Opinions

Waldock v. Amber Harvest Corp., et al. 2012 ND 180
Docket No.: 20120064
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: If a grantor does not own a large enough mineral interest to satisfy both a grant and a reservation of the mineral interest, the grant must be satisfied first because the grant is superior to the reservation.
In analyzing conveyances and reservations of mineral interests, the focus is on what the grantor purported to convey to the grantee in the granting clause.

Seay v. Seay 2012 ND 179
Docket No.: 20110332
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A divorce judgment provision requiring a child support and spousal support obligor to obtain and maintain a life insurance policy on himself as security for his future support obligations is not an improper upward deviation from the child support guidelines.
When an initial determination of custody and a parent's request to move from the state with the children are raised in the same proceeding, the court should first consider the initial custody determination, applying the best interests factors under N.D.C.C. 14-09-06.2(1), although it may consider the proposed move as part of its assessment of the best interests factors for determining custody.
A district court's failure to address all four Stout-Hawkinson factors when evaluating whether a proposed move is in the child's best interests is reversible error.

Nichols, et al. v. Goughnour, et al. 2012 ND 178
Docket No.: 20110336
Filing Date: 8/30/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Instruments executed at the same time, by the same parties, in the course of the same transaction, and concerning the same subject matter, may be read and construed together.
Several contracts relating to the same matter between the same parties and made as parts of substantially one transaction may be taken together for purposes of construction but may not be united into a single contract.
When a grantor overconveys mineral interests to a third party so a grant and a reservation cannot be given effect, the risk of title loss is on the grantor.

Disciplinary Board v. Hoffman (Cross-Reference w/ 20030141 & 20030142) 2012 ND 177
Docket No.: 20120284
Filing Date: 8/29/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

State v. $44,140 U.S. Currency, et al. 2012 ND 176
Docket No.: 20110327
Filing Date: 8/22/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A presumption of forfeiture for currency furnished in exchange for a controlled substance exists if there is a reasonable basis to believe there is a connection between the property and enumerated drug offenses and the property was acquired when the person who acquired the property was engaged in the drug offense and there is no likely source for the property other than the drug offense.
The clearly erroneous standard of review applies to civil forfeiture proceedings.

Fines, et al. v. Ressler Enterprises, Inc., et al. 2012 ND 175
Docket No.: 20110357
Filing Date: 8/21/2012
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A district court may exercise its inherent power to sanction for the spoliation of evidence after considering: the culpability of the party against whom sanctions are sought; the prejudice to the moving party, and the degree of the prejudice; and the availability of less severe alternative sanctions.

Disciplinary Board v. Feland 2012 ND 174
Docket No.: 20110321
Filing Date: 8/20/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Sandstrom, Dale

Highlight: A prosecutor's ethical duty to disclose all exculpatory evidence to the defense under N.D.R. Prof. Conduct 3.8(d) is broader than the duties imposed by N.D.R.Crim.P. 16 and Brady v. Maryland, and does not vary depending upon the strength of the other evidence in the case.
A prosecutor violates N.D.R. Prof. Conduct 3.8(d) if she intentionally, knowingly, or negligently fails to disclose exculpatory evidence to the defense.
An attorney may be disciplined for an isolated instance of negligent conduct.
Although an admonition is intended to be a non-public form of discipline that would ordinarily be issued by an Inquiry Committee, the Supreme Court may nevertheless order an admonition when that is the appropriate sanction for the lawyer's conduct under the North Dakota Standards for Imposing Lawyer Sanctions.
Although the full costs and expenses of a disciplinary proceeding will ordinarily be assessed against the disciplined lawyer, the Supreme Court has discretion to order payment of a lesser amount.

City of Mandan, et al. v. Strata Corp., et al. 2012 ND 173
Docket No.: 20120006
Filing Date: 8/20/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Certification under N.D.R.Civ.P. 54(b) is inappropriate when further developments in the trial court may moot the issue raised on appeal.

Clausnitzer v. Tesoro Refining and Marketing Co. 2012 ND 172
Docket No.: 20120107
Filing Date: 8/20/2012
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: To establish a prima facie case of lawful activity discrimination under the Human Rights Act, the plaintiff must raise a genuine issue of material fact that he participated in lawful activity off the employer's premises during nonworking hours which was not in direct conflict with the essential business-related interests of the employer.
The strong societal public policy of preventing people from drinking and driving is embodied in the caselaw, the applicable regulations, statutory laws, and pure common sense.

Heier v. N.D. Department of Corrections and Rehabilitation 2012 ND 171
Docket No.: 20120128
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: An agency may not punish an employee multiple times for one instance of misconduct.