New opinions: Feb. 18
Highlight: Tribal sovereign immunity protects Indian tribes against lawsuits, even ones brought by the State.
Extension of tribal sovereign immunity to businesses relies on a test to determine if they qualify as arms of the tribe.
A manager or governor of a limited liability company cannot be held liable under N.D.C.C. § 65-04-26.1(1) for unpaid premiums and reimbursements when the limited liability company itself is not liable for the amounts.
Workforce Safety and Insurance has no statutory authority to order an insurance company cease and desist from writing coverage in North Dakota.
Highlight: An appearance for purposes of N.D.R.Civ.P. 55(a) is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.
A party’s disregard of service of process does not constitute mistake, inadvertence, or excusable neglect under N.D.R.Civ.P. 60(b)(1).
Atkins v. State 2021 ND 34 Docket No.: 20200172 Filing Date: 2/18/2021 Case Type: POST-CONVICTION RELIEF Author: Crothers, Daniel John
Highlight: If an applicant files a N.D.R.Civ.P. 60(b) motion for relief following an order denying post-conviction relief, the motion will be treated as another post-conviction relief application and will not toll the time for appealing the order denying post-conviction relief.
An applicant for post-conviction relief may not allege ineffective assistance of post-conviction counsel.
Orwig v. Orwig 2021 ND 33 Docket No.: 20200123 Filing Date: 2/18/2021 Case Type: DIVORCE/PROPERTY DIV./ALIMONY Author: VandeWalle, Gerald W.
Highlight: In a court trial, any error in admitting a deposition is harmless unless the deposition testimony induced the court to make an essential finding which would not otherwise have been made or otherwise affected a party’s substantial rights.
A district court’s property valuation in a divorce case is not clearly erroneous if it is within the range of evidence presented.
An award of attorney’s fees must generally be supported by evidence upon which the court can determine whether the requested fees are reasonable and legitimate.
Paulson v. Paulson 2021 ND 32 Docket No.: 20200163 Filing Date: 2/18/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: McEvers, Lisa K. Fair
Highlight: A district court’s decision on whether to vacate a divorce judgment under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion. A party seeking to vacate a divorce judgment entered pursuant to a settlement agreement under N.D.R.Civ.P. 60(b) must demonstrate extraordinary circumstances justifying relief. When considering whether a divorce judgment based on a settlement agreement should be vacated, the district court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable. The party seeking relief from judgment based on fraud has the burden to establish fraud by clear and convincing evidence. Unconscionability may be considered as a ground for relief under N.D.R.Civ.P. 60(b)(6). To vacate a divorce judgment as unconscionable, there must be a showing of both procedural and substantive unconscionability. A disparate settlement is not necessarily substantively unconscionable, particularly in a short-term marriage
Highlight: The test we apply when determining governmental liability and discretionary acts distinguishes between immune discretionary acts and non-immune ministerial acts. In examining the nature of the challenged conduct, the first inquiry a court must consider is whether the action is a matter of choice for the acting employee. Even if ‘the challenged conduct involves an element of judgment or choice, the second inquiry a court must consider is whether that judgment or choice is of the kind that the discretionary function exception was designed to shield.
Highlight: Foreign judgments are not entitled to full faith and credit under certain circumstances such as when the rendering court lacks jurisdiction.
Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies even if the subsequent claim is based on a different legal theory.
The court was not precluded from giving another judgment res judicata effect because the judgment was final and remained final regardless of a pending appeal.
Highlight: A township’s decision on a petition for approval of a proposed site for an animal feeding operation may be reversed on appeal if the township misinterprets or misapplies the law.
Under N.D.C.C. § 58-03-11.1, townships only have authority to regulate the setback distance between an animal feeding operation and the nearest residence, building used for nonfarming or nonranching purposes, or land zoned for residential, commercial, or recreational purposes.
Whetsel v. State 2021 ND 28 Docket No.: 20200262 Filing Date: 2/18/2021 Case Type: POST-CONVICTION RELIEF Author: Jensen, Jon J.
Highlight: Once the State has responded to a petition for post-conviction relief, sua sponte summary disposition by the court is no longer available, and the State is required to move for summary disposition.
A petitioner is entitled to a fourteen-day window to respond to a request for dismissal of their petition for post-conviction relief.
Fulfilling an open records request is a privileged communication and not subject to liability for defamation.
McClintock v. NDDOT 2021 ND 26 Docket No.: 20200164 Filing Date: 2/18/2021 Case Type: TRANSPORTATION DEPT. Author: McEvers, Lisa K. Fair
Highlight: To facilitate compliance with statutory requirements and the foundational element requiring a test be fairly administered, the state toxicologist has established approved methods for administering chemical breath tests.
The approved method for the Intoxilyzer 8000 requires that the device must be installed by a field inspector prior to use.
State v. Spillum 2021 ND 25 Docket No.: 20200156 Filing Date: 2/18/2021 Case Type: SEXUAL OFFENSE Author: Jensen, Jon J.
Highlight: If a motion for judgment of acquittal was made at trial on specified grounds, and those grounds did not include the claim on appeal, the defendant does not preserve that issue for this Court’s review.
The existence of an arrest warrant does not convert a noncustodial situation into a custodial one.
Davis v. Davis, et al. 2021 ND 24 Docket No.: 20200162 Filing Date: 2/18/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: Crothers, Daniel John
Highlight: Failure to provide a non-moving party the allotted time to respond under N.D.R.Ct. 3.2(a)(2) is a misapplication of law.
Judgment may be overturned under Rule 60(b) where a motion is promptly made, the grounds of the motion satisfy the requirements of Rule 60(b), and an answer that appears to assert a meritorious defense is presented.
Stoddard v. Singer 2021 ND 23 Docket No.: 20200157 Filing Date: 2/18/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: Crothers, Daniel John
District court findings based on assessment of witness credibility are given deference.
Upon the showing of a prima facie case under a psychological parent claim, the movant is entitled to an evidentiary proceeding.
A district court’s decision whether to appoint a parenting investigator is discretionary and will not be reversed absent an abuse of discretion.
The standard of review in determining whether a district court erred in delaying a hearing on an emergency motion under Rule 8.2, N.D.R.Ct., is abuse of discretion.
Estate of Johnson 2021 ND 22 Docket No.: 20200142 Filing Date: 2/18/2021 Case Type: PROBATE - WILLS - TRUSTS Author: Jensen, Jon J.
Highlight: In an informal, unsupervised probate, an order settling all claims of one claimant is final, even if there are pending claims by other claimants.
This Court does not consider questions not presented to the trial court nor arguments inadequately articulated, supported, and briefed.
State v. Youngbird 2021 ND 21 Docket No.: 20200167 Filing Date: 2/18/2021 Case Type: THEFT Author: Tufte, Jerod E.
Highlight: A district court has jurisdiction to amend a criminal judgment to include restitution when the State files the motion to amend within the time limit imposed by the court during sentencing.
When a defendant and the State enter into a plea agreement in which the prosecuting attorney agrees to recommend a particular sentence, that agreement does not resolve restitution and a restitution hearing must be held.
Matter of Hehn 2021 ND 20 Docket No.: 20190353 Filing Date: 2/18/2021 Case Type: CIVIL COMMIT OF SEXUAL PREDATOR Author: McEvers, Lisa K. Fair
Highlight: District court orders denying petition for discharge from civil commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Procedural due process is satisfied by the statutory procedures that provide a person civilly committed as a sexually dangerous individual with pre-commitment and post-commitment safeguards designed to protect the person’s liberty interest as the person proceeds through the treatment process.
Johnson v. Menard 2021 ND 19 Docket No.: 20200126 Filing Date: 2/18/2021 Case Type: PERSONAL INJURY Author: VandeWalle, Gerald W.
Highlight: During trial, a party can make a motion for judgment as a matter of law alleging insufficient evidence under N.D.R.Civ.P. 50(a). However, after the jury returns its verdict the party must renew the motion under N.D.R.Civ.P. 50(b) to preserve the sufficiency of the evidence issue for review on appeal.
After removing a small claims court action to district court, amending the complaint does not preclude an award of attorney’s fees under N.D.C.C. § 27-08.1-04.
A court does not abuse its discretion when it uses an itemized bill to award a party attorney’s fees under N.D.C.C. § 27-08.1-04.
Under N.D.C.C. § 27-08.1-04, a prevailing plaintiff should be awarded reasonable attorney’s fees for the district court proceedings and for a successful appeal.
State v. Watson 2021 ND 18 Docket No.: 20200109 Filing Date: 2/18/2021 Case Type: SEXUAL OFFENSE Author: VandeWalle, Gerald W.
Highlight: A defendant may not withdraw a guilty plea after the court has imposed a sentence unless the defendant proves that withdrawal is necessary to correct a manifest injustice.
Willprecht v. Willprecht 2021 ND 17 Docket No.: 20200195 Filing Date: 2/18/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: Crothers, Daniel John
Highlight: A district court’s use, on remand, of its previous Ruff-Fischer guidelines analysis is not by itself clearly erroneous.
The district court must provide a discernable basis for an award of spousal support.
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