Opinions

Killoran, et al. v. Kaler 2025 ND 64
Docket No.: 20240290
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Bahr, Douglas Alan

Highlight: When a motion to dismiss is based on different grounds than the ground the district court relied on to dismiss a claim, the court is required to give the parties notice of its intent to dismiss on new grounds and provide an opportunity to respond.

A district court errs by misapplying the requirements of N.D.R.Civ.P. 8(a) and the standards for determining a motion to dismiss under N.D.R.Civ.P. 12(b)(6) when it demands more than "a short and plain statement of the claim," demands factual evidence to support the allegations, does not accept the allegations in the complaint as true, and does not construe the complaint in the light most favorable to the plaintiff.

A complaint does not need to allege facts in anticipation of an affirmative defense.

In a claim for intentional infliction of emotional distress, a district court must make the initial decision of whether the alleged conduct can reasonably be considered "extreme and outrageous." A court does not focus exclusively on the conduct and words, but considers the facts and circumstances on a case-by-case basis.

State v. Helland 2025 ND 63
Docket No.: 20240224
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: A district court has inherent power to take judicial notice in a preliminary proceeding where the rules of evidence do not apply, provided certain standards are met.

The requirement in N.D.C.C. § 62.1-02-01(1)(b) that the predicate misdemeanor offense be "committed while using or possessing a firearm" does not require the use or possession of a firearm be an element of the predicate offense. Moreover, the requirement in section 62.1-02-01(1)(b) that the predicate misdemeanor offense be "committed while using or possessing a firearm" does not require the use or possession of the firearm in committing the predicate offense be proven or admitted to in the predicate criminal action.

0n a prosecution under N.D.C.C. § 62.1-02-01(1)(b), the State has the burden to prove the defendant used or possessed a firearm when the defendant committed the predicate offense.

Under N.D.C.C. § 62.1-02-01(2)(b), a "conviction" includes a deferred imposition of sentence. A deferred imposition of sentence no longer exists when the court sets aside the verdict of guilty and dismisses the information. Section 62.1-02-01(2)(b) refers to a conviction for a deferred imposition of sentence that has not been dismissed.

Hoff v. City of Burlington 2025 ND 62
Docket No.: 20240081
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: The district court did not abuse its discretion in concluding the petitioner did not establish a clear legal right to the city's issuance of a certificate of occupancy for his remodeled home that is out of compliance with the city's ordinances.

The district court did not abuse its discretion in denying declaratory judgment plaintiff constructed an addition to his home in accordance with the city's ordinances when the evidence supports the court's findings the plaintiff did not comply with the city's ordinances.

A total regulatory taking occurs when regulations completely deprive an owner of all economically beneficial use of an owner's property. For total regulatory takings, the complete elimination of a property's value is the determinative factor because the total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation.

If a "special relationship" is established under the four elements provided by statute, a political subdivision may be liable for damages for injuries proximately caused by the negligence or wrongful act or omission of an employee acting within the scope of the employee's employment.

Jones v. Jones 2025 ND 61
Docket No.: 20240212
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Divorce
Author: McEvers, Lisa K. Fair

Highlight: A district court's award of primary residential responsibility is a finding of fact reviewed under the clearly erroneous standard of review. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, after reviewing the entire record, this Court is left with a definite and firm conviction a mistake has been made.

The district court does not retain continuing jurisdiction to modify a final property distribution.

Except as may be required by federal law for specific property, the valuation date for marital property and debt is the date mutually agreed upon between the parties. If the parties do not mutually agree upon a valuation date, the valuation date for marital property and debt is sixty days before the initially scheduled trial date. If there is a substantial change in value of an asset or debt between the date of valuation and the date of trial, the court may adjust the valuation of that asset or debt as necessary to effect an equitable distribution and shall make specific findings that another date of valuation is fair and equitable.

Spousal support and property distribution are interrelated and intertwined and must be considered together.

A party may not raise an issue or contention that was not previously raised or considered in the lower court for the first time on appeal.

When calculating child support, there must be evidence of the value of the items a party seeks to have included as in-kind income before the trial court may include those items in calculating an obligor's gross income.

After awarding spousal support, the district court must include that amount as a part of gross income when calculating child support.

State v. Gomez 2025 ND 60
Docket No.: 20240144
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Section 12.1-32-02(2), N.D.C.C., requires the time spent in custody to be as a result of either the charge for which the sentence was imposed or the conduct on which the charge was based.

The Court will review a claim of an illegal sentence even when the defendant did not raise this argument below by objecting at sentencing or through a motion under N.D.R.Crim.P. 35(a).

Any credit for good time the defendant is entitled to must be stated in the criminal judgment.

State v. Alg 2025 ND 59
Docket No.: 20240190
Filing Date: 3/28/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted the defendant of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Didier 2025 ND 58
Docket No.: 20240264
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: A district court did not abuse its discretion in allowing the State's only witness to appear remotely using reliable electronic means.

The factual basis was sufficient to conclude Didier has an inability to control his behavior. An order denying his petition for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Estate of Kautzman 2025 ND 57
Docket No.: 20240256
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A two-step analysis is required to determine whether an order is appealable. First, for this Court to have appellate jurisdiction, the order being appealed must meet statutory criteria for appealability. Second, for this Court to consider the appeal at this time, the requirements of N.D.R.Civ.P. 54(b) must have been satisfied.

Interest of H.N.R. 2025 ND 56
Docket No.: 20240311
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Adoption
Author: Jensen, Jon J.

Highlight: Pursuant to N.D.C.C. § 14-15-11(7), a copy of the petition and the notice of the time and place for the hearing must be provided to each living parent of the adult to be adopted.

Pursuant to N.D.C.C. § 14-15-11(8), service must be accomplished in the same manner as required for service of process under the North Dakota Rules of Civil Procedure or in any manner the court directs.

Byrd v. State 2025 ND 55
Docket No.: 20240252
Filing Date: 3/28/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

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

Conspiracy to commit intentional murder under N.D.C.C. § 12.1-16-01(1)(a) is a cognizable offense.

A defendant pleads guilty by Alford plea to a cognizable offense if sufficient factual basis supports the conviction. A simultaneous Alford plea to a noncognizable offense may be harmless error.