Opinions

Divide County v. Stateline Service, et al. 2022 ND 24
Docket No.: 20210016
Filing Date: 1/21/2022
Case Type: OTHER (Civil)
Author: Tufte, Jerod E.

Highlight: A road restriction is not published for purposes of N.D.C.C. § 39-12-03(2)(a) unless the information is available in the typical location where a user seeking such information would expect to find it.

Bubel v. Bubel 2022 ND 23
Docket No.: 20210263
Filing Date: 1/21/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Per Curiam

Highlight: An order denying a motion to modify primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Friesz v. State 2022 ND 22
Docket No.: 20210143
Filing Date: 1/21/2022
Case Type: POST-CONVICTION RELIEF
Author: VandeWalle, Gerald W.

Highlight: An applicant has the burden to support their application for post-conviction relief with competent admissible evidence once the State moves for summary dismissal.

A district court’s order denying an applicant’s claim of newly discovered evidence and summarily dismissing his application for post-conviction relief is affirmed.

State v. Martinez 2022 ND 21
Docket No.: 20210207
Filing Date: 1/21/2022
Case Type: ASSAULT
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7) as the defendant failed to move to dismiss based on a speedy trial violation.

Simmons v. Cudd Pressure Control, et al. 2022 ND 20
Docket No.: 20210166
Filing Date: 1/21/2022
Case Type: PERSONAL INJURY
Author: McEvers, Lisa K. Fair

Highlight: Contractual waiver requires a right or privilege a party is legally entitled to enforce.

Sanctionable spoliation of evidence cannot occur prior to the existence of a duty to preserve evidence.

Anderson v. Pedie, et al. 2022 ND 19
Docket No.: 20210147
Filing Date: 1/21/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Tufte, Jerod E.

Highlight: A motion to modify primary residential responsibility made within two years of an order establishing primary residential responsibility triggers the heightened requirements of N.D.C.C. § 14-09-06.6(1), (3), (5). The district court shall consider a motion to modify primary residential responsibility on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must include competent information, which usually requires the affiant have first-hand knowledge.

The district court has discretion to award attorney’s fees as part of a remedial sanction for contempt to reimburse the complainant for costs and expenses incurred as a result of the contempt.

Whether to administer sanctions under N.D.R.App.P. 13 for noncompliance with the Rules of Appellate Procedure is discretionary with this Court.

State v. Bolinske, Sr. 2022 ND 18
Docket No.: 20210128
Filing Date: 1/21/2022
Case Type: MISC. STATUTORY OFF. (MISDEMEANOR)
Author: Crothers, Daniel John

Highlight: A person arrested and detained without a warrant is entitled to a probable cause determination within 48 hours.

If a probable cause determination is not made within 48 hours, the government must demonstrate the existence of an emergency or other extraordinary circumstance.

An intervening weekend is not an emergency or other extraordinary circumstance.

The usual sanction for unlawful detention is the suppression of statements or evidence discovered as a result of the detention.

Dismissal of a criminal charge can be warranted in cases of egregious prosecutorial misconduct or on a showing of prejudice.

Fischer v. Hoyt 2022 ND 17
Docket No.: 20210164
Filing Date: 1/21/2022
Case Type: CONTRACTS
Author: Crothers, Daniel John

Highlight: Recovery of attorney’s fees by a prevailing plaintiff under N.D.C.C. § 27-08.1-04 is available after the defendant removes a small claims action to the district court.

Section 27-08.1-04, N.D.C.C., generally permits a prevailing plaintiff to recover reasonable attorney’s fees for the district court proceedings and for a successful appeal.

Pomarleau v. Pomarleau, et al. 2022 ND 16
Docket No.: 20210083
Filing Date: 1/21/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Jensen, Jon J.

Highlight: A district court may consider whether an obligor made a voluntary change in employment, and if they find the obligor did, the district court has the discretion to base the obligor’s child support income based on the previous, higher income.

A district court’s allocation of child tax credits is subject to the clearly erroneous standard of review.

A district court’s distribution of marital property is subject to the clearly erroneous standard of review. This Court reviews the findings as a whole, and they will be upheld on appeal despite relatively insignificant errors in the calculations.

Wald v. Hovey, et al. 2022 ND 15
Docket No.: 20210280
Filing Date: 1/6/2022
Case Type: WRIT OF SUPERVISION (Civil)
Author: VandeWalle, Gerald W.

Highlight: A demand for a change of judge under N.D.C.C. § 29-15-21 is precluded if the judge has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard.