Opinions

Interest of H.G. (CONFIDENTIAL) 2001 ND 142
Docket No.: 20010197
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's involuntary commitment order is reviewed under a more probing clearly erroneous standard.
Even though mentally ill, engaging in imprudent business practices is not enough to find a respondent presents a substantial likelihood of dangerousness to property and is, therefore, a person requiring treatment.

Gale v. ND Bd. of Podiatric Medicine 2001 ND 141
Docket No.: 20010032
Filing Date: 7/30/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A party to an administrative proceeding may waive the right to an appeal.

Lapp v. ND Dept. of Transportation 2001 ND 140
Docket No.: 20010040
Filing Date: 7/25/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: In determining whether an officer had a reasonable and articulable suspicion to justify an investigatory stop, the test is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.
Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct.

Rodenburg, et al. v. Fargo-Moorhead Y.M.C.A., et al. 2001 ND 139
Docket No.: 20000279
Filing Date: 7/23/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: In reviewing a jury's findings, the evidence is viewed in the light most favorable to the verdict and the court determines only if substantial evidence supports it.
A motion for a new trial is addressed to the sound discretion of the trial court.
If nonresidents purposely direct their activities toward North Dakota, a North Dakota court may be justified in exercising personal jurisdiction over them.
Under North Dakota's comparative fault law, "fault" includes negligent and intentional conduct; a negligent tortfeasor's conduct is compared with an intentional tortfeasor's conduct, and their liability is several, not joint, with each being liable only for the amount of damages attributable to that party.

Selzler v. Selzler 2001 ND 138
Docket No.: 20000247
Filing Date: 7/20/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given.
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the proceeding.

Interest of R.O., et al. (CONFIDENTIAL)(CONSOLIDATED W/20000307) 2001 ND 137
Docket No.: 20000305
Filing Date: 7/20/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: In a parental-rights-termination proceeding alleging reports of child abuse or neglect, N.D.C.C. 50-25.1-10 abrogates the physician-patient and psychotherapist-patient privilege in N.D.R.Ev. 503.
Constitutional issues may not be raised for the first time on appeal.
Under federal law, upon a finding of good cause, a trial court may order disclosure of information about a person's alcohol or drug treatment at a federally assisted facility, but the court must restrict disclosure to essential matters.

State v. Heitzmann (Cross-Ref. w/20000312) 2001 ND 136
Docket No.: 20010017
Filing Date: 7/20/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: There is no automatic-search rule for companions of an arrestee.
If an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is in fact a weapon.
A more intrusive Terry search may be constitutionally permissible when the detainee attempts to prevent an officer from performing an effective pat-down.
Officers are entitled to use the forcible means reasonably necessary to effectuate the detentive goals of investigation, maintenance of the status quo, or officer safety.

State v. Kelly 2001 ND 135
Docket No.: 20000293
Filing Date: 7/20/2001
Case Type: Appeal - Criminal - Assault
Author: Neumann, William

Highlight: Inmate disciplinary proceedings and the resulting consequences are civil in nature.
Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial, does not affect substantial rights of the parties, and is harmless error.

Name Change of State Bar Board to Board of Law Examiners 2001 ND 134
Docket No.: 20010181
Filing Date: 7/20/2001
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

State v. Holte, et al. 2001 ND 133
Docket No.: 20010029
Filing Date: 7/20/2001
Case Type: Original Proceeding - Criminal - Writ of Certiorari
Author: VandeWalle, Gerald

Highlight: It is an affirmative defense to the strict liability crime of violating a domestic violence protection order that the defendant's acts were innocent or mistaken.

State v. Miller 2001 ND 132
Docket No.: 20000337
Filing Date: 7/20/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A trial court does not abuse its discretion or violate the defendant's right to present a defense when it excludes hearsay evidence about a dream the child-victim had about another male relative.
A trial court does not abuse its discretion when it excludes evidence which would have been merely cumulative of abundant other evidence establishing a fact.
As long as the defendant and witness are present in the courtroom and their view of each other is not physically obstructed, the Confrontation Clause is not violated by allowing the witness to testify while facing away from the defendant.

Kraft v. ND State Board of Nursing 2001 ND 131
Docket No.: 20000320
Filing Date: 7/20/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: An agency's findings of fact are reviewed to determine if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.
A registered nurse's refusal to submit to chemical testing, as required by employer policy, violates nursing standards.
A registered nurse's conviction for simple assault, without evidence of rehabilitation, violates nursing standards and relates adversely to the practice of nursing.
After participating in an adjudicative hearing in a position adversarial to the claimant, an agency's counsel improperly communicates with the agency if the communications regarding an issue in the proceeding are without notice and opportunity for all parties to participate.

