Opinions

Lindeman v. State 2024 ND 228
Docket No.: 20240058
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: To succeed on a claim of ineffective assistance of counsel, the petitioner must first prove his counsel's performance was defective. Second, the petitioner must show his defense was prejudiced by the proven defects. Both must be established in order to prevail under a claim of ineffective assistance of counsel. Thus, if there is an insufficient showing on one, the reviewing court need not address the other.

McKenzie Electric Coop., Inc. v. El-Dweek, et al. 2024 ND 227
Docket No.: 20240275
Filing Date: 12/19/2024
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Tufte, Jerod E.

Highlight: A petition for supervisory writ directing the district court to vacate its order of recusal, deny the motion for recusal, and reassign the action back to Judge ElDweek is denied.

Cass Co. v. KNB Properties, et al. 2024 ND 226
Docket No.: 20240126
Filing Date: 12/19/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court's grant of summary judgment for plaintiff is affirmed.

A district court's grant of permanent injunction for plaintiff is reversed.

Zoning and subdivision ordinances serve distinct but complementary regulatory purposes. A township has exclusive zoning authority over private property within the township under N.D.C.C. § 58-03-11, and the location of buildings and attendant improvements is a zoning matter. A county may, however, as a valid exercise of its subdivision authority under N.D.C.C. § 1133.2-02, condition its approval of a subdivision on compliance with the county's subdivision ordinance, even when provisions of the ordinance govern the location of buildings and attendant improvements.

By operating as a condition on a county's approval of the act of subdivision, a subdivision ordinance's setback provisions do not function as a direct zoning regulation in conflict with a township's exclusive zoning authority.

A county's subdivision authority begins when an action is taken to divide a parcel into two or more parts.

When a party subdivides property in violation of a subdivision ordinance, the proper remedy is to vacate the subdivision by voiding the acts that triggered applicability of the subdivision ordinance and were dependent on the county's approval.

Olson v. Olson 2024 ND 224
Docket No.: 20240103
Filing Date: 12/5/2024
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

Highlight: A party had access to an attorney under N.D.C.C. § 14-03.2-08 when the party was made aware of the need for a premarital agreement long before the wedding.

A party received adequate financial disclosure under N.D.C.C. § 14-03.208 when the party observed the other party's day-to-day involvement connected to the other party's assets and had the opportunity to review balance sheets.

A party's consent is voluntary and not the result of duress when the party has the knowledge and experience to understand the contents of a premarital agreement and had been aware of the need for an agreement.

A party arguing a premarital agreement is substantively unconscionable must argue a term of the agreement is substantively unconscionable.

This Court reviews a district court's decision to allow an undisclosed witness to testify under an abuse of discretion standard.

Although the sequestration rule applies to rebuttal witnesses, a district court has discretion to allow a rebuttal witness to testify when the testimony is not negatively influenced by or inappropriately tailored to prior testimony.

Lowe v. WSI 2024 ND 223
Docket No.: 20240189
Filing Date: 12/5/2024
Case Type: Appeal - Administrative - Workers Compensation
Author: Tufte, Jerod E.

Highlight: Workforce Safety and Insurance did not abuse its discretion by denying a request for approval of daily opioid medication in excess of 90 Morphine Milligram Equivalents. The district court judgment affirming WSI's managed care binding dispute resolution decision is affirmed.

State v. Johnson 2024 ND 222
Docket No.: 20240156
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Under N.D.R.App.P. 28 a party is required to include legal authorities on which the party relies. During oral argument a party may not raise new claims or rely on legal authorities not contained in their brief.

A district court's substantial compliance with N.D.R.Crim.P. 11 is determined on the record as a whole.

An ineffective assistance of counsel claim generally should be brought in a postconviction relief proceeding.

Poseley v. Homer Township 2024 ND 221
Docket No.: 20240154
Filing Date: 12/5/2024
Case Type: Appeal - Administrative - Zoning
Author: Per Curiam

Highlight: An order dismissing an appeal from a local governing body's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Graff 2024 ND 220
Docket No.: 20230409
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: An order dismissing the matter without prejudice following a finding of prosecutorial misconduct is affirmed.

Although the district court has some supervisory control over dismissals, the court should not dismiss a case with prejudice unless the court has had an opportunity to determine issues of bad faith, harassment, or misconduct, and this finding must be supported by clear and convincing evidence.

Generally, dismissal with prejudice is a remedy that should only be used in extreme circumstances.

State v. Thesing 2024 ND 219
Docket No.: 20240093
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: Section 12.1-31.2-02, N.D.C.C., permits an individual to be charged for violating a pre-dispositional order when the alleged violation occurs while the individual is in custody.

