Opinions

Anderson v. Jacobson 2001 ND 40
Docket No.: 20000064
Filing Date: 2/21/2001
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A jury special verdict will be set aside on appeal only if it is perverse and contrary to the evidence.
The court on appeal will reconcile alleged inconsistent findings of a jury by examining both the law of the case and the evidence to determine whether the verdict is logical and probable.
Unopposed jury instructions become the law of the case.

Runge v. Runge 2001 ND 39
Docket No.: 20000121
Filing Date: 2/20/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Judgment valuing and distributing marital property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Snyder v. ND Workers Comp. Bureau 2001 ND 38
Docket No.: 20000204
Filing Date: 2/20/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Unless otherwise provided, statutes in effect on the date of an injury govern workers compensation benefits.
Words not defined in a statute are to be understood in their ordinary sense.
If the Workers Compensation Bureau seeks reimbursement for benefits paid, the level of materiality required is proof a false claim or false statement caused the benefits to be paid in error.
A false claim or false statement is sufficiently material for forfeiture of future benefits if it could have misled the Bureau or medical experts in a determination of the claim.

Interest of C.H., et al. (CONFIDENTIAL) 2001 ND 37
Docket No.: 20000119
Filing Date: 2/20/2001
Case Type: Appeal - Civil - Juvenile Law
Author: VandeWalle, Gerald

Highlight: The juvenile court has exclusive original jurisdiction over proceedings concerning unruly children. The custodian has the right to determine the nature of the care, placement, and treatment of the child, except for any limits the court may impose. The underlying obligation of the juvenile court under the Uniform Juvenile Court Act is to protect the welfare of the children.

Schroeder, et al. v. Buchholz, et al. 2001 ND 36
Docket No.: 20000191
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The existence of a constructive trust must be proven by clear and convincing evidence. To establish a constructive trust, a party must prove the existence of both a confidential relationship and unjust enrichment.
A constructive trust is an equitable remedy, ultimately resulting in the plaintiff's receipt of formal legal title to the property.

Wetzel v. ND Dept. of Transportation 2001 ND 35
Docket No.: 20000186
Filing Date: 2/15/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: Whether a person has been afforded a reasonable opportunity to contact an attorney is a mixed question of law and fact.
The reasonableness of the opportunity given an arrestee to contact an attorney is tested objectively, focusing on the totality of the circumstances.

Peek v. Berning 2001 ND 34
Docket No.: 20000056
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of rotating physical custody is only appropriate after finding the parents can communicate and cooperate sufficiently to ensure the child's best interests would not be jeopardized by an alternating custody schedule.

K.L.G v. S.L.N. (CONFIDENTIAL) 2001 ND 33
Docket No.: 20000158
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Paternity
Author: VandeWalle, Gerald

Highlight: Upon request of the noncustodial parent, a court shall grant visitation that will enable the child and the noncustodial parent to maintain a parent-child relationship beneficial to the child.
Visitation between a child and a noncustodial parent is not merely a privilege of the noncustodial parent, but a right of the child.
Visitation with the noncustodial parent is presumed to be in the child's best interests.
A visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent's ability to foster and develop a relationship with the child.

Aalund v. ND Workers Comp. 2001 ND 32
Docket No.: 20000208
Filing Date: 2/15/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The failure to give the N.D.C.C. 28-32-11 perjury admonition in a discovery deposition does not preclude the admission of the deposition at an administrative hearing.
In appeals from administrative agencies, courts generally may consider only those issues identified in the specifications of error.
Section 65-05-33, N.D.C.C., authorizes the forfeiture of any additional benefits if a claimant willfully makes a material false statement regarding a claim for benefits.

Northrop v. Northrop 2001 ND 31
Docket No.: 20000157
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court must articulate a rationale for a substantial disparity in the distribution of the marital estate.

Moszer, et al. v. Witt (CONSOLIDATED w/20000203) 2001 ND 30
Docket No.: 20000202
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A jury verdict which assesses fault to a person after finding the person's negligence was not a proximate cause is a clearly inconsistent and perverse verdict.
Litigating parties have a right to have exceptions noted to the instructions to which they did not agree.
A party is entitled to a new jury trial when the court so injects itself into the jury deliberation process on the merits that the parties have been denied their right to have the jury determine the facts on the instructions given to them as approved by the parties.
When a party challenges the constitutionality of an act in an action where neither the state nor an agency or officer thereof is a party, the party raising the constitutional issue must notify the attorney general, who may then intervene on behalf of the State.

