Opinions

Interest of J.M. (CONFIDENTIAL) (consolidated w/20210269-20210272) 2021 ND 202
Docket No.: 20210268
Filing Date: 11/17/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Interest of L.L.D.R. (CONFIDENTIAL) 2021 ND 201
Docket No.: 20210130
Filing Date: 11/17/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

State v. Nupdal 2021 ND 200
Docket No.: 20210015
Filing Date: 11/17/2021
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: A scale only alleged to have been used to weigh and package methamphetamine into smaller quantities did not satisfy the statutory element requiring use or intent to use the scale to produce or prepare methamphetamine.

Estate of Behle 2021 ND 199
Docket No.: 20210059
Filing Date: 11/17/2021
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A defect in the application for probate of a will does not render the probate void.

Summary judgment is appropriate in an undue influence claim if the non-moving party’s opposition is not supported with admissible evidence showing a genuine issue for trial.

The plain language of N.D.C.C. § 28-26-01(2) requires courts in civil actions to award costs and fees upon a finding a claim for relief was frivolous, providing the prevailing party pled the alleged frivolousness of the claim.

Section 28-26-31, N.D.C.C., authorizes attorney’s fees if allegations and denials in any pleading are not made without good faith and reasonable cause.

State v. Brewer 2021 ND 198
Docket No.: 20210105
Filing Date: 11/17/2021
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: The defendant has the burden to show he is entitled to additional credit for time served in custody.

When time spent in custody is credited toward an unrelated charge, the defendant is not entitled to have that time spent in custody applied to another sentence.

An appellee who has not cross-appealed may not seek a more favorable result on appeal than received in the trial court.

Interest of S.A. (CONFIDENTIAL) (consolidated w/20210062) 2021 ND 197
Docket No.: 20210061
Filing Date: 10/28/2021
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

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

Guardianship of M.H. 2021 ND 196
Docket No.: 20210069
Filing Date: 10/28/2021
Case Type: Appeal - Civil - Guardian/Conservator
Author: Jensen, Jon J.

Highlight: This Court reviews the district court’s decision to uphold contact restrictions placed by a ward’s guardian under the clearly erroneous standard of review.

A district court’s order of guardianship and findings of fact related to contract restrictions placed by the guardian are affirmed.

Kremer v. State 2021 ND 195
Docket No.: 20210154
Filing Date: 10/28/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

State v. Suelzle 2021 ND 194
Docket No.: 20210028
Filing Date: 10/28/2021
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: A driver weaving within their lane in traffic can rise to reasonable and articulable suspicion to justify a traffic stop.

A federal officer has jurisdiction to detain a non-Indian on an Indian reservation for a reasonable amount of time while waiting for a state law enforcement officer to arrive.

State v. Jensen 2021 ND 193
Docket No.: 20210098
Filing Date: 10/28/2021
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A criminal judgment entered following denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Kukert 2021 ND 192
Docket No.: 20210079
Filing Date: 10/28/2021
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Whether a defendant voluntarily, knowingly, and intelligently waived his or her Miranda rights depends on the totality of the circumstances.

Statements to law enforcement may be involuntary even if law enforcement has complied with the Miranda requirements.

When a defendant makes an extrajudicial statement, there must be sufficient independent evidence establishing the trustworthiness of the statement.

Dunford v. Tryhus, et al. 2021 ND 191
Docket No.: 20210146
Filing Date: 10/28/2021
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Behle v. Harr 2021 ND 190
Docket No.: 20210051
Filing Date: 10/28/2021
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Litigants may not contradict themselves to manufacture factual disputes for purposes of avoiding summary judgment.

Absent repudiation of a contract and the accompanying anticipatory breach, a breach of contract occurs when there is nonperformance of a contractual duty when it is due.

The term “claim” is defined by N.D.C.C. § 30.1-01-06(7) to exclude disputes regarding title of a decedent to assets alleged to be included in the decedent’s estate. The time limits set out by N.D.C.C. § 30.1-19-03(2) for demands against a decedent’s estate only apply to “claims.” For a demand to be excluded from the time limits because it is a dispute regarding title and not a “claim,” the claimant must make at least a “colorable showing” of title. Casting a claim in terms of title is insufficient to avoid the time limits if the gist of the claim sounds in contract or tort.

An argument is without merit if a party does not provide supportive reasoning or authority.

Interest of A.S.F. (CONFIDENTIAL) 2021 ND 189
Docket No.: 20210222
Filing Date: 10/28/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Matter of Reciprocal Discipline of Ruffenach 2021 ND 188
Docket No.: 20210240
Filing Date: 10/21/2021
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

State v. Woodruff 2021 ND 187
Docket No.: 20210026
Filing Date: 10/14/2021
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of preventing arrest is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Slappy v. Slappy, et al. 2021 ND 186
Docket No.: 20200352
Filing Date: 10/14/2021
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: To modify primary residential responsibility after two years, the moving party must meet the requirements of the statutory framework, including that there has been a material change in circumstances of the child or the parties, and that modification is necessary for the best interests of the child.

“Necessary” for the best interests of the child means there must be a showing that the changed circumstances had an adverse effect on the child or there had been a general decline in the child’s condition.

