Opinions

Kidwell v. McLean County et al. 2010 ND 203
Docket No.: 20100168
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Vanderscoff v. Vanderscoff 2010 ND 202
Docket No.: 20100092
Filing Date: 10/26/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A motion for reconsideration may be treated as a motion to alter or amend a judgment under N.D.R.Civ.P. 59(j) or as a motion for relief from a judgment or order under N.D.R.Civ.P. 60(b).
On appeal, a court's decision denying a motion for relief from a judgment or order is reviewed to determine whether the court abused its discretion in ruling the moving party did not establish sufficient grounds for disturbing the judgment or order.

Lange v. Dep't of Transp. 2010 ND 201
Docket No.: 20100096
Filing Date: 10/25/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: An arrestee has the responsibility to assert the right to an independent chemical test for intoxication.
The arrestee suffers the consequences of ambiguities in requesting an independent chemical test for intoxication when a law enforcement officer reasonably does not understand that the arrestee is attempting to assert the right to an independent test.
Law enforcement officers cannot interfere with an arrestee's attempts to secure an independent test, but unless an arrestee has done more than request an independent test, law enforcement does not need to assist the arrestee beyond providing access to a telephone.

Renville v. Renville 2010 ND 200
Docket No.: 20090343
Filing Date: 10/22/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Trial court's valuation of parties' business in divorce proceedings summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Joyce v. Joyce 2010 ND 199
Docket No.: 20100185
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A prima facie case for a change of primary residential responsibility requires facts that, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed.
An actual arrangement for primary residential responsibility that is substantially different from a prior judgment may constitute a material change in circumstances for a change of primary residential responsibility.

Johnson v. N.D. Workforce Safety & Insurance, et al. 2010 ND 198
Docket No.: 20090371
Filing Date: 10/19/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: In reapplying for workers compensation disability benefits, a claimant must show both a significant change in a compensable medical condition and an actual wage loss caused by the significant change in the medical condition.

Hoggarth, et al. v. Kropp 2010 ND 197
Docket No.: 20090326
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: "Disorderly conduct" for the purposes of a disorderly conduct restraining order depends on the total behavior of the respondent, not merely the particular content of speech.
A disorderly conduct restraining order must be narrowly tailored as to time and distance to balance the protection interests of the petitioner with the freedom interests of the respondent.

Marsden v. Koop 2010 ND 196
Docket No.: 20090285
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An extramarital relationship may be relevant to primary residential responsibility if the children were affected by it.
Inherited property is included in the marital estate and is subject to equitable distribution.

R.F. v. M.M., et al. (CONFIDENTIAL) 2010 ND 195
Docket No.: 20100046
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: When the plaintiff is not the appropriate party to bring an action under a statute, the court must give the party a reasonable time for ratification, joinder, or substitution of the real party in interest before dismissing the action.
A court's decision on grandparent visitation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
A grandparent does not have to have an existing relationship with the child before a court may award grandparent visitation, but the court must find that the visitation is in the child's best interests and that the visitation will not interfere with the parent-child relationship.

Entzie v. Entzie 2010 ND 194
Docket No.: 20100067
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In calculating a child support obligation, a district court must specifically find an obligor's tax returns are not an adequate reflection of income or are not a reliable indicator of future income before the court can refuse to consider tax return information.
A district court must make specific findings on why averaging the most recent five years of a self-employed obligor's income is insufficient before it may use a shorter period of time to calculate income from self-employment.
An obligor may be found underemployed only after the obligor's income was properly calculated under the child support guidelines.
A district court must state what provision of the guidelines allows the court to impute income to an obligor.

