New opinions: Dec. 8
Disciplinary Board v. Baird 2022 ND 227
Docket No.: 20220300
Filing Date: 12/8/2022
Case Type: DISCIPLINARY PROCEEDINGS (Civil)
Author: Per Curiam
Highlight: Lawyer disbarred.
Buchholz v. Mayo 2022 ND 226
Docket No.: 20220178
Filing Date: 12/8/2022
Case Type: OTHER (Civil)
Author: Per Curiam
Highlight: Disorderly conduct restraining order summarily affirmed under N.D.R.App.P. 35.1(a)(8).
Highlight: A city has constitutional authority to franchise a public utility or similar service within the city.
The Public Service Commission’s authority is limited to that authority provided to it by the legislature.
A party may raise the issue of subject matter jurisdiction at any time.
Matter of Emelia Hirsch Trust 2022 ND 224
Docket No.: 20220194
Filing Date: 12/8/2022
Case Type: PROBATE - WILLS - TRUSTS
Author: Per Curiam
Highlight: A district court pre-filing vexatious litigant order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Schmidt v. Hageness, et al. 2022 ND 223
Docket No.: 20220219
Filing Date: 12/8/2022
Case Type: REAL PROPERTY
Author: Per Curiam
Highlight: Dismissal of complaint alleging quiet title to land is summarily affirmed under N.D.C.C. § 32-17-01 because warranty deed failed to meet the requirements under N.D.C.C. § 47-10-05.
Bell v. State 2022 ND 222
Docket No.: 20220161
Filing Date: 12/8/2022
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.
Highlight: The statutory meaning of “physical disability” within N.D.C.C. § 29-32.1-01(3)(a)(2) does not include an inability to access state case law while serving a sentence in a federal prison.
Highlight: When a district court has made sufficient findings that demonstrate intent, mutual assent, and sufficient consideration among the parties to substitute a new obligation for an existing one, a finding of novation by the court is not clearly erroneous.
The terms of a contract, the character of the transaction, and the facts and circumstances surrounding the transaction can establish novation.
Parties entering into a novation need not agree about the meaning or terms within the original obligation.
Wheeler v. Sayler, et al. 2022 ND 220
Docket No.: 20220227
Filing Date: 12/8/2022
Case Type: OTHER (Civil)
Author: Tufte, Jerod E.
Highlight: An order dismissing a complaint without prejudice is generally not appealable.
The district court is required to make a pre-filing determination prior to ruling on a motion filed by a vexatious litigant. A vexatious litigant’s request for reconsideration did not satisfy the pre-filing order requirement that new documents filed with the court have merit and have not been filed for the purpose of harassment or delay. A denial of leave to file is not appealable.
State v. Davis 2022 ND 219
Docket No.: 20220220
Filing Date: 12/8/2022
Case Type: HOMICIDE
Author: Jensen, Jon J.
Highlight: The district court’s findings on restitution were not clearly erroneous.
State v. Tully 2022 ND 218
Docket No.: 20220214
Filing Date: 12/8/2022
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam
Highlight: A criminal judgment of terrorizing subsequent to a plea of guilty is summarily affirmed under N.D.R.App.P. 35.1(a)(3) & (7).
Kubik v. Hauck 2022 ND 217
Docket No.: 20220091
Filing Date: 12/8/2022
Case Type: REAL PROPERTY
Author: Tufte, Jerod E.
Highlight: To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary, and not a mere barrier, for at least 20 years prior to the litigation. Whether there has been mutual recognition of a boundary is a question of fact, reviewed under the clearly erroneous standard.
Trosen, et al. v. Trosen, et al. 2022 ND 216
Docket No.: 20220048
Filing Date: 12/8/2022
Case Type: PROBATE - WILLS - TRUSTS
Author: VandeWalle, Gerald W.
Highlight: The nonperformance of a contractual duty when it is due is a breach of the contract.
Under the common law doctrine of apportionment of rent, rent is not apportionable as to time; rather the person who has ownership of the property at the time that rent is due has the right to receive it.
Generally, a material breach by one party gives the non-breaching party the right to terminate the contract.
Watson v. State 2022 ND 215
Docket No.: 20220103
Filing Date: 12/8/2022
Case Type: POST-CONVICTION RELIEF
Author: Tufte, Jerod E.
Highlight: In an ineffective assistance of counsel claim, a criminal defendant must demonstrate (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.
Fercho v. Fercho, et al. 2022 ND 214
Docket No.: 20220076
Filing Date: 12/8/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Tufte, Jerod E.
Highlight: A party to a divorce action who accepts benefits pursuant to a divorce judgment does not waive the right to appeal from the judgment, overruling prior case law applying the general rule that acceptance of substantial benefits under the divorce judgment waived the right to appeal.
The court must limit discovery if it determines the discovery sought is unreasonably cumulative or duplicative, or it can be obtained from some other source that is more convenient, less burdensome, or less expensive; or the burden or expense of the proposed discovery outweighs its likely benefit.
Under the Uniform Premarital Agreement Act, parties may contract to the disposition of property upon divorce and to the modification or elimination of spousal support.
Procedural unconscionability focuses upon formation of the contract and fairness of the bargaining process, including factors such as inequality of bargaining power, oppression, and unfair surprise. Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily. Substantive unconscionability focuses on the harshness or one-sidedness of the agreement’s provisions.
A district court’s valuation and distribution of marital property are findings of fact. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing the entirety of the evidence, this Court is left with a definite and firm conviction a mistake has been made.
A spousal support award must be based on both the supporting spouse’s needs and ability to pay and the receiving spouse’s income and needs. Similarly, the primary standard to award attorney’s fees under N.D.C.C. § 14-05-23 is consideration of one spouse’s needs and the other spouse’s ability to pay.
Reasonable attorney’s fees may be awarded on appeal if any party has been dilatory in prosecuting the appeal.
Provins v. WSI, et al. 2022 ND 213
Docket No.: 20220060
Filing Date: 12/8/2022
Case Type: ADMINISTRATIVE PROCEEDING
Author: Jensen, Jon J.
Highlight: For purposes of WSI benefits, a compensable injury includes a mental or psychological condition caused by a physical injury, but only when the physical injury is determined with reasonable medical certainty to be at least fifty percent of the cause of the condition as compared with all other contributing causes combined, and only when the condition did not preexist the work injury.
Under WSI administrative rule, a mental or psychological condition must be directly caused by a physical injury. To be directly caused it must be shown with objective medical evidence that the mental or psychological condition is the physiological product of the physical injury.
State v. Dahl 2022 ND 212
Docket No.: 20210276
Filing Date: 12/8/2022
Case Type: DRUGS/CONTRABAND
Author: Tufte, Jerod E.
Highlight: When the sufficiency of evidence to support a criminal conviction is challenged, 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.
Constructive possession is proven when the evidence establishes that the accused had the power and capability to exercise dominion and control over the controlled substance or paraphernalia.
When a defendant fails to preserve a claim of insufficient evidence, the Court may review for obvious error, which is a narrow exception to the rule that issues may not be raised for the first time on appeal. Although the Court may decline review of forfeited errors when the appellant fails to argue the obvious error standard, the Court is not foreclosed from considering such errors. An error is obvious when it is a clear deviation from an applicable rule under current law.
Drug paraphernalia used, or possessed with intent to be used, to store a controlled substance does not satisfy the felony use element under N.D.C.C. § 19-03.4-03(1).
If even a properly instructed jury would have had insufficient evidence on which it could have convicted the defendant, the required remedy upon a conclusion there was insufficient evidence presented at trial is to enter a judgment of acquittal.
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