Gerald W. VandeWalle, Chief Justice

Grinnell Mutual Reinsurance Co. v. Thies , 2008 ND 164,
An insurance contract is construed to give effect to the mutual intention of the parties as it existed at the time of contracting.
Courts look first to the language of an insurance contract, and if the policy language is clear on its face, there is no room for construction.
A third-party liability insurance policy provides coverage for the insured's liability to another in which the insurer assumes a contractual duty to pay judgments recovered against the insured arising from the insured's negligence, while a first-party property insurance policy provides coverage for loss or damage sustained by the insured in which the insurer promises to provide coverage to the insured upon the happening of the risk insured against.
State v. Keener , 2008 ND 156,
Claims of ineffective assistance of counsel are best raised in post-conviction proceedings to allow the parties to fully develop the record.
A defendant arguing ineffective assistance of counsel because of a conflict of interest caused by joint representation, who did not object to the joint representation, must show there was an actual conflict that adversely affected counsel's performance.
The court's failure to comply with N.D.R.Crim.P. 44, which requires the court to inquire into the propriety of joint representation, does not by itself require reversal.
Review of issues not raised below is limited to obvious error.
Restitution orders will not be reversed on appeal unless the district court abused its discretion.
State v. Lunde , 2008 ND 142, 752 N.W.2d 630
Evidence which is illegally seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule; however, under the good-faith exception, evidence should not be excluded when an officer has acted in good faith upon objectively reasonable reliance on the magistrate's probable cause decision.
The good-faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.
The good-faith exception does not apply because the officer's reliance on the warrant is not objectively reasonable: (1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
Estate of Thompson , 2008 ND 144, 752 N.W.2d 624
The existence of an oral contract is a question of fact.
An agreement for the sale of real property is invalid unless the agreement is in writing and subscribed by the party to be charged.
In the absence of a written agreement, a court may compel specific performance of any agreement for the sale of real property if there is part performance.
Part performance of an oral contract for the sale of land which exempts the contract from the statute of frauds and entitles a party to specific performance must be proven by evidence that it is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract.
State v. Rivet , 2008 ND 145, 752 N.W.2d 611
Prosecutor's use of a defendant's post-arrest silence after receiving Miranda warnings to impeach a defendant's exculpatory story, told for the first time at trial, violates the defendant's right to due process.
Although the right to remain silent is a personal constitutional right, under these circumstances, the violation of defendant's right to remain silent so impacted co-defendant's right to a fair trial as to necessitate a reversal of the co-defendant's judgment as well.
Carroll v. N.D. Workforce Safety & Insurance , 2008 ND 139, 752 N.W.2d 188
For the district court to acquire subject matter jurisdiction over an appeal from a decision of an administrative agency, the appellant must satisfy the statutory requirements for perfecting the appeal.
A workers compensation claimant disputing a managed care decision must appeal from a binding dispute resolution decision, and the decision is reviewable only if the employee has been denied medical treatment.
Adoption of C.D. , 2008 ND 128, 751 N.W.2d 236
An Indian tribe's determinations of its own membership and eligibility for membership are binding and conclusive in a proceeding under the Indian Child Welfare Act ("ICWA").
The burden of proof is upon the party asserting ICWA's applicability to present evidence that the child is an "Indian child" as defined in 25 U.S.C. section 1903(4).
Allegations in pleadings, motions, or briefs are not evidence.
For purposes of applying ICWA, membership in a tribe is not synonymous with enrollment as a member of a tribe, and a party may be a member of a tribe without being enrolled in the tribe.
ICWA applies only to tribal Indians, and does not extend to ethnic Indians who are not eligible for membership in a federally recognized Indian tribe.
Burlington Northern v. Fail , 2008 ND 114, 751 N.W.2d 188
The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.
A reservation must be clearly expressed in a deed and described with enough certainty so it can be identified as to its location.
State v. Curtis , 2008 ND 108, 750 N.W.2d 438
A criminal defendant's Sixth Amendment right to compulsory process is not absolute, and does not guarantee the right to secure the attendance and testimony of any and all witnesses.
A defendant alleging a violation of his right to compulsory process has the burden of showing that the testimony would have been both favorable and material to his defense.
The civil dispute doctrine, which allows a court to dismiss criminal proceedings if the matter should have been adjudicated civilly, is limited to cases where there is a legitimate property or contract dispute that is better suited for resolution in a civil matter.
Richter v. ND Dept. of Transportation , 2008 ND 105, 750 N.W.2d 430
Evidence that is excludable on constitutional grounds may be excluded by an administrative agency upon proper objection.
Reopelle v. Workforce Safety and Insurance , 2008 ND 98, 748 N.W.2d 722
Unless otherwise provided, statutes in effect on the date of an injury govern a claimant's right to collect workers compensation benefits.
The five-year limit for partial disability benefits applies to claimants who have partial loss of earnings capacity occurring after June 30, 1991.
Interest of I.B.A. and C.B.A. , 2008 ND 89, 748 N.W.2d 688
While there is no constitutional right to appear at the hearing, a parent must be represented by counsel at a hearing to terminate parental rights, absent a valid waiver of counsel.
A district court should make in-depth individual findings regarding each parent, rather than combining the parents together in its analysis of whether the children are deprived and whether deprivation is likely to continue.
Manske v. Workforce Safety and Insurance , 2008 ND 79, 748 N.W.2d 394
A worker's employment need not be the sole cause of injury to be compensable. It is sufficient if a work condition is a substantial contributing factor to the disease.
The fact that an employee may have physical conditions or personal habits which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim.
Stockman Bank of Montana v. AGSCO, Inc. , 2008 ND 74, 747 N.W.2d 516
Where a party is erroneously ordered to pay another, the party is entitled to interest at the legal rate set by N.D.C.C. 47-14-05, when the judgment is later reversed.
State v. Loomer , 2008 ND 69, 747 N.W.2d 113
For a not guilty plea, the Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence.
Unless a defendant was prejudicially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction under N.D.R.Crim.P. 7(c)(2).
Wenzel Estate v. Wenzel , 2008 ND 68, 747 N.W.2d 103
A trial court's findings in a partition action will not be reversed on appeal unless they are clearly erroneous.
