Latest 18 Cases: Three Aces Properties v. United Rentals (Business Law), Interest of Buller (Civil Procedure), Discover Bank v. Hornbacher (Civil ...

Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome?

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. Professor Grossman dissects the op-ed, penned by a retired lecturer at Northwestern University, and explains the deep and pervasive sexism behind it.

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Three Aces Properties v. United Rentals

Citation: 2020 ND 305

Opinion Date: December 17, 2020

Judge: Daniel J. Crothers

Areas of Law: Business Law, Contracts, Real Estate & Property Law

Three Aces Properties LLC appealed, and United Rentals (North America), Inc., cross-appealed a judgment and orders denying their motions to amend the judgment. In 2017, Three Aces sued United Rentals for breach of contract and waste. Three Aces claimed United Rentals breached the lease by failing to pay rent after it vacated the property, failing to maintain and repair the parking area, and failing to maintain and repair the premises. Three Aces alleged United Rentals’ use of the premises resulted in destruction of the asphalt parking area and damages to the building and other areas of the property. Three Aces claimed United Rentals attempted to repair the parking area by replacing the asphalt paving with scoria, the City of Williston notified the parties that replacement of the asphalt with scoria violated zoning ordinances, and the parties disagreed about which party had an obligation to repair the parking area. Three Aces argued the district court erred by failing to award it damages for its breach of contract claims. United Rentals argued the court erred in dismissing its breach of contract and constructive eviction claim. Finding no reversible error, the North Dakota Supreme Court affirmed the district court.

Interest of Buller

Citation: 2020 ND 317

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law

David Buller appealed a district court order granting a petition for commitment of a sexually dangerous individual. On January 23, 2020, the State filed a petition for civil commitment of Buller as a sexually dangerous individual. On January 28, 2020, following a preliminary hearing, the district court entered an order of dismissal of the petition after finding the State failed to establish Buller had a condition that was manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction. On January 30, 2020, sua sponte and without notice to the parties, the court issued an order vacating the prior order dismissing the petition and finding probable cause was established to commit Buller. On February 19, 2020, Buller filed a petition for writ of mandamus to this Court. This Court exercised supervisory jurisdiction and vacated the district court’s January 30, 2020 order after considering the procedural irregularity of the second order issued sua sponte and without notice to the parties. On March 6, 2020, the State filed a new petition and started a new proceeding seeking commitment of Buller as a sexually dangerous individual. Buller requested dismissal of the new petition asserting res judicata precluded a second petition because the January 28, 2020 order dismissing the petition following the preliminary hearing was not vacated in the first proceeding. After completion of an evaluation in which two doctors reached an opinion Buller met the criteria of a sexually dangerous individual, the district court again issued an order granting the petition seeking commitment. Buller argued the proceedings in this case were bared by res judicata and the order for commitment was not supported by clear and convincing evidence. Finding no reversible error, the North Dakota Supreme Court affirmed.

Discover Bank v. Hornbacher

Citation: 2020 ND 307

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Consumer Law, Contracts

Discover Bank (Discover) appealed a district court order denying its motion for judgment and dismissing the case. Discover sued Bryan Hornbacher, alleging he was indebted to it on a credit card debt for $14,695.13. The parties entered into a stipulation and consent. The stipulation provided an acknowledgment by Hornbacher that he had been served with the summons and complaint and an admission that he had no defenses to the allegations in the complaint. Hornbacher consented to entry of judgment in the amount of $14,695.13 in exchange for Discover’s agreement to accept $10,080.00 payable over three years as full satisfaction of the judgment, and to forego execution on the judgment unless there were a default in the agreed-upon payment schedule. In its order, the trial court found that “[p]laintiff files a stipulation stating it will not move for judgment unless the terms of the agreement are [breached].” The North Dakota Supreme Court found this was an error, as was the trial court's focus on the lack of default under the stipulation having occurred: "Discover was not moving to execute the judgment, but rather was, by affidavit, moving for judgment to be entered against Hornbacher pursuant to the stipulation. The court misread the stipulation and misapplied the law." Because the plain language of the stipulation provided for judgment against Hornbacher to be entered, the Supreme Court reversed and remanded for entry of judgment.

