Opinions

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the findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge.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.

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

Highlight: A criminal judgment for delivery of a controlled substance 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

Highlight: An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

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

Highlight: A district court order awarding restitution 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.