A trial court's equitable powers in partition actions do not include the power to order one party to buy out the other party's share of jointly owned property.
Niemann v. Niemann , 2008 ND 54, 746 N.W.2d 3
A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.
Huwe v. Workforce Safety and Insurance , 2008 ND 47, 746 N.W.2d 158
Although WSI has the authority to weigh the credibility of medical evidence and resolve conflicting medical opinions, it may not do so in an unreasoned manner but must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.
A claimant reapplying for disability benefits under N.D.C.C. 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition.
Serr v. Serr , 2001 ND 56, 746 N.W.2d 416
Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.
Interest of B.B. , 2008 ND 51, 746 N.W.2d 411
A child is deprived if clear and convincing evidence shows the child is without the proper parental care necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents or guardians.
Reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home, and to make it possible for a child to return safely to the child's home.
Langer v. Bartholomay , 2008 ND 40, 745 N.W.2d 649
Custom and usage may be given effect as part of a written contract if the agreement is silent or ambiguous on a point and there is a well-established custom concerning a subject so that the parties may be presumed to have acted with reference to the custom.
Time is generally of the essence in exercising an option, and the optionee must perform the terms of the option within the specified time and upon the terms and conditions provided in the agreement.
There are many different methods that may be used to prove damages for lost profits resulting from a breach of contract, but whichever method is used must be reasonably accurate and provide a fair basis for calculating the damages.
The injured party can recover lost profits resulting from a breach of contract only to the extent the evidence he produces affords a sufficient basis for estimating with reasonable certainty the amount of profits prevented by the breach.
State v. Fischer , 2008 ND 32, 744 N.W.2d 760
Consent to search may be given by parties with actual or apparent authority, when viewed from the officer's perspective.
When ineffective assistance of counsel is raised on direct appeal, an appellate court reviews the record to determine if counsel was plainly defective.
Before accepting a waiver of the right to counsel, the district court must determine whether the waiver was voluntary and was made knowingly and intelligently.
A criminal defendant who knowingly and intelligently waives the right to counsel and elects self-representation, and who has been appointed standby counsel, is not constitutionally entitled to access to a law library.
Pretrial bail issues are moot after conviction, unless the amount prejudiced the defendant in the preparation of his defense.
A presumptively prejudicial delay of one year or more does not alone create a speedy-trial violation.
Government employment does not constitute an implied bias for purposes of excusing a juror.
Matter of Barrera , 2008 ND 25, 744 N.W.2d 744
Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Under the statute for committing a sexually dangerous person, proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in a criminal case.
State of Michigan, ex. rel. Schneider v. Schneider , 2008 ND 35, 745 N.W.2d 368
Any deviation from the child support guidelines requires the court to make a written finding or a specific finding on the record.
Child support must be ordered in the presumptive amount unless, taking into consideration the best interests of the children, the court finds the presumptive amount is not the correct amount of child support.
State v. Emery , 2008 ND 3, 743 N.W.2d 815
Ordering the surrender of license plates does not fit the maximum penalty for a first DUI offense.
A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge.
City of Minot v. Boger , 2008 ND 7, 744 N.W.2d 277
The due process clauses of the federal and state constitutions are not violated under the void-for-vagueness doctrine if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.
A local government has a substantial interest in aesthetics and has the right to maintain its aesthetics through zoning regulations.
Kourajian v. Kourajian , 2008 ND 8, 744 N.W.2d 274
A party seeking custody modification under N.D.C.C. 14-09-06.6(4) is entitled to an evidentiary hearing 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.
The purpose of the prima facie case requirement in N.D.C.C. 14-09-06.6(4) is to avoid holding custody modification hearings based on mere allegations alone.
Nagel v. Workforce Safety and Ins. , 2007 ND 202, 743 N.W.2d 112
Equitable estoppel may be applied to bar an assertion that a claim was untimely under N.D.C.C. 65-05-01.
In certain situations, such as a relapse of a condition caused by a work-related injury, the disallowance of a workers compensation claim following relapse may be a notifying event which ends the tolling of the statute of limitations for the injured worker.
State v. Haugen , 2007 ND 195, 742 N.W.2d 796
Carrying a loaded firearm in a vehicle is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence.
An appellant assumes the consequences and risks for failure to file a complete transcript, and an issue will not be reviewed if the record on appeal does not allow for a meaningful and intelligent review of the alleged error.
Axtmann v. Chillemi , 2007 ND 179, 740 N.W.2d 838
The officers and directors of a corporation generally are not liable for the ordinary debts of the corporation, but a corporation's corporate veil may be disregarded when the corporation has insufficient capitalization for purposes of the corporate undertaking.
A district court's decision to pierce a corporate veil and impose personal liability on an officer or director is reviewed under the clearly erroneous standard.
Hawes v. ND Department of Transporation , 2007 ND 177, 741 N.W.2d 202
That the defendant's vehicle is out of gas does not render the vehicle inoperable as a matter of law.
When there has been no objection to a prosecutor's argument, the judgment will not be reversed unless it was an obvious error affecting a defendant's substantial rights.
State v. Buchholz , 2006 ND 227, 723 N.W.2d 534
A mistake of law defense generally is not an available defense for strict liability offenses.
A sentence may be illegal if it is contrary to statute, fails to comply with a promise of a plea bargain, or is inconsistent with the oral pronouncement of the sentence.
Ritter, Laber & Assoc. v. Koch Oil , 2007 ND 163, 740 N.W.2d 67
A party seeking reformation of a written agreement must prove by clear and convincing evidence the document does not fully or truly state the agreement the parties intended to make.
The party seeking reformation of an agreement on the basis of mutual mistake must show that, when the agreement was executed, both parties intended to say something different from what was said in the document.
In a class action lawsuit, the district court may award payment to the class representatives. Factors in making the decision include the risk to class representatives in bringing suit, the time and effort spent by the class representatives, the duration of the litigation, the time and effort expended by the representatives in pursuing the litigation, and the degree to which the class has benefitted from the representatives' actions.
The districtr court must consider the factors listed under N.D.R.Civ.P. 23(p)(5) in awarding attorney fees in a class action lawsuit.
The district court is considered an expert in determining an award of attorney fees, and its decision will not be overturned on appeal absent a clear abuse of discretion.
