Opinions

Markwed Excavating, Inc. v. City of Mandan 2010 ND 220
Docket No.: 20100076
Filing Date: 11/15/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A clause in a construction contract prohibiting a contractor from recovering damages for delay and granting an extension of time is enforceable if the requirements for a valid contract are satisfied.
Unambiguous language in a no damages for delay clause in a construction contract does not include an exception for uncontemplated delays and includes delays allegedly caused by an owner or another contractor.
A no damages for delay clause in a contract between a public entity and a private contractor is not unconscionable.

Wong v. State 2010 ND 219
Docket No.: 20100171
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A district court cannot on its own put an applicant for post-conviction relief to his proof. Only a party can move for summary disposition under post-conviction relief.

Sanders v. Gravel Products, Inc. (cross-ref w/ 20080001) 2010 ND 218
Docket No.: 20090318
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Federal and state courts have concurrent jurisdiction over participant or beneficiary suits to recover benefits under an ERISA plan, to enforce rights under the plan, or to clarify rights to future benefits.
"Top hat" plans are not subject to ERISA's requirements for vesting and funding, and administrators of these plans are not subject to ERISA's fiduciary requirements.
A court must interpret a plan's terms by giving the language its common and ordinary meaning as a reasonable person in the position of the plan participant would have understood the words to mean.

State v. Hager 2010 ND 217
Docket No.: 20100090
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Federal securities laws do not preempt state securities laws that require registration of individuals involved in the sale of securities.
The definition of agent for purposes of the North Dakota Securities Act is not limited to third-party individuals who are not employees or owners of the securities issuer.

Gussiaas v. Neustel 2010 ND 216
Docket No.: 20100086
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A move by a parent with primary residential responsibility either out-of-state or in-state, accompanied by other circumstances, may be viewed as a material change of circumstances.
If a district court finds a material change of circumstances has occurred, the court cannot change primary residential responsibility for the child unless it further finds that the modification is necessary to serve the best interests of the child.
A district court's findings of fact must be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the trial court's decision.

JLY Transport v. WSI 2010 ND 215
Docket No.: 20100156
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The Workforce Safety & Insurance fund is not required to prove a compensable injury occurred before entering into a stipulated settlement with a worker.

State v. Walker 2010 ND 214
Docket No.: 20100112
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A defendant may be treated as the principal actor in a crime and convicted of an offense on the basis of the actions of an accomplice.
Neither the State nor a defendant may appeal a sentence alone, but either may appeal a post-judgment order denying a motion to correct an illegal sentence.

Johnson v. State (CONSOLIDATED W/20090322) 2010 ND 213
Docket No.: 20090321
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The Uniform Post-Conviction Procedure Act does not entitle a district court, on its own motion, to dismiss a claim on the basis of the affirmative defenses of res judicata or misuse of process.

Flemming v. Flemming 2010 ND 212
Docket No.: 20100041
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A default divorce judgment is subject to N.D.R.Civ.P. 60(b) and is not typically appropriate for appeal.

Masset v. N.D. Dep't of Transportation 2010 ND 211
Docket No.: 20100098
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Every administrative agency must maintain an official record of each adjudicative proceeding heard by it.