April 2003
April 24, 2003

State v. Norman, 2003 ND 66
The DNA database sampling requirements in N.D.C.C. 31-13-03 apply (1) to persons convicted after July 31, 2001, of a listed felony offense; and (2) to persons incarcerated after July 31, 2001, as a result of a conviction for one of the listed offenses.
Only issues which have been thoroughly briefed and argued will be addressed on appeal.
Obtaining a DNA sample under N.D.C.C. 31-13-03 does not violate a person's Fifth Amendment right against self-incrimination.

April 22, 2003

Spagnolia v. Monasky, 2003 ND 65
A contract is ambiguous when rational arguments can be made for different interpretations.
The intention of the parties to a contract must be gathered from the entire instrument and not from isolated clauses.
An implied trust, whether resulting or constructive, must be established by clear and convincing evidence.
An appellate court is not obligated to engage in unassisted searches of the record for evidence to support a litigant's position.
An appealing party has the burden of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.

April 17, 2003

Bachmeier v. N.D. Workers Compensation Bureau, 2003 ND 63
A claimant who files a reapplication seeking a resumption of discontinued disability benefits must prove an actual wage loss caused by a significant change in the compensable medical condition.
A claimant who was not working and had not sought employment before or after a change in his compensable medical condition did not incur an actual wage loss.
Koapke v. Herfendal, 2003 ND 64
A referring physician does not have a duty to obtain a patient's informed consent unless the referring physician formally prescribed or performed the procedure.
Retaining a "degree of participation" in the treatment plan associated with a surgery is not enough to create liability on the part of the referring physician.

April 15, 2003

Argabright v. Rodgers, 2003 ND 59
An ostensible agency rests upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe the agent has authority to act for and on behalf of the principal.
If an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
Cannaday v. Cannaday, 2003 ND 58
The rules for the division of property are the same in a separation action as in a divorce action, and the division must be an equitable one.
When the provisions of a separation judgment imply that the trial court intended the property division to be final, that judgment is binding upon the parties and it is improper for the court to subsequently alter the property division.
City of Bismarck v. Stockert, 2003 ND 57
Conviction for criminal mischief, disorderly conduct, and unlawful registration of a motor vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
City of Devils Lake v. Alford, 2003 ND 56
Denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Henry v. Securities Commissioner, 2003 ND 62
An order of the Securities Commissioner denying a motion to dismiss a cease and desist order is not a final order under the Administrative Agencies Practice Act and is not appealable.
Lanners v. Johnson, 2003 ND 61
When a plaintiff presents a prima facie case for child custody modification, an evidentiary hearing must be held.
Lesmeister v. N.D. Workers Compensation Bureau, 2003 ND 60
A claimant reapplying for workers compensation benefits must prove she has sustained an actual wage loss caused by a significant change in her compensable medical condition.
A claimant who is terminated for misconduct does not sustain an actual wage loss caused by a significant change in medical condition.
Schmidt v. Schmidt, 2003 ND 55
A trial court determining the best interest and welfare of a child in making a custody decision may appropriately consider such things as the child's interaction and interrelationships with a party's extended family and other people, such as childcare providers and others who may significantly affect the child's best interests.
A party may include in a brief materials not in the record if they are judicially cognizable apart from the record as authorities marshaled in support of a legal argument, but may not include material seeking to supplement the evidentiary record.

April 2, 2003

Disciplinary Board v. Schoppert, 2003 ND 54
Interim suspension of lawyer ordered.

April 1, 2003

Lawrence v. Delkamp, 2003 ND 53
A party seeking custody modification under N.D.C.C. 14-09-06.6(4) is entitled to an evidentiary hearing only if the party brings a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party.
For purposes of awarding attorney fees under N.D.C.C. 28-26-01(2) against a party bringing a frivolous claim for relief, a claim is considered frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected a favorable judgment.