June 2003
June 17, 2003

Boser v. Hanson, 2003 ND 95
Jury instructions must fairly and adequately inform the jury of the applicable law.
A trial court may properly refuse to submit an inapplicable or irrelevant instruction to the jury.
Except as otherwise provided, N.D.C.C. 39-24-09 prohibits operating a snowmobile on a street or highway except while crossing a street or highway encountered as an obstacle to be overcome, rather than in its intended purpose of transportation along it.
Cue v. State, 2003 ND 97
A court is required to give a criminal defendant, upon sentencing, credit for all time spent in custody as a result of the criminal charge or conduct for which the sentence is being imposed.
A defendant has the burden of showing he is entitled to additional sentence credit for time served in custody.
Damron v. State, 2003 ND 102
To claim ineffective assistance of counsel in a plea agreement, a defendant must prove a serious dereliction on the part of the defendant's attorney that prevented the guilty plea from being anything other than knowingly and intelligently made.
Hogan v. Hogan, 2003 ND 105
That the trial court's decision did not follow the custody investigator's recommendation is not convincing evidence that the court failed to adequately consider the report or erred in exercising its judgment in its custody award.
A party who fails to present specific evidence of a property's value lacks evidence that a trial court erred in granting a percentage of the marital or nonmarital estate in a property division if, at the time of the trial, the court finds the valuation is too speculative.
Holman v. Berglund, 2003 ND 103
Dismissal of a malpractice claim is summarily affirmed under N.D.R.App.P. 35.1(a)(7). Dismissal of a lack of informed consent claim is summarily reversed under N.D.R.App.P. 35.1(b).
Interest of A.B., 2003 ND 98
A juvenile court does not reversibly err in reversing a judicial referee's recommendation where the record before the juvenile court includes the undisputed factual matters necessary for resolution of the case and the issues involved in the case are legal issues.
Under the Indian Child Welfare Act, good cause not to transfer a child custody proceeding to tribal court exists if the proceeding is at an advanced stage when the petition to transfer is received, or if the evidence to decide the case cannot be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
The Indian Child Welfare Act does not violate the substantive due process rights or equal protection rights of an Indian child.
Interest of I.K., 2003 ND 101
Before a court may order an extension of a continuing alternative treatment order, it must find from specific evidence that the patient is mentally ill and that there is a reasonable expectation that if the individual went untreated, there exists a serious risk of harm to the patient, to others, or to property.
Statutory mandates must be followed before a court can order an individual requiring treatment to take prescribed medication.
Marcotte's Builders Supply v. Strobel, 2003 ND 93
Judgment in a home construction contract dispute is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Olander Contracting Co. v. Gail Wachter Investments, 2003 ND 100
After becoming final, an appellate judgment on the merits of a dispute should be set aside under N.D.R.Civ.P. 60(b) only in exceptional circumstances.
N.D.R.Civ.P. 60(b) can be used to relieve a party from a judgment by vacating it, but it cannot be used to award additional affirmative relief.
Peters-Riemers v. Riemers, 2003 ND 96
A moot issue will be determined if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.
An appeal does not stay proceedings for enforcement of a judgment.
An indigent pro se defendant in a privately-initiated contempt proceeding must be informed of the right to court-appointed counsel when a remedial contempt sanction includes the likelihood of incarceration.
Public Service Commission v. Wimbledon Grain Co., 2003 ND 104
Farmers with unpaid credit-sale contracts with an insolvent grain buyer are "claimants" entitled to participate in the non-bond assets of the trust fund under N.D.C.C. 60-02.1-30, and the Public Service Commission is obligated to marshal the non-bond trust fund assets for their benefit.
Spath v. State, 2003 ND 94
Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Tognotti, 2003 ND 99
An officer arresting a passenger in a vehicle can search the driver's purse incident to the arrest without violating the driver's Fourth Amendment rights. State v. Gilberts, 497 N.W.2d 93 (N.D. 1993), is overruled to the extent it is contrary to this holding.
A police officer cannot, consistent with the Fourth Amendment, direct a person to leave a purse in a vehicle and then proceed to search the purse incident to the arrest of another passenger in the vehicle.

