ND Supreme Court

Application deadline May 1 for 2021 Justices Teaching Institute

Wed, 21 Apr 2021 11:00:00 GMT

North Dakota Justices Teaching Institute: “The Constitution and Judicial Decision-Making,” October 21-22, 2021, North Dakota Supreme Court

The deadline for secondary history, government, and social studies teachers to apply to the 2021 North Dakota Justices Teaching Institute is May 1.

The North Dakota Supreme Court offers this public outreach program to foster a better civic understanding of the role of the courts, how they work, and how judges make decisions. The Institute enables teachers to teach others with confidence about the nature, history, structure, function, and processes of the courts and the legal system. It also emphasizes civic engagement with the judicial branch.

The Institute is facilitated by the Justices of the North Dakota Supreme Courts, the Honorable Jon J. Jensen, the Honorable Gerald W. VandeWalle, the Honorable Daniel J. Crothers, the Honorable Lisa Fair McEvers, and the Honorable Jerod Tufte.

With Supreme Court justices as their guides through the day-and-a-half program the teachers explore the judicial system and the criminal court process in the context of preparing for the Institute's final application – a mock oral argument. The teachers will serve as justices and decide a First Amendment constitutional question.

The event is scheduled for Oct. 21-22, 2021 at the State Capitol Building in Bismarck.

The application form is available on the court’s website at https://www.ndcourts.gov/supreme-court/justices-teaching-institute. The professional development is offered at no cost to the teachers and participants are eligible to apply for 1 graduate credit from the University of North Dakota.

For more information, contact Lee Ann Barnhardt, Director of Education, at lbarnhardt@ndcourts.gov.

New opinions: April 20

Tue, 20 Apr 2021 11:00:00 GMT

The Supreme Court has issued 10 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: https://www.ndcourts.gov/supreme-court/opinions

Interest of J.O. 2021 ND 76
Docket No.: 20200194
Filing Date: 4/20/2021
Case Type: JUVENILE LAW
Author: VandeWalle, Gerald W.

Highlight: The termination of a guardianship in one case does not create a factual presumption that a guardianship in a related case should be terminated.

Under N.D.C.C. § 27-20.1-16(3)(c), a petitioner must show by clear and convincing evidence that the circumstances that led to the guardianship no longer exist.

A juvenile court does not need to find exceptional circumstances to extend a guardianship.

Under N.D.C.C. § 27-20.1-17(1), a juvenile court does not need to use the words “good cause” to make a finding rising to the level of good cause.

Sollin, et al. v. Klein 2021 ND 75
Docket No.: 20200202
Filing Date: 4/20/2021
Case Type: OTHER (Civil)
Author: Jensen, Jon J.

Highlight: A party may waive a personal jurisdiction argument by voluntarily submitting to the personal jurisdiction of the court.

A continuance is the proper remedy for a party claiming unfair surprise.

Before a restraining order may be granted, the petitioner must prove their petition through testimony, rather than by affidavits alone, with an opportunity for cross-examination.

N.B. et al. v. Terwilliger, et al. 2021 ND 74
Docket No.: 20200185
Filing Date: 4/20/2021
Case Type: PERSONAL INJURY
Author: VandeWalle, Gerald W.

Highlight: When a district court answers a jury’s question on a point of law, it is further instructing the jury.

No law requires a district court to give a jury an instruction on the authority to place property in a trust under N.D.C.C. § 30.1-29-09.

Under N.D.R.Civ.P. 59(g), conformance to the evidence and the district court’s instructions negates any assertion that the verdict was rendered under passion or prejudice.

An inadequate jury award provides a basis for a new trial when it is without support in the evidence.

Schmitz v. State Board of Chiropractic Examiners 2021 ND 73
Docket No.: 20200310
Filing Date: 4/20/2021
Case Type: OTHER (Civil)
Author: VandeWalle, Gerald W.

Highlight: A court must accept as true the well-pleaded allegations in the complaint for purposes of a motion to dismiss under N.D.R.Civ.P. 12(b)(6).

City of Glen Ullin, et al. v. Schirado, et al. 2021 ND 72
Docket No.: 20200345
Filing Date: 4/20/2021
Case Type: TORTS (NEGLIGENCE, LIAB., NUIS.)
Author: Crothers, Daniel John

Highlight: Summary judgment is appropriate where there is no dispute as to the material facts or the inferences to be drawn from the undisputed facts, or whenever only a question of law is involved.

A party resisting summary judgment cannot rely only on the pleadings, but must present competent admissible evidence raising an issue of material fact.

A district court’s award of attorney’s fees will not be reversed absent an abuse of discretion.

City of Jamestown v. Casarez 2021 ND 71
Docket No.: 20200279
Filing Date: 4/20/2021
Case Type: DUI/DUS
Author: Crothers, Daniel John

Highlight: An ordinance is not in conflict with a statute where it does not allow that which the statute expressly prohibits.

Jamestown Municipal Code § 21-04-06 is not in direct conflict with N.D.C.C. § 39-08-01.

A person is seized within the meaning of the Fourth Amendment of the United States Constitution only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.

Under the Fourth Amendment of the United States Constitution, an officer may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.

Big Pines v. Baker, et al. 2021 ND 70
Docket No.: 20200237
Filing Date: 4/20/2021
Case Type: LANDLORD/TENANT
Author: Crothers, Daniel John

Highlight: A personal guaranty allowing the guarantee to proceed directly against the guarantor without first proceeding against the principal is absolute and unconditional.

Under an absolute guaranty, the guarantor is liable to the guarantee immediately upon the default of the principal.

A decision on an award of attorney’s fees rests in the sound discretion of the district court.

The Supreme Court and the district courts possess concurrent jurisdiction to award attorney’s fees on appeal; however a preference exists that the initial determination be made by the district court.

State v. Landis 2021 ND 69
Docket No.: 20200323
Filing Date: 4/20/2021
Case Type: HOMICIDE
Author: Per Curiam

Highlight: A district court’s criminal judgment following a jury verdict is summarily affirmed under N.D.R.App.P 35.1(a)(3).

State ex rel. Stenehjem v. Maras, et al. 2021 ND 68
Docket No.: 20200304
Filing Date: 4/20/2021
Case Type: OTHER (Civil)
Author: Tufte, Jerod E.

Highlight: The notice requirements for claims against the State of North Dakota or a state employee under N.D.C.C. § 32-12.2-04(1) apply to counterclaims.

Entry of default judgment as a sanction for discovery abuse may be imposed when there is a deliberate or bad-faith non-compliance that constitutes a flagrant abuse or disregard for the discovery rules.

Interest of A.G. 2021 ND 67
Docket No.: 20210075
Filing Date: 4/20/2021
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Per Curiam

Highlight: Juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

New opinions: April 14

Wed, 14 Apr 2021 09:00:00 GMT

The Supreme Court has issued 2 new opinions. The summaries are below.

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

State v. Rennie 2021 ND 66
Docket No.: 20200307
Filing Date: 4/14/2021
Case Type: SEXUAL OFFENSE
Author: Per Curiam

Highlight: The district court did not abuse its discretion by not dismissing the case for failure to timely produce discovery materials.

Interest of F.M.G. 2021 ND 65
Docket No.: 20210087
Filing Date: 4/14/2021
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).

Order of Adoption

Thu, 08 Apr 2021 12:00:00 GMT

A new Order of Adoption has been posted in Supreme Court Docket No. 20130315 - Order on Mediation Fee Waivers or Fee Reductions contained in North Dakota Rules of Court 8.1 and North Dakota Rules of Appellate Procedure 5.

July 2021 North Dakota Bar Examination

Thu, 08 Apr 2021 09:00:00 GMT

The North Dakota State Bar Examination will be administered in person on July 27-28, 2021. The exam will be given at the Bismarck Event Center, 315 S. 5^th Street, Bismarck, ND.

The Board will continue to monitor the COVID-19 pandemic, public health information, and government requirements and recommendations related to large gatherings. We will ultimately follow such requirements and recommendations for administration of any exam.

New opinion: April 7

Wed, 07 Apr 2021 09:00:00 GMT

The Supreme Court has issued a new opinion. The summary is below.

To see the 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: https://www.ndcourts.gov/supreme-court/opinions

Interest of S.R. 2021 ND 64
Docket No.: 20200214
Filing Date: 4/7/2021
Case Type: JUVENILE LAW
Author: Per Curiam

Highlight: A juvenile court’s findings of continued deprivation and orders keeping two children in the custody of Three Rivers Human Service Zone are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Statement by Chief Justice Jensen on the court system’s continued response to the pandemic

Tue, 06 Apr 2021 11:00:00 GMT

The North Dakota Court System continues to closely monitor federal, state and local responses to the COVID-19 outbreak. We recognize that the pandemic continues to pose a threat to individuals and to present challenges to the administration of the justice system. The health and safety of litigants, judicial officers, court staff, and all who participate in or observe court proceedings continues to be our priority.

As the Judicial Branch moves toward normal operations, the need to manage the North Dakota judicial system through statewide emergency orders has been significantly reduced. Several of the Supreme Court’s Emergency Orders have therefore been repealed or modified to reflect our current circumstances.

Each individual judicial officer has the discretion to conduct court proceedings as he or she determines to be appropriate. Local conditions will dictate whether or not resolution of pending cases should be conducted through written submissions and electronic or telephone appearances in lieu of requiring litigants and others to be personally present at hearings. Similarly, participants in mediation and mediators will individually determine whether to continue using reliable electronic means to conduct mediation sessions. Committee chairs, after considering the input of other committee members and the availability of appropriate facilities, have the discretion to schedule in-person meetings or continue to conduct their meetings through the use of reliable electronic means.

New opinions: April 5

Mon, 05 Apr 2021 11:00:00 GMT

The Supreme Court has issued 2 new opinions. The summaries are below.

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

Kaspari v. Kaspari 2021 ND 63
Docket No.: 20200258
Filing Date: 4/5/2021
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: VandeWalle, Gerald W.

Highlight: Under N.D.C.C. § 14-05-24.1(1), an award of spousal support must be for “a limited period of time.” An award of spousal support “until death or remarriage” does not comply with N.D.C.C. § 14-05-24.1(1) because it is indefinite and lacks a fixed duration.

Great Plains Royalty Corp. v. Earl Schwartz Co., et al. 2021 ND 62
Docket No.: 20200133
Filing Date: 4/5/2021
Case Type: OIL, GAS AND MINERALS
Author: McEvers, Lisa K. Fair

Highlight: Standing is the concept used to determine whether a party is sufficiently affected to ensure a justiciable controversy exists.

