Opinions

Vacancy in Judgeship No. 1, SCJD 2025 ND 89
Docket No.: 20250083
Filing Date: 4/28/2025
Case Type: Judicial Administration - Vacancy - Vacancy
Author: Not Available

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.

Higgins, et al. v. Lund, et al. 2025 ND 47
Docket No.: 20240083
Filing Date: 2/27/2025
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Highlight: A judgment which adjudicates all claims and does not anticipate or direct further action is appealable.

When interpreting a contract, N.D.C.C. § 9-07-06 provides that the whole of a contract is to be taken together so as to give effect to every part if reasonably practicable. If the granting clause describes the land as being an undivided interest in the land and a subsequent reservation which reserves a fractional part of the "land conveyed," or words of similar import, the reservation will be construed as reserving to the grantor the stated fractional interest of the fraction described in the granting clause.

A Duhig problem does not arise when a grantor, who owns an undivided onehalf (1/2) interest in a parcel of land via partnership, conveys the undivided onehalf (1/2) interest in the land's surface and a one-fourth (1/4) interest in land's minerals but reserves for himself the other one-fourth (1/4) interest in the minerals of the same land.

An oral contract can be enforced only when the parties have agreed on its essential terms. Indefiniteness as to any essential element of the agreement may prevent the creation of an enforceable contract. Stipulations as to the law are also invalid.

Language tying a royalty interest to another interest, such as a one-eighth royalty interest of an eight percent interest, creates a floating royalty.

State v. Williams 2025 ND 46
Docket No.: 20240203
Filing Date: 2/27/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A Brady violation is established when the defendant proves the government possessed evidence favorable to the defendant, the defendant did not possess the evidence and could not have obtained it with reasonable diligence, the prosecution suppressed the evidence, and a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.

To prevail on a Brady claim a defendant must satisfy all four prongs or factors of the legal test.

When an issue is not raised at the trial court, this Court will not address the issue on appeal unless the alleged error rises to the level of obvious error.

A defendant's due process rights may be violated by a prosecutor's actions that constitute misconduct that has a prejudicial effect.

Hoistad v. NDDOT 2025 ND 45
Docket No.: 20240297
Filing Date: 2/27/2025
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

Highlight: The Department bears the burden of proving a chemical breath test result was fairly administered. If the Department fails to establish compliance with the approved method which goes to the scientific accuracy and reliability of the test, the Department must prove fair administration of the test through expert testimony.

When it is ready for the second breath sample, the Intoxilyzer 8000 displays, "Please Blow Until Tone Stops." The word "until" in this context signifies the point at which the driver should cease blowing into the instrument. Repeatedly blowing into the Intoxilyzer after the tone stopped is contrary to the instructions displayed by the Intoxilyzer 8000 and, thus, the approved method.

Unless the impact of a deviation is within the knowledge of an ordinary person, it is the Department's burden to show through expert testimony whether a deviation from the approved method impacted the accuracy and reliability of the test. An ordinary person does not know what impact, if any, a subject's repeated blowing into the Intoxilyzer after the tone stops has on the test results.

When the officer's deviations from the approved method involve the procedures for collecting and testing the sample, it raises the possibility that the deviation impacted the test result.

Even though the Department's action is not upheld by a court, a party is not entitled to attorney's fees and costs under N.D.C.C. § 28-32-50(1) when the Department acted with substantial justification in its decision.

State v. Plentychief 2025 ND 44
Docket No.: 20240334
Filing Date: 2/27/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Motion to reconsider order of dismissal denied.

Edwards v. State 2025 ND 43
Docket No.: 20240042
Filing Date: 2/13/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An applicant for postconviction relief based on ineffective assistance of counsel must satisfy the test in Strickland v. Washington, 466 U.S. 668, 688-90 (1984). Under Strickland's test, the applicant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Interest of S.F. 2025 ND 42
Docket No.: 20240337
Filing Date: 2/13/2025
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), (4), and (7).

State, et al. v. Carrier 2025 ND 41
Docket No.: 20240210
Filing Date: 2/13/2025
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: Child support determinations involve questions of law, which are fully reviewable, findings of fact subject to the clearly erroneous standard, and in some areas, matters of discretion subject to the abuse of discretion standard.

The party seeking to modify a child support obligation has the burden to provide appropriate and reliable information to support a modification of child support.

Issues are not adequately briefed when an appealing party fails to cite any supporting authority, and this Court will not consider them on appeal.

Kingstone v. Tedrow Kingstone 2025 ND 40
Docket No.: 20240143
Filing Date: 2/13/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Bahr, Douglas Alan

Highlight: Whether an obligor can control the receipt of trust funds is not relevant to whether the funds are income for child support purposes. A court calculating a parent's child support obligation is concerned with whether the parent receives income from the trust.

The child support amount is presumed to be the correct amount, but can be rebutted by a preponderance of the evidence if it is in the best interest of the children and one of the criteria in N.D. Admin. Code § 75-02-04.1-09(2) is met. The court must make specific findings demonstrating why the guideline amount has been rebutted.

A court may order the obligor maintain a life insurance policy as reasonable security for child support payments.

A party moving to amend a judgment under Rule 59, N.D.R.Civ.P., bears a heavy burden of showing sufficient grounds for disturbing the final judgment.

State v. McDermott 2025 ND 39
Docket No.: 20240150
Filing Date: 2/13/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of manslaughter and reckless endangerment with a firearm is summarily affirmed under N.D.R.App.P. 35.1(a)(2).