June 6, 2003

Haugenoe v. Bambrick, 2003 ND 92
If, in a medical malpractice case, the alleged malpractice is beyond the understanding of a layperson, an expert opinion must be obtained within three months of the commencement of the action to support the allegation of medical malpractice.
Issues not briefed by an appellant are deemed abandoned.
The requirement of obtaining an expert opinion within three months of the commencement of a medical malpractice action does not apply to informed consent claims.
Northern Plains Alliance, L.L.C. v. Mitzel, 2003 ND 91
When parties enter an agreement for the sale of property which is expressly subject to a right of first refusal by a third party, the contract is conditional and becomes binding on the seller only if the right of first refusal is not exercised.
Acceptance of an option for the sale of land within the time allowed and according to its terms converts the option into a binding executory contract of sale.

June 5, 2003

Sonsthagen v. Sprynczynatyk, 2003 ND 90
For a law enforcement officer to testify about the results of a sobriety test, the proper foundation to be established is evidence of the officer's training and experience in administering the test and evidence that the test was properly administered.
Probable cause to arrest for driving under the influence of drugs exists when an officer: 1) observes signs of a driver's physical or mental impairment; and 2) has reason to believe the impairment is caused by drugs.
State v. Corum, 2003 ND 89
Illegally obtained evidence cannot be the basis for a magistrate's finding of probable cause to support a search warrant.
To challenge a search warrant on the basis that police intentionally omitted relevant information when applying for the warrant, the defendant must show that probable cause would not have existed if the omitted information had been provided to the magistrate.
Failure to inform a magistrate about an informant's criminal history and pending criminal charges is not fatal to the validity of a search warrant.

June 3, 2003

Disciplinary Board v. Giese, 2003 ND 82
An attorney is suspended from the practice of law and ordered to pay costs and restitution for violating N.D.R. Prof. Conduct 1.8, 3.1, 3.2, and 8.4(e) and N.D.R. Lawyer Discipl. 1.2(a)(3).
The prohibition of transactions between an attorney and a client continues as long as the influence arising from the attorney-client relationship continues.
An attorney's prior advice to seek independent counsel for a prohibited transaction does not govern a subsequent variation of that transaction.
An attorney is an officer of the court and may be disciplined for conduct as a litigant in a civil action.
Fercho v. Remmick, 2003 ND 85
An appellate court decides the threshold issue of mootness before reaching the merits of an appeal.
An appeal is moot if an appellate court is unable to render effective relief due to the lapse of time, or the occurrence of an event before the appellate court renders its decision.
An appeal will be dismissed if the issue becomes moot and there is no actual controversy to be decided.
K.L.B. v. S.B., 2003 ND 88
The court can vacate a default judgment when circumstances justify it under a properly raised motion for relief from the judgment under N.D.R.Civ.P. 60(b).
Under N.D.C.C. 14-17-10 the district court is required to order genetic tests only if the request for tests is made when proceedings are pending to adjudicate parentage under the chapter.
Matter of Garrison State Bank and Trust, 2003 ND 84
If the party moving for summary judgment meets its initial burden of showing the absence of a genuine issue of material fact, the nonmoving party may not rely on mere allegations, but must present competent evidence by affidavit or other comparable means creating a material factual dispute.
Ramey v. Twin Butte School District, 2003 ND 87
To establish a prima facie case of discrimination for failure-to-hire under the North Dakota Human Rights Act, a plaintiff must show: (1) she is a member of a protected class under the Human Rights Act; (2) she sought and was qualified for the position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably.
State v. Fields, 2003 ND 81
During an investigatory stop of a vehicle, a traffic violator can be temporarily detained until the legitimate investigative purposes of the traffic stop have been completed.
Once the legitimate purposes of a traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable and articulable suspicion to believe that criminal activity is afoot.
State v. Moore, 2003 ND 83
The right to appeal and the deadline for filing an appeal are statutory.
A defendant may not appeal the dismissal of a charge without prejudice.
Trinity Health v. North Central Emergency Services, 2003 ND 86
Whether a contract has been substantially performed and whether a party has breached a contract are questions of fact.
When there has been a motion for summary judgment, but no cross-motion, the court already is engaged in determining if a genuine issue of material fact exists, the parties have been given an opportunity to present evidence to support or refute the request, and summary judgment may be rendered in favor of the party opposing the motion without a formal cross- motion.
Weninger v. Grzeskowiak, 2003 ND 80
Disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).