Opinions

Berg v. Wysocki 2011 ND 4
Docket No.: 20100179
Filing Date: 1/12/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A judgment granting primary residential responsibility of a child to one parent, and parenting time to the other, is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

State v. Pelzl 2011 ND 3
Docket No.: 20100227
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

State v. Ames 2011 ND 2
Docket No.: 20100224
Filing Date: 1/12/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

State v. Buller 2011 ND 1
Docket No.: 20100215
Filing Date: 1/11/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Sex offernder registration order summarily affirmed under N.D.R.App.P. 35.1(a)(7).

American Bank Center v. Wiest, et al. 2010 ND 251
Docket No.: 20100027
Filing Date: 12/23/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Fraud and deceit may be imputed from an agent to the principal.
A principal cannot take the benefit of the transaction conducted by its agent ostensibly on its behalf without assuming full responsibility, not only for his acts, but also for his knowledge.
The adverse interest exception applies only when a third person seeks to enforce some demand against the corporation, but has no application where the corporation seeks to enforce the benefit of a fraud perpetrated by its officer on a third person.
Rescission of a contract is not a matter of absolute right, but instead is committed to the district court's sound discretion.

RECALLND v. Jaeger 2010 ND 250
Docket No.: 20100228
Filing Date: 12/21/2010
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: The North Dakota Constitution limits the people's recall power to "certain elected officials" holding offices created under the laws of North Dakota.
The Secretary of State must exercise a certain amount of discretion in carrying out his duties under N.D. Const. art. III, and it is appropriate for him to rely on the Attorney General's opinion when uncertain about a legal question.

Interest of A.B., a Child (CONFIDENTIAL)(CONSOLIDATED W/201000352) 2010 ND 249
Docket No.: 20100351
Filing Date: 12/21/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A juvenile court may terminate a parent's right to a child if the court finds the child is a deprived child; the conditions and causes of deprivation are likely to continue; and the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.

State v. Buckley 2010 ND 248
Docket No.: 20100033
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A conviction for manslaughter does not improperly rely on guilt by omission where the prosecution proves the defendant engaged in conduct recklessly and failed to provide the proper level of care for the victim, the defendant's child.
A trial court does not err by rejecting the defendant's request to instruct the jury on a civil instruction for proximate cause where the statutory definitions of manslaughter and recklessness are sufficient.
Evidence of a defendant's drug possession and use is relevant to criminal charges of drug possession, and to the level of care the defendant's child received from the defendant.
Prejudice resulting from the probative value of evidence does not make the evidence unfairly prejudicial.

Duff v. Kearns-Duff 2010 ND 247
Docket No.: 20100116
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A parent's recent and relative financial contribution to a marriage is an impermissible consideration for analyzing child custody.
Rehabilitative spousal support may be awarded to equalize the burdens of a divorce or to restore an economically disadvantaged spouse to independent status by providing the disadvantaged spouse an opportunity to acquire an education, training, work skills, or experience to become adequately rehabilitated.

State v. Charbonneau 2010 ND 246
Docket No.: 20100089
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The Uniform Controlled Substances Act is not a habitual offender statute.
The term "offense" under the Uniform Controlled Substances Act means "the actor's conduct, not the ultimate conviction."
Under the Uniform Controlled Substances Act, a plea or finding of guilty for a prior offense must occur before new criminal conduct occurs.

Grand Forks Housing Authority v. Grand Forks Board of County Commissioners 2010 ND 245
Docket No.: 20100196
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A housing authority may agree to make payments to the state or a political subdivision in lieu of taxes, even when the property is tax-exempt.
A board of county commissioners does not act arbitrarily, capriciously, or unreasonably when substantial evidence supports its factual findings.
A district court does not abuse its discretion by denying a motion to remand for additional evidence when the party seeking remand had the opportunity, but failed to present such additional evidence at the hearing before the local governing body and when such additional evidence is not material to the district court's review of the local governing body's decision.

State v. Franzen 2010 ND 244
Docket No.: 20100105
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The continued seizure of a traffic violator after the purposes of the initial traffic stop are completed violates the Fourth Amendment unless the officer has reasonable suspicion for believing criminal activity is afoot.
The use of a masking odor and extreme nervousness are relevant factors in deciding whether reasonable suspicion exists.

Pizza Corner v. C.F.L. Transport 2010 ND 243
Docket No.: 20100084
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The business records exception to the hearsay rule can apply to a document created by a third party if the offering company integrated the record into its own records and relied on it, and if the record meets the other requirements of N.D.R.Ev. 803(6).

