James M. Bekken

Estate of Conley , 2008 ND 148, 753 N.W.2d 384
North Dakota recognizes the common law presumption that a lost or missing will is presumed to be revoked by the testator.
The party seeking to probate the lost or missing will must demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi.
Hitz v. Hitz , 2008 ND 58, 746 N.W.2d 732
A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.
State v. Schmeets , 2007 ND 197, 742 N.W.2d 513
The threshold question for determining whether a person tampered with constitutes a "witness" is whether the individual charged with tampering with that person had a reasonably founded belief that the person tampered with would testify.
The person tampered with in a witness tampering case need not be included on a witness list filed in a case in order for an individual to be convicted of tampering with that witness.
Guardianship/Conservatorship of Thomas , 2006 ND 219, 723 N.W.2d 384
The Supreme Court applies the abuse of discretion standard when reviewing a trial court's selection of a guardian and conservator.
Concern over the appearance of undue influence can establish "good cause," justifying the appointment of a neutral and detached person as guardian and conservator over others with higher priority who have a financial interest in the protected person's assets.
The Supreme Court applies the abuse of discretion standard of review to the district court's ultimate decision whether to approve payment of a claim against a protected person's estate and the clearly erroneous standard of review to the court's underlying findings of fact.
Estate of Sorenson , 2006 ND 145, 717 N.W.2d 535
No acknowledgment or promise is sufficient evidence of a new or continuing contract to preclude operation of the statute of limitations unless the acknowledgment or promise is contained in a writing signed by the party to be charged.
Whenever services are rendered by one family member for another, a presumption arises that the services are gratuitous and that compensation was not intended, and a claimant has the burden to rebut the presumption by proof that the services were not gratuitous, which may be established by proof that the parties expressly or impliedly agreed the claimant would be compensated.
State v. Grager , 2006 ND 102, 713 N.W.2d 531
A prosecutor does not have the right to appeal an order dismissing a case when the proseuctor requested the dismissal.
The prosecution may not appeal an order suppressing evidence after the case has been dismissed at its request.
State v. Smith , 2006 ND 14, 709 N.W.2d 713
When an incorrect notice of appeal is filed leading to an issue not being appealed and the case proceeds through appeal, oral argument, and a written opinion, the issue will not be considered on a second appeal when the party made no attempt have the issue reviewed by correcting the notice of appeal or filing a petition for rehearing after the first appeal.
Simon v. Simon , 2006 ND 29, 709 N.W.2d 4
The offset provisions of the split custody and equal custody regulations of the child support guidelines continue to apply to the parents' child support obligations when one parent assigns the right to receive child support to the State as reimbursement for TANF benefits received.
Interest of P.B. , 2005 ND 201, 706 N.W.2d 78
An individual committed to a mental health facility does not enjoy the same level of freedom and rights as an uncommitted individual.
Once a decision of hospitalization is made, it is not the province of this Court to micro-manage the State Hospital.
Interest of K.G. , 2005 ND 156, 703 N.W.2d 660
A district court's finding, that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless it is clearly erroneous.
Koenig v. ND Dept. of Transportation , 2005 ND 95, 696 N.W.2d 534
The Department does not lack jurisdiction to suspend a license merely because an officer failed to forward test results that were not printed because of a printer malfunction.
State v. Ramsey , 2005 ND 42, 692 N.W.2d 498
A correct result will not be set aside merely because the trial court assigned an incorrect reason, if the result is the same under the correct law and reasoning.
When a defendant argues that the testimony of a witness is a recent fabrication or the result of improper influence or motive, prior statements of the witness may be admitted to rebut the charge if the witness is available for cross-examination and the prior statement is consistent with the testimony.
Subsequent crimes, wrongs, or acts are considered under the same evidentiary analysis as other or prior acts.
Doubts about the admissibility of evidence, such as doubts about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.
A jury is presumed to follow instructions given by the trial court.
The purpose of an appeal is to review the actions of the trial court, not to hear issues raised for the first time on appeal.
State v. Smith , 2005 ND 21, 691 N.W.2d 203
The information obtained by a police officer from an anonymous informant cannot alone establish probable cause if the tip provides virtually nothing from which a person might conclude the informant is honest or his information is reliable, or if the information gives absolutely no indication of the basis for identifying the criminal activities.
A police officer needs at least one reasonable and articulable factor to stop a seemingly innocent car.
Interest of J.S. , 2004 ND 159, 684 N.W.2d 657
In an appeal from a continuing treatment order, our review is limited to a review of the procedures, findings, and conclusions of the lower court.
District court's order based upon finding that less restrictive alternative treatment was not appropriate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Lura , 2004 ND 70, 688 N.W.2d 402
Drug convictions summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).