US Bank v. Arnold 2001 ND 130
Docket No.: 20010071
Filing Date: 7/13/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Whether a telephone call is an appearance entitling a defendant to eight days' notice before a hearing on an application for default judgment is generally a question of law, fully reviewable on appeal. When the nature, content, and purpose of the call is disputed, underlying factual questions are reviewed for clear error.
Relief from default judgment is extraordinary; a party seeking to disturb the finality of default judgment bears a heavy burden of proving the district court abused its discretion. To vacate default judgment, the moving party must present evidence connecting allegations of a medical condition, a busy schedule, or familial illness with excusable neglect.

Interest of P.M., et al. (CONFIDENTIAL) 2001 ND 129
Docket No.: 20000263
Filing Date: 7/13/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court's order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matrix v. TAG Investments (Cross-ref. w/990336, 20000192 & 20000356) 2001 ND 128
Docket No.: 20010060
Filing Date: 7/13/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Post-judgment orders summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7), and double costs awarded under N.D.R.App.P. 38 and 39.

Interest of T.K. (Consolidated w/20000329) 2001 ND 127
Docket No.: 20000328
Filing Date: 7/10/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: Parents' fundamental and natural rights to their children are of constitutional dimension, but they are not absolute, and parents must at least provide care to their children that satisfies the minimum community standards.
When the mental and physical health of a child are the concerns, it is not enough that a mother indicates a desire to improve, and her failure to cooperate with social service assistance programs is a relevant factor in terminating parental rights.

Heyen v. State 2001 ND 126
Docket No.: 20000310
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An application for post-conviction relief is denied if the same claims have been fully and finally determined in a previous post-conviction proceeding. It is a misuse of process to raise issues in a subsequent post-conviction application which could have been raised in the initial application.

Anderson v. Meyer Broadcasting Co. 2001 ND 125
Docket No.: 20000322
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: An employee alleging age discrimination under the North Dakota Human Rights Act must establish she is at least forty years old and persons under forty years old were treated more favorably.
An employee alleging disparate treatment sex discrimination under the Human Rights Act must identify specific instances in which persons situated similarly in all relevant aspects were treated differently.
An employee alleging retaliatory discharge bears the burden of showing she engaged in protected activity, her employer took adverse action against her, and there was a causal connection between her protected activity and the employer's adverse action.

Hoverson v. Hoverson 2001 ND 124
Docket No.: 20000227
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Economic misconduct requires misconduct which results in waste of marital assets or reduction of the net marital estate.
A trial court must provide sufficient explanation for its property distribution to permit a reviewing court to determine the basis for its distribution.
In calculating an obligor's deduction from net income for tax obligations, a hypothetical federal income tax obligation specified in the child support guidelines must be used..

Myer, et al. v. Rygg 2001 ND 123
Docket No.: 20000257
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A trial court's decision on qualification of a witness as an expert will not be reversed on appeal unless it was an abuse of discretion.
If an expert's knowledge, training, education, and experience will assist the trier of fact, the expert need not be a specialist in a highly particularized field or have a formal title or particular license.
The trial court has wide discretion to determine an appropriate sanction for violation of discovery rules.

Berg v. Dakota Boys Ranch Assoc. 2001 ND 122
Docket No.: 20000301
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Neumann, William

Highlight: If summary judgment is denied, the proper procedure is to move for judgment as a matter of law at the close of the evidence, and the denial of that motion may be reviewed on appeal.
A party raising an argument in a summary judgment motion but abandoning the argument at trial has not preserved the issue for appellate review.
A trial court does not err in admitting a release into evidence if the release was offered for a purpose other than proving liability or the amount of the claim.

Flattum-Riemers v. Peters-Riemers (CONFIDENTIAL) 2001 ND 121
Docket No.: 20000349
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A request for district court review of a judicial referee's findings and order need not specifically recite every issue raised before the referee to preserve those issues for appellate review.
A trial court may allow the filing of affidavits and documents less than 24 hours before a hearing.
Denial of a continuance because of the absence of a material witness is proper when the moving party does not show what the witness would testify to if present, or that the facts desired cannot be proven by other available witnesses, and when there is no showing of diligence to secure the testimony of the witness by deposition or personal appearance at trial.

