Opinions

Fourth v. State 2022 ND 60
Docket No.: 20210285
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

State v. Bazile 2022 ND 59
Docket No.: 20210261
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: In reviewing a claim of prosecutorial misconduct, this Court first determines whether the prosecutor’s actions were misconduct, then examines whether the misconduct had a prejudicial effect.

A curative jury instruction generally removes prejudice caused by improper statements because the jury is presumed to follow a court’s instruction.

The North Dakota Rules of Criminal Procedure do not require a district court to state findings on the record when a motion is made during trial.

State v. Bazile 2022 ND 59
Docket No.: 20210261
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Interest of T.H. (CONFIDENTIAL) (consolidated w/20220028-20220030) 2022 ND 58
Docket No.: 20220027
Filing Date: 3/17/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of T.H. (CONFIDENTIAL) (consolidated w/20220028-20220030) 2022 ND 58
Docket No.: 20220027
Filing Date: 3/17/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Kaspari v. Kaspari 2022 ND 57
Docket No.: 20210192
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: When spousal support is awarded, the district court is not required to provide a detailed calculation of the requesting spouse’s need for support, but the court is required to provide a discernable basis for its decision.

Kaspari v. Kaspari 2022 ND 57
Docket No.: 20210192
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

State v. Almklov (consolidated w/20210163) 2022 ND 56
Docket No.: 20210162
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgments entered after a jury found the defendant guilty of attempted murder, aggravated assault with a dangerous weapon, two counts of providing false information to law enforcement, burglary, and theft of property are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Almklov (consolidated w/20210163) 2022 ND 56
Docket No.: 20210162
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

State v. Schuh 2022 ND 55
Docket No.: 20210257
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of attempted murder is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Schuh 2022 ND 55
Docket No.: 20210257
Filing Date: 3/17/2022
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Gregory v. State 2022 ND 54
Docket No.: 20210307
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court order summarily dismissing a petition for post-conviction relief is reversed and remanded for further proceedings.

A district court may not order summary disposition in response to a request in a pleading, including the State’s answer to an application for post-conviction relief.

Gregory v. State 2022 ND 54
Docket No.: 20210307
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Hagen v. North Dakota Insurance Reserve Fund 2022 ND 53
Docket No.: 20210111
Filing Date: 3/17/2022
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: Courts have broad discretion when deciding whether to grant leave to amend a complaint. Amendments correcting technical deficiencies relate back to the date of the original pleading.

Agencies of political subdivisions are public entities subject to the open records law. “Agencies” refers to a relationship created by law or contract whereby one party delegates the transaction of some lawful business to another.

Except as otherwise specifically provided by law, all records of a public entity are public records. The plain meaning of “provided by law” does not operate to create additional open records exemptions arising from court rules defining privileges and discovery limitations. Rule 502, N.D.R.Ev., is an evidentiary rule applicable to court proceedings, and does not create a specific exception to the open records law. Under N.D.R.Ev. 502(d)(7), there generally is no attorney-client privilege as to a communication between a public officer or agency and its lawyers.

A public entity’s attorney work product must be made available for public disclosure following completion of litigation, unless disclosure would have an adverse fiscal effect on the conduct or settlement of other pending or reasonably predictable civil or criminal litigation or adversarial administrative proceedings, or the attorney work product reflects mental impressions, opinions, conclusions, or legal theories regarding potential liability of a public entity. If the potential for liability is entirely in the past, the record is no longer exempt. Only if the records relate to circumstances for which there remains a genuine potential for liability may the records remain exempt.

Under N.D.C.C. § 44-04-21.2(1), awarding costs and attorney’s fees is discretionary and a court’s decision will not be reversed absent an abuse of discretion.

Hagen v. North Dakota Insurance Reserve Fund 2022 ND 53
Docket No.: 20210111
Filing Date: 3/17/2022
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Tufte, Jerod E.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 52
Docket No.: 20210273
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: When this Court remands for the district court to review an executive session of a board in-camera, the directive for an in-camera review becomes the law of the case when challenged on appeal.

Section 44-04-19.1(5), N.D.C.C., defining an attorney consultation exemption for open meetings, is unambiguous and provides two separate avenues for a governing body to close an open meeting.

Portions of a meeting recording that do not fit within the definition of “attorney consultation” must be made public.

While attorney’s fees are not mandated when a party brings forth a civil action rather than an administrative action alleging an open records violation, the type of action brought and how much information the party receives are not rational considerations in deciding whether to award attorney’s fees.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 52
Docket No.: 20210273
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Sproule, et al. v. Johnson, et al. 2022 ND 51
Docket No.: 20210235
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: When supervising a partnership’s dissolution, a district court has discretion to decide what is fair and equitable under the circumstances.

Valuation is a question of fact. This Court presumes a district court’s valuations are correct, and a valuation within the range of evidence presented at trial is not clearly erroneous.

Sproule, et al. v. Johnson, et al. 2022 ND 51
Docket No.: 20210235
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Rogers v. State 2022 ND 50
Docket No.: 20210260
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Rogers v. State 2022 ND 50
Docket No.: 20210260
Filing Date: 3/17/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

State v. Fleck 2022 ND 49
Docket No.: 20210160
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Jensen, Jon J.

Highlight: Prosecution of a crime is authorized in any county where part of the offense occurred.

In reviewing the sufficiency of the evidence to convict, this Court on appeal looks only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.

A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.

State v. Fleck 2022 ND 49
Docket No.: 20210160
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Jensen, Jon J.

Interest of R.S. (CONFIDENTIAL) 2022 ND 48
Docket No.: 20220039
Filing Date: 3/3/2022
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).

Interest of R.S. (CONFIDENTIAL) 2022 ND 48
Docket No.: 20220039
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

State v. Lusby 2022 ND 47
Docket No.: 20210266
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Lusby 2022 ND 47
Docket No.: 20210266
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

State v. McGinnis (consolidated w/20210217) 2022 ND 46
Docket No.: 20210216
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

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

When we reinterpreted N.D.C.C. § 12.1-32-07(6) in Dubois v. State, 2021 ND 153, 963 N.W.2d 543, to correct our prior misinterpretation of the statute, we were declaring what the statute has meant at all times before it was amended effective August 1, 2021.

When a defendant is resentenced after revocation of probation, the court imposes an illegal sentence if it resentences the defendant in excess of the suspended sentence imposed in the judgment of conviction.

State v. McGinnis (consolidated w/20210217) 2022 ND 46
Docket No.: 20210216
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Theft
Author: Tufte, Jerod E.

Harty Insurance v. Holmes, et al. 2022 ND 45
Docket No.: 20210205
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: A district court’s summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6), and double costs and attorney’s fees are awarded under N.D.R.App.P. 38.

Harty Insurance v. Holmes, et al. 2022 ND 45
Docket No.: 20210205
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

State v. Gaddie 2022 ND 44
Docket No.: 20210187
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The purpose of jury instructions is to correctly and adequately advise the jury of the applicable law. Jury instruction must not be misleading or confusing. A conviction will be reversed based on an erroneous jury instruction only if it relates to a central subject in the case and affects a defendant’s substantial rights.

When a defendant faces multiple counts of the same offense, the jury instructions must identify the act underlying each count and factually distinguish between the counts or instruct the jury to unanimously agree on the act for each offense.

The elements of a crime may require different mental states. The term “willfully,” as defined by N.D.C.C. § 12.1-02-02(1)(e), is not necessarily inconsistent with a crime requiring a specific intent.

State v. Gaddie 2022 ND 44
Docket No.: 20210187
Filing Date: 3/3/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Malloy, et al. v. Behrens 2022 ND 43
Docket No.: 20210155
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An appeal is not moot when the appellant fails to request a stay on an order directing the sale of homestead property if the property was sold to a party interested in the action and the sale is not yet final.

In proceedings to force the sale of homestead property to satisfy a judgment, there must be an execution levied upon the property at the time of the petition for an appraisal of the property.

Malloy, et al. v. Behrens 2022 ND 43
Docket No.: 20210155
Filing Date: 3/3/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Vacancy in Judgeship No. 6, ECJD 2022 ND 42
Docket No.: 20220042
Filing Date: 2/25/2022
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Vacancy in Judgeship No. 6, ECJD 2022 ND 42
Docket No.: 20220042
Filing Date: 2/25/2022
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Baker v. Autos, Inc., et al. 2022 ND 41
Docket No.: 20210202
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A district court’s decision on a motion for a new trial is reviewed for abuse of discretion.

The law of the case doctrine and the mandate rule restrict proceedings on remand to the district court.

Jury instructions should fairly inform the jury of the law applicable to the case.

Baker v. Autos, Inc., et al. 2022 ND 41
Docket No.: 20210202
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

City of Jamestown v. Kastet 2022 ND 40
Docket No.: 20210170
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A defendant is entitled to a jury instruction on a legal defense if there is evidence to support it.

In determining whether the jury should have received an instruction on a particular defense, this Court views the evidence in the light most favorable to the defendant.

If the district court evaluates the evidence supporting a proposed defense and declines to charge on that defense, it dilutes the defendant’s jury trial by removing the issue from the jury’s consideration.

City of Jamestown v. Kastet 2022 ND 40
Docket No.: 20210170
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Taylor v. Taylor 2022 ND 39
Docket No.: 20210214
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: An attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.

A district court is generally not required to do a line-by-line best-interest analysis for each individual child, but factual findings should be stated with sufficient specificity for reviewing court to understand basis for its decision.

Expert testimony is unnecessary for a showing that physical or emotional harm is likely to result from parenting time, and general testimony of a parent may suffice.

Visitation with a noncustodial parent may be temporarily suspended where it is likely to endanger the children’s physical or emotional health.

District court order granting sole decisionmaking authority to custodial parent must be in the children’s best interests.

Visitation provisions controlled by custodial parent should be utilized only in exceptional circumstances and when custodial parent demonstrates willingness to foster parent-child relationship. Custodial parent may be permitted to monitor visitation between children and noncustodial parent.

Taylor v. Taylor 2022 ND 39
Docket No.: 20210214
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

State v. Samaniego 2022 ND 38
Docket No.: 20210252
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: The force required for gross sexual imposition is that which compels the victim to submit.

The location of the crime is not a statutory element of a criminal offense. The North Dakota Rules of Criminal Procedure provide for venue in the county where the crime occurred.

A defendant’s objection on one specified ground did not preserve the appeal for another, unspecified ground.

When prosecutorial misconduct is alleged for the first time on appeal, the standard of review is obvious error.

State v. Samaniego 2022 ND 38
Docket No.: 20210252
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Lovett v. Lovett, et al. 2022 ND 37
Docket No.: 20210198
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: An issue is moot when the determination sought will not have any practical legal effect upon a then-existing controversy.

Lovett v. Lovett, et al. 2022 ND 37
Docket No.: 20210198
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Whetsel v. State (consolidated w/20210181) 2022 ND 36
Docket No.: 20210180
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An applicant for post-conviction relief has a statutory right to counsel in post-conviction proceedings, but an applicant may not claim he received ineffective assistance of post-conviction counsel.

Whetsel v. State (consolidated w/20210181) 2022 ND 36
Docket No.: 20210180
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Pavlicek v. American Steel Systems, Inc., et al. 2022 ND 35
Docket No.: 20210116
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Property damage caused by faulty workmanship is a covered occurrence under an insurance policy to the extent the faulty workmanship causes bodily injury or property damage to property other than the insured’s defective work product.

Exclusions from coverage in an insurance policy must be clear and explicit and are strictly construed against the insurer.

When a conflict exists between the provisions of an insurance policy and an attached endorsement, the provisions of the endorsement prevail.