Opinions

Bellefeuille v. Bellefeuille 2001 ND 192
Docket No.: 20010028
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A trial court does not abuse its discretion in denying a motion for relief from judgment, when the motion was made twenty-one years after the judgment was filed.
A trial court does not have jurisdiction to modify rehabilitative spousal support after the scheduled payments are completed, unless the trial court retains jurisdiction to do so within the decree.

Sommer v. Sommer 2001 ND 191
Docket No.: 20010044
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Permanent spousal support may be awarded when a marriage has been of long duration and the dependant spouse has health problems or is of such an age that adequate rehabilitation is unlikely.
Under some circumstances, voluntary retirement by a supporting spouse that results in a material change in circumstance may be a valid basis for modification of spousal support.

State v. Kensmoe 2001 ND 190
Docket No.: 20010183
Filing Date: 12/5/2001
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A trial court acts within its statutory authority when extending a defendant's probationary period following a restitution hearing.
An extension of a probation period does not subject a defendant to multiple punishments in violation of the prohibition against double jeopardy.
A challenge to the constitutionality of a statute must be properly preserved for appeal, and the record on appeal must allow for a meaningful and intelligent review of the alleged unconstitutionality of the statute.

State v. Martin 2001 ND 189
Docket No.: 20000366
Filing Date: 12/5/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: To be convicted of continual sexual abuse of a child, one must be shown to have engaged in three or more sexual acts or contacts during a period of three months or more. This period has no maximum time limit.

Bell v. State 2001 ND 188
Docket No.: 20010138
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A trial court may deny appointment of counsel for an indigent post-conviction applicant who is able to file an application without assistance, if the application, read in the light most favorable to the applicant, does not raise any substantial issue of law or fact.
It is a misuse of process to raise issues in a post-conviction application that were not raised in the original criminal prosecution, or, if raised, were not pursued in a properly perfected appeal.

Lenthe Investments v. Service Oil, et al. 2001 ND 187
Docket No.: 20010085
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Mutual assent to a contract is determined by the words of the contract and the parties' objective manifestations of assent.
An agreement to agree is enforceable if its terms are reasonably certain and definite.

Fortis Benefits Ins. Co. v. Hauer 2001 ND 186
Docket No.: 20010052
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: If the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability upon the insurer.
When a conflict exists between a specific provision and a general provision in a contract, the specific provision ordinarily prevails over the general provision.

Gleich v. Gleich 2001 ND 185
Docket No.: 20010010
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Johnson (Consolidated w/20010026 & 20010027) 2001 ND 184
Docket No.: 20010025
Filing Date: 12/5/2001
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: Lack of criminal responsibility is not an affirmative defense, and the nonexistence of the defense is an element of the offense which the State must prove beyond a reasonable doubt.
Appellate courts may notice obvious error affecting a substantial right of a party even if the error was not raised by the parties on appeal.

Interest of D.R., et al. (CONFIDENTIAL)(Consolidated w/20010099) 2001 ND 183
Docket No.: 20010098
Filing Date: 12/5/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: In deciding whether to terminate parental rights, the court can give substantial credence to evidence indicating a pattern of conduct by a parent that forms a basis for reasonable prediction the deprivation of the child is likely to continue and result in serious physical, mental, or emotional harm.

DeCoteau v. Nodak Mutual Insurance Co. (Cross-reference w/19990100) 2001 ND 182
Docket No.: 20010066
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: When a named plaintiff whose individual claim becomes moot has not even moved for class action certification prior to evaporation of his personal stake in the lawsuit, the plaintiff may not avail himself of the class action exception to the mootness doctrine.

Hellerud v. ND Dept. of Transportation 2001 ND 181
Docket No.: 20010173
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Per Curiam

Highlight: Judgment of the district court affirming the decision of the Department of Transportation to revoke appellant's driver's license for refusing to submit to an on-site chemical screening test is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Chadwick v. N.D. Dept. of Transportation 2001 ND 180
Docket No.: 20010174
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: A police officer has reasonable grounds to believe a person is in actual physical control of a vehicle when that person is found conscious in the driver's seat of an idling vehicle.

