Opinions

Spratt v. MDU Resources Group, Inc., et al. 2011 ND 94
Docket No.: 20100266
Filing Date: 5/18/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The modified McDonnell Douglas test used in employment discrimination cases is inapplicable when the plaintiff presents direct evidence of discrimination.
To survive a motion for summary judgment in an age discrimination case, there must be some showing beyond the mere fact that the terminated employee was over age forty.

Workforce Safety & Insurance v. Auck (cross-reference 20090223) 2011 ND 93
Docket No.: 20100330
Filing Date: 5/13/2011
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: An administrative agency's position is substantially justified if a reasonable person could think the position is correct and the position has a reasonable basis in law and fact.

Kasowski v. N.D. Dep't of Transportation 2011 ND 92
Docket No.: 20100232
Filing Date: 5/12/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: The limited statutory right of a driver to consult with an attorney before submitting to a chemical test for intoxication attaches only after an arrest.
A driver under arrest for a DUI must make an affirmative mention of the need for an attorney in order to invoke his right to contact an attorney.

Smestad v. Harris 2011 ND 91
Docket No.: 20100216
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Failure to adequately brief arguments on appeal precludes relief on those issues.
The district court is the best credibility evaluator in cases of conflicting testimony.
If the aggregate amount of a series of loans is $25,000 or more, an oral agreement for the loans is unenforceable.

Locken v. Locken, et al. 2011 ND 90
Docket No.: 20100297
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Under the statute of limitations to cancel or enforce a contract for deed, the due date of the last payment on the indebtedness secured by the contract for deed means the record date the contract for deed was satisfied.

Interest of T.B. (CONFIDENTIAL) 2011 ND 89
Docket No.: 20100267
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Juvenile Law
Author:

Highlight: Juvenile court referee's order and juvenile court's order are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Kinsella 2011 ND 88
Docket No.: 20100355
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A defendant who does not stand on his motion for a judgment of acquittal at the close of the prosecution's case in chief, but chooses to introduce evidence in his defense, allows a reviewing court to examine the evidence as a whole, including the evidence offered by the defendant.

First International Bank & Trust v. Peterson, et al. 2011 ND 87
Docket No.: 20100280
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: In an action for declaratory, injunctive, or other prospective relief, an association may have associational standing to bring a suit on behalf of its members if: (1) its members have standing to sue in their own right; (2) the interests the association seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested require the participation of individual members in the lawsuit.
A condominium developer may be responsible for the condominium association and board of manager's duties and obligations if the developer controls the association and fails to create a board of managers.

Citibank (South Dakota) v. Peterson 2011 ND 86
Docket No.: 20100345
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Rule 60(b), N.D.R.Civ.P., gives courts discretion to provide relief from judgments; however, this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made.
The correct way to supplement an incomplete record on appeal is to make a motion to the district court under Rule 10(b), N.D.R.App.P.

State v. Duncan 2011 ND 85
Docket No.: 20100323
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When a defendant does not object to alleged prosecutorial misconduct at trial, the Court's review is limited to determining whether the prosecutor's conduct prejudicially affected defendant's substantial rights, so as to deprive him of a fair trial.
A prosecutor's improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.