Opinions

Gonzalez v. Witzke 2012 ND 60
Docket No.: 20110221
Filing Date: 3/15/2012
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Even though a district court is not required to find a pattern of behavior when issuing a disorderly conduct restraining order, the court may make a finding when a pattern of behavior is present.

State v. Montano 2012 ND 59
Docket No.: 20110281
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: When a defendant's objection to a prosecutor's improper statement is sustained by the district court, the failure to request a cautionary instruction waives the objection to the allegedly prejudicial comment.
An inappropriate prosecutorial comment, by itself, will not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.

Benson, et al. v. SRT Communications, Inc. 2012 ND 58
Docket No.: 20110164
Filing Date: 3/15/2012
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Collective bargaining agreements are subject to the Labor Management Relations Act ("LMRA").
Under the Employee Retirement Income Security Act ("ERISA"), employers are generally free to adopt, modify, or terminate welfare plans.
When a state law claim is substantially dependent on the terms of a collective bargaining agreement, the ordinary state law claim is preempted by federal labor-contract law.
The general rule is that a corporation that purchases the assets of another corporation does not succeed to the liabilities of the selling corporation.

Tronnes v. Job Service, et al. 2012 ND 57
Docket No.: 20110280
Filing Date: 3/15/2012
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: A person is disqualified for unemployment benefits if the individual voluntarily quit his or her employment without good cause attributable to the employer.
As the factfinder, the appeals referee decides issues of credibility and the weight to give the evidence.
An employee who voluntarily quits before an employer has been given a reasonable chance to resolve an identified problem is not entitled to unemployment benefits.

Mills v. City of Grand Forks 2012 ND 56
Docket No.: 20110193
Filing Date: 3/15/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Under principles of res judicata, or claim preclusion, an action based on an omitted defense cannot be permitted in guise of a claim for restitution of a former judgment already paid or for damages measured by its execution.
Arguments first raised in a petition for rehearing will not be considered.

Arndt, et al. v. Maki, et al. 2012 ND 55
Docket No.: 20110191
Filing Date: 3/15/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A court must consider the substantive evidentiary standard of proof when ruling on a motion for summary judgment.
A mutual mistake that will justify reformation requires that, at the time of the execution of the agreement, both parties intended to say something different from what was said in the document.
A fleeting reference in a brief to an unpled claim is insufficient to properly raise an issue for consideration.
If no cross-appeal issues are raised in an appellate brief, the cross-appeal is abandoned.

Perius v. Nodak Mutual Ins. Co., et al. (cross-reference w/20090239) 2012 ND 54
Docket No.: 20110205
Filing Date: 3/15/2012
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: Parties must fully, completely, and fairly disclose the subject matter and substance of their expert witnesses' anticipated trial testimony.
The district court may determine a suitable sanction for a party's failure to supplement interrogatories and may exclude expert testimony that is beyond the scope of a party's responses to interrogatories.

City of Bismarck v. McCormick 2012 ND 53
Docket No.: 20110239
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: When a matter is transferred from municipal court to district court for a jury trial, the municipal ordinance is not evidence of the act; rather, it is the authority under which the criminal charge was filed and the case was transferred to district court.

Interest of A.N.P. (CONFIDENTIAL) 2012 ND 52
Docket No.: 20120004
Filing Date: 3/15/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court's order affirming judicial referee's order terminating parental rights to a minor child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Ramirez 2012 ND 51
Docket No.: 20110255
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Judgment revoking probation and amending criminal judgment and commitment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4) and (7).

Addai v. State 2012 ND 50
Docket No.: 20110318
Filing Date: 3/15/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of I.D. (CONFIDENTIAL) 2012 ND 49
Docket No.: 20110275
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - Juvenile Law
Author: Not Available

Highlight: Juvenile court order adjudicating a child delinquent is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Pack (Consolidated w/ 20110236 & 20110237) 2012 ND 48
Docket No.: 20110235
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A criminal judgment entered after a jury returned guilty verdicts is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Mendez 2012 ND 47
Docket No.: 20110273
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - Assault
Author: Not Available

Highlight: A district court judgment entered after revocation of probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Carpenter (Cross-reference w/20100085) 2012 ND 46
Docket No.: 20110283
Filing Date: 3/15/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Estate of Camas 2012 ND 45
Docket No.: 20110217
Filing Date: 2/28/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: Orders in an unsupervised probate are appealable if they resolve all of a creditor's claims against an estate.
Technical words should be construed in a lay sense if the testator demonstrates an intent to do so from the language of the will.
If possible, all parts of the will must be harmonized to give every word and phrase effect.

