The Invisible Man and His Visible Victim

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a movie some have described as one of the best of 2020, The Invisible Man, and describes how the story in the movie offers possibilities for envisioning accountability for domestic violence and other crimes that often receive dismissive treatment under the heading of “he said/she said.” Professor Colb briefly describes the plot of the movie (including spoilers), and explains why the movie is so revelatory.

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Melaas v. Diamond Resorts U.S. Collection Development

Citation: 2021 ND 1

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts

Kathleen Melaas appealed a district court order granting a motion to compel arbitration and dismissing her complaint against Diamond Resorts U.S. Collection Development, LLC. She alleged Diamond Resorts offered vacation and timeshare packages, she attended a sales meeting with a Diamond Resorts representative, the sales meeting lasted approximately five hours, and she asked to leave the meeting on at least one occasion and Diamond Resorts refused to allow her to leave. She claimed Diamond Resorts knew she was a diabetic and experienced fatigue and confusion, Diamond Resorts knew she was a vulnerable adult subject to a durable power of attorney for financial management, and Diamond Resorts would not allow her to leave the sales meeting until she signed the timeshare agreement. Melaas asserted she lacked the capacity to enter into the agreement, Diamond Resorts used high-pressure and abusive sales tactics and knowledge of her medical condition to unduly influence and coerce her into signing the agreement, and any consent was obtained by duress and menace. After a hearing, the district court granted Diamond Resorts’ motion to compel arbitration and dismissed Melaas’ complaint. The North Dakota Supreme Court found that the forum selection clause in section 17 of the contract was not part of the arbitration agreement. The forum selection clause stated, “This Agreement is governed by Nevada law without regard to Nevada’s choice of law rules. You must bring any legal action in Clark County, Nevada.” When the term “Agreement” was used in the contract, the Court found it referred to the entire contract and not the arbitration agreement. To the extent Diamond Resorts argued the action should have been brought in Nevada, it was a venue issue and not a jurisdictional issue, and the right could be waived. The issue of improper venue was waived if it was omitted from a motion to dismiss or if it was not made by motion or included in the responsive pleading. On remand, if any of the parties argue the case must be dismissed under the forum selection clause, the district court must first determine whether a contract exists. If the court determines a contract exists, it could then consider the forum selection clause issue, including whether the issue was waived. The order compelling arbitration and dismissing Melaas' complaint was reversed, and the matter remanded for further proceedings.

R & F Financial Services v. North American Building Solutions, et al.

Citation: 2021 ND 12

Opinion Date: January 12, 2021

Judge: Jerod E. Tufte

Areas of Law: Business Law, Contracts, Real Estate & Property Law, Zoning, Planning & Land Use

R & F Financial Services, LLC, appealed a district court order dismissing its claims against Cudd Pressure Control, Inc., and RPC, Inc., and granting Cudd’s and RPC’s counterclaims and cross claims. North American Building Solutions, LLC (“NABS”) and Cudd Pressure Control, Inc. (“Cudd”) entered into an agreement where Cudd would lease from NABS 60 temporary housing modules for employee housing. The terms of the Lease required Cudd, at its sole expense, to obtain any conditional use permits, variances or zoning approvals “required by any local, city, township, county or state authorities, which are necessary for the installation and construction of the modules upon the Real Property.” The Lease was set to commence following substantial completion of the installation of all the modules and was to expire 60 months following the commencement date. NABS assigned its interest in 28 modules under lease to R & F; NABS sold the modules to R & F by bill of sale. Cudd accepted the final 32 modules from NABS, to which R & F was not a party. RPC, as the parent company of Cudd, guaranteed Cudd’s performance of payment obligations to R & F under the Lease. The Lease was for a set term and did not contain an option for Cudd to purchase the modules at the expiration of that set term. At the time R & F purchased NABS’s interest in the Lease, it understood the purpose of the Lease was to fulfill Cudd’s need for employee housing. The County required a conditional use permit for workforce housing, and Cudd had been issued a permit allowing for the use of the modules as workforce housing. The City of Williston annexed the Property within its corporate limits. Thereafter, the City adopted a resolution that declared all workforce housing was temporary and extension of permits was subject to review. The City modified the expiration date policy and extended all approvals for workforce housing facilities to December 31, 2015, such that all permits would expire the same day. In December 2015, Cudd successfully extended its permit for the maximum time permitted to July 1, 2016. Cudd sent a letter to NABS stating that it viewed the Lease as being terminated by operation of law as of July 1, 2016. R & F argued the trial court erred in finding the Lease was not a finance lease and, in the alternative, that the court erred in finding the doctrines of impossibility of performance and frustration of purpose to be inapplicable. Finding no reversible error, the North Dakota Supreme Court affirmed.

