Opinions

Estate of Wicklund 2012 ND 29
Docket No.: 20110081
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: A will and a revocable living trust may be considered together as a part of a decedent's estate plan.
In constructing an estate plan, courts construe the plan to carry out the intent of the settlors or the testators.
Under North Dakota law, a surviving spouse's right to an elective share, a homestead allowance, an exempt property allowance, and a family allowance is governed by the laws of the decedent's domicile at death.
A district court's findings of fact must be adequate to understand the basis for the court's decision.

Estate of Clemetson 2012 ND 28
Docket No.: 20110108
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A prima facie case is established if the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor.
Before a presumption arises, the party seeking to rely upon it must prove the requisite foundational facts by credible evidence.
Once the presumption arises that a missing will is revoked, the party seeking probate of a missing will must demonstrate, by a preponderance of the evidence, that the will existed at the time of the testator's death, that the will was fraudulently destroyed in the lifetime of the testator, or that other evidence shows the testator did not intend to revoke the missing will.

Johnson v. N.D. Workforce Safety and Insurance 2012 ND 27
Docket No.: 20110159
Filing Date: 2/17/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An administrative law judge may modify the specification of issues before an evidentiary hearing in an adjudicative proceeding before an administrative agency.

State v. Bruederle (consolidated w/20110180) 2012 ND 26
Docket No.: 20110179
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: District court orders and amended judgments revoking probation are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Seibold v. Leverington 2012 ND 25
Docket No.: 20110152
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The limitations for obtaining an evidentiary hearing on postjudgment modifications of primary residential responsibility do not apply to modifications of parenting time, and a parent moving for modification of parenting time is not required to establish a prima face case justifying modification.
A party is entitled to a hearing on a motion if the party complies with N.D.R.Ct. 3.2 and requests and schedules the hearing and provides notice to all other parties.

Horsted v. Horsted 2012 ND 24
Docket No.: 20110206
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court need not make separate findings for each best interests factor but must make findings sufficient to show its factual basis for awarding visitation and joint decisionmaking responsibility.
Evidence of domestic violence, as defined in N.D.C.C. 14-07.1-01, must be considered in determining whether joint decisionmaking responsibility is in the best interests of the child.
An order allocating joint decisionmaking responsibility must address a method of resolving disputes when parents disagree on a parenting issue.

State v. Bruederle 2012 ND 23
Docket No.: 20110245
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgment after a jury found a defendant guilty of terrorizing a woman and her mother is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Marsette (Cross-reference w/20110170) 2012 ND 22
Docket No.: 20110285
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction of driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Myaer v. Nodak Mutual Insurance Co. 2012 ND 21
Docket No.: 20110153
Filing Date: 2/10/2012
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Technical words in a contract are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense.
Under an agency contract provision that an agent's interest in premiums to "accrue" on business secured is to cease on termination of employment, "accrue" means grow, increase, or augment, and does not apply to the unpaid portion of a premium on a policy in force at the time the contract was terminated.
Parol evidence cannot vary or contradict the terms of a complete, written contract adopted as a definite expression of the parties' agreement.
An employee's retention of employment with knowledge of changed conditions from the original employment contract constitutes acceptance of the employer's offer of a unilateral contract.

McKenzie Co. v. Reichman (Cross-reference w/20100255) 2012 ND 20
Docket No.: 20110037
Filing Date: 1/24/2012
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A party claiming a road by prescription must establish by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for 20 years.
The 20-year period for measuring a prescriptive use begins when a burden is placed on the land and relates back to the inception of the adverse use.
The expenditure of public funds for construction and maintenance of a road is evidence of an adverse use.
Gates across roads are indicative of permissive use, but gates for working livestock which do not deny access or interfere with public traffic do not mandate a permissive use.
The width of a prescriptive easement for a road is not limited to that portion of the road actually traveled, and it may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion of the road during the prescriptive period.