Opinions

Schipper Construction, Inc. v. American Crystal Sugar Co. 2008 ND 226
Docket No.: 20080123
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A notice of rescission must be clear, unambiguous, and unequivocal.

Matter of Peterson's dogs 2008 ND 225
Docket No.: 20080094
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: When an animal has been confiscated under a law for humane treatment of animals, the owner is entitled to a hearing to determine whether the animal should be returned.
Whether an owner has voluntarily relinquished or waived ownership rights to an animal generally is a finding of fact, and the owner must be allowed an opportunity to present evidence on that issue if it has been adequately raised.

Brummund v. Brummund 2008 ND 224
Docket No.: 20080170
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Certification of an order or judgment as final under N.D.R.Civ.P. 54(b) is reserved for those cases involving unusual circumstances where failure to allow an immediate appeal would create demonstrated prejudice or hardship.
Rule 54(b) certification is not appropriate if the judgment does not fully decide an entire claim.

State v. Uran 2008 ND 223
Docket No.: 20080111
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A warrantless search of a home is not unreasonable if the search falls under an exception to the search warrant requirement.
The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect.

Matter of G.R.H. (CONFIDENTIAL) 2008 ND 222
Docket No.: 20080102
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: In reviewing the civil commitment of a sexually dangerous individual, all sexually predatory conduct, including that which did not result in a charge or conviction, may be considered.
Evidence showing serious difficulty in controlling behavior suffices to distinguish a sexually dangerous individual from other dangerous persons.

Siewert v. Siewert (Consolidated w/20080095) 2008 ND 221
Docket No.: 20080065
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: District courts have discretion to appoint a guardian ad litem in child custody modification cases.
A court may modify a child custody order if more than two years have passed since the order was entered and there has been a material change in circumstances and the modification is necessary to serve the best interests of the child.
A court's decision to modify custody is a finding of fact, which will be reversed on appeal only if it is clearly erroneous.
District courts have jurisdiction to modify child support while an appeal is pending from a decision on a custody motion that does not address child support.

State v. Harlan 2008 ND 220
Docket No.: 20080083
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Evidence discovered as a result of a pocket search following a safety pat-down search which provides no indication of a weapon or anything similar must be suppressed because the pocket search under such circumstances has exceeded the initial justification for the pat-down search.

State v. Mosbrucker 2008 ND 219
Docket No.: 20070355
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A victim must understand more than the physical aspects of sex to be capable of understanding the nature of a sexual act under N.D.C.C. 12.1-20-03(1)(e).
The remedies afforded by appeal from a judgment and appeal from an order denying a new trial are independent remedies.

Miller v. State 2008 ND 218
Docket No.: 20080113
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: District court order denying post-conviction relief and order confirming credit for incarceration summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Buck 2008 ND 217
Docket No.: 20080153
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of driving while under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Nemec 2008 ND 216
Docket No.: 20080264
Filing Date: 12/3/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law.

Disciplinary Board v. Sletten (Consolidated w/ 20080147 - 20080150) 2008 ND 215
Docket No.: 20080146
Filing Date: 11/25/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Hanisch v. Osvold 2008 ND 214
Docket No.: 20080012
Filing Date: 11/24/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a).
Under the clearly erroneous standard of review, the evidence is not reweighed and the credibility of witnesses is not reassessed, and the appellate court will not retry a custody case or substitute its judgment for a district court's initial custody decision merely because it might have reached a different result.

State v. Evans 2008 ND 213
Docket No.: 20080143
Filing Date: 11/24/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of possession of a controlled substance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Kruckenberg 2008 ND 212
Docket No.: 20080106
Filing Date: 11/24/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A defendant has the right to be present in the courtroom at every stage of the trial.
All communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
Testimony requested by the jury must be given at the jury's request.
Not every assertion of prosecutorial misconduct results in the denial of the defendant's right to a fair trial.
A defendant may not claim error for arguments that are invited.

