Opinions

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).

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).