Alerus Financial v. Lamb, et al. (CONSOLIDATED W/20010178) 2001 ND 179
Docket No.: 20010177
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Foreclosure
Author: Per Curiam

Highlight: Summary judgments granting foreclosure of mortgages on rental properties are summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Dvorak v. Dvorak 2001 ND 178
Docket No.: 20000343
Filing Date: 11/2/2001
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: Trial courts may decline to consider arguments raised for the first time on a motion for reconsideration when those arguments could have been raised in earlier proceedings.
The purpose of N.D.R.Civ.P. 60(b)(iii) is not to correct outcomes that may be factually incorrect, but rather to protect against a party prevailing by unfair means.

Trottier v. Bird 2001 ND 177
Docket No.: 20010150
Filing Date: 11/2/2001
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: When a court lacks subject matter jurisdiction, it must dismiss the action under Rule 12(h)(3).

McDowell v. McDowell 2001 ND 176
Docket No.: 20010056
Filing Date: 11/2/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Spousal support determinations must be made in light of the income and needs of the disadvantaged spouse and of the supporting spouse's needs and ability to pay.
A parent's health problems are relevant in a custody decision if those problems might adversely affect the parent's ability to care for the child.
A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor's child support obligation.

City of Fargo v. Ellison 2001 ND 175
Docket No.: 20010131
Filing Date: 11/2/2001
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Police should not be placed in a worse position then they occupied before the illegal search occurred.
A defendant's age and identity obtained through an illegal search should not be suppressed if it can be established independent from the illegal search.

Voge v. Schnaidt 2001 ND 174
Docket No.: 20010024
Filing Date: 11/2/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: An action for damages for an injury received in a collision of two boats on Lake Sakakawea is governed by the three-year statute of limitations in federal law, rather than the six-year limitation in state law.

State v. Lynch 2001 ND 173
Docket No.: 20010037
Filing Date: 11/2/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Neumann, William

Highlight: The introduction of the state toxicologist's list of approved designations medically qualified to draw blood is a foundational requirement for the introduction of blood test results.

Farmers Elevator, Inc. of Grace City v. Custom Processors, Inc. 2001 ND 172
Docket No.: 20010059
Filing Date: 11/2/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment in a contract action summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bell v. State 2001 ND 171
Docket No.: 20010139
Filing Date: 11/2/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Klein v. ND Workers Comp. Bureau, et al. 2001 ND 170
Docket No.: 20010019
Filing Date: 10/18/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: The time period to file a claim for worker's compensation benefits begins on the first day a reasonable person, not learned in medicine, knew or should have known that the injury was work related.

Schmidt v. Ward Co. S.S.B., et al. (CONSOLIDATED W/2001114) 2001 ND 169
Docket No.: 20010113
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Neumann, William

Highlight: A conservatorship is a legal device similar to a trust under the law for determining medicaid eligibility.
An applicant for medicaid benefits must prove eligibility, and in determining medicaid eligibility, an asset is actually available even if the applicant must initiate legal proceedings to access the asset.
In determining food stamp eligibility, resources which are not accessible to the household during the period of excepted food stamp certification are excluded from the household's resources.

Dakota Partners v. Glopak, Inc., et al. 2001 ND 168
Docket No.: 20010092
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A contract provision prohibiting "offset" is not a waiver of the defense of fraud in the procurement of the contract.

Twogood v. Wentz, et al. 2001 ND 167
Docket No.: 20010106
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: Satisfaction of a cost judgment after an execution has been issued does not bar an appeal to reverse a summary judgment on the merits.
For a landlord to be liable for injury caused by a tenant's dog, the landlord must have had control of the property and knowledge of the vicious tendencies of a tenant's dog.

