Carol Ronning Kapsner, Justice Disciplinary Board v. McCray , 2008 ND 162,
(Concurring)
Highlight of the Opinion of the Court:
Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5, 4.1, 5.4, 5.5(e), 7.3(a), 8.4(c), (f), and (g), and N.D.R. Lawyer Discipl. 1.2A(3) and (8).
Improper solicitation of clients occurs when a lawyer involves himself with an organization that independently targets and solicits prospects for his representation.
Makedonsky v. ND Department of Human Services , 2008 ND 49, 746 N.W.2d 185
(Joined in dissent)
Highlight of the Opinion of the Court:
An applicant for Medicaid benefits has the burden of proving eligibility.
An applicant for Medicaid benefits may be required to initiate an appropriate legal action to make an asset available for purposes of calculating eligibility for Medicaid benefits.
An attorney in fact has a relation of personal confidence with the principal and is deemed a trustee, and all transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.
Interest of B.B. , 2008 ND 51, 746 N.W.2d 411
(Dissenting)
Highlight of the Opinion of the Court:
A child is deprived if clear and convincing evidence shows the child is without the proper parental care necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents or guardians.
Reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home, and to make it possible for a child to return safely to the child's home.
Matter of Barrera , 2008 ND 25, 744 N.W.2d 744
(Concurring)
Highlight of the Opinion of the Court:
Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Under the statute for committing a sexually dangerous person, 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 a criminal case.
Frueh v. Frueh , 2008 ND 26, 745 N.W.2d 362
(Concurring)
Highlight of the Opinion of the Court:
In considering whether the moving party has established a prima facie case warranting an evidentiary hearing on a motion to change custody, a district court may not weigh conflicting issues of fact raised in the parties' affidavits.
On appeal, the denial of an evidentiary hearing on a motion to change custody is reviewed under an abuse-of-discretion standard.
Overland v. Overland , 2008 ND 6, 744 N.W.2d 67
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A district court's division of property does not need to be equal to be equitable, but any substantial disparity must be explained.
When awarding spousal support, a district court must consider the relevant factors under the Ruff-Fischer guidelines. A court must also consider the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.
Matter of Midgett , 2007 ND 198, 742 N.W.2d 803
(Dissenting)
Highlight of the Opinion of the Court:
The Sixth Amendment does not apply to a civil commitment proceeding for a sexually dangerous individual.
In a civil commitment proceeding for a sexually dangerous individual, evidence of prior sexually predatory conduct or criminal conduct, including a record of the juvenile court, is admissible.
Axtmann v. Chillemi , 2007 ND 179, 740 N.W.2d 838
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The officers and directors of a corporation generally are not liable for the ordinary debts of the corporation, but a corporation's corporate veil may be disregarded when the corporation has insufficient capitalization for purposes of the corporate undertaking.
A district court's decision to pierce a corporate veil and impose personal liability on an officer or director is reviewed under the clearly erroneous standard.
State v. Hemmes , 2007 ND 161, 740 N.W.2d 81
(Concurring)
Highlight of the Opinion of the Court:
Brady v. Maryland, 373 U.S. 83 (1963) does not apply to probation revocation proceedings.
The evidentiary disclosure requirements of N.D.R.Crim.P. 16 apply to probation revocation proceedings.
Interest of T. E. , 2007 ND 166, 740 N.W.2d 100
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A State Hospital patient can be subject to more than one 90-day forced medication order.
The refusal-of-medication requirement of N.D.C.C.  25-03.1-18.1(1)(a)(2) can be met when a patient who is not literally refusing medication but is taking medication only because of a prior forced medication order indicates he would not take further medication unless ordered to do so by a court.
Tedford v. Workforce Safety and Insurance , 2007 ND 142, 738 N.W.2d 29
(Dissenting)
Highlight of the Opinion of the Court:
The retirement offset provision, N.D.C.C. 65-05-09.2, authorizing offset of social security retirement benefits against workers compensation disability benefits, does not apply to injured employees who were receiving benefits for a total disability prior to the statute's effective date.
In determining whether an administrative agency acted without substantial justification, triggering an award of actual attorney fees and costs under N.D.C.C. 28-32-50(1), the fact that a judge at an earlier stage of the proceedings agreed with the agency's position is persuasive evidence that the position was substantially justified.
