Opinions

Anne Carlsen Center v. LeFevre, et al. 2025 ND 142
Docket No.: 20250168
Filing Date: 7/31/2025
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Tufte, Jerod E.

Highlight: A petition for supervisory writ is granted.

In ruling on a motion to compel, the district court must state the reasons for its conclusions with sufficient specificity to afford a clear understanding of its decision and allow for meaningful review.

The withholding party's burden to prove an asserted privilege or protection applies presumes a burden to submit the disputed documents for in-camera review in a form that is readily intelligible to the district court. If the district court is unable to discern the content of a document, it may require the withholding party to assist the court, including by providing a readable copy.

Section 50-25.1-11, N.D.C.C., designates as confidential a "report made under this chapter, as well as any other information obtained." Although "report made" and "information obtained" lack a subject, in context it is clear that the statute refers to reports made to the Department of Health and Human Services. Even if information in a document is later included in a report subject to N.D.C.C. ch. 50-25.1, it is the report and the other information obtained by the Department in association with that report that is confidential.

Documents do not become confidential or privileged by attaching them to a confidential report or privileged email. The lawyer-client privilege protects confidential communications themselves and not necessarily the facts underlying the communications.

A party asserting work-product privilege may not rely on "in anticipation of litigation" as magic words that automatically protect a disputed document from disclosure. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be real and imminent.

Tamm v. Gatzke, et al. 2025 ND 141
Docket No.: 20250062
Filing Date: 7/31/2025
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: An easement implied from pre-existing use requires unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement.

An easement by necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers.

A motion for judgment on the pleadings should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

A motion for summary judgment is not an opportunity to conduct a mini-trial, and summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment.

A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence.

Interest of A.W. 2025 ND 140
Docket No.: 20250141
Filing Date: 7/31/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: An aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court by filing written notice of appeal within thirty days after entry of the order, judgment, or decree, or within any further time the supreme court grants, after entry of the order, judgment, or decree.

Interlocutory orders are appealable if it is deemed to be an appeal from a subsequently entered consistent final order or judgment.

The party requesting review of the findings and order of a judicial referee by a district court judge must give notice to all other parties. If a party is represented by counsel, all documents filed with the court must be signed by the attorney of record.

Issues not briefed on appeal are waived.

Juliuson v. Johnson, et al. 2025 ND 139
Docket No.: 20240338
Filing Date: 7/31/2025
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Issues not briefed are deemed abandoned.

A district court's decision on a motion under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion.

A district court's decision on a motion for judgment as a matter of law is fully reviewable on appeal.

The doctrine of an implied covenant of good faith and fair dealing is limited to the insured-insurer relationship.

A breach of contract, even if intentional, malicious, or in bad faith, does not give rise to a breach of contract claim or turn a breach of contract claim into a tort claim absent proof of independent tortious conduct.

State v. Erickstad 2025 ND 138
Docket No.: 20240300
Filing Date: 7/31/2025
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: A district court shall correct an illegal sentence at any time with notice.

A district court must provide notice to all parties before amending a sentence under N.D.R.Crim.P. 35(a)(2).

Rademacher v. State 2025 ND 137
Docket No.: 20250023
Filing Date: 7/31/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: Issues not raised in an application for postconviction relief cannot be raised for the first time on appeal.

"Fitness to proceed" and "lack of criminal responsibility" are separate and distinct concepts. The process for an examination or evaluation for fitness to proceed and lack of criminal responsibility differ.

Rule 52(a), N.D.R.Civ.P., requires, "In all actions tried upon the facts without a jury . . . the [district] court shall find the facts specially and state separately its conclusions of law."

A petitioner in a postconviction relief proceeding carries a heavy burden to establish a reasonable probability that, but for trial counsel's error, the result of the proceeding would have been different. Generally, a petitioner must provide more than conclusory allegations to meet that burden.

Liquid Hospitality v. Bd. of City Commissioners of the City of Fargo 2025 ND 136
Docket No.: 20240347
Filing Date: 7/31/2025
Case Type: Appeal - Administrative - Other
Author: Jensen, Jon J.

Highlight: A district court erred in finding Fargo Municipal Code § 25-1509.2 to be unconstitutionally vague.

Axvig, et al. v. Czajkowski, et al. 2025 ND 135
Docket No.: 20250004
Filing Date: 7/17/2025
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: A district court misinterpreted a contract for deed by allowing a party to proceed with a cancellation action without first providing the other party notice of the default and time to cure the default as required by the contract.

A remedy is the appropriate legal form of relief by which that remediable right ay be enforced. It is the form of relief by which the right is enforced and is not part of the cause of action.

Cancellation of the contract for deed is one remedy, which may be achieved by alternative methods: 1) a statutory cancellation under N.D.C.C. ch. 32-18; or 2) a court action.

Cancellation of a contract for deed by action is an action in equity, and the court must base its decision on equitable principles. In the absence of express terms specifying notice and redemption, an action for cancellation has a presumption that notice and redemption are appropriate and require specific findings weighing the equity of a notice and redemption period.

State v. Berkley 2025 ND 134
Docket No.: 20240351
Filing Date: 7/17/2025
Case Type: Appeal - Criminal - Child Abuse/Child Neglect
Author: Tufte, Jerod E.

Highlight: We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. Our primary goal when interpreting statutes is to determine the Legislature's intended meaning.

If, after applying our statutory and doctrinal canons, the plain or ordinary language suggests two plausible and rational meanings, then the statute is ambiguous. When a statute is ambiguous, we may consider extrinsic aids, including legislative history, along with the language of the statute, to understand the Legislature's intended meaning.

Section 12.1-32-15(2), N.D.C.C., allows the court to deviate from the registration for "crimes against children" if the court first finds the individual has not previously been convicted as a sexual offender or for a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense, unless the offense is described in section 12.1-29-02, or the offense is described in section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim. The phrase "and the person is not the parent of the victim" applies to section 12.1-18-01 and 12.1-18-02, but not section 12.1-29-02.

State v. Solomon 2025 ND 133
Docket No.: 20250021
Filing Date: 7/17/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: Under the speedy trial statute, trials must begin within 90 days of invoking this right, unless the court finds "good cause" for delay. Courts consider four factors when determining good cause: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted the right, and (4) prejudice to the defendant.

Even if a district court doesn't explicitly discuss these factors, we will uphold the court's decision if applying the factors would reach the same result.

It is unnecessary to seek judicial notice of matters outside the record to rebut allegations contrary to the existing record.

