Opinions

State v. S.J.H., et al. (Confidential) 2021 ND 218
Docket No.: 20210165
Filing Date: 12/9/2021
Case Type: Appeal - Civil - Paternity
Author: Tufte, Jerod E.

State v. Neilan 2021 ND 217
Docket No.: 20210065
Filing Date: 12/9/2021
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Jensen, Jon J.

Highlight: The State may appeal from a district court order granting a defendant a reduction in sentence as the reduction affects a substantial right of the State.

The district court’s acceptance of a plea agreement does not preclude it from later exercising discretion in reducing the defendant’s sentence. Such a reduction is subject to the abuse of discretion standard of review on appeal.

This Court’s power on appeal is limited by N.D.C.C. § 29-28-35. When the State appeals, this Court cannot reverse an order of the district court if doing so would increase the defendant’s sentence.

DCI Credit Services v. Plemper 2021 ND 215
Docket No.: 20210183
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Debtor/Creditor
Author: VandeWalle, Gerald

Highlight: The district court did not abuse its discretion by denying the motion to vacate the order granting summary judgment.

To be entitled to an award of attorney’s fees under N.D.C.C. § 28-26-01(2), the prevailing party must allege the nature of the frivolous claim in a responsive pleading.

The district court must award attorney’s fees under N.D.C.C. § 28-26-01(2) only after it finds a claim for relief is frivolous.

DCI Credit Services v. Plemper 2021 ND 215
Docket No.: 20210183
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Debtor/Creditor
Author: VandeWalle, Gerald

Wades Welding v. Tioga Properties 2021 ND 214
Docket No.: 20210107
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A district court may conduct a proceeding by reliable electronic means on its own motion or on a party’s motion.

An ostensible agency results when the principal causes a third person to believe another is the principal’s agent even though the other person is not employed by the principal.

Unjust enrichment is an alternative claim, and a legal claim which has yet to fail or succeed does not preclude a plaintiff from also asserting an unjust enrichment claim.

Wades Welding v. Tioga Properties 2021 ND 214
Docket No.: 20210107
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Boldt v. Boldt 2021 ND 213
Docket No.: 20210101
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: When determining primary residential responsibility of a minor child, the district court must consider the best interest factors and make findings with sufficient specificity to show the factual basis for its decision.

Deferential review of a district court’s primary residential responsibility determination is especially applicable in cases involving two fit parents.

Under N.D. Admin. Code § 75-02-04.1-01(6)(d), an individual obligated to provide child support may deduct a portion of payments made to afford health insurance coverage for the child.

State v. McCreary 2021 ND 212
Docket No.: 20210064
Filing Date: 12/1/2021
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: A flashlight may be found to be a dangerous weapon under N.D.C.C. 12.1-01-04(6).

Dangerous weapon statute is not exhaustive, and whether an object is a dangerous weapon under the circumstances is a determination for the fact finder.

Interest of C.E. (CONFIDENTIAL) 2021 ND 211
Docket No.: 20210264
Filing Date: 11/26/2021
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), (4), and (7).

Interest of C.E. (CONFIDENTIAL) 2021 ND 211
Docket No.: 20210264
Filing Date: 11/26/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Iakel-Garcia v. Anderson 2021 ND 210
Docket No.: 20210021
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court’s award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.

The district court must award primary residential responsibility to the parent who will promote the child’s best interests and welfare.

The district court must determine the total value of the marital estate in order to make an equitable division of property.

Muchow v. Kohler, et al. 2021 ND 209
Docket No.: 20210103
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: North Dakota’s Uniform Nonparent Custody and Visitation Act governs nonparent visitation rights.

The district court may order visitation if petitioners prove: (1) a substantial relationship with the child and (2) the denial of visitation would result in harm to the child.

Petitioners have the burden of proving the requirements by clear and convincing evidence.

“Harm to child” means a “significant adverse effect on a child’s physical, emotional, or psychological well-being.”

