New opinions: June 3
Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable.
Under N.D.R.Ct. 3.2(a)(3), a court may decide routine motions on briefs without holding a formal hearing, unless a party requests one.
An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by the party’s agent thereunto authorized by writing.
Under N.D.R.Civ.P. 12(f), the district court has discretion to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in a pleading.
A court’s award of attorney’s fees and costs under N.D.C.C. § 28-26-31 is discretionary but must be based on evidence that the pleadings were made without reasonable cause and not in good faith, and are found to be untrue.
State v. Black 2021 ND 103 Docket No.: 20200256 Filing Date: 6/3/2021 Case Type: MISC. STATUTORY OFFENSE (FELONY) Author: Jensen, Jon J.
Highlight: When reviewing a district court’s finding of exigent circumstances, the findings of fact are reviewed giving due weight to the inferences drawn from those facts by judges and law enforcement. A de novo review is applied to the ultimate determination of whether the facts constitute exigent circumstances.
Issues which are not raised before the district court, including constitutional issues, will not be considered for the first time on appeal.
Probable cause to search exists if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.
When a defendant alleges false or misleading statements have been made in the application for a search warrant, the issue is addressed under the standard set forth in Franks v. Delaware, 438 U.S. 154 (1978).
State v. Coleman 2021 ND 102 Docket No.: 20210040 Filing Date: 6/3/2021 Case Type: MISC. STATUTORY OFFENSE (FELONY) Author: Per Curiam
Highlight: An order deferring imposition of sentence entered after a jury verdict is affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Howard 2021 ND 101 Docket No.: 20200300 Filing Date: 6/3/2021 Case Type: MISC. STATUTORY OFFENSE (FELONY) Author: VandeWalle, Gerald W.
Highlight: An order dismissing a complaint, information, indictment, or any count thereof, with or without prejudice, is appealable under N.D.C.C. § 29-28-07(1).
Timing may be used as evidence of a link between a defendant and an act.
Highlight: Under N.D.R.Civ.P. 54(b), if an action presents more than one claim for relief, or if multiple parties are involved, the district court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
A judgment or order of eviction is not final unless all of the claims brought pursuant to N.D.C.C. ch. 47-32 are adjudicated, or the district court certifies the judgment as final under N.D.R.Civ.P. 54(b).
Highlight: A N.D.R.Civ.P. 54(b) certification of judgment may be appropriate if the certified judgment completely decides an entire claim.
Summary judgment is only appropriate if the nonmoving party has had a full opportunity to conduct discovery to develop information essential to its position.
A good faith purchaser must acquire rights without actual or constructive notice of another’s rights.
Highlight: The principle of law of the case requires that the same legal question previously determined on appeal will not be decided differently on a second appeal in the same case where the facts remain the same.
A district court’s findings of fact on unjust enrichment will not be reversed unless clearly erroneous.
A third party’s participation in a transaction between others through which a benefit is obtained is a fact to be considered by the court in determining whether a causal connection existed between an enrichment and impoverishment. Unjust enrichment is an alternative claim, and a legal claim which has yet to fail or succeed does not preclude a plaintiff from also asserting an unjust enrichment claim.
A district court does not abuse its discretion in awarding costs for depositions taken in a prior case where use of those depositions prevented duplicative depositions and costs.
WSI v. Felan, et al. 2021 ND 97 Docket No.: 20200354 Filing Date: 6/3/2021 Case Type: ADMINISTRATIVE PROCEEDING Author: Crothers, Daniel John
Highlight: Section 65-01-02(11)(a)(3), N.D.C.C., requires claimants to prove a compensable heart-related injury by showing with reasonable medical certainty their employment caused the injury and unusual stress was at least 50% of the cause of the injury.
Objective medical evidence may not be established solely by deductive reasoning.
Mistic v. Mistic 2021 ND 96 Docket No.: 20200313 Filing Date: 6/3/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: Per Curiam
Highlight: An amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Highlight: If the obligation a lien secures is satisfied, the lien is extinguished and no longer valid.
An award of attorney fees and costs under N.D.C.C. § 35-24-19 requires a favorable judgment in an action brought to enforce a lien pursuant to N.D.C.C. ch. 35-24.
A claim for enforcement of a statutory lien and an underlying breach of contract claim are separate and distinct.
Dixon v. Dixon 2021 ND 94 Docket No.: 20210070 Filing Date: 6/3/2021 Case Type: PROBATE - WILLS - TRUSTS Author: Crothers, Daniel John
Highlight: Appeal dismissed in supervised administration of a trust due to lack of a final order or judgment, or a N.D.R.Civ.P. P. 54(b) certification.
State v. Mitchell 2021 ND 93 Docket No.: 20200306 Filing Date: 6/3/2021 Case Type: SEXUAL OFFENSE Author: Tufte, Jerod E.
Highlight: An order dismissing a criminal complaint, information, or indictment is the equivalent of an order quashing an information or indictment and is therefore appealable under the statute. The State may either appeal an adverse ruling on probable cause or issue a new complaint upon the offer of additional evidence or other good cause.
Because a preliminary hearing is not a trial, the finding of probable cause may be based on hearsay evidence and evidence that would be inadmissible at the trial. The State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but rather need only produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty.
