Opinions

Juneau v. State 2025 ND 13
Docket No.: 20240110
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: A sentence is imposed in an illegal manner if the sentencing court does not observe rules or statutes providing procedural safeguards.

When an applicant seeks to withdraw a guilty plea in an application for postconviction relief, the application is treated as one made under N.D.R.Crim.P. 11(d), and the district court considers whether relief is necessary to correct a manifest injustice.

Rule 11 provisions are mandatory, and substantial compliance is required to ensure a defendant knowingly and voluntarily enters a guilty plea.

State v. Woodman 2025 ND 12
Docket No.: 20240037
Filing Date: 1/9/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Highlight: Obvious error review consists of determining whether (1) there was an error, (2) that was plain, and (3) that affected a party's substantial rights. Obvious error review is applied only to prevent an unjust conviction, or the exceptional situations where the defendant has suffered serious injustice.

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 our inquiry is limited to whether the jury instructions constitute obvious error affecting substantial rights.

When prosecutorial misconduct is raised for the first time on appeal, review is limited to determining whether the prosecutor's conduct prejudicially affected the defendant's substantial rights, so as to deprive the defendant of a fair trial.

Review on appeal of a sentence is generally confined to whether the district court acted within the statutory sentencing limits or substantially relied on an impermissible factor.

Interest of E.E. 2025 ND 11
Docket No.: 20240321
Filing Date: 1/9/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Greene 2025 ND 10
Docket No.: 20240128
Filing Date: 1/9/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A criminal judgment entered after a defendant pleaded guilty to eleven sexual offenses is affirmed.

Generally, an open plea waives all non-jurisdictional claims and defenses, including multiplicity challenges.

Only in an extraordinary case will a sentence for a term of imprisonment within the statutory sentencing limits violate the Eighth Amendment's prohibition against cruel and unusual punishments.

Nelson v. Pine View First Addition Association 2025 ND 9
Docket No.: 20240160
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: A district court's order granting a motion to dismiss for lack of personal jurisdiction is reversed.

A court considers five factors when assessing whether a nonresident defendant has sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice: (1) the nature and quality of a nonresident defendant's contacts with North Dakota; (2) the quantity of the nonresident defendant's contacts with North Dakota; (3) the relation of the cause of action to the contacts; (4) North Dakota's interest in providing a forum for its residents; and (5) the convenience of the parties. While the first three factors are of primary concern, the fourth and fifth factors are of only secondary importance and are not determinative.

Under N.D.R.Civ.P. 11(c)(5)(A), a district court shall not impose monetary sanctions against a represented party for violating Rule 11(b)(2).

A district court abuses its discretion by denying a party's motion for attorney's fees when the party prevails on a Rule 11 motion that is contrary to the plain language of Rule 11.

Hollingsworth v. Hollingsworth 2025 ND 8
Docket No.: 20240161
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Divorce
Author: Crothers, Daniel John

Highlight: An unequal property distribution must be adequately explained by the district court.

Valuation of marital assets must be within the range of evidence presented.

A district court must apply the Ruff-Fischer guidelines when determining property distribution and spousal support in a divorce proceeding.

The proper remedy for unfair surprise is a continuance.

Glaum v. Woodrow 2025 ND 7
Docket No.: 20240153
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court judgment dismissing a civil case is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Reile v. WSI, et. al. 2025 ND 6
Docket No.: 20240135
Filing Date: 1/9/2025
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: The authority of an administrative agency to adopt administrative rules is authority delegated by the legislative assembly. A properly promulgated regulation has the force and effect of law. A regulation that exceeds or supersedes an agency's statutory authority or conflicts with the statute it implements is invalid. The rationale for this principle is that allowing an administrative agency to promulgate rules that include substantive matters not included in the statute under which it is acting constitutes an improper delegation of legislative power. The legislature has not specifically authorized WSI to promulgate rules regulating the proof required to establish compensability for a mental or psychological condition. WSI exceeded its authority when it promulgated a rule imposing specific burdens and limitations not present in the statute the rule implements.

Interest of R.S. 2025 ND 5
Docket No.: 20240341
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

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

Poseley v. Homer Township, et al. 2025 ND 4
Docket No.: 20240174
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

An aggrieved party must appeal a local governing body's decision rather than seek injunctive or declaratory relief against the enforcement of the decision.

Under N.D.R.Civ.P. 54(e)(2), a claim for attorney's fees not determined by the judgment must be made by motion within 21 days after notice of entry of judgment.

State v. Thompson 2025 ND 3
Docket No.: 20240117
Filing Date: 1/9/2025
Case Type: Appeal - Criminal - Terrorizing
Author: McEvers, Lisa K. Fair

Highlight: A district court may exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or confusing the issues. A court's power to exclude relevant evidence should be exercised sparingly.

Issues not raised or considered in the district court cannot be raised for the first time on appeal. However, newly raised issues may be addressed on appeal if the issue rises to the level of obvious error. The discretion to notice obvious error in an appeal when the defendant does not raise the issue of obvious error need not be exercised, because it is the defendant's burden to show an obvious error that affects a substantial right.

The scope of cross-examination is within the district court's discretion, the propriety of which will not be disturbed on appeal absent an abuse of discretion. Reasonable limits may be placed on a defendant's cross-examination, including the exclusion of irrelevant evidence.

Tiah v. State 2025 ND 2
Docket No.: 20240216
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An amended judgment denying applications for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Tiah v. State 2025 ND 2
Docket No.: 20240217
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An amended judgment denying applications for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Tiah v. State 2025 ND 2
Docket No.: 20240218
Filing Date: 1/9/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An amended judgment denying applications for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Caspers 2025 ND 1
Docket No.: 20240124
Filing Date: 1/9/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: Under N.D.C.C. § 12.1-32-06.1, a defendant cannot be ordered to a third period of probation. The statute allows for an initial period of probation and one additional period of probation not to exceed five years.

A district court order denying in part a motion for reduced sentence is affirmed.

City of Fargo v. State 2024 ND 236
Docket No.: 20240125
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: A home rule city's power to enact ordinances that supersede state law is not without limitation because a home rule city's powers must be based upon statutory provisions.

Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.

Hoff v. State 2024 ND 235
Docket No.: 20240158
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: A postconviction relief application barred by the two-year limitation in N.D.C.C. § 29-32.1-01(2) is not excepted by N.D.C.C. § 29-32.1-01(3) when the applicant demonstrates a physical disability or mental disease does not preclude timely assertion of their application for relief.

Although Rule 615, N.D.R.Ev., uses the plural term "witnesses," the plural term "witnesses" is interpreted to include the singular term "witness." Therefore, a party may request to sequester a single witness.

Hoff v. State 2024 ND 235
Docket No.: 20240159
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: A postconviction relief application barred by the two-year limitation in N.D.C.C. § 29-32.1-01(2) is not excepted by N.D.C.C. § 29-32.1-01(3) when the applicant demonstrates a physical disability or mental disease does not preclude timely assertion of their application for relief.

Although Rule 615, N.D.R.Ev., uses the plural term "witnesses," the plural term "witnesses" is interpreted to include the singular term "witness." Therefore, a party may request to sequester a single witness.

Adoption of H.W.L. 2024 ND 234
Docket No.: 20240289
Filing Date: 12/19/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Overbo v. Overbo, et al. 2024 ND 233
Docket No.: 20240164
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Constitutional Law
Author: Crothers, Daniel John

Highlight: The party presentation principle requires courts refrain from deciding constitutional questions not submitted by the litigants.

Sanderson v. Agotness 2024 ND 232
Docket No.: 20240054
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A judge acting within their judicial capacity is protected by judicial immunity.

The prevailing party of a frivolous action shall be awarded attorney's fees.

State v. Eagleman 2024 ND 231
Docket No.: 20240176
Filing Date: 12/19/2024
Case Type: Appeal - Criminal - Reckless Endangerment
Author: Jensen, Jon J.

Highlight: While we have previously treated motions filed under the rules of criminal procedure as applications under the Uniform Postconviction Procedure Act, we have done so in the limited circumstance where the defendant has filed a previous application for postconviction relief and the filing in the criminal case hints at an attempt to "avoid the procedures of the Uniform Postconviction Procedure Act."

It is not proper for a defendant to collaterally attack the underlying conviction by way of a motion to correct an illegal sentence because the "Uniform Postconviction Procedure Act is the exclusive remedy for collaterally challenging a judgment of conviction or sentence . . . ."

Interest of A.E.E. 2024 ND 230
Docket No.: 20240121
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Guardian/Conservator
Author: Jensen, Jon J.

Highlight: Under N.D.C.C. § 27-20.1-16(2), any party to the proceeding in which the child's status was adjudicated may petition for removal or modification of a guardian on the grounds the removal or modification would be in the best interest of the child. If an insufficient showing has been made, the district court shall issue an order denying the petition.

State v. Werner 2024 ND 229
Docket No.: 20240084
Filing Date: 12/19/2024
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: Investigative stops of a vehicle and its occupants for suspected violations of law will be upheld if officers have at least a reasonable suspicion that the motorist has violated the law or probable cause to believe the motorist has done so. The suspected violation of law need not be related to the current operation of a motor vehicle.

Reasonable suspicion for a stop exists when a reasonable person in the officer's position would be justified by some objective manifestation to suspect potential unlawful activity. The reasonable suspicion standard is objective and does not hinge upon the subjective beliefs or motivations of the arresting officer. In order to determine whether an investigative stop is valid, we consider the totality of the circumstances and examine the information known to the officer at the time of the stop.

An officer is required to administer the Miranda warning when a person is subject to custodial interrogation. A suspect is in custody when there is a formal arrest or restraint on the suspect's freedom of movement to the degree associated with a formal arrest. When determining if a person is subject to custodial interrogation, the court examines all circumstances surrounding the interrogation and considers what a reasonable man in the suspect's position would have understood in his situation.

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.: 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. 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. 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.