Opinions

Fleck v. Fleck, et al. 2023 ND 129
Docket No.: 20230011
Filing Date: 7/19/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Mickelson, et al. v. City of Rolla 2023 ND 128
Docket No.: 20230009
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: If an entity violates section 44-04-18, N.D.C.C., an interested person or entity may not file a civil action seeking attorney’s fees or damages, or both, until at least three working days after providing notice of the alleged violation to the chief administrative officer for the public entity under N.D.C.C. § 44-04-21.2(3).

State v. Graff 2023 ND 127
Docket No.: 20220348
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: Dismissal of a criminal case with prejudice is a remedy that should only be used in extreme circumstances.

In order to dismiss a criminal case with prejudice, a district court must make a finding of bad faith, harassment, or prosecutorial misconduct, and this finding must be supported by clear and convincing evidence.

The State must be provided with notice, and an opportunity to respond, and lesser alternative sanctions must be considered before a district court may dismiss with prejudice.

It is an abuse of discretion when a district court fails to consider whether lesser sanctions are available or appropriate before dismissing a criminal case with prejudice.

State v. Graff 2023 ND 127
Docket No.: 20220348
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Interest of Gehlhoff 2023 ND 126
Docket No.: 20230005
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Tufte, Jerod E.

Highlight: When a district court concludes that an individual has a serious difficulty controlling behavior, its findings must identify recent conduct or describe anything that shows the individual has a “present serious difficulty controlling his behavior.”

State v. Sullivan 2023 ND 125
Docket No.: 20220337
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: When making an arrest without a warrant, the officer shall inform the person to be arrested of the officer’s authority and the cause of the arrest, unless an exception under N.D.C.C. § 29-06-17 applies.

Relevant factors in determining whether probable cause to arrest a person for a DUI exists include the detection of the odor of alcohol, observation of signs of impairment, the failure of one or more field sobriety tests, the individual has red and bloodshot eyes, an admission to having consumed an alcoholic beverage, the failure of the HGN test, a traffic violation, or erratic driving.

Estate of Ewing 2023 ND 124
Docket No.: 20220356
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Highlight: The district court does not err in finding an oral contract existed when no evidence existed that any party lacked the capacity to contract.

Agreeing to sell a party’s interest in estate property constitutes valid consideration.

The district court does not err in finding mutual assent was present when evidence existed that parties came to an agreement.

Substantial, permanent, and valuable improvements made to a property may be considered part performance sufficient to take an oral agreement outside of the statute of frauds.

The district court does not err in finding personal property items were distributed properly according to a previously created agreement.

The district court does not err in finding a personal representative failed to properly maintain the property when the personal representative failed to obtain home insurance, care for the exterior of the home, or pay utilities.

The district court does not abuse its discretion when it denies claims for reimbursement from a personal representative when the personal representative failed to provide evidence on what costs he incurred.

The district court may impose a remedial or punitive sanction for contempt when a personal representative breaches his fiduciary duty.

Estate of Ewing 2023 ND 124
Docket No.: 20220356
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: McEvers, Lisa K. Fair

Hegenes Apartment Management v. Borlay, et al. 2023 ND 123
Docket No.: 20220349
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: In a summary eviction proceeding, the right to the possession of the real estate is the only fact that can be litigated unless damages or rent is claimed.

Hegenes Apartment Management v. Borlay, et al. 2023 ND 123
Docket No.: 20220349
Filing Date: 7/7/2023
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Interest of C.A.S. 2023 ND 122
Docket No.: 20230130
Filing Date: 7/7/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: McEvers, Lisa K. Fair

Highlight: An appeal from a decision terminating parental rights must be filed within 30 days of entry of the order or judgment. The North Dakota Rules of Appellate Procedure do not authorize an extension. An appeal not filed within 30 days of entry of the order or judgment must be dismissed for lack of jurisdiction.

