Opinions

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

Hanson v. NDDOT 2022 ND 135
Docket No.: 20220071
Filing Date: 7/7/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: A Department of Transportation hearing officer’s decision to admit or exclude evidence will be reversed on appeal only if the hearing officer abused her discretion.

Hearing exhibit provided documentary evidence establishing an Intoxilyzer 8000 device was installed by a field inspector.

Hanson v. NDDOT 2022 ND 135
Docket No.: 20220071
Filing Date: 7/7/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

State v. Piker 2022 ND 134
Docket No.: 20210344
Filing Date: 7/7/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: District courts “shall take into account the reasonable damages sustained by the victim or victims 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” in determining restitution amounts.

Self-defense operates as a bar to conviction rather than to reduce or eliminate restitution.

State v. Piker 2022 ND 134
Docket No.: 20210344
Filing Date: 7/7/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Interest of T.E. (CONFIDENTIAL) 2022 ND 133
Docket No.: 20220171
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

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

Interest of T.E. (CONFIDENTIAL) 2022 ND 133
Docket No.: 20220171
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

State v. Dearinger 2022 ND 132
Docket No.: 20210295
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: The probable cause showing required at a preliminary hearing is a minimal burden of proof.

The felony enhancement of hindering law enforcement under N.D.C.C. § 12.1-08-03(2)(a) requires the State to establish probable cause to believe a person knew of conduct of another and the known conduct constituted a class AA, A or B felony.

State v. Dearinger 2022 ND 132
Docket No.: 20210295
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Interest of A.P. (CONFIDENTIAL) (consolidated w/ 20220130 & 20220131) 2022 ND 131
Docket No.: 20220129
Filing Date: 6/23/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court orders terminating parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of A.P. (CONFIDENTIAL) (consolidated w/ 20220130 & 20220131) 2022 ND 131
Docket No.: 20220129
Filing Date: 6/23/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

State v. Johansen 2022 ND 130
Docket No.: 20220046
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered after the trial court found the defendant guilty of disorderly conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Johansen 2022 ND 130
Docket No.: 20220046
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

State v. Taylor 2022 ND 129
Docket No.: 20220038
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Except for a clerical error, an amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4), and remanded to correct the error.

State v. Taylor 2022 ND 129
Docket No.: 20220038
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

State v. Pulkrabek 2022 ND 128
Docket No.: 20210332
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: When the defendant does not raise a public challenge to any of the violations he asserts on appeal, this Court concludes any potential error should be treated as a forfeited error, subject to a review as an obvious error under N.D.R.Crim.P. 52(b).

Closures of pretrial hearings implicate the public trial right.

When the district court makes no Waller findings, there is a violation of the Sixth Amendment right to a public trial constituting obvious error.

Given our case law strictly requiring analysis of the Waller factors, we must reverse for a new trial to ensure the fairness, integrity, and public reputation of the justice system.

State v. Pulkrabek 2022 ND 128
Docket No.: 20210332
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Interest of A.G. (CONFIDENTIAL) (consolidated w/20210346) 2022 ND 127
Docket No.: 20210345
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: A juvenile court order finding two children to be in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.G. (CONFIDENTIAL) (consolidated w/20210346) 2022 ND 127
Docket No.: 20210345
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

State v. Thomas 2022 ND 126
Docket No.: 20210339
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: A district court has broad discretion in admitting or excluding evidence at trial.

In deciding whether to exclude evidence under N.D.R.Ev. 403, courts should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.

Failure to assert a claim of obvious error on appeal does not warrant review under the obvious error standard.

State v. Thomas 2022 ND 126
Docket No.: 20210339
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

State v. Bradshaw 2022 ND 125
Docket No.: 20210306
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An issue not properly preserved for appeal is limited to whether the alleged error constitutes obvious error affecting substantial rights.

A substantial right has not been denied unless the violation significantly prejudiced the defendant.

Defendant failed to show how he was significantly prejudiced by the late disclosure or admission of a redacted video.

State v. Bradshaw 2022 ND 125
Docket No.: 20210306
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Quamme v. Quamme 2022 ND 124
Docket No.: 20220034
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Quamme v. Quamme 2022 ND 124
Docket No.: 20220034
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: An appellate court’s jurisdiction generally attaches upon the filing of a notice of appeal and is not relinquished until the court issues its mandate.

An order or judgment entered by the district court without jurisdiction is void.