Opinions

Vacancy in Judgeship No. 3, NECJD 2017 ND 220
Docket No.: 20170270
Filing Date: 9/18/2017
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judicial Vacancy Filled.

Markgraf, et al. v. Welker, et al. (cross-reference w/ 20150116) 2017 ND 219
Docket No.: 20160449
Filing Date: 9/7/2017
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: A resulting trust exists where the parties' acts or expressions indicate an intent that a trust relation resulted from their transaction conveying property.
The statute of limitations generally does not run between the trustee and the trust beneficiaries until the trustee clearly repudiates the trust.
To constitute a repudiation, the trustee must say or do something in open contravention of the terms of the trust and of such character that the parties' relations will become and continue to be hostile.

Kulczyk, et al. v. Tioga Ready Mix Co., et al. 2017 ND 218
Docket No.: 20160330
Filing Date: 9/1/2017
Case Type: Appeal - Civil - Foreclosure
Author: VandeWalle, Gerald

Highlight: Res judicata prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties.
An action against a guarantor is based on the contract of guaranty which is an obligation distinct from the obligation imposed by a promissory note and mortgage.

Zundel, et al. v. Zundel 2017 ND 217
Docket No.: 20170003
Filing Date: 9/1/2017
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: In general, property not used for the production of agricultural crops, livestock, or livestock products is not agricultural land.
If a claim is found to be frivolous, reasonable attorney's fees must be awarded.
If the law is unclear or unsettled on a particular claim, that circumstance makes it less likely that the claim will be found frivolous.

Disciplinary Board v. Lee 2017 ND 216
Docket No.: 20170241
Filing Date: 8/30/2017
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Disbarred.

Coon, et al. v. N.D. Dep't of Health, et al. 2017 ND 215
Docket No.: 20170089
Filing Date: 8/30/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The Department of Health administrative regulations require all concentrated animal feeding operations to apply for and obtain a pollutant discharge elimination system permit.
An administrative agency's decision to grant a permit will not be reversed on appeal if under the facts and circumstances of the case reversal would be a useless act.
The Department of Health is not required to reopen the public comment period when an applicant submits additional information in support of its application for a permit.

Lewis v. Smart 2017 ND 214
Docket No.: 20160341
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Divorce - Property
Author: Tufte, Jerod E.

Highlight: A district court's decision whether to grant relief under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion.
A district court must equitably distribute the parties' property and debts. Where a party has hidden assets and has chosen not to comply with the court's distribution order, the court may alter an agreement to restore equity despite that party's protestations.
A court does not abuse its discretion in awarding attorney's fees where it finds a party's actions have unreasonably increased the time spent on a case.

State v. Rath 2017 ND 213
Docket No.: 20170077
Filing Date: 8/29/2017
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: McEvers, Lisa K. Fair

Highlight: A supervisory writ is issued rarely and cautiously only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

Conrad v. Wilkinson 2017 ND 212
Docket No.: 20170074
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A pending lawsuit that does not affect title to real property may not be the basis for a party to file a lis pendens against the real property and an improperly filed lis pendens may be cancelled.

Schwartzenberger v. McKenzie County Board of County Commissioners 2017 ND 211
Docket No.: 20170024
Filing Date: 8/29/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: McEvers, Lisa K. Fair

Highlight: An appeal is not moot if the controversy is one of great public interest and involves the authority and power of public officials, or alternatively, if the matter is capable of repetition yet evading review.
A board of county commissioners may not restrict an elected county sheriff's authority to fire an employee hired by the sheriff except through personnel policies that do not usurp or significantly interfere with the sheriff's authority to fire employee's in the sheriff's office.