WSI v. Boechler, et al. 2025 ND 132
Docket No.: 20240165
Filing Date: 7/17/2025
Case Type: Appeal - Civil - Personal Injury
Author: Jensen, Jon J.

Highlight: Under N.D.C.C. § 65-04-26.1, a president of a corporation is not personally liable for penalties imposed due to a failure to file payroll reports.

North Dakota Century Code § 65-04-26.1(3) requires Workforce Safety and Insurance to make an administrative determination regarding personal liability. A decision regarding personal liability under N.D.C.C. § 65-04-26.1 applies prospectively thus establishing personal liability for future sums owed by the corporation.

Bang, et al. v. Continental Resources 2025 ND 131
Docket No.: 20240239
Filing Date: 7/17/2025
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: Under a usual oil and gas lease, the lessee, in developing the leased premises, is entitled to use of the land reasonably necessary in producing the oil. Even though the surface rights of the lessee may arise by implication, it is important to note that lessee's rights are primarily governed by the specific grant of rights in the lease.

A district court has broad discretion in admitting or excluding evidence at trial, which will not be overturned on appeal absent an abuse of discretion.

An appellate court's conclusion a trial court did not abuse its discretion by admitting certain evidence in one case does not mean another trial court abused its discretion by not admitting similar evidence in a different case.

The district court has discretion to determine an appropriate sanction for a party's failure to supplement interrogatories and may exclude expert testimony that is beyond the scope of a party's responses to interrogatories.

The district court is not required to give instructions in the specific language requested by a party if the instructions given fairly and adequately inform the jury of the law.

State v. Kennedy 2025 ND 130
Docket No.: 20240346
Filing Date: 7/17/2025
Case Type: Appeal - Criminal - Homicide
Author: Bahr, Douglas Alan

Highlight: A party can invite error during voir dire.

It is the responsibility of the parties, not the district court, to object to evidence a party believes is inadmissible.

A party may intentionally not object to potentially inadmissible evidence for numerous strategic reasons. The court ruling on the admissibility of evidence when not invited to by a party can disrupt a party's trial presentation and sabotage a party's trial strategy.

Attorneys have an obligation to ensure that the arguments they present are factually and legally supported.

Whether to substitute appointed counsel is committed to the sound discretion of the district court.

Carvalho v. Carvalho, et al. 2025 ND 129
Docket No.: 20250086
Filing Date: 7/17/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Crothers, Daniel John

Highlight: A district court must perform an adequate analysis for an appellate court to determine the basis for its decision.

Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which we review de novo.

Bazile v. State 2025 ND 128
Docket No.: 20250015
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A district court order denying an amended application for postconviction relief is affirmed.

An application for postconviction relief based on newly discovered evidence under N.D.C.C. § 29-32.1-01(1)(e) is reviewed as a motion for a new trial based on newly discovered evidence under N.D.R.Crim.P. 33.

Section § 29-32.1-01 ("Remedy - To whom available - Conditions) limits the availability of postconviction relief to those grounds listed under subsection 1. An applicant for postconviction relief under N.D.C.C. ch. 29-32.1 must base his application on the grounds provided under N.D.C.C. § 29-32.1-01(1).

Res judicata bars relitigation of the same claim or claims that were fully and finally determined in a previous proceeding.

Interest of B.F. 2025 ND 127
Docket No.: 20250159
Filing Date: 7/3/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: An appeal from a juvenile court order terminating parental rights is affirmed.

A factfinder may rely in its findings on an affidavit if the affidavit is properly offered and received into the evidentiary record.

Termination of parental rights proceedings under N.D.C.C. ch. 27-20.3 are governed by the North Dakota Rules of Juvenile Procedure and, to the extent they are not inconsistent with the Rules of Juvenile Procedure, the North Dakota Rules of Civil Procedure.

N.D.R.Juv.P. 16 applies to motions to vacate in termination of parental rights proceedings under N.D.C.C. ch. 27-20.3.

Rule 16, N.D.R.Juv.P., provides for both mandatory and discretionary modification of orders. A court's exercise of its discretion under N.D.R.Juv.P. 16(b) is reviewed for an abuse of discretion.

A court's discretion to modify orders under N.D.R.Juv.P. 16(b) is narrow when the order at issue is an order terminating parental rights. Under N.D.R.Juv.P. 16(b)(2), a court may only vacate an order terminating parental rights on motion of the parent if the child is not placed for adoption and the person having custody of the child consents in writing to the vacation of the decree.

When a parent fails to appear at a proceeding under N.D.C.C. ch. 27-20.3, a juvenile court does not violate the parent's constitutional due process rights if it exercises its discretion to proceed under N.D.R.Juv.P. 10.

Interest of I.F. 2025 ND 127
Docket No.: 20250160
Filing Date: 7/3/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: An appeal from a juvenile court order terminating parental rights is affirmed.

A factfinder may rely in its findings on an affidavit if the affidavit is properly offered and received into the evidentiary record.

Termination of parental rights proceedings under N.D.C.C. ch. 27-20.3 are governed by the North Dakota Rules of Juvenile Procedure and, to the extent they are not inconsistent with the Rules of Juvenile Procedure, the North Dakota Rules of Civil Procedure.

N.D.R.Juv.P. 16 applies to motions to vacate in termination of parental rights proceedings under N.D.C.C. ch. 27-20.3.

Rule 16, N.D.R.Juv.P., provides for both mandatory and discretionary modification of orders. A court's exercise of its discretion under N.D.R.Juv.P. 16(b) is reviewed for an abuse of discretion.

A court's discretion to modify orders under N.D.R.Juv.P. 16(b) is narrow when the order at issue is an order terminating parental rights. Under N.D.R.Juv.P. 16(b)(2), a court may only vacate an order terminating parental rights on motion of the parent if the child is not placed for adoption and the person having custody of the child consents in writing to the vacation of the decree.

When a parent fails to appear at a proceeding under N.D.C.C. ch. 27-20.3, a juvenile court does not violate the parent's constitutional due process rights if it exercises its discretion to proceed under N.D.R.Juv.P. 10.

Equinor Energy v. NDIC, et al. 2025 ND 126
Docket No.: 20240357
Filing Date: 7/3/2025
Case Type: Appeal - Administrative - Industrial Commission
Author: Tufte, Jerod E.

Highlight: An order of the North Dakota Industrial Commission is vacated for lack of jurisdiction.

Adjudicatory jurisdiction does not necessarily inhere in an agency's regulatory jurisdiction. A public administrative body has such adjudicatory jurisdiction as is conferred on it by statute. The jurisdiction of an administrative agency is dependent upon the terms of the statute.

Section 38-08-04, N.D.C.C., grants the Commission broad regulatory jurisdiction over disposal of saltwater, but it does not expressly or by necessary implication grant jurisdiction to adjudicate disputes arising under contracts relating to saltwater disposal.

The "costs" of "operation of a well on a spacing unit" under N.D.C.C. § 38-08-08(2) include production costs but exclude post-production costs. The Commission's jurisdiction to determine proper costs under § 38-08-08(2) thus extends only to production costs and excludes post-production costs.

Salt-water gathering is a post-production cost outside of the Commission's jurisdiction under N.D.C.C. § 38-08-08(2), and the Commission thus lacks jurisdiction under N.D.C.C. § 38-08-08(2) to adjudicate disputes between private parties over saltwater gathering costs.

Gomez v. State 2025 ND 125
Docket No.: 20250058
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final.

An application for postconviction relief may be summarily dismissed if commenced outside the two-year period for filing and does not meet an exception under N.D.C.C. § 29-32.1-01(3).

Matter of Quilt 2025 ND 124
Docket No.: 20240360
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court's order granting a continuance to allow a witness to appear by reliable electronic means was affirmed.

Interest of Wedmore 2025 ND 123
Docket No.: 20240303
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court's order granting a motion for a witness to appear by electronic means is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A district court's order finding an individual qualifies as a sexually dangerous individual must contain findings that the individual has a serious difficulty controlling their behavior.

Fagnon v. Ngaima 2025 ND 122
Docket No.: 20250074
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Protection/Restraining Order
Author: McEvers, Lisa K. Fair

Highlight: A district court may grant a disorderly conduct restraining order when a petitioner shows there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.

A district court's findings of fact must be sufficient to enable an appellate court to understand the factual determinations made by the district court and the basis for its conclusions of law. The district court's findings are adequate if the appellate court can discern from them the factual basis for the district court's decision.

There must be logical limits on the time and distance factors when a restraining order is at issue.

Toppenberg v. Toppenberg, et al. 2025 ND 121
Docket No.: 20250017
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: According to N.D.C.C. § 14-09-08.4(4) and N.D. Admin. Code. § 75-0204.1-07(7), party seeking modification of a child support order that was entered at least one year before the filing of the motion has the burden of proving that the existing level of support does not conform to the guidelines and that the change in employment was not made for the purpose of reducing the obligor's child support obligation.

A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines. Net income is the total gross annual income less certain amounts available for deduction under N.D. Admin. Code § 75-02-04.1-01(6). Gross income is defined as "income from any source, in any form," except for some specific exclusions under N.D. Admin. Code § 75-02-04.1-01(4)(a).

Sanda v. Sanda 2025 ND 120
Docket No.: 20240352
Filing Date: 7/3/2025
Case Type: Appeal - Civil - Divorce
Author: Jensen, Jon J.

Highlight: When a divorce is granted, the district court shall make an equitable distribution of the property and debts of the parties. All property held by the parties, whether it is held individually or jointly, is deemed marital property, and the court must determine the property's total value before making an equitable distribution. This includes separate property, or property exempt from being included as marital property, that has been commingled or placed into a joint bank account.

If the parties do not mutually agree upon a valuation date, the valuation date for marital property and debt is sixty days before the initially scheduled trial date. If there is a substantial change in value of an asset or debt between the date of valuation and the date of trial, the district court may adjust the valuation of that asset or debt as necessary to effect an equitable distribution and shall make specific findings that another date of valuation is fair and equitable.

A property distribution does not need to be equal to be equitable, but the district court must explain a substantial disparity. The property's origin may be considered when equitably dividing the estate, along with economic fault and dissipation of assets.

A premarital agreement is a contract that is interpreted in a manner that gives effect to the parties' mutual intent at the time of contracting, usually in relation to the disposition of property upon divorce.

We do not reweigh conflicts in the evidence, and we give due regard to the district court's opportunity to judge the credibility of the witnesses.

Interest of J.O. 2025 ND 119
Docket No.: 20250036
Filing Date: 7/3/2025
Case Type: Appeal - Juvenile - Deprivation
Author: Per Curiam

Highlight: A juvenile court judgment finding the children are in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of L.O. 2025 ND 119
Docket No.: 20250037
Filing Date: 7/3/2025
Case Type: Appeal - Juvenile - Deprivation
Author: Per Curiam

Highlight: A juvenile court judgment finding the children are in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.O. 2025 ND 119
Docket No.: 20250038
Filing Date: 7/3/2025
Case Type: Appeal - Juvenile - Deprivation
Author: Per Curiam

Highlight: A juvenile court judgment finding the children are in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.O. 2025 ND 119
Docket No.: 20250039
Filing Date: 7/3/2025
Case Type: Appeal - Juvenile - Deprivation
Author: Per Curiam

Highlight: A juvenile court judgment finding the children are in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Reciprocal Discipline of Odegaard 2025 ND 118
Docket No.: 20250115
Filing Date: 6/18/2025
Case Type: Discipline - Attorney - Reciprocal
Author: Per Curiam

Highlight: Lawyer disbarred

Anderson v. Anderson 2025 ND 117
Docket No.: 20240343
Filing Date: 6/18/2025
Case Type: Appeal - Civil - Divorce
Author: Per Curiam

Highlight: A divorce judgment entered after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Roth, et al. v. Meyer, et al. 2025 ND 116
Docket No.: 20240324
Filing Date: 6/18/2025
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings and to carry the appellate court's mandate into effect according to its terms.

When a finding requires proof by clear and convincing evidence in the trial court, our review on appeal applies the clearly erroneous standard under N.D.R.Civ.P. 52(a) in the context of the required standard of proof.

The burden of proving adverse possession rests with the person alleging it and must be established by clear and convincing evidence. Beyond the elevated burden of clear and convincing evidence, "special rigor" is required to prove adverse possession against a family member.

Adverse possession requires possession hostile to the true owner—meaning possession that is inconsistent with the owner's rights and gives notice of adverse claims.

For purposes of establishing adverse possession, a claimant's subjective belief he owned the property is not relevant.

Because the notice requirement is a fundamental part of an adverse possession claim, a claimant cannot establish a prima facie case by relying solely on his testimony as to his subjective hostile intent. He must introduce evidence that such intent was objectively made manifest by his observable words or actions.

The absence of an agreement does not establish hostility for an adverse possession claim. Whether an agreement existed is relevant, but the presence or absence of an agreement is not the essential finding.

Recorded documents cannot establish adverse possession because they are not evidence of hostile acts for purposes of adverse possession.