City of Grand Forks v. Riemers 2010 ND 242
Docket No.: 20100107
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for driving without liability insurance summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

In the Interest of Voisine 2010 ND 241
Docket No.: 20100163
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Civil commitment of a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Miller 2010 ND 240
Docket No.: 20100127
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgment for unlawfully acting in the capacity of a contractor and two counts of theft of property summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Foss 2010 ND 239
Docket No.: 20100151
Filing Date: 12/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of a controlled substance and unlawful possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Cody v. State 2010 ND 238
Docket No.: 20100177
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Gajewski v. State, et al. 2010 ND 237
Docket No.: 20100231
Filing Date: 12/21/2010
Case Type: Appeal - Civil - Constitutional Law
Author: Per Curiam

Highlight: Order denying motion to vacate judgment summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Cavendish Farms v. Mathiason Farms (consolidated w/20100123) 2010 ND 236
Docket No.: 20090380
Filing Date: 12/14/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Although N.D.C.C. 41-01-18 does not authorize a separate, independent claim for relief for breach of the duty of good faith, a failure to perform or enforce a contractual duty or obligation in good faith constitutes a breach of the contract.
A contract to purchase a future crop is a contract for the sale of goods under N.D.C.C. tit. 41, even if the crop has not yet been planted.
When one party is given substantial discretion in its manner of performance of a duty or exercise of a right under a contract, N.D.C.C. 41-01-18 requires that the party exercise that discretion in good faith and in a commercially reasonable manner.
An award of damages that is within the range of the evidence presented will be sustained on appeal.

B.D.H., et al. v. Mickelson, et al. 2010 ND 235
Docket No.: 20100152
Filing Date: 12/7/2010
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: North Dakota law precludes a child from bringing a claim against medical providers for wrongful life claim in which the child alleges he or she was born with impairments and would not have been born but for a doctor's negligent advice or treatment of the child's mother.

Hoover v. N.D. Dept. of Transportation (cross-reference 20070258) 2010 ND 234
Docket No.: 20100226
Filing Date: 12/7/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment revoking a driver's license is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Huether 2010 ND 233
Docket No.: 20100018
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Voluntary consent is an exception to the warrant requirement, and the prohibition against the warrantless entry of a person's home does not apply when voluntary consent has been obtained from the individual whose property is searched or from a third party who possesses common authority over the premises.
The Fourth Amendment is not violated if police officers reasonably believe a consenting third party has authority over the property, when viewed from the officers' prospective.
In deciding whether a person is in custody for purposes of a Miranda warning, the relevant inquiry is how a reasonable person in that position would have understood the situation.
A trust relationship between an adult and a child is not an impermissible factor for sentencing.

State v. Steffes 2010 ND 232
Docket No.: 20100148
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A Fourth Amendment seizure occurs when a police officer orders a person to do something or demands a response.

Hunt v. Hunt 2010 ND 231
Docket No.: 20100178
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A property division need not be equal to be equitable--especially when a marriage is not long-term--but a substantial disparity must be explained.
Damaging a vehicle and setting fire to a mobile home, regardless of the amount of monetary damage, is serious misconduct the district court can and should consider in an equitable division of property.

State v. Zink 2010 ND 230
Docket No.: 20100117
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A district court's denial of a motion to suppress evidence will be affirmed unless there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence.
Appellate review is limited to issues raised before the district court.

State v. Moore 2010 ND 229
Docket No.: 20100238
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: The substance of a motion, not the district court's label, determines its proper classification.
Res judicata and misuse of process are affirmative defenses that must be raised by the State before a district court may dismiss an application for post-conviction relief on those grounds.

State v. Duffy 2010 ND 228
Docket No.: 20100126
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Curran v. N.D. Workforce Safety & Insurance 2010 ND 227
Docket No.: 20090260
Filing Date: 12/2/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A preexisting injury is not compensable unless the employment substantially accelerates its progression or substantially worsens its severity.
In a "battle of the experts," WSI, and following the enactment of N.D.C.C. 65-02-22.1, the administrative law judge, may choose to rely upon either party's expert witnesses but must adequately explain its reasoning for disregarding medical evidence favorable to the claimant.

Everett v. State (cross-reference 20080063 and 20090244) 2010 ND 226
Docket No.: 20100222
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Schmidt v. Warwick Public School District #29, et al. 2010 ND 225
Docket No.: 20100129
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment of dismissal in a wrongful termination case is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), and (6).

State v. Delaney 2010 ND 224
Docket No.: 20100160
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

Blurton v. State 2010 ND 223
Docket No.: 20100182
Filing Date: 12/2/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

State v. Berglund 2010 ND 222
Docket No.: 20100186
Filing Date: 12/2/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for a second or subsequent violation of a domestic violence protection order summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Missouri Breaks, et al. v. Burns, et al. 2010 ND 221
Docket No.: 20100124
Filing Date: 11/16/2010
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A bankruptcy court's confirmation of a reorganization plan is binding on the debtor and any creditor, and, for purposes of res judicata, confirmation is a valid, final judgment by a court of competent jurisdiction.
The Bankruptcy Code vests the trustee with the rights of a bona fide purchaser of real property for value and permits the invalidation of security interests in real property which, although enforceable between the parties, are not perfected at the start of the case because the creditor has failed to fully comply with state recording laws.

Markwed Excavating, Inc. v. City of Mandan 2010 ND 220
Docket No.: 20100076
Filing Date: 11/15/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A clause in a construction contract prohibiting a contractor from recovering damages for delay and granting an extension of time is enforceable if the requirements for a valid contract are satisfied.
Unambiguous language in a no damages for delay clause in a construction contract does not include an exception for uncontemplated delays and includes delays allegedly caused by an owner or another contractor.
A no damages for delay clause in a contract between a public entity and a private contractor is not unconscionable.

Wong v. State 2010 ND 219
Docket No.: 20100171
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A district court cannot on its own put an applicant for post-conviction relief to his proof. Only a party can move for summary disposition under post-conviction relief.

Sanders v. Gravel Products, Inc. (cross-ref w/ 20080001) 2010 ND 218
Docket No.: 20090318
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Federal and state courts have concurrent jurisdiction over participant or beneficiary suits to recover benefits under an ERISA plan, to enforce rights under the plan, or to clarify rights to future benefits.
"Top hat" plans are not subject to ERISA's requirements for vesting and funding, and administrators of these plans are not subject to ERISA's fiduciary requirements.
A court must interpret a plan's terms by giving the language its common and ordinary meaning as a reasonable person in the position of the plan participant would have understood the words to mean.

State v. Hager 2010 ND 217
Docket No.: 20100090
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Federal securities laws do not preempt state securities laws that require registration of individuals involved in the sale of securities.
The definition of agent for purposes of the North Dakota Securities Act is not limited to third-party individuals who are not employees or owners of the securities issuer.

Gussiaas v. Neustel 2010 ND 216
Docket No.: 20100086
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A move by a parent with primary residential responsibility either out-of-state or in-state, accompanied by other circumstances, may be viewed as a material change of circumstances.
If a district court finds a material change of circumstances has occurred, the court cannot change primary residential responsibility for the child unless it further finds that the modification is necessary to serve the best interests of the child.
A district court's findings of fact must be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the trial court's decision.

JLY Transport v. WSI 2010 ND 215
Docket No.: 20100156
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The Workforce Safety & Insurance fund is not required to prove a compensable injury occurred before entering into a stipulated settlement with a worker.

State v. Walker 2010 ND 214
Docket No.: 20100112
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A defendant may be treated as the principal actor in a crime and convicted of an offense on the basis of the actions of an accomplice.
Neither the State nor a defendant may appeal a sentence alone, but either may appeal a post-judgment order denying a motion to correct an illegal sentence.

Johnson v. State (CONSOLIDATED W/20090322) 2010 ND 213
Docket No.: 20090321
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The Uniform Post-Conviction Procedure Act does not entitle a district court, on its own motion, to dismiss a claim on the basis of the affirmative defenses of res judicata or misuse of process.

Flemming v. Flemming 2010 ND 212
Docket No.: 20100041
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A default divorce judgment is subject to N.D.R.Civ.P. 60(b) and is not typically appropriate for appeal.

Masset v. N.D. Dep't of Transportation 2010 ND 211
Docket No.: 20100098
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Every administrative agency must maintain an official record of each adjudicative proceeding heard by it.

State v. Aguero (Consol. w/ 20090254) 2010 ND 210
Docket No.: 20090241
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: The U.SConstitution forbids the routine use of visible physical restraints during the guilt phase of a criminal trial, unless the use is justified by an essential state interest.
The Sixth Amendment Confrontation Clause does not require exclusion of non-testimonial statements.
Miranda warnings carry an implicit assurance that silence will not carry a penalty, and the State may not use a criminal defendant's post-Miranda silence at trial against him.

Holbach v. State (Consolidated w/ 20100142-20100146) 2010 ND 209
Docket No.: 20100141
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying application for post-conviction relief, order denying motion to amend the judgment, and order on request for return of personal property are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of Disbrow 2010 ND 208
Docket No.: 20100028
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order of commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of R.J. (CONFIDENTIAL)(CONS. w/20100299 - 20100303) 2010 ND 207
Docket No.: 20100298
Filing Date: 11/9/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court's order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Nelson v. Nelson 2010 ND 206
Docket No.: 20100122
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment denying request for spousal support summarily affirmed under N.D.R.App.P. 35.1(a)(2).