Opinions

Johnson v. Nodak Mutual Ins. Co. 2005 ND 112
Docket No.: 20040293
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: An insurer's payment for an insured's independent medical examination is not a no-fault benefit for purposes of a statute of limitations that requires actions for further benefits to begin no later than four years after the last payment of benefits.
A motion for relief from a judgment may not be used to provide a litigant with a second chance to present new legal theories to a court.

Brandner v. Brandner 2005 ND 111
Docket No.: 20040236
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The trial court must determine net marital worth by considering all property and debt accumulated by the parties.
A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.
A trial court's decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.

Berlin v. State 2005 ND 110
Docket No.: 20050030
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A court may summarily dismiss a facially invalid application for post-conviction relief.

Disciplinary Board v. Edin (Consolidated w/ 20050011) 2005 ND 109
Docket No.: 20050010
Filing Date: 6/7/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law from the date of his interim suspension to the date this opinion is filed and ordered to pay the costs and attorney's fees for the disciplinary proceeding.

Martin, et al. v. Berg, et al. 2005 ND 108
Docket No.: 20050001
Filing Date: 6/6/2005
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: On appeal from a summary judgment, the Supreme Court decides whether the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law.
Where the language of a will is clear and unambiguous, the testator's intent must be determined from the language of the will.

Estate of Kimbrell (Consolidated w/20040322) 2005 ND 107
Docket No.: 20040226
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The surviving spouse of a decedent occupying real property as a homestead receives the right to possession, use, control, income, and rents of the property for life or until the surviving spouse again marries, limited in size and value to the land and the dwelling house, with all its appurtenances and other improvements, not to exceed $80,000 in value, over and above liens and encumbrances.

Klindt, et al. v. Pembina Co. Water Resource Bd., et al. 2005 ND 106
Docket No.: 20040299
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Landowners are not required to appeal a water resource board's determination of benefits of a project to the state engineer if the cost of the project is less than $100,000.
A water resource board may find that an entire watershed would be benefited by a snagging and clearing project.
All land that will be benefited by a water project should be assessed the cost of the project.
The participation of a water resource board member who should have been disqualified in establishing a project does not require nullification of the project unless his presence was necessary to constitute a quorum and his vote determined the result.
Successful litigants are not entitled to attorney fees unless authorized by contract or statute.

State v. Driscoll 2005 ND 105
Docket No.: 20040292
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A magistrate's probable-cause decision is reviewed using a totality-of-the-circumstances test. A substantial basis for the magistrate's conclusion must exist.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence can establish this nexus.
Unsupported and conclusory statements are alone insufficient to establish probable cause.
If an accepted, reasonable theory of probable cause subsequently proves to be untrue or unfounded, it does not retroactively undermine a previously correct conclusion that probable cause to search existed, invalidate a properly issued search warrant, or release a criminal actor from culpability for crimes uncovered during the execution of the search warrant.
In executing a valid search warrant, police may inspect and open any item that could reasonably contain the objects of the search, regardless of whether these items are personal or private or specifically particularized in the search warrant.

People to Save the Sheyenne River v. ND Dept.of Health (CON. w/20040377) 2005 ND 104
Docket No.: 20040376
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: In the absence of an adjudicative proceeding and findings of fact, appellate review of an administrative agency decision to issue a Pollutant Discharge Elimination System permit is to determine whether the decision is arbitrary, capricious, or unreasonable.

City of Grand Forks v. Lamb 2005 ND 103
Docket No.: 20040196
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: VandeWalle, Gerald

Highlight: When a defendant appeals to the district court from a conviction in municipal court, the district court does not review the record and decision of the municipal court, but holds a new trial and independently determines whether the defendant has violated the ordinance.
A notice of appeal filed after the municipal court has announced its decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
When a city has the authority to regulate a certain subject, an ordinance is presumed valid and the burden is upon the party challenging the ordinance to demonstrate how the city exceeded its authority.