Vogel v. Braun, et al. 2001 ND 29
Docket No.: 20000193
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A prison inmate may access funds in his release aid account if authorized by the warden.
A trial court may deny a motion to proceed in forma pauperis if the action is totally without merit.
A party requesting oral argument under N.D.R.Ct. 3.2(a) cannot complain about a lack of notice of a time change brought about at his request.

Greenwood v. Paracelsus Health Care, et al. 2001 ND 28
Docket No.: 20000175
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Malpractice
Author: Neumann, William

Highlight: Section 28-01-46, N.D.C.C., which requires an affidavit of an expert to support an allegation of medical malpractice, does not apply once the trial has begun.
To establish a prima facie case of medical malpractice, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the alleged harm.
A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician.

Strutz v. State 2001 ND 27
Docket No.: 20000268
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A trial court's findings of fact in a post-conviction relief proceeding will not be disturbed unless clearly erroneous.

Carry Mocassin, et al. v. State Farm 2001 ND 26
Docket No.: 20000065
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Insurance
Author: Per Curiam

Highlight: Summary judgment dismissing claims for deceit, negligent misrepresentation, bad faith, and infliction of emotional distress is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Wilson v. State (cross-reference w/990193) 2001 ND 24
Docket No.: 20000229
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Weathers, et al. v. Peters, et al. 2001 ND 23
Docket No.: 20000141
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Denial of Motion to Exclude Evidence of results of a Blood Alcohol Concentration test and Judgment on Jury Verdict dismissing claims on the merits and with prejudice are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Fredericks v. American Federal Bank 2001 ND 22
Docket No.: 20000150
Filing Date: 2/5/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment awarding employee severance benefits is summarily affirmed under N.D.R.App.P 35.1(a)(2).

Wanstrom v. ND Workers Comp. Bureau, et al. (cross-reference w/990306) 2001 ND 21
Docket No.: 20000187
Filing Date: 2/2/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The presumption that a firefighter's lung disease was suffered in the line of duty is based on a legislatively adopted premise that a firefighter's occupational exposure to smoke causes lung disease, and the presumption cannot be rebutted by expert medical opinion rejecting that underlying premise.

Kautzman, et al. v. McDonald, et al. 2001 ND 20
Docket No.: 20000156
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Absent the timely filing of a notice of claim against the state or one of its employees, the court lacks subject matter jurisdiction to entertain a lawsuit against them.
When a plaintiff brings an action for intentional infliction of emotional distress, the court must initially decide whether a defendant's conduct reasonably may be regarded as "extreme and outrageous."
The owner of a domestic animal which is killed or injured by the negligent or willful act of a third person proximately resulting in that death or injury is entitled to recover for the loss suffered.
The decision by law enforcement officers whether the plaintiffs' dogs posed a danger to the officers or to others, thereby justifying the dogs' destruction, does not fall within the discretionary function exception to political subdivision liability.

Schmitz v. Schmitz (cross-ref. w/980056) 2001 ND 19
Docket No.: 20000133
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Spousal support payments may be modified only upon a showing of a material change in circumstances justifying the modification.

Barrera v. State (cross-ref. w/970010 & 960021) 2001 ND 18
Docket No.: 20000195
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: It is a misuse of process to raise issues on subsequent post-conviction applications that could have been raised in the initial post-conviction application.

Des Lacs Valley Land Corp. v. Herzig, et al. 2001 ND 17
Docket No.: 20000033
Filing Date: 2/1/2001
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: In the absence of fraud, mistake, or accident, an unambiguous written deed cannot be altered by parol evidence.
A trial court decision will not be set aside because the court applied an incorrect rationale, if the result is the same under the correct law and rationale.

Eckes v. Richland Co. Social Service Board, et al. 2001 ND 16
Docket No.: 20000142
Filing Date: 2/1/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The unambiguous settlor's intent determines the nature of the trust.

