Opinions

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.

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.

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

Highlight: When asserting a claim of obvious error, a defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant’s substantial rights, if there is no error there is no reason to go further into the analysis.

When the sufficiency of evidence to support a criminal conviction is challenged, the conviction rests on insufficient evidence only if no rational factfinder could have found the defendant guilty beyond a reasonable doubt when weighed in a light most favorable to the verdict.

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.

Highlight: A title dispute does not establish a taking. The State may protect its interests in a title dispute and must do “something more” than assert title to complete a taking.

Suspension of royalty payments was lawful under N.D.C.C. § 47-16-39.1 when there is a dispute of title that would affect distribution of royalty payments.

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

Highlight: A district court order denying a postconviction relief application 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.

Highlight: A criminal judgment is reversed because the district court abused its discretion by admitting several trial exhibits that were not properly authenticated under N.D.R.Ev. 901 and are inadmissible hearsay that lacked sufficient foundation as records of regularly conducted activity under N.D.R.Ev. 803(6).

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

Highlight: A district court’s order continuing an individual’s treatment at the North Dakota State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

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.

Highlight: We answer two certified questions from the United States District Court for the District of North Dakota regarding North Dakota’s natural accumulation rule, which precludes liability for injuries caused by natural accumulations of snow and ice. The questions ask whether the accumulation rule extends to an oil well site in a rural area, and, if so, does it still apply if it conceals a condition substantially more dangerous than one normally associated with ice and snow. 

The natural accumulation rule relates to the threshold question whether a duty exists. The underlying rationale for the natural accumulation rule is reasonableness.

The natural accumulation rule is generally applicable under North Dakota law with some exceptions.

We answer the first question, “yes.” The natural accumulation rule applies to an oil well site in a rural area. We answer the second question, “no.” The concealment aspect of snow and ice is outside the scope of our natural accumulation rule.

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

Highlight: Obvious error analysis does not apply to errors waived through the doctrine of invited error, unless a constitutional error is structural.

Possession may be actual or constructive, and constructive possession is proven where evidence establishes that the accused had the power and capability to exercise dominion and control over the material.

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.

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

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

When a defendant’s original conviction and sentence is entered on or after August 1, 2021, the pre-amendment version of N.D.C.C. § 12.1-32-07(6) does not apply to limit a district court’s ability to resentence a defendant to no more than the previously imposed, but suspended, sentence.

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.