Gregory v. State , 2022 ND 54 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 17, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 54Komikka Katrice Gregory, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20210307
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers and
Tufte joined. Justice VandeWalle filed an opinion concurring. Justice McEvers
filed a dissenting opinion.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant; submitted
on brief.
Christopher W. Nelson, Assistant State’s Attorney, Minot, ND, for respondent
and appellee; submitted on brief.
Gregory v. State
No. 20210307
Jensen, Chief Justice.
[¶1] Komikka Gregory appealed a district court order summarily dismissing
her petition for post-conviction relief. Gregory argues the court erred in
granting summary disposition because the State failed to make a separate
motion. The State agrees that the matter should be reversed and remanded
based on this Court’s recent decision in Chase v. State, 2021 ND 206, 966
N.W.2d 557. We reverse and remand for further proceedings.
I
[¶2] In 2018, a jury found Gregory not guilty of the charge of murder, but
guilty of a charge of manslaughter. Gregory appealed her conviction and this
Court affirmed. State v. Gregory, 2019 ND 241, 933 N.W.2d 469.
[¶3] In August 2021, Gregory filed an application for post-conviction relief
requesting her conviction be set aside and she be granted a new trial based on
ineffective assistance of counsel. The State filed an answer which included a
request for summary disposition under N.D.C.C. § 29-32.1-09. The district
court deferred ruling on the motion for summary disposition and ordered
Gregory to submit, within 30 days, declarations and other admissible evidence
in support of her petition and opposition to the motion. With no response from
Gregory, the court granted summary disposition.
II
[¶4] Gregory and the State agree that this case should be remanded to the
district court for further proceedings. While this case was on appeal, we
decided Chase v. State, 2021 ND 206, 966 N.W.2d 557.
[¶5] “Post-conviction relief proceedings are civil in nature and governed by
the North Dakota Rules of Civil Procedure.” Chase, 2021 ND 206, ¶ 8 (quoting
Wacht v. State, 2015 ND 154, ¶ 6, 864 N.W.2d 740). In Chase, a majority of the
Court held that a district court may not order summary disposition in response
to a request in a pleading, including the State’s answer to an application for
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post-conviction relief. Id. at ¶ 11. Rather, the State is required to file a separate
motion for summary disposition, notice of motion, and a brief in support of its
motion. Id. at ¶ 8.
[¶6] Here, it is clear from the record that the district court treated the State’s
answer as a motion for summary disposition. The State did not file a motion
for summary disposition, brief in support of the motion, or a notice of motion.
The State’s actions in this case failed to comply with the North Dakota Rules
of Civil Procedure and Rules of Court. Therefore, the court erred in granting
summary disposition when the request was included in the State’s answer.
III
[¶7] We reverse the order and remand for further proceedings.
[¶8] Jon J. Jensen, C.J.
Daniel J. Crothers
Jerod E. Tufte
VandeWalle, Justice, concurring.
[¶9] I concur in the result reached by the majority opinion because the State
agreed that this matter should be reversed and remanded. If the State had not
consented to a remand in this instance I would have signed Justice McEvers’
dissent.
[¶10] Gerald W. VandeWalle
McEvers, Justice, dissenting.
[¶11] I respectfully dissent. Although the State did not strictly comply with
our rules, under the facts of this case, any error was waived or was harmless.
While not factually identical, this case is similar to Chase v. State, where the
State filed a request for summary disposition in its answer and the petitioner
failed to provide competent evidence warranting an evidentiary hearing. 2021
ND 206, ¶¶ 22-23, 966 N.W.2d 557 (McEvers, J., dissenting). Similarly here,
the State filed its motion within its response to Gregory’s petition. The motion
was not buried obscurely within the response, but was referenced in the first
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sentence of the State’s response. The petitioner had notice and an opportunity
to respond to the State’s motion, and failed to provide competent evidence
warranting an evidentiary hearing.
[¶12] In Chase, a majority of this Court held a district court may not order
summary disposition in response to a request in a pleading, including the
State’s answer to an application for postconviction relief, and instead required
the State to file a separate motion, notice, and brief in support. 2021 ND 206,
¶ 11. When the defendant is otherwise on notice of the State’s motion, and has
an opportunity to respond, I continue to believe this requirement is form over
substance.