Estate of Allmaras , 2007 ND 130, 737 N.W.2d 612
(Dissenting)
Highlight of the Opinion of the Court:
A conservator has discretionary authority to manage the protected person's estate, subject to the conservator's fiduciary responsibilities and taking into account any known estate plan of the protected person.
A payable-on-death beneficiary has no present interest in the account, no right to prevent the depositor from removing the account funds and effectively destroying the beneficiary designation, and no right to preclude the depositor from changing or removing the beneficiaries on the account.
State v. Vantreece , 2007 ND 126, 736 N.W.2d 428
(Dissenting)
Highlight of the Opinion of the Court:
Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.
Scheer v. Altru Health System , 2007 ND 104, 734 N.W.2d 778
(Concurred in result)
Highlight of the Opinion of the Court:
A dismissal without prejudice is ordinarily not appealable; however, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.
North Dakota's medical malpractice law requires a plaintiff to serve the defendant with an admissible expert affidavit that supports a prima facie case of malpractice within three months of serving the summons.
The trial court may set a later date for serving the affidavit for good cause shown by the plaintiff.
The trial court must dismiss the case without prejudice, on motion by the defendant, for a plaintiff's failure to timely serve the affidavit or move for good cause.
A plaintiff may move for good cause as late as in response to the defendant's motion to dismiss.
Interest of D.M., a child , 2007 ND 62, 730 N.W.2d 604
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A lower court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
A finding that someone "has issues" or "struggled with issues" is meaningless as a matter of law.
When there has been an extensive period during which efforts have been made to overcome a parent's inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.
A history of alcohol and drug abuse combined with numerous failed attempts at controlling the addiction, together with evidence of a failure to fully cooperate with social service workers to receive the necessary treatment and services to become a fit parent, demonstrates a very poor prognosis for a parent's ability to provide minimally adequate care for a child.
When the mental and physical health of a child are the concerns, it is not enough that a parent indicate a desire to improve. A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.
Lorenz v. Lorenz , 2007 ND 49, 729 N.W.2d 692
(Joined in concurrence)
Highlight of the Opinion of the Court:
In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.
Matter of Anderson , 2007 ND 50, 730 N.W.2d 570
(Dissenting)
Highlight of the Opinion of the Court:
The district court may extend for good cause the 60-day period within which a commitment hearing must be held.
For the civil commitment proceedings under N.D.C.C. ch. 25-03.3, the legislature specifically excluded the right to a jury trial.
Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Sexually predatory conduct includes the act of compelling another to submit to sexual contact by force. It also includes sexual contact with a minor when the actor is an adult.
A person need not be diagnosed with a sexual disorder. The actor need only have a congenital or acquired condition that is manifested by a personality disorder or other mental disorder or dysfunction.
Under the statute for committing a sexually dangerous person, 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 a criminal case.
State v. Olson , 2007 ND 40, 729 N.W.2d 132
(Concurring)
Highlight of the Opinion of the Court:
Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) Terry stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which are not Fourth Amendment seizures.
Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.
The "lateness of the hour" is another factor that may raise the level of suspicion sufficient to justify an investigative stop.
Whitecalfe v. ND Dept. of Transportation , 2007 ND 32, 727 N.W.2d 779
(Concurred in result)
Highlight of the Opinion of the Court:
The Department of Transportation must meet the basic and mandatory provisions of the statute to have authority to revoke driving privileges.
When a licensee is arrested for driving under the influence and receives an initial notice of revocation of driving privileges, the licensee is not denied due process simply because the initial notice does not include a statement of the arresting officer's probable cause.
Interest of R.S. , 2006 ND 253, 725 N.W.2d 193
(Joined in dissent)
Highlight of the Opinion of the Court:
For mental health commitment, the law allows a court to act on warnings and does not require actual violence or expressed threats.
A mentally ill person, convinced that snipers are out to get him, who, armed with a gun, walks directly into a police station without stopping at the front reception desk may pose a serious risk of harm to others.
State v. Doohen , 2006 ND 239, 724 N.W.2d 158
(Dissenting)
Highlight of the Opinion of the Court:
A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement.
Under the automobile exception, law enforcement may search for illegal contraband without a warrant when probable cause exists.
