Interest of Buller

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2020 ND 270

In the Interest of David Buller

Anna A. Argenti, Assistant State’s Attorney, Petitioner and Appellee
v.
David Buller, Respondent and Appellant

No. 20200168

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Karlei K. Neufeld, Assistant State’s Attorney, Bismarck, ND, for petitioner and
appellee; submitted on brief.

Kent M. Morrow, Bismarck, ND, for respondent and appellant; submitted on
brief.
 Interest of Buller
No. 20200168

Jensen, Chief Justice.

[¶1] David Buller appeals from a district court order granting a petition for
commitment of a sexually dangerous individual. Buller argues the proceedings
in this case were bared by res judicata and the order for commitment was not
supported by clear and convincing evidence. We affirm.

I

[¶2] On January 23, 2020, the State filed a petition for civil commitment of
Buller as a sexually dangerous individual. On January 28, 2020, following a
preliminary hearing, the district court entered an order of dismissal of the
petition after finding the State failed to establish Buller had a condition that
was manifested by a sexual disorder, personality disorder, or other mental
disorder or dysfunction. On January 30, 2020, sua sponte and without notice
to the parties, the court issued an order vacating the prior order dismissing the
petition and finding probable cause was established to commit Buller.

[¶3] On February 19, 2020, Buller filed a petition for writ of mandamus to
this Court. This Court exercised supervisory jurisdiction and vacated the
district court’s January 30, 2020 order after considering the procedural
irregularity of the second order issued sua sponte and without notice to the
parties. In vacating the January 30, 2020 order, we noted the following: “the
Court takes this action without prejudice to the district court’s or the State’s
ability to conduct further proceedings in this case, or to the State filing a new
petition based on existing or new facts.” No further proceedings were taken in
the initial commitment proceedings.

[¶4] On March 6, 2020, the State filed a new petition and started a new
proceeding seeking commitment of Buller as a sexually dangerous individual.
Buller requested dismissal of the new petition asserting res judicata precluded
a second petition because the January 28, 2020 order dismissing the petition
following the preliminary hearing was not vacated in the first proceeding.

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Following the preliminary hearing in the new proceeding, the district court
ordered Buller to submit to an evaluation as a sexually dangerous individual.

[¶5] After completion of the evaluation, a treatment hearing was held where
the State presented evidence and testimony by Peter Byrne, Ph.D. (Dr. Byrne),
a North Dakota Licensed Psychologist. Dr. Byrne had conducted a record
review and in-person interview and assessment of Buller. Buller presented
evidence and testimony by Jessica Mugge, Ph.D., L.P., (Dr. Mugge), a Licensed
Clinical Psychologist. Dr. Mugge conducted a record review and in-person
interview and assessment of Buller. Both doctors reached the opinion Buller
met the criteria of a sexually dangerous individual.

[¶6] During the treatment hearing, Buller again moved to dismiss the State’s
petition based on res judicata and collateral estoppel. Buller later filed a formal
motion to dismiss the petition. The motion was denied.

[¶7] On May 29, 2020, the district court issued an order granting the petition
seeking commitment of Buller as a sexually dangerous individual after finding
Buller met the statutory criteria as a sexually dangerous individual who is in
continued need of treatment and rehabilitation. The court based its decision
on the reports and testimony of Dr. Byrne and Dr. Mugge, with a specific
finding that Dr. Byrne’s testimony was persuasive at the hearing. The court
noted Dr. Mugge’s testimony was not as detailed as Dr. Byrne’s testimony, but
still found her testimony convincing and supported the commitment of Buller
as a sexually dangerous individual.

[¶8] Buller appeals from the district court order granting the petition to
commit him as a sexually dangerous individual. On appeal, Buller argues the
second petition was barred by res judicata and he challenges the finding that
the State had proved he is a sexually dangerous individual who is in continued
need of treatment and rehabilitation.

II

[¶9] Buller argues the district court order for civil commitment in this
proceeding was barred by res judicata because the court’s order of dismissal,

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entered on January 28, 2020 in the prior proceeding, was the final order on the
merits after this Court vacated the district court’s January 30 order. The
doctrine of res judicata forecloses parties from litigating claims that were
raised, or could have been raised, in prior actions between the same parties.
Ungar v. N.D. State Univ., 2006 ND 185, ¶ 11, 721 N.W.2d 16. “Whether res
judicata applies is a question of law, fully reviewable on appeal.” Fredericks v.
Vogel Law Firm, 2020 ND 171, ¶ 10, 946 N.W.2d 507.

