Opinions

State v. Anderson 2024 ND 100
Docket No.: 20230374
Filing Date: 5/16/2024
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

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

Aune v. State 2024 ND 99
Docket No.: 20230273
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A district court may dismiss an application without notice to the applicant if it does not rely on information outside the application and considers only materials contained in the application or embraced by the pleadings.

Postconviction relief proceedings are appropriately treated as a continuation of the criminal prosecution for purposes of N.D.C.C. § 29-15-21, and the applicant is not entitled to a new judge when the postconviction judge was also the trial judge.

A demand for a change of judge is not the proper route to remove a judge for bias. Rather, the judge assigned to the case should consider the claim of bias, not another judge.

Peltier v. State (consolidated w/20230391) 2024 ND 98
Docket No.: 20230392
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court's order on petitions is summarily affirmed under N.D.R.App.35.1(a)(2).

Armitage v. Armitage 2024 ND 97
Docket No.: 20230368
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: A district court's decision on primary residential responsibility is a
finding of fact reviewed under the clearly erroneous standard of review.
Under the clearly erroneous standard, this Court on appeal does not
reweigh the evidence nor reassess the credibility of witnesses, and this
Court will not retry a custody case or substitute its judgment for a district
court's initial primary residential responsibility decision merely because
this Court might have reached a different result.
The district court considers the best interests and welfare of the child
when deciding residential responsibility. That includes considering whether
one parent will better promote the welfare and best interests of the child
than the other; however, the analysis is not parent verses parent, or one
proposed parenting plan against the other proposed parenting plan.

State v. Rangel 2024 ND 96
Docket No.: 20230356
Filing Date: 5/16/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: A criminal defendant may withdraw a guilty plea after sentencing
only by demonstrating a manifest injustice.
The defendant has the burden of proving withdrawal is necessary to
correct a manifest injustice.
The district court has discretion in finding whether a manifest
injustice necessitating the withdrawal of a guilty plea exists, and the court's
decision is reviewed for abuse of discretion.

Brown v. State 2024 ND 95
Docket No.: 20230364
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: The definition of official detention does not preclude custody while on probation.

An unambiguous sentence pronouncement controls over an ambiguous sentence, whether oral or written.

When there is an ambiguity between two sentences, the record must be examined to determine the district court's intent.

Jung v. State 2024 ND 94
Docket No.: 20240031
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: To succeed on a claim for ineffective assistance of counsel, the applicant must show: (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
When a defendant pleads guilty on the advice of counsel, the defendant may only attack the voluntary and intelligent character of the guilty plea.

State v. Castleman 2024 ND 93
Docket No.: 20230371
Filing Date: 5/16/2024
Case Type: Appeal - Criminal - Other
Author: Jensen, Jon J.

Highlight: Under N.D.R.Crim.P. 14 a defendant must show more than naked assertions that prejudice may occur based on the number of offenses being charged and instead must show he suffered substantial prejudice as a result of the joinder.

Interest of S.M.F. 2024 ND 92
Docket No.: 20240097
Filing Date: 5/16/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Solberg v. Hennessy 2024 ND 91
Docket No.: 20230289
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: Adverse or erroneous rulings do not, by themselves, demonstrate bias. Rather, for recusal to be warranted, a judge must be partial or there must be some external influence that creates an appearance of impropriety.

Orders denying motions for relief from judgment and for reconsideration are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4). Double costs and attorney's fees are awarded for defending this frivolous appeal.

Rivera-Rieffel v. State 2024 ND 90
Docket No.: 20230402
Filing Date: 5/16/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Eggl 2024 ND 89
Docket No.: 20230376
Filing Date: 5/16/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment sentencing a defendant to 80 years imprisonment with 20 years suspended and 10 years supervised probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

SPOTTIE v. BAIUL-FARINA, et al. 2024 ND 88
Docket No.: 20230195
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Wholesale adoption of proposed findings of fact and conclusions of law is disapproved.

District courts retain authority to revisit interlocutory orders until entry of final judgment.

Under the doctrine of merger, the provisions of an executory contract merge into an instrument conveying real property. Absent fraud or mistake, the conveying instrument alone governs determination of the rights of the parties to the transaction.

