docket No.: 20120170
Filing Date: 7/26/2012
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: VandeWalle, Gerald

Highlight: The Supreme Court exercises supervisory jurisdiction only in extraordinary cases to rectify errors and prevent injustice when no adequate alternative remedy exists.
N.D.R.Ev. 707 must be interpreted in light of N.D.C.C. § 39-20-07, which governs the admission of analytical reports into evidence, because the rule and the statute are interconnected regarding analytical reports.
N.D.R.Ev. 707, construed with N.D.C.C. § 39-20-07, requires the State to produce the person who drew the defendant's blood sample at trial to satisfy the constitutional requirements of N.D.C.C. § 39-20-07.
The signed statement contemplated under N.D.C.C. § 39-20-07(10) is a testimonial statement subject to a defendant's right to confrontation.

Reiser, et al. v. Thorpe, et al. 2012 ND 150
Docket No.: 20120137
Filing Date: 7/19/2012
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment awarding $98,543.84 in costs and disbursements for defending against a negligence and breach of contract lawsuit is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

D&P Terminal, et al. v. City of Fargo 2012 ND 149
Docket No.: 20110194
Filing Date: 7/18/2012
Case Type: Appeal - Civil - Tax Realted
Author: Crothers, Daniel John

Highlight: A special assessment commission is not prohibited from using a formula such as front footage or square footage to determine the amount of benefit to properties within an improvement district.

Hale v. State of North Dakota, et al. 2012 ND 148
Docket No.: 20110146
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Economic development constitutes an enterprise for a public purpose under the gift clause provision of the state constitution.
A party must do more than submit bare assertions to adequately raise constitutional issues, and without supportive reasoning or citation to relevant authorities, a constitutional argument is without merit.

State v. Chisholm 2012 ND 147
Docket No.: 20110228
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: When a defendant in a homicide case argues self-defense, evidence of specific instances of prior violent conduct by the victim may be admissible to show the defendant's state of mind if he was aware of the prior conduct, but the district court may in its discretion refuse to admit evidence of prior conduct which is too remote in time.

Rinas v. Engelhardt 2012 ND 146
Docket No.: 20120019
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Review of the specific terms of relief provided in a domestic violence protection order is limited to whether the district court acted within its statutory authority in granting the relief. This standard of review has been called the abuse-of-discretion standard in other, similar contexts.
A domestic violence protection order may be modified at any time upon a petition filed by either party.
District courts should attempt to reconcile the visitation terms in a domestic violence protection order and those established in a future custody action.

State v. Mertz 2012 ND 145
Docket No.: 20120087
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: The specific crime intended to be committed in the premises is not an element of burglary.
Testimony that a defendant without permission to enter residence forced his way through a locked door is sufficient to support a jury finding that the defendant entered the residence with intent to commit a crime therein.

Hale v. Ward County, et al. 2012 ND 144
Docket No.: 20110171
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: The district court may not weigh the evidence, determine credibility or attempt to discern the truth of the matter when ruling on a motion for summary judgment.
Property owner's speculation that a shooting range posed a danger to his property is not sufficient to raise a genuine issue whether the shooting range was a private nuisance.

Recovery Resources, LLC v. Cupido, et al. 2012 ND 143
Docket No.: 20120177
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Maring, Mary

Highlight: A court's division of debts in a divorce action does not affect the rights of third-party creditors.
Under N.D.C.C. 14-07-08(3), a husband and wife are jointly and severally liable for any debts contracted by either, while living together, for certain necessary goods and services.

Holkesvig v. Welte (cons. w/20110374-375)(cross-ref 20100315-317 & 20110102-104) 2012 ND 142
Docket No.: 20110373
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: After a district court has issued an order enjoining a litigant from filing certain further lawsuits without leave of court, the court does not abuse its discretion in denying the litigant's motion to file new lawsuits when the new lawsuits are derivative of the claims previously raised by the litigant.
District courts have inherent authority to protect against abuses of judicial process, and a district court does not abuse its discretion when it narrowly tailors an injunction to enjoin conduct specifically related to a litigant's prior abuses.

EVI Columbus, LLC v. Lamb, et al. 2012 ND 141
Docket No.: 20110320
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: If the time allowing a party to amend a pleading as a matter of course has passed, the party may still amend the pleading after obtaining the opposing party's written consent or the court's leave.
Under N.D.R.Civ.P. 8(a), a pleading must contain a short and plain statement showing the pleader is entitled to relief and a demand for the relief sought.
Issues or arguments raised for the first time on appeal are usually not considered.

State v. Bruce 2012 ND 140
Docket No.: 20110360
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: For menacing, a victim's subjective fear of imminent serious bodily injury resulting from an encounter with a defendant may be considered.

City of Lincoln v. Johnston 2012 ND 139
Docket No.: 20120068
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A bicycle is a vehicle for purposes of the driving under the influence law.

State v. Garg (consolidated w/20110299) 2012 ND 138
Docket No.: 20110298
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: An appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal.
A defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.
A petitioner who knows his guilty plea could result in deportation cannot prove he was prejudiced by his attorney's alleged failure to advise of the deportation consequences of the plea.

