Opinions

Thompson, et al. v. Schmitz, et al. (cross-reference w/20080191) 2011 ND 70
Docket No.: 20100248
Filing Date: 3/28/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An award of attorney's fees and pre-judgment interest is permitted under the Business Corporations Act when a district court finds an officer or director of a corporation violates fiduciary duties or finds a party to have acted arbitrarily, vexatiously, or otherwise not in good faith.
The district court may award expert witness fees, including fees for experts who do not testify, under the Business Corporations Act.

Kost v. Kraft 2011 ND 69
Docket No.: 20100159
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The receipt and acceptance of leased goods need not be exclusively referable to an alleged oral lease agreement, and conduct consistent with an oral agreement is sufficient to take a claimed oral lease agreement out of the statute of frauds even though the conduct is not inconsistent with some other plausible arrangement between the parties.
A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law.

Loper v. Adams 2011 ND 68
Docket No.: 20100101
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: The district court has discretion in determining appropriate sanctions for a party's failure to timely supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert's testimony.
A party moving for enlargement of time under N.D.R.Civ.P. 6(b)(2) after the original deadline has passed has the burden to demonstrate that his failure to timely comply was the result of excusable neglect, and the district court has broad discretion in determining whether to allow additional time.
The determination whether certain conduct is a superseding, intervening cause is a question of fact.

Klug et al. v. City of Minot 2011 ND 67
Docket No.: 20100217
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A home rule city may enact ordinances that supersede state laws regulating police pension plans.
A member of a defined benefit plan does not have a claim to particular assets that are part of the general asset pool and is not entitled to a share of the surplus assets.

State v. Norman (cross-ref. 20020172) 2011 ND 66
Docket No.: 20100296
Filing Date: 3/25/2011
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Appeal from a trial court order denying the State's motion requiring DNA sample summarily dismissed under N.D.R.App.P. 35.1(a)(1) and (a)(7).

Grand Forks Homes, Inc., et al. v. State of North Dakota 2011 ND 65
Docket No.: 20100198
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: The State Board of Equalization has no authority under state law to reclassify locally assessed property as exempt from taxation.
Timely filing of an appeal from a decision of a board of county commissioners is mandatory to invoke a district court's appellate subject matter jurisdiction over the appeal.

Johnson, et al. v. Hovland, et al. 2011 ND 64
Docket No.: 20100043
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A district court has wide discretion in deciding whether to permit amended pleadings after the time for an amendment has passed, and the court does not abuse its discretion in denying a motion to amend the complaint when a proposed amendment would be futile.
If leave to amend is not sought until after discovery has closed and a summary judgment motion has been docketed, a proposed amendment is properly classified as futile unless the allegations of the proposed amended complaint are supported by substantial evidence.
A party seeking reformation of a written instrument must establish by clear and convincing evidence that the document does not state the parties' intended agreement. Courts grant the high remedy of reformation only upon the certainty of error.

Collection Center v. Bydal 2011 ND 63
Docket No.: 20100093
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party to a joint obligation who satisfies more than that party's share of the claim against all obligors may require a proportionate contribution from all the parties joined with that party, and disproportionate contribution may be allowed if the parties have agreed to a different allocation on their liability or one of the comakers has received a disproportionate benefit from the transaction.
After an assignment, the assignee of a nonnegotiable chose in action acquires no greater rights than held by the assignor and is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor, and to all other defenses and equities that could have been asserted against the assignor at the time of the assignment.
Under N.D.R.Civ.P. 12(f), the district court has discretion either upon a motion by a party or on its own to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in a pleading.
If a plaintiff files an amended complaint that changes the theory or scope of the case, the defendant may plead as though it were responding to the original complaint and add new counterclaims without requesting leave of court.
Under N.D.R.Civ.P. 13(a), if a claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim, it is a compulsory counterclaim and must be pleaded in response to the opposing party's pleading. Under Rule 13's "opposing party" requirement, when a plaintiff has brought suit in one capacity, the defendant may not counterclaim against the plaintiff in a different capacity.

Prchal v. Prchal 2011 ND 62
Docket No.: 20100128
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Whether contempt has been committed lies within the district court's sound discretion, which will not be overturned on appeal absent a clear abuse of that discretion.
To modify parenting time, the moving party must demonstrate a "material change in circumstances" has occurred since entry of the previous parenting time order and the modification is in the child's "best interests."
The district court has continuing jurisdiction after a divorce judgment has been entered over matters pertaining to parenting rights and responsibilities of the children of the marriage.
Both the decision to appoint a parenting coordinator and to order counseling are committed to the district court's sound discretion.

State v. Tompkins 2011 ND 61
Docket No.: 20100234
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Law enforcement has no duty to assist an accused in obtaining an independent blood-alcohol test. Once a reasonable request is made for an independent test, however, law enforcement must not interfere to the extent a reasonable opportunity to obtain the test is denied.
In addition to the obligation to pay for all costs associated with the independent blood-alcohol test, N.D.C.C. 39-20-02 affords an accused only the right to have the test performed, to choose the professional to administer the test, and to receive the test results.