Opinions

Silliman v. All American Biodiesel, Inc. 2011 ND 54
Docket No.: 20100257
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Res ipsa loquitur for fire damage requires that the accused party had control over the instrumentality that caused the fire, not merely the location of the fire.
Not the mere occurrence of a fire but rather the circumstances under which the fire originated and spread gives rise to the application of res ipsa loquitur.

Lund v. Lund 2011 ND 53
Docket No.: 20100147
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Whether to grant a continuance lies within the sound discretion of the district court, and its decision to deny a motion for a continuance will not be reversed on appeal absent an abuse of discretion.
The mere fact that a judge has previously ruled against a party in the same or a prior proceeding does not demonstrate bias requiring disqualification.

Interest of G.L.D. (CONFIDENTIAL) 2011 ND 52
Docket No.: 20100230
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: To preclude discharge from treatment as a sexually dangerous individual, the State must prove by clear and convincing evidence that the committed individual remains a sexually dangerous individual and has serious difficulty controlling his or her behavior.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.

Interest of L.T. (CONFIDENTIAL) 2011 ND 51
Docket No.: 20110040
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. 25-3.1-15, waiver of a mental health respondent's right to be present at a hearing cannot be found on the basis of only his or her failure to appear at the treatment hearing.

Grand Forks Homes, Inc., et al. v. Grand Forks Bd. of Co. Comm'r(cons. 20100202) 2011 ND 50
Docket No.: 20100197
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A district court's decision whether to order the taking of additional evidence under N.D.C.C. 28-34-01(3) is discretionary.
The basic concept of charity is to provide a gift to assist those in need.
Restricting the use of property for charitable purposes such as providing housing for the handicapped, the elderly, or persons with low incomes does not alone suffice to qualify for a charitable tax exemption.

State v. Erickson 2011 ND 49
Docket No.: 20100285
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: An acquittal, as distinguished from a dismissal quashing an information, is determined by the substance of the judge's ruling.
An order quashing an information is appealable, but a judgment of acquittal is not.
The district court must have a sufficient legal basis to dismiss a criminal charge.
When a court dismisses a criminal action sua sponte, it is required to give the parties notice of its intent to do so and an opportunity to respond.

State v. Johnson (consolidated w/20100241-20100242) 2011 ND 48
Docket No.: 20100240
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers, not weighed in individual layers but in the laminated total.
An application for a warrant that is based upon stale information of previous misconduct is insufficient because it does not establish probable cause that similar or other improper conduct is continuing to occur.

State v. Sauer 2011 ND 47
Docket No.: 20100164
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The prosecution has a duty to disclose documents and data a defendant requests in a criminal case, and the failure to disclose is a discovery violation.
A district court has discretion in applying a remedy for a discovery violation, and the court does not abuse its discretion in remedying the violation unless a defendant shows he was significantly prejudiced and denied a substantial right.

Motschman v. Bridgepoint et al. 2011 ND 46
Docket No.: 20100158
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The statute of frauds must be specifically pleaded, and a party who fails to plead it will be deemed to have waived his right to rely upon it.
The district court may decline to consider an issue or argument raised for the first time on a motion for reconsideration if it could have been raised in earlier proceedings.
Consideration does not fail or become void merely because a party refuses to cash a check tendered as payment in performance of the contract.

Geffre v. N.D. Dep't. of Health 2011 ND 45
Docket No.: 20100110
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: An appellant must meet the statutory requirements for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal.
A nonadministrative party does not have to show an absence of substantial justification for the agency action or prevail on the merits of the underlying appeal to receive an award of attorney fees and costs when the nonadministrative party prevails on an intertwined ruling made in conjunction with the underlying appeal.
In an employer-employee relationship, insubordination imparts a willful disregard of express or implied directions of the employer and refusal to obey reasonable orders.
A party making a constitutional claim must provide persuasive authority and reasoning, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

Nuveen v. Nuveen 2011 ND 44
Docket No.: 20100134
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The fair market value of a business is ordinarily the proper method for valuing property in a divorce.
A district court may consider a difference in earning power when determining an award of spousal support, but equalization of incomes is not a goal or measure of spousal support.
In awarding permanent spousal support, a district court may rely upon a substantial disparity in divorcing spouses' incomes that cannot be remedied by a property division or rehabilitative spousal support.