[¶10] In order for a claim to be barred by the doctrine of res judicata, there
must be a final judgment on the merits by a court of competent jurisdiction.
Reed v. Univ. of N. D., 1999 ND 25, ¶ 10, 589 N.W.2d 880. A final judgment, or
its equivalent under N.D.R.Civ.P. 54(b), can be appealed to this Court. Indus.
Comm’n of N.D. v. Kuntz, 486 N.W.2d 249, 251 (N.D. 1992). Interlocutory
orders are not final and appealable unless “it can be affirmatively established
the underlying order was meant to be, in all aspects, final.” White v. Altru
Health Sys., 2008 ND 48, ¶ 4, 746 N.W.2d 173 (internal quotation omitted); see
also William Clairmont, Inc. v. Burlington Northern, Inc., 229 N.W.2d 77, 80
(N.D. 1975) (“[A]n order or judgment absolutely vacating a judgment
previously entered, leaving an action pending below, is purely interlocutory
and is not appealable.”). In Trautman v. Keystone Dev. Corp., 156 N.W.2d 817,
818-819 (N.D. 1968), this Court held an order vacating a judgment was not
final and appealable when the order was not decisive on the question involved
and did not prejudice the parties’ right to raise issues at a subsequent stage of
the proceedings.

[¶11] In determining whether an order is final, we consider whether the
underlying proceedings were vacated or dismissed with or without prejudice.
“Dismissal of a claim or action without prejudice has no res judicata effect
because there has been no decision on the merits and no right or remedy of the
parties is affected.” Hager v. City of Devils Lake, 2009 ND 180, ¶ 11, 773
N.W.2d 420; see also Sellie v. N.D. Ins. Guar. Ass’n, 494 N.W.2d 151, 159 (N.D.
1992). “The words ‘without prejudice’, as used in judgment, ordinarily import
the contemplation of further proceedings, and, when they appear in an order
or decree, it shows that the judicial act is not intended to be res judicata of the
merits of the controversy.” Hager, at ¶ 11 (quoting In re C.M., 532 N.W.2d 381,

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382-83 (N.D. 1995)); see also Black’s Law Dictionary, 1740 (9th ed. 2009)
(defining “without prejudice” as “[w]ithout loss of any rights; in a way that does
not harm or cancel the legal rights or privileges of a party”).

[¶12] This Court’s order granting Buller’s petition for writ of mandamus
addressed Buller’s assertion the district court’s second order, vacating the
court’s prior order to dismiss the proceedings, was improperly entered sua
sponte by the court and without notice to Buller. Addressing the procedural
irregularities we ordered as follows:

[¶2] ORDERED, that the Court exercises its supervisory jurisdiction
and vacates the district court’s January 30, 2020 order due to procedural
irregularity leading to its entry.

[¶3] IT IS FURTHER ORDERED, that the Court takes this action
without prejudice to the district court’s or the State’s ability to conduct
further proceedings in this case, or to the State filing a new petition
based on existing or new facts.

[¶13] No further action was taken in the prior case following this Court’s order.
The State subsequently filed a new petition for civil commitment of Buller.
Our prior order unambiguously vacated the district court’s January 30, 2020
court order and preserved the State’s right to proceed with further action
seeking the commitment of Buller, including “filing a new petition based on
existing or new facts.” We conclude, under these circumstances, the current
action is not barred by res judicata.

III

[¶14] Buller challenges the district court’s finding that the State had
demonstrated, by clear and convincing evidence, that Buller is a sexually
dangerous individual who is in continued need of treatment and rehabilitation.
Under N.D.C.C. ch. 25-03.3, the State has the burden of proving a person is a
sexually dangerous individual by clear and convincing evidence. A person may
not be committed as a “sexually dangerous individual” unless the State proves
the following elements as provided in N.D.C.C. § 25-03.3-01(8):

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 (1) the individual has engaged in sexually predatory conduct, (2)
the individual has a congenital or acquired condition that is
manifested by a sexual disorder, a personality disorder, or other
mental disorder or dysfunction, and (3) the individual’s condition
makes them likely to engage in further acts of sexually predatory
conduct which constitute a danger to the physical or mental health
or safety of others.

In re Johnson, 2016 ND 29, ¶ 3, 876 N.W.2d 25 (quoting Interest of Johnson,
2015 ND 71, ¶ 5, 861 N.W.2d 484). Moreover, this Court has recognized
substantive due process requires additional proof beyond the three statutory
elements:

In addition to the three statutory requirements, to satisfy
substantive due process, the State must also prove the committed
individual has serious difficulty controlling his behavior. . . . We
construe the definition of a sexually dangerous individual to mean
that proof of a nexus between the requisite disorder and
dangerousness encompasses proof that the disorder involves
serious difficulty in controlling behavior and suffices to distinguish
a dangerous sexual offender whose disorder subjects him to civil
commitment from the dangerous but typical recidivist in the
ordinary criminal case.