Owens v. State (CONSOLIDATED W/20000129) (CROSS-REF SEE DOCKET MEMO) 2001 ND 15
Docket No.: 20000128
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Post-conviction relief is denied for misuse of process when a petitioner presents issues the petitioner inexcusably failed to raise in a previous post-conviction hearing.

State ex rel. Dept. of Corrections and Rehabilitation v. Haskell, et al. 2001 ND 14
Docket No.: 20000214
Filing Date: 1/30/2001
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Maring, Mary

Highlight: The Supreme Court exercises its discretionary authority to issue supervisory writs on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.
Failure of a plaintiff to present a notice of claim, as required by N.D.C.C. 32-12.2- 04, renders the district court without jurisdiction.

Hurt v. Hurt 2001 ND 13
Docket No.: 20000177
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Evidence of domestic violence which does not trigger the statutory presumption under N.D.C.C. 14-09-06.2(1)(j) remains one of the best interest factors to be considered by the court.
A guardian ad litem's recommendation on child custody is not conclusive.
A trial court's custody determination is a finding of fact that is not set aside on appeal unless clearly erroneous.

City of Harvey v. Fettig 2001 ND 12
Docket No.: 20000185
Filing Date: 1/30/2001
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: The prosecutor's statement supporting an appeal from a suppression order cannot be a mere paraphrase of the statutory language, but must explain the relevance of and need for the evidence which was suppressed.

Nord, et al. v. Herrman, et al. 2001 ND 11
Docket No.: 20000063
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Any survey method that results in equitable allocation of a new shoreline in proportion to each owner's share of the original shoreline will satisfy the legal requirement of proportional allocation.
When a trial court is faced with conflicting opinions by expert witnesses for the parties, and the court could have relied on either party's expert witness, the court's choice between the two permissible views of the weight of the evidence is not clearly erroneous.
Changes in property boundaries caused by rising and falling waters is a natural consequence of riparian land ownership.
A quiet title judgment is not binding on other property owners in the area who were not made parties to the action and who might have a claim to the subject property.

Interest of J.S. (CONFIDENTIAL-M.H.) 2001 ND 10
Docket No.: 20000344
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Expedited appeals under the mental health law are limited to the procedures, findings, and conclusions of the lower court. Because of this limited review, detailed findings are necessary.
A mental health patient has the right to the least restrictive conditions necessary to achieve the treatment purposes.

Clark v. State 2001 ND 9
Docket No.: 20000296
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: Under Apprendi v. New Jersey, 120 S.Ct. 2348, 2355 (2000), any fact, other than prior convictions, that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury and proved beyond a reasonable doubt.

Doyle v. Sprynczynatyk 2001 ND 8
Docket No.: 20000244
Filing Date: 1/30/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Points on a driving record must be reduced for completion of a defensive driver course only if the points are accumulated prior to completing the course. Points accumulate when entered on the driving record, not at the date of the traffic citation or conviction.

Disciplinary Board v. Howe 2001 ND 7
Docket No.: 20000211
Filing Date: 1/30/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer's conduct involving dishonesty, fraud, deceit, or misrepresentation generally results in suspension from the practice of law.

Reiser v. Reiser 2001 ND 6
Docket No.: 20000194
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: In dividing the marital estate, fault causing deterioration of the marriage is a relevant factor under the Ruff-Fischer guidelines.
In awarding attorney fees in a divorce proceeding, fault is only relevant to the extent one party has unreasonably escalated the fees.

State v. Kelly 2001 ND 5
Docket No.: 20000154
Filing Date: 1/30/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Judgment of conviction for gross sexual imposition, attempted gross sexual imposition, felonious restraint, and theft summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Marschner v. Marschner 2001 ND 4
Docket No.: 20000172
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A spouse is disadvantaged 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. A disadvantaged spouse is not required to deplete a property distribution in order to live.
A valid consideration in awarding spousal support is balancing the burden created by divorce. A trial court cannot consider issues of property division and spousal support separately, in a vacuum, but must examine those issues together.

