Opinions

Ungar v. ND State University 2006 ND 185
Docket No.: 20050340
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: Res judicata, or 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 resulting final judgment from a court of competent jurisdiction. Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or must have been litigated, and decided in the prior action.
For the district court to have subject-matter jurisdiction over a university professor's claims against the university, the plaintiff must comply with the statutory notice of claim requirements and exhaust the internal administrative remedies.

State v. Dailey 2006 ND 184
Docket No.: 20060030
Filing Date: 8/24/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: After a jury's verdict has been announced, a trial judge may explain to a jury what will occur after the trial has ended.

Peoples State Bk. of Truman v. Molstad Excavating, et al. 2006 ND 183
Docket No.: 20050444
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Part of the law of the case doctrine provides that the orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another's orders and revisit them only in special circumstances.
The law of the case is not violated and reconsideration of prior orders is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative.
Construction of a written contract to determine its legal effect is a question of law, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation.
To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.

Clark v. Clark 2006 ND 182
Docket No.: 20050436
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decisions to admit expert testimony or deny a continuance will not be reversed absent an abuse of discretion.
A district court's decision whether to allow children to testify about their custody preference is reviewed under the abuse of discretion standard.
Rotating custody arrangements are in a child's best interests only if the parents are able to cooperate and set aside their differences and conflicts in their role as parents.
A district court's custody decision under the best-interest-of-the-child analysis is subject to the clearly erroneous standard of review.
Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, as a matter of law, a district court must clearly set forth how it arrived at the amount of income and the level of support.
A district court cannot include depreciation deductions in income when determining an obligor's child support obligation.

Hagel v. Hagel 2006 ND 181
Docket No.: 20050434
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to perform its appellate function.

Mountrail Bethel Home v. Lovdahl, et al. 2006 ND 180
Docket No.: 20060002
Filing Date: 8/16/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court must make findings on issues a party raises and presents evidence on.

State v. Woinarowicz 2006 ND 179
Docket No.: 20060032
Filing Date: 8/16/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The Sixth Amendment Confrontation Clause does not apply to the same extent at pretrial suppression hearings as it does at trial.
A district court is not bound by the Rules of Evidence at pretrial evidentiary hearings.
Constructive possession of a controlled substance may be established by showing the individual had the power and ability to exercise dominion and control over the controlled substance.
An arrestee's person and purse may be searched incident to arrest.

Heng v. Rotech Medical Corp., et al. 2006 ND 176
Docket No.: 20050311
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Issues cannot be raised for the first time on appeal.
Whether an employee has established a prima facie case of retaliatory discharge is a question of law fully reviewable on appeal.
An employer's failure to follow its own policies may support an inference of pretext, but not when the departure in policy is applied to all employees.
The admission of deposition testimony under N.D.R.Civ.P. 32(a) lies within the district court's discretion.
A comparison of hours and rates charged by opposing counsel is probative of the reasonableness of a request for attorney fees by prevailing counsel.
Mediation fees may not be awarded as an allowable cost if the parties have contractually agreed to share those expenses.
Electronic legal research fees are a component of attorney fees and cannot be separately taxed as costs.

State ex rel. ND Housing Finance Agency v. Center Mutual Ins. Co. 2006 ND 175
Docket No.: 20050224
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: An instrument payable to multiple payees non-alternatively may only be negotiated, discharged, or enforced by all of them.
Payment of a check by a payor bank to one joint payee over the forged endorsement of another payee does not discharge the drawer's obligation on the instrument, and the payee has an action against the drawer on the instrument.
A check containing a forged endorsement is not "properly payable" under N.D.C.C. 41-04-32(1), and the drawer has a right to reimbursement of the amount of the check to its account if its bank accepts and pays the check.

Hunt v. Banner Health System 2006 ND 174
Docket No.: 20050402
Filing Date: 7/30/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The presence of a clear, conspicuous, and unambiguous disclaimer may act as an "escape hatch" in an employee handbook, virtually undoing other implied promises made in the handbook.
The language in an employee manual simply stating it does not guarantee employment does not preclude the manual from being an employment contact.