Opinions

Welch Construction & Excavating, LLC v. Duong 2016 ND 70
Docket No.: 20150197
Filing Date: 3/18/2016
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: A party claiming breach of contract must prove the existence of a contract, a breach of the contract, and damages flowing from the breach.
Whether a party has breached a contract is a finding of fact subject to the clearly erroneous standard of review.

Schurmann v. Schurmann 2016 ND 69
Docket No.: 20150206
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To modify parenting time, the moving party must demonstrate a material change in circumstances has occurred since entry of the previous parenting time order and the modification is in the best interests of the child.
A restriction on parenting time must be supported by a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.
If an obligor fails to furnish reliable information concerning the obligor's gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed.

State v. James 2016 ND 68
Docket No.: 20150111
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: To justify stopping a moving vehicle for investigation, a law enforcement officer must have a reasonable and articulable suspicion a motorist has violated or is violating the law.
Whether an officer had a reasonable and articulable suspicion is a fact-specific inquiry that is evaluated under an objective standard considering the totality of the circumstances.

Matter of K.J.C. (Confidential) 2016 ND 67
Docket No.: 20150373
Filing Date: 3/15/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: In termination of parental rights proceedings, the custodial parent's refusal to cooperate with the noncustodial parent's attempts to maintain a relationship with the child is not insignificant in deciding whether the noncustodial parent abandoned the child, but the noncustodial parent must take affirmative steps to perform parental duties and foster a relationship with the child.
Parents have a duty to support their children.

4APM, LLP v. TCI Insurance Agency, Inc. 2016 ND 66
Docket No.: 20150243
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Malpractice
Author: McEvers, Lisa K. Fair

Highlight: Generally, an insurance agent's duty of care to an insured requires the agent to act in good faith and follow instructions.
An insurance agent's duty of care may be enhanced if there is a special relationship between the agent and the insured.

State v. Costa 2016 ND 65
Docket No.: 20150248
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Counsel may not comment on facts not in evidence during closing argument, and a prosecutor may not vouch for evidence during closing argument.

Cudmore v. N.D. Dep't of Transportation 2016 ND 64
Docket No.: 20150282
Filing Date: 3/15/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Before deciding whether to submit to chemical testing, an individual has a qualified statutory right to consult with an attorney.
If a DUI arrestee who has been asked to take a chemical test makes any mention of a need for an attorney, the officer must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity for the arrestee to do so.
If an arrestee makes only a passing reference to an attorney rather than mentioning a need for an attorney, an arrestee is not denied his limited statutory right to counsel prior to chemical testing.

State v. Keller 2016 ND 63
Docket No.: 20150132
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion by refusing to give jury instructions that inadequately and inaccurately reflect the law.

Curtiss v. State (cross-ref. w/20150007) 2016 ND 62
Docket No.: 20150284
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The applicant in a post-conviction relief case has the burden of establishing grounds for relief.
When deciding an application for post-conviction relief, the district court is not required to review the criminal trial transcript when the transcript has not been filed with the court.
Harmless error is error that does not affect the parties' substantial rights.

Degnan v. Degnan 2016 ND 61
Docket No.: 20150244
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion in granting spousal support and attorney's fee awards in amounts less than the requesting spouse's alleged need.
A district court does not abuse its discretion by denying a motion for a new trial when the facts and circumstances of the case do not display an unreasonable, arbitrary or unconscionable attitude.