A police officer may draw inferences based on his own experience in deciding whether probable cause exists.
Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious individual would warrant a belief that certain items may be contraband or useful as evidence of a crime.
Rojas v. Workforce Safety and Ins. , 2006 ND 221, 723 N.W.2d 403
(Dissenting)
Highlight of the Opinion of the Court:
An injured employee is entitled to an award of reasonable attorney's fees when Workforce Safety and Insurance acts without substantial justification in reducing or denying the employee's benefits.
Stenvold v. Workforce Safety & Insurance , 2006 ND 197, 722 N.W.2d 365
(Concurring)
Highlight of the Opinion of the Court:
An administrative agency generally may not consider evidence which has not been offered, admitted, and made a part of the official record of the administrative proceeding.
The district court's appellate review of an administrative agency decision is limited to the agency record filed with the court.
Wilson v. Ibarra , 2006 ND 151, 718 N.W.2d 568
(Joined in dissent)
Highlight of the Opinion of the Court:
To justify a termination of all visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail.
Molitor v. Molitor , 2006 ND 163, 718 N.W.2d 13
(Dissenting)
Highlight of the Opinion of the Court:
A trial court's custody decision is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
A trial court's findings of fact in child custody cases should be stated with sufficient specificity to enable the appellate court to understand the factual basis for the court's decision.
The failure to raise the issue of judicial bias in the trial court precludes appellate court review on appeal.
When a party seeking modification of custody within two years of issuance of a custody order does not prove any of the grounds listed under N.D.C.C. 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody.
Knutson v. City of Fargo , 2006 ND 97, 714 N.W.2d 44
(Concurred in result)
Highlight of the Opinion of the Court:
Under the North Dakota Constitution, inverse condemnation requires a public entity's taking or damaging an owner's property by some deliberate act, whether done intentionally, negligently, or innocently.
For intentional trespass, the plaintiff must establish the defendant intentionally entered the land of another, or caused a thing or third person to do so, without the consent of the landowner.
Public entities are not liable in negligence for discretionary functions or duties.
To decide whether a governmental act is protected by discretionary immunity, the court must examine whether the action is a matter of choice for the acting employee and whether that judgment or choice is of the kind that discretionary immunity was designed to shield.
Interest of P.F. , 2006 ND 82, 712 N.W.2d 610
(Concurring)
Highlight of the Opinion of the Court:
A preliminary hearing must be held within seventy-two hours of the filing of a petition for commitment of a sexually dangerous individual. The purpose of the hearing is to determine whether there is probable cause to believe that individual is sexually dangerous.
Expert testimony is not required at the preliminary hearing.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.
In determining whether a person is "sexually dangerous," the State's experts may rely on all sexual predatory conduct, not just that conduct that resulted in a successful conviction on a sexual offense.
Matter of G.R.H. , 2006 ND 56, 711 N.W.2d 587
(Dissenting)
Highlight of the Opinion of the Court:
Involuntary civil commitment of a sexually dangerous person is reviewed under modified clearly erroneous standard of review.
Under statute for committing sexually dangerous person, proof of 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 a criminal case.
The executive director of the Department of Human Services may decide the least restrictive available treatment for a sexually dangerous individual, and that procedure does not violate due process or double jeopardy.
Beckler v. Bismarck Public School Dist. , 2006 ND 58, 711 N.W.2d 172
(Dissenting)
Highlight of the Opinion of the Court:
The party resisting summary judgment cannot merely rely on pleadings, briefs, unsupported and conclusory allegations, or speculation to defeat a summary judgment motion but must present enough evidence for a reasonable jury to find for the plaintiff.
To succeed in a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant failed to discharge that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant's negligence.
A landowner owes a duty of care to lawful entrants to keep its property in a reasonably safe condition, considering all the circumstances, which include the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
A proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred.
Maynard v. McNett , 2006 ND 36, 710 N.W.2d 369
(Dissenting)
Highlight of the Opinion of the Court:
When divorced parents share custody, the designation of a single custodian is not required, each parent can be declared a custodian, and both parents have all the legal rights designated to a custodial parent.
A parent with joint legal and physical custody may not be granted permission to move with the divorced parents' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent.
