Justia North Dakota Supreme Court Opinion Summaries

Sean Kovalevich appealed district court orders summarily dismissing in part and denying the balance of his application for post-conviction relief. In 2013, a jury found Kovalevich guilty of two counts of gross sexual imposition and one count of corruption of a minor. Kovalevich engaged in sexual acts with a minor female at Canad Inns, a hotel in Grand Forks, North Dakota in February and August of 2012. Kovalevich appealed, and the North Dakota Supreme Court affirmed the criminal judgment. Kovalevich applied for post-conviction relief and moved for a new trial. These were denied by the district court, and the Supreme Court affirmed the district court. In April 2017, he again applied for post-conviction relief. At the evidentiary hearing, the district court summarily disposed of three of the issues, and proceeded only on the claim of newly discovered evidence. Kovalevich argued that a new receipt, which he received from Canad Inns after writing them several letters in April 2017, showed he stayed at Canad Inns in July 2012 ("July receipt") and qualified as newly discovered evidence. The district court disagreed that the evidence was newly discovered and denied Kovalevich post-conviction relief. The Supreme Court determined the July receipt was not inconsistent with the other evidence that the February trip, not the July trip, was when the first instances of sexual assault (the two AA felonies) occurred. Thus, even if the district court admitted the July receipt into evidence, an acquittal would not be likely. "Because we cannot say the weight and quality of this evidence would likely result in acquittal, the district court did not err in denying Kovalevich's application for post-conviction relief on the basis of newly discovered evidence." View "Kovalevich v. North Dakota" on Justia Law

David Ramirez appeals from an order dismissing his retaliatory discharge action against Walmart without prejudice for failure to state a claim upon which relief could be granted. Ramirez was employed by Walmart in Jamestown, North Dakota. On April 18, 2017 Walmart terminated Ramirez's employment. On October 13, 2017 Ramirez sued Walmart under N.D.C.C 34-01-20, which prohibited retaliatory discharges by employers. Ramirez claimed he was discharged from employment in retaliation for complaining to supervisors about other employees' "unfair" terminations. Walmart moved to dismiss the action for failure to state a claim upon which relief can be granted under N.D.R.Civ.P. 12(b)(6), arguing Ramirez failed to plead any facts establishing that his complaints about "serial dismissals" constituted protected activity as defined in the statute. The district court granted the motion on December 1, 2017, and dismissed the action without prejudice. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Ramirez v. Walmart" on Justia Law

Johnston Land Company, LLC, appeals from an order denying its petition to invalidate an alleged lien filed by attorney Sara Sorenson in the form of an affidavit regarding property in Grand Forks County, North Dakota. A dispute over excessive attorney fees led to this case. John Widdel, Jr., represented the trustees of the Donald G. Amundson Trust. In 2013 beneficiaries of the estate petitioned for court determination of attorney fees. The district court ordered Widdell to refund $95,000.00 in attorney fees. During litigation over the fees, Widdel's family's limited liability partnership, Bell Fire LLP, transferred property to a revocable living trust in the name of his wife. In a deposition related to the debt Widdel testified he had essentially no assets, lived rent-free in an apartment owned by the Widdel trust, and drove a car owned by his wife. The Widdel trust sought to sell the property at issue to Johnston, which had offices on the property. Beneficiaries of the Amundson trust filed suit in 2017 regarding other allegedly fraudulent transfers by Widdel to avoid paying the judgment. Ohnstad Twichell, P.C., and Sorenson represented the beneficiaries of Amundson's estate. The district court concluded Sorenson's affidavit was not a nonconsensual common-law lien under N.D.C.C. 35-01-02 because it "does not claim an interest in the subject property; it is merely a statement to the world, akin to a lis pendens, that the referenced property may be pursued to satisfy the Judgment." The district court did not rule on Johnston's additional issues, writing, "In the instant action, this Court has only been asked to make a determination whether the Affidavit of Sara K. Sorenson is a nonconsensual common-law lien, which it has done." The North Dakota Supreme Court affirmed as to the affidavit's nature, reversed as to remaining issues and remanded for additional proceedings. View "Johnston Land Company, LLC v. Sorenson" on Justia Law

Omar Kalmio appealed the district court's judgment denying his application for post-conviction relief. In 2013, Kalmio was convicted of four counts of class AA felony murder. The North Dakota Supreme Court affirmed in part, reversed in part, and remanded the district court's judgment, concluding: (1) the district court did not abuse its discretion in denying Kalmio's fifth and sixth motions to amend his application; (2) the district court did not err by denying Kalmio's claims related to ineffective assistance of trial counsel; and (3) the district court erred by finding Kalmio did not meet the first prong of the Strickland test relating to the representation of his appellate counsel during the direct appeal in his criminal proceedings. View "Kalmio v. North Dakota" on Justia Law

