Opinions

State v. Axtman 2001 ND 64
Docket No.: 20000262
Filing Date: 4/11/2001
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).

Disciplinary Board v. Keller 2001 ND 63
Docket No.: 20010068
Filing Date: 3/28/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Peters-Riemers v. Riemers 2001 ND 62
Docket No.: 20000145
Filing Date: 3/23/2001
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: Error may not be predicated upon the erroneous exclusion of evidence unless a substantial right of the party is affected.
Only a willful violation of a protection order results in penalty.
An issue not presented to the trial court will not be considered for the first time on appeal.

Albrecht v. Metro Area Ambulance, et al. (Cross Ref. w/19970319) 2001 ND 61
Docket No.: 20000226
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: It is inappropriate to bring a motion for judgment as a matter of law, under N.D.R.Civ.P. 50(a), in a bench trial.
A court can award damages for pain and suffering, mental anguish, and other noneconomic losses even though the plaintiff has not introduced evidence of economic damages, such as loss of earnings or medical expenses.

Horsley v. ND Workers Comp., et al. 2001 ND 60
Docket No.: 20000237
Filing Date: 3/20/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: Before a valid judgment can be entered, an order for judgment is required.
An appeal may be taken from a judgment entered without an order for entry of judgment if the trial court intended to dispose of the case and intended that a judgment be entered and if an order for judgment is implicit in the trial court's memorandum opinion.

Interest of A.L. and J.L. (CONSOLIDATED w/20000218-20000220) 2001 ND 59
Docket No.: 20000217
Filing Date: 3/20/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: Counsel's unsupported statements about children's potential eligibility for enrollment in a particular Indian tribe and other unknown Indian tribes are insufficient to trigger provisions of the Indian Child Welfare Act that require notice of termination proceedings to an Indian child's tribe.
Evidence of past deprivation alone is not enough to terminate parental rights, and prognostic evidence is necessary to determine continued or future deprivation.

Overboe v. Farm Credit Services of Fargo, et al. 2001 ND 58
Docket No.: 20000236
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The two-year statute of limitations for actions against licensed insurance agents is retroactive and applies to causes of action occurring before July 31, 1995.
A single reference to due process in one sentence of a brief, made in connection with an argument about legislative intent, is insufficient to challenge the constitutional validity of a statute.

State v. Schmitt 2001 ND 57
Docket No.: 20000037
Filing Date: 3/20/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: If a court finds false statements in an affidavit supporting a search warrant, the court must find whether those statements were included intentionally or with reckless disregard for the truth and must evaluate probable cause accordingly.
The mere recitation of testimony is not equivalent to a finding of fact.
Conclusory findings of fact which state a party has failed in the burden of proof are inadequate.

Ritter, Laber & Assoc., et al. v. Koch Oil, et al.(cross reference w/990204) 2001 ND 56
Docket No.: 20000224
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Neumann, William

Highlight: A trial court has broad discretion to certify an action as a class action under N.D.R.Civ.P. 23.
As a class action progresses and the parties develop evidentiary facts, a trial court may redefine, subclassify, or decertify a previously certified class action.

Disciplinary Board v. Hawkins 2001 ND 55
Docket No.: 20000233
Filing Date: 3/20/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney who is disciplined in another jurisdiction is also subject to reciprocal discipline in North Dakota if admitted to practice law in North Dakota, regardless of whether the attorney currently is licensed to practice law in North Dakota.
Reciprocal discipline shall be identical in this state, unless the proceedings in the jurisdiction initiating the discipline lack due process or proof of misconduct, or unless identical punishment would result in grave injustice or the misconduct warrants substantially different discipline.
An attorney is not denied due process in disciplinary proceedings if there is adequate notice of the charges and an opportunity to be heard.
Imposing identical reciprocal discipline is not a grave injustice when an attorney is not licensed in North Dakota and does not intend to reapply for licensure.

Rogstad v. Dakota Gasification Co. 2001 ND 54
Docket No.: 20000242
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: An employer who retains the right to control the method, manner, and operative detail of an independent contractor's work is subject to liability for physical harm to employees of the independent contractor for whose safety the employer owes a duty to exercise reasonable care.
An employer's duty to exercise reasonable care for the employee of an independent contractor may arise through express contractual provisions retaining the right to control some part of the operative details of the independent contractor's work or through the employer's actual exercise of retained control of the work.

Estate of Dion 2001 ND 53
Docket No.: 20000178
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: An assertion that an action is one against a political subdivision and that prospective jurors are taxpayers of the political subdivision is insufficient in itself to effect a change of venue.
A court has no power to order a person to execute a will.
For the issue of undue influence to be submitted to a jury, the evidence must create more than just a mere suspicion of undue activity.
A will contestant has the burden of proving testamentary incapacity by a preponderance of the evidence.
An award of attorney fees for a frivolous claim lies within the sound discretion of the trial court.

