Opinions

Estate of Heath 2024 ND 23
Docket No.: 20230250
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A prerequisite to obtaining an order establishing the authority of a domiciliary foreign personal representative is proof of the authority to act as the personal representative in the foreign jurisdiction, meaning an active appointment in the foreign jurisdiction.

Chapter 30.1-24, N.D.C.C., gives a district court the authority to consider petitions to initiate foreign probate proceedings. The issuance of an order without satisfaction of all of the statutory prerequisites does not divest subject matter jurisdiction. It is instead an error in the application of the law, which may furnish grounds for appeal, but it does not invalidate the judgment under N.D.R.Civ.P. 60(b)(4).

To grant a motion under N.D.R.Civ.P. 60(b)(6), the district court must make a finding that the motion was brought within a reasonable time; otherwise, the motion must be denied.

A trustee with an interest in a disputed mineral interest that it contends is intended to benefit the trust has sufficient interest in the probate proceedings disposing of those interests, to possess standing.

The district court may only take judicial notice of a fact that is not subject to reasonable dispute because it is either generally known within the court’s territorial jurisdiction or it is a fact that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Estate of Heath 2024 ND 23
Docket No.: 20230250
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al. 2024 ND 22
Docket No.: 20230240
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: For a district court to acquire subject matter jurisdiction over an appeal from an administrative agency decision, the appellant must satisfy the statutory requirements for perfecting an appeal. By statute, a person aggrieved by the Department of Water Resources’ action or decision must request a hearing within 30 days and prior to appealing. An information-gathering public meeting is not an adjudicative proceeding hearing.

Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al. 2024 ND 22
Docket No.: 20230240
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Mahad v. WSI, et al. 2024 ND 21
Docket No.: 20230332
Filing Date: 2/8/2024
Case Type: Appeal - Administrative - Workers Compensation
Author: Bahr, Douglas Alan

Highlight: The time to appeal a final administrative order begins when notice of the final order is mailed.

The time to appeal a final administrative order is not extended because the order is mailed.

Lyons v. State 2024 ND 19
Docket No.: 20230151
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: The requirements of the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, must be satisfied before an applicant can obtain relief under the Act.

When an applicant for postconviction relief is put to his proof, he must present competent admissible evidence by affidavit or other comparable means to obtain an evidentiary hearing. Unsupported conclusory allegations are insufficient.

State v. Good Bear 2024 ND 18
Docket No.: 20230193
Filing Date: 2/8/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: In determining if an out-of-court statement is admissible, the district court must first determine if the statement qualifies as hearsay under the rules of evidence. If not hearsay, then the statement is admissible; if it is hearsay, the court must then determine if it qualifies as an exception to the hearsay rule as outlined in the N.D.R.Ev. 803 and N.D.R.Ev. 804.

The excited utterance exception outlined in N.D.R.Ev. 803(2) is permitted regardless of the declarant’s availability to testify as a witness.

The amount of time that is permissible to lapse between the event and the statement, to allow the statement to qualify under the excited utterance exception, is more likely to be on the high end of the range permitted when the statement is made by a child, as a young child will likely remain excited longer than adults.

Even when a hearsay statement falls within an exception to the rule, it may not be admitted if the statement is testimonial in violation of the Sixth Amendment.

Landis v. State 2024 ND 17
Docket No.: 20230224
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: This Court only decides those issues which are thoroughly briefed and argued, and a party waives an issue by not providing adequate supporting argument.

Summary dismissal of an application for postconviction relief is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

LAWC Holdings v. Vincent Watford 2024 ND 16
Docket No.: 20230087
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Whether a party has breached a contract is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.

Generally, the prevailing party to a suit, for the purpose of determining who is entitled to costs, is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue, in other words, the prevailing party is the one in whose favor the decision or verdict is rendered and the judgment entered.

A successful litigant is not entitled to attorney’s fees unless they are expressly authorized by statute or by agreement of the parties.

Under N.D.C.C. § 32-03-09, no damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin.

An award of costs under N.D.C.C. § 28-26-10 is discretionary, and a district court’s decision on an award of disbursements under N.D.C.C. § 28-26-06 will be overturned on appeal only if an abuse of discretion is shown.

This Court and the district courts possess concurrent jurisdiction to award attorney’s fees on appeal; however, a preference exists that the initial determination be made by the district court.

Pinks, et al. v. Kelsch, et al. 2024 ND 15
Docket No.: 20230161
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: A two-pronged test is used when determining whether an interlocutory order is appealable. First, the order appealed from must meet one of the statutory criteria of appealability set forth in N.D.C.C. § 28-27-02. If it does, then Rule 54(b) under the North Dakota Rules of Civil Procedure must be complied with. An appeal will not be considered in a multi-claim or multi-party case which disposes of fewer than all claims against all parties unless the district court has first independently assessed the case and determined that a Rule 54(b) certification is appropriate.