Opinions

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.

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:

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:

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.