Bolinske v. Sandstrom

A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within 180 days after the alleged injury is discovered or reasonably should have been discovered a written notice of claim as provided by statute. The district court lacks subject matter jurisdiction absent a timely filing of a notice of claim. Because a court's dismissal of claims without prejudice for lack of subject matter jurisdiction is not an adjudication on the merits, the doctrines of claim and issue preclusion do not foreclose a subsequent action to adjudicate those claims. However, claim preclusion prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by a final judgment on the merits. Under N.D.R. Lawyer Discipl. 6.5, no lawsuit may be instituted against any complainant or witness in a lawyer disciplinary matter based on their communications to the board and its secretary, district inquiry committees, hearing panels, or counsel relating to lawyer misconduct or disability. The affirmative defense that the statute of limitations has run must be pled by answer. An appellate court is a court of review, not of first view. If a party opposing a summary judgment motion shows by declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion (2) order a continuance to enable declarations to be obtained, depositions to be taken, or other discovery to be undertaken or (3) issue any other just order. In civil actions, the court shall award reasonable attorney's fees to the prevailing party if it finds a claim for relief was frivolous.

Counsel's failure to raise a novel or groundbreaking legal claim does not constitute ineffective assistance of counsel. A district court is the best credibility evaluator in cases of conflicting testimony, and we will not second-guess the district court's credibility determinations. The procedures in Rule 11, N.D.R.Crim.P., does not apply to admissions on probation revocation. Section 12.1-32-07(6), N.D.C.C., unambiguously restrains a district court's authority in probation revocation cases to imposition of the sentence initially imposed but suspended. State v. Gefroh, 458 N.W.2d 479, 483-84 (N.D. 1990) and State v. Lindgren, 483 N.W.2d 777, 779 (N.D. 1992) are overruled.