Opinions

Marschner v. Marschner (cross-ref. w/20000172) 2002 ND 67
Docket No.: 20010220
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: The burden is on the complaining party to demonstrate a trial court's findings of fact are clearly erroneous.

DesLauriers v. DesLauriers 2002 ND 66
Docket No.: 20010145
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The deliberate infliction of mental anguish upon one parent and the children by the other parent is relevant to the custody determination and may be considered by the trial court.
In a custody determination, a trial court has no obligation to consider the preference of an immature child, but the trial court may determine whether or not a child is capable of intelligently choosing between parents.
The debt produced by using credit cards to benefit the entire family is, like property, neither uniquely the husband's nor the wife's and is to be allocated by the trial court in its equitable division of the marital estate.

Olander Contracting v. Gail Wachter Investments, et al. 2002 ND 65
Docket No.: 20010086
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Indemnification is a remedy allowing a party to recover reimbursement from another for the discharge of a liability that, as between them, should have been discharged by the other.
The district court may enter summary judgment on its own motion as long as the losing party was on notice it had to come forward with all its evidence.
An appealing party has the burden of establishing that the trial court erred and that the error was highly prejudicial to the appellant's cause.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.
A party waives an issue by not providing supporting argument.
A trial court has broad discretion over the nature and scope of written questions submitted to the jury, and appellate review is limited to determining whether the trial court abused its discretion.
North Dakota's prompt payment statute, N.D.C.C. ch. 13-01.1, does not apply while there is a reasonable dispute between a governmental agency and a business over the amount due or over compliance with a contract for property or services.

Isaak v. Sprynczynatyk 2002 ND 64
Docket No.: 20010291
Filing Date: 4/16/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: A driving record is a regularly kept record, and establishes prima facie its contents.
A party appealing from an administrative hearing officer's decision must comply with the specifications-of-error requirement.

Western National Mutual Ins. Co. v. UND 2002 ND 63
Docket No.: 20010118
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: N.D.C.C. 26.1-32-01 and 26.1-32-03 codify the efficient proximate cause doctrine for determining insurance coverage for property damage where an excluded peril and a covered peril contribute to the damage.
An insurer may not contractually exclude coverage when a covered peril is the efficient proximate cause of damage even though an excluded peril may have contributed to the damage.
An insured may be entitled to prejudgment interest under N.D.C.C. 32-02-04 when an insurer denies a claim based on an exclusion from coverage, regardless of whether the insured has determined the exact amount of the loss if the amount was ascertainable under a proper construction of the contract.
Under N.D.C.C. 32-23-08, an insured is entitled to attorney fees incurred in an insurer's declaratory judgment action in which the court determines there is insurance coverage.

State v. Knowels (cross-ref. w/20030093) 2002 ND 62
Docket No.: 20010147
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Failure to register as a sex offender is not a strict liability offense but, instead, includes the culpable mental state of "willfully."
A crime is completed when all of its essential elements are present and complete.

Olson, et al. v. Bismarck Parks and Recreation District 2002 ND 61
Docket No.: 20010249
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: The recreational use immunity statutes do not violate the state equal protection clause when applied to winter sledders injured on a hill owned, operated, and maintained by a public landowner.

Anderson, et al. v. Heinze 2002 ND 60
Docket No.: 20010127
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: No counterclaim can be interposed in an eviction action, except as a setoff to a demand for damages or for rents and profits.
In an eviction action, the defendant may show the character of the possessory rights claimed by the parties, but the right to possession of the real estate is the only fact that can be litigated unless either damages or rent is claimed.

Klagues, et al. v. Maintenance Engineering 2002 ND 59
Docket No.: 20010213
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: The class-action "joint and common interest" generally exists if one class member's failure to collect would increase the recovery of the remaining members, or if the defendant's total liability does not depend on how the recovery of the claim is distributed among the class members. A joint and common interest is not the same as a common question of law or fact.
The class-action "incompatible standards" generally occur when the party opposing the class certification would be unable to comply with one judgment without violating the terms of another judgment.
If claims or defenses of members of the proposed class are based on unique facts or individual relationships with the opposing party, class-action certification is inappropriate.