The law of the case doctrine precludes parties from relitigating issues resolved in a prior appeal or issues that would have been resolved had they been properly presented.

Collateral estoppel, or issue preclusion, forecloses relitigation of issues that were decided in a prior action or by necessary implication must have been litigated and decided.

When the district court’s rationale is unclear, remand is appropriate.

Slander of title requires evidence that the defendant acted with malice.

Conversion and unjust enrichment are distinct causes of action.

Court revises pandemic emergency orders

Thu, 01 Apr 2021 11:00:00 GMT

The Supreme Court has decided to repeal or amend several emergency orders due to current COVID-19 conditions that indicate abatement of the pandemic.

Effective April 1, the Court has repealed Administrative Order 25, the order that declared a judicial emergency in response to the coronavirus pandemic.

Guardianship reviews suspended under Order 25 must be completed within 120 days.

The Court amended Order 26 on emergency bail and plea procedure effective April 1 to allow continued use of written guilty plea agreements in class C felony cases. The other substantive provisions of the order are repealed.

Order 27 on emergency suspension of eviction proceedings is repealed effective April 1. It will continue to apply until May 15 to any eviction proceeding filed prior to April 5.

Several orders on emergency procedure in specific proceedings have been repealed effective July 1: Order 28 on interim order proceedings, Order 29 on guardianship proceedings, Order 30 on permanency hearings, and Order 31 on traffic hearings.

Order 32, which extended continuing legal education reporting deadlines for attorneys reporting in 2020, is repealed effective April 1.

Order of Adoption

Tue, 30 Mar 2021 12:00:00 GMT

A new Order of Adoption has been posted in Supreme Court Docket No. 20200093 - Adoption of North Dakota Supreme Court Administrative Order 26 - Emergency Bail and Plea Procedure.

New opinions: March 24

Mon, 29 Mar 2021 11:00:00 GMT

The Supreme Court has issued 21 new opinions. The summaries are below.

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

State v. Bee 2021 ND 61
Docket No.: 20200261
Filing Date: 3/24/2021
Case Type: DRUGS/CONTRABAND
Author: Tufte, Jerod E.

Highlight: The Fourth Amendment to the United States Constitution and article I, § 8, of the North Dakota Constitution protect individuals in their houses against unreasonable searches and seizures. But a warrantless search is not unreasonable if the search of the home falls under one of the exceptions to the warrant requirement.

When no exception exists, any evidence seized is inadmissible under the exclusionary rule and must be suppressed.

State v. Glasser 2021 ND 60
Docket No.: 20200220
Filing Date: 3/24/2021
Case Type: SEXUAL OFFENSE
Author: Tufte, Jerod E.

Highlight: Any attempt by the trial court to amend or modify a final judgment is void unless it is made upon grounds provided by statute or by the Rules of Criminal Procedure for correcting or amending a judgment.

Command Center v. Renewable Resources, et al. 2021 ND 59
Docket No.: 20200017
Filing Date: 3/24/2021
Case Type: DEBTOR/CREDITOR
Author: VandeWalle, Gerald W.

Highlight: In an appeal from a bench trial, the trial court’s findings of fact are reviewed under the clearly erroneous standard and its conclusions of law are fully reviewable.

In a bench trial, the trial court decides credibility issues and the supreme court on appeal does not second-guess the trial court on its credibility determinations.

A trial court’s decision to admit or exclude evidence will not be reversed on appeal unless it has abused its discretion.

Business records may be properly admitted into evidence under the business records exception to the hearsay rule.

Indemnity is an equitable remedy which permits a party to recover reimbursement from another for the discharge of a liability that, as between the two parties, should have been discharged by the other.

Somerset Court, et al. v. Burgum, et al. 2021 ND 58
Docket No.: 20200292
Filing Date: 3/24/2021
Case Type: OTHER (Civil)
Author: McEvers, Lisa K. Fair

Highlight: A party waives an issue by not providing supporting arguments, reasoning, or citations to relevant legal authority.

A party abandons an argument by failing to raise it in the party’s appellate brief.

Cass County Joint Water Resource District v. Aaland, et al. 2021 ND 57
Docket No.: 20200171
Filing Date: 3/24/2021
Case Type: OTHER (Civil)
Author: Tufte, Jerod E.

Highlight: Section 32-15-06, N.D.C.C., permits entry upon the land to make examinations, surveys, and maps thereof, which is preliminary to the condemnation action itself.

Placement of survey monuments on land for as long as three years is not an innocuous entry and seriously impinges upon or impairs the rights of the landowner to the use and enjoyment of the land. A physical occupation of this duration goes beyond the minimally invasive examination and testing permitted under N.D.C.C. § 32-15-06.

Ryberg, et al. v. Landsiedel 2021 ND 56
Docket No.: 20200189
Filing Date: 3/24/2021
Case Type: PERSONAL INJURY
Author: Crothers, Daniel John

Highlight: A settlement agreement is a contract between parties, and thus contract law applies.

The law looks with favor upon compromise and settlement of controversies between parties, and where the settlement is fairly entered into, it should be considered as disposing of all disputed matters which were contemplated by the parties at the time of the settlement.

When a settlement is fairly made before trial, it takes on the character of a contract between the parties and is final and conclusive, and based on good consideration.

Courts will not enforce a contract which is vague, indefinite, or uncertain, nor will they make a new contract for the parties. An oral contract can be enforced only when the parties have agreed on its essential terms.