Unjust enrichment requires (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of a justification for the enrichment and impoverishment; and (5) an absence of a remedy provided by law.

State v. Gramkow 2025 ND 115
Docket No.: 20250034
Filing Date: 6/18/2025
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

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

Carpenter v. Southbay Homeowners Association 2025 ND 114
Docket No.: 20240327
Filing Date: 6/18/2025
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: The right to enforce a restriction may be lost by waiver. A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Generally, the existence of a waiver is a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Whether a waiver has occurred depends on the facts and circumstances of each particular case.

A party may waive a condition despite the presence of a non-waiver provision. But, to establish a non-waiver provision is not enforceable, the party asserting a waiver must show a clear intent to waive both the waiver clause and the underlying contract provision.

A court may award just damages and single or double costs, including reasonable attorney's fees, if it determines an appeal is frivolous. Affirming a summary judgment does not necessarily mean the appeal is frivolous.

Interest of Hicks 2025 ND 113
Docket No.: 20250025
Filing Date: 6/18/2025
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Glaum v. Drake 2025 ND 112
Docket No.: 20250005
Filing Date: 6/18/2025
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: When claims are fully adjudicated on the merits following a bench trial, the district court correctly enters a judgment of dismissal with prejudice.

The judgment of dismissal with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Gum v. Muddy Boyz Drywall 2025 ND 111
Docket No.: 20250045
Filing Date: 6/5/2025
Case Type: Appeal - Civil - Contracts
Author: Bahr, Douglas Alan

Highlight: A party does not have a right to appeal if there is no final judgment or proper N.D.R.Civ.P. 54(b) certification.

Kemp, et al. v. Kvislen, et al. 2025 ND 110
Docket No.: 20240356
Filing Date: 6/5/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Per Curiam

Highlight: A district court judgment denying a petition for nonparent custody or visitation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Gonzalez v. State 2025 ND 109
Docket No.: 20250019
Filing Date: 6/5/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Generally, attacking an expired sentence is a moot argument. When the criminal judgment does not include a term of probation, the expired sentence does not continue to have collateral consequences. When a term of imprisonment has been completed, any additional credit for time served is academic and irrelevant. The Court does not render advisory opinions, and an appeal will be dismissed if the issues become moot or academic, leaving no actual controversy to be determined.

State v. Landsberger 2025 ND 108
Docket No.: 20240255
Filing Date: 6/5/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Jury instructions are fully reviewable on appeal and are reviewed as a whole to determine if they correctly and adequately inform the jury of the applicable law.

Jury instructions will not be reversed unless the instructions as a whole are erroneous, relate to a central subject in the case, and affect a substantial right of the accused.

Interest of M.K. 2025 ND 107
Docket No.: 20250140
Filing Date: 6/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Lampert 2025 ND 106
Docket No.: 20240271
Filing Date: 6/5/2025
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A jury's verdict was summarily affirmed under N.D.R.App.P. 35.1(a)(3). A district court's order was summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Weber v. Pennington 2025 ND 105
Docket No.: 20240323
Filing Date: 6/5/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Crothers, Daniel John

Highlight: A party seeking modification of primary residential responsibility two years after entry of the prior order establishing primary residential responsibility must establish a prima facie case justifying modification.

A party must show a material change in circumstances and either a general decline in the condition of the child or that the material change has adversely affected the child.

A party moving for primary residential responsibility is entitled to an evidentiary hearing only if new facts have arisen since the prior order constituting a material change of circumstances, and if modification serves the best interests of the child.

Parents have a mutual responsibility to provide support for their children regardless of if the need arises during a parent's specified parenting time. A party must show a child has been adversely affected for there to be a material change in circumstances which warrants modification of the residential responsibility order.

Interest of C.B. 2025 ND 104
Docket No.: 20240350
Filing Date: 6/5/2025
Case Type: Appeal - Juvenile - Deprivation
Author: Per Curiam

Highlight: A juvenile court order extending placement of a child in the custody and control of the Grand Forks County Human Service Zone for a period of twelve months after finding the child is a child in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Leingang 2025 ND 103
Docket No.: 20240243
Filing Date: 6/5/2025
Case Type: Appeal - Criminal - Theft
Author: Jensen, Jon J.

Highlight: Issues not raised at trial will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b). To establish obvious error, the defendant has the burden to demonstrate plain error which affected his substantial rights. However, if a party fails to argue obvious error, it is difficult for this Court to conclude this burden has been satisfied and this Court need not address it further.

Under Rule 1004(a), N.D.R.Ev., an original is not required, and other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith.

Interest of D.B. 2025 ND 102
Docket No.: 20250111
Filing Date: 6/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of C.B. 2025 ND 102
Docket No.: 20250112
Filing Date: 6/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of M.B. 2025 ND 102
Docket No.: 20250113
Filing Date: 6/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Severson v. Gupta, et al. 2025 ND 101
Docket No.: 20240292
Filing Date: 5/22/2025
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: An appeal from a district court judgment granting a motion for summary judgment is reviewed under the de novo standard.

N.D.R.Civ.P. 56 allows a court to grant summary judgment for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result.

A district court did not err granting a motion for summary judgment dismissing a claim of medical malpractice because the plaintiff failed to provide an affidavit containing an expert opinion as required by N.D.C.C. § 28-01-46.

Holm v. Holm 2025 ND 100
Docket No.: 20240246
Filing Date: 5/22/2025
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

Highlight: This Court may summarily affirm judgments and orders when briefs do not meet the minimum requirements of the North Dakota Rules of Appellate Procedure.

Under the applicable rules, if an electronically filed document is rejected, the tolling of the filing does not change the date of service, which is the date the document was transmitted.

The statutory default valuation date under N.D.C.C. § 14-05-24(1) is "sixty days before the initially scheduled trial date," not the date of trial.

When a court uses the parties' mutually agreed-to valuations, the court's finding of a different valuation date is harmless as to those assets and debts.

A district court places a value on martial property based on the evidence presented by the parties. When the court is "not given much information" regarding the value of a marital asset, the court's decision is limited by the parties' failure to provide information.

State v. Weltikol 2025 ND 99
Docket No.: 20240336
Filing Date: 5/22/2025
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

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

State v. Lewellyn 2025 ND 98
Docket No.: 20240295
Filing Date: 5/22/2025
Case Type: Appeal - Criminal - Terrorizing
Author: McEvers, Lisa K. Fair

Highlight: To determine whether a defendant's right to counsel has been violated, this Court has developed a two-step inquiry: (1) whether the defendant's waiver was voluntary; and (2) whether the defendant's waiver was knowing and intelligent. A defendant may indicate a voluntary desire for self-representation with an unequivocal statement or with conduct that is the functional equivalent of such a statement. A knowing and intelligent waiver of the right to counsel depends on the facts and circumstances and requires the defendant to be made aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open.

Motions for continuance must be promptly filed as soon as the grounds are known and will be granted only for good cause shown. This Court will not reverse a district court's decision to deny a continuance absent an abuse of discretion.

State v. Lewellyn 2025 ND 97
Docket No.: 20240294
Filing Date: 5/22/2025
Case Type: Appeal - Criminal - Terrorizing
Author: Per Curiam

Highlight: This Court will not consider an argument that is not adequately articulated, supported, and briefed.

A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.

Van Beek v. Van Beek, et al. 2025 ND 96
Docket No.: 20240319
Filing Date: 5/22/2025
Case Type: Appeal - Civil - Divorce
Author: Jensen, Jon J.

Highlight: A district court may consider economic misconduct as a basis for an unequal distribution of the marital estate. However, this Court has not previously recognized economic misconduct as a basis for increasing the marital estate through "potential" income or by imputing income.

Attorney's fees awarded under N.D.C.C. § 14-09-29(4) against a perpetrator of domestic violence extends to the recovery for the costs and attorney's fees incurred in a subsequent appeal.

ICON HD v. National Sports Opportunity Partners, et al. 2025 ND 95
Docket No.: 20240265
Filing Date: 5/8/2025
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A party must include affirmative defenses in its responsive pleading.

A party may have privity with another party that bars new litigation under res judicata.

Releases contained in a settlement agreement are subject to normal rules of contract interpretation.

Nagle v. Nagle 2025 ND 94
Docket No.: 20240260
Filing Date: 5/8/2025
Case Type: Appeal - Civil - Divorce
Author: Bahr, Douglas Alan

Highlight: Interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment.

A district court considers the Ruff-Fischer guidelines when distributing marital property. The "duration of the marriage" factor is only one factor and is the length of the marriage being dissolved by the court, irrespective of whether there was a prior marriage or marriages with the same party or another person.

In a short-term marriage, the district court may return to the parties what they brought into the marriage, but the division of property and debt must be equitable.

Matter of Robinson 2025 ND 93
Docket No.: 20250057
Filing Date: 5/8/2025
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A person with a felony conviction petitioning for a name change must prove by clear and convincing evidence that the name change request is not based upon an intent to defraud or mislead, is made in good faith, will not cause injury to an individual, and will not compromise public safety.

ND Indoor RV Park v. State, et al. 2025 ND 92
Docket No.: 20240293
Filing Date: 5/8/2025
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The right to appeal is governed by statute, and without a statutory basis to hear an appeal, we do not have jurisdiction and we must dismiss the appeal.

This Court's authority to issue supervisory writs is derived from Art. VI, § 2, N.D. Const., which vests this Court with appellate and original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction. This Court exercises its discretionary authority to issue supervisory writs rarely and cautiously, and only in cases when no adequate alternative remedy exists.

Public officials are protected by qualified immunity unless it is shown that (1) the official violated a statutory or constitutional right, and (2) the right was clearly established at the time of the challenged conduct.

To prove a substantive due process violation, one must establish a constitutionally protected property interest and that a public official used their power in such an arbitrary and oppressive way that it shocks the conscience.

To prove a procedural due process violation, one must establish that: (1) a public official deprived them of some life, liberty, or property interest, and (2) the deprivation of that interest was done without due process. Procedural due process necessitates a notice and a meaningful opportunity to be heard.

Dismissal for lack of subject matter jurisdiction is generally appropriate if the plaintiff fails to exhaust administrative remedies.

State v. Taylor 2025 ND 91
Docket No.: 20240033
Filing Date: 5/8/2025
Case Type: Appeal - Criminal - Homicide
Author: Jensen, Jon J.

Highlight: The omission of a single juror's response to a jury poll in a trial transcript does not establish a violation of the constitutional right to a unanimous verdict when the record sufficiently demonstrates the existence of other safeguards ensuring that the jury was properly impaneled and returned a unanimous verdict free of coercion or pressure.

The district court has wide discretion over the mode and order of presenting evidence, and over the use of extrinsic evidence to refresh memory or impeach a witness based on a prior inconsistent statement.

A sentencing decision will only be vacated if the district court acted outside the limits prescribed by statute or substantially relied on an impermissible factor in determining the severity of the sentence.

Vacancy in Judgeship No. 4, NECJD 2025 ND 90
Docket No.: 20250094
Filing Date: 4/30/2025
Case Type: Judicial Administration - Vacancy - Vacancy
Author: Per Curiam

Highlight: Judgeship retained at Grand Forks

Vacancy in Judgeship No. 1, SCJD 2025 ND 89
Docket No.: 20250083
Filing Date: 4/28/2025
Case Type: Judicial Administration - Vacancy - Vacancy
Author: Per Curiam

Highlight: Judgeship retained at Bismarck

Fowler v. Fowler, et al. 2025 ND 88
Docket No.: 20240308
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Divorce
Author: Crothers, Daniel John

Highlight: An attorney's fees sanction under N.D.R.Civ.P. 11 must comply with safeguards in the rule.

A court abuses its discretion by deeming an action frivolous if the claim is grounded in a good faith argument for an extension of the current interpretation of the law.

A party is not entitled to attorney's fees under N.D.R.App.P. 38 if the action is not frivolous.

Zittleman v. Bibler, et al. 2025 ND 87
Docket No.: 20240196
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Divorce
Author: Crothers, Daniel John

Highlight: A party's due process rights were not violated by limiting the time of a hearing and preemptively allocating time to both parties.

A district court did not abuse its discretion when it limits the length of a hearing.

If a party desires more time for a hearing than a district court has scheduled, the party must object to the time limitations or move for a continuance.

A district court is not required to conduct a best interests analysis if it finds there has been no material change in circumstances.

A district court is not required to modify a residential responsibility judgment beyond the motion requested by a party.

State v. Brown 2025 ND 86
Docket No.: 20240225
Filing Date: 4/24/2025
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: This Court reviews an appeal from the dismissal of a criminal charge after a preliminary hearing under the abuse of discretion standard of review.

At a preliminary hearing the State must produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty of committing the crime.

