Opinions

Disciplinary Board v. Pilch (consolidated w/ 20230266) 2023 ND 186
Docket No.: 20230265
Filing Date: 9/28/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Bd. of Trustees of The N.D. Public Employees' Retirement System v. N.D. (con't) 2023 ND 185
Docket No.: 20230158
Filing Date: 9/28/2023
Case Type: Original Proceeding - Civil - Writ of Injunction
Author: Crothers, Daniel John

Highlight: The supreme court invokes its original jurisdiction only in cases publici juris and those affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of its people. The supreme court has exercised original jurisdiction in cases where the separation of coequal branches of government and their respective authority have been challenged.

Constitutional provisions are generally given their plain, ordinary, and commonly understood meaning. The overriding objective is to give effect to the intent and purpose of the people adopting the constitutional provision. The intent and purpose of constitutional provisions are to be determined, if possible, from the language itself.

Under North Dakota Constitution Article IV, § 13, “[n]o bill may embrace more than one subject, which must be expressed in its title.” When a bill embraces multiple subjects, all of which are expressed in its title, the whole bill is void due to the manifest impossibility of choosing which parts of the bill are valid and which are void. A court’s attempt to choose between the provisions would improperly inject it into the Legislature’s domain.

Interest of P.R.-K. (CONFIDENTIAL)(consolidated w/20230282) 2023 ND 184
Docket No.: 20230281
Filing Date: 9/28/2023
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.P. 35.1(a)(2) and (4).

Jones v. Rath 2023 ND 183
Docket No.: 20230018
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Only an aggrieved party may appeal from an order or judgment.

For purposes of appellate review, an aggrieved party is someone whose interests are adversely affected by a court’s decision.

A temporary restraining order is not a final appealable order.

Individuals subject to a North Dakota Supreme Court Administrative Rule 58 vexatious litigant prefiling order may not raise issues on appeal concerning motions they did not have authority to file.

Interest of K.J. 2023 ND 182
Docket No.: 20230290
Filing Date: 9/28/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A district court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of K.J. 2023 ND 182
Docket No.: 20230290
Filing Date: 9/28/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Isac v. State 2023 ND 181
Docket No.: 20230100
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: When a post-conviction relief applicant seeks to withdraw a guilty plea based upon ineffective assistance of counsel, the applicant must satisfy a two-prong test by showing (1) his counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s errors, the applicant would not have pleaded guilty and would have insisted on going to trial. Under the second prong, the district court is required to determine what the applicant would have done had he received competent advice—not what he would have done with the benefit of hindsight.

Witnesses must testify from personal knowledge. Witnesses may use notes to refresh their recollection, but they may not testify directly from the notes. A district court has broad discretion to control the use of evidence to refresh memory.

State v. Johnson 2023 ND 180
Docket No.: 20230083
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: Terrorizing circumstances are threats of violence or dangerous acts made with an intent to induce fear. No precise words are necessary to convey a threat, and may be bluntly spoken or done by innuendo or suggestion. A threat often takes its meaning from the circumstances in which it is spoken, and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited.

Williamson v. State 2023 ND 179
Docket No.: 20230069
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Cahoon 2023 ND 178
Docket No.: 20230008
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

State v. Weah 2023 ND 177
Docket No.: 20220361
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A district court’s judgment entered after a jury convicted the defendant of aggravated assault with permanent loss or impairment and reckless endangerment with extreme indifference is summarily affirmed under N.D.R.App. 35.1(a)(3).

State v. Weah 2023 ND 177
Docket No.: 20220361
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

State v. Powell 2023 ND 176
Docket No.: 20230107
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A criminal judgment entered following denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Hanson 2023 ND 175
Docket No.: 20230053
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment and sentencing for child abuse and child neglect are summarily affirmed under N.D.R.App.P. 35(a)(2) and (4).

State v. Entzel 2023 ND 174
Docket No.: 20230078
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A criminal judgment entered after a jury conviction of conspiracy to commit murder is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Matter of John V. Klein Trust 2023 ND 173
Docket No.: 20230059
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: An order granting trustees’ petition for sale of trust’s surface interests and distribution of mineral interests to beneficiaries is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Discover Bank v. Romanick, et al. 2023 ND 172
Docket No.: 20230227
Filing Date: 9/28/2023
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: McEvers, Lisa K. Fair

Highlight: We exercise our supervisory jurisdiction rarely and cautiously to rectify errors and prevent injustice in extraordinary cases in which no adequate alternative remedy exists.

A party who files a complaint must serve notice of filing on the other parties, except upon defaulting parties.

When a defendant has not appeared, he is not entitled to be notified of the motion for default judgment.

When the plaintiff declares the defendant did not answer or otherwise appear and its claim is for a sum certain—as evidenced through declaration and written instrument—the court abuses its discretion by failing to direct entry of default judgment.

Berger, et al. v. Sellers, et al. 2023 ND 171
Docket No.: 20220322
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: A planned unit development is a form of zoning ordinance which is interpreted under rules of statutory construction. Where an incorporated reference is subsequently modified or repealed, that change does not alter the meaning of the law incorporating that reference.