Curtiss v. North Dakota

Citation: 2020 ND 303

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Criminal Law

Spencer Curtiss appealed the dismissal of his declaratory judgment action seeking relief from a criminal judgment and the district court’s subsequent order denying his motion for reconsideration. In 2011, Curtiss was convicted and sentenced to 25 years of imprisonment with all but 15 years suspended for Gross Sexual Imposition (GSI) with a minor. Curtiss has previously initiated a direct appeal of his conviction in the criminal case, filed two petitions for post-conviction relief under the Uniform Postconviction Procedure Act, moved for relief under N.D.R.Civ.P. 60, and moved to amend his probation. In February 2020, Curtiss filed a complaint in district court seeking a declaratory judgment, a vacation of the sex offender registration requirements of his sentence, and a removal of his probation period. Curtiss asserted a variety of claims challenging the underlying GSI conviction. The court dismissed the action under N.D.R.Civ.P. 12(b)(6) after finding the current action to be an impermissible collateral attack on the criminal judgment. Curtiss subsequently filed a motion for reconsideration of the dismissal of his action. The court denied the motion. On appeal, Curtiss argued the district court erred in dismissing his action and denying his motion to reconsider. Finding no reversible error, the North Dakota Supreme Court affirmed dismissal.

Sather v. Sather

Citation: 2020 ND 306

Opinion Date: December 17, 2020

Judge: Crothers

Areas of Law: Civil Procedure, Family Law

Amber Sather appealed a trial court judgment in hers and Adam Sather's divorce, a judgment that included a parenting plan for the parties’ children. She argued the district court erred by failing to include certain parenting plan provisions in the judgment. The North Dakota Supreme Court found section 14-09-30, N.D.C.C., required all parenting plans, including plans stipulated to and adopted by the court, to contain provisions regarding decision-making responsibility, dispute resolution, transportation and exchanges, and summer parenting time; or an explanation as to why the provisions were not included. The parenting plan here did not include these provisions or explain why they were not included. Thus, the Supreme Court concluded the district court erred by adopting the parties’ parenting plan without either all of the information in N.D.C.C. section 14-09-30(2) being included, or after considering the best interests of the children as required by N.D.C.C. section 14-09- 30(1), providing its own findings regarding the same. Judgment was reversed and the matter remanded for further proceedings.

Rentz v. BNSF Railway Co.

Citation: 2020 ND 301

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Personal Injury, Transportation Law

BNSF Railway Co. (“BNSF”) appealed a jury verdict and money judgment entered in favor of David Rentz. In July 2012, a tractor-trailer driven by Rentz was struck by a train operated by BNSF and train engineer, Reinaldo Guitian, Jr. The collision occurred at a public railroad grade crossing. In December 2015, Rentz sued BNSF and Guitian for personal injuries sustained during the vehicle/train collision. Guitian was subsequently dismissed as a named defendant in the action. Trial was held over eleven days in January 2019. Guitian was designated as BNSF’s party representative under N.D.R.Ev. 615 and was not sequestered from the courtroom. The jury returned a verdict finding Rentz 15% at fault and BNSF 85% at fault. A money judgment was entered in favor of Rentz. BNSF asserted it was denied a fair trial because: (1) BNSF’s designated representative at trial was allowed to be questioned beyond the scope of his knowledge; (2) video and audio clips taken from discovery depositions of BNSF’s designated representatives were improperly played during opening and closing arguments; (3) BNSF’s internal operating procedures were improperly used to modify the standard of care; and (4) opinion testimony of the investigating highway patrol trooper was excluded from evidence. Because the North Dakota Supreme Court concluded the questioning of BNSF’s representative at trial exceeded his personal knowledge and affected a substantial right, judgment was reversed and the matter remanded for a new trial.

Kuntz v. Leiss, et al.

Citation: 2020 ND 300

Opinion Date: December 17, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Real Estate & Property Law

Riley Kuntz appealed the district court’s default judgment entered in his favor. Kuntz sued Ashlynn Leiss and Joseph Westbrook for trespass and theft of his cat trap. Neither Leiss nor Westbrook answered the complaint or otherwise appeared. Following an evidentiary hearing, the district court granted default judgment in favor of Kuntz. The court found a trespass and conversion of the cat trap had occurred. The court awarded Kuntz a money judgment for conversion of the cat trap, but found he did not suffer any actual damages as a result of the trespass. Kuntz argues the district court erred by denying his damages for trespass. Finding no reversible error, the North Dakota Supreme Court affirmed.

Twete v. Mullin, et al.