State v. Richter 2021 ND 55
Docket No.: 20200351
Filing Date: 3/24/2021
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: VandeWalle, Gerald W.

Highlight: Attempted promotion of obscenity to minors is not a cognizable offense.

State v. Neugebauer 2021 ND 54
Docket No.: 20200278
Filing Date: 3/24/2021
Case Type: HOMICIDE
Author: Tufte, Jerod E.

Highlight: Once a judgment is final, the district court generally loses jurisdiction to alter, amend, or modify that judgment. Unless grounds are provided by statute or by the Rules of Criminal Procedure for correcting or amending a judgment, any attempt by the district court to amend or modify a final judgment is void.

Any party who has timely served and filed a brief requests oral argument, the request must be granted. If a trial court errs in denying a party’s motion without oral argument, the remedy is a remand to allow for oral argument.

Pioneer State Mutual Insurance Co. v. Bear Creek Gravel, et al. 2021 ND 53
Docket No.: 20200170
Filing Date: 3/24/2021
Case Type: INSURANCE
Author: Crothers, Daniel John

Highlight: Whether a vehicle has been furnished for regular use is a conclusion of fact.

A finding of fact will not be overturned on appeal unless clearly erroneous.

Reasonable time and place restrictions on the use of a vehicle could lead to a conclusion the vehicle was not furnished for a person’s regular use.

State v. Borland 2021 ND 52
Docket No.: 20200053
Filing Date: 3/24/2021
Case Type: HOMICIDE
Author: Jensen, Jon J.

Highlight: A defendant waives the constitutional protection against being placed in double jeopardy after a verdict or judgment against them is set aside at their own instance, either by motion in trial court or upon successful appeal.

The circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

When analyzing a constitutional speedy trial claim, this Court considers the length of the delay, the reason for the delay, the accused’s assertion of the right to a speedy trial, and the prejudice to the accused.

Defendant who pled “not guilty” was not entitled to a jury instruction or special verdict form seeking a finding of whether a plea of “once in jeopardy” applied.

Tebay v. State 2021 ND 51
Docket No.: 20200316
Filing Date: 3/24/2021
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)(6).

Gerving v. Gerving 2021 ND 50
Docket No.: 20200291
Filing Date: 3/24/2021
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: The judgment of the district court is summarily affirm as not clearly erroneous.

Under Rule 30 of the North Dakota Rules of Appellate Procedure, attorney’s fees and costs on appeal are appropriate only if the claim is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.

State v. Walbert 2021 ND 49
Docket No.: 20200197
Filing Date: 3/24/2021
Case Type: SEXUAL OFFENSE
Author: Crothers, Daniel John

Highlight: Courts possess broad power to control their courtrooms, minimize disruptive behavior, and maintain security.

Restricting movement in and out of a courtroom during testimony of a child witness as an attempt to minimize disruptions did not constitute a closure but instead was within the court’s managerial authority.

Gil v. WSI 2021 ND 48
Docket No.: 20200253
Filing Date: 3/24/2021
Case Type: WORKERS COMPENSATION
Author: Crothers, Daniel John

Highlight: Timely filing a notice of appeal is jurisdictional and procedural rules may not be used to enlarge periods of time conferring jurisdiction that are definitely fixed by statute.

Saucedo v. State 2021 ND 47
Docket No.: 20200265
Filing Date: 3/24/2021
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)(7).

State v. Stands 2021 ND 46
Docket No.: 20200179
Filing Date: 3/24/2021
Case Type: DRUGS/CONTRABAND
Author: VandeWalle, Gerald W.

Highlight: Sufficient competent evidence existed to show a defendant consented to a search of his person when he shrugged, mumbled, nodded, and lifted his hands.

Requests for consent to search during a traffic stop are permissible so long as they do not prolong and measurably extend the duration of the stop.

An officer may extend or expand the scope of a traffic stop if reasonable suspicion exists or the encounter becomes consensual.

Campbell v. State 2021 ND 45
Docket No.: 20200227
Filing Date: 3/24/2021
Case Type: POST-CONVICTION RELIEF
Author: VandeWalle, Gerald W.

Highlight: The issue of ineffective assistance of counsel presents a mixed question of law and fact and is fully reviewable on appeal.

Ineffective assistance of trial counsel claims are ordinarily unsuited to summary disposition without an evidentiary hearing.

Solberg v. McKennett 2021 ND 44
Docket No.: 20200207
Filing Date: 3/24/2021
Case Type: OTHER (Civil)
Author: VandeWalle, Gerald W.

Highlight: Determining when a cause of action accrues is normally a question of fact, but it becomes a question of law when the material facts are undisputed.

Under the discovery rule the accrual of a claim is postponed until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury.

A party alleging fraud must state with particularity the circumstances constituting fraud.

Breeze v. NDDOT 2021 ND 43
Docket No.: 20200267
Filing Date: 3/24/2021
Case Type: TRANSPORTATION DEPT.
Author: Tufte, Jerod E.

Highlight: An officer must be in an immediate pursuit of a person who is endeavoring to avoid arrest for hot pursuit to apply.

State v. Moore 2021 ND 42
Docket No.: 20200080
Filing Date: 3/24/2021
Case Type: SEXUAL OFFENSE
Author: Tufte, Jerod E.

Highlight: A district court should not automatically approve public trial waivers without considering the broader interests in open courts and public trials by conducting pre-closure Waller analysis. A defendant’s Sixth Amendment right to a public trial may be waived if the record reflects a knowing, intelligent, and voluntary waiver. A defendant’s failure to object or acquiescence to a trial closure without a knowing, intelligent, voluntary waiver will be reviewed on appeal as a forfeited error subject only to obvious error review.

A district court may conduct proceedings in chambers in some circumstances, including temporary use of a courtroom as if in chambers. But it is the type of proceeding and not the location of the proceeding that determines the need for the Waller analysis. Jury selection, including proceedings relating to juror questionnaires and challenges for cause, are part of the criminal trial and generally must be held in open court consistent with the Sixth Amendment right to a public trial.

A court’s closure of trial proceedings without having obtained a knowing, intelligent, voluntary waiver and without having considered the Waller factors is obvious error.

A speculative risk to a witness’s counseling relationship with the victim is insufficient standing alone to satisfy the Waller requirement for an overriding interest.

State v. Martinez 2021 ND 42
Docket No.: 20190407
Filing Date: 3/24/2021
Case Type: SEXUAL OFFENSE
Author: Tufte, Jerod E.

New opinions: March 18

Thu, 18 Mar 2021 11:00:00 GMT

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

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

State v. Molina 2021 ND 41
Docket No.: 20200247
Filing Date: 3/18/2021
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam

Highlight: A district court order denying a petition for writ of prohibition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of L.T.D. 2021 ND 40
Docket No.: 20210034
Filing Date: 3/18/2021
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Per Curiam

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Court system to start conducting judge performance surveys electronically

Wed, 17 Mar 2021 11:00:00 GMT

In April, the Judicial Improvement Program will begin collecting feedback on judge performance using electronic surveys.

The program, which is governed by Administrative Rule 48, has been in effect since 2003. All judicial officers are required to participate in the program during their first two years and periodically after that.

The survey process has been previously been done in a paper format. In January, the Supreme Court amended AR 48 to allow surveys to be conducted electronically. The court system will be launching surveys for the first two participants using the new electronic format beginning April 5.

The Court System uses the Bureau of Governmental Affairs, based at the University of North Dakota, to run the program. In the past, they conducted the surveys for all eligible judicial officers over a set three month period. Under the new process, they will be conducting surveys for only two to three judicial officers at a time and shortening the response period to two weeks.

The program gathers feedback on specific areas of judicial performance through surveys sent to attorneys and court staff. The surveys will be sent to court staff from the court system’s internal email and to attorneys using the SBAND listserv. The switch to electronic surveys is intended to increase the attorney response rate while making the administration of the surveys more efficient. The amended rule is flexible enough that the court system can default back to the paper survey process if necessary.

All survey responses are confidential and results are only disclosed to the judicial officer and a reviewer chosen by the judicial officer. Judicial officers will be given advance notice as their survey time approaches and will be asked to provide the name and contact information for the person they have chosen as their reviewer.

ND court system releases 2020 Juvenile Court annual report

Wed, 10 Mar 2021 12:00:00 GMT

The 2020 annual report for North Dakota Juvenile Court has been posted. This year’s report provides data on referrals to juvenile court by case type, location, gender, and age. It has statistics on delinquent, unruly, and deprivation cases and includes updates on the Dual Status Youth Initiative and Court Improvement Program.

Download the full report.

New opinions: March 3

Wed, 03 Mar 2021 12:00:00 GMT

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

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

WSI v. Sandberg, et al. 2021 ND 39
Docket No.: 20200174
Filing Date: 3/3/2021
Case Type: WORKERS COMPENSATION
Author: McEvers, Lisa K. Fair

Highlight: Claimants must prove by a preponderance of evidence that they have sustained a compensable injury and are entitled to workers’ compensation benefits.

A claimant must prove that the condition for which benefits are sought is “causally related” to a work injury. To establish a “causal connection,” a claimant must demonstrate the claimant’s employment was a substantial contributing factor to the injury and need not show employment was the sole cause of the injury.

A compensable injury must be established by medical evidence supported by objective medical findings, which may include a physician’s medical opinion based on an examination, a patient’s medical history, and the physician’s education and experience.

Lund v. Swanson, et al. 2021 ND 38
Docket No.: 20200147
Filing Date: 3/3/2021
Case Type: CONTRACTS
Author: VandeWalle, Gerald W.

Highlight: A settlement agreement is a contract between parties, and thus contract law applies.

An agreement to transfer oil interests for valuable consideration is an agreement for the sale of real property, or of an interest therein, under the statute of frauds, N.D.C.C. § 9-06-04(3).

Subsection 9-06-04(3), N.D.C.C., provides that an agreement for the sale of real property, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing subscribed by the party sought to be charged.

To take a contract out of the statute of frauds, the party seeking to enforce the oral contract must establish part performance that is not only consistent with, but that is consistent only with, the existence of the alleged oral contract.

Cases accepting the doctrine of part performance have recognized three major categories of acts by the purchaser that may make an oral contract enforceable: paying the contract price, taking possession of the property, and making improvements.

A party missing out on the benefit of their contractual bargain does not promote an injustice or perpetrate a fraud as to require an agreement to be removed from the statute of frauds.

Friesz v. State 2021 ND 37
Docket No.: 20200169
Filing Date: 3/3/2021
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.

