Opinions

AmeriFirst Home Improvement Finance Co. v. Kile, et. al 2009 ND 184
Docket No.: 20090187
Filing Date: 11/17/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author:

Highlight: District court judgment ordering payment of a contractual debt is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

Thompson, et al. v. Schmitz, et al. 2009 ND 183
Docket No.: 20080191
Filing Date: 10/16/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Although a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings, consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpleaded issue.
Equity regards as done that which ought to have been done.
Corporate assets belong to the corporation, not to the shareholders.

State v. Ness 2009 ND 182
Docket No.: 20090046
Filing Date: 10/15/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the law in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.
A court may refuse to give jury instructions that are irrelevant or inapplicable.
The opportunity to cross-examine a witness is the primary mode of safeguarding a defendant's confrontation rights, but the scope of the cross-examination is in the court's discretion.

Martin v. N.D. Department of Transportation 2009 ND 181
Docket No.: 20090105
Filing Date: 10/13/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Police checkpoints are not per se unconstitutional under the Fourth Amendment of the United States Constitution or Article I, Section 8 of the North Dakota Constitution. A checkpoint seizure is unconstitutional if it is unreasonable.
The reasonableness of a checkpoint seizure is determined by balancing three prongs: the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. The weight given each prong is based on its underlying facts, and the underlying facts are viewed within the totality of the circumstances.
The gravity of the public concern addressed by a checkpoint seizure is measured by the magnitude of the societal harm caused by a specific problem.
The degree to which a checkpoint advances the public interest calls for a searching examination of the checkpoint's effectiveness.
The severity of interference with individual liberty caused by a checkpoint seizure is measured by gauging the objective and subjective levels of intrusion on individual motorists. A checkpoint's objective level of intrusion is measured by the duration of the seizure and the intensity of the investigation. A checkpoint's subjective level of intrusion is measured by the fear and surprise engendered in law-abiding motorists by the nature of the stop.

Hager, et al. v. City of Devils Lake 2009 ND 180
Docket No.: 20090050
Filing Date: 10/13/2009
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Dismissal of a claim or action without prejudice has no res judicata effect.
Whether the injury was permanent or temporary is the determinative factor in commencing the statute of limitations in a damage action for flooding caused by construction.
When water is diverted onto property by construction or operation of a permanent structure, there is only one cause of action, successive suits may not be maintained, and the statute of limitations begins to run when harm first occurs.
The six-year statute of limitations for contract actions under N.D.C.C. 28-01-16(1) governs inverse condemnation claims brought under N.D. Const. art. I, sec. 16.
An inverse condemnation action accrues on the date the property is taken.
Under North Dakota law, a license is revocable.
An easement by estoppel may be created when (1) a landowner permits another to use land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, (2) the user substantially changed position in reasonable reliance on that belief, and (3) injustice can be avoided only by establishment of a servitude.

Spitzer v. Bartelson 2009 ND 179
Docket No.: 20090124
Filing Date: 10/13/2009
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: In a claim for reformation of a written contract, courts may admit parol evidence to determine whether a mutual mistake exists sufficient to support reformation.
A district court's finding that a plaintiff failed to prove a mutual mistake by clear and convincing evidence will not be overturned unless clearly erroneous.

State v. Stridiron (consolidated w/20080331) 2009 ND 178
Docket No.: 20080286
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgments for robbery are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of O.F., a child (confidential) 2009 ND 177
Docket No.: 20090137
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Kapsner, Carol

Highlight: A defendant claiming a double jeopardy bears the burden of proving each element of former jeopardy.
A juvenile's double jeopardy rights are not violated when the facts used to impose a sanction by a juvenile drug court are later used to support an adjudication of delinquency.
Procedural rules are not adopted by opinion in litigated appeals.

State v. McLaren 2009 ND 176
Docket No.: 20090125
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Reasonable suspicion to stop a vehicle exists when an officer observes a vehicle displaying expired registration tabs, license plates, and a temporary registration certificate.

Estate of Schiermeister (Consolidated w/20090169) 2009 ND 175
Docket No.: 20080287
Filing Date: 10/13/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Orders directing a final accounting and distribution of an estate are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. O'Toole 2009 ND 174
Docket No.: 20090034
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: There is insufficient evidence to support a conviction only when no rational fact finder could find the defendant guilty beyond a reasonable doubt viewing all the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably drawn in its favor.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless they are specifically defined in the code or the drafters clearly intended otherwise.
A district court does not err in refusing to give a jury instruction that is irrelevant or inapplicable.

Schlosser v. N.D. Dep't. of Transp. 2009 ND 173
Docket No.: 20090156
Filing Date: 11/19/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: To admit a blood alcohol test report in an administrative proceeding to revoke an individual's driver's license, the documents and testimony presented must show scrupulous compliance with the methods approved by the State Toxicologist.