Wolfe v. Wolfe 2002 ND 58
Docket No.: 20010276
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Permanent disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Vincent (Cross-Ref. w/19980185) 2002 ND 57
Docket No.: 20010218
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

State v. Radcliffe 2002 ND 56
Docket No.: 20010254
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Judgment of conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

BTA Oil Producers, et al. v. MDU Resources Group, et al. 2002 ND 55
Docket No.: 20010122
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When an impoverishment results from a valid contractual arrangement made by a party, the result is not contrary to equity and there has been no unjust enrichment.
Unjust enrichment applies only in the absence of a contract between the parties, and there can be no implied-in-law contract where there is an express contract between the parties relative to the same subject matter.
Affidavits containing conclusory statements unsupported by specific facts are insufficient to raise a genuine issue of material fact precluding summary judgment.
When a party opposing summary judgment fails to invoke N.D.R.Civ.P. 56(f), the possibility that further discovery will yield favorable evidence raising an issue of material fact is not a ground to deny the motion.
Whether an agreement is a contract for sale governed by the Uniform Commercial Code is not decided by the labels used by the parties to characterize the transaction, but by the substance of the transaction and intent of the parties.
The filing of a motion to intervene, accompanied by a proper pleading, begins an action for purposes of the statute of limitations.

Petition to Change Resident Chambers from Watford City to Minot 2002 ND 54
Docket No.: 20020048
Filing Date: 4/8/2002
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship transferred from Watford City to Minot.

Kelsh v. Jaeger 2002 ND 53
Docket No.: 20020060
Filing Date: 3/28/2002
Case Type: Original Proceeding - Civil - Writ of Prohibition
Author: Per Curiam

Highlight: The Legislature can truncate senate terms when reasonably necessary to accomplish a constitutional mandate or directive.
It is an impermissible delegation of legislative power for the Legislature to place in one person the unfettered discretion to stop an election.
When reapportionment results in a substantial constituency change, the constitutional requirement that a senator be elected from a district may justify truncating an incumbent senator's term to give the electorate an opportunity to elect a senator from that district.

Froistad v. State 2002 ND 52
Docket No.: 20010111
Filing Date: 3/18/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant's oral statement may be treated as a motion to withdraw a guilty plea.
When accepting a factual basis for a guilty plea, a district court may consider information beyond what is presented at the plea hearing, including information in a presentence report.
A district court is not required to inquire about the specific type of medications, the dosages, and the effect the medications might have on a defendant's faculties before it accepts a guilty plea, as long as it finds the plea is voluntary.
A telephone conference at which the district court informs the parties of a ruling is not a critical stage of a trial requiring the defendant's presence.

Wagaman v. Burke 2002 ND 51
Docket No.: 20010260
Filing Date: 3/15/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: An order changing summer custody into summer visitation is an order establishing custody for purposes of the two-year restriction on motions to change custody.

Interest of J.D. (CONFIDENTIAL) 2002 ND 50
Docket No.: 20020049
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: The statute requires evidence that less restrictive conditions were considered to affirm a district court's commitment order as the least restrictive course of treatment appropriate for an individual.
The statute requires other forms of intervention be considered before a district court orders forced medication as the least restrictive form of intervention necessary to meet an individual's treatment needs.
Without explanation, mere conclusory statements by the treating psychiatrist and other physician are not helpful in determining whether a district court should authorize involuntary treatment with prescribed medications.

Peters-Riemers v. Riemers (See Docket Memo) 2002 ND 49
Docket No.: 20010274
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An eviction action may be brought to enforce the terms of a divorce judgment.
Issues not presented to the trial court will not be considered for the first time on appeal.

City of Grand Forks v. Thong 2002 ND 48
Docket No.: 20010246
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: The legislature set twenty-eight days as the time a defendant in municipal court has to request a trial by jury.
Once a defendant requests a jury trial, a subsequent waiver of the right to a jury trial must be express.
Without evidence in the files of a municipal court of a defendant's obligation to appear, there is insufficient evidence to prove the defendant failed to appear.

Dufner v. Dufner 2002 ND 47
Docket No.: 20010163
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: If the evidence establishes one of the grounds for divorce, it is not necessary for the court to make findings on other available grounds.
For the purposes of determining a child support obligation, temporary income is included in the obligor's gross income.
Primary caretaker status does not enjoy paramount status in a child custody determination.

