Opinions

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.

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

Bolinske v. Sandstrom, et al. 2022 ND 148
Docket No.: 20220016
Filing Date: 7/27/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A person bringing a claim against the state or a state employee 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 of claim as provided by statute. The district court lacks subject matter jurisdiction absent a timely filing of a notice of claim.

Because a court’s dismissal of claims without prejudice for lack of subject matter jurisdiction is not an adjudication on the merits, the doctrines of claim and issue preclusion do not foreclose a subsequent action to adjudicate those claims. However, claim preclusion prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by a final judgment on the merits.

Under N.D.R. Lawyer Discipl. 6.5, no lawsuit may be instituted against any complainant or witness in a lawyer disciplinary matter based on their communications to the board and its secretary, district inquiry committees, hearing panels, or counsel relating to lawyer misconduct or disability.

The affirmative defense that the statute of limitations has run must be pled by answer.

An appellate court is a court of review, not of first view.

If a party opposing a summary judgment motion shows by declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable declarations to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.

In civil actions, the court shall award reasonable attorney’s fees to the prevailing party if it finds a claim for relief was frivolous.

Bolinske v. Sandstrom, et al. 2022 ND 148
Docket No.: 20220016
Filing Date: 7/27/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Bridges v. State (consolidated w/20220078, 20220079 & 20220086) 2022 ND 147
Docket No.: 20220077
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A district court may summarily dispose of an application for postconviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

On an application for postconviction relief from a guilty plea claiming an exception to the statute of limitations under N.D.C.C. § 29-32.1-01(3) based on newly discovered evidence, the district court should consider whether the evidence was discovered after the guilty plea, whether the failure to learn about the evidence before the plea was not the result of the defendant’s lack of diligence, and whether the newly discovered evidence is material to what would have been the issues at trial. The court should also determine whether, if proved and reviewed in light of the evidence as a whole, the newly discovered evidence would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted.

An application for postconviction relief asserting a new interpretation of law must establish the interpretation is retroactively applicable and must be filed within two years of the date the decision announcing the new interpretation is published.

Bridges v. State (consolidated w/20220078, 20220079 & 20220086) 2022 ND 147
Docket No.: 20220077
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Disciplinary Board v. Baird (consolidated w/ 20210329-20210330) 2022 ND 146
Docket No.: 20210239
Filing Date: 7/21/2022
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer violates N.D.R. Prof. Conduct 1.3 by failing to act with reasonable diligence and promptness.

A lawyer violates N.D.R. Prof. Conduct 1.4 by failing to reasonably communicate with a client regarding their case.

A lawyer violates N.D.R. Prof. Conduct 1.16 by failing to take reasonable steps to protect a client’s interests.

Disbarment is an appropriate sanction when a lawyer causes serious or potentially serious injury to a client.

Lovro v. City of Finley 2022 ND 145
Docket No.: 20210300
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A party may not merely recite conclusory general allegations that additional discovery is needed.

A political subdivision may not be held liable for claims based on the decision to perform or the refusal to exercise or perform a discretionary function or duty.

Lovro v. City of Finley 2022 ND 145
Docket No.: 20210300
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

State v. Anderson 2022 ND 144
Docket No.: 20210363
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An issue must be ripe for review for the court to adjudicate it, and an issue is not ripe for review if it depends on future contingencies which may or may not occur.

State v. Anderson 2022 ND 144
Docket No.: 20210363
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

State v. Greff 2022 ND 143
Docket No.: 20220059
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court’s restitution order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Greff 2022 ND 143
Docket No.: 20220059
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

State v. Koon 2022 ND 142
Docket No.: 20220018
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of reckless endangerment and unlawful possession of a firearm is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Koon 2022 ND 142
Docket No.: 20220018
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Interest of Skorick 2022 ND 141
Docket No.: 20210349
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Highlight: To determine whether an individual has serious difficulty in controlling behavior, all relevant conduct may be considered.

Both conduct in proximity to the hearing as well as past conduct is relevant in determining serious difficulty controlling behavior, and the conduct need not be sexual in nature.

Interest of Skorick 2022 ND 141
Docket No.: 20210349
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Allery v. Whitebull 2022 ND 140
Docket No.: 20210316
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Greater liberty should be used when considering an N.D.R.Civ.P. 60(b) motion for relief from a judgment when the matter involves a default judgment rather than a judgment on the merits.

A motion under N.D.R.Civ.P. 60(b) should not be used to relieve a party from free, calculated, and deliberate choices. A party is obligated to take legal steps to protect his or her interests.

Courts should grant an N.D.R.Civ.P. 60(b) motion to set aside a default judgment when it is prompt and contains an answer disclosing a meritorious defense.

Allery v. Whitebull 2022 ND 140
Docket No.: 20210316
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Norberg v. Norberg, et al. 2022 ND 139
Docket No.: 20220064
Filing Date: 1/5/2023
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: When the district court fails to adequately explain the legal basis for its decision, appellate review of the decision is not possible and remand is appropriate.

Norberg v. Norberg, et al. 2022 ND 139
Docket No.: 20220064
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Mbulu v. State 2022 ND 138
Docket No.: 20210224
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A party opposing a motion to summarily dismiss a claim for post-conviction relief is entitled to all reasonable inferences and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.

A claim for post-conviction relief may be deemed abandoned if it is not further developed after it is first made in the application for post-conviction relief.

Mbulu v. State 2022 ND 138
Docket No.: 20210224
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Baker v. Erickson 2022 ND 137
Docket No.: 20210288
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A tribal court restraining order is not entitled to full faith and credit in North Dakota state courts if the tribal court did not have personal or subject matter jurisdiction over the parties or matter.

Baker v. Erickson 2022 ND 137
Docket No.: 20210288
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Berdahl v. Berdahl 2022 ND 136
Docket No.: 20210320
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: A district court’s valuations of marital property are not clearly erroneous if they are within the range of evidence, and the value the court gives to marital property depends on the evidence presented.

Both economic and noneconomic fault may be considered in dividing marital property, but evidence presented may indicate both parties must share responsibility for the failure of the marriage.

Section 14-05-24(1), N.D.C.C. (2017), is not ambiguous and the district court does not have discretion to choose a valuation date for the marital estate. A court clearly errs by including property acquired after the valuation date provided by statute.

District court requiring one party to continue to pay post-separation marital expenses was equitable, as paying party had greater earnings and earning capacity and the obligation to pay had predetermined end date.

Rehabilitative spousal support may be awarded to provide receiving spouse with opportunity to acquire education, training, work skills, or experience to become self-sustaining.

A district court abuses its discretion by awarding attorney’s fees without proper statutory authority and without specific findings relating to ability to pay and need.

Berdahl v. Berdahl 2022 ND 136
Docket No.: 20210320
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair