Opinions

Disciplinary Board v. Daniel 2024 ND 191
Docket No.: 20240182
Filing Date: 10/18/2024
Case Type: Discipline - Attorney - Disbarment
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Kath v. Farmers Union Mutual Ins. Co., et al. 2024 ND 190
Docket No.: 20240068
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: An endorsement is part of the insurance contract. The body of an insurance policy and the endorsements are read as a whole with every attempt to give effect to all of the provisions. When there is a conflict between an endorsement and other policy provisions, the endorsement prevails.

Guardianship and Conservatorship of K.H.P. 2024 ND 189
Docket No.: 20240021
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: Unless a statute imposing a time limit declares the time limit is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency.

An issue is not justiciable if it is moot or not ripe for review, a party lacks standing, or resolving it would be advisory.

When petitioning for termination of a guardianship, the ward has the burden of establishing a prima facie case that he is no longer incapacitated. If the ward presents evidence strong enough, if uncontradicted, to support a finding in his favor, he has made a prima facie case.

The review process under N.D.C.C. § 30.1-28-04(5) does not provide the court statutory authority to reappoint an expert examiner. At the time of petitioning for termination in this case, N.D.C.C. § 30.1-28-07(3) (2022) did not give the court statutory authority to reappoint an expert examiner in the termination proceedings, or request an evaluative report and testimony.

After the ward establishes a prima facie case, the guardian has the burden of proving by clear and convincing evidence that the ward remains an incapacitated person.

Curtis v. Curtis, et al. 2024 ND 188
Docket No.: 20240115
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Divorce
Author: Tufte, Jerod E.

Highlight: An appeal from a district court judgment is dismissed because the appeal was untimely. The time to appeal the judgment was not tolled under N.D.R.App.P. 4(a)(3)(A)(vi) because a Rule 60, N.D.R.Civ.P., motion was not filed and served within 28 days from notice of entry of judgment.

Samaniego v. State 2024 ND 187
Docket No.: 20240090
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: A prosecutor's question to a law enforcement officer whether, at any point during the officer's investigation, the officer interviewed the defendant did not violate the defendant's Fifth Amendment rights.

A court considering a motion for new trial based on alleged jury misconduct is prohibited from hearing testimony from or receiving declarations of jurors, subject to the exceptions under N.D.R.Ev. 606(b).

State v. Jalloh (consolidated w/20240009) 2024 ND 186
Docket No.: 20240010
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Judgments entered after a jury found the defendant guilty of tampering with evidence and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Jalloh (consolidated w/20240010) 2024 ND 186
Docket No.: 20240009
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgments entered after a jury found the defendant guilty of tampering with evidence and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Martinez v. State 2024 ND 185
Docket No.: 20240064
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Woolsey v. State 2024 ND 184
Docket No.: 20240109
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, does not apply to juvenile adjudications.

Liberty Petroleum Corp. v. NDIC, et al. 2024 ND 183
Docket No.: 20240022
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: Pre-unitization costs of drilling and operating a well, which is now attributed to the unit, reasonably fall within the definition of unit expense. Under unitization, the risk penalty may be recovered out of, and only out of, production from the unit.

A physical taking is where the government requires an owner to suffer a permanent physical invasion of her property. Total regulatory takings occur when regulations completely deprive an owner of all economically beneficial use of her property. Property is subject to the police power of the state to impose such restrictions upon private rights as are practically necessary for the general welfare of all.

The Court accords greater deference to Industrial Commission findings of fact than it ordinarily accords to other administrative agencies' findings of fact. In orders approving a plan of unitization, the Commission made the required findings, and those findings are supported by substantial and credible evidence.

State v. Hoffman 2024 ND 182
Docket No.: 20240095
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A criminal judgment entered following a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Urrabazo v. State 2024 ND 181
Docket No.: 20240085
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Roller 2024 ND 180
Docket No.: 20240051
Filing Date: 9/26/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: "Willful" conduct is not incongruent with "intentional" conduct. "Willful" conduct includes "intentional" conduct, meaning a person's conduct can be both willful and intentional.

Habitual offender proceedings are sentencing proceedings. Therefore, the rules of evidence do not apply to the court's determination of whether an offender is a habitual offender.

Interest of J.R. 2024 ND 179
Docket No.: 20240207
Filing Date: 9/26/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of T.R. 2024 ND 179
Docket No.: 20240208
Filing Date: 9/26/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Estate of Olson 2024 ND 178
Docket No.: 20240078
Filing Date: 9/26/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: A district court order dismissing a petition for formal probate for failure to prosecute under N.D.R.Civ.P. 40(e) is reversed because the record does not show a lack of prosecution for more than a year.

Interest of J.M.P. 2024 ND 177
Docket No.: 20240223
Filing Date: 9/26/2024
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. 35.1(a)(2) and (4).