A party is not required to exhaust administrative remedies prior to suit when the issue concerns the interpretation of an unambiguous statute and does not need the exercise of an agency’s expertise in making factual decisions.

The interpretation of a restrictive covenant is generally governed by rules for interpretation of a contract. Restrictive covenants will be given full effect when clearly established.

Whether a fiduciary relationship exists is generally a question of fact, dependent upon a showing of special circumstances.

Violating a requirement in the planned unit development or restrictive covenants constitutes an “unlawful” act for purposes of a statutory private nuisance claim. Homeowners do not have a right to sunlight and open space on adjacent properties.

Conduct that constitutes a breach of contract does not subject the actor to an action in tort for negligence, unless the conduct also constitutes a breach of an independent duty that did not arise from the contract. Section 9-10-01, N.D.C.C., codifies the general duty of care to abstain from injuring property or infringing upon rights. Neighbors who are members of a homeowners’ association owe each other an ordinary duty of care. A homeowners’ association owes homeowners reasonable care in approving construction plans. The fact finder determines how a reasonable homeowners’ association would act under the circumstances and whether the association exercised reasonable care in performing its duties. Generally, a contractor is relieved of liability if he followed the contractee’s plans or specifications which were defective or insufficient, and the defect or insufficiency caused the damage.

Slander is a false and unprivileged publication other than libel. Intentional interference with contract requires a breach of contract. Unlawful interference with business requires an independently tortious or otherwise unlawful act of interference. Negligence requires a breach of duty.

Berger, et al. v. Sellers, et al. 2023 ND 171
Docket No.: 20220322
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Vacancy in Judgeship No. 1, SEJD 2023 ND 170
Docket No.: 20230256
Filing Date: 9/20/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgship retained at Jamestown.

Disciplinary Board v. Slyva 2023 ND 169
Docket No.: 20230232
Filing Date: 9/18/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Suiter v. NDDOT 2023 ND 168
Docket No.: 20230109
Filing Date: 9/14/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The district court judgment affirming an administrative suspension of a defendant’s driver’s license is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

Ruiz Ledezma v. State 2023 ND 167
Docket No.: 20230055
Filing Date: 9/14/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: The district court order denying a defendant’s petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Bechtle v. Bechtle, et al. 2023 ND 166
Docket No.: 20230054
Filing Date: 9/14/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order denying a motion to modify parenting time is summarily affirmed under N.D.R.App.P 35.1(a)(2).

Buller v. Buller 2023 ND 165
Docket No.: 20230050
Filing Date: 9/14/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court’s order regarding primary residential responsibility and valuation and distribution of the martial estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al. 2023 ND 164
Docket No.: 20230255
Filing Date: 9/14/2023
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Jensen, Jon J.

Highlight: This Court exercises its supervisory jurisdiction when no adequate alternative remedy exists and not merely because the appeal may involve an increase of expense or an inconvenient delay.

Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al. 2023 ND 164
Docket No.: 20230255
Filing Date: 9/14/2023
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Jensen, Jon J.

Interest of A.Z. 2023 ND 163
Docket No.: 20230245
Filing Date: 9/14/2023
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.P. 35.1(a)(2).

Interest of A.Z. 2023 ND 163
Docket No.: 20230245
Filing Date: 9/14/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Disciplinary Board v. Pilch 2023 ND 162
Docket No.: 20230152
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

Disciplinary Board v. Pilch 2023 ND 161
Docket No.: 20230147
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Disciplinary Board v. Overboe 2023 ND 160
Docket No.: 20230090
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

Disciplinary Board v. Baird 2023 ND 159
Docket No.: 20230075
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

Interest of A.M. (CONFIDENTIAL)(consolidated w/20230210) 2023 ND 158
Docket No.: 20230209
Filing Date: 8/17/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Interest of A.B. (CONFIDENTIAL) (consolidated w/20230198 & 20230199) 2023 ND 157
Docket No.: 20230197
Filing Date: 8/17/2023
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.P. 35.1(a)(4).

Sayler v. Sayler 2023 ND 156
Docket No.: 20230004
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: A motion to relocate is not necessary when residential responsibility has not previously been established. Therefore, consideration of the Stout-Hawkinson factors is not necessary when the district court originally determines parental responsibility of parents living in different states.

The purpose or motive for a unilateral move is one of the many factors courts should consider and weigh when determining parental responsibility.

State v. Petersen 2023 ND 155
Docket No.: 20230049
Filing Date: 8/17/2023
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: Law enforcement exceeds its community caretaking function when it opens the door of a sleeping occupant’s parked semi-truck and steps onto the running boards in an attempt to gather information without first attempting to get a response from outside of the vehicle.

Under prong two of the inevitable discovery doctrine, the State must prove that the evidence would have been found without the unlawful activity and must show how the discovery of the evidence would have occurred.