Citation: 2020 ND 311

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure

This was the second appeal involving this matter. In the first appeal, the North Dakota Supreme Court affirmed the jury’s finding that there was a confidential relationship between Richard Twete and Clinton Mullin, and that Mullin committed a breach of trust, but the Court reversed an attorney’s fees award to Twete against Mullin and remanded “for further consideration and explanation of the legal basis authorizing the award of attorney fees in this case.” On remand, the parties briefed and argued whether the district court should award Twete his attorney’s fees. In March of 2020, the district court again granted Twete’s attorney’s fees request. Mullin appealed that order, arguing the district court abused its discretion through misapplication and misinterpretation of the law. To this, the Supreme Court agreed: the district court misinterpreted the law and abused its discretion in awarding attorney’s fees. Judgment was reversed and the matter remanded again for further proceedings.

Atkins v. North Dakota

Citation: 2020 ND 316

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Cody Atkins appealed a district court order denying his motion to vacate a criminal judgment and withdraw his plea of guilty. In June 2015, Atkins pled guilty to violating an order prohibiting contact, a class A misdemeanor. Atkins did not appeal the criminal judgment entered following his guilty plea. On appeal, Atkins’ counsel sought permission to file an “Anders” brief or, in the alternative, permission to withdraw as Atkins’ counsel. The North Dakota Supreme Court denied the request to file an Anders brief, granted the motion to withdraw as Atkins’ counsel, and ordered a schedule for additional filings. The Court has held previously that the procedures set forth in "Anders" did not apply to North Dakota law because, under the state constitution and statutes, an appeal was a matter of right which eliminated the need for an Anders proceeding. In light of the representation of Atkins’ defense counsel that the appeal lacked merit and Atkins’ own request for new counsel, the Court granted the request to withdraw as counsel. Atkins was given time to submit a request for the appointment of appellate counsel.

City of Fargo v. Hofer

Citation: 2020 ND 299

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Simon Hofer appealed after he conditionally pled guilty to driving under the influence. He argued the district court was required to suppress the results of the urine test because the implied consent advisory was not substantively complete and the search warrant did not cure the defect in the advisory. The North Dakota Supreme Court reversed and remanded, concluding the implied consent advisory given in this case did not convey all substantive information required by statute, and as a result the test result was not admissible in a criminal proceeding.

Everett v. North Dakota

Citation: 2020 ND 304

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

In 2007 a jury found Timler Everett guilty of gross sexual imposition. Everett appealed a district court order denying his petition for postconviction relief based on allegedly newly discovered evidence. Everett argued the trial court erred in denying his petition and dismissing his related motions. The North Dakota Supreme Court treated the district court’s current order as denying Everett leave to file additional motions. Orders denying leave to file were not appealable. Therefore, the Court dismissed Everett’s appeal.

North Dakota v. Bolme

Citation: 2020 ND 255

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Trevor Bolme appealed after entering a conditional guilty plea to possession of methamphetamine and unlawful possession of drug paraphernalia. Bolme argued the district court erred in denying his motion to suppress because law enforcement lacked reasonable suspicion to initiate a traffic stop based on a cracked windshield, and lacked probable cause to search his vehicle based on the odor of marijuana. After review, the North Dakota Supreme Court concluded law enforcement had reasonable and articulable suspicion to stop and probable cause to conduct the search. Therefore, the Court affirmed the criminal judgment of the district court.

North Dakota v. Hirschkorn

Citation: 2020 ND 315

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

John Hirschkorn was convicted by jury of aggravated assault and driving under the influence of alcohol. The charges arose from an altercation in a McLean County, North Dakota bar that was captured on video. Hirschkorn was involved in a bar fight with another individual, resulting in Hirschkorn striking that individual in the face with a beer bottle and causing a serious cut to the individual’s face. Hirschkorn also sustained several injuries, including a blow to his head. After the fight concluded, Hirschkorn left the bar and drove away from the scene. Law enforcement officers arrived at the bar, and the individual was taken to the hospital. Officers subsequently located Hirschkorn driving his vehicle. He was stopped and ultimately arrested for driving under the influence. Because Hirschkorn was taken to the hospital to be medically cleared before testing, it was more than two hours after he had last driven that an Intoxilyzer test established his blood alcohol concentration to be 0.139 percent, over the legal limit. Before jury selection, Hirschkorn made a motion in limine requesting the court to exclude a video from the bar showing at least a portion of the fight. The court subsequently received the video into evidence at trial over his objection. The court also allowed limited testimony at trial from a neuropsychologist called as an expert witness by Hirschkorn to discuss symptoms of traumatic brain injury, to show Hirschkorn had sustained a brain injury caused by the other individual in the altercation, and to support the reasonableness of his claim of self-defense. Hirschkorn argued on appeal the district court should have excluded the exhibit including bar videos and the court should not have limited the neuropsychologist’s expert testimony. Finding no abuse of discretion or other reversible error, the North Dakota Supreme Court affirmed the district court.

