Opinions

Hunter v. State 2020 ND 224
Docket No.: 20200160
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Claims barred by res judicata are not preserved in post-conviction relief proceedings by combining them with claims of ineffective assistance of counsel.

Failure to show prejudice on an ineffective assistance of counsel claim results in failure of that claim.

WSI v. Tolman 2020 ND 223
Docket No.: 20200025
Filing Date: 10/21/2020
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Statutory interpretation presents a question of law. Statutory provisions are given their plain, ordinary, and commonly understood meaning unless a contrary intention plainly appears.

For purposes of WSI benefits, a compensable injury includes a mental or psychological condition caused by a physical injury, but only when the physical injury is determined with reasonable medical certainty to be at least fifty percent of the cause of the condition as compared with all other contributing causes combined, and only when the condition did not preexist the work injury.

Thiele v. Bousquet, et al. 2020 ND 222
Docket No.: 20200146
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: A summary judgment in a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Yost v. State (consolidated w/20200149-2020151) 2020 ND 221
Docket No.: 20200125
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Gonzalez v. State 2020 ND 220
Docket No.: 20200079
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court’s order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Lubitz 2020 ND 219
Docket No.: 20200118
Filing Date: 10/21/2020
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Criminal conviction for murder summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Hoffarth v. Hoffarth 2020 ND 218
Docket No.: 20200129
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Ring v. NDDHS 2020 ND 217
Docket No.: 20200072
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: When ruling on a motion for substitution upon a party’s death, the district court must determine whether the case was extinguished by the death, and if not, whether the party seeking substitution is the proper successor.

State v. Long 2020 ND 216
Docket No.: 20200050
Filing Date: 10/21/2020
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Jensen, Jon J.

Highlight: A district court’s order denying the defendant’s motion to dismiss is affirmed.

Section 39-08-01(1)(f), N.D.C.C., which requires an individual be advised of the consequences of refusing a chemical test, is unambiguous and does not provide informing drivers of the right to refuse a chemical test.

City of Minot v. Miller 2020 ND 215
Docket No.: 20200121
Filing Date: 10/21/2020
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Exclusion of a chemical test through the application of N.D.C.C. § 39-20-01(b) is not an available remedy in a criminal proceeding not involving a refusal.

State v. Trefethren 2020 ND 214
Docket No.: 20200116
Filing Date: 10/21/2020
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment entered after a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

G & D Enterprises v. Liebelt 2020 ND 213
Docket No.: 20190256
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Highlight: The duty which gives rise to a nuisance claim is the absolute duty not to act in a way which unreasonably interferes with other persons’ use and enjoyment of their property.

To succeed on a trespass claim, the plaintiff must establish the defendant intentionally entered the land of another, or caused a thing or third person to do so, without the consent of the landowner.

A district court’s decision granting or denying injunctive relief is equitable in nature, rests within its sound discretion, and will not be reversed on appeal absent an abuse of discretion.

Bickel v. Bickel 2020 ND 212
Docket No.: 20200026
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: If the district court finds certain past income is an unreliable indicator of the obligor’s future income, the court must explain why the income it utilized in determining the child support obligation was appropriate.

If the district court bases a child support obligation on an income earned in less than a 12-month period, the court must explain why it did not utilize the evidence it had to extrapolate an income for a 12-month period.

Pursuant to N.D. Admin. Code § 75-02-04.1-02(9), each child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.

Generally, a modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date.

If the district court grants a movant relief on a motion to compel discovery, either in whole or in part, and the movant requests attorney’s fees, the court must consider whether an award of attorney’s fees is appropriate under N.D.R.Civ.P. 37(a)(5).

Toure v. State 2020 ND 211
Docket No.: 20200040
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court’s order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Beyer v. State 2020 ND 210
Docket No.: 20200052
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of C.A.R. (CONFIDENTIAL) 2020 ND 209
Docket No.: 20190385
Filing Date: 10/21/2020
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: A party seeking termination of parental rights must prove all the elements by clear and convincing evidence.

If a petitioner proves his or her case under the clear and convincing standard of proof, then a district court has discretion to decide whether to terminate parental rights.

State v. Devine 2020 ND 208
Docket No.: 20200033
Filing Date: 10/21/2020
Case Type: Appeal - Criminal - Homicide
Author: Jensen, Jon J.

Highlight: The exclusionary rule previously codified within N.D.C.C. § 39-20-01(3)(b) did not apply to a test obtained pursuant to N.D.C.C. § 39-20-01.1.