Global Acquisitions, LLC v. Broadway Park Limited Partnership, et al. 2001 ND 52
Docket No.: 20000132
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: In a bench trial, the court must make findings of fact and conclusions of law sufficient to enable the appellate court to understand the factual determination and the basis for the conclusions of law and the judgment entered.
Reliance on the conduct of the party against whom equitable estoppel is asserted must be reasonable, and there must be some form of affirmative deception by that party.

McPhee, et al. v. Tufty, et al. 2001 ND 51
Docket No.: 20000047
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Whether the family car doctrine applies depends on the totality of the circumstances, and is a question of fact for the trier of fact to decide.
In deciding whether a vehicle was "used" by an insured when a third party was actually driving the insured's vehicle, courts analyze two factors: (1) whether the vehicle was under the supervision and control of the insured; and (2) whether the vehicle was being operated to serve a purpose of the insured.
Coverage of a newly acquired vehicle is automatic if notice is given within 30 days of its acquisition.

Dvorak v. State 2001 ND 50
Docket No.: 20000352
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Knudson 2001 ND 49
Docket No.: 20000238
Filing Date: 3/20/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: The trial court's denial of a motion to suppress and its judgment of conviction for driving under suspension are summarily affirmed under N.D.R.App.P. 35.1(7).

Fetch v. Quam, et al. (cross ref. 940257) 2001 ND 48
Docket No.: 20000256
Filing Date: 3/7/2001
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: Summary judgment is appropriately granted when there is no genuine issue of material fact that an insurer acted in bad faith by intervening in a lawsuit to defend its own interests against its insured under an uninsured motorist provision in the insurance policy or by investigating and refusing to settle a claim by its insured which is fairly debatable as to liability.

Lukenbill, et al. v. Fettig 2001 ND 47
Docket No.: 20000184
Filing Date: 3/5/2001
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In setting a child support obligation, the district court must clearly set forth how it arrived at the amount of the obligor's income and level of support.
A court may allocate income tax dependency exemptions, and its allocation is reviewable under a "clearly erroneous" standard of review.
When determining the existence or nonexistence of a parent-child relationship, a court may order parties to pay costs in the proportions it determines, and may award reasonable attorney fees based on the agreement of the parties or for a frivolous claim.

Hall Family Living Trust v. Mutual Service Life Ins. Co. 2001 ND 46
Docket No.: 20000188
Filing Date: 3/5/2001
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: An application for insurance stating the policy does not take effect until delivery creates no insurance contract until the policy is delivered.
The scope of an agent's authority to bind a principal is a question of fact which ordinarily is inappropriate for summary judgment.

Lohstreter v. Lohstreter (cross-ref. w/970130) 2001 ND 45
Docket No.: 20000094
Filing Date: 3/5/2001
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: When the circumstances are appropriate, rehabilitative spousal support may continue after the remarriage of the disadvantaged spouse.
A trial court may impute income to an obligor of child support only if the obligor is unemployed or underemployed.

State v. Berger 2001 ND 44
Docket No.: 20000174
Filing Date: 3/5/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Absent actual prejudice, violation of the statutory right to consult with counsel before submitting to an Intoxilyzer test is properly challenged by a motion to suppress the results of the test, rather than a motion to dismiss the charge.
A defendant must be provided a reasonable opportunity to make long distance telephone calls to consult with an attorney, if the defendant pays for the call and it does not interfere with valid testing.

Tibor v. Tibor (Cross-reference w/970372 & 990020) 2001 ND 43
Docket No.: 20000040
Filing Date: 3/5/2001
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The presumptively correct child support guidelines are rebutted by a preponderance of the evidence establishing a noncustodial parent's reduced ability to provide support due to visitation travel expenses and a downward deviation from the guidelines is in the best interests of the children. Until the guidelines define a "reduced ability to pay," an affidavit from the noncustodial parent testifying as to net income and anticipated travel expenses is sufficient rebuttal evidence. A trial court may use its discretion to determine whether visitation travel expenses may be deducted directly from the child support payments or from the noncustodial parent's gross monthly income to calculate net income for the purpose of determining the appropriate child support obligation, as the guidelines do not provide a method for calculating the deviation.
The child support guidelines may be rebutted by evidence of travel expenses for only court-ordered visitations, not for discretionary visitation travel expenses.

