Opinions

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.

Kortum, et al. v. Johnson, et al. (Cross-Ref w/20070186) 2010 ND 153
Docket No.: 20090275
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Corporations
Author: Crothers, Daniel John

Highlight: Issues which are beyond the scope of a remand in a prior appeal will not be addressed in a subsequent appeal after remand.
Under the law of the case doctrine, a party cannot on a second appeal relitigate issues which were resolved by the Court in a first appeal or which would have been resolved had they been property presented in the first appeal.

State v. Hammer 2010 ND 152
Docket No.: 20100025
Filing Date: 8/17/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A bank customer does not have a reasonable expectation of privacy in bank records, and the Fourth Amendment does not apply when the government obtains the customer's records from the bank by subpoena.
Before administrative proceedings are initiated, Workforce Safety & Insurance may obtain bank records as part of an investigation through an administrative subpoena duces tecum.
An administrative proceeding for the forfeiture of disability and medical benefits is civil in nature, and subsequent criminal prosecution for workers compensation fraud is not double jeopardy.

Huber v. Farmer's Union Service Ass'n, et al. 2010 ND 151
Docket No.: 20090388
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A provision of a contract must in and of itself be inherently illegal to be unlawful for purposes of N.D.C.C. 9-08-01.
The doctrines of frustration of purpose and impossibility of performance do not apply if either the frustration or the impossibility is caused by a party to the contract.
Prejudgment interest may be awarded where party fails to avail itself of procedures for depositing disputed funds with the court.

Richter v. N.D. Dep't of Transportation 2010 ND 150
Docket No.: 20100026
Filing Date: 8/17/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: A stop or seizure occurs under the Fourth Amendment when a law enforcement officer has in some way restrained the liberty of a citizen, and the mere approach and questioning of a person in a parked vehicle may not constitute a stop or seizure.
Criteria for evaluating whether a stop or seizure has occurred include the threatening presence of several law enforcement officers, a display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request is compelled.
To the extent prior precedent holds a Fourth Amendment stop or seizure occurs whenever a law enforcement officer taps on a window of a parked motor vehicle, that precedent is overruled.
Specifications of error in an administrative appeal must identify what matters are truly at issue with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.

S.H.B. v. T.A.H. (CONFIDENTIAL) 2010 ND 149
Docket No.: 20090267
Filing Date: 8/17/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: To establish abandonment under N.D.C.C. 27-20-02(1)(a), a petitioner seeking termination of a parent's parental rights must show that the parent intended to abandon the child.
If a party fails to properly raise an issue or argument in the trial court, the party is precluded from raising that issue or argument on appeal.

Pembina Co. Water Resource Brd. v. Cavalier Co. Water Resource Brd. 2010 ND 148
Docket No.: 20100037
Filing Date: 8/17/2010
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Kapsner, Carol

Highlight: A petitioner for a writ of mandamus must demonstrate that there is no other plain, speedy, and adequate remedy in the ordinary course of law.

Interest of R.S. (CONFIDENTIAL) 2010 ND 147
Docket No.: 20100036
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: Under N.D.C.C. 27-20-02(8)(a), "deprived child" means "a child who . . . [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian."

Petition to Change Judgeship No. 4 Chambers from New Rockford to Lisbon 2010 ND 145
Docket No.: 20100174
Filing Date: 8/3/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Petition to Change Judgeship No. 4 Chambers from New Rockford to Carrington 2010 ND 145
Docket No.: 20100169
Filing Date: 8/3/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Judicial Vacancy in Judgeship No. 4, SEJD (see 20100169 and 20100174) 2010 ND 145
Docket No.: 20100130
Filing Date: 8/3/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at New Rockford.

State v. Blunt (cross-reference w/20070247) 2010 ND 144
Docket No.: 20090110
Filing Date: 7/16/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: In determining what constitutes an acquittal, the label used by the district court is not conclusive and the reviewing court will consider the substance of the district court's ruling to determine whether it actually represents a resolution of some or all of the factual elements of the offense charged.
The district court may withdraw from the jury's consideration particular factual issues or legal theories not supported by the evidence and submit the remaining factual issues and legal theories to the jury.
The State may elect to charge each misapplication of entrusted property as a separate offense, or the State may charge all misapplication of entrusted property as a single offense.

Woodward v. Woodward (Cross-Ref w/20080343 & 20090053) 2010 ND 143
Docket No.: 20090316
Filing Date: 7/15/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, and the test for appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality.
Persistent and willful denial or interference with parenting time is grounds for modification of primary residential responsibility.

Reciprocal Discipline of Kenny 2010 ND 142
Docket No.: 20100194
Filing Date: 7/19/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded under Rule 4.4, N.D.R. Lawyer Discipl., governing reciprocal discipline.

Thornton v. Klose 2010 ND 141
Docket No.: 20090320
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A temporary child support order amending a prior divorce judgment and setting the parties' child support obligations for a period of one year is appealable.
When a divorce judgment explicitly orders a child custody schedule which results in an unequal division of custodial time between the parents, it does not order "equal physical custody" and the child support offset provision does not apply.
Judgment provisions allowing the parties to mutually agree to a different custodial schedule or declaring the parties are considered to have equal physical custody for purposes of calculating child support do not trump an ordered custody schedule or convert the unequal division of custody into "equal physical custody."

Melchior v. Lystad, et al. 2010 ND 140
Docket No.: 20100045
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Summary judgment is appropriate if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result.
Where a grantor conveys land in such a manner as to include all of the minerals, and then reserves to himself fifty percent of the minerals, the reservation is not operative when the grantor owns only fifty percent of the minerals. Both the grant and the reservation cannot be given effect, so the grantor loses because the risk of title loss is on the grantor.
For a mutual mistake to justify reformation of a contract, it must be shown that at the time of the execution of the agreement, both parties intended to say something different from what was said in the instrument.

State v. Meador 2010 ND 139
Docket No.: 20100063
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: The retroactive application of the sexual offender registration statute is remedial and non-punitive and does not violate federal or state constitutional prohibitions against ex post facto laws.
A party waives an issue if the party does not provide supporting argument, and an argument is without merit if the party does not provide supportive reasoning or citations to relevant authorities.

Investors Title Insurance Co. v. Herzig, et al. (Consol. w/20090052) 2010 ND 138
Docket No.: 20090051
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.
At common law, a cause of action to enforce a penalty does not survive the death of either party unless the penalty is contractual. Causes that are remedial or contractual survive.
A remedial sanction includes a sanction that is conditioned upon performance or nonperformance of an act required by court order. A sanction requiring payment of money is remedial if imposed to compensate a party or complainant, other than the court, for loss or injury suffered as a result of the contempt.

State v. Poitra 2010 ND 137
Docket No.: 20090339
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A defendant claiming statements in an affidavit for a search warrant are false or misleading because important information was omitted must show: (1) law enforcement omitted facts with the intent or in reckless disregard of whether they made the affidavit misleading, and (2) the affidavit would not have been sufficient to support a finding of probable cause if the omitted information had been included.
A juvenile does not have a statutory right to have an attorney present when a search warrant is executed.
A person cannot take advantage of his own wrong.

Schirado v. Foote, et al. 2010 ND 136
Docket No.: 20090282
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A nonparent seeking to qualify as a person acting as a parent under the Uniform Child Custody Jurisdiction and Enforcement Act must claim a right to legal custody under the laws of North Dakota. At a minimum, this requires claiming right to legal custody prior to or simultaneous with commencement of the pending litigation.

Interest of M.W. (CONFIDENTIAL) 2010 ND 135
Docket No.: 20100047
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: When a child attains the age of twenty years, all juvenile court orders affecting the child then in force terminate and the child is discharged from further obligation or control.
When a child attains the age of twenty years, the juvenile court is without jurisdiction to issue an order transferring charges to the district court.

State v. Lehman 2010 ND 134
Docket No.: 20100002
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: To grant a judgment of acquittal, a court must find there is insufficient evidence to sustain a conviction.
The parties must object to an instruction, or failure to give an instruction, on the record.
The standard of review for reconciling a jury verdict is whether the verdict is legally inconsistent.

Halvorson, et al. v. Starr, et al. 2010 ND 133
Docket No.: 20100068
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: The computation of time for statutory notice of lapse of mineral interest is governed by N.D.C.C. 1-02-15, not the North Dakota Rules of Civil Procedure.

State v. Irwin 2010 ND 132
Docket No.: 20100082
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A defendant does not suffer a manifest injustice when pleading guilty to a fifth DUI in seven years, although at the time of arrest he has not yet been convicted of his fourth DUI in seven years.

Interest of C.H. (Confidential) 2010 ND 131
Docket No.: 20100162
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: In determining whether an individual is a "person requiring treatment," a district court must consider (1) whether the individual is "mentally ill," and (2) whether there is a reasonable expectation that, if the individual is not hospitalized, there exists a serious risk of harm to himself, others, or property.

Boeckel v. Boeckel 2010 ND 130
Docket No.: 20090302
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Where evidence of domestic violence exists, the district court must make specific and detailed findings regarding the application of the presumption against awarding custody to the perpetrator of domestic violence.

State v. Everett 2010 ND 129
Docket No.: 20090386
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Revocation of probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

State v. Colby 2010 ND 128
Docket No.: 20100057
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Kuhn 2010 ND 127
Docket No.: 20100060
Filing Date: 7/7/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for ninety days and ordered to pay the costs and expenses of the proceeding for violating N.D.R. Prof. Conduct 1.14, Client With Limited Capacity.
Drafting a will for a client who has been declared incapacitated without obtaining permission or authorization from the client's court-appointed guardian is a violation of N.D.R. Prof. Conduct 1.14.

Workforce Safety & Insurance v. Auck 2010 ND 126
Docket No.: 20090223
Filing Date: 7/2/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: In an administrative agency case, the factual findings from a final decision by an independent administrative law judge are reviewed under the same standard of review used for agency decisions. The legal conclusions from a final decision by an independent administrative law judge are not entitled to similar deference and are reviewed in the same manner as legal conclusions generally.
Where a reasoning mind reasonably could have determined the weight of the evidence from the record supported the finding that a heart attack resulting in death was caused by unusual stress resulting from an employee's employment with reasonable medical certainty and that the unusual stress was at least fifty percent of the cause of the heart attack as compared with all other contributing causes combined, the reviewing court will affirm.

Lenton v. Lenton 2010 ND 125
Docket No.: 20090294
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When a finding of domestic violence is based solely on fear of physical harm, the fear must be of imminent physical harm.
A finding of domestic violence may be based on actual harm, or the infliction of fear of imminent harm, or both, but may not be based solely on the infliction of fear of actual harm that may occur at some indefinite time in the future.

American Bank Center v. Schuh, et al. 2010 ND 124
Docket No.: 20090367
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: A party seeking relief from a default judgment under N.D.R.Civ.P. 60(b)(i) must make some showing of why he was justified in failing to avoid mistake or inadvertence.

State v. Bernsdorf 2010 ND 123
Docket No.: 20100017
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The State cannot appeal a judgment of acquittal.

Aurora Medical Park v. Kidney & Hypertension Center 2010 ND 122
Docket No.: 20090331
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: In an eviction action the right to the possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.
It is for the legislature to weigh conflicting public policy arguments and to enact accordingly.

State v. Wanner 2010 ND 121
Docket No.: 20090280
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: The purpose of sequestration is to prevent one witness's testimony from influencing another.
If the objecting party clearly shows by offer of proof or other appropriate means, a witness's testimony would be influenced by prior testimony the witness heard in violation of a sequestration order, it would be an abuse of discretion for the court to allow the witness to testify.

State v. Mohl 2010 ND 120
Docket No.: 20100009
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: An officer observing a vehicle touch the fog line approximately sixteen times and the center line approximately eight times in three miles has reasonable suspicion to stop the vehicle.