Opinions

Gonzalez v. Gonzalez 2005 ND 131
Docket No.: 20040374
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Proposed findings prepared by trial counsel become the findings of the court when it affixes its signature to them.
In addressing whether there is evidence of domestic violence that triggers the statutory presumption against the perpetrator receiving custody of a child, the trial court must make specific factual findings and conclusions.
When the trial court decides custody between two fit parents, the court on appeal will not retry the case or substitute its judgment for that of the trial court if there is evidence to support the decision.

Interest of C.H. (CONFIDENTIAL) 2005 ND 130
Docket No.: 20050209
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: 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.

Lee v. Lee 2005 ND 129
Docket No.: 20040184
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A child support amount must be established in accordance with the guidelines.
A spousal support award may be modified upon a showing of a material change in circumstances.
Attorney fees in a divorce action are based on a determination of one party's need and the other party's ability to pay.

Syvertson v. State 2005 ND 128
Docket No.: 20050016
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: When establishing a Brady violation, the knowledge of the North Dakota State Hospital is not imputed to the State's Attorney's Office.
Information publicly disseminated in a newspaper article is not newly discovered evidence.

Weinreis, et al. v. Hill, et al. 2005 ND 127
Docket No.: 20040305
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court must consider the apparent or ostensible authority of an individual exercising the functions of a corporate officer to bind the corporation to an agreement.

Anderson, et al. v. Selby 2005 ND 126
Docket No.: 20040289
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Parol evidence is admissible in an action to reform a deed when, through a mistake by one party which the other at the time knew of or suspected, the deed does not truly express the parties' intent.
A grantee may not recover attorney fees from a grantor in an action by the grantor to reform a warranty deed.

State v. Hatlewick 2005 ND 125
Docket No.: 20040336
Filing Date: 7/13/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A conviction is supported by sufficient evidence when a rational fact finder, viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, is able to determine from the evidence that a defendant is guilty beyond a reasonable doubt.
A trial court retains jurisdiction to issue a restitution order after a defendant has filed a notice of appeal from the criminal judgment.

State v. Seglen 2005 ND 124
Docket No.: 20040094
Filing Date: 7/13/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: The Fourth Amendment prohibition against unreasonable searches and seizures applies only to government action and not to private parties.
Consent is a recognized exception to the warrant requirement, and the State has the burden of proving consent.
A warrantless search of all patrons entering an arena when there is no history of violence or injury is not reasonable and violates the Fourth Amendment.

Ebach v. Ebach 2005 ND 123
Docket No.: 20040306
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Whether a supporting spouse's early retirement constitutes a material change of circumstances to justify a termination or reduction of spousal support depends on the totality of the circumstances.

Guardianship of Barros 2005 ND 122
Docket No.: 20040255
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: 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.

State v. Jackson (Consolidated w/20050021) 2005 ND 121
Docket No.: 20050020
Filing Date: 7/13/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author:

Highlight: Driving under suspension conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2),(3), and (7).

Beaudoin v. South Texas Blood & Tissue Center (Cross-reference w/20030148) 2005 ND 120
Docket No.: 20040356
Filing Date: 6/24/2005
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
Defendants cannot be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or from the unilateral activity of a third party.
North Dakota courts may exercise specific personal jurisdiction over nonresident defendants only if they purposefully directed their activities toward North Dakota and the cause of action arises out of or relates to the defendant's activities in the State.
A defendant's conscious and repeated decision to ship a product to North Dakota constitutes sufficient minimum contacts required to ground personal jurisdiction.
Rule 60(b)(i), N.D.R.Civ.P., which establishes grounds for vacating a default judgment, permits relief where a party itself has erred.
A trial court's denial of a motion to vacate a default judgment based on a misinterpretation and misapplication of our law must be reversed as an abuse of discretion.

Disciplinary Board v. Vela 2005 ND 119
Docket No.: 20050173
Filing Date: 6/24/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Riverwood Commercial Park v. Standard Oil Co., Inc., et al. 2005 ND 118
Docket No.: 20040314
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The purpose of the summary eviction statute is to provide an inexpensive, expeditious, and simple means to determine possession of property.
The major distinction between a lease and an easement or license is that a lease confers exclusive use and possession of the property against the world, including the landowner, whereas an easement or license merely grants a right or permission to nonexclusive use of the land for a specific, limited purpose.

Martin v. Stutsman Co. Social Services, et al. 2005 ND 117
Docket No.: 20050019
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: An administrative agency is bound by its own duly issued regulations. The agency, nevertheless, has a reasonable range of informed discretion in the interpretation and application of its own rules.
Courts generally defer to an agency's reasonable interpretation of its rule when the language is ambiguous or when the language is so technical that only a specialized agency has the experience and expertise to understand it.

Interest of D.A. (CONFIDENTIAL) 2005 ND 116
Docket No.: 20050174
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: An mental health forced treatment order must be supported by evidence that forced 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 individual patient's needs, and that the benefits of the treatment outweigh known risks.

Houn v. Workforce Safety and Insurance, et al. 2005 ND 115
Docket No.: 20050013
Filing Date: 6/22/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Section 65-05-08(1), N.D.C.C., applies to reapplications for disability benefits after disability benefits previously have been discontinued and does not apply to applications when a claimant has not previously received disability benefits.

Tri-State Ins. Co. of Minnesota v. Commercial Group West, et al. 2005 ND 114
Docket No.: 20050007
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: Under a builder's risk insurance policy, a party not expressly named as a co-insured under the policy is protected from subrogation only to the extent that the insurance policy expressly covers the party's property.

Estate of Littlejohn 2005 ND 113
Docket No.: 20040326
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The interpretation of an attorney in fact's authority under a power of attorney is generally governed by the rules for construing contracts.

Johnson v. Nodak Mutual Ins. Co. 2005 ND 112
Docket No.: 20040293
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: An insurer's payment for an insured's independent medical examination is not a no-fault benefit for purposes of a statute of limitations that requires actions for further benefits to begin no later than four years after the last payment of benefits.
A motion for relief from a judgment may not be used to provide a litigant with a second chance to present new legal theories to a court.

Brandner v. Brandner 2005 ND 111
Docket No.: 20040236
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The trial court must determine net marital worth by considering all property and debt accumulated by the parties.
A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.
A trial court's decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.

Berlin v. State 2005 ND 110
Docket No.: 20050030
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A court may summarily dismiss a facially invalid application for post-conviction relief.

Disciplinary Board v. Edin (Consolidated w/ 20050011) 2005 ND 109
Docket No.: 20050010
Filing Date: 6/7/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law from the date of his interim suspension to the date this opinion is filed and ordered to pay the costs and attorney's fees for the disciplinary proceeding.

Martin, et al. v. Berg, et al. 2005 ND 108
Docket No.: 20050001
Filing Date: 6/6/2005
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: On appeal from a summary judgment, the Supreme Court decides whether the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law.
Where the language of a will is clear and unambiguous, the testator's intent must be determined from the language of the will.

Estate of Kimbrell (Consolidated w/20040322) 2005 ND 107
Docket No.: 20040226
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The surviving spouse of a decedent occupying real property as a homestead receives the right to possession, use, control, income, and rents of the property for life or until the surviving spouse again marries, limited in size and value to the land and the dwelling house, with all its appurtenances and other improvements, not to exceed $80,000 in value, over and above liens and encumbrances.

Klindt, et al. v. Pembina Co. Water Resource Bd., et al. 2005 ND 106
Docket No.: 20040299
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Landowners are not required to appeal a water resource board's determination of benefits of a project to the state engineer if the cost of the project is less than $100,000.
A water resource board may find that an entire watershed would be benefited by a snagging and clearing project.
All land that will be benefited by a water project should be assessed the cost of the project.
The participation of a water resource board member who should have been disqualified in establishing a project does not require nullification of the project unless his presence was necessary to constitute a quorum and his vote determined the result.
Successful litigants are not entitled to attorney fees unless authorized by contract or statute.

State v. Driscoll 2005 ND 105
Docket No.: 20040292
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A magistrate's probable-cause decision is reviewed using a totality-of-the-circumstances test. A substantial basis for the magistrate's conclusion must exist.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence can establish this nexus.
Unsupported and conclusory statements are alone insufficient to establish probable cause.
If an accepted, reasonable theory of probable cause subsequently proves to be untrue or unfounded, it does not retroactively undermine a previously correct conclusion that probable cause to search existed, invalidate a properly issued search warrant, or release a criminal actor from culpability for crimes uncovered during the execution of the search warrant.
In executing a valid search warrant, police may inspect and open any item that could reasonably contain the objects of the search, regardless of whether these items are personal or private or specifically particularized in the search warrant.

People to Save the Sheyenne River v. ND Dept.of Health (CON. w/20040377) 2005 ND 104
Docket No.: 20040376
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: In the absence of an adjudicative proceeding and findings of fact, appellate review of an administrative agency decision to issue a Pollutant Discharge Elimination System permit is to determine whether the decision is arbitrary, capricious, or unreasonable.

City of Grand Forks v. Lamb 2005 ND 103
Docket No.: 20040196
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: VandeWalle, Gerald

Highlight: When a defendant appeals to the district court from a conviction in municipal court, the district court does not review the record and decision of the municipal court, but holds a new trial and independently determines whether the defendant has violated the ordinance.
A notice of appeal filed after the municipal court has announced its decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
When a city has the authority to regulate a certain subject, an ordinance is presumed valid and the burden is upon the party challenging the ordinance to demonstrate how the city exceeded its authority.

Interest of R.F. (CONFIDENTIAL) (cross-ref. w/20030288) 2005 ND 102
Docket No.: 20050148
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: In some situations it may be reasonable for a doctor to conclude that less restrictive alternatives to hospitalization do not exist.
The State Hospital or treatment facility is not required to look outside North Dakota for treatment options other than hospitalization.

Rolette Co. Social Service Bd., et al. v. B.E. (CONFIDENTIAL) 2005 ND 101
Docket No.: 20040357
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Paternity
Author: Kapsner, Carol

Highlight: A dismissal of an action without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The state courts have concurrent subject-matter jurisdiction with the tribal courts to determine a support obligation against an enrolled Indian where parentage is not at issue and the parent against whom support is sought is not residing on the Indian reservation.

R.R. v. G.H. (CONFIDENTIAL) (Cross-ref. w/20040139 & 20040288) 2005 ND 100
Docket No.: 20040325
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Contempt of Court
Author: Per Curiam

Highlight: District court orders denying a motion to change venue, finding a party in contempt, and awarding $300 paid in bond as reimbursement for costs and expenses are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Oliver-Mercer Electric Coop. v. Davis, et al. (Consol. w/20040308)(see Memo) 2005 ND 99
Docket No.: 20040307
Filing Date: 5/25/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: When a secured creditor who fails to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
A secured creditor who fails to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral.
A secured creditor's failure to provide credible evidence bars recovery of a deficiency judgment.

ND Human Rights Coalition, et al. v. Bertsch 2005 ND 98
Docket No.: 20040297
Filing Date: 5/17/2005
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: A trial court's decision to certify a class action will not be overturned on appeal unless the court abused its discretion.
A trial court's explanation of its decision to grant a class action certification must be sufficient to enable a reviewing court to understand the basis for the court's decision.

Anderson v. Director, N.D. Dept. of Transportation 2005 ND 97
Docket No.: 20040337
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: An investigative stop of a vehicle requires the officer have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Information from a tip may provide the factual basis for a stop.
In evaluating the factual basis for a stop, the totality of the circumstances is considered, including the quantity, or content, and quality, or degree of reliability, of the information available to the officer.
When reasonable and articulable suspicion arises from an informant's tip, there is an inverse relationship between quantity and quality, and the information must be analyzed generally according to the type of tip and its reliability.
A caller-informant must provide at least some specific and articulable facts to support the bare allegations of criminal activity for a stop to be justified based on the call.

