Opinions

State v. Lockwood (consolidated w/20220020 & 20220021) 2022 ND 175
Docket No.: 20220019
Filing Date: 9/29/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Three amended criminal judgments are summarily affirmed under N.D.R.App.P. 35.1(a)(8) because the appellant’s brief did not contain the minimum requirements of N.D.R.App.P. 28.

State v. Lockwood (consolidated w/20220020 & 20220021) 2022 ND 175
Docket No.: 20220019
Filing Date: 9/29/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Interest of T.L.E. (CONFIDENTIAL) 2022 ND 174
Docket No.: 20220253
Filing Date: 9/29/2022
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 T.L.E. (CONFIDENTIAL) 2022 ND 174
Docket No.: 20220253
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Mayo v. Buchholz, et al. 2022 ND 173
Docket No.: 20220175
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order and amended judgment modifying parenting time is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

Mayo v. Buchholz, et al. 2022 ND 173
Docket No.: 20220175
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Gomm v. Winterfeldt, et al. 2022 ND 172
Docket No.: 20220043
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: Jurisdiction to modify an existing child custody determination is made independent from registration and enforcement of a foreign determination.

The moving party under a motion to modify primary residential responsibility is permitted to file a reply brief but is not entitled to file supplemental evidentiary materials.

To establish a prima facie case for modification of primary residential responsibility, a party must show a general decline in the condition of the child or a change that has adversely affected the child.

An evidentiary hearing is not required if a party fails to make a prima facie case.

Gomm v. Winterfeldt, et al. 2022 ND 172
Docket No.: 20220043
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Whitetail Wave v. XTO Energy, et al. 2022 ND 171
Docket No.: 20220061
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Highlight: There is no right to appeal when there is not a final judgment.

The propriety of an appeal of a judgment which fails to resolve all of the claims is reviewable, even when none of the parties requested review.

Whitetail Wave v. XTO Energy, et al. 2022 ND 171
Docket No.: 20220061
Filing Date: 9/29/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Interest of A.C. (CONFIDENTIAL) 2022 ND 169
Docket No.: 20220081
Filing Date: 6/8/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Jensen, Jon J.

Highlight: While this Court defers to a tribe on its membership determinations, without consistent and clear factual findings supporting the application of ICWA and North Dakota heightened review for Indian families, this Court is unable to determine the father’s issues on appeal.

The Court retains jurisdiction and remands for the juvenile court to clarify its findings on ICWA and heightened state law and to hold additional evidentiary proceedings if necessary.

Hendrix, et al. v. Jaeger 2022 ND 168
Docket No.: 20220233
Filing Date: 9/7/2022
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: The Secretary of State misapplies the law by excluding qualified elector signatures on circulated petitions on the basis of a determination that a pattern of likely notary violations on some petitions permitted the wholesale invalidation of all signatures on all petitions that were sworn before the same notary.

Hendrix, et al. v. Jaeger 2022 ND 168
Docket No.: 20220233
Filing Date: 9/7/2022
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Interest of J.G. (CONFIDENTIAL) (consolidated w/20220190) 2022 ND 167
Docket No.: 20220189
Filing Date: 9/1/2022
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)(2) and (4).

Interest of J.G. (CONFIDENTIAL) (consolidated w/20220190) 2022 ND 167
Docket No.: 20220189
Filing Date: 9/1/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Newfield Exploration Company, et al. v. State, et al. 2022 ND 166
Docket No.: 20220022
Filing Date: 9/1/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: An obligation arises from the parties’ contract or the operation of law.

A well operator has a statutory obligation to pay royalties to a mineral interest owner whether the interest is leased or unleased.

Newfield Exploration Company, et al. v. State, et al. 2022 ND 166
Docket No.: 20220022
Filing Date: 9/1/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Kershaw v. Finnson, et al. 2022 ND 165
Docket No.: 20210355
Filing Date: 9/1/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Contradictory testimony is resolved in favor of affirmance on appeal.

Wholesale or verbatim adoption of proposed findings of fact and conclusions of law is disapproved. However, wholesale adoption of proposed findings is not reason alone to reverse a court’s decision. Adopted findings will be affirmed if they adequately explain the rationale for the court’s decision and are not clearly erroneous.

Parenting time decisions must be made based on the best interests of the child. Absent a reason for denying it, some form of extended summer parenting time is routinely awarded.

An evidentiary decision will not be reversed unless the complaining party objected and the court’s decision affects a party’s substantial rights.