State v. Keeney 2001 ND 42
Docket No.: 20000255
Filing Date: 3/5/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for delivery of a controlled substance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Kopp v. Kopp 2001 ND 41
Docket No.: 20000200
Filing Date: 2/21/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Rule 60(b)(vi), N.D.R.Civ.P., authorizes the trial court, in its discretion, to provide relief from a judgment when the movant demonstrates it would be manifestly unjust to enforce the judgment.

Anderson v. Jacobson 2001 ND 40
Docket No.: 20000064
Filing Date: 2/21/2001
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A jury special verdict will be set aside on appeal only if it is perverse and contrary to the evidence.
The court on appeal will reconcile alleged inconsistent findings of a jury by examining both the law of the case and the evidence to determine whether the verdict is logical and probable.
Unopposed jury instructions become the law of the case.

Runge v. Runge 2001 ND 39
Docket No.: 20000121
Filing Date: 2/20/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Judgment valuing and distributing marital property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Snyder v. ND Workers Comp. Bureau 2001 ND 38
Docket No.: 20000204
Filing Date: 2/20/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Unless otherwise provided, statutes in effect on the date of an injury govern workers compensation benefits.
Words not defined in a statute are to be understood in their ordinary sense.
If the Workers Compensation Bureau seeks reimbursement for benefits paid, the level of materiality required is proof a false claim or false statement caused the benefits to be paid in error.
A false claim or false statement is sufficiently material for forfeiture of future benefits if it could have misled the Bureau or medical experts in a determination of the claim.

Interest of C.H., et al. (CONFIDENTIAL) 2001 ND 37
Docket No.: 20000119
Filing Date: 2/20/2001
Case Type: Appeal - Civil - Juvenile Law
Author: VandeWalle, Gerald

Highlight: The juvenile court has exclusive original jurisdiction over proceedings concerning unruly children. The custodian has the right to determine the nature of the care, placement, and treatment of the child, except for any limits the court may impose. The underlying obligation of the juvenile court under the Uniform Juvenile Court Act is to protect the welfare of the children.

Schroeder, et al. v. Buchholz, et al. 2001 ND 36
Docket No.: 20000191
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The existence of a constructive trust must be proven by clear and convincing evidence. To establish a constructive trust, a party must prove the existence of both a confidential relationship and unjust enrichment.
A constructive trust is an equitable remedy, ultimately resulting in the plaintiff's receipt of formal legal title to the property.

Wetzel v. ND Dept. of Transportation 2001 ND 35
Docket No.: 20000186
Filing Date: 2/15/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: Whether a person has been afforded a reasonable opportunity to contact an attorney is a mixed question of law and fact.
The reasonableness of the opportunity given an arrestee to contact an attorney is tested objectively, focusing on the totality of the circumstances.

Peek v. Berning 2001 ND 34
Docket No.: 20000056
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of rotating physical custody is only appropriate after finding the parents can communicate and cooperate sufficiently to ensure the child's best interests would not be jeopardized by an alternating custody schedule.

K.L.G v. S.L.N. (CONFIDENTIAL) 2001 ND 33
Docket No.: 20000158
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Paternity
Author: VandeWalle, Gerald

Highlight: Upon request of the noncustodial parent, a court shall grant visitation that will enable the child and the noncustodial parent to maintain a parent-child relationship beneficial to the child.
Visitation between a child and a noncustodial parent is not merely a privilege of the noncustodial parent, but a right of the child.
Visitation with the noncustodial parent is presumed to be in the child's best interests.
A visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent's ability to foster and develop a relationship with the child.

Aalund v. ND Workers Comp. 2001 ND 32
Docket No.: 20000208
Filing Date: 2/15/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The failure to give the N.D.C.C. 28-32-11 perjury admonition in a discovery deposition does not preclude the admission of the deposition at an administrative hearing.
In appeals from administrative agencies, courts generally may consider only those issues identified in the specifications of error.
Section 65-05-33, N.D.C.C., authorizes the forfeiture of any additional benefits if a claimant willfully makes a material false statement regarding a claim for benefits.

Northrop v. Northrop 2001 ND 31
Docket No.: 20000157
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court must articulate a rationale for a substantial disparity in the distribution of the marital estate.

Moszer, et al. v. Witt (CONSOLIDATED w/20000203) 2001 ND 30
Docket No.: 20000202
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A jury verdict which assesses fault to a person after finding the person's negligence was not a proximate cause is a clearly inconsistent and perverse verdict.
Litigating parties have a right to have exceptions noted to the instructions to which they did not agree.
A party is entitled to a new jury trial when the court so injects itself into the jury deliberation process on the merits that the parties have been denied their right to have the jury determine the facts on the instructions given to them as approved by the parties.
When a party challenges the constitutionality of an act in an action where neither the state nor an agency or officer thereof is a party, the party raising the constitutional issue must notify the attorney general, who may then intervene on behalf of the State.