Solem v. Solem 2008 ND 211
Docket No.: 20080091
Filing Date: 11/21/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of rehabilitative spousal support that is to last longer than the length of the marriage does not, alone, indicate the award is clearly erroneous.
A trial court's determination regarding attorney fees is reviewed under an abuse of discretion standard.

Matter of the Trust of Pederson 2008 ND 210
Docket No.: 20080076
Filing Date: 11/21/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court is not required to supervise a trust simply because an interested party requests supervision; rather, a petitioner must establish a justification for supervision of a trust.
If it is possible to achieve the purpose of the trust, the trust will not be extinguished.
If a lawsuit is brought for an improper purpose or without evidentiary support, sanctions may be imposed.

Aakre v. Disciplinary Board 2008 ND 209
Docket No.: 20080268
Filing Date: 11/21/2008
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Lawyer reinstatement ordered.

Matter of M.D. (CONFIDENTIAL) 2008 ND 208
Docket No.: 20080082
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A district court reviewing the civil commitment of a sexually dangerous individual must consider all evidence presented and not merely the individual's actuarial test scores.
A sexually dangerous individual who has not completed treatment, continues to engage in inappropriate behavior and has serious difficulty controlling his behavior may still be a sexually dangerous individual even if he or she scored low to moderate in all the risk assessment instruments.

Peterson v. DS Dispatch 2008 ND 207
Docket No.: 20080165
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

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

Aasmundstad, et al. v. State of ND, et al. 2008 ND 206
Docket No.: 20080018
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner's property for a public use and the public use was the proximate cause of the damage.
Proximate cause cannot be established without reliable evidence establishing a causal connection.
In an inverse condemnation action, whether a public improvement is the proximate cause of a taking or damages is a question of fact.
To prevail on an act-of-God defense, a defendant must prove the claimed act of God was the sole proximate cause of damage.
Whether an act-of-God defense has been established is a question of fact.

Halvorson v. Sentry Insurance 2008 ND 205
Docket No.: 20080133
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: For summary judgment purposes, a no-fault insurance benefits plaintiff must present competent evidence and cannot rest on his or her unsupported allegations to establish a connection between his or her injuries and the alleged cause.

State v. McAvoy 2008 ND 204
Docket No.: 20080126
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A district court does not abuse its discretion by not postponing a probation revocation hearing until underlying criminal charges are disposed of in light of a probationer's last-minute request for a continuance and the societal interest of a prompt hearing when a probationer has allegedly engaged in a course of criminal activity.
A probation revocation may be sustained by showing only a single violation of the probation.

State v. Alvarado 2008 ND 203
Docket No.: 20080107
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: When prior acts are evidence of activity in furtherance of the same criminal activity, rather than independent of the charged crime, the evidence does not fall under N.D.R.Ev. 404(b).
When sufficiency of the evidence is challenged, all inferences are drawn in favor of the verdict.

State v. Bitz 2008 ND 202
Docket No.: 20080101
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: On a challenge to the sufficiency of evidence at trial, a criminal conviction will be reversed only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Colombe v. Carlson 2008 ND 201
Docket No.: 20080023
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Courts have the authority to dismiss a civil appeal if the party requesting relief is a fugitive at the time the appeal is pending.
The fugitive dismissal rule should be invoked with great caution and restraint.
Before dismissing a case under the fugitive dismissal rule, a reviewing court considers: (1) the connection between the litigant's fugitive status and the litigant's appeal; (2) whether there is an alternative short of dismissal that will render enforcement of the underlying judgment certain and remove the risk of prejudice to the fugitive's adversary; and (3) the policy concerns of the fugitive dismissal rule are present.

State v. Trout 2008 ND 200
Docket No.: 20080079
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Evidence of other crimes, wrongs, or acts is not admissible at trial to prove a person acted in conformity therewith. Such evidence will only be allowed for other relevant purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The introduction of prior bad acts evidence will warrant reversal of conviction only if the admitted testimony is so prejudicial that substantial injury occurred, and a different decision would have resulted had the error not been made.
A jury is presumed to follow instructions made by the court. The issuance of a curative instruction to disregard certain evidence is generally sufficient to remove the threat of prejudice in a jury trial.

