New Opinions: July 5
East Central Water District v. City of Grand Forks, et al.
Docket No.: 20230389
Filing Date: 7/5/2024
Case Type: Certified Question - Civil - Civil
Author: McEvers, Lisa K. Fair
Highlight: The language "invalid and unenforceable" in N.D.C.C. § 6-09.4-22(2) means an agreement made without the public lending authority as a party is void ab initio.
Dorchester Minerals v. Hess Bakken Investments II
Docket No.: 20230326
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan
Highlight: A six-year statute of limitations applies to an unleased mineral interest owner's statutory claim for eighteen percent interest on unpaid royalties.
Even if the discovery rule applied, summary judgment is appropriate when the uncontroverted facts establish that a reasonable person would have been placed on notice of a potential claim.
For deciding who is entitled to statutory attorney's fees and costs, a prevailing party is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue.
State v. Lane
Docket No.: 20230401
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Assault
Author: Per Curiam
Highlight: A criminal judgment entered after a jury found the defendant guilty of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Equinor Energy v. State
Docket No.: 20230225
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Tax Related
Author: Jensen, Jon J.
Highlight: The North Dakota Tax Commissioner's longstanding interpretation of section 57-39.204.5(1), N.D.C.C., is not arbitrary or unjust and does not contradict the plain and ordinary meaning of that statute.
Oil and gas separators merely sort the "well stream" into its three component parts: water, oil, and gas, and are not exempt from sales tax under section 57-39.2-04.5(1), N.D.C.C.
Hovet, et al. v. Dahl, et al.
Docket No.: 20230322
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.
Highlight: To satisfy the elements for adverse possession, the?acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. When the claim of exclusive right is not founded upon a written instrument, the premises actually occupied and no other must be deemed to have been held adversely.
Mowing and maintenance are not unmistakably hostile uses of land and do not support a claim of title by adverse possession.
A new encroachment must meet the statutory period to extend the adverse possession to new land.
The doctrine of acquiescence applies when parties mutually mistake a boundary as a property line.
Watts v. State
Docket No.: 20240011
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam
Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
McCay v. McCay, et al.
Docket No.: 20230360
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.
Highlight: A district court's findings on a material change in circumstances, best interest factors (a), (b), (c), and (d), the findings supporting relocation, and the findings related to the new parenting schedule were not clearly erroneous.
Mwinyi v. State
Docket No.: 20240003
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.
Highlight: The State must put the applicant on notice by serving and filing a notice of motion with any motion for summary dismissal or summary disposition. The State does not violate the rules of civil procedure by combining its answer to the postconviction application with the brief in support of its motion.
Ordinarily, summary disposition of an ineffective assistance of counsel claim should not be granted without an evidentiary hearing, but if the State moves for summary disposition, pointing out the absence of supporting evidence, then the burden shifts to the applicant to provide competent admissible evidence. If an applicant fails to respond with evidence, this Court will affirm denial of postconviction relief.
There is no constitutional right to an attorney for postconviction proceedings.
Fahey, et al. v. Cook, et al.
Docket No.: 20230267
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Malpractice
Author: Bahr, Douglas Alan
Highlight: A party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Issues of fact become issues of law when a reasonable person could reach only one conclusion from the facts.
The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty.
The party asserting collateral estoppel bars relitigation of an issue in a new proceeding has the burden of establishing the doctrine applies. A legal malpractice action generally does not litigate the same issues as the underlying civil case in which the malpractice allegedly occurred.
Statutes are construed as a whole, harmonized to give meaning to related provisions, and interpreted to give effect to all of their provisions. When a uniform statute is interpreted, we construe it to effectuate its general purpose to make the law uniform in the states which enacted it.
State v. Smith (consolidated w/20240005)
Docket No.: 20240004
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.
Highlight: This evidence was sufficient to support conviction on six counts of aggravated assault.
Felonious restraint is not a lesser included offense of forcible gross sexual imposition.
Aggravated assault is not a lesser included offense of forcible gross sexual imposition.
State v. Smith (consolidated w/20240004)
Docket No.: 20240005
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.
Highlight: This evidence was sufficient to support conviction on six counts of aggravated assault.
Felonious restraint is not a lesser included offense of forcible gross sexual imposition.
Aggravated assault is not a lesser included offense of forcible gross sexual imposition.
Belyeu v. State
Docket No.: 20230390
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair
Highlight: A petition for postconviction relief seeking to withdraw the petitioner's guilty pleas is reviewed under N.D.R.Crim.P. 11(d), and the district court considers whether relief is necessary to correct a manifest injustice.
A petitioner seeking to withdraw his guilty plea alleging ineffective assistance of counsel must surmount the two-prong test set out by Strickland v. Washington, 466 U.S. 668 (1984).
To satisfy the first prong under Strickland, a petitioner must show his counsel's representation fell below an objective standard of reasonableness. To satisfy the second prong, a petitioner must establish there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. The applicant must also show the district court that the decision to not plead guilty would have been "rational under the circumstances."
Postconviction relief is available under N.D.C.C. § 29-32.1-01(1)(e) when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."
A petition alleging newly discovered evidence following a guilty plea filed within the two-year statute of limitations is reviewed using analysis similar to a motion for new trial under N.D.R.Crim.P. 33(b).
Interest of H.J.J.N.
Docket No.: 20240060
Filing Date: 7/5/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam
Highlight: An amended judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Fisher v. NDDOT
Docket No.: 20240046
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.
Highlight: The issuance of a temporary operator's permit is a basic and mandatory requirement of the statute. To issue the temporary operator's permit, a law enforcement officer must complete the Report and Notice containing the temporary operator's permit and officially distribute it, but service of the permit is not required.
