Opinions

State v. Pulkrabek 2022 ND 128
Docket No.: 20210332
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Interest of A.G. (CONFIDENTIAL) (consolidated w/20210346) 2022 ND 127
Docket No.: 20210345
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: A juvenile court order finding two children to be in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.G. (CONFIDENTIAL) (consolidated w/20210346) 2022 ND 127
Docket No.: 20210345
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

State v. Thomas 2022 ND 126
Docket No.: 20210339
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: A district court has broad discretion in admitting or excluding evidence at trial.

In deciding whether to exclude evidence under N.D.R.Ev. 403, courts should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.

Failure to assert a claim of obvious error on appeal does not warrant review under the obvious error standard.

State v. Thomas 2022 ND 126
Docket No.: 20210339
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

State v. Bradshaw 2022 ND 125
Docket No.: 20210306
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An issue not properly preserved for appeal is limited to whether the alleged error constitutes obvious error affecting substantial rights.

A substantial right has not been denied unless the violation significantly prejudiced the defendant.

Defendant failed to show how he was significantly prejudiced by the late disclosure or admission of a redacted video.

State v. Bradshaw 2022 ND 125
Docket No.: 20210306
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Quamme v. Quamme 2022 ND 124
Docket No.: 20220034
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: An appellate court’s jurisdiction generally attaches upon the filing of a notice of appeal and is not relinquished until the court issues its mandate.

An order or judgment entered by the district court without jurisdiction is void.

Quamme v. Quamme 2022 ND 124
Docket No.: 20220034
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Interest of A.C. (CONFIDENTIAL) 2022 ND 123
Docket No.: 20220081
Filing Date: 9/15/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: While this Court defers to a tribe on its membership determinations, without consistent and clear factual findings supporting the application of ICWA and North Dakota heightened review for Indian families, this Court is unable to determine the father’s issues on appeal.

The Court retains jurisdiction and remands for the juvenile court to clarify its findings on ICWA and heightened state law and to hold additional evidentiary proceedings if necessary.

Interest of A.C. (CONFIDENTIAL) 2022 ND 123
Docket No.: 20220081
Filing Date: 6/8/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Lehnerz, et al. v. Christopher 2022 ND 122
Docket No.: 20210353
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A disorderly conduct restraining order is reviewed for an abuse of discretion.

Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.

There are limits on free speech and not all speech is constitutionally protected.

Lehnerz, et al. v. Christopher 2022 ND 122
Docket No.: 20210353
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

State v. Frohlich 2022 ND 121
Docket No.: 20210303
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

State v. Frohlich 2022 ND 121
Docket No.: 20210303
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found a defendant guilty of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tergesen 2022 ND 120
Docket No.: 20210309
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

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

State v. Tergesen 2022 ND 120
Docket No.: 20210309
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Blue Appaloosa v. NDIC 2022 ND 119
Docket No.: 20210292
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The Industrial Commission’s jurisdiction does not depend solely on the filing of an application, but instead on the jurisdictional fact of intent. The Commission has the authority and duty to investigate potential violations of its regulations, including a failure to obtain a permit or file a bond.

The Commission has regularly pursued its authority, and its findings and conclusions that an operator began construction on a treating plant prior to obtaining a permit or filing a bond in violation of N.D. Admin. Code ch. 43-02-03 are sustained by the law and by substantial and credible evidence.

Blue Appaloosa v. NDIC 2022 ND 119
Docket No.: 20210292
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Larson v. WSI 2022 ND 118
Docket No.: 20210333
Filing Date: 6/8/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An appellant must satisfy statutory requirements for perfecting an appeal to the district court from an administrative agency decision for the court to have subject matter jurisdiction.

A petitioner for a writ of mandamus must show there is no plain, speedy, and adequate remedy and that they have a clear legal right to performance of the act sought to be compelled by the writ.

Under N.D.C.C. § 65-04-32(2), an employer is required to file a request for reconsideration of a Workforce Safety and Insurance notice of decision within the statutory time limit, and the time requirement is not extended by N.D.R.Civ.P. 6(e).

