Opinions

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.

State v. Eagleman (Cross-reference w/20030149 & 20040359) 2013 ND 101
Docket No.: 20120406
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A sentence will be vacated only if the court acted outside the limits prescribed by statute or substantially relied on an impermissible factor in determining the severity of the sentence.
An illegal probationary term in a sentence invalidates the sentence in its entirety.
Judges do not, and should not, operate in a vacuum in sentencing.

Frey v. Frey 2013 ND 100
Docket No.: 20120378
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent's move out of state and a non-custodial parent's temporary custody of a child are a material change in circumstances.
When determining whether modification of prima
A district court's decision to modify a child support obligation after reserving the issue in an interim order is a matter of discretion.
A district court's denial of interim child support must be explained.

Wotzka v. Minndakota Limited Partnership 2013 ND 99
Docket No.: 20120301
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A condition that creates an open and obvious danger may limit the landowner's duty to its lawful entrants, but if the harm is expected from the standpoint of the landowner, the landowner is not relieved from his duty to keep the premises reasonably safe under the circumstances.
When a landowner has reason to anticipate that a lawful entrant will proceed to encounter a condition, despite its open and obvious nature, the factfinder must still consider whether the landowner acted reasonably under the circumstances.

Lario Oil & Gas Company, et al. v. EOG Resources, Inc. 2013 ND 98
Docket No.: 20120349
Filing Date: 6/19/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The specific description in a mineral lease is controlling when a discrepancy exists between the specific description of the property conveyed and an expression of the quantity conveyed.

Albright v. WSI, et al. 2013 ND 97
Docket No.: 20120298
Filing Date: 6/19/2013
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: When presented with conflicting expert medical opinions, it is for WSI, not the district court, to weigh credibility and resolve conflicts.
If WSI disregards medical evidence favorable to a claimant, WSI must consider the entire record, clarify inconsistencies, and adequately explain the reason for disregarding medical evidence favorable to the claimant, applying the two tests and the factors identified in the statute.

City of Fargo v. Moran 2013 ND 96
Docket No.: 20130065
Filing Date: 6/19/2013
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Conviction for shoplifting is summarily affirmed under N.D.R.App.P. 35.1(a)(3).