Opinions

Hector v. City of Fargo 2010 ND 168
Docket No.: 20100061
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: North Dakota law authorizes the creation of special improvement districts that include land outside the limits of a municipality.

Ackre v. Chapman & Chapman, P.C. 2010 ND 167
Docket No.: 20100044
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: To have standing, a litigant must have suffered some threatened or actual injury resulting from the putatively illegal action, the asserted harm must not be a generalized grievance shared by all or a large class of citizens, and the litigant generally must assert his or her own legal rights and interests and cannot rest a claim for relief on the legal rights and interests of third parties.
A plaintiff may have standing to bring an unlawful practice claim against a business competitor if the plaintiff can show the putatively illegal action caused some threatened or actual injury to his or her legal rights and interests.

Schwarz, et al. v. Gierke 2010 ND 166
Docket No.: 20090220
Filing Date: 8/30/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A denial of a motion to compel arbitration is reviewed under the de novo standard, unless the lower court's decision was based on factual findings, in which case the clearly erroneous standard applies.
Recognizing a strong state and federal public policy favoring the arbitration process, courts resolve any doubts concerning the scope of arbitrable issues in favor of arbitration when there is a broad arbitration clause and no exclusion clause.
Before a party may be compelled to arbitrate, a court must determine whether a valid agreement to arbitrate exists between the parties and whether the specific dispute falls within the substantive scope of that agreement.

Peterson v. Peterson 2010 ND 165
Docket No.: 20090173
Filing Date: 8/24/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: In awarding spousal support, the district court must consider the relevant factors of the Ruff-Fischer guidelines.
An award of spousal support may be appropriate to recognize a spouse's role in contributing to the development of the other spouse's earning capacity during the marriage.

Bala, et al. v. State 2010 ND 164
Docket No.: 20090312
Filing Date: 8/23/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Eminent domain takes property because it is useful to the public, while the police power regulates the use of, or impairs rights in, property to prevent detriment to the public interest, and constitutional provisions against taking private property for public use without just compensation impose no barrier to the proper exercise of the police power.
The imposition of a tax, even an invalid one, generally is not a Fifth Amendment taking.

Matter of A.M. (CONFIDENTIAL) 2010 ND 163
Docket No.: 20100014
Filing Date: 8/23/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: Before an individual may be committed to the state hospital as a "sexually dangerous individual," the State must prove by clear and convincing evidence: (1) the individual has engaged in sexually predatory conduct; (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; (3) the condition makes the 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; and (4) the individual has serious difficulty controlling his behavior.
A district court's finding that an individual is a "sexually dangerous individual" will not be overturned on appeal unless clearly erroneous.

Murphy v. Rossow 2010 ND 162
Docket No.: 20090299
Filing Date: 8/23/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A final judgment can be amended if it was the product of mistake, inadvertence, surprise, or excusable neglect.
Property distributed in a divorce is valued at the time of divorce.

Snyder v. Snyder 2010 ND 161
Docket No.: 20100021
Filing Date: 8/20/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A divorcing party near retirement is not per se entitled to a reduced support obligation upon retirement. When substantial uncertainty surrounds a future retirement, the proper remedy is to move for modification upon retirement.
A district court's order requiring security for a spousal support obligation is reviewed for an abuse of discretion.
Requiring security for a spousal support obligation is only appropriate after considering the circumstances of a case. The circumstances to be considered include an award of permanent support, the duration of a marriage, the obligee's age and marketable skills, an award of income-producing property, the existence of potential security, and the cost of obtaining security.

Matter of J.D.F. (CONFIDENTIAL) 2010 ND 160
Docket No.: 20100051
Filing Date: 8/20/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Rule 2.2, N.D.R.App.P., applies only to appeals from orders terminating parental rights.
The court may terminate the parental rights of a parent in connection with an adoption proceeding if the parent has abandoned the child.
Whether a child has been abandoned is a question of fact, and the district court's findings will not be reversed on appeal unless they are clearly erroneous.
A guardian ad litem is not a parenting investigator and is not required to write a report.
The court has discretion in allocating a guardian ad litem's expenses.

Estate of Cashmore 2010 ND 159
Docket No.: 20090315
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: Once a final judgment or order has been entered approving a final accounting and distribution of estate property, the estate proceedings are concluded and the parties are not authorized to file a petition to approve an amended final accounting under the statute.
When there is a substantial, unanticipated change in the value of an asset after trial but before distribution of the property, the proper remedy is a motion to reopen to produce additional evidence at a hearing.
The reasonable amount of personal representative's fees and attorney's fees to be allowed is left in the sound discretion of the district court.