State v. Schneeweiss 2001 ND 120
Docket No.: 20000295
Filing Date: 7/10/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Defendants have the right to court-appointed counsel at public expense in all felony cases and in all non-felony cases, unless the sentence upon conviction will not include imprisonment, only if they are eligible under the guidelines governing indigency.
Non-indigent defendants also have the right to court-appointed counsel, at their own expense, if they are unable to secure the assistance of counsel.
A trial court has discretion to substitute appointed counsel if a defendant shows good cause for the substitution.
A trial court has discretion to determine whether to grant a continuance of trial to change counsel and may consider the time required for trial preparation and the diligence of the moving party.
Defendants may voluntarily waive their right to counsel, or their conduct may be the functional equivalent of a voluntary waiver, but the waiver must be made knowingly and intelligently.

Tweit v. Erickson 2001 ND 119
Docket No.: 20010055
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Braunagel v. City of Devils Lake 2001 ND 118
Docket No.: 20000342
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Although declaratory and injunctive relief are available to challenge a city's failure to comply with the statutory requirements for annexation of property, they may not be used to test the wisdom of the annexation decision.
Government regulation of land use constitutes a "taking" for public use only when the owner has been deprived of all or substantially all reasonable uses of the property.

State v. Jensen (Consolidated w/20010013 & 20010014) 2001 ND 117
Docket No.: 20010012
Filing Date: 7/10/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal convictions for driving under revocation, driving under the influence, and false report to law enforcement summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Trade 'N Post, L.L.C. v. World Duty Free Americas, Inc, et al. 2001 ND 116
Docket No.: 20000176
Filing Date: 6/14/2001
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: In determining whether there is an implied private right of action under a state statute, the Court should consider whether the plaintiff is one of the class for whose especial benefit the statute was enacted, whether there is any indication of legislative intent to create such a remedy, and whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy.
The party urging an implied right of action bears the burden of proof to establish the legislature intended to create the remedy.
There is no implied private right of action for damages under the Unfair Discrimination Law, N.D.C.C. ch. 51-09, or the Unfair Trade Practices Law, N.D.C.C. ch. 51-10.
A common law tort claim for unlawful interference with business is recognized in this state.
The elements of a claim for unlawful interference with business are: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an intentional and wrongful act of interference; (4) proof that the interference caused the harm sustained; and (5) actual damages to the plaintiff.
In order to recover for unlawful interference with business, the plaintiff must prove that the interfering conduct was independently tortious or in violation of statute.

Demarce v. State (CONSOLIDATED W/20000304) 2001 ND 115
Docket No.: 20000303
Filing Date: 6/13/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of post-conviction relief and motion to reduce sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (6).

Stutsman Co. v. Westereng, et al. 2001 ND 114
Docket No.: 20000308
Filing Date: 6/8/2001
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: A Job Service appeal, in which a base-period employer does not have access to pertinent information available to the other party, does not afford the appellant a fair hearing and is not "conducted in such manner as to ascertain the substantial rights of the parties."
Disclosure of information to a base-period employer who is a party to a claim is necessary "for the proper presentation of a claimant's claim" under the North Dakota Unemployment Compensation Law.

Corbett v. Corbett 2001 ND 113
Docket No.: 20000291
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A trial court's child custody decision and property distribution are findings of fact which will not be reversed on appeal unless clearly erroneous.
Spousal support in an amount to negate child support is inappropriate.
Only court-ordered visitation can be considered in deciding whether there is extended visitation which justifies a downward deviation in the presumptively correct amount of child support.

T.F. James Co. v. Vakoch (cross-ref. w/990223) 2001 ND 112
Docket No.: 20010021
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: In a commercial lease, a provision providing for payment of attorney fees in the event of breach is enforceable and does not violate public policy.
Assignment of a different judge on remand requires balancing numerous competing interests. Reassignment is unnecessary if the integrity of the district court is preserved, litigants are protected from bias, and allegations of bias do not affect fair administration of the law.

Interest of A.B. (CONFIDENTIAL) 2001 ND 111
Docket No.: 20010016
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Juvenile Law
Author: Neumann, William

Highlight: If juvenile delinquency proceedings are begun in a court other than in the county of the child's residence, that court must transfer the proceedings for disposition to the juvenile court of the county of the child's residence, if the child has been adjudicated delinquent and other proceedings involving the child are pending in that court.

Moen, et al. v. Thomas, et al. (CROSS-REFERENCE W/20000169) 2001 ND 110
Docket No.: 20000111
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: The existence of an attorney-client relationship is ordinarily a question of fact.

Johnson v. Johnson 2001 ND 109
Docket No.: 20000309
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A finding by the trial court as to future intentions of a party is not affected by a subsequent decision by that party to engage in conduct contrary to the finding, and the subsequent conduct does not constitute grounds for a new trial on the basis of newly discovered evidence.
An irregularity in proceedings that will justify a new trial is one that prevents a party from having a fair trial.