In awarding attorney fees in a class action lawsuit, the court may consider not only the available settlement fund but also the amount of actual claims on the fund.
State v. Skarsgard , 2007 ND 159, 740 N.W.2d 64
The criminal code definition of "offense" as "conduct for which a term of imprisonment or fine is authorized under statute after conviction" applies to driving violations under N.D.C.C. 39-08-01 and 39-06-42.
Judgments for driving under the influence and driving under suspension which are on appeal are "offenses" that can be used to enhance subsequent driving under the influence and driving under suspension judgments.
State v. Fasteen , 2007 ND 162, 740 N.W.2d 60
Under the Terry doctrine, a law enforcement officer can make an investigative stop of a vehicle if the officer has a reasonable and articulable suspicion that the motorist has violated or is violating the law.
Under N.D.C.C. 39-10-38(1), no person may turn a vehicle right or left upon a roadway without giving an appropriate signal and unless or until such movement can be made with reasonable safety.
Swenson v. Workforce Safety and Insurance Fund , 2007 ND 149, 738 N.W.2d 892
A claimant must prove by objective medical evidence that he suffered a compensable injury. Objective medical evidence may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.
Although a medical opinion supported by a treatise or other scientific authority may be more persuasive, physicians are not required to offer such support.
State v. Kunze , 2007 ND 143, 738 N.W.2d 472
When a trial court concludes it is necessary to physically restrain a defendant at trial in front of the jury, the court must consider less restrictive, less prejudicial methods of restraint.
To provide for meaningful appellate review, a trial court must articulate its reasons for placing the defendant in physical restraints on the record, including a discussion of less prejudicial alternatives.
Tedford v. Workforce Safety and Insurance , 2007 ND 142, 738 N.W.2d 29
The retirement offset provision, N.D.C.C. 65-05-09.2, authorizing offset of social security retirement benefits against workers compensation disability benefits, does not apply to injured employees who were receiving benefits for a total disability prior to the statute's effective date.
In determining whether an administrative agency acted without substantial justification, triggering an award of actual attorney fees and costs under N.D.C.C. 28-32-50(1), the fact that a judge at an earlier stage of the proceedings agreed with the agency's position is persuasive evidence that the position was substantially justified.
Superior, Inc. v. Behlen Mfg. , 2007 ND 141, 738 N.W.2d 19
A contractual right to indemnification may be implied based on the special nature of the relationship between the parties, or when there are unique factors demonstrating that the parties intended the would-be indemnitor to bear the ultimate responsibility for a certain matter.
Implied contractual indemnity is an equitable remedy that is available only if a party does not have an adequate remedy at law.
Under the Uniform Commercial Code, a buyer may seek consequential damages from the seller when it incurs liability to a third party as a result of the use or resale of the seller's product.
State v. Muhle , 2007 ND 132, 737 N.W.2d 647
A district court's evidentiary ruling is reviewed for an abuse of discretion.
Out-of-court testimonial statements may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause.
Rule 16 of the North Dakota Rules of Criminal Procedure requires only "statements" be disclosed by the prosecution. "Statement" is defined technically and emphasizes formal, written, or recorded declarations.
To establish a violation under Brady v. Maryland, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A conviction on the ground of insufficient evidence will be reversed only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
State v. Washington , 2007 ND 138, 737 N.W.2d 382
The probable cause standard is the same for both searches and arrests.
Once a vehicle has been validly stopped and its occupants lawfully detained, law enforcement officers may constitutionally order the driver and passengers out of the vehicle, even in situations not amounting to arrest.
Law enforcement officers have the right to use appropriate forcible means to effectuate an arrest.
An officer's subjective intent plays no role in ordinary probable cause Fourth Amendment analysis.
Estate of Allmaras , 2007 ND 130, 737 N.W.2d 612
A conservator has discretionary authority to manage the protected person's estate, subject to the conservator's fiduciary responsibilities and taking into account any known estate plan of the protected person.
A payable-on-death beneficiary has no present interest in the account, no right to prevent the depositor from removing the account funds and effectively destroying the beneficiary designation, and no right to preclude the depositor from changing or removing the beneficiaries on the account.
State v. Vantreece , 2007 ND 126, 736 N.W.2d 428
Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.
Roth v. State , 2007 ND 112, 735 N.W.2d 882
To prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show that he would have prevailed on the suppression motion and that there is a reasonable probability the successful motion would have affected the outcome.
The "reasonable cause" standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses on the necessity for executing the search warrant in the nighttime rather than in the daytime.
A nighttime searches may be upheld when there is particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours.
State v. Edwards , 2007 ND 113, 736 N.W.2d 449
A sentencing court may correct an illegal sentence at any time.
Mann v. N.D. Tax Commissioner , 2007 ND 119,
Due process requires a State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation that occurs when a state requires a taxpayer to pay a tax without an opportunity to challenge whether the tax is illegal before payment.
A statute may be applied retroactively when the legislature clearly intended retroactive application of the statute.
A district court has broad discretion in deciding whether to certify a class action.
A successful litigant is not entitled to attorney's fees unless authorized by statute or contract.
Wagner v. Wagner , 2007 ND 101, 733 N.W.2d 593
After including all of the parties' marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties' assets.
A long-term marriage supports an equal distribution of property. Liquidation of an ongoing farming operation is ordinarily a last resort.
Property division and spousal support are interrelated and intertwined and often must be considered together.
State v. Voigt , 2007 ND 100, 734 N.W.2d 787
A double jeopardy claim is timely if it is raised before or during trial proceedings.
Jeopardy attaches in a jury trial when the jury is empaneled and sworn.
Nonexclusive factors for determining whether termination of a criminal trial is supported by manifest necessity include: 1) whether counsel were afforded an opportunity to be heard on the issue; 2) whether alternatives to a mistrial were explored; and 3) whether the judge's decision was made after sufficient reflection.
Mistrials declared with the defendant's consent generally do not bar later prosecutions.
A terminating event occurs under the "continuing jeopardy" doctrine if a trial before a new tribunal reasonably implicates the policies of the double jeopardy clause.
Lynch v. Sweeney , 2007 ND 81, 732 N.W.2d 377
In visitation disputes, a district court must award a noncustodial parent reasonable costs and attorney fees if the court finds there has been willful and persistent denial of visitation rights by the custodial parent.
