Opinions

State v. Tully 2022 ND 218
Docket No.: 20220214
Filing Date: 12/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Kubik v. Hauck 2022 ND 217
Docket No.: 20220091
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary, and not a mere barrier, for at least 20 years prior to the litigation. Whether there has been mutual recognition of a boundary is a question of fact, reviewed under the clearly erroneous standard.

Kubik v. Hauck 2022 ND 217
Docket No.: 20220091
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Trosen, et al. v. Trosen, et al. 2022 ND 216
Docket No.: 20220048
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: The nonperformance of a contractual duty when it is due is a breach of the contract.

Under the common law doctrine of apportionment of rent, rent is not apportionable as to time; rather the person who has ownership of the property at the time that rent is due has the right to receive it.

Generally, a material breach by one party gives the non-breaching party the right to terminate the contract.

Trosen, et al. v. Trosen, et al. 2022 ND 216
Docket No.: 20220048
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Watson v. State (consolidated w/20220104) 2022 ND 215
Docket No.: 20220103
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: In an ineffective assistance of counsel claim, a criminal defendant must demonstrate (1) counsel’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Watson v. State (consolidated w/20220104) 2022 ND 215
Docket No.: 20220103
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Fercho v. Fercho, et al. 2022 ND 214
Docket No.: 20220076
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A party to a divorce action who accepts benefits pursuant to a divorce judgment does not waive the right to appeal from the judgment, overruling prior case law applying the general rule that acceptance of substantial benefits under the divorce judgment waived the right to appeal.

The court must limit discovery if it determines the discovery sought is unreasonably cumulative or duplicative, or it can be obtained from some other source that is more convenient, less burdensome, or less expensive; or the burden or expense of the proposed discovery outweighs its likely benefit.

Under the Uniform Premarital Agreement Act, parties may contract to the disposition of property upon divorce and to the modification or elimination of spousal support.

Procedural unconscionability focuses upon formation of the contract and fairness of the bargaining process, including factors such as inequality of bargaining power, oppression, and unfair surprise. Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily. Substantive unconscionability focuses on the harshness or one-sidedness of the agreement’s provisions.

A district court’s valuation and distribution of marital property are findings of fact. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing the entirety of the evidence, this Court is left with a definite and firm conviction a mistake has been made.

A spousal support award must be based on both the supporting spouse’s needs and ability to pay and the receiving spouse’s income and needs. Similarly, the primary standard to award attorney’s fees under N.D.C.C. § 14-05-23 is consideration of one spouse’s needs and the other spouse’s ability to pay.

Reasonable attorney’s fees may be awarded on appeal if any party has been dilatory in prosecuting the appeal.

Fercho v. Fercho, et al. 2022 ND 214
Docket No.: 20220076
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Provins v. WSI, et al. 2022 ND 213
Docket No.: 20220060
Filing Date: 12/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

Highlight: For purposes of WSI benefits, a compensable injury includes a mental or psychological condition caused by a physical injury, but only when the physical injury is determined with reasonable medical certainty to be at least fifty percent of the cause of the condition as compared with all other contributing causes combined, and only when the condition did not preexist the work injury.

Under WSI administrative rule, a mental or psychological condition must be directly caused by a physical injury. To be directly caused it must be shown with objective medical evidence that the mental or psychological condition is the physiological product of the physical injury.