Opinions

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.

Judicial Conduct Commission v. Hagar (consol. w/ 20110378 - 380) 2012 ND 19
Docket No.: 20110331
Filing Date: 1/18/2012
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: District judge censured.

Koenig v. N.D. Dept. of Transportation 2012 ND 18
Docket No.: 20110249
Filing Date: 1/18/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: An individual arrested for driving under the influence has the right to obtain an independent blood or chemical test, and this right is generally considered the right to be free from police interference in obtaining the test through his or her own efforts and expense.
Whether law enforcement officers have denied an individual the right to an independent test is considered under the totality of the circumstances.

Interest of G.K.S. (CONFIDENTIAL) 2012 ND 17
Docket No.: 20110367
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: Appeal from vacated order for involuntary commitment is dismissed as moot.

Estate of Hollingsworth 2012 ND 16
Docket No.: 20110141
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: In an unsupervised probate, an order or judgment determining some, but not all, of one person's claims or disputes in an estate is not appealable without a N.D.R.Civ.P. 54(b) certification.

Thompson v. Thompson 2012 ND 15
Docket No.: 20110215
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When there is a motion to modify primary residential responsibility, claims that the parties' actual residential responsibility arrangement is substantially different from the arrangement contemplated in the prior order establishing residential responsibility may be sufficient to establish a prima facie case justifying modification.