Opinions

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.

Disciplinary Board v. Hann (CONSOLIDATED W/ 20110247 & 20110248) 2012 ND 160
Docket No.: 20110246
Filing Date: 7/26/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction.
Due weight is given to the disciplinaryboard's findings, conclusions, and recommendations.
Depending on the agreement between a lawyer and client, a "nonrefundable" retainer may violate the Rules of Professional Conduct.

Mackey v. State (cross-reference 20100377) 2012 ND 159
Docket No.: 20120119
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A court need not personally address a defendant when establishing the factual basis for the defendant's guilty plea.
The lack of a factual basis for a guilty plea is a fundamental defect that calls into question the validity and voluntariness of the plea.
The ideal means of establishing the factual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant's own words, what the defendant did that he believes constitutes the crime to which he is pleading guilty.
A trial court may conclude that a factual basis exists from anything that appears on the record, including the facts gleaned from the plea agreement and plea colloquy, the factual findings relied upon in the presentence report, and any inferences fairly drawn from the evidence presented both post-plea and at the sentencing hearing.

State v. Perales 2012 ND 158
Docket No.: 20120114
Filing Date: 7/26/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A defendant who violates a probation condition may be resentenced to any sentence available at the time of initial sentencing.
The district court may to impose only one additional period of probation following a violation of felony probation conditions.
When the district court revokes probation and resentences a defendant, the existing probationary period ends and the district court may not order the defendant to complete the unserved portion of the existing probationary term.

Kilber v. Grand Forks Public School District 2012 ND 157
Docket No.: 20110178
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A school board may dismiss an individual as a teacher before the expiration of the individual's contract for certain statutorily specified causes, including insubordination and conduct unbecoming the position held by the individual.
Proceedings for a Board to discharge a teacher for cause from employment during the school year equire appointing an administrative law judge to preside over a hearing, which must be conducted in accordance with the Administrative Agencies Practice Act.
An argument implicating a due process issue presents a question of law, which is fully reviewable on appeal.
Due process requires a person be given notice and an opportunity to be heard before the government deprives the person of property.
Due process is flexible and must be analyzed on a case-by-case basis, balancing the competing interests and assessing whether the basic due process requirement of fairness has been satisfied. To provide redress for a procedural violation, a party must demonstrate prejudice or harm.

State v. Lutz 2012 ND 156
Docket No.: 20120091
Filing Date: 7/26/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: N.D.R.Ev. 707, which must be interpreted with N.D.C.C. 39-20-07, requires the State to produce at trial the person who drew the defendant's blood sample.
N.D.R.Ev. 707 does not require the State to produce at trial the person who prepared the volatiles solution used in conducting a chemical test.
The prosecution has the burden of establishing the chain of custody of evidence; however, this does not mean that every person who laid hands on the evidence must be called as a witness.

Knudson v. Kyllo 2012 ND 155
Docket No.: 20110282
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Copartners owe a duty of loyalty to each other and have a right to expect from their partners full, fair, open and honest disclosure of everything affecting the partnership.
A partner may not exclude another partner from an interest in properties which are the subject matter of the partnership by purchasing the property for the partner's individual account.