Disciplinary Board v. Merkens (interim Suspension) 2024 ND 176
Docket No.: 20240261
Filing Date: 9/26/2024
Case Type: Discipline - Attorney - Suspension
Author: Per Curiam

Highlight: Lawyer interim suspended

State v. Rolland 2024 ND 175
Docket No.: 20230313
Filing Date: 9/12/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial. A defendant is incompetent when he lacks (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. The prosecution must show by a preponderance of evidence that a defendant is competent to stand trial.

The fifteen day deadline for a mental health examination under N.D.C.C. § 12.1-04-07 does not begin until receipt of material necessary to examine the fitness of the individual and notice of entry of the order served upon the tier 1a mental health professional.

When factual issues are involved in deciding a pretrial motion in a criminal case, the district court must state its essential findings on the record. A decision cannot be properly reviewed if the district court fails to make adequate findings explaining the basis for its ultimate conclusion.

Interest of W.C.M. 2024 ND 174
Docket No.: 20240213
Filing Date: 9/12/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order requiring continued hospitalization is summarily affirmed under N.D.R.App.P 35.1(a)(2).

State v. Littlebird 2024 ND 173
Docket No.: 20240050
Filing Date: 9/12/2024
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Senske Rentals v. City of Grand Forks 2024 ND 172
Docket No.: 20230397
Filing Date: 9/12/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The statutes granting cities the power to make special assessments must be strictly construed, and the conditions imposed must be specifically observed and performed.

Section 40-23-07, N.D.C.C., requires a determination of special benefits to each lot. This determination of special benefits must be independent of and without consideration of the improvement project cost in order to satisfy the statutory requirement that the assessment against each lot is "not exceeding the benefits."

We have approved the use of formulas by special assessment commissions to determine the "just proportion" of assessment to each lot and as a factor in determining the amount of benefit received by each lot.

We overrule Holter v. City of Mandan, 2020 ND 152, 946 N.W.2d 524, because it misinterpreted N.D.C.C. § 40-23-07 to the extent it held the statute permitted use of the same formula to determine both the benefit received by a lot and the assessment of costs to that lot.

Mitzel, et al. v. Vogel Law Firm, et al. 2024 ND 171
Docket No.: 20230372
Filing Date: 9/12/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan

Highlight: The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty.

When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefitted the client.

In a legal malpractice action, the plaintiff has the burden to show damages proximately caused by the breach of the duty owed to the plaintiff. The amount of the damages does not require proof to a degree of mathematical precision; however, the jury must have some factual basis for fixing damages.

Gaddie v. State 2024 ND 170
Docket No.: 20240052
Filing Date: 8/28/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To establish prosecutorial misconduct, an applicant for postconviction relief must show (1) the prosecutor's actions constitute misconduct, and (2) the misconduct had a prejudicial effect.

North Dakota Rule of Evidence 404(b) requires exclusion of evidence of other acts and crimes committed by the defendant when they are independent of the charged crime and do not fit into the rule's exceptions. Rule 404(b) requires prosecutors to give written notice and explanation if they intend to offer prior bad act evidence.

Knowing introduction of prior bad act evidence coupled with a failure to comply with the Rule 404(b) notice requirement constitutes prosecutorial misconduct.

Admission of evidence of prior sexual misconduct during a criminal prosecution for a sex-related crime creates unique potential for prejudice.

Wollan v. Innovis Health 2024 ND 169
Docket No.: 20240094
Filing Date: 8/28/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan

Highlight: A jury's special verdict will be reversed only if it is perverse and clearly contrary to the evidence. The presumption on appeal is that jurors do not intend to return conflicting answers.

Reconciliation of a verdict includes an examination of both the law of the case and the evidence to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

Rule 408, N.D.R.Ev., encourages candor during settlement discussions by expanding the common-law rule and rendering inadmissible evidence of conduct or a statement made during compromise negotiations.

Ebel, et al. v. Engelhart, et al. 2024 ND 168
Docket No.: 20240065
Filing Date: 8/28/2024
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A contract requires an offer, an acceptance of an offer, and a mutual acceptance and understanding between the offeror and the offeree as to the terms of the obligation.

When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings.

Actual notice of a prior competing interest defeats a good-faith purchaser claim.

To succeed on a claim for intentional interference with contract, a plaintiff must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) the defendant instigated the breach without justification. The test for proving justification is what is reasonable conduct under all the circumstances of the case. Even where the evidence shows a defendant interfered with a contract, the defendant's actions are justified if they are done for legitimate business concerns and did not maliciously seek to damage the plaintiff.

State v. Miller 2024 ND 167
Docket No.: 20240039
Filing Date: 8/14/2024
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Restitution must be limited to reasonable damages "directly related" to a criminal offense or expenses sustained as a "direct result" of the defendant's criminal action. There must be an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered. Extradition costs indirectly related to criminal conduct may not be imposed as restitution.