Recordation of a granting instrument is not necessary to effect a conveyance. Nor is it necessary for a plaintiff to present the original conveying instrument to prevail in quiet title action. In a quiet title action ownership may be established through evidence that a conveying instrument was delivered but subsequently lost.
The equitable defense of laches may be available when a party delays enforcing his rights and a change in conditions during the delay results in prejudice to an adverse party.

To have standing to litigate an issue a party must have suffered some injury from the putatively illegal action and the party must assert his own legal rights and interests and cannot rest his claim on the legal rights and interests of third parties.

Parties may contract to a fee recovery standard that is either looser or stricter than statutory standards.

State v. Williams 2024 ND 87
Docket No.: 20230300
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment for attempted murder and conspiracy to commit murder is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Glaum v. State 2024 ND 86
Docket No.: 20230236
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Rule 58 of the North Dakota Supreme Court Administrative Rules addresses vexatious litigation. Litigation means any civil or disciplinary action or proceeding, including any appeal from an administrative agency, any review of a referee order by the district court, and any appeal to the supreme court. Rule 58 does not apply to criminal actions or documents filed in criminal actions.

An appeal from a vexatious litigant pre-filing order must be filed with the clerk of the supreme court within 60 days of service of notice of entry of the order. When there is no service of notice of entry of the order or evidence of actual knowledge of entry, the time for filing a notice of appeal does not begin to run.

A presiding judge may determine a person is a vexatious litigant based on the finding that in the immediately preceding seven-year period the person has commenced, prosecuted, or maintained as a self-represented party at least three litigations that have been finally determined adversely to that person.

If a response to the proposed pre-filing order is filed, the presiding judge may, in the judge's discretion, grant a hearing on the proposed order.

An appellant is precluded from challenging an order that was not appealed from in the notice of appeal and raising an issue for the first time on appeal.

Harris v. Oasis Petroleum, et al. 2024 ND 85
Docket No.: 20230279
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Personal Injury
Author: McEvers, Lisa K. Fair

Highlight: A motion to alter or amend the judgment under N.D.R.Civ.P. 59(j) is reviewed for an abuse of discretion.
The question of who is a prevailing party under N.D.C.C. § 28-26-06 is a question of law, subject to de novo review.
A prevailing party in a tort action must at least prevail on the issues of negligence and proximate cause. There may not be a single prevailing party when opposing parties each prevail on some issues.
Under North Dakota's comparative fault statute, N.D.C.C. § 32-03.2-02, in the case of a contributorily negligent plaintiff, any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering. However, N.D.C.C. § 32-03.2-02 does not provide for any diminution in the costs and disbursements to be allowed to a recovering plaintiff.
A district court has the discretion to award a prevailing party costs and disbursements under N.D.C.C. § 28-26-06, without reduction by the party's percentage of fault. The law does not require a court to reduce costs awarded to the prevailing party based on its percentage of fault.

Field v. Field, et al. 2024 ND 84
Docket No.: 20230405
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Under Rule 30(a), N.D.R.App.P., a party's references to evidence in any document on appeal must cite to items in the record. This Court does not consider documents that are not in the certified record. After an initial custody decision has been made, parenting time modifications are governed by N.D.C.C. § 14-05-22(2) and by standards set forth in caselaw. A parenting plan must include a provision on decision making responsibility under N.D.C.C. § 14-09-30(2)(a), and that responsibility must be allocated in the best interests of the child, N.D.C.C. § 14-09-31(2). A district court's decision on parenting time and decision making responsibility is a finding of fact subject to the clearly erroneous standard of review.

Interest of Skorick 2024 ND 83
Docket No.: 20230330
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Tufte, Jerod E.

Highlight: A district court must have sufficient factual findings to show a sexually dangerous individual continues to have an inability to control his behavior. Past conduct is relevant and may be considered with present conduct to determine if an individual continues to have an inability to control his behavior. Failure to attend treatment might demonstrate inability to control behavior just as violation of other institutional rules. The district court's findings are sufficient to show the individual continues to have an inability to control his behavior.

State v. Heintz (consolidated w/ 20230383-20230385) 2024 ND 82
Docket No.: 20230382
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Orders for revocation of probation are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Heintz (consolidated w/ 20230382, 20230384, & 20230385) 2024 ND 82
Docket No.: 20230383
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Orders for revocation of probation are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Heintz (consolidated w/ 20230382, 20230383, & 20230385) 2024 ND 82
Docket No.: 20230384
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Orders for revocation of probation are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Heintz (consolidated w/ 20230382-20230384) 2024 ND 82
Docket No.: 20230385
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Orders for revocation of probation are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Morales v. Weatherford U.S., et al. 2024 ND 81
Docket No.: 20230110
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Only those judgments and decrees which constitute a final determination of the parties' rights to an action and those orders enumerated in N.D.C.C. § 28-27-02 are appealable.

Rule 60(b), N.D.R.Civ.P., applies to final judgments or orders. A final judgment is a decree, order, or judgment "from which an appeal lies." N.D.R.Civ.P. 54(a).

Rule 54(b), N.D.R.Civ.P., recognizes a district court may direct entry of a final judgment against only some of the parties to a litigation, but until final judgment is entered all orders are subject to revision.

Zander, et al. v. Morsette 2024 ND 80
Docket No.: 20230103
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: The district court controls the scope and substance of opening and closing arguments, and a district court's decision will not be reversed absent an abuse of discretion.

A party is not prejudiced by a counsel's improper arguments when the district court instructs the jury not to consider counsel's comments as evidence.

A court may grant a new trial on grounds the jury awarded excessive damages appearing to have been awarded under the influence of passion or prejudice. To justify the granting of a new trial, passion and prejudice usually connote anger, resentment, hate, and disregard of the rights of others.

When a jury awards excessive damages, under appropriate circumstances, the district court and this Court on appeal, may order a reduction of the verdict instead of a new trial or order that a new trial be had unless the prevailing party remits the excess damages.

State v. Pederson 2024 ND 79
Docket No.: 20230318
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

Highlight: To succeed in a challenge under Brady, the defendant must demonstrate the evidence was favorable to the defendant or plainly exculpatory.

To preserve a sufficiency of the evidence challenge for appeal, the defendant must move for acquittal under N.D.R.Crim.P. 29 unless the district court committed obvious error.

State v. Hartson 2024 ND 78
Docket No.: 20230243
Filing Date: 5/2/2024
Case Type: Appeal - Criminal - Homicide
Author: Jensen, Jon J.

Highlight: Changing the culpability level of the crime charged is not a modification of a statute. Under N.D.C.C. § 12.1-02-02(4), a lesser degree of culpability is satisfied if the proven degree of culpability is higher.

The district court's failure to submit statutory definition of that term was not obvious error affecting defendant's substantial rights.

It is not clearly established law in North Dakota that, where the State alleges multiple predicate felonies in a felony murder prosecution under N.D.C.C. § 12.1-16-01(1)(c), the district court must include an instruction that the jury must unanimously agree on the predicate felony to convict the defendant of murder.
Not including separate verdict forms for each predicate felony was not obvious error.

There was sufficient evidence to convict the defendant of murder.

Musland v. Musland 2024 ND 77
Docket No.: 20230345
Filing Date: 5/2/2024
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A marital distribution does not need to be equal to be equitable, and while assessing a property division, a district court may consider the importance of preserving the viability of a business operation like a family farm. Liquidation of an ongoing farming operation or business is ordinarily a last resort.

A district court property division granting one party a net estate of $3,224,357 while assigning them virtually no debt, and the other a net estate of $4,961,915 included all of the debt, almost no liquidity, and no retirement funds, was not clearly erroneous.

A district court does not need to consider potential tax implications of a property division when the record failed to support a conclusion that the sale of the property was imminent, failed to indicate the tax liability, or quantified a specific liability to the court.

A party is not entitled to an accrual of rent for the use of marital property during the pendency of divorce proceedings absent agreement or seeking district court intervention during the interim.
Language in a right to first refusal that does not clarify if the right is triggered by a response to "any" offer made to purchase property or if it is triggered by a party's "acceptance" of an offer is ambiguous.

Estate of Kish 2024 ND 76
Docket No.: 20230275
Filing Date: 4/26/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

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.
Decisions have stated that this Court lacks appellate jurisdiction when an appellant fails to obtain N.D.R.Civ.P. 54(b) certification when required, but dismissal under Rule 54(b) is not for lack of appellate jurisdiction.
The parties did not request Rule 54(b) certification. The case is remanded under N.D.R.App.P. 35(a)(3)(B) so that the district court may determine in the first instance whether a Rule 54(b) certification is appropriate.

State v. Fuglesten 2024 ND 74
Docket No.: 20230299
Filing Date: 4/19/2024
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: A criminal judgment entered after a conditional plea is reversed and remanded to allow for withdrawal of the guilty plea because law enforcement illegally entered the home without exigent circumstances. If a misdemeanant is fleeing law enforcement, then exigent circumstances are required to permit law enforcement to enter the misdemeanant's home.

Berdahl v. Berdahl 2024 ND 73
Docket No.: 20230278
Filing Date: 4/19/2024
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: When this Court has made a legal pronouncement and remanded a case for further proceedings, the parties may not relitigate the issue and the district court is required to follow the terms of our decision. The district court has some discretion on the procedures used on remand. However, that discretion is not without bounds and must be exercised within the scope of our decision. Adverse or erroneous rulings do not, by themselves, demonstrate bias of a district court judge.

Schmidt v. Hess Corp., et al. 2024 ND 72
Docket No.: 20230272
Filing Date: 4/19/2024
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: To prove negligence, a plaintiff must establish the existence of a duty, breach of that duty, and an injury proximately caused by the breach of duty.
The employer of an independent contractor who retains control of part of the work owes a duty of care to the independent contractor' s employees to exercise the retained control with reasonable
care.
A property owner who hires an independent contractor may be held liable to the independent contractor and its employees for injuries resulting from hazards at the workplace when the property
owner retains control over the work.

Cichos, et al. v. Dakota Eye Institute, P.C., et al. 2024 ND 71
Docket No.: 20230212
Filing Date: 4/19/2024
Case Type: Appeal - Civil - Malpractice
Author: Tufte, Jerod E.

Highlight: Rule 54(b), N.D.R.Civ.P., preserves our long-standing policy against piecemeal appeals. When this Court considers the merits in a case involving a N.D.R.Civ.P. 54(b) certification, it does so because the resolution of the issue on appeal will always need to be resolved and is separate from the issue left to be adjudicated.
To establish a prima facie case of professional negligence, a plaintiff must produce expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of. To warrant a finding that a person's conduct is the proximate cause of an injury, the injury must be the natural and probable result of the conduct and must have been foreseen or reasonably anticipated by that person as a probable result of the conduct. Mere speculation is not enough.

Interest of H.J.J.N. 2024 ND 70
Docket No.: 20240060
Filing Date: 7/5/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An amended judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Rennie v. State 2024 ND 69
Docket No.: 20230303
Filing Date: 4/19/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Garaas, et al. v. Continental Resources, et al. 2024 ND 68
Docket No.: 20230306
Filing Date: 4/19/2024
Case Type: Appeal - Civil - Contracts
Author: Jensen, Jon J.

Highlight: We will not consider an appeal in a multi-claim lawsuit where the district court order disposes of fewer than all the claims against all the parties unless the court has determined that a certification under N.D.R.Civ.P. 54(b) is appropriate.

Urrabazo v. State 2024 ND 67
Docket No.: 20230316
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

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

This Court does not reweigh credibility or resolve conflicts in the evidence.

State v. Freeman 2024 ND 66
Docket No.: 20230207
Filing Date: 4/4/2024
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A motion for mistrial is reviewed for an abuse of discretion or a manifest injustice would result. Granting a mistrial is an extreme remedy and should only be resorted to when a fundamental defect or occurrence in the trial proceedings exists that makes it evident that further proceedings would be productive of manifest injustice.

Trial courts have wide discretion over the conduct of trial and the courtroom.

A trial court does not abuse its discretion by granting a recess when jurors are ill or have other such emergencies.

A criminal judgment entered after a jury found the defendant guilty of murder is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Kemmet v. Kemmet 2024 ND 65
Docket No.: 20230194
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A divorce judgment is reversed in part and remanded for clarification of the district court’s findings regarding equitable distribution of the marital estate and a correct accounting of the distribution.

All property held by either party, whether held jointly or individually, is considered marital property, and the district court must determine the total value of the marital property before making an equitable distribution.

Separate property, even if it is inherited, must initially be included in the marital estate, but the property’s origin may be considered when equitably dividing the estate.

