Opinions

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.

State v. Rue 2001 ND 92
Docket No.: 20000317
Filing Date: 5/22/2001
Case Type: Appeal - Criminal - Other
Author: Sandstrom, Dale

Highlight: Arrests for probation violations may be made by court order or on probable cause.
A probation violator, detained on a court order of apprehension for probation violations, is detained "pursuant to" conviction of an offense, and escape from such detention is a felony offense.
Due process requires the State to prove, beyond a reasonable doubt, every element of an offense.

McDowell, et al. v. Gillie, et al. 2001 ND 91
Docket No.: 20000269
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act.
Generally, issues involving the reasonable person standard and a person's subjective state of mind are inappropriate for disposition by summary judgment.

James, et al. v. Griffin, et al. 2001 ND 90
Docket No.: 20000216
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20-year period for establishing acquiescence begins running anew.

Kinzley v. Kinzley 2001 ND 89
Docket No.: 20000277
Filing Date: 5/7/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Fox v. Fox (cross-ref. w/980198) 2001 ND 88
Docket No.: 20000231
Filing Date: 5/4/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A choice between two permissible views of the evidence is not clearly erroneous when the trial court's findings are based either on physical or documentary evidence or inferences from other facts or on credibility determinations.
A court's valuation of marital property is dependent upon the evidence presented by the parties.

Estate of Murphy, et al. v. Maus, et al. 2001 ND 87
Docket No.: 20000180
Filing Date: 5/3/2001
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: To prevail in a legal malpractice action, a plaintiff must establish the attorney's malpractice proximately caused damage to the plaintiff.

Disciplinary Board v. Howe 2001 ND 86
Docket No.: 20000341
Filing Date: 5/3/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law for 120 days when the hearing panel has found clear and convincing evidence of professional conduct violations involving lack of diligence, communication, and expediting litigation, as well as a disciplinary history of five prior disciplinary sanctions.
Prior discipline is not remote, but is relevant as an aggravating factor when the prior incidents establish a pattern of misconduct.
Disciplinary counsel may reasonably bill attorney fees at $75 per hour, which may be assessed against the attorney whose misconduct warranted the imposition of discipline.

Davis v. State 2001 ND 85
Docket No.: 20000335
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A trial court is authorized to resentence a defendant who violates conditions of probation to any sentence that was initially available. Resentencing a defendant to a harsher sentence than his original sentence imposed does not violate double jeopardy or due process.

State v. Ellis (Cross-reference w/20000006) 2001 ND 84
Docket No.: 20000092
Filing Date: 5/1/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue under N.D.R.Crim.P. 21 has the burden of establishing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury cannot be selected in the county of original venue.
Except under N.D.C.C. 12.1-17-02(4), which involves firing a firearm or hurling a destructive device at another human being, aggravated assault is not a lesser included offense of attempted murder.
In sentencing a defendant, a trial court may consider a conviction that was pending appeal during the sentencing hearing.

Interest of C.R.C. (CONFIDENTIAL) 2001 ND 83
Docket No.: 20000286
Filing Date: 5/1/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: Termination of parental rights is appropriate when the State proves by clear and convincing evidence that a child is deprived and the deprivation is not due primarily to a lack of financial resources; the causes and conditions of the deprivation will likely continue or will not be remedied; and the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm from the deprivation.

State v. Paulson, et al. 2001 ND 82
Docket No.: 20000302
Filing Date: 5/1/2001
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Kapsner, Carol

Highlight: The failure of the parents of an injured person "incapacitated by the injury from giving the notice" to present the director of the office of management and budget a notice of claim within 180 days of discovery of the injury does not preclude the injured person from suing the State.

ND Fair Housing Council, Inc., et al. v. Peterson, et al. (CON w/20000197) 2001 ND 81
Docket No.: 20000130
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Constitutional Law
Author: Sandstrom, Dale

Highlight: Attorney General's opinions interpreting statutes do not bind the Court but will be followed if persuasive. Attorney General's opinions are afforded even greater consideration when they have been impliedly adopted by the legislature.
Refusing to rent to an unmarried couple because they are seeking to cohabit is not unlawful under the discriminatory housing practices provision of the North Dakota Human Rights Act.

Praus, et al. v. Mack, et al. 2001 ND 80
Docket No.: 20000106
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A trial court may grant parties on a side of litigation additional peremptory challenges if they have essentially adverse or antagonistic interests.
An expert witness may not be permitted to express an opinion if the facts disclosed by the evidence are such that it may be assumed the jury is capable of understanding them and arriving at its own conclusion.
A trial court's failure to instruct the jury about the violation of a safety regulation is not prejudicial error, if the complaining party had the opportunity to argue the theory to the jury and the instructions given allowed for a finding of negligence if the jury believed the complaining party's evidence.
Jury instructions on legal principles which illustrate how negligence law is applied in a specific situation are not indispensable if the parties are allowed to argue their theory of the case and the instructions given adequately inform the jury of the law.
One or more jurors in a civil case making an improper unauthorized visit to the scene of the accident is not prejudicial in the absence of a showing it influenced the verdict.

