North Dakota Supreme Court Highlights
By Scott O . Diamond , Joshua A . Swanson , and Ian McLean
Authors ’ Note and Caveat : The following cases of interest were recently decided by the North Dakota Supreme Court . Because the following contains the authors ’ summary of the decisions , the reader is encouraged to read the entire published decision to determine its precedential value , if any , in any given case .
Ward v . Herbel , 2024 ND 119 . Filed on 6 / 6 / 24 .
The Ward family owns extensive property in the Bismarck area . The Ward family initiated a quiet title action against 152 adjacent landowners to quiet title and determine adverse claims to various property . While no claims were made against the defendants personally , the Ward Family prayed that the defendants be forced to set forth any adverse claims to the subject properties . One of the defendants , the Herbels , moved to dismiss the action arguing they were not a property party under chapter 32-17 of the North Dakota Century Code . The Herbels argued they never claimed any adverse interest against the Ward Family ’ s property and the Ward Family had never claimed an adverse interest against the Herbels ’ property and therefore there could be no direct action against the Herbels . The Herbels also requested their attorney ’ s fees , arguing the action was frivolous . The district court denied the Herbels motion to dismiss and held a bench trial . After the bench trial , the district court granted the Ward Family ’ s requested relief , including the judicial remedy of quiet title and denied the Herbels ’ request for attorney ’ s fees .
On appeal , in a 3-2 decision , the Court reversed the district court ’ s decision because the district court erred in determining the Ward family had standing to directly sue the Herbels . The Court held that the plain language of N . D . C . C . § 32-17-01 requires the existence of an adverse claim . As the Herbels had never asserted an adverse interest in the Ward family ’ s property and the Ward family had never asserted an adverse interest between the parties , the Court found no adverse claim existed between the Ward Family and Herbels . Therefore , the Court held the Ward Family lacked standing to bring a direct suit against the Herbels .
Additionally , the Court remanded the case to determine if the Ward Family ’ s claim was frivolous , and if so , to determine the reasonable attorney ’ s fees the Herbels were entitled to . Notably , prior decisions from the Court had suggested a self-represented attorney could not recover attorney ’ s fees . The Court overruled those prior cases and held that a self-represented attorney may recover attorney ’ s fees in defending himself against frivolous litigation .
In dissent , Justice Tufte ( joined by Justice McEvers ) wrote he would affirm the district court ’ s judgment as the Ward Family had a statutory basis to name the Herbels as defendants . Specifically , the dissent argued chapter 32-17 of the N . D . C . C . allows for the personal service of known persons who have not asserted any claims . The dissent disagreed that these known persons may only be served via publication as an unknown person .
State v . Doyle , 2024 ND 108 . Filed on 5 / 30 / 24 .
Doyle was charged with felony murder . Prior to the trial , the state provided Doyle with a copy of the autopsy report conducted by Dr . Miller . However , the state did not disclose Dr . Miller would be testifying as an expert witness , nor provide a written summary of the testimony or Dr . Miller ’ s qualifications . During trial , Dr . Miller provided testimony detailing the medical issues and the cause of death . Many of Dr . Miller ’ s answers to the state ’ s questions were rooted exclusively in her expertise and reflected a specialize knowledge of the subject matter . Doyle objected to certain portions of Dr . Miller ’ s testimony as undisclosed expert witness testimony .
On appeal , the Court summarized the difference between three types of trial testimony : fact , lay opinion , and expert opinion . Fact testimony comes from a witness who is competent and after evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter . Lay opinion testimony is limited to testimony that is rationally based on the perception of the witness . A lay witness ’ s opinion must be based on his or her perception or personal knowledge of the matter , whereas an expert witness must possess some specialized knowledge , skill , or education that is not in the possession of the jurors . Criminal Procedure Rule 16 governs the disclosure of witnesses and evidence in criminal cases . The rule requires the state to provide the defendant a written summary of any expert witness testimony . The summary
Scott O . Diamond is a judicial referee for the East Central Judicial District of North Dakota .
Joshua A . Swanson is a shareholder at Vogel Law Firm in Fargo where he practices energy law , construction and property law , and general litigation .
Ian McLean is a shareholder at Serkland Law Firm in Fargo where he practices in commercial litigation , municipal and education law , and criminal law .
24 THE GAVEL