Part of a judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Brame 2023 ND 121
Docket No.: 20230024
Filing Date: 7/7/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: District courts must substantially comply with N.D.R.Crim.P. 11 to ensure a defendant knowingly and voluntarily enters a guilty plea.

The Court remands to provide the State the opportunity to file transcripts to prove the district court substantially complied with N.D.R.Crim.P. 11.

Goetz v. Goetz, et al. 2023 ND 120
Docket No.: 20220231
Filing Date: 3/31/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court must make specific findings regarding whether a material change in circumstances resulted in a general decline or adversely affected the children in order to modify primary residential responsibility.

State v. Noble (consolidated w/20220364) 2023 ND 119
Docket No.: 20220363
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Highlight: When the sufficiency of evidence to support a criminal conviction is challenged, the record is reviewed on appeal to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

State v. Noble (consolidated w/20220364) 2023 ND 119
Docket No.: 20220363
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Interest of I.C. 2023 ND 118
Docket No.: 20230135
Filing Date: 6/21/2023
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) and (4).

Laducer v. Laducer, et al. 2023 ND 117
Docket No.: 20230002
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court order denying a motion to review and amend child support is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (8).

State v. Gardner 2023 ND 116
Docket No.: 20220360
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: A criminal judgment entered after a jury convicted defendant of child abuse in violation of N.D.C.C. § 14-09-22 is affirmed.

A district court’s use of “willfully allowed to be inflicted” in the jury instructions for an allegation of child abuse under N.D.C.C. § 14-09-22 is not obvious error if counsel fails to establish the instruction is a clear deviation from an applicable legal rule under current law.

The North Dakota Legislature chose to enumerate two alternative means of committing child abuse under N.D.C.C. § 14-09-22 without intending to define separate elements or crimes. A jury is not required to unanimously agree upon which of the two alternative means of committing child abuse it believes the State proved beyond a reasonable doubt.

State v. Coons 2023 ND 115
Docket No.: 20220289
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: A closure may occur where some or all members of the public are precluded from perceiving contemporaneously what is transpiring in the courtroom, because they can neither see nor hear what is going on. When questioning occurs at the bench, the public can still observe the proceedings, thus furthering the values that the public trial right is designed to protect, and can hear the general questions posed to the jury panel.

A trial court has great discretion over how to conduct a trial and to keep questioning within bounds and may remind counsel to refrain from further incursions into collateral and immaterial matters.

A district court has the common law power to explain, summarize, and comment on the facts and evidence and may also question witnesses and analyze and dissect the evidence. A court may not, however, act as a witness, nor add to or distort the evidence. If a judge exceeds the limitations on his power, it may amount to prejudicial error and require reversal.

State v. Coons 2023 ND 115
Docket No.: 20220289
Filing Date: 6/21/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Asiama v. Asumeng, et al. 2023 ND 114
Docket No.: 20220307
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The district court must value marital property as of the valuation date.

The court must determine the marital property’s total value before making an equitable distribution.

A district court has broad discretion over the conduct of trial and presentation of evidence, and may impose reasonable restrictions on the length of the trial and on the number of witnesses allowed.

Asiama v. Asumeng, et al. 2023 ND 114
Docket No.: 20220307
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Orwig v. Orwig (consolidated w/ 20220248) 2023 ND 113
Docket No.: 20220247
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

Highlight: While the district court may direct a party prepare and submit to the court a proposed summary real estate disposition judgment, nothing in the relevant statute prohibits a party from submitting a proposed summary real estate disposition judgment for the court’s consideration absent direction from the court to do so.

A district court generally does not retain jurisdiction to modify a final property distribution, but the court has broad equitable powers to redistribute property in a post-judgment proceeding when a party fails to comply with the terms of an order distributing property.

A party seeking a contempt sanction has the burden to clearly and satisfactorily prove the alleged contempt was committed. Whether contempt has been committed lies within the district court’s discretion.

