Opinions

Mathisen, et al. v. Becker-Johner 2023 ND 241
Docket No.: 20230263
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A brief is deficient if it fails to raise a legal argument, including the authorities on which it relies. A district court order and judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

Mathisen, et al. v. Becker-Johner 2023 ND 241
Docket No.: 20230263
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Williams v. Williams, et al. 2023 ND 240
Docket No.: 20230201
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Reopening the record is an evidentiary issue subject to the abuse of discretion standard.

If the obligor fails to provide reliable information regarding his gross income, and that information cannot be reasonably obtained from other sources, the court must impute income and apply the method providing the greatest amount.

District courts must use a source demonstrating statewide average earnings to determine the obligor’s income for child support calculations if the obligor fails to provide sufficient reliable information for determining the obligor’s income.

Whether to award attorney’s fees in conjunction with a discovery violation is generally within the discretion of the district court.

Grengs v. Grengs, et al. 2023 ND 239
Docket No.: 20230105
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A principal that allows an ostensible agent act with apparent authority may be bound by the agent’s actions.

A principal may expressly or impliedly ratify an ostensible agent’s acts by conduct or failure to timely disavow the acts.

A third party is required to exercise diligence and prudence in determining whether an agent acted for a principal.

N.D.C.C. § 35-03-05 provides a standard mortgage form.

Interest of J.M.M. (CONFIDENTIAL) 2023 ND 238
Docket No.: 20230348
Filing Date: 12/15/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Shift Services v. Ames Savage Water Solutions 2023 ND 237
Docket No.: 20230217
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Contracts
Author: Jensen, Jon J.

Highlight: Once a contract has been entered into, mutual assent of the contracting parties is essential for any modification of the contract.

To establish a modification, the party asserting the modification must show that there was an agreement of the parties on all essential terms of the contract modification, and that the parties intended the new terms to alter the contract.

State v. Serdahl 2023 ND 236
Docket No.: 20230204
Filing Date: 12/15/2023
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).

Powell, et al. v. Statoil Oil & Gas 2023 ND 235
Docket No.: 20230098
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: The obligation to pay royalties under an oil and gas lease is a contract contained in a conveyance or instrument affecting title to real property within the meaning of N.D.C.C. § 28-01-15(2). This ten-year statute of limitations applies to a claim for untimely payment of royalties under an oil and gas lease.

If an operator fails to notify a mineral owner of a title dispute affecting the owner’s distribution of royalties and fails to pay royalties within 150 days after oil or gas produced under the lease is marketed, and cancellation of the lease is not sought, the operator must pay interest on the unpaid royalties at 18% per annum until paid.

Ebel, et al. v. Engelhart, et al. 2023 ND 234
Docket No.: 20230116
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: A district court judgment is reversed because the court misapplied the law by applying the statute of frauds when it was not specifically pled under N.D.R.Civ.P. 8.

Rule 8(c), N.D.R.Civ.P., requires the statute of frauds to be specifically pled as an affirmative defense.

State v. Hamilton 2023 ND 233
Docket No.: 20230052
Filing Date: 12/15/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: When a defendant pleads guilty on open and unconditional plea, the defendant waives his right to challenge the rejection of a plea agreement.

During sentencing, failure to preserve an objection precludes a later assertion unless a defendant establishes obvious error. Obvious error is exercised only with extreme caution.

Interest of Wedmore 2023 ND 232
Docket No.: 20230150
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: An appeal to determine if a person remains a sexually dangerous individual must be taken within 30 days of an entry of an order denying discharge.

State v. Bearce 2023 ND 231
Docket No.: 20230120
Filing Date: 12/15/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A district court does not err when reducing a defendant’s sentence within the 120-day period mandated by Rule 35(b), N.D.R.Crim.P.

It is mandatory under Rule 35(b), N.D.R.Crim.P., that the sentencing judge, whenever reducing a sentence as permitted by Rule 35, give his reasons for the reduction.

This Court’s power on appeal is limited by N.D.C.C. § 29-28-35. When the State appeals, this Court cannot reverse an order of the district court if doing so would increase the defendant’s sentence.

Neither the district court nor the State may invoke section 25 rights on behalf of a victim and when no individual exercises the victim’s right to participate in any post-judgment processes and procedures, a court does not err when it issues an order on a post-judgment without the victim’s consideration.

Sargent Cty. Water Resource District v. Beck, et al. 2023 ND 230
Docket No.: 20220357
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: Res judicata prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies. Collateral estoppel precludes litigation of issues actually litigated and necessary to the outcome of the prior case, even if such issues are subsequently presented as part of a different claim. Collateral estoppel requires a final judgment on the merits.

An aggrieved party must appeal a local governing body’s decision rather than seek injunctive or declaratory relief against the enforcement of the decision. Landowners are not foreclosed from challenging whether a drain improvement project is authorized by law in defending against an eminent domain action.

A water resource district may not accumulate a fund exceeding the six-year maximum maintenance levy or obligate the district for costs beyond the maximum maintenance levy without the approval of the majority of the landowners.

Before property can be taken it must appear that the use to which it is to be applied is a use authorized by law. The public uses authorized by N.D.C.C. § 32-15-02(3) carry the additional requirement that the mode of apportioning and collecting the costs of such improvement shall be such as may be provided in the statutes by which the same may be authorized.

Sargent Cty. Water Resource District v. Beck, et al. 2023 ND 230
Docket No.: 20220357
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Matter of Overboe (CONFIDENTIAL) 2023 ND 229
Docket No.: 20230352
Filing Date: 12/1/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer transferred to Incapacity to Practice Law Status

Holm v. Holm 2023 ND 228
Docket No.: 20230128
Filing Date: 12/1/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: The petitioner for a disorderly conduct restraining order bears the burden of demonstrating how a respondent’s conduct affected the petitioner’s safety, security, or privacy. Section 12.1-31.2-01, N.D.C.C., requires the district court to make specific findings concerning the respondent’s intent.

State v. Haney (consolidated w/20220367) 2023 ND 227
Docket No.: 20220366
Filing Date: 12/1/2023
Case Type: Appeal - Criminal - Assault
Author: Bahr, Douglas Alan

Highlight: To successfully challenge the sufficiency of the evidence on appeal, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.

In considering a defendant’s claim on appeal that his right to a public trial was violated, this Court first considers whether the claim of error was preserved at trial and then considers the threshold question of whether there was a closure implicating the public trial right.

The appellant bears the burden to demonstrate the public was excluded from a proceeding to which the public had a right to be present.

A party pursuing a constitutional claim must make a strong case supported by both fact and law or forgo the claim.

State v. Haney (consolidated w/20220367) 2023 ND 227
Docket No.: 20220366
Filing Date: 12/1/2023
Case Type: Appeal - Criminal - Assault
Author: Bahr, Douglas Alan

Kisi v. State 2023 ND 226
Docket No.: 20230074
Filing Date: 12/1/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: To be convicted of accomplice to attempted murder, the accused must have intended to aid in killing. Accomplice to attempted “knowing” murder under N.D.C.C. §§ 12.1-03-01 and 12.1-16-01(1)(a) is a non-cognizable offense.

The error was harmless if we are convinced the error did not contribute to the verdict.

Our determination of whether an error was harmless looks at the effect of the error on this jury, rather than speculating whether a hypothetical jury would convict the defendant absent the error. When no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury and the erroneous instruction was not argued to the jury, the error was harmless to that particular jury.

Pagel, et al. v. Weikum 2023 ND 224
Docket No.: 20230156
Filing Date: 11/24/2023
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: A district court order and judgment are reversed, and the case is remanded for entry of an order compelling arbitration. 

In construing arbitration clauses, courts have categorized arbitration clauses as either broad or narrow. A broad arbitration provision covers all disputes arising out of a contract to arbitrate; a narrow provision limits arbitration to specific types of disputes.

If the arbitration clause is broad in scope, the court will defer to arbitration on any issues that touch on contract rights or contract performance. 

State v. Curtis 2023 ND 223
Docket No.: 20230182
Filing Date: 11/24/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: The standard of review for a criminal trial before the district court without a jury is the same as a trial with a jury. A criminal defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

When the sufficiency of evidence to support a criminal conviction is challenged, this Court will not reweigh conflicting evidence or judge the credibility of the witnesses. This Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

Where a claim of insufficient evidence is preserved for appeal, related issues of statutory interpretation are also preserved for appeal.

Legislative history of a statute will not be considered without a showing that the statute is ambiguous.

State v. Geiger 2023 ND 222
Docket No.: 20230146
Filing Date: 11/24/2023
Case Type: Appeal - Criminal - Other
Author: Jensen, Jon J.

Highlight: A defendant fails to preserve an issue relating to constitutionally protected activities for appeal when they failed to properly raise a constitutionally protected activity defense to the district court through a motion in limine and instead made only a N.D.R.Crim.P. 29 motion at trial without providing any legal basis for the claim.

