Opinions

Interest of S.B. 2024 ND 56
Docket No.: 20240043
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Nelson 2024 ND 55
Docket No.: 20230346
Filing Date: 4/4/2024
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: If a defendant’s crime and revocation of probation occurred after the 2021 amendment to N.D.C.C. § 12.1-32-07(6), a district court may resentence the defendant up to the maximum allowed at the time of his original sentence.

State v. Thornton, et al. 2024 ND 54
Docket No.: 20240017
Filing Date: 4/4/2024
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Tufte, Jerod E.

Highlight: We exercise our authority to issue supervisory writs rarely and cautiously on a case-by-case basis and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists. Our authority to issue a supervisory writ is discretionary. We generally will not exercise our supervisory jurisdiction where the proper remedy is an appeal.

The plain language of the statute gives the Department the authority to approve the secondary process of the risk assessment and the responsibility to perform that secondary process, and the statutory definition of “risk assessment” is not a rule of procedure subject to being superseded by court rule.

Dahms v. Legacy Plumbing 2024 ND 53
Docket No.: 20230349
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Bahr, Douglas Alan

Highlight: Conduct constituting a breach of contract does not create a tort for negligence, unless the defendant’s conduct also establishes a breach of an independent duty that does not arise from the contract.

Speculation is not enough to defeat a motion for summary judgment, and when reasonable persons can reach only one conclusion from the evidence a court may grant summary judgment.

This Court does not review issues which are raised for the first time on appeal.

Whitetail Wave v. XTO Energy, et al. 2024 ND 52
Docket No.: 20230283
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Interest of Y.R. 2024 ND 51
Docket No.: 20240063
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Happel v. State 2024 ND 50
Docket No.: 20230338
Filing Date: 3/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Adoption of R.E.M. (CONFIDENTIAL) 2024 ND 49
Docket No.: 20230321
Filing Date: 3/18/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order denying a petition for adoption is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Driver 2024 ND 48
Docket No.: 20230259
Filing Date: 3/18/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: The scope of an opening statement rests largely in the discretion of the trial court, and this Court will not reverse a conviction on the ground that the opening statement was prejudicial unless there is a clear abuse of that discretion.

Forfeiture is the failure to timely assert a right, which is reviewed for obvious error. The burden to show an obvious error is on the appellant.

A denial of a motion for judgment of acquittal is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Glaum 2024 ND 47
Docket No.: 20230190
Filing Date: 3/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A district court’s order denying a defendant’s withdrawal of guilty pleas is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance of counsel, the defendant may pursue the ineffectiveness claim at a postconviction proceeding where an adequate record can be made.

A defendant reserves the right to appeal non-jurisdictional claims and defenses when the defendant enters a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2).

A district court’s decision on a motion for recusal alleging bias is reviewed under the abuse of discretion standard.

A criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by N.D. Const. art. I, § 12. A four-factor balancing test is used to evaluate the validity of a speedy trial claim: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused.

The abuse of discretion standard applies to a district court’s decision to deny a continuance and allow an information to be amended.

When a party fails to provide supporting argument for an issue he is deemed to have waived that issue. Arguments not adequately articulated, supported, and briefed are not considered on appeal.

Petro-Hunt v. Tank, et al. 2024 ND 46
Docket No.: 20230015
Filing Date: 3/18/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: Assignments and deeds are interpreted in the same manner as contracts, with the primary purpose to ascertain and effectuate the parties’ or grantor’s intent.

The primary objective in interpreting a statute is to determine the intent of the legislation.

The right to an accounting in all cases is a preliminary question which must be answered in the affirmative before the actual accounting is ordered. The party claiming the relief has the burden of proving its right to the accounting. If not so proved, there is no right to an accounting and the cause is to be dismissed.

Vacancy in Judgeship No. 3, SCJD 2024 ND 45
Docket No.: 20240006
Filing Date: 3/7/2024
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Washburn.