Estate of Dionne 2009 ND 172
Docket No.: 20090016
Filing Date: 9/28/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: The circumstances constituting fraud must be stated in a complaint with particularity.
A contract is ambiguous when rational arguments can be made in support of contrary positions as to the meaning of the language in the contract, and if a contract is ambiguous, extrinsic evidence may be considered to clarify the parties' intent.

Schleuter v. Northern Plains Ins., et al. 2009 ND 171
Docket No.: 20090060
Filing Date: 9/23/2009
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: When a single-vehicle accident occurs in this state but the injured insured is a resident of another state, the insurance policy was purchased from a company based in the other state and not doing business in this state, and all but the initial treatment occurred in the other state, the laws of the other state will apply in interpreting the insurance policy.
Coverage includes more than dollar limits.
Under North Dakota law, a household exclusion in a motor-vehicle insurance policy is void.

LaRocque v. State 2009 ND 170
Docket No.: 20090039
Filing Date: 9/21/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court order denying application for post-conviction relief is summarily affirmed under N.D.R. App. P. 35.1(a)(2) and (4).

State v. Witzke 2009 ND 169
Docket No.: 20090068
Filing Date: 9/18/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted the defendant of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Adams 2009 ND 168
Docket No.: 20090101
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The right of appeal is governed by statute, and if there is no statutory basis for an appeal, the lack of jurisdiction will be noted and the appeal dismissed.
There is no statutory right to appeal an order entering a conditional plea of guilty when no judgment of conviction or other final order has been entered.

State v. Johnson 2009 ND 167
Docket No.: 20090115
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: If a person ambiguously responds to a request to submit to a chemical test, the person suffers the consequences of that ambiguity.
An affirmative refusal to submit to a chemical test must be clear and unequivocal.

Kambeitz, et al. v. Acuity Ins. Co. 2009 ND 166
Docket No.: 20090059
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: Although the failure to plead an affirmative defense generally results in waiver of the defense, amendments to the pleadings are to be freely given when justice so requires.
An insurance company cannot avoid coverage under any compulsory automobile liability insurance policy provisions after an accident when a claim against the policy is made by an injured innocent third party.
Fraud, intentional and material misrepresentation, concealment, and collusion are all generally questions of fact for the trier of fact.

State v. Vandehoven 2009 ND 165
Docket No.: 20080308
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: The purpose of N.D.R.Crim.P. 11(b)(1) is to ensure the defendant understands the constitutional rights which are waived by entry of a guilty plea, to ensure a knowing and intelligent waiver of the right to counsel, and to ensure the defendant understands the maximum possible punishment and any applicable mandatory minimum punishment so he can make a knowing and intelligent decision whether to plead guilty.
If no plea agreement has been reached by the parties, N.D.R.Crim.P. 11(c)(1) creates a bright-line rule which prohibits the court from participating in any discussion of a plea agreement.

Tweeten v. Tweeten 2009 ND 164
Docket No.: 20090033
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A husband and wife's decision to transfer separately owned property to themselves, as husband and wife, as joint tenants is a significant legal act, which may make a premarital agreement governing the distribution of that property inapplicable.

State v. Schmeets 2009 ND 163
Docket No.: 20080225
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: To admit evidence of a defendant's prior convictions to establish an object is drug paraphernalia, a court must balance whether the probative value of the evidence outweighs the unfair prejudice to the defendant.

Wells Fargo Bank v. Horob, et al. 2009 ND 161
Docket No.: 20090066
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Other
Author:

Highlight: District court order declaring a default judgment entered by a Nebraska court is entitled to full faith and credit and enforceable in this state is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of S.Z. (Confidential) 2009 ND 160
Docket No.: 20090252
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Orders requiring treatment and medication at the North Dakota State Hospital summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Hicks 2009 ND 159
Docket No.: 20090058
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Civil commitment of a sexually dangerous person summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Fisher (Cross-ref. w/ 20070343, 20070344, & 20080198) 2009 ND 158
Docket No.: 20090165
Filing Date: 9/4/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Industrial Contractors, Inc. v. Workforce Safety & Insurance, et al. 2009 ND 157
Docket No.: 20080275
Filing Date: 9/4/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Courts exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act.
An administrative agency's construction of a statute in administering the law is entitled to deference when that interpretation does not contradict clear and unambiguous statutory language.
The word "or" is disjunctive in nature and ordinarily indicates an alternative between different things or actions, and terms or phrases separated by "or" have separate and independent significance.
Failure of participating employer to give written notice or to properly post notice as required under the relevant statute invalidates the employer's designated medical provider selection and allows the employee to make the initial selection of a medical provider.

State v. Boyle 2009 ND 156
Docket No.: 20090020
Filing Date: 8/27/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: A restraining order may restrict an individual's constitutional rights, including restricting the right to certain communication or to be in certain places.
The evidence is insufficient to support a criminal conviction when no rational factfinder, viewing all the evidence in the light most favorable to the verdict, could have found the defendant guilty beyond a reasonable doubt.