Yellow Book Sales v. Bolinske Partnership, et al. 2011 ND 43
Docket No.: 20100283
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court order and judgment in a contract case summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Klein 2011 ND 42
Docket No.: 20100261
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court order denying a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4), and a criminal judgment sentencing a defendant as a dangerous special offender is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Deng 2011 ND 41
Docket No.: 20100247
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Assault
Author:

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

Disciplinary Board v. Delorme 2011 ND 40
Docket No.: 20100414
Filing Date: 3/17/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Vicknair, et al. v. Phelps Dodge Industries, Inc., et al. 2011 ND 39
Docket No.: 20100029
Filing Date: 2/18/2011
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: When a statute is derived from a uniform act it must be construed to effectuate its general purpose to make uniform the laws of those states which enact it.
A party seeking application of the "escape clause" in N.D.C.C. 28-01.2-04, which provides an exception to the general rule that the statute of limitations of the state whose substantive law governs the case should be applied, bears the burden of proving the escape clause applies.
A party who responds to a motion for summary judgment by requesting additional time for discovery under N.D.R.Civ.P. 56(f) must identify with specificity the particular information sought and explain how that information would preclude summary judgment and why it has not previously been obtained.

Brown v. Montana-Dakota Utilities Co., et al. 2011 ND 38
Docket No.: 20100220
Filing Date: 2/14/2011
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A municipality may enact ordinances allowing it to terminate a resident's services due to nonpayment for services.
A utility company may combine balances from a customer's separate accounts and terminate services if the combined balance remains unpaid, as long as the balances are from services of the same class and for the same customer.
A customer has received personal notice by delivery, as required by regulations, when it is evident on the record the customer was aware of an unpaid utility balance and the utility company's intent to disconnect services.

Hildenbrand v. Capital RV Center, Inc. 2011 ND 37
Docket No.: 20100118
Filing Date: 2/11/2011
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The law of the case doctrine and the scope of the parties' appeal define the parameters of appellate review.
A district court has broad discretion over the nature and scope of written questions submitted to the jury.
Contract provisions may establish entitlement to possession for conversion purposes.
The invocation of the shorthand expression "meeting of the minds" is more misleading than helpful in deciding contract issues.
A failure to explicitly request specific equitable relief is not fatal to a court's grant of equitable relief.

Sorenson v. Alinder, et al. 2011 ND 36
Docket No.: 20100254
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Under North Dakota's abandoned mineral statutes, the requirement of mailing a notice of lapse under N.D.C.C. 38-18.1-06(2) requires a "reasonable inquiry" only when the mineral owner's address does not appear of record.

Eaton v. State 2011 ND 35
Docket No.: 20100235
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The sufficiency of the factual basis to support a guilty plea is a question of law on appeal from a summary denial of an application of post-conviction relief, where the parties agree there were no disputed issues of fact.
Courts in post-conviction relief proceedings may consider information from the plea proceedings in addition to the factual basis presented to ensure there was a sufficient factual basis to support the guilty plea.
A court does not improperly infer an intent to deliver a controlled substance while establishing a factual basis to support a guilty plea, where the court relies on evidence of possession of a significant amount of the controlled substance and other items suggesting an intent to deliver.

Johnson, et al. v. Taliaferro, et al. 2011 ND 34
Docket No.: 20100314
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Subsequently enacted legislation cannot take away a vested right.

Sorenson v. Felton 2011 ND 33
Docket No.: 20100256
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The word 'or' is disjunctive in nature and ordinarily indicates an alternative between different things or actions. Terms or phrases separated by 'or' have separate and independent significance.
When the letter of the law is clear and free from ambiguity, a court need look no further than the statutory language, and it is neither necessary nor appropriate to delve into legislative history to determine legislative intent.

