Opinions

Estate of Zimmerman (Consolidated w/20010002) 2001 ND 155
Docket No.: 20000361
Filing Date: 8/30/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: Under the probate law in effect before January 1996, a surviving spouse's property is includable in the decedent's augmented estate to the extent the property was derived from the decedent without full consideration in money or money's worth.
Property distributed to a surviving spouse in a prior divorce from the decedent is derived from the decedent without full consideration in money or money's worth.

Rose v. United Equitable Ins. Co., et al. 2001 ND 154
Docket No.: 20000333
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: A fraud action is not barred by the passage of time until six years after discovery of the facts constituting the fraud.
The purpose of a motion for dismissal for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the statement of the claim presented in the complaint.
When a motion for dismissal for failure to state a claim upon which relief can be granted is made, the complaint is construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true.
A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

State v. Bouck (CONSOLIDATED W/20000347-20000348)(cross-ref. 20010045-46) 2001 ND 153
Docket No.: 20000346
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Contempt of Court
Author: Kapsner, Carol

Highlight: When the law prescribes a place of imprisonment to which a convicted defendant can be sentenced, the court cannot direct a different place of incarceration, and, if it does, the sentence is void and the defendant is entitled to resentencing.

Doan, et al. v. City of Bismarck, et al. 2001 ND 152
Docket No.: 20010042
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Summary judgment rarely should be granted in negligence cases because issues involving reasonableness standards generally are inappropriate for summary disposition.
A landowner owes a duty to lawful entrants to maintain property in a reasonably safe condition in view of all the circumstances and owes a duty to an injured party if the landowner has control over the property where the injury occurred.
Under the doctrine of retained control, an employer who hires an independent contractor is liable for harm to others for whom the employer owes a duty to exercise reasonable care, if the employer retains control of an part of the work and causes harm by failing to exercise such control with reasonable care.
In negligence actions, customs or practices do not necessarily establish the standard of care, but may be evidence of whether conduct meets the general standard of reasonable care under the circumstances.

McKenzie Co. Social Service Bd., et al. v. C.G. (CONFIDENTIAL) 2001 ND 151
Docket No.: 20010047
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A judgment entered without personal or subject matter jurisdiction is void.
Determining the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them.
Affirmative relief is not available under N.D.R.Civ.P. 60(b)(iv).

State v. Wiest 2001 ND 150
Docket No.: 20000306
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Without an objection to testimony at trial, appellate review is limited to determining if its admission constituted obvious error affecting substantial rights.
A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless the court abused its discretion.

Higgins v. Trauger (Consolidated w/20010074) 2001 ND 149
Docket No.: 20010073
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: When a failure to timely redeem from a tax sale is attributable in part to the neglect of the redemptioner, and not wholly to a mistake made by the county auditor, equitable principles do not apply to extend the redemption period.
A person who owes a duty to pay taxes on property and who fails to pay the taxes, cannot in collusion with others purchase tax sale certificates for the property to strengthen the person's title.

Stoppler v. Stoppler 2001 ND 148
Docket No.: 20000330
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
A trial court's determination on visitation is treated as a finding of fact.
To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property.
A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.

Heinz v. Heinz 2001 ND 147
Docket No.: 20000298
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: A lengthy marriage supports an equal division of all marital assets.
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
Spousal support payments must be included in computing monthly net income for child support purposes.

State v. Shafer-Imhoff 2001 ND 146
Docket No.: 20000350
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Application of N.D.C.C. 1-02-17 to eliminate the punishment of imprisonment for a criminal statute that was repealed after the criminal act was committed but before conviction, is not an invalid pardon.
A trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of the applicable law.
When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute.
After the jury has advised the court of an impasse, the court may employ more than one N.D.R.Ct. 6.9 option without being advised again of an impasse.