Frueh v. Frueh 2009 ND 155
Docket No.: 20080231
Filing Date: 8/27/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A court may modify a prior custody order two years after a prior order establishing custody is entered, if there has been a material change in circumstances and the modification is in the child's best interests.
When applying the best interest factors to decide whether modifying custody is in a child's best interests, it is improper for the court to consider the amount of a parent's child support obligation when the support amount was calculated using the child support guidelines.
A mature child's preference may be a significant factor in deciding whether a custody modification is necessary to serve a child's best interests.
District courts have discretion regarding the examination of witnesses, including child witnesses in custody proceedings.

Pearson v. Pearson 2009 ND 154
Docket No.: 20080299
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: An award of spousal support is finding of fact which will not be set aside on appeal unless clearly erroneous.
We will not set aside the trial court's determinations on property division or spousal support for failure to explicitly state the basis for its findings if that basis is reasonably discernable by deduction or inference.
We remand for further proceedings when permanent spousal support is requested but not awarded and the district court does not articulate why an award was not made.

Beeter, et al. v. Sawyer Disposal 2009 ND 153
Docket No.: 20080346
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: If a covenant contained in a deed does not directly benefit the land, the covenant is personal and does not run with the land.
A covenant to pay for land in a certain way is generally a personal covenant and does not run with the land.
The parties' intent, no matter how clearly expressed, cannot make a personal covenant run with the land and bind subsequent purchasers.

Matter of Vantreece (Cross-Ref. w/20080004) 2009 ND 152
Docket No.: 20090040
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Expert testimony explicitly opining that an alleged sexually dangerous individual has serious difficultly controlling his or her behavior is not necessary to commit a person as a sexually dangerous individual.
A person may be committed as a sexually dangerous individual if there is proof of difficulty in controlling behavior by expert evidence in the record from which the district court can conclude the individual has serious difficulty in controlling his or her behavior.

State v. Procive 2009 ND 151
Docket No.: 20080269
Filing Date: 8/18/2009
Case Type: Appeal - Criminal - Assault
Author: Sandstrom, Dale

Highlight: Under N.D.R.Ev. 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence.
Under N.D.R.Ev. 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The power to exclude evidence under N.D.R.Ev. 403 should be sparingly exercised, and prejudice due to the probative force of evidence is not unfair prejudice.
Under N.D.R.Ev. 801(d)(2), a statement made by one party that is offered against the party by the opponent is admissible, substantive, and non-hearsay evidence.

State v. Brown 2009 ND 150
Docket No.: 20080257
Filing Date: 8/18/2009
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Kapsner, Carol

Highlight: The legislature may delegate legislative powers, including the authority to create criminal penalties for violations of county ordinances, to a home rule county.
The provision in N.D.C.C. 11-09.1-05(5) limiting a home rule county's authority to regulate any industry or activity already regulated by state law applies only when there is an explicit state law or rule restraining the county's authority or when the industry or activity involved is already subject to substantial state control through broad, encompassing statutes or rules.
A county ordinance declaring that a dog that barks in an excessive or continuous manner is a public nuisance and that a person who owns or harbors the dog is guilty of an infraction does not reach a substantial amount of constitutionally protected conduct and is not unconstitutionally overbroad.
An ordinance declaring that a dog that barks in an excessive or continuous manner is a public nuisance is not unconstitutionally vague.
Under N.D. Const. art. VI, sec. 3, a procedural rule adopted by the Supreme Court must prevail in a conflict with a statutory procedural rule.
The signature of the prosecuting attorney on an information is not required to be sworn to upon oath.
A defendant charged with an infraction for violating a county ordinance, with a maximum penalty of a fifty-dollar fine with no possibility of imprisonment, does not have a constitutional right to a jury trial under N.D. Const. art. I, sec. 13.

Tarnavsky v. Rankin 2009 ND 149
Docket No.: 20090085
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party resisting a motion for summary judgment must present competent admissible evidence to establish a genuine issue of material fact on the party's claims.
A party resisting a summary judgment motion must explain the connection between factual assertions and legal theories in the case and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant let alone material to a claim for relief.

Abdullah v. State, et al. 2009 ND 148
Docket No.: 20080254
Filing Date: 7/29/2009
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A public educational institution's decision whether to dismiss a student for academic reasons is entitled to deference.
Tort of unlawful interference with a business relationship requires an independently tortious or otherwise unlawful act of interference by the interferer.
A state employee may not be held liable for claims based upon a discretionary function, regardless of whether the discretion is abused, and a state employee cannot be held liable for a decision resulting from a quasi-judicial act.
A student does not have a substantive due process right to graduate from a public school.
A party resisting a motion for summary judgment must explain the connection between factual assertions and legal theories and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to a claim for relief.