A parent with joint physical and legal custody who wishes to relocate with the child must make two motions before the parent may be given permission to relocate: one for a change of custody and one to relocate with the child.
When a parent with joint legal and physical custody moves for change of custody and permission to relocate, the statutory best-interests-of-the-child factors must be applied rather than the Stout-Hawkinson factors, because the Stout-Hawkinson factors were designed to address the best interests of the child when a primary custodian has already been designated.
Interest of M.M. , 2005 ND 219, 707 N.W.2d 78
(Dissenting)
Highlight of the Opinion of the Court:
A district court's finding that a person is mentally ill and requires treatment will not be reversed unless it is clearly erroneous.
A district court's finding that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless clearly erroneous.
A district court's order for involuntary hospitalization must be based on clear and convincing evidence that there is a serious risk the individual will harm himself, others, or property if not hospitalized.
To authorize involuntary treatment with medication, the district court must find by clear and convincing evidence that the prescribed medication is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of the treatment outweigh known risks.
Jangula v. Jangula , 2005 ND 203, 706 N.W.2d 85
(Concurring)
Highlight of the Opinion of the Court:
Once separate property, or property exempt from being included as marital property, is commingled, placed into a joint bank account, or placed in joint tenancy, the property no longer has any separate identity and therefore becomes marital property.
State v. Frankfurth , 2005 ND 167, 704 N.W.2d 564
(Concurring)
Highlight of the Opinion of the Court:
A criminal information must contain all essential elements of the offense in order to charge that offense.
A motion to arrest the judgment may be made after trial when the information fails to charge a crime.
A defective information failing to charge a crime cannot be "cured" through proper jury instruction or other means short of amendment.
Lagro v. Lagro , 2005 ND 151, 703 N.W.2d 322
(Dissenting)
Highlight of the Opinion of the Court:
An abuse-of-discretion standard is used to review a district court's denial of an evidentiary hearing on a change-of-custody motion.
A party seeking a change of custody must present prima facie evidence to warrant an evidentiary hearing. Prima facie evidence is admissible evidence that, if uncontradicted, would be sufficient to justify a judgment in the presenting party's favor. Affidavits must be competent in order to fulfill the legislative requirement of showing prima facie evidence before the moving party is entitled to an evidentiary hearing.
Guardianship of Barros , 2005 ND 122, 701 N.W.2d 402
(Concurring and dissenting)
Highlight of the Opinion of the Court:
To terminate a voluntary guardianship, a fit parent must prove by a preponderance of the evidence that the impediments leading to the creation of the guardianship have been removed.
A rebuttable presumption exists that parental custody is in the best interests of the child.
The guardians must overcome the presumption that parents have a superior right to the custody of their children and prove by a preponderance of the evidence that it is in the child's best interest to continue the guardianship.
Makeeff v. City of Bismarck , 2005 ND 60, 693 N.W.2d 639
(Joined in concurrence)
Highlight of the Opinion of the Court:
A landowner is not immune from liability for an accident that occurs on the landowner's premises just because the accident was caused by a natural accumulation of snow and ice.
Landowners or occupiers have a duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of an injury, and the burden of avoiding the risk.
Landowners, however, are not insurers of their premises, nor must they endure unreasonable burdens to maintain it.
Sweeney v. Sweeney , 2005 ND 47, 693 N.W.2d 29
(Concurring)
Highlight of the Opinion of the Court:
In divorce proceedings, a trial court must award reasonable attorney fees and court costs to one parent if it finds the other parent has made an allegation of harm to the child that is false and not made in good faith or if the court finds there has been willful and persistent denial of the noncustodial parent's visitation rights by the custodial parent.
The court cannot, to avoid imposing a significant burden on the offending party or to avoid disrupting the parties' improved relationship, ignore its mandate to award reasonable attorney fees and costs when there has been willful and persistent denial of visitation rights.
Interest of R.F. , 2005 ND 54, 692 N.W.2d 905
(Dissenting)
Highlight of the Opinion of the Court:
An individual found to be a person requiring mental-health treatment has the right to the least restrictive conditions necessary to achieve the purposes of treatment.
Orders for in-patient hospitalization and treatment are reviewed under the clearly erroneous standard. A district court's finding that alternative treatment is inadequate or that hospitalization is the least restrictive alternative will not be set aside unless clearly erroneous.