Estate of Froemke 2023 ND 154
Docket No.: 20220321
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: A witness must demonstrate some basis for forming an intelligent judgment as to the value of land before offering lay opinion testimony about the value of the land.

A property owner may present opinion testimony about the value of his property even when the opinion relies upon information from another.

Out-of-court statements are non-hearsay if they are offered for their independent legal significance where the utterance of the words is, in itself, an operative fact which gives rise to legal consequences.

Estate of Froemke 2023 ND 154
Docket No.: 20220321
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Davis, et al. v. Mercy Medical Center, et al. 2023 ND 153
Docket No.: 20220325
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: In a negligence action, a proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred.

A court will not disturb a jury’s damages verdict unless the verdict is so excessive or inadequate as to be without evidentiary support.

The jury must determine the damages to which a party is entitled within reasonable limits, based upon the evidence. If those limits have been exceeded, it is the court’s duty to make a proper reduction or grant a new trial.

Davis, et al. v. Mercy Medical Center, et al. 2023 ND 153
Docket No.: 20220325
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

State v. Kollie 2023 ND 152
Docket No.: 20220343
Filing Date: 8/17/2023
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: A sidebar addressing routine evidentiary or administrative matters during trial, even without an adequate record, is not a closure implicating the public trial right.

The plain language of the statute criminalizing murder provides alternative means of committing the offense. A jury is not required to unanimously agree upon which of the alternative means of committing murder it believes the State proved beyond a reasonable doubt.

For purposes of double jeopardy, criminal offenses are different if each offense contains an element not contained in the other offense.

Irrelevant evidence is not admissible.

Rights of a deceased victim may be exercised by family members and others as provided in N.D. Const. art. I, § 25(4). Section 25 does not provide for the court’s enforcement of a crime victim’s rights on behalf of a deceased victim absent the assertion by an individual listed under § 25(4).

An erroneous evidentiary ruling is disregarded as harmless error under N.D.R.Crim.P. 52(a) if it does not affect the defendant’s substantial rights.

State v. Kollie 2023 ND 152
Docket No.: 20220343
Filing Date: 8/17/2023
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Wootan v. State 2023 ND 151
Docket No.: 20230036
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: Once the State moves for summary judgment on a post-conviction application, the defendant must provide evidentiary support for their application in response to the State’s motion.

Summary judgment on a post-conviction application is proper when the defendant fails to provide evidentiary support to show a genuine issue of material fact.

Black Elk v. State 2023 ND 150
Docket No.: 20230035
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A part must preserve an issue in district court before it can be reviewed on appeal. A party must preserve a claim of error, as it relates to the admissibility of evidence, by objecting or moving to strike the evidence on record and stating a specific ground for exclusion.

This Court will exercise discretion rarely to consider issues not preserved in post-conviction proceedings, and will do so only if the error is plain and seriously affects the fairness, integrity, or public reputation of judicial proceedings.

A statement is not hearsay when it is offered simply to prove the statement was made. A petitioner at a post-conviction hearing is permitted to testify about the advice given to them by counsel as long as the testimony is submitted to simply show the advice was verbalized.

Advising a defendant that the defendant can deal with a material piece of evidence after a defendant has pled guilty and been sentenced by simply retracting or withdrawing the plea falls below an objectively reasonable standard of a defense attorney.

Goff v. NDDOT 2023 ND 149
Docket No.: 20230115
Filing Date: 8/2/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Substantially justified means justified to a degree that could satisfy a reasonable person.

Interest of D.M.H. (CONFIDENTIAL) 2023 ND 148
Docket No.: 20230028
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: Absent a change in circumstances, the juvenile court does not err in adopting a prior visitation schedule as the current visitation schedule.

Hennessey v. Milnor School District 2023 ND 147
Docket No.: 20230056
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Bahr, Douglas Alan

Highlight: In an appeal from a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the complaint is construed in the light most favorable to the plaintiff and well-pleaded allegations are accepted as true.

Undue influence is improper influence exercised in such a way and to such an extent as to destroy a person’s free agency or voluntary action by substituting for the person’s will the will of another.

In nontestamentary cases, undue influence requires three factors be established: (1) A person who can be influenced; (2) The fact of improper influence exerted; and (3) Submission to the overmastering effect of such unlawful conduct.

The law does not condemn all influence, only undue influence.

State, et al. v. Vetter 2023 ND 146
Docket No.: 20230031
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Rule 60(a), N.D.R.Civ.P., was designed to allow district courts to correct errors created by oversight or omission. Rule 60(a) does not authorize the court to change what has been deliberately done.

Gonzalez v. Perales 2023 ND 145
Docket No.: 20230026
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: To be appealable under N.D.C.C. § 28-27-02(1), an order must determine the action and prevent a judgment from which an appeal might be taken.

An order is not appealable under § 28-27-02(5) unless, in effect, it finally determines some substantive legal right of appellant or is dispositive of a substantive issue.

Final order under section 14-14.1-34, N.D.C.C. [UCCJEA §314 (1997)], means an order that finally determines some substantive legal right of a party or is dispositive of a substantive issue.