A district court is generally bound by the terms of a plea agreement it has accepted. After accepting a plea agreement and entering judgment, the court may not add an additional punishment.

Ziemann v. Grosz 2024 ND 166
Docket No.: 20230355
Filing Date: 8/14/2024
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A denial of summary judgment puts the parties to their proof with a full opportunity to present all of their evidence. If a case goes to trial after a motion for summary judgment is denied, the question of whether the trial court erred in denying summary judgment is moot.

A partnership is an association of two or more persons to carry on as co-owners a business for profit. Whether a partnership exists depends on the facts and circumstances of each case. The critical elements of a partnership are (1) an intention to be partners, (2) coownership of the business, and (3) a profit motive.

The determination whether property held in the name of an individual partner belongs to the partnership is a question of fact. The relevant inquiry is whether the partners intended that the property in question be partnership property or individual property.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. When a statement within a statement is at issue, each must be admissible on its own.

Interest of W.S., a Child 2024 ND 165
Docket No.: 20240179
Filing Date: 8/14/2024
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 W.S., a Child 2024 ND 165
Docket No.: 20240180
Filing Date: 8/14/2024
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).

State v. Enriquez 2024 ND 164
Docket No.: 20240087
Filing Date: 8/14/2024
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: Possession may be actual or constructive, exclusive or joint and may be shown entirely by circumstantial evidence.

Under N.D.C.C. § 12.1-01-04(9), a firearm means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive.

Bolinske v. Sandstrom, et al. 2024 ND 163
Docket No.: 20230359
Filing Date: 8/14/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court judgment dismissing a claim of defamation and awarding attorney's fees is affirmed.

A defamation action must be commenced within two years after the claim for relief has accrued. A cause of action accrues on a defamation claim when the publication of the false statement is made to a third party. The period of limitation for commencement of a defamation action is tolled during the 45-day period allowed in N.D.C.C. § 32-43-06 for responding to a request for correction or clarification. The statutory reference to 90 days in N.D.C.C. § 32-43-03(2) does not provide an additional 90-day tolling period in addition to the 45-day period in N.D.C.C. § 32-43-06.

The district court has discretion under N.D.C.C. § 28-26-01(2) to determine whether a claim is frivolous and how much to award in attorney's fees. The court is considered an expert in determining the amount of attorney's fees. A court is not required to describe its calculations in detail when making its findings regarding attorney's fees as long as this Court is able to discern a basis for the award.

Zundel v. City of Jamestown, et al. 2024 ND 162
Docket No.: 20240080
Filing Date: 8/14/2024
Case Type: Original Proceeding - Criminal - Writ of Mandamus
Author: Tufte, Jerod E.

Highlight: Retention of and access to court records is a matter of public interest warranting the exercise of this Court's original jurisdiction.

The judge of a municipal court or a clerk designated by the judge shall be responsible for the administration of all municipal court records in accordance with the records retention schedule.

The retention schedule requires the court to retain permanently a summary of the case or register of actions. A permanent record must be retained indefinitely.

Burleigh Cty. Social Service Bd. v. Rath 2024 ND 161
Docket No.: 20230411
Filing Date: 8/14/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: The doctrine of latches does not apply to child support arrearages.

Even if the division of juvenile services has temporary custody of a minor, the child support obligor still owes child support.

The State and obligee have standing to assert a claim for child support arrearages for a child who has reached the age of majority.

The Federal Consumer Credit Protection Act does not apply to child support.

Heiser, et al. v. Dahl, et al. 2024 ND 160
Docket No.: 20230323
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant.

Section 28-01-11, N.D.C.C., narrows the scope of adverse possession when it is not based on a written instrument to property protected by a substantial enclosure or when it has been usually cultivated or improved.

Possession of real property which is permissive at its inception only becomes adverse when there is a disclaimer of the true owner's title or there are acts of an unequivocal nature by the possessor putting the owner on notice of the hostile nature of the possession.

A claimant's mowing and maintenance are not unmistakable hostile uses of land to support a claim of adverse possession.

To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary for at least 20 years.

N.D. Energy Services v. Lime Rock Resources III-A, et al. 2024 ND 159
Docket No.: 20240096
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: A lease must be read and considered in its entirety so that all of its provisions are taken into consideration to determine the parties' true intent.

Under a usual oil and gas lease, the lessee, in developing the leased premises, is entitled to use of the land reasonably necessary in producing the oil.

A purchaser who fails to make the requisite inquiry cannot claim the protection of a goodfaith purchaser status.

State v. Watts 2024 ND 158
Docket No.: 20230358
Filing Date: 8/1/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: When a defendant fails to object to a proposed instruction properly or fails to specifically request an instruction or object to the omission of an instruction, the issue is not adequately preserved for appellate review and the inquiry is limited to whether the jury instructions constitute obvious error affecting substantial rights.

