Opinions

Mosbrucker v. State 2012 ND 3
Docket No.: 20110219
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Milliron v. State 2012 ND 2
Docket No.: 20110223
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order summarily denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4) and (7).

Lindteigen, et al. v. Harris 2012 ND 1
Docket No.: 20110222
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Civil judgment denying a defendant's counterclaim for money and the return of property and awarding attorney's fees and costs to the plaintiffs on the basis that the defendant made frivolous claims is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Mittleider (Consolidated w/20110204) 2011 ND 242
Docket No.: 20110203
Filing Date: 12/22/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: An affirmative defense to a strict liability offense will apply only in rare circumstances.
Law enforcement officers with legitimate business may enter certain areas surrounding a home where persons may have a reasonable expectation of privacy but which are impliedly open to the public.
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution are implicated if a reasonable expectation of privacy is invaded.

Disciplinary Board v. Kellington 2011 ND 241
Docket No.: 20110261
Filing Date: 12/20/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer discipline ordered.

Richard v. Washburn Public Schools 2011 ND 240
Docket No.: 20110045
Filing Date: 12/15/2011
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: In a tort action by an employee to recover damages for a work-related injury, the employer has the burden of establishing by a preponderance of the evidence the defense that the employer is immune from suit under the exclusive remedy provisions of the workers compensation act.
North Dakota does not allow compensation for what are known within the parlance of workers compensation law as "mental-mental" injuries.
The North Dakota Human Rights Act does not preclude the filing of a claim in district court for damages based on sexual harassment.

Van Berkom, et al. v. Cordonnier, et al. 2011 ND 239
Docket No.: 20110085
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Clear and convincing evidence is necessary to reform a deed, and there is a presumption an instrument correctly expresses the intention of the parties.
To preserve an alleged error regarding the admission of evidence for review, a substantial right of the complaining party must be affected, and an objection stating the specific ground for the objection must be made.

State v. Schmidt 2011 ND 238
Docket No.: 20110082
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Entrapment is an affirmative defense.
A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
In reviewing a challenge to a factual conclusion that entrapment did not occur, this Court does not weigh conflicting evidence, nor judge the credibility of witnesses; instead, the Court looks only to the evidence and its reasonable inferences most favorable to the verdict to see if substantial evidence exists to warrant a conviction.

State v. Humann 2011 ND 237
Docket No.: 20110185
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. 12.1-32-15(2)(a), the district court must require felonious sexual offenders to register unless the offender was guilty of specified juvenile offenses.

State v. Aguilar (Consolidated w/ 20110124 - 20110126) 2011 ND 236
Docket No.: 20110123
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A sniff by a drug detection dog is not a Fourth Amendment search.
A defendant who was lawfully arrested for a traffic violation was not illegally seized during a sniff of the exterior of his vehicle.
A defendant who was not detained was not subject to a Fourth Amendment seizure.

Engstrom v. N.D. Dep't. of Transportation 2011 ND 235
Docket No.: 20110166
Filing Date: 12/13/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Observations of bloodshot eyes and slurred speech, along with a police officer's inferences and deductions which may elude a layperson, are sufficient for establishing reasonable and articulable suspicion.
An individual's own words and failing performance of field sobriety tests are relevant factors in determining probable cause for an arrest, but a failing result on a field sobriety test is not required to establish probable cause.

State v. Jones 2011 ND 234
Docket No.: 20110128
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The purposes a lawyer can serve and the assistance he or she can provide at the particular stage of the proceedings in question are relevant in determining the type of warnings and procedures required before a waiver of the right to counsel will be recognized.
A swift change of heart after a guilty plea is not necessarily grounds to permit withdrawal of the plea.
Some degree of mental disorder does not necessarily establish a defendant is incompetent or that his or her plea is not voluntary and knowing.

