Opinions

Lindeman v. State 2024 ND 228
Docket No.: 20240058
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: To succeed on a claim of ineffective assistance of counsel, the petitioner must first prove his counsel's performance was defective. Second, the petitioner must show his defense was prejudiced by the proven defects. Both must be established in order to prevail under a claim of ineffective assistance of counsel. Thus, if there is an insufficient showing on one, the reviewing court need not address the other.

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.

State v. Gothberg 2024 ND 217
Docket No.: 20240138
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Ordinarily in cases involving consent to enter a home, entry is preceded by an exchange between a police officer and an occupant in which the officer makes an inquiry and in response the occupant verbally or physically reacts in a manner that may be interpreted as consent. Absent verbal consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police.

The existence of consent is a question of fact to be determined from the totality of the circumstances. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include.

Whether consent was voluntarily given considers examination of the totality of the circumstances at the time it was given.

Factors that may be considered in determining the totality of the circumstances are the characteristics and condition of the accused at the time of consent and the details of the setting in which consent was obtained, though no one factor is determinative.

Judicial Conduct Commission v. Hagen 2024 ND 216
Docket No.: 20240282
Filing Date: 11/21/2024
Case Type: Discipline - Judge - Other
Author: Per Curiam

Highlight: Judge Admonished

Chase v. State 2024 ND 215
Docket No.: 20240024
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A district court order denying an amended application for postconviction relief is affirmed.

The affirmative defenses of res judicata and the statute of limitations are waived by the State when not raised in its answer to an application for postconviction relief.

To trigger the presumption of prejudice arising from improper jury contact, an applicant must first establish that the improper contact actually occurred.

Sanchez v. State 2024 ND 214
Docket No.: 20240173
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court judgment denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

RMM Properties v. City of Minot 2024 ND 213
Docket No.: 20240130
Filing Date: 11/21/2024
Case Type: Appeal - Administrative - Zoning
Author: Bahr, Douglas Alan

Highlight: A court's review is very limited in an appeal from a local governing body's decision. The supreme court's function is to independently determine the propriety of the local governing body's decision, without any special deference to the district court's decision.

The decision of a local governing body must be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not substantial evidence supporting the decision.

Chapters 40-39 and 40-50.1, N.D.C.C., are intended to accomplish different tasks, and each provides its own method to protect public rights in streets, alleys, and public grounds. Section 40-39-05, N.D.C.C., applies when a petition seeks only to vacate "public grounds, streets, alleys, or parts thereof." Section 40-50.1-16, N.D.C.C., applies when all owners of lots in a plat seek to vacate the plat or part of the plat containing "public rights in the streets, alleys, easements, and public grounds."

Northstar Center v. Lukenbill Family Partnership, et al. 2024 ND 212
Docket No.: 20240034
Filing Date: 1/24/2025
Case Type: Appeal - Civil - Contracts
Author: Bahr, Douglas Alan

Northstar Center v. Lukenbill Family Partnership, et al. 2024 ND 212
Docket No.: 20240034
Filing Date: 2/14/2024
Case Type: Appeal - Civil - Contracts
Author: Bahr, Douglas Alan

Highlight: Summary judgment should not constitute mini-trials of factual issues and is not appropriate when the court must draw inferences or make findings on disputed facts.

The elements of a prima facie case for breach of contract are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the breach. A breach of contract is the nonperformance of a contractual duty when it is due. While construction of a written contract to determine its legal effect presents a question of law, whether a party has breached a contract is a finding of fact.

An interference with contract claim contemplates a tortfeasor who either prevented a third party from entering into a contract or induced the third party to breach the contract with the plaintiff. To establish a prima facie case for intentional interference with contract, a plaintiff must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) the defendant instigated the breach without justification.

To prevail on an intentional interference with contract claim, the plaintiff must show the defendant acted intentionally, and the intent required goes beyond the traditional tort concept of intent. The plaintiff must show the defendant specifically intended to interfere with the plaintiff's contractual rights, or acted with knowledge that the interference would result. A party's intent generally presents a question of fact.

An indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties or of some other person. Indemnification is a remedy which allows a party to recover reimbursement from another for the discharge of a liability which, as between them, should have been discharged by the other.

State v. Villazana 2024 ND 211
Docket No.: 20230307
Filing Date: 11/21/2024
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: Under N.D.R.Ev. 404(b), district courts are to apply a three-step analysis to determine whether the evidence of other crimes, wrongs, or acts is admissible: 1) the court must look to the purpose for which the evidence is introduced; 2) the evidence of the prior act or acts must be substantially reliable or clear and convincing; and 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts.

Under N.D.R.Crim.P. 52, any error, defect, irregularity or variance that does not affect substantial rights must be disregarded. When reviewing a nonconstitutional trial error, the objective is to determine whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without the error.

Under N.D.R.Ev. 103(a)(1)(B), an objection to the introduction of evidence must state the specific ground of the objection unless it was apparent from the context.

Only issues that have been thoroughly briefed and argued are considered on appeal.

The standard of review for reconciling a jury verdict is whether the verdict is legally inconsistent. Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. Reconciliation of a verdict includes an examination of both the law and the case in order to determine whether the verdict is logical and probable, and therefore consistent, or illogical and clearly contrary to the evidence.

Even if a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is no legal inconsistency if there is substantial evidence to support the charge on which he is convicted. 1Jury instructions agreed to by a defendant become the law of the case.

State v. Ford 2024 ND 210
Docket No.: 20240074
Filing Date: 11/21/2024
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance of counsel, the defendant may pursue the ineffectiveness claim at a postconviction proceeding where an adequate record can be made.

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Bott v. Bott 2024 ND 209
Docket No.: 20240070
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: A district court does not have continuing jurisdiction over a final property distribution.

Nevertheless, a final property division in a divorce may be modified in the same manner and on the same grounds as other judgments including a motion pursuant to N.D.R.Civ.P. 60.

Extraordinary circumstances are required for N.D.R.Civ.P. 60(b)(6) to be invoked.

If the judgment sought to be set aside was entered based on a stipulation of the parties, the party challenging the judgment has the additional burden of showing under the law of contracts there is justification for setting aside the stipulation.

On appeal, only considered is a determination of whether the district court abused its discretion in ruling that sufficient grounds for disturbing the finality of a judgment were not established, not whether the court was substantively correct in entering the judgment from which relief was sought.

Nelson, et al. v. Lindvig, et al. 2024 ND 208
Docket No.: 20230257
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A person must have a reasonable claim to an interest or estate in real property to maintain a quiet title action.

A person without an interest or estate in real property cannot simultaneously voluntarily join a quiet title action and seek attorney's fees by claiming the action is frivolous.

An award of attorney's fees is reviewed under the abuse of discretion standard.

Nelson, et al. v. Persons Unknown, et al. 2024 ND 208
Docket No.: 20240106
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A person must have a reasonable claim to an interest or estate in real property to maintain a quiet title action.

A person without an interest or estate in real property cannot simultaneously voluntarily join a quiet title action and seek attorney's fees by claiming the action is frivolous.

An award of attorney's fees is reviewed under the abuse of discretion standard.

Disciplinary Board v. Spencer (Interim Suspension) 2024 ND 207
Docket No.: 20240307
Filing Date: 11/12/2024
Case Type: Discipline - Attorney - Suspension
Author: Per Curiam

Highlight: Attorney Interim Suspended

Olson v. Olson, et al. 2024 ND 206
Docket No.: 20240067
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A district court must have sufficient evidence to support a finding of great prejudice prior to ordering a partition by sale.

The party seeking partition by sale must prove great prejudice with authenticated evidence that a physical partition would result in serious pecuniary injury.

Mbulu v. State 2024 ND 205
Docket No.: 20240036
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (7), and (8).

State v. Callahan 2024 ND 204
Docket No.: 20240145
Filing Date: 11/8/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
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).

State v. Cruz 2024 ND 203
Docket No.: 20240099
Filing Date: 11/8/2024
Case Type: Appeal - Criminal - Assault
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).

Sanderson v. Myrdal, et al. 2024 ND 202
Docket No.: 20240091
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

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

A plaintiff may not challenge the court's jurisdiction over a defendant who admitted personal jurisdiction on the basis of defects in the plaintiff's service of process on the defendant.

Generally, a plaintiff may not obtain a default judgment after being served with defendant's answer.

Under Lindke v. Freed, 601 U.S. 187 (2024), a state official's social-media activity constitutes state action under 42 U.S.C. § 1983 only if the official (1) possessed actual authority to speak on the state's behalf, and (2) purported to exercise that authority when he spoke on social media.

A district court has discretion under N.D.C.C. § 28-26-01(2) to determine whether a claim is frivolous and how much to award, but the district court must award costs and attorney's fees if it finds the claim is frivolous.

