Opinions

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).

Moore v. State 2011 ND 179
Docket No.: 20110052
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).

State v. Jackson 2011 ND 178
Docket No.: 20110063
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of driving while license suspended is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Johnson 2011 ND 177
Docket No.: 20110011
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of disobedience of a judicial order is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Industrial Contractors, Inc. v. Workforce Safety & Insurance, et al. 2011 ND 176
Docket No.: 20110135
Filing Date: 9/15/2011
Case Type: Appeal - Administrative - Workers Compensation
Author:

Highlight: A district court judgment dismissing employer's appeal of a Workforce Safety & Insurance order is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Curtiss 2011 ND 175
Docket No.: 20110062
Filing Date: 9/15/2011
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)(4).

State v. Owens 2011 ND 174
Docket No.: 20110004
Filing Date: 9/15/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

State ex rel. I.R.S. v. Landrus 2011 ND 173
Docket No.: 20110112
Filing Date: 9/15/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order denying a motion to reconsider a default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Saltsman v. Sharp, et al. 2011 ND 172
Docket No.: 20100404
Filing Date: 9/7/2011
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: A person is responsible for an injury occasioned to another by the person's want of ordinary care or skill in the management of the person's property or self.
Under premises liability law, landowners owe a duty to lawful entrants upon their land to maintain their property in a reasonably safe condition, so as not to damage others, and exercising caution and reasonable care under the circumstances.
It must be clear the defendant had control of the premises and an opportunity to observe any duty before the defendant owes a duty of care.
Separate duties to lawful entrants are no longer recognized, and separate duties of care owed to invitees or licensees are not considered.
Summary judgment is inappropriate if the district court must draw inferences and make findings on disputed facts to support summary judgment.

Leno v. K & L Homes 2011 ND 171
Docket No.: 20100347
Filing Date: 9/2/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: North Dakota law provides an implied warranty of fitness for the purpose in construction contracts, which is based in contract law.
Fault and comparative fault do not apply to a breach of implied warranty cause of action based in contract law.

Wolt v. Wolt (Cross-reference w/20090103 & 20090126) 2011 ND 170
Docket No.: 20100294
Filing Date: 8/26/2011
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The district court's authority to modify an award of primary residential responsibility within two years of the original decision is limited under N.D.C.C. 14-09-06.6.
The party moving for a change of primary residential responsibility has the burden to establish a prima facie case to obtain an evidentiary hearing on the motion. A prima facie case is a bare minimum and requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed.
A district court retains continuing jurisdiction to address post-judgment issues about parenting time, and the limitations in N.D.C.C. 14-09-06.6 for post-judgment modifications of primary residential responsibility do not apply to parenting time modifications under N.D.C.C. 14-05-22.
Under N.D.R.Ct. 3.2, a district court must grant a party's request for oral argument, if the party has timely served and filed a brief and requests oral argument.
Section 28-26-01(2), N.D.C.C., authorizes an award of attorney's fees if a claim for relief is frivolous and there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person's favor.

Agnes M. Gassmann Revocable Living Trust (Consolidated w/20100276) 2011 ND 169
Docket No.: 20100275
Filing Date: 8/23/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Testimony from the attorney who drafted the trust that a specific drafting error occurred and, as a result, the trust language did not conform to the settlor's true intent may, if believed by the trier of fact, constitute clear and convincing evidence sufficient to warrant reformation of the trust under N.D.C.C. 59-12-15.
When reviewing findings of fact made by the trial court under a clear and convincing evidence standard, the Supreme Court accords great deference to the trial court's determination of the credibility of witnesses and the weight to be given their testimony and does not reweigh the evidence or reassess the credibility of witnesses.
In construing the provisions of a trust, the general rules of construction of written documents apply and the trust must be read as a whole so as to give effect to every part.