A successor judge must certify him or herself as familiar with the record under N.D.R.Civ.P. 63 to proceed with a trial or hearing that has been commenced by a judge who cannot complete it.

Kershaw v. Finnson, et al. 2022 ND 165
Docket No.: 20210355
Filing Date: 9/1/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Sholy v. Cass Cty. Comm’n 2022 ND 164
Docket No.: 20220033
Filing Date: 9/1/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: An appeal from a decision of a county commission must be made within thirty days of the decision under N.D.C.C. § 28-34-01(1). The time to appeal commences when the commission votes to approve the decision.

Sholy v. Cass Cty. Comm’n 2022 ND 164
Docket No.: 20220033
Filing Date: 9/1/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Vogt v. State 2022 ND 163
Docket No.: 20220058
Filing Date: 8/18/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The North Dakota Rules of Civil Procedure are applicable in post-conviction relief proceedings to the extent they do not conflict with the Uniform Postconviction Procedure Act.

Application of the newly discovered evidence exception to the N.D.C.C. § 29-32.1-01 statute of limitations for post-conviction relief petitions requires the petitioner allege that the newly discovered evidence would establish the petitioner did not engage in the criminal conduct for which he or she was convicted.

Issues that were not raised in the district court will not be addressed for the first time on appeal.

Vogt v. State 2022 ND 163
Docket No.: 20220058
Filing Date: 8/18/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

State v. Doglod 2022 ND 162
Docket No.: 20220035
Filing Date: 8/18/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of terrorizing and criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a).

State v. Doglod 2022 ND 162
Docket No.: 20220035
Filing Date: 8/18/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Dieterle v. Dieterle n/k/a Hansen, et al. 2022 ND 161
Docket No.: 20220094
Filing Date: 8/18/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Orders denying a party permission to file new motions are not appealable.

An order imposing attorney’s fees may be appealable depending on whether the district court intended the order to be final.

A demand for a change of judge is invalid if it is filed more than ten days after the notice of assignment of a judge.

Dieterle v. Dieterle n/k/a Hansen, et al. 2022 ND 161
Docket No.: 20220094
Filing Date: 8/18/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

State v. Lyman 2022 ND 160
Docket No.: 20220023
Filing Date: 8/18/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: Whether to grant a mistrial is within the district court’s discretion, which this Court will not reverse on appeal absent an abuse of such discretion.

In reviewing a claim of prosecutorial misconduct, this Court first determines whether the prosecutor’s actions were misconduct, then examines whether the misconduct had prejudicial effect.

The purpose of an opening statement is to inform the jury about the case and to outline to the jury the proof the State expects to present.

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

State v. Lyman 2022 ND 160
Docket No.: 20220023
Filing Date: 8/18/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Procive v. WSI 2022 ND 159
Docket No.: 20220067
Filing Date: 8/4/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Under N.D.C.C. § 65-10-01, a claimant may appeal from a final action of Workforce Safety and Insurance to the district court of the county where the injury was inflicted or of the county in which they reside, and the claimant has the burden to show the district court has jurisdiction.

Procive v. WSI 2022 ND 159
Docket No.: 20220067
Filing Date: 8/4/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Puklich v. Puklich, et al. 2022 ND 158
Docket No.: 20220062
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: The doctrine of issue preclusion bars relitigation of issues decided in a prior action.

To bring a derivative action on behalf of a partnership, a litigant must be a partner at the time the action is commenced.

Puklich v. Puklich, et al. 2022 ND 158
Docket No.: 20220062
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

State v. Pulkrabek (consolidated with 20220011 - 20220013) 2022 ND 157
Docket No.: 20220010
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The Uniform Mandatory Disposition of Detainers Act applies to instances where a detainer has been filed against a person imprisoned in a correctional institution in the state of North Dakota.

The Detainers Act requires trial to take place within 90 days of filing a request for disposition of pending charges subject to exceptions.

Counsel can waive trial within 90 days under the Detainers Act.

Criminal defendants are entitled to counsel at all critical stages of prosecution.

A critical stage of prosecution is a time in which counsel’s absence might derogate from the criminal defendant’s right to a fair trial.

State v. Pulkrabek (consolidated with 20220011 - 20220013) 2022 ND 157
Docket No.: 20220010
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Great Plains Royalty Corp. v. Earl Schwartz Co., et al. 2022 ND 156
Docket No.: 20220052
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Subject matter jurisdiction refers to the court’s power to hear and determine the general subject involved in the action.

The United States Bankruptcy Code vested the bankruptcy trustee with title to the bankrupt’s assets.

Upon an appeal from a civil judgment, this Court may modify the judgment to correct an error.

Section 28-26-06(2), N.D.C.C., requires disbursements to the prevailing party for procuring evidence in preparation or use at trial.

Great Plains Royalty Corp. v. Earl Schwartz Co., et al. 2022 ND 156
Docket No.: 20220052
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

State, et al. v. Faber 2022 ND 155
Docket No.: 20210358
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may allow a child who is of sufficient maturity to testify about his or her preferences relating to residential responsibility.

A district court generally cannot delegate to anyone the power to decide questions of residential responsibility.

A district court may not rely solely on a child’s wishes when deciding residential responsibility.

State, et al. v. Faber 2022 ND 155
Docket No.: 20210358
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Hamburger v. Hamburger 2022 ND 154
Docket No.: 20220051
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A vested child support obligation cannot be retroactively modified.

The child support guidelines contemplate child support payments by the parent without primary residential responsibility to the parent with primary residential responsibility.

Parties generally bear their own attorney’s fees unless the fees are expressly authorized by statute.

Hamburger v. Hamburger 2022 ND 154
Docket No.: 20220051
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

State v. Netterville 2022 ND 153
Docket No.: 20220017
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: An amended judgment entered after revocation must total up all time served for the offense, including time served on the original sentence and time served prior to the revocation hearing, to ensure a defendant does not serve more than the maximum possible sentence for the offense.

State v. Netterville 2022 ND 153
Docket No.: 20220017
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

B.C. v. NDDHS 2022 ND 152
Docket No.: 20220100
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Deference is given to an administrative agency’s reasonable interpretation of its own regulations.

Administrative regulation for excluding autism voucher program funding as a parental responsibility did not involve complex and technical matters calling for agency expertise, and the Department of Human Services’ interpretation was not entitled to appreciable deference.

B.C. v. NDDHS 2022 ND 152
Docket No.: 20220100
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Sailer, et al. v. Sailer, et al. 2022 ND 151
Docket No.: 20220050
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A court’s determination that a nonparent did not establish a prima facie case to support an award of nonparent visitation is reviewed de novo.

If the nonparent fails to plead a prima facie case that the nonparent “[i]s a consistent caretaker; or . . . [h]as a substantial relationship with the child and denial of custody or visitation would result in harm to the child,” a court shall dismiss the petition for nonparent visitation.

Sailer, et al. v. Sailer, et al. 2022 ND 151
Docket No.: 20220050
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Northwest Landowners Association v. State, et al. 2022 ND 150
Docket No.: 20210148
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Constitutional Law
Author: Tufte, Jerod E.

Highlight: To resolve a facial challenge, we need only interpret the challenged legislation and the relevant constitutional provisions to determine whether there is a conflict.

North Dakota law has long established that surface owners have a property interest in pore space.

Surface owners have a right to compensation for the use of their pore space for disposal and storage operations.

Government-authorized physical invasions of property constitute the “clearest sort of taking” and therefore are a per se taking.

A statute that strips surface owners of their right to possess, use, and exclude others from pore space within their lands and assigns that right to oil and gas operators without surface owners’ consent or compensation is a per se taking.

It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand.

42 U.S.C. § 1988 authorizes attorney’s fees to a prevailing challenger of a federal constitutional claim in state court against the state or a state official sued in his or her official capacity regardless of whether §§ 1983 and 1988 are expressly pled in the complaint.

Northwest Landowners Association v. State, et al. 2022 ND 150
Docket No.: 20210148
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Constitutional Law
Author: Tufte, Jerod E.

State v. Pendleton 2022 ND 149
Docket No.: 20210287
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Brief sidebars or bench conferences conducted during trial to address routine evidentiary or administrative issues outside the hearing of the jury ordinarily will not implicate the public trial right.

Non-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials.

If it would be unreasonable to conclude the defendant’s absence had any effect on the proceedings or the result, such an error is harmless and does not warrant a reversal.

We consider jury instructions as a whole, and determine whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.

If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error. We exercise our power to consider obvious error cautiously and only in exceptional situations where the defendant has suffered serious injustice.

This Court has carved out a narrow exception to the general rule that statutes are not retroactive unless expressly declared so by the Legislature when the statute in question involves an ameliorating penal amendment to a criminal statute.