State v. Alameen 2024 ND 64
Docket No.: 20230320
Filing Date: 4/4/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Adoption of T.J.R. and B.L.R. (CONFIDENTIAL) 2024 ND 63
Docket No.: 20240056
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: A district court order terminating parental rights under N.D.C.C. § 14-15-19 is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court finding of abandonment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

A court may waive the investigation and report required under N.D.C.C. § 14-15-11 for a petition of adoption if the petitioner is a court-appointed legal guardian or a relative other than a stepparent of the minor, the minor has lived with the petitioner for at least nine months, no allegations of abuse or neglect have been filed against the petitioner or any member of the petitioner’s household, and the court is satisfied that the proposed adoptive home is appropriate for the minor.

For convenience or to avoid prejudice, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims under N.D.R.Civ.P. 42(b).

Cote v. Cote 2024 ND 62
Docket No.: 20230274
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: If the district court determines a material change in circumstances has occurred, the court must consider whether changing primary residential responsibility is necessary to serve the child’s best interests. When a trial court does not make required findings, it errs as a matter of law, and it is necessary to remand for additional findings.

Interest of S.S.C. 2024 ND 61
Docket No.: 20240053
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Henke 2024 ND 60
Docket No.: 20230302
Filing Date: 4/4/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: An invited error of a non-structural issue will not be reviewed by this Court under the Invited Error Doctrine.

A sentence is illegal when the sentence is not within statutory limits or the sentence is unable to be served within statutory limits.

A reviewing court must clearly understand the sentencing court’s intent for the sentence and there must be no ambiguity for when probation begins.

Urrabazo v. State 2024 ND 59
Docket No.: 20230317
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Hoever v. Wilder 2024 ND 58
Docket No.: 20230295
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: An appellant’s argument must contain the appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies, and citation to the record showing that the issue was preserved for review or a statement of grounds for seeking review of an issue not preserved. A party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit. The Court will not consider an argument that is not adequately articulated, supported, and briefed, or engage in unassisted searches of the record for evidence to support a litigant’s position.

Interest of J.D. (CONFIDENTIAL) 2024 ND 57
Docket No.: 20240059
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of S.B. 2024 ND 56
Docket No.: 20240043
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Nelson 2024 ND 55
Docket No.: 20230346
Filing Date: 4/4/2024
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: If a defendant’s crime and revocation of probation occurred after the 2021 amendment to N.D.C.C. § 12.1-32-07(6), a district court may resentence the defendant up to the maximum allowed at the time of his original sentence.

State v. Thornton, et al. 2024 ND 54
Docket No.: 20240017
Filing Date: 4/4/2024
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Tufte, Jerod E.

Highlight: We exercise our authority to issue supervisory writs rarely and cautiously on a case-by-case basis and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists. Our authority to issue a supervisory writ is discretionary. We generally will not exercise our supervisory jurisdiction where the proper remedy is an appeal.

The plain language of the statute gives the Department the authority to approve the secondary process of the risk assessment and the responsibility to perform that secondary process, and the statutory definition of “risk assessment” is not a rule of procedure subject to being superseded by court rule.

Dahms v. Legacy Plumbing 2024 ND 53
Docket No.: 20230349
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Bahr, Douglas Alan

Highlight: Conduct constituting a breach of contract does not create a tort for negligence, unless the defendant’s conduct also establishes a breach of an independent duty that does not arise from the contract.

Speculation is not enough to defeat a motion for summary judgment, and when reasonable persons can reach only one conclusion from the evidence a court may grant summary judgment.

This Court does not review issues which are raised for the first time on appeal.

Whitetail Wave v. XTO Energy, et al. 2024 ND 52
Docket No.: 20230283
Filing Date: 4/4/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Jensen, Jon J.

Interest of Y.R. 2024 ND 51
Docket No.: 20240063
Filing Date: 4/4/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Happel v. State 2024 ND 50
Docket No.: 20230338
Filing Date: 3/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Adoption of R.E.M. (CONFIDENTIAL) 2024 ND 49
Docket No.: 20230321
Filing Date: 3/18/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order denying a petition for adoption is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Driver 2024 ND 48
Docket No.: 20230259
Filing Date: 3/18/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: The scope of an opening statement rests largely in the discretion of the trial court, and this Court will not reverse a conviction on the ground that the opening statement was prejudicial unless there is a clear abuse of that discretion.

Forfeiture is the failure to timely assert a right, which is reviewed for obvious error. The burden to show an obvious error is on the appellant.

