Larson, et. al. v. Tonneson, et. al.,
2019 ND 230. Filed 9-12-19.
In a real property dispute, the Supreme Court held in an appeal from
a bench trial the district court’s findings of fact are reviewed under
the clearly erroneous standard of review, while its conclusions of law
are fully reviewable, de novo.
The Supreme Court reiterated the necessary elements to find adverse
possession as 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 of the property.
State v. Johns,
2019 ND 227. Filed 8-26-19.
In a drug case, the Supreme Court held that a completed deferred
imposition of sentence that has resulted in a dismissal of the
charge cannot be used to enhance a subsequent charge of unlawful
possession of drug paraphernalia.
State v. Hoehn,
2019 ND 222. Filed 8-22-19.
In the very high profile Savanna LaFontaine-Greywind kidnapping
and murder case, the defendant was convicted of conspiracy to
commit kidnapping and giving false information to law enforcement.
The district court found the defendant had previously been convicted
of a similar offense and thereby sentenced him to life in prison as
a dangerous special offender. On appeal, the defendant argued the
district court erred in its dangerous special offender finding. The
Supreme Court agreed, concluding the defendant’s previous child
abuse offense was not a similar offense in terms of its elements or
its underlying conduct to the current charges the defendant was
convicted of and being sentenced for. Accordingly, the Supreme
Court vacated the district court’s sentence and remanded for a
resentencing of the defendant.
Kalmio v. State,
2019 ND 223. Filed 8-22-19.
The Supreme Court held that whether a petitioner received
ineffective assistance of counsel is a mixed question of law and fact
fully reviewable on appeal. The Court further held that to show
prejudice for ineffective assistance of counsel in a direct appeal,
there must be a reasonable probability that appellate counsel’s errors
changed the result of the direct appeal.
prosecution requires a plaintiff to show the action was brought with
malice. Additionally, consistent with the punitive damages statute,
the Court stated the absence of a viable substantive damage claim
precludes a separate claim for punitive damages.
McCarthy v. Getz,
2019 ND 190. Filed 7-11-19.
Following her daughter’s death by suicide, the plaintiff sued her
daughter’s psychologist for malpractice. The district court dismissed
the suit concluding the plaintiff ’s claim was barred by the expiration
of the applicable statute of limitations. On appeal, the Supreme
Court affirmed the dismissal. Applying an objective standard to
determine the date the statute of limitations begins to run in a
wrongful death claim based on allegations of medical malpractice is
the date the plaintiff becomes aware the medical treatment sought
by the deceased has not gone as planned. Because the plaintiff ’s
child was obtaining psychological counseling for anxiety, depression,
and associated symptoms, the date her daughter committed suicide
objectively put plaintiff on notice the psychological treatment her
daughter was receiving from the defendant had not gone as planned.
Therefore, the statute of limitations began to run the day following
that notice and since the malpractice action was not commenced by
service of process upon the defendant until almost two years and two
months after the statute of limitations commenced to run, the suit
was time barred. The Supreme Court affirmed the district court’s
dismissal of the suit.
Wilkens v. Westby,
deceased, 2019 ND 186. Filed 7-11-19.
On February 14, 2012, the plaintiff and defendant were involved in
a car accident in North Dakota, resulting in the defendant’s death.
The defendant died on the date of the accident. In February 2018,
the plaintiff served a summons and complaint asserting a claim
of negligence against the defendant, Westby, upon the director of
the North Dakota Department of Transportation (DOT), under
N.D.C.C. § 39-01-11, which allows residents to serve legal process
upon the director of the DOT when the party being sued is a
resident absent from the state continuously for at least six months
following an accident or is a non-resident. In affirming the district
court’s dismissal of the suit because of improper service of process,
the Supreme Court concluded for purposes of the statute, death does
not make a resident absent from the state. Accordingly, the plaintiff
could not initiate an action by serving the director of the North
Dakota DOT, under the statute, when the defendant, a resident
of North Dakota, died in North Dakota as a result of the vehicle
accident precipitating the negligence claim.
Rodenburg Law Firm v. Sira, et. al.,
2019 ND 205. Filed 7-30-19.
In this case, the Supreme Court stated the elements of an abuse-of-
process claim are an ulterior purpose and a willful act in the use of
process that is not proper in the regular conduct of the proceeding.
The Court further stated to maintain an action for malicious
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