State v. Sorenson (Consolidated w/20080134) 2009 ND 147
Docket No.: 20080132
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Statements made during a jail phone call to friends and relatives are not testimonial statements, and Sixth Amendment confrontation rights do not apply.
Extreme emotional disturbance is a mitigating circumstance and not a defense to the crime of murder.
A warrantless trash search violates an individual's Fourth Amendment rights if there is a subjective expectation of privacy in the trash that society accepts as objectively reasonable.
An individual is denied due process when defects in procedure might lead to a denial of justice.
Insufficient evidence to support a conviction exists only when, after reviewing the evidence in the light most favorable to the verdict and giving the benefit of all inferences reasonably to be drawn in favor of the verdict, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

State v. Beane (Consolidated w/20090012 - 20090015) 2009 ND 146
Docket No.: 20090011
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The Fourth Amendment is not implicated by police entry upon private land to knock on a citizen's door for legitimate police purposes unconnected with a search of the premises.
Placing a suspect in handcuffs before conducting a pat-down search for weapons is constitutionally permissible when the action is based on officer safety.
When an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is, in fact, a weapon.
Generally, when an object recovered from a suspect during a pat-down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby.

Schaaf v. N.D. Department of Transportation 2009 ND 145
Docket No.: 20090025
Filing Date: 7/21/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: If a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable, the special provision must be construed to control over the general provision.
Due process requires notice and an opportunity for a hearing appropriate to the case.

State v. Blurton 2009 ND 144
Docket No.: 20090009
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A guilty plea must be knowingly, intelligently, and voluntarily made to be valid.
Any error that does not affect a defendant's substantial rights is harmless and must be disregarded.
Generally, ineffective assistance of counsel claims should be raised in a post-conviction proceeding to allow the parties to fully develop a record of counsel's performance and its impact on the defendant.

State v. Demarais (Consolidated w/20080182) 2009 ND 143
Docket No.: 20080181
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.
In nearly all possession of drug paraphernalia cases, the State will be forced to prove by circumstantial evidence the intent to use the paraphernalia for the purpose of ingesting, preparing, or storing a controlled substance.
A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts.

Shull v. Walcker, et al. 2009 ND 142
Docket No.: 20090021
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: A motion for relief from judgment should not be used to relieve a party from free, calculated and deliberate choices he or she has made, and relief should be granted only in exceptional circumstances.
The failure of a condition precedent is an affirmative defense which must be pled in the answer to a filed complaint.
The decision of a respondent to not answer a complaint, to not file a response to a motion for default judgment, and to disregard the court's recommendations that he seek counsel until after default judgment has been entered against him does not constitute exceptional circumstances to justify relief under N.D.R.Civ.P. 60(b).
Whether an earnest money clause in a purchase agreement limits a seller's remedies to the earnest money itself is a matter of contractual interpretation.

State v. Myers (Consolidated w/20090004) 2009 ND 141
Docket No.: 20080104
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: When a problem arises during a trial, the party affected must bring the irregularity to the court's attention and seek appropriate remedial action.
If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error.
Because the court took steps to ensure the defendant had a fair trial, the defendant's right to a fair trial was not violated and obvious error did not exist when a juror allegedly slept during the arresting officer's testimony.
If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Grager v. Schudar, et al. 2009 ND 140
Docket No.: 20080302
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: An appellant assumes the consequences and the risks for failing to provide a complete transcript of proceedings in the trial court, and if the record on appeal does not provide for a meaningful and intelligent review of an issue, the supreme court may decline to review the issue.
On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient.
Generally, one who consents to conduct that would otherwise be an intentional tort cannot recover damages for that conduct.
An adult prisoner's apparent consent to sexual conduct with a jailer imposes neither absolute liability on the jailer nor a complete bar to recovery in the prisoner's civil action premised upon the sexual conduct.

Schweitzer v. Job Service ND, et al. 2009 ND 139
Docket No.: 20080341
Filing Date: 7/21/2009
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: A person may not receive unemployment benefits if the person was discharged from employment for misconduct.
One incident of bad judgment can be disqualifying misconduct if it results in a violation of an important employer interest.

State v. Bornhoeft 2009 ND 138
Docket No.: 20090067
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A district court does not err by denying a motion to dismiss charges of disorderly conduct when the facts supporting the complaint describe conduct that can be the basis of such charges under the disorderly conduct statute, although the defendant also yelled obscenities at a law enforcement officer.

Department of Labor v. Matrix Properties, et al. 2009 ND 137
Docket No.: 20080224
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The two-year statute of limitations for a civil discriminatory housing practice action based on design and construction defects is triggered when the building's certificate of occupancy is issued.

Matter of Emelia Hirsch Trust 2009 ND 135
Docket No.: 20080209
Filing Date: 7/16/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: An issue or argument not raised or considered in the district court cannot be raised for the first time on appeal.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Chambering of the New Judgeship in the Southeast Judicial District 2009 ND 134
Docket No.: 20090163
Filing Date: 7/15/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Jamestown.

