Opinions

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.