Opinions

WFND, LLC v. Fargo Marc, LLC 2007 ND 67
Docket No.: 20060125
Filing Date: 5/7/2007
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A motion to amend a complaint under N.D.R.Civ.P. 15(a) and a motion for voluntary dismissal under N.D.R.Civ.P. 41(a)(2) lie within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion.
A breach of contract is the nonperformance of a contractual duty when it is due, and the burden of proving the elements of a breach of contract is on the party asserting the breach.
Mixing principles of tort and contract law and using tort terminology to describe a breach of contract is improper.
Fraud applies when there is a contract between the parties and deceit applies when there is no contract between the parties.
An intent to defraud usually is not susceptible of direct proof, and can be established by circumstantial evidence.
The award of damages will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.
A district court is not required to accept the undisputed testimony of an expert witness.
A written contract may be modified by an executed oral agreement.
The parol evidence rule does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms.
Successful litigants are not allowed to recover attorney fees unless authorized by statute or by contract.
When opposing parties each prevail on some of their claims, there is no single prevailing party for whom disbursements may be taxed.
Disbursements listed in N.D.C.C. 28-26-06 may be awarded as discretionary costs under N.D.C.C. 28-26-10.

Gilbert v. Gilbert 2007 ND 66
Docket No.: 20060306
Filing Date: 5/4/2007
Case Type: Appeal - Civil - Divorce
Author: Maring, Mary

Highlight: A custodial parent seeking to change the residence of a child to another state has the burden to prove, by a preponderance of the evidence, that the move is in the child's best interest.
It is reversible error for a court to fail to give sufficient credence to the importance of keeping the custodial family intact when deciding whether to allow a custodial parent to relocate with the child to another state.

Vogel, Weir, Hunke, and McCormick v. Serbus 2007 ND 65
Docket No.: 20070019
Filing Date: 5/3/2007
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Contract dispute judgment summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Stadheim v. Stadheim 2007 ND 64
Docket No.: 20060193
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: The amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Kostelecky v. Kostelecky (Cross-reference with 20050231) 2007 ND 63
Docket No.: 20060352
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of D.M., a child CONFIDENTIAL 2007 ND 62
Docket No.: 20060236
Filing Date: 5/1/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A lower court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
A finding that someone "has issues" or "struggled with issues" is meaningless as a matter of law.
When there has been an extensive period during which efforts have been made to overcome a parent's inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.
A history of alcohol and drug abuse combined with numerous failed attempts at controlling the addiction, together with evidence of a failure to fully cooperate with social service workers to receive the necessary treatment and services to become a fit parent, demonstrates a very poor prognosis for a parent's ability to provide minimally adequate care for a child.
When the mental and physical health of a child are the concerns, it is not enough that a parent indicate a desire to improve. A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.

State v. Helton 2007 ND 61
Docket No.: 20060311
Filing Date: 5/1/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.
To sustain a conviction of delivering alcohol to a minor, the State does not need to show actual physical delivery of alcohol to a minor. The statutory definition of delivery includes constructive and attempted transfers as well.

Holbach v. Dixon 2007 ND 60
Docket No.: 20060275
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A petition for a disorderly conduct restraining order must allege specific facts or threats that adversely affect the safety, security, or privacy of another person.
To comport with due process requirements in a disorderly conduct restraining order proceeding, a court can limit the petitioner's argument to the dates alleged and the facts contained in the petition.

State v. Georgeson 2007 ND 59
Docket No.: 20060211
Filing Date: 5/1/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

Olsson v. Workforce Safety and Insurance, et al. 2007 ND 58
Docket No.: 20060371
Filing Date: 5/1/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming the decision of Workforce Safety and Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).