Opinions

Matter of Reciprocal Discipline of Scher 2019 ND 209
Docket No.: 20190192
Filing Date: 8/1/2019
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Matter of Reciprocal Discipline of Rosso 2019 ND 208
Docket No.: 20190191
Filing Date: 8/1/2019
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.

SWMO, LLC v. Eagle Rigid Spans Inc., et al. 2019 ND 207
Docket No.: 20180407
Filing Date: 7/31/2019
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: On a motion for summary judgment, a court may not weigh the evidence, determine credibility or attempt to discern the truth of the matter.
Chapter 35-27, N.D.C.C., provides procedures for obtaining a construction lien on improvements to real property and for the enforcement of the lien.

State v. Morales 2019 ND 206
Docket No.: 20180366
Filing Date: 7/30/2019
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Denial of the Sixth Amendment right to a public trial without having considered the Waller factors is a structural error. When examining the scope of closure of a trial, special awareness should be given to whether both the public and jury must be excluded, or only the jury, and the scope should be adjusted accordingly.

Rodenburg Law Firm v. Sira, et al. 2019 ND 205
Docket No.: 20180401
Filing Date: 7/30/2019
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Jensen, Jon J.

Highlight: The elements of an abuse-of-process claim are an ulterior purpose and a willful act in the use of process not proper in the regular conduct of the proceeding.
To maintain an action for malicious prosecution requires a plaintiff to show the action was brought with malice.
The absence of a viable substantive claim precludes a separate claim for punitive damages.

State v. Nelson 2019 ND 204
Docket No.: 20180406
Filing Date: 7/30/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Jensen, Jon J.

Highlight: A completed deferred imposition of sentence that has resulted in the dismissal of the charges may not be used to enhance a sentence.

State v. Dockter 2019 ND 203
Docket No.: 20190061
Filing Date: 7/30/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Issues not raised in the district court cannot be raised for the first time on appeal unless they rise to the level of obvious error.

In appeal of a probation revocation, Supreme Court reviews factual findings under clearly erroneous standard and reviews decision to revoke probation under abuse-of-discretion standard.

Wachter Development, Inc. v. Martin, et al. 2019 ND 202
Docket No.: 20180379
Filing Date: 7/30/2019
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A landowner may sell land subject to restrictive covenants so long as they are not contrary to public policy.

Under the doctrine of equitable conversion, after parties execute a binding contract for the sale of land, equitable title vests in the purchaser and the seller holds legal title only as security for payment of the balance of the purchase price. The doctrine applies only where there is a valid contract for sale which could be specifically enforced.

A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. The right to enforce a restriction or reservation may be lost by waiver.

Under the doctrine of unconscionability, a court may deny enforcement of a contract because of procedural abuses arising out of the contract’s formation and substantive abuses relating to the contract’s terms.

Robinson v. WSI 2019 ND 201
Docket No.: 20180383
Filing Date: 7/30/2019
Case Type: Appeal - Administrative - Workers Compensation
Author: McEvers, Lisa K. Fair

Highlight: Service of an administrative order under N.D.C.C. § 65-04-32(3) is not “service of process” requiring service under N.D.R.Civ.P. 4 because “process” is a term of art that applies differently to judicial proceedings and administrative proceedings.

Without a finding by the trier of fact on a dispositive factual dispute relating to jurisdiction, we are unable to decide whether the hearing officer made proper conclusions of law.

Great West Casualty Company v. Butler Machinery Company 2019 ND 200
Docket No.: 20180375
Filing Date: 7/30/2019
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A motion to dismiss for failure to state a claim is based on pleadings, and if matters outside the pleadings are presented to and not excluded by the district court, motion must be treated as a motion for summary judgment.
The district court erred in granting summary judgment when it made findings on the disputed fact of whether privity existed between parties.