The district court has discretion in deciding what interest rate to apply to a monetary award in a divorce action.

Damages and single or double costs, including reasonable attorney’s fees, may be awarded on appeal if an appeal is frivolous. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Orwig v. Orwig (consolidated w/ 20220248) 2023 ND 113
Docket No.: 20220247
Filing Date: 6/21/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

State v. Lonechild 2023 ND 112
Docket No.: 20230032
Filing Date: 6/8/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A defendant may be charged with escape under N.D.C.C. § 12.1-08-06 if they are in custody at a facility for custody of persons under charge or conviction of an offense, leave while participating in a work release program, and fail to return to the facility.

“Official detention” as defined by N.D.C.C. § 12.1-08-06(3)(b) precludes only “supervision on probation” and “constraint incidental to release.” The definition of “official detention” does not preclude custody while on probation.

Glasser v. State 2023 ND 111
Docket No.: 20230013
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Class A misdemeanors involving different crimes committed against different victims on different dates can be consecutively sentenced under N.D.C.C. § 12.1-32-11(3).

Whether a crime was committed as part of a different course of conduct is a mixed question of law and fact.

Interest of I.X.F. (CONFIDENTIAL) 2023 ND 110
Docket No.: 20230112
Filing Date: 6/8/2023
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) and (4).

O'Neal v. State 2023 ND 109
Docket No.: 20220353
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A district court’s order denying a post-conviction relief application based on newly discovered evidence and ineffective assistance of counsel is affirmed.

To succeed on a post-conviction relief claim based on newly discovered evidence a defendant must show 1) evidence was discovered after trial, 2) the failure to learn about the evidence was not the result of defendant’s lack of diligence, 3) the newly discovered evidence was material to the issues, and 4) the weight and quality of the evidence would likely have resulted in an acquittal.

To prove post-conviction relief based on ineffective assistance of counsel an applicant must 1) show that counsel’s representation fell below an objective standard of reasonableness and 2) show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of proceeding would have been different.

O'Neal v. State 2023 ND 109
Docket No.: 20220353
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Etemad v. State 2023 ND 108
Docket No.: 20220373
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: The district court may summarily dismiss a petitioner’s application for post-conviction relief without giving notice when the application on its face is meritless and fails to allege any supporting facts.

Etemad v. State 2023 ND 108
Docket No.: 20220373
Filing Date: 6/8/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Interest of T.H.P.B. (CONFIDENTIAL) 2023 ND 107
Docket No.: 20230106
Filing Date: 5/30/2023
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).

State v. Sanchez 2023 ND 106
Docket No.: 20220335
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The district court abuses its discretion when it allows testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements.

Allowing testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements will be considered harmless if the testimony of the witnesses was merely cumulative to that of the victim.

Substantial evidence existed to support the conviction and is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Brown v. State 2023 ND 105
Docket No.: 20220341
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

An attorney’s actions during voir dire are considered matters of trial strategy.

An unsuccessful trial strategy does not make defense counsel’s assistance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight.

State v. Johnson 2023 ND 104
Docket No.: 20220331
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions of domestic violence and false information or report to law enforcement are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Johnson 2023 ND 104
Docket No.: 20220331
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Rocket Dogs K-9 Aquatics & Wellness Center v. Derheim, et al. 2023 ND 103
Docket No.: 20220246
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: An attorney may not compromise a client’s claims in the absence of express authority, and an attorney may not waive a client’s substantial rights without the client’s consent. Whether an attorney has been given express authority to settle a claim normally presents a question of fact.

The trial court may take one of three possible avenues to decide a motion to enforce a settlement agreement: (1) hold an evidentiary hearing on the motion to determine disputed facts and then enter judgment after taking evidence to prove the agreement and any defenses that the nonmoving party may proffer, (2) dispose of the motion on the pleadings, or (3) treat the motion as akin to one for summary judgment.

