Opinions

State v. Delaney 2010 ND 52
Docket No.: 20090283
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: District court judgment entered after a jury found defendant guilty of abuse or neglect of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Mertz v. 999 Quebec, Inc., et al. 2010 ND 51
Docket No.: 20090031
Filing Date: 3/24/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: An order granting summary judgment is not appealable, but an attempted appeal from an order granting summary judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.

Great Western Bank v. Willmar Poultry Co. 2010 ND 50
Docket No.: 20090071
Filing Date: 3/23/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Statutory lien laws are remedial and will be liberally construed to effectuate their purpose of protecting those who contribute labor, skill, or materials.
Under N.D.C.C. 35-31-01, "poults" or young turkeys may be considered "supplies" for purposes of obtaining an agricultural supplier's lien.
The term "agricultural product" as used in N.D.C.C. 35-31-03 includes "livestock" in granting priority to an agricultural supplier's lien.

Home of Economy v. Burlington Northern (Cross Ref. w/20070002 & 20040267) 2010 ND 49
Docket No.: 20090226
Filing Date: 3/19/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The party asserting the existence of a public road by prescription bears the burden of proving the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for twenty years.
A district court's findings regarding whether the party asserting the existence of a public road proved the elements of prescription will not be overturned unless clearly erroneous.
To establish an easement by estoppel, the party asserting the existence of the easement must show a representation was communicated to that party, the communication was believed, and the party acted in reliance upon the communication.
A district court's findings regarding whether the party asserting the existence of an easement by estoppel proved the requisite elements of such easement will not be overturned unless clearly erroneous.

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.