Opinions

Bakke v. D&A Landscaping Co., et al. 2012 ND 170
Docket No.: 20110308
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A precursor to piercing a limited liability company owner's liability shield is that the company be liable to the claimant in the first instance.
Jury instructions on fraud which are given without objection become law of the case.

Burke v. State 2012 ND 169
Docket No.: 20110286
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A person convicted of a crime may move for forensic DNA testing to demonstrate the person's actual innocence if the testing is to be performed on evidence secured in relation to the trial that resulted in the conviction and the evidence was not subje the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
Whether evidence at issue is "materially relevant" to the defendant's assertion of actual innocence requires consideration of the evidence introduced at trial, as well as an assessment of the evidence defendant is seeking to test.

Matter of S.E. (Confidential) 2012 ND 168
Docket No.: 20120161
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A trial court may not enter an order or judgment that affects the merits of issues properly on appeal.
Dismissal of a petition for adoption is not proper, despite a technical defect in the petition, if the party from whom consent is sought has notice of the petition and can timely exercise its ability to withhold consent.

Rudnick v. Rode 2012 ND 167
Docket No.: 20120076
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The district court must comply with the procedural requirements in N.D.R.Ct. 8.2 when it issues an ex parte interim order, and it must find there are exceptional circumstances justifying the order based on evidence presented by affidavit.
A party moving to modify primary residential responsibility more than two years after a prior order must prove a material change of circumstances has occurred and modification is necessary to serve the child's best interests.
Evidence of child abuse is a material change of circumstances.
A parent is justified in using reasonable force to discipline a child as long as the force does not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
In considering whether a modification of residential responsibility is necessary to serve the child's best interests, the district court must gauge the best interest factors against the backdrop of the stability of the child's relationship with the custodial parent.

Smestad v. Harris (cross-ref. with 20100216) 2012 ND 166
Docket No.: 20120051
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Absent specific instructions from this Court, a district court deciding an issue on remand must exercise its discretion when determining the procedure to follow.
An individual who has performed in accordance with a contract that is unenforceable under the statute of frauds may be entitled to the equitable remedy of restitution.

Falkenstein, et al. v. Dill, et al. 2012 ND 165
Docket No.: 20120113
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: The substance of a complaint is considered to determine whether the complaint sufficiently raised a claim.
A district court does not abuse its discretion in effectively denying a motion to amend a pleading when such an amendment would result in prejudice to the opposing party.
The least-sophisticated-consumer standard applies in determining whether a debt collector's communication violates the Fair Debt Collection Practices Act.

Mickelson v. Workforce Safety and Insurance 2012 ND 164
Docket No.: 20110232
Filing Date: 8/16/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Injuries attributable to a preexisting injury, disease, or other condition are compensable under workers' compensation law when employment substantially accelerates the progression or substantially worsens the severity of the injury, disease, or other condition.
Employment substantially accelerates the progression or substantially worsens the severity of a preexisting injury, disease, or other condition when the underlying condition likely would not have progressed similarly in the absence of employment.

Schulte v. Kramer (cross-ref. 20050222) 2012 ND 163
Docket No.: 20110231
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: To justify a modification of spousal support, the moving party must demonstrate a material change in financial circumstances. A material change is one that substantially affects the financial abilities or needs of the parties and was not contemplated by the parties at the time the original divorce decree was entered.
Once a trial court finds a material change in circumstances exists, it must examine the reason for the material change to determine whether modification of support is warranted. A self-induced decline in income does not, in the absence of a substantial showing of good faith or cause, constitute such an exceptional change in circumstances as to afford the required basis for modifying an alimony award.
An item in a divorce separation agreement or divorce judgment is more likely spousal support than part of the division of property if it is directed to be monthly, unsecured, and terminable upon designated events.

Kruckenberg v. State 2012 ND 162
Docket No.: 20110333
Filing Date: 8/1/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Under N.D.R.Civ.P. 52(a) of the North Dakota Rules of Civil Procedure, in an action without a jury, the court must find the facts specially and state its conclusions of law separately.
A court's findings of fact may be sufficient under N.D.R.Civ.P. 52(a) if they provide this Court with an understanding of the trial court's factual basis used in reaching its decision.

Disciplinary Board v. Lawler 2012 ND 161
Docket No.: 20120297
Filing Date: 7/26/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.