Opinions

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).

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

State v. Hultberg 2022 ND 78
Docket No.: 20210301
Filing Date: 4/14/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of indecent exposure is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Hultberg 2022 ND 78
Docket No.: 20210301
Filing Date: 4/14/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Hoff v. State 2022 ND 77
Docket No.: 20210291
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Hoff v. State 2022 ND 77
Docket No.: 20210291
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Ali v. State 2022 ND 76
Docket No.: 20210335
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: If the State moves for summary dismissal of an application for postconviction relief, the applicant must present competent admissible evidence which raises a genuine issue of material fact.

Ali v. State 2022 ND 76
Docket No.: 20210335
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Schultz v. DeClusin 2022 ND 75
Docket No.: 20210315
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An amended judgment and money judgment awarding a parent primary residential responsibility and attorney’s fees is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Schultz v. DeClusin 2022 ND 75
Docket No.: 20210315
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

State v. Heywood 2022 ND 74
Docket No.: 20210259
Filing Date: 4/14/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Heywood 2022 ND 74
Docket No.: 20210259
Filing Date: 4/14/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Schauer v. Peterson 2022 ND 73
Docket No.: 20210250
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

City of Bismarck v. Goodwin 2022 ND 72
Docket No.: 20210210
Filing Date: 4/14/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: When a defendant enters a conditional guilty plea, this Court reviews an adverse determination of a specified pretrial motion.

Reviewing a district court’s decision to reject jury instructions would be an advisory opinion.

City of Bismarck v. Goodwin 2022 ND 72
Docket No.: 20210210
Filing Date: 4/14/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Gaede v. State 2022 ND 71
Docket No.: 20210336
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Gaede v. State 2022 ND 71
Docket No.: 20210336
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Holmes v. State 2022 ND 70
Docket No.: 20210284
Filing Date: 4/14/2022
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)(6) and (7).

Holmes v. State 2022 ND 70
Docket No.: 20210284
Filing Date: 4/14/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Interest of M.R. (CONFIDENTIAL) 2022 ND 68
Docket No.: 20210204
Filing Date: 3/31/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Tufte, Jerod E.

Highlight: The Court does not render advisory opinions, and an appeal will be dismissed if the issues become moot or academic, leaving no actual controversy to be determined.

An appeal is not moot if the district court’s decision continues to have collateral consequences for the appealing party. Collateral consequences cannot be too remote or speculative and cannot be duplicative of preexisting consequences.

Interest of M.R. (CONFIDENTIAL) 2022 ND 68
Docket No.: 20210204
Filing Date: 3/31/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Tufte, Jerod E.

Burris v. Burris 2022 ND 67
Docket No.: 20210178
Filing Date: 3/31/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: An order denying the elimination or modification of a spousal support obligation affects a substantial right and can be appealed to this Court.

A voluntary payment of an award of attorney’s fees renders the issue moot and waives the party’s right to appeal that issue.

Whether there has been a material change in circumstances warranting modification or elimination of the spousal support obligation is subject to the clearly erroneous standard of review.

Section 14-05.24.1, N.D.C.C., dealing with spousal support awards, does not provide for retroactive effect. Where there was no change to a 2006 judgment, the statute cannot be applied retroactively.

Burris v. Burris 2022 ND 67
Docket No.: 20210178
Filing Date: 3/31/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Beck v. NDDOT 2022 ND 66
Docket No.: 20210312
Filing Date: 3/31/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Jensen, Jon J.

Highlight: Section 39-08-01(1)(a), N.D.C.C., provides that a person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if that person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.

At an administrative hearing, a report and notice form is prima facie evidence of its contents, including the time of driving. The time of driving may be placed into question at the administrative hearing, such as by cross-examining the testifying officer at the hearing.

While reasonable inferences can be drawn from the evidence at an administrative hearing, a reasoning mind must be able to reasonably find the Department met its burden of proving the chemical test was administered within two hours of the time of the driving.

Beck v. NDDOT 2022 ND 66
Docket No.: 20210312
Filing Date: 3/31/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Jensen, Jon J.

