Opinions

Disciplinary Board v. McCray (Consolidated w/ 20070377) 2008 ND 162
Docket No.: 20070376
Filing Date: 9/3/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5, 4.1, 5.4, 5.5(e), 7.3(a), 8.4(c), (f), and (g), and N.D.R. Lawyer Discipl. 1.2A(3) and (8).
Improper solicitation of clients occurs when a lawyer involves himself with an organization that independently targets and solicits prospects for his representation.

Sanders v. Gravel Products, Inc. 2008 ND 161
Docket No.: 20080001
Filing Date: 9/2/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A person may waive contractual rights and privileges to which that person is legally entitled.
A claim that ERISA was violated because an employer failed to properly fund a retirement plan is within the concurrent jurisdiction of a state court.
A contract between one employee and an employer can be an employee benefit plan subject to ERISA.
The existence of an ERISA plan is a mixed question of fact and law.

Lucas v. Porter, et al. 2008 ND 160
Docket No.: 20070169
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The rule against splitting a cause of action is part of a rule of abatement and part of a rule of res judicata.
A pending action may be pleaded as a bar to a subsequent action where a final judgment in the prior action, pleaded in abatement, would support a plea of res judicata on the issues involved in the second action.
Claim preclusion prevents the relitigation of claims that were raised or could have been raised in prior actions between the same parties or their privies and means a valid existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to the parties and their privies in all other actions.
Claim preclusion applies even if subsequent claims are based upon a different legal theory.
For proposes of claim preclusion, privity exists if a person is so identified in interest with another that the person represents the same legal right.

Gustafson v. Poitra, et al. 2008 ND 159
Docket No.: 20070301
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Foreclosure
Author: Kapsner, Carol

Highlight: Generally, a statute of limitations is an affirmative defense that is waived if not pleaded.
Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.
In responding to a summary judgment motion, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.
Under N.D.R.Civ.P. 59, the district court in its sound discretion may vacate a decision and grant a new trial if there is newly discovered material evidence that the party could not have discovered and produced at the trial with reasonable diligence.

Buchholz v. Barnes County Water Board (Consolidated w/20070326) 2008 ND 158
Docket No.: 20070325
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Section 61-01-07, N.D.C.C., does not create a duty upon a downstream landowner to keep a watercourse free of naturally occurring vegetation.
Summary judgment is appropriate against a party who fails to establish the existence of a genuine factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial.

State v. Rodriquez (Consolidated w/20070350) 2008 ND 157
Docket No.: 20070349
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When time spent in custody is credited toward an unrelated charge, the defendant is not entitled to have that time spent in custody applied to another sentence.

State v. Keener (consolidated w/20070265 & 20080016) 2008 ND 156
Docket No.: 20070252
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Claims of ineffective assistance of counsel are best raised in post-conviction proceedings to allow the parties to fully develop the record.
A defendant arguing ineffective assistance of counsel because of a conflict of interest caused by joint representation, who did not object to the joint representation, must show there was an actual conflict that adversely affected counsel's performance.
The court's failure to comply with N.D.R.Crim.P. 44, which requires the court to inquire into the propriety of joint representation, does not by itself require reversal.
Review of issues not raised below is limited to obvious error.
Restitution orders will not be reversed on appeal unless the district court abused its discretion.

City of Devils Lake v. Grove 2008 ND 155
Docket No.: 20070292
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: If an investigative detention lasts too long or its manner of execution unreasonably infringes an individual's Fourth Amendment interests, it may no longer be justified as an investigative stop and, as a full-fledged seizure, must be supported by probable cause.
To determine whether an investigative detention has become a de facto arrest, this Court considers whether the invasion of an individual's Fourth Amendment interests is so minimally intrusive as to be justifiable on reasonable suspicion.
Officers are obligated to limit investigative methods employed during a traffic stop to the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.

Kortum, et al. v. Johnson, et al. 2008 ND 154
Docket No.: 20070186
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Close corporation shareholders owe one another a duty of utmost loyalty and good faith.
By signing a shareholder agreement, the shareholders of a close corporation do not bargain away the fiduciary duty owed to them by the corporation's other shareholders.
A shareholder agreement is presumed to reflect the reasonable expectations of a corporation's shareholders.
The threshold issue in a claim of shareholder oppression based on termination of employment is whether the terminated shareholder-employee had a reasonable expectation of continued employment.
A shareholder agreement providing for periodic reevaluation of share value signifies a bona fide intention on the part of both parties to enter into periodic negotiations; when the parties to the agreement have not reevaluated the shares as contemplated by the agreement, the remaining shareholders have the burden of showing they did not refuse in bad faith to enter into such negotiations.

City of Grand Forks v. Riemers 2008 ND 153
Docket No.: 20070379
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Traffic Violation
Author: Kapsner, Carol

Highlight: The right to appeal in this state is statutory, and there is no constitutional right to an appeal.
When a defendant has appealed a municipal court's decision on a noncriminal municipal traffic offense to district court for trial anew, the district court's decision may not be appealed to the Supreme Court.