A district court's decision about the reasonableness and amount of attorney fees to award will not be overturned on appeal absent an abuse of discretion.
State by Workforce Safety v. JFK Raingutters , 2007 ND 80, 733 N.W.2d 248
North Dakota's workers compensation laws apply to an Indian employer and his state-chartered company, and to work projects occurring on the reservation.
Administrative res judicata applies to final agency orders.
Odden v. Rath , 2007 ND 51, 730 N.W.2d 590
To obtain an extension of a protection order, the petitioner need not make a second showing of actual or imminent domestic violence. However, the petitioner must meet the threshold burden of showing actual or imminent domestic violence at some point prior to obtaining the extension.
Although the district court should not extend a protection order based solely on the history between the parties, it remains a relevant factor to consider when determining whether an extension is warranted.
A petitioner's fear alone, with no other supporting facts, is not enough to justify the extension of a protection order.
State v. Westmiller , 2007 ND 52, 730 N.W.2d 134
Although reasonable suspicion is the minimum quantum of evidence required for an investigatory traffic stop, a stop may be upheld on the basis of probable cause if that evidentiary standard has been satisfied.
Traffic violations, even if considered common or minor, constitute prohibited conduct and therefore provide officers with the basis for an investigatory stops.
State v. Olson , 2007 ND 40, 729 N.W.2d 132
Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) Terry stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which are not Fourth Amendment seizures.
Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.
The "lateness of the hour" is another factor that may raise the level of suspicion sufficient to justify an investigative stop.
McCrothers Corp. v. City of Mandan , 2007 ND 28, 728 N.W.2d 124
Nude or semi-nude dancing is expressive conduct protected by the First Amendment.
Content-neutral time, place, and manner regulations are not subject to strict scrutiny.
A state has power to prohibit the sale of alcoholic beverages in inappropriate locations through its inherent police powers.
The First Amendment does not entitle an alcoholic beverage establishment, its dancers, or its patrons to have alcohol available during a presentation of nude or semi-nude dancing.
A city's interest in curbing the secondary effects associated with adult entertainment establishments is substantial.
Overly broad statutes are those that restrict constitutionally protected expression as well as expression that is unprotected, and an overbreadth challenge may be brought even though the challenger's rights may not have been violated under the circumstances.
Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal.
State v. Fischer , 2007 ND 22, 727 N.W.2d 750
An order denying an extension of time to file the notice of appeal terminates the appeal, and thus it is reviewed more closely than an order granting an extension.
The district court must find that either excusable neglect or good cause exists before granting an extension of the time for appeal.
The district court has likely abused its discretion if it does not provide an explanation for the decision to grant or deny an extension.
Stockman Bank of Montana v. AGSCO, Inc. , 2007 ND 26, 728 N.W.2d 142
A principal and its duly authorized agent may file an agricultural supplier's lien for agricultural supplies furnished to an agricultural producer.
An agricultural supplier's lien filed as a security interest created by contract to secure money advanced or loaned for any purposes is not effective to secure a priority over crop liens.
An agricultural supplier's lien cannot be obtained or enforced unless there has been substantial compliance with the statutory requirements for the lien.
An agricultural supplier may be entitled to a lien on crops if the agricultural supplier furnishes supplies to the producer within 120 days before the lien was filed and if the supplies were applied to crops in North Dakota.
Whitecalfe v. ND Dept. of Transportation , 2007 ND 32, 727 N.W.2d 779
The Department of Transportation must meet the basic and mandatory provisions of the statute to have authority to revoke driving privileges.
When a licensee is arrested for driving under the influence and receives an initial notice of revocation of driving privileges, the licensee is not denied due process simply because the initial notice does not include a statement of the arresting officer's probable cause.
Meier v. Said , 2007 ND 18, 726 N.W.2d 852
A petitioner seeking a disorderly conduct restraining order may not raise new allegations through hearing testimony without notice to the respondent.
A petitioner is not required to bolster testimony by presenting corroborating evidence, such as eyewitnesses or official reports, although such corroborating evidence may be useful to the district court.
ND State Board of Medical Examiners v. Hsu , 2007 ND 9, 726 N.W.2d 216
The preponderance of evidence standard of proof for administrative disciplinary proceedings against a physician does not violate due process or equal protection.
A party to an administrative proceeding is not denied due process because the agency performs all three functions of investigation, prosecution, and adjudication.
The determination of the appropriate sanction to be imposed by the Board of Medical Examiners in a disciplinary proceeding is a matter of discretion.
A petitioner for writ of mandamus must demonstrate a clear legal right to the act sought to be compelled and no other plain, speedy, and adequate remedy in the ordinary course of law.
Mandamus may not be issued to compel an official's discretionary acts.
Wold v. Wold , 2008 ND 14, 744 N.W.2d 541
Generally, in a divorce, a court's property valuations are not clearly erroneous if they are within the range of the evidence presented.
Under N.D.C.C. 14-05-24.1, a district court in a divorce case may require one party to pay spousal support to the other for any period of time.
Spousal support awards must be made in consideration of the disadvantaged spouse's needs and the supporting spouse's needs and ability to pay, but it is not necessary for the court to determine a spouse is disadvantaged by the divorce to award spousal support to that spouse.
Property division and spousal support are interrelated and often must be considered together.
It is within the district court's discretion to order security for a spousal support obligation.
State v. Goebel , 2007 ND 4, 725 N.W.2d 578
Prosecutions for the sexual abuse of child victims are subject to a particular statute of limitations and tolling provision contained in the North Dakota Century Code.
If the victim is under the age of fifteen at the time of the sexual abuse, the statute of limitations does not begin to run until the victim reaches the age of fifteen, which extends the initial seven-year limitation period until the victim reaches the age of twenty-two.
If the victim does not report the sexual abuse to law enforcement authorities within the seven-year period, but reports the offense sometime later, the limitation period runs for three years from the date the offense is reported.
State v. Myers , 2006 ND 242, 724 N.W.2d 168
A fundamental principle of constitutional law is that a prosecutor may not comment on a defendant's failure to testify in a criminal case.
When there is an adjournment of proceedings in a jury trial, the district court must admonish a jury that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any opinion thereon, until the case is finally submitted to them.
