North Dakota Supreme Court Highlights
By Michael J. Morley
Authors’s Note and Caveat: The following cases of interest were recently decided by the North Dakota Supreme Court. Because the following contain the
author’s summary of the decisions, the reader is encouraged to read the entire published decision to determine its precedential value, if any, in a given case.
Johnson v. Buskohl Construction, Inc.,
2015 ND 268, 871 N.W.2d 459
In this case, the homeowner sued the general contractor who built
their home, alleging he had negligently constructed the new home
and breached the construction contract. Over the contractor’s
objection, the District Court allowed into evidence a repair estimate
offered by the homeowners. In a unanimous decision, the Supreme
Court held that the estimate did not satisfy the “trustworthiness”
requirement of N.D.R.Evid. 807(a)(1) as it was not signed; the
document preparer was not identified on the document; there was
no ability to assess the credibility of the declarant; there was no
site inspection by the declarant; the document was prepared more
than six months after the commencement of the lawsuit; and the
information in the document was not corroborated by independent
evidence or similar statements of others. Accordingly, the Supreme
Court held that the receipt of the hearsay document into evidence
was prejudicial, not harmless, and, because the Supreme Court could
not rule out the possibility that the jury relied on this inadmissible
hearsay in calculating a substantial portion of its damage award, it
reversed and remanded the case for a new trial.
Taszarek v. Lake View Excavating, Inc.,
2016 ND 172, 883 N.W.2d 880
This case involved the issue of whether the plaintiff should be
allowed to pierce the corporate veil of defendant corporation, under
the “alter ego doctrine,” and pursue the claim against the individual
owners of the corporation. The Supreme Court held that in
addition to the usual factors allowing for that relief (i.e., insufficient
capitalization, failure to observe corporate formalities, the existence
of the corporation as merely a façade for individual dealings, etc.),
an overall element of “injustice, inequity, or fundamental unfairness”
must also be established before veil piercing is appropriate. The
Court noted that courts generally apply the alter ego rule with great
caution because organizing a corporation to avoid personal liability
is a legitimate goal and a primary advantage of doing business in the
corporate form.
Tidd v. Kroshus, 2015 ND 248, 870 N.W.2d 181
In this case, an injured bicyclist sued the driver of a car because of a
collision when the car drove out of an alley and struck the bicyclist
riding on the intersecting sidewalk. Over plaintiff ’s objection,
the District Court instructed the jury on sudden emergency.
After a verdict in favor of the car driver of no negligence, the
bicyclist moved for a new trial, which was denied. The bicyclist
appealed. Notwithstanding the deference given to District Courts
in instructing a jury, the Supreme Court held that the “sudden
emergency” instruction was improperly given. The Court noted this
was an ordinary automobile accident case. There was no external or
intervening event, such as a sudden change in road conditions or
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THE GAVEL
unexpected obstruction in the alley, requiring a split second decision.
It appeared to the Court the collision resulted merely from one or
both of the parties failing to keep a proper lookout for the other.
The Supreme Court could not conclude that the error in giving the
instruction was harmless and therefore reversed and remanded for a
new trial.
State v. Shaw, 2016 ND 171, 883 N.W.2d 889
In this case, the defendant was found guilty of murder and burglary.
At the trial, the District Court allowed “prior bad act” evidence under
N.D.R.Evid. 404(b) regarding the defendant’s alleged involvement in
an earlier burglary in the victim’s same apartment building, albeit in
a different apartment unit. Notwithstanding the discretion normally
allowed to the District Court in evidentiary rulings (and the often
monumental task of proving a reversible abuse of discretion in such
rulings), the Supreme Court held that the District Court erred
because it did not make a record determination on the reliability
of the evidence; did not conduct a record balance of the evidence’s
probative value against its prejudicial effect; and failed to give the jury
a cautionary instruction during trial and in its closing instructions on
the limited purpose for which the evidence was being admitted and
what they may use it for, i.e., to show a plan or motive on the part
of the defendant to return to the apartment building where the first
burglary allegedly took place, as opposed to proof of the subsequent
murder itself. The Court determined the defendant was denied a fair
trial by this, which affected his substantial rights, and reversed and
remanded the case for a new trial.
State v. Beylund,
2016 ND 185, 2016 WL 5405596
Based upon the United States Supreme Court decision in Birchfield
v. North Dakota, 136 S.Ct. 2160, 2184-85 (2016), in which the
Court held that while the Fourth Amendment to the United
States Constitution permits warrantless breath tests incidental to
a lawful arrest for drunk driving, absent another exception to the
requirement of a search warrant, warrantless blood tests incident to
a lawful arrest for drunk driving are not allowed. Based upon the
U.S. Supreme Court’s decision, the North Dakota Supreme Court
vacated its opinion affirming Beylund’s conviction for driving under
the influence after he consented to a warrantless blood test incident
to his arrest and remanded the case to the District Court with
directions to allow the defendant to withdraw his guilty plea and for
other proceedings consistent with the U.S. Supreme Court’s decision.
Peterson v. Peterson,
2016 ND 157, 883 N.W.2d 449
In this post-divorce judgment case, the Supreme Court stated that
even if a party is unable to comply with the [spousal] support order,
it is not appropriate to simply ignore the order until the person to