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New opinions: May 7 Thursday, May 7, 2020

The Supreme Court has issued 27 new opinions. The summaries are below.

To see an opinion, click on the "View Opinion" button. Opinions display in a printable format. Hyperlinks to all North Dakota opinions and rules cited in an opinion are included in the text: hover over the citation and click to follow the hyperlink.

See other Supreme Court opinions at: /supreme-court/opinions

Jacobs-Raak v. Raak, et al. 2020 ND 107
Docket No.: 20190123
Filing Date: 5/7/2020
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: Only judgments and decrees constituting a final judgment and specific orders enumerated by statute are appealable.

A two-step analysis is used to evaluate the finality of orders for review: the order or judgment must be appealable under N.D.C.C. § 28-27-02, and the requirements of N.D.R.Civ.P. 54(b), if applicable, must be met.

The district court has broad discretion in making contempt decisions, which will only be disturbed on appeal if the court abused its discretion.

The district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor’s child support obligation.

An agreement purporting to relieve an obligor of any current or future duty of child support is void.

State v. Wayland 2020 ND 106
Docket No.: 20190274
Filing Date: 5/7/2020
Case Type: THEFT
Author: Jensen, Jon J.

Highlight: Although the reason for the continuance is absent from the record, under de novo review a district court did not violate the Appellant’s right to a speedy trial by continuing the trial to a later date.

Albrecht v. Albrecht, et al. 2020 ND 105
Docket No.: 20190222
Filing Date: 5/7/2020
Case Type: OTHER (Civil)
Author: McEvers, Lisa K. Fair

Highlight: A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the statement of the claim presented in the complaint.

A district court’s decision granting a motion to dismiss is reviewed de novo on appeal.

To have standing to litigate an issue, a party must have suffered some injury from the putatively illegal action and must assert the party’s own legal rights and interests.

Arnold, et al. v. Trident Resources, et al. 2020 ND 104
Docket No.: 20190322
Filing Date: 5/7/2020
Case Type: CONTRACTS
Author: Jensen, Jon J.

Highlight: A district court’s order imposing sanctions for contempt did not provide a sufficient record to review the appropriateness of the sanction.

Decker v. WSI, et al. 2020 ND 103
Docket No.: 20200014
Filing Date: 5/7/2020
Case Type: WORKERS COMPENSATION
Author: Per Curiam

Highlight: District court judgment affirming an administrative law judge’s decision denying further workers’ compensation benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Hewitt v. NDDOT 2020 ND 102
Docket No.: 20190389
Filing Date: 5/7/2020
Case Type: TRANSPORTATION DEPT.
Author: McEvers, Lisa K. Fair

Highlight: Copies of official Department of Transportation records may be certified as correct by Department employees who are not acting in a director capacity.

Record custodians are not required to swear an oath of office prior to certifying copies of official records under N.D.R.Ev. 902(4).

State v. Michel 2020 ND 101
Docket No.: 20190319
Filing Date: 5/7/2020
Case Type: THEFT
Author: Tufte, Jerod E.

Highlight: A district court’s response to a jury request for supplemental instructions is reviewed for an abuse of discretion.

The identity of the victim is not an element of theft and may be disregarded as surplusage.

A victim is entitled to be made whole through a reasonable restitution based on the entirety of his actual losses.

Dodge v. State 2020 ND 100
Docket No.: 20190286
Filing Date: 5/7/2020
Case Type: POST-CONVICTION RELIEF
Author: VandeWalle, Gerald W.

Highlight: Whether a defendant is competent to plead guilty is a finding of fact.
When a district court is presented with conflicting expert evidence, we resolve evidentiary conflicts in favor of affirmance.
A defendant claiming he or she was incompetent to plead guilty raising ineffective assistance of counsel must demonstrate by a reasonable probability, sufficient to undermine confidence in the outcome, that he or she was not competent to plead guilty.

New Freedom Center v. Job Service, et al. 2020 ND 99
Docket No.: 20190405
Filing Date: 5/7/2020
Case Type: JOB SERVICE
Author: Per Curiam

Highlight: Judgment affirming Job Service North Dakota's allowance of unemployment benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

Brossart, et al. v. Janke, et al. 2020 ND 98
Docket No.: 20190236
Filing Date: 5/7/2020
Case Type: OTHER (Civil)
Author: VandeWalle, Gerald W.

Highlight: Under N.D.C.C. § 28-20.1-03(2), the clerk of district court is required to mail notice of the filing of a foreign judgment to the judgment debtor.
Under N.D.C.C. § 28-20.1-03(3), a judgment creditor may not execute on a foreign judgment without first adequately complying with the notice procedures provided in N.D.C.C. § 28-20.1-03(2).
Under N.D.R.Civ.P. 33(a)(3), a judgment creditor is allowed to serve interrogatories on each judgment debtor who is jointly or severally liable for the judgment.
Under N.D.R.Civ.P. 33(a)(3), subparts to the primary question are not separate interrogatories.
Upon a finding that a claim for relief was frivolous, the district court must award reasonable attorney’s fees to the prevailing party.

State v. Kolstad 2020 ND 97
Docket No.: 20190228
Filing Date: 5/7/2020
Case Type: DUI/DUS
Author: VandeWalle, Gerald W.

