Opinions

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).

Sloan v. N.D. Workforce Safety & Insurance, et al. 2011 ND 194
Docket No.: 20100385
Filing Date: 9/19/2011
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Administrative rules that have been properly promulgated have the force and effect of law.
An administrative regulation is void or invalid if the regulation exceeds or supersedes the agency's statutory authority or conflicts with the statute it implements.
Rules and regulations properly promulgated are entitled to deference in the courts, unless they produce an absurd result, are arbitrary and capricious, or are inconsistent with statutes covering the same subject matter.

State v. Gress 2011 ND 193
Docket No.: 20110047
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

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

State v. Woodrow (consolidated w/20100335-20100337) 2011 ND 192
Docket No.: 20100334
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Statutory interpretation is a question of law, which is fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless they are defined by statute or unless a contrary intention plainly appears.
A person may be prosecuted in district court as an adult if the person is at least twenty years of age, committed an offense while a child, and was not adjudicated for the offense in juvenile court, unless the state intentionally delayed the prosecution to avoid juvenile court jurisdiction.

Overlie v. State 2011 ND 191
Docket No.: 20110091
Filing Date: 9/15/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Before the district court may summarily dismiss an application for post-conviction relief, the State's response to the application must demonstrate it is entitled to judgment as a matter of law.
When an application for post-conviction relief is not facially invalid, the district court must provide the applicant with notice and an opportunity to provide evidentiary support for his allegations.

Simons v. State 2011 ND 190
Docket No.: 20110012
Filing Date: 9/15/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A parent's use of reasonable force to prevent or punish misconduct or maintain discipline may not provide the basis for a finding that a child is an abused child.
All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution.
To survive a vagueness challenge, a statute need not set out in explicit detail all possible factual scenarios that would fall within its reach; it need only give adequate and fair warning, when measured by the common understanding and practice of a "reasonable person," of the proscribed conduct.

Interest of A.L.(CONFIDENTIAL) (consolidated w/20110175-20110177) 2011 ND 189
Docket No.: 20110174
Filing Date: 9/15/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: A juvenile court may terminate parental rights solely on a finding of deprivation and that a child has been in foster care for at least four hundred fifty out of the previous six hundred sixty nights.

Weeks v. Workforce Safety & Insurance 2011 ND 188
Docket No.: 20110024
Filing Date: 9/15/2011
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Absent authority and a reasoned analysis to support it, the mere assertion of a statute's unconstitutionality is insufficient to adequately raise a constitutional question.
A party pursuing a constitutional claim must make a strong case supported by both fact and law or forgo the claim.

City of Dickinson v. Hewson 2011 ND 187
Docket No.: 20110018
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A law enforcement officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law to justify stopping a moving vehicle for investigation.
Information from an informant whose identity is easily ascertainable has a higher indicia of reliability than information obtained from a purely anonymous informant.

State v. Vondal (Consolidated w/20100390) 2011 ND 186
Docket No.: 20100389
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Issues that were not raised before the district court will not be considered on appeal; however, an obvious error that affects substantial rights may be considered for the first time on appeal.
A crime is committed when all of its essential elements are present and complete.
The Sixth Amendment Confrontation Clause provides criminal defendants with the right to cross-examine witnesses, but the scope of the cross-examination is in the court's discretion.

Brandvold, et al. v. Lewis and Clark Public School District 2011 ND 185
Docket No.: 20110039
Filing Date: 9/15/2011
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Crothers, Daniel John

Highlight: Declaratory judgment requires an actual controversy to be determined, and a declaratory judgment is unavailable if the issues have become moot.
Challenges to the result of an election based upon pre-election irregularities which are peculiar to a particular election are moot, and not appropriate for declaratory relief, once the underlying election is completed.

Benz Farm, LLP v. Cavendish Farms, Inc. 2011 ND 184
Docket No.: 20110025
Filing Date: 9/15/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A provision in a written contract for the sale of goods precluding oral modification or rescission of the parties' agreement is valid and enforceable.
The Unlawful Sales or Advertising Practices Act prohibits deceptive and fraudulent conduct by the seller of merchandise; it does not apply to, or create a cause of action against, a purchaser of merchandise.
When leave to amend the complaint is sought after discovery has closed and the opposing party has made a motion for summary judgment, the proposed amendment must be not only theoretically viable but also solidly grounded in the record, and the amendment is classified as futile unless its allegations are supported by substantial evidence.

Bornsen, et al. v. Pragotrade, LLC, et al. 2011 ND 183
Docket No.: 20110087
Filing Date: 9/15/2011
Case Type: Certified Question - Civil - Civil
Author: Crothers, Daniel John

Highlight: North Dakota does not apply the "apparent manufacturer" doctrine in products liability cases.

State v. Deviley (consolidated w/20100326) 2011 ND 182
Docket No.: 20100289
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Investigative detention may continue as long as reasonably necessary to conduct duties resulting from a traffic stop and to issue a warning or citation.
The existence of reasonable suspicion is assessed by taking into account the inferences and deductions that an investigating officer would make that may elude a layperson.

Holbach v. State 2011 ND 181
Docket No.: 20110026
Filing Date: 9/15/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Nadeau v. State 2011 ND 180
Docket No.: 20110057
Filing Date: 9/15/2011
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).