Whether a party is entitled to a jury trial depends on whether the case is an action at law or a claim in equity. Historically, specific performance has been an equitable remedy, and no jury trial is available on such claims.

When conflicting testimony is presented, our ability to examine a cold record is a poor substitute for the fact finder’s opportunity to observe the demeanor of the witnesses.

Rocket Dogs K-9 Aquatics & Wellness Center v. Derheim, et al. 2023 ND 103
Docket No.: 20220246
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

State v. Heinrich 2023 ND 102
Docket No.: 20220339
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted defendant of one count of continuous sexual abuse of a child and two counts of promoting obscenity to minors is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Heinrich 2023 ND 102
Docket No.: 20220339
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Blue Steel Oil and Gas v. NDIC, et al. 2023 ND 101
Docket No.: 20220359
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: An operator of oil and gas wells may impose a statutory penalty on a mineral owner who does not lease or participate in the risks and cost of drilling.

A risk penalty may be imposed only if an operator has made a good-faith attempt to lease from a non-participating mineral owner.

Blue Steel Oil and Gas v. NDIC, et al. 2023 ND 101
Docket No.: 20220359
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Interest of P.S. (CONFIDENTIAL) 2023 ND 100
Docket No.: 20220298
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Highlight: Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard. A district court’s decision will be affirmed unless it is induced by an erroneous view of the law or the decision is not supported by clear and convincing evidence.

Substantive due process requires that in order to be civilly committed as a sexually dangerous individual, that individual must have serious difficulty controlling their behaviors. There must be a connection between an individual’s disorder and their inability to control behavior such that it would likely result in future sexually predatory conduct. In establishing this connection, a district court cannot rely solely on prognostic factors, but must support its finding with contemporary evidence or specific instances of conduct to demonstrate serious difficulty controlling behavior.

Under N.D.C.C. § 25-03.3-13, the executive director of the Department of Human Services maintains authority to place a sexually dangerous individual in an appropriate facility or program at which treatment is available. A district court is not allowed to determine treatment placement under N.D.C.C. § 25-03.3-13 at a discharge hearing.

Interest of P.S. (CONFIDENTIAL) 2023 ND 100
Docket No.: 20220298
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Jensen, Jon J.

Interest of G.L.D. (CONFIDENTIAL) 2023 ND 99
Docket No.: 20220295
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A district court order denying petition for discharge from civil commitment as a sexually dangerous individual is affirmed.

Interest of G.L.D. (CONFIDENTIAL) 2023 ND 99
Docket No.: 20220295
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Gwilliams v. Gwilliams 2023 ND 98
Docket No.: 20220149
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: Whether to stay enforcement of a judgment pending appeal is a collateral matter within the district court’s jurisdiction.

An order denying a motion for contempt and an order denying a motion for N.D.R.Civ.P. 60(b) relief from a divorce judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Gwilliams v. Gwilliams 2023 ND 98
Docket No.: 20220149
Filing Date: 5/30/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

State v. Brown 2023 ND 97
Docket No.: 20220315
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: The court may modify or enlarge conditions of probation at any time before the expiration or termination of the period for which the probation remains conditional, upon notice to the probationer and with good cause. If the probationer violates a condition of probation, the court may continue the existing probation with or without modifying or enlarging the conditions or revoke probation and impose sentence.

A probationer is entitled to notice of the alleged violations of probation.

Where the court sets a revocation matter for review at a subsequent hearing without issuing a final order disposing of the petition, the petition remains pending until that later hearing and issuance of a final order.

State v. Brown 2023 ND 97
Docket No.: 20220315
Filing Date: 5/30/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Chambering of Two New Judgeships in the East Central Judicial District 2023 ND 95
Docket No.: 20230122
Filing Date: 5/18/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Falcon v. Knudsen, et al. 2023 ND 94
Docket No.: 20220380
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: A district court order finding appellant did not establish a prima facie case for modification of primary residential responsibility and denying his motion to modify primary residential responsibility is affirmed.