Everett v. State 2008 ND 199
Docket No.: 20080063
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An application for post-conviction relief may be denied on the ground of misuse of process when the appellant fails to raise the arguments in his prior direct appeal.
Issues not briefed by an appellant are deemed abandoned.
Summary dismissal of a post-conviction claim of ineffective assistance of counsel is appropriate if the petitioner does not raise a genuine issue of material fact.
A reviewing court considers length of delay, reason for delay, appellant's assertion of his right, and prejudice to the appellant when determining whether a district court had good cause to continue a trial.

Matter of Hanson 2008 ND 198
Docket No.: 20080098
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Civil commitment of a sexually dangerous individual summarily reversed and remanded under N.D.R.App.P.35.1(b) for detailed findings of fact and conclusions of law.

Matter of Vantreece 2008 ND 197
Docket No.: 20080004
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Order of commitment as a sexually dangerous person summarily reversed under N.D.R.App.P. 35.1(b).

State v. Kaseman 2008 ND 196
Docket No.: 20080088
Filing Date: 10/27/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Restitution is a type of sentence.
A district court may not order restitution, then later increase restitution, unless the district court reserves the issue prior to or at the time of sentencing.

Kucera v. Kucera 2008 ND 195
Docket No.: 20080006
Filing Date: 10/27/2008
Case Type: Appeal - Civil - Divorce - Property
Author:

Highlight: Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

P.A. v. A.H.O. (CONFIDENTIAL) 2008 ND 194
Docket No.: 20080049
Filing Date: 10/27/2008
Case Type: Appeal - Civil - Paternity
Author: VandeWalle, Gerald

Highlight: The Court reviews findings of fact in custody awards under a clearly erroneous standard.
Custody will be awarded to the parent who will promote the best interests and welfare of the child, which is determined by the court's consideration of several factors.
While the best interests factors should each be given equal consideration, there is no mathematical formula which awards custody to the party with the most factors in his or her favor. The best interests of a child must be examined on a case-by-case basis.
This Court has not held there is a presumption against joint custody. However, a trial court must find that joint custody is in a child's best interest for the Court to affirm a joint custody award.

Horton v. Horton 2008 ND 193
Docket No.: 20080087
Filing Date: 10/24/2008
Case Type: Appeal - Civil - Child Support
Author: Not Available

Highlight: Order denying name change is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Clark v. Workforce Safety & Insurance, et al. 2008 ND 192
Docket No.: 20080089
Filing Date: 10/24/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: If there is conflicting medical evidence presented in a case, some of it favorable and some unfavorable to a claimant, WSI must adequately explain its reason for disregarding the favorable evidence when it reaches a conclusion less favorable to the claimant.

State ex rel. Dept. of Labor v. Riemers, et al. 2008 ND 191
Docket No.: 20070363
Filing Date: 10/24/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: An unlicensed natural person cannot be an attorney for an artificial person, such as a limited liability company. Court documents signed by a non-attorney on behalf of a limited liability company are void.

Estate of Samuelson 2008 ND 190
Docket No.: 20080075
Filing Date: 10/24/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: When a person excludes an individual in his will, the individual is excluded from taking both under the will and under intestate succession, unless the person making the will expressly specifies to the contrary.
Disinheritance must be expressed and cannot be implied.

Lord & Stevens, Inc., et al. v. 3D Printing, Inc., et al. 2008 ND 189
Docket No.: 20070341
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: Whether there is an express or implied contract between the parties is a question for the trier of fact.
There can be no implied in law contract to prevent unjust enrichment when there is an express or implied in fact contract between the parties relative to the same subject matter.

Schmidt v. Job Service, et al. 2008 ND 188
Docket No.: 20080071
Filing Date: 10/22/2008
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: For purposes of unemployment benefits, misconduct is conduct evincing a willful or wanton disregard of an employer's interests and is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to an employer.
The reasons for a teacher non-renewal may rise to the level of misconduct for purposes of unemployment compensation benefits.