City of Fargo v. Salsman 2001 ND 3
Docket No.: 20000205
Filing Date: 1/30/2001
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Per Curiam

Highlight: The trial court's judgment of conviction for a violation of Fargo Municipal Code is affirmed under N.D.R.App.P. 35.1(a)(2).

Englund v. State (Consolidated w/20000251 through 20000254) 2001 ND 2
Docket No.: 20000250
Filing Date: 1/30/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Petition for Change of Designation of Judgeship No. 1 2001 ND 1
Docket No.: 20000362
Filing Date: 1/3/2001
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Petition to move chambers of Judgeship No. 1 in the Southwest Judicial District from Dickinson to Bowman denied.

Estate of Lutz (Cross-Ref. w/960177 & 980390) 2000 ND 226
Docket No.: 20000098
Filing Date: 12/29/2000
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Neumann, William

Highlight: Whether services performed by a family member are so exceptional and extraordinary as to imply a contract to pay for those services is a question of fact.
Lack of legal advice to a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital agreement, but the presence of independent counsel is not a prerequisite to enforceability.
Separate statutes under the Uniform Premarital Agreement Act govern unconscionability at the time the agreement was executed, unconscionability at the time of separation or marital dissolution, and unconscionability that may result from enforcement at any time, including the time of death.
A spouse can waive any right of inheritance and succession in a valid and enforceable premarital agreement and consent to will.
Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement.

Jacobson v. ND Workers Comp. Bureau 2000 ND 225
Docket No.: 20000102
Filing Date: 12/29/2000
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A willful false claim or false statement is sufficiently material for forfeiture of future benefits if it is a statement which could have misled the Bureau in a determination of the claim.
Before terminating a claimant's disability benefits, due process requires the Bureau to give the claimant pre-termination notice of its intent to terminate benefits, a summary of the evidence, and an opportunity to respond. The post-deprivation hearing must be provided at a meaningful time, as required by the due process clause.

Berger v. ND Workers Comp. et al. 2000 ND 224
Docket No.: 20000153
Filing Date: 12/27/2000
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: An owner of a business is not entitled to workers compensation benefits without securing optional coverage.
In determining whether a claimant was an employee or an owner when he was injured, the rules for determining whether a person is an independent contractor or an employee, do not apply, and the Bureau may consider other evidence or factors.

State v. Helmenstein 2000 ND 223
Docket No.: 20000062
Filing Date: 12/27/2000
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Voluntariness of a confession is determined by the totality of the circumstances, focusing on the characteristics and condition of the accused at the time of the confession, as well as the details of the setting in which the confession was obtained.
Miranda warnings are required when a person is in custody and is interrogated. Custody is a mixed question of law and fact and is fully reviewable on appeal.
The requirement of bringing a person before a magistrate without unnecessary delay is a factor to consider in evaluating the voluntariness of a confession. Unnecessary delay depends upon the circumstances of each case.
A change of venue rests in the sound discretion of the trial court and will not be reversed absent an abuse of discretion. A defendant challenging a denial of a change of venue must establish prejudice or establish that a fair and impartial jury could not be empaneled.

Interest of C.R.H. (CONFIDENTIAL) 2000 ND 222
Docket No.: 20000228
Filing Date: 12/21/2000
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: In terminating parental rights under N.D.C.C. ch. 27-20 the trial court has no authority to make the termination contingent on the terminated parents receiving visitation rights upon the child's adoption.

Disciplinary Board v. Keller 2000 ND 221
Docket No.: 20000225
Filing Date: 12/21/2000
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Once objections are filed by an attorney to a hearing panel's findings and recommendations, the appropriate procedure to address a claim of lack of notice of order for default is to move the Supreme Court to remand the matter to the Hearing Panel for consideration of a motion to vacate.

Superpumper, Inc. v. Nerland Oil (Cross-reference w/970307) 2000 ND 220
Docket No.: 20000103
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The automatic bankruptcy stay applies to actions against a non-debtor codefendant where there is such an identity between the debtor and the codefendant that the debtor is the real party defendant and a judgment against the codefendant is, in effect, a judgment against the debtor.