Bismarck Financial Group, et al. v. Caldwell 2020 ND 207
Docket No.: 20200005
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint, and it must not be granted unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.

A person that wrongfully dissociates from a limited liability company is liable to the company and the other members for damages the dissociation causes.

Suelzle v. NDDOT 2020 ND 206
Docket No.: 20190343
Filing Date: 10/21/2020
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: A person may be arrested for actual physical control of a vehicle while under the influence of alcohol if the vehicle is located on private property in a private area to which the public has a right of access.

Whether property is a private area to which the public has a right of access is a question of fact, which may be determined by factors including: the existence or absence of signs, gates, or barriers; whether or not there is routine use by the public not specifically invited to use the property, such as for purposes of visiting, making deliveries, or otherwise interacting with the owner; and the location of the vehicle on the property.

Hall v. Hall, et al. 2020 ND 205
Docket No.: 20190169
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A district court has greater liberty in granting motions under N.D.R.Civ.P. 60(b) when the matter involves a default judgment rather than a judgment following a full trial on the merits.

Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.

A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.

RFM-TREI Jefferson Apartments v. Stark County Board of Comm'rs (consol w/ cont) 2020 ND 204
Docket No.: 20190396
Filing Date: 10/21/2020
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: An assessment that exceeds the true and full value of property is contrary to N.D.C.C. § 57-23-01, which provides that “assessments of any taxable property in excess of the full and true value in money are subject to correction and abatement and refund.” When a Board denies a request to abate such an assessment, it acts contrary to the legislature’s directive, and the Court will conclude the abatement denial is arbitrary and unreasonable.

In tax abatement and refund proceedings, taxing authorities may consider information that does not meet the standards for admissibility of evidence in court.

Onstad v. Jaeger, et al. 2020 ND 203
Docket No.: 20200251
Filing Date: 9/25/2020
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Per Curiam

Highlight: Section 16.1-01-08, N.D.C.C., authorizes a court to order the secretary of state to correct an error which has been committed in printing the ballot, and does not place a time limitation on the court’s authority to order the correction of a ballot before the election.

A person’s legal residence is a question of fact.

Holter v. City of Mandan 2020 ND 202
Docket No.: 20190277
Filing Date: 9/21/2020
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: This Court exercises a limited review of a challenge to a municipality’s decision to specially assess property.

A municipality has broad discretion to determine benefits and apportion assessments and costs to properties within an improvement district.

The special assessment against a property must not exceed the benefit which has been determined to have accrued thereto.

O'Keeffe v. O'Keeffe 2020 ND 201
Docket No.: 20190379
Filing Date: 9/16/2020
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: An award of spousal support is rehabilitative when it is ordered to provide the receiving spouse an opportunity to acquire an education, training, work skills, or experience to increase earning capacity or to become self-supporting.

Non-rehabilitative spousal support includes support ordered to equitably reduce a substantial income disparity that cannot be adjusted by property division or rehabilitative support.

State v. Edwards 2020 ND 200
Docket No.: 20200044
Filing Date: 9/15/2020
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Failure to assert a claim of obvious error on appeal does not warrant review under the obvious error standard.

Velasquez v. State 2020 ND 199
Docket No.: 20200043
Filing Date: 9/15/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: The order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Tolbert 2020 ND 198
Docket No.: 20200029
Filing Date: 9/15/2020
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: The criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Woelfel v. Gifford 2020 ND 197
Docket No.: 20190331
Filing Date: 9/15/2020
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Post-judgment modification of residential responsibility is governed by statute which provides the standard for a court to apply.

When a prior judgement establishes joint or equal residential responsibility, modification first requires a determination to award primary residential responsibility.

A residential responsibility order provision that automatically transfers primary residential responsibility on the happening of a condition is against public policy.

Cass County Joint Water Resource District v. Aaland, et al. 2020 ND 196
Docket No.: 20200171
Filing Date: 9/15/2020
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Under Rule 8, N.D.R.App.P., the Court has the authority to grant a stay pending appeal.

The Court considers four criteria when deciding whether to grant an application for a stay: 1) a strong showing that the appellant is likely to succeed on appeal; 2) that unless the stay is granted, the appellant will suffer irreparable injury; 3) that no substantial harm will come to any party by reason of the issuance of the stay; and 4) that granting the stay will do no harm to the public interest.