Lowe v. WSI 2025 ND 85
Docket No.: 20250014
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court's judgment affirming an administrative law judge's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Skobodzinski v. NDDOT 2025 ND 84
Docket No.: 20240241
Filing Date: 4/24/2025
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

Highlight: A motor vehicle operator arrested for driving under the influence or being in actual physical control has a limited statutory right to consult with an attorney.

A person arrested for driving under the influence who asks to consult with an attorney before deciding to take a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.

Whether a person has been afforded a reasonable opportunity to speak with an attorney is determined by conducting an objective review of the totality of the circumstances.

The appropriate inquiry is whether the police afforded an arrestee a reasonable opportunity to consult with counsel in a meaningful way.

State v. Burton 2025 ND 83
Docket No.: 20240286
Filing Date: 4/24/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Bahr, Douglas Alan

Highlight: Under the Sixth Amendment's Confrontation Clause, in all criminal prosecutions, the accused has the right to be confronted with the witnesses against him. The admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.

Statements are nontestimonial when the primary purpose is to enable police assistance to meet an ongoing emergency, and are considered testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Rule 901, N.D.R.Ev., provides for methods of authentication of evidence. All authentication requires is that the party offering an item of evidence produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Rule 803(1), N.D.R.Ev., provides an exception to the rule against hearsay for a statement describing or explaining an event or condition, made while or immediately after the declarant perceived the event or condition. Because N.D.R.Ev. 803(1) applied, a district court did not abuse its discretion by admitting a 911 call recording into evidence.

Western Equipment Finance v. Sergei Tumas Productions, et al. 2025 ND 82
Docket No.: 20240309
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: A district court judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).

State v. Lafromboise 2025 ND 81
Docket No.: 20240325
Filing Date: 4/24/2025
Case Type: Appeal - Criminal - Terrorizing
Author: McEvers, Lisa K. Fair

Highlight: In a criminal case, the State may appeal from an order quashing an information or indictment or any count thereof. A dismissal for lack of probable cause, whether labeled an "order" or a "judgment," is appealable.

Probable cause exists when the facts and circumstances are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed. The State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but rather need only produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty.

To satisfy its probable cause burden, the State must have presented reasonable grounds to believe the defendant intended to place another human being in fear for that human being's or another's safety, or acted with reckless disregard of the risk of causing such terror, and threatened to commit a crime of violence or act dangerous to human life.

Dennis v. Dennis, et al. 2025 ND 80
Docket No.: 20240288
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Per Curiam

Highlight: A divorce judgment entered after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Emelia Hirsch Trust 2025 ND 79
Docket No.: 20240313
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: A district court order for contempt is affirmed.

State v. Ziegler 2025 ND 78
Docket No.: 20240269
Filing Date: 4/24/2025
Case Type: Appeal - Criminal - Mischief
Author: Tufte, Jerod E.

Highlight: A criminal judgment entered after a jury conviction of criminal mischief and stalking is affirmed.

Without foundation testimony from the insurer, an insurer's letters regarding valuation of property constitute inadmissible hearsay if offered to prove value of the property at issue.

Under the property owner rule, an owner may testify about the value of his property even if his opinion relies upon information from another.

A district court's evidentiary error is harmless if improperly admitted evidence amounted to cumulative evidence.

Holte, et al. v. Rigby, et al. 2025 ND 77
Docket No.: 20240244
Filing Date: 4/24/2025
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court judgment entered after a bench trial is reversed in part and remanded for further proceedings.

If a trustee who is also one of the beneficiaries commits a breach of trust, the other beneficiaries are entitled to a charge upon his beneficial interest to secure their claims against him for the breach of trust. If a trustee-beneficiary has only a life interest in trust income, however, his beneficial interest terminates upon his death. Co-trustees may not offset against a life beneficiary's distribution to recoup losses resulting from the previous life beneficiary's breach of trust.

Because an equitable lien attaches to an asset as security, it is improper to attach an equitable lien to an asset in which a deceased debtor had only a life interest.

K.L.T., et al. v. NDDHHS 2025 ND 76
Docket No.: 20240299
Filing Date: 4/10/2025
Case Type: Appeal - Civil - Certified Question of Law
Author: Jensen, Jon J.

Highlight: The Court declined to answer the following certified question of law: "Is an unmarried couple able [to] adopt children under N.D.C.C. § 14-15-03(2)?"

Rule 47.1 of the North Dakota Rules of Appellate Procedure authorize the Court to answer questions of law certified by a state district court when two conditions are met: (A) there is a question of law involved in the proceeding that is determinative of the proceeding; and (B) it appears to the district court that there is no controlling precedent in the decisions of the supreme court.

When the district court has not halted proceedings, but rather has concluded them by dismissing the complaint, the certification procedure does not apply.

State v. Allman 2025 ND 75
Docket No.: 20240250
Filing Date: 4/10/2025
Case Type: Appeal - Criminal - Terrorizing
Author: Crothers, Daniel John

Highlight: Under N.D.R.Crim.P. 52, any error, defect, irregularity or variance that does not affect substantial rights must be disregarded. The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence and promotes respect for the criminal process by focusing on the underlying fairness of the trial.

Criminal defendants are presumed fit to stand trial. A defendant that lacks fitness to proceed cannot be tried, convicted, or sentenced.

Parties seeking a court order must make a motion. When a defendant is represented by counsel, the defendant generally has no authority to file pro se motions, and the court should not consider them.

A district court need give credit toward only one of the consecutive terms of imprisonment it imposes.

A speedy trial claim is evaluated under the four-part test in Barker v. Wingo, 407 U.S. 514 (1972), considering the (1) length of the delay, (2) reason for the delay, (3) proper assertion of the right, and (4) actual prejudice to the accused.

WSI v. Jones, et al. 2025 ND 74
Docket No.: 20240283
Filing Date: 4/10/2025
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: Title 65, N.D.C.C., does not specify where Workforce Safety and Insurance may appeal an administrative decision. Under N.D.C.C. § 28-32-42(3)(a), when no jurisdiction is designated by another law, appeals from administrative orders may be taken (1) to the district court of the county in which the hearing or part thereof was held, or (2) if there was no formal hearing, an appeal may be taken to the district court of Burleigh County.

State v. Ali 2025 ND 73
Docket No.: 20240281
Filing Date: 4/10/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: This Court cannot discern a guilty plea is conditional when the judgment does not show the plea was conditional, the record does not show an order accepting the conditional plea, and there is no transcript showing the guilty plea was conditional or that the district court consented to the entry of a conditional guilty plea.