Fargo Education Association v. Fargo Public School District 2024 ND 201
Docket No.: 20240151
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: School psychologists not "employed primarily as a classroom teacher" are not "teachers" as defined in N.D.C.C. § 15.1-16-01(5).

Hilton v. North Dakota Edu. Ass'n, 2002 ND 209, 655 N.W.2d 60, is overruled to the extent it holds a licensed school district employee who is not an administrator is a teacher irrespective of the employee's assigned teaching duties.

A special education teacher is not a "teacher" within N.D.C.C. ch. 15.1-16 when the teacher is not a school employee. This Court does not hold whether a school district may provide teaching services through independent contractors.

Interest of J.S. 2024 ND 200
Docket No.: 20240257
Filing Date: 10/24/2024
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 N.S. 2024 ND 200
Docket No.: 20240258
Filing Date: 10/24/2024
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 B.S. 2024 ND 200
Docket No.: 20240259
Filing Date: 10/24/2024
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).

Malloy, et al. v. Behrens 2024 ND 199
Docket No.: 20240071
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. § 28-21-06(1), when a sheriff receives an execution, the sheriff must satisfy the judgment out of the personal property of the judgment debtor, and if sufficient personal property cannot be found, out of the real property belonging to the debtor.

Applying a statute retroactively results in the attachment of new legal consequences to past matters. Applying a statute prospectively results in the attachment of legal consequences to matters occurring after its effective date. The court must ask whether the new provision attaches new legal consequences to events completed before its enactment.

A debtor is allowed to claim as exempt up to $150,000 of equity in the homestead under N.D.C.C. ch. 47-18. This is accomplished by requiring bids to be more than $150,000 plus the value of liens and encumbrances. See N.D.C.C. §§ 47-18-01 and 47-18-13.

Superior liens are not extinguished by an execution sale. A purchaser of land subject to a mortgage is presumed to have deducted the amount of the senior liens from the amount he bids for the land. A purchaser taking subject to a prior lien is not entitled to an offset for the lien amount.

Kirchmeier v. Monson, et al. 2024 ND 198
Docket No.: 20240075
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Rule 25 of the North Dakota Rules of Civil Procedure governs substitution when a party dies during district court proceedings. Rule 25 provides a number of requirements that must occur before substitution of a party can be ordered and a case continued.

A conservator's authority terminates when the protected person dies.

State v. White Bird 2024 ND 197
Docket No.: 20240132
Filing Date: 10/24/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Edison v. Edison 2024 ND 196
Docket No.: 20240119
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Divorce
Author: Tufte, Jerod E.

Highlight: An amended divorce judgment is affirmed.

Adverse rulings alone are not evidence of judicial bias or partiality.

A district court misapplies N.D. Admin. Code § 75-02-04.1-05 when it fails to make a finding on whether two self-employment activities are related.

The plain language of N.D. Admin. Code § 75-02-04.1-05(6) and (7) does not preclude using a loss to reduce income that is related to the self-employment activity that produced the loss. On the other hand, if two self-employment activities are unrelated, then under N.D. Admin. Code § 75-02-04.1-05(6), a loss resulting from the unrelated self-employment activity could be applied to reduce income from the other self-employment activity only if the monthly gross income, reduced by one-twelfth of the self-employment loss, equals or exceeds the greatest of subsections (a), (b) or (c). If the district court erred in its application of the child support guidelines, then we must examine whether the error was harmless. An error is harmless if it does not affect the outcome of the case or a party's substantial rights. See N.D.R.Civ.P. 61.

Tracy v. Tracy 2024 ND 195
Docket No.: 20240092
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A domestic violence protection order is affirmed.

A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. This Court gives great deference to a factfinder's opportunity to observe the witnesses and determine credibility. We will not reverse simply because we may have viewed the evidence differently.

Interest of D.K.A. 2024 ND 194
Docket No.: 20240248
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Mental Health
Author: McEvers, Lisa K. Fair

Highlight: An appeal is moot when a determination is sought which, when rendered, cannot have any practical legal effect upon a then-existing controversy. An appeal is not moot if the district court's decision continues to have collateral consequences for the appealing party. If an individual is already subject to firearms restrictions, the court's finding that federal firearms restrictions apply is not a lasting collateral consequence of the order being challenged on appeal.

Santora v. Santora, et al. 2024 ND 193
Docket No.: 20240014
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), (7), and (8).