Haroldson v. Haroldson 2012 ND 44
Docket No.: 20110149
Filing Date: 2/27/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: In the context of cross-motions for modification of language in a stipulated divorce judgment granting parents equal residential responsibility of children, a district court's finding of a material change in circumstances authorizes the court to fully resolve the best interests of the children for purposes of deciding primary residential responsibility.
A district court's mere recitation of testimony is not equivalent to a finding of fact, and findings of fact must be sufficient to understand the rationale for the court's decision.

Erickson, et al. v. Brown, et al. 2012 ND 43
Docket No.: 20110144
Filing Date: 2/27/2012
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: District court findings of fact are adequate under N.D.R.Civ.P. 52(a) if they provide an understanding of the district court's factual basis used in reaching its decision.
A district court is not required to reject all testimony from a witness who provides an intentionally false statement if the factual basis for the non-false testimony is corroborated by other evidence.

Hangsleben v. Halverson, et al. 2012 ND 42
Docket No.: 20110211
Filing Date: 2/23/2012
Case Type: Appeal - Civil - Malpractice
Author: Per Curiam

Highlight: Appeal from judgment dismissing wrongful death and survivor claims summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Troxel v. N.D. Dept. of Transportation, et al. 2012 ND 41
Docket No.: 20110295
Filing Date: 2/22/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A district court judgment affirming a North Dakota Department of Transportation decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Estate of Paulson (Cross-reference w/20100078) 2012 ND 40
Docket No.: 20110154
Filing Date: 2/21/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: Conditions in a will are disfavored, and no presumptions will be made to create a condition.
A devise will not fail simply because a testator describes a relationship with a devisee that does not exist.
If a will is unambiguous, the testator's intent must be determined from the four corners of the will itself and not from extrinsic evidence.

Baesler v. N.D. Dep't of Transportation 2012 ND 39
Docket No.: 20110202
Filing Date: 2/17/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: The Department of Transportation's authority to suspend driving privileges is governed by statute, and the Department must meet basic and mandatory special provisions to have authority to suspend driving privileges.
The Department of Transportation lacked authority to suspend driving privileges when the Department failed to certify a record on appeal to the district court and nothing established the Department's authority.

Interest of T.H. (CONFIDENTIAL)(cross reference with 20120168) 2012 ND 38
Docket No.: 20110084
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Juvenile Law
Author: Sandstrom, Dale

Highlight: A party's right to object to the court's jurisdiction over the person is waived if the party makes a voluntary appearance and fails to object to the court's assertion of personal jurisdiction.
Section 27-20-36, N.D.C.C., does not limit the total length of time a child may be placed in a foster home in deprivation proceedings.
Parental cooperation with social services is pertinent in deciding whether a child continues to be deprived and whether the deprivation will continue.

Rickert v. Dakota Sanitation Plus, et al. (Cross-reference w/20100367) 2012 ND 37
Docket No.: 20110158
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: For partial performance rto emove an unwritten agreement from the statute of frauds, the part performance must be consistent only with the existence of the alleged oral contract.
Unlike Fed.R.Civ.P. 26(a)(2)(A), which requires automatic disclosure of an expert witness's report, N.D.R.Civ.P. 26(b)(4) requires that the opposing party specifically request disclosure of the facts and opinions to which the expert will testify and the grounds for each opinion.
The intent of the dissenting shareholder provisions in N.D.C.C. ch. 10-19.1 is to provide the fair value of shares to a dissenting shareholder as it existed immediately before the triggering event, and changes in economic circumstances occurring after the triggering event which affect the value of the shares are irrelevant.

Osaba v. N.D. Dept. of Transportation 2012 ND 36
Docket No.: 20110297
Filing Date: 2/17/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Observations made by one officer may be communicated to a second officer who, after observing additional conduct, can combine the communicated observations with his own to establish probable cause for an arrest.

Frison v. Ohlhauser 2012 ND 35
Docket No.: 20110224
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The party seeking to modify custody has the burden of proving a material change in circumstances and modification is necessary to serve the best interests of the child.
If a district court finds no material change in circumstances, the court need not consider whether a change in primary residential responsibility is necessary to serve the child's best interests.

Langowski v. Altendorf 2012 ND 34
Docket No.: 20110184
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: When calculating a statute of limitations beginning date under N.D.R.Civ.P. 6(a), the date of injury accrual is excluded and the next day begins the countdown.
When calculating a statute of limitations ending date under N.D.R.Civ.P. 6(a), the last day of the period is included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
Service under N.D.R.Civ.P. 4(d)(2)(A)(v) is complete at the time of actual delivery or refusal of that delivery and not when a summons is placed in the mail.

Gadeco v. Industrial Commission et al. (consolidated w/20110140) 2012 ND 33
Docket No.: 20110131
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The Industrial Commission's finding of fact must be sufficient to enable a reviewing court to understand the basis for its decision.

State v. Doll 2012 ND 32
Docket No.: 20110097
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A severance motion must be renewed at the close of evidence to preserve an objection to a joinder.
A defendant's Sixth Amendment right to confront witnesses is not violated by the introduction of a codefendant's admissions incriminating the defendant when the codefendant testifies at trial.
The purpose of a sequestration order is to prevent one witness's testimony from influencing another.
A district court does not abuse its discretion by denying a motion for mistrial because of a possible sequestration order violation when the witness's testimony was not influenced by the violation.

Johnson v. Johnson 2012 ND 31
Docket No.: 20110213
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The fugitive dismissal or disentitlement rule applies to civil cases involving child custody and authorizes dismissal of appeal when a connection exists between the litigant's fugitive status and the litigant's appeal, no alternative short of dismissal will render enforcement of the underlying judgment certain and remove the risk of prejudice to the fugitive's adversary, and the policy concerns underlying the fugitive dismissal rule are present.

Bendish v. Castillo, et al. 2012 ND 30
Docket No.: 20110122
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A contract for deed may be cancelled by statutory cancellation under N.D.C.C. ch. 32-18, or by court action.
Cancellation of a contract for deed by action is an action in equity, and the district court must base its decision on equitable principles.
When a seller cancels a contract for deed by action, there is no statutory redemption period, and the matter of the redemption period is left to the district court's sound discretion.
The facts of each case must be examined in order to determine the propriety of a redemption period.

Estate of Wicklund 2012 ND 29
Docket No.: 20110081
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: A will and a revocable living trust may be considered together as a part of a decedent's estate plan.
In constructing an estate plan, courts construe the plan to carry out the intent of the settlors or the testators.
Under North Dakota law, a surviving spouse's right to an elective share, a homestead allowance, an exempt property allowance, and a family allowance is governed by the laws of the decedent's domicile at death.
A district court's findings of fact must be adequate to understand the basis for the court's decision.

Estate of Clemetson 2012 ND 28
Docket No.: 20110108
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A prima facie case is established if the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor.
Before a presumption arises, the party seeking to rely upon it must prove the requisite foundational facts by credible evidence.
Once the presumption arises that a missing will is revoked, the party seeking probate of a missing will must demonstrate, by a preponderance of the evidence, that the will existed at the time of the testator's death, that the will was fraudulently destroyed in the lifetime of the testator, or that other evidence shows the testator did not intend to revoke the missing will.

Johnson v. N.D. Workforce Safety and Insurance 2012 ND 27
Docket No.: 20110159
Filing Date: 2/17/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An administrative law judge may modify the specification of issues before an evidentiary hearing in an adjudicative proceeding before an administrative agency.

State v. Bruederle (consolidated w/20110180) 2012 ND 26
Docket No.: 20110179
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: District court orders and amended judgments revoking probation are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Seibold v. Leverington 2012 ND 25
Docket No.: 20110152
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The limitations for obtaining an evidentiary hearing on postjudgment modifications of primary residential responsibility do not apply to modifications of parenting time, and a parent moving for modification of parenting time is not required to establish a prima face case justifying modification.
A party is entitled to a hearing on a motion if the party complies with N.D.R.Ct. 3.2 and requests and schedules the hearing and provides notice to all other parties.

Horsted v. Horsted 2012 ND 24
Docket No.: 20110206
Filing Date: 2/17/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court need not make separate findings for each best interests factor but must make findings sufficient to show its factual basis for awarding visitation and joint decisionmaking responsibility.
Evidence of domestic violence, as defined in N.D.C.C. 14-07.1-01, must be considered in determining whether joint decisionmaking responsibility is in the best interests of the child.
An order allocating joint decisionmaking responsibility must address a method of resolving disputes when parents disagree on a parenting issue.

State v. Bruederle 2012 ND 23
Docket No.: 20110245
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Not Available

Highlight: Criminal judgment after a jury found a defendant guilty of terrorizing a woman and her mother is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Marsette (Cross-reference w/20110170) 2012 ND 22
Docket No.: 20110285
Filing Date: 2/17/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction of driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Myaer v. Nodak Mutual Insurance Co. 2012 ND 21
Docket No.: 20110153
Filing Date: 2/10/2012
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Technical words in a contract are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense.
Under an agency contract provision that an agent's interest in premiums to "accrue" on business secured is to cease on termination of employment, "accrue" means grow, increase, or augment, and does not apply to the unpaid portion of a premium on a policy in force at the time the contract was terminated.
Parol evidence cannot vary or contradict the terms of a complete, written contract adopted as a definite expression of the parties' agreement.
An employee's retention of employment with knowledge of changed conditions from the original employment contract constitutes acceptance of the employer's offer of a unilateral contract.

McKenzie Co. v. Reichman (Cross-reference w/20100255) 2012 ND 20
Docket No.: 20110037
Filing Date: 1/24/2012
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A party claiming a road by prescription must establish by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for 20 years.
The 20-year period for measuring a prescriptive use begins when a burden is placed on the land and relates back to the inception of the adverse use.
The expenditure of public funds for construction and maintenance of a road is evidence of an adverse use.
Gates across roads are indicative of permissive use, but gates for working livestock which do not deny access or interfere with public traffic do not mandate a permissive use.
The width of a prescriptive easement for a road is not limited to that portion of the road actually traveled, and it may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion of the road during the prescriptive period.

Judicial Conduct Commission v. Hagar (consol. w/ 20110378 - 380) 2012 ND 19
Docket No.: 20110331
Filing Date: 1/18/2012
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: District judge censured.

Koenig v. N.D. Dept. of Transportation 2012 ND 18
Docket No.: 20110249
Filing Date: 1/18/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: An individual arrested for driving under the influence has the right to obtain an independent blood or chemical test, and this right is generally considered the right to be free from police interference in obtaining the test through his or her own efforts and expense.
Whether law enforcement officers have denied an individual the right to an independent test is considered under the totality of the circumstances.

Interest of G.K.S. (CONFIDENTIAL) 2012 ND 17
Docket No.: 20110367
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: Appeal from vacated order for involuntary commitment is dismissed as moot.

Estate of Hollingsworth 2012 ND 16
Docket No.: 20110141
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: In an unsupervised probate, an order or judgment determining some, but not all, of one person's claims or disputes in an estate is not appealable without a N.D.R.Civ.P. 54(b) certification.

Thompson v. Thompson 2012 ND 15
Docket No.: 20110215
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When there is a motion to modify primary residential responsibility, claims that the parties' actual residential responsibility arrangement is substantially different from the arrangement contemplated in the prior order establishing residential responsibility may be sufficient to establish a prima facie case justifying modification.

Holkesvig v. Welte(Consol. w/20110103 & 20110104)(Cross-ref. w/20100315-2010317) 2012 ND 14
Docket No.: 20110102
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court may impose a remedial sanction for contempt only after notice and hearing.

American Family Insurance, et al. v. Waupaca Elevator Co. 2012 ND 13
Docket No.: 20110198
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When calculating a statute of limitations beginning date under N.D.R.Civ.P. 6(a), the date of injury accrual is excluded, and the next day begins the countdown.
When calculating a statute of limitations ending date under N.D.R.Civ.P. 6(a), the last day of the period is included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
A party may begin a lawsuit as late as the end of the last day of the statute of limitations period.
Under N.D.C.C. 28-01-38, it is proper for a party to deliver its summons and complaint, with the intent it shall be actually served, to the sheriff, "if the defendant is a corporation, of the county in which was situated the principal place of business of such corporation, or in which its general business was transacted, or in which it kept an office for the transaction of business."

Interest of W.J.C.A. (Confidential) 2012 ND 12
Docket No.: 20110361
Filing Date: 1/12/2012
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A medical expert must often rely on second-hand information unless it is demonstrably unreliable, and testimony regarding staff reports and personal observations is proper to establish the basis of a medical opinion.
District courts may properly rely on testimony that is not based solely on the allegations in a petition for involuntary commitment but which has been confirmed through independent sources.

State v. Pena Garcia 2012 ND 11
Docket No.: 20110090
Filing Date: 1/12/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A reviewing court will not reverse a criminal conviction based on a claim that the prosecutor engaged in misconduct if any prejudice from alleged misconduct was cured.