Opinions

Markwed Excavating, Inc. v. City of Mandan 2010 ND 220
Docket No.: 20100076
Filing Date: 11/15/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A clause in a construction contract prohibiting a contractor from recovering damages for delay and granting an extension of time is enforceable if the requirements for a valid contract are satisfied.
Unambiguous language in a no damages for delay clause in a construction contract does not include an exception for uncontemplated delays and includes delays allegedly caused by an owner or another contractor.
A no damages for delay clause in a contract between a public entity and a private contractor is not unconscionable.

Wong v. State 2010 ND 219
Docket No.: 20100171
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A district court cannot on its own put an applicant for post-conviction relief to his proof. Only a party can move for summary disposition under post-conviction relief.

Sanders v. Gravel Products, Inc. (cross-ref w/ 20080001) 2010 ND 218
Docket No.: 20090318
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Federal and state courts have concurrent jurisdiction over participant or beneficiary suits to recover benefits under an ERISA plan, to enforce rights under the plan, or to clarify rights to future benefits.
"Top hat" plans are not subject to ERISA's requirements for vesting and funding, and administrators of these plans are not subject to ERISA's fiduciary requirements.
A court must interpret a plan's terms by giving the language its common and ordinary meaning as a reasonable person in the position of the plan participant would have understood the words to mean.

State v. Hager 2010 ND 217
Docket No.: 20100090
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Federal securities laws do not preempt state securities laws that require registration of individuals involved in the sale of securities.
The definition of agent for purposes of the North Dakota Securities Act is not limited to third-party individuals who are not employees or owners of the securities issuer.

Gussiaas v. Neustel 2010 ND 216
Docket No.: 20100086
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A move by a parent with primary residential responsibility either out-of-state or in-state, accompanied by other circumstances, may be viewed as a material change of circumstances.
If a district court finds a material change of circumstances has occurred, the court cannot change primary residential responsibility for the child unless it further finds that the modification is necessary to serve the best interests of the child.
A district court's findings of fact must be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the trial court's decision.

JLY Transport v. WSI 2010 ND 215
Docket No.: 20100156
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The Workforce Safety & Insurance fund is not required to prove a compensable injury occurred before entering into a stipulated settlement with a worker.

State v. Walker 2010 ND 214
Docket No.: 20100112
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A defendant may be treated as the principal actor in a crime and convicted of an offense on the basis of the actions of an accomplice.
Neither the State nor a defendant may appeal a sentence alone, but either may appeal a post-judgment order denying a motion to correct an illegal sentence.

Johnson v. State (CONSOLIDATED W/20090322) 2010 ND 213
Docket No.: 20090321
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The Uniform Post-Conviction Procedure Act does not entitle a district court, on its own motion, to dismiss a claim on the basis of the affirmative defenses of res judicata or misuse of process.

Flemming v. Flemming 2010 ND 212
Docket No.: 20100041
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A default divorce judgment is subject to N.D.R.Civ.P. 60(b) and is not typically appropriate for appeal.

Masset v. N.D. Dep't of Transportation 2010 ND 211
Docket No.: 20100098
Filing Date: 11/9/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Every administrative agency must maintain an official record of each adjudicative proceeding heard by it.

State v. Aguero (Consol. w/ 20090254) 2010 ND 210
Docket No.: 20090241
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: The U.SConstitution forbids the routine use of visible physical restraints during the guilt phase of a criminal trial, unless the use is justified by an essential state interest.
The Sixth Amendment Confrontation Clause does not require exclusion of non-testimonial statements.
Miranda warnings carry an implicit assurance that silence will not carry a penalty, and the State may not use a criminal defendant's post-Miranda silence at trial against him.

Holbach v. State (Consolidated w/ 20100142-20100146) 2010 ND 209
Docket No.: 20100141
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court orders denying application for post-conviction relief, order denying motion to amend the judgment, and order on request for return of personal property are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of Disbrow 2010 ND 208
Docket No.: 20100028
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order of commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of R.J. (CONFIDENTIAL)(CONS. w/20100299 - 20100303) 2010 ND 207
Docket No.: 20100298
Filing Date: 11/9/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court's order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Nelson v. Nelson 2010 ND 206
Docket No.: 20100122
Filing Date: 11/9/2010
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment denying request for spousal support summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Szklarski 2010 ND 205
Docket No.: 20100087
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Johnson (cross ref. 20100001) 2010 ND 204
Docket No.: 20100135
Filing Date: 11/9/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: District court order denying a motion to extend the time to file a notice of appeal is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

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:

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:

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.

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:

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).

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.