Opinions

Interest of D.M.H. (CONFIDENTIAL) 2023 ND 148
Docket No.: 20230028
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Juvenile Law
Author: Crothers, Daniel John

Highlight: Absent a change in circumstances, the juvenile court does not err in adopting a prior visitation schedule as the current visitation schedule.

Hennessey v. Milnor School District 2023 ND 147
Docket No.: 20230056
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Bahr, Douglas Alan

Highlight: In an appeal from a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the complaint is construed in the light most favorable to the plaintiff and well-pleaded allegations are accepted as true.

Undue influence is improper influence exercised in such a way and to such an extent as to destroy a person’s free agency or voluntary action by substituting for the person’s will the will of another.

In nontestamentary cases, undue influence requires three factors be established: (1) A person who can be influenced; (2) The fact of improper influence exerted; and (3) Submission to the overmastering effect of such unlawful conduct.

The law does not condemn all influence, only undue influence.

State, et al. v. Vetter 2023 ND 146
Docket No.: 20230031
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Rule 60(a), N.D.R.Civ.P., was designed to allow district courts to correct errors created by oversight or omission. Rule 60(a) does not authorize the court to change what has been deliberately done.

Gonzalez v. Perales 2023 ND 145
Docket No.: 20230026
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: To be appealable under N.D.C.C. § 28-27-02(1), an order must determine the action and prevent a judgment from which an appeal might be taken.

An order is not appealable under § 28-27-02(5) unless, in effect, it finally determines some substantive legal right of appellant or is dispositive of a substantive issue.

Final order under section 14-14.1-34, N.D.C.C. [UCCJEA §314 (1997)], means an order that finally determines some substantive legal right of a party or is dispositive of a substantive issue.

State v. Larsen (consolidated w/20220375 & 20220376) 2023 ND 144
Docket No.: 20220374
Filing Date: 8/2/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively. Therefore, upon revocation of a conviction and sentence entered prior to August 1, 2021, a district court’s ability to resentence a defendant is limited to the previously imposed, but suspended, sentence.

State v. Larsen (consolidated w/20220375 & 20220376) 2023 ND 144
Docket No.: 20220374
Filing Date: 8/2/2023
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

DOCR v. Louser, et al. 2023 ND 143
Docket No.: 20230117
Filing Date: 8/2/2023
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Jensen, Jon J.

Highlight: The Department of Corrections and Rehabilitation has broad authority under N.D.C.C. § 54-23.3-01 to supervise offenders and probationers when directed by the district court.

This Court exercises its supervisory jurisdiction rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

Zavanna v. Gadeco, et al. 2023 ND 142
Docket No.: 20220265
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: The plaintiff bears the burden of proof on its quiet title claim. Where the plaintiff owns a top lease and the defendant owns a bottom lease covering the same oil and gas leasehold interest, the plaintiff bears the burden to prove the bottom lease terminated by its own terms. If the bottom lease contains a cessation of production clause, the plaintiff must prove production ceased for the specified period.

Oil and gas leases are interpreted in the same manner as other contracts. When left undefined, “production” in a savings clause means production in paying quantities, which generally requires a court to consider whether the well yielded a profit over operating costs over a reasonable period of time. As a matter of law, a de minimis amount of production does not equate to production in paying quantities. Where profitability of the well is not at issue so as to affect when production in paying quantities ceased, cessation commences on the first day of no production and ends on the last day of no production. If a total cessation of production exceeds the time period established in the lease’s cessation of production clause, the lease terminates unless it provides conditions preventing termination. In this case, a total cessation of production, including de minimis amounts, triggered the cessation of production clause requiring the well operator to timely commence reworking operations.

Reworking operations must be intimately connected with resolving the physical difficulty that caused the well to cease production, and the well operator must exercise due diligence and make a bona fide effort to restore production as soon as possible. Minimal preparatory steps, such as diagnosing the failure and ordering parts, do not constitute commencement of reworking operations.

An express force majeure clause in a contract must be accompanied by proof that the failure to perform was proximately caused by a contingency and that, in spite of skill, diligence, and good faith on the promisor’s part, performance remains impossible or unreasonably expensive. The party relying on a force majeure clause to excuse performance bears the burden of proving that the event was beyond its control and without its fault or negligence. The party relying on the force majeure clause must show its performance was actually hindered or prevented by the force majeure event, not just potentially or hypothetically hindered or prevented.

Zavanna v. Gadeco, et al. 2023 ND 142
Docket No.: 20220265
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Edison v. Edison 2023 ND 141
Docket No.: 20220290
Filing Date: 8/2/2023
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: North Dakota law forbids sex bias in custody determinations. Between the mother and father, whether married or unmarried, there is no presumption as to which parent will better promote the best interests and welfare of the child.

An obligor is underemployed if the obligor’s gross income from earnings is significantly less than this state’s statewide average earnings for persons with similar work history and occupational qualifications.