New opinions: Oct. 21 Wednesday, October 21, 2020

Matter of Hehn 2020 ND 226
Docket No.: 20190353
Filing Date: 10/21/2020
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: McEvers, Lisa K. Fair

Highlight: Civil commitment decisions require detailed findings, including credibility determinations and references to evidence the court relied on in making its decision. Conclusory, general findings do not comply with N.D.R.Civ.P. 52(a).

Titan Machinery v. Kluver 2020 ND 225
Docket No.: 20200021
Filing Date: 10/21/2020
Case Type: CONTRACTS
Author: Tufte, Jerod E.

Highlight: In a bench trial, the district court decides credibility issues, and we will not second-guess the district court on its credibility decisions.

Indemnity is an equitable remedy that allows a party to recover reimbursement from another for the payment of a liability that, as between the two parties, should have been paid by the other.

Hunter v. State 2020 ND 224
Docket No.: 20200160
Filing Date: 10/21/2020
Case Type: POST-CONVICTION RELIEF
Author: Crothers, Daniel John

Highlight: Claims barred by res judicata are not preserved in post-conviction relief proceedings by combining them with claims of ineffective assistance of counsel.

Failure to show prejudice on an ineffective assistance of counsel claim results in failure of that claim.

WSI v. Tolman 2020 ND 223
Docket No.: 20200025
Filing Date: 10/21/2020
Case Type: WORKERS COMPENSATION
Author: VandeWalle, Gerald W.

Highlight: Statutory interpretation presents a question of law. Statutory provisions are given their plain, ordinary, and commonly understood meaning unless a contrary intention plainly appears.

For purposes of WSI benefits, a compensable injury includes a mental or psychological condition caused by a physical injury, but only when the physical injury is determined with reasonable medical certainty to be at least fifty percent of the cause of the condition as compared with all other contributing causes combined, and only when the condition did not preexist the work injury.

Thiele v. Bousquet, et al. 2020 ND 222
Docket No.: 20200146
Filing Date: 10/21/2020
Case Type: PERSONAL INJURY
Author: Per Curiam

Highlight: A summary judgment in a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Yost v. State 2020 ND 221
Docket No.: 20200125
Filing Date: 10/21/2020
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Gonzalez v. State 2020 ND 220
Docket No.: 20200079
Filing Date: 10/21/2020
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: A district court’s order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Lubitz 2020 ND 219
Docket No.: 20200118
Filing Date: 10/21/2020
Case Type: HOMICIDE
Author: Per Curiam

Highlight: Criminal conviction for murder summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Hoffarth v. Hoffarth 2020 ND 218
Docket No.: 20200129
Filing Date: 10/21/2020
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: McEvers, Lisa K. Fair

Highlight: A motion to reconsider an order disposing of a time-tolling post-trial motion does not continue tolling the time to file a notice of appeal.

It is not an abuse of discretion to deny an untimely motion.

Ring v. NDDHS 2020 ND 217
Docket No.: 20200072
Filing Date: 10/21/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: VandeWalle, Gerald W.

Highlight: When ruling on a motion for substitution upon a party’s death, the district court must determine whether the case was extinguished by the death, and if not, whether the party seeking substitution is the proper successor.

State v. Long 2020 ND 216
Docket No.: 20200050
Filing Date: 10/21/2020
Case Type: DUI/DUS
Author: Jensen, Jon J.

Highlight: A district court’s order denying the defendant’s motion to dismiss is affirmed.

Section 39-08-01(1)(f), N.D.C.C., which requires an individual be advised of the consequences of refusing a chemical test, is unambiguous and does not provide informing drivers of the right to refuse a chemical test.

City of Minot v. Miller 2020 ND 215
Docket No.: 20200121
Filing Date: 10/21/2020
Case Type: DUI/DUS
Author: Per Curiam

Highlight: Exclusion of a chemical test through the application of N.D.C.C. § 39-20-01(b) is not an available remedy in a criminal proceeding not involving a refusal.

State v. Trefethren 2020 ND 214
Docket No.: 20200116
Filing Date: 10/21/2020
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam

Highlight: Criminal judgment entered after a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

G & D Enterprises v. Liebelt 2020 ND 213
Docket No.: 20190256
Filing Date: 10/21/2020
Case Type: TORTS (NEGLIGENCE, LIAB., NUIS.)
Author: Tufte, Jerod E.

