Opinions

Jarick Products v. MID AM Group, et al. 2010 ND 48
Docket No.: 20090290
Filing Date: 3/18/2010
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court order denying Peterson's motion to vacate a default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Van Beek, et al. v. Umber, et al. 2010 ND 47
Docket No.: 20090264
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A trial court's award of attorney's fees and costs under N.D.C.C. 28-26-31 is discretionary, but the court's exercise of that discretion must be based on evidence that the pleadings were made without reasonable cause and not in good faith, and are found to be untrue.

Interest of K.J., et al. (CONFIDENTIAL) (consolidated w/20090265) 2010 ND 46
Docket No.: 20090263
Filing Date: 3/16/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: A juvenile court may terminate parental rights if there is clear and convincing evidence: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral or emotional harm..
Incarceration does not alone constitute continued deprivation, but the harm a parent's incarceration may cause the children may be established by prognostic evidence that a parent's current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.
The application of the expedited appeal procedures under N.D.R.App.P. 2.2 does not unconstitutionally infringe on the right to procedural due process when the appellant has neither demonstrated any effect on her interests occurred as a result, and has not shown any risk of an erroneous deprivation of her interests through the procedures used..

Harris v. Harris 2010 ND 45
Docket No.: 20090247
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: There is no statute or rule authorizing an appeal to district court from a magistrate's decision on a disorderly conduct restraining order.
The voluntary, knowing, and intelligent waiver test applies to due process challenges in civil cases.
A district court errs as a matter of law when it denies the respondent's statutory and due process right to a full hearing before a disorderly conduct restraining order may be issued.

Westby v. Schmidt, et al. 2010 ND 44
Docket No.: 20090109
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Flaws and weaknesses in an expert witness's opinion go to the weight the trier of fact should give the opinion and not its admissibility.
Special verdicts are upheld on appeal whenever possible, and will only be set aside when the verdict is perverse and clearly contrary to the evidence.
A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the facts are known or ought to be known to the person accepting.

State ex rel. Dept. of Labor v. Riemers, et al. 2010 ND 43
Docket No.: 20090190
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A party who fails to appeal from an order denying a motion for relief from judgment under N.D.R.Civ.P. 60(b) waives any issues covered therein and may not simply file a second N.D.R.Civ.P. 60(b) motion on the same grounds in lieu of an appeal.

Zimmerman v. WSI, et al. 2010 ND 42
Docket No.: 20090243
Filing Date: 3/16/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An injured worker may be entitled to temporary partial disability benefits for a cumulative total of five years.

Dunn v. ND Dept. of Transportation 2010 ND 41
Docket No.: 20090317
Filing Date: 3/16/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Judicial estoppel prohibits a party from taking inconsistent or contradictory positions during litigation.
Administrative due process requires a fair hearing before a fair tribunal. The fact-finder in an administrative hearing cannot prejudge the case, harbor a bias against a party, or participate in the hearing if there is a high probability of bias against a party.
A district court acting in an appellate capacity has authority under the Administrative Agencies Practice Act to dispose of procedural matters as reasonably required, including the ability to vacate a judgment entered on the basis of a procedural mistake.

McAllister v. McAllister, et al. 2010 ND 40
Docket No.: 20090176
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Granting visitation to a third party is a lesser intrusion on a parent's constitutional right to the custody and companionship of his or her children than granting decisionmaking responsibility and primary residential responsibility to a third party.
A district court may recognize that it is not necessary to award primary residential responsibility to the psychological parent rather than the natural parent to prevent serious harm or detriment to the child and to also recognize that it is necessary to award visitation to the psychological parent to prevent serious harm or detriment to the child.

State v. Dudley 2010 ND 39
Docket No.: 20090293
Filing Date: 3/16/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under the automobile exception to the Fourth Amendment, a law enforcement officer may search a vehicle without a warrant if the officer has probable cause.
A law enforcement officer has probable cause to search a vehicle if, based upon the facts and circumstances known to the officer, he or she reasonably believes the vehicle contains items subject to seizure.