State v. Fischer 2010 ND 193
Docket No.: 20100039
Filing Date: 10/19/2010
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for assault on a peace officer and terrorizing summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of D.V.A. (CONFIDENTIAL) (Cross-Ref w/20080319) 2010 ND 192
Docket No.: 20100091
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Not Available

Highlight: Order continuing commitment as sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Peltier 2010 ND 191
Docket No.: 20100069
Filing Date: 10/19/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Not Available

Highlight: Conviction on two counts of gross sexual imposition summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Matter of M.D. (CONFIDENTIAL) 2010 ND 190
Docket No.: 20100058
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Civil commitment of a sexually dangerous person summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Fehl-Haber v. State 2010 ND 189
Docket No.: 20100019
Filing Date: 10/19/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Pankowski 2010 ND 188
Docket No.: 20100115
Filing Date: 10/16/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction of possession with intent to manufacture or deliver a controlled substance (methamphetamine) and with intent to flee or attempt to elude a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Disciplinary Board v. Lucas 2010 ND 187
Docket No.: 20100104
Filing Date: 9/29/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Rule 4.2 of the North Dakota Rules of Professional Conduct, prohibiting attorneys from communicating with a represented party, applies to attorneys who are representing themselves.

Estate of Fisk 2010 ND 186
Docket No.: 20090157
Filing Date: 9/21/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The review of fees paid or taken by a personal representative is left to the sound discretion of the district court.
The $3,000 funeral expense limit in N.D.C.C. 50-24.1-07(1) applies to a deceased medical assistance recipient's spouse's funeral expenses.
The Department of Human Service's right to recovery under N.D.C.C. 50-24.1-07 is limited to estate assets the medical assistance recipient had an interest in at the time of death, and does not extend to the surviving spouses's separately owned assets.

Sailer v. Sailer 2010 ND 185
Docket No.: 20100038
Filing Date: 9/21/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The substantive enforceability of a premarital agreement is a matter of law to be decided by the court.
Determining whether a premarital agreement is "clearly unconscionable" requires the district court to make complete factual findings about the parties' relative property values, in addition to the contesting spouse's other resources and foreseeable needs.

State v. Adams 2010 ND 184
Docket No.: 20090383
Filing Date: 9/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Those who voluntarily choose to live with probationers assume the risk that they, too, will have diminished Fourth Amendment rights in areas shared with the probationer.
What may be considered outside the scope of general consent and thus an unreasonable search may be considered reasonable under the terms of a court-ordered condition allowing for the warrantless search of a probationer.

Quality Bank, et al. v. Cavett 2010 ND 183
Docket No.: 20100024
Filing Date: 9/21/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Whether a contract is unconscionable is a question of law for the court to decide and depends upon the factual circumstances of each case.
When determining whether a contract is unconscionable, courts look for procedural unconscionability, which encompasses factors relating to unfair surprise, oppression, and inequality of bargaining power, and substantive unconscionability, which deals with the harshness of the contract, as well as whether the contract is commercially reasonable.

Bjarko v. State (consolidated w/20100071) 2010 ND 182
Docket No.: 20100070
Filing Date: 9/21/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Kraft 2010 ND 181
Docket No.: 20100005
Filing Date: 9/21/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment of conviction of manufacturing methamphetamine and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Darby v. State 2010 ND 180
Docket No.: 20090347
Filing Date: 9/21/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Not Available

Highlight: District court amended order denying an application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Penor 2010 ND 179
Docket No.: 20100042
Filing Date: 9/21/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Criminal judgment for unauthorized use of a motor vehicle summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of B.B. (CONFIDENTIAL) 2010 ND 178
Docket No.: 20100161
Filing Date: 9/21/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: District court judgment terminating parental rights instead of ordering a guardianship is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4).

State v. Jackson 2010 ND 177
Docket No.: 20100059
Filing Date: 9/21/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Driving under suspension conviction summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Rayas v. Marchus, et al. 2010 ND 176
Docket No.: 20100139
Filing Date: 9/21/2010
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Dismissal of case barred by the applicable statute of limitations is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Disciplinary Board v. Wolff (CONSOLIDATED W/ 20100213 & 20200214) 2010 ND 175
Docket No.: 20100212
Filing Date: 9/20/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Maring, Mary

Thompson v. Jaeger 2010 ND 174
Docket No.: 20100272
Filing Date: 9/7/2010
Case Type: Original Proceeding - Civil - Writ of Certiorari
Author: Sandstrom, Dale

Highlight: A word or a phrase repeated in a constitutional provision is generally given the same meaning throughout the constitution.
A petition for an initiated measure must contain the sponsors' names and addresses, and a petition circulated for signatures without that information is insufficient.
The complete failure to comply with a mandatory constitutional provision for initiated measures is not substantial compliance.
Administrative estoppel requires conduct by the person being estopped which amounts to a false representation or a concealment of material facts.