Negaard v. Negaard (Consol. w/20040312) (Cross-Ref. w/20010251 & 20030174) 2005 ND 96
Docket No.: 20040140
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.
An appeal of a contempt finding must be made within "60 days after entry of the judgment or order being appealed."
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.
In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child.
Under Section 28-26-01(2), N.D.C.C., a court may award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim.

Koenig v. ND Dept. of Transportation 2005 ND 95
Docket No.: 20040351
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: The Department does not lack jurisdiction to suspend a license merely because an officer failed to forward test results that were not printed because of a printer malfunction.

Glasow v. E.I. Dupont De Nemours and Company, et al. 2005 ND 94
Docket No.: 20040321
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Rule 23(l), N.D.R.Civ.P., governs the dismissal of all class actions, regardless of whether a motion to certify the class is filed.

Smith v. Kulig 2005 ND 93
Docket No.: 20040237
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A landowner's only duty to a trespasser is to refrain from harming the trespasser in a willful and wanton manner.
A landowner is not under any affirmative duty to give a trespasser warning of concealed perils, although, by the exercise of reasonable care, the landowner might have discovered the defect or danger that caused the injury.

Woods v. Ryan 2005 ND 92
Docket No.: 20040227
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In deciding whether to change custody of a child, a court must use a two-part analysis, considering first whether there has been a material change of circumstances, and then, if the court decides there has been, deciding whether a change in custody is necessary to serve the best interests of the child.

Bollin v. ND Dept. of Transportation 2005 ND 91
Docket No.: 20040291
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Chemical analysis results will not be admitted into evidence if the test was not performed in accordance with methods and devices approved by the state toxicologist.
If the chemical analysis form indicates an alternative disinfectant was used during the blood draw but neither the form nor testimony identifies the disinfectant, license suspension is improper.

Choice Financial Group v. Schellpfeffer, et al. 2005 ND 90
Docket No.: 20040204
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Where partial summary judgment is rendered for only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification of the partial summary judgment as final under N.D.R.Civ.P. 54(b).

State v. Olsen (Consolidated w/20050040) 2005 ND 89
Docket No.: 20040202
Filing Date: 5/17/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a jury conviction for burglary and a denial of post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

State v. Thompson 2005 ND 88
Docket No.: 20050089
Filing Date: 5/17/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: An appeal from an order denying a motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (7).

Disciplinary Board v. Christensen (CONSOLIDATE W/ 20050139 & 20050140) 2005 ND 87
Docket No.: 20050138
Filing Date: 5/13/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded and ordered to pay costs of disciplinary proceedings.

State v. Keller 2005 ND 86
Docket No.: 20040059
Filing Date: 5/10/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The right to a lesser-included-offense instruction requires that the offense be a lesser included offense of the greater, that the evidence be such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser, and generally, that the instruction be requested.
North Dakota's current lesser-included-offense law has its origin in the North Dakota Rules of Criminal Procedure, not N.D.C.C. 12.1-01-04(15).
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser offense.
Criminal facilitation is not a lesser included offense of conspiracy to commit murder.
Criminal facilitation is not a lesser included offense of attempted murder.
Reckless endangerment is not a lesser included offense of attempted murder.

Eberts, et al. v. Billings Co. Board of Commissioners 2005 ND 85
Docket No.: 20040309
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A board of county commissioners may condemn land for a road under quick take procedures in N.D.C.C. 24-05-09 through 24-05-15.

Cusey v. Nagel 2005 ND 84
Docket No.: 20040241
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A person who petitions for a disorderly conduct restraining order must allege specific facts or threats.

Sorlie v. Workforce Safety and Insurance, et al. 2005 ND 83
Docket No.: 20040250
Filing Date: 4/29/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: 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.

Hanson v. Hanson 2005 ND 82
Docket No.: 20040275
Filing Date: 4/26/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: 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.