An order for in-patient hospitalization is not clearly erroneous where a doctor testifies that a mentally ill individual's dementia, which has yet to be fully diagnosed or treated, likely triggered a prescription-drug overdose, and asserts that the hospital's structure and supervision are temporarily needed to help avoid future self-medication accidents.
Interest of R.R. , 2004 ND 183, 690 N.W.2d 429
(Concurred in result)
Highlight of the Opinion of the Court:
A district court is required only to determine whether treatment other than hospitalization is appropriate, not which unit in the hospital is appropriate.
A district court order requiring treatment at the State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Evenson v. Quantum Industries, Inc. , 2004 ND 178, 687 N.W.2d 241
(Dissenting)
Highlight of the Opinion of the Court:
The parol evidence rule precludes the use of evidence of prior oral negotiations and agreements to vary or add to the terms expressed in a written contract.
Preliminary oral statements and promises related to the terms of the contract do not provide the basis for a fraud claim if there is a subsequent written contract.
Interest of R.H. , 2004 ND 170, 686 N.W.2d 107
(Concurred in result)
Highlight of the Opinion of the Court:
A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
Riemers v. Peters-Riemers , 2004 ND 153, 684 N.W.2d 619
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Collateral estoppel generally bars new litigation, based on a different claim, of issues that were or must have been determined in the prior suit.
Collateral estoppel bars relitigation of an issue if: (1) the issue decided in the prior adjudication is identical to the one presented; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted had a fair opportunity to be heard on the issue.
A court of this state that has made a child custody determination has exclusive, continuing jurisdiction over the determination.
No civil action lies for perjury in another proceeding.
Res judicata means that a valid, existing final judgment from a court of competent jurisdiction is conclusive, with regard to the issues raised, or those that could have been raised, and determined as to the parties and their privies in all other actions.
A trial court's denial of a motion for a continuance to amend a complaint will not be reversed unless the trial court abused its discretion.
A trial court's denial of a motion for a continuance to conduct additional discovery will not be reversed unless the trial court abused its discretion.
Interest of T.F. , 2004 ND 126, 681 N.W.2d 786
(Joined in concurrence)
Highlight of the Opinion of the Court:
Under federal law, termination of parental rights to an Indian child requires proof beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
Incarceration of a parent, by itself, does not establish abandonment of a child for purposes of terminating parental rights.
A probability of serious mental and emotional harm to the child may be established from a parent's current inability to properly care for the child.
Duma v. Keena , 2004 ND 104, 680 N.W.2d 627
(Concurred in result)
Highlight of the Opinion of the Court:
Unopposed instructions become the law of the case.
A special verdict will be set aside only if it is perverse and clearly contrary to the evidence. Reconciliation of a verdict includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.
Rydberg v. Rydberg , 2004 ND 73, 678 N.W.2d 534
(Dissenting)
Highlight of the Opinion of the Court:
Issues on appeal are not restricted to those raised in a motion to alter or amend the judgment as long as the issues were raised at the district court.
A statute of limitations acts only to bar the bringing of the specified action and does not affect other remedies.
Paternity can be rebutted by clear and convincing evidence or by a court decree establishing paternity of the child by another man.
Genetic tests are enough to rebut the presumption of paternity by clear and convincing evidence.
Winer v. Penny Enterprises, Inc. , 2004 ND 21, 674 N.W.2d 9
(Joined in dissent)
Highlight of the Opinion of the Court:
A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
A state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident on a state highway within the exterior boundaries of an Indian reservation.
Interest of K.P. , 2003 ND 114, 665 N.W.2d 65
(Concurring)
Highlight of the Opinion of the Court:
To modify an alternative treatment order, a trial court must find by clear and convincing evidence: (1) the respondent is not complying with the alternative treatment order; or (2) the alternative treatment is not sufficient to prevent the respondent from harming the respondent or others.
Van Klootwyk v. Baptist Home , 2003 ND 112, 665 N.W.2d 679
(Concurring)
Highlight of the Opinion of the Court:
The three-month period for providing an admissible expert opinion under N.D.C.C. 28-01-46 applies only when a lawsuit based upon professional negligence is brought against a physician, nurse, or hospital, not a nursing home.