Genter v. Workforce Safety & Ins. Fund , 2006 ND 237, 724 N.W.2d 132
Workforce Safety and Insurance must determine whether a medical assessment team is required in a particular case based on the nature of the claimed injury.
If a medical assessment team is required to evaluate an injury, Workforce Safety and Insurance has the discretion to determine the composition of the team on a case-by-case basis.
Stenvold v. Workforce Safety & Insurance , 2006 ND 197, 722 N.W.2d 365
An administrative agency generally may not consider evidence which has not been offered, admitted, and made a part of the official record of the administrative proceeding.
The district court's appellate review of an administrative agency decision is limited to the agency record filed with the court.
Leet v. City of Minot , 2006 ND 191, 721 N.W.2d 398
For recreational use immunity statutes to apply, a person's presence on the landowner's property open for public recreation must be for "recreational purposes," which includes any activity engaged in for the purpose of exercise, relaxation, pleasure, or education.
A vendor's employee who was present at the City's auditorium for purposes of his employment is not engaged in any activity for the purpose of exercise, relaxation, pleasure, or education.
Industrial Commission v. Noack , 2006 ND 195, 721 N.W.2d 698
An appellant has the duty to provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors.
To justify rescission of a contract, a mutual mistake must relate to the subject matter and essential elements of the contract, and not merely be collateral to it.
A party seeking to rescind a contract must offer to restore to the other party everything of value which the rescinding party received from the other party under the contract.
Peoples State Bk. of Truman v. Molstad Excavating , 2006 ND 183, 721 N.W.2d 43
Part of the law of the case doctrine provides that the orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another's orders and revisit them only in special circumstances.
The law of the case is not violated and reconsideration of prior orders is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative.
Construction of a written contract to determine its legal effect is a question of law, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation.
To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.
Clark v. Clark , 2006 ND 182, 721 N.W.2d 6
A district court's decisions to admit expert testimony or deny a continuance will not be reversed absent an abuse of discretion.
A district court's decision whether to allow children to testify about their custody preference is reviewed under the abuse of discretion standard.
Rotating custody arrangements are in a child's best interests only if the parents are able to cooperate and set aside their differences and conflicts in their role as parents.
A district court's custody decision under the best-interest-of-the-child analysis is subject to the clearly erroneous standard of review.
Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, as a matter of law, a district court must clearly set forth how it arrived at the amount of income and the level of support.
A district court cannot include depreciation deductions in income when determining an obligor's child support obligation.
City of Fargo v. Komad , 2006 ND 177, 720 N.W.2d 619
A defendant's constitutional right to be present at trial is met when the defendant appears and is tried in municipal court and there is no constitutional right to be present for trial anew on appeal in district court.
Under the N.D. Rules of Criminal Procedure, a defendant convicted in municipal court has a right to be present for a trial anew in district court on appeal.
Proceeding with a trial anew on appeal to district court, when the defendant is absent, is not harmless error.
Mountrail Bethel Home v. Lovdahl , 2006 ND 180, 720 N.W.2d 630
A district court must make findings on issues a party raises and presents evidence on.
Dahl v. Messmer , 2006 ND 166, 719 N.W.2d 341
On appeal, the substantive evidentiary standard of proof is considered when reviewing a motion for summary judgment.
Fraud is never presumed, but must be proved by evidence that is clear and convincing.
A party seeking to reform a contract must prove, by clear and convincing evidence, that the written agreement does not fully or truly state the agreement the parties intended to make.
General expressions of opinion by a seller, commending of the thing he is selling, are not actionable even though not entirely true.
Generally, statements of value and predictions of future earnings or profits fall within the class of statements whose truth or falsity cannot be precisely determined and which are not, therefore, actionable as misrepresentations of fact.
SPW Associates v. Anderson , 2006 ND 159, 718 N.W.2d 580
Principles of partnership law apply to a joint venture.
A joint venturer is an agent of the joint venture and has authority to grant a security interest in joint venture property.
State v. Torkelsen , 2006 ND 152, 718 N.W.2d 22
The mere presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.
Wilson v. Ibarra , 2006 ND 151, 718 N.W.2d 568
To justify a termination of all visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail.
Johnson v. Gehringer , 2006 ND 157, 717 N.W.2d 920
A district court's finding of contempt will not be overturned unless there is a clear abuse of discretion.
The interpretation of an amended judgment is a question of law which is fully reviewable on appeal.
Spectrum Care v. Stevick , 2006 ND 155, 718 N.W.2d 593
A person is disqualified from receiving unemployment compensation benefits if the person is discharged for misconduct.
An employer has the burden to establish by a preponderance of the evidence that a terminated employee's actions constitute misconduct that disqualifies the employee from receiving unemployment compensation benefits.
City of Bismarck v. DePriest , 2006 ND 158, 717 N.W.2d 924
Law enforcement officials may use persons under 21 years of age to attempt to purchase alcoholic beverages to conduct alcohol compliance checks.
State v. Hansen , 2006 ND 139, 717 N.W.2d 541
An appellate court does not render advisory opinions and will dismiss an appeal if the issues have become moot or so academic that no actual controversy is left to be decided.
When a district court fails to follow established procedures and orderly process in declaring a law unconstitutional, supervisory jurisdiction may be used to vacate the district court's order.
Johnson v. Sprynczynatyk , 2006 ND 137, 717 N.W.2d 586
Traveling at a slower than usual speed, with no further evidence of illegal activity, does not alone create a reasonable and articulable suspicion justifying a traffic stop.
State v. Oien , 2006 ND 138, 717 N.W.2d 593
An individual trespassing is not entitled to the protections of the Fourth Amendment because he does not have a reasonable expectation of privacy.
City of Grand Forks v. Hendon/DDRC/BP , 2006 ND 116, 715 N.W.2d 145
The amount of damages in a condemnation action will be upheld on appeal if it is within the range of the evidence presented to the trier of fact.
Porter v. Porter , 2006 ND 123, 714 N.W.2d 865
A district court must analyze all four Stout-Hawkinson factors in determining whether a custodial parent may move out of state with a child.
Wheeler v. Schuetzle , 2006 ND 115, 714 N.W.2d 829
The Supreme Court's original jurisdiction will not be exercised to vindicate private rights, regardless of their importance.
