Opinions

Nodak Electric Coop. v. N.D. Public Svc. Commission, et al. 2022 ND 225
Docket No.: 20220122
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A city has constitutional authority to franchise a public utility or similar service within the city.

The Public Service Commission’s authority is limited to that authority provided to it by the legislature.

A party may raise the issue of subject matter jurisdiction at any time.

Nodak Electric Coop. v. N.D. Public Svc. Commission, et al. 2022 ND 225
Docket No.: 20220122
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Matter of Emelia Hirsch Trust 2022 ND 224
Docket No.: 20220194
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: A district court pre-filing vexatious litigant order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matter of Emelia Hirsch Trust 2022 ND 224
Docket No.: 20220194
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Schmidt v. Hageness, et al. 2022 ND 223
Docket No.: 20220219
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Dismissal of complaint alleging quiet title to land is summarily affirmed under N.D.C.C. § 32-17-01 because warranty deed failed to meet the requirements under N.D.C.C. § 47-10-05.

Schmidt v. Hageness, et al. 2022 ND 223
Docket No.: 20220219
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Bell v. State 2022 ND 222
Docket No.: 20220161
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: The statutory meaning of “physical disability” within N.D.C.C. § 29-32.1-01(3)(a)(2) does not include an inability to access state case law while serving a sentence in a federal prison.

Bell v. State 2022 ND 222
Docket No.: 20220161
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Fain, et al. v. Integrity Environmental, et al. 2022 ND 221
Docket No.: 20220068
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: When a district court has made sufficient findings that demonstrate intent, mutual assent, and sufficient consideration among the parties to substitute a new obligation for an existing one, a finding of novation by the court is not clearly erroneous.

The terms of a contract, the character of the transaction, and the facts and circumstances surrounding the transaction can establish novation.

Parties entering into a novation need not agree about the meaning or terms within the original obligation.

Fain, et al. v. Integrity Environmental, et al. 2022 ND 221
Docket No.: 20220068
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Wheeler v. Sayler, et al. 2022 ND 220
Docket No.: 20220227
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: An order dismissing a complaint without prejudice is generally not appealable.

The district court is required to make a pre-filing determination prior to ruling on a motion filed by a vexatious litigant. A vexatious litigant’s request for reconsideration did not satisfy the pre-filing order requirement that new documents filed with the court have merit and have not been filed for the purpose of harassment or delay. A denial of leave to file is not appealable.

Wheeler v. Sayler, et al. 2022 ND 220
Docket No.: 20220227
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

State v. Davis 2022 ND 219
Docket No.: 20220220
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Homicide
Author: Jensen, Jon J.

Highlight: The district court’s findings on restitution were not clearly erroneous.

State v. Davis 2022 ND 219
Docket No.: 20220220
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Homicide
Author: Jensen, Jon J.

State v. Tully 2022 ND 218
Docket No.: 20220214
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment of terrorizing subsequent to a plea of guilty is summarily affirmed under N.D.R.App.P. 35.1(a)(3) & (7).

State v. Tully 2022 ND 218
Docket No.: 20220214
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Kubik v. Hauck 2022 ND 217
Docket No.: 20220091
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary, and not a mere barrier, for at least 20 years prior to the litigation. Whether there has been mutual recognition of a boundary is a question of fact, reviewed under the clearly erroneous standard.

Kubik v. Hauck 2022 ND 217
Docket No.: 20220091
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Trosen, et al. v. Trosen, et al. 2022 ND 216
Docket No.: 20220048
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: The nonperformance of a contractual duty when it is due is a breach of the contract.

Under the common law doctrine of apportionment of rent, rent is not apportionable as to time; rather the person who has ownership of the property at the time that rent is due has the right to receive it.

Generally, a material breach by one party gives the non-breaching party the right to terminate the contract.

Trosen, et al. v. Trosen, et al. 2022 ND 216
Docket No.: 20220048
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Watson v. State (consolidated w/20220104) 2022 ND 215
Docket No.: 20220103
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: In an ineffective assistance of counsel claim, a criminal defendant must demonstrate (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.

Watson v. State (consolidated w/20220104) 2022 ND 215
Docket No.: 20220103
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Fercho v. Fercho, et al. 2022 ND 214
Docket No.: 20220076
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A party to a divorce action who accepts benefits pursuant to a divorce judgment does not waive the right to appeal from the judgment, overruling prior case law applying the general rule that acceptance of substantial benefits under the divorce judgment waived the right to appeal.

The court must limit discovery if it determines the discovery sought is unreasonably cumulative or duplicative, or it can be obtained from some other source that is more convenient, less burdensome, or less expensive; or the burden or expense of the proposed discovery outweighs its likely benefit.

Under the Uniform Premarital Agreement Act, parties may contract to the disposition of property upon divorce and to the modification or elimination of spousal support.

Procedural unconscionability focuses upon formation of the contract and fairness of the bargaining process, including factors such as inequality of bargaining power, oppression, and unfair surprise. Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily. Substantive unconscionability focuses on the harshness or one-sidedness of the agreement’s provisions.

A district court’s valuation and distribution of marital property are findings of fact. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing the entirety of the evidence, this Court is left with a definite and firm conviction a mistake has been made.

A spousal support award must be based on both the supporting spouse’s needs and ability to pay and the receiving spouse’s income and needs. Similarly, the primary standard to award attorney’s fees under N.D.C.C. § 14-05-23 is consideration of one spouse’s needs and the other spouse’s ability to pay.

Reasonable attorney’s fees may be awarded on appeal if any party has been dilatory in prosecuting the appeal.

Fercho v. Fercho, et al. 2022 ND 214
Docket No.: 20220076
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Provins v. WSI, et al. 2022 ND 213
Docket No.: 20220060
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

Highlight: For purposes of WSI benefits, a compensable injury includes a mental or psychological condition caused by a physical injury, but only when the physical injury is determined with reasonable medical certainty to be at least fifty percent of the cause of the condition as compared with all other contributing causes combined, and only when the condition did not preexist the work injury.

Under WSI administrative rule, a mental or psychological condition must be directly caused by a physical injury. To be directly caused it must be shown with objective medical evidence that the mental or psychological condition is the physiological product of the physical injury.

Provins v. WSI, et al. 2022 ND 213
Docket No.: 20220060
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

State v. Dahl 2022 ND 212
Docket No.: 20210276
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

Constructive possession is proven when the evidence establishes that the accused had the power and capability to exercise dominion and control over the controlled substance or paraphernalia.

When a defendant fails to preserve a claim of insufficient evidence, the Court may review for obvious error, which is a narrow exception to the rule that issues may not be raised for the first time on appeal. Although the Court may decline review of forfeited errors when the appellant fails to argue the obvious error standard, the Court is not foreclosed from considering such errors. An error is obvious when it is a clear deviation from an applicable rule under current law.

Drug paraphernalia used, or possessed with intent to be used, to store a controlled substance does not satisfy the felony use element under N.D.C.C. § 19-03.4-03(1).

If even a properly instructed jury would have had insufficient evidence on which it could have convicted the defendant, the required remedy upon a conclusion there was insufficient evidence presented at trial is to enter a judgment of acquittal.

State v. Dahl 2022 ND 212
Docket No.: 20210276
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Dominek, et al. v. Equinor Energy, et al. 2022 ND 211
Docket No.: 20220088
Filing Date: 11/23/2022
Case Type: Certified Question - Civil - Civil
Author: McEvers, Lisa K. Fair

Highlight: Under N.D.R.App.P.47, questions certified by a foreign court may be answered if the question could be determinative of the proceeding and there is no controlling precedent. The standard for answering questions certified by a foreign court is less stringent than the standard for answering a question certified by a state district court, which requires the question be determinative.

Section 38-08-08(1), N.D.C.C., does not require allocation of oil and gas production from one spacing unit to another.

The North Dakota Supreme Court will not answer certified questions absent development of the factual record because doing so exposes the court to the danger of improvidently deciding issues.

Dominek, et al. v. Equinor Energy, et al. 2022 ND 211
Docket No.: 20220088
Filing Date: 11/23/2022
Case Type: Certified Question - Civil - Civil
Author: McEvers, Lisa K. Fair

Feickert v. Feickert 2022 ND 210
Docket No.: 20220102
Filing Date: 11/23/2022
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: Voluntarily paying a partial undisputed amount of a judgment does not waive a party’s right to appeal the remaining disputed amount or other unrelated claims. However, partial satisfaction of a judgment extinguishes the underlying claim.

A party bringing a claim for unjust enrichment must sufficiently plead facts supporting their claim that would place the other party on notice of the claim.

A party failing to provide supporting argument for their position on appeal waives the issue.

Feickert v. Feickert 2022 ND 210
Docket No.: 20220102
Filing Date: 11/23/2022
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Interest of A.M.K. (CONFIDENTIAL) 2022 ND 209
Docket No.: 20220316
Filing Date: 11/23/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court’s orders for continuing hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.M.K. (CONFIDENTIAL) 2022 ND 209
Docket No.: 20220316
Filing Date: 11/23/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

State v. Moses 2022 ND 208
Docket No.: 20220101
Filing Date: 11/23/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Statutes are interpreted to give meaning and effect to every word, phrase, and sentence, and construed to avoid rendering part of the statute mere surplusage.

Under the firearm prohibition statute, a person is prohibited from possessing a firearm for five years after being convicted of a felony. A prior juvenile adjudication of a delinquent act equivalent to a felony qualifies as a predicate felony conviction.

If two or more statutes relating to the same subject matter conflict, we attempt to give meaningful effect to each without rendering one or the other useless. If the conflict is irreconcilable, the special provision must generally prevail and be construed as an exception to the general provision.

A firearm prohibition is a collateral consequence, and there is no constitutional requirement that a defendant or juvenile delinquent be notified of such prohibition or the possibility of a future firearm conviction for violating the prohibition.

A law is not unconstitutionally vague if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.

State v. Moses 2022 ND 208
Docket No.: 20220101
Filing Date: 11/23/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Anton v. Klipfel, et. al. 2022 ND 207
Docket No.: 20220202
Filing Date: 11/23/2022
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Jensen, Jon J.

Highlight: A Job Service North Dakota’s decision is affirmed when a reasoning mind reasonably could have determined the agency’s factual conclusions were proved by the weight of evidence.

Anton v. Klipfel, et. al. 2022 ND 207
Docket No.: 20220202
Filing Date: 11/23/2022
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Jensen, Jon J.

State v. Peltier (consolidated w/ 20220097) 2022 ND 206
Docket No.: 20220096
Filing Date: 11/23/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Criminal judgments entered after a jury verdict are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Review of a restitution order is limited to whether the district court acted within the limits set by statute, which is similar to an abuse of discretion standard. In determining the restitution amount, the court shall take into account the reasonable damages sustained by the victim of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action.

State v. Peltier (consolidated w/ 20220097) 2022 ND 206
Docket No.: 20220096
Filing Date: 11/23/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Mullin, et al. v. Pendlay 2022 ND 205
Docket No.: 20220148
Filing Date: 11/23/2022
Case Type: Appeal - Civil - Malpractice
Author: Jensen, Jon J.

Highlight: Common law theory of imposing a trust based upon a confidential relationship is still present in North Dakota law.

To successfully plead the defense of unclean hands/illegality the defendant must not have been a participant in the unlawful act.

When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefited the client.

If a party fails to provide supporting argument for an issue listed in their brief, they are deemed to have waived that issue.

Mullin, et al. v. Pendlay 2022 ND 205
Docket No.: 20220148
Filing Date: 11/23/2022
Case Type: Appeal - Civil - Malpractice
Author: Jensen, Jon J.

Kaspari v. Kaspari 2022 ND 204
Docket No.: 20220141
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A district court may not order an award of spousal support that exceeds the court’s own finding of need for a recipient spouse without specifically identifying and quantifying those additional expenses.

A district court may not order an award of spousal support based upon a supporting spouse’s post-separation work schedule that increases their weekly hours by double what is typically associated with full-time employment without specific findings as to why such a measurement would be appropriate.

A district court may not order an award of spousal support based upon cash transfers and expenses paid on behalf of adult children without specific findings as to why those costs should be included in the award.

Kaspari v. Kaspari 2022 ND 204
Docket No.: 20220141
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Buchholz v. Overboe 2022 ND 203
Docket No.: 20220113
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A divorce based on irreconcilable difference applies to both parties. An argument implying the judgment does not apply to both parties is “nonsensical and frivolous.”

A divorce judgment must have remarriage language pursuant to N.D.C.C. § 14-05-02.

A court’s valuations of martial property within the range of evidence presented are not clearly erroneous.

A court’s distribution of martial property is clearly erroneous if it is made based on incorrect law, there was no evidenece to support the distribution, or after reviewing all the evidence we are left with a definite and firm conviction a mistake has been made.

A district court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter on motion by a party or on its own.

A district court may amend its findings under N.D.R.Civ.P. 52(b).

Buchholz v. Overboe 2022 ND 203
Docket No.: 20220113
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Beland, et al. v. Danel, et al. 2022 ND 202
Docket No.: 20220057
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: A district court may impose sanctions if litigation was brought for an improper and unjust purpose under N.D.R.Civ.P. 11(b)(1), or lacked evidentiary support under N.D.R.Civ.P. 11(b)(3), even if a portion of the litigation had merit under N.D.R.Civ.P. 11(b)(2).

A district court may impose sanctions even if it denied a motion to dismiss by a party opposing the litigation, and even if it held an evidentiary hearing if the litigation was brought for an improper and unjust purpose under N.D.R.Civ.P. 11(b)(1), or lacked evidentiary support under N.D.R.Civ.P. 11(b)(3).

Beland, et al. v. Danel, et al. 2022 ND 202
Docket No.: 20220057
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

State v. Davis-Heinze 2022 ND 201
Docket No.: 20220049
Filing Date: 11/10/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: A trial court may avoid a violation of the public trial right by summarizing on the record what was discussed at the conference, the conference must have occurred in open court, and both parties to the action must have an opportunity to object to the accuracy of the court’s summary or supplement the record as to the off-the-record events.

The potential for harm exists whenever one person points a firearm at another individual.

State v. Davis-Heinze 2022 ND 201
Docket No.: 20220049
Filing Date: 11/10/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.