Highlight: The State may appeal from an order quashing an information or indictment.
The loss of evidence in the State’s custody may amount to a due process violation when (1) the State fails to collect evidence in the first instance; (2) the State fails to preserve evidence once it has been collected; and (3) the State suppresses evidence which has been collected and preserved.
When apprised of a discovery violation, the district court should impose the least severe sanction to rectify the prejudice.
Dismissal of an action for discovery violations is one of the most severe sanctions available to a court. Dismissal should be used sparingly and only in extreme situations and should not be used if an alternative, less drastic sanction is available and just as effective.

Rath v. Rath 2020 ND 96
Docket No.: 20190330
Filing Date: 5/7/2020
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Per Curiam

Highlight: District court orders denying a motion for contempt and a request to reconsider are affirmed under N.D.R.App.P. 35.1 (a)(1) and (4).

State v. Helmenstein 2020 ND 95
Docket No.: 20190336
Filing Date: 5/7/2020
Case Type: HOMICIDE
Author: Per Curiam

Highlight: Amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Constitutional issues raised for the first time on appeal will not be considered.

State v. Darji 2020 ND 94
Docket No.: 20190303
Filing Date: 5/7/2020
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam

Highlight: A criminal judgment entered after a jury verdict is affirmed under N.D.R.App.P. 35.1(a)(3).

C & K Consulting v. Ward County Board of Commissioners (consol w/ 20190313- 2020 ND 93
Docket No.: 20190312
Filing Date: 5/7/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: Tufte, Jerod E.

Highlight: The State’s motion to terminate a pretrial diversion agreement and resume prosecution must be made within one month after expiration of the period of suspension specified in the agreement.

Schwindt v. Sorel 2020 ND 92
Docket No.: 20190245
Filing Date: 5/7/2020
Case Type: TRANSPORTATION DEPT.
Author: McEvers, Lisa K. Fair

Highlight: Other factors may cause a horizontal gaze nystagmus test to be unreliable, including physiological causes for nystagmus, but those factors go to the weight of the evidence and not its admissibility.

Whether a driver refused to take a chemical test is a question of fact.

Kastet v. NDDOT 2020 ND 91
Docket No.: 20200003
Filing Date: 5/7/2020
Case Type: TRANSPORTATION DEPT.
Author: Crothers, Daniel John

Highlight: A district court judgment reversing an administrative law judge’s order suspending driving privileges is reversed and remanded.

WSI v. Avila, et al. 2020 ND 90
Docket No.: 20190386
Filing Date: 5/7/2020
Case Type: WORKERS COMPENSATION
Author: Crothers, Daniel John

Highlight: A district court judgment affirming an administrative law judge's order, which determined an individual is entitled to both the scheduled and whole body impairment award, is reversed and remanded under N.D.C.C. § 28-32-46, because it is not in accordance with the law.

Feltman, et al. v. Gaustad, et al. 2020 ND 89
Docket No.: 20190247
Filing Date: 5/7/2020
Case Type: MALPRACTICE
Author: Crothers, Daniel John

Highlight: Elements of a legal malpractice claim are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of duty.

On review of a summary judgment, evidence is viewed in the light most favorable to the party opposing the motion, and that party is given the benefit of all favorable inferences reasonably be drawn from the evidence.

State v. Burow 2020 ND 88
Docket No.: 20190382
Filing Date: 5/7/2020
Case Type: ASSAULT
Author: Per Curiam

Highlight: Conviction of class C felony simple assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Dahl 2020 ND 87
Docket No.: 20190292
Filing Date: 5/7/2020
Case Type: THEFT
Author: Tufte, Jerod E.

Highlight: The State’s motion to terminate a pretrial diversion agreement and resume prosecution must be made within one month after expiration of the period of suspension specified in the agreement.

Interest of A.T. 2020 ND 86
Docket No.: 20200092
Filing Date: 5/7/2020
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Per Curiam

Highlight: An order terminating father’s parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Foster 2020 ND 85
Docket No.: 20190298
Filing Date: 5/7/2020
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Jensen, Jon J.

Highlight: Questions requiring the defendant to give his opinion regarding the veracity and credibility of earlier witnesses is improper.

Section 62.1-04-02(1), N.D.C.C., is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence.

Interest of F.M.G. 2020 ND 84
Docket No.: 20200094
Filing Date: 5/7/2020
Case Type: MENTAL HEALTH
Author: Per Curiam

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

Shadow Industries, LLP v. Hoffman, et al. 2020 ND 83
Docket No.: 20190231
Filing Date: 5/7/2020
Case Type: OTHER (Civil)
Author: Jensen, Jon J.

Highlight: A district court erred in determining a lease was ambiguous with regard to when the term ended. A term in a lease is not ambiguous simply because it requires a future event or contingency.

Interest of M.M. 2020 ND 82
Docket No.: 20200054
Filing Date: 5/7/2020
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Per Curiam

Highlight: Judgment terminating father’s parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Johnson v. City of Burlington 2020 ND 81
Docket No.: 20190318
Filing Date: 5/7/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: McEvers, Lisa K. Fair

Highlight: This Court’s review of the appeal from the decision of a local governing body is very limited. A city’s denial of a variance application is not arbitrary, capricious, or unreasonable when the ordinances do not provide for a variance based on the evidence presented.