Opinions

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.

State v. Bjerklie 2006 ND 173
Docket No.: 20050438
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A court's ruling on a motion in limine is reviewed for abuse of discretion.
A court abuses its discretion in granting a motion in limine when it acts in an arbitrary, unreasonable or unconscionable manner.

Deacon's Development v. Lamb, et al. 2006 ND 172
Docket No.: 20050147
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Attorney fees may be recovered if a court finds a party made a frivolous "claim for relief."
A court does not have authority to award attorney fees based on a position a party took prior to litigation.

Dvorak v. Dvorak (cross-ref. w/20040222) 2006 ND 171
Docket No.: 20050405
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.

Weinreis, et al. v. Hill, et al. 2006 ND 170
Docket No.: 20060026
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A principal is bound by acts of his agent under a merely ostensible authority to those persons only who in good faith and without ordinary negligence have incurred a liability or parted with value upon the faith thereof.
A district court's determination of negligence is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.

State v. Salveson (Consolidated w/20060016) 2006 ND 169
Docket No.: 20060015
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.

State v. Campbell (Consolidated w/20050337 & 20050338) 2006 ND 168
Docket No.: 20050326
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
A defendant can waive a potential Confrontation Clause violation by failing to exercise a statutorily defined opportunity to subpoena the author of the state crime laboratory report.

The Ramsey Financial Corp. v. Haugland, et al. 2006 ND 167
Docket No.: 20050375
Filing Date: 7/26/2006
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: Voluntary acquiescence in a judgment waives the right to appeal.
Absent fraud, the procedure for asserting dissenting shareholders' rights under N.D.C.C. 10-19.1-87 and 10-19.1-88 is an exclusive remedy.