Opinions

Estate of Dionne (cross-reference w/20090016 and 20100353) 2013 ND 40
Docket No.: 20120249
Filing Date: 3/18/2013
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A will does not need to be admitted to probate when a valid distribution agreement signed by all parties with a possible claim in the estate disposes of all property in the estate.
The doctrines of res judicata and collateral estoppel prevent relitigation of issues or claims previously decided.

Disciplinary Board v. Gross 2013 ND 39
Docket No.: 20120456
Filing Date: 3/8/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer publicly reprimanded.

Hysjulien v. Hill Top Home of Comfort, et al. 2013 ND 38
Docket No.: 20120163
Filing Date: 3/4/2013
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The time for filing a claim for an unlawful employment practice under Title VII or the Human Rights Act depends on whether the claim raises discrete discriminatory or retaliatory acts or alleges a hostile work environment.
Discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges, and each discrete discriminatory act starts a new period for filing charges alleging that act.
A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice. In deciding whether a hostile work environment exists, a court looks to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Intentional infliction of emotional distress requires proof of (1) extreme and outrageous conduct that is (2) intentional or reckless and causes (3) severe emotional distress.
A plaintiff claiming negligent infliction of emotional distress must also show bodily harm.

Hanisch v. Kroshus 2013 ND 37
Docket No.: 20120251
Filing Date: 3/1/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A district court has discretion in deciding to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order.
The district court may grant a disorderly conduct restraining order if the petitioner complies with the statutory procedural requirements, and if after a hearing the court finds reasonable grounds to believe the respondent has engaged in disorderly conduct.
Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person but does not include constitutionally protected activity.

Mees v. N.D. Dep't of Transportation 2013 ND 36
Docket No.: 20120348
Filing Date: 2/28/2013
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: The Intoxilyzer test record and checklist is presumed to show fair administration of the approved method until the defendant shows that the evidence as a whole clearly negates the presumed fact.
If a fact-finder can draw reasonable inferences from the evidence and conclude the subject could not have eaten, drank, or smoked, the 20-minute wait requirement has been met.

Barrett, et al. v. Gilbertson 2013 ND 35
Docket No.: 20120279
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party claiming a breach of contract must prove the existence of a contract, a breach of the contract, and damages which flow from the breach.
In interpreting a contract, the court may consider proof of the existence of a separate oral stipulation or agreement as to any matter on which the written contract was silent and which is not inconsistent with its terms if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.
When one party prevents the other party's performance of a term of a contract, it excuses the nonperformance and provides a defense in a suit for breach by the nonperformance.

Davis v. State (cross-reference w/20080331 & 20090093) 2013 ND 34
Docket No.: 20120272
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Discovery in the post-conviction context requires good cause and may be used only to the extent and in the manner the district court has ordered.
To obtain discovery under the statutory good cause standard: (1) the evidence sought to be discovered, if established, must allow the applicant to obtain post-conviction relief, and (2) contain specific and particularized allegations.
Post-conviction relief may be granted when evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.
Post-conviction relief under N.D.C.C. 29-32.1-01(1)(e) is similar to a N.D.R.Crim.P. 33 request for new trial based on newly discovered evidence, and a defendant must show: (1) the evidence was discovered after trial; (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence; (3) the newly discovered evidence is material to the issues at trial; and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

Bakken, et al. v. Duchscher, et al. 2013 ND 33
Docket No.: 20120232
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Extrinsic evidence may not be used to vary or contradict the terms of an unambiguous agreement or to create an ambiguity.
The party invoking laches has the burden of proving he was prejudiced because his position has become so changed during the delay that he cannot be restored to the status quo.

Interest of S.R.L. 2013 ND 32
Docket No.: 20120282
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An award of joint residential responsibility will be affirmed if supported by sufficient findings of fact consistent with the children's best interests.
Uncooperative parents may be awarded joint residential responsibility when it is in the child's best interests.

Guardianship of J.S.L.F. 2013 ND 31
Docket No.: 20120162
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Guardian/Conservator
Author: VandeWalle, Gerald

Highlight: A guardianship proceeding is an inappropriate method for testing the fitness of a parent.
To prove a parent's rights to his or her child have been suspended by circumstances due to abandonment, the petitioner must satisfy the same standards to prove abandonment required in the Uniform Juvenile Court Act and the Revised Uniform Adoption Act.