Opinions

Interest of C.A.R. 2020 ND 209
Docket No.: 20190385
Filing Date: 10/21/2020
Case Type: TERMINATION/PARENTAL RIGHTS
Author: Tufte, Jerod E.

Highlight: A party seeking termination of parental rights must prove all the elements by clear and convincing evidence.

If a petitioner proves his or her case under the clear and convincing standard of proof, then a district court has discretion to decide whether to terminate parental rights.

State v. Devine 2020 ND 208
Docket No.: 20200033
Filing Date: 10/21/2020
Case Type: HOMICIDE
Author: Jensen, Jon J.

Highlight: The exclusionary rule previously codified within N.D.C.C. § 39-20-01(3)(b) did not apply to a test obtained pursuant to N.D.C.C. § 39-20-01.1.

Bismarck Financial Group, et al. v. Caldwell 2020 ND 207
Docket No.: 20200005
Filing Date: 10/21/2020
Case Type: CONTRACTS
Author: McEvers, Lisa K. Fair

Highlight: A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint, and it must not be granted unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.

A person that wrongfully dissociates from a limited liability company is liable to the company and the other members for damages the dissociation causes.

Suelzle v. NDDOT 2020 ND 206
Docket No.: 20190343
Filing Date: 10/21/2020
Case Type: TRANSPORTATION DEPT.
Author: Tufte, Jerod E.

Highlight: A person may be arrested for actual physical control of a vehicle while under the influence of alcohol if the vehicle is located on private property in a private area to which the public has a right of access.

Whether property is a private area to which the public has a right of access is a question of fact, which may be determined by factors including: the existence or absence of signs, gates, or barriers; whether or not there is routine use by the public not specifically invited to use the property, such as for purposes of visiting, making deliveries, or otherwise interacting with the owner; and the location of the vehicle on the property.

Hall v. Hall, et al. 2020 ND 205
Docket No.: 20190169
Filing Date: 10/21/2020
Case Type: REAL PROPERTY
Author: McEvers, Lisa K. Fair

Highlight: A district court has greater liberty in granting motions under N.D.R.Civ.P. 60(b) when the matter involves a default judgment rather than a judgment following a full trial on the merits.

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

A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.

RFM-TREI Jefferson Apartments v. Stark County Board of Comm'rs 2020 ND 204
Docket No.: 20190396
Filing Date: 10/21/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: Tufte, Jerod E.

Highlight: An assessment that exceeds the true and full value of property is contrary to N.D.C.C. § 57-23-01, which provides that “assessments of any taxable property in excess of the full and true value in money are subject to correction and abatement and refund.” When a Board denies a request to abate such an assessment, it acts contrary to the legislature’s directive, and the Court will conclude the abatement denial is arbitrary and unreasonable.

In tax abatement and refund proceedings, taxing authorities may consider information that does not meet the standards for admissibility of evidence in court.

Onstad v. Jaeger, et al. 2020 ND 203
Docket No.: 20200251
Filing Date: 9/25/2020
Case Type: WRIT OF MANDAMUS (Civil)
Author: Per Curiam

Highlight: Section 16.1-01-08, N.D.C.C., authorizes a court to order the secretary of state to correct an error which has been committed in printing the ballot, and does not place a time limitation on the court’s authority to order the correction of a ballot before the election.

A person’s legal residence is a question of fact.

Holter v. City of Mandan 2020 ND 202
Docket No.: 20190277
Filing Date: 9/21/2020
Case Type: ADMINISTRATIVE PROCEEDING
Author: McEvers, Lisa K. Fair

Highlight: Dissenting opinion on petition for rehearing; petition for rehearing denied.

O'Keeffe v. O'Keeffe 2020 ND 201
Docket No.: 20190379
Filing Date: 9/16/2020
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Tufte, Jerod E.

Highlight: An award of spousal support is rehabilitative when it is ordered to provide the receiving spouse an opportunity to acquire an education, training, work skills, or experience to increase earning capacity or to become self-supporting.

Non-rehabilitative spousal support includes support ordered to equitably reduce a substantial income disparity that cannot be adjusted by property division or rehabilitative support.

State v. Edwards 2020 ND 200
Docket No.: 20200044
Filing Date: 9/15/2020
Case Type: SEXUAL OFFENSE
Author: Crothers, Daniel John

Highlight: Failure to assert a claim of obvious error on appeal does not warrant review under the obvious error standard.