State v. Matthews , 2003 ND 108, 665 N.W.2d 28
(Dissenting)
Highlight of the Opinion of the Court:
A warrantless search of a dwelling for the purpose of investigation may be upheld under the emergency doctrine when the primary intent of the investigation is to render aid or assistance to someone in a dangerous situation.
An emergency doctrine search requires that: (1) the police have reasonable grounds to believe there is an emergency at hand and there is an immediate need for police assistance for the protection of life or property; (2) the search must not be motivated primarily by intent to arrest and seize evidence; (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Malchose v. Kalfell , 2003 ND 75, 664 N.W.2d 508
(Concurring)
Highlight of the Opinion of the Court:
A trial court may determine a document is authentic based on the proponent's chain of custody testimony and the document's internal indicia of trustworthiness.
The public record exception to the hearsay rule applies to all records and data compilations of a public agency, including those not generally accessible to the public. The availability of a custodian or other witness with knowledge of the making of the record is not a requirement for admissibility.
Johnson Farms v. McEnroe , 2002 ND 122, 656 N.W.2d 1
(Dissenting)
Highlight of the Opinion of the Court:
A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made.
Johnson Farms v. McEnroe , 2002 ND 122, 656 N.W.2d 1
(Dissenting)
Highlight of the Opinion of the Court:
A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made.
State v. Boyd , 2002 ND 203, 654 N.W.2d 392
(Concurring)
Highlight of the Opinion of the Court:
A community caretaking encounter does not involve detecting, investigating, or acquiring evidence related to a potential legal violation.
The test to determine whether an officer had a reasonable and articulable suspicion to justify an investigatory stop is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.
Wanner v. N.D. Workers Comp. Bureau , 2002 ND 201, 654 N.W.2d 760
(Joined in dissent)
Highlight of the Opinion of the Court:
While a failure to report income from work is material to the Bureau's ability to determine a claimant's entitlement to benefits and to calculate the amount of benefits, a failure to report money received apart from work is not similarly material
Absent a statutory or administrative definition of "work," an ordinary person would reasonably expect to have to report as work only activities performed in regular employment by others for remuneration, or showing an ability to regularly perform a gainful occupation, and would not ordinarily expect to have to report casual activities not done for remuneration and not performed for an employer.
Larson v. Norkot Manufacturing , 2002 ND 175, 653 N.W.2d 33
(Dissenting)
Highlight of the Opinion of the Court:
For a cause of action for an attorney's legal malpractice, there must be damages to the client proximately caused by the attorney's breach of a duty to the client; the statute of limitations does not begin to run until the client has incurred some damages from the alleged malpractice; and the statute of limitations is tolled until the client knows, or with reasonable diligence should know, of the injury, its cause, and the defendant attorney's possible negligence.
Quamme v. Bellino , 2002 ND 159, 652 N.W.2d 360
(Concurring)
Highlight of the Opinion of the Court:
When there has been an initial award of spousal support, the district court retains jurisdiction to modify the award at least as long as the spousal support continues.
The party seeking a change of spousal support bears the burden of showing a material change in circumstances warranting a modification.
Absent modifying language in the support award, the obligee is entitled to spousal support from the obligor's estate if the obligor predeceases the obligee.
State v. Berger , 2002 ND 143, 651 N.W.2d 639
(Concurred in result)
Highlight of the Opinion of the Court:
The beginning date of a probationary term is determined by the intent of the sentencing court as expressed in the language that created the probationary status.
A condition of probation capable of more than one construction is to be construed in favor of the offender.
State v. Yineman , 2002 ND 145, 651 N.W.2d 648
(Joined in concurrence)
Highlight of the Opinion of the Court:
To challenge a conviction based on the weight of the evidence, a defendant must make an appropriate motion to adequately preserve the issue for appeal.
To preserve the issue of sufficiency of the evidence for review, a defendant in a criminal jury trial must move for a judgment of acquittal under N.D.R.Crim.P. 29, although no motion for a judgment of acquittal is necessary in a bench trial.
Brandt v. Milbrath , 2002 ND 117, 647 N.W.2d 674
(Concurred in result)
Highlight of the Opinion of the Court:
Although prior driving behavior may be probative of negligence and comparative negligence, it may be excluded because of a witness's uncertainty as to the identity of the vehicle or driver.
