Opinions

Estate of Albrecht 2020 ND 27
Docket No.: 20190180
Filing Date: 1/29/2020
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: The district court’s factual findings in a partition action will not be reversed on appeal, unless they are clearly erroneous.

The district court must consider the facts and circumstances of each case to determine ownership of personal property.

The district court has discretion to allow attorney’s fees and personal representative’s fees in probate cases.

Aftem Lake Developments Inc. v. Riverview Homeowners Assoc. 2020 ND 26
Docket No.: 20190221
Filing Date: 1/29/2020
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A statutory dedication of property divests the donor of ownership in the property.

State v. Wickham 2020 ND 25
Docket No.: 20190144
Filing Date: 1/28/2020
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The district court did not obviously err by admitting fact testimony and by not stopping a witness from testifying by way of a mix of permissible lay opinion testimony and arguably impermissible expert opinion testimony.

Krebsbach, et al. v. Trinity Hospitals, Inc., et al. 2020 ND 24
Docket No.: 20190096
Filing Date: 1/27/2020
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: Negligence claims relating to phlebotomy services performed by a hospital are governed by the two-year malpractice statute of limitations.
In a medical malpractice action, the statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause and the defendant’s possible negligence.
The tort of deceit involves the suppression of a fact by one who is bound to disclose it.

Devore v. American Eagle Energy Corporation, et al. 2020 ND 23
Docket No.: 20190117
Filing Date: 1/23/2020
Case Type: Appeal - Civil - Personal Injury
Author: Tufte, Jerod E.

Highlight: An employer of an independent contractor generally is not liable for the acts or omissions of the independent contractor.

An employer may be liable for an independent contractor’s torts if the employer retains control over the independent contractor.

Duty is a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.

PHI Financial Services v. Johnston Law Office, et al. (consol. w/ 20190001) 2020 ND 22
Docket No.: 20180330
Filing Date: 1/23/2020
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the statement of the claim presented in the complaint. A complaint should not be dismissed unless it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.
An abuse of process occurs when a person uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed. The essential elements of an abuse-of-process claim are: (1) an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding.
A creditor must serve on the debtor a notice that a garnishee summons may be issued at least ten days before the issuance of any garnishee summons against the earnings of any person.
A claim for conversion requires proof of ‘a tortious detention or destruction of personal property, or a wrongful exercise of dominion or control over the property inconsistent with or in defiance of the rights of the owner.
A correct result will not be set aside merely because the district court relied on a different reason for its decision.

State v. Mondragon 2020 ND 21
Docket No.: 20190154
Filing Date: 1/23/2020
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: When determining if there is good cause to continue when a defendant has elected his statutory speedy trial rights, failure of the court to address the factors will not be reversed if we are able to analyze the factors based on the record. A defendant cannot have the benefit of delay while simultaneously claiming the right to a speedy trial. A failure to show prejudice substantially weakens a speedy trial claim.

Hondl v. State, et al. 2020 ND 20
Docket No.: 20190099
Filing Date: 1/23/2020
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: Absent personal jurisdiction, a court is powerless to do anything beyond dismissing without prejudice.

A determination of subject matter and personal jurisdiction must precede any dismissal with prejudice.

Chisholm v. State 2020 ND 19
Docket No.: 20190234
Filing Date: 1/23/2020
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: District courts are required to dismiss an applicant’s claims of ineffective assistance of postconviction relief counsel in a Uniform Postconviction Procedure Act proceeding.

Res judicata prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties.

Appellant’s motions for recusal, to compel discovery, and to correct the record are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Konkel v. Amb 2020 ND 17
Docket No.: 20190152
Filing Date: 1/23/2020
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A parent moving to modify parenting time must show that a material change in circumstances has occurred since entry of the prior parenting time order and that the modification is in the child’s best interests.

A district court may clarify a judgment that is vague, uncertain, or ambiguous.