Opinions

Sandvick, et al. v. LaCrosse, et al. 2008 ND 77
Docket No.: 20070146
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: The crucial elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive.
For a business enterprise to constitute a joint venture, the following four elements must be present: (1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed. There is, however, no fixed formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts.
Principles of partnership law apply to the joint venture relationship.
Joint venturers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.

Disciplinary Board v. O'Donnell (Consolidated w/ 20080085) 2008 ND 76
Docket No.: 20080084
Filing Date: 4/18/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer is suspended from the practice of law for two years, but the suspension is stayed for two years on conditions. Interim suspension is vacated.

Grosgebauer v. N.D. Dept. of Transportation 2008 ND 75
Docket No.: 20070299
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Whether a driver affirmatively refused to submit to alcohol testing is a determination of fact that is significantly reliant on the credibility of witnesses.
To cure a refusal to submit to alcohol testing, the consent to submit to testing must be clearly articulated and meet other criteria.

Stockman Bank of Montana v. AGSCO, Inc., et al.(Cross Ref w/20060174) 2008 ND 74
Docket No.: 20070357
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Where a party is erroneously ordered to pay another, the party is entitled to interest at the legal rate set by N.D.C.C. 47-14-05, when the judgment is later reversed.

State v. Jacobson 2008 ND 73
Docket No.: 20070103
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: An appearance of partiality requiring a judge's disqualification does not automatically result from a judge's casual or social acquaintance with a witness.
A disqualified judge whose withdrawal from a case is not mandatory has the option of either withdrawing or disclosing to the parties on the record the basis for his disqualification.
A party seeking to disqualify a judge from a proceeding must file a timely motion.
A party who knows the facts that would form the basis of disqualification prior to entry of a judgment against him waives his right to disqualification of a judge by failing to request disqualification until after the judge enters a judgment adverse to that party.

Bateman v. City of Grand Forks 2008 ND 72
Docket No.: 20070217
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.
Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid.
A special assessment against any property must not exceed the benefit the property receives from the improvement.
A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.

Lynnes v. Lynnes 2008 ND 71
Docket No.: 20070274
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The district court's valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.
A relatively insignificant error in valuation of a marital asset will not, standing alone, constitute sufficient grounds for reversal of the judgment.
If substantial amount of debts are excluded from the marital estate, it is not clear that the district court would have reached the same result in allocating the assets and debts had it correctly included the debts as part of the marital estate before allocating the debts between the parties.

State v. Gendron 2008 ND 70
Docket No.: 20070199
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Restitution orders will be affirmed unless the district court acted outside the limits set by statute, which is similar to an abuse of discretion standard.
The prosecution has the burden of proving the amount of restitution by a preponderance of the evidence.
Evidentiary imprecision on the amount of damages does not preclude recovery by restitution.

State v. Loomer (Consolidated w/20070236-20070239) 2008 ND 69
Docket No.: 20070235
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: For a not guilty plea, the Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence.
Unless a defendant was prejudicially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction under N.D.R.Crim.P. 7(c)(2).

Wenzel Estate v. Wenzel 2008 ND 68
Docket No.: 20070264
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's findings in a partition action will not be reversed on appeal unless they are clearly erroneous.
A trial court's equitable powers in partition actions do not include the power to order one party to buy out the other party's share of jointly owned property.