Opinions

McKenzie Electric Coop., Inc. v. El-Dweek, et al. 2024 ND 227
Docket No.: 20240275
Filing Date: 12/19/2024
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Tufte, Jerod E.

Highlight: A petition for supervisory writ directing the district court to vacate its order of recusal, deny the motion for recusal, and reassign the action back to Judge ElDweek is denied.

Cass Co. v. KNB Properties, et al. 2024 ND 226
Docket No.: 20240126
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court's grant of summary judgment for plaintiff is affirmed.

A district court's grant of permanent injunction for plaintiff is reversed.

Zoning and subdivision ordinances serve distinct but complementary regulatory purposes. A township has exclusive zoning authority over private property within the township under N.D.C.C. § 58-03-11, and the location of buildings and attendant improvements is a zoning matter. A county may, however, as a valid exercise of its subdivision authority under N.D.C.C. § 1133.2-02, condition its approval of a subdivision on compliance with the county's subdivision ordinance, even when provisions of the ordinance govern the location of buildings and attendant improvements.

By operating as a condition on a county's approval of the act of subdivision, a subdivision ordinance's setback provisions do not function as a direct zoning regulation in conflict with a township's exclusive zoning authority.

A county's subdivision authority begins when an action is taken to divide a parcel into two or more parts.

When a party subdivides property in violation of a subdivision ordinance, the proper remedy is to vacate the subdivision by voiding the acts that triggered applicability of the subdivision ordinance and were dependent on the county's approval.

Olson v. Olson 2024 ND 224
Docket No.: 20240103
Filing Date: 12/5/2024
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

Highlight: A party had access to an attorney under N.D.C.C. § 14-03.2-08 when the party was made aware of the need for a premarital agreement long before the wedding.

A party received adequate financial disclosure under N.D.C.C. § 14-03.208 when the party observed the other party's day-to-day involvement connected to the other party's assets and had the opportunity to review balance sheets.

A party's consent is voluntary and not the result of duress when the party has the knowledge and experience to understand the contents of a premarital agreement and had been aware of the need for an agreement.

A party arguing a premarital agreement is substantively unconscionable must argue a term of the agreement is substantively unconscionable.

This Court reviews a district court's decision to allow an undisclosed witness to testify under an abuse of discretion standard.

Although the sequestration rule applies to rebuttal witnesses, a district court has discretion to allow a rebuttal witness to testify when the testimony is not negatively influenced by or inappropriately tailored to prior testimony.

Lowe v. WSI 2024 ND 223
Docket No.: 20240189
Filing Date: 12/5/2024
Case Type: Appeal - Administrative - Workers Compensation
Author: Tufte, Jerod E.

Highlight: Workforce Safety and Insurance did not abuse its discretion by denying a request for approval of daily opioid medication in excess of 90 Morphine Milligram Equivalents. The district court judgment affirming WSI's managed care binding dispute resolution decision is affirmed.

State v. Johnson 2024 ND 222
Docket No.: 20240156
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Under N.D.R.App.P. 28 a party is required to include legal authorities on which the party relies. During oral argument a party may not raise new claims or rely on legal authorities not contained in their brief.

A district court's substantial compliance with N.D.R.Crim.P. 11 is determined on the record as a whole.

An ineffective assistance of counsel claim generally should be brought in a postconviction relief proceeding.

Poseley v. Homer Township 2024 ND 221
Docket No.: 20240154
Filing Date: 12/5/2024
Case Type: Appeal - Administrative - Zoning
Author: Per Curiam

Highlight: An order dismissing an appeal from a local governing body's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Graff 2024 ND 220
Docket No.: 20230409
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: An order dismissing the matter without prejudice following a finding of prosecutorial misconduct is affirmed.

Although the district court has some supervisory control over dismissals, the court should not dismiss a case with prejudice unless the court has had an opportunity to determine issues of bad faith, harassment, or misconduct, and this finding must be supported by clear and convincing evidence.

Generally, dismissal with prejudice is a remedy that should only be used in extreme circumstances.

State v. Thesing 2024 ND 219
Docket No.: 20240093
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: Section 12.1-31.2-02, N.D.C.C., permits an individual to be charged for violating a pre-dispositional order when the alleged violation occurs while the individual is in custody.

A pre-dispositional order issued under N.D.C.C. § 12.1-31.2-02(1) differs from a condition of release issued under N.D.R.Crim.P. 46(a)(2)(E).

An argument not adequately articulated, supported, and briefed will not be considered by this Court.

State v. Grensteiner 2024 ND 218
Docket No.: 20240100
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Probable cause for a driven vehicle extends to a towed vehicle.

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. To prove constructive possession the State must present evidence which establishes that the accused had the power and capability to exercise dominion and control over the contraband.

When there is a claim of prosecutorial misconduct, the Court determines whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. Comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof. The Court presumes that the jury followed the district court's instructions.

State v. Grensteiner 2024 ND 218
Docket No.: 20240101
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Probable cause for a driven vehicle extends to a towed vehicle.

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. To prove constructive possession the State must present evidence which establishes that the accused had the power and capability to exercise dominion and control over the contraband.

When there is a claim of prosecutorial misconduct, the Court determines whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. Comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof. The Court presumes that the jury followed the district court's instructions.