In Interest of Nelson, 2017 ND 152, ¶ 4, 896 N.W.2d 925 (quoting Matter of
Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). A civil commitment requires a
connection between the disorder and the individual’s inability to control his or
her actions. Id.

[¶15] Before addressing the substance of the district court’s finding that Buller
is a sexually dangerous individual who is in continued need of treatment and
rehabilitation, we have considered deficiencies in Buller’s pleadings to this
Court. Under N.D.R.App.P., Rule 28(b)(7), an appellant’s brief must include
argument consisting of the following:

(A) appellant’s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant
relies; and

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 (B) for each issue, a concise statement of the applicable standard
of review (which may appear in the discussion of the issue or under
a separate heading placed before the discussion of the issues); and
(C) if the appeal is from a judgment ordered under N.D.R.Civ.P.
54(b), whether the certification was appropriate;
(D) a short conclusion stating the precise relief sought.

[¶16] In State v. Noack, 2007 ND 82, ¶ 9, 732 N.W.2d 389, this Court
explained:

Of the requirements imposed by N.D.R.App.P. 28, three are
absolutely imperative for our review. At a minimum, a brief must
contain a statement of the issues presented for review; a statement
of the facts and, where those facts are disputed, references to the
evidentiary record supporting the appellant’s statement of the
facts; and the appellant’s legal argument, including the authorities
on which the appellant relies. Without these essential elements
included in the appellant’s brief, we decline to address the alleged
errors because the case is not properly before us.

[¶17] “This Court may impose sanctions for a failure to comply with the
minimum requirements of the rule, including dismissal of an appellant’s
appeal.” Dieterle v. Dieterle, 2013 ND 71, ¶ 36, 830 N.W.2d 571. “We are not
ferrets, obligated to engage in unassisted searches of the record for evidence to
support a party’s position, and we will not consider arguments not adequately
articulated, supported, and briefed.” State v. Gates, 2020 ND 237, ¶ 8. In Gates,
this Court found it was unable to meaningfully review the alleged errors of the
district court when the appellant’s brief failed to adequately explain why the
court erred and the brief did not provide legal argument. Id. at ¶¶ 7-9. Even
though the appellant’s brief in Gates contained the items listed in
N.D.R.App.P. 28(b)(1)-(8), the Court exercised its authority to dismiss the
appeal. Gates, at ¶¶ 7, 9.

[¶18] Similar to the appellant in Gates, Buller has not provided a legal
argument to support his contention the district court’s order was not supported
by clear and convincing evidence. The extent of Buller’s appellate argument on
the issue is as follows:

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 107. The Order Granting Petition, is not supported by clear and
convincing evidence.
108. The Order Granting Petition, dated May 29, 2020 failed to
make specific findings of fact, conclusions of law, and order for
judgment.
109. The Court did find that Buller has engaged in sexually
predatory conduct. (Order Granting Petition, p. 5).
110. Similarly, it found that Buller has a diagnosis of Antisocial
Personality Disorder (Order Granting Petition, p. 5-6).
111. Thirdly, both evaluations opined that the disorder made
Buller more likely to engage in certain acts of sexually predatory
conduct. (Order Granting Petition, p. 7-8).
112. Finally, the State’s evaluator concluded that there was a
nexus between Buller’s condition and the danger to others physical
or mental health such that he will have serious difficulty in
controlling his behavior.
113. Buller does not believe that the Order Granting Petition was
supported by clear and convincing evidence.

[¶19] Contrary to Buller’s assertion that the district court “failed to make
specific findings of fact, conclusions of law, and order for judgment,” the court
entered a twelve page order including findings on each of the three statutory
requirements and whether Buller has serious difficulty controlling his
behavior. The court’s findings provided specific citations to documents received
into evidence during the proceedings. After reviewing the court’s findings and
Buller’s brief to this Court, we conclude Buller has failed to adequately
articulate, support, and brief his contention the court erred in finding he is a
sexually dangerous individual who is in continued need of treatment and
rehabilitation. Buller has failed to adequately explain how the court erred, and
we are unable to provide meaningful review of the alleged errors. We affirm
the court’s findings that Buller is a sexually dangerous individual who is in
continued need of treatment and rehabilitation.

IV

[¶20] In light of this Court’s directive in the prior proceedings that the State
could file “a new petition based on existing or new facts,” the current
proceedings are not barred by res judicata. Buller has failed to adequately

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explain how the district court erred and we are unable to provide meaningful
review of his challenge to the court’s findings. We affirm the court’s findings
and order that Buller is a sexually dangerous individual who is in continued
need of treatment and rehabilitation.

[¶21] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte

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