Kalvoda v. Bismarck Public School Dist. #1 2011 ND 32
Docket No.: 20100320
Filing Date: 2/8/2011
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: On appeal, the appellee is entitled to argue any grounds raised at the district court without cross-appealing, including those that were rejected. A cross-appeal is necessary only if the appellee seeks a more favorable result on appeal than it received in the district court.
The party seeking a writ of mandamus must demonstrate a clear legal right to performance of the acts sought and have no other plain, speedy, and adequate remedy in the ordinary course of law.

Pember v. Shapiro 2011 ND 31
Docket No.: 20100149
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may consider a mother's plan to relocate in making an initial custody award, but must do so within the best interests of the child factors.
A district court may make an initial custody award using the best interest of the child factors and proceed in the same judgment to consider the custodial parent's request to relocate with the children under the Stout-Hawkinson factors.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure and must credit any downward deviation for extended visitation for the entire year.

State v. Boespflug 2011 ND 30
Docket No.: 20100121
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The Legislature did not explicitly designate the three-year age difference requirement under N.D.C.C. 12.1-20-01(3) as an affirmative defense.
The Legislature did not make the reasonableness of the defendant's belief of the age difference a part of the three-year age difference requirement under N.D.C.C. 12.1-20-01(3).

State v. Gomez 2011 ND 29
Docket No.: 20100100
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The use of special verdicts or general verdicts with special interrogatories is disfavored in criminal cases and the rules of criminal procedure generally do not provide for special verdicts or interrogatories.
Sexual contact, as defined in N.D.C.C. 12.1-20-02(5), includes any touching, whether through clothing or other covering, of the sexual parts of the person. The language of the statute does not limit sexual contact to any touching of the sexual parts of a child.
A criminal defendant has a constitutional right to a jury trial with an impartial jury selected from a representative cross-section of the community.
To establish a prima facie violation of the fair-cross-section requirement, a defendant must show that there was an underrepresentation of a distinctive group in jury venires and that the underrepresentation was due to systemic exclusion of the group in the jury-selection process.
A punishment in a non-capital case that is grossly disproportionate to the offense is cruel and unusual punishment.

Estate of Haugen 2011 ND 28
Docket No.: 20100165
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: When the entire estate is distributed to the surviving spouse under section 30.1-04-02, N.D.C.C., nothing is distributed under section 30.1-04-03, N.D.C.C.
The district court is required to make specific findings that allow meaningful appellate review.

Community Homes of Bismarck, Inc. v. Main 2011 ND 27
Docket No.: 20100095
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: A proper foundation must be established before witnesses may refer to notes or to other documents to refresh their memory, and the proper foundation requires witnesses to show a need to refresh their memory and to confirm the notes will assist them in refreshing their memory.
Opposing counsel has the right at trial to inspect a document used to refresh witnesses' recollections, to cross-examine the witnesses on the document, and to introduce relevant portions of the document into evidence.
A new written promise to pay a debt may revive a debt that is barred by the statute of limitations.
Whether a party has breached a lease is a finding of fact.

Whelan v. A.O. (CONFIDENTIAL) 2011 ND 26
Docket No.: 20100219
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A trial court's findings of fact and conclusions of law on whether a sexually dangerous individual's treatment program is the least restrictive treatment facility or program available must be supported by clear and convincing evidence.
An appellate court will address only those issues that are thoroughly briefed and argued. Mere assertions of unconstitutionality are insufficient to adequately raise a constitutional question.

Interest of L.D.M. (CONFIDENTIAL) 2011 ND 25
Docket No.: 20100137
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A trial court reviewing the civil commitment of a sexually dangerous individual must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

Doll v. Doll 2011 ND 24
Docket No.: 20100133
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: On appeal from a trial court's award of primary residential responsibility, the evidence is not reweighed nor the credibility of witnesses reassessed.

State v. Huber 2011 ND 23
Docket No.: 20100209
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Warrantless discovery of evidence in a defendant's home is justified under the emergency exception if entry was actually motivated by a perceived need to render aid or assistance.
Exigent circumstances and the emergency exception are analogous, but the emergency exception is focused on law enforcement protecting citizens and property as part of its general caretaking responsibilities.

