HOME OPINIONS SEARCH INDEX GUIDES LAWYERS RULES RESEARCH COURTS CALENDAR NOTICES NEWS SUBSCRIBE CUSTOMIZE COMMENTS North Dakota Supreme Court Opinions April 2005 April 29, 2005 Ernst v. Tjon, 2005 ND App 1 - Court of Appeals A summary judgment dismissing a defamation and libel action is summarily affirmed under N.D.R.App.P. 35.1(a)(6). Pautz v. N.B., 2005 ND App 2 - Court of Appeals A juvenile court order declaring a child delinquent and placing the child in the custody of the Division of Juvenile Services for one year is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2). Sorlie v. Workforce Safety and Insurance, 2005 ND 83 The pretermination due process procedures for terminating disability benefits do not apply to a lump-sum award. Claimants reapplying for disability benefits must show both a significant change in their medical condition and an actual wage loss caused by the significant change in their compensable medical condition. April 26, 2005 Aker v. N.D. Department of Transportation, 2005 ND 81 A judgment reversing an administrative agency decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7). Edinger v. Governing Authority of Stutsman Co. Correctional Center, 2005 ND 79 When the information available to a governing body suggests a reasonable probability of future litigation or adversarial administrative proceedings, the governing body may close a portion of a public meeting and meet in executive session to receive and discuss the advice of its attorney. Hanson v. Hanson, 2005 ND 82 A district court may modify a prior custody order after a two-year period following the date of entry of an order establishing custody if the court finds that a material change in circumstances has occurred and that the modification is necessary to serve the best interest of the child. A party seeking to modify a custody order bears the burden of showing that a change of custody is required. A district court must first calculate the presumptively correct child support amount before it can depart from the Child Support Guidelines. Interest of B.M., 2005 ND 78 A judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4). Jorgensen v. N.D. Department of Transportation, 2005 ND 80 Inclusion of chemical test results in an officer's certified report to the Director of the North Dakota Department of Transportation under N.D.C.C. 39-20-03.1(3) is a basic and mandatory provision without which the department may not suspend a person's driving privileges. State v. Bleibaum, 2005 ND 77 A criminal judgment following a jury conviction for aggravated assault, a class C felony, is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4). April 11, 2005 May v. Sprynczynatyk, 2005 ND 76 Failure of the Department of Transportation to file the transcript of the administrative hearing within twenty days, as required by N.D.C.C. 39-20-06, does not automatically mandate summary reversal of the decision suspending a driver's license. To establish systemic disregard of the law by an administrative agency sufficient to warrant reversal of a decision in the agency's favor, a party must demonstrate some persistent pattern of improper agency conduct. A party must make a specific objection to evidence at the time it is offered for admission into evidence to give the opposing party an opportunity to argue the objection and to give the trial court an opportunity to fully understand the objection and appropriately rule on it. April 6, 2005 H-T Enterprises v. Antelope Creek Bison Ranch, 2005 ND 71 The purpose of the no-counterclaim provision in the eviction statute is to get a speedy determination of possession. A defendant in an eviction action may show the character of the parties' possessory rights, evidence of a strained relationship having a bearing on whether a material breach has occurred, and affirmative defenses and counterclaims. Harter v. N.D. Department of Transportation, 2005 ND 70 Section 39-20-04.1(1)(a), N.D.C.C., provides penalties for persons under the age of 21 who drive with a blood alcohol concentration of at least .02 percent by weight. The rule of lenity, which requires ambiguities in the law to be interpreted in favor of a criminal defendant, does not apply in civil cases. Home of Economy v. Burlington Northern, 2005 ND 74 The Interstate Commerce Commission Termination Act of 1995 does not preempt state jurisdiction over railroad grade crossings. Litoff v. Pinter, 2005 ND 73 An order denying a motion for reinstatement of unsupervised visitation is summarily affirmed under N.D.R.App.P. 35.1(a)(4). Paulson v. Paulson, 2005 ND 72 A trial court cannot delegate to anyone the power to decide questions of child custody or related issues. When a party agrees to the court's appointing one person to serve as both custody investigator and guardian ad litem, that party waives the right to object that the court's appointee is in violation of the rules of court when she acts as the child's advocate and also testifies at the custody proceedings. A trial court's denial of a motion for continuance will not be set aside on appeal absent an abuse of discretion by the trial court. State of North Dakota v. NDSU, 2005 ND 75 For purposes of an insurance policy exclusion for surface water damage, surface water does not lose its character as surface water by being diverted underground through man-made structures. The efficient proximate cause doctrine applies only where two or more independent forces operate to cause the loss. The efficient proximate cause doctrine does not apply to a loss caused by a discernable cause even though the insured attempts to characterize the cause in various ways to create the appearance of multiple causes. A covered peril that is merely a concurrent cause is insufficient to allow coverage under the efficient proximate cause doctrine. April 4, 2005 Guardianship/Conservatorship of Van Sickle, 2005 ND 69 The Supreme Court will determine a moot issue if the matter is capable of repetition, yet evading review. A person has no right to demand to appear in a court proceeding and testify by telephone. A guardian may place a ward in a locked and secured unit of a basic care facility without first obtaining a court order. The party proposing the transfer of a ward to a more restrictive living arrangement has the burden of proving by clear and convincing evidence that the proposed placement is the least restrictive alternative available. A district court has discretion over the order in which evidence is presented. The best interest of a ward is served by appointing a non-family member as guardian when family members are unable to get along with each other. A district court does not abuse its discretion in denying a motion for new trial when the alleged error is raised for the first time in the motion for new trial and the alleged error could have been raised during the actual trial.