Opinions

Matter of Emelia Hirsch Trust 2017 ND 291
Docket No.: 20170195
Filing Date: 12/13/2017
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Tufte, Jerod E.

Highlight: District court pre-filing order against vexatious litigant under N.D. Sup. Ct. Admin. R. 58 reviewed for an abuse of discretion.

Atkins v. State 2017 ND 290
Docket No.: 20170249
Filing Date: 12/11/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Once the State moves for summary disposition of application for post-conviction relief alleging ineffective assistance of counsel, pointing out the absence of supporting evidence, the defendant is put on notice of the issue and a minimal burden shifts to the defendant to provide some competent evidence to support his claim. Scheduling an evidentiary hearing does not relieve the petitioner of the burden of producing competent, admissible evidence raising an issue of material fact.

Interest of K.S.D. (CONFIDENTIAL) (consolidated with 20170273) 2017 ND 289
Docket No.: 20170272
Filing Date: 12/7/2017
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Louser, Stacy Joan

Highlight: A juvenile court's decision to terminate parental rights in an ICWA case must be supported by evidence beyond a reasonable doubt, including qualified expert testimony, on whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Osborne v. Brown & Saenger, Inc. 2017 ND 288
Docket No.: 20170254
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Tufte, Jerod E.

Highlight: The standard of review of a district court's granting of a Rule 12(b)(3) motion to dismiss on the basis of a forum selection clause is de novo.
North Dakota has a strong public policy against non-competition agreements, causing the non-compete clause and forum-selection clause to be rendered unenforceable in an employment contract.

Gannaway, et al. v. Torres, et al. 2017 ND 287
Docket No.: 20170092
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Fraud in the execution of a deed must be undiminished by the negligence of the grantor, and the district court must consider the grantor's conduct in determining whether a deed is void or voidable.
If a deed is voidable, it may pass good title to a subsequent good-faith purchaser for value without notice.
If facts exist that would put a reasonably prudent person on notice about defects in a chain of title, the subsequent buyer is not a good-faith purchaser for value without notice.

Ceynar, et al. v. Barth, et al. 2017 ND 286
Docket No.: 20170135
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: Restrictive covenants are strictly construed in favor of free use of land.
Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance, even if it effects material reduction in market value.

Vig v. Swenson 2017 ND 285
Docket No.: 20170032
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: Tufte, Jerod E.

Highlight: Before a court may set aside a transaction on the ground of mental incapacity, a party attacking the validity of the transaction has the burden to prove the grantor was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction.
A lease of agricultural land having a fixed, non-contingent term longer than ten years is entirely invalid and not simply invalid beyond ten years.

Black Hills Trucking, Inc. v. N.D. Industrial Commission 2017 ND 284
Docket No.: 20170086
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The Industrial Commission has jurisdiction over the illegal discharge of saltwater from the point it was generated to the point it is disposed.
A fine is unconstitutionally excessive if it is grossly disproportional to the gravity of a defendant's offense.

State v. Truelove 2017 ND 283
Docket No.: 20170043
Filing Date: 12/7/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A conviction for gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a) requires the use of force either prior to or during the sexual act, but not after.

State v. $127,930 United States Currency, et al. 2017 ND 282
Docket No.: 20170154
Filing Date: 12/7/2017
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: Nervousness, a large amount of cash, and a long distance, short-duration trip to a source city are pertinent factors in determining reasonable suspicion.