Chambering of the New Judgeship in the Northwest Judicial District 2009 ND 133
Docket No.: 20090162
Filing Date: 7/15/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Minot.

Hill, et al. v. Lindner, et al. 2009 ND 132
Docket No.: 20080334
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: An incidental business use does not violate a covenant restricting use of property to residential purposes only.

Reciprocal Discipline of Thoms 2009 ND 131
Docket No.: 20090191
Filing Date: 7/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

State v. McAvoy 2009 ND 130
Docket No.: 20090024
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A convicted sex offender must register an address with law enforcement within three days of coming into a county in which the individual resides or is temporarily domiciled.
When reviewing challenges to the sufficiency of the evidence, the evidence and all reasonable inferences drawn from such evidence are viewed most favorably to the verdict.

State v. Zwicke, Jr. 2009 ND 129
Docket No.: 20090002
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Under the automobile exception to the warrant requirement, law enforcement officers may search for illegal contraband without a warrant when probable cause exists that certain identifiable objects are probably connected with criminal activity and are probably to be found in the vehicle.
To the extent that State v. Meadows can be read to require something more than mobility for exigent circumstances for an automobile search, it is overruled.
Law enforcement officers are not prevented from searching for and seizing evidence merely because the officers might already have sufficient evidence to sustain a conviction.

Fehl-Haber v. State (Cross Ref w/20060086) 2009 ND 128
Docket No.: 20090026
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Neva 2009 ND 127
Docket No.: 20090054
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant whose previous concurrent sentences are converted into consecutive sentences upon revocation of his probation is entitled to receive credit for the time he spent in custody only toward the first of the converted consecutive sentences.

Steinmeyer v. Department of Transportation 2009 ND 126
Docket No.: 20090096
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed. However, 'scrupulous' compliance does not mean 'hypertechnical' compliance.
"Observing" an Intoxilyzer test subject is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

City of Grand Forks v. Corman 2009 ND 125
Docket No.: 20080289
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: In a transferred case from a municipal court to a district court, the municipal court retains the authority to consider a defendant's application for court-appointed counsel.
A district court denying a defendant's application for court-appointed counsel in a transferred case from a municipal court does not abuse its discretion in denying the application on the basis that it is not the proper forum.
A defendant who has been advised of his right to counsel and the perils of self-representation waives voluntarily, knowingly, and intelligently his right to counsel if he chooses to represent himself.

Bice, et al. v. Petro-Hunt, L.L.C., et al. (cross-reference w/20030306) 2009 ND 124
Docket No.: 20080265
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Where gas has no market value at the well and the lease requires royalty to be paid based upon the market value of the gas at the well, lessee can deduct post-production costs incurred in making the gas marketable prior to calculating the royalty.
The "at the well" rule in interpreting oil and gas leases is adopted, and the first marketable product doctrine is rejected.
The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.
Normally, whether a risk-capital charge is commercially reasonable is a question of fact, but when the parties stipulate to the facts in the record and request that the court determine the issue according to the parties' motions for summary judgment, the court can decide the issue as a matter of law.
A party resisting summary judgment must present competent admissible evidence establishing a genuine issue of material fact and cannot simply rely upon the pleadings or unsupported, conclusory allegations.

State v. Maki 2009 ND 123
Docket No.: 20080279
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), conflicts in the evidence are not resolved and the credibility of witnesses is not reweighed.
On appeal, the judgment is affirmed if there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
Jurors are presumed to know and apply the common and ordinary meaning of words.

Abernathey v. Department of Transportation 2009 ND 122
Docket No.: 20080336
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A law enforcement officer's approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.
An occupant of a vehicle has not been "seized" when a law enforcement officer requests, rather than orders or commands, that the occupant exit a vehicle.

Interest of B.K. and D.K. (CONFIDENTIAL) 2009 ND 121
Docket No.: 20090027
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Paul 2009 ND 120
Docket No.: 20080292
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: The decision to admit expert testimony is discretionary with the district court.
A district court must make explicit findings and explain its reasoning for its decision when considering the trustworthiness of a child's out-of-court hearsay statements about sexual abuse.
Evidence of prior sexual abuse of a victim of the charged crime is not evidence of wholly separate and independent crimes, and is not evidence of "other crimes" for purposes of N.D.R.Ev. 404(b).
Uncharged prior acts of sexual abuse between the defendant and the same victim are admissible under the exceptions to N.D.R.Ev. 404(b).
The uncorroborated testimony of a child is sufficient to sustain a conviction of a sexual offense.

State v. Zajac 2009 ND 119
Docket No.: 20080203
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal on the grounds presented to the trial court in the motion for a new trial.
Jury instructions are reviewed as a whole to determine whether the instructions fairly and adequately informed the jury of the applicable law.
A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense. Whether there is sufficient evidence to support a jury instruction is viewed in the light most favorable to the defendant.
A defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification are present.