State v. Richter 2023 ND 221
Docket No.: 20230124
Filing Date: 11/24/2023
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Displaying a fictitious operator’s license is a punishable offense under N.D.C.C. § 39-06-40.

State v. Steele 2023 ND 220
Docket No.: 20230064
Filing Date: 11/24/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: A person has a reasonable expectation of privacy in a closed, rented room.

A home owner does not have common authority to consent to a search of a rented room in their home.

A reasonable officer would not believe a homeowner could consent to the search of a closed, rented room in their home.

Tracey v. Tracey 2023 ND 219
Docket No.: 20230155
Filing Date: 11/24/2023
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A district court’s finding of domestic violence may be based on actual harm, or the infliction of fear of imminent harm.

When a petition for a domestic violence protection order is based on the infliction of fear of imminent harm, the petitioner must show a fear of actual or imminent physical harm, bodily injury, or assault.

A district court must make factual findings sufficient to understand the basis for its decision.

Matter of Didier 2023 ND 218
Docket No.: 20230118
Filing Date: 11/24/2023
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 whether an individual continues to have an inability to control his behavior. The district court’s findings, showing not just a lack of progress, but a lack of participation, are sufficient to show the individual continues to have an inability to control his behavior.

State v. Nelson 2023 ND 217
Docket No.: 20230038
Filing Date: 11/24/2023
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: An issue will not be addressed on appeal when an appellant fails to raise it in the district court or brief it under the obvious error standard of review.

The standard for reviewing the sufficiency of evidence is the same for both a bench trial and a jury trial. A conviction will not be set aside if competent evidence allows the trier of fact to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

Olson Family Limited Partnership v. Velva Parks 2023 ND 216
Docket No.: 20230108
Filing Date: 11/24/2023
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A movant under N.D.R.Civ.P. 60(b) has the burden of establishing sufficient grounds for disturbing the finality of the judgment. A disregard of service of process does not constitute mistake, inadvertence, or excusable neglect. Bare assertions without credible facts or specific legal grounds do not give rise to an allegation of a meritorious defense.

Benter v. State 2023 ND 215
Docket No.: 20230202
Filing Date: 11/24/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Bravera Bank v. Craft, et al. 2023 ND 214
Docket No.: 20230095
Filing Date: 11/24/2023
Case Type: Appeal - Civil - Foreclosure
Author: Jensen, Jon J.

Highlight: When a district court’s order granting summary judgment is entered on a fully submitted motion without any request for oral argument, and the order fully resolves the pending claims, it may not be necessary for the court to specifically address the remaining motions.

A district court does not err in cancelling a hearing set by the court if its notice was issued after the time for the parties to request a hearing has expired and neither party made a request.

A party opposing summary judgment must explain the connection between the factual assertions and the legal theories in the case. It cannot leave the district court the chore of determining if there are nonbriefed issues material to the claim for relief.

State v. Sparkman 2023 ND 212
Docket No.: 20230134
Filing Date: 11/9/2023
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

McGinnis v. State 2023 ND 211
Docket No.: 20230119
Filing Date: 11/9/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Anderson 2023 ND 210
Docket No.: 20230145
Filing Date: 11/9/2023
Case Type: Appeal - Criminal - Assault
Author: Jensen, Jon J.

Highlight: When the intent element of terrorizing is met based on reckless disregard of the risk, awareness of the risk is not required if the absence is due to self-induced intoxication.

Preventing arrest under N.D.C.C. § 12.1-08-02 includes not only preventing the arrest but also effecting such an arrest. Preventing law enforcement actions such as being placed in handcuffs or being secured for transport could be the basis for a preventing arrest charge.

State v. Morales 2023 ND 209
Docket No.: 20230080
Filing Date: 11/9/2023
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: North Dakota Rule of Criminal Procedure 11(d) governs the withdrawal of a guilty plea. To withdraw a guilty plea after the court has accepted the plea but before sentencing, a defendant must show a fair and just reason for the withdrawal.

State v. Yalartai 2023 ND 208
Docket No.: 20230065
Filing Date: 11/9/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists.

Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw; (2) defendant’s assertion of innocence or a legally cognizable defense to the charge; (3) prejudice to the government; (4) whether the plea was knowing and voluntary; (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P.; (6) whether adequate assistance of counsel was available to the defendant; (7) the plausibility of the reason for seeking to withdraw; (8) whether a plea withdrawal would waste judicial resources; and (9) whether the parties had reached or breached a plea agreement.