Before the Supreme Court's original jurisdiction will be exercised, the rights of the public, the sovereignty of the state, or the liberties of its people must be directly affected.
To exercise the Supreme Court's original jurisdiction, a private party must set forth in his petition that he has called the alleged infringement upon the sovereignty of the state to the attention of the Attorney General and requested the Attorney General to institute an original proceeding but the Attorney General refused to do so or unreasonably delayed doing so.
Bank Center First, Bismarck, ND v. R.C. Transport LLC , 2006 ND 110, 714 N.W.2d 816
Filing a money judgment in a county where the judgment debtor has an interest in real property is a lien on the judgment debtor's interest in the real property.
The 60-day limit for redeeming from a prior redemptioner begins to run when the prior redemptioner's written notice of redemption is filed with the office of the county recorder.
To redeem property, a redemptioner need pay only the purchase price with interest, plus amounts which have been paid to protect the premises.
City of Bismarck v. Mariner Construction, Inc. , 2006 ND 108, 714 N.W.2d 484
The interpretation of a written contract to determine its legal effect is a question of law, and a court must initially determine if the contract is ambiguous.
If a contract is unambiguous, the court interprets the meaning of the contract as a matter of law and the trier of fact determines if the contract, as construed by the court, has been breached.
If a contract is ambiguous, the trier of fact may consider extrinsic evidence about the parties' intent to determine the meaning of the contract and the trier of fact then decides whether the parties have breached the contract.
If a contract is uncertain, the language of the contract is interpreted most strongly against the party who caused the uncertainty; however, for contracts between a public entity and a private party, it is presumed the uncertainty was caused by the private party.
Larson v. Schuetzle , 2006 ND 78, 712 N.W.2d 617
The State Penitentiary warden has authority and control over the penitentiary and its inmates.
Simply because prison inmates retain certain constitutional rights does not mean those rights are not subject to restrictions and limitations.
Maintaining institutional security, safety, and internal order may require limitation or retraction of the retained constitutional rights of convicted prisoners and pretrial detainees.
Prison administrators are entitled to deference in the adoption and execution of policies intended to preserve the security, safety, internal order, and discipline of the prison.
When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.
Toso v. Workforce Safety & Insurance , 2006 ND 70, 712 N.W.2d 312
No relief can be granted when the record in the case provides no evidence to make determinations that must be made in order to grant or deny a request.
Bernabucci v. Huber , 2006 ND 71, 712 N.W.2d 323
If extrinsic evidence is conclusive and undisputed, the determination of the meaning of a contract is a function for the court to resolve as a matter of law.
A court does not abuse its discretion when it denies a requested amendment to a complaint which would be futile.
Parizek v. State , 2006 ND 61, 711 N.W.2d 178
Before the district court may summarily dismiss an application for post-conviction relief, the State's response to the application must be sufficient to put the applicant on his proof, shifting the burden to require the applicant to produce competent evidence to support his claims prior to the evidentiary hearing.
To justify summary dismissal of an application for post-conviction relief, the district court must find the applicant's claims invalid on their face.
Brown v. State Board of Higher Education , 2006 ND 60, 711 N.W.2d 194
A university student with a grievance against the university is required to exhaust the university's internal procedures, provided by the university's policies, for handling such grievances prior to bringing a claim in court.
Preference Personnel, Inc. v. Peterson , 2006 ND 35, 710 N.W.2d 383
The Department of Labor may not issue retroactive licenses for employment agencies.
If public policy considerations require employment agencies to undergo extensive licensing requirements before being allowed to legally conduct business in this State, it follows that it is against the public policy of this State to enforce a contract between an individual and an unlicensed employment agency.
Bertsch v. Bertsch , 2006 ND 31, 710 N.W.2d 113
In deciding whether to award attorney fees under N.D.C.C. 14-05-23, the trial court must balance one party's needs against the other party's ability to pay.
In awarding attorney fees, fault is only relevant to the extent one party has unreasonably escalated the fees.
Kuperus v. Willson , 2006 ND 12, 709 N.W.2d 726
A written settlement agreement is interpreted under rules for construing written contracts.
A settlement agreement will not be set aside absent a showing of fraud, duress, undue influence, or other grounds for rescinding a contract.
Livinggood v. Balsdon , 2006 ND 11, 709 N.W.2d 723
Damages for breach of a farm lease beyond one year are not speculative and uncertain as a matter of law but may be speculative and uncertain as a matter of fact.
The party seeking specific performance has the burden of proving the party is entitled to it and the standard for proving entitlement to specific performance is higher than the standard for proving entitlement to money damages.
Damages must be proved.
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.
Interest of B.V. , 2006 ND 22, 708 N.W.2d 877
An order committing a sexually dangerous individual will be affirmed unless it is induced by an erroneous view of the law or it is not supported by clear and convincing evidence.
In a commitment proceeding, an indigent respondent entitled to appointment of an independent examiner does not have the right to choose a specific examiner.
When the commitment proceeding is not held within the statutorily required sixty days, the case will not be dismissed if the delay was caused by the respondent's actions.
A competent party in a civil commitment proceeding who wishes to represent himself cannot be coerced into accepting appointed counsel where there is a clear request for self-representation.
Estate of Pladson v. Traill Co. Social Services , 2005 ND 213, 707 N.W.2d 473
The requirement that an asset be "actually available" for purposes of determining Medicaid eligibility must be interpreted reasonably, and the focus is on the applicant's actual and practical ability to make an asset available as a matter of fact, not legal fiction.
Interest of M.M. , 2005 ND 219, 707 N.W.2d 78
A district court's finding that a person is mentally ill and requires treatment will not be reversed unless it is clearly erroneous.
A district court's finding that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless clearly erroneous.
A district court's order for involuntary hospitalization must be based on clear and convincing evidence that there is a serious risk the individual will harm himself, others, or property if not hospitalized.
To authorize involuntary treatment with medication, the district court must find by clear and convincing evidence that the prescribed medication is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of the treatment outweigh known risks.
Jangula v. Jangula , 2005 ND 203, 706 N.W.2d 85
Once separate property, or property exempt from being included as marital property, is commingled, placed into a joint bank account, or placed in joint tenancy, the property no longer has any separate identity and therefore becomes marital property.
