Opinions

State v. Kuntz 2020 ND 149
Docket No.: 20190365
Filing Date: 6/29/2020
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam

Highlight: A district court’s order for restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Wisnewski v. Wisnewski 2020 ND 148
Docket No.: 20190209
Filing Date: 6/29/2020
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: McEvers, Lisa K. Fair

Highlight: The domestic violence presumption under N.D.C.C. § 14-09-29(2) is only rebutted by clear and convincing evidence.
The absence of physical abuse of a child, use of substances at the time of a domestic violence incident or subsequent treatment for the substance use does not rebut the presumption. The passage of time alone also does not rebut the presumption.

Under N.D.C.C. § 14-09-31(4), when a court finds domestic violence occurred, it shall make orders for the allocation of decision making responsibility that best protects the child, parent, or both.

Child support calculations must state how net income was determined. Under N.D.C.C. § 14-09-29(4), when a parent perpetrates domestic violence as described, fees must be awarded unless those costs would place an undue financial hardship.

Lavallie v. Jay, et al. 2020 ND 147
Docket No.: 20190402
Filing Date: 6/29/2020
Case Type: PERSONAL INJURY
Author: VandeWalle, Gerald W.

Highlight: Issues related to subject matter jurisdiction can be raised at any time and cannot be waived.
As a general rule, it is presumed that North Dakota district courts have subject matter jurisdiction, and the party challenging the district court’s subject matter jurisdiction bears the burden of proving the district court lacks subject matter jurisdiction.

Grove v. NDDOT 2020 ND 146
Docket No.: 20200016
Filing Date: 6/29/2020
Case Type: TRANSPORTATION DEPT.
Author: VandeWalle, Gerald W.

Highlight: When a party fails to raise an issue at an administrative hearing, the issue is normally precluded from review on appeal. We will reverse a district court’s decision when the basis of the decision was not raised in the administrative hearing.
A Report and Notice form containing the results of an on-site screening test or tests may be admitted into evidence at an administrative hearing for the purpose of establishing probable cause.

Nat'l Parks Conservation Assn., et al. v. ND Dep't of Environmental Quality, et 2020 ND 145
Docket No.: 20190095
Filing Date: 6/29/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: Jensen, Jon J.

Highlight: An agency’s reasonable interpretation of a regulation is entitled to deference, and an agency’s decision in complex or technical matters involving agency expertise is entitled to appreciable deference.

The legislature is presumed to be aware of judicial construction of a statute, and from its failure to amend a particular statutory provision, it is presumed the legislature acquiesces in that construction.

An agency’s permitting decision is entitled to greater deference than a decision after an adjudicative proceeding, and the final permitting decision is reviewed on appeal to determine whether it is arbitrary, capricious or unreasonable.

A decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.

State v. Pouliot 2020 ND 144
Docket No.: 20200060
Filing Date: 6/29/2020
Case Type: DUI/DUS
Author: Jensen, Jon J.

Highlight: The 2019 amendment to N.D.C.C. § 39-20-01(3)(b) limits the scope of the exclusion of evidence “to proof of refusals” in an “administrative proceeding.”

A district court’s judgment denying a motion to exclude the chemical test results in a criminal proceeding is affirmed.

Franciere v City of Mandan 2020 ND 143
Docket No.: 20200018
Filing Date: 6/29/2020
Case Type: OTHER (Civil)
Author: Crothers, Daniel John

Highlight: A judgment granting dismissal based on lack of personal jurisdiction due to insufficient service is modified to dismiss without prejudice, and affirmed as modified.

The district court did not abuse its discretion when it denied a motion to compel discovery when the discovery requests were not related to the issue of personal jurisdiction.

Issues raised for the first time on appeal normally will not be addressed.

Truelove v. State 2020 ND 142
Docket No.: 20190388
Filing Date: 6/29/2020
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.

Highlight: A district court’s order denying an application for post-conviction relief after finding that counsel’s representation was not ineffective was not clearly erroneous.

Kalmio v. State 2020 ND 141
Docket No.: 20200011
Filing Date: 6/29/2020
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: Orders denying postconviction relief and a motion to reconsider are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Dale Exploration, et al. v. Hiepler, et al. 2020 ND 140
Docket No.: 20190338
Filing Date: 6/29/2020
Case Type: OIL, GAS AND MINERALS
Author: Tufte, Jerod E.

Highlight: Under the law of the case doctrine, a party cannot relitigate issues on a second appeal which were resolved in the first appeal or which would have been resolved if they had been properly presented in the first appeal.

A successor trustee may be substituted as a party in an action after the death of the trustee.

The death of the settlor and trustee of a revocable trust does not preclude a district court from ordering specific performance from trust property.