Herbert L. Meschke

In this case, Maynard Zueger appealed the North Dakota Workers Compensation Bureau's termination of his disability benefits and order to repay $7,808 after the Bureau determined his self-limited performance on a functional capacity evaluation (FCE) was a false statement under N.D.C.C. § 65-05-33, based on videotape evidence of him performing physical work. The Supreme Court of North Dakota reviewed the administrative record and held that nonverbal conduct during the FCE did not constitute a "false statement" under the pre-1997 version of the statute, whose definition of "statement" covered testimony, records, test results, and similar evidence but not physical actions or omissions. The court reversed the Bureau's order and remanded, reasoning that the statutory language and legislative history did not support treating the claimant's test performance as a willful false statement warranting forfeiture of all benefits.

labor & employmentcriminal lawprocedure

The case involved Jeff McCarty's appeal from a North Dakota Workers Compensation Bureau order that dismissed his claim for benefits based on alleged false statements about a 1995 back injury at work. After an administrative law judge recommended awarding benefits, the Bureau initially accepted that recommendation but then issued a separate false-statements order denying the claim. The court held that the Bureau's false-statements order was barred by res judicata because it raised issues that were or could have been addressed in the prior adjudicative proceeding, which became final after the parties stipulated to dismiss McCarty's appeal. The court reversed the district court's affirmance and remanded for entry of judgment directing the Bureau to award benefits in accordance with the earlier order adopting the ALJ's recommendation.

labor & employmentprocedure

In Circle B Enterprises, Inc. v. Steinke, the dispute concerned an oral and written contract under which Steinke agreed to restore a 1961 Corvette for Circle B by April 21, 1995, with a daily $100 penalty for delay and provisions allowing Circle B to hire a third party at Steinke's expense if he failed to complete the work. The Supreme Court of North Dakota held that Steinke breached the contract by failing to substantially perform, as he completed less than one-third of the remaining work after the written agreement, and therefore could not recover for any post-agreement services. The court modified the trial court's judgment—which had awarded loss-of-use damages rather than enforcing the liquidated damages clause—to award Circle B $17,078.72, consisting of $14,917.71 in liquidated damages (including the $100-per-day assessment reducing the contract balance to zero plus third-party completion costs) and $2,161.01 for return of a credit balance, and affirmed the judgment as modified. The core reasoning applied the plain language of the time-is-of-the-essence and liquidated damages provisions, along with the rule that a contractor who fails to substantially perform may not recover under the contract.

business & regulatoryproperty

Albert Kouba sued his former employer Febeo, Inc. and its officer for wrongful discharge and interference with employment after a guest dispute led to his termination from a motel job; the defendants counterclaimed for attempted extortion. The trial court granted summary judgment dismissing Kouba's claims with prejudice but left the counterclaim unresolved and entered no final judgment covering all claims. The North Dakota Supreme Court dismissed the appeal, concluding that without a Rule 54(b) certification or disposition of every claim the judgment was neither final nor appealable under state civil procedure rules. The court remanded with instructions for the parties to promptly resolve the counterclaim so that a complete final judgment could be entered if desired.

procedurelabor & employmenttorts & liability

The case involved a dispute over drainage from a slough on Ray Kadlec's land in South Dakota, which overflowed during wet years and was blocked by a Greendale Township road in North Dakota, leading to flooding and road damage. Kadlec petitioned the Richland County Water Resource District multiple times for permission to install a culvert under the road but received deferrals or denials tied to unrelated drainage improvements. He then obtained a writ of mandamus from the trial court compelling the Township to install the culvert under N.D.C.C. § 24-03-06, which prohibits roadways from acting as dams and requires water to follow its natural course. The North Dakota Supreme Court affirmed, holding that Kadlec had a clear legal right to the culvert, no other plain speedy and adequate remedy existed, and the trial court did not abuse its discretion in issuing the writ despite arguments about exhaustion of administrative remedies.

propertyenvironmentprocedure

The case involved Nadira Ali, who received workers' compensation disability benefits from the North Dakota Workers Compensation Bureau for work-related upper extremity pain and tendinitis sustained while assembling electronic wire harnesses at Fargo Assembly Company. The Bureau suspended her benefits after she was unable to fully complete multiple functional capacity evaluations (FCEs) due to pain complaints, determining she had refused to reasonably participate under NDCC 65-05-28(4). The North Dakota Supreme Court reversed the district court's affirmance of the suspension and remanded for reinstatement of benefits. The court reasoned that the statute permits suspension only for intentional obstruction of an examination or unreasonable refusal to participate in treatment, that an FCE qualifies as an examination rather than treatment, and that Ali's pain-limited performance—despite her cooperation—did not constitute the required refusal or obstruction, particularly given repeated medical recommendations for a pain management program that the Bureau had not authorized.

labor & employment

Kevin Messner was convicted by a jury of two counts of gross sexual imposition for sexually abusing a five-year-old child. On appeal, he argued that the trial court violated his rights under the Confrontation Clause by admitting the child's out-of-court statements to a social worker and that his trial counsel provided ineffective assistance. The North Dakota Supreme Court affirmed the convictions, holding that the Confrontation Clause was satisfied because the child victim was available at trial and testified, giving the defense an opportunity for cross-examination, and that the ineffective assistance claim was not supported by the record. The court also found no abuse of discretion in the evidentiary rulings and no prejudice from counsel's strategic decisions.

criminal lawprocedure

Fathy Messiha, a tenured professor at the University of North Dakota School of Medicine, was relieved of his department chair duties in 1988 and later terminated in 1993 after university review committees found he had intentionally disrupted teaching and interfered with colleagues' rights. Messiha sued the State of North Dakota, UND, and several officials, alleging breach of contract, deprivation of property without due process, defamation, and related claims, while also moving to amend his complaint to add further allegations such as tortious interference and civil conspiracy. The trial court denied most proposed amendments due to unjustified delay and granted summary judgment dismissing the complaint, concluding there were no material factual disputes on the claims and that noncontractual claims lacked the required written notice to the state. The North Dakota Supreme Court affirmed, holding that the denial of amendments was not an abuse of discretion and that Messiha had not demonstrated any basis to reverse the dismissal.

labor & employmentcivil rightsprocedure

This case is a divorce action between Kathleen and Bruce Lohstreter after a 20-year marriage with four children, in which Kathy challenged the trial court's rulings on visitation terms, marital debt division, and denial of spousal support. The North Dakota Supreme Court affirmed the visitation schedule that gave older children control and allowed Kathy a right of refusal for transportation with the youngest child. It modified the property distribution by reallocating a portion of the MBNA debt away from Kathy, reversed the denial of spousal support on grounds that Kathy was disadvantaged by the marriage and Bruce's economic misconduct, and remanded for determination of attorney fees.

family lawproperty

This case involved a divorce between Paul and Candice Henry, where Paul appealed the trial court's decree to seek genetic testing to challenge his paternity of their son Mitchell (born before the marriage) and to contest the amount of child support ordered. The North Dakota Supreme Court affirmed the decree, which awarded primary physical custody to Candice and required Paul to pay $586 monthly in child support based on imputed income from his prior Air Force earnings. The court held that Paul was presumed to be the father under the Uniform Parentage Act due to the post-birth marriage and his name on the birth certificate, and that he had not made a timely motion during trial for genetic testing to rebut the presumption. On child support, the court upheld imputation of income under the guidelines given Paul's work history and earning capacity, even though he was unemployed and attending law school at the time of the decree.

family lawprocedure

This case involved Thomas Wieland's appeal from the denial of his motion to vacate the final distribution of his mother Florence Wieland's estate, based on his claim of newly discovered evidence consisting of 1980 contracts for deed and a supplemental agreement regarding the family farm. The trial court had approved a settlement distributing the farm to Thomas's sister Mary after Thomas quitclaimed his interest back to Florence, and Thomas sought to reopen the matter arguing the documents showed mutual contracts and promises to devise the land to him. The North Dakota Supreme Court affirmed the denial, holding that the evidence was insufficient to establish an enforceable contract not to revoke a will or to devise property under N.D.C.C. § 30.1-09-13, as the supplemental agreement allowed only discretionary lifetime gifts and did not create binding obligations that would alter the estate distribution.

family lawpropertyprocedure

The case involved Marilyn Simmons, a school district administrator, who sued for wrongful nonrenewal of her contract after the New Public School District No. 8 decided not to renew it. The trial court granted summary judgment to the district, but the North Dakota Supreme Court reversed, holding that the district failed to provide adequate written notice of the contemplated nonrenewal as required by state statute. The notice merely listed broad statutory terms like "ability" and "competence" without specific reasons drawn from prior evaluations, and the district introduced new complaints at the hearing, preventing Simmons from preparing adequately. The court reasoned that statutory notice requirements demand particularity to allow meaningful preparation, and the district could not rely on reasons not properly noticed beforehand.

labor & employmentprocedure

The case concerned Sarah Zimmerman's attempt, after her husband Wallace's death, to claim a statutory elective share of his augmented estate under North Dakota probate law. Wallace's will left her only the legal minimum and directed that she receive nothing if they were divorced at his death, while a 1985 prenuptial agreement addressed separate property and military retirement benefits but was silent on elective-share rights. The probate court ruled that Sarah had waived her elective share and that the will unambiguously devised her nothing. The North Dakota Supreme Court reversed, holding that the prenuptial agreement did not constitute an effective waiver of the elective-share statute and that the will's language was ambiguous because the couple never divorced. The court remanded for calculation of Sarah's elective share.

family lawproperty

Dawn Johnson appealed a district court judgment dismissing her petition for declaratory and injunctive relief against the North Dakota Workers Compensation Bureau. The case arose after Johnson sought $584 in benefits for kidney testing related to a 1995 work injury; the Bureau denied the claim, and under NDCC 65-02-15 the dispute was subject to mandatory arbitration because it involved less than $3,000. Johnson proceeded to arbitration under protest and simultaneously filed suit alleging the statute was unconstitutional for compelling arbitration and barring judicial review. The Supreme Court affirmed the dismissal, concluding that Johnson had not exhausted available administrative remedies through arbitration and therefore could not challenge the statute's constitutionality in court.

labor & employmentprocedure

This case involved Donald Luebke's appeal of a 365-day driver's license suspension by the North Dakota Department of Transportation after he was arrested for driving under the influence and tested at .11 percent blood alcohol concentration. Luebke argued he was denied his statutory right under NDCC 39-20-02 to an independent blood test because, after requesting one, the trooper refused to transport him and jail personnel did not assist. The Supreme Court of North Dakota reversed the district court's affirmance of the suspension and remanded to the agency, holding that further findings were needed on whether Luebke had made sufficient arrangements for an independent test at the hospital before law enforcement's duty to accommodate was triggered. The majority reasoned that the trooper's policy manual and actions, combined with the lack of follow-up by the sheriff's deputy, raised unresolved factual issues about access to the independent test.

criminal lawprocedure

In State v. Conley, a North Dakota prison inmate was charged with possessing contraband useful for escape after prison officials discovered fake identification items in his work area. Conley made incriminating statements during an initial interview with a prison captain and a subsequent adjustment committee disciplinary hearing, without receiving full Miranda warnings, and the trial court denied his motion to suppress those statements before accepting his conditional guilty plea. The Supreme Court of North Dakota reversed the judgment, ruling that Conley was in custody for Miranda purposes during the disciplinary hearing under the totality of the circumstances, as a reasonable prisoner would not have felt free to leave and criminal prosecution was a realistic possibility. The court held that the incomplete warnings given at the hearing were insufficient to protect his Fifth Amendment rights, rendering the statements inadmissible at trial, and remanded the case to allow withdrawal of the plea.

criminal lawprocedure

In State v. Greybull, the defendant was convicted by a jury of manslaughter after stabbing Charlene Yellow Bear during a visit to an apartment and was sentenced as a special dangerous offender, increasing her maximum term to 20 years. On appeal, Greybull challenged the denial of her motion to suppress statements made during police questioning, arguing violations of her Miranda rights and right to counsel, the sufficiency of the evidence to disprove her self-defense claim, and the lack of notice regarding sentencing consequences. The North Dakota Supreme Court affirmed the conviction, holding that the Miranda warnings were timely given, the questioning did not improperly continue after her inquiry about a lawyer, the evidence viewed in the light most favorable to the verdict showed she did not act in self-defense, and precedent did not require specific notice of the 85% service requirement for the enhanced sentence.

criminal lawprocedure

The case involved Laverne Gregory, who suffered a work injury in 1958 that led to permanent total disability in 1981, prompting the North Dakota Workers Compensation Bureau to award ongoing disability benefits "as long as [he] remain[ed] totally disabled." In 1996 the Bureau terminated those benefits under a new statute creating a rebuttable presumption that a recipient of social security retirement benefits is retired and ineligible for workers' compensation disability payments. Gregory appealed after completing the Bureau's adviser program, and the district court reversed the termination order; the Bureau then argued the appeal was moot or jurisdictionally defective. The North Dakota Supreme Court affirmed the district court judgment, holding that the Bureau had no authority to cancel a valid, open-ended obligation created under prior law and that the appeal was timely and not moot. The court reasoned that the 1995 statutory presumption did not retroactively alter the Bureau's existing duty to continue paying benefits tied to the original disability determination.

labor & employmentprocedure

In State v. Poitra, the defendant was charged with theft of property for obtaining materials valued over $500 by deception, falsely claiming to work for Basic Concrete Company and charging them to that account. After his court-appointed counsel withdrew at Poitra's request because he intended to hire private counsel but could not secure funding, Poitra represented himself at trial following limited discussion with the court and was convicted by a jury. On appeal to the North Dakota Supreme Court, Poitra argued he had not knowingly and intelligently waived his right to counsel. The court reversed the conviction and remanded for a new trial, holding that the record failed to show Poitra was adequately informed of the dangers of self-representation or that his waiver was knowing and intelligent, as his statements reflected he had no alternative rather than an unequivocal choice to proceed pro se.

criminal law

The case involved buyers who purchased a young Simmental bull from seller Wald under a limited guarantee in the sales brochure requiring the buyers to check semen quality before breeding season and disclaiming responsibility for later problems; after multiple semen tests showed unsatisfactory results, the buyers returned the bull and sued for damages and a refund of the purchase price, alleging breach of warranty that the bull was a sound breeder. The trial court granted partial summary judgment to the buyers on the ground that the bull was nonconforming. The North Dakota Supreme Court reversed, holding that genuine issues of material fact existed regarding the parties' intent, the interpretation of the express guarantee in light of industry custom and usage for yearling bulls, and whether the usage could be reconciled with the contract terms under the UCC. The court remanded for trial on those factual questions.

business & regulatoryprocedure