Wild Rice River Estates v. City of Fargo , 2005 ND 193, 705 N.W.2d 850
Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal, but a trial court's findings of fact on a takings claim will not be set aside unless they are clearly erroneous.
A temporary deprivation of all economically viable use of property does not necessarily constitute a taking of property requiring compensation.
An extraordinary delay in governmental decisionmaking coupled with bad faith on the part of the governmental body may result in a compensable taking of property.
State v. Noorlun , 2005 ND 189, 705 N.W.2d 819
On appeal, jury instructions are considered as a whole to determine whether they correctly and adequately advise the jury of the applicable law and do not mislead or confuse the jury.
Whether documentary evidence should be excluded for lack of adequate foundation is within a trial court's discretion, and adequate foundation may be established by circumstantial evidence, including the events preceding, surrounding, and following the transmission of the document.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.
An information filed in district court before a preliminary examination is not invalid unless the defendant objects to the information before entering a plea.
Ruud v. Frandson , 2005 ND 174, 704 N.W.2d 852
A trial court's resolution of an ambiguity in a will is a finding of fact that will not be set aside unless it is clearly erroneous.
A competent testator may dispose of property as the testator wishes without regard to the desires of beneficiaries, juries, or courts as long as the terms of the will are not prohibited by law or opposed to public policy.
An estate may be granted on a condition, upon the performance or breach of which the estate shall commence, be enlarged, or be defeated.
When there is a testamentary gift upon a condition that is accepted by the beneficiary, the beneficiary must perform the condition, however burdensome.
Under N.D.R.Civ.P. 15(b), a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings.
Amendment of the pleadings by implication under N.D.R.Civ.P. 15(b) arises only when the evidence introduced is not relevant to any issue pleaded in the case.
Guardianship/Conservatorship of Onstad , 2005 ND 158, 704 N.W.2d 554
While N.D.R.Civ.P. 60(b) ordinarily may not be used as a substitute for an appeal or to relieve a party from deliberate choices, in unusual cases a party who has not taken an appeal may obtain relief on a 60(b) motion.
A successor judge should respect the law of the case.
Frisk v. Frisk , 2005 ND 154, 703 N.W.2d 341
A domestic violence protection order, originally entered under a stipulation or agreement specifically declining to issue findings regarding domestic violence, cannot be extended absent a threshold finding of actual or imminent domestic violence.
State v. Parisien , 2005 ND 152, 703 N.W.2d 306
All communications with jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
The mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced.
The giving of an Allen-type charge after the trial court has been informed of a deadlocked jury's numerical split is a factor to consider in assessing whether the totality of the circumstances indicate a coerced verdict.
State v. Ressler , 2005 ND 140, 701 N.W.2d 915
Reasonable suspicion does not permit law enforcement authorities to transport a seized package from the place where suspicion arose to a law enforcement center for further investigation.
Evidence derived based on an illegal seizure must be suppressed as fruit of the poisonous tree.
Weinreis v. Hill , 2005 ND 127, 700 N.W.2d 692
A district court must consider the apparent or ostensible authority of an individual exercising the functions of a corporate officer to bind the corporation to an agreement.
Reineke v. Reineke , 2005 ND 132, 699 N.W.2d 859
An ex-wife's enhanced burden to satisfy marital debt discharged in bankruptcy by her ex-husband is a material change in circumstances warranting a modification of spousal support, and such a modification does not violate U.S. bankruptcy law.
Syvertson v. State , 2005 ND 128, 699 N.W.2d 855
When establishing a Brady violation, the knowledge of the North Dakota State Hospital is not imputed to the State's Attorney's Office.
Information publicly disseminated in a newspaper article is not newly discovered evidence.
Beaudoin v. South Texas Blood & Tissue Center , 2005 ND 120, 699 N.W.2d 421
A nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
Defendants cannot be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or from the unilateral activity of a third party.
North Dakota courts may exercise specific personal jurisdiction over nonresident defendants only if they purposefully directed their activities toward North Dakota and the cause of action arises out of or relates to the defendant's activities in the State.
A defendant's conscious and repeated decision to ship a product to North Dakota constitutes sufficient minimum contacts required to ground personal jurisdiction.
Rule 60(b)(i), N.D.R.Civ.P., which establishes grounds for vacating a default judgment, permits relief where a party itself has erred.
A trial court's denial of a motion to vacate a default judgment based on a misinterpretation and misapplication of our law must be reversed as an abuse of discretion.
Brandner v. Brandner , 2005 ND 111, 698 N.W.2d 259
The trial court must determine net marital worth by considering all property and debt accumulated by the parties.
A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.
A trial court's decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.
Riverwood Commercial Park v. Standard Oil Co., Inc. , 2005 ND 118, 698 N.W.2d 478
The purpose of the summary eviction statute is to provide an inexpensive, expeditious, and simple means to determine possession of property.
The major distinction between a lease and an easement or license is that a lease confers exclusive use and possession of the property against the world, including the landowner, whereas an easement or license merely grants a right or permission to nonexclusive use of the land for a specific, limited purpose.
Berlin v. State , 2005 ND 110, 698 N.W.2d 266
A court may summarily dismiss a facially invalid application for post-conviction relief.
City of Grand Forks v. Lamb , 2005 ND 103, 697 N.W.2d 362
When a defendant appeals to the district court from a conviction in municipal court, the district court does not review the record and decision of the municipal court, but holds a new trial and independently determines whether the defendant has violated the ordinance.
A notice of appeal filed after the municipal court has announced its decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
When a city has the authority to regulate a certain subject, an ordinance is presumed valid and the burden is upon the party challenging the ordinance to demonstrate how the city exceeded its authority.
State v. Driscoll , 2005 ND 105, 697 N.W.2d 351
A magistrate's probable-cause decision is reviewed using a totality-of-the-circumstances test. A substantial basis for the magistrate's conclusion must exist.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence can establish this nexus.
Unsupported and conclusory statements are alone insufficient to establish probable cause.
If an accepted, reasonable theory of probable cause subsequently proves to be untrue or unfounded, it does not retroactively undermine a previously correct conclusion that probable cause to search existed, invalidate a properly issued search warrant, or release a criminal actor from culpability for crimes uncovered during the execution of the search warrant.
