Opinions

Bolinske v. Sandstrom, et al. 2022 ND 148
Docket No.: 20220016
Filing Date: 7/27/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within 180 days after the alleged injury is discovered or reasonably should have been discovered a written notice of claim as provided by statute. The district court lacks subject matter jurisdiction absent a timely filing of a notice of claim.

Because a court’s dismissal of claims without prejudice for lack of subject matter jurisdiction is not an adjudication on the merits, the doctrines of claim and issue preclusion do not foreclose a subsequent action to adjudicate those claims. However, claim preclusion prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by a final judgment on the merits.

Under N.D.R. Lawyer Discipl. 6.5, no lawsuit may be instituted against any complainant or witness in a lawyer disciplinary matter based on their communications to the board and its secretary, district inquiry committees, hearing panels, or counsel relating to lawyer misconduct or disability.

The affirmative defense that the statute of limitations has run must be pled by answer.

An appellate court is a court of review, not of first view.

If a party opposing a summary judgment motion shows by declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable declarations to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.

In civil actions, the court shall award reasonable attorney’s fees to the prevailing party if it finds a claim for relief was frivolous.

Bolinske v. Sandstrom, et al. 2022 ND 148
Docket No.: 20220016
Filing Date: 7/27/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Bridges v. State (consolidated w/20220078, 20220079 & 20220086) 2022 ND 147
Docket No.: 20220077
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A district court may summarily dispose of an application for postconviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

On an application for postconviction relief from a guilty plea claiming an exception to the statute of limitations under N.D.C.C. § 29-32.1-01(3) based on newly discovered evidence, the district court should consider whether the evidence was discovered after the guilty plea, whether the failure to learn about the evidence before the plea was not the result of the defendant’s lack of diligence, and whether the newly discovered evidence is material to what would have been the issues at trial. The court should also determine whether, if proved and reviewed in light of the evidence as a whole, the newly discovered evidence would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted.

An application for postconviction relief asserting a new interpretation of law must establish the interpretation is retroactively applicable and must be filed within two years of the date the decision announcing the new interpretation is published.

Bridges v. State (consolidated w/20220078, 20220079 & 20220086) 2022 ND 147
Docket No.: 20220077
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Disciplinary Board v. Baird (consolidated w/ 20210329-20210330) 2022 ND 146
Docket No.: 20210239
Filing Date: 7/21/2022
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer violates N.D.R. Prof. Conduct 1.3 by failing to act with reasonable diligence and promptness.

A lawyer violates N.D.R. Prof. Conduct 1.4 by failing to reasonably communicate with a client regarding their case.

A lawyer violates N.D.R. Prof. Conduct 1.16 by failing to take reasonable steps to protect a client’s interests.

Disbarment is an appropriate sanction when a lawyer causes serious or potentially serious injury to a client.

Lovro v. City of Finley 2022 ND 145
Docket No.: 20210300
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A party may not merely recite conclusory general allegations that additional discovery is needed.

A political subdivision may not be held liable for claims based on the decision to perform or the refusal to exercise or perform a discretionary function or duty.

Lovro v. City of Finley 2022 ND 145
Docket No.: 20210300
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

State v. Anderson 2022 ND 144
Docket No.: 20210363
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An issue must be ripe for review for the court to adjudicate it, and an issue is not ripe for review if it depends on future contingencies which may or may not occur.

State v. Anderson 2022 ND 144
Docket No.: 20210363
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

State v. Greff 2022 ND 143
Docket No.: 20220059
Filing Date: 7/21/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

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