Young v. Burleigh Morton Detention Center, et al.

Citation: 2021 ND 8

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

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

Laron Young appealed summary judgment entered in favor of Burleigh Morton Detention Center (“BMDC”). Young was an inmate at BMDC. Reliance Telephone of Grand Forks, Inc. (“Reliance”) contracted with BMDC to operate its inmate telephone system. Every call that was not listed as “private” within the Reliance system was automatically recorded. It was undisputed that the telephone number for Young’s attorney was not on the list of private numbers and various calls between himself and his attorney were recorded. Young sued BMDC and Reliance arguing his Sixth Amendment right to counsel was violated and that BMDC had not complied with N.D.C.C. 12- 44.1-14(1), which required correctional facilities to ensure inmates have confidential access to their attorneys. The district court dismissed the claims against Reliance for lack of jurisdiction, and granted summary judgment in favor of BMDC, concluding Young had not alleged facts to support a finding that he was prejudiced by the recordings and therefore his right to counsel was not violated. The court also concluded Young had not alleged facts to support a finding that BMDC violated N.D.C.C. 12-44.1-14(1). The North Dakota Supreme Court affirmed, that to the extent relief might be available for Young’s claim, he did not allege facts to support a finding that BMDC knowingly intruded into the communications he had with his attorney or that prejudice or a substantial threat of prejudice existed. Therefore, the district court did not err when it granted BMDC summary judgment on Young’s Sixth Amendment claim. With respect to Young's statutory claim, the Court found the plain language of the statute did not require correctional facilities to affirmatively identify an inmate's attorney's telephone number as Young argued. Rather, by its own language, N.D.C.C. 12-44.1-14 was “subject to reasonable . . . correctional facility administration requirements.” The Court thus concluded BMDC’s policy allowing inmates or their attorneys to register attorney telephone numbers as confidential numbers not to be monitored did not constitute a violation of N.D.C.C. 12- 44.1-14(1).

Brendel Construction v. WSI

Citation: 2021 ND 3

Opinion Date: January 12, 2021

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Brendel Construction appealed a district court judgment affirming an administrative law judge’s (ALJ) decision to hold Brendel Construction liable for unpaid workers compensation premiums and penalties attributed to a subcontractor’s account, and determining Randy Brendel was personally liable for unpaid workers compensation premiums. North Dakota Workforce Safety and Insurance (WSI) cross-appealed the district court’s order dismissing WSI’s cross-appeal from the decision of the ALJ as untimely filed. WSI identified Brendel Construction as the general contractor for a roofing project in Bismarck where crew members were reported to be working without fall protection. WSI’s investigation of the report regarding the lack of fall protection expanded into an investigation of workers compensation coverage. WSI ultimately concluded that two of Brendel Construction’s subcontractors, Alfredo Frias and Daniel Alvidrez, were uninsured and not providing North Dakota workers compensation coverage for their employees. WSI requested, but did not receive, information from Brendel Construction regarding the subcontractors’ income. After review, the North Dakota Supreme Court affirmed the imposition of liability against Brendel Construction for unpaid workers compensation premiums and penalties, and affirmed the imposition of liability against Randy Brendel. The Court reversed and remanded the dismissal of WSI’s cross-appeal as untimely filed.

Potts v. City of Devils Lake, et al.

Citation: 2021 ND 2

Opinion Date: January 12, 2021

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Labor & Employment Law

Brandon Potts appealed after a district court granted summary judgment to the City of Devils Lake and the Devils Lake Police Department (collectively, “Devils Lake”), which dismissed his claim for wrongful termination. Potts argued the court erred in holding under North Dakota law that no exception to the employment-at-will doctrine existed for law enforcement officers who act in self-defense. The North Dakota Supreme Court concluded the district court did not err in holding under North Dakota law no public policy exception to the at-will employment doctrine exists for law enforcement officers who act in self-defense. Therefore, the court did not err in granting summary judgment to Devils Lake.

Neppel, et al. v. Development Homes, et al.

Citation: 2021 ND 5

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Non-Profit Corporations, Personal Injury

Pamela Neppel, individually and as the parent and legal guardian of Z.N., an incapacitated individual, appealed amended judgment entered after a jury trial. She also appealed denying leave to amend her complaint, an order for an amended judgment, and an order denying her motion for attorney fees and costs. Development Homes, Inc. (DHI) cross appealed an order denying its motion for judgment as a matter of law. Z.N., at the time of the incident giving rise to this case, was living at a residential care facility operated by DHI. Neppel was Z.N.’s mother. Neppel filed this lawsuit alleging Z.N. was raped by another resident, referred to as S.O., who lived on the same floor of the facility as Z.N.’s housemate. Neppel alleged DHI had knowledge S.O. was a sexual predator and Z.N. was susceptible to abuse, yet DHI withheld information from her about the risk of placing the two together. Neppel also alleged DHI did not immediately report the rape or provide prompt and adequate medical care for Z.N. Along with DHI, Neppel sued various DHI employees, as well as S.O.’s co-guardians. The case was tried to a jury on counts of negligence and intentional infliction of emotional distress. The jury returned a verdict awarding Neppel and Z.N. $550,000 in damages. The jury specifically awarded Z.N. $100,000 for damages caused by DHI’s negligence. The jury also awarded Z.N. and Neppel $400,000 and $50,000 in damages, respectively, for past and future severe emotional distress caused by DHI. The jury did not find any of the individually-named defendants liable. DHI filed a motion to amend the judgment asserting it was entitled to charitable immunity under N.D.C.C. ch. 32-03.3, which set liability limits for certain charitable organizations. The court granted the motion and entered an amended judgment that applied the $250,000 charitable organization liability limit. After review, the North Dakota Supreme Court affirmed the order denying Neppel leave to amend her complaint and the order denying her motion for attorney fees and costs. The Supreme Court reversed the order denying DHI’s motion for judgment as a matter of law, finding Neppel’s appeal from the order for amended judgment was moot.

North Dakota v. Aune

Citation: 2021 ND 7

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Steven Aune was convicted by jury of manslaughter. On May 1, 2019, Aune’s adult twin daughters were both living at his home. One of the daughters had been living with Aune for some time, but the other daughter, S.A., had only been staying with Aune for about one week prior to her death. Aune and S.A. had an argument, and Aune picked up a rifle during the argument, which fired and struck S.A. Aune did not call 911 or attempt to render any aid to S.A., but he allowed the other daughter to use his pickup to take S.A. to the nearest hospital. S.A. died as a result of the gunshot wound. On appeal, Aune argued the jury’s verdict was inconsistent and the district court relied on an impermissible sentencing factor, rendering his sentence illegal. Aune argued his conviction should have been reversed or, in the alternative, that his sentence should have been reversed. Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Casatelli

Citation: 2021 ND 11

Opinion Date: January 12, 2021

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Garett Casatelli appealed a corrected criminal judgment after he entered a conditional guilty plea to actual physical control of a motor vehicle with a blood alcohol concentration of 0.08 percent or greater. After review of the trial court record, the North Dakota Supreme Court concluded Casatelli was not seized in violation of the Fourth Amendment or N.D. Const. art. I, sec. 8, and the district court did not err in denying his motion to suppress evidence.

North Dakota v. Evanson

Citation: 2021 ND 4

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Megan Evanson appealed criminal judgments imposed in two consolidated cases. Evanson and her husband were involved in the theft of a catalytic converter from a truck and several tools from two different individuals. In the first case, Evanson was charged with criminal trespass, a class B misdemeanor, criminal mischief, a class B misdemeanor, and theft, a class A misdemeanor. In the second case, Evanson was charged with burglary, a class C felony, and theft, a class C felony. Evanson entered not guilty pleas in both cases. Evanson changed her pleas to guilty on February 21, 2020, and was sentenced in both cases that same day. At the sentencing hearing, the State read Evanson’s criminal history to the district court and Evanson made no objection. In the first case, Evanson was sentenced to 19 days with 19 days’ credit for time served. In the second case, Evanson was sentenced to 11 months in custody with all but 19 days suspended, with 18 months of supervised probation, credit for 19 days previously served, and fines to be paid by September 30, 2020. Evanson filed her notice of appeal on February 28, 2020, arguing the district court improperly considered her prior convictions at sentencing without knowing whether the convictions were counseled. Evanson claimed her criminal history should not have been considered as a factor in sentencing because the State did not inform the court whether her prior convictions were uncounseled and without proper waiver. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's judgments.

Estate of Seidel v. Seidel, et al.

Citation: 2021 ND 6

Opinion Date: January 12, 2021

Judge: Jerod E. Tufte

Areas of Law: Real Estate & Property Law

James Seidel, Troy Seidel, and Gravel Supply LLC (Defendants) appealed a judgment awarding the Estate of Leroy Seidel $68,958.75 relating to the Defendants’ sale of gravel from certain real property. Defendants argued Leroy Seidel did not own any gravel interests in the property because he had conveyed his interests to James Seidel in a 2008 warranty deed. After review, the North Dakota Supreme Court reversed and remanded, concluding Leroy Seidel indeed did not own any gravel or other surface mineral interests in the subject property.