[¶13] In this case, the State did not follow the procedural requirements of
N.D.R.Ct. 3.2. However, after the State filed its answer containing a motion
for summary disposition, the district court issued an order deferring its ruling
on the motion for thirty days. The court ordered Gregory to “serve and file the
declarations and other admissible evidence in support of her petition, and in
opposition to the motion for summary disposition,” within thirty days. When
Gregory did not respond, the district court issued an order granting the State’s
motion and summarily dismissing Gregory’s petition.
[¶14] We have previously held an applicant for postconviction relief must be
given notice and an opportunity to respond and submit evidence to
demonstrate there is a genuine issue of material fact before an application can
be dismissed. Wong v. State, 2010 ND 219, ¶ 13, 790 N.W.2d 757. While the
State did not file a separate motion for summary disposition, notice of motion,
and brief in support of its motion, not only did the State’s response provide
notice of the issue, the district court’s order affirmatively put Gregory on notice
that she had been put to her proof. The court gave Gregory the opportunity to
respond to the State’s motion when the court ordered Gregory to supplement
her petition with affidavits or other evidence demonstrating a genuine issue of
material fact as required. See Henke v. State, 2009 ND 117, ¶ 11, 767 N.W.2d
881 (stating the petitioner must support the application with evidence if the
State moves for summary disposition). The court’s order imposed a duty on
Gregory to serve and file declarations and other admissible evidence in support
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of her petition, and in opposition to the motion for summary disposition, within
thirty days. See Ringsaker v. North Dakota Workers Comp. Bureau, 2003 ND
122, ¶ 10, 666 N.W.2d 448 (discussing litigants’ duty to comply with clearly
communicated case-management orders). Gregory did not object or ask for
additional time, and disobeyed or disregarded a direct order of the court by
failing to respond.
[¶15] I cannot reconcile direct disobedience or disregard of a judicial order with
anything short of waiver of the issue by Gregory. “[W]aiver may be based on
silence on the part of a person who is under a duty to speak.” 31 C.J.S. Estoppel
and Waiver § 99 (2022). “[I]t is contrary to the principles of justice to permit
one who has flaunted the orders of the courts to seek judicial assistance.”
Johnson v. Johnson, 2012 ND 31, ¶ 12, 812 N.W.2d 455; see Dawes v. City of
Grand Forks, 243 N.W. 802, 805 (N.D. 1931) (stating “[i]t is axiomatic that
acquiescence in error takes away the right of objecting to it.”) “If every
defendant were held to have the right to disobey any court order which is not
to his liking, orderly legal procedure would cease to exist and chaos would
result.” State v. Heath, 177 N.W.2d 751, 755 (N.D. 1970).
[¶16] In addition, Gregory did not raise this issue in the district court. “Orderly
judicial procedure would require anyone who disagrees with an order of the
court, and who believes such order to be invalid, to test the validity thereof in
court.” Heath, 177 N.W.2d at 755. We should not consider an issue raised for
the first time on appeal. Messer v. Bender, 1997 ND 103, ¶ 10, 564 N.W.2d 291(citations omitted). The principle for the rule limiting appeal to issues raised
in the trial court is based on the following:
“[I]t is fundamentally unfair to fault the trial court for failing to
rule correctly on an issue it was never given the opportunity to
consider. Furthermore, it is unfair to allow a party to choose to
remain silent in the trial court in the face of error, taking a chance
on a favorable outcome, and subsequently assert error on appeal if
the outcome in the trial court is unfavorable.”
Id. (quoting 5 Am.Jur.2d Appellate Review § 690 (1995) (footnotes omitted)).
We have equated sitting by and doing nothing to invited error. Id. at ¶ 11
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(discussing the need to raise an issue to give the trial court an opportunity to
rule on it, “otherwise, it would behoove a defendant to sit by and invite error”).
[¶17] Rule 61, N.D.R.Civ.P., requires us to “disregard all errors and defects
that do not affect any party’s substantial rights.” Because Gregory did not show
she was prejudiced by the procedure, and she failed to follow the district court’s
order, I would conclude her substantial rights were not affected and any
procedural error in this case was harmless. I would affirm the court’s order
dismissing Gregory’s petition because any error was waived or was harmless.
[¶18] Lisa Fair McEvers
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