Opinions

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.”

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

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: 7/7/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

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.

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

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

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.