Quamme v. Quamme 2021 ND 208
Docket No.: 20210093
Filing Date: 12/1/2021
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: For purposes of determining child support, commissions do not necessarily constitute self-employment income under N.D. Admin. Code § 75-02-04.1-01(10).

Debt regularly forgiven by an employer from a loan based on an obligor’s employment constitutes gross income under N.D. Admin. Code § 75-02-04.1-01(4)(b) and (5).

For purposes of awarding spousal support, the district court does not need to provide a complete calculation of each parties’ assets, debts, and expenses, but a clear description of the parties’ financial situation is helpful in understanding the court’s rationale. When a court’s rationale is unclear, reversal and remand is appropriate.

Guardianship and Conservatorship of T.G.P.C. 2021 ND 207
Docket No.: 20210121
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: A Findings of Fact and Order Reappointing Guardian and Conservatorship and Continuing Guardianship Following Review and Denying Petitioners Request in Full is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Guardianship and Conservatorship of T.G.P.C. 2021 ND 207
Docket No.: 20210121
Filing Date: 11/26/2021
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Chase v. State 2021 ND 206
Docket No.: 20200315
Filing Date: 11/17/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A motion for summary disposition of an application for postconviction relief under N.D.C.C. § 29-32.1-09(3) must be made consistent with our rules for motion practice. 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 postconviction relief.

Interest of A.D. (CONFIDENTIAL) 2021 ND 205
Docket No.: 20200299
Filing Date: 11/17/2021
Case Type: Appeal - Civil - Juvenile Law
Author: Tufte, Jerod E.

Highlight: Under N.D. Sup. Ct. Admin. R. 13, § 10(a), the findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge.

Juvenile court’s finding that father abandoned child is not clearly erroneous when the father has not provided care for or had any contact with the child since 2007 or 2008, and has not made any significant attempts to locate the child or have the child placed in his care.

Juvenile court is not required to specifically identify and discuss each best interest factor if the Court is able to discern how the juvenile court’s findings apply to the best interest factors.

When a child is deprived by the parents, no finding of exceptional circumstances is required to be made by the juvenile court to grant a guardianship. The finding of deprivation eliminates the need for a finding of exceptional circumstances.

Craig v. State 2021 ND 204
Docket No.: 20210108
Filing Date: 11/17/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: In a postconviction relief proceeding, claims that were raised or could have been raised in an earlier postconviction relief proceeding are barred by the doctrine of res judicata.

Matter of Michael J. Tharaldson Trust 2021 ND 203
Docket No.: 20210139
Filing Date: 11/17/2021
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: The district court has subject matter jurisdiction over trusts.

Service of process in a trust proceeding on an attorney representing a party in a probate proceeding is ineffective.

A party has ten days to file a demand for change of judge after being added to a proceeding.

Matter of Michael J. Tharaldson Trust 2021 ND 203
Docket No.: 20210139
Filing Date: 11/17/2021
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

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

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 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

Highlight: A juvenile court order declining to terminate parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

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.

Highlight: An application for postconviction relief must be filed within two years of the date the conviction becomes final unless an applicant meets the burden of establishing that any of the three exceptions to the statute of limitations applies.

State v. Atkins, 2019 ND 145, 928 N.W.2d 441, did not announce a new interpretation of state law within the meaning of N.D.C.C. § 29-32.1-01(3)(a).

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

Highlight: District court orders dismissing child abuse complaint and denying request for a hearing are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7), and single costs and attorney’s fees are awarded under N.D.R.App.P. 38.

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.

Highlight: A subsequent, summarized order for publication does not restart the time to appeal a termination of parental rights. An untimely notice of appeal leaves the Supreme Court without jursidiction to consider the appeal.

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

Highlight: Lawyer suspended.

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

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

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

Highlight: Orders denying leave to file new motions or papers are not appealable.

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.