Interest of J.F. (CONFIDENTIAL)(consolidated with 20200089) 2020 ND 195
Docket No.: 20200088
Filing Date: 9/15/2020
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: An appeal from a juvenile court order finding two children to be deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sadek, et al. v. Weber, et al. 2020 ND 194
Docket No.: 20190216
Filing Date: 9/15/2020
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: For the tort of deceit, one who willfully deceives another with intent to induce that person to alter that person’s position to that person’s injury or risk is liable for any damage which that person thereby suffers.

While there must be a false representation of a material fact that either exists in the present or has existed in the past, a mere expression of an opinion in the nature of a prophecy as to the happening or non-happening of a future event is not actionable as deceit.

Negligence consists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty.

A proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred.

Jorgenson v. NDDOT 2020 ND 193
Docket No.: 20190411
Filing Date: 9/15/2020
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: To preserve an issue for appeal, an argument must be raised before the administrative hearing officer and identified in the specifications of error on appeal to the district court.

Environmental Law & Policy Center, et al. v. N.D. Public Svc. Commission, et al. 2020 ND 192
Docket No.: 20190220
Filing Date: 9/15/2020
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The Administrative Agencies Practice Act governs an appeal from a decision of the Public Service Commission.

The Public Service Commission’s authority to regulate is limited to that authority provided to it by the legislature.

For an administrative agency, the term “jurisdiction” has three components: (1) personal jurisdiction, referring to the agency’s authority over the parties and intervenors involved in the proceedings; (2) subject matter jurisdiction, referring to the agency’s power to hear and determine the causes of a general class of cases to which a particular case belongs; and (3) the agency’s scope of authority under statute.

The Commission’s regulatory authority is limited to projects that meet the definition of “gas or liquid energy conversion facility” found in N.D.C.C. § 49-22.1-01(6). A refinery not designed for or capable of refining 50,000 bpd is not a “gas or liquid energy conversion facility” as that term is defined. A project proponent may avoid the time and expense of the Commission’s regulatory review that comes with a larger project by deciding to reduce the scale of a project to a size just below the regulatory threshold.

State v. Silk 2020 ND 191
Docket No.: 20200035
Filing Date: 9/15/2020
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order revoking defendant’s probation and amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Oversen, et al. v. Jaeger 2020 ND 190
Docket No.: 20200234
Filing Date: 9/4/2020
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Per Curiam

Highlight: The secretary of state does not have a duty to certify a new nomination and place the new nominee’s name on the general election ballot as a candidate for a statewide executive branch office when a vacancy on the ballot occurs after the primary election, if the vacancy did not occur as a result of one of the conditions listed in N.D.C.C. § 16.1-11-18(6).

Estate of Grenz 2020 ND 189
Docket No.: 20190363
Filing Date: 8/31/2020
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: A district court’s decision to invalidate a portion of a decedent’s will based on undue influence and to give effect to a portion of a contingent distribution clause is affirmed.

City of West Fargo v. Olson, et al. 2020 ND 188
Docket No.: 20200183
Filing Date: 8/27/2020
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Jensen, Jon J.

Highlight: The Supreme Court exercises supervisory jurisdiction only in extraordinary cases to rectify errors and prevent injustice when no adequate alternative remedy exists.

Because the individual who initially inspected and reviewed the installation of the Intoxilyzer 8000 testing device did not make any testimonial statements under the Confrontation Clause or Rule 707 of the North Dakota Rules of Evidence, the City of West Fargo is not required to produce her at trial.

Muhlbradt, et al. v. Pederson, et al. 2020 ND 187
Docket No.: 20190327
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: Deeds are construed in the same manner as contracts with the primary purpose to ascertain and effectuate the parties’ or grantor’s intent.

Whether a deed is ambiguous is a question of law, which is fully reviewable on appeal.

Kvande v. Thorson 2020 ND 186
Docket No.: 20190356
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: Laches is the delay in enforcing a person’s rights that disadvantages another, and a party asserting laches must prove he was so prejudiced during the delay that he cannot be restored to status quo.

Equitable estoppel cannot be used to create an enforceable agreement between the parties.

City of Glen Ullin, et al. v. Schirado, et al. 2020 ND 185
Docket No.: 20200075
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Highlight: A district court’s application of res judicata to claims concerning rights to real property is partially affirmed and partially reversed.

Koffler v. Koffler 2020 ND 184
Docket No.: 20190378
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A child support obligor’s self-induced reduction in income generally does not constitute a material change in circumstances warranting a modification of a child support obligation.

State v. M.J.W. (consol. w/20200009-20200010) 2020 ND 183
Docket No.: 20200008
Filing Date: 8/27/2020
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: Section 12-60.1-02(1)(a), N.D.C.C., authorizes an individual to petition the district court to seal a criminal record only when the individual had not been charged with a new crime for at least three years from the date of release from incarceration, parole, or probation.

A district court errs when it grants a petition not authorized by statute.

Woodrock, et al. v. McKenzie Cty. 2020 ND 182
Docket No.: 20200066
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A contract to supply aggregate materials to a county stockpile is not a contract for the “construction of a public improvement” under N.D.C.C. ch. 48-01.2.

The county was not required to obtain a bond from a contractor for a contract to supply aggregate materials to stockpiles under N.D.C.C. § 48-01.2-10.

Gimbel v. Magrum, et al. 2020 ND 181
Docket No.: 20190412
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A district court judgment determining real estate was not acquired by adverse possession or acquiescence is affirmed.

Instasi v. Hiebert 2020 ND 180
Docket No.: 20200037
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A court of this state may modify a child custody determination made by a court of another state if the court of the other state determines it no longer has exclusive, continuing jurisdiction or that a court of this state would be a more convenient forum.

Wilkinson, et al. v. Board of University and School Lands of the State of N.D. 2020 ND 179
Docket No.: 20190354
Filing Date: 8/27/2020
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Chapter 61-33.1, N.D.C.C., governs the State’s sovereign land mineral ownership of the riverbed segments subject to inundation by the Pick-Sloan Missouri basin project dams and provides a process for determining ownership and returning funds incorrectly paid to the State.

The State does not have any claim or hold title as sovereign lands to any minerals above the ordinary high water mark of the historical Missouri riverbed channel.

When N.D.C.C. ch. 61-33.1 applies to determine ownership of mineral interests, the process provided by the chapter must be followed to decide ownership.

Berg v. Jaeger, et al. 2020 ND 178
Docket No.: 20200184
Filing Date: 8/26/2020
Case Type: Original Proceeding - Civil - Writ of Injunction
Author: Per Curiam

Highlight: The supreme court, in exercising its original jurisdiction, may issue a writ of injunction to restrain the commission or continuance of an act.

The five-year residency requirement of N.D. Const. art. V, § 4, relating to holding an executive branch office, does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

A person’s legal residence is a question of fact.

Haugen, et al. v. Jaeger, et al. 2020 ND 177
Docket No.: 20200213
Filing Date: 8/25/2020
Case Type: Original Proceeding - Civil - Writ of Injunction
Author: Per Curiam

Highlight: The full-text requirement in N.D. Const. art. III, § 2, prohibits a petition to initiate a measure that would amend the Constitution from incorporating a statute by reference.

Krile v. Lawyer 2020 ND 176
Docket No.: 20190367
Filing Date: 7/30/2020
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: In deciding a motion to dismiss under N.D.R.Civ.P. 12(b)(6), district courts may consider materials embraced by the pleadings and materials that are part of the public record without converting the motion to a summary judgment under N.D.R.Civ.P. 56.

Communications made by a state’s attorney while performing an official duty as prescribed in N.D.C.C. § 11-16-01 are entitled to absolute privilege under N.D.C.C. § 14-02-05(1).

A communication made by a state’s attorney while performing his or her official duty to conduct criminal prosecutions under N.D.C.C. § 11-16-01(1) is absolutely privileged if made while performing an act or during an activity “intimately associated with the judicial phase of the criminal process.”

Disclosures made to an administrative agency, at the request of the agency, and during the course of a statutorily authorized investigation by the agency are absolutely privileged under N.D.C.C. § 14-02-05(2).

Sorum, et al. v. State, et al. 2020 ND 175
Docket No.: 20190203
Filing Date: 7/30/2020
Case Type: Appeal - Civil - Tax Realted
Author: Tufte, Jerod E.

Highlight: Where the State has a legal obligation that becomes unenforceable by the passage of a statute of limitations, the Legislative Assembly may waive or extend the limitation period to revive a previously valid claim against the State without making a prohibited “donation” within the meaning of the gift clause.

An action brought by an individual as a taxpayer facially challenging a statute does not fail merely because the statute includes constitutional applications along with potentially unconstitutional applications.