Castro v. Castro 2012 ND 137
Docket No.: 20110369
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: In an interstate child custody proceeding, jurisdiction generally exists in the child's home state.
A home state court may decline jurisdiction of a child custody determination on the ground the court is an inconvenient forum.
Under the Uniform Child Custody Jurisdiction Enforcement Act, a child custody determination includes a proceeding in which visitation is an issue.

Thorsrud v. N.D. Dep't of Transportation 2012 ND 136
Docket No.: 20120136
Filing Date: 7/12/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Under N.D.C.C. 39-20-05(4), admission of an Intoxilyzer Test Record and Checklist into evidence establishes prima facie their contents.
A defendant may present sufficient evidence to rebut prima facie evidence established by the admission of an Intoxilyzer test record and checklist into evidence.
If a defendant successfully rebuts the prosecution's prima facie evidence, the prosecution may present evidence to demonstrate fair administration despite the defendant's rebuttal.

State v. Clark 2012 ND 135
Docket No.: 20110359
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense.
There is no presumption of vindictiveness when a defendant receives a more severe sentence after a trial than he received when he pled guilty to the same offense before his initial conviction was reversed on appeal.

Meier v. N.D. Dep't of Human Services 2012 ND 134
Docket No.: 20120063
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Service of the notice of appeal and specifications of error on Human Resource Management Services is necessary to properly perfect an appeal from administrative law judge decisions under the Central Personnel System Act.

Matter of Rubey (cross-reference 20100292) 2012 ND 133
Docket No.: 20110322
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: On appeal, conflicting evidence is not re-weighed nor is the credibility of witnesses re-decided.

Matter of D.A. (CONFIDENTIAL) 2012 ND 132
Docket No.: 20110358
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying a petitioner's application for discharge from civil commitment as a sexually dangerous individual under N.D.C.C. ch. 25-03.3 is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Ayala 2012 ND 131
Docket No.: 20120092
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Criminal judgment of conviction of murder is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Toppen v. Toppen 2012 ND 130
Docket No.: 20120072
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order affirming an administrative enforcement action placing a lien on an individual's personal property held by the Department of Corrections and Rehabilitation is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Eide (consolidated w/20110264-20110269) 2012 ND 129
Docket No.: 20110263
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A district court must comply with a statutory notice requirement prior to modifyig probation.

Matter of Wedmore 2012 ND 128
Docket No.: 20120106
Filing Date: 7/12/2012
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).

Interest of Tanner 2012 ND 127
Docket No.: 20120084
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: An order civilly committing a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Palmer (Consolidated w/20120078)(cross-reference w/20010125 & 20110347) 2012 ND 126
Docket No.: 20120077
Filing Date: 7/12/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A district court order denying a motion to dismiss a probation revocation petition and revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Foreid v. State (cross-reference w/20080128, 20100325, & 20110315) 2012 ND 125
Docket No.: 20120105
Filing Date: 7/12/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A 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).

Disciplinary Board v. Mahler 2012 ND 124
Docket No.: 20120093
Filing Date: 7/17/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Haugland v. City of Bismarck 2012 ND 123
Docket No.: 20110077
Filing Date: 7/6/2012
Case Type: Appeal - Civil - Tax Realted
Author: Sandstrom, Dale

Highlight: Urban renewal statutes authorize a municipality to engage in an enterprise for a public purpose within the meaning of the gift clause provision of the state constitution.
Urban renewal statutes are rationally related to legitimate government purpose.
A modification of an urban renewal plan that substantially changes a prior renewal plan requires a municipal resolution that the renewal area consists of slum or blighted area.
A municipality is not required to remove parcels of property from a renewal area after the specific parcel has been redeveloped.
Urban renewal law does not authorize a perpetual urban renewal plan for a renewal area.

Kosobud v. Kosobud 2012 ND 122
Docket No.: 20110296
Filing Date: 6/13/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Assets accumulated after separation but prior to divorce are included in the marital estate.
The sporadic nature of the parties' marriage is a valid consideration for a court in making an equitable division of property.
Marital property valuations are not clearly erroneous if they are within the range of evidence presented.
When the exact dates of retirement and the resulting income reductions following retirement are unknown, a court may order permanent spousal support despite the obligor's approaching retirement.
When a motion for new trial is made in the district court, the moving party is limited on appeal to a review of the grounds presented to the district court.

Skachenko v. Skachenko 2012 ND 121
Docket No.: 20110370
Filing Date: 6/12/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A district court does not abuse its discretion when it denies a party's motion to use frozen marital funds to conduct a business evaluation when the moving party has access to non-frozen, separate funds and has not addressed why the non-frozen, separate funds cannot be used.
A district court does not abuse its discretion when it denies a post-trial motion to include, as a separate asset of the marital estate, a loan owed by a party's business to the party when the loan was not included on the property and debt listing filed with the court and was not at issue prior to or during trial.
A district court has discretion to award attorney fees as a sanction for misconduct during litigation and must make findings regarding culpability of the party against whom sanctions are being imposed, prejudice against the moving party, and the availability of less severe alternative sanctions.

State v. Schmidt 2012 ND 120
Docket No.: 20110234
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A private party cannot be considered an agent of the State merely because a police officer requested surveillance video from him as part of the investigation.
A police officer's failure to collect evidence in the first instance is not a violation of Brady v. Maryland, 373 U.S. 83 (1963).
A defendant is not deprived of his right to confront a witness against him when the witness testified at trial and was subject to the defendant's cross-examination.

Empower the Taxpayer, et al. v. Cory Fong, et al. 2012 ND 119
Docket No.: 20120191
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: There is no private right of action to enforce the provisions of the Corrupt Practices Act.

Disciplinary Board v. Dyer (CONSOLIDATED W/ 20120021-20120023) 2012 ND 118
Docket No.: 20120020
Filing Date: 6/7/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Evidence that the balance of a trust account fell below the total amount held in trust supports a finding that the lawyer violated N.D.R. Prof. Conduct 1.15.
A lawyer is permitted to disclose information related to the representation of a client when the lawyer is defending himself or herself in any proceeding concerning the lawyer's representation of the client, including disciplinary proceedings initiated by a third party.
A lawyer is required to comply with a hearing panel's order to disclose information related to the representation of a client during a disciplinary proceeding after the lawyer asserts all nonfrivolous claims to protect the confidential information.

Holbach v. City of Minot (Consolidated w/20110278) 2012 ND 117
Docket No.: 20110277
Filing Date: 6/7/2012
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: Municipal courts are not courts of record.
Post-conviction relief under N.D.C.C. ch. 29-32.1 is not available in municipal courts in North Dakota.

Disciplinary Board v. Summers 2012 ND 116
Docket No.: 20120061
Filing Date: 6/7/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court reviews disciplinary proceedings de novo.

Working Capital #1 v. Quality Auto Body, et al. 2012 ND 115
Docket No.: 20110294
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An eviction to recover possession of real estate is maintainable when a lessee holds over after the termination of the lease or expiration of the lessee's term.
N.D.C.C. 47-16-06 does not automatically renew a lease for up to one year when a tenant holds over and a landlord accepts a rent payment; rather, the section only raises a disputable presumption that the lease was renewed on the same terms.
Issues or arguments not raised in the district court are generally not considered on appeal.

Dakota Resource Council, et al. v. Stark County Board of County Commissioners 2012 ND 114
Docket No.: 20110172
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A nonprofit organization that has not suffered an injury itself can sue as the representative of its members if: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Although interpretation of an ordinance presents a question of law fully reviewable on appeal, the interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.

State v. Chacano 2012 ND 113
Docket No.: 20110218
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The purpose of requiring the court's consent to dismissal under N.D.R.Crim.P. 48(a) is to prevent harassment of a defendant by charging, dismissing and recharging without placing a defendant in jeopardy.
Rule 48(a) applies to the dismissal of a criminal charge and does not require the prosecuting attorney to take any specific action before a charge dismissed without prejudice can be refiled.

State v. DeLeon (consol.w/20110351) 2012 ND 112
Docket No.: 20110350
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Order revoking probation and resentencing defendant to prison is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Duffy v. State 2012 ND 111
Docket No.: 20120025
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a petitioner's application for post-conviction relief on the basis of ineffective assistance of counsel is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State, et al. v. Nelson (cross-reference w/20100413) 2012 ND 110
Docket No.: 20110377
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order denying motion to dismiss an administrative lien placed on prisoner spending accounts is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Thorson v. State (cross-reference w/ 20020212) 2012 ND 109
Docket No.: 20120002
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Gress v. State (cross-reference w/20110047) 2012 ND 108
Docket No.: 20120129
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Unruh 2012 ND 107
Docket No.: 20110301
Filing Date: 6/7/2012
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court order revoking probation and an amended criminal judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Hangsleben v. Halverson 2012 ND 106
Docket No.: 20110307
Filing Date: 6/7/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Summary judgment and award of costs and attorney's fees are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Minnkota Power Cooperative, Inc. v. Anderson, et al. (cons. w/20120024) 2012 ND 105
Docket No.: 20120017
Filing Date: 5/21/2012
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A party seeking to enter property to conduct testing and surveying under N.D.C.C. 32-15-06 must establish it is in the category of persons entitled to seek eminent domain.
Foreign cooperatives that have received a certificate of authority from the secretary of state are entitled to the same rights, exemptions, and privileges as similar North Dakota cooperatives. Those rights, exemptions, and privileges include the right to exercise the power of eminent domain if similar North Dakota cooperatives also have the right to exercise the power of eminent domain.

Estate of Boehm 2012 ND 104
Docket No.: 20110212
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: When technical language is used, meaning words that have acquired a peculiar and appropriate meaning in law, or are defined by statute, such words must be construed according to such peculiar and appropriate meaning or definition.
When a chapter or title of the Century Code conflicts with another chapter or title of the Code, the provisions of the chapter or title must prevail as to all matters in question arising thereunder out of the same subject matter.