Because continuity and stability in a child’s life is favored, an improvement to the moving party’s life, without evidence of an adverse effect or general decline in the child, is insufficient to modify primary residential responsibility.

State v. Deleon 2021 ND 185
Docket No.: 20210018
Filing Date: 10/14/2021
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: The evidence was sufficient to support the defendant’s conviction of possession of certain materials prohibited.

Interest of K.H. (CONFIDENTIAL) (consolidated w/20210246 & 20210247) 2021 ND 184
Docket No.: 20210245
Filing Date: 10/14/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Kerzmann v. Kerzmann 2021 ND 183
Docket No.: 20210086
Filing Date: 10/14/2021
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: To establish a prima facie case to warrant an evidentiary hearing on a motion for a change in primary residential responsibility, the moving party must present facts showing there has been both a material change in circumstances and the change is necessary for the best interests of the child under N.D.C.C. § 14-09-06.6(6).

When a party has submitted an affidavit alleging first-hand knowledge of events that constitute a material change in circumstances and implicate the best interest factors, an evidentiary hearing on the motion must be held.

This Court exercises discretion in determining whether to administer sanctions on appeal.

Wheeler v. State (consolidated with 20210168 & 20210169) 2021 ND 182
Docket No.: 20210167
Filing Date: 10/14/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Estate of Nelson 2021 ND 181
Docket No.: 20210084
Filing Date: 10/14/2021
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: District court orders denying motions for relief under N.D.R.Civ.P. 60(b)(6) are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4), and double costs and attorney fees are awarded under N.D.R.App.P. 38.

State v. Reddog 2021 ND 180
Docket No.: 20210055
Filing Date: 10/14/2021
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal conviction for robbery with a firearm, destructive device, or other dangerous weapon and conspiracy to commit felonious restraint is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Urrabazo 2021 ND 179
Docket No.: 20210142
Filing Date: 10/14/2021
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Interest of D.H.H. (CONFIDENTIAL) 2021 ND 178
Docket No.: 20210238
Filing Date: 10/14/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Brickle-Hicks v. State 2021 ND 177
Docket No.: 20210073
Filing Date: 10/14/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Clemens 2021 ND 176
Docket No.: 20210136
Filing Date: 10/14/2021
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

State v. Marsolek 2021 ND 175
Docket No.: 20210041
Filing Date: 9/30/2021
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: A traffic stop has not been unlawfully prolonged if the officer has reasonable suspicion to believe further criminal activity is afoot.

State v. Demerais 2021 ND 174
Docket No.: 20210012
Filing Date: 9/30/2021
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: Criminal conviction for aggravated assault summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Ineffective assistance of counsel claims generally should not be brought on direct appeal, because post-conviction relief proceedings provide a more appropriate forum to develop the evidentiary record necessary for such claims.

Thomas v. State 2021 ND 173
Docket No.: 20210056
Filing Date: 9/30/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Expert testimony is admissible whenever specialized knowledge will assist the trier of fact.

Expert testimony is admissible to address questions of fact, not law.

City of Jamestown v. Nygaard 2021 ND 172
Docket No.: 20210049
Filing Date: 9/30/2021
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05.

The plain language of N.D.C.C. § 39-08-01(1)(f) does not require advice of criminal penalties to drivers before they can be charged with refusing a chemical breath test.

Continental Resources v. Armstrong, et al. 2021 ND 171
Docket No.: 20210060
Filing Date: 9/30/2021
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: An argument is without merit if the party does not provide supportive reasoning or citations to relevant authorities.

When ambiguity exists in an instrument conveying oil and gas interests, the parties’ intent is a question of fact requiring factual findings based on extrinsic evidence.

When the operator of an oil and gas well has relied to its detriment a division order signed by an underpaid royalty owner, the underpaid owner is estopped from recovering from the operator. The estoppel rule does not apply when the underpayments are not made according to a signed division order.

RTS Shearing v. BNI Coal 2021 ND 170
Docket No.: 20200340
Filing Date: 9/30/2021
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: Parties to a contract may incorporate contractual terms by reference to a separate, noncontemporaneous document, including a separate agreement to which they are not parties, and including a separate document which is unsigned.

Although whether one agreement has incorporated another has factual components, whether material has been incorporated presents a question of law.

Galvanizers, et al. v. Kautzman, et al. 2021 ND 169
Docket No.: 20210042
Filing Date: 9/30/2021
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The district court must make sufficient findings of fact and conclusions of law after a bench trial to allow review of its decision on appeal.

Whether property held in the name of an individual belongs to the partnership is a question of fact.

Carpenter v. State 2021 ND 168
Docket No.: 20210104
Filing Date: 9/30/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Sims v. Sims 2021 ND 167
Docket No.: 20210039
Filing Date: 9/16/2021
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A district court order entering a domestic violence protection order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

WSI v. Badger Roustabouts 2021 ND 166
Docket No.: 20210022
Filing Date: 9/16/2021
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Highlight: An individual who performs services for another for remuneration is presumed to be an employee of the person for which the services are performed, unless it is proven that the individual is an independent contractor under the common-law test.

