Opinions

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.

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

Simmons v. Cudd Pressure Control, et al. 2022 ND 20
Docket No.: 20210166
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Personal Injury
Author: McEvers, Lisa K. Fair

Highlight: Contractual waiver requires a right or privilege a party is legally entitled to enforce.

Sanctionable spoliation of evidence cannot occur prior to the existence of a duty to preserve evidence.

Simmons v. Cudd Pressure Control, et al. 2022 ND 20
Docket No.: 20210166
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Personal Injury
Author: McEvers, Lisa K. Fair

Anderson v. Pedie, et al. 2022 ND 19
Docket No.: 20210147
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A motion to modify primary residential responsibility made within two years of an order establishing primary residential responsibility triggers the heightened requirements of N.D.C.C. § 14-09-06.6(1), (3), (5). The district court shall consider a motion to modify primary residential responsibility on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must include competent information, which usually requires the affiant have first-hand knowledge.

The district court has discretion to award attorney’s fees as part of a remedial sanction for contempt to reimburse the complainant for costs and expenses incurred as a result of the contempt.

Whether to administer sanctions under N.D.R.App.P. 13 for noncompliance with the Rules of Appellate Procedure is discretionary with this Court.

Anderson v. Pedie, et al. 2022 ND 19
Docket No.: 20210147
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

State v. Bolinske, Sr. 2022 ND 18
Docket No.: 20210128
Filing Date: 1/21/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A person arrested and detained without a warrant is entitled to a probable cause determination within 48 hours.

If a probable cause determination is not made within 48 hours, the government must demonstrate the existence of an emergency or other extraordinary circumstance.

An intervening weekend is not an emergency or other extraordinary circumstance.

The usual sanction for unlawful detention is the suppression of statements or evidence discovered as a result of the detention.

Dismissal of a criminal charge can be warranted in cases of egregious prosecutorial misconduct or on a showing of prejudice.

State v. Bolinske, Sr. 2022 ND 18
Docket No.: 20210128
Filing Date: 1/21/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Fischer v. Hoyt 2022 ND 17
Docket No.: 20210164
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Recovery of attorney’s fees by a prevailing plaintiff under N.D.C.C. § 27-08.1-04 is available after the defendant removes a small claims action to the district court.

Section 27-08.1-04, N.D.C.C., generally permits a prevailing plaintiff to recover reasonable attorney’s fees for the district court proceedings and for a successful appeal.

Fischer v. Hoyt 2022 ND 17
Docket No.: 20210164
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Pomarleau v. Pomarleau, et al. 2022 ND 16
Docket No.: 20210083
Filing Date: 1/21/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court may consider whether an obligor made a voluntary change in employment, and if they find the obligor did, the district court has the discretion to base the obligor’s child support income based on the previous, higher income.

A district court’s allocation of child tax credits is subject to the clearly erroneous standard of review.

A district court’s distribution of marital property is subject to the clearly erroneous standard of review. This Court reviews the findings as a whole, and they will be upheld on appeal despite relatively insignificant errors in the calculations.

Wald v. Hovey, et al. 2022 ND 15
Docket No.: 20210280
Filing Date: 1/6/2022
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: VandeWalle, Gerald

Highlight: A demand for a change of judge under N.D.C.C. § 29-15-21 is precluded if the judge has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard.

Wald v. Hovey, et al. 2022 ND 15
Docket No.: 20210280
Filing Date: 1/6/2022
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: VandeWalle, Gerald

Plaisimond v. State 2022 ND 14
Docket No.: 20210215
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Plaisimond v. State 2022 ND 14
Docket No.: 20210215
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Estate of Beach 2022 ND 13
Docket No.: 20210077
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A holographic will is valid if the signature and material portions of the document are in the testator’s handwriting.

Material portions of a holographic will express donative and testamentary intent.

A district court’s finding that the material portions of a holographic will were not in the testator’s handwriting is supported by the record and affirmed.

Armstrong v. Helms 2022 ND 12
Docket No.: 20210227
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Highlight: The North Dakota Century Code and North Dakota Administrative Code provide extensive laws and regulations related to oil and gas development, including the reclamation of oil wells and bond terms.

State law is not preempted by federal law when the well operator can comply with both the state law and federal law.

The district court did not err in dismissing the claim as the plaintiff failed to exhaust his administrative remedies before bringing suit.

Armstrong v. Helms 2022 ND 12
Docket No.: 20210227
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Matter of Shane Lance Yates 2022 ND 11
Docket No.: 20210193
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court did not abuse its discretion in denying petitions for name changes when the petitions requested changes in the capitalization of the names from all capital letters to initial capital letters followed by lowercase letters.

Matter of Shane Lance Yates 2022 ND 11
Docket No.: 20210193
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Matter of Amy Jo Yates 2022 ND 11
Docket No.: 20210194
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court did not abuse its discretion in denying petitions for name changes when the petitions requested changes in the capitalization of the names from all capital letters to initial capital letters followed by lowercase letters.

Matter of Amy Jo Yates 2022 ND 11
Docket No.: 20210194
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Brendel Construction v. WSI 2022 ND 10
Docket No.: 20210229
Filing Date: 1/6/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: McEvers, Lisa K. Fair

Highlight: Under N.D.C.C. § 65-04-04(1), workforce insurance premium liability must be based on a proportion of the annual expenditure of money by the employer for the service of persons.

The information Workforce Safety and Insurance uses to calculate an employer’s liability must be indicative of the premiums the employer owes and sufficiently reliable to support the amount.

An ALJ’s finding that WSI used unreliable information to establish premium liability in this case is supported by the record and affirmed.

Brendel Construction v. WSI 2022 ND 10
Docket No.: 20210229
Filing Date: 1/6/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: McEvers, Lisa K. Fair

State v. Mayland 2022 ND 9
Docket No.: 20210213
Filing Date: 1/6/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: The statutory remedy provided in N.D.C.C. § 39-20-01(a) is limited to administrative proceedings where the driver refused to take a chemical test.

Regardless of whether a driver was arrested, the statutory exclusionary rule does not apply in this case, a criminal proceeding where the driver took the chemical test.

Issues not raised at the district court will not be considered for the first time on appeal.

State v. Mayland 2022 ND 9
Docket No.: 20210213
Filing Date: 1/6/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Vic Christensen Mineral Trust v. Enerplus Resources Corp., et al. 2022 ND 8
Docket No.: 20210050
Filing Date: 1/6/2022
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: An oil and gas operator may suspend royalty payments to the mineral owner in the event of a dispute of title existing that would affect distribution of royalty payments. The operator shall make royalty payments to those mineral owners whose title and ownership interest is not in dispute.

State v. Castleman 2022 ND 7
Docket No.: 20210011
Filing Date: 1/6/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: The ordinary meaning of “mental injury” as used in N.D.C.C. § 14-09-22(1) requires mental suffering and trauma that has some lasting, non-transitory effect.