New opinions: March 31 Friday, March 31, 2023

Whetsel v. State 2023 ND 67
Docket No.: 20220351
Filing Date: 3/31/2023
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: An order summarily dismissing an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Martinez v. State 2023 ND 66
Docket No.: 20220281
Filing Date: 3/31/2023
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Kluver, et al. v. SGJ Holdings, et al. 2023 ND 65
Docket No.: 20220132
Filing Date: 3/31/2023
Case Type: OTHER (Civil)
Author: Tufte, Jerod E.

Highlight: A party moving for a new trial is limited on appeal to the issues raised in its new trial motion.

A district court considering a new trial motion based on insufficiency of the evidence may set aside a jury verdict when, in considering and weighing all the evidence, the court’s judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.

A qualified privilege does not provide immunity from liability for defamation if the privilege is abused. To defeat a qualified privilege under N.D.C.C. § 14-02-05(3), the plaintiff must prove actual malice by showing the statement was made with malice in fact, ill will, or wrongful motive.

Wilkinson v. State 2023 ND 64
Docket No.: 20220282
Filing Date: 3/31/2023
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

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

Secura Supreme Ins. Co., et al. v. Differding, et al. 2023 ND 63
Docket No.: 20220213
Filing Date: 3/31/2023
Case Type: INSURANCE
Author: McEvers, Lisa K. Fair

Highlight: An insurance policy is a contract. An insurance contract relates to the parties executing it. Litigants cannot claim estoppel based on policies to which they are not a party; nor can they claim waiver of a provision in a policy they have no right to enforce.

State v. Grant 2023 ND 62
Docket No.: 20220279
Filing Date: 3/31/2023
Case Type: HOMICIDE
Author: Bahr, Douglas Alan

Highlight: A Batson challenge includes a three-step inquiry: (1) A defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; (2) If that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and, (3) In light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

The burden for showing purposeful discrimination rests upon the opponent of the peremptory strike.

In reviewing challenges to the sufficiency of the evidence on appeal, the defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

State v. Tompkins 2023 ND 61
Docket No.: 20220270
Filing Date: 3/31/2023
Case Type: DUI/DUS
Author: Jensen, Jon J.

Highlight: Section 39-08-01(1), N.D.C.C., provides that refusal to submit to a chemical test and driving or being in actual physical control while under the influence of an intoxicating liquor are separate offenses.

Interest of D.H. 2023 ND 60
Docket No.: 20230057
Filing Date: 3/31/2023
Case Type: MENTAL HEALTH
Author: Per Curiam

Highlight: A district court’s order for continued treatment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Richardson v. State 2023 ND 59
Docket No.: 20220291
Filing Date: 3/31/2023
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bauer v. Bauer 2023 ND 58
Docket No.: 20220330
Filing Date: 3/31/2023
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Bahr, Douglas Alan

Highlight: An amended judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Linner 2023 ND 57
Docket No.: 20210362
Filing Date: 3/31/2023
Case Type: SEXUAL OFFENSE
Author: Bahr, Douglas Alan

Highlight: The structural error doctrine applies to a narrow class of rights, including three Sixth Amendment rights defining the framework of a trial: the right to counsel, the right to self-represent, and the right to a public trial. Voir dire falls within the scope of public trials under the Sixth Amendment.

A structural error affects the framework within which a trial proceeds and therefore renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.

When a transcript is available to the public after the trial, all of the values of public access are preserved.

The de novo standard of review to whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant’s due process right to a fair trial.

Appellate review of a criminal sentence is generally limited to determining whether the district court acted within the statutory sentencing limits or substantially relied upon an impermissible factor.

State v. K.J.A. 2023 ND 56
Docket No.: 20220286
Filing Date: 3/31/2023
Case Type: JUVENILE LAW (Criminal)
Author: Jensen, Jon J.

Highlight: Section 25-03.3-04, N.D.C.C., precludes a court from destroying records early under N.D.R.Juv.P. 19(e) when the alleged offense is an offense defined in N.D.C.C. § 12.1-20 or N.D.C.C. § 12.1-27.2.

Senske Rentals, et al. v. City of Grand Forks 2023 ND 55
Docket No.: 20220222
Filing Date: 3/31/2023
Case Type: ADMINISTRATIVE PROCEEDING
Author: McEvers, Lisa K. Fair

Highlight: The appellate court has discretion whether to grant a parties’ request for judicial notice on appeal.

A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.

Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid. A special assessment against any property must not exceed the benefit the property receives from the improvement.

An adequate record for review of a special assessment commission’s determination must include a showing of how the commission determined the project benefit.

A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.

Issues not raised in the district court cannot be raised for the first time on appeal.

Pozorski, et al. v. Trucks, Trailers & More, et al. 2023 ND 54
Docket No.: 20220267
Filing Date: 3/31/2023
Case Type: CONTRACTS
Author: Per Curiam

Highlight: A district court judgment dismissing a party’s claims is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Goetz v. Goetz, et al. 2023 ND 53
Docket No.: 20220231
Filing Date: 3/31/2023
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: McEvers, Lisa K. Fair

Highlight: Cassandra Goetz appeals from a district court order and corrected amended judgment modifying primary residential responsibility. On appeal, Cassandra Goetz argues the court erred by modifying residential responsibility and by awarding Joshua Goetz primary decision making responsibility.

Matter of O.H.W. 2023 ND 52
Docket No.: 20220263
Filing Date: 3/31/2023
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: Per Curiam

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

Rath v. Rath, et al. 2023 ND 51
Docket No.: 20220240
Filing Date: 3/31/2023
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: McEvers, Lisa K. Fair

Highlight: Contempt proceedings are collateral to the merits of a case and specially appealable.

The purpose of an appeal is to review the actions of the district court. An issue not presented to the district court cannot be raised for the first time on appeal.

Under N.D.R. Ct. 3.2(a)(3), a request for a hearing must be timely, and the requesting party must secure a time for the hearing and serve notice on the opposing party.