Dalan v. Paracelsus Healthcare Corp. 2002 ND 46
Docket No.: 20010269
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When a party fails to establish the existence of a factual dispute on an essential element of his claim, on which he will bear the burden of proof at trial, summary judgment is appropriate.
A claim for unjust enrichment does not apply when an express contract exists.

Opp v. Ward Co. Social Services Bd., et al. 2002 ND 45
Docket No.: 20010199
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Assets are actually available for Medicaid eligibility purposes when the applicant has a legal interest in a liquidated sum and has the ability through reasonable legal means to attempt to make the sum available for support.

Henderson v. Director, N.D. Dept. of Trans. 2002 ND 44
Docket No.: 20010222
Filing Date: 3/12/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The Supreme Court exercises a limited review in appeals involving drivers' license suspensions or revocations.
Reliability and accuracy of an Intoxilyzer test result is established by demonstrating compliance with the methods adopted by the state toxicologist.

State v. Schmidt 2002 ND 43
Docket No.: 20010166
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Neumann, William

Highlight: Absent an offer of proof to support the claim, a trial court does not err in denying a motion in limine for a jury instruction on an affirmative defense of innocent mistake of fact.

Wahl v. Country Mutual Ins. Co., et al. 2002 ND 42
Docket No.: 20010262
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The statutory requirement that an insurer give at least ten days notice of cancellation of a commercial insurance policy during the term of the policy does not require an insurer to provide notice of cancellation when the policy term expires.
The statutory requirement that an insurer give at least thirty days notice of intent not to renew a commercial insurance policy does not require an insurer to provide a notice of nonrewal when a policy term expires and the insured has not paid a renewal premium.

State v. Morrison 2002 ND 41
Docket No.: 20010105
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgment of conviction for assaulting a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Aipperspach 2002 ND 40
Docket No.: 20010142
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denial of motion to suppress and judgment of conviction for abuse of child in violation of N.D.C.C. 14-09-22 summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Dennison v. N.D. Dept. of Human Serv. 2002 ND 39
Docket No.: 20010250
Filing Date: 2/22/2002
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: The State's recorded homestead statement for old age assistance benefits under N.D.R.C. 50-0707 (1943) affects the right or interest of the State in land in North Dakota under the exception to the Marketable Record Title Act in N.D.C.C. 47-19.1-11(2).
In a quiet title action, parties claiming an interest in a tract of land are entitled to an adjudication of the extent, validity, superiority, and priority of their claims to the land.

Gruebele, et al. v. Geringer 2002 ND 38
Docket No.: 20010149
Filing Date: 2/22/2002
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A claimant's action to quiet title based on adverse possession will fail when the claimant is unable to prove hostile, exclusive, and continuous possession for the statutorily required time.

Kelly v. Kelly 2002 ND 37
Docket No.: 20010165
Filing Date: 2/21/2002
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An order changing custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
When the previous custody award was based on the parties' stipulation, the trial court must consider all relevant evidence in making a considered and appropriate custody decision.

State v. Hirschkorn 2002 ND 36
Docket No.: 20010094
Filing Date: 2/21/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Because of the importance of an accused's confrontation rights, the safeguards built into N.D.R.Ev. 803(24), allowing admission in evidence of a child's hearsay statements about sexual abuse, must be strictly observed.
When there is a total lack of factual support for admission of a child's hearsay statements under N.D.R.Ev. 803(24) and a probability that the erroneous admission of the hearsay statements affected the outcome of the trial, admission of the statements is obvious error entitling the defendant to a new trial.

Zeller v. Zeller 2002 ND 35
Docket No.: 20010134
Filing Date: 2/21/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When the relevant factors for consideration in determining a motion to change the residence of a child to another state weigh in favor of the custodial parent's request to relocate the child, the trial court's denial of the motion is reversible error.
A stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of divorcing parties.

City of Jamestown v. Jerome 2002 ND 34
Docket No.: 20010219
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: A police officer is not fulfilling a community caretaking function when approaching a person under circumstances where it is obvious the person is neither in need of nor desires assistance.
Not all communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. A seizure within the context of the Fourth Amendment occurs only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.

