Opinions

Leno v. K & L Homes 2011 ND 171
Docket No.: 20100347
Filing Date: 9/2/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: North Dakota law provides an implied warranty of fitness for the purpose in construction contracts, which is based in contract law.
Fault and comparative fault do not apply to a breach of implied warranty cause of action based in contract law.

Wolt v. Wolt (Cross-reference w/20090103 & 20090126) 2011 ND 170
Docket No.: 20100294
Filing Date: 8/26/2011
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The district court's authority to modify an award of primary residential responsibility within two years of the original decision is limited under N.D.C.C. 14-09-06.6.
The party moving for a change of primary residential responsibility has the burden to establish a prima facie case to obtain an evidentiary hearing on the motion. A prima facie case is a bare minimum and requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed.
A district court retains continuing jurisdiction to address post-judgment issues about parenting time, and the limitations in N.D.C.C. 14-09-06.6 for post-judgment modifications of primary residential responsibility do not apply to parenting time modifications under N.D.C.C. 14-05-22.
Under N.D.R.Ct. 3.2, a district court must grant a party's request for oral argument, if the party has timely served and filed a brief and requests oral argument.
Section 28-26-01(2), N.D.C.C., authorizes an award of attorney's fees if a claim for relief is frivolous and there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person's favor.

Agnes M. Gassmann Revocable Living Trust (Consolidated w/20100276) 2011 ND 169
Docket No.: 20100275
Filing Date: 8/23/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Testimony from the attorney who drafted the trust that a specific drafting error occurred and, as a result, the trust language did not conform to the settlor's true intent may, if believed by the trier of fact, constitute clear and convincing evidence sufficient to warrant reformation of the trust under N.D.C.C. 59-12-15.
When reviewing findings of fact made by the trial court under a clear and convincing evidence standard, the Supreme Court accords great deference to the trial court's determination of the credibility of witnesses and the weight to be given their testimony and does not reweigh the evidence or reassess the credibility of witnesses.
In construing the provisions of a trust, the general rules of construction of written documents apply and the trust must be read as a whole so as to give effect to every part.

Carlson v. Carlson, et al. (consolidated w/20100319) 2011 ND 168
Docket No.: 20100318
Filing Date: 8/22/2011
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Relations among the partners and between the partners and the partnership are governed by the partnership agreement, and the default provisions of N.D.C.C. 45-16-01 setting out a partner's rights and duties do not apply if the partners have otherwise provided for those matters.
The failure to make annual claims or accountings for unequal contributions and benefits is indicative the partners did not intend to equalize them.
The trial court's findings of fact must reflect the basis of its decision and must enable the appellate court to understand its reasoning.
A valid, presently enforceable debt against the transferor is an essential element of an action to set aside a fraudulent transfer under the Uniform Fraudulent Transfer Act, N.D.C.C. ch. 13-02.1.
During any transaction connected with conduct of the partnership, a partner has a fiduciary duty to act with utmost good faith and loyalty to the partnership and the other partners.

Kelly v. Kelly (Cross-reference w/20080103) 2011 ND 167
Docket No.: 20100388
Filing Date: 8/22/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A child's home state has priority for subject matter jurisdiction in an interstate custody dispute, but the home state may decline jurisdiction.
A home state's dismissal of a custody proceeding with prejudice constitutes a declination of jurisdiction.
In a divorce proceeding, a district court may restrain a party from interfering with a business awarded in a property distribution to protect the goodwill of the business.
Attorney fees may be awarded when a party's actions have unreasonably increased time spent on a divorce proceeding.

Miller v. Mees 2011 ND 166
Docket No.: 20110020
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: At a trial, witnesses' testimony generally must be taken in open court.
Harmless errors that do not affect substantial rights may be disregarded.
An appellate court will not reweigh evidence for a decision awarding primary residential responsibility of a child to one parent.

Matter of Rubey 2011 ND 165
Docket No.: 20100292
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A "sexually dangerous individual" means an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.
Substantive due process requires proof that the respondent has serious difficulty controlling his behavior.

State ex. rel. Schlect v. Wolff (Cross-reference with 20100034) 2011 ND 164
Docket No.: 20110036
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The State has standing and is a real party in interest in child support proceedings if the State was initially a real party in interest in the action because the child received public assistance, the obligee assigned his or her right to child support to the State, the child support services case remained open after the child was no longer receiving public assistance, and the obligee has never requested the child support services case be closed.
A judgment that relieves an obligor of any current or future duty of child support and limits the power of the court to modify future child support is void and may not be enforced.

Smestad v. State 2011 ND 163
Docket No.: 20110006
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A post-conviction claim for relief is barred by res judicata if it is a variation of a claim that has been rejected in prior proceedings.
A defendant claiming ineffective assistance of counsel must establish that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.

Gaede v. State 2011 ND 162
Docket No.: 20100312
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Arguments to a jury referencing biblical text or characters may be considered by courts to be improper.