A denial of a motion for judgment of acquittal is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Glaum 2024 ND 47
Docket No.: 20230190
Filing Date: 3/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A district court’s order denying a defendant’s withdrawal of guilty pleas is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance of counsel, the defendant may pursue the ineffectiveness claim at a postconviction proceeding where an adequate record can be made.

A defendant reserves the right to appeal non-jurisdictional claims and defenses when the defendant enters a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2).

A district court’s decision on a motion for recusal alleging bias is reviewed under the abuse of discretion standard.

A criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by N.D. Const. art. I, § 12. A four-factor balancing test is used to evaluate the validity of a speedy trial claim: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused.

The abuse of discretion standard applies to a district court’s decision to deny a continuance and allow an information to be amended.

When a party fails to provide supporting argument for an issue he is deemed to have waived that issue. Arguments not adequately articulated, supported, and briefed are not considered on appeal.

Petro-Hunt v. Tank, et al. 2024 ND 46
Docket No.: 20230015
Filing Date: 3/18/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: Assignments and deeds are interpreted in the same manner as contracts, with the primary purpose to ascertain and effectuate the parties’ or grantor’s intent.

The primary objective in interpreting a statute is to determine the intent of the legislation.

The right to an accounting in all cases is a preliminary question which must be answered in the affirmative before the actual accounting is ordered. The party claiming the relief has the burden of proving its right to the accounting. If not so proved, there is no right to an accounting and the cause is to be dismissed.

Vacancy in Judgeship No. 3, SCJD 2024 ND 45
Docket No.: 20240006
Filing Date: 3/7/2024
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Washburn.

Meuchel v. Red Trail Energy 2024 ND 44
Docket No.: 20230127
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

Highlight: A district court did not abuse its discretion in denying a member’s request for certain information in a board-managed limited liability company under the applicable statute governing an LLC member’s right to information.

A district court did not abuse its discretion in awarding attorney’s fees after denying a motion to compel discovery.

A facially valid motion to compel requires two components, an actual certification document and performance. Performance has two elements: the first element of performance is good faith, and the second element is conferring or attempting to confer.

Interest of A.P. (CONFIDENTIAL) 2024 ND 43
Docket No.: 20230404
Filing Date: 3/7/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: A juvenile court order terminating parental rights is reversed. The court’s findings on termination are clearly erroneous because the findings are not supported by evidence in the record. The juvenile court abused its discretion by relying on affidavits in the file that were not received into evidence.

State v. Henderson 2024 ND 42
Docket No.: 20230253
Filing Date: 3/7/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Interest of R.K. 2024 ND 41
Docket No.: 20240062
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Papenhausen v. ConocoPhillips Co. 2024 ND 40
Docket No.: 20230280
Filing Date: 3/7/2024
Case Type: Certified Question - Civil - Civil
Author: Tufte, Jerod E.

State v. Wiese 2024 ND 39
Docket No.: 20230220
Filing Date: 3/7/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Archambault v. State 2024 ND 38
Docket No.: 20230336
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Bahr, Douglas Alan

Highlight: To prevail on an ineffective assistance of counsel claim under the Strickland test, the applicant must show: (1) counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Courts need not address both prongs of the Strickland test. If a court can resolve the case by addressing only one prong, it is encouraged to do so.

Based on the state of the law, trial counsel’s failure to object to the jury using the laptop in the jury room, a laptop that only permitted the video to be heard and viewed, did not fall below an objective standard of reasonableness.

Weber v. NDDOT 2024 ND 37
Docket No.: 20230354
Filing Date: 3/7/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A driver arrested for driving under the influence of alcohol was provided a reasonable opportunity to consult with counsel when he was permitted to use his cellphone to call a third party to help contact an attorney and made no additional requests or attempts to contact counsel.

Interest of J.C. (CONFIDENTIAL)(consolidated w/ 20230378) 2024 ND 36
Docket No.: 20230377
Filing Date: 3/7/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court errs when it relies on facts which are outside of the evidentiary record when exercising its discretion to terminate parental rights.

Disciplinary Board v. Pilch 2024 ND 35
Docket No.: 20240023
Filing Date: 2/22/2024
Case Type: Discipline - Attorney - Disbarment
Author: Per Curiam

Highlight: Lawyer disbarred.

