Opinions

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.

Hurt v. Hurt 2001 ND 13
Docket No.: 20000177
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Evidence of domestic violence which does not trigger the statutory presumption under N.D.C.C. 14-09-06.2(1)(j) remains one of the best interest factors to be considered by the court.
A guardian ad litem's recommendation on child custody is not conclusive.
A trial court's custody determination is a finding of fact that is not set aside on appeal unless clearly erroneous.

City of Harvey v. Fettig 2001 ND 12
Docket No.: 20000185
Filing Date: 1/30/2001
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: The prosecutor's statement supporting an appeal from a suppression order cannot be a mere paraphrase of the statutory language, but must explain the relevance of and need for the evidence which was suppressed.

Nord, et al. v. Herrman, et al. 2001 ND 11
Docket No.: 20000063
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Any survey method that results in equitable allocation of a new shoreline in proportion to each owner's share of the original shoreline will satisfy the legal requirement of proportional allocation.
When a trial court is faced with conflicting opinions by expert witnesses for the parties, and the court could have relied on either party's expert witness, the court's choice between the two permissible views of the weight of the evidence is not clearly erroneous.
Changes in property boundaries caused by rising and falling waters is a natural consequence of riparian land ownership.
A quiet title judgment is not binding on other property owners in the area who were not made parties to the action and who might have a claim to the subject property.

Interest of J.S. (CONFIDENTIAL-M.H.) 2001 ND 10
Docket No.: 20000344
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Expedited appeals under the mental health law are limited to the procedures, findings, and conclusions of the lower court. Because of this limited review, detailed findings are necessary.
A mental health patient has the right to the least restrictive conditions necessary to achieve the treatment purposes.

Clark v. State 2001 ND 9
Docket No.: 20000296
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: Under Apprendi v. New Jersey, 120 S.Ct. 2348, 2355 (2000), any fact, other than prior convictions, that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury and proved beyond a reasonable doubt.

Doyle v. Sprynczynatyk 2001 ND 8
Docket No.: 20000244
Filing Date: 1/30/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Points on a driving record must be reduced for completion of a defensive driver course only if the points are accumulated prior to completing the course. Points accumulate when entered on the driving record, not at the date of the traffic citation or conviction.

Disciplinary Board v. Howe 2001 ND 7
Docket No.: 20000211
Filing Date: 1/30/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer's conduct involving dishonesty, fraud, deceit, or misrepresentation generally results in suspension from the practice of law.

Reiser v. Reiser 2001 ND 6
Docket No.: 20000194
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: In dividing the marital estate, fault causing deterioration of the marriage is a relevant factor under the Ruff-Fischer guidelines.
In awarding attorney fees in a divorce proceeding, fault is only relevant to the extent one party has unreasonably escalated the fees.

State v. Kelly 2001 ND 5
Docket No.: 20000154
Filing Date: 1/30/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Judgment of conviction for gross sexual imposition, attempted gross sexual imposition, felonious restraint, and theft summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Marschner v. Marschner 2001 ND 4
Docket No.: 20000172
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A spouse is disadvantaged who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity. A disadvantaged spouse is not required to deplete a property distribution in order to live.
A valid consideration in awarding spousal support is balancing the burden created by divorce. A trial court cannot consider issues of property division and spousal support separately, in a vacuum, but must examine those issues together.

City of Fargo v. Salsman 2001 ND 3
Docket No.: 20000205
Filing Date: 1/30/2001
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Per Curiam

Highlight: The trial court's judgment of conviction for a violation of Fargo Municipal Code is affirmed under N.D.R.App.P. 35.1(a)(2).

Englund v. State (Consolidated w/20000251 through 20000254) 2001 ND 2
Docket No.: 20000250
Filing Date: 1/30/2001
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) and (4).

Petition for Change of Designation of Judgeship No. 1 2001 ND 1
Docket No.: 20000362
Filing Date: 1/3/2001
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Petition to move chambers of Judgeship No. 1 in the Southwest Judicial District from Dickinson to Bowman denied.

Estate of Lutz (Cross-Ref. w/960177 & 980390) 2000 ND 226
Docket No.: 20000098
Filing Date: 12/29/2000
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Neumann, William

Highlight: Whether services performed by a family member are so exceptional and extraordinary as to imply a contract to pay for those services is a question of fact.
Lack of legal advice to a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital agreement, but the presence of independent counsel is not a prerequisite to enforceability.
Separate statutes under the Uniform Premarital Agreement Act govern unconscionability at the time the agreement was executed, unconscionability at the time of separation or marital dissolution, and unconscionability that may result from enforcement at any time, including the time of death.
A spouse can waive any right of inheritance and succession in a valid and enforceable premarital agreement and consent to will.
Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement.

Jacobson v. ND Workers Comp. Bureau 2000 ND 225
Docket No.: 20000102
Filing Date: 12/29/2000
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A willful false claim or false statement is sufficiently material for forfeiture of future benefits if it is a statement which could have misled the Bureau in a determination of the claim.
Before terminating a claimant's disability benefits, due process requires the Bureau to give the claimant pre-termination notice of its intent to terminate benefits, a summary of the evidence, and an opportunity to respond. The post-deprivation hearing must be provided at a meaningful time, as required by the due process clause.

Berger v. ND Workers Comp. et al. 2000 ND 224
Docket No.: 20000153
Filing Date: 12/27/2000
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: An owner of a business is not entitled to workers compensation benefits without securing optional coverage.
In determining whether a claimant was an employee or an owner when he was injured, the rules for determining whether a person is an independent contractor or an employee, do not apply, and the Bureau may consider other evidence or factors.

State v. Helmenstein 2000 ND 223
Docket No.: 20000062
Filing Date: 12/27/2000
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Voluntariness of a confession is determined by the totality of the circumstances, focusing on the characteristics and condition of the accused at the time of the confession, as well as the details of the setting in which the confession was obtained.
Miranda warnings are required when a person is in custody and is interrogated. Custody is a mixed question of law and fact and is fully reviewable on appeal.
The requirement of bringing a person before a magistrate without unnecessary delay is a factor to consider in evaluating the voluntariness of a confession. Unnecessary delay depends upon the circumstances of each case.
A change of venue rests in the sound discretion of the trial court and will not be reversed absent an abuse of discretion. A defendant challenging a denial of a change of venue must establish prejudice or establish that a fair and impartial jury could not be empaneled.

Interest of C.R.H. (CONFIDENTIAL) 2000 ND 222
Docket No.: 20000228
Filing Date: 12/21/2000
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: In terminating parental rights under N.D.C.C. ch. 27-20 the trial court has no authority to make the termination contingent on the terminated parents receiving visitation rights upon the child's adoption.

Disciplinary Board v. Keller 2000 ND 221
Docket No.: 20000225
Filing Date: 12/21/2000
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Once objections are filed by an attorney to a hearing panel's findings and recommendations, the appropriate procedure to address a claim of lack of notice of order for default is to move the Supreme Court to remand the matter to the Hearing Panel for consideration of a motion to vacate.

Superpumper, Inc. v. Nerland Oil (Cross-reference w/970307) 2000 ND 220
Docket No.: 20000103
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The automatic bankruptcy stay applies to actions against a non-debtor codefendant where there is such an identity between the debtor and the codefendant that the debtor is the real party defendant and a judgment against the codefendant is, in effect, a judgment against the debtor.

Pfeifle v. Tanabe 2000 ND 219
Docket No.: 20000134
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A lessee may terminate a lease and vacate the premises when the lessor fails to secure quiet possession of the premises within a reasonable time, considering the cumulative effect of long-standing and continuous problems.
Before vacating premises, a lessee must give notice to a lessor by requests to repair dilapidations or to secure quiet possession of leased property; however, such notice need not be in writing.
A lessee does not waive a right to terminate a lease by remaining in possession for a period after alleged problems occurred, when the problems continued throughout the period and the lessee repeated complaints and requests for repairs during the period.

Davenport v. State 2000 ND 218
Docket No.: 20000148
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.

Redfield v. Bitterman, et al. (CONSOLIDATED W/20000162 & 20000181) 2000 ND 217
Docket No.: 20000107
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Absent an abuse of discretion, the supreme court will not set aside a trial court's order on a motion for an extension of time to appeal, based upon excusable neglect.
Section 50-24.1-07, N.D.C.C., does not authorize recovery of medical assistance benefits from the estate of a recipient's spouse who predeceases the recipient, beyond assets to which the recipient had a legal title or interest.