A pre-dispositional order issued under N.D.C.C. § 12.1-31.2-02(1) differs from a condition of release issued under N.D.R.Crim.P. 46(a)(2)(E).

An argument not adequately articulated, supported, and briefed will not be considered by this Court.

State v. Grensteiner 2024 ND 218
Docket No.: 20240100
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

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

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. To prove constructive possession the State must present evidence which establishes that the accused had the power and capability to exercise dominion and control over the contraband.

When there is a claim of prosecutorial misconduct, the Court determines whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. Comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof. The Court presumes that the jury followed the district court's instructions.

State v. Grensteiner 2024 ND 218
Docket No.: 20240101
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

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

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. To prove constructive possession the State must present evidence which establishes that the accused had the power and capability to exercise dominion and control over the contraband.

When there is a claim of prosecutorial misconduct, the Court determines whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. Comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof. The Court presumes that the jury followed the district court's instructions.

State v. Gothberg 2024 ND 217
Docket No.: 20240138
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Ordinarily in cases involving consent to enter a home, entry is preceded by an exchange between a police officer and an occupant in which the officer makes an inquiry and in response the occupant verbally or physically reacts in a manner that may be interpreted as consent. Absent verbal consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police.

The existence of consent is a question of fact to be determined from the totality of the circumstances. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include.

Whether consent was voluntarily given considers examination of the totality of the circumstances at the time it was given.

Factors that may be considered in determining the totality of the circumstances are the characteristics and condition of the accused at the time of consent and the details of the setting in which consent was obtained, though no one factor is determinative.

Judicial Conduct Commission v. Hagen 2024 ND 216
Docket No.: 20240282
Filing Date: 11/21/2024
Case Type: Discipline - Judge - Other
Author: Per Curiam

Highlight: Judge Admonished

Chase v. State 2024 ND 215
Docket No.: 20240024
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A district court order denying an amended application for postconviction relief is affirmed.

The affirmative defenses of res judicata and the statute of limitations are waived by the State when not raised in its answer to an application for postconviction relief.

To trigger the presumption of prejudice arising from improper jury contact, an applicant must first establish that the improper contact actually occurred.

Sanchez v. State 2024 ND 214
Docket No.: 20240173
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court judgment denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

RMM Properties v. City of Minot 2024 ND 213
Docket No.: 20240130
Filing Date: 11/21/2024
Case Type: Appeal - Administrative - Zoning
Author: Bahr, Douglas Alan

Highlight: A court's review is very limited in an appeal from a local governing body's decision. The supreme court's function is to independently determine the propriety of the local governing body's decision, without any special deference to the district court's decision.

The decision of a local governing body must be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not substantial evidence supporting the decision.

Chapters 40-39 and 40-50.1, N.D.C.C., are intended to accomplish different tasks, and each provides its own method to protect public rights in streets, alleys, and public grounds. Section 40-39-05, N.D.C.C., applies when a petition seeks only to vacate "public grounds, streets, alleys, or parts thereof." Section 40-50.1-16, N.D.C.C., applies when all owners of lots in a plat seek to vacate the plat or part of the plat containing "public rights in the streets, alleys, easements, and public grounds."

Northstar Center v. Lukenbill Family Partnership, et al. 2024 ND 212
Docket No.: 20240034
Filing Date: 1/24/2025
Case Type: Appeal - Civil - Contracts
Author: Bahr, Douglas Alan

Northstar Center v. Lukenbill Family Partnership, et al. 2024 ND 212
Docket No.: 20240034
Filing Date: 2/14/2024
Case Type: Appeal - Civil - Contracts
Author: Bahr, Douglas Alan

Highlight: Summary judgment should not constitute mini-trials of factual issues and is not appropriate when the court must draw inferences or make findings on disputed facts.

The elements of a prima facie case for breach of contract are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the breach. A breach of contract is the nonperformance of a contractual duty when it is due. While construction of a written contract to determine its legal effect presents a question of law, whether a party has breached a contract is a finding of fact.

An interference with contract claim contemplates a tortfeasor who either prevented a third party from entering into a contract or induced the third party to breach the contract with the plaintiff. To establish a prima facie case 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.

To prevail on an intentional interference with contract claim, the plaintiff must show the defendant acted intentionally, and the intent required goes beyond the traditional tort concept of intent. The plaintiff must show the defendant specifically intended to interfere with the plaintiff's contractual rights, or acted with knowledge that the interference would result. A party's intent generally presents a question of fact.

An indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties or of some other person. Indemnification is a remedy which allows a party to recover reimbursement from another for the discharge of a liability which, as between them, should have been discharged by the other.

State v. Villazana 2024 ND 211
Docket No.: 20230307
Filing Date: 11/21/2024
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: Under N.D.R.Ev. 404(b), district courts are to apply a three-step analysis to determine whether the evidence of other crimes, wrongs, or acts is admissible: 1) the court must look to the purpose for which the evidence is introduced; 2) the evidence of the prior act or acts must be substantially reliable or clear and convincing; and 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts.

Under N.D.R.Crim.P. 52, any error, defect, irregularity or variance that does not affect substantial rights must be disregarded. When reviewing a nonconstitutional trial error, the objective is to determine whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without the error.

Under N.D.R.Ev. 103(a)(1)(B), an objection to the introduction of evidence must state the specific ground of the objection unless it was apparent from the context.

Only issues that have been thoroughly briefed and argued are considered on appeal.

The standard of review for reconciling a jury verdict is whether the verdict is legally inconsistent. Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. Reconciliation of a verdict includes an examination of both the law and the case in order to determine whether the verdict is logical and probable, and therefore consistent, or illogical and clearly contrary to the evidence.

Even if a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is no legal inconsistency if there is substantial evidence to support the charge on which he is convicted. 1Jury instructions agreed to by a defendant become the law of the case.

State v. Ford 2024 ND 210
Docket No.: 20240074
Filing Date: 11/21/2024
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance of counsel, the defendant may pursue the ineffectiveness claim at a postconviction proceeding where an adequate record can be made.

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Bott v. Bott 2024 ND 209
Docket No.: 20240070
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: A district court does not have continuing jurisdiction over a final property distribution.

Nevertheless, a final property division in a divorce may be modified in the same manner and on the same grounds as other judgments including a motion pursuant to N.D.R.Civ.P. 60.

Extraordinary circumstances are required for N.D.R.Civ.P. 60(b)(6) to be invoked.

If the judgment sought to be set aside was entered based on a stipulation of the parties, the party challenging the judgment has the additional burden of showing under the law of contracts there is justification for setting aside the stipulation.

On appeal, only considered is a determination of whether the district court abused its discretion in ruling that sufficient grounds for disturbing the finality of a judgment were not established, not whether the court was substantively correct in entering the judgment from which relief was sought.

Nelson, et al. v. Lindvig, et al. 2024 ND 208
Docket No.: 20230257
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A person must have a reasonable claim to an interest or estate in real property to maintain a quiet title action.

A person without an interest or estate in real property cannot simultaneously voluntarily join a quiet title action and seek attorney's fees by claiming the action is frivolous.

An award of attorney's fees is reviewed under the abuse of discretion standard.

Nelson, et al. v. Persons Unknown, et al. 2024 ND 208
Docket No.: 20240106
Filing Date: 11/21/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A person must have a reasonable claim to an interest or estate in real property to maintain a quiet title action.

A person without an interest or estate in real property cannot simultaneously voluntarily join a quiet title action and seek attorney's fees by claiming the action is frivolous.

An award of attorney's fees is reviewed under the abuse of discretion standard.

Disciplinary Board v. Spencer (Interim Suspension) 2024 ND 207
Docket No.: 20240307
Filing Date: 11/12/2024
Case Type: Discipline - Attorney - Suspension
Author: Per Curiam

Highlight: Attorney Interim Suspended

Olson v. Olson, et al. 2024 ND 206
Docket No.: 20240067
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A district court must have sufficient evidence to support a finding of great prejudice prior to ordering a partition by sale.

The party seeking partition by sale must prove great prejudice with authenticated evidence that a physical partition would result in serious pecuniary injury.

Mbulu v. State 2024 ND 205
Docket No.: 20240036
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (7), and (8).

State v. Callahan 2024 ND 204
Docket No.: 20240145
Filing Date: 11/8/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
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).

State v. Cruz 2024 ND 203
Docket No.: 20240099
Filing Date: 11/8/2024
Case Type: Appeal - Criminal - Assault
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).

Sanderson v. Myrdal, et al. 2024 ND 202
Docket No.: 20240091
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court's grant of summary judgment for defendant is affirmed.

A plaintiff may not challenge the court's jurisdiction over a defendant who admitted personal jurisdiction on the basis of defects in the plaintiff's service of process on the defendant.

Generally, a plaintiff may not obtain a default judgment after being served with defendant's answer.

Under Lindke v. Freed, 601 U.S. 187 (2024), a state official's social-media activity constitutes state action under 42 U.S.C. § 1983 only if the official (1) possessed actual authority to speak on the state's behalf, and (2) purported to exercise that authority when he spoke on social media.