Meuchel v. Red Trail Energy 2024 ND 44
Docket No.: 20230127
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: A district court did not abuse its discretion in denying a member’s request for certain information in a board-managed limited liability company under the applicable statute governing an LLC member’s right to information.

A district court did not abuse its discretion in awarding attorney’s fees after denying a motion to compel discovery.

A facially valid motion to compel requires two components, an actual certification document and performance. Performance has two elements: the first element of performance is good faith, and the second element is conferring or attempting to confer.

Interest of A.P. (CONFIDENTIAL) 2024 ND 43
Docket No.: 20230404
Filing Date: 3/7/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: A juvenile court order terminating parental rights is reversed. The court’s findings on termination are clearly erroneous because the findings are not supported by evidence in the record. The juvenile court abused its discretion by relying on affidavits in the file that were not received into evidence.

State v. Henderson 2024 ND 42
Docket No.: 20230253
Filing Date: 3/7/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Interest of R.K. 2024 ND 41
Docket No.: 20240062
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Papenhausen v. ConocoPhillips Co. 2024 ND 40
Docket No.: 20230280
Filing Date: 3/7/2024
Case Type: Certified Question - Civil - Civil
Author: Tufte, Jerod E.

State v. Wiese 2024 ND 39
Docket No.: 20230220
Filing Date: 3/7/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Archambault v. State 2024 ND 38
Docket No.: 20230336
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: To prevail on an ineffective assistance of counsel claim under the Strickland test, the applicant must show: (1) counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Courts need not address both prongs of the Strickland test. If a court can resolve the case by addressing only one prong, it is encouraged to do so.

Based on the state of the law, trial counsel’s failure to object to the jury using the laptop in the jury room, a laptop that only permitted the video to be heard and viewed, did not fall below an objective standard of reasonableness.

Weber v. NDDOT 2024 ND 37
Docket No.: 20230354
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A driver arrested for driving under the influence of alcohol was provided a reasonable opportunity to consult with counsel when he was permitted to use his cellphone to call a third party to help contact an attorney and made no additional requests or attempts to contact counsel.

Interest of J.C. (CONFIDENTIAL)(consolidated w/ 20230378) 2024 ND 36
Docket No.: 20230377
Filing Date: 3/7/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court errs when it relies on facts which are outside of the evidentiary record when exercising its discretion to terminate parental rights.

Disciplinary Board v. Pilch 2024 ND 35
Docket No.: 20240023
Filing Date: 2/22/2024
Case Type: Discipline - Attorney - Disbarment
Author: Per Curiam

Highlight: Lawyer disbarred.

Garaas, et al. v. Petro-Hunt 2024 ND 34
Docket No.: 20230200
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: A dismissal without prejudice is appealable if the judgment has the practical effect of terminating litigation in the plaintiffs’ chosen forum.

Administrative exhaustion is required when the issues raised in the case are within the jurisdiction of an administrative agency and there are issues of fact in dispute.

State v. Rinde 2024 ND 33
Docket No.: 20230285
Filing Date: 2/22/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

NDIC v. Gould, et al. 2024 ND 32
Docket No.: 20230188
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Lien priority usually is based on its date of perfection.

North Dakota follows the "American Rule" by which successful litigants are not allowed to recover attorney's fees unless authorized by contract or statute.

Appeals involving questions of first impression typically are not frivolous.

Nelson v. Nelson, et al. 2024 ND 31
Docket No.: 20230264
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court must weigh all four Stout-Hawkinson factors when determining whether a moving parent can relocate to a different state with the children.

Williams v. Vraa, et al. 2024 ND 30
Docket No.: 20230248
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A court’s determination that a petitioner did not establish a prima facie case to support an award of nonparent visitation is reviewed de novo.

When we interpret and apply provisions in a uniform law, it must be construed to effectuate its general purpose and we may look to official editorial board comments for guidance.

When considering whether a parent is a consistent caretaker, the 12-month requirement of N.D.C.C. § 14-09.4-03(2)(a) need not be consecutive months and need not be immediately preceding the petition when the nonparent caretaker continues significant contact with the child.