State v. Trevino 2011 ND 232
Docket No.: 20100416
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Rule 11(a)(2), N.D.R.Crim.P., permits a defendant to enter a conditional guilty plea, reserving in writing the right to appeal an adverse determination of specified pretrial motions, including motions in limine.
The lack of a writing under Rule 11(a)(2) may be excused when the transcript is clear that defendant's plea was conditional, the government consented to the conditional plea, and the district court approved the conditional plea.
A person is guilty of reckless driving if the person drives a vehicle either "recklessly" in disregard of the rights or safety of others; or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another.
A person engages in conduct "recklessly" if the person engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.

Matter of J.T.N. (CONFIDENTIAL) 2011 ND 231
Docket No.: 20110067
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A finder of fact need not believe the greater number of witnesses.
Claims that the district court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence.
Because evaluation of credibility is solely a trial court function, this Court will not reweigh expert testimony.
To determine whether an individual is likely to engage in further acts of sexually predatory conduct and has serious difficulty in controlling behavior, experts and courts may consider all relevant evidence.

Jund, et al. v. Johnnie B's Bar & Grill, Inc., et al. 2011 ND 230
Docket No.: 20110115
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: An insured's total compensatory damages, not the insured's underinsured motorist coverage limit, is the starting point for reducing any amount paid or payable to the insured for Workforce Safety and Insurance benefits.

Beaudoin v. JB Mineral Services 2011 ND 229
Docket No.: 20110030
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An "unless" clause in an oil and gas lease provides that the lease shall terminate unless the lessee does some specific act, such as commencing a well or making specified payments.
A lease with an "unless" clause terminates automatically if the lessee fails to pay or tender the required payment on or before the due date.

Tweed v. State 2011 ND 228
Docket No.: 20110089
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: The district court may, on its own initiative, dismiss an application for post-conviction relief for failure to state a valid claim; however, the court should use this power only when it is impossible for the applicant to prove a claim for which relief can be granted.
A claim of ineffective assistance of post-conviction counsel may be raised in a successive application for post-conviction relief.

Coppage v. State (cross-reference 20070304) 2011 ND 227
Docket No.: 20110076
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The district court errs in summarily dismissing an application for post-conviction relief if the applicant raises a genuine issue of material fact.
Claims of ineffective assistance of post-conviction counsel may be raised in successive post-conviction proceedings and may be an excuse for an applicant's failure to raise an issue in a prior proceeding.

Burgess v. N.D. Department of Transportation 2011 ND 226
Docket No.: 20110162
Filing Date: 12/13/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: District court's judgment reversing an administrative hearing officer's decision to suspend driving privileges is summarily reversed under N.D.R.App.P. 35.1(b).
The exclusionary rule does not apply to civil proceedings.

Lehman v. State 2011 ND 225
Docket No.: 20110134
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

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

Matter of Dean 2011 ND 224
Docket No.: 20110079
Filing Date: 12/13/2011
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).

Dailey v. State (cross-reference w/ 20060030) 2011 ND 223
Docket No.: 20110014
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A district court has broad discretion in determining when a period of probation will begin, and the period of probation may begin to run while the defendant is incarcerated.
Section 12.1-32-06.1, N.D.C.C., prohibited the district court from sentencing the defendant on a felony to a period of probation that would not and could not be completed within five years of his release from incarceration for that offense.

Cach LLC v. Steele 2011 ND 222
Docket No.: 20110182
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: Default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Everett v. State (Cross-reference w/20080063, 20090244, 20100222 & 20100392) 2011 ND 221
Docket No.: 20110189
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Orders summarily dismissing an application for post-conviction relief and denying a subpoena request and motion to recuse or remove the district court judge are summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Interest of J.G. & D.M. (CONFIDENTIAL) 2011 ND 220
Docket No.: 20110046
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: An order adopting a juvenile court's finding of deprivation and continuing placement of children with social services for six months is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Estate of Bartelson 2011 ND 219
Docket No.: 20110114
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: Under the Uniform Probate Code, a district court has jurisdiction over claims of misappropriation in formal probate proceedings because the statute grants jurisdiction over actions to determine title to property alleged to belong to the estate.

State v. Wetzel (cross-reference 20080042) 2011 ND 218
Docket No.: 20110080
Filing Date: 11/15/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: Collateral estoppel and res judicata do not prohibit revocation of probation based on evidence the defendant committed a new offense when the defendant was previously found not guilty of committing the same offense in a separate criminal proceeding.

State v. Nakvinda 2011 ND 217
Docket No.: 20110038
Filing Date: 11/15/2011
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Inconsistent testimony at trial does not preclude a finding of guilt.
A conviction may be justified on circumstantial evidence alone if it has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.
A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts.

Sorenson v. Slater (cross-reference w/20090358) 2011 ND 216
Docket No.: 20110015
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When the Supreme Court remands for redetermination of an issue without specifying the procedure to be followed, the district court may decide the issue on the basis of the evidence already before it or may take additional evidence.
Although the results of a polygraph examination are not generally admissible in a criminal trial unless the parties have stipulated to their admissibility, there is no definitive rule for admissibility of polygraph results in other contexts.
A party seeking to introduce polygraph evidence must present scientific evidence establishing the reliability of polygraph examination results.

Finstad, et al. v. Ransom-Sargent Water Users, Inc., et al. 2011 ND 215
Docket No.: 20110142
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: N.D.C.C. ch. 32-12.1, which governs political subdivision liability, applies only to tort claims brought against political subdivisions.
Contract claims brought against political subdivisions are governed by the general statutes of limitation for contract claims.

Matter of Hehn (cross-reference 20070167) 2011 ND 214
Docket No.: 20110053
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: The district court must specify the facts upon which its conclusion is based when finding a person is a sexually dangerous individual.
The judge, rather than the psychologists, is the ultimate decision-maker in determining whether an individual meets the requirements for civil commitment.

State v. Cain 2011 ND 213
Docket No.: 20110010
Filing Date: 11/15/2011
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A conspiratorial agreement can be proved by conduct sufficient to establish an implicit agreement to commit an offense.
A habitual offender hearing can be combined with a sentencing hearing.
Certified copies of prior judgments that were self-authenticating under N.D.R.Ev. 902(1) and (4) were "duly authenticated" under section 12.1-32-09(5), N.D.C.C.
The speedy trial provision of the Uniform Mandatory Disposition of Detainers Act, section 29-33-03, N.D.C.C., does not apply when a prisoner is being held solely on a pending charge.
When a motion in limine is denied, the objecting party must renew the objection at trial to preserve the issue for appeal.

Warnke v. Warnke 2011 ND 212
Docket No.: 20110023
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Where the rebuttable presumption that mail duly directed and mailed was received is contradicted by other evidence, the issue of actual notice is for the trier of fact to decide.
The district court has broad discretion in determining the quality of proof necessary to support a default judgment.

Tarnavsky v. First National Bank and Trust Co. 2011 ND 211
Docket No.: 20110151
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing claims, awarding attorney fees and costs, and denying motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a), and the case is remanded to determine reasonable attorney fees for appeal and request for injunctive relief.

State v. Mayer 2011 ND 210
Docket No.: 20110058
Filing Date: 11/15/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Coffman v. State 2011 ND 209
Docket No.: 20110130
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

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

Matter of L.D.M. (CONFIDENTIAL)(Cross-reference 20040319, 20060360 & 20100137) 2011 ND 208
Docket No.: 20110110
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order continuing commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Issues not ripe for review are dismissed.

Tarnavsky v. Tschider (Cross-reference w/20090348) 2011 ND 207
Docket No.: 20110150
Filing Date: 10/24/2011
Case Type: Appeal - Civil - Malpractice
Author: Per Curiam

Highlight: Order denying motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4), and double costs, and nominal attorney fees of $500, are awarded to the appellee for defending a frivolous appeal.

Peterson v. Sando 2011 ND 206
Docket No.: 20110083
Filing Date: 10/20/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Judicial estoppel applies only where a party's subsequent position is totally inconsistent with its original position.
The admissibility of evidence in an adjudicative proceeding before an administrate agency is governed by the rules of evidence, and evidence that forms the bases of opinion testimony need not be admissible in evidence for the opinion to be admitted.
Review of an administrative hearing officer's evidentiary rulings is under the abuse-of-discretion standard.

Alerus Financial v. Marcil Group, et al. 2011 ND 205
Docket No.: 20110113
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Guarantors of commercial real estate loans are not afforded the protections of the anti-deficiency judgment statutes.
An action against a guarantor is based on the contract of guaranty which is an obligation distinct from the obligation imposed by a note and mortgage.
Actions to enforce a guaranty need not accompany actions to foreclose a mortgage.
A contract of guaranty creates a secondary liability while a contract of surety creates a primary liability.
A court may consider parol evidence when a written agreement is ambiguous, or when the written agreement does not reflect the parties' intent because of fraud, mistake, or accident.
A party seeking additional time for discovery before the court rules on a summary judgment motion must identify with specificity what particular information is sought, and explain how that information would preclude summary judgment and why it has not previously been obtained.

Gottus v. Job Service North Dakota 2011 ND 204
Docket No.: 20110127
Filing Date: 10/18/2011
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Maring, Mary

Highlight: An employee's repeated failure to perform job responsibilities competently, after demonstrating the ability to do so, may rise to the level of misconduct.
A person discharged for misconduct is ineligible to receive unemployment benefits.

State v. Mackey 2011 ND 203
Docket No.: 20100377
Filing Date: 10/18/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When a court imposes an illegal sentence and subsequently corrects that sentence, a defendant is not entitled to withdraw his plea under N.D.R.Crim.P. 35, and a manifest injustice does not exist to allow a defendant to withdraw his plea under N.D.R.Crim.P. 11(d).

Sall v. Sall 2011 ND 202
Docket No.: 20100360
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: To warrant a remedial sanction for contempt of court, there must be a willful and inexcusable intent to violate a court order.
A "stale claim" is a claim that is barred by the statute of limitations or the defense of laches.
Laches does not arise from a delay or lapse of time alone, but is a delay in enforcing one's rights which works a disadvantage to another.

Wong v. State (cross-reference 20100171) 2011 ND 201
Docket No.: 20110088
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To succeed on an ineffective assistance of counsel claim, the petitioner must overcome the strong presumption that an attorney's representation is reasonable.
If the petitioner fails to show that his or her attorney's representation fell below an objective standard of reasonableness on a claim of ineffective assistance of counsel, the Court need not analyze whether the petitioner was prejudiced by the attorney's representation.

State v. Nickel (Consolidated w/20100411 & 20100412) 2011 ND 200
Docket No.: 20100410
Filing Date: 10/18/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Whether an administrative agency has substantially complied with emergency rulemaking requirements is a question of fact subject to the clearly erroneous standard of review.

Holkesvig v. Moore 2011 ND 199
Docket No.: 20110007
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court summary judgment dismissing an action for libel and slander and awarding attorney fees under N.D.C.C. 28-26-01(2) is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Tarnavsky, et al. v. Tarnavsky, et al. (consolidated w/20110027 &20110061) 2011 ND 198
Docket No.: 20100407
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Orders denying N.D.R.Civ.P. 60(b) motions summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Wisness v. Nodak Mutual Ins. Co., et al. 2011 ND 197
Docket No.: 20100401
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: An excess liability insurance policy is not required to cover the same risks as the underlying insurance policy and must be read on its own to determine if coverage for a claim exists.
No prohibition exists against an insurance company using an exclusion in an insurance policy to prevent an insured from arguing that there is coverage for a particular type of uncovered claim.

State v. Rosen 2011 ND 196
Docket No.: 20110071
Filing Date: 10/18/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment entered after conditional guilty pleas to possession of a controlled substance with intent to deliver or distribute, carrying concealed dangerous weapons, and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Baatz 2011 ND 195
Docket No.: 20110043
Filing Date: 10/18/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition summarily affirmed under N.D.R.App.P. 35.1(a)(3).
District court's postconviction relief order allowing defendant to file untimely appeal summarily affirmed under N.D.R.App.P. 35.1(a)(2).