Opinions

Fleck v. Fleck, et al. 2023 ND 129
Docket No.: 20230011
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Mickelson, et al. v. City of Rolla 2023 ND 128
Docket No.: 20230009
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: If an entity violates section 44-04-18, N.D.C.C., an interested person or entity may not file a civil action seeking attorney’s fees or damages, or both, until at least three working days after providing notice of the alleged violation to the chief administrative officer for the public entity under N.D.C.C. § 44-04-21.2(3).

State v. Graff 2023 ND 127
Docket No.: 20220348
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: Dismissal of a criminal case with prejudice is a remedy that should only be used in extreme circumstances.

In order to dismiss a criminal case with prejudice, a district court must make a finding of bad faith, harassment, or prosecutorial misconduct, and this finding must be supported by clear and convincing evidence.

The State must be provided with notice, and an opportunity to respond, and lesser alternative sanctions must be considered before a district court may dismiss with prejudice.

It is an abuse of discretion when a district court fails to consider whether lesser sanctions are available or appropriate before dismissing a criminal case with prejudice.

State v. Graff 2023 ND 127
Docket No.: 20220348
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Interest of Gehlhoff 2023 ND 126
Docket No.: 20230005
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Tufte, Jerod E.

Highlight: When a district court concludes that an individual has a serious difficulty controlling behavior, its findings must identify recent conduct or describe anything that shows the individual has a “present serious difficulty controlling his behavior.”

State v. Sullivan 2023 ND 125
Docket No.: 20220337
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: When making an arrest without a warrant, the officer shall inform the person to be arrested of the officer’s authority and the cause of the arrest, unless an exception under N.D.C.C. § 29-06-17 applies.

Relevant factors in determining whether probable cause to arrest a person for a DUI exists include the detection of the odor of alcohol, observation of signs of impairment, the failure of one or more field sobriety tests, the individual has red and bloodshot eyes, an admission to having consumed an alcoholic beverage, the failure of the HGN test, a traffic violation, or erratic driving.

Estate of Ewing 2023 ND 124
Docket No.: 20220356
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Highlight: The district court does not err in finding an oral contract existed when no evidence existed that any party lacked the capacity to contract.

Agreeing to sell a party’s interest in estate property constitutes valid consideration.

The district court does not err in finding mutual assent was present when evidence existed that parties came to an agreement.

Substantial, permanent, and valuable improvements made to a property may be considered part performance sufficient to take an oral agreement outside of the statute of frauds.

The district court does not err in finding personal property items were distributed properly according to a previously created agreement.

The district court does not err in finding a personal representative failed to properly maintain the property when the personal representative failed to obtain home insurance, care for the exterior of the home, or pay utilities.

The district court does not abuse its discretion when it denies claims for reimbursement from a personal representative when the personal representative failed to provide evidence on what costs he incurred.

The district court may impose a remedial or punitive sanction for contempt when a personal representative breaches his fiduciary duty.

Estate of Ewing 2023 ND 124
Docket No.: 20220356
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Hegenes Apartment Management v. Borlay, et al. 2023 ND 123
Docket No.: 20220349
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: In a summary eviction proceeding, the right to the possession of the real estate is the only fact that can be litigated unless damages or rent is claimed.

Hegenes Apartment Management v. Borlay, et al. 2023 ND 123
Docket No.: 20220349
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Interest of C.A.S. 2023 ND 122
Docket No.: 20230130
Filing Date: 7/7/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: An appeal from a decision terminating parental rights must be filed within 30 days of entry of the order or judgment. The North Dakota Rules of Appellate Procedure do not authorize an extension. An appeal not filed within 30 days of entry of the order or judgment must be dismissed for lack of jurisdiction.

Part of a judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Brame 2023 ND 121
Docket No.: 20230024
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: District courts must substantially comply with N.D.R.Crim.P. 11 to ensure a defendant knowingly and voluntarily enters a guilty plea.

The Court remands to provide the State the opportunity to file transcripts to prove the district court substantially complied with N.D.R.Crim.P. 11.

Goetz v. Goetz, et al. 2023 ND 120
Docket No.: 20220231
Filing Date: 3/31/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court must make specific findings regarding whether a material change in circumstances resulted in a general decline or adversely affected the children in order to modify primary residential responsibility.

State v. Noble (consolidated w/20220364) 2023 ND 119
Docket No.: 20220363
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Highlight: When the sufficiency of evidence to support a criminal conviction is challenged, the record is reviewed on appeal to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

State v. Noble (consolidated w/20220364) 2023 ND 119
Docket No.: 20220363
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Interest of I.C. 2023 ND 118
Docket No.: 20230135
Filing Date: 6/21/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Laducer v. Laducer, et al. 2023 ND 117
Docket No.: 20230002
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order denying a motion to review and amend child support is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (8).

State v. Gardner 2023 ND 116
Docket No.: 20220360
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: A criminal judgment entered after a jury convicted defendant of child abuse in violation of N.D.C.C. § 14-09-22 is affirmed.

