Opinions

Fast v. Mayer 2005 ND 37
Docket No.: 20040200
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When a trial court considers restrictions on a noncustodial parent's visitation rights, the standard of proof required is a preponderance of the evidence.
A custodial parent seeking to prevent the noncustodial parent from having unsupervised visitation must establish, by a preponderance of the evidence, that physical or emotional harm will likely result from allowing the noncustodial parent unsupervised visitation.

Mann, et al. v. ND Tax Commissioner, et al. 2005 ND 36
Docket No.: 20040174
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Tax Realted
Author: Kapsner, Carol

Highlight: A final order or judgment is necessary for appealability in an injunction action.
An appeal from an order denying reconsideration does not present the Supreme Court with the merits of the original order requested to be reconsidered, but presents for review only whether the district court abused its discretion in deciding the movant either did or did not offer sufficient grounds to reconsider the previous decision.
The Supreme Court exercises its supervisory jurisdiction over lower courts rarely to rectify errors or to prevent injustice when no adequate alternative remedies exist.

Brandt, et al. v. Somerville, et al. 2005 ND 35
Docket No.: 20040112
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: N.D.C.C. ch. 10-19.1 governs claims for breaches of fiduciary duties by those in control of a close corporation, and a trial court's findings about claims for breaches of fiduciary duties are reviewed under the clearly erroneous rule.
An agreement to restrict the transfer of stock of a close corporation will be upheld unless the price or terms of the agreement are unreasonable under all the circumstances.
In a shareholder action, a trial court has discretion to determine an appropriate remedy for violations of N.D.C.C. ch. 10-19.1 by those in control of a close corporation.

Tibert, et al. v. Slominski, et al. 2005 ND 34
Docket No.: 20040198
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: The agricultural nuisance shield of N.D.C.C. 42-04-02 extends to all corporations and limited liability companies that meet the requirements of N.D.C.C. 42-04-01 regardless of whether they meet the more limited requirements of the corporate farming law.
A claim for trespass cannot stand unless the evidence demonstrates an actual interference with the property of another.

Beckler v. Workforce Safety and Insurance 2005 ND 33
Docket No.: 20040130
Filing Date: 2/16/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: A claimant seeking reinstatement of discontinued disability benefits must show a significant change in his compensable medical condition and an actual wage loss caused by the change in medical condition.
To prove actual wage loss, a claimant must show that he was earning wages from employment when the change in his medical condition occurred.
An appeal of an administrative agency decision invokes the appellate jurisdiction of the district court, and the court's review must be based only on the administrative record filed with the court.

Pratt v. Altendorf 2005 ND 32
Docket No.: 20040163
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Dismissal of a civil action, without prejudice, is ordinarily not appealable, but it is considered final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The notice requirement, under N.D.C.C. 4-35-21.1(1), for civil actions arising out of the application of pesticide inflicting damage on property, does not apply to an action for breach of contract alleging the applicator did not provide services in a timely manner.

Wigginton v. Wigginton 2005 ND 31
Docket No.: 20040153
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of restricted visitation is not clearly erroneous when based on evidence in the record.
The effective date of a child support obligation can be different from the date of the motion to modify if there are sufficient good reasons for it.
An allocation of income tax dependency exemptions, based on the evidence in the record, is not clearly erroneous.

State v. Buchholz 2005 ND 30
Docket No.: 20040118
Filing Date: 2/16/2005
Case Type: Appeal - Criminal - Other
Author: Neumann, William

Highlight: Statutory construction is a question of law, fully reviewable on appeal. Statutes are not interpreted in a manner that would render part of the statute mere surplusage.
Mistake of law is an affirmative defense that must be proved by a preponderance of the evidence at trial. It cannot be used to overcome a charged offense at a preliminary hearing.

Guardianship of Topp 2005 ND 29
Docket No.: 20040185
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: A trial court's order on incapacitation and guardianship is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of T.C.R. (CONFIDENTIAL) 2005 ND 28
Docket No.: 20040217
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order modifying child support to conform to the child support guidelines is summarily affirmed under N.D.R.App.P. 35.1(a)(4).