Opinions

Wootan v. State 2023 ND 151
Docket No.: 20230036
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: Once the State moves for summary judgment on a post-conviction application, the defendant must provide evidentiary support for their application in response to the State’s motion.

Summary judgment on a post-conviction application is proper when the defendant fails to provide evidentiary support to show a genuine issue of material fact.

Black Elk v. State 2023 ND 150
Docket No.: 20230035
Filing Date: 8/17/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A part must preserve an issue in district court before it can be reviewed on appeal. A party must preserve a claim of error, as it relates to the admissibility of evidence, by objecting or moving to strike the evidence on record and stating a specific ground for exclusion.

This Court will exercise discretion rarely to consider issues not preserved in post-conviction proceedings, and will do so only if the error is plain and seriously affects the fairness, integrity, or public reputation of judicial proceedings.

A statement is not hearsay when it is offered simply to prove the statement was made. A petitioner at a post-conviction hearing is permitted to testify about the advice given to them by counsel as long as the testimony is submitted to simply show the advice was verbalized.

Advising a defendant that the defendant can deal with a material piece of evidence after a defendant has pled guilty and been sentenced by simply retracting or withdrawing the plea falls below an objectively reasonable standard of a defense attorney.

Goff v. NDDOT 2023 ND 149
Docket No.: 20230115
Filing Date: 8/2/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Substantially justified means justified to a degree that could satisfy a reasonable person.

Interest of D.M.H. (CONFIDENTIAL) 2023 ND 148
Docket No.: 20230028
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: Absent a change in circumstances, the juvenile court does not err in adopting a prior visitation schedule as the current visitation schedule.

Hennessey v. Milnor School District 2023 ND 147
Docket No.: 20230056
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Bahr, Douglas Alan

Highlight: In an appeal from a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the complaint is construed in the light most favorable to the plaintiff and well-pleaded allegations are accepted as true.

Undue influence is improper influence exercised in such a way and to such an extent as to destroy a person’s free agency or voluntary action by substituting for the person’s will the will of another.

In nontestamentary cases, undue influence requires three factors be established: (1) A person who can be influenced; (2) The fact of improper influence exerted; and (3) Submission to the overmastering effect of such unlawful conduct.

The law does not condemn all influence, only undue influence.

State, et al. v. Vetter 2023 ND 146
Docket No.: 20230031
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Rule 60(a), N.D.R.Civ.P., was designed to allow district courts to correct errors created by oversight or omission. Rule 60(a) does not authorize the court to change what has been deliberately done.

Gonzalez v. Perales 2023 ND 145
Docket No.: 20230026
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: To be appealable under N.D.C.C. § 28-27-02(1), an order must determine the action and prevent a judgment from which an appeal might be taken.

An order is not appealable under § 28-27-02(5) unless, in effect, it finally determines some substantive legal right of appellant or is dispositive of a substantive issue.

Final order under section 14-14.1-34, N.D.C.C. [UCCJEA §314 (1997)], means an order that finally determines some substantive legal right of a party or is dispositive of a substantive issue.

State v. Larsen (consolidated w/20220375 & 20220376) 2023 ND 144
Docket No.: 20220374
Filing Date: 8/2/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively. Therefore, upon revocation of a conviction and sentence entered prior to August 1, 2021, a district court’s ability to resentence a defendant is limited to the previously imposed, but suspended, sentence.

State v. Larsen (consolidated w/20220375 & 20220376) 2023 ND 144
Docket No.: 20220374
Filing Date: 8/2/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

DOCR v. Louser, et al. 2023 ND 143
Docket No.: 20230117
Filing Date: 8/2/2023
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Jensen, Jon J.

Highlight: The Department of Corrections and Rehabilitation has broad authority under N.D.C.C. § 54-23.3-01 to supervise offenders and probationers when directed by the district court.

This Court exercises its supervisory jurisdiction rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.