St. Alexius Medical Center v. Nesvig, et al. 2022 ND 65
Docket No.: 20220005
Filing Date: 3/17/2022
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Highlight: This Court’s power to issue supervisory writs is discretionary and is used only to rectify errors and prevent injustice where no adequate alternative remedy exists.

Peer review records are privileged and not subject to discovery in any civil action.

When a party withholds discoverable information because it is privileged, the party must expressly make a claim of privilege and describe the nature of the documents in a manner that, without revealing the information, enables other parties to assess the claim.

We look first at the words of the peer review statute, then determine how they apply to the procedure established by N.D.R.Civ.P. 26.

District Courts have discretion to conduct an in camera review of documents if a party challenges a claim of privilege identified in an adequate privilege log.

St. Alexius Medical Center v. Nesvig, et al. 2022 ND 65
Docket No.: 20220005
Filing Date: 3/17/2022
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Schrodt v. Schrodt, et al. 2022 ND 64
Docket No.: 20210211
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The district court did not abuse its discretion when it denied the request for a continuance.

The district court’s property valuations were not clearly erroneous.

An award of parenting time with appropriate restrictions is not clearly erroneous when based on evidence in the record.

When a child support obligor is underemployed, the district court is permitted under the child support guidelines to impute income to the obligor.

The district court has inherent authority to award attorney’s fees as a sanction for a litigant’s misconduct.

Schrodt v. Schrodt, et al. 2022 ND 64
Docket No.: 20210211
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Twin City Technical, et al. v. Williams Cty, et al. 2022 ND 63
Docket No.: 20210157
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: The law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings, and a party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal. The mandate rule requires the district court to follow the appellate court’s pronouncements on legal issues in subsequent proceedings in the case and to carry the appellate court’s mandate into effect according to its terms.

Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay.

A court has broad discretion under N.D.C.C. § 32-03-05 in determining whether to award prejudgment interest.

In an equitable proceeding there is no absolute right to a trial by jury.

Under N.D.R.Civ.P. 37(a)(1), a party moving for an order compelling discovery must certify that it has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action. The Court reviews an order compelling discovery under the abuse of discretion standard.

A district court is considered an expert in determining the amount of attorney’s fees, and its decision concerning the amount and reasonableness of the attorney’s fees will not be overturned on appeal absent a clear abuse of discretion. Electronic legal research fees are a component of attorney’s fees and cannot be separately taxed as expenses.

Twin City Technical, et al. v. Williams Cty, et al. 2022 ND 63
Docket No.: 20210157
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Adoption of A.A.H. (CONFIDENTIAL) 2022 ND 62
Docket No.: 20220045
Filing Date: 3/17/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An adoption decree terminating a father’s parental rights and granting a petition for adoption is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Adoption of A.A.H. (CONFIDENTIAL) 2022 ND 62
Docket No.: 20220045
Filing Date: 3/17/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Canerdy v. Canerdy, et al. 2022 ND 61
Docket No.: 20210262
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court’s contempt decision will only be disturbed on appeal if the court abused its discretion.

Technical violations of a court order do not necessarily require a finding of contempt.

A party seeking to modify primary residential responsibility who provides competent evidence demonstrating a prima facie case for modification is entitled to an evidentiary hearing.

Canerdy v. Canerdy, et al. 2022 ND 61
Docket No.: 20210262
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Fourth v. State 2022 ND 60
Docket No.: 20210285
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Fourth v. State 2022 ND 60
Docket No.: 20210285
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

State v. Bazile 2022 ND 59
Docket No.: 20210261
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: In reviewing a claim of prosecutorial misconduct, this Court first determines whether the prosecutor’s actions were misconduct, then examines whether the misconduct had a prejudicial effect.

A curative jury instruction generally removes prejudice caused by improper statements because the jury is presumed to follow a court’s instruction.

The North Dakota Rules of Criminal Procedure do not require a district court to state findings on the record when a motion is made during trial.

State v. Bazile 2022 ND 59
Docket No.: 20210261
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Interest of T.H. (CONFIDENTIAL) (consolidated w/20220028-20220030) 2022 ND 58
Docket No.: 20220027
Filing Date: 3/17/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of T.H. (CONFIDENTIAL) (consolidated w/20220028-20220030) 2022 ND 58
Docket No.: 20220027
Filing Date: 3/17/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Kaspari v. Kaspari 2022 ND 57
Docket No.: 20210192
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: When spousal support is awarded, the district court is not required to provide a detailed calculation of the requesting spouse’s need for support, but the court is required to provide a discernable basis for its decision.

Kaspari v. Kaspari 2022 ND 57
Docket No.: 20210192
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

State v. Almklov (consolidated w/20210163) 2022 ND 56
Docket No.: 20210162
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgments entered after a jury found the defendant guilty of attempted murder, aggravated assault with a dangerous weapon, two counts of providing false information to law enforcement, burglary, and theft of property are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Almklov (consolidated w/20210163) 2022 ND 56
Docket No.: 20210162
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

State v. Schuh 2022 ND 55
Docket No.: 20210257
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of attempted murder is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Schuh 2022 ND 55
Docket No.: 20210257
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Gregory v. State 2022 ND 54
Docket No.: 20210307
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court order summarily dismissing a petition for post-conviction relief is reversed and remanded for further proceedings.

A district court may not order summary disposition in response to a request in a pleading, including the State’s answer to an application for post-conviction relief.

Gregory v. State 2022 ND 54
Docket No.: 20210307
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Hagen v. North Dakota Insurance Reserve Fund 2022 ND 53
Docket No.: 20210111
Filing Date: 3/17/2022
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: Courts have broad discretion when deciding whether to grant leave to amend a complaint. Amendments correcting technical deficiencies relate back to the date of the original pleading.

Agencies of political subdivisions are public entities subject to the open records law. “Agencies” refers to a relationship created by law or contract whereby one party delegates the transaction of some lawful business to another.

Except as otherwise specifically provided by law, all records of a public entity are public records. The plain meaning of “provided by law” does not operate to create additional open records exemptions arising from court rules defining privileges and discovery limitations. Rule 502, N.D.R.Ev., is an evidentiary rule applicable to court proceedings, and does not create a specific exception to the open records law. Under N.D.R.Ev. 502(d)(7), there generally is no attorney-client privilege as to a communication between a public officer or agency and its lawyers.

A public entity’s attorney work product must be made available for public disclosure following completion of litigation, unless disclosure would have an adverse fiscal effect on the conduct or settlement of other pending or reasonably predictable civil or criminal litigation or adversarial administrative proceedings, or the attorney work product reflects mental impressions, opinions, conclusions, or legal theories regarding potential liability of a public entity. If the potential for liability is entirely in the past, the record is no longer exempt. Only if the records relate to circumstances for which there remains a genuine potential for liability may the records remain exempt.

Under N.D.C.C. § 44-04-21.2(1), awarding costs and attorney’s fees is discretionary and a court’s decision will not be reversed absent an abuse of discretion.

Hagen v. North Dakota Insurance Reserve Fund 2022 ND 53
Docket No.: 20210111
Filing Date: 3/17/2022
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 52
Docket No.: 20210273
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: When this Court remands for the district court to review an executive session of a board in-camera, the directive for an in-camera review becomes the law of the case when challenged on appeal.

Section 44-04-19.1(5), N.D.C.C., defining an attorney consultation exemption for open meetings, is unambiguous and provides two separate avenues for a governing body to close an open meeting.

Portions of a meeting recording that do not fit within the definition of “attorney consultation” must be made public.

While attorney’s fees are not mandated when a party brings forth a civil action rather than an administrative action alleging an open records violation, the type of action brought and how much information the party receives are not rational considerations in deciding whether to award attorney’s fees.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 52
Docket No.: 20210273
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Sproule, et al. v. Johnson, et al. 2022 ND 51
Docket No.: 20210235
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: When supervising a partnership’s dissolution, a district court has discretion to decide what is fair and equitable under the circumstances.

Valuation is a question of fact. This Court presumes a district court’s valuations are correct, and a valuation within the range of evidence presented at trial is not clearly erroneous.

Sproule, et al. v. Johnson, et al. 2022 ND 51
Docket No.: 20210235
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Rogers v. State 2022 ND 50
Docket No.: 20210260
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Rogers v. State 2022 ND 50
Docket No.: 20210260
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

State v. Fleck 2022 ND 49
Docket No.: 20210160
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Jensen, Jon J.

Highlight: Prosecution of a crime is authorized in any county where part of the offense occurred.

In reviewing the sufficiency of the evidence to convict, this Court on appeal looks only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.

A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.

State v. Fleck 2022 ND 49
Docket No.: 20210160
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Jensen, Jon J.

Interest of R.S. (CONFIDENTIAL) 2022 ND 48
Docket No.: 20220039
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

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

Interest of R.S. (CONFIDENTIAL) 2022 ND 48
Docket No.: 20220039
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

State v. Lusby 2022 ND 47
Docket No.: 20210266
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Lusby 2022 ND 47
Docket No.: 20210266
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

State v. McGinnis (consolidated w/20210217) 2022 ND 46
Docket No.: 20210216
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Highlight: The pre-amendment version of N.D.C.C. § 12.1-32-07(6) unambiguously restrains a district court’s authority in probation revocation cases to imposition of the sentence initially imposed, but suspended.

When we reinterpreted N.D.C.C. § 12.1-32-07(6) in Dubois v. State, 2021 ND 153, 963 N.W.2d 543, to correct our prior misinterpretation of the statute, we were declaring what the statute has meant at all times before it was amended effective August 1, 2021.

When a defendant is resentenced after revocation of probation, the court imposes an illegal sentence if it resentences the defendant in excess of the suspended sentence imposed in the judgment of conviction.

State v. McGinnis (consolidated w/20210217) 2022 ND 46
Docket No.: 20210216
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Harty Insurance v. Holmes, et al. 2022 ND 45
Docket No.: 20210205
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: A district court’s summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6), and double costs and attorney’s fees are awarded under N.D.R.App.P. 38.

Harty Insurance v. Holmes, et al. 2022 ND 45
Docket No.: 20210205
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

State v. Gaddie 2022 ND 44
Docket No.: 20210187
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The purpose of jury instructions is to correctly and adequately advise the jury of the applicable law. Jury instruction must not be misleading or confusing. A conviction will be reversed based on an erroneous jury instruction only if it relates to a central subject in the case and affects a defendant’s substantial rights.

When a defendant faces multiple counts of the same offense, the jury instructions must identify the act underlying each count and factually distinguish between the counts or instruct the jury to unanimously agree on the act for each offense.

The elements of a crime may require different mental states. The term “willfully,” as defined by N.D.C.C. § 12.1-02-02(1)(e), is not necessarily inconsistent with a crime requiring a specific intent.

State v. Gaddie 2022 ND 44
Docket No.: 20210187
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Malloy, et al. v. Behrens 2022 ND 43
Docket No.: 20210155
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An appeal is not moot when the appellant fails to request a stay on an order directing the sale of homestead property if the property was sold to a party interested in the action and the sale is not yet final.

In proceedings to force the sale of homestead property to satisfy a judgment, there must be an execution levied upon the property at the time of the petition for an appraisal of the property.

Malloy, et al. v. Behrens 2022 ND 43
Docket No.: 20210155
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Vacancy in Judgeship No. 6, ECJD 2022 ND 42
Docket No.: 20220042
Filing Date: 2/25/2022
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Vacancy in Judgeship No. 6, ECJD 2022 ND 42
Docket No.: 20220042
Filing Date: 2/25/2022
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Baker v. Autos, Inc., et al. 2022 ND 41
Docket No.: 20210202
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A district court’s decision on a motion for a new trial is reviewed for abuse of discretion.

The law of the case doctrine and the mandate rule restrict proceedings on remand to the district court.

Jury instructions should fairly inform the jury of the law applicable to the case.

Baker v. Autos, Inc., et al. 2022 ND 41
Docket No.: 20210202
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John