Vann v. Vann 2009 ND 118
Docket No.: 20080344
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A settlement agreement is unconscionable if there are procedural abuses arising out of the contract formation and substantive abuses relating to the terms of the agreement.
The involvement of only one attorney is troubling, but that fact alone does not conclusively establish an agreement is unconscionable.
A party having capacity and opportunity to read a contract without being misled as to its contents cannot avoid the contract by claiming he has not read it.

Henke v. State (Consolidated w/ 20080348) 2009 ND 117
Docket No.: 20080347
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A district court may summarily dismiss an application for post-conviction relief on its own accord only if the application fails to state a claim for which relief could be granted.
A district court cannot put an applicant to her proof. Under post-conviction relief, only a party can move for summary disposition.

Interest of A.B. (CONFIDENTIAL) 2009 ND 116
Docket No.: 20080256
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State is not required to provide long-term and intensive treatment if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.

Riemers v. State 2009 ND 115
Docket No.: 20080332
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: When considering whether to allow individual speech on government property, courts employ a forum analysis for balancing the government's interest in limiting the use of its property and the interests of those wanting to use the property for expressive activity.
A university may establish reasonable time, place, and manner restrictions when permitting access to its campus and facilities.

Vanderscoff v. Vanderscoff 2009 ND 114
Docket No.: 20080318
Filing Date: 6/30/2009
Case Type: Appeal - Civil - Divorce - Property
Author:

Highlight: District court order denying motion to amend spousal support obligation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Vicknair, et al. v. Phelps Dodge Industries, Inc., et al. 2009 ND 113
Docket No.: 20080139
Filing Date: 6/29/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: The availability of an adequate alternative forum is a prerequisite to granting a motion to dismiss based on forum non conveniens, and an adequate alternative forum does not exist if the statute of limitations has expired in the proposed alternative forum.

Disciplinary Board v. Peterson 2009 ND 112
Docket No.: 20090159
Filing Date: 6/24/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Disciplinary Board v. Wolff (Interim Suspension) 2009 ND 111
Docket No.: 20090189
Filing Date: 6/24/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Khokha v. Shahin 2009 ND 110
Docket No.: 20080211
Filing Date: 6/22/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: Evidence of a plaintiff's bad reputation or bad character is generally admissible in a defamation action.
Specific instances of a plaintiff's conduct or a plaintiff's particular character traits are not relevant in a defamation action unless they were generally known by others in the community.
Reputation evidence in a defamation action is permissible only if it affects the aspects of reputation that were defamed.
There is no liability for defamatory statements that are privileged.
Absolute privilege is limited to situations in which the free exchange of information is so important that even defamatory statements made with actual malice are privileged, while qualified privilege may be abused and does not provide absolute immunity from liability.
Whether a qualified privilege is abused is a question of fact.

Miller v. Workforce Safety and Insurance, et al. 2009 ND 109
Docket No.: 20080238
Filing Date: 6/19/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Under North Dakota's workers compensation law and procedure, a "rehearing" is an evidentiary hearing.
WSI has the responsibility to weigh the credibility of the medical evidence and resolve conflicting medical opinions, and a reviewing court is limited to determining only whether a reasoning mind reasonably could have determined that the factual conclusions were proved by the weight of the evidence from the entire record.

State v. Golden 2009 ND 108
Docket No.: 20080301
Filing Date: 6/17/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A district court may not grant a defendant's motion to suppress statements made to police officers while the defendant was not subject to custodial interrogation.
A defendant who goes to a police station voluntarily, understanding that questioning will ensue, and who is told by the interviewing officers that he does not have to answer any questions, that he is not under arrest, and that he is free to leave at any time, and who, finally, leaves the police station unobstructed, is not in custody for Miranda purposes.

Eberle v. Eberle 2009 ND 107
Docket No.: 20080317
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Interlocutory orders generally are not appealable and may be revised or reconsidered any time before the final order or judgment is entered.
A settlement agreement is unconscionable and may not be enforced if there are procedural abuses arising out of the contract formation and substantive abuses relating to the terms of the agreement.
When a settlement agreement is rapidly entered into, only one party is represented by an attorney, and the terms of the agreement are one-sided it strongly indicates the agreement was entered into under duress or undue influence.

Matter of Midgett (Cross-Ref. w/20070109) 2009 ND 106
Docket No.: 20080255
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: In addition to the three statutory requirements, the State must prove the committed individual has serious difficulty controlling his behavior in order to satisfy substantive due process.
The district court must specifically state the facts on which it relied to determine an individual has serious difficulty in controlling his behavior.