A trial court makes no findings of fact when reviewing a party’s affidavits accompanying a motion to modify custody. Determination of whether the movant established a prima facie case entitling him to an evidentiary hearing is a question of law.

A district court’s order finding a movant did not establish a prima facie case for a change of primary residential responsibility is reviewed de novo.

A district court order denying appellant’s motion to disqualify appellee’s counsel is affirmed.

Falcon v. Knudsen, et al. 2023 ND 94
Docket No.: 20220380
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Matter of Shane Lance Yates 2023 ND 93
Docket No.: 20220370
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: District court orders denying petitions for name changes are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Orders denying leave to file are not appealable.

Matter of Shane Lance Yates 2023 ND 93
Docket No.: 20220370
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Per Curiam

Matter of Amy Jo Yates 2023 ND 93
Docket No.: 20220371
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: District court orders denying petitions for name changes are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Orders denying leave to file are not appealable.

Gartei v. Gartei 2023 ND 92
Docket No.: 20220358
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: A district court order denying a motion to vacate the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Kutcka, et al. v. Gateway Building Systems, et al. 2023 ND 91
Docket No.: 20220257
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Highlight: A general contractor is not the statutory employer of its subcontractor’s employees entitling it to immunity from suit under the exclusive remedy provisions of N.D.C.C. § 65-04-28.

An employee of a subcontractor operating under an agreement with a general contractor is deemed to be an employee of the general contractor for purposes of imposing liability on the general contractor for premium payments and applicable penalties when the subcontractor does not secure coverage or pay the premium owing.

Kutcka, et al. v. Gateway Building Systems, et al. 2023 ND 91
Docket No.: 20220257
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Tufte, Jerod E.

Nelson v. NDDOT 2023 ND 90
Docket No.: 20220355
Filing Date: 5/9/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

Highlight: Without a valid request for an on-site screening test, including a valid advisory, there can be no refusal to submit to screening under N.D.C.C. § 39-20-14.

Nelson v. NDDOT 2023 ND 90
Docket No.: 20220355
Filing Date: 5/9/2023
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

State v. Walsh 2023 ND 89
Docket No.: 20220327
Filing Date: 5/9/2023
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A district court must inform the defendant of the court’s authority to order restitution before a guilty plea can be accepted.

Legacie-Lowe v. Lowe 2023 ND 88
Docket No.: 20220314
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Highlight: The district court’s findings are inadequate to understand the basis for the decision.

The Court retains jurisdiction and remands for the district court to make specific findings of fact on whether there was infliction of fear of imminent domestic violence.

Legacie-Lowe v. Lowe 2023 ND 88
Docket No.: 20220314
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Other
Author: Jensen, Jon J.

Johnson v. City of Jamestown 2023 ND 87
Docket No.: 20220283
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

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

Johnson v. City of Jamestown 2023 ND 87
Docket No.: 20220283
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Anderson v. Anderson 2023 ND 86
Docket No.: 20220287
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: All property held by either party, whether held jointly or individually, is considered marital property.

A capital loss may be used as a deduction for federal income tax purposes.

A contempt order is collateral to the merits of the case and appealable by special statute.

A party challenging a district court’s imposition of sanctions bears the burden of proving the court abused its discretion in light of the information available at the time.

Anderson v. Anderson 2023 ND 86
Docket No.: 20220287
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

E.R.J. v. T.L.B. (CONFIDENTIAL) 2023 ND 85
Docket No.: 20220199
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Paternity
Author: Tufte, Jerod E.

Highlight: A district court’s findings that changing a child’s name is in the best interests of a child satisfies the good cause standard under N.D.C.C. § 14-20-57(7).

Under section 14-03-20.1(2)-(3), N.D.C.C., a “person’s surname does not automatically change upon marriage,” but parties to a marriage may choose to change their name after solemnization “by entering the new surname in the space provided on the marriage license application.”