A party seeking a nonparent visitation is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting declarations, sufficient facts which, if uncontradicted, would support an award of nonparent visitation. In determining whether a prima facie case has been established, the trial court must accept the truth of the moving party’s allegations.

State v. Fischer 2024 ND 29
Docket No.: 20230239
Filing Date: 2/22/2024
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A district court can accept a guilty plea without accepting a plea agreement. When considering a plea agreement, the court can reject a guilty plea until it accepts the plea agreement or sentences the defendant.

A defendant cannot receive the benefit of a bargained for plea agreement when the State and the defendant are not bound by the whole plea agreement.

The judge’s comments in court explaining his decision does not create bias when they are made before a jury is empaneled, the jury does not hear the comments, and the comments are not part of the jury’s deliberations.

Disciplinary Board v. Spencer 2024 ND 28
Docket No.: 20240012
Filing Date: 2/9/2024
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended and placed on two-year suspension with conditions.

Keller v. Keller, et al. 2024 ND 27
Docket No.: 20230258
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Contempt of Court
Author: Bahr, Douglas Alan

Highlight: A district court’s finding of contempt will only be overturned if the court abused its discretion.

A district court’s award of attorney’s fees will only be overturned if the court abused its discretion.

This Court does not consider arguments which are not adequately articulated, supported, and briefed.

WSI v. Kringlie, et al. 2024 ND 26
Docket No.: 20230184
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Bahr, Douglas Alan

Highlight: Under the Administrative Agencies Practice Act, courts exercise limited appellate review of administrative agency decisions.

A vocational rehabilitation plan is appropriate if it meets the statutory requirements and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.

While the validity of a vocational rehabilitation plan is assessed at the time it was formulated, a claimant’s pre-existing, non-work-related medical limitations are taken into account as they existed at the time of the work-related injury.

Don's Garden Center, et al. v. The Garden District, et al. 2024 ND 25
Docket No.: 20230270
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Landlord/Tenant
Author: Bahr, Douglas Alan

Sherwood v. Sherwood 2024 ND 24
Docket No.: 20230230
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Estate of Heath 2024 ND 23
Docket No.: 20230250
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al. 2024 ND 22
Docket No.: 20230240
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Mahad v. WSI, et al. 2024 ND 21
Docket No.: 20230332
Filing Date: 2/8/2024
Case Type: Appeal - Administrative - Workers Compensation
Author: Bahr, Douglas Alan

Highlight: The time to appeal a final administrative order begins when notice of the final order is mailed.

The time to appeal a final administrative order is not extended because the order is mailed.

Lyons v. State 2024 ND 19
Docket No.: 20230151
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: The requirements of the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, must be satisfied before an applicant can obtain relief under the Act.

When an applicant for postconviction relief is put to his proof, he must present competent admissible evidence by affidavit or other comparable means to obtain an evidentiary hearing. Unsupported conclusory allegations are insufficient.

State v. Good Bear 2024 ND 18
Docket No.: 20230193
Filing Date: 2/8/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: In determining if an out-of-court statement is admissible, the district court must first determine if the statement qualifies as hearsay under the rules of evidence. If not hearsay, then the statement is admissible; if it is hearsay, the court must then determine if it qualifies as an exception to the hearsay rule as outlined in the N.D.R.Ev. 803 and N.D.R.Ev. 804.

The excited utterance exception outlined in N.D.R.Ev. 803(2) is permitted regardless of the declarant’s availability to testify as a witness.

The amount of time that is permissible to lapse between the event and the statement, to allow the statement to qualify under the excited utterance exception, is more likely to be on the high end of the range permitted when the statement is made by a child, as a young child will likely remain excited longer than adults.

Even when a hearsay statement falls within an exception to the rule, it may not be admitted if the statement is testimonial in violation of the Sixth Amendment.

Landis v. State 2024 ND 17
Docket No.: 20230224
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: This Court only decides those issues which are thoroughly briefed and argued, and a party waives an issue by not providing adequate supporting argument.

Summary dismissal of an application for postconviction relief is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

LAWC Holdings v. Vincent Watford 2024 ND 16
Docket No.: 20230087
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Whether a party has breached a contract is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.

Generally, the prevailing party to a suit, for the purpose of determining who is entitled to costs, is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue, in other words, the prevailing party is the one in whose favor the decision or verdict is rendered and the judgment entered.

A successful litigant is not entitled to attorney’s fees unless they are expressly authorized by statute or by agreement of the parties.

Under N.D.C.C. § 32-03-09, no damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin.

An award of costs under N.D.C.C. § 28-26-10 is discretionary, and a district court’s decision on an award of disbursements under N.D.C.C. § 28-26-06 will be overturned on appeal only if an abuse of discretion is shown.

This Court and the district courts possess concurrent jurisdiction to award attorney’s fees on appeal; however, a preference exists that the initial determination be made by the district court.

Pinks, et al. v. Kelsch, et al. 2024 ND 15
Docket No.: 20230161
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: A two-pronged test is used when determining whether an interlocutory order is appealable. First, the order appealed from must meet one of the statutory criteria of appealability set forth in N.D.C.C. § 28-27-02. If it does, then Rule 54(b) under the North Dakota Rules of Civil Procedure must be complied with. An appeal will not be considered in a multi-claim or multi-party case which disposes of fewer than all claims against all parties unless the district court has first independently assessed the case and determined that a Rule 54(b) certification is appropriate.

Swanson v. State 2024 ND 14
Docket No.: 20230249
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Interest of R.S. 2024 ND 13
Docket No.: 20230410
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Stancel v. Stancel, et al. 2024 ND 12
Docket No.: 20230287
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court divorce judgment and order denying cross motions for contempt are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Plaisimond v. State 2024 ND 11
Docket No.: 20230252
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Estate of Lindberg 2024 ND 10
Docket No.: 20230102
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: Before we consider the merits of an appeal, we must first confirm we have jurisdiction. A motion filed under N.D.R.Civ.P. 59(j) and 60(b)(6) within 28 days of the notice of entry of judgment or order tolls the time to appeal under N.D.R.App.P. 4(a)(3)(A)(iv) and (vi).

“Genetic father” means the man whose sperm fertilized the egg of a child’s genetic mother. If the father-child relationship is established under the presumption of paternity under subdivision a, b, or c of subsection 2 of section 14-20-07, the term means only the man for whom that relationship is established.

A presumption of paternity requires the presumptive father, for the first two years of the child’s life, to reside in the same household with the child and openly hold the child out as his own.

When the spouse of a genetic parent adopts an individual, the individual adoptee obtains a parent-child relationship with the adoptive step-parent but may still inherit from the other genetic parent.

Interest of J.C. (CONFIDENTIAL)(consolidated w/ 20230378) 2024 ND 9
Docket No.: 20230377
Filing Date: 1/22/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court errs when it relies on facts which are outside of the evidentiary record when exercising its discretion to terminate parental rights.

Hoover v. NDDOT 2024 ND 8
Docket No.: 20230226
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Bahr, Douglas Alan

Highlight: An administrative agency does not afford a petitioner a fair hearing when the agency receives exhibits into evidence without first providing the petitioner the opportunity to examine them.

State v. Williamson 2024 ND 7
Docket No.: 20230205
Filing Date: 1/10/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

State v. Salou 2024 ND 6
Docket No.: 20230196
Filing Date: 1/10/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Rule 28(b)(7)(B), N.D.R.App.P., requires an appellant’s brief to have a statement of the applicable standard of review and a citation to the record showing that the issue was preserved for review, or a statement of grounds for seeking review of an issue that was not preserved. A preserved evidentiary issue is reviewed under the abuse of discretion standard, and an unpreserved evidentiary issue is reviewed for obvious error.

There was sufficient evidence for a jury to draw an inference reasonably tending to prove the charged offense.