Highlight: In a post-conviction relief proceeding, a petitioner is entitled to a fourteen-day window to respond to a request for dismissal of their petition for post-conviction relief.

Procedural rule amendments effective March 1

Mon, 01 Mar 2021 10:00:00 GMT

A. North Dakota Rules of Civil Procedure

Rule 10 - Form of Pleadings

Amended to clarify that the responsibility of adding the state to the title belongs to the first party filing a pleading after the state becomes a party in interest.

Rule 62 - Stay of Proceedings to Enforce a Judgment

Amended to increase the time of the automatic stay from 14 to 30 days and to expand the circumstances under which a stay by bond may be obtained.

The following rules were amended to delete the term “affidavit” and to replace it with “declaration.”

Rule 4 - Persons Subject to Jurisdiction; Process; Service

Rule 5 - Service and Filing of Pleadings and Other Papers

Rule 43 - Evidence

Rule 53 - Masters

Rule 55 - Default; Default Judgment

Rule 56 - Summary Judgments

Rule 59 - New Trial; Amending a Judgment

Rule 65 - Injunctions

B. North Dakota Rules of Criminal Procedure

Rule 44 - Right to and Appointment of Counsel

Amended to provide a procedure for the use of limited and joint representation for pretrial release proceedings.

The following rules were amended to delete the term “affidavit” and to replace it with “declaration.”

Rule 4.1 - Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means

Rule 9 - Warrant or Summons upon Indictment or Information

Rule 32.2 - Pretrial Diversion

Rule 33 - New Trial

Rule 46 - Release from Custody

Rule 47 - Motions

C. North Dakota Rules of Appellate Procedure

Rule 35 - Scope of Review

Amended to require a party seeking additional briefing or oral argument after a remand to district court to make a specific request to the court.

Rule 42 - Dismissal

Amended to require counsel for a criminal defendant to serve a request for voluntary dismissal on the defendant.

The following rules were amended to delete the term “affidavit” and to replace it with “declaration.”

Rule 5 - Post-Judgment Mediation

Rule 8 - Stay or Injunction Pending Appeal

Rule 9 - Release in Criminal Cases

Rule 21 - Writs

Rule 27 - Motions

D. North Dakota Rules of Juvenile Procedure

Rule 1 - Scope and Purpose

Amended to add N.D.C.C. ch 27-20.1 on guardianship of a child to the scope of the juvenile rules.

Rule 14 - Motions

Amended to clarify the procedure for submitting a motion and requesting oral argument and to delete the term “affidavit” from the rule and to replace it with “declaration.”

Rule 16 - Modification and Vacation of Orders

Amended to clarify that the court must grant a request for oral argument on a motion.

Rule 19 - Juvenile Records

Amended to allow the Chief Justice to authorize the release of information from juvenile records for research purposes.

The following rule was amended to delete the term “affidavit” and to replace it with “declaration.”

Rule 5 - Summons

E. North Dakota Rules of Evidence

The following rules were amended to delete the term “affidavit” and to replace it with “declaration.”

Rule 509 - Identity of Informer

Rule 606 - Juror's Competency as a Witness

F. North Dakota Rules of Court

Rule 7.1 - Judgments, Orders and Decrees

Amended to clarify that a party may file and serve a response to proposed findings of fact and conclusions of law.

Rule 8.2 - Interim Orders in Domestic Relations Cases

Amended to provide a procedure for motions for temporary modification of residential responsibility.

Rule 8.3.1 - Case Management (Determination of Parental Rights or Change of Residential Responsibility)

Amended to reference Rule 8.2(c) on motions for temporary modification of residential responsibility.

The following rules were amended to delete the term “affidavit” and to replace it with “declaration.”

Rule 3.4 - Privacy Protection for Filings Made with the Court

Rule 3.5 - Electronic Filing in the District Courts

Rule 5.2 - Extraordinary Writs

Rule 6.1 - Continuances

Rule 8.4 - Summons in Action for Divorce, Separation or to Determine Parental Rights and Responsibilities

Rule 8.5 - Domestic Relations Summary Proceeding

Rule 11.2 - Withdrawal of Attorneys

Rule 11.4 - Bonds in Non-Criminal Matters

G. North Dakota Supreme Court Administrative Rules

Rule 52 - Contemporaneous Transmission by Reliable Electronic Means

Amended to allow witness testimony by reliable electronic means in a criminal case when authorized by rule or law.

Rule 57 - Judicial Emergency

Amended to allow a court in a judicial emergency to designate an alternative method of conducting court business.

Rule 61 - Collection of Race Data

A new rule is adopted requiring the collection of race data in criminal cases.

Order of Adoption

Wed, 24 Feb 2021 12:00:00 GMT

A new Order of Adoption has been posted in Supreme Court Docket No. 20210020 - Proposed Adoption of North Dakota Supreme Court Administrative Order 34 Regarding Review of Guardianships of Children.

February 2021 bar examination begins

Tue, 23 Feb 2021 10:00:00 GMT

The North Dakota Bar Exam began on Tuesday, Feb. 23, with 20 applicants taking the exam. Of the applicants sitting on Tuesday, 65 percent are graduates of the University of North Dakota School of Law. The exam ends Wednesday.

New opinions: Feb. 18

Thu, 18 Feb 2021 12:00:00 GMT

The Supreme Court has issued 20 new opinions. The summaries are below.

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

WSI v. Cherokee Services Group, et al. 2021 ND 36
Docket No.: 20200166
Filing Date: 2/18/2021
Case Type: ADMINISTRATIVE PROCEEDING
Author: VandeWalle, Gerald W.

Highlight: Tribal sovereign immunity protects Indian tribes against lawsuits, even ones brought by the State.

Extension of tribal sovereign immunity to businesses relies on a test to determine if they qualify as arms of the tribe.

A manager or governor of a limited liability company cannot be held liable under N.D.C.C. § 65-04-26.1(1) for unpaid premiums and reimbursements when the limited liability company itself is not liable for the amounts.

Workforce Safety and Insurance has no statutory authority to order an insurance company cease and desist from writing coverage in North Dakota.

AE2S Construction v. Hellervik Oilfield Technologies, et al. 2021 ND 35
Docket No.: 20200180
Filing Date: 2/18/2021
Case Type: CONTRACTS
Author: VandeWalle, Gerald W.

Highlight: An appearance for purposes of N.D.R.Civ.P. 55(a) is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.

A party’s disregard of service of process does not constitute mistake, inadvertence, or excusable neglect under N.D.R.Civ.P. 60(b)(1).

Atkins v. State 2021 ND 34
Docket No.: 20200172
Filing Date: 2/18/2021
Case Type: POST-CONVICTION RELIEF
Author: Crothers, Daniel John

Highlight: If an applicant files a N.D.R.Civ.P. 60(b) motion for relief following an order denying post-conviction relief, the motion will be treated as another post-conviction relief application and will not toll the time for appealing the order denying post-conviction relief.

An applicant for post-conviction relief may not allege ineffective assistance of post-conviction counsel.

Orwig v. Orwig 2021 ND 33
Docket No.: 20200123
Filing Date: 2/18/2021
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: VandeWalle, Gerald W.

Highlight: In a court trial, any error in admitting a deposition is harmless unless the deposition testimony induced the court to make an essential finding which would not otherwise have been made or otherwise affected a party’s substantial rights.

A district court’s property valuation in a divorce case is not clearly erroneous if it is within the range of evidence presented.

An award of attorney’s fees must generally be supported by evidence upon which the court can determine whether the requested fees are reasonable and legitimate.

Paulson v. Paulson 2021 ND 32
Docket No.: 20200163
Filing Date: 2/18/2021
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: McEvers, Lisa K. Fair

Highlight: A district court’s decision on whether to vacate a divorce judgment under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion. A party seeking to vacate a divorce judgment entered pursuant to a settlement agreement under N.D.R.Civ.P. 60(b) must demonstrate extraordinary circumstances justifying relief. When considering whether a divorce judgment based on a settlement agreement should be vacated, the district court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable. The party seeking relief from judgment based on fraud has the burden to establish fraud by clear and convincing evidence. Unconscionability may be considered as a ground for relief under N.D.R.Civ.P. 60(b)(6). To vacate a divorce judgment as unconscionable, there must be a showing of both procedural and substantive unconscionability. A disparate settlement is not necessarily substantively unconscionable, particularly in a short-term marriage

Burr v. N.D. State Board of Dental Examiners 2021 ND 31
Docket No.: 20200219
Filing Date: 2/18/2021
Case Type: PERSONAL INJURY
Author: Tufte, Jerod E.

Highlight: The test we apply when determining governmental liability and discretionary acts distinguishes between immune discretionary acts and non-immune ministerial acts. In examining the nature of the challenged conduct, the first inquiry a court must consider is whether the action is a matter of choice for the acting employee. Even if ‘the challenged conduct involves an element of judgment or choice, the second inquiry a court must consider is whether that judgment or choice is of the kind that the discretionary function exception was designed to shield.

Oden v. Minot Builders Supply, et al. 2021 ND 30
Docket No.: 20200187
Filing Date: 2/18/2021
Case Type: OTHER (Civil)
Author: Jensen, Jon J.

Highlight: Foreign judgments are not entitled to full faith and credit under certain circumstances such as when the rendering court lacks jurisdiction.

Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies even if the subsequent claim is based on a different legal theory.

The court was not precluded from giving another judgment res judicata effect because the judgment was final and remained final regardless of a pending appeal.

Grand Prairie Agriculture v. Pelican Township Board of Supervisors 2021 ND 29
Docket No.: 20200226
Filing Date: 2/18/2021
Case Type: ADMINISTRATIVE PROCEEDING
Author: Tufte, Jerod E.

Highlight: A township’s decision on a petition for approval of a proposed site for an animal feeding operation may be reversed on appeal if the township misinterprets or misapplies the law.

Under N.D.C.C. § 58-03-11.1, townships only have authority to regulate the setback distance between an animal feeding operation and the nearest residence, building used for nonfarming or nonranching purposes, or land zoned for residential, commercial, or recreational purposes.

Whetsel v. State 2021 ND 28
Docket No.: 20200262
Filing Date: 2/18/2021
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.

Highlight: Once the State has responded to a petition for post-conviction relief, sua sponte summary disposition by the court is no longer available, and the State is required to move for summary disposition.

A petitioner is entitled to a fourteen-day window to respond to a request for dismissal of their petition for post-conviction relief.

Thompson-Widmer v. Larson, et al. 2021 ND 27
Docket No.: 20200173
Filing Date: 2/18/2021
Case Type: OTHER (Civil)
Author: McEvers, Lisa K. Fair

Highlight: A publication or communication must be false to be defamatory.

Fulfilling an open records request is a privileged communication and not subject to liability for defamation.

McClintock v. NDDOT 2021 ND 26
Docket No.: 20200164
Filing Date: 2/18/2021
Case Type: TRANSPORTATION DEPT.
Author: McEvers, Lisa K. Fair

Highlight: To facilitate compliance with statutory requirements and the foundational element requiring a test be fairly administered, the state toxicologist has established approved methods for administering chemical breath tests.

The approved method for the Intoxilyzer 8000 requires that the device must be installed by a field inspector prior to use.

State v. Spillum 2021 ND 25
Docket No.: 20200156
Filing Date: 2/18/2021
Case Type: SEXUAL OFFENSE
Author: Jensen, Jon J.

Highlight: If a motion for judgment of acquittal was made at trial on specified grounds, and those grounds did not include the claim on appeal, the defendant does not preserve that issue for this Court’s review.

The existence of an arrest warrant does not convert a noncustodial situation into a custodial one.

Davis v. Davis, et al. 2021 ND 24
Docket No.: 20200162
Filing Date: 2/18/2021
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: Failure to provide a non-moving party the allotted time to respond under N.D.R.Ct. 3.2(a)(2) is a misapplication of law.

Judgment may be overturned under Rule 60(b) where a motion is promptly made, the grounds of the motion satisfy the requirements of Rule 60(b), and an answer that appears to assert a meritorious defense is presented.

Stoddard v. Singer 2021 ND 23
Docket No.: 20200157
Filing Date: 2/18/2021
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: A district court’s findings of fact will not be reversed on appeal unless clearly erroneous.

District court findings based on assessment of witness credibility are given deference.

Upon the showing of a prima facie case under a psychological parent claim, the movant is entitled to an evidentiary proceeding.

A district court’s decision whether to appoint a parenting investigator is discretionary and will not be reversed absent an abuse of discretion.

The standard of review in determining whether a district court erred in delaying a hearing on an emergency motion under Rule 8.2, N.D.R.Ct., is abuse of discretion.

Estate of Johnson 2021 ND 22
Docket No.: 20200142
Filing Date: 2/18/2021
Case Type: PROBATE - WILLS - TRUSTS
Author: Jensen, Jon J.

Highlight: In an informal, unsupervised probate, an order settling all claims of one claimant is final, even if there are pending claims by other claimants.

This Court does not consider questions not presented to the trial court nor arguments inadequately articulated, supported, and briefed.

State v. Youngbird 2021 ND 21
Docket No.: 20200167
Filing Date: 2/18/2021
Case Type: THEFT
Author: Tufte, Jerod E.

Highlight: A district court has jurisdiction to amend a criminal judgment to include restitution when the State files the motion to amend within the time limit imposed by the court during sentencing.

When a defendant and the State enter into a plea agreement in which the prosecuting attorney agrees to recommend a particular sentence, that agreement does not resolve restitution and a restitution hearing must be held.

Matter of Hehn 2021 ND 20
Docket No.: 20190353
Filing Date: 2/18/2021
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: McEvers, Lisa K. Fair

Highlight: District court orders denying petition for discharge from civil commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Procedural due process is satisfied by the statutory procedures that provide a person civilly committed as a sexually dangerous individual with pre-commitment and post-commitment safeguards designed to protect the person’s liberty interest as the person proceeds through the treatment process.

Johnson v. Menard 2021 ND 19
Docket No.: 20200126
Filing Date: 2/18/2021
Case Type: PERSONAL INJURY
Author: VandeWalle, Gerald W.

Highlight: During trial, a party can make a motion for judgment as a matter of law alleging insufficient evidence under N.D.R.Civ.P. 50(a). However, after the jury returns its verdict the party must renew the motion under N.D.R.Civ.P. 50(b) to preserve the sufficiency of the evidence issue for review on appeal.

After removing a small claims court action to district court, amending the complaint does not preclude an award of attorney’s fees under N.D.C.C. § 27-08.1-04.

A court does not abuse its discretion when it uses an itemized bill to award a party attorney’s fees under N.D.C.C. § 27-08.1-04.

Under N.D.C.C. § 27-08.1-04, a prevailing plaintiff should be awarded reasonable attorney’s fees for the district court proceedings and for a successful appeal.

State v. Watson 2021 ND 18
Docket No.: 20200109
Filing Date: 2/18/2021
Case Type: SEXUAL OFFENSE
Author: VandeWalle, Gerald W.

Highlight: A defendant may not withdraw a guilty plea after the court has imposed a sentence unless the defendant proves that withdrawal is necessary to correct a manifest injustice.

Willprecht v. Willprecht 2021 ND 17
Docket No.: 20200195
Filing Date: 2/18/2021
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: A district court’s use, on remand, of its previous Ruff-Fischer guidelines analysis is not by itself clearly erroneous.

The district court must provide a discernable basis for an award of spousal support.

New opinion: Feb. 17

Wed, 17 Feb 2021 10:00:00 GMT

The Supreme Court has issued a new opinion. The summary is below.

See other Supreme Court opinions at: https://www.ndcourts.gov/supreme-court/opinions

State v. Bear King 2021 ND 16
Docket No.: 20200254
Filing Date: 2/17/2021
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam

Highlight: The criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).