Whether a worker is an independent contractor or an employee is a mixed question of fact and law.

To be entitled to an award attorney’s fees under N.D.C.C. § 28-32-50, a non-agency party must meet a two-part test: 1) the non-administrative agency party must prevail, and 2) the agency must have acted without substantial justification.

Fleck v. State 2021 ND 165
Docket No.: 20210089
Filing Date: 9/16/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Matter of Muscha 2021 ND 164
Docket No.: 20210071
Filing Date: 9/16/2021
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: McEvers, Lisa K. Fair

Highlight: A district court must specify facts on which its conclusions are based that a sexually dangerous individual continues to have serious difficulty controlling his behavior. Both past conduct and present conduct are relevant to determine whether an individual continues to have serious difficulty controlling his behavior. The conduct need not be sexual in nature.

Evidence of negative and inappropriate behaviors, including incidents demonstrating more than mere horseplay, may be sufficient to demonstrate serious difficulty controlling behavior.

Interest of K.B. (CONFIDENTIAL) (CONSOLIDATED W/20210110) 2021 ND 163
Docket No.: 20210109
Filing Date: 9/9/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Manning v. Jaeger, et al. 2021 ND 162
Docket No.: 20200332
Filing Date: 9/2/2021
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: To intervene as a matter of right, a person must establish on timely motion that 1) the person has a cognizable interest in the subject matter of the litigation, 2) the interest may be impaired as a result of the litigation, and 3) the interest is not adequately represented by an existing party to the litigation.

Exercise of supervisory jurisdiction is purely discretionary and decided on a case-by-case basis, considering the unique circumstances of each case.

State v. Johnson 2021 ND 161
Docket No.: 20200252
Filing Date: 9/2/2021
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

To convict for terrorizing, the State must prove that the defendant intended to cause another person to fear for his or another person’s safety or acted with reckless disregard of the risk of causing such fear and that the defendant made a threat to commit a crime of violence or act dangerous to human life.

Hartman, et al. v. Grager 2021 ND 160
Docket No.: 20200205
Filing Date: 9/2/2021
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: Before a court may set aside a transaction on the ground of mental incapacity, the party attacking the validity of the transaction has the burden to prove the grantor, at the time of the transaction, was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction.

An agreement for the sale of real property must show who the contracting parties are, intelligently identify the subject matter involved, express the consideration, and disclose the terms and conditions upon which the contract is entered into. All things that in law or usage are considered as incidental to a contract or as necessary to carry it into effect are implied therefrom, unless some of them are mentioned expressly therein.

A valid inter vivos gift requires: (1) an intention by the donor to then and there give the property to the donee, coupled with an actual or constructive (2) delivery of the property to the donee, and (3) acceptance of the property by the donee.

In an action for specific performance, a purchaser may recover damages from a seller for delay in conveying real property. The detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of occupation, which can be shown by either identifying the fruits of the illegal possession, or through fair rental value of the property.

Estate of Finch 2021 ND 159
Docket No.: 20210029
Filing Date: 8/26/2021
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A decision on a petition to remove a personal representative rests within the district court’s sound discretion.

A district court’s decision whether to award attorney’s fees incurred by a personal representative to be paid from the estate will not be reversed absent a clear abuse of discretion.

Schulz v. Helmers 2021 ND 158
Docket No.: 20210025
Filing Date: 8/19/2021
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Contract damages for breaching a duty to maintain buildings in a lease are measured by the lesser of the cost to repair and the diminution in value of the property when avoiding windfalls or economic waste.

Interest of T.L.E. (CONFIDENTIAL) 2021 ND 157
Docket No.: 20210190
Filing Date: 8/19/2021
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Interest of G.J.E.P. (CONFIDENTIAL) (consolidated with 20210189) 2021 ND 156
Docket No.: 20210188
Filing Date: 8/19/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Pinkney v. State 2021 ND 155
Docket No.: 20200249
Filing Date: 8/19/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Whether to grant a motion for a continuance rests within the district court’s discretion.

Post-conviction relief is not a device for investigating possible claims, but a means for vindicating actual claims.

State v. Lyman 2021 ND 154
Docket No.: 20200321
Filing Date: 8/19/2021
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: The district court did not abuse its discretion when it admitted blood test results into evidence over the Defendant’s foundational objections that the State failed to prove scrupulous compliance with the approved method for collecting and submitting a blood specimen.

Dubois v. State 2021 ND 153
Docket No.: 20210019
Filing Date: 8/19/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Counsel’s failure to raise a novel or groundbreaking legal claim does not constitute ineffective assistance of counsel.

A district court is the best credibility evaluator in cases of conflicting testimony, and we will not second-guess the district court’s credibility determinations.

The procedures in Rule 11, N.D.R.Crim.P., does not apply to admissions on probation revocation.

Section 12.1-32-07(6), N.D.C.C., unambiguously restrains a district court’s authority in probation revocation cases to imposition of the sentence initially imposed but suspended.

State v. Gefroh, 458 N.W.2d 479, 483-84 (N.D. 1990) and State v. Lindgren, 483 N.W.2d 777, 779 (N.D. 1992) are overruled.