Young v. Johnson 2001 ND 79
Docket No.: 20000336
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Appeal from district court order granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Yantzer v. Yantzer 2001 ND 77
Docket No.: 20000324
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Trial court's order denying a motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. McHugh 2001 ND 76
Docket No.: 20000354
Filing Date: 5/1/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction for gross sexual imposition based on a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3),(4).

Halvorson v. Halvorson 2001 ND 75
Docket No.: 20000290
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Judgment denying a motion for reconsideration of a child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Minar v. Minar 2001 ND 74
Docket No.: 20000179
Filing Date: 4/17/2001
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.
Under the child support guidelines, an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
The child support guidelines must be applied using common sense and in consideration of the circumstances.
A court may delay payment of a portion of child support when the obligor's income is temporarily reduced.
Every child support order entered in this state must address health insurance coverage for the child.

Dahlberg v. Lutheran Social Services, et al. 2001 ND 73
Docket No.: 20000152
Filing Date: 4/17/2001
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Maring, Mary

Highlight: An employer is not contractually bound to follow a progressive discipline policy where an employee handbook and the progressive discipline policy, construed as a whole, preserved the employment at-will presumption.
A plaintiff claiming intentional infliction of emotional distress must show extreme and outrageous conduct that exceeds all possible bounds of decency.
A prima facie case for retaliatory discharge requires an employee to show the employee has engaged in protected activity, the employer took adverse action against the employee, and the existence of a causal connection between the employee's protected activity and the employer's adverse action.
To be protected activity, an employee's report of a violation or suspected violation of law must be made for the purpose of exposing an illegality, and the reporter's purpose must be assessed at the time the report is made.

Wright v. ND Workers Comp. Bureau 2001 ND 72
Docket No.: 20000292
Filing Date: 4/17/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, information or evidence that has not been offered, admitted, and made a part of the official record of the proceeding generally is not considered by the administrative agency. N.D.C.C. 28-32-06(2).
An injured employee who has undergone vocational rehabilitation is responsible for making a good faith work search.
To be eligible for partial disability benefits, an injured employee must provide evidence of a loss of earning capacity.

Interest of D.N., D.N., C.N., Children (CONFIDENTIAL)(Consol. w/20000235) 2001 ND 71
Docket No.: 20000234
Filing Date: 4/12/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: When there has been an extensive period in which efforts have been made to overcome inabilities to effectively parent, the courts cannot allow the children to remain in an indeterminative status midway between foster care and the obvious need for permanent placement.

Dowhan v. Brockman, et al. 2001 ND 70
Docket No.: 20000249
Filing Date: 4/12/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The question of who is a prevailing party for an award of disbursements is a question of law, subject to de novo review, while the question of the amounts to be allowed for disbursements is one of fact, subject to an abuse-of-discretion standard of review.
A prevailing party for an award of disbursements is one who prevails on the merits of the main issue.

Hentz v. Hentz 2001 ND 69
Docket No.: 20000239
Filing Date: 4/12/2001
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Past unreasonable behavior in withholding contact between the noncustodial parent and the child is a relevant fact for the trial court to weigh in considering the custodial parent's motion to relocate to another state.

Interest of M.S. (CONFIDENTIAL) 2001 ND 68
Docket No.: 20000183
Filing Date: 4/12/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: To terminate the parental rights for an Indian child, the Indian Child Welfare Act requires proof beyond a reasonable doubt that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
To terminate parental rights for an Indian child, the Indian Child Welfare Act requires proof by clear and convincing evidence that there were active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful.
When cultural bias is not implicated in parental termination proceedings, the requirement of qualified expert witness testimony under the Indian Child Welfare Act can be met with testimony of a professional person having substantial education and experience in the area of his or her speciality even though that professional does not have specific experience or knowledge of Indian customs, tradition, or culture.

Midwestern Enterprises, Inc. v. Stenehjem 2001 ND 67
Docket No.: 20000168
Filing Date: 4/12/2001
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: "Gambling apparatus" means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons, or gambling by a person involving the playing of a machine.
"Coin-operated gaming device" means any machine that is a so-called "slot" machine that operates by means of the insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens.

State v. Duchene 2001 ND 66
Docket No.: 20000209
Filing Date: 4/11/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Misleading statements made knowingly and intentionally or with reckless disregard are stricken from an affidavit in support of search warrant, and the affidavit's remaining contents are examined to determine whether that information is sufficient to establish probable cause.

State v. Klein 2001 ND 65
Docket No.: 20000285
Filing Date: 4/11/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Appeal from criminal judgment and commitment following a jury verdict of guilty is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).