Opinions

Tweten v. COUNTRY Preferred Insurance Company, et al. 2013 ND 112
Docket No.: 20120306
Filing Date: 7/17/2013
Case Type: Certified Question - Civil - Civil
Author: Crothers, Daniel John

Highlight: Recovery of underinsured motorist benefits arising from a wrongful death claim depends on the decedent's status as an insured under an applicable policy.
The statutory anti-stacking provisions of N.D.C.C. ch. 26.1-40 prevent divorced parents of a minor son killed in an underinsured motor vehicle accident from recovering the full amount of underinsured motorist benefits from their respective policies.

Disciplinary Board v. McIntee (Consolidated w/ 20130120) 2013 ND 111
Docket No.: 20130119
Filing Date: 6/25/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

SolarBee, Inc. v. Walker, et al. 2013 ND 110
Docket No.: 20120125
Filing Date: 6/24/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Consent to try an unpleaded issue cannot be inferred from the lack of objection to evidence on one pleaded.
Amendment by implication is limited to situations in which the novelty of the issues sought to be raised is reasonably apparent and the intent to try these issues is clearly indicated by failure to object or otherwise.
A breach of contract requires (1) the existence of a contract, (2) a breach of the contract, and (3) damages which flow from the breach.
Evidentiary imprecision regarding the amount of damages does not preclude recovery. The uncertainty which prevents recovery is the uncertainty of the fact of damages, not the uncertainty of the amount.

Sall v. Sall (cross-reference w/ 20100360) 2013 ND 108
Docket No.: 20120448
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Res judicata prohibits relitigation of claims that were raised in a prior action between the same parties and were resolved by final judgment.
A claim is frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected a court to render a judgment in that party's favor.

Smedshammer v. Smedshammer 2013 ND 107
Docket No.: 20120441
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Modification of primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Kartes v. Kartes 2013 ND 106
Docket No.: 20120311
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court's decision that a prima facie case justifying a modification of primary residential responsibility has been established is rendered moot once the evidentiary hearing is held, and the opposing party may not, on appeal from the final order or judgment, challenge the conclusion that a prima facie case was established.
When a parent with primary residential responsibility unilaterally decides to move with the children several hours away from the other parent, for the purpose of precluding or substantially impeding compliance with the existing parenting time arrangement, it constitutes a persistent and willful denial or interference with parenting time.

State v. Goldmann 2013 ND 105
Docket No.: 20120366
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: The State's right to appeal must be expressly granted by statute.
Because the statute does not specifically limit appealability to an order quashing with prejudice, an order dismissing a complaint, information, indictment, or any count, with or without prejudice, is appealable.
For purposes of grading, the amount of a theft is the highest value by any reasonable standard.

Olson v. N.D. Dep't of Transportation 2013 ND 104
Docket No.: 20120352
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Once the Intoxilyzer test record and checklist is admitted into evidence, the department has established prima facie that the officer followed the approved method and ascertained the twenty-minute wait period.
A defendant may rebut the department's prima facie case of fair administration, but he must do more than raise the mere possibility of error.
Observing a defendant is not the only manner of ascertaining that the driver had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample.

Miller v. Miller 2013 ND 103
Docket No.: 20120424
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A mature child's reasonable preference to live with a particular parent may constitute a material change in circumstances to justify a change in primary residential responsibility if there are persuasive reasons for that preference.
Res judicata makes it is inappropriate to rehash issues which were tried or could have been tried by the court in prior proceedings.

Knudson v. Kyllo (cross-reference w/ 20110282) 2013 ND 102
Docket No.: 20120421
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A partner violates his duty of loyalty to the partnership and the other partners when he misappropriates a partnership opportunity.
Whether an opportunity is a partnership opportunity is largely a question of fact, which will not be reversed on appeal unless it is clearly erroneous.