Pfeifle v. Tanabe 2000 ND 219
Docket No.: 20000134
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A lessee may terminate a lease and vacate the premises when the lessor fails to secure quiet possession of the premises within a reasonable time, considering the cumulative effect of long-standing and continuous problems.
Before vacating premises, a lessee must give notice to a lessor by requests to repair dilapidations or to secure quiet possession of leased property; however, such notice need not be in writing.
A lessee does not waive a right to terminate a lease by remaining in possession for a period after alleged problems occurred, when the problems continued throughout the period and the lessee repeated complaints and requests for repairs during the period.

Davenport v. State 2000 ND 218
Docket No.: 20000148
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.

Redfield v. Bitterman, et al. (CONSOLIDATED W/20000162 & 20000181) 2000 ND 217
Docket No.: 20000107
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Absent an abuse of discretion, the supreme court will not set aside a trial court's order on a motion for an extension of time to appeal, based upon excusable neglect.
Section 50-24.1-07, N.D.C.C., does not authorize recovery of medical assistance benefits from the estate of a recipient's spouse who predeceases the recipient, beyond assets to which the recipient had a legal title or interest.

Mondry v. Mondry 2000 ND 216
Docket No.: 20000207
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Judgment valuing and distributing marital property and awarding attorney fees is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4).

State v. Lee 2000 ND 215
Docket No.: 20000171
Filing Date: 12/21/2000
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgment of conviction for the felony offense of bail jumping is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Lawrence v. Delkamp (CONSOLIDATED W/20000151) 2000 ND 214
Docket No.: 20000061
Filing Date: 12/12/2000
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Under N.D.C.C. 14-09-06.2(1)(j), threats can constitute domestic violence for purposes of restricting visitation only if they constitute the infliction of fear of imminent physical harm.

Matrix Properties, Corp. v. TAG Investments, et al. (cross-ref. w/990336) 2000 ND 213
Docket No.: 20000192
Filing Date: 12/12/2000
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court's post-judgment order summarily affirmed under N.D.R.App.P. 35.1 (a)(1).

State v. Glass 2000 ND 212
Docket No.: 20000126
Filing Date: 12/12/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: DUI is a strict liability offense for which a jury instruction on culpability is not required.
Failure to preserve an objection or make an offer of proof precludes a later assertion of error unless a defendant establishes obvious error affecting the defendant's substantial rights. Obvious error is recognized only with extreme caution.

Syvertson v. Malaktaris, et al. 2000 ND 211
Docket No.: 20000146
Filing Date: 12/11/2000
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment dismissing a complaint under Rule 12(b), N.D.R.Civ.P., is summarily affirmed under N.D.R.App.P. 35.1.

Nodak Mutual Farm Bur. v. Kosmatka, et al. 2000 ND 210
Docket No.: 20000213
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: N.D.R.Civ.P. 54(b) allows final judgment adjudicating fewer than all claims or the rights and liabilities of fewer than all parties in multiparty litigation.
Rule 54(b) certification requires a showing of extraordinary circumstances or that unusual hardship will result in the absence of review.
Rule 54(b) certification is improper when subsequent proceedings in the trial court may render the appellate review moot.

Schultze v. Continental Ins. Co. 2000 ND 209
Docket No.: 20000135
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: When several claims are made against an insured, an insurer has a duty to defend the entire lawsuit if there is potential liability or a possibility of coverage for one of the claims.

Interest of W.E., et al. (CONFIDENTIAL)(Consolidated w/20000079 & 20000080) 2000 ND 208
Docket No.: 20000078
Filing Date: 12/7/2000
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: To terminate parental rights, a three-part test must be satisfied by clear and convincing evidence: (1) the child is deprived; (2) the conditions and causes of deprivation are likely to continue; and (3) the child is suffering or will suffer serious physical, mental, moral, or emotional harm.
Review of a termination proceeding is similar to a trial de novo, with appreciable weight afforded to the juvenile court's decision.

Jones v. Barnett 2000 ND 207
Docket No.: 20000140
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An action to rescind a quitclaim deed is barred by the statute of limitations when the seller fails to submit evidence she did not discover until years later she had been fraudulently induced to convey the property, when her own pleadings indicate knowledge of material facts accruing beyond the six-year limit for fraud claims.
The statute of frauds invalidates oral contracts for an interest in real property, and a contract action based on an alleged contract collateral to a quitclaim deed is barred by the statute of limitations when the alleged contract was executed beyond the six-year limit for contract actions.

