Opinions

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Highlight: Application of N.D.C.C. 1-02-17 to eliminate the punishment of imprisonment for a criminal statute that was repealed after the criminal act was committed but before conviction, is not an invalid pardon.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.

Farmers Alliance Mutual Ins. Co. v. Hulstrand Construction, Inc. 2001 ND 145
Docket No.: 20010054
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: Absent concerted action, there is no third-party claim for contribution among tortfeasors under North Dakota law.
When the parties to a contract agree to modify or alter the terms of their original contract, the new agreement ordinarily must be supported by new or additional consideration.
When the parties to a contract sign a subsequent agreement which is intended to merely clarify or explain the terms of the original contract, no new or additional consideration is necessary.

Eggl v. Letvin Equipment Co. 2001 ND 144
Docket No.: 20000318
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A trial court's determinations on questions of breach of warranty are treated as findings of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a).
Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact.
Questions of nonconformity with a contract, substantial impairment of value, and timely notice of revocation are questions of fact.
The time for discovering a breach of warranty and what is a reasonable time for revocation of acceptance are fact questions.
A buyer's right of revocation is not conditioned upon whether it is the seller or the manufacturer that is responsible for the nonconformity.

Interest of N.H., et al. (CONFIDENTIAL) 2001 ND 143
Docket No.: 20000278
Filing Date: 8/29/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Prognostic evidence is a basis for reasonable predictions about future behavior when determining whether a child's deprivation is likely to continue or will not be remedied. Prognostic evidence includes reports and opinions of professionals.
Lack of parental cooperation with social service agencies is insufficient to establish deprivation but is pertinent to whether deprivation will continue.

Interest of H.G. (CONFIDENTIAL) 2001 ND 142
Docket No.: 20010197
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's involuntary commitment order is reviewed under a more probing clearly erroneous standard.
Even though mentally ill, engaging in imprudent business practices is not enough to find a respondent presents a substantial likelihood of dangerousness to property and is, therefore, a person requiring treatment.

Gale v. ND Bd. of Podiatric Medicine 2001 ND 141
Docket No.: 20010032
Filing Date: 7/30/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A party to an administrative proceeding may waive the right to an appeal.

Lapp v. ND Dept. of Transportation 2001 ND 140
Docket No.: 20010040
Filing Date: 7/25/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: In determining whether an officer had a reasonable and articulable suspicion to justify an investigatory stop, the test is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.
Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct.

Rodenburg, et al. v. Fargo-Moorhead Y.M.C.A., et al. 2001 ND 139
Docket No.: 20000279
Filing Date: 7/23/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: In reviewing a jury's findings, the evidence is viewed in the light most favorable to the verdict and the court determines only if substantial evidence supports it.
A motion for a new trial is addressed to the sound discretion of the trial court.
If nonresidents purposely direct their activities toward North Dakota, a North Dakota court may be justified in exercising personal jurisdiction over them.
Under North Dakota's comparative fault law, "fault" includes negligent and intentional conduct; a negligent tortfeasor's conduct is compared with an intentional tortfeasor's conduct, and their liability is several, not joint, with each being liable only for the amount of damages attributable to that party.

Selzler v. Selzler 2001 ND 138
Docket No.: 20000247
Filing Date: 7/20/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given.
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the proceeding.

Interest of R.O., et al. (CONFIDENTIAL)(CONSOLIDATED W/20000307) 2001 ND 137
Docket No.: 20000305
Filing Date: 7/20/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: In a parental-rights-termination proceeding alleging reports of child abuse or neglect, N.D.C.C. 50-25.1-10 abrogates the physician-patient and psychotherapist-patient privilege in N.D.R.Ev. 503.
Constitutional issues may not be raised for the first time on appeal.
Under federal law, upon a finding of good cause, a trial court may order disclosure of information about a person's alcohol or drug treatment at a federally assisted facility, but the court must restrict disclosure to essential matters.