Opinions

Horsley v. ND Workers Comp., et al. 2001 ND 60
Docket No.: 20000237
Filing Date: 3/20/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: Before a valid judgment can be entered, an order for judgment is required.
An appeal may be taken from a judgment entered without an order for entry of judgment if the trial court intended to dispose of the case and intended that a judgment be entered and if an order for judgment is implicit in the trial court's memorandum opinion.

Interest of A.L. and J.L. (CONSOLIDATED w/20000218-20000220) 2001 ND 59
Docket No.: 20000217
Filing Date: 3/20/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: Counsel's unsupported statements about children's potential eligibility for enrollment in a particular Indian tribe and other unknown Indian tribes are insufficient to trigger provisions of the Indian Child Welfare Act that require notice of termination proceedings to an Indian child's tribe.
Evidence of past deprivation alone is not enough to terminate parental rights, and prognostic evidence is necessary to determine continued or future deprivation.

Overboe v. Farm Credit Services of Fargo, et al. 2001 ND 58
Docket No.: 20000236
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The two-year statute of limitations for actions against licensed insurance agents is retroactive and applies to causes of action occurring before July 31, 1995.
A single reference to due process in one sentence of a brief, made in connection with an argument about legislative intent, is insufficient to challenge the constitutional validity of a statute.

State v. Schmitt 2001 ND 57
Docket No.: 20000037
Filing Date: 3/20/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: If a court finds false statements in an affidavit supporting a search warrant, the court must find whether those statements were included intentionally or with reckless disregard for the truth and must evaluate probable cause accordingly.
The mere recitation of testimony is not equivalent to a finding of fact.
Conclusory findings of fact which state a party has failed in the burden of proof are inadequate.

Ritter, Laber & Assoc., et al. v. Koch Oil, et al.(cross reference w/990204) 2001 ND 56
Docket No.: 20000224
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Neumann, William

Highlight: A trial court has broad discretion to certify an action as a class action under N.D.R.Civ.P. 23.
As a class action progresses and the parties develop evidentiary facts, a trial court may redefine, subclassify, or decertify a previously certified class action.

Disciplinary Board v. Hawkins 2001 ND 55
Docket No.: 20000233
Filing Date: 3/20/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney who is disciplined in another jurisdiction is also subject to reciprocal discipline in North Dakota if admitted to practice law in North Dakota, regardless of whether the attorney currently is licensed to practice law in North Dakota.
Reciprocal discipline shall be identical in this state, unless the proceedings in the jurisdiction initiating the discipline lack due process or proof of misconduct, or unless identical punishment would result in grave injustice or the misconduct warrants substantially different discipline.
An attorney is not denied due process in disciplinary proceedings if there is adequate notice of the charges and an opportunity to be heard.
Imposing identical reciprocal discipline is not a grave injustice when an attorney is not licensed in North Dakota and does not intend to reapply for licensure.

Rogstad v. Dakota Gasification Co. 2001 ND 54
Docket No.: 20000242
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: An employer who retains the right to control the method, manner, and operative detail of an independent contractor's work is subject to liability for physical harm to employees of the independent contractor for whose safety the employer owes a duty to exercise reasonable care.
An employer's duty to exercise reasonable care for the employee of an independent contractor may arise through express contractual provisions retaining the right to control some part of the operative details of the independent contractor's work or through the employer's actual exercise of retained control of the work.

Estate of Dion 2001 ND 53
Docket No.: 20000178
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: An assertion that an action is one against a political subdivision and that prospective jurors are taxpayers of the political subdivision is insufficient in itself to effect a change of venue.
A court has no power to order a person to execute a will.
For the issue of undue influence to be submitted to a jury, the evidence must create more than just a mere suspicion of undue activity.
A will contestant has the burden of proving testamentary incapacity by a preponderance of the evidence.
An award of attorney fees for a frivolous claim lies within the sound discretion of the trial court.

Global Acquisitions, LLC v. Broadway Park Limited Partnership, et al. 2001 ND 52
Docket No.: 20000132
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: In a bench trial, the court must make findings of fact and conclusions of law sufficient to enable the appellate court to understand the factual determination and the basis for the conclusions of law and the judgment entered.
Reliance on the conduct of the party against whom equitable estoppel is asserted must be reasonable, and there must be some form of affirmative deception by that party.

McPhee, et al. v. Tufty, et al. 2001 ND 51
Docket No.: 20000047
Filing Date: 3/20/2001
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Whether the family car doctrine applies depends on the totality of the circumstances, and is a question of fact for the trier of fact to decide.
In deciding whether a vehicle was "used" by an insured when a third party was actually driving the insured's vehicle, courts analyze two factors: (1) whether the vehicle was under the supervision and control of the insured; and (2) whether the vehicle was being operated to serve a purpose of the insured.
Coverage of a newly acquired vehicle is automatic if notice is given within 30 days of its acquisition.