To successfully challenge the sufficiency of the evidence on appeal, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.

Improper comment about a defendant's invocation of the right to remain silent is a constitutional error that may be reviewed on appeal even though not raised at trial. When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error

Nordquist v. Alonge, et al. 2024 ND 157
Docket No.: 20230329
Filing Date: 8/1/2024
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Bahr, Douglas Alan

Highlight: A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and must establish no plain, speedy, and adequate remedy exists in the ordinary course of law.

When a deed does not use an existing tract currently recorded, and Instead, the deed attempts to convey a portion of land not previously recorded in the tract index as a tract or parcel of land. The description in the deed changes the property description.

Under N.D.C.C. § 57-02-39, the Auditor has discretion to request a replat of the land if certain conditions are met.

Property ownership is an issue for a court to decide in an appropriate proceeding involving the individuals who claim ownership to the property.

Fiebiger v. Anderson 2024 ND 156
Docket No.: 20240129
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: In summary judgment proceedings, the non-moving party cannot rely on pleadings or unsupported conclusionary allegations. The non-moving party must present admissible evidence that raises an issue of material fact. If the non-moving party does not meet their burden, the district court may grant summary judgment

Anderson v. Foss, et al. 2024 ND 154
Docket No.: 20240008
Filing Date: 8/1/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court's order is affirmed in part and remanded for 30 days while retaining jurisdiction under N.D.R.App.P. 35(a)(3) for no further proceedings other than to provide the additional findings requested by the Court.

State v. Reiswig 2024 ND 153
Docket No.: 20240048
Filing Date: 8/1/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: This Court employs a trustworthiness approach when analyzing whether a confession is sufficiently corroborated. Under this approach, not every statement made in a confession must be independently verified; instead, we look to a statement made in its entirety and the facts and circumstances in which it was made to determine if it is reliable and trustworthy.

A person of reasonable caution could conclude the statement "we did have sex" means sexual intercourse meeting the statutory definition of a sexual act under N.D.C.C. § 12.1-20-02(4).

State v. Prescott 2024 ND 152
Docket No.: 20230325
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Schweitzer v. State 2024 ND 151
Docket No.: 20240045
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A petitioner for postconviction relief must show how his counsel was ineffective through law, rules, or evidence, and cannot rely solely on conclusionary statements.

State v. Evitt 2024 ND 150
Docket No.: 20240077
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Hunting without a license and violating a governor's proclamation are crimes in North Dakota that the State has authority to prosecute and the district courts have jurisdiction to redress.

The sovereign citizen defense, under which adherents claim they can deny the courts' jurisdiction, is without merit.

Durr v. Volden, et al. 2024 ND 149
Docket No.: 20240029
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: In a trust relationship, a beneficiary has the burden of establishing their fiduciary made unaccounted-for withdrawals or made suspicious transactions that indicate undue influence. If the beneficiary proves this, a court must presume undue influence occurred for any benefit gained by the fiduciary. To avoid liability to the beneficiary for the transactions, the fiduciary must rebut the presumption to show no undue influence occurred.

Schoenberg v. Schoenberg 2024 ND 148
Docket No.: 20240044
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Under the residual exception to the hearsay rule, a hearsay statement is admissible if the statement is supported by sufficient guarantees of trustworthiness and it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The proponent failed to show that a letter containing hearsay statements from the children is more probative than affidavits or declarations from the children, or that the affidavits or declarations could not have been obtained through reasonable efforts.

If more than two years have passed since the court entered judgment establishing residential responsibility, a prima facie case consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child. The changed circumstances must have adversely affected the child, or there must have been a general decline in the condition of the child. A significant other moving into the home and counseling are material changes in circumstances. The moving party failed to show the changed circumstances adversely affected the children or that there has been a general decline in the condition of the children.

Ritter v. Ritter 2024 ND 147
Docket No.: 20240041
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A trial court's property valuations and division of the parties' assets and debts, and refinancing of debts are findings of fact subject to the clearly erroneous standard of review.

A trial court may weigh spouses' competing testimony on the value of marital property. A trial court's valuation of marital property is not clearly erroneous if the findings are within the range of evidence provided.

Whether a trial court includes an indemnity provision in a divorce judgment is dependent upon the facts of the case, subject to the clearly erroneous standard.

When determining whether to award spousal support, the trial court must consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, and the ability of the other spouse to pay.

Under the child support guidelines, a district court may average an obligor's income when calculating his or her income for child support purposes if the obligor has a fluctuating income. The guidelines specifically provide where gross income is subject to fluctuation, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.

State v. Juneau 2024 ND 146
Docket No.: 20230314
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A jury verdict finding a defendant guilty of robbery under N.D.C.C. § 12.1-22-01(2) while simultaneously determining he did not direct the force of a deadly weapon against the victim is legally inconsistent.