Carlson v. Carlson, et al. (consolidated w/20100319) 2011 ND 168
Docket No.: 20100318
Filing Date: 8/22/2011
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Relations among the partners and between the partners and the partnership are governed by the partnership agreement, and the default provisions of N.D.C.C. 45-16-01 setting out a partner's rights and duties do not apply if the partners have otherwise provided for those matters.
The failure to make annual claims or accountings for unequal contributions and benefits is indicative the partners did not intend to equalize them.
The trial court's findings of fact must reflect the basis of its decision and must enable the appellate court to understand its reasoning.
A valid, presently enforceable debt against the transferor is an essential element of an action to set aside a fraudulent transfer under the Uniform Fraudulent Transfer Act, N.D.C.C. ch. 13-02.1.
During any transaction connected with conduct of the partnership, a partner has a fiduciary duty to act with utmost good faith and loyalty to the partnership and the other partners.

Kelly v. Kelly (Cross-reference w/20080103) 2011 ND 167
Docket No.: 20100388
Filing Date: 8/22/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A child's home state has priority for subject matter jurisdiction in an interstate custody dispute, but the home state may decline jurisdiction.
A home state's dismissal of a custody proceeding with prejudice constitutes a declination of jurisdiction.
In a divorce proceeding, a district court may restrain a party from interfering with a business awarded in a property distribution to protect the goodwill of the business.
Attorney fees may be awarded when a party's actions have unreasonably increased time spent on a divorce proceeding.

Miller v. Mees 2011 ND 166
Docket No.: 20110020
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: At a trial, witnesses' testimony generally must be taken in open court.
Harmless errors that do not affect substantial rights may be disregarded.
An appellate court will not reweigh evidence for a decision awarding primary residential responsibility of a child to one parent.

Matter of Rubey 2011 ND 165
Docket No.: 20100292
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A "sexually dangerous individual" means an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.
Substantive due process requires proof that the respondent has serious difficulty controlling his behavior.

State ex. rel. Schlect v. Wolff (Cross-reference with 20100034) 2011 ND 164
Docket No.: 20110036
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The State has standing and is a real party in interest in child support proceedings if the State was initially a real party in interest in the action because the child received public assistance, the obligee assigned his or her right to child support to the State, the child support services case remained open after the child was no longer receiving public assistance, and the obligee has never requested the child support services case be closed.
A judgment that relieves an obligor of any current or future duty of child support and limits the power of the court to modify future child support is void and may not be enforced.

Smestad v. State 2011 ND 163
Docket No.: 20110006
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A post-conviction claim for relief is barred by res judicata if it is a variation of a claim that has been rejected in prior proceedings.
A defendant claiming ineffective assistance of counsel must establish that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.

Gaede v. State 2011 ND 162
Docket No.: 20100312
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Arguments to a jury referencing biblical text or characters may be considered by courts to be improper.

Holkesvig v. Welte (Consolidated w/20100316 & 20100317) 2011 ND 161
Docket No.: 20100315
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A criminal proceeding has not terminated in the plaintiff's favor for purposes of maintaining a malicious prosecution action if the plaintiff has pleaded guilty to the underlying criminal charge.

James Valley Grain v. David 2011 ND 160
Docket No.: 20110050
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A party must challenge an arbitration within ninety days from receiving a copy of the arbitration award unless the grounds for challenging the award are based on corruption, fraud, or other undue means.
Filing a motion to confirm an arbitration award does not extend the time limit for moving to vacate an arbitration award.

Paulson v. Paulson (Cross-reference w/20090225) 2011 ND 159
Docket No.: 20100399
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A spousal support determination is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
Issues not raised in the district court may not be raised for the first time on appeal.

Leverson v. Leverson 2011 ND 158
Docket No.: 20100396
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Under the law of the case doctrine, a court's decision on legal issues should govern the same issues in later stages of the same case.
Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished.
Agreements between divorcing parties are encouraged and stipulated spousal support awards should be changed only with great reluctance.

State v. Clark (consolidated w/20100373) (cross-reference 20090235) 2011 ND 157
Docket No.: 20100372
Filing Date: 8/18/2011
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: When sentences for separate offenses are merged under N.D.C.C. 12.1-32-11(1), they run concurrently and remain separate terms of imprisonment.
A delay in time between when a petition to revoke probation is filed and an arrest warrant is executed generally does not violate the probationer's due process rights, unless the probationer can show he was prejudiced by the delay.

Martinson v. Martinson 2011 ND 156
Docket No.: 20100339
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In determining whether to award attorney fees and costs in a divorce action, the court must balance one party's needs against the other's ability to pay, and fault is a consideration only to the extent one party has unreasonably escalated the fees and costs.

State v. Pederson (Consolidated w/20100365) 2011 ND 155
Docket No.: 20100364
Filing Date: 8/18/2011
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: When police have probable cause to arrest a suspect, the exclusionary rule does not bar the prosecution's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home and police unlawfully entered the home.
During an interrogation, a suspect must unambiguously invoke his right to counsel to stop the interrogation.

Brigham Oil et al. v. Lario Oil et al. (consolidated w/20110016) 2011 ND 154
Docket No.: 20100211
Filing Date: 8/15/2011
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: Property passes upon death, not upon distribution, subject to administration of the estate.
Family settlement agreements are binding only on the parties to the agreement.
Whether intervention is sought permissively or as a matter of right, the application for intervention must be timely.
The failure to join an indispensable party or the failure to allow an indispensable party to intervene does not render a judgment void.

State v. Gefroh 2011 ND 153
Docket No.: 20100391
Filing Date: 8/15/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The automobile exception to the warrant requirement does not justify the warrantless search of a person.

Interest of K.B., a child (CONF.)(Consol. w/20110093-20110095) 2011 ND 152
Docket No.: 20110092
Filing Date: 8/11/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: "Proper parental care" means the parents' conduct in raising their children must satisfy the minimum standard of care which the community will tolerate.
The definition of a "deprived child" is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child.
All children in a particular home environment may be found deprived, despite varying degrees of deprivation among the children. A court need not wait for the happening of tragic events to protect a child, particularly when a sibling has been found to deprived.
Abuse of one child is relevant to the care a parent will provide to other siblings.

State v. Sommer 2011 ND 151
Docket No.: 20100348
Filing Date: 8/11/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The dispositive question concerning application of the automobile exception is whether probable cause supported the search.
The recognition that vehicles are inherently mobile and that vehicles garner a lesser expectation of privacy excuses the need for a warrant.

Gustafson, et al. v. Poitra, et al. 2011 ND 150
Docket No.: 20100277
Filing Date: 8/10/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The appellate court may consider whether the district court had subject matter jurisdiction and may consider the issue sua sponte.
A state court does not have subject matter jurisdiction where a non-Indian claimant initiates an action against Indian defendants over a lease of fee land owned by the Indian defendants within the exterior boundaries of the reservation.

Makelky v. Makelky 2011 ND 149
Docket No.: 20100406
Filing Date: 7/25/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Mertz v. City of Elgin 2011 ND 148
Docket No.: 20110054
Filing Date: 7/21/2011
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The decision of a local governing body must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not evidence to support its decision.
The interpretation of a zoning ordinance is governed by the rules of statutory construction.
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. Starke (Consolidated w/20100327) 2011 ND 147
Docket No.: 20100062
Filing Date: 7/18/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant is entitled to a jury instruction on an ordinary defense for which credible evidence has been introduced. The jury must find that the State has proved the non-existence of this defense beyond a reasonable doubt in order to convict.
Under the defense of premises statute, "trespass" is not confined merely to uninvited entrants, but include the unlawful remaining in the premises of another.
The use of force in defending one's premises must be reasonable under the circumstances.

Wahl v. Northern Improvement Company, et al. 2011 ND 146
Docket No.: 20100295
Filing Date: 7/18/2011
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: A district court has broad discretion over the presentation of evidence and the conduct of trial.
The factors used to determine the reasonableness of attorney fees should be used as guidelines to determine whether expert witness fees are reasonable.

Glass v. Glass 2011 ND 145
Docket No.: 20100260
Filing Date: 7/15/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A material change of circumstances can occur if a child's environment may endanger the child's physical or emotional health, or impair the child's emotional development.
Cases that are "close calls" may result in a change of primary residential responsibility when other considerations are weightier than the custodial stability factor.
A party challenging the denial of a request for continuance must show prejudice resulted from the denial.