Opinions

State v. Parizek 2012 ND 103
Docket No.: 20110329
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Bell v. N.D. Dept. of Transportation 2012 ND 102
Docket No.: 20110201
Filing Date: 5/17/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: An individual who asks to consult with an attorney before deciding to take a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.
An individual given a telephone and a telephone book approximately eighteen minutes before the two-hour period for administering a chemical test expired had a reasonable opportunity to contact an attorney when the individual delayed the DUI investigation and called a friend rather than an attorney.

Kooser v. State 2012 ND 101
Docket No.: 20120058
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: North Dakota courts may accept a guilty plea accompanied by an assertion of innocence as permitted by the United States Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25 (1970).
A defendant entering an Alford plea need not personally provide the factual basis for the plea.

Dorothy J. Pierce Family Mineral Trust v. Jorgenson, et al. 2012 ND 100
Docket No.: 20110355
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable.

Watts, et al. v. Magic 2 x 52 Management, Inc., et al. 2012 ND 99
Docket No.: 20110145
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Post-judgment motion seeking to pierce corporate veil and to recover punitive damages based on prejudgment and post-judgment evidence must be brought under N.D.R.Civ.P. 59 or 60 when district court already considered and denied the requested relief in entering the judgment after trial.

Palmer v. State (consol.w/20110346-20110348)(cross-ref.w/20010123-20010126) 2012 ND 98
Docket No.: 20110344
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A decision cannot be properly reviewed on appeal if the district court does not provide an adequate explanation of its rationale for its decision.

State v. Lee 2012 ND 97
Docket No.: 20110121
Filing Date: 5/17/2012
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A person arrested for DUI has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test.
If a DUI arrestee asked to take a chemical test makes any mention of a need for an attorney, the arresting officer must assume the arrestee is requesting an opportunity to consult with an attorney.
Defendant's mention of an attorney's name and passing reference to desire to fight DUI charge were not requests to consult with an attorney before taking a chemical test.
The bright-line rule for determining whether an arrestee has invoked the right to consult with an attorney before submitting to a chemical test adopted in Baillie v. Moore, 522 N.W.2d 748, 750 (N.D. 1994), applies in both administrative and criminal proceedings.

Wilson v. State (consolidated w/20110363) 2012 ND 96
Docket No.: 20110362
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

State v. Sandoval 2012 ND 95
Docket No.: 20110300
Filing Date: 5/17/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Amended criminal judgment after the district court revoked a defendant's probation and ordered him to serve a sentence longer than the original sentence the court imposed after he pled guilty to a felony and two misdemeanors is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matter of C.S. (CONFIDENTIAL) 2012 ND 94
Docket No.: 20110302
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying request for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Richardson 2012 ND 93
Docket No.: 20110330
Filing Date: 5/17/2012
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Order civilly committing a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Tollefson (CONSOLIDATED W/ 20120131 & 20120132) 2012 ND 92
Docket No.: 20120130
Filing Date: 5/14/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Come Big or Stay Home, LLC v. EOG Resources, Inc. 2012 ND 91
Docket No.: 20110305
Filing Date: 5/4/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An agreement may be supplemented by custom or usage, under appropriate circumstances
Pooling and unitization of separately owned tracts do not create a cotenancy between the several leaseholders.
When a claim for conversion and a claim for breach of contract arise under the same facts, tort liability for conversion does not occur unless the conduct that constitutes a breach of contract also gives rise to liability independent of the existence of a contract between the parties.

Pifer v. McDermott 2012 ND 90
Docket No.: 20110287
Filing Date: 5/4/2012
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A partial judgment that disposes of fewer than all claims against all parties will not be considered on appeal absent N.D.R.Civ.P. 54(b) certification.
On appeal, the appropriateness of N.D.R.Civ.P. 54(b) certification is reviewed.

Raymond J. German, Ltd. v. Brossart 2012 ND 89
Docket No.: 20110338
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When a default judgment, rather than a district court's order regarding a N.D.R.Civ.P. 60(b) motion to vacate the default judgment, is appealed, it is reviewed to determine whether irregularities appear on the face of the judgment.
District courts have broad discretion in the quality of proof necessary for entering a default judgment.
An appearance is any response sufficient to give a plaintiff or his or her attorney notice of an intent to contest the claim.

Lynch v. The New Public School District No. 8 2012 ND 88
Docket No.: 20110109
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Although a teacher who does not receive a notice of nonrenewal is entitled to an offer of reemployment under the same terms and conditions as the current contract, the teacher does not have a right to an identical contract with identical duties and assignments as the current year.
A teacher's right to an offer of reemployment is the right to continued employment in the district in a position for which the teacher is qualified, not the right to teach at a particular school or a particular grade level.
A notice of nonrenewal is required when a change in a teacher's assigned curricular duties is coupled with a severe reduction in salary; however, incidental financial or time consequences of a reassignment, including extra travel expenses and travel time, do not trigger the right to a notice of nonrenewal.

Johnson v. WSI, et al. 2012 ND 87
Docket No.: 20110262
Filing Date: 5/3/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: To receive WSI benefits, a claimant must prove, by a preponderance of the evidence, a compensable injury was suffered.
The definition of "compensable injury" excludes preexisting injuries unless the employment substantially accelerated or substantially worsened an injury's severity.
A compensable injury does not exist when a claimant's employment merely triggered symptoms of a preexisting injury.
When an employee cannot be returned to substantial gainful employment under the hierarchy of options in section 65-05.1-01(4), N.D.C.C., but meets the income test under section 65-05.1-01(6)(a)(3), N.D.C.C., the employee has a retained earnings capacity and is entitled to partial disability benefits.

Vining v. Renton 2012 ND 86
Docket No.: 20110233
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When considering modification of primary residential responsibility, a district court must gauge the best interests of the child factors against the backdrop of the stability of the child's relationship with the custodial parent.
Cases that are "close calls" may result in a change of primary residential responsibility when other considerations are weightier than the custodial stability factor.
Although a change of primary residential responsibility is legally permissible without resorting to other remedies, that result should be a rare event rather than the first choice.

Pelzl v. State (cross-reference 20100227) 2012 ND 85
Docket No.: 20110364
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment summarily dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Tibor v. State 2012 ND 84
Docket No.: 20110313
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Harmon v. State (Cross-reference w/19960206 & 19970100) 2012 ND 83
Docket No.: 20110343
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: A district court order summarily dismissing a petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Willard v. Allstate Ins. Co., et al. 2012 ND 82
Docket No.: 20110314
Filing Date: 4/18/2012
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: Summary judgment in a wrongful death action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Tibert et al. v. Nodak Mutual 2012 ND 81
Docket No.: 20110143
Filing Date: 4/12/2012
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Public policy precludes an insured from being indemnified for losses caused by the insured's intentional or willful conduct.
In determining whether coverage is barred by an intentional acts exclusion in an insurance policy or by the statutory prohibition against coverage for intentional or willful conduct, intent to cause the injury or damages can be inferred when the act was done intentionally and was of such a character that harmful consequences are substantially certain to result from the act.
A tortfeasor who acted in concert with another by agreeing to pursue a common plan to commit wrongful acts, with knowledge of the plan and its purpose, intended the harm and injury caused by the wrongful act.
A liability insurer has a duty to defend an underlying action against its insured if the allegations in the complaint give rise to potential liability or the possibility of coverage under the policy, and any doubt about whether a duty to defend exists must be resolved in favor of the insured.

Hector v. City of Fargo 2012 ND 80
Docket No.: 20110187
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A resolution of necessity for an improvement district must set forth the general nature of the improvement, the approximate amount the municipality will be obligated to pay, and the amount proposed to be paid by special assessments.
The resolution of necessity and engineer's report for a proposed improvement does not include the final costs of the project, and the actual amount specially assessed may exceed the amount proposed in the resolution and engineer's report.
A special assessment commission has broad discretion in choosing the method used to decide the benefit a property receives from an improvement and to apportion the costs to individual properties.

M.M., et al. v. Fargo Public School Dist. #1, et al.(cross-reference w/ 20090121 2012 ND 79
Docket No.: 20110260
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: When statutes are silent on an issue, courts may consider authorities from outside the state to resolve the issue.
A parent is not entitled to recover medical expenses paid on behalf of an injured minor child whose comparative fault exceeds the fault of the tortfeasor.

Northern Excavating v. Sisters of Mary of the Presentation 2012 ND 78
Docket No.: 20110209
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: When no amount is stated in a construction contract, the amount of a filed construction lien must be reasonably accurate for the lienholder to avoid liability for the owner's costs and reasonable attorney's fees.
Under N.D.C.C. 35-27-24.1, an owner who successfully contests the validity or accuracy of a construction lien is entitled to all attorney's fees and costs associated with the lien contest.
Determination of who is a prevailing party is based upon success on the merits, not damages.

Schock v. N.D. Dept. of Transportation 2012 ND 77
Docket No.: 20110254
Filing Date: 4/10/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Common sense and experience permit an administrative hearing officer to aid in drawing inferences from the evidence presented.
An administrative hearing officer may take official notice of daylight savings time.
The statute requiring a hearing officer to "immediately deliver to the person a copy of the decision," is not basic and mandatory.