Larson v. WSI 2022 ND 118
Docket No.: 20210333
Filing Date: 6/8/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Post-judgment motions following a judgment denying post-conviction relief will be treated as another application for post-conviction relief.

District court orders denying an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A proposed pre-filing order designating a person as a vexatious litigant is not appealable.

Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A comment on a defendant’s post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

In considering whether counsel’s failure to object to a Doyle violation establishes a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different in the postconviction relief context, the district court must consider the factors outlined in State v. Wilder, 2018 ND 93, ¶ 9, 909 N.W.2d 684. They include: (1) the use to which the prosecution puts the post arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

A witness’s isolated reference to a defendant’s invocation of his right to counsel, without further elaboration or further mention by the State at any other time during the trial or in closing arguments, does not warrant a new trial for the defendant.

Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for postconviction relief and a pre-filing order under N.D. Sup. Ct. Admin. R. 58 concluding the applicant is a vexatious litigant are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Schmitz v. State Board of Chiropractic Examiners 2022 ND 113
Docket No.: 20210135
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

Highlight: A formal, evidentiary hearing is required whenever an administrative agency acts in a quasi-judicial capacity unless the parties either agree otherwise or there is no dispute of a material fact.

A summary judgment is inappropriate if a fact-finder must draw inferences and make findings on disputed facts to support its decision.

Even when facts are undisputed, a summary judgment may not be granted if reasonable differences of opinion exist as to the inferences to be drawn from those facts.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 113
Docket No.: 20210135
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

State v. Kelly (consolidated w/ 20210350) 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgments entered after the defendant pleaded guilty to driving under the influence, fourth or greater offense, are summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (8).

State v. Kelly (consolidated w/ 20210350) 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

West Dakota Oil v. Kathrein Trucking, et al. 2022 ND 111
Docket No.: 20210326
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The owner of a limited liability company generally is not liable for the company’s debts, obligations, or other liabilities.

District courts must sufficiently address each factor considered in piercing a company’s veil and explain how the factors do or do not apply.

West Dakota Oil v. Kathrein Trucking, et al. 2022 ND 111
Docket No.: 20210326
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Anderson v. Spitzer, et al. 2022 ND 110
Docket No.: 20210290
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may modify residential responsibility if it finds a material change in circumstances and modification is necessary to serve the best interests of the child.

To warrant modification, the material change in circumstances must adversely affect the child or result in a general decline in the child’s condition.

Anderson v. Spitzer, et al. 2022 ND 110
Docket No.: 20210290
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

In the Matter of the Adoption of K.M.T. (CONFIDENTIAL) 2022 ND 109
Docket No.: 20210310
Filing Date: 5/26/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: Parental rights may be terminated upon a finding of abandonment.

A party seeking termination of parental rights must prove all elements by clear and convincing evidence.

Section 14-16-06(1), N.D.C.C., permits termination of parental rights in an adoption proceeding.

In the Matter of the Adoption of K.M.T. (CONFIDENTIAL) 2022 ND 109
Docket No.: 20210310
Filing Date: 5/26/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Matter of Didier 2022 ND 108
Docket No.: 20210325
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

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

Matter of Didier 2022 ND 108
Docket No.: 20210325
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

State v. Landrus 2022 ND 107
Docket No.: 20210304
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: This Court may consider an obvious error that affects substantial rights.

Jury instructions must correctly and adequately inform the jury of the applicable law.

Instructing the jury on the wrong subdivision of law is a plain error.

Sustaining a conviction based on jury instructions that do not require findings on every essential element of the charged crime violates due process.

State v. Landrus 2022 ND 107
Docket No.: 20210304
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

State v. Yellow Hammer 2022 ND 106
Docket No.: 20210209
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Future medical expenses may be awarded as restitution to a crime victim if the amount can be ascertained from the evidence presented at a restitution hearing.

State v. Yellow Hammer 2022 ND 106
Docket No.: 20210209
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Rath v. Rath, et al. 2022 ND 105
Docket No.: 20210120
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court has broad discretion on evidentiary matters and over the conduct of a hearing. A ruling on a motion in limine is reviewed under the abuse of discretion standard.

The right to closing arguments can be waived by the parties and narrowed by the courts, but it cannot be unilaterally denied.

To modify parenting time, a movant must establish a material change of circumstances has occurred since the prior parenting time order and that it is in the child’s best interests to modify the order.

A demand for change of judge, once granted, carries forward in any particular case, even when a new proceeding is filed in a divorce case triggering a new judge assignment.

The Supreme Court may, on its own motion or the motion of any party to an appeal, enter a pre-filing order prohibiting a vexatious litigant from filing any new litigation in the courts of this state as a self-represented party without first obtaining leave of a judge of the court where the litigation is proposed to be filed.

Rath v. Rath, et al. 2022 ND 105
Docket No.: 20210120
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Toman Engineering Co. v. Koch Construction, et al. 2022 ND 104
Docket No.: 20210186
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The district court may exercise its inherent power to sanction when a party violates the duty to preserve evidence and destroys evidence relevant to the lawsuit.

The duty to preserve evidence may be discharged and the evidence may be destroyed if the custodial party has a legitimate need to destroy the evidence and has provided sufficient notice to the other parties allowing for a full and fair opportunity to inspect the evidence.

Toman Engineering Co. v. Koch Construction, et al. 2022 ND 104
Docket No.: 20210186
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Matter of Shane Lance Yates 2022 ND 103
Docket No.: 20220054
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: District court orders denying petitions for name changes and requests for evidentiary hearings are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Shane Lance Yates 2022 ND 103
Docket No.: 20220054
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

Matter of Amy Jo Yates 2022 ND 103
Docket No.: 20220056
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: District court orders denying petitions for name changes and requests for evidentiary hearings are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Amy Jo Yates 2022 ND 103
Docket No.: 20220056
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

State v. Rodriguez 2022 ND 102
Docket No.: 20210359
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A district court’s dismissal of a criminal information is reviewed for an abuse of discretion.

A criminal information must identify the defendant, and must be a plain, concise, and definite written statement of the essential facts constituting the elements of the offense charged.

State v. Rodriguez 2022 ND 102
Docket No.: 20210359
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

State v. Benter 2022 ND 101
Docket No.: 20210199
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: To represent oneself, a criminal defendant must voluntarily, knowingly, and intelligently waive the right to counsel.

A defendant’s conduct may be the functional equivalent of a voluntary waiver of the right to counsel.

A district court has a continuing responsibility during trial to decide whether a self-represented defendant is competent to present his or her own defense. To ensure the defendant is afforded a fair trial, a district court can appoint counsel for the defendant during trial if the court determines the defendant is no longer competent to present his or her own defense.

State v. Benter 2022 ND 101
Docket No.: 20210199
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

State v. Koval 2022 ND 100
Docket No.: 20210356
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: When a party challenges an underlying order prohibiting contact in a proceeding for violating that order, the challenge constitutes an impermissible collateral attack on the underlying order.

State v. Koval 2022 ND 100
Docket No.: 20210356
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Updike v. Updike, et al. 2022 ND 99
Docket No.: 20210265
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: An underemployed child support obligor did not provide evidence to establish the N.D. Admin. Code § 75-02-04.1-07(5) exception for imputation of income based on the unavailability of employment applied.

Updike v. Updike, et al. 2022 ND 99
Docket No.: 20210265
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

WSI v. Boechler, PC, et al. 2022 ND 98
Docket No.: 20210225
Filing Date: 5/12/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: Tufte, Jerod E.

Highlight: A dismissal without prejudice is ordinarily not appealable because either side may commence another action.

When deciding a due process claim, we consider whether a constitutionally protected property or liberty interest is at stake and, if so, whether minimum procedural due process requirements were met.

WSI is required to notify an employer of the premiums and penalties that employer owes to WSI, and if the employer fails to pay that amount within thirty days, WSI may collect the premiums and penalties by civil action.

Under the North Dakota and U.S. Constitutions, excessive fines shall not be imposed. The federal excessive fines clause is violated if the fine is grossly disproportional to the gravity of a defendant’s offense.