A district court may order a child’s name be changed to a hyphenated combination of the parents’ names when requested as an alternative by a parent even when a petition does not specifically request that option, provided that both parties have notice at the hearing and opportunity to respond.

E.R.J. v. T.L.B. (CONFIDENTIAL) 2023 ND 85
Docket No.: 20220199
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Paternity
Author: Tufte, Jerod E.

Nodak Ins. Co. v. Farm Family Casualty Ins. Co., et al. 2023 ND 84
Docket No.: 20220114
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Insurance
Author: Bahr, Douglas Alan

Highlight: Interpretation of an insurance policy is a question of law, fully reviewable on appeal.

If coverage hinges on an undefined term, the plain, ordinary meaning of the term applies in interpreting the contract.

While insurance policies are regarded as adhesion contracts and ambiguities are resolved in favor of the insured, a contract will not be rewritten to impose liability on an insurer if the policy unambiguously precludes coverage.

The phrase “similar insurance” used in an automatic termination or cessation provision means similar in type and in amount.

Nodak Ins. Co. v. Farm Family Casualty Ins. Co., et al. 2023 ND 84
Docket No.: 20220114
Filing Date: 5/9/2023
Case Type: Appeal - Civil - Insurance
Author: Bahr, Douglas Alan

Vacancy in Judgeship No. 3, NWJD 2023 ND 83
Docket No.: 20230068
Filing Date: 4/26/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Williston.

State v. Smith 2023 ND 82
Docket No.: 20220162
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: When a party asserts prosecutorial misconduct for the first time on appeal, this Court may review for obvious error.

Questioning by the State regarding relevant evidence in the case may not amount to a prosecutor stating his personal belief on a defendant’s claim of self-defense nor prosecutorial misconduct.

Questioning by the State will not warrant reversal when such questions were invited by the defense.

Questions regarding potential weaknesses of a defendant’s case does not amount to burden shifting, particularly when the jury is reminded numerous times throughout trial that the burden is on the State.

Non-public exchanges, such as brief sidebars or bench conferences, between counsel and the court on routine evidentiary issues, technical legal issues, and administrative issues are not public trial violations.

The district court does not abuse its discretion by allowing expert testimony when it found the testimony was relevant, not overly cumulative, and properly noticed.

State v. Smith 2023 ND 82
Docket No.: 20220162
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

State v. Schaf 2023 ND 81
Docket No.: 20220323
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: The district court decides the qualifications of the witness to express an opinion on a given topic. The decision whether to admit expert witness testimony rests within the court’s discretion.

For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser. It also must be impossible to commit the greater offense without committing the lesser.

While a sexual contact charge may be a lesser included offense contained within a sexual act charge, the subsections of both offenses must be compatible and the evidence must support an inclusion.

An alleged error with jury instructions will be reviewed for obvious error when the instructions were not objected to at trial and proposed instructions were not provided to the district court.

Voluntary intoxication is irrelevant to a crime of general intent.

State v. Schaf 2023 ND 81
Docket No.: 20220323
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

State v. Hannesson 2023 ND 80
Docket No.: 20220244
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Ordering a mistrial is an extreme remedy that is only appropriate when there is a fundamental defect or occurrence at trial that makes it evident that continuing would be productive of manifest injustice.

Curative jury instructions will generally remove prejudice caused by a prosecutor’s improper statements because a jury is presumed to follow the district court’s instructions.

State v. Hannesson 2023 ND 80
Docket No.: 20220244
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Hanson v. Hettervig, et al. 2023 ND 79
Docket No.: 20220261
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order of contempt and an amended order of contempt and award of attorney’s fees are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Hanson v. Hettervig, et al. 2023 ND 79
Docket No.: 20220261
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Fietzek v. Fietzek 2023 ND 78
Docket No.: 20220236
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A district court’s finding on a valuation of real property is not clearly erroneous if it is within the range of evidence presented.

