Opinions

State v. Hanson 2023 ND 175
Docket No.: 20230053
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment and sentencing for child abuse and child neglect are summarily affirmed under N.D.R.App.P. 35(a)(2) and (4).

State v. Entzel 2023 ND 174
Docket No.: 20230078
Filing Date: 9/28/2023
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A criminal judgment entered after a jury conviction of conspiracy to commit murder is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Matter of John V. Klein Trust 2023 ND 173
Docket No.: 20230059
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: An order granting trustees’ petition for sale of trust’s surface interests and distribution of mineral interests to beneficiaries is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Discover Bank v. Romanick, et al. 2023 ND 172
Docket No.: 20230227
Filing Date: 9/28/2023
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: McEvers, Lisa K. Fair

Highlight: We exercise our supervisory jurisdiction rarely and cautiously to rectify errors and prevent injustice in extraordinary cases in which no adequate alternative remedy exists.

A party who files a complaint must serve notice of filing on the other parties, except upon defaulting parties.

When a defendant has not appeared, he is not entitled to be notified of the motion for default judgment.

When the plaintiff declares the defendant did not answer or otherwise appear and its claim is for a sum certain—as evidenced through declaration and written instrument—the court abuses its discretion by failing to direct entry of default judgment.

Berger, et al. v. Sellers, et al. 2023 ND 171
Docket No.: 20220322
Filing Date: 9/28/2023
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Vacancy in Judgeship No. 1, SEJD 2023 ND 170
Docket No.: 20230256
Filing Date: 9/20/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgship retained at Jamestown.

Disciplinary Board v. Slyva 2023 ND 169
Docket No.: 20230232
Filing Date: 9/18/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Suiter v. NDDOT 2023 ND 168
Docket No.: 20230109
Filing Date: 9/14/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The district court judgment affirming an administrative suspension of a defendant’s driver’s license is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

Ruiz Ledezma v. State 2023 ND 167
Docket No.: 20230055
Filing Date: 9/14/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: The district court order denying a defendant’s petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Bechtle v. Bechtle, et al. 2023 ND 166
Docket No.: 20230054
Filing Date: 9/14/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order denying a motion to modify parenting time is summarily affirmed under N.D.R.App.P 35.1(a)(2).

Buller v. Buller 2023 ND 165
Docket No.: 20230050
Filing Date: 9/14/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court’s order regarding primary residential responsibility and valuation and distribution of the martial estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al. 2023 ND 164
Docket No.: 20230255
Filing Date: 9/14/2023
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Jensen, Jon J.

Interest of A.Z. 2023 ND 163
Docket No.: 20230245
Filing Date: 9/14/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Disciplinary Board v. Pilch 2023 ND 162
Docket No.: 20230152
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

Disciplinary Board v. Pilch 2023 ND 161
Docket No.: 20230147
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Disciplinary Board v. Overboe 2023 ND 160
Docket No.: 20230090
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

Disciplinary Board v. Baird 2023 ND 159
Docket No.: 20230075
Filing Date: 8/17/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

Interest of A.M. (CONFIDENTIAL)(consolidated w/20230210) 2023 ND 158
Docket No.: 20230209
Filing Date: 8/17/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Interest of A.B. (CONFIDENTIAL) (consolidated w/20230198 & 20230199) 2023 ND 157
Docket No.: 20230197
Filing Date: 8/17/2023
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)(4).

Sayler v. Sayler 2023 ND 156
Docket No.: 20230004
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: A motion to relocate is not necessary when residential responsibility has not previously been established. Therefore, consideration of the Stout-Hawkinson factors is not necessary when the district court originally determines parental responsibility of parents living in different states.

The purpose or motive for a unilateral move is one of the many factors courts should consider and weigh when determining parental responsibility.

State v. Petersen 2023 ND 155
Docket No.: 20230049
Filing Date: 8/17/2023
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: Law enforcement exceeds its community caretaking function when it opens the door of a sleeping occupant’s parked semi-truck and steps onto the running boards in an attempt to gather information without first attempting to get a response from outside of the vehicle.

Under prong two of the inevitable discovery doctrine, the State must prove that the evidence would have been found without the unlawful activity and must show how the discovery of the evidence would have occurred.

Estate of Froemke 2023 ND 154
Docket No.: 20220321
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Davis, et al. v. Mercy Medical Center, et al. 2023 ND 153
Docket No.: 20220325
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

State v. Kollie 2023 ND 152
Docket No.: 20220343
Filing Date: 8/17/2023
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Wootan v. State 2023 ND 151
Docket No.: 20230036
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: Once the State moves for summary judgment on a post-conviction application, the defendant must provide evidentiary support for their application in response to the State’s motion.

Summary judgment on a post-conviction application is proper when the defendant fails to provide evidentiary support to show a genuine issue of material fact.

Black Elk v. State 2023 ND 150
Docket No.: 20230035
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A part must preserve an issue in district court before it can be reviewed on appeal. A party must preserve a claim of error, as it relates to the admissibility of evidence, by objecting or moving to strike the evidence on record and stating a specific ground for exclusion.

This Court will exercise discretion rarely to consider issues not preserved in post-conviction proceedings, and will do so only if the error is plain and seriously affects the fairness, integrity, or public reputation of judicial proceedings.

A statement is not hearsay when it is offered simply to prove the statement was made. A petitioner at a post-conviction hearing is permitted to testify about the advice given to them by counsel as long as the testimony is submitted to simply show the advice was verbalized.

Advising a defendant that the defendant can deal with a material piece of evidence after a defendant has pled guilty and been sentenced by simply retracting or withdrawing the plea falls below an objectively reasonable standard of a defense attorney.

Goff v. NDDOT 2023 ND 149
Docket No.: 20230115
Filing Date: 8/2/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Substantially justified means justified to a degree that could satisfy a reasonable person.

Interest of D.M.H. (CONFIDENTIAL) 2023 ND 148
Docket No.: 20230028
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: Absent a change in circumstances, the juvenile court does not err in adopting a prior visitation schedule as the current visitation schedule.

Hennessey v. Milnor School District 2023 ND 147
Docket No.: 20230056
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Bahr, Douglas Alan

Highlight: In an appeal from a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the complaint is construed in the light most favorable to the plaintiff and well-pleaded allegations are accepted as true.

Undue influence is improper influence exercised in such a way and to such an extent as to destroy a person’s free agency or voluntary action by substituting for the person’s will the will of another.

In nontestamentary cases, undue influence requires three factors be established: (1) A person who can be influenced; (2) The fact of improper influence exerted; and (3) Submission to the overmastering effect of such unlawful conduct.

The law does not condemn all influence, only undue influence.

State, et al. v. Vetter 2023 ND 146
Docket No.: 20230031
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Rule 60(a), N.D.R.Civ.P., was designed to allow district courts to correct errors created by oversight or omission. Rule 60(a) does not authorize the court to change what has been deliberately done.

Gonzalez v. Perales 2023 ND 145
Docket No.: 20230026
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: To be appealable under N.D.C.C. § 28-27-02(1), an order must determine the action and prevent a judgment from which an appeal might be taken.

An order is not appealable under § 28-27-02(5) unless, in effect, it finally determines some substantive legal right of appellant or is dispositive of a substantive issue.

Final order under section 14-14.1-34, N.D.C.C. [UCCJEA §314 (1997)], means an order that finally determines some substantive legal right of a party or is dispositive of a substantive issue.

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.

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: 8/2/2023
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

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.

Opp v. Office of the North Dakota Attorney General - BCI CWL Unit, et al. 2023 ND 131
Docket No.: 20220332
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

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.

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.”