WSI v. Boechler, PC, et al. 2022 ND 98
Docket No.: 20210225
Filing Date: 5/12/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: Tufte, Jerod E.

Wheeler v. State (consolidated w/20220025 & 20220026) 2022 ND 97
Docket No.: 20220024
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court’s N.D. Sup. Ct. Admin. R. 58 vexatious litigant pre-filing order is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Wheeler v. State (consolidated w/20220025 & 20220026) 2022 ND 97
Docket No.: 20220024
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

State v. Houle 2022 ND 96
Docket No.: 20210331
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: A party may not challenge as error a ruling or other trial proceeding invited by that party.

The “invited error doctrine” applies unless a constitutional error is structural, and defendant conceded any alleged error was not constitutional.

State v. Houle 2022 ND 96
Docket No.: 20210331
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

State v. Oshiro (consolidated w/20210255 & 20210256) 2022 ND 95
Docket No.: 20210254
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A defendant’s release from prison renders his sentencing appeal moot if he is not subject to supervised release or probation after completing his prison term.

State v. Oshiro (consolidated w/20210255 & 20210256) 2022 ND 95
Docket No.: 20210254
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

City of West Fargo v. McAllister 2022 ND 94
Docket No.: 20210360
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The primary purpose of statutory interpretation is to determine legislative intent.

Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.

The district court has discretion over evidentiary matters, including a decision to exclude the testimony of a witness.

City of West Fargo v. McAllister 2022 ND 94
Docket No.: 20210360
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

State v. Ruiz Ledezma 2022 ND 93
Docket No.: 20210277
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A criminal judgment entered after a defendant pled guilty to criminal vehicular homicide is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Ruiz Ledezma 2022 ND 93
Docket No.: 20210277
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Matter of Rose Henderson Peterson Mineral Trust 2022 ND 92
Docket No.: 20210258
Filing Date: 9/15/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Satisfaction of an independent undisputed portion of a judgment does not operate as a full waiver of the right to appeal.

Res judicata and the law of the case doctrine do not bar litigation of the same type of claim based on different facts.

Under N.D.C.C. § 58-18-08, a trustee may not be exculpated for breaches of trust committed in bad faith or with reckless indifference to the purposes of the trust.

Absent the requisite findings and analysis, review of a district court decision is not possible and remand is appropriate.

Matter of Rose Henderson Peterson Mineral Trust 2022 ND 92
Docket No.: 20210258
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Eikom v. Eikom 2022 ND 91
Docket No.: 20210319
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court’s decision to award parenting time to a noncustodial parent is based on the child’s best interests and not the wishes of the parents.

This Court may rely on implied findings of fact when the record enables it to understand factual determinations made by the district court.

Eikom v. Eikom 2022 ND 91
Docket No.: 20210319
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Dixon v. Dixon 2022 ND 90
Docket No.: 20210294
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: District court order discharging trustee, closing the trust, and concluding supervised administration is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Dixon v. Dixon 2022 ND 90
Docket No.: 20210294
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Matter of Emelia Hirsch Trust 2022 ND 89
Docket No.: 20210324
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Highlight: A district court pre-filing order against vexatious litigant under N.D. Sup. Ct. Admin. R. 58 is reviewed for an abuse of discretion.

A pre-filing order under N.D. Sup. Ct. R. 58 must be issued by the presiding judge of a judicial district, and the district court abuses its discretion if a pre-filing order is issued by any other judge.

Orders denying leave to file new motions or documents are not appealable.

If a court does not rule on a motion, it may be deemed denied.

An award of attorney’s fees and double costs on appeal is granted for frivolous arguments.

Matter of Emelia Hirsch Trust 2022 ND 89
Docket No.: 20210324
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Eckroth v. Eckroth, et al. 2022 ND 88
Docket No.: 20220007
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion to modify primary residential responsibility and an order denying a motion for reconsideration are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Eckroth v. Eckroth, et al. 2022 ND 88
Docket No.: 20220007
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Trenton Indian Housing Authority v. Poitra, et al. 2022 ND 87
Docket No.: 20210302
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Landlord/Tenant
Author: Jensen, Jon J.