Adoption of S.M.G. (CONFIDENTIAL) 2010 ND 173
Docket No.: 20100049
Filing Date: 9/3/2010
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A district court's decision cannot be reviewed when the court does not provide any indication of the evidentiary and theoretical basis for its decis
ion. The trial court errs as a matter of law when it does not make the required findings.

Interest of S.L.W. (CONFIDENTIAL) 2010 ND 172
Docket No.: 20100006
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Paternity
Author: Crothers, Daniel John

Highlight: An alleged father cannot, in a subsequent paternity action, challenge a prior judgment disestablishing the paternity of a presumed or adjudicated father based upon an allegation that the prior action was barred by the statute of limitations.
In a paternity action seeking an order of child support, the district court may order child support effective prior to the date of service of the summons and complaint as reimbursement for governmental assistance provided to the child.

Interest of Maedche 2010 ND 171
Docket No.: 20090268
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: North Dakota's commitment of sexually dangerous individuals statute is not unconstitutionally void for vagueness.

Kannianen v. White 2010 ND 170
Docket No.: 20090368
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: When interpreting the language of a prior judgment, a court must presume that the original trial judge considered existing statutes and relevant caselaw, and intended the judgment to conform to the applicable legal standards.

Investors Title Insurance Co. v. Herzig, et al. (Cross-Ref w/20090051) 2010 ND 169
Docket No.: 20090213
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: In construing a trust agreement, the primary objective is to ascertain the settlor's intent.
When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself.
The North Dakota Uniform Trust Code recognizes and enforces valid spendthrift clauses.
The district court's decision to appoint a receiver rests in its sound discretion.
A lis pendens is notice of all facts apparent on the face of the pleadings, and of those facts of which the facts so stated necessarily put the purchaser on the inquiry.

Hector v. City of Fargo 2010 ND 168
Docket No.: 20100061
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: North Dakota law authorizes the creation of special improvement districts that include land outside the limits of a municipality.

Ackre v. Chapman & Chapman, P.C. 2010 ND 167
Docket No.: 20100044
Filing Date: 8/31/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: To have standing, a litigant must have suffered some threatened or actual injury resulting from the putatively illegal action, the asserted harm must not be a generalized grievance shared by all or a large class of citizens, and the litigant generally must assert his or her own legal rights and interests and cannot rest a claim for relief on the legal rights and interests of third parties.
A plaintiff may have standing to bring an unlawful practice claim against a business competitor if the plaintiff can show the putatively illegal action caused some threatened or actual injury to his or her legal rights and interests.

Schwarz, et al. v. Gierke 2010 ND 166
Docket No.: 20090220
Filing Date: 8/30/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A denial of a motion to compel arbitration is reviewed under the de novo standard, unless the lower court's decision was based on factual findings, in which case the clearly erroneous standard applies.
Recognizing a strong state and federal public policy favoring the arbitration process, courts resolve any doubts concerning the scope of arbitrable issues in favor of arbitration when there is a broad arbitration clause and no exclusion clause.
Before a party may be compelled to arbitrate, a court must determine whether a valid agreement to arbitrate exists between the parties and whether the specific dispute falls within the substantive scope of that agreement.

Peterson v. Peterson 2010 ND 165
Docket No.: 20090173
Filing Date: 8/24/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: In awarding spousal support, the district court must consider the relevant factors of the Ruff-Fischer guidelines.
An award of spousal support may be appropriate to recognize a spouse's role in contributing to the development of the other spouse's earning capacity during the marriage.

Bala, et al. v. State 2010 ND 164
Docket No.: 20090312
Filing Date: 8/23/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Eminent domain takes property because it is useful to the public, while the police power regulates the use of, or impairs rights in, property to prevent detriment to the public interest, and constitutional provisions against taking private property for public use without just compensation impose no barrier to the proper exercise of the police power.
The imposition of a tax, even an invalid one, generally is not a Fifth Amendment taking.

Matter of A.M. (CONFIDENTIAL) 2010 ND 163
Docket No.: 20100014
Filing Date: 8/23/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: Before an individual may be committed to the state hospital as a "sexually dangerous individual," the State must prove by clear and convincing evidence: (1) the individual has engaged in sexually predatory conduct; (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; (3) the condition makes the individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others; and (4) the individual has serious difficulty controlling his behavior.
A district court's finding that an individual is a "sexually dangerous individual" will not be overturned on appeal unless clearly erroneous.

Murphy v. Rossow 2010 ND 162
Docket No.: 20090299
Filing Date: 8/23/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A final judgment can be amended if it was the product of mistake, inadvertence, surprise, or excusable neglect.
Property distributed in a divorce is valued at the time of divorce.

Snyder v. Snyder 2010 ND 161
Docket No.: 20100021
Filing Date: 8/20/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A divorcing party near retirement is not per se entitled to a reduced support obligation upon retirement. When substantial uncertainty surrounds a future retirement, the proper remedy is to move for modification upon retirement.
A district court's order requiring security for a spousal support obligation is reviewed for an abuse of discretion.
Requiring security for a spousal support obligation is only appropriate after considering the circumstances of a case. The circumstances to be considered include an award of permanent support, the duration of a marriage, the obligee's age and marketable skills, an award of income-producing property, the existence of potential security, and the cost of obtaining security.

Matter of J.D.F. (CONFIDENTIAL) 2010 ND 160
Docket No.: 20100051
Filing Date: 8/20/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Rule 2.2, N.D.R.App.P., applies only to appeals from orders terminating parental rights.
The court may terminate the parental rights of a parent in connection with an adoption proceeding if the parent has abandoned the child.
Whether a child has been abandoned is a question of fact, and the district court's findings will not be reversed on appeal unless they are clearly erroneous.
A guardian ad litem is not a parenting investigator and is not required to write a report.
The court has discretion in allocating a guardian ad litem's expenses.

Estate of Cashmore 2010 ND 159
Docket No.: 20090315
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: Once a final judgment or order has been entered approving a final accounting and distribution of estate property, the estate proceedings are concluded and the parties are not authorized to file a petition to approve an amended final accounting under the statute.
When there is a substantial, unanticipated change in the value of an asset after trial but before distribution of the property, the proper remedy is a motion to reopen to produce additional evidence at a hearing.
The reasonable amount of personal representative's fees and attorney's fees to be allowed is left in the sound discretion of the district court.

Lechler v. Lechler 2010 ND 158
Docket No.: 20090370
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In a custody dispute, a court may interview children in chambers provided no party objects.
Parents have the right to use reasonable force to discipline their children.

Interest of M.G. (CONFIDENTIAL) 2010 ND 157
Docket No.: 20100207
Filing Date: 8/17/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: Long-term and intensive treatment for a parent is not required if it cannot be successfully undertaken in time to enable the children to be returned to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.

Praus v. Praus 2010 ND 156
Docket No.: 20090354
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Procedural unconscionability focuses on the formation of a settlement agreement and the fairness of the bargaining process, while substantive unconscionability focuses on the harshness or one-sidedness of the agreement's provisions.
A motion for relief from a judgment is not intended to be used to relieve a party from free, calculated, and deliberate choices he or she has made.

Zutz, et al. v. Kamrowski, et al. 2010 ND 155
Docket No.: 20090392
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: Under Minnesota law, a county attorney's statutory duties include providing advice to county commissioners, and an absolute privilege attaches to allegedly defamatory statements made in a contract investigator's report to a county attorney on matters involved in a county commission's request for advice.

Matter of A.M.W. (CONFIDENTIAL) 2010 ND 154
Docket No.: 20100013
Filing Date: 8/17/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: A party seeking termination of the parent-child relationship in the context of an adoption must prove the elements necessary to support termination by clear and convincing evidence.
Abandonment of a child is a question of fact, which will not be reversed on appeal unless it is clearly erroneous.