Opinions

State v. Vickerman 2022 ND 184
Docket No.: 20220085
Filing Date: 11/10/2022
Case Type: Appeal - Criminal - Homicide
Author: Jensen, Jon J.

Wilkinson, et al. v. Bd. of University and School Lands of the State of N.D. 2022 ND 183
Docket No.: 20220037
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A person bringing a claim against the State for an injury shall present to the director of the office of management and budget within 180 days after the alleged injury is discovered or reasonably should have been discovered a written notice.

Civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another and an overt act that results in damages. A civil conspiracy generally requires the underlying act itself to be actionable as a tort claim.

A physical taking is where the government requires an owner to suffer a permanent physical invasion of her property. Total regulatory takings occur when regulations completely deprive an owner of all economically beneficial use of her property.

Unjust enrichment requires an enrichment, an impoverishment, a connection between the enrichment and the impoverishment, an absence of justification for the enrichment and impoverishment, and an absence of remedy provided by law.

Section 1983, 42 U.S.C., provides a cause of action against a state actor depriving a citizen of a constitutional right.

Wilkinson, et al. v. Bd. of University and School Lands of the State of N.D. 2022 ND 183
Docket No.: 20220037
Filing Date: 11/10/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Northern Oil & Gas v. EOG Resources, et al. 2022 ND 182
Docket No.: 20220133
Filing Date: 10/27/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: A transfer in writing is called a grant. A grant takes effect upon its delivery. For a delivery to occur, a grantor must intend to pass title. Delivery of a grant with intent that title transfer upon some contingency or condition is prohibited. A conditional delivery is absolute.

The rules of contract interpretation apply to oil and gas leases. Contracts executed together concerning the same subject matter may be read and construed together, but they retain their separate identity. Extrinsic evidence, including another agreement, may not be used to alter the unambiguous terms of an oil and gas lease.

An unrecorded instrument encumbering real estate is valid as to those with notice of the instrument.

Northern Oil & Gas v. EOG Resources, et al. 2022 ND 182
Docket No.: 20220133
Filing Date: 10/27/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

State v. Wilson 2022 ND 181
Docket No.: 20220123
Filing Date: 10/27/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A criminal judgment entered following a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Wilson 2022 ND 181
Docket No.: 20220123
Filing Date: 10/27/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Schmidt v. Hageness, et al. 2022 ND 180
Docket No.: 20220138
Filing Date: 10/27/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
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 requirements under N.D.C.C. § 47-10-05.  

Schmidt v. Hageness, et al. 2022 ND 180
Docket No.: 20220138
Filing Date: 10/27/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Per Curiam

Schmidt v. Hageness, et al. 2022 ND 179
Docket No.: 20220109
Filing Date: 10/27/2022
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

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 requirements under N.D.C.C. § 47-10-05.

Dismissal of motions for reconsideration are summarily affirmed for failing to meet grounds for relief under N.D.R.Civ.P. 59(j) or 60(b).

Schmidt v. Hageness, et al. 2022 ND 179
Docket No.: 20220109
Filing Date: 10/27/2022
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Queen v. Martel, et al. 2022 ND 178
Docket No.: 20220121
Filing Date: 2/23/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An award of equal residential responsibility of a minor child is remanded to the district court to make specific findings of fact on whether the domestic violence rebuttable presumption under N.D.C.C. § 14-09-06.2(1)(j) is triggered and, if so, whether the presumption is rebutted.

Queen v. Martel, et al. 2022 ND 178
Docket No.: 20220121
Filing Date: 10/4/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Rekow v. Durheim 2022 ND 177
Docket No.: 20220073
Filing Date: 10/4/2022
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A petitioner for a disorderly conduct restraining order must allege specific facts or threats showing the acts are intended to affect the petitioner's safety, security, or privacy.

Rekow v. Durheim 2022 ND 177
Docket No.: 20220073
Filing Date: 10/4/2022
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

State v. Pieper 2022 ND 176
Docket No.: 20220084
Filing Date: 9/29/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment of driving under the influence and driving under suspension is summarily affirmed under N.D.R.App.P.35.1(a)(2) and (7).

State v. Pieper 2022 ND 176
Docket No.: 20220084
Filing Date: 9/29/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

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