Opinions

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.

State v. Parizek 2012 ND 103
Docket No.: 20110329
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Bell v. N.D. Dept. of Transportation 2012 ND 102
Docket No.: 20110201
Filing Date: 5/17/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: An individual who asks to consult with an attorney before deciding to take a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.
An individual given a telephone and a telephone book approximately eighteen minutes before the two-hour period for administering a chemical test expired had a reasonable opportunity to contact an attorney when the individual delayed the DUI investigation and called a friend rather than an attorney.

Kooser v. State 2012 ND 101
Docket No.: 20120058
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: North Dakota courts may accept a guilty plea accompanied by an assertion of innocence as permitted by the United States Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25 (1970).
A defendant entering an Alford plea need not personally provide the factual basis for the plea.

Dorothy J. Pierce Family Mineral Trust v. Jorgenson, et al. 2012 ND 100
Docket No.: 20110355
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable.

Watts, et al. v. Magic 2 x 52 Management, Inc., et al. 2012 ND 99
Docket No.: 20110145
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Post-judgment motion seeking to pierce corporate veil and to recover punitive damages based on prejudgment and post-judgment evidence must be brought under N.D.R.Civ.P. 59 or 60 when district court already considered and denied the requested relief in entering the judgment after trial.

Palmer v. State (consol.w/20110346-20110348)(cross-ref.w/20010123-20010126) 2012 ND 98
Docket No.: 20110344
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A decision cannot be properly reviewed on appeal if the district court does not provide an adequate explanation of its rationale for its decision.

State v. Lee 2012 ND 97
Docket No.: 20110121
Filing Date: 5/17/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A person arrested for DUI has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test.
If a DUI arrestee asked to take a chemical test makes any mention of a need for an attorney, the arresting officer must assume the arrestee is requesting an opportunity to consult with an attorney.
Defendant's mention of an attorney's name and passing reference to desire to fight DUI charge were not requests to consult with an attorney before taking a chemical test.
The bright-line rule for determining whether an arrestee has invoked the right to consult with an attorney before submitting to a chemical test adopted in Baillie v. Moore, 522 N.W.2d 748, 750 (N.D. 1994), applies in both administrative and criminal proceedings.

Wilson v. State (consolidated w/20110363) 2012 ND 96
Docket No.: 20110362
Filing Date: 5/17/2012
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) and (6).

State v. Sandoval 2012 ND 95
Docket No.: 20110300
Filing Date: 5/17/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Amended criminal judgment after the district court revoked a defendant's probation and ordered him to serve a sentence longer than the original sentence the court imposed after he pled guilty to a felony and two misdemeanors is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matter of C.S. (CONFIDENTIAL) 2012 ND 94
Docket No.: 20110302
Filing Date: 5/17/2012
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 Richardson 2012 ND 93
Docket No.: 20110330
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

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

Disciplinary Board v. Tollefson (CONSOLIDATED W/ 20120131 & 20120132) 2012 ND 92
Docket No.: 20120130
Filing Date: 5/14/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Come Big or Stay Home, LLC v. EOG Resources, Inc. 2012 ND 91
Docket No.: 20110305
Filing Date: 5/4/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An agreement may be supplemented by custom or usage, under appropriate circumstances
Pooling and unitization of separately owned tracts do not create a cotenancy between the several leaseholders.
When a claim for conversion and a claim for breach of contract arise under the same facts, tort liability for conversion does not occur unless the conduct that constitutes a breach of contract also gives rise to liability independent of the existence of a contract between the parties.

Pifer v. McDermott 2012 ND 90
Docket No.: 20110287
Filing Date: 5/4/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A partial judgment that disposes of fewer than all claims against all parties will not be considered on appeal absent N.D.R.Civ.P. 54(b) certification.
On appeal, the appropriateness of N.D.R.Civ.P. 54(b) certification is reviewed.

Raymond J. German, Ltd. v. Brossart 2012 ND 89
Docket No.: 20110338
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When a default judgment, rather than a district court's order regarding a N.D.R.Civ.P. 60(b) motion to vacate the default judgment, is appealed, it is reviewed to determine whether irregularities appear on the face of the judgment.
District courts have broad discretion in the quality of proof necessary for entering a default judgment.
An appearance is any response sufficient to give a plaintiff or his or her attorney notice of an intent to contest the claim.