Berlin v. State 2000 ND 206
Docket No.: 20000076
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, the defendant must prove the counsel's performance was deficient and the deficient performance prejudiced the result.
An application for post-conviction relief may be denied for misuse of process if the applicant presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding.

State v. Gleeson 2000 ND 205
Docket No.: 20000084
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: When there is sufficient doubt concerning a defendant's competency, a trial court must on its own motion conduct a hearing to determine whether the defendant is competent to stand trial.
Inconsistent testimony at trial and confusion regarding administrative and criminal proceedings do not create a sufficient doubt of a defendant's competency so as to warrant a hearing on the issue.

Mayo v. Mayo 2000 ND 204
Docket No.: 20000032
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.

Logan v. Bush 2000 ND 203
Docket No.: 20000090
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Erickstad (CONSOLIDATED W/20000051 and w/20000052 & 20000053)) 2000 ND 202
Docket No.: 20000050
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue for adverse pretrial publicity must demonstrate a reasonable likelihood of prejudice so pervasive that it is impossible to impanel a fair and impartial jury.
When a party fails to object to a proposed instruction, fails to specifically request an instruction, or fails to object to omission of an instruction, the issue is not adequately preserved for appellate review and inquiry is limited to whether the jury instructions as given constitute obvious error.
Evidence of value of a vehicle from the Kelley Blue Book Internet website may be admissible under the market report or commercial publication hearsay exception, N.D.R.Ev. 803(17).

Mathre v. State 2000 ND 201
Docket No.: 20000097
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Defense counsel should consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury, but failure to do so is not always ineffective assistance of counsel.
A defendant alleging ineffective assistance of counsel has a heavy burden to demonstrate her counsel's representation fell below an objective standard of reasonableness and she was prejudiced by counsel's deficient performance.

O'Neill v. O'Neill 2000 ND 200
Docket No.: 20000091
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A movant seeking change of custody, who brings allegations, supported by affidavit, demonstrating a custodial environment which may be endangering the childrens' physical or mental health, presents a prima facie case entitling the movant to an evidentiary hearing.
If the allegations of a movant seeking a modification of child custody are so unfounded and unsupported as to render them false and not made in good faith, the court can award costs and reasonable attorney fees.

State v. Gehring 2000 ND 199
Docket No.: 20000114
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denial of a suppression motion and judgment entered on a conditional guilty plea are summarily affirmed. N.D.R.App.P. 35.1(a)(2).

State v. Lunstad 2000 ND 198
Docket No.: 20000113
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of surreptitious intrusion summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Wilson 2000 ND 197
Docket No.: 20000101
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Judgment of conviction for crime of accomplice to assault is summarily affirmed under N.D.R.App.P. 35.1(a) (3) and (7).

ND Workers Comp. Bureau, et al. v. General Investment Corp., et al. 2000 ND 196
Docket No.: 20000116
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Maring, Mary

Highlight: Section 38-09-01, N.D.C.C., generally reserves fifty percent of all oil, natural gas, or minerals whenever the State transfers land owned by the State.
The Workers Compensation Bureau may adjust or compromise claims upon defaults in the payment of premiums or premium installments.
A quitclaim deed executed by the State reflecting a compromise and a settlement releasing the Workers Compensation Bureau's doubtful claim to land, and does not reflect a sale resulting in a transfer of land.

Schumacher v. Schumacher (Cross-ref. w/990016) 2000 ND 195
Docket No.: 20000155
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Spousal support and child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Robb (Cross-reference w/ 20000096) 2000 ND 194
Docket No.: 20000259
Filing Date: 11/1/2000
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Attorney ordered disbarred.

Lake Region Lutheran Home, Inc. v. Halvorson, et al. 2000 ND 193
Docket No.: 20000120
Filing Date: 11/1/2000
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An appeal from a trial court's judgment dismissing a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) (the trial court did not abuse its discretion).

Center Mutual Insurance Co. v. Thompson 2000 ND 192
Docket No.: 20000118
Filing Date: 10/31/2000
Case Type: Appeal - Civil - Insurance
Author: Neumann, William

Highlight: Terms of an insurance policy are given their ordinary, usual, and commonly accepted meaning.
The absence of a definition in an insurance policy in and of itself does not establish ambiguity or mean the issue is automatically resolved in favor of the insured.
The existence of an employment relationship is ordinarily a question of fact.

Belisle v. Gibson, et al. 2000 ND 191
Docket No.: 20000125
Filing Date: 10/31/2000
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: The trial court's denial of a motion for a new trial and its judgment entered on a jury verdict finding defendants not liable in a personal injury action are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Kautzman v. Kautzman (Cross ref. w/980004, 990328 & 990386) 2000 ND 190
Docket No.: 20000083
Filing Date: 10/30/2000
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: When a party executes on a money judgment to secure a division of property, the debtor is not entitled to an exemption for life insurance policies or annuities.
A trial court may enforce an equitable lien by whatever means appropriate to do justice between the parties.
If a party cannot demonstrate prejudice resulting from an allegedly defective notice, there is no right to redress.

Farstveet, et al. v. Rudolph, et al. 2000 ND 189
Docket No.: 20000044
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Abandonment of the homestead must be established by clear and convincing evidence that the debtor voluntarily departed from the homestead and left without the intent to return and occupy it as a home.
A creditor cannot set aside as fraudulent a transfer of homestead property that the debtor could have claimed as exempt.
Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Uniform Fraudulent Transfer Act and is not subject to a fraudulent transfer.

State v. Loh 2000 ND 188
Docket No.: 20000095
Filing Date: 10/26/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: An officer has probable cause justifying a vehicle stop, based on evidence of a traffic violation, which is not invalidated when an officer subjectively suspects another offense.
Following a vehicle for five miles before initiating an investigatory stop does not invalidate the probable cause justifying the vehicle stop.

Schaefer, et al. v. Souris River Telecom., et al. 2000 ND 187
Docket No.: 20000011
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: A stipulation as to foundation does not eliminate a trial court's discretion to reject evidence on grounds of relevance.
Allowing a party to read the deposition of an opposing party's witness into evidence is not necessarily an abuse of discretion.
Denying a motion for new trial brought on the ground a party abused discovery by failing to provide a document relating to liability is not an abuse of discretion when liability is not at issue in the trial.

City of Jamestown v. Dardis (CONSOLIDATED W/ 20000110) 2000 ND 186
Docket No.: 20000109
Filing Date: 10/26/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Absent one of the exceptions to the warrant requirement at the time of the entry, evidence gained in violation of the Fourth Amendment's protections against unreasonable searches and seizures is inadmissible under the exclusionary rule.
To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent.
Opening the door widely with the knowledge a police officer is on the threshold is not sufficient affirmative conduct to constitute consent.

Syvertson v. State 2000 ND 185
Docket No.: 20000100
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A request for oral argument is incomplete if the requesting party fails to secure a time for oral argument.
A post-conviction relief application is denied if all issues were either fully and fairly determined in a direct appeal or petitioner inexcusably failed to raise them in that appeal.
Petitioner for post-conviction relief is not entitled to a new judge upon his application for post- conviction relief.

City of Mandan v. Leno 2000 ND 184
Docket No.: 20000104
Filing Date: 10/26/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: The limited statutory right of a person arrested for driving while under the influence of intoxicating liquor to a reasonable opportunity to consult with an attorney attaches after arrest.

Anderson v. Resler 2000 ND 183
Docket No.: 19990254
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Burlington Northern, et al. v. Benson Co. Water (Cons. w/990369-373;990378-380) 2000 ND 182
Docket No.: 19990368
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Fandrich, et al. v. Wells Co. Bd. of Co. Comm., et al. 2000 ND 181
Docket No.: 20000054
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: While a court may issue a writ of mandamus ordering a government entity to comply with applicable law, it cannot control the government entity's discretion in determining the methods to be used in complying with the law.
Political subdivisions have no duty to provide perfect drainage.
When each party prevails on some issues, there is no single prevailing party against whom disbursements may be taxed.

Schuh, et al. v. Weiss, et al. 2000 ND 180
Docket No.: 20000161
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment awarding damages for cost of repair and loss of use and enjoyment of real property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mora 2000 ND 179
Docket No.: 19990377
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

State v. Haverluk 2000 ND 178
Docket No.: 20000077
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A law enforcement officer may conduct a limited search of a vehicle's interior if there is a reasonable suspicion of danger to the officer.
A law enforcement officer may search a vehicle's interior incident to a lawful arrest as long as the search is contemporaneous with the arrest. A search incident to arrest is not invalid simply because the search preceded the arrest as long as the arrest quickly followed the search and the fruits of the search were not needed for probable cause to arrest.

State v. Ellis (cross reference 2000092) 2000 ND 177
Docket No.: 20000006
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant who seeks a new trial because voir dire has not been transcribed must first request transcription of the voir dire on the record. Failure to make a request for transcription on the record precludes a defendant from later asserting error.
A defendant requesting a change of venue has the burden of showing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found.
Denial of change of venue will not be reversed unless the trial court abused its discretion.

City of Fargo v. Doty 2000 ND 176
Docket No.: 20000020
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Jury verdict of guilty on the charge of reckless driving summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3), (4), and (7).

Rott v. ND Department of Transportation 2000 ND 175
Docket No.: 20000112
Filing Date: 10/3/2000
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: A statute providing for the cancellation of a minor's driver's license upon accumulation of a point total in excess of five points is not applied retroactively when the offense triggering the cancellation occurs after the effective date of the statute. Enactment of the statute does not change the status of the minor's driver's license so as to require notification of the statute's enactment.

Interest of E.T. (CONFIDENTIAL) 2000 ND 174
Docket No.: 20000248
Filing Date: 10/3/2000
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: An appeal of a trial court's involuntary medication order is rendered moot once the patient is released from the hospital and is no longer in need of medication.

Harn v. County of McKenzie, et al. (cross-reference w/980260) 2000 ND 173
Docket No.: 20000013
Filing Date: 10/3/2000
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A summary judgment for costs and disbursements and an order denying a motion for new trial in action for conversion and violation of public duty are affirmed under N.D.R.App.P. 35.1(a)(4), (6).

City of Fargo v. Hersch 2000 ND 172
Docket No.: 20000108
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Judgment of conviction for driving while under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Coleman v. Goulet, f/k/a Chase 2000 ND 171
Docket No.: 20000105
Filing Date: 10/3/2000
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: The trial court's summary dismissal of a damage action because the plaintiff did not meet the threshold requirements under the Auto Accident Reparations Act, N.D.C.C. ch. 26.1-41, was summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Johnson v. Johnson 2000 ND 170
Docket No.: 19990353
Filing Date: 9/14/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Egeland v. Continental Resources, Inc., et al. 2000 ND 169
Docket No.: 20000042
Filing Date: 9/14/2000
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Neumann, William

Highlight: Consent from the landowner is not required when a lessee applies to the Industrial Commission to force pool property.
A Pugh clause severs an oil and gas lease when less than all of the leasehold is included in a pooled spacing unit, and production on the pooled portion does not normally constitute production on the part not pooled.
A continuous drilling operations clause continued to operate lease-wide after expiration of the primary term even though the Pugh clause limited the operation and effect of the habendum clause to the confines of each spacing unit.

City of West Fargo v. Hawkins 2000 ND 168
Docket No.: 19990351
Filing Date: 9/6/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Robertson v. ND Workers Comp. Bur., et al. 2000 ND 167
Docket No.: 20000088
Filing Date: 9/5/2000
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: The presumption that a law enforcement officer's heart disease was suffered in the line of duty is based on a legislatively adopted premise that a law enforcement officer's work stress causes heart disease, and the presumption cannot be rebutted by expert medical opinion rejecting that underlying premise.

State ex rel. Heitkamp v. Family Life Serv, et al. (CON. W/SEE DOCKET MEMO) 2000 ND 166
Docket No.: 19990212
Filing Date: 8/31/2000
Case Type: Appeal - Civil - Constitutional Law
Author: Sandstrom, Dale