Vogel v. Braun, et al. 2001 ND 29
Docket No.: 20000193
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A prison inmate may access funds in his release aid account if authorized by the warden.
A trial court may deny a motion to proceed in forma pauperis if the action is totally without merit.
A party requesting oral argument under N.D.R.Ct. 3.2(a) cannot complain about a lack of notice of a time change brought about at his request.

Greenwood v. Paracelsus Health Care, et al. 2001 ND 28
Docket No.: 20000175
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Malpractice
Author: Neumann, William

Highlight: Section 28-01-46, N.D.C.C., which requires an affidavit of an expert to support an allegation of medical malpractice, does not apply once the trial has begun.
To establish a prima facie case of medical malpractice, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the alleged harm.
A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician.

Strutz v. State 2001 ND 27
Docket No.: 20000268
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A trial court's findings of fact in a post-conviction relief proceeding will not be disturbed unless clearly erroneous.

Carry Mocassin, et al. v. State Farm 2001 ND 26
Docket No.: 20000065
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Insurance
Author: Per Curiam

Highlight: Summary judgment dismissing claims for deceit, negligent misrepresentation, bad faith, and infliction of emotional distress is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Wilson v. State (cross-reference w/990193) 2001 ND 24
Docket No.: 20000229
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Weathers, et al. v. Peters, et al. 2001 ND 23
Docket No.: 20000141
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Denial of Motion to Exclude Evidence of results of a Blood Alcohol Concentration test and Judgment on Jury Verdict dismissing claims on the merits and with prejudice are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Fredericks v. American Federal Bank 2001 ND 22
Docket No.: 20000150
Filing Date: 2/5/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment awarding employee severance benefits is summarily affirmed under N.D.R.App.P 35.1(a)(2).

Wanstrom v. ND Workers Comp. Bureau, et al. (cross-reference w/990306) 2001 ND 21
Docket No.: 20000187
Filing Date: 2/2/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The presumption that a firefighter's lung disease was suffered in the line of duty is based on a legislatively adopted premise that a firefighter's occupational exposure to smoke causes lung disease, and the presumption cannot be rebutted by expert medical opinion rejecting that underlying premise.

Kautzman, et al. v. McDonald, et al. 2001 ND 20
Docket No.: 20000156
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Absent the timely filing of a notice of claim against the state or one of its employees, the court lacks subject matter jurisdiction to entertain a lawsuit against them.
When a plaintiff brings an action for intentional infliction of emotional distress, the court must initially decide whether a defendant's conduct reasonably may be regarded as "extreme and outrageous."
The owner of a domestic animal which is killed or injured by the negligent or willful act of a third person proximately resulting in that death or injury is entitled to recover for the loss suffered.
The decision by law enforcement officers whether the plaintiffs' dogs posed a danger to the officers or to others, thereby justifying the dogs' destruction, does not fall within the discretionary function exception to political subdivision liability.

Schmitz v. Schmitz (cross-ref. w/980056) 2001 ND 19
Docket No.: 20000133
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Spousal support payments may be modified only upon a showing of a material change in circumstances justifying the modification.

Barrera v. State (cross-ref. w/970010 & 960021) 2001 ND 18
Docket No.: 20000195
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: It is a misuse of process to raise issues on subsequent post-conviction applications that could have been raised in the initial post-conviction application.

Des Lacs Valley Land Corp. v. Herzig, et al. 2001 ND 17
Docket No.: 20000033
Filing Date: 2/1/2001
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: In the absence of fraud, mistake, or accident, an unambiguous written deed cannot be altered by parol evidence.
A trial court decision will not be set aside because the court applied an incorrect rationale, if the result is the same under the correct law and rationale.

Eckes v. Richland Co. Social Service Board, et al. 2001 ND 16
Docket No.: 20000142
Filing Date: 2/1/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The unambiguous settlor's intent determines the nature of the trust.

Owens v. State (CONSOLIDATED W/20000129) (CROSS-REF SEE DOCKET MEMO) 2001 ND 15
Docket No.: 20000128
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Post-conviction relief is denied for misuse of process when a petitioner presents issues the petitioner inexcusably failed to raise in a previous post-conviction hearing.

State ex rel. Dept. of Corrections and Rehabilitation v. Haskell, et al. 2001 ND 14
Docket No.: 20000214
Filing Date: 1/30/2001
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Maring, Mary

Highlight: The Supreme Court exercises its discretionary authority to issue supervisory writs on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.
Failure of a plaintiff to present a notice of claim, as required by N.D.C.C. 32-12.2- 04, renders the district court without jurisdiction.