Slip opinions decided 2018 — North Dakota Reports

A district court found a sufficient factual basis to support the defendant's guilty plea based on the record and the State's offer of proof. An attorney does not actively misinform a defendant by failing to inform the defendant of the application of the eighty-five percent rule under N.D.C.C. § 12.1-32-09.1. Manifest injustice requiring withdrawal of a guilty plea does not exist where a defendant does not provide evidence that he did not understand the nature of his plea agreement.

A district court's award of residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Summary affirmance is appropriate when there is sufficient evidence to support a guilty verdict. In a case tried without a jury, the court need only find the defendant guilty or not guilty.

A district court order denying discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Summary dismissal of post-conviction relief summarily affirmed under N.D.R.App.P 35.1(a)(2) and (7).

A criminal judgment convicting the defendant of tampering or damaging a public service is summarily reversed under N.D.R.App.P. 35.1(b).

The existence and terms of an oral contract are findings of fact subject to the clearly erroneous rule. A district court's determination of whether the facts support a finding of unjust enrichment is fully reviewable on appeal. An award of damages for an unjust enrichment claim is reviewed under the clearly erroneous standard. Issues not raised in the district court are waived.

A revocation of a sentence for a probation violation does not violate double jeopardy.

Prenatal exposure to any controlled substance is a ground for a finding of deprivation. A parent's past conduct can form the basis to predict future behavior and a parent's lack of cooperation with social service agencies is evidence that the causes and conditions of deprivation will likely continue. When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life.

There is no bright-line rule to distinguish between short and long-term marriages. This Court will not reverse a district court's findings on valuation of marital property unless they are clearly erroneous. When a distribution of property includes periodic cash payments from one spouse to another, a district court has broad authority to provide for the payment of interest in order to achieve an equitable distribution of the property.

Department did not err in revoking defendant's drivers license under N.D.C.C. § 39-20-14 following defendant's refusal of on-site breath test. A party who refuses a screening or chemical test cannot challenge the unperformed tests' compliance with statutory requirements. We cannot logically construe the statutes to require the State to provide foundational evidence for a test which was refuse, thus making the foundational evidence irrelevant.

A detached garage connected to a dwelling by a deck constituted an "other structure" rather than a "dwelling" for purposes of determining insurance coverage. Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial.

A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ineffective assistance of counsel issues are mixed questions of law and fact, which are fully reviewable on appeal. When a claim made in an application for post-conviction relief is clearly and unambiguously contradicted by the record, summary disposition is appropriate. When determining if summary disposition is appropriate on claims of ineffective assistance of counsel, the record and transcripts are generally not adequate if the petitioner alleges incidents outside of the record.

A district court's findings of fact in a termination of parental rights proceeding will not be reversed on appeal unless they are clearly erroneous. A finding on one of three alternative grounds authorizing termination of parental rights under N.D.C.C. 14-15-19(3) is sufficient to uphold a district court's order terminating parental rights on that ground.

A parenting plan is clearly erroneous when it denies a parent overnights or extended summer visitation without evidence of endangerment to the child's physical or emotional health.

A claim for workers' compensation benefits must be filed within one year after the injury. The date of injury for purposes of determining whether a claim for benefits is timely filed is the first date a reasonable lay person, not learned in medicine, knew or should have known that he suffered a compensable work-related injury and has either lost wages or received medical treatment.

The settlor of an irrevocable trust with the power to remove trust property must convey mineral interests that he sold in an individual capacity while the property was titled under the trust.

The implied consent advisory under N.D.C.C. 39-20-01(3) must be read after placing an individual under arrest and before administering a chemical test to determine alcohol concentration or the presence of other drugs.

In reviewing an administrative agency's findings of fact, the Supreme Court does not make independent findings of fact or substitute its judgment for that of the agency. In an administrative proceeding, the administrative agency resolves conflicts of evidence and weighs the credibility of witnesses.