Opinions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wald v. Wald 2020 ND 174
Docket No.: 20190159
Filing Date: 7/30/2020
Case Type: Appeal - Civil - Divorce - Property
Author: Tufte, Jerod E.

Highlight: A real property owner may testify about the value of the land without any further qualification or special knowledge.

A district court has broad equitable powers to redistribute property and debts in a postjudgment proceeding if a party fails to comply with an order or judgment.

State v. Greenshields 2020 ND 173
Docket No.: 20190393
Filing Date: 7/27/2020
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: A district court’s dismissal of a criminal complaint with prejudice is reviewed on appeal for an abuse of discretion.

A party may not collaterally attack a final decision that was not appealed in a subsequent proceeding.

Fredericks, et al. v. Vogel Law Firm, et al. 2020 ND 171
Docket No.: 20190272
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Res judicata prevents relitigation of claims that were raised, or could have been raised, in earlier actions between the same parties or their privies.

A party with a single cause of action generally may not split that cause of action and maintain several lawsuits for different parts of the action.

City of Fargo v. Wieland 2020 ND 170
Docket No.: 20200100
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: A district court’s order denying a request for post-judgment interest is affirmed.

Neither N.D.C.C. §§ 32-15-29 nor 32-15-30 provide for post-judgment interest on an award in an eminent domain proceedings subsequent to the political subdivision’s deposit of the full amount of the judgment in court.

Interest of K.V. (CONFIDENTIAL) 2020 ND 169
Docket No.: 20190275
Filing Date: 7/22/2020
Case Type: Appeal - Criminal - Juvenile Law
Author: McEvers, Lisa K. Fair

Highlight: This Court defers to a juvenile court’s assessment of credibility, but if the court does not make specific findings, this Court is left to speculate as to the law and facts the court relied on in denying a motion.

Beam v. WSI, et. al. 2020 ND 168
Docket No.: 20200067
Filing Date: 7/22/2020
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A party appealing a hearing officer’s decision must file “reasonably specific” specifications of error detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed.

A rehabilitation plan is appropriate if it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.

An ALJ’s decision was supported by evidence from which a reasoning mind could have reasonably concluded WSI’s rehabilitation plan would return Beam to substantial gainful employment in light of his injuries.

Schroeder, et al. v. State 2020 ND 167
Docket No.: 20190374
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Highlight: The State is immune from liability for claims relating to an injury directly or indirectly caused by the performance of a public duty, including the State’s duty to maintain the interstate and keep it in good and safe condition for general public use.

The State is immune from liability for claims resulting from a snow or ice condition on a highway except when the snow or ice condition was affirmatively caused by a state employee’s negligent act.

State v. Arends 2020 ND 166
Docket No.: 20190373
Filing Date: 7/22/2020
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court order revoking probation and second criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Varty v. Varty 2020 ND 165
Docket No.: 20190391
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: The district court abuses its discretion when it misinterprets or misapplies the law.

A finding of unconscionability under Rule 60(b)(6) of the North Dakota Rules of Civil Procedure requires balancing procedural and substantive findings, and must analyze whether the judgment as a whole was so one-sided and created hardship that relief was required

A.R. Audit Services Inc. v. Young 2020 ND 164
Docket No.: 20200064
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: District court order denying motion for relief under N.D.R.Civ.P. 60(b)(1) is summarily affirm under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Lindquist 2020 ND 163
Docket No.: 20200022
Filing Date: 7/22/2020
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A criminal judgment and an order denying a motion to suppress are affirmed under N.D.R.App.P. 35.1(a)(2),(7).

Interest of Skorick 2020 ND 162
Docket No.: 20190349
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: At a civil commitment hearing, the testimony and reports of an expert who conducted an examination are admissible.

A harmless error is one that does not affect a party’s substantial rights.

McCormick, et al. v. Fredericks 2020 ND 161
Docket No.: 20190254
Filing Date: 7/22/2020
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Jury instructions should fairly inform the jury of the law applicable to the case and fairly cover the claims made by both sides of the case. Jury instructions are reviewed as a whole, and are sufficient if they correctly advise the jury of the law.

A district court’s decision on whether to disqualify a law firm or a lawyer is reviewed for an abuse of discretion.

A court may order judicial supervision of the winding up of a dissolved limited liability company on a member’s application and showing of good cause.

State v. Scott 2020 ND 160
Docket No.: 20190317
Filing Date: 7/22/2020
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: There is no requirement for the district court to advise defendants they may plead not guilty based on the defense of double jeopardy.

The defense of double jeopardy is not presentable to the jury unless there is a question of fact.

Rule 803(24), N.D.R.Ev., which provides an exception to certain hearsay statements made by a child about sexual abuse, does not apply to non-hearsay testimony.