Estate of Howser 2002 ND 33
Docket No.: 20010185
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Whether undue influence exists is a question of fact.
A trial court may remove the personal representative of an estate for cause.

Bertsch, et al. v. Duemeland, et al. (cross-ref. w/20040055) 2002 ND 32
Docket No.: 20010151
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: Whether a communication that is capable of a defamatory meaning is understood by the recipient as defamatory is ordinarily a question of fact.
To recover for interference with a business relationship, a plaintiff must show he would have obtained some economic benefit in the absence of the interference.

City of Devils Lake v. Lawrence 2002 ND 31
Docket No.: 20010063
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: An officer's reasonable and articulable suspicion that an individual has committed the offense of disorderly conduct is sufficient to justify a temporary detention of that individual for investigative purposes.

Olson v. Olson 2002 ND 30
Docket No.: 20010156
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Knutson v. Knutson 2002 ND 29
Docket No.: 20010238
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In considering whether a settlement agreement between divorcing parties should be enforced, the trial court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable.
In the context of improperly coercing a spouse to sign a settlement agreement, undue influence is the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.
When the child support guidelines do not address a situation, as in the case of parents having joint physical custody of a child for equal amounts of time, the trial court must enter an order appropriate to the needs of the child and the ability of the parent to pay.

Hughes v. State, et al. (Con. w/20010189 & 20010190) 2002 ND 28
Docket No.: 20010188
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Issues raised in the district court but not briefed on appeal are waived.
A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
No appeal lies from a final order in a habeas corpus proceeding.

Red Paint v. State 2002 ND 27
Docket No.: 20010245
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A post-conviction relief claim of disclosure of privileged communications is barred by res judicata if it was fully and finally determined in a previous proceeding.
A holder of a privilege waives the right to assert the privilege if he voluntarily discloses any significant portion of the privileged matter.
It is misuse of process to fail to raise an issue on direct appeal which is appropriate for review on direct appeal.

City of Fargo v. Steffan (Consolidated w/20010176) 2002 ND 26
Docket No.: 20010175
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The arrest of a person in a public place for a public offense committed in the officer's presence is neither a violation of the United States' nor North Dakota's Constitution.
Under the search and seizure jurisprudence of both the United States Supreme Court and the North Dakota Supreme Court, an open doorway is a public place.

Grosinger v. M.B.K. (CONFIDENTIAL) 2002 ND 25
Docket No.: 20010108
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: The phrase "likely to engage in further acts of sexually predatory conduct," used for commitment of sexually dangerous persons, means the person's propensity towards sexual violence is of such a degree as to pose a threat to others.

State v. Roberson 2002 ND 24
Docket No.: 20010053
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: While a defendant's disruptive conduct in court may, in some instances, be sufficient grounds to require a competency hearing, not all disruptive defendants are incompetent to stand trial. Rather, the conduct may be contempt of court.

Buchholz v. ND Department of Transportation 2002 ND 23
Docket No.: 20010211
Filing Date: 2/20/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: A test operator scrupulously complies with the State Toxicologist's approved method to conduct a breath test if the test operator observes that the subject had nothing to eat, drink, or smoke in the twenty minutes prior to the collection of a breath sample.

Ghorbanni v. ND Council on the Arts, et al. 2002 ND 22
Docket No.: 20010164
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: Presenting a claim letter to an assistant attorney general does not satisfy N.D.C.C. 32-12.2-04(1), which requires that notice of a claim against the State be presented to the Director of the Office of Management and Budget.
An action for retaliatory discharge in violation of public policy sounds in tort, not contract.

Piatz v. ND Dept. of Transportation 2002 ND 20
Docket No.: 20010232
Filing Date: 2/20/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Judgment of the district court affirming the decision of the Department of Transportation suspending driver's license for driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Guy 2002 ND 19
Docket No.: 20010136
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition, burglary, robbery, and felonious restraint is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Burke v. State 2002 ND 18
Docket No.: 20010168
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).

State v. Ringsrud 2002 ND 17
Docket No.: 20010242
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment of conviction for unlawful possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3).