Articles Posted in North Dakota Supreme Court

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Allen Lenertz appealed the dismissal of his claim for inverse condemnation against the City of Minot and awarding the City costs and disbursements. Between 2013 and 2014 the City installed a paved street and upgraded the storm water system adjacent to Lenertz's commercial property in southwest Minot. Lenertz's property subsequently suffered three flooding events. In 2016 Lenertz sued the City for inverse condemnation, alleging the City's actions in constructing the street and storm sewer system caused past and future flooding of his property and resulted in a total taking of his property. The City denied a taking occurred and raised affirmative defenses. The North Dakota Supreme Court concluded the district court: (1) did not err in ruling Lenertz established only a partial taking of his property; (2) did not abuse its discretion in denying his proposed expert witness's testimony; and (3) did not err in granting the City judgment under N.D.R.Civ.P. 50. The court did abuse its discretion, however, in awarding the City costs and disbursements. View "Lenertz v. City of Minot N.D." on Justia Law

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In August 2016, Riley Kuntz submitted written requests for documents under the North Dakota open records law to the Bureau of Criminal Investigation ("BCI"), the Department of Transportation ("DOT"), and the Criminal Justice Information Sharing ("CJIS") Director, seeking records relating to an agreement with "the FBI authorizing or allowing the search of any ND Driver License or non-photo identification database pursuant to a request from any government agency for the purposes of FACE or FIRS or NGI-IPS." BCI denied his request; the DOT provided a two-page attorney general opinion. In December, Kuntz submitted a request under FOIA to the federal Government Accountability Office ("GAO") requesting records related to an agreement between the FBI and any government agency authorizing the search of the North Dakota driver license information databases. In a February 2017 letter, the GAO responded and confirmed the existence of a Memorandum of Understanding ("MOU") between the FBI, CJIS, Attorney General, and BCI concerning searches of the North Dakota Attorney General BCI facial recognition photo repository. However, because the GAO obtained the MOU from the FBI, the GAO informed him it was GAO policy not to release records from its files that originated in another agency or organization. In July 2017, Kuntz submitted written requests under the open records law to the North Dakota Attorney General, BCI, CJIS Director, and DOT, stating in part seeking the MOU between the FBI, Criminal Justice Information Services Division and ND Attorney General. BCI requested clarification on Kuntz's request; the DOT requested payment of a fulfillment fee. Kuntz replied to the DOT but did not pay the fee. In September 2017, Kuntz commenced the underlying lawsuit, naming as defendants the State, the BCI, the CJIS Director, the DOT, the North Dakota Attorney General, the Deputy Director of BCI, and the individuals who responded to Kuntz's records requests (collectively, the "State"). The parties did not dispute on appeal that while the state Solicitor General accepted service on behalf of the defendants in this case, Kuntz did not personally serve any of the defendants in their individual capacities. Kuntz's complaint claims violations of state open records laws; alleges claims for fraud, federal civil rights violations and attorney's fees; and also seeks declaratory relief. His complaint essentially claims the State, through its various agencies, had denied the existence of, or failed to respond to his open records request for, the specified MOU document. Kuntz appealed when the district court granted the State's motion for judgment on the pleadings and dismissing his claims with prejudice against the State defendants. The North Dakota Supreme Court concluded the district court erred in dismissing his open records law claim under N.D.C.C. 44-04-21.2. However, the court did not err in dismissing his remaining claims and in denying his motions for default judgment, to amend the complaint, and to award sanctions. View "Kuntz v. North Dakota" on Justia Law

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Jerilyn Braaten, the personal representative of the Frederick Ardell Krueger Estate, appealed an order holding the Department of Human Services could recover 100 percent of the net proceeds from the sale of Krueger's home to pay for medical assistance benefits previously received by his deceased spouse. The North Dakota Supreme Court concluded the district court erred in ruling the Department is entitled to 100 percent of the net sale proceeds. For purposes of Medicaid recovery from a surviving spouse's estate, the Department's recovery from a deceased recipient's joint tenancy property is limited to the deceased recipient's fractional interest in the property. The matter was reversed and remanded fo the trial court to permit the Department to recover 50 percent of the net sale proceeds. View "Estate of Krueger" on Justia Law

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Debra Wald appealed after the district court denied her motion for judgment as a matter of law or for a new trial on her claim that Benedictine Living Communities, Inc., doing business as St. Rose Care Center, terminated her employment in violation of the Family and Medical Leave Act (FMLA). In 2011, Wald sustained a work injury when she slipped and fell during the course of her employment as a cook and kitchen aid at St. Rose, a long-term care center in LaMoure, North Dakota. Workforce Safety & Insurance ultimately awarded her partial temporary disability benefits from 2011 to 2015. St. Rose notified Wald about her FMLA rights, and ten days later, St. Rose terminated her employment without providing her with an opportunity to effectuate those rights. Wald testified she would have been willing to go back to work with some accommodations to see what she could do. According to Wald, she attended some computer training courses through Workforce Safety & Insurance after her termination from St. Rose, but she stopped taking classes after she was denied further workers' compensation benefits. Wald testified she had not had a job after her employment was terminated by St. Rose because she decided to be a stay-at-home wife and mother. A jury returned a special verdict finding that Wald failed to prove St. Rose was liable for negligent or intentional infliction of emotional distress, but that it terminated Wald in violation of the FMLA and that she would have earned $118,610.76 in wages, salary, employment benefits and other compensation from the date of her termination through the date of the verdict. The jury further found that Wald failed to mitigate her damages by not seeking out or taking advantage of employment opportunities reasonably available to her after her termination and that she would have earned $118,610.76 if she had sought out or taken advantage of reasonably available employment opportunities. The special verdict effectively awarded Wald no damages for her FMLA termination claim. The North Dakota Supreme Court determined the district court erred in its charge the jury, misapplying the law and allowing the jury's use of "common knowledge and experience" to conclude Wald could have mitigated her damages in the period at issue here. On these grounds, the Supreme Court reversed the district court's denial of Wald's motion for a new trial on damages. The Court affirmed in all other respects. View "Wald v. Benedictine Living Communities, Inc." on Justia Law

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E.S. appealed an order requiring involuntary treatment in which the district court found him to be mentally ill and a person requiring treatment. In late 2018, Dr. Katrina DeDona submitted an application for emergency admission for E.S. to be admitted to the North Dakota State Hospital after being paroled from James River Correctional Center for a charge of terrorizing. The application alleged E.S. was often agitated, preoccupied with a belief that there was a conspiracy against him, and, as a result, unable to participate in his own treatment and discharge planning. A petition for involuntary commitment was filed, claiming E.S. was mentally ill and there was a reasonable expectation of serious risk of harm if he was not treated. E.S. requested and was appointed an independent examiner. Three witnesses, qualified as experts, were called by the petitioner, including Dr. DeDona, and the independent medical examiner. E.S. testified on his own behalf. At the conclusion of the treatment hearing, the district court issued its order on the record, finding clear and convincing evidence establishing E.S. was mentally ill and a person requiring treatment. The court ordered E.S. be hospitalized for a period not to exceed 90 days, ending February 11, 2019. On appeal, E.S. argues the district court's order was not supported by clear and convincing evidence to show he was mentally ill and a person requiring treatment. Based upon the evidence, the North Dakota Supreme Court held the district court's finding that E.S. was a person requiring treatment was not clearly erroneous, and affirmed commitment. View "Interest of E.S." on Justia Law

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Jane Doe appealed a district court order continuing her treatment at the North Dakota State Hospital. In July 2017 the North Dakota State Hospital petitioned for involuntary hospitalization of Jane Doe after police took her into custody for lying on the highway and refusing to cooperate with law enforcement and medical providers. Doe refused to provide identifying information or submit to photographs to aid in her identification. After her initial admission to the State Hospital, Doe refused to meet with hospital staff, take medications or shower. The district court initially ordered Doe to undergo treatment for fourteen days, at the end of which the district court found Doe a mentally ill patient requiring further treatment. The Supreme Court summarily affirmed the district court's ninety-day treatment order. After ninety days the State Hospital obtained an order continuing treatment for one year. The Supreme Court again summarily affirmed that decision in Interest of Jane Doe, 904 N.W.2d 40. On October 3, 2018, a psychologist at the State Hospital petitioned for continuing treatment, alleging Doe continued to be a mentally ill person requiring treatment. On October 22, 2018, the district court held a hearing and granted the State Hospital's petition, and ordered Doe to undergo treatment at the State Hospital for a period not exceeding one year. The district court found Doe mentally ill, a person requiring treatment, and that no alternative treatment was appropriate. The North Dakota Supreme Court concluded that under its standard of review that the finding Jane Doe was a mentally ill person requiring treatment was not clearly erroneous. The district court's order was therefore affirmed. View "Interest of Jane Doe" on Justia Law

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Linda Grina appealed a district court judgment affirming the denial of her unemployment benefits. Grina started coaching at Bismarck Gymnastics Academy in 1992. In 2015 or 2016 she was appointed interim executive director/program director with retained coaching duties. When a new executive director was hired, Grina was instructed to assist the executive director in acclimating to the gym and working environment. In July 2017 the employer informed Grina she was placed on probation for failure to assist the new executive director as instructed. A week later Grina sent a letter to the gym's board of directors relinquishing the interim program director title and job duties and expressing her desire to stay employed as a coach. In August 2017 Grina met with the gym board of directors. The board informed Grina her duties as interim program director were not separable from her coaching duties, and if she chose to resign as interim program director she also would be resigning from coaching. Grina indicated she would not continue performing the duties of interim program director. The board then issued a termination letter. Grina filed for unemployment benefits through Job Service. Job Service granted Grina benefits in October 2017 after finding the employer did not show her termination was due to misconduct. The employer appealed and a Job Service appeals referee conducted a hearing in December 2017. The referee reversed the initial decision and found Grina voluntarily left her employment without good cause attributable to the employer. Grina appealed the referee's decision to the Job Service North Dakota Bureau and sought to introduce new evidence, including emails and a text message referencing Grina being "let go" or "terminated." The Bureau added the documents to the claim file but did not consider the information in its decision affirming the referee's determination. Grina appealed to the district court. The district court affirmed the Bureau's decision denying Grina unemployment benefits. The North Dakota Supreme Court affirmed, concluding under its standard of review, a reasoning mind could have determined Grina left her employment voluntarily and without good cause attributable to the employer. View "Grina v. Job Service" on Justia Law

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The North Dakota State Board of Registration for Professional Engineers and Land Surveyors ("Board") appealed district court judgments affirming in part, reversing in part, and remanding to the Board its disciplinary decisions against Michael Berg, Apex Engineering Group, Inc., Scott Olson, Dain Miller, Thomas Welle, and Timothy Paustian. Respondents Berg, Olson, Miller, Welle and Paustian were former employees of Ulteig Engineers, Inc. Olson was terminated from Ulteig in 2009. In 2010, Berg, Miller, Welle, and Paustian resigned from Ulteig and, along with Olson, started a competing business, Apex. Following the Respondents' departure, Ulteig sued Apex and filed an ethics complaint with the Board, alleging Berg, Olson, Miller, Welle and Paustian violated the Professional Engineers' Code of Ethics by disclosing Ulteig's confidential information and failing to disclose a potential conflict of interest by not informing Ulteig of their decision to form Apex. Ulteig also alleged the Respondents knowingly participated in a plan to seek employment for Apex on projects that Ulteig had been contracted to perform before the Respondents' departure from Ulteig. The Board found that each of the Respondents had violated one or more of the provisions of the code of ethics. Respondents appealed the Board's disciplinary decisions to the district court. The court affirmed the Board's decision that Welle, Berg, and Miller failed to disclose a potential conflict of interest. The court reversed the determination that Miller, Welle, and Paustian had improperly disclosed confidential information. The court also reversed the decision that Berg, Olson, and Welle knowingly participated in a plan to seek employment for Apex on projects Ulteig had been contracted to perform before their departure from Ulteig. The court remanded to the Board for reconsideration the discipline imposed on Berg, Olson, Miller, Welle, and Paustian in light of the court's reversal of the disciplinary decisions. The court also awarded attorney fees to Berg, Welle, Apex, Olson, Miller, and Paustian. On appeal to the North Dakota Supreme Court, the Board argued the district court wrongfully reversed the Board's disciplinary decisions because the decisions were supported by a preponderance of the evidence. The Supreme Court concluded a preponderance of the evidence supported the Board's factual findings regarding the improper solicitation by Welle, Olson, Berg, and Apex. Those findings supported a conclusion that Welle, Olson, Berg, and Apex knowingly sought or accepted employment for professional services for an assignment for which Ulteig was previously employed or contracted to perform in violation of N.D. Admin. Code 28-03.1-01-12(6). The Supreme Court therefore reversed those parts of the district court's judgments relating to the violation of N.D. Admin. Code 28-03.1-01-12(6) by Welle, Olson, Berg, and Apex. View "Berg, et al. v. North Dakota State Board of Registration" on Justia Law

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Shane Martin appealed an order denying his N.D.R.Civ.P. 60(b) motion for relief from default judgment. Martin was the biological father of Cheri Poitra's child, I.R.P. Martin and Poitra were unmarried tribal members of the Turtle Mountain Band of Chippewa. In August 2017, Poitra began receiving services from Bismarck Regional Child Support Unit (BRCSU). The State sought to establish a child support obligation from Martin and served him with a summons and complaint. Martin completed a financial affidavit and returned it to BRCSU on October 8, 2017, but did not file an answer or other responsive pleading. On November 7, 2017, the State filed a N.D.R.Ct. 3.2 motion for default judgment. More than 21 days had passed since Martin was served and he had appeared but had not filed an answer or other responsive pleading. On November 17, 2017, Martin filed a notice of special appearance. The notice of special appearance did not contain an accompanying affidavit, motion, request for action, or response to the allegations. Instead, the notice stated only that Martin's attorney was entering a special appearance to contest "both subject matter and personal jurisdiction." Included with the notice was a copy of a summons and a petition for custody filed by Martin with the Turtle Mountain Tribal Court on November 16, 2017. A hearing on the "notice of special appearance" was held January 2018. During the hearing, the district court stated numerous times that the notice was not a motion on which the court could act and instructed Martin to file a motion. In February, 2018, the district court entered its findings of fact, conclusions of law, and order for judgment finding Martin in default. Judgment was entered February 21, 2018. Martin argues that his return of the financial affidavit and filing of a notice of special appearance was sufficient to preclude a default judgment under N.D.R.Civ.P. 55(a) and thus the district court erred in denying his Rule 60(b) motion. The North Dakota Supreme Court affirmed: the district court did not err in denying a Rule 60(b) motion for relief from judgment where Martin was properly provided notice and served with the motion for default judgment. View "North Dakota v. Martin" on Justia Law

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Larry Alber appealed a January 2018 order amending a 2013 order which found Alber in contempt for failure to abate a nuisance on his property in compliance with a October 2003 judgment. He argued the judgment was satisfied when he filed reports of compliance with the district court and thus the property no longer contained a nuisance subject to abatement. The City of Marion ("City") argued the district court properly amended the 2013 order. The North Dakota Supreme Court concluded the district court did not err in amending its order to clarify that the nuisance on the property remained subject to abatement after Alber's conveyance of the property. The Court therefore affirmed the district court's amended order. View "North Dakota ex rel. City of Marion v. Alber" on Justia Law