Cass County Social Services ("Cass County") appealed a juvenile court order denying termination of parental rights. B.H., born in June 2016, was the child of S.H. (mother) and C.H. (father). In July 2016, the juvenile court concluded that B.H. was a deprived child; had been subjected to aggravated circumstances due to prenatal exposure to methamphetamine; and ordered that B.H. be removed from the custody of the parents for a period of one year. The court also ordered that a treatment plan be developed in an effort to reunite B.H. with his parents. B.H. was returned to the parental home in October 2016. In March 2017, the mother and father tested positive for methamphetamine. B.H. remained in the home because the father intended to vacate the home and the mother committed to re-engage in treatment services. The father, who had pressured the mother to use drugs prior to the March test, left the home, but soon returned. In October 2017, both mother and child tested positive for methamphetamine. The father stated he could not be given a hair follicle test for methamphetamine because he had removed all his hair. B.H. was removed from the home, and Cass County petitioned for termination of both parents' parental rights. After a trial, the juvenile court denied termination of parental rights because it could not find by clear and convincing evidence that the conditions and causes of the deprivation were likely to continue or would not be remedied. Cass County argues that because the juvenile court found aggravated circumstances, it erred by denying termination of parental rights. The North Dakota Supreme Court determined the juvenile could did not abuse its discretion by denying the petition for termination of parental rights, and accordingly, affirmed the order. View "Interest of B.H." on Justia Law

This case involved two mineral deeds issued by Alice Rozan to Gustave Goldstein and William Murray in 1964. At the time, Rozan owned the following interests in McKenzie Country North Dakota land relevant to this case. Herma Altshule and others ("Altshule defendants") appealed a judgment quieting title in favor of Gerrity Bakken, LLC. Through numerous conveyances over the years, the Altshule defendants, Devereaux Foundation, and Pacific Oaks College and Children's School succeeded to part of the interests of Goldstein and Murray. In 2011 Pacific Oaks College and Children's School and Devereux Foundation granted oil and gas leases to Robert Gerrity, who assigned his interests to various companies culminating in Gerrity Bakken holding the leases. All conveyances and assignments were duly recorded. After production began on the property, Pacific Oaks College and Children's School, Devereux Foundation, and others brought a quiet title action in 2013 naming as defendants the Altshule defendants and others. Gerrity Bakken was not named as a party, nor was Gerrity or any intermediate holder of the leases. The amended complaint also did not include as defendants "'[a]ll other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the complaint.'" Shortly after judgment was entered in the 2013 quiet title action, Gerrity Bakken commenced this second quiet title action against the Altshule defendants, other persons of record, and "all other persons unknown claiming" an interest in the property, seeking an interpretation of the Goldstein and Murray deeds. The district court granted summary judgment in favor of Gerrity Bakken, and arrived at a conclusion different from that reached by the court in the 2013 action. The North Dakota Supreme Court held deeds must be construed as a whole to give effect to each provision, if reasonably possible. The law presumes that differently spelled names refer to the same person when they sound alike or when common usage has by corruption or abbreviation made their pronunciation identical. A quiet title judgment is not binding on any persons having interests in leases and wells who were not made parties to the action. A non-party may maintain a suit to set aside an allegedly damaging judgment if he has an interest which is jeopardized by enforcement of the judgment and the circumstances support a present grant of relief. Because the district court did not err in its construction of the deeds and in quieting title, the Supreme Court affirmed the judgment. View "Gerrity Bakken, LLC v. Oasis Petroleum North America LLC" on Justia Law

In 2004, Raymond Voisine was incarcerated after he pled guilty to gross sexual imposition for acts involving a six-year-old victim. Voisine appealed an order denying his petition for discharge from treatment as a sexually dangerous individual. The North Dakota Supreme Court concluded clear and convincing evidence supported the district court's findings and order, and the court did not misapply the doctrine of res judicata. View "Interest of Voisine" on Justia Law

D.L., mother of G.L., appeals from the juvenile court's order and judgment to continue guardianship of G.L. The mother argues the juvenile court erred in its determination of exceptional circumstances for continuing the guardianship. In 2015, the State filed a petition alleging G.L. (born in 2009) and her sister E.L. (born in 2001) were deprived. The parents, D.L. and T.S. (father), stipulated to a guardianship, placing both girls in the care of the eldest daughter, B.Y. The juvenile court entered an order appointing the eldest daughter as guardian and found both children deprived under N.D.C.C. 27-20-02(8)(a). The guardianship was to remain in place until the children turned eighteen. In late 2016, the mother wrote a letter to the juvenile court asking for a review of the guardianship. Two weeks later the mother wrote another letter stating the guardianship continued to be in G.L.'s best interests. Shortly after, the mother again changed her mind and asked for a review hearing. The juvenile court treated the communications as a motion to terminate the guardianship and on July 26-27 and August 24, 2017 held a hearing. At the start of the hearing the mother abandoned her request to review her middle daughter's guardianship. The juvenile court found the mother demonstrated a change in circumstances by stabilizing her living situation, obtaining full-time employment, effectively dealing with addiction, and improving her mental and emotional health. The juvenile court found the impediments creating the deprivation had been removed. The juvenile court then shifted the burden of proof to the guardian to establish by preponderance of the evidence that continuation of the guardianship remains in the best interest of the child. The juvenile court continued the guardianship, ordered the guardian's husband added as co-guardian, and gave the guardian authority to establish a visitation schedule with input from G.L.'s therapist and guardian ad litem. The mother appealed the order and judgment. The North Dakota Supreme Court reversed and remanded, finding the juvenile court failed to find exceptional circumstances and thus misapplied the law. The juvenile court also impermissibly delegated visitation scheduling responsibilities. View "Interest of G.L." on Justia Law

Steven and Linda Bickler commenced an action against Happy House Movers. The Bicklers had contracted with Happy House Movers to raise their house eight feet to protect the house against rising waters at Rice Lake. While Happy House Movers had the house resting on supports above its original position, the house fell, causing significant structural damage. In August 2016, the Bicklers moved for a default judgment. In September 2016, Michael Knoke, an employee of Happy House Movers, moved for an extension of time to file an answer. Knoke argued Happy House Movers made an appearance, indicating it could not find an attorney and requested a hearing. The motion also notified the Bicklers that Happy House Movers was contesting the motion for default judgment. Knoke filed an answer to the complaint he prepared himself. The district court ordered Knoke's answer be stricken from the record sua sponte, because Happy House Movers is a separate entity requiring it to be represented in court by a person licensed in law. The court extended Happy House Movers' deadline to properly file an answer and indicated it would review the motion for default judgment shortly thereafter. On December 15, 2016, the court entered an order for default judgment, concluding Happy House Movers failed to properly respond to the summons and complaint. Based on its review of the record and pleadings, the court awarded the Bicklers $251,711.68, and entered a judgment indicating the same. Happy House appealed the district court order denying their motion to vacate the default judgment and granting Bickler's motion to strike the supporting affidavits. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's order. View "Bickler v. Happy House Movers, L.L.P." on Justia Law

Walter Grant, Jr. appealed his convictions after pleading guilty to gross sexual imposition, burglary, aggravated assault, and terrorizing. He argued the district court committed obvious error by failing to determine whether he was competent to proceed; he did not argue that the court erred by failing to hold a competency hearing or that he was incompetent when he pled guilty. Grant argued N.D.C.C. ch. 12.1-04 required the district court make a determination about competency if doubt existed about a defendant's fitness. Because the court ordered an examination and ordered he be detained at the state hospital for up to thirty days to complete the examination, Grant contended there was doubt about his fitness to proceed, no presumption he was competent, and the court was required to find by a preponderance of the evidence that he was competent and fit to proceed. To the extent Grant argued his constitutional due process rights were violated because the court failed to determine whether he was competent, the North Dakota Supreme Court concluded his argument failed: Grant claimed the district court implicitly found reasonable doubt about his competency because it ordered his examination and detention at the state hospital. "Although N.D.C.C. 12.1-04-06 authorizes a court to order a defendant's detention for purposes of an examination whenever there is reason to doubt the defendant's fitness to proceed ... a trial court's decision to grant a motion for a psychological examination alone was not sufficient to raise the required reasonable doubt about the defendant's competence for purposes of a due process violation, regardless of the effect granting the motion may have under state law." In this case, an examiner filed a report containing findings that Grant was competent to proceed and that there was no reason to believe Grant lacked the capacity to understand the proceedings against him or to assist in his defense. Grant did not object to the report or otherwise contest the examiner's findings. No clear statutory provisions or case law required the district court to make a determination about Grant's competency under these circumstances. The Court determined Grant did not show the trial court's failure to make a finding about his competency after the psychological evaluation report was filed was a clear deviation from statutory or case law. The district court did not commit obvious error by failing to fully adjudicate Grant's competency before accepting his guilty pleas. View "North Dakota v. Grant" on Justia Law