The district court and appellate court apply different standards when considering a motion for a new trial.
When considering a motion for a new trial, based on insufficient evidence, the district court must weigh the evidence and examine the evidence supporting the verdict and the evidence challenging the verdict.
On appeal, the standard for reviewing an order denying a motion for new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict.
Shiek v. ND Workers Comp. Bureau , 2002 ND 85, 643 N.W.2d 721
(Dissenting)
Highlight of the Opinion of the Court:
When a claimant receives a prior and a subsequent permanent impairment award, the overall number of weeks the claimant is entitled to receive for both the prior and subsequent impairments is the number of weeks that corresponds to the combined value of the prior and subsequent impairments on a whole body basis.
Olander Contracting v. Gail Wachter Investments , 2002 ND 65, 643 N.W.2d 29
(Joined in concurrence)
Highlight of the Opinion of the Court:
Indemnification is a remedy allowing a party to recover reimbursement from another for the discharge of a liability that, as between them, should have been discharged by the other.
The district court may enter summary judgment on its own motion as long as the losing party was on notice it had to come forward with all its evidence.
An appealing party has the burden of establishing that the trial court erred and that the error was highly prejudicial to the appellant's cause.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.
A party waives an issue by not providing supporting argument.
A trial court has broad discretion over the nature and scope of written questions submitted to the jury, and appellate review is limited to determining whether the trial court abused its discretion.
North Dakota's prompt payment statute, N.D.C.C. ch. 13-01.1, does not apply while there is a reasonable dispute between a governmental agency and a business over the amount due or over compliance with a contract for property or services.
Opp v. Ward Co. Social Services Bd. , 2002 ND 45, 640 N.W.2d 704
(Dissenting)
Highlight of the Opinion of the Court:
Assets are actually available for Medicaid eligibility purposes when the applicant has a legal interest in a liquidated sum and has the ability through reasonable legal means to attempt to make the sum available for support.
State v. Baumgartner , 2001 ND 202, 637 N.W.2d 14
(Concurred in result)
Highlight of the Opinion of the Court:
One cannot be an accomplice without having the requisite criminal intent for the underlying offense, even if he or she is a co-conspirator.
Law enforcement officers who feign complicity in a crime in the pursuit of evidence are not accomplices.
The purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.
Bellefeuille v. Bellefeuille , 2001 ND 192, 636 N.W.2d 195
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A trial court does not abuse its discretion in denying a motion for relief from judgment, when the motion was made twenty-one years after the judgment was filed.
A trial court does not have jurisdiction to modify rehabilitative spousal support after the scheduled payments are completed, unless the trial court retains jurisdiction to do so within the decree.
Klein v. ND Workers Comp. Bureau , 2001 ND 170, 634 N.W.2d 530
(Dissenting)
Highlight of the Opinion of the Court:
The time period to file a claim for worker's compensation benefits begins on the first day a reasonable person, not learned in medicine, knew or should have known that the injury was work related.
Shiek v. ND Workers Comp. , 634 N.W.2d 493 (N.D. 2001)
(Dissenting)
Highlight of the Opinion of the Court:
Under the 1991 version of N.D.C.C. 65-05-09.3, claimants who become permanently and totally disabled on or before their intended retirement are eligible for disability benefits after that date.
Farstveet v. Rudolph , 2000 ND 189, 630 N.W.2d 24
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Abandonment of the homestead must be established by clear and convincing evidence that the debtor voluntarily departed from the homestead and left without the intent to return and occupy it as a home.
A creditor cannot set aside as fraudulent a transfer of homestead property that the debtor could have claimed as exempt.
Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Uniform Fraudulent Transfer Act and is not subject to a fraudulent transfer.
ND Fair Housing Council, Inc. v. Peterson , 2001 ND 81, 625 N.W.2d 551
(Dissenting)
Highlight of the Opinion of the Court:
Attorney General's opinions interpreting statutes do not bind the Court but will be followed if persuasive. Attorney General's opinions are afforded even greater consideration when they have been impliedly adopted by the legislature.
Refusing to rent to an unmarried couple because they are seeking to cohabit is not unlawful under the discriminatory housing practices provision of the North Dakota Human Rights Act.