A defendant who voluntarily pleads guilty waives the right to challenge nonjurisdictional defects, including alleged violations of constitutional rights that occur before the guilty plea.

Kaspari v. Kaspari 2023 ND 207
Docket No.: 20230189
Filing Date: 11/9/2023
Case Type: Appeal - Civil - Divorce - Property
Author: Bahr, Douglas Alan

Highlight: This Court only has jurisdiction to review judgments which are timely appealed. If we conclude the attempted appeal fails for lack of jurisdiction, we have the duty to dismiss the appeal sua sponte.

A motion under N.D.R.Civ.P. 60 does not toll the time to appeal unless the motion is served and filed no later than 28 days after notice of entry of judgment.

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

State v. Kovalevich 2023 ND 206
Docket No.: 20230101
Filing Date: 11/9/2023
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Highlight: When a defendant has previously filed a post-conviction relief application, a subsequent motion filed under the Rules of Criminal Procedure will be treated as an application for post-conviction relief when the motion seeks to evade the boundaries of post-conviction proceedings.

When a pre-filing order is in effect, a district court must make the required initial determinations whether a particular litigant’s proffered papers will be filed before ruling on the merits of the proposed filing.

Orders denying leave to file are not appealable.

Vacancy in Judgeship No. 2, NECJD 2023 ND 205
Docket No.: 20230284
Filing Date: 11/2/2023
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Grand Forks.

Matter of Reciprocal Discipline of Hill 2023 ND 204
Docket No.: 20230296
Filing Date: 10/26/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Interest of A.I. (CONFIDENTIAL) 2023 ND 203
Docket No.: 20230311
Filing Date: 10/26/2023
Case Type: Appeal - Civil - Mental Health
Author: Jensen, Jon J.

Highlight: To comply with the requirements of N.D.C.C. § 25-03.1-21(1), the district court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. However, we cannot order a less restrictive alternative even if it would be sufficient if evidence shows there is no such program currently available.

State v. Gonzales 2023 ND 202
Docket No.: 20230129
Filing Date: 10/26/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. § 12.1-32-08, a district court may enter restitution for damages or expenses sustained by a victim that are immediate, intimate, causally connected and directly related to the criminal offense the defendant pleaded guilty or was found guilty.

State v. Ortiz 2023 ND 201
Docket No.: 20230126
Filing Date: 10/26/2023
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: A district court’s judgment sentencing a defendant to 55 years of incarceration is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Padilla v. Klimpel, et al. 2023 ND 200
Docket No.: 20230099
Filing Date: 10/26/2023
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Interest of E.E.J.-C. (Confidential) 2023 ND 199
Docket No.: 20230091
Filing Date: 10/26/2023
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: A juvenile court order denying petition for guardianship of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Montenegro 2023 ND 198
Docket No.: 20230088
Filing Date: 10/26/2023
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered after a jury conviction of harassment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Severance v. Howe 2023 ND 197
Docket No.: 20230084
Filing Date: 10/26/2023
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: The tort of battery exists at common law. A person is civilly liable for offensive-contact battery if he or she (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (2) an offensive contact with the person of the other directly or indirectly results.

North Dakota is a notice pleading state. North Dakota’s rules do not require plaintiffs to allege every element of their claim. The formal character of a complaint does not strictly determine the cause of action.

Whether to abrogate a common law claim is a policy matter for the Legislature to decide.

Section 28-01-46, N.D.C.C, which requires plaintiffs to submit an affidavit containing an expert opinion to support a prima facie case of professional medical negligence, does not apply to a claim for the intentional tort of battery.

State v. Whitetail 2023 ND 196
Docket No.: 20230044
Filing Date: 10/11/2023
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Under N.D.R.Crim.P. 29(a), the district court must enter judgment of acquittal upon a defendant’s motion if the evidence presented at trial is insufficient to sustain a conviction. When the sufficiency of evidence to support a criminal conviction is challenged on appeal, the record is reviewed to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

Hillestad v. Small 2023 ND 195
Docket No.: 20230006
Filing Date: 10/11/2023
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan

Highlight: There is no presumption in North Dakota law for or against equal residential responsibility.

Primary caretakers do not receive presumptive status but may receive recognition in residential responsibility determinations.

A holiday schedule is not clearly erroneous if it is in the best interests of the child.

Tie-breaking decision-making authority must be awarded in the best interests of the child.

Interest of C.K. 2023 ND 194
Docket No.: 20230293
Filing Date: 10/11/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of C.K. 2023 ND 194
Docket No.: 20230293
Filing Date: 10/11/2023
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam