New opinions: Aug. 5
Ring v. NDDHS 2021 ND 151 Docket No.: 20200072 Filing Date: 8/5/2021 Case Type: ADMINISTRATIVE PROCEEDING Author: VandeWalle, Gerald W.
Highlight: The law of the case doctrine applies when an appellate court has decided a legal question and remanded the case to the district court for further proceedings.
A district court’s decision concerning whether to allow substitution of a party under N.D.R.Civ.P. 25 is discretionary and reviewed on appeal for an abuse of discretion.
Lerfald v. Lerfald 2021 ND 150 Docket No.: 20210008 Filing Date: 8/5/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: VandeWalle, Gerald W.
Highlight: A party moving to modify parenting time must establish that a material change of circumstances has occurred since entry of the prior parenting time order and that modification is in the child’s best interests.
Klundt v. Benjamin 2021 ND 149 Docket No.: 20210048 Filing Date: 8/5/2021 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: VandeWalle, Gerald W.
Highlight: In proceedings relating to a motion to modify primary residential responsibility, a prima facie case warranting an evidentiary hearing consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child.
To establish a prima facie case that modification of primary residential responsibility is necessary to serve the best interests of the child requires more than the improved circumstances of the moving party.
Isxaaq v. State 2021 ND 148 Docket No.: 20210066 Filing Date: 8/5/2021 Case Type: POST-CONVICTION RELIEF Author: McEvers, Lisa K. Fair
Highlight: Whether an applicant for post-conviction relief adequately understands English without an interpreter is a finding of fact that will be affirmed on appeal if not clearly erroneous. An applicant cannot establish prejudice on an ineffective assistance of counsel claim alleging their attorney did not properly advise them on the immigration consequences of pleading guilty if the applicant offers only self-serving, subjective testimony that, with competent advice, they would have rejected a plea and proceeded to trial. An applicant must offer some evidence contemporaneous with the entry of the guilty plea to substantiate that the applicant would have gone to trial if he had known the deportation consequences of pleading guilty.
Bahmiller v. WSI, et. al. 2021 ND 147 Docket No.: 20210033 Filing Date: 8/5/2021 Case Type: WORKERS COMPENSATION Author: Jensen, Jon J.
Highlight: A workers’ compensation claimant is not entitled to receive benefits if the claimant fails to file a written claim for benefits within the specified time under N.D.C.C. § 65-05-01.
To have a compensable injury, a claimant must know or have reason to know the significance, or seriousness, of their condition and that the injury is work-related.
Highlight: Before dismissing an action for failure to prosecute under N.D.R.Civ.P. 41(b), a district court must consider several competing factors including a court’s need to manage its docket, the public interest in expeditious resolution of litigation, and the risk of prejudice to adverse parties from delay. The court must balance these factors against the great reluctance to impose the harsh remedy of dismissal based upon our policy favoring disposition of cases on their merits.
A district court’s decision to dismiss a claim for failure to prosecute will not be overturned absent an abuse of discretion.
While North Dakota law does not formally recognize motions to reconsider, motions for reconsideration may be treated as motions to alter or amend a judgment under N.D.R.Civ.P. 59(j), or motions for relief from a judgment under N.D.R.Civ.P. 60(b).
City of Fargo v. Roehrich 2021 ND 145 Docket No.: 20210023 Filing Date: 8/5/2021 Case Type: MISC. STATUTORY OFF. (MISDEMEANOR) Author: VandeWalle, Gerald W.
Highlight: Whether a law is unconstitutional is a question of law, which is fully reviewable on appeal.
Municipal harassment ordinance is not unconstitutionally vague on its face or as applied to defendant.
Bilger v. Bilger 2021 ND 144 Docket No.: 20210072 Filing Date: 8/5/2021 Case Type: DIVORCE/PROPERTY DIV./ALIMONY Author: Crothers, Daniel John
Highlight: Arguments not raised before the district court cannot be raised for the first time on appeal.
Under the Servicemembers Civil Relief Act, a servicemember may apply for a stay of the action if the requirements of military duty affects the servicemember’s ability to appear.
Highlight: Where you have a closely held company, the law imposes a fiduciary duty upon the governors and majority shareholders to act in good faith, and affords remedies to minority shareholders if those in control act fraudulently, illegally, or in a manner unfairly prejudicial toward any shareholder.
The date a person acquires interest in a company is a question of fact reviewed under the clearly erroneous standard.
Matter of Emelia Hirsch Trust 2021 ND 142 Docket No.: 20210144 Filing Date: 8/5/2021 Case Type: PROBATE - WILLS - TRUSTS Author: Per Curiam
Highlight: An order denying a motion to vacate an order reforming a trust is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), and (7).
State v. Cochran 2021 ND 141 Docket No.: 20200355 Filing Date: 8/5/2021 Case Type: DRUGS/CONTRABAND Author: Jensen, Jon J.
Highlight: Law enforcement may not search an individual’s home without a warrant unless the search falls within one of the recognized exceptions to the warrant requirement. Under the common-area, co-occupant consent exception, a co-occupant of a shared residence may consent to searches of the common areas of the residence.
This Court will not set aside a district court’s decision simply because the court may have applied an incorrect reason if the result is the same under the correct law and reasoning.
Lavallie v. Jay, et al. 2021 ND 140 Docket No.: 20190402 Filing Date: 8/5/2021 Case Type: PERSONAL INJURY Author: VandeWalle, Gerald W.
Highlight: Questions, the answers to which are not necessary to the determination of an appeal, need not be considered.
As a general rule, states lack civil jurisdiction over Indians within Indian country.
Indian country included trust land near the Turtle Mountain Reservation for purposes of determining subject matter jurisdiction.
Dwyer v. Sell, et al. 2021 ND 139 Docket No.: 20200188 Filing Date: 8/5/2021 Case Type: REAL PROPERTY Author: Crothers, Daniel John
Highlight: General rules of interpretation of written instruments apply to the construction of trust documents.
When a trust agreement is unambiguous, the settlor’s intent is ascertained from the language of the agreement itself.
Under N.D.C.C. § 47-05-17, the right of access to land to hunt game animals or game birds may not be severed from the surface estate.