Interest of A.J.E. 2024 ND 192
Docket No.: 20240245
Filing Date: 10/24/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Daniel 2024 ND 191
Docket No.: 20240182
Filing Date: 10/18/2024
Case Type: Discipline - Attorney - Disbarment
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Kath v. Farmers Union Mutual Ins. Co., et al. 2024 ND 190
Docket No.: 20240068
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: An endorsement is part of the insurance contract. The body of an insurance policy and the endorsements are read as a whole with every attempt to give effect to all of the provisions. When there is a conflict between an endorsement and other policy provisions, the endorsement prevails.

Guardianship and Conservatorship of K.H.P. 2024 ND 189
Docket No.: 20240021
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: Unless a statute imposing a time limit declares the time limit is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency.

An issue is not justiciable if it is moot or not ripe for review, a party lacks standing, or resolving it would be advisory.

When petitioning for termination of a guardianship, the ward has the burden of establishing a prima facie case that he is no longer incapacitated. If the ward presents evidence strong enough, if uncontradicted, to support a finding in his favor, he has made a prima facie case.

The review process under N.D.C.C. § 30.1-28-04(5) does not provide the court statutory authority to reappoint an expert examiner. At the time of petitioning for termination in this case, N.D.C.C. § 30.1-28-07(3) (2022) did not give the court statutory authority to reappoint an expert examiner in the termination proceedings, or request an evaluative report and testimony.

After the ward establishes a prima facie case, the guardian has the burden of proving by clear and convincing evidence that the ward remains an incapacitated person.

Curtis v. Curtis, et al. 2024 ND 188
Docket No.: 20240115
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Divorce
Author: Tufte, Jerod E.

Highlight: An appeal from a district court judgment is dismissed because the appeal was untimely. The time to appeal the judgment was not tolled under N.D.R.App.P. 4(a)(3)(A)(vi) because a Rule 60, N.D.R.Civ.P., motion was not filed and served within 28 days from notice of entry of judgment.

Samaniego v. State 2024 ND 187
Docket No.: 20240090
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: A prosecutor's question to a law enforcement officer whether, at any point during the officer's investigation, the officer interviewed the defendant did not violate the defendant's Fifth Amendment rights.

A court considering a motion for new trial based on alleged jury misconduct is prohibited from hearing testimony from or receiving declarations of jurors, subject to the exceptions under N.D.R.Ev. 606(b).

State v. Jalloh (consolidated w/20240009) 2024 ND 186
Docket No.: 20240010
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Judgments entered after a jury found the defendant guilty of tampering with evidence and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Jalloh (consolidated w/20240010) 2024 ND 186
Docket No.: 20240009
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgments entered after a jury found the defendant guilty of tampering with evidence and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Martinez v. State 2024 ND 185
Docket No.: 20240064
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief from the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Woolsey v. State 2024 ND 184
Docket No.: 20240109
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, does not apply to juvenile adjudications.

Liberty Petroleum Corp. v. NDIC, et al. 2024 ND 183
Docket No.: 20240022
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: Pre-unitization costs of drilling and operating a well, which is now attributed to the unit, reasonably fall within the definition of unit expense. Under unitization, the risk penalty may be recovered out of, and only out of, production from the unit.

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. Property is subject to the police power of the state to impose such restrictions upon private rights as are practically necessary for the general welfare of all.

The Court accords greater deference to Industrial Commission findings of fact than it ordinarily accords to other administrative agencies' findings of fact. In orders approving a plan of unitization, the Commission made the required findings, and those findings are supported by substantial and credible evidence.

State v. Hoffman 2024 ND 182
Docket No.: 20240095
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Homicide
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).

Urrabazo v. State 2024 ND 181
Docket No.: 20240085
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Roller 2024 ND 180
Docket No.: 20240051
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: "Willful" conduct is not incongruent with "intentional" conduct. "Willful" conduct includes "intentional" conduct, meaning a person's conduct can be both willful and intentional.

Habitual offender proceedings are sentencing proceedings. Therefore, the rules of evidence do not apply to the court's determination of whether an offender is a habitual offender.

Interest of J.R. 2024 ND 179
Docket No.: 20240207
Filing Date: 9/26/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A district court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1 (a)(2) and (4).

Interest of T.R. 2024 ND 179
Docket No.: 20240208
Filing Date: 9/26/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A district court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1 (a)(2) and (4).

Estate of Olson 2024 ND 178
Docket No.: 20240078
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: A district court order dismissing a petition for formal probate for failure to prosecute under N.D.R.Civ.P. 40(e) is reversed because the record does not show a lack of prosecution for more than a year.

Interest of J.M.P. 2024 ND 177
Docket No.: 20240223
Filing Date: 9/26/2024
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. 35.1(a)(2) and (4).

Disciplinary Board v. Merkens (interim Suspension) 2024 ND 176
Docket No.: 20240261
Filing Date: 9/26/2024
Case Type: Discipline - Attorney - Suspension
Author: Per Curiam

Highlight: Lawyer interim suspended

State v. Rolland 2024 ND 175
Docket No.: 20230313
Filing Date: 9/12/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial. A defendant is incompetent when he lacks (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. The prosecution must show by a preponderance of evidence that a defendant is competent to stand trial.

The fifteen day deadline for a mental health examination under N.D.C.C. § 12.1-04-07 does not begin until receipt of material necessary to examine the fitness of the individual and notice of entry of the order served upon the tier 1a mental health professional.

When factual issues are involved in deciding a pretrial motion in a criminal case, the district court must state its essential findings on the record. A decision cannot be properly reviewed if the district court fails to make adequate findings explaining the basis for its ultimate conclusion.

Interest of W.C.M. 2024 ND 174
Docket No.: 20240213
Filing Date: 9/12/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order requiring continued hospitalization is summarily affirmed under N.D.R.App.P 35.1(a)(2).

State v. Littlebird 2024 ND 173
Docket No.: 20240050
Filing Date: 9/12/2024
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Senske Rentals v. City of Grand Forks 2024 ND 172
Docket No.: 20230397
Filing Date: 9/12/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The statutes granting cities the power to make special assessments must be strictly construed, and the conditions imposed must be specifically observed and performed.

Section 40-23-07, N.D.C.C., requires a determination of special benefits to each lot. This determination of special benefits must be independent of and without consideration of the improvement project cost in order to satisfy the statutory requirement that the assessment against each lot is "not exceeding the benefits."

We have approved the use of formulas by special assessment commissions to determine the "just proportion" of assessment to each lot and as a factor in determining the amount of benefit received by each lot.

We overrule Holter v. City of Mandan, 2020 ND 152, 946 N.W.2d 524, because it misinterpreted N.D.C.C. § 40-23-07 to the extent it held the statute permitted use of the same formula to determine both the benefit received by a lot and the assessment of costs to that lot.

Mitzel, et al. v. Vogel Law Firm, et al. 2024 ND 171
Docket No.: 20230372
Filing Date: 9/12/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan

Highlight: The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty.

When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefitted the client.

In a legal malpractice action, the plaintiff has the burden to show damages proximately caused by the breach of the duty owed to the plaintiff. The amount of the damages does not require proof to a degree of mathematical precision; however, the jury must have some factual basis for fixing damages.

Gaddie v. State 2024 ND 170
Docket No.: 20240052
Filing Date: 8/28/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To establish prosecutorial misconduct, an applicant for postconviction relief must show (1) the prosecutor's actions constitute misconduct, and (2) the misconduct had a prejudicial effect.

North Dakota Rule of Evidence 404(b) requires exclusion of evidence of other acts and crimes committed by the defendant when they are independent of the charged crime and do not fit into the rule's exceptions. Rule 404(b) requires prosecutors to give written notice and explanation if they intend to offer prior bad act evidence.

Knowing introduction of prior bad act evidence coupled with a failure to comply with the Rule 404(b) notice requirement constitutes prosecutorial misconduct.

Admission of evidence of prior sexual misconduct during a criminal prosecution for a sex-related crime creates unique potential for prejudice.

Wollan v. Innovis Health 2024 ND 169
Docket No.: 20240094
Filing Date: 8/28/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan

Highlight: A jury's special verdict will be reversed only if it is perverse and clearly contrary to the evidence. The presumption on appeal is that jurors do not intend to return conflicting answers.

Reconciliation of a verdict includes an examination of both the law of the case and the evidence to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

Rule 408, N.D.R.Ev., encourages candor during settlement discussions by expanding the common-law rule and rendering inadmissible evidence of conduct or a statement made during compromise negotiations.

Ebel, et al. v. Engelhart, et al. 2024 ND 168
Docket No.: 20240065
Filing Date: 8/28/2024
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A contract requires an offer, an acceptance of an offer, and a mutual acceptance and understanding between the offeror and the offeree as to the terms of the obligation.

When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings.

Actual notice of a prior competing interest defeats a good-faith purchaser claim.

