Opinions

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

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.

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

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.

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

State v. Hannesson 2023 ND 80
Docket No.: 20220244
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Ordering a mistrial is an extreme remedy that is only appropriate when there is a fundamental defect or occurrence at trial that makes it evident that continuing would be productive of manifest injustice.

Curative jury instructions will generally remove prejudice caused by a prosecutor’s improper statements because a jury is presumed to follow the district court’s instructions.

State v. Hannesson 2023 ND 80
Docket No.: 20220244
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Hanson v. Hettervig, et al. 2023 ND 79
Docket No.: 20220261
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order of contempt and an amended order of contempt and award of attorney’s fees are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Hanson v. Hettervig, et al. 2023 ND 79
Docket No.: 20220261
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Fietzek v. Fietzek 2023 ND 78
Docket No.: 20220236
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A district court’s finding on a valuation of real property is not clearly erroneous if it is within the range of evidence presented.

A district court’s finding on economic fault will not be reversed unless the finding is clearly erroneous.

A district court has broad discretion to award attorney’s fees.

An award of spousal support must be supported by sufficient findings.

Fietzek v. Fietzek 2023 ND 78
Docket No.: 20220236
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

State v. Frederick 2023 ND 77
Docket No.: 20220070
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: Jensen, Jon J.

Highlight: In the instance of an alleged public trial violation, an appellant must demonstrate the public was excluded from a proceeding taking place during trial, and that the proceeding was substantive in nature.

A district court closing a proceeding to the public is significantly different from the court failing to make an adequate record of a bench conference conducted in an open trial. An inadequate record is not equivalent to a closed trial.

To demonstrate that an inadequate record affects a defendant’s substantial rights, the defendant must demonstrate the record cannot be adequately supplemented or reconstructed.

A violation of Appendix 1, Standard 7(d), N.D. Sup. Ct. Admin. R. 9 is not per se reversible error.

State v. Frederick 2023 ND 77
Docket No.: 20220070
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: Jensen, Jon J.

Sandberg v. WSI, et al. 2023 ND 76
Docket No.: 20220354
Filing Date: 4/13/2023
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Sandberg v. WSI, et al. 2023 ND 76
Docket No.: 20220354
Filing Date: 4/13/2023
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Highlight: WSI can exercise continuing jurisdiction under N.D.C.C. § 65-05-04, but is limited by the law-of-the-case doctrine.

N.D.C.C. § 65-05-15 applies when a prior injury known in advance of the work injury has caused previous interference with physical function, the progression of which is substantially worsened by a compensable injury.

Estate of Lindbo 2023 ND 75
Docket No.: 20220326
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Bahr, Douglas Alan

Highlight: A personal representative is entitled to reasonable compensation for the personal representative’s services.

A district court’s decision whether to award personal representative’s fees will not be reversed on appeal absent an abuse of discretion. The court’s underlying findings of fact will be upheld unless clearly erroneous.

Estate of Lindbo 2023 ND 75
Docket No.: 20220326
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Bahr, Douglas Alan

Krueger v. Krueger 2023 ND 74
Docket No.: 20220333
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: A district court’s order on spousal support and contempt is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of K.B. (CONFIDENTIAL) 2023 ND 73
Docket No.: 20230086
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: An order requiring hospitalization is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of J.S. (CONFIDENTIAL) 2023 ND 72
Docket No.: 20230062
Filing Date: 4/13/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Jahner v. NDDHS 2023 ND 71
Docket No.: 20220313
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: This Court exercises limited review in appeals from administrative agency decisions. However, the application and interpretation of a statute is a question of law, which is fully reviewable in an administrative appeal.

Jahner v. NDDHS 2023 ND 71
Docket No.: 20220313
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

State v. Jacobs 2023 ND 70
Docket No.: 20220280
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Jacobs 2023 ND 70
Docket No.: 20220280
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Jones v. Rath 2023 ND 69
Docket No.: 20220239
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A disorderly conduct restraining order must be supported by specific findings of intent to adversely affect the safety, security, or privacy of another person.

Jones v. Rath 2023 ND 69
Docket No.: 20220239
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

State v. Neugebauer 2023 ND 68
Docket No.: 20220174
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A criminal sentence finalized before enactment of a statute cannot be reduced.
Statutes are not retroactive unless expressly declared to be so.
Statutes enacted in response to United States Supreme Court cases are not an idle act by the Legislature.

State v. Neugebauer 2023 ND 68
Docket No.: 20220174
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair