Opinions

Brash v. Gulleson 2013 ND 156
Docket No.: 20120313
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Failure of consideration is an affirmative defense that arises when a valid contract has been formed, but the performance bargained for has not been rendered.
Failure of consideration is a question of fact which will not be disturbed on appeal unless clearly erroneous.
Although parol evidence is generally not admissible to vary or contradict the terms of a written contract, it is admissible to prove a failure of consideration.

State v. Nickel (consolidated w/20120418) 2013 ND 155
Docket No.: 20120395
Filing Date: 8/29/2013
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The protection against unreasonable searches and seizures proscribes only government action.
A warrantless search or seizure is constitutionally impermissible unless it falls within a recognized exception to the warrant requirement.
Plain view alone does not justify the warrantless seizure of evidence, and no amount of probable cause can justify a warrantless seizure of evidence absent exigent circumstances.

Bloomquist v. The Goose River Bank, et al. 2013 ND 154
Docket No.: 20130059
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An oral agreement to loan money providing for repayment extending for a period longer than one year, and which does not include express terms governing prepayment, is barred by the statute of frauds.
Partial performance will remove an oral agreement from the statute of frauds only if it unmistakably points to and is consistent only with the existence of the oral agreement and cannot be accounted for on some other hypothesis.

Pifer v. McDermott (cross-reference 20110287) 2013 ND 153
Docket No.: 20130027
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A person may gift an option to purchase real property.
If no consideration is given for an option, the option may be withdrawn at any time before acceptance.
An option to purchase real property given without consideration is valid and enforceable if the option agreement was unconditionally accepted within the time prescribed therein and no attempt was made to withdraw it before acceptance.
Courts, whether trial or appellate, have no duty to search the record for evidence that might defeat a summary judgment motion.

Solid Comfort, Inc. v. Hatchett Hospitality, Inc., et al. 2013 ND 152
Docket No.: 20120415
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: If personal jurisdiction us challenged, the plaintiff bears the burden of proving jurisdiction exists. The plaintiff must make a prima facie showing of jurisdiction to defeat a motion to dismiss for lack of personal jurisdiction. If the court relies only on pleadings and affidavits, the court must look at the facts in the light most favorable to the plaintiff.
The court first must decide whether the requirements of the state's long-arm provision are satisfied and, if so, then must decide whether the exercise of personal jurisdiction comports with due process.
Review of a district court's decision on personal jurisdiction presents a question of law, reviewed under the de novo standard.

Disciplinary Board v. Lee 2013 ND 151
Docket No.: 20130017
Filing Date: 8/29/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The purpose of the prohibition against a lawyer charging an unreasonable fee is to protect clients and the public from excessive fees which exceed the bounds of reasonableness in light of the amount and quality of the work performed, the results obtained, and the fees customarily charged in the locality for similar legal services.

Estate of Cashmore (cross reference with 20090315) 2013 ND 150
Docket No.: 20130012
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: A remedial sanction for contempt, requires the alleged contemnor receive notice and a hearing.
Affirmance of a judgment on appeal leaves the judgment in the same state as if no appeal had been taken.
A verified or sworn statement closing an estate is ineffective if the personal representative fails to acknowledge a known and outstanding claim.

Johnson, et al. v. Finkle, et al. 2013 ND 149
Docket No.: 20130047
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Under the Duhig rationale, a grantor cannot grant and reserve the same mineral interest, and if a grantor does not own a large enough mineral interest to satisfy both the grant and the reservation, the grant must be satisfied first.
The Duhig rationale applies to a grantor's overconveyance of mineral interests, including when the mineral interests are transferred by a contract for deed and subsequent warranty deed.

Datz v. Dosch (cross-reference w/ 20120167) 2013 ND 148
Docket No.: 20120435
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The district court's findings under the statutory best interest of the child factors must contain sufficient specificity to show the factual basis for the court's decision.
Evidence of domestic violence must be considered by a court when weighing the statutory best interest of the child factors.

Bell, et al. v. Pro Tune Plus, et al. 2013 ND 147
Docket No.: 20130068
Filing Date: 8/29/2013
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court does not have the authority to remand an action properly removed from the small claims court.
A plaintiff has standing to appeal an order of remand to small claims court because the rights afforded in the district court vested in both parties immediately upon removal.
An order of remand to small claims court is not analogous to a traditional dismissal without prejudice, because a procedural barrier exists to prevent the case being filed again in the district court.