Interest of H.W. 2024 ND 145
Docket No.: 20240172
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Warner v. Warner 2024 ND 144
Docket No.: 20240047
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: Under N.D.C.C. § 14-09.1-07, a family law mediation agreement is not binding upon the parties until approved by order of the court.

The district court did not abuse its discretion when it denied the defendant's motion to set aside the judgment.

Wootan v. State 2024 ND 143
Docket No.: 20240025
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Ritter 2024 ND 142
Docket No.: 20230337
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A criminal judgment entered after a jury conviction of sexual assault is reversed because the district court abused its discretion by admitting video of a forensic interview without weighing the probative value against the prejudicial effect.

A court is vested with discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence, but opening the door for the admission of otherwise inadmissible evidence is not unlimited.

A court must first consider whether and to what extent the door has been opened regarding a particular topic. When the door has been opened, the court must also consider, under N.D.R.Ev. 403, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Gerszewski v. Rostvet (consolidated w/20230362 & 20230363) 2024 ND 141
Docket No.: 20230361
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.

A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.

The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

Rostvet v. Gerszewski (consolidated w/20230361 & 20230363) 2024 ND 141
Docket No.: 20230362
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.

A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.

The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

Rostvet v. Gerszewski (consolidated w/20230361 & 20230362) 2024 ND 141
Docket No.: 20230363
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.

A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.

The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

Interest of O.F. 2024 ND 140
Docket No.: 20240136
Filing Date: 7/18/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

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

Section 27-20.3-20(1)(c)(2), N.D.C.C., does not require 660 nights to have passed since placement of a child into care to satisfy the statute. The plain language of the statute requires the child be in care for at least 450 nights of the previous 660 nights.

State v. Adams 2024 ND 139
Docket No.: 20230328
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: The subsections in N.D.C.C. § 12.1-18-01(1) are alternative means of committing kidnapping and are not separate offenses.

When a defendant is charged and sentenced under an incorrect offense level, it is necessary to reverse and remand for resentencing.

Fahey, et al. v. Cook, et al. 2024 ND 138
Docket No.: 20230267
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan

Highlight: A party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Issues of fact become issues of law when a reasonable person could reach only one conclusion from the facts.

The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty.

The party asserting collateral estoppel bars relitigation of an issue in a new proceeding has the burden of establishing the doctrine applies. A legal malpractice action generally does not litigate the same issues as the underlying civil case in which the malpractice allegedly occurred.

Statutes are construed as a whole, harmonized to give meaning to related provisions, and interpreted to give effect to all of their provisions. When a uniform statute is interpreted, we construe it to effectuate its general purpose to make the law uniform in the states which enacted it.

Dorchester Minerals v. Hess Bakken Investments II 2024 ND 137
Docket No.: 20230326
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: A six-year statute of limitations applies to an unleased mineral interest owner's statutory claim for eighteen percent interest on unpaid royalties.

Even if the discovery rule applied, summary judgment is appropriate when the uncontroverted facts establish that a reasonable person would have been placed on notice of a potential claim.

For deciding who is entitled to statutory attorney's fees and costs, a prevailing party is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue.

Watts v. State 2024 ND 136
Docket No.: 20240011
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

East Central Water District v. City of Grand Forks, et al. 2024 ND 135
Docket No.: 20230389
Filing Date: 7/5/2024
Case Type: Certified Question - Civil - Civil
Author: McEvers, Lisa K. Fair

Highlight: The language "invalid and unenforceable" in N.D.C.C. § 6-09.4-22(2) means an agreement made without the public lending authority as a party is void ab initio.

State v. Lane 2024 ND 134
Docket No.: 20230401
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

Belyeu v. State 2024 ND 133
Docket No.: 20230390
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A petition for postconviction relief seeking to withdraw the petitioner's guilty pleas is reviewed under N.D.R.Crim.P. 11(d), and the district court considers whether relief is necessary to correct a manifest injustice.

A petitioner seeking to withdraw his guilty plea alleging ineffective assistance of counsel must surmount the two-prong test set out by Strickland v. Washington, 466 U.S. 668 (1984).

To satisfy the first prong under Strickland, a petitioner must show his counsel's representation fell below an objective standard of reasonableness. To satisfy the second prong, a petitioner must establish there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. The applicant must also show the district court that the decision to not plead guilty would have been "rational under the circumstances."

Postconviction relief is available under N.D.C.C. § 29-32.1-01(1)(e) when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."

A petition alleging newly discovered evidence following a guilty plea filed within the two-year statute of limitations is reviewed using analysis similar to a motion for new trial under N.D.R.Crim.P. 33(b).

Interest of H.J.J.N. 2024 ND 132
Docket No.: 20240060
Filing Date: 4/18/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: Litigants in civil nonjury cases have a right to have their attorneys make a final argument. A court errs by entering judgment prior to the closing of the briefing period.
In parental-termination cases, the court has discretion, which can be exercised only after considering the evidence and arguments.