Garaas, et al. v. Petro-Hunt 2024 ND 34
Docket No.: 20230200
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: A dismissal without prejudice is appealable if the judgment has the practical effect of terminating litigation in the plaintiffs’ chosen forum.

Administrative exhaustion is required when the issues raised in the case are within the jurisdiction of an administrative agency and there are issues of fact in dispute.

State v. Rinde 2024 ND 33
Docket No.: 20230285
Filing Date: 2/22/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Bahr, Douglas Alan

NDIC v. Gould, et al. 2024 ND 32
Docket No.: 20230188
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Lien priority usually is based on its date of perfection.

North Dakota follows the "American Rule" by which successful litigants are not allowed to recover attorney's fees unless authorized by contract or statute.

Appeals involving questions of first impression typically are not frivolous.

Nelson v. Nelson, et al. 2024 ND 31
Docket No.: 20230264
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court must weigh all four Stout-Hawkinson factors when determining whether a moving parent can relocate to a different state with the children.

Williams v. Vraa, et al. 2024 ND 30
Docket No.: 20230248
Filing Date: 2/22/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A court’s determination that a petitioner did not establish a prima facie case to support an award of nonparent visitation is reviewed de novo.

When we interpret and apply provisions in a uniform law, it must be construed to effectuate its general purpose and we may look to official editorial board comments for guidance.

When considering whether a parent is a consistent caretaker, the 12-month requirement of N.D.C.C. § 14-09.4-03(2)(a) need not be consecutive months and need not be immediately preceding the petition when the nonparent caretaker continues significant contact with the child.

A party seeking a nonparent visitation is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting declarations, sufficient facts which, if uncontradicted, would support an award of nonparent visitation. In determining whether a prima facie case has been established, the trial court must accept the truth of the moving party’s allegations.

State v. Fischer 2024 ND 29
Docket No.: 20230239
Filing Date: 2/22/2024
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A district court can accept a guilty plea without accepting a plea agreement. When considering a plea agreement, the court can reject a guilty plea until it accepts the plea agreement or sentences the defendant.

A defendant cannot receive the benefit of a bargained for plea agreement when the State and the defendant are not bound by the whole plea agreement.

The judge’s comments in court explaining his decision does not create bias when they are made before a jury is empaneled, the jury does not hear the comments, and the comments are not part of the jury’s deliberations.

Disciplinary Board v. Spencer 2024 ND 28
Docket No.: 20240012
Filing Date: 2/9/2024
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended and placed on two-year suspension with conditions.

Keller v. Keller, et al. 2024 ND 27
Docket No.: 20230258
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Contempt of Court
Author: Bahr, Douglas Alan

Highlight: A district court’s finding of contempt will only be overturned if the court abused its discretion.

A district court’s award of attorney’s fees will only be overturned if the court abused its discretion.

This Court does not consider arguments which are not adequately articulated, supported, and briefed.

WSI v. Kringlie, et al. 2024 ND 26
Docket No.: 20230184
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Bahr, Douglas Alan

Highlight: Under the Administrative Agencies Practice Act, courts exercise limited appellate review of administrative agency decisions.

A vocational rehabilitation plan is appropriate if it meets the statutory requirements and gives the injured worker a reasonable opportunity to obtain substantial gainful employment.

While the validity of a vocational rehabilitation plan is assessed at the time it was formulated, a claimant’s pre-existing, non-work-related medical limitations are taken into account as they existed at the time of the work-related injury.

Don's Garden Center, et al. v. The Garden District, et al. 2024 ND 25
Docket No.: 20230270
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Landlord/Tenant
Author: Bahr, Douglas Alan

Sherwood v. Sherwood 2024 ND 24
Docket No.: 20230230
Filing Date: 2/8/2024
Case Type: Appeal - Civil - Other
Author: Bahr, Douglas Alan

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

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.

Swanson v. State 2024 ND 14
Docket No.: 20230249
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Interest of R.S. 2024 ND 13
Docket No.: 20230410
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Stancel v. Stancel, et al. 2024 ND 12
Docket No.: 20230287
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A district court divorce judgment and order denying cross motions for contempt are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Plaisimond v. State 2024 ND 11
Docket No.: 20230252
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Estate of Lindberg 2024 ND 10
Docket No.: 20230102
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: Before we consider the merits of an appeal, we must first confirm we have jurisdiction. A motion filed under N.D.R.Civ.P. 59(j) and 60(b)(6) within 28 days of the notice of entry of judgment or order tolls the time to appeal under N.D.R.App.P. 4(a)(3)(A)(iv) and (vi).