A 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, but the district court must award costs and attorney's fees if it finds the claim is frivolous.

Fargo Education Association v. Fargo Public School District 2024 ND 201
Docket No.: 20240151
Filing Date: 11/8/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: School psychologists not "employed primarily as a classroom teacher" are not "teachers" as defined in N.D.C.C. § 15.1-16-01(5).

Hilton v. North Dakota Edu. Ass'n, 2002 ND 209, 655 N.W.2d 60, is overruled to the extent it holds a licensed school district employee who is not an administrator is a teacher irrespective of the employee's assigned teaching duties.

A special education teacher is not a "teacher" within N.D.C.C. ch. 15.1-16 when the teacher is not a school employee. This Court does not hold whether a school district may provide teaching services through independent contractors.

Interest of J.S. 2024 ND 200
Docket No.: 20240257
Filing Date: 10/24/2024
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 N.S. 2024 ND 200
Docket No.: 20240258
Filing Date: 10/24/2024
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 B.S. 2024 ND 200
Docket No.: 20240259
Filing Date: 10/24/2024
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).

Malloy, et al. v. Behrens 2024 ND 199
Docket No.: 20240071
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. § 28-21-06(1), when a sheriff receives an execution, the sheriff must satisfy the judgment out of the personal property of the judgment debtor, and if sufficient personal property cannot be found, out of the real property belonging to the debtor.

Applying a statute retroactively results in the attachment of new legal consequences to past matters. Applying a statute prospectively results in the attachment of legal consequences to matters occurring after its effective date. The court must ask whether the new provision attaches new legal consequences to events completed before its enactment.

A debtor is allowed to claim as exempt up to $150,000 of equity in the homestead under N.D.C.C. ch. 47-18. This is accomplished by requiring bids to be more than $150,000 plus the value of liens and encumbrances. See N.D.C.C. §§ 47-18-01 and 47-18-13.

Superior liens are not extinguished by an execution sale. A purchaser of land subject to a mortgage is presumed to have deducted the amount of the senior liens from the amount he bids for the land. A purchaser taking subject to a prior lien is not entitled to an offset for the lien amount.

Kirchmeier v. Monson, et al. 2024 ND 198
Docket No.: 20240075
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Rule 25 of the North Dakota Rules of Civil Procedure governs substitution when a party dies during district court proceedings. Rule 25 provides a number of requirements that must occur before substitution of a party can be ordered and a case continued.

A conservator's authority terminates when the protected person dies.

State v. White Bird 2024 ND 197
Docket No.: 20240132
Filing Date: 10/24/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Edison v. Edison 2024 ND 196
Docket No.: 20240119
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Divorce
Author: Tufte, Jerod E.

Highlight: An amended divorce judgment is affirmed.

Adverse rulings alone are not evidence of judicial bias or partiality.

A district court misapplies N.D. Admin. Code § 75-02-04.1-05 when it fails to make a finding on whether two self-employment activities are related.

The plain language of N.D. Admin. Code § 75-02-04.1-05(6) and (7) does not preclude using a loss to reduce income that is related to the self-employment activity that produced the loss. On the other hand, if two self-employment activities are unrelated, then under N.D. Admin. Code § 75-02-04.1-05(6), a loss resulting from the unrelated self-employment activity could be applied to reduce income from the other self-employment activity only if the monthly gross income, reduced by one-twelfth of the self-employment loss, equals or exceeds the greatest of subsections (a), (b) or (c). If the district court erred in its application of the child support guidelines, then we must examine whether the error was harmless. An error is harmless if it does not affect the outcome of the case or a party's substantial rights. See N.D.R.Civ.P. 61.

Tracy v. Tracy 2024 ND 195
Docket No.: 20240092
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A domestic violence protection order is affirmed.

A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. This Court gives great deference to a factfinder's opportunity to observe the witnesses and determine credibility. We will not reverse simply because we may have viewed the evidence differently.

Interest of D.K.A. 2024 ND 194
Docket No.: 20240248
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Mental Health
Author: McEvers, Lisa K. Fair

Highlight: An appeal is moot when a determination is sought which, when rendered, cannot have any practical legal effect upon a then-existing controversy. An appeal is not moot if the district court's decision continues to have collateral consequences for the appealing party. If an individual is already subject to firearms restrictions, the court's finding that federal firearms restrictions apply is not a lasting collateral consequence of the order being challenged on appeal.

Santora v. Santora, et al. 2024 ND 193
Docket No.: 20240014
Filing Date: 10/24/2024
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), (7), and (8).

Interest of A.J.E. 2024 ND 192
Docket No.: 20240245
Filing Date: 10/24/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

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.