Equinor Energy v. State 2024 ND 131
Docket No.: 20230225
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Tax Related
Author: Jensen, Jon J.

Highlight: The North Dakota Tax Commissioner's longstanding interpretation of section 57-39.204.5(1), N.D.C.C., is not arbitrary or unjust and does not contradict the plain and ordinary meaning of that statute.

Oil and gas separators merely sort the "well stream" into its three component parts: water, oil, and gas, and are not exempt from sales tax under section 57-39.2-04.5(1), N.D.C.C.

McCay v. McCay, et al. 2024 ND 130
Docket No.: 20230360
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court's findings on a material change in circumstances, best interest factors (a), (b), (c), and (d), the findings supporting relocation, and the findings related to the new parenting schedule were not clearly erroneous.

Hovet, et al. v. Dahl, et al. 2024 ND 129
Docket No.: 20230322
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. When the claim of exclusive right is not founded upon a written instrument, the premises actually occupied and no other must be deemed to have been held adversely.

Mowing and maintenance are not unmistakably hostile uses of land and do not support a claim of title by adverse possession.

A new encroachment must meet the statutory period to extend the adverse possession to new land.

The doctrine of acquiescence applies when parties mutually mistake a boundary as a property line.

Fisher v. NDDOT 2024 ND 128
Docket No.: 20240046
Filing Date: 7/5/2024
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: The issuance of a temporary operator's permit is a basic and mandatory requirement of the statute. To issue the temporary operator's permit, a law enforcement officer must complete the Report and Notice containing the temporary operator's permit and officially distribute it, but service of the permit is not required.

State v. Smith (consolidated w/20240005) 2024 ND 127
Docket No.: 20240004
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: This evidence was sufficient to support conviction on six counts of aggravated assault.

Felonious restraint is not a lesser included offense of forcible gross sexual imposition.

Aggravated assault is not a lesser included offense of forcible gross sexual imposition.

State v. Smith (consolidated w/20240004) 2024 ND 127
Docket No.: 20240005
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: This evidence was sufficient to support conviction on six counts of aggravated assault.

Felonious restraint is not a lesser included offense of forcible gross sexual imposition.

Aggravated assault is not a lesser included offense of forcible gross sexual imposition.

Mwinyi v. State 2024 ND 126
Docket No.: 20240003
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: The State must put the applicant on notice by serving and filing a notice of motion with any motion for summary dismissal or summary disposition. The State does not violate the rules of civil procedure by combining its answer to the postconviction application with the brief in support of its motion.

Ordinarily, summary disposition of an ineffective assistance of counsel claim should not be granted without an evidentiary hearing, but if the State moves for summary disposition, pointing out the absence of supporting evidence, then the burden shifts to the applicant to provide competent admissible evidence. If an applicant fails to respond with evidence, this Court will affirm denial of postconviction relief.

There is no constitutional right to an attorney for postconviction proceedings.

Interest of D.M.E. 2024 ND 125
Docket No.: 20240152
Filing Date: 6/20/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Orders for hospitalization and involuntary treatment with medication are summarily
affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Vervalen 2024 ND 124
Docket No.: 20230286
Filing Date: 6/20/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Voluntary intoxication is not a defense to a criminal charge. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged.

Attempted "intentional" murder is a criminal offense, requiring the State to prove the accused had an intent to kill to be convicted of attempted murder. A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.

Kubal v. Anderson 2024 ND 123
Docket No.: 20240007
Filing Date: 6/20/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The Uniform Child Custody Jurisdiction and Enforcement Act, N.D.C.C. ch. 1414.1, governs cases involving interstate custody disputes. Determination of whether North Dakota is a child's home state under the UCCJEA must be analyzed based on when the proceeding in North Dakota was commenced. Jurisdiction may exist under the UCCJEA despite North Dakota not being a child's home state.

The purpose of the UCCJEA is to promote cooperation between courts of different states and to prevent manipulation of the judicial system and undue complication of child custody disputes. Parties are required to provide the district court with information regarding other proceedings, and the district court is required to review that information.

Stephens v. Lee 2024 ND 122
Docket No.: 20230381
Filing Date: 6/20/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When determining a parent's motion to relocation a child out of state, a district court must
first determine if the non-relocating parent consented or if an existing order or decree
permits relocation. If neither was met, the court must determine the merits of the relocation
by applying the Stout-Hawkinson factors.

The district court's findings under the Stout-Hawkinson factors and denying the motion to
relocate is summarily affirmed under N.D.R.App.P. 35(a)(2).

The district court's findings on the statutory best interest factors and granting the motion
to change primary residential responsibility is summarily affirmed under N.D.R.App.P.
35(a)(2).

State v. Sargent (consolidated w/20230353) 2024 ND 121
Docket No.: 20230351
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: When a law enforcement officer observes a traffic violation the officer may initiate a traffic stop for an investigation.

An officer may extend a traffic stop if the officer has reasonable suspicion of criminal activity.

Probable cause for a driven vehicle extends to a towed vehicle.

State v. Sargent (consolidated w/20230351) 2024 ND 121
Docket No.: 20230353
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: When a law enforcement officer observes a traffic violation the officer may initiate a traffic stop for an investigation.

An officer may extend a traffic stop if the officer has reasonable suspicion of criminal activity.

Probable cause for a driven vehicle extends to a towed vehicle.

State v. Goodale 2024 ND 120
Docket No.: 20230373
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: The district court's use of "and" instead of "or," as indicated by statute, was an error
and a misstatement of the law.

Jury instructions that increase the State's burden of proof, requiring them to prove both
subsections (a) and (b) of N.D.C.C. § 12.1-03-01(1), is a harmless error as it is not
prejudicial to the defendant.

A person can be charged with accomplice to extreme indifference murder based on their
conduct surrounding an assault under circumstances manifesting extreme indifference,
which ultimately results in death, even if the victim's death was unintentional and not
contemplated by the accomplice.

An accomplice steps into the shoes of a principal for sentencing. If the principal crime
charged is contemplated under N.D.C.C. § 12.1-32-09.1, an accomplice to the principal
crime can be sentenced under N.D.C.C. § 12.1-32-09.1.

Ward, et al. v. Herbel, et al. 2024 ND 119
Docket No.: 20230140
Filing Date: 6/6/2024
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: The plain language of N.D.C.C. § 32-17-01 requires the existence of an adverse claim. If a person is not claiming an interest in the property and there are no competing adverse claims to adjudicate, there is no basis or statutory standing to sue under chapter 32-17.

This Court adopts the majority rule permitting an attorney representing himself to recover an award of attorney's fees for time and effort spent defending against a frivolous lawsuit.

State v. Massey 2024 ND 118
Docket No.: 20230396
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: When a defendant is charged with gross sexual imposition under N.D.C.C. § 12.1-2003(1)(a) requiring the State prove a defendant touched various parts of the victim's body in a manner constituting a sexual act does not specify a culpability level, the jury is then required to find the actions were willful.

Even if the State makes a "golden rule" argument when the issue has not been preserved for appeal, the defendant still must demonstrate the comments had a prejudicial effect to require reversal under obvious error.

City of Grand Forks v. Riemers 2024 ND 117
Docket No.: 20230366
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Other
Author: Tufte, Jerod E.

Highlight: After a case is transferred to district court, if a criminal information is filed it is by itself sufficient to initiate prosecution, and the district court does not lack jurisdiction if the information is not served on the defendant.

A city may prosecute disorderly conduct under its own ordinance when the ordinance does not supersede a state statute.

A party may not challenge an error in the jury instruction on appeal when the party waived the issue before the district court.

It is not necessary to state in an information the details of the acts which constitute the crime charged when the essential elements of the crime are set forth sufficiently to enable a person of common understanding to know what is meant or intended. One test of the sufficiency of an information is whether it will protect the accused against a subsequent prosecution for the same offense.

A defendant in a criminal jury trial must move for a judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal. This Court may decline to review a forfeited error when the appellant fails to argue the obvious error standard.

Idso v. Idso 2024 ND 116
Docket No.: 20230387
Filing Date: 6/6/2024
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: An order of contempt of court is summarily affirmed under N.D.R.App.P.35.1(a)(2) and(8).

State v. Anderson 2024 ND 115
Docket No.: 20230344
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: During a lawfully-initiated traffic stop, an officer can conduct activities related to traffic enforcement but not absolutely necessary to issuing a traffic ticket. When two officers are on scene and one is performing the mission of the traffic stop and the other is performing an investigation not related to the traffic stop, an unlawful seizure has not occurred, because the second officer's investigation is not delaying the stop.

This Court looks to the totality of the circumstances while applying an objective standard to determine whether reasonable suspicion exists to justify prolonging a traffic stop. Reasonable suspicion is not easily reduced to a methodical set of legal rules, but it does require more than a mere hunch.

State v. Jelinek 2024 ND 114
Docket No.: 20230367
Filing Date: 6/6/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A law enforcement officer's approach to a parked vehicle is not a seizure if the officer
inquires of the occupant conversationally, does not order the person to do something,
and does not demand a response.

A defendant's confession was sufficiently corroborated to permit corpus delicti to be
shown through confession.

When a charge that requires prior conviction is dismissed, submission of prior
convictions to a jury constitutes reversible error unless otherwise relevant to some
disputed issue and allowed under Rule 404(b), N.D.R.Ev.

Roth, et al. v. Meyer, et al. 2024 ND 113
Docket No.: 20230310
Filing Date: 7/3/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A claim of adverse possession must meet every element. For the continuous element, a party must hold the property for 20 years.