Bauer v. Job Service, et al. 2025 ND 72
Docket No.: 20250003
Filing Date: 4/10/2025
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Per Curiam

Highlight: A district court judgment affirming a Job Service of North Dakota decision is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Krebs 2025 ND 71
Docket No.: 20240355
Filing Date: 4/10/2025
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: The State's appeal from a district court's judgment of acquittal entered after the court granted the defendant's renewed N.D.R.Crim.P. 29 motion is dismissed.

The court's ruling that there was insufficient evidence to sustain the defendant's conviction is a true judgment of acquittal from which the State is not permitted to appeal.

The Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative exists.

The fact that the State may be unable to appeal the district court's ruling does not necessarily create extraordinary circumstances justifying supervisory jurisdiction.

State v. Lyons 2025 ND 70
Docket No.: 20240326
Filing Date: 4/10/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A district court order denying a N.D.R.Crim.P. 35 motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Shively v. Shively 2025 ND 69
Docket No.: 20240284
Filing Date: 4/10/2025
Case Type: Appeal - Civil - Divorce
Author: Tufte, Jerod E.

Highlight: A district court's judgment is reversed and remanded for reconsideration and a reasoned explanation of the district court's award of primary residential responsibility and parenting time, and distribution of property.

A district court's findings of fact must be stated with sufficient specificity to enable a reviewing court to understand the factual basis for its decisions.

In cases where a party has requested equal parental responsibility, and particularly where the court finds the parties are able to effectively communicate with each other, the district court must consider equal residential responsibility
and articulate its reasoning sufficiently for appellate review.

A district court's failure to explain the absence of extended summer parenting time is error, requiring remand for reconsideration and a reasoned explanation of the court's decision.

While the marital home need not be irrevocably set aside to an heir, we have also explained that inherited property should be set aside to the heir where fairly possible.

Kinden v. Kinden, et al. 2025 ND 68
Docket No.: 20240226
Filing Date: 4/10/2025
Case Type: Appeal - Civil - Divorce
Author: Tufte, Jerod E.

Highlight: A district court's order and judgment awarding primary residential responsibility is affirmed.

Section 14-09-06.6, N.D.C.C., governs modifications of primary residential responsibility. When a party moves to modify a judgment awarding joint residential responsibility, N.D.C.C. § 14-09-06.6 does not apply. The district court must instead make an original determination regarding primary residential responsibility.

We will not retry a primary residential responsibility case or substitute our judgment for a district court's initial primary residential responsibility decision merely because we might have reached a different result. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult primary residential responsibility decision involving two fit parents.

Vacancy in Judgeship No. 1, NCJD 2025 ND 67
Docket No.: 20250044
Filing Date: 3/28/2025
Case Type: Judicial Administration - Vacancy - Vacancy
Author: Per Curiam

Highlight: Judgeship retained at Minot

Williamson v. State 2025 ND 66
Docket No.: 20240155
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An affirmative defense is waived if it is not pleaded. A waived defense is not grounds for dismissal of an application for postconviction relief.

Defendants who inexcusably fail to raise all of their claims in a single postconviction proceeding misuse the postconviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding. When the State has pleaded the defense of misuse of process, and a misuse of process has occurred, dismissal of an application for postconviction relief will be affirmed even if dismissal was ordered on other erroneous grounds.

There is no constitutional right to counsel for postconviction proceedings. Absent a constitutional rule guaranteeing effective postconviction counsel, statutory law controls. Under N.D.C.C. § 29-32.1-09(2), ineffective assistance of postconviction counsel claims are prohibited, and the court is not required to wait for the State to file a motion before dismissing such claims.

State v. Littleghost 2025 ND 65
Docket No.: 20240186
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A court's acceptance of a guilty plea must be accompanied by a factual basis under N.D.R.Crim.P. 11(b)(3).

A court must find that the factual basis satisfies all elements of the crime charged.

A factual basis may be established by statements from the defendant or the attorneys, from a presentence report, or by whatever other means is appropriate, from the court's record.

A court must state what it relies on for a factual basis. Statements made in violation of Miranda must be incriminating.

State v. Littleghost 2025 ND 65
Docket No.: 20240187
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A court's acceptance of a guilty plea must be accompanied by a factual basis under N.D.R.Crim.P. 11(b)(3).

A court must find that the factual basis satisfies all elements of the crime charged.

A factual basis may be established by statements from the defendant or the attorneys, from a presentence report, or by whatever other means is appropriate, from the court's record.

A court must state what it relies on for a factual basis. Statements made in violation of Miranda must be incriminating.

Killoran, et al. v. Kaler 2025 ND 64
Docket No.: 20240290
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Bahr, Douglas Alan

Highlight: When a motion to dismiss is based on different grounds than the ground the district court relied on to dismiss a claim, the court is required to give the parties notice of its intent to dismiss on new grounds and provide an opportunity to respond.

A district court errs by misapplying the requirements of N.D.R.Civ.P. 8(a) and the standards for determining a motion to dismiss under N.D.R.Civ.P. 12(b)(6) when it demands more than "a short and plain statement of the claim," demands factual evidence to support the allegations, does not accept the allegations in the complaint as true, and does not construe the complaint in the light most favorable to the plaintiff.

A complaint does not need to allege facts in anticipation of an affirmative defense.

In a claim for intentional infliction of emotional distress, a district court must make the initial decision of whether the alleged conduct can reasonably be considered "extreme and outrageous." A court does not focus exclusively on the conduct and words, but considers the facts and circumstances on a case-by-case basis.

State v. Helland 2025 ND 63
Docket No.: 20240224
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: A district court has inherent power to take judicial notice in a preliminary proceeding where the rules of evidence do not apply, provided certain standards are met.

The requirement in N.D.C.C. § 62.1-02-01(1)(b) that the predicate misdemeanor offense be "committed while using or possessing a firearm" does not require the use or possession of a firearm be an element of the predicate offense. Moreover, the requirement in section 62.1-02-01(1)(b) that the predicate misdemeanor offense be "committed while using or possessing a firearm" does not require the use or possession of the firearm in committing the predicate offense be proven or admitted to in the predicate criminal action.

0n a prosecution under N.D.C.C. § 62.1-02-01(1)(b), the State has the burden to prove the defendant used or possessed a firearm when the defendant committed the predicate offense.

Under N.D.C.C. § 62.1-02-01(2)(b), a "conviction" includes a deferred imposition of sentence. A deferred imposition of sentence no longer exists when the court sets aside the verdict of guilty and dismisses the information. Section 62.1-02-01(2)(b) refers to a conviction for a deferred imposition of sentence that has not been dismissed.

Hoff v. City of Burlington 2025 ND 62
Docket No.: 20240081
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: The district court did not abuse its discretion in concluding the petitioner did not establish a clear legal right to the city's issuance of a certificate of occupancy for his remodeled home that is out of compliance with the city's ordinances.

The district court did not abuse its discretion in denying declaratory judgment plaintiff constructed an addition to his home in accordance with the city's ordinances when the evidence supports the court's findings the plaintiff did not comply with the city's ordinances.

A total regulatory taking occurs when regulations completely deprive an owner of all economically beneficial use of an owner's property. For total regulatory takings, the complete elimination of a property's value is the determinative factor because the total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation.

If a "special relationship" is established under the four elements provided by statute, a political subdivision may be liable for damages for injuries proximately caused by the negligence or wrongful act or omission of an employee acting within the scope of the employee's employment.

Jones v. Jones 2025 ND 61
Docket No.: 20240212
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Divorce
Author: McEvers, Lisa K. Fair

Highlight: A district court's award of primary residential responsibility is a finding of fact reviewed under the clearly erroneous standard of review. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, after reviewing the entire record, this Court is left with a definite and firm conviction a mistake has been made.

The district court does not retain continuing jurisdiction to modify a final property distribution.

Except as may be required by federal law for specific property, the valuation date for marital property and debt is the date mutually agreed upon between the parties. If the parties do not mutually agree upon a valuation date, the valuation date for marital property and debt is sixty days before the initially scheduled trial date. If there is a substantial change in value of an asset or debt between the date of valuation and the date of trial, the court may adjust the valuation of that asset or debt as necessary to effect an equitable distribution and shall make specific findings that another date of valuation is fair and equitable.

Spousal support and property distribution are interrelated and intertwined and must be considered together.

A party may not raise an issue or contention that was not previously raised or considered in the lower court for the first time on appeal.

When calculating child support, there must be evidence of the value of the items a party seeks to have included as in-kind income before the trial court may include those items in calculating an obligor's gross income.

After awarding spousal support, the district court must include that amount as a part of gross income when calculating child support.

State v. Gomez 2025 ND 60
Docket No.: 20240144
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Section 12.1-32-02(2), N.D.C.C., requires the time spent in custody to be as a result of either the charge for which the sentence was imposed or the conduct on which the charge was based.

The Court will review a claim of an illegal sentence even when the defendant did not raise this argument below by objecting at sentencing or through a motion under N.D.R.Crim.P. 35(a).

Any credit for good time the defendant is entitled to must be stated in the criminal judgment.

State v. Alg 2025 ND 59
Docket No.: 20240190
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted the defendant of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Didier 2025 ND 58
Docket No.: 20240264
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: A district court did not abuse its discretion in allowing the State's only witness to appear remotely using reliable electronic means.

The factual basis was sufficient to conclude Didier has an inability to control his behavior. An order denying his petition for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Estate of Kautzman 2025 ND 57
Docket No.: 20240256
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A two-step analysis is required to determine whether an order is appealable. First, for this Court to have appellate jurisdiction, the order being appealed must meet statutory criteria for appealability. Second, for this Court to consider the appeal at this time, the requirements of N.D.R.Civ.P. 54(b) must have been satisfied.

Interest of H.N.R. 2025 ND 56
Docket No.: 20240311
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Adoption
Author: Jensen, Jon J.

Highlight: Pursuant to N.D.C.C. § 14-15-11(7), a copy of the petition and the notice of the time and place for the hearing must be provided to each living parent of the adult to be adopted.

Pursuant to N.D.C.C. § 14-15-11(8), service must be accomplished in the same manner as required for service of process under the North Dakota Rules of Civil Procedure or in any manner the court directs.

Byrd v. State 2025 ND 55
Docket No.: 20240252
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A district court order and judgment denying an application for postconviction relief is affirmed.

Conspiracy to commit intentional murder under N.D.C.C. § 12.1-16-01(1)(a) is a cognizable offense.

A defendant pleads guilty by Alford plea to a cognizable offense if sufficient factual basis supports the conviction. A simultaneous Alford plea to a noncognizable offense may be harmless error.

Ceynar v. Ceynar 2025 ND 53
Docket No.: 20240194
Filing Date: 3/6/2025
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: In general, a lengthy marriage supports an equal division of all marital assets. The origin of the property, such as inheritance, is only one factor to consider under the Ruff-Fischer guidelines.

Preserving the viability of a business operation like a family farm is important and liquidation of an ongoing farming operation or business is ordinarily a last resort. This laudable purpose, however, is to be achieved only if it is possible to do so without detriment to the other party. The goal of preserving a farming business does not call for a windfall for one spouse. Property divisions are based on the particular circumstances of each case. Ordering the sale of a ranch is not erroneous where the party challenging the sale only proposed an unequal division of the property and did not show he depends on the ranching operation for his livelihood; the location, quantity, or value of the minerals is relatively unknown; and the ranch would otherwise be difficult to divide.

State v. Medina 2025 ND 52
Docket No.: 20240249
Filing Date: 3/6/2025
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: An order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Hersha v. State 2025 ND 51
Docket No.: 20240270
Filing Date: 3/6/2025
Case Type: Appeal - Civil - 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).

Zent v. NDDHHS 2025 ND 50
Docket No.: 20240222
Filing Date: 3/6/2025
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The Court affirms the Department of Health and Human Services Division of Vocational Rehabilitation decision to discontinue vocational rehabilitation services.

The application and interpretation of a statute is a question of law that is fully reviewable in an administrative appeal.

Administrative regulations are derivatives of statutes and are construed under rules of statutory construction. Statutory interpretation is a question of law, fully reviewable on appeal.

The North Dakota Department of Health and Human Services administers vocational rehabilitation services with federal funding through the State Vocational Rehabilitation Services Program. The federal statutes and attendant regulations governing the State Vocational Rehabilitation Program are clear that the provision of vocational rehabilitation services is premised on assisting disabled individuals achieve competitive integrated employment. To satisfy the requirements of competitive integrated employment, a job position must meet each of the elements articulated under 34 C.F.R. §?361.5(c)(9). Whether a job position meets the requirements of competitive integrated employment is determined on a case-by-case basis.

The clear and convincing standard applies only to eligibility determinations for vocational rehabilitation services. For all other agency determinations, the preponderance of the evidence standard applies.

Disciplinary Board v. Spencer 2025 ND 49
Docket No.: 20240339
Filing Date: 2/27/2025
Case Type: Discipline - Attorney - Suspension
Author: Per Curiam

Highlight: Lawyer suspension ordered.