A district court’s use of “willfully allowed to be inflicted” in the jury instructions for an allegation of child abuse under N.D.C.C. § 14-09-22 is not obvious error if counsel fails to establish the instruction is a clear deviation from an applicable legal rule under current law.

The North Dakota Legislature chose to enumerate two alternative means of committing child abuse under N.D.C.C. § 14-09-22 without intending to define separate elements or crimes. A jury is not required to unanimously agree upon which of the two alternative means of committing child abuse it believes the State proved beyond a reasonable doubt.

State v. Coons 2023 ND 115
Docket No.: 20220289
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: A closure may occur where some or all members of the public are precluded from perceiving contemporaneously what is transpiring in the courtroom, because they can neither see nor hear what is going on. When questioning occurs at the bench, the public can still observe the proceedings, thus furthering the values that the public trial right is designed to protect, and can hear the general questions posed to the jury panel.

A trial court has great discretion over how to conduct a trial and to keep questioning within bounds and may remind counsel to refrain from further incursions into collateral and immaterial matters.

A district court has the common law power to explain, summarize, and comment on the facts and evidence and may also question witnesses and analyze and dissect the evidence. A court may not, however, act as a witness, nor add to or distort the evidence. If a judge exceeds the limitations on his power, it may amount to prejudicial error and require reversal.

State v. Coons 2023 ND 115
Docket No.: 20220289
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Asiama v. Asumeng, et al. 2023 ND 114
Docket No.: 20220307
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The district court must value marital property as of the valuation date.

The court must determine the marital property’s total value before making an equitable distribution.

A district court has broad discretion over the conduct of trial and presentation of evidence, and may impose reasonable restrictions on the length of the trial and on the number of witnesses allowed.

Asiama v. Asumeng, et al. 2023 ND 114
Docket No.: 20220307
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Orwig v. Orwig (consolidated w/ 20220248) 2023 ND 113
Docket No.: 20220247
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

Highlight: While the district court may direct a party prepare and submit to the court a proposed summary real estate disposition judgment, nothing in the relevant statute prohibits a party from submitting a proposed summary real estate disposition judgment for the court’s consideration absent direction from the court to do so.

A district court generally does not retain jurisdiction to modify a final property distribution, but the court has broad equitable powers to redistribute property in a post-judgment proceeding when a party fails to comply with the terms of an order distributing property.

A party seeking a contempt sanction has the burden to clearly and satisfactorily prove the alleged contempt was committed. Whether contempt has been committed lies within the district court’s discretion.

The district court has discretion in deciding what interest rate to apply to a monetary award in a divorce action.

Damages and single or double costs, including reasonable attorney’s fees, may be awarded on appeal if an appeal is frivolous. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Orwig v. Orwig (consolidated w/ 20220248) 2023 ND 113
Docket No.: 20220247
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

State v. Lonechild 2023 ND 112
Docket No.: 20230032
Filing Date: 6/8/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A defendant may be charged with escape under N.D.C.C. § 12.1-08-06 if they are in custody at a facility for custody of persons under charge or conviction of an offense, leave while participating in a work release program, and fail to return to the facility.

“Official detention” as defined by N.D.C.C. § 12.1-08-06(3)(b) precludes only “supervision on probation” and “constraint incidental to release.” The definition of “official detention” does not preclude custody while on probation.

Glasser v. State 2023 ND 111
Docket No.: 20230013
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Class A misdemeanors involving different crimes committed against different victims on different dates can be consecutively sentenced under N.D.C.C. § 12.1-32-11(3).

Whether a crime was committed as part of a different course of conduct is a mixed question of law and fact.

Interest of I.X.F. (CONFIDENTIAL) 2023 ND 110
Docket No.: 20230112
Filing Date: 6/8/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

O'Neal v. State 2023 ND 109
Docket No.: 20220353
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A district court’s order denying a post-conviction relief application based on newly discovered evidence and ineffective assistance of counsel is affirmed.

To succeed on a post-conviction relief claim based on newly discovered evidence a defendant must show 1) evidence was discovered after trial, 2) the failure to learn about the evidence was not the result of defendant’s lack of diligence, 3) the newly discovered evidence was material to the issues, and 4) the weight and quality of the evidence would likely have resulted in an acquittal.

To prove post-conviction relief based on ineffective assistance of counsel an applicant must 1) show that counsel’s representation fell below an objective standard of reasonableness and 2) show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of proceeding would have been different.

O'Neal v. State 2023 ND 109
Docket No.: 20220353
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Etemad v. State 2023 ND 108
Docket No.: 20220373
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The district court may summarily dismiss a petitioner’s application for post-conviction relief without giving notice when the application on its face is meritless and fails to allege any supporting facts.

Etemad v. State 2023 ND 108
Docket No.: 20220373
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Interest of T.H.P.B. (CONFIDENTIAL) 2023 ND 107
Docket No.: 20230106
Filing Date: 5/30/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Sanchez 2023 ND 106
Docket No.: 20220335
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The district court abuses its discretion when it allows testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements.

Allowing testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements will be considered harmless if the testimony of the witnesses was merely cumulative to that of the victim.

Substantial evidence existed to support the conviction and is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Brown v. State 2023 ND 105
Docket No.: 20220341
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

An attorney’s actions during voir dire are considered matters of trial strategy.

An unsuccessful trial strategy does not make defense counsel’s assistance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight.

State v. Johnson 2023 ND 104
Docket No.: 20220331
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions of domestic violence and false information or report to law enforcement are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Johnson 2023 ND 104
Docket No.: 20220331
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Rocket Dogs K-9 Aquatics & Wellness Center v. Derheim, et al. 2023 ND 103
Docket No.: 20220246
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: An attorney may not compromise a client’s claims in the absence of express authority, and an attorney may not waive a client’s substantial rights without the client’s consent. Whether an attorney has been given express authority to settle a claim normally presents a question of fact.

The trial court may take one of three possible avenues to decide a motion to enforce a settlement agreement: (1) hold an evidentiary hearing on the motion to determine disputed facts and then enter judgment after taking evidence to prove the agreement and any defenses that the nonmoving party may proffer, (2) dispose of the motion on the pleadings, or (3) treat the motion as akin to one for summary judgment.

Whether a party is entitled to a jury trial depends on whether the case is an action at law or a claim in equity. Historically, specific performance has been an equitable remedy, and no jury trial is available on such claims.

When conflicting testimony is presented, our ability to examine a cold record is a poor substitute for the fact finder’s opportunity to observe the demeanor of the witnesses.

Rocket Dogs K-9 Aquatics & Wellness Center v. Derheim, et al. 2023 ND 103
Docket No.: 20220246
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

State v. Heinrich 2023 ND 102
Docket No.: 20220339
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted defendant of one count of continuous sexual abuse of a child and two counts of promoting obscenity to minors is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Heinrich 2023 ND 102
Docket No.: 20220339
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Blue Steel Oil and Gas v. NDIC, et al. 2023 ND 101
Docket No.: 20220359
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: An operator of oil and gas wells may impose a statutory penalty on a mineral owner who does not lease or participate in the risks and cost of drilling.

A risk penalty may be imposed only if an operator has made a good-faith attempt to lease from a non-participating mineral owner.

Blue Steel Oil and Gas v. NDIC, et al. 2023 ND 101
Docket No.: 20220359
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Interest of P.S. (CONFIDENTIAL) 2023 ND 100
Docket No.: 20220298
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard. A district court’s decision will be affirmed unless it is induced by an erroneous view of the law or the decision is not supported by clear and convincing evidence.

Substantive due process requires that in order to be civilly committed as a sexually dangerous individual, that individual must have serious difficulty controlling their behaviors. There must be a connection between an individual’s disorder and their inability to control behavior such that it would likely result in future sexually predatory conduct. In establishing this connection, a district court cannot rely solely on prognostic factors, but must support its finding with contemporary evidence or specific instances of conduct to demonstrate serious difficulty controlling behavior.

Under N.D.C.C. § 25-03.3-13, the executive director of the Department of Human Services maintains authority to place a sexually dangerous individual in an appropriate facility or program at which treatment is available. A district court is not allowed to determine treatment placement under N.D.C.C. § 25-03.3-13 at a discharge hearing.

Interest of P.S. (CONFIDENTIAL) 2023 ND 100
Docket No.: 20220298
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Interest of G.L.D. (CONFIDENTIAL) 2023 ND 99
Docket No.: 20220295
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court order denying petition for discharge from civil commitment as a sexually dangerous individual is affirmed.

Interest of G.L.D. (CONFIDENTIAL) 2023 ND 99
Docket No.: 20220295
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Gwilliams v. Gwilliams 2023 ND 98
Docket No.: 20220149
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: Whether to stay enforcement of a judgment pending appeal is a collateral matter within the district court’s jurisdiction.

An order denying a motion for contempt and an order denying a motion for N.D.R.Civ.P. 60(b) relief from a divorce judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Gwilliams v. Gwilliams 2023 ND 98
Docket No.: 20220149
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

State v. Brown 2023 ND 97
Docket No.: 20220315
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: The court may modify or enlarge conditions of probation at any time before the expiration or termination of the period for which the probation remains conditional, upon notice to the probationer and with good cause. If the probationer violates a condition of probation, the court may continue the existing probation with or without modifying or enlarging the conditions or revoke probation and impose sentence.

A probationer is entitled to notice of the alleged violations of probation.

Where the court sets a revocation matter for review at a subsequent hearing without issuing a final order disposing of the petition, the petition remains pending until that later hearing and issuance of a final order.

State v. Brown 2023 ND 97
Docket No.: 20220315
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.