Opinions

Hagerott v. Morton Co. Bd. of Commissioners 2010 ND 32
Docket No.: 20090180
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A person is aggrieved and has standing to appeal a county commission zoning decision if the person has some legal interest that may be enlarged or diminished by the decision appealed from.
A county commission's decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision.

Dufner v. Trottier (Consolidated w/20090251; Cross-Ref. with 20010163) 2010 ND 31
Docket No.: 20090211
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Prolonged exposure to adult conflict is not in a child's best interests.
The standards to modify custody and to modify visitation are similar but different. Custody modifications require the movant to establish a prima facie case prior to entitlement of an evidentiary hearing.
In custody modification proceedings, only moving papers and supporting affidavits can be used to establish a prima facie case entitling a movant to an evidentiary hearing.

State v. Byzewski (CONSOLIDATED WITH 20090151) 2010 ND 30
Docket No.: 20090150
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Under N.D.R.Crim.P. 11(a)(2), "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion."
By engaging in behavior that led to a domestic violence protection order, the defendant forfeited his right to travel where the victim works.
A protection order and the defendant's presence on the campus provided law enforcement officers with reasonable and articulable suspicion to stop his vehicle.

State v. Addai 2010 ND 29
Docket No.: 20090079
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: During a stop of a vehicle, a law enforcement officer seizes every person in the vehicle, and therefore a passenger in the vehicle may challenge the legality of the stop.
Identification testimony must be suppressed if, under the totality of the circumstances, the identification procedure was unnecessarily suggestive and the identification is unreliable.
A single-person, showup identification is inherently suggestive, but is not necessarily unduly suggestive and may serve legitimate law enforcement purposes in some cases.
If a party fails to comply with N.D.R.Crim.P. 16, a discovery rule, the district court has discretion in applying a remedy.

Petition of Berger 2010 ND 28
Docket No.: 20090198
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When a minor is involved, the requirement that the district court determine whether there is "proper and reasonable cause" for a proposed name change necessarily includes consideration of the best interests of the child.
While the general standard of review for name change petitions under N.D.C.C. ch. 32-28 remains the abuse-of-discretion standard, a district court's findings on the best interests of a child when deciding a petition to change the name of a minor child are subject to the clearly erroneous standard of review.

sather 2010 ND 27
Docket No.: 20090149
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: The First Amendment does not apply to "fighting words" that are likely to incite a breach of the peace or provoke a violent reaction.
The petition in a juvenile delinquency case must set forth sufficient facts to provide the respondent with notice of the manner in which the State alleges the juvenile committed a delinquent act.
On appeal from a juvenile court order, we review the court's findings of fact under the clearly erroneous standard.

Wolt v. Wolt (cross ref. 20090126) 2010 ND 26
Docket No.: 20090103
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The district court has substantial discretion in making a custody determination, but it must consider all of the staturtory factors.
In awarding visitation to the noncustodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.
A district court's marital valuations are not clearly erroneous if they are within the range of evidence presented.
Property division need not be equal to be equitable, but a substantial disparity must be explained. A long-term marriage supports an equal distribution of property.

Fleck v. Fleck 2010 ND 24
Docket No.: 20090075
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Appellate review is especially deferential to a district court's difficult decision on primary residential responsibility when it involves two fit parents.
A district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.

Nelson v. Johnson 2010 ND 23
Docket No.: 20090133
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Landlord/Tenant
Author: Maring, Mary

Highlight: Special statutory procedures are exempt from the rules of civil procedure insofar as those statutory procedures are inconsistent with the rules.
A landlord may not commence an eviction action against a tenant for nonpayment of rent unless the landlord gives the tenant a three-day notice of intention to evict and an opportunity to pay the past due rent.
A notice of intention to evict may be served either as a summons is served and returned, or by the sheriff of the county or a process server posting the notice conspicuously upon the premises if the party cannot be found.
Service of a notice of intention to evict must have been attempted at least once and the tenant not found before the notice may be served by posting conspicuously upon the premises.
A process server is interested in the action if the server might properly have been joined as a party in the action.
No counterclaims may be interposed in an eviction action except as a set off to a demand made for damages or for rents and profits.

Grinnell Mutual Ins. Co. v. Thompson, et al. 2010 ND 22
Docket No.: 20090250
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: The Financial Responsibility Laws do not set minimum levels of insurance coverage for nonpermissive operators.