Irish Oil & Gas, Inc. v. Riemer, et al. 2011 ND 22
Docket No.: 20100064
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A contract must be read in its entirety so that all of its provisions are taken into consideration to determine the true intent of the parties.
Distinguishing between a partial or a total failure of consideration is important because it dictates the remedy.

Matter of G.R.H. (CONFIDENTIAL) 2011 ND 21
Docket No.: 20100114
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: North Dakota's statutes for the commitment of sexually dangerous individuals function as a proper civil commitment framework because they contain rigid procedural and evidentiary safeguards.
In reviewing a petition for discharge as a sexually dangerous individual, the district court must consider all evidence regarding the individual's treatment to ensure adequate protection for the public and treatment for the individual.

State v. Carpenter 2011 ND 20
Docket No.: 20100085
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A trial court must determine whether a person convicted of a crime is a habitual offender under the statute before enhancing the convicted person's sentence.
Reasonable notice must be given of the State's intention to seek a sentence enhancement for a criminal offender based on a habitual offender status.

State v. Curtis (Cross-reference No. 20080007) 2011 ND 19
Docket No.: 20100154
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgment revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Wilson 2011 ND 18
Docket No.: 20100236
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Criminal judgment for harassment summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Pederson 2011 ND 17
Docket No.: 20100187
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition and sexual assault, and order denying motion for a new trial summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Foreid v. State (cross-reference w/20080128) 2011 ND 16
Docket No.: 20100325
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Binstock v. N.D. Dep't. of Transportation 2011 ND 15
Docket No.: 20100287
Filing Date: 2/8/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The district court's judgment affirming the Department of Transportation's revocation of a driver's license is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Interest of J.W., a child (CONFIDENTIAL) 2011 ND 14
Docket No.: 20100376
Filing Date: 2/8/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Rudolph v. State 2011 ND 13
Docket No.: 20100249
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order summarily dismissing petition for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

Howard Venture, LLC, et al. v. Heinze 2011 ND 12
Docket No.: 20100119
Filing Date: 1/14/2011
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Summary judgment ordering reimbursement in a contract dispute summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

State v. Thompson (Consolidated w/20100176) 2011 ND 11
Docket No.: 20100175
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A person has been 'seized' within the meaning of the Fourth Amendment only if a reasonable person would have believed that he was not free to leave.

Guardianship/Conservatorship of G.L. 2011 ND 10
Docket No.: 20100246
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Guardian/Conservator
Author: Sandstrom, Dale

Highlight: A party may not collaterally attack a prior unappealed order in a subsequent proceeding.
A guardian and a conservator are entitled to reasonable compensation for services, and a district court has discretion to determine the amount of reasonable compensation.

Matter of T.O. (CONFIDENTIAL) (cross-reference w/20090181) 2011 ND 9
Docket No.: 20100270
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court reviewing the civil commitment of a sexually dangerous individual must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

Disciplinary Board v. Kirschner (Consolidated w/ 20100251) 2011 ND 8
Docket No.: 20100250
Filing Date: 1/12/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Personal matters do not justify or excuse an attorney's misconduct but are mitigating factors that may reduce a disciplinary sanction.
Under the standards for imposing lawyer sanctions, a court imposing a disciplinary sanction against a lawyer should consider the ethical duty violated by the lawyer, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.

Investors Title Insurance Co. v. Herzig, et al. 2011 ND 7
Docket No.: 20100108
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Although a district court generally loses jurisdiction when a notice of appeal is filed, an appeal does not stay proceedings for the enforcement of a judgment.
After the time periods set forth in the statute governing cancellation of judgments have passed, a judgment is unenforceable against the judgment debtor.

State v. Martin 2011 ND 6
Docket No.: 20100204
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: In interpreting a statute, the word "or" is generally disjunctive in nature and indicates an alternative between different things and actions. The literal meaning of the word "or" will apply unless it renders the statute inoperable or its meaning becomes questionable.
The State may pursue both a criminal and civil action simultaneously against the same individual for a public nuisance.

State v. Golden (Cross-reference w/20080301) 2011 ND 5
Docket No.: 20100132
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for class C felony reckless endangerment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).