To succeed on a claim for intentional interference with contract, a plaintiff must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) the defendant instigated the breach without justification. The test for proving justification is what is reasonable conduct under all the circumstances of the case. Even where the evidence shows a defendant interfered with a contract, the defendant's actions are justified if they are done for legitimate business concerns and did not maliciously seek to damage the plaintiff.

State v. Miller 2024 ND 167
Docket No.: 20240039
Filing Date: 8/14/2024
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Restitution must be limited to reasonable damages "directly related" to a criminal offense or expenses sustained as a "direct result" of the defendant's criminal action. There must be an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered. Extradition costs indirectly related to criminal conduct may not be imposed as restitution.

A district court is generally bound by the terms of a plea agreement it has accepted. After accepting a plea agreement and entering judgment, the court may not add an additional punishment.

Ziemann v. Grosz 2024 ND 166
Docket No.: 20230355
Filing Date: 8/14/2024
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A denial of summary judgment puts the parties to their proof with a full opportunity to present all of their evidence. If a case goes to trial after a motion for summary judgment is denied, the question of whether the trial court erred in denying summary judgment is moot.

A partnership is an association of two or more persons to carry on as co-owners a business for profit. Whether a partnership exists depends on the facts and circumstances of each case. The critical elements of a partnership are (1) an intention to be partners, (2) coownership of the business, and (3) a profit motive.

The determination whether property held in the name of an individual partner belongs to the partnership is a question of fact. The relevant inquiry is whether the partners intended that the property in question be partnership property or individual property.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. When a statement within a statement is at issue, each must be admissible on its own.

Interest of W.S., a Child 2024 ND 165
Docket No.: 20240179
Filing Date: 8/14/2024
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 W.S., a Child 2024 ND 165
Docket No.: 20240180
Filing Date: 8/14/2024
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).

State v. Enriquez 2024 ND 164
Docket No.: 20240087
Filing Date: 8/14/2024
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: Possession may be actual or constructive, exclusive or joint and may be shown entirely by circumstantial evidence.

Under N.D.C.C. § 12.1-01-04(9), a firearm means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive.

Bolinske v. Sandstrom, et al. 2024 ND 163
Docket No.: 20230359
Filing Date: 8/14/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court judgment dismissing a claim of defamation and awarding attorney's fees is affirmed.

A defamation action must be commenced within two years after the claim for relief has accrued. A cause of action accrues on a defamation claim when the publication of the false statement is made to a third party. The period of limitation for commencement of a defamation action is tolled during the 45-day period allowed in N.D.C.C. § 32-43-06 for responding to a request for correction or clarification. The statutory reference to 90 days in N.D.C.C. § 32-43-03(2) does not provide an additional 90-day tolling period in addition to the 45-day period in N.D.C.C. § 32-43-06.

The district court has discretion under N.D.C.C. § 28-26-01(2) to determine whether a claim is frivolous and how much to award in attorney's fees. The court is considered an expert in determining the amount of attorney's fees. A court is not required to describe its calculations in detail when making its findings regarding attorney's fees as long as this Court is able to discern a basis for the award.

Zundel v. City of Jamestown, et al. 2024 ND 162
Docket No.: 20240080
Filing Date: 8/14/2024
Case Type: Original Proceeding - Criminal - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: Retention of and access to court records is a matter of public interest warranting the exercise of this Court's original jurisdiction.

The judge of a municipal court or a clerk designated by the judge shall be responsible for the administration of all municipal court records in accordance with the records retention schedule.

The retention schedule requires the court to retain permanently a summary of the case or register of actions. A permanent record must be retained indefinitely.

Burleigh Cty. Social Service Bd. v. Rath 2024 ND 161
Docket No.: 20230411
Filing Date: 8/14/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: The doctrine of latches does not apply to child support arrearages.

Even if the division of juvenile services has temporary custody of a minor, the child support obligor still owes child support.

The State and obligee have standing to assert a claim for child support arrearages for a child who has reached the age of majority.

The Federal Consumer Credit Protection Act does not apply to child support.

Heiser, et al. v. Dahl, et al. 2024 ND 160
Docket No.: 20230323
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant.

Section 28-01-11, N.D.C.C., narrows the scope of adverse possession when it is not based on a written instrument to property protected by a substantial enclosure or when it has been usually cultivated or improved.

Possession of real property which is permissive at its inception only becomes adverse when there is a disclaimer of the true owner's title or there are acts of an unequivocal nature by the possessor putting the owner on notice of the hostile nature of the possession.

A claimant's mowing and maintenance are not unmistakable hostile uses of land to support a claim of adverse possession.

To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary for at least 20 years.

N.D. Energy Services v. Lime Rock Resources III-A, et al. 2024 ND 159
Docket No.: 20240096
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: A lease must be read and considered in its entirety so that all of its provisions are taken into consideration to determine the parties' true intent.

Under a usual oil and gas lease, the lessee, in developing the leased premises, is entitled to use of the land reasonably necessary in producing the oil.

A purchaser who fails to make the requisite inquiry cannot claim the protection of a goodfaith purchaser status.

State v. Watts 2024 ND 158
Docket No.: 20230358
Filing Date: 8/1/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: When a defendant fails to object to a proposed instruction properly or fails to specifically request an instruction or object to the omission of an instruction, the issue is not adequately preserved for appellate review and the inquiry is limited to whether the jury instructions constitute obvious error affecting substantial rights.

To successfully challenge the sufficiency of the evidence on appeal, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.

Improper comment about a defendant's invocation of the right to remain silent is a constitutional error that may be reviewed on appeal even though not raised at trial. When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error

Nordquist v. Alonge, et al. 2024 ND 157
Docket No.: 20230329
Filing Date: 8/1/2024
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Bahr, Douglas Alan

Highlight: A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and must establish no plain, speedy, and adequate remedy exists in the ordinary course of law.

When a deed does not use an existing tract currently recorded, and Instead, the deed attempts to convey a portion of land not previously recorded in the tract index as a tract or parcel of land. The description in the deed changes the property description.

Under N.D.C.C. § 57-02-39, the Auditor has discretion to request a replat of the land if certain conditions are met.

Property ownership is an issue for a court to decide in an appropriate proceeding involving the individuals who claim ownership to the property.

Fiebiger v. Anderson 2024 ND 156
Docket No.: 20240129
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: In summary judgment proceedings, the non-moving party cannot rely on pleadings or unsupported conclusionary allegations. The non-moving party must present admissible evidence that raises an issue of material fact. If the non-moving party does not meet their burden, the district court may grant summary judgment

Anderson v. Foss, et al. 2024 ND 154
Docket No.: 20240008
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court's order is affirmed in part and remanded for 30 days while retaining jurisdiction under N.D.R.App.P. 35(a)(3) for no further proceedings other than to provide the additional findings requested by the Court.

State v. Reiswig 2024 ND 153
Docket No.: 20240048
Filing Date: 8/1/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: This Court employs a trustworthiness approach when analyzing whether a confession is sufficiently corroborated. Under this approach, not every statement made in a confession must be independently verified; instead, we look to a statement made in its entirety and the facts and circumstances in which it was made to determine if it is reliable and trustworthy.

A person of reasonable caution could conclude the statement "we did have sex" means sexual intercourse meeting the statutory definition of a sexual act under N.D.C.C. § 12.1-20-02(4).

State v. Prescott 2024 ND 152
Docket No.: 20230325
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Schweitzer v. State 2024 ND 151
Docket No.: 20240045
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A petitioner for postconviction relief must show how his counsel was ineffective through law, rules, or evidence, and cannot rely solely on conclusionary statements.

State v. Evitt 2024 ND 150
Docket No.: 20240077
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Hunting without a license and violating a governor's proclamation are crimes in North Dakota that the State has authority to prosecute and the district courts have jurisdiction to redress.

The sovereign citizen defense, under which adherents claim they can deny the courts' jurisdiction, is without merit.

Durr v. Volden, et al. 2024 ND 149
Docket No.: 20240029
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: In a trust relationship, a beneficiary has the burden of establishing their fiduciary made unaccounted-for withdrawals or made suspicious transactions that indicate undue influence. If the beneficiary proves this, a court must presume undue influence occurred for any benefit gained by the fiduciary. To avoid liability to the beneficiary for the transactions, the fiduciary must rebut the presumption to show no undue influence occurred.

Schoenberg v. Schoenberg 2024 ND 148
Docket No.: 20240044
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Under the residual exception to the hearsay rule, a hearsay statement is admissible if the statement is supported by sufficient guarantees of trustworthiness and it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The proponent failed to show that a letter containing hearsay statements from the children is more probative than affidavits or declarations from the children, or that the affidavits or declarations could not have been obtained through reasonable efforts.

If more than two years have passed since the court entered judgment establishing residential responsibility, a prima facie case consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child. The changed circumstances must have adversely affected the child, or there must have been a general decline in the condition of the child. A significant other moving into the home and counseling are material changes in circumstances. The moving party failed to show the changed circumstances adversely affected the children or that there has been a general decline in the condition of the children.

Ritter v. Ritter 2024 ND 147
Docket No.: 20240041
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A trial court's property valuations and division of the parties' assets and debts, and refinancing of debts are findings of fact subject to the clearly erroneous standard of review.

A trial court may weigh spouses' competing testimony on the value of marital property. A trial court's valuation of marital property is not clearly erroneous if the findings are within the range of evidence provided.

Whether a trial court includes an indemnity provision in a divorce judgment is dependent upon the facts of the case, subject to the clearly erroneous standard.

When determining whether to award spousal support, the trial court must consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, and the ability of the other spouse to pay.

Under the child support guidelines, a district court may average an obligor's income when calculating his or her income for child support purposes if the obligor has a fluctuating income. The guidelines specifically provide where gross income is subject to fluctuation, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.

State v. Juneau 2024 ND 146
Docket No.: 20230314
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A jury verdict finding a defendant guilty of robbery under N.D.C.C. § 12.1-22-01(2) while simultaneously determining he did not direct the force of a deadly weapon against the victim is legally inconsistent.

Interest of H.W. 2024 ND 145
Docket No.: 20240172
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Warner v. Warner 2024 ND 144
Docket No.: 20240047
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: Under N.D.C.C. § 14-09.1-07, a family law mediation agreement is not binding upon the parties until approved by order of the court.

The district court did not abuse its discretion when it denied the defendant's motion to set aside the judgment.

Wootan v. State 2024 ND 143
Docket No.: 20240025
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Ritter 2024 ND 142
Docket No.: 20230337
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A criminal judgment entered after a jury conviction of sexual assault is reversed because the district court abused its discretion by admitting video of a forensic interview without weighing the probative value against the prejudicial effect.

A court is vested with discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence, but opening the door for the admission of otherwise inadmissible evidence is not unlimited.

A court must first consider whether and to what extent the door has been opened regarding a particular topic. When the door has been opened, the court must also consider, under N.D.R.Ev. 403, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Gerszewski v. Rostvet (consolidated w/20230362 & 20230363) 2024 ND 141
Docket No.: 20230361
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.

A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.

The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

Rostvet v. Gerszewski (consolidated w/20230361 & 20230363) 2024 ND 141
Docket No.: 20230362
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.

A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.

The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

Rostvet v. Gerszewski (consolidated w/20230361 & 20230362) 2024 ND 141
Docket No.: 20230363
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.

A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.

The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

Interest of O.F. 2024 ND 140
Docket No.: 20240136
Filing Date: 7/18/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: A district court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Section 27-20.3-20(1)(c)(2), N.D.C.C., does not require 660 nights to have passed since placement of a child into care to satisfy the statute. The plain language of the statute requires the child be in care for at least 450 nights of the previous 660 nights.

State v. Adams 2024 ND 139
Docket No.: 20230328
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: The subsections in N.D.C.C. § 12.1-18-01(1) are alternative means of committing kidnapping and are not separate offenses.

When a defendant is charged and sentenced under an incorrect offense level, it is necessary to reverse and remand for resentencing.

Fahey, et al. v. Cook, et al. 2024 ND 138
Docket No.: 20230267
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan

Highlight: A party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Issues of fact become issues of law when a reasonable person could reach only one conclusion from the facts.

The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty.

The party asserting collateral estoppel bars relitigation of an issue in a new proceeding has the burden of establishing the doctrine applies. A legal malpractice action generally does not litigate the same issues as the underlying civil case in which the malpractice allegedly occurred.

Statutes are construed as a whole, harmonized to give meaning to related provisions, and interpreted to give effect to all of their provisions. When a uniform statute is interpreted, we construe it to effectuate its general purpose to make the law uniform in the states which enacted it.

Dorchester Minerals v. Hess Bakken Investments II 2024 ND 137
Docket No.: 20230326
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: A six-year statute of limitations applies to an unleased mineral interest owner's statutory claim for eighteen percent interest on unpaid royalties.

Even if the discovery rule applied, summary judgment is appropriate when the uncontroverted facts establish that a reasonable person would have been placed on notice of a potential claim.

For deciding who is entitled to statutory attorney's fees and costs, a prevailing party is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue.