Opinions

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.

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

State v. Willard 2022 ND 34
Docket No.: 20210203
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures.

Traffic violations, even if common or minor, provide officers with reasonable suspicion to justify a traffic stop.

The term “driveway” means “a private way of access that allows drivers to reach a private place from a public road.”

State v. Willard 2022 ND 34
Docket No.: 20210203
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Goldade-Jose v. Jose, et al. 2022 ND 33
Docket No.: 20210231
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Lessard v. Johnson 2022 ND 32
Docket No.: 20200206
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

State v. Halsey 2022 ND 31
Docket No.: 20210090
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: A district court’s admission of prior bad acts evidence without the required three-step analyis was harmless error.

Absent a stipulation offered from a defendant, a court does not abuse its discretion in allowing the name and nature of a felony charge to be admitted into evidence to prove an element of the offense of preventing arrest.

State v. Davis 2022 ND 30
Docket No.: 20210152
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: Constitutional forfeiture doctrine recognized by adopting the hearsay exception under N.D.R.Ev. 804(b)(6).

Forfeiture by wrongdoing requires the State to prove (1) that the declarant-witness is unavailable; (2) that the defendant engaged in wrongful conduct; (3) that the wrongful conduct procured the unavailability of the witness; and (4) that the defendant intended to procure the unavailability of the witness.

Forfeiture by wrongdoing was properly applied where the district court found, by a preponderance of the evidence, that defendant murdered victim with intent to prevent testimony at criminal proceedings.

The State is not required to prove defendant intended to prevent victim from testifying in the same case in which testimony was offered. Intent to prevent testimony in foreseeable proceeding or investigation is sufficient.

A sentence is illegal if it is not authorized by the judgment of conviction, and a district court must abide by the terms of the judgment when amending the judgment to include restitution.

State v. Davis 2022 ND 30
Docket No.: 20210152
Filing Date: 2/18/2022
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Orwig v. Orwig (consolidated w/20210141) 2022 ND 29
Docket No.: 20210140
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: Failure to comply with provisions of a separation or divorce decree relating to distribution of the parties’ property constitutes contempt of court.

A person aggrieved by contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose.

A party seeking a contempt sanction must clearly and satisfactorily prove the alleged contempt was committed.

Whether a contempt has been committed lies within the district court’s sound discretion, which will not be overturned on appeal absent an abuse of discretion.

Orwig v. Orwig (consolidated w/20210141) 2022 ND 29
Docket No.: 20210140
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Krile v. Lawyer 2022 ND 28
Docket No.: 20210138
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A motion to dismiss under N.D.R.Civ.P. 12(b)(6) is not automatically converted to a motion for summary judgment under N.D.R.Civ.P. 56 when a party submits additional materials outside the pleadings, and the court has discretion in deciding whether to exclude the additional materials.
A pleading that states a claim for relief is not required to have detailed factual allegations, but it must have more than labels and conclusions or a formulaic recitation of the elements of a claim.

Krile v. Lawyer 2022 ND 28
Docket No.: 20210138
Filing Date: 2/18/2022
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Christiansen v. NDDOT 2022 ND 27
Docket No.: 20210218
Filing Date: 1/27/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: The Administrative Agencies Practice Act governs this Court’s review of the Department of Transportation’s decision to suspend a driver’s license.

Chapter 1-02, N.D.C.C., contains the traditional rules of statutory construction and interpretation.

Section 39-20-03.1, N.D.C.C., provides procedures law enforcement must follow after a person has tested over the legal limit for driving under the influence.

Section 39-20-04.1, N.D.C.C., provides the Department of Transportation’s authority to sanction a driver who has tested over the legal limit for driving under the influence.

Section 39-20-04.1(1), N.D.C.C., does not mention the timing of law enforcement forwarding the report, so the five-day directive to law enforcement in N.D.C.C. 39-20-03.1(4) does not affect the Department’s authority to suspend driving privileges.

When no remedy is provided by statute for a statutory violation, this Court looks at whether the victim of the violation was prejudiced.

Christiansen v. NDDOT 2022 ND 27
Docket No.: 20210218
Filing Date: 1/27/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Sherman v. Guillaume, et al. 2022 ND 26
Docket No.: 20210196
Filing Date: 1/27/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A judgment determining primary residential responsibility of a minor child is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Sherman v. Guillaume, et al. 2022 ND 26
Docket No.: 20210196
Filing Date: 1/27/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

State v. Clairmont 2022 ND 25
Docket No.: 20210219
Filing Date: 1/27/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

State v. Clairmont 2022 ND 25
Docket No.: 20210219
Filing Date: 1/27/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Divide County v. Stateline Service, et al. (consolidated w/20210017) 2022 ND 24
Docket No.: 20210016
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A road restriction is not published for purposes of N.D.C.C. § 39-12-03(2)(a) unless the information is available in the typical location where a user seeking such information would expect to find it.

Bubel v. Bubel 2022 ND 23
Docket No.: 20210263
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Friesz v. State 2022 ND 22
Docket No.: 20210143
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Friesz v. State 2022 ND 22
Docket No.: 20210143
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: An applicant has the burden to support their application for post-conviction relief with competent admissible evidence once the State moves for summary dismissal.

A district court’s order denying an applicant’s claim of newly discovered evidence and summarily dismissing his application for post-conviction relief is affirmed.

State v. Martinez 2022 ND 21
Docket No.: 20210207
Filing Date: 1/21/2022
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7) as the defendant failed to move to dismiss based on a speedy trial violation.