Highlight: This Court adopts the two-part review articulated by the United States Supreme Court in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998) to determine whether land is a dependent Indian community and therefore Indian country.

The party challenging the state district court’s jurisdiction has the burden to prove the district court lacks jurisdiction.

A contractual provision, in itself, cannot establish subject matter jurisdiction with the tribal court.

Trenton Indian Housing Authority v. Poitra, et al. 2022 ND 87
Docket No.: 20210302
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Landlord/Tenant
Author: Jensen, Jon J.

Sauvageau, et al. v. Bailey, et al. 2022 ND 86
Docket No.: 20220080
Filing Date: 4/28/2022
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Highlight: This Court exercises its supervisory authority rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

Quick take eminent domain offers a property owner less protection because the condemnor can take possession of the property before trial on the amount of just compensation due.

A water resource district may acquire an easement for a right of way for flood control projects by quick take eminent domain.

Sauvageau, et al. v. Bailey, et al. 2022 ND 86
Docket No.: 20220080
Filing Date: 4/28/2022
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Energy Transfer, et al. v. ND Private Investigative and Security Bd., et al. 2022 ND 85
Docket No.: 20210244
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: A person has standing to appeal from an order denying intervention.

The mere fact that the parties have reached a settlement agreement is not itself sufficient to deny a motion to intervene relating to issues collateral to the settlement agreement.

An administrative agency has statutory authority to issue a protection order if the agency acts as an administrative hearing officer.

A document subject to open records laws may be withheld from disclosure if the document or parts of the document fall within a statutory exemption.

Energy Transfer, et al. v. ND Private Investigative and Security Bd., et al. 2022 ND 85
Docket No.: 20210244
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Energy Transfer, et al. v. ND Private Investigative and Security Bd., et al. 2022 ND 84
Docket No.: 20220036
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: An interlocutory order is only appealable when there is a statutory basis for the appeal and the district court has complied with the requirements of N.D.R.Civ.P. 54(b).

The definition of “record” provided by N.D.C.C. § 44-04-17.1(16) does not require a public entity use information in a specific way for it to constitute a record.

Chapters 44-04 and 54-46, N.D.C.C., apply to information received by a public entity in connection with “official” or “public” business.

A party requesting additional discovery under N.D.R.Civ.P. 56(f) must “identify with specificity” the additional information it seeks and explain why that information would preclude summary judgment.

When a party has failed to perfect a cross appeal it may not seek a more favorable result on appeal than it received in the district court.

Energy Transfer, et al. v. ND Private Investigative and Security Bd., et al. 2022 ND 84
Docket No.: 20220036
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Hudye Group v. Ward Cty. Bd. of Commissioners 2022 ND 83
Docket No.: 20210279
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: A local governing body’s decision on tax rebate and abatement applications is reviewed under the arbitrary, capricious, or unreasonable standard.

Applications for abatement or refund of property taxes must be filed in the office of the county auditor on or before November first of the year following the year in which the tax becomes delinquent.

Taxpayer’s applications for abatement or refund of property taxes which were not filed before November first of the year following the year in which the taxes became delinquent were untimely.

Hudye Group v. Ward Cty. Bd. of Commissioners 2022 ND 83
Docket No.: 20210279
Filing Date: 4/28/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Bridges v. State (consolidated w/20210352) 2022 ND 82
Docket No.: 20210351
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Orders summarily dismissing applications for postconviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Bridges v. State (consolidated w/20210352) 2022 ND 82
Docket No.: 20210351
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Etemad v. State 2022 ND 81
Docket No.: 20210343
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Etemad v. State 2022 ND 81
Docket No.: 20210343
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Moncada v. State 2022 ND 80
Docket No.: 20210338
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order summarily dismissing an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Moncada v. State 2022 ND 80
Docket No.: 20210338
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Solberg v. Hennessy 2022 ND 79
Docket No.: 20210354
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Malpractice
Author: Per Curiam

Highlight: Amended judgment entered after a bench trial summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).