State v. Alaniz 2012 ND 76
Docket No.: 20110259
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The Fourth Amendment right to be free from unreasonable searches applies to searches by school authorities, and the legality of the search depends on its reasonableness.
A search by a school official is reasonable if the search was justified at its inception and the search was reasonably related in scope to the circumstances which justified the interference in the first place.
Generally, the reasonableness standard for school searches will apply when the search involves a school resource officer acting on his or her own initiative or at the direction of other school officials to further educationally related goals.

State v. Morin 2012 ND 75
Docket No.: 20110303
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A district court decision on a motion to suppress evidence will be affirmed if there is sufficient competent evidence to support the district court's findings and the decision is not contrary to the manifest weight of the evidence.
When determining whether consent to a warrantless search was voluntary, the existence or absence of certain factors concerning the condition and characteristics of the individual at the time of consent and the details of the setting in which consent was obtained are significant, but no one factor is dispositive.

Morris v. Moller 2012 ND 74
Docket No.: 20110196
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Parenting investigators must strictly adhere to their Code of Conduct when rendering services.
The fact that a district court agreed with a parenting investigator's analysis and conclusions is not in itself clearly erroneous.

Fetzer v. Workforce Safety and Insurance 2012 ND 73
Docket No.: 20110251
Filing Date: 4/10/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Claimants for workers' compensation benefits must prove a causal connection between their employment and injury.
The positional-risk doctrine is rejected because it negates the necessity of proving causation.

Dakota Resource Council v. ND Public Service Commission, et al. 2012 ND 72
Docket No.: 20110226
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Section 38-14.1-24(2), N.D.C.C., does not establish a hierarchy of postmining land uses.

Holbach v. City of Minot (cross-ref. 20070042, 20070289, 20090038 & 20100144) 2012 ND 71
Docket No.: 20110276
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief application summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Adoption of K.R.H.N. (CONFIDENTIAL) 2012 ND 70
Docket No.: 20120139
Filing Date: 4/10/2012
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Decree terminating parental rights and granting petition for adoption is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mendez 2012 ND 69
Docket No.: 20110274
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Other
Author:

Highlight: Criminal judgment for assault on a peace officer and contact by bodily fluids is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Order denying motion for mistrial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Guardianship/Conservatorship of D.F.S. 2012 ND 68
Docket No.: 20110335
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Guardian/Conservator
Author:

Highlight: Judgment dismissing with prejudice a petition for appointment as a guardian and conservator because of improper service is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
A district court without personal jurisdiction over a defendant may not dismiss the claim with prejudice.

State v. White 2012 ND 67
Docket No.: 20110288
Filing Date: 4/10/2012
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment entered after a defendant pled guilty to criminal trespass, menacing, preventing arrest, and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Yellow v. State (Consolidated w/20110310) 2012 ND 66
Docket No.: 20110309
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying a petitioner's application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Rudolph v. N.D. Dept. of Transportation 2012 ND 65
Docket No.: 20110334
Filing Date: 4/10/2012
Case Type: Appeal - Administrative - Department of Transportation
Author:

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

N.D. State Board of Higher Education v. Jaeger et al. 2012 ND 64
Docket No.: 20120112
Filing Date: 4/3/2012
Case Type: Original Proceeding - Civil - Writ of Prohibition
Author: VandeWalle, Gerald

Highlight: Supreme Court has discretionary authority to exercise original jurisdiction and issue remedial writs as may be necessary to properly exercise its jurisdiction.

Weeks v. Geiermann, et al. 2012 ND 63
Docket No.: 20110156
Filing Date: 3/21/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Maring, Mary

Highlight: A "medical services provider" who does not make disclosures required under N.D.C.C. 13-01-15 to charge the "late payment charge" allowed under N.D.C.C. 13-01-14.1 is still entitled to prejudgment interest under N.D.C.C. 47-14-05 at the legal rate of six percent per annum.

Estate of Harms 2012 ND 62
Docket No.: 20110165
Filing Date: 3/19/2012
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A co-trustee of a testamentary did not waive the right to argue for an alternative distribution of estate assets by administering a trust.
Judicial estoppel does not apply absent success in a prior court proceeding.
The Uniform Probate Code makes certain agreements among successors binding on an estate's personal representative and provides a procedure for making compromise agreements binding by securing court approval.
When the meaning of a will provision is in question, the intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions.
The estate tax marital deduction allows spouses to avoid paying federal estate taxes on property passing from a decedent to his or her surviving spouse.
The unified credit allows an individual to exempt a combined amount lifetime and at death transfers from the federal estate and gift tax.
The fractional formula distributing the decedent's residuary estate funded a nonmarital trust in the amount sheltered by the decedent's available unified credit and devised the remainder of the residuary estate to a marital share.

Judicial Vacancy in Judgeship No. 3, Southwest Judicial District 2012 ND 61
Docket No.: 20120089
Filing Date: 3/22/2012
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained.

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.