Opinions

Baatz v. State (cross-reference w/20130066) 2014 ND 151
Docket No.: 20140018
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: In the absence of a specific instruction by the Supreme Court, an individual applying for postconviction relief is not entitled to an additional evidentiary hearing when the case is remanded to the district court.
A defendant has the burden of establishing he qualifies for appointment of counsel.
Issues not before the district court on remand will not be considered on appeal.

Dakota Heritage Bank v. Pankonin, et al. (cross-reference w/20120335) 2014 ND 150
Docket No.: 20140016
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Notice of entry of judgment that is not properly served does not start the period for filing an appeal.
A judgment is not enforceable until notice of entry of judgment is properly served or the party it is being enforced against has actual knowledge of entry of the judgment.

Shae v. Shae 2014 ND 149
Docket No.: 20130282
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may deviate upward from the presumptively correct child support guidline amount when an obligor that earns more than $12,500 per month.
The presumptively correct amount of child support is rebutted if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children. Findings must support the specific upward deviation, rather than applying a straight percentage of the obligor's monthly income.
Net income received by an obligor from all sources must be considered in the determination of available money for child support before the appropriate upward deviation may be determined.
Net income is calculated by determining an obligor's gross income and then allowing for deductions. Gross income includes income from any source, in any form.

Rustad v. Rustad (cross-reference w/20130105) 2014 ND 148
Docket No.: 20140014
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's decision on primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
A party may not present issues in a second appeal which were resolved in the first appeal or which would have been resolved had they been presented in the first appeal.

Higginbotham v. WSI, et al. 2014 ND 147
Docket No.: 20140019
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Whether a potential commute or relocation is unreasonably expensive cannot be determined when the employee has not yet searched for or been offered employment.
Functional limitations at the time the claimant was performing a job should be considered when determining whether an employment option presents an opportunity for substantial gainful employment.
When there is no evidence of a functional limitation during the development of a vocational rehabilitation plan, WSI should develop the plan without considering the alleged limitation.

Finstad, et al. v. Ransom-Sargent Water Users, Inc., et al. 2014 ND 146
Docket No.: 20130222
Filing Date: 7/19/2014
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: North Dakota law does not recognize the economic duress doctrine.
A provision of a contract must in and of itself be inherently illegal to be unlawful.

Nieuwenhuis v. Nieuwenhuis 2014 ND 145
Docket No.: 20130394
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Duress occurs when an individual acts as a result of coercion or when the individual's actions are involuntary.
A district court abuses its discretion by vacating only portions of a judgment.
Implied findings are insufficient for an award of attorney's fees.

Middleton v. State 2014 ND 144
Docket No.: 20130395
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To demonstrate prejudice in an ineffective assistance of counsel claim, the defendant must establish a reasonable probability that but for counsel's errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result.
A motion for new trial must specify the alleged defects and errors with particularity. The defendant must assert all alleged errors in a motion for new trial.
If a defendant moves for a new trial, he is limited on appeal to the grounds presented to the district court in the motion.
A per se presumption of prejudice is reserved to the narrow set of cases where counsel fails to perfect a requested appeal.

Estates of Vizenor and Vizenor v. Mesling, et al. 2014 ND 143
Docket No.: 20130161
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A power of attorney is a written instrument that authorizes one person to act as another person's agent. An agency created under a durable power of attorney also entails a confidential relationship and fiduciary duties.
When a confidential relationship or fiduciary duty exists, the person in whom the confidence is reposed is deemed to be a trustee. All transactions between a trustee and a beneficiary, including gifts, are presumed to be without sufficient consideration and under undue influence.
A presumption substitutes for evidence of the presumed fact until the trier of fact finds from credible evidence that the presumed fact does not exist.

Vetter v. State (cross-reference w/20120015) 2014 ND 142
Docket No.: 20140028
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).