Demming v. Demming 2001 ND 108
Docket No.: 20000363
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

State v. Abnar (CONSOLIDATED w/20000288) 2001 ND 107
Docket No.: 20000287
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgments of conviction for possession of drug paraphernalia and possession of a controlled substance with intent to deliver are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Aune (cross-ref. w/20020106) 2001 ND 106
Docket No.: 20000294
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: The trial court's judgment of conviction for a violation of N.D.C.C. 12.1-10-05 is affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Schwartz 2001 ND 105
Docket No.: 20000339
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Jury verdict of guilty on two counts of misdemeanor sexual assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4).

Jorgenson, et al. v. Agway, Inc. 2001 ND 104
Docket No.: 20000300
Filing Date: 5/25/2001
Case Type: Certified Question - Civil - Civil
Author: VandeWalle, Gerald

Highlight: North Dakota's Consumer Fraud Act, N.D.C.C. ch. 51-15, applies to a farmer who purchases confection sunflower seed for use in cultivating a sunflower crop for subsequent sale and who alleges the seed is defective and marketed in violation of the Act.

Larson v. Norkot Manufacturing, et al. 2001 ND 103
Docket No.: 20000321
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The discovery rule tolls the statute of limitations in malpractice actions until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
To trigger the running of the statute of limitations, a plaintiff need not fully appreciate the potential liability or be convinced of his or her injury, but need only know enough to be on notice of a potential claim.

Remmick v. Whitman, et al. 2001 ND 102
Docket No.: 20000364
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The interest of a recorded mineral deed grantee, who is not a named party in a subsequent action to foreclose a mortgage on the real property, is not affected by the foreclosure action.

Triple Quest, Inc. v. Cleveland Gear Co., Inc. 2001 ND 101
Docket No.: 20000281
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An order dismissing an action without prejudice on the ground that jurisdiction or venue is proper in another state based on a contractual forum selection clause is appealable.
When an interest has been transferred during an action, the transferee need not be substituted or joined as a party to have standing to pursue an appeal.

Estate of Schmidt (cross-ref. w/970183) 2001 ND 100
Docket No.: 20000258
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author:

Highlight: Appeal of eleven orders in probate case summarily affirmed under N.D.R.App.P. 35.1(a)(1) (appeal is frivolous and completely without merit).

State ex rel. Olson v. Harrison, et al. 2001 ND 99
Docket No.: 20000282
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: The State has not consented to suit without proper service of process.
Where no official with authority to accept service of process for the State was served in accordance with N.D.R.Civ.P. 4, the State has not been properly served.
When a tribal court does not have personal jurisdiction over the State, the tribal court's order is not appropriate for recognition as a matter of comity.
When a tribal court's order is not appropriate for recognition as a matter of comity, the State is not required to exhaust remedies available in tribal court.

Christl v. Swanson (Cross-Ref. W/19990256) 2001 ND 98
Docket No.: 20000315
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Under the Child Support Guidelines, prior to the August 1, 1999 amendments, the district court could deduct from an obligor's adjusted gross income business costs actually incurred and paid, but not expensed for internal revenue purposes.

Eaton v. State 2001 ND 97
Docket No.: 20010003
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A criminal defendant waives nonjurisdictional defects by entering a knowing and voluntary guilty plea.
Violations of the Interstate Agreement on Detainers Act that do not deprive the district court of personal jurisdiction are waived by a guilty plea.
The burden of proving a basis for post-conviction relief rests on the petitioning defendant.

Sollin, et al. v. Wangler, et al. 2001 ND 96
Docket No.: 20000284
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A trial court should give an ultimate-outcome instruction informing the jury how its liability apportionment will affect an award of damages if the instruction is properly requested and the instruction will not confuse or mislead the jury.

Moen, et al. v. Thomas, et al. (CROSS-REFERENCE W/20000111) 2001 ND 95
Docket No.: 20000169
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: Statements of assent to an alleged oral contract are not hearsay but constitute a verbal act.
Parties to a lease may by mutual consent terminate, alter, or amend their agreement.

Rask, et al. v. Nodak Mutual Ins. Co. 2001 ND 94
Docket No.: 20000311
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Insurance
Author: Neumann, William

Highlight: In determining whether a vehicle is an underinsured motor vehicle, only the policy insuring that motor vehicle is considered.

Schuck v. Montefiore Public School Dist. No. 1 2001 ND 93
Docket No.: 20000299
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Employees are required to exhaust available administrative remedies prior to pursuing their claim in court.