Shiek v. ND Workers Comp., et al. (Cross-reference w/970333) 2001 ND 166
Docket No.: 20010030
Filing Date: 10/16/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 1991 version of N.D.C.C. 65-05-09.3, claimants who become permanently and totally disabled on or before their intended retirement are eligible for disability benefits after that date.

City of Fargo v. Gullekson 2001 ND 165
Docket No.: 20010101
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: If the police have reasonable and articulable suspicion a vehicle is owned by a driver whose license is suspended, and have reasonable and articulable suspicion the owner was driving the vehicle, an investigatory stop could be made to determine if the crime of driving with a suspended license is being committed.

State v. Gleeson 2001 ND 164
Docket No.: 20010096
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving under suspension based on a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

City of West Fargo v. Ross 2001 ND 163
Docket No.: 20010104
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: If the police have a reasonable and articulable suspicion a certain moving vehicle belongs to a driver whose license is suspended, and the police have a reasonable and articulable suspicion the owner was driving the vehicle, an investigatory stop can be made to determine if the crime of driving with a suspended license is being committed.

Davison v. Wanner 2001 ND 162
Docket No.: 20010088
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: The trial court's dismissal of this civil damages action for failure of proof summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Ballard 2001 ND 161
Docket No.: 20000316
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Judgment of conviction for two counts of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Stockert v. Stockert 2001 ND 160
Docket No.: 20000353
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Denial of motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Jensen (Cross-Ref. w/20010012, 13 & 14) 2001 ND 159
Docket No.: 20010097
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal conviction for failure to appear after release - bail jumping summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Disciplinary Board v. Gronneberg 2001 ND 158
Docket No.: 20010184
Filing Date: 9/26/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for one year following any application by him for licensure of an inactive attorney under Admission to Practice R. 7.

Dickson v. Dickson (cross-ref. w/960237) 2001 ND 157
Docket No.: 20010011
Filing Date: 9/5/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A custodial parent proposing a move to another state is not required to first seek employment outside the general area.
Although relevant to a custodial parent's proposed move to another state, a comparative cost-of-living analysis is not required.
In considering the location of family members on the noneconomic aspects of a proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties' child.

Warner and Company v. Solberg 2001 ND 156
Docket No.: 20000327
Filing Date: 9/5/2001
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: North Dakota's restraint of business statute prohibits an excessive restraint on a person's exercise of a lawful profession, trade, or business.
If an unreasonable restraining clause can be separated leaving a reasonable agreement, the reasonable clause will be sustained and the unreasonable restraining clause rejected.

Estate of Zimmerman (Consolidated w/20010002) 2001 ND 155
Docket No.: 20000361
Filing Date: 8/30/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: Under the probate law in effect before January 1996, a surviving spouse's property is includable in the decedent's augmented estate to the extent the property was derived from the decedent without full consideration in money or money's worth.
Property distributed to a surviving spouse in a prior divorce from the decedent is derived from the decedent without full consideration in money or money's worth.

Rose v. United Equitable Ins. Co., et al. 2001 ND 154
Docket No.: 20000333
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: A fraud action is not barred by the passage of time until six years after discovery of the facts constituting the fraud.
The purpose of a motion for dismissal for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the statement of the claim presented in the complaint.
When a motion for dismissal for failure to state a claim upon which relief can be granted is made, the complaint is construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true.
A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

State v. Bouck (CONSOLIDATED W/20000347-20000348)(cross-ref. 20010045-46) 2001 ND 153
Docket No.: 20000346
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Contempt of Court
Author: Kapsner, Carol

Highlight: When the law prescribes a place of imprisonment to which a convicted defendant can be sentenced, the court cannot direct a different place of incarceration, and, if it does, the sentence is void and the defendant is entitled to resentencing.

Doan, et al. v. City of Bismarck, et al. 2001 ND 152
Docket No.: 20010042
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Summary judgment rarely should be granted in negligence cases because issues involving reasonableness standards generally are inappropriate for summary disposition.
A landowner owes a duty to lawful entrants to maintain property in a reasonably safe condition in view of all the circumstances and owes a duty to an injured party if the landowner has control over the property where the injury occurred.
Under the doctrine of retained control, an employer who hires an independent contractor is liable for harm to others for whom the employer owes a duty to exercise reasonable care, if the employer retains control of an part of the work and causes harm by failing to exercise such control with reasonable care.
In negligence actions, customs or practices do not necessarily establish the standard of care, but may be evidence of whether conduct meets the general standard of reasonable care under the circumstances.

McKenzie Co. Social Service Bd., et al. v. C.G. (CONFIDENTIAL) 2001 ND 151
Docket No.: 20010047
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A judgment entered without personal or subject matter jurisdiction is void.
Determining the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them.
Affirmative relief is not available under N.D.R.Civ.P. 60(b)(iv).

State v. Wiest 2001 ND 150
Docket No.: 20000306
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Without an objection to testimony at trial, appellate review is limited to determining if its admission constituted obvious error affecting substantial rights.
A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless the court abused its discretion.

Higgins v. Trauger (Consolidated w/20010074) 2001 ND 149
Docket No.: 20010073
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: When a failure to timely redeem from a tax sale is attributable in part to the neglect of the redemptioner, and not wholly to a mistake made by the county auditor, equitable principles do not apply to extend the redemption period.
A person who owes a duty to pay taxes on property and who fails to pay the taxes, cannot in collusion with others purchase tax sale certificates for the property to strengthen the person's title.

Stoppler v. Stoppler 2001 ND 148
Docket No.: 20000330
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
A trial court's determination on visitation is treated as a finding of fact.
To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property.
A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.

Heinz v. Heinz 2001 ND 147
Docket No.: 20000298
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: A lengthy marriage supports an equal division of all marital assets.
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
Spousal support payments must be included in computing monthly net income for child support purposes.

State v. Shafer-Imhoff 2001 ND 146
Docket No.: 20000350
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Application of N.D.C.C. 1-02-17 to eliminate the punishment of imprisonment for a criminal statute that was repealed after the criminal act was committed but before conviction, is not an invalid pardon.
A trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of the applicable law.
When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute.
After the jury has advised the court of an impasse, the court may employ more than one N.D.R.Ct. 6.9 option without being advised again of an impasse.

Farmers Alliance Mutual Ins. Co. v. Hulstrand Construction, Inc. 2001 ND 145
Docket No.: 20010054
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: Absent concerted action, there is no third-party claim for contribution among tortfeasors under North Dakota law.
When the parties to a contract agree to modify or alter the terms of their original contract, the new agreement ordinarily must be supported by new or additional consideration.
When the parties to a contract sign a subsequent agreement which is intended to merely clarify or explain the terms of the original contract, no new or additional consideration is necessary.

Eggl v. Letvin Equipment Co. 2001 ND 144
Docket No.: 20000318
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A trial court's determinations on questions of breach of warranty are treated as findings of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a).
Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact.
Questions of nonconformity with a contract, substantial impairment of value, and timely notice of revocation are questions of fact.
The time for discovering a breach of warranty and what is a reasonable time for revocation of acceptance are fact questions.
A buyer's right of revocation is not conditioned upon whether it is the seller or the manufacturer that is responsible for the nonconformity.

Interest of N.H., et al. (CONFIDENTIAL) 2001 ND 143
Docket No.: 20000278
Filing Date: 8/29/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Prognostic evidence is a basis for reasonable predictions about future behavior when determining whether a child's deprivation is likely to continue or will not be remedied. Prognostic evidence includes reports and opinions of professionals.
Lack of parental cooperation with social service agencies is insufficient to establish deprivation but is pertinent to whether deprivation will continue.