Ebach v. Ebach 2008 ND 187
Docket No.: 20080057
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A party seeking to modify a spousal support obligation must prove there has been a material change in circumstances since the time of the initial decree or, if the initial support award has been modified, a change since the subsequent modification.
A court must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

State v. Wetzel 2008 ND 186
Docket No.: 20080042
Filing Date: 10/22/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: Words of a statute are given their plain, ordinary, and commonly understood meaning.
The boundary of a county located next to the Missouri River extends to the center of the main channel of the river.

Matter of R.A.S. (Confidential) 2008 ND 185
Docket No.: 20080043
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A court must make sufficient factual findings to provide the appellate court with the basis for the court's decision.
Generally, issues not raised in prior proceedings will not be addressed on appeal.

Public Service Commission v. Minnesota Grain 2008 ND 184
Docket No.: 20080068
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: On legal questions, such as interpretation of a statute, an agency's decision is fully reviewable on appeal.
Chapter 60-04, N.D.C.C., addresses insolvent grain warehousemen and provides an insolvency procedure designed to provide a prompt method for receipt holders to recover their claims.
Statutes relating to the same subject matter shall be construed together and should be harmonized, if possible, to give meaningful effect to each, without rendering one or the other useless.

Brown v. Brodell, et al. 2008 ND 183
Docket No.: 20080005
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Findings of fact in cases involving the doctrine of acquiescence are reviewed under a clearly erroneous standard.
A landowner may satisfy the doctrine of acquiescence by showing that a neighboring landowner recognized a boundary line through silence and conduct.

ND State Electrical Board v. Boren 2008 ND 182
Docket No.: 20070352
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The right of appeal is governed solely by statute in this state, and if there is no statutory basis to hear an appeal, the appeal must be dismissed.
There is a two-part test for determining whether jurisdiction over an appeal exists: First, the order appealed from must meet one of the statutory criteria of appealability set forth in N.D.C.C. 28-27-02. If it does not, the appeal must be dismissed. If it does, then Rule 54(b), N.D.R.Civ.P., must be complied with.

House v. Royer, et al. 2008 ND 181
Docket No.: 20080081
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Landlord/Tenant
Author: Per Curiam

Highlight: Judgment of eviction is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Bolinske v. Jaeger, et al. 2008 ND 180
Docket No.: 20080222
Filing Date: 9/29/2008
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Per Curiam

Highlight: A writ of mandamus may be issued to compel the performance of an act which the law specifically requires a state official to perform.
A vacancy on a no-party ballot exists when a candidate nominated at the primary election dies, resigns, or otherwise becomes disqualified to have the candidate's name printed on the ballot at the general election, no candidates were nominated at the primary election because the office did not yet exist, or the timing of the vacancy in an office makes it impossible to have it placed on the primary ballot.
A vacancy does not exist on a no-party ballot if only one candidate runs for a designated position at the primary election, is nominated, and is listed on the general election ballot.
Parties raising a constitutional challenge must bring up the heavy artillery or forego the attack entirely.

Tarnavsky v. Tarnavsky, et al. 2008 ND 179
Docket No.: 20070161
Filing Date: 9/26/2008
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Orders denying motions to "Quash Garnishment Summons," to "Expunge Order Denying Motion to Quash Garnishment Summons," to "Deny Order Confirming Sale," to amend findings under N.D.R.Civ.P. 52(b), for "Extra Ordinary Relief," and for relief from the judgment under N.D.R.Civ.P. 60(b) are summarily affirmed under N.D.R.App.P. 35.1(a)(1), (2), and (4).

Drayton v. Workforce Safety and Insurance, et al. 2008 ND 178
Docket No.: 20070281
Filing Date: 9/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: Courts are more circumspect about applying administrative res judicata than judicial res judicata, taking into account (1) the subject matter decided by the administrative agency, (2) the purpose of the administrative action, and (3) the reasons for the proceeding.
Unless otherwise provided, statutes in effect on the date of injury govern a claimant's right to collect workers compensation benefits.
A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation.

Disciplinary Board v. Tollefson 2008 ND 177
Docket No.: 20080205
Filing Date: 9/23/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.