“Genetic father” means the man whose sperm fertilized the egg of a child’s genetic mother. If the father-child relationship is established under the presumption of paternity under subdivision a, b, or c of subsection 2 of section 14-20-07, the term means only the man for whom that relationship is established.

A presumption of paternity requires the presumptive father, for the first two years of the child’s life, to reside in the same household with the child and openly hold the child out as his own.

When the spouse of a genetic parent adopts an individual, the individual adoptee obtains a parent-child relationship with the adoptive step-parent but may still inherit from the other genetic parent.

Interest of J.C. (CONFIDENTIAL)(consolidated w/ 20230378) 2024 ND 9
Docket No.: 20230377
Filing Date: 1/22/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court errs when it relies on facts which are outside of the evidentiary record when exercising its discretion to terminate parental rights.

Hoover v. NDDOT 2024 ND 8
Docket No.: 20230226
Filing Date: 1/22/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Bahr, Douglas Alan

Highlight: An administrative agency does not afford a petitioner a fair hearing when the agency receives exhibits into evidence without first providing the petitioner the opportunity to examine them.

State v. Williamson 2024 ND 7
Docket No.: 20230205
Filing Date: 1/10/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

State v. Salou 2024 ND 6
Docket No.: 20230196
Filing Date: 1/10/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: Rule 28(b)(7)(B), N.D.R.App.P., requires an appellant’s brief to have a statement of the applicable standard of review and a citation to the record showing that the issue was preserved for review, or a statement of grounds for seeking review of an issue that was not preserved. A preserved evidentiary issue is reviewed under the abuse of discretion standard, and an unpreserved evidentiary issue is reviewed for obvious error.

There was sufficient evidence for a jury to draw an inference reasonably tending to prove the charged offense.

State v. Gietzen 2024 ND 5
Docket No.: 20230181
Filing Date: 1/10/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: The State’s accompanying statement filed with the notice of appeal must explain the relevance of the suppressed evidence and not merely paraphrase the statutory language. But the Court may consider the appeal if the facts clearly demonstrate the relevance of the suppressed evidence.

The scope of a driver’s consent to search a vehicle may or may not extend to all property in the vehicle. Whether a driver’s consent to search a vehicle extends to particular containers within the vehicle may depend on whether the container has identifying markings or characteristics indicating ownership by someone other than the driver.

The State has the burden to prove a person consented to a search. To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from searching.

State v. Gonzalez 2024 ND 4
Docket No.: 20230133
Filing Date: 1/10/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively.

When an original sentence was entered prior to August 1, 2021, the pre-amendment version of N.D.C.C. § 12.1-32-07(6) limits a district court’s ability to resentence a defendant to no more than the previously imposed, but suspended, sentence.

The pre-amendment version of N.D.C.C. § 12.1-32-07(6) restrains a district court’s discretion to impose consecutive sentences, in cases where the original sentence was imposed before the statute was amended, and the suspended sentence was to run concurrently.

Yalartai v. Miller, et al. 2024 ND 3
Docket No.: 20230159
Filing Date: 1/10/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An order issued without notice to the parties is not appealable under N.D.C.C. § 28-27-02(7). Relief from an order made without notice must first be sought in the district court.

Larson Latham Huettl v. Vetter 2024 ND 2
Docket No.: 20230113
Filing Date: 1/10/2024
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: An appeal from a district court judgment entered after a bench trial on a claim for unpaid legal fees and counterclaim is affirmed, and remanded for consideration of attorney’s fees for this appeal.

“If the defendant elects to remove the action from small claims court to district court, the district court shall award attorney’s fees to a prevailing plaintiff.” N.D.C.C. § 27-08.1-04. A party removes a small claims matter to district court at her own peril.

After our decision in Johnson v. Menard, Inc., 2021 ND 19, 955 N.W.2d 27, N.D.C.C. § 27-08.1-04 was amended consistent with that decision to state: “If the defendant appeals a district court judgment to the supreme court, the supreme court shall award reasonable attorney’s fees to the prevailing appellee.”

Although we have concurrent jurisdiction to determine a reasonable award of attorney’s fees on appeal, we prefer the district court take evidence and make such findings in the first instance.