North Dakota v. Rodriguez

Citation: 2020 ND 308

Opinion Date: December 17, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Rolando Rodriguez was convicted by jury of gross sexual imposition, burglary, terrorizing, and domestic violence assault. On appeal, Rodriguez argued: (1) he did not knowingly, intelligently, and voluntarily waive his right to counsel; (2) insufficient evidence existed to support his guilty verdicts; and (3) the district court erred when it failed to use a special verdict for the jury to determine whether Rodriguez used a dangerous weapon in commission of the terrorizing offense. After review, the North Dakota Supreme Court concluded Rodriguez knowingly, intelligently, and voluntarily waived his right to counsel and he failed to preserve his arguments on sufficiency of the evidence and the necessity of a special verdict form. The Court, therefore, affirmed the judgment.

North Dakota v. Sackenreuter

Citation: 2020 ND 312

Opinion Date: December 17, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Dustin Sackenreuter appealed after his conditional guilty plea to refusing to take a chemical breath test. He argued that the implied consent advisory he received was insufficient under N.D.C.C. 39-08-01(1)(f), that subsection (1)(f) was unconstitutionally void for vagueness, that subsection (1)(f) was ambiguous and should be interpreted in his favor, and that his special jury instructions should not have been rejected. Finding no reversible error, the North Dakota Supreme Court affirmed.

Lindstaedt v. George

Citation: 2020 ND 309

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Criminal Law, Family Law

Terry George appealed a domestic violence protection order entered against him, claiming the district court erred, without properly explaining the factual basis for its decision, in finding that a preponderance of the evidence supported that actual or imminent domestic violence had or would occur. Nicole Lindstaedt and George dated for approximately four years. They lived together and had a child in common. In February 2020, Lindstaedt petitioned for a domestic violence protection order against George, alleging he choked her, punched her, threatened to kill her, and forced her to have sex with him. After a hearing, the district court found George had committed domestic violence and issued a protection order against him. The order prohibited George from having contact with Lindstaedt for two years. The North Dakota Supreme Court concluded the district court’s finding of domestic violence was not induced by an erroneous view of the law, nor was the Court left with a definite and firm conviction a mistake has been made. The Supreme Court's review of the record showed Lindstaedt presented sufficient evidence for the district court to find domestic violence by recent physical harm and nonconsensual sex. The Supreme Court therefore affirmed the domestic violence protection order.

North Dakota v. Foote

Citation: 2020 ND 313

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Criminal Law

Stephanie Foote appealed an order denying her motion to suppress evidence and from the criminal judgment entered after she conditionally pled guilty to a charge of actual physical control (APC) of a motor vehicle while under the influence of alcohol. On appeal, Foote argued the district court erred in determining that she was not unconstitutionally seized and, thus, her motion to suppress should have been granted. Finding no reversible error, the North Dakota Supreme Court affirmed the judgment.

McCarvel, et al. v. Perhus, et al.

Citation: 2020 ND 314

Opinion Date: December 17, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Real Estate & Property Law

Following a bench trial, Kelly and Debra Perhus appealed from a district court judgment quieting title to disputed property in Kevin and Angela McCarvel. Kelly Perhus was the record title owner of the property. The court found the disputed parcel was .41 acres in size. The McCarvels owned the property adjacent to the disputed parcel and the Perhuses’ property. The McCarvels purchased their property in 2003. The trial court traced ownership of the McCarvel property back to 1992. The disputed parcel was set off from the rest of the Perhus property due to road construction predating 1992. The court found the McCarvels “maintained a dike, planted trees, mowed the grass and maintained a driveway across the disputed property.” The court ultimately held the McCarvels met their claim for adverse possession by clear and convincing evidence. It also found the McCarvels met all the elements for boundary by acquiescence. Finding no reversible error, the North Dakota Supreme Court affirmed the trial court's judgment.