A district court’s finding on economic fault will not be reversed unless the finding is clearly erroneous.

A district court has broad discretion to award attorney’s fees.

An award of spousal support must be supported by sufficient findings.

Fietzek v. Fietzek 2023 ND 78
Docket No.: 20220236
Filing Date: 4/26/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

State v. Frederick 2023 ND 77
Docket No.: 20220070
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: Jensen, Jon J.

Highlight: In the instance of an alleged public trial violation, an appellant must demonstrate the public was excluded from a proceeding taking place during trial, and that the proceeding was substantive in nature.

A district court closing a proceeding to the public is significantly different from the court failing to make an adequate record of a bench conference conducted in an open trial. An inadequate record is not equivalent to a closed trial.

To demonstrate that an inadequate record affects a defendant’s substantial rights, the defendant must demonstrate the record cannot be adequately supplemented or reconstructed.

A violation of Appendix 1, Standard 7(d), N.D. Sup. Ct. Admin. R. 9 is not per se reversible error.

State v. Frederick 2023 ND 77
Docket No.: 20220070
Filing Date: 4/26/2023
Case Type: Appeal - Criminal - Assault
Author: Jensen, Jon J.

Sandberg v. WSI, et al. 2023 ND 76
Docket No.: 20220354
Filing Date: 4/13/2023
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Sandberg v. WSI, et al. 2023 ND 76
Docket No.: 20220354
Filing Date: 4/13/2023
Case Type: Appeal - Administrative - Workers Compensation
Author: Jensen, Jon J.

Highlight: WSI can exercise continuing jurisdiction under N.D.C.C. § 65-05-04, but is limited by the law-of-the-case doctrine.

N.D.C.C. § 65-05-15 applies when a prior injury known in advance of the work injury has caused previous interference with physical function, the progression of which is substantially worsened by a compensable injury.

Estate of Lindbo 2023 ND 75
Docket No.: 20220326
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Bahr, Douglas Alan

Highlight: A personal representative is entitled to reasonable compensation for the personal representative’s services.

A district court’s decision whether to award personal representative’s fees will not be reversed on appeal absent an abuse of discretion. The court’s underlying findings of fact will be upheld unless clearly erroneous.

Estate of Lindbo 2023 ND 75
Docket No.: 20220326
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Bahr, Douglas Alan

Krueger v. Krueger 2023 ND 74
Docket No.: 20220333
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: A district court’s order on spousal support and contempt is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of K.B. (CONFIDENTIAL) 2023 ND 73
Docket No.: 20230086
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: An order requiring hospitalization is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of J.S. (CONFIDENTIAL) 2023 ND 72
Docket No.: 20230062
Filing Date: 4/13/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating parental rights is affirmed under N.D.R.App.P. 35.1(a)(2) & (4).

Jahner v. NDDHS 2023 ND 71
Docket No.: 20220313
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: This Court exercises limited review in appeals from administrative agency decisions. However, the application and interpretation of a statute is a question of law, which is fully reviewable in an administrative appeal.

Jahner v. NDDHS 2023 ND 71
Docket No.: 20220313
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

State v. Jacobs 2023 ND 70
Docket No.: 20220280
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Jacobs 2023 ND 70
Docket No.: 20220280
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Jones v. Rath 2023 ND 69
Docket No.: 20220239
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A disorderly conduct restraining order must be supported by specific findings of intent to adversely affect the safety, security, or privacy of another person.

Jones v. Rath 2023 ND 69
Docket No.: 20220239
Filing Date: 4/13/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

State v. Neugebauer 2023 ND 68
Docket No.: 20220174
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A criminal sentence finalized before enactment of a statute cannot be reduced.
Statutes are not retroactive unless expressly declared to be so.
Statutes enacted in response to United States Supreme Court cases are not an idle act by the Legislature.

State v. Neugebauer 2023 ND 68
Docket No.: 20220174
Filing Date: 4/13/2023
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair