Opinions

State v. Larsen (consolidated w/20220375 & 20220376) 2023 ND 144
Docket No.: 20220374
Filing Date: 8/2/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively. Therefore, upon revocation of a conviction and sentence entered prior to August 1, 2021, a district court’s ability to resentence a defendant is limited to the previously imposed, but suspended, sentence.

State v. Larsen (consolidated w/20220375 & 20220376) 2023 ND 144
Docket No.: 20220374
Filing Date: 8/2/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

DOCR v. Louser, et al. 2023 ND 143
Docket No.: 20230117
Filing Date: 8/2/2023
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Jensen, Jon J.

Highlight: The Department of Corrections and Rehabilitation has broad authority under N.D.C.C. § 54-23.3-01 to supervise offenders and probationers when directed by the district court.

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

Zavanna v. Gadeco, et al. 2023 ND 142
Docket No.: 20220265
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: The plaintiff bears the burden of proof on its quiet title claim. Where the plaintiff owns a top lease and the defendant owns a bottom lease covering the same oil and gas leasehold interest, the plaintiff bears the burden to prove the bottom lease terminated by its own terms. If the bottom lease contains a cessation of production clause, the plaintiff must prove production ceased for the specified period.

Oil and gas leases are interpreted in the same manner as other contracts. When left undefined, “production” in a savings clause means production in paying quantities, which generally requires a court to consider whether the well yielded a profit over operating costs over a reasonable period of time. As a matter of law, a de minimis amount of production does not equate to production in paying quantities. Where profitability of the well is not at issue so as to affect when production in paying quantities ceased, cessation commences on the first day of no production and ends on the last day of no production. If a total cessation of production exceeds the time period established in the lease’s cessation of production clause, the lease terminates unless it provides conditions preventing termination. In this case, a total cessation of production, including de minimis amounts, triggered the cessation of production clause requiring the well operator to timely commence reworking operations.

Reworking operations must be intimately connected with resolving the physical difficulty that caused the well to cease production, and the well operator must exercise due diligence and make a bona fide effort to restore production as soon as possible. Minimal preparatory steps, such as diagnosing the failure and ordering parts, do not constitute commencement of reworking operations.

An express force majeure clause in a contract must be accompanied by proof that the failure to perform was proximately caused by a contingency and that, in spite of skill, diligence, and good faith on the promisor’s part, performance remains impossible or unreasonably expensive. The party relying on a force majeure clause to excuse performance bears the burden of proving that the event was beyond its control and without its fault or negligence. The party relying on the force majeure clause must show its performance was actually hindered or prevented by the force majeure event, not just potentially or hypothetically hindered or prevented.

Zavanna v. Gadeco, et al. 2023 ND 142
Docket No.: 20220265
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Edison v. Edison 2023 ND 141
Docket No.: 20220290
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: North Dakota law forbids sex bias in custody determinations. Between the mother and father, whether married or unmarried, there is no presumption as to which parent will better promote the best interests and welfare of the child.

An obligor is underemployed if the obligor’s gross income from earnings is significantly less than this state’s statewide average earnings for persons with similar work history and occupational qualifications.

Edison v. Edison 2023 ND 141
Docket No.: 20220290
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Legacie-Lowe v. Lowe 2023 ND 140
Docket No.: 20220314
Filing Date: 5/9/2023
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.

Adoption of B.T.H. (CONFIDENTIAL) 2023 ND 139
Docket No.: 20230178
Filing Date: 7/19/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order and decree terminating parental rights to a minor child and granting a petition for adoption summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Bullinger v. Sundog Interactive, et al. 2023 ND 138
Docket No.: 20230007
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Corporations
Author: Jensen, Jon J.

Highlight: A district court must make adequate findings under N.D.R.Civ.P. 52(a)(1) to understand the basis for its decision.

Interest of B.R. (CONFIDENTIAL) (consolidated w/20230187) 2023 ND 137
Docket No.: 20230186
Filing Date: 7/19/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Redpaint v. State 2023 ND 136
Docket No.: 20230042
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: Postconviction relief is governed by statute, and its proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.

An application for postconviction relief must be filed within two years after the conviction becomes final unless there is newly discovered evidence, delay due to physical disability or mental disease, or newly interpreted law retroactively applicable.

Interest of G.R.D. 2023 ND 135
Docket No.: 20230023
Filing Date: 7/19/2023
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: A juvenile court’s order placing a child into the custody of the Division of Juvenile Services will not be reversed unless the court’s findings were clearly erroneous.

Otten v. Otten, et. al. 2023 ND 134
Docket No.: 20230019
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: A district court judgment dividing marital property, weighing the best interest factors and awarding parenting time is affirmed.

A district court has broad discretion over the progress and conduct of a trial, and the determination whether to grant a continuance lies within the sound discretion of the district court.

Under N.D.R.App.P. 38, this Court may award attorney’s fees if the 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.

Dogbe v. Dogbe, et al. 2023 ND 133
Docket No.: 20230037
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: To modify a primary residential responsibility order within the two-year period following the entry of the order the movant must make a prima facie case showing the requirements under N.D.C.C. § 14-09-06.6(5).

The district court can grant relief from an order if the party shows any of the reasons necessary for relief under N.D.R.Civ.P. 60(b).

Attorney's fees awarded by the district court will be reversed if the court abused its discretion.

Hagen v. N.D. Insurance Reserve Fund 2023 ND 132
Docket No.: 20230025
Filing Date: 7/19/2023
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Jensen, Jon J.

Highlight: A district court’s review of in-camera documents is reviewed for an abuse of discretion.

A district court’s conclusion that attorney work product meets the potential liability exception under N.D.C.C. § 44-04-19.1(8) must include a finding that the records relate to circumstances for which there remains a genuine potential for liability.

A public entity that has a legal duty to defend its member agencies may be able to demonstrate that attorney work product is exempt from disclosure if disclosure would reveal records that relate to circumstances for which there remains a genuine potential for liability.

A district court must follow the pronouncements of an appellate court on legal issues in subsequent proceedings of the case.

State v. Knight 2023 ND 130
Docket No.: 20230020
Filing Date: 7/19/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A motion for new trial is reviewed for abuse of discretion.

Whether a jury verdict was coerced depends on the totality of the circumstances.

The district court does not abuse its discretion when it does not consider a juror declaration pertaining to the mental process of a juror during deliberations when deciding a motion for new trial.

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).