Highlight: The duty which gives rise to a nuisance claim is the absolute duty not to act in a way which unreasonably interferes with other persons’ use and enjoyment of their property.

To succeed on a trespass claim, 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.

A district court’s decision granting or denying injunctive relief is equitable in nature, rests within its sound discretion, and will not be reversed on appeal absent an abuse of discretion.

Bickel v. Bickel 2020 ND 212
Docket No.: 20200026
Filing Date: 10/21/2020
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: McEvers, Lisa K. Fair

Highlight: If the district court finds certain past income is an unreliable indicator of the obligor’s future income, the court must explain why the income it utilized in determining the child support obligation was appropriate.

If the district court bases a child support obligation on an income earned in less than a 12-month period, the court must explain why it did not utilize the evidence it had to extrapolate an income for a 12-month period.

Pursuant to N.D. Admin. Code § 75-02-04.1-02(9), each child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.

Generally, a modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date.

If the district court grants a movant relief on a motion to compel discovery, either in whole or in part, and the movant requests attorney’s fees, the court must consider whether an award of attorney’s fees is appropriate under N.D.R.Civ.P. 37(a)(5).

Toure v. State 2020 ND 211
Docket No.: 20200040
Filing Date: 10/21/2020
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: A district court’s order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Beyer v. State 2020 ND 210
Docket No.: 20200052
Filing Date: 10/21/2020
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of C.A.R. 2020 ND 209
Docket No.: 20190385
Filing Date: 10/21/2020
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Tufte, Jerod E.

Highlight: A party seeking termination of parental rights must prove all the elements by clear and convincing evidence.

If a petitioner proves his or her case under the clear and convincing standard of proof, then a district court has discretion to decide whether to terminate parental rights.

State v. Devine 2020 ND 208
Docket No.: 20200033
Filing Date: 10/21/2020
Case Type: HOMICIDE
Author: Jensen, Jon J.

Highlight: The exclusionary rule previously codified within N.D.C.C. § 39-20-01(3)(b) did not apply to a test obtained pursuant to N.D.C.C. § 39-20-01.1.

Bismarck Financial Group, et al. v. Caldwell 2020 ND 207
Docket No.: 20200005
Filing Date: 10/21/2020
Case Type: CONTRACTS
Author: McEvers, Lisa K. Fair

Highlight: A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint, and it must not be granted unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.

A person that wrongfully dissociates from a limited liability company is liable to the company and the other members for damages the dissociation causes.

Suelzle v. NDDOT 2020 ND 206
Docket No.: 20190343
Filing Date: 10/21/2020
Case Type: TRANSPORTATION DEPT.
Author: Tufte, Jerod E.

Highlight: A person may be arrested for actual physical control of a vehicle while under the influence of alcohol if the vehicle is located on private property in a private area to which the public has a right of access.

Whether property is a private area to which the public has a right of access is a question of fact, which may be determined by factors including: the existence or absence of signs, gates, or barriers; whether or not there is routine use by the public not specifically invited to use the property, such as for purposes of visiting, making deliveries, or otherwise interacting with the owner; and the location of the vehicle on the property.

Hall v. Hall, et al. 2020 ND 205
Docket No.: 20190169
Filing Date: 10/21/2020
Case Type: REAL PROPERTY
Author: McEvers, Lisa K. Fair

Highlight: A district court has greater liberty in granting motions under N.D.R.Civ.P. 60(b) when the matter involves a default judgment rather than a judgment following a full trial on the merits.

Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.

A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.

RFM-TREI Jefferson Apartments v. Stark County Board of Comm'rs 2020 ND 204
Docket No.: 20190396
Filing Date: 10/21/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: Tufte, Jerod E.

Highlight: An assessment that exceeds the true and full value of property is contrary to N.D.C.C. § 57-23-01, which provides that “assessments of any taxable property in excess of the full and true value in money are subject to correction and abatement and refund.” When a Board denies a request to abate such an assessment, it acts contrary to the legislature’s directive, and the Court will conclude the abatement denial is arbitrary and unreasonable.

In tax abatement and refund proceedings, taxing authorities may consider information that does not meet the standards for admissibility of evidence in court.