Opinions

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.

Chambering of Two New Judgeships in the East Central Judicial District 2023 ND 95
Docket No.: 20230122
Filing Date: 5/18/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Falcon v. Knudsen, et al. 2023 ND 94
Docket No.: 20220380
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: A district court order finding appellant did not establish a prima facie case for modification of primary residential responsibility and denying his motion to modify primary residential responsibility is affirmed.

A trial court makes no findings of fact when reviewing a party’s affidavits accompanying a motion to modify custody. Determination of whether the movant established a prima facie case entitling him to an evidentiary hearing is a question of law.

A district court’s order finding a movant did not establish a prima facie case for a change of primary residential responsibility is reviewed de novo.

A district court order denying appellant’s motion to disqualify appellee’s counsel is affirmed.

Falcon v. Knudsen, et al. 2023 ND 94
Docket No.: 20220380
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Matter of Shane Lance Yates 2023 ND 93
Docket No.: 20220370
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Per Curiam

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

Orders denying leave to file are not appealable.

Matter of Shane Lance Yates 2023 ND 93
Docket No.: 20220370
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Per Curiam

Matter of Amy Jo Yates 2023 ND 93
Docket No.: 20220371
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Per Curiam

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

Orders denying leave to file are not appealable.

Gartei v. Gartei 2023 ND 92
Docket No.: 20220358
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: A district court order denying a motion to vacate the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Kutcka, et al. v. Gateway Building Systems, et al. 2023 ND 91
Docket No.: 20220257
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Highlight: A general contractor is not the statutory employer of its subcontractor’s employees entitling it to immunity from suit under the exclusive remedy provisions of N.D.C.C. § 65-04-28.

An employee of a subcontractor operating under an agreement with a general contractor is deemed to be an employee of the general contractor for purposes of imposing liability on the general contractor for premium payments and applicable penalties when the subcontractor does not secure coverage or pay the premium owing.

Kutcka, et al. v. Gateway Building Systems, et al. 2023 ND 91
Docket No.: 20220257
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Nelson v. NDDOT 2023 ND 90
Docket No.: 20220355
Filing Date: 5/9/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

Nelson v. NDDOT 2023 ND 90
Docket No.: 20220355
Filing Date: 5/9/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

Highlight: Without a valid request for an on-site screening test, including a valid advisory, there can be no refusal to submit to screening under N.D.C.C. § 39-20-14.

State v. Walsh 2023 ND 89
Docket No.: 20220327
Filing Date: 5/9/2023
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A district court must inform the defendant of the court’s authority to order restitution before a guilty plea can be accepted.

Legacie-Lowe v. Lowe 2023 ND 88
Docket No.: 20220314
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The district court’s findings are inadequate to understand the basis for the decision.

The Court retains jurisdiction and remands for the district court to make specific findings of fact on whether there was infliction of fear of imminent domestic violence.

Legacie-Lowe v. Lowe 2023 ND 88
Docket No.: 20220314
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Johnson v. City of Jamestown 2023 ND 87
Docket No.: 20220283
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: A judgment dismissing a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Johnson v. City of Jamestown 2023 ND 87
Docket No.: 20220283
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Anderson v. Anderson 2023 ND 86
Docket No.: 20220287
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: All property held by either party, whether held jointly or individually, is considered marital property.

A capital loss may be used as a deduction for federal income tax purposes.

A contempt order is collateral to the merits of the case and appealable by special statute.

A party challenging a district court’s imposition of sanctions bears the burden of proving the court abused its discretion in light of the information available at the time.

Anderson v. Anderson 2023 ND 86
Docket No.: 20220287
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

E.R.J. v. T.L.B. (CONFIDENTIAL) 2023 ND 85
Docket No.: 20220199
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Paternity
Author: Tufte, Jerod E.

Highlight: A district court’s findings that changing a child’s name is in the best interests of a child satisfies the good cause standard under N.D.C.C. § 14-20-57(7).

Under section 14-03-20.1(2)-(3), N.D.C.C., a “person’s surname does not automatically change upon marriage,” but parties to a marriage may choose to change their name after solemnization “by entering the new surname in the space provided on the marriage license application.”

A district court may order a child’s name be changed to a hyphenated combination of the parents’ names when requested as an alternative by a parent even when a petition does not specifically request that option, provided that both parties have notice at the hearing and opportunity to respond.

E.R.J. v. T.L.B. (CONFIDENTIAL) 2023 ND 85
Docket No.: 20220199
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Paternity
Author: Tufte, Jerod E.

Nodak Ins. Co. v. Farm Family Casualty Ins. Co., et al. 2023 ND 84
Docket No.: 20220114
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Insurance
Author: Bahr, Douglas Alan

Highlight: Interpretation of an insurance policy is a question of law, fully reviewable on appeal.

If coverage hinges on an undefined term, the plain, ordinary meaning of the term applies in interpreting the contract.

While insurance policies are regarded as adhesion contracts and ambiguities are resolved in favor of the insured, a contract will not be rewritten to impose liability on an insurer if the policy unambiguously precludes coverage.

The phrase “similar insurance” used in an automatic termination or cessation provision means similar in type and in amount.

Nodak Ins. Co. v. Farm Family Casualty Ins. Co., et al. 2023 ND 84
Docket No.: 20220114
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Insurance
Author: Bahr, Douglas Alan

Vacancy in Judgeship No. 3, NWJD 2023 ND 83
Docket No.: 20230068
Filing Date: 4/26/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Williston.

State v. Smith 2023 ND 82
Docket No.: 20220162
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: When a party asserts prosecutorial misconduct for the first time on appeal, this Court may review for obvious error.

Questioning by the State regarding relevant evidence in the case may not amount to a prosecutor stating his personal belief on a defendant’s claim of self-defense nor prosecutorial misconduct.

Questioning by the State will not warrant reversal when such questions were invited by the defense.

Questions regarding potential weaknesses of a defendant’s case does not amount to burden shifting, particularly when the jury is reminded numerous times throughout trial that the burden is on the State.

Non-public exchanges, such as brief sidebars or bench conferences, between counsel and the court on routine evidentiary issues, technical legal issues, and administrative issues are not public trial violations.

The district court does not abuse its discretion by allowing expert testimony when it found the testimony was relevant, not overly cumulative, and properly noticed.

State v. Smith 2023 ND 82
Docket No.: 20220162
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

State v. Schaf 2023 ND 81
Docket No.: 20220323
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: The district court decides the qualifications of the witness to express an opinion on a given topic. The decision whether to admit expert witness testimony rests within the court’s discretion.

For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser. It also must be impossible to commit the greater offense without committing the lesser.

While a sexual contact charge may be a lesser included offense contained within a sexual act charge, the subsections of both offenses must be compatible and the evidence must support an inclusion.

An alleged error with jury instructions will be reviewed for obvious error when the instructions were not objected to at trial and proposed instructions were not provided to the district court.

Voluntary intoxication is irrelevant to a crime of general intent.