Summaries under N.D.R.Ev. 1006 require that supporting documents be admissible but need not be admitted. A summary usually is inadmissible if the supporting documents are inadmissible.

The court must find when conversion began to determine what property, if any, has been converted.

When calculating conversion damages, the court must follow N.D.C.C. § 32-0323. The damages must be based on the wronged party's damages and on market values if a market for the converted property exists.

The material terms of loans in aggregate greater than $25,000 must be in writing.

Roth, et al. v. Meyer, et al. 2024 ND 113
Docket No.: 20230310
Filing Date: 6/6/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A claim of adverse possession must meet every element. For the continuous element, a party must hold the property for 20 years.

Summaries under N.D.R.Ev. 1006 require that supporting documents be admissible but need not be admitted. A summary usually is inadmissible if the supporting documents are inadmissible.

The court must find when conversion began to determine what property, if any, has been converted.

When calculating conversion damages, the court must follow N.D.C.C. § 32-0323. The damages must be based on the wronged party's damages and on market values if a market for the converted property exists.

The material terms of loans in aggregate greater than $25,000 must be in writing.

Kath v. Prochnow, et al. 2024 ND 112
Docket No.: 20230406
Filing Date: 6/6/2024
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Where the proper remedy is an appeal, the North Dakota Supreme Court generally
will not exercise its supervisory authority.

A petition to intervene initiates a special proceeding where the relief sought is
permission to intervene in an action. District courts have the power to hear and determine
all civil actions and proceedings. Post-judgment intervention may be allowed when an
attempted intervener moves promptly after learning of the entry of judgment within the
time for appeal.

Issues not decided by the district court are generally not ripe for resolution on
appeal. The purpose of an appeal is to review the actions of the district court. Resolution
of issues by the district court before appellate review contributes valuable input to the
process and develops the record for effective review of the decision

Mohammed v. State 2024 ND 111
Docket No.: 20230399
Filing Date: 5/30/2024
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. 3501(a)(2).

Ineffective assistance of counsel claims asserting a language barrier are findings of fact that will not be disturbed unless clearly erroneous.

State v. Studhorse 2024 ND 110
Docket No.: 20230247
Filing Date: 5/30/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A district court's discussion, impressing upon a witness that she had a duty to tell the truth, is not obvious error under N.D.R.Ev. 603.
A comment on the defendant's post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution. But, the error is harmless if the State proves beyond a reasonable doubt that the comments did not contribute to the verdict and the error was harmless.
A non-cognizable offense is created by a logical inconsistency, not a lack of specificity in jury instructions.
A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.
Proof beyond a reasonable doubt of a "sexual act" as defined by statute is not satisfied by inference based on one interpretation of a vague term. The count requires a showing of contact between the victim's vulva, not just the victim's "body," and the defendant's mouth. A conviction based on insufficient evidence implicates constitutional due process and clearly affects substantial rights and the fairness, reputation, and integrity of the court system. An obvious error occurs when a defendant is convicted on insufficient evidence.
Under sufficiency of the evidence review, the uncorroborated testimony of a child may be sufficient to sustain a gross sexual imposition conviction.
When the defendant is charged with multiple counts of the same offense, the State has the burden to prove the defendant committed each offense. Each element requires proof of a different fact or element to distinguish the act as a separate punishable act. If a defendant is convicted of multiple counts on the same facts, then the second conviction, even if it results in no greater sentence, is an impermissible punishment. An obvious error occurs when a defendant is convicted of the same crime in two counts.

SCS Carbon Transport v. Malloy, et al. (consol. w/ 20230162-20230176) 2024 ND 109
Docket No.: 20230149
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Erickson (consol w/ 20230149, 20230163-20230176) 2024 ND 109
Docket No.: 20230162
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Hoge (consol w/ 20230149, 20230162, 20230164-20230176) 2024 ND 109
Docket No.: 20230163
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Twardowski (cons. w/20230149, 162, 163 & 165-176) 2024 ND 109
Docket No.: 20230164
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. BRH (cons. w/20230149, 162-164 & 166-176) 2024 ND 109
Docket No.: 20230165
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. 8N2E Properties (cons. w/20230149, 162-165 & 167-176) 2024 ND 109
Docket No.: 20230166
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Kuetemeyer (cons. w/20230149, 162-166 & 168-176) 2024 ND 109
Docket No.: 20230167
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Hoge Farm (cons. w/20230149, 162-167 & 169-176) 2024 ND 109
Docket No.: 20230168
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Hoge (cons. w/20230149, 162-168 & 170-176) 2024 ND 109
Docket No.: 20230169
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Carrels (cons. w/20230149, 162-169 & 171-176) 2024 ND 109
Docket No.: 20230170
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Staroba, et al. (cons. w/20230149, 162-170 & 172-176) 2024 ND 109
Docket No.: 20230171
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.