New opinions: Nov. 10
Kaspari v. Kaspari 2022 ND 204
Docket No.: 20220141
Filing Date: 11/10/2022
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: Jensen, Jon J.
Highlight: A district court may not order an award of spousal support that exceeds the court’s own finding of need for a recipient spouse without specifically identifying and quantifying those additional expenses.
A district court may not order an award of spousal support based upon a supporting spouse’s post-separation work schedule that increases their weekly hours by double what is typically associated with full-time employment without specific findings as to why such a measurement would be appropriate.
A district court may not order an award of spousal support based upon cash transfers and expenses paid on behalf of adult children without specific findings as to why those costs should be included in the award.
Buchholz v. Overboe 2022 ND 203
Docket No.: 20220113
Filing Date: 11/10/2022
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: Crothers, Daniel John
Highlight: A divorce based on irreconcilable difference applies to both parties. An argument implying the judgment does not apply to both parties is “nonsensical and frivolous.”
A divorce judgment must have remarriage language pursuant to N.D.C.C. § 14-05-02.
A court’s valuations of martial property within the range of evidence presented are not clearly erroneous.
A court’s distribution of martial property is clearly erroneous if it is made based on incorrect law, there was no evidenece to support the distribution, or after reviewing all the evidence we are left with a definite and firm conviction a mistake has been made.
A district court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter on motion by a party or on its own.
A district court may amend its findings under N.D.R.Civ.P. 52(b).
Highlight: A district court may impose sanctions if litigation was brought for an improper and unjust purpose under N.D.R.Civ.P. 11(b)(1), or lacked evidentiary support under N.D.R.Civ.P. 11(b)(3), even if a portion of the litigation had merit under N.D.R.Civ.P. 11(b)(2).
A district court may impose sanctions even if it denied a motion to dismiss by a party opposing the litigation, and even if it held an evidentiary hearing if the litigation was brought for an improper and unjust purpose under N.D.R.Civ.P. 11(b)(1), or lacked evidentiary support under N.D.R.Civ.P. 11(b)(3).
State v. Davis-Heinze 2022 ND 201
Docket No.: 20220049
Filing Date: 11/10/2022
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Tufte, Jerod E.
Highlight: A trial court may avoid a violation of the public trial right by summarizing on the record what was discussed at the conference, the conference must have occurred in open court, and both parties to the action must have an opportunity to object to the accuracy of the court’s summary or supplement the record as to the off-the-record events.
The potential for harm exists whenever one person points a firearm at another individual.
Interest of E.H. 2022 ND 200
Docket No.: 20220272
Filing Date: 11/10/2022
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Per Curiam
Highlight: Order affirming juvenile court findings of fact and orders of the judicial referee terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).
State v. Ismail 2022 ND 199
Docket No.: 20220092
Filing Date: 11/10/2022
Case Type: DRUGS/CONTRABAND
Author: Crothers, Daniel John
Highlight: Criminal judgments of possession and delivery of a controlled substance are affirmed under N.D.R.Ev. 614(b) and sufficient weight of evidence and sufficiency of evidence.
State v. Archambault 2022 ND 198
Docket No.: 20220107
Filing Date: 11/10/2022
Case Type: SEXUAL OFFENSE
Author: Crothers, Daniel John
Highlight: Upon a defendant’s written request, a prosecuting attorney must disclose all documents and objects material to the defense for use in preparation for trial.
Parties have a continuing duty to supplement criminal discovery responses.
A district court should impose the least severe sanction that will rectify the prejudice, if any, to the opposing party.
A district court has broad discretion in ruling on a motion for mistrial.
State v. Sapa 2022 ND 197
Docket No.: 20220072
Filing Date: 11/10/2022
Case Type: SEXUAL OFFENSE
Author: Crothers, Daniel John
Highlight: The crime of gross sexual imposition with a child under the age of fifteen is a strict liability offense.
Statutes carry a strong presumption of constitutionality. A statute is not unconstitutionally vague if the challenged language, when measured by common understanding and practice, gives adequate warning of the prohibited conduct and marks distinct boundaries for fair administration of the law.
State v. Peters 2022 ND 196
Docket No.: 20220074
Filing Date: 11/10/2022
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Tufte, Jerod E.
Highlight: A trial court violates a criminal defendant’s speedy trial right only when four factors, in sum, weigh against the state: the length of the delay, reasons for the delay, proper assertion of the right, and actual prejudice to the accused.
Rule 403 gives a trial court discretion to exclude probative evidence, and this Court will reverse a district court’s decision to admit or exclude evidence only for abuse of discretion.
When a party fails to move for a curative instruction, this Court reviews only for obvious error, if and only in rare circumstances when the defendant has suffered a serious injustice.
State v. Lane 2022 ND 195
Docket No.: 20220164
Filing Date: 11/10/2022
Case Type: DUI/DUS
Author: Per Curiam
Highlight: When this Court views evidence admitted at trial in a light most favorable to a verdict, and finds sufficient evidence exists that would allow a jury to draw a reasonable inference in favor of conviction, a criminal judgment must be affirmed.
Interest of K.L.B. 2022 ND 194
Docket No.: 20220177
Filing Date: 11/10/2022
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Per Curiam
Highlight: Dismissal of motion requesting termination of mother’s parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(8).
Ordahl v. Lykken, et al. 2022 ND 193
Docket No.: 20220115
Filing Date: 11/10/2022
Case Type: CONTRACTS
Author: Jensen, Jon J.
Highlight: Words are given their ordinary and popular meaning unless the words are used in a technical sense or given a special meaning.
The word “may” will only be construed as “must” where the content of the subject matter compels that construction.
Specific performance requires parties to perform their contractual promises, and therefore, is inconsistent with termination of the contract.
Specific performance is not an absolute right and equitable principles will be followed to determine if it is appropriate.
Williamson v. State 2022 ND 192
Docket No.: 20220186
Filing Date: 11/10/2022
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam
Highlight: A district court order denying an application for post-conviction relief is summarily reversed under N.D.R.App.P. 35.1(b).
Highlight: This Court’s authority to issue supervisory writs is discretionary and is used only to rectify errors and prevent injustice in extraordinary cases where no adequate alternative remedy exists.
Whether the attorney-client privilege is waived depends on the circumstances of each case.
The discovery rules relating to work product do not apply to discovery of an expert’s information.
Disclosing a client or client representative as an expert witness is not a per se waiver of any privileges.
Addai v. State 2022 ND 190
Docket No.: 20220044
Filing Date: 11/10/2022
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.
Highlight: A defendant’s ability to waive their right to a public trial knowingly, intelligently, and voluntarily, as declared in State v. Martinez, 2021 ND 42, ¶ 13, 956 N.W.2d 772, is not retroactive in application to previous cases as it is neither a substantive rule nor a rule that qualifies as watershed implicating the fundamental fairness and accuracy of a criminal proceeding.
Kuntz v. State 2022 ND 189
Docket No.: 20220053
Filing Date: 11/10/2022
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.
Highlight: Whether a defendant is competent to enter a plea is a question of fact, and a district court’s finding on the issue will not be set aside unless clearly erroneous.
Conflicts in testimony are resolved in favor of affirmance, as we recognize the district court is in a superior position to assess credibility of witnesses and weigh the evidence.
In a post-conviction relief proceeding to withdraw a guilty plea, the defendant must prove a manifest injustice requires withdrawal of a guilty plea.
Kratz v. State 2022 ND 188
Docket No.: 20220087
Filing Date: 11/10/2022
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.
Highlight: A district court does not abuse its discretion when it dismisses an application for post-conviction relief where the applicant failed to provide any evidentiary support for the claims.
Highlight: Rule 43 of the North Dakota Rules of Appellate Procedure is intended to provide a mechanism for substitution of a party who dies after proceedings in the district court have concluded. Under Rule 43(a)(3), an attorney may file a notice of appeal on behalf of a decedent if he or she was “entitled to appeal” before dying. If a party dies during proceedings in the district court—i.e., before the party is entitled to appeal, North Dakota Rule of Civil Procedure 25 applies.
Goff v. NDDOT 2022 ND 186
Docket No.: 20220119
Filing Date: 11/10/2022
Case Type: TRANSPORTATION DEPT.
Author: Tufte, Jerod E.
Highlight: The public does not have a right of access to a private parking lot for vehicular use when the lot is marked “private property” and a city ordinance makes such use unlawful when so marked.
The district court determines in the first instance whether an agency acted without substantial justification requiring an award of costs and attorney’s fees to the prevailing party.
Richardson v. Richardson, et al. 2022 ND 185
Docket No.: 20220163
Filing Date: 11/10/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Jensen, Jon J.
Highlight: A district court order denying a motion to modify residential responsibility and denying a motion to reconsider is summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (4).
State v. Vickerman 2022 ND 184
Docket No.: 20220085
Filing Date: 11/10/2022
Case Type: HOMICIDE
Author: Jensen, Jon J.
Highlight: A hearsay statement may be admitted as an exception if it illustrates the declarant’s state of mind, is relevant to the criminal act in question, and shows a defendant’s motive to engage in that act.
A life sentence with parole must include a calculation of the defendant’s life expectancy using the mandated mortality table.
Highlight: A person bringing a claim against the State 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.
Civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another and an overt act that results in damages. A civil conspiracy generally requires the underlying act itself to be actionable as a tort claim.
A physical taking is where the government requires an owner to suffer a permanent physical invasion of her property. Total regulatory takings occur when regulations completely deprive an owner of all economically beneficial use of her property.
Unjust enrichment requires an enrichment, an impoverishment, a connection between the enrichment and the impoverishment, an absence of justification for the enrichment and impoverishment, and an absence of remedy provided by law.
Section 1983, 42 U.S.C., provides a cause of action against a state actor depriving a citizen of a constitutional right.