Interest of K.P. , 2004 ND 52, 676 N.W.2d 744
The party moving for a change of venue must establish that the convenience of witnesses and the ends of justice would be promoted by the change.
To modify an alternative treatment order and require hospitalization, the district court must find noncompliance with the terms of the order or find the order is insufficient to prevent the individual under the order from inflicting harm or injuries upon the individual or others.
Any amount of noncompliance with an alternative treatment order is cause for modification.
Saefke v. Stenehjem , 2003 ND 202, 673 N.W.2d 41
An action by a private party against the attorney general to challenge the correctness of an attorney general's opinion does not present a justiciable controversy.
A petitioner is not entitled to a writ of mandamus to compel a state's attorney to institute proceedings because the petitioner has a plain, speedy, and adequate remedy available under N.D.C.C. 11-16-06.
An order refusing to appoint a private attorney to initiate proceedings under N.D.C.C. 11-16-06 is not appealable.
The Supreme Court's jurisdiction to issue a supervisory writ is discretionary.
Interest of R.F. , 2003 ND 162, 670 N.W.2d 499
At a mental health hearing on a petition for discharge, the burden of proof is the same as at an involuntary treatment hearing.
The petitioner must prove by clear and convincing evidence that the respondent is a person requiring mental health treatment.
A person requiring treatment has the right to the least restrictive means of treatment.
State v. Stoppleworth , 2003 ND 137, 667 N.W.2d 586
When a victim is unable or unwilling to identify the defendant at trial, the victim's prior out-of-court statements identifying the defendant as his assailant are admissible if the victim testifies and is available for cross-examination at trial.
Interest of J.S. , 2003 ND 138, 667 N.W.2d 641
A person requiring mental health treatment has the right to the least restrictive conditions necessary to achieve the purposes of the treatment.
Intel-Foods Corporation v. Alexander , 2002 ND 180, 655 N.W.2d 84
An order denying a motion for a new trial on the basis of newly discovered evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).
State v. Fontaine , 2002 ND 172, 655 N.W.2d 84
Conviction for simple assault of a correctional officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
City of Jamestown v. Jerome , 2002 ND 34, 639 N.W.2d 478
A police officer is not fulfilling a community caretaking function when approaching a person under circumstances where it is obvious the person is neither in need of nor desires assistance.
Not all communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. A seizure within the context of the Fourth Amendment occurs only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.
Bender v. Aviko USA L.L.C. , 2002 ND 13, 638 N.W.2d 545
In opposing a summary judgment motion, a party may not simply rely on unsupported and conclusory allegations or denials in the pleadings, but must, instead, set forth specific facts illustrating the existence of a genuine issue for trial.
Chadwick v. N.D. Dept. of Transportation , 2001 ND 180, 636 N.W.2d 446
A police officer has reasonable grounds to believe a person is in actual physical control of a vehicle when that person is found conscious in the driver's seat of an idling vehicle.
T.F. James Co. v. Vakoch , 2001 ND 112, 628 N.W.2d 298
In a commercial lease, a provision providing for payment of attorney fees in the event of breach is enforceable and does not violate public policy.
Assignment of a different judge on remand requires balancing numerous competing interests. Reassignment is unnecessary if the integrity of the district court is preserved, litigants are protected from bias, and allegations of bias do not affect fair administration of the law.
State v. Rue , 2001 ND 92, 626 N.W.2d 681
Arrests for probation violations may be made by court order or on probable cause.
A probation violator, detained on a court order of apprehension for probation violations, is detained "pursuant to" conviction of an offense, and escape from such detention is a felony offense.
Due process requires the State to prove, beyond a reasonable doubt, every element of an offense.
Center Mutual Insurance Co. v. Thompson , 2000 ND 192, 618 N.W.2d 505
Terms of an insurance policy are given their ordinary, usual, and commonly accepted meaning.
The absence of a definition in an insurance policy in and of itself does not establish ambiguity or mean the issue is automatically resolved in favor of the insured.
The existence of an employment relationship is ordinarily a question of fact.
City of Jamestown v. Dardis , 2000 ND 186, 618 N.W.2d 495
Absent one of the exceptions to the warrant requirement at the time of the entry, evidence gained in violation of the Fourth Amendment's protections against unreasonable searches and seizures is inadmissible under the exclusionary rule.
To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent.
Opening the door widely with the knowledge a police officer is on the threshold is not sufficient affirmative conduct to constitute consent.
T.F. James Co. v. Vakoch , 2000 ND 9, 604 N.W.2d 459
Interest allowed after maturity is considered compensation for damages for the wrongful detention of money, and charging more than allowed by law is not "usury."
Sissell v. Nagel , 2000 ND 4, 609 N.W.2d 455
Order Denying a Motion to Vacate an Order of Dismissal summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Herrick , 1999 ND 1, 588 N.W.2d 847
When, prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336, a no-knock search warrant was issued on a per se basis under N.D.C.C. 19.1-03.1-32(3) because drugs were alleged to be present in the place to be searched, the good-faith exception to the exclusionary rule applies.
Rodacker v. ND Workers Comp. Bureau , 1998 ND 209, 595 N.W.2d 602
Bureau's order terminating disability benefits summarily affirmed under N.D.R.App.P. 35.1(a)(5).
State v. Rangeloff , 1998 ND 135, 580 N.W.2d 593
A defendant must make a substantial preliminary showing sufficient to require a Franks evidentiary hearing on allegations of falsity by police officers in the application for search warrants.
The Supreme Court reviews a trial court determination on the sufficiency of a Franks preliminary showing under the standard set in City of Fargo v. Thompson.
Whether probable cause exists to support the issuance of search warrants for residences is reviewed using the "totality of the circumstances" approach.
State v. Sabinash , 1998 ND 32, 574 N.W.2d 827
The defendant's incriminating statements to a deputy sheriff were made voluntarily.
Miranda warnings are required only when the accused is in custody.
State v. Hagen , 1998 ND 36, 574 N.W.2d 585
Criminal Judgment is affirmed when substantial evidence supports jury verdict.
District court is not obligated to call a witness that defense counsel does not call because counsel believed the witness would testify falsely.
State v. Herrick , 1997 ND 155, 567 N.W.2d 336
Trial court's order denying defendant's suppression motion is reversed and remanded. "No-knock" search warrant was issued merely because drugs might be present, in violation of Richards v. Wisconsin, 117 S.Ct. 1416 (1997). Remanded for consideration of whether the good-faith exception to the exclusionary rule should be applied.
Mertz v. Arendt , 1997 ND 113, 564 N.W.2d 294
The trial court's finding that a son acquired farm property through an executed parol gift from his parents was not clearly erroneous.
Estate of Opatz , 554 N.W.2d 813 (N.D. 1996)
Under Section 30.1-10-01(4)(a), N.D.C.C., the right to renounce property is barred only by an encumbrance against the property created by the disclaimant, not a third-party.
Neither a judgment lien, nor service of a garnishment summons against a devisee created encumbrances which barred the devisee's right to renounce her interest in the devised property.
State v. Larson , 554 N.W.2d 655 (N.D. 1996)
A defendant is entitled to an instruction on a lesser-included offense only if there is evidence to create a reasonable doubt about the greater offense and to support a conviction of the lesser offense beyond a reasonable doubt.
A defendant charged with assault of a peace officer was not entitled to an instruction on the lessor-included offense of simple assault where there was no evidence to create a reasonable doubt that the officers were acting in an official capacity.
Estate of Nelson , 553 N.W.2d 771 (N.D. 1996)
The trial court did not clearly err in finding the decedent lacked capacity to change ownership of his property to joint tenancy with right of survivorship in his son.
State v. Ertelt , 548 N.W.2d 775 (N.D. 1996)
Western Life Trust v. State , 536 N.W.2d 709 (N.D. 1995)
State v. Cox , 532 N.W.2d 384 (N.D. 1995)
Rice v. Rice , 537 N.W.2d 365 (N.D. 1995)
Lake Region Credit Union v. Crystal Pure Water, Inc. , 502 N.W.2d 524 (N.D. 1993)
Estate of Ambers , 477 N.W.2d 218 (N.D. 1991)
F.O.E. Aerie 2337 a/k/a Eagle's Club v. ND Workers Comp. Bureau , 464 N.W.2d 197 (N.D. 1990)
Farm Credit Bank of St. Paul v. Stedman , 453 N.W.2d 830 (N.D. 1990)
Farm Credit Bank of St. Paul v. Stedman , 449 N.W.2d 562 (N.D. 1989)
State v. Lund , 424 N.W.2d 645 (N.D. 1988)
State v. Weldon , 422 N.W.2d 98 (N.D. 1988)
State v. VandeHoven , 388 N.W.2d 857 (N.D. 1986)
Farmers State Bank of Leeds v. Thompson , 372 N.W.2d 862 (N.D. 1985)
State v. Vetsch , 368 N.W.2d 547 (N.D. 1985)
State v. Hegland , 355 N.W.2d 803 (N.D. 1984)
Estate of Engeseth , 352 N.W.2d 631 (N.D. 1984)
State v. Halvorson , 340 N.W.2d 176 (N.D. 1983)

Generated from Supreme Court Docket on 08/28/2008