McPhee v. Tufty , 2001 ND 51, 623 N.W.2d 390
(Concurred in result)
Highlight of the Opinion of the Court:
Whether the family car doctrine applies depends on the totality of the circumstances, and is a question of fact for the trier of fact to decide.
In deciding whether a vehicle was "used" by an insured when a third party was actually driving the insured's vehicle, courts analyze two factors: (1) whether the vehicle was under the supervision and control of the insured; and (2) whether the vehicle was being operated to serve a purpose of the insured.
Coverage of a newly acquired vehicle is automatic if notice is given within 30 days of its acquisition.
Owens v. State , 2001 ND 15, 621 N.W.2d 566
(Dissenting)
Highlight of the Opinion of the Court:
Post-conviction relief is denied for misuse of process when a petitioner presents issues the petitioner inexcusably failed to raise in a previous post-conviction hearing.
Davenport v. State , 2000 ND 218, 620 N.W.2d 164
(Concurring)
Highlight of the Opinion of the Court:
Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.
State v. Rubey , 2000 ND 119, 611 N.W.2d 888
(Dissenting)
Highlight of the Opinion of the Court:
The sex-offender-registration statute requires the offender to register even if a court has not advised the offender of the requirement.
"Address" as used in the sex-offender-registration statute includes an address used only for receiving mail, such as a post office box address.
Principal Residential Mortgage v. Nash , 2000 ND 21, 606 N.W.2d 120
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Notice of a sheriff's sale must be served on a party who has been participating in a foreclosure action.
A judgment creditor is allowed to recover from the sheriff's sale proceeds only the amount of the debt and the costs of the action, including the costs of the judicial sale.
A judgment creditor is not entitled to collect attorney fees under a provision in a mortgage as part of the amount due or as costs under N.D.C.C. 32-19-10.
State v. Burr , 1999 ND 143, 598 N.W.2d 147
(Dissenting)
Highlight of the Opinion of the Court:
Requiring sexual offender registration by those convicted before adoption of the registration statute is not punishment and is not an ex post facto clause violation.
Rowley, f/k/a Cleaver v. Cleaver , 1999 ND 158, 598 N.W.2d 125
(Concurring)
Highlight of the Opinion of the Court:
A district court has exclusive continuing jurisdiction over child support when the court made the initial award and one of the parties continues to live in North Dakota.
Service of process is valid under N.D.R.Civ.P. 5 for notice of a hearing to change the amount of child support.
Blikre v.ACandS, Inc. , 1999 ND 96, 593 N.W.2d 775
(Joined in concurrence)
Highlight of the Opinion of the Court:
The ten-year statute of repose under N.D.C.C. 28-01-44 does not apply to claims against a manufacturer or seller for injury caused by exposure, during construction, to a defective product, even though the defendant installed the product as part of an improvement to real property.
Haff v. Hettich , 1999 ND 94, 593 N.W.2d 383
(Concurring)
Highlight of the Opinion of the Court:
N.D.C.C. 32-03.2-02, modified comparative fault, changed common law tort principles to require apportionment of fault and damages between an original tortfeasor and a physician who negligently treats the original injury.
N.D.C.C. 32-03.2-02 does not violate substantive due process.
Under N.D.C.C. ch. 26.1-41, bodily injury arising out of the operation of a motor vehicle includes negligent medical treatment of personal injuries sustained in a motor vehicle accident.
Johnson v. Job Service North Dakota,et al. , 1999 ND 42, 590 N.W.2d 877
(Dissenting)
Highlight of the Opinion of the Court:
An executive director's refusal to answer, without her attorney present, questions asked by her board of directors through its attorney was disqualifying misconduct under N.D.C.C. 52-06-02.
State v. Overby , 1999 ND 47, 590 N.W.2d 703
(Joined in concurrence)
Highlight of the Opinion of the Court:
A warrantless search preceding arrest is a valid search incident to arrest provided probable cause to arrest existed before the search and the arrest and search are substantially contemporaneous.
The odor of marijuana emanating from a suspect's vehicle provides probable cause to make a warrantless arrest of the suspect, where the suspect is alone in his vehicle when he is stopped, no other vehicles or people are in the vicinity, the vehicle's door is open as the officer approaches, and the officer is well-trained in identifying the odor of marijuana.

Generated from Supreme Court Docket on 09/05/2008