State v. Ripley (consolidated w/20080291) 2009 ND 105
Docket No.: 20080290
Filing Date: 6/17/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When determining whether a trial court abused its discretion by denying a motion to continue a trial, this Court uses the same factors that are used to determine whether a trial court had good cause to grant a motion to continue a trial. The factors are: (1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) prejudice to the defendant.
The matter of substitution of appointed counsel is committed to the sound discretion of the trial court. Absent a showing of good cause for the substitution, a refusal to substitute appointed counsel is not an abuse of discretion.
Under N.D.R.Crim.P. 52(a), any error, defect, irregularity, or variance that does not affect substantial rights is harmless and must be disregarded.
If a party raises an issue but fails to provide supporting argument, reasoning, or citation to relevant authorities, we deem the argument to be without merit and consider it waived.

Matter of A.M. (CONFIDENTIAL) 2009 ND 104
Docket No.: 20080204
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A district court order denying a petitioner's request for discharge from commitment as a "sexually dangerous individual" is reviewed under a modified clearly erroneous standard and is affirmed unless it is induced by an erroneous view of the law or the order is not supported by clear and convincing evidence.
The State has the burden to prove by clear and convincing evidence that the committed individual remains a "sexually dangerous individual."
"Sexually dangerous individual" is defined as an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that 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.
The definition of "sexually dangerous individual" also requires a nexus between the disorder and dangerousness, proof of which encompasses evidence showing the individual has serious difficulty in controlling his behavior.

Darby v. Swenson, Inc. 2009 ND 103
Docket No.: 20080215
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A district court has wide discretion in deciding matters relating to amending pleadings after the time for an amendment as a matter of course has passed.
A district court does not abuse its discretion in denying a motion to amend the complaint when such an amendment would be a futile act.
An amendment is futile for purposes of determining whether leave to amend should be granted, if the added claim would not survive a motion for summary judgment.
All warranties may be properly excluded if that exclusion is part of the bargain between the parties.

Matter of Rush 2009 ND 102
Docket No.: 20080337
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: In civil commitments of sexually dangerous individuals, the State must prove by clear and convincing evidence a nexus between the individual's disorder and the likelihood that he or she will engage in further acts of sexually predatory conduct. Subsequently, the district court must specifically state in its memorandum opinion the facts upon which it relied in finding that such a nexus existed.
The weakness or non-existence of a basis for an expert's opinion goes to their credibility, and not necessarily to the admissibility of the opinion evidence.
While a district court must conduct a commitment proceeding to determine whether an individual is a sexually dangerous individual within sixty days after a finding of probable cause, the court may extend this time period for good cause.
The district court has wide discretion over the mode and order of presenting evidence, and actions of the court regarding the mode and order of presenting evidence will not be disturbed on appeal absent an abuse of discretion.

Matter of R. A. S. (Confidential) 2009 ND 101
Docket No.: 20090001
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: The United States Supreme Court has held substantive due process rights require an individual facing commitment must be shown to have serious difficulty controlling his behavior. This constitutional requirement may be viewed as part of the definition of a sexually dangerous individual.
At a discharge hearing, the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his behavior.

Interest of I.W. & D.A. (CONFIDENTIAL) 2009 ND 100
Docket No.: 20090032
Filing Date: 6/17/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Barbie v. Minko Construction, Inc., et al. 2009 ND 99
Docket No.: 20080214
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim.
The plaintiff must prove not only that she has been injured by a negligent act, but must prove the identity of the person responsible for that act.
If, based upon the evidence presented, it is equally probable that the negligence was that of someone other than the defendant, the plaintiff has not met her burden of proving a breach of duty by the defendant.
Res ipsa loquitur applies only if the plaintiff proves that the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant.

State v. Deutscher 2009 ND 98
Docket No.: 20080207
Filing Date: 6/17/2009
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Kapsner, Carol

Highlight: The State may appeal from an order quashing an information, but there can be no appeal from a true judgment of acquittal. If a trial court's decision resolves some or all of the factual elements of the events charged, the decision is a judgment of acquittal rather than a quashing of the information.
An attempted appeal may be treated as a request for supervisory writ.
A trial court may not, on its own motion, enter a judgment of acquittal under N.D.R.Crim.P. 29(c).

Moore v. State (Cross-Ref. with 20060224) 2009 ND 97
Docket No.: 20090036
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

McArthur v. N.D. Workforce Safety & Insurance 2009 ND 96
Docket No.: 20090081
Filing Date: 6/17/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an order of Workforce Safety & Insurance denying further disability and vocational rehabilitation benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Interest of S.J., et al. (CONFIDENTIAL) (Consolidated w/20080329) 2009 ND 95
Docket No.: 20080328
Filing Date: 6/17/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

Highlight: Termination of parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Asset Acceptance, LLC v. Nash 2009 ND 94
Docket No.: 20080345
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author:

Highlight: Order denying motion to vacate a default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Kurtenbach (consolidated w/20080339 & 20080340) 2009 ND 93
Docket No.: 20080338
Filing Date: 6/17/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgments for theft by deception, theft of property, forgery, giving false information to law enforcement and unauthorized use of personal identifying information are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Johnson v. State 2009 ND 92
Docket No.: 20090008
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Judgment denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Judicial Vacancy in Judgeship No. 3, Southwest Judicial District 2009 ND 91
Docket No.: 20090144
Filing Date: 6/16/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Dickinson.

Eslinger v. WSI, et al. 2009 ND 90
Docket No.: 20080232
Filing Date: 5/27/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement presumption contained in N.D.C.C. 65-05-09.3(2), providing that a disabled employee who becomes eligible to receive social security retirement benefits is considered to be retired and no longer eligible for workers compensation disability benefits, does not apply to claimants who have been receiving continuing, regular, and ongoing disability benefits since before July 31, 1995, the effective date of the statute.
A claimant, whose medical condition improved and who was ineligible for total disability benefits for an eight-month period after the effective date of the retirement presumption statute, lost her right to rely upon continuing, ongoing disability benefits, and the retirement presumption statute applied to her claim when she reapplied for further disability benefits.

Kappenman, et al. v. Klipfel, et al. 2009 ND 89
Docket No.: 20080184
Filing Date: 5/26/2009
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A township board with actual knowledge of an unusually hazardous or unusulally dangerous condition on an unimproved section line road has a duty to warn travelers of that condition; actual knowledge given to at least one member of the township board impose the duty.
Failing to warn of a known unusually dangerous condition in a road is not covered by discretionary function immunity because it implicates no social, economic, or political policies.
The recreational use immunity statutes do not apply to an unimproved section line road which is made available to the public for nonrecreational travel.
Although a landowner abutting a section line continues to own the land subject to an easement, the landowner does not owe the public a duty to keep the road in a safe condition.
Breach of a duty sounding in tort will give rise to an action based upon nuisance.

Rutherford v. BNSF Railway Co. 2009 ND 88
Docket No.: 20080237
Filing Date: 5/22/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Equitable estoppel may preclude the application of the statute of limitations by a party whose actions induced another party not to file a claim within a prescribed statutory period. To raise a claim of equitable estoppel before a trial court, a party does not necessarily have to use the word "estoppel"; however, the opposing party has to be provided with fair notice of the claim. An issue not properly raised before the district court may not be raised for the first time on appeal.
The doctrine of unconscionability allows a court to deny enforcement of a contract because of procedural abuses arising from the formation of the contract and substantive abuses pertaining to the contract's terms. To prevail on an unconscionability claim, the party alleging unconscionability must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the factors, viewed in totality, to determine if the particular provision of the contract is so one-sided as to be unconscionable.
A railroad does not have a duty, as a common carrier, to lease its real property. In voluntarily contracting to do so, it is as free as any other private party to impose any condition it desires and the lessee is willing to accept.
Parties to a lease may agree that a structure on real property is classified as either part of the realty or personalty, which shall remain upon or can be removed from the leased real property upon termination of the lease.

Carlson v. Workforce Safety & Insurance, et al 2009 ND 87
Docket No.: 20080250
Filing Date: 5/18/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A corporation is an artificial person that must act through its agents, and a corporation may not be represented by a non-attorney agent in a legal proceeding.
A request for reconsideration of an administrative agency's informal decision, made on behalf of a corporate entity, is not conduct that could be performed by a non-lawyer.
Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in administrative agencies, and a motion for pro hac vice admission must be filed no later than 45 days after the service of the pleading, motion, or other paper.
A hearing officer includes an agency head when presiding in an administrative proceeding, or any other person designated to preside in an administrative proceeding.

Neuhalfen v. WSI, et al. 2009 ND 86
Docket No.: 20080175
Filing Date: 5/15/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: To trigger civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality" of a willful false statement. If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

State v. Corman 2009 ND 85
Docket No.: 20080156
Filing Date: 5/14/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In an appeal challenging the sufficiency of the evidence, this Court looks only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
Sufficient evidence exists to find defendant contributed to the delinquency or deprivation of a minor under N.D.C.C. 14-10-06 where testimony established defendant gave minor victim pornographic DVDs and magazines.

Luger, et al. v. Luger, et al. 2009 ND 84
Docket No.: 20080194
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A district court has subject matter jurisdiction over activities conducted on an Indian reservation by persons who are not members of the tribe residing on that reservation when such activities do not involve the tribe's authority to regulate or control such activities.
A district court has personal jurisdiction over a member of an Indian tribe residing on an Indian reservation other than that of his enrollment.
A district court abuses its discretion in ordering a monetary default judgment when monetary relief was not requested in the complaint.

Disciplinary Board v. Light (Consolidated w/ 20080321-20080327) 2009 ND 83
Docket No.: 20080320
Filing Date: 5/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred and ordered to pay costs of disciplinary proceedings.