In executing a valid search warrant, police may inspect and open any item that could reasonably contain the objects of the search, regardless of whether these items are personal or private or specifically particularized in the search warrant.
People to Save the Sheyenne River v. ND Dept.of Health , 2005 ND 104, 697 N.W.2d 319
In the absence of an adjudicative proceeding and findings of fact, appellate review of an administrative agency decision to issue a Pollutant Discharge Elimination System permit is to determine whether the decision is arbitrary, capricious, or unreasonable.
Oliver-Mercer Electric Coop. v. Davis , 2005 ND 99, 696 N.W.2d 924
When a secured creditor who fails to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
A secured creditor who fails to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral.
A secured creditor's failure to provide credible evidence bars recovery of a deficiency judgment.
Glasow v. E.I. Dupont De Nemours and Company , 2005 ND 94, 696 N.W.2d 531
Rule 23(l), N.D.R.Civ.P., governs the dismissal of all class actions, regardless of whether a motion to certify the class is filed.
H-T Enterprises v. Antelope Creek Bison Ranch , 2005 ND 71, 694 N.W.2d 691
The purpose of the no-counterclaim provision in the eviction statute is to get a speedy determination of possession.
A defendant in an eviction action may show the character of the parties' possessory rights, evidence of a strained relationship having a bearing on whether a material breach has occurred, and affirmative defenses and counterclaims.
Paulson v. Paulson , 2005 ND 72, 694 N.W.2d 681
A trial court cannot delegate to anyone the power to decide questions of child custody or related issues.
When a party agrees to the court's appointing one person to serve as both custody investigator and guardian ad litem, that party waives the right to object that the court's appointee is in violation of the rules of court when she acts as the child's advocate and also testifies at the custody proceedings.
A trial court's denial of a motion for continuance will not be set aside on appeal absent an abuse of discretion by the trial court.
City of Horace v. City of Fargo , 2005 ND 61, 694 N.W.2d 1
Annexation statutes are construed liberally to encourage the natural and well-ordered development of municipalities.
A resolution and annexation plat, with a subsequent notation to a judgment that invalidated part of the annexation and was consistent with the parties' mediation agreement, constituted an accurate map for the part of the annexation that had not been invalidated.
State v. Krull , 2005 ND 63, 693 N.W.2d 631
If a defendant does not object at trial to the introduction of a child's hearsay statements regarding sexual abuse, our inquiry is limited to whether the admission into evidence constitutes obvious error affecting substantial rights.
A trial court abuses its discretion and commits plain error if, under N.D.R.Ev. 803(24), it admits a child's hearsay statements regarding sexual abuse without first making explicit findings regarding the reliability and trustworthiness of the statements. Merely quoting the terms of the hearsay rule and ordering the statements admitted is inadequate.
Even if a trial court commits plain error, for reversal, the error must have affected the defendant's substantial rights by altering the trial's outcome.
A defendant's inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.
Interest of A.M.S. , 2005 ND 64, 694 N.W.2d 8
Federal law permits decisions regarding rebuttal of child support payments to be made under criteria established by the State.
Under the Child Support Guidelines, an incarcerated child support obligor whose payment amounts are based on an imputed, federal-minimum-wage income cannot reduce these presumptively correct payments by showing a lack of financial resources due to imprisonment.
Interest of R.F. , 2005 ND 54, 692 N.W.2d 905
An individual found to be a person requiring mental-health treatment has the right to the least restrictive conditions necessary to achieve the purposes of treatment.
Orders for in-patient hospitalization and treatment are reviewed under the clearly erroneous standard. A district court's finding that alternative treatment is inadequate or that hospitalization is the least restrictive alternative will not be set aside unless clearly erroneous.
An order for in-patient hospitalization is not clearly erroneous where a doctor testifies that a mentally ill individual's dementia, which has yet to be fully diagnosed or treated, likely triggered a prescription-drug overdose, and asserts that the hospital's structure and supervision are temporarily needed to help avoid future self-medication accidents.
Ringsaker v. Workforce Safety & Insurance Fund , 2005 ND 44, 693 N.W.2d 14
An injured employee seeking workers compensation benefits must file a claim within one year after the injury. The date of injury is the first date that a reasonable person knew or should have known that he had suffered a work-related injury and has either lost wages because of a resulting disability or received medical treatment.
Lochthowe v. C.F. Peterson Estate , 2005 ND 40, 692 N.W.2d 120
A third party who derives gain from an agreement between others has not necessarily been unjustly enriched, unless the third party has participated somehow in the transaction through which the benefit is obtained.
The clearly erroneous standard applies to the review of a district court's findings on a claim of unlawful interference with a business relationship.
Riverside Park Condominiums Unit Owners Association v. Lucas , 2005 ND 26, 691 N.W.2d 862
Actions of a condominium's board of directors are reviewed under the business-judgment rule.
The power of a condominium's governing body to make rules, regulations, or amendments to the declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.
The reasonableness of a condominium use restriction is determined by reference to the common interest development as a whole.
A trial court's decision to grant or deny a request for a declaratory judgment will not be set aside unless the court has abused its discretion.
The district court has broad discretion in imposing sanctions for discovery violations, and its decision will be reversed only upon a showing of an abuse of discretion.
The trial court may impose an appropriate sanction for filing a motion for an improper purpose.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
State v. Tupa , 2005 ND 25, 691 N.W.2d 579
A criminal restitution award can be based on replacement costs where, for example, a victim must replace an item not readily or desirably found in a secondary market.
Fair market value or cost to repair are appropriate measures of criminal restitution if they make a victim whole, such as where a damaged or destroyed item can be cost-effectively repaired or where a viable and appropriate secondary market exists.
A trial court has wide discretion in setting the amount of restitution, and the trial judge does not abuse this discretion by awarding restitution that is within the range of reasonableness.
North Dakota law does not limit criminal restitution to those amounts that would be recoverable in a corresponding civil tort action.
Restitution payments are based on what a defendant can or will be able to pay, and the trial court does not abuse its discretion, or threaten a victim's reimbursement, by ordering payments that are within the defendant's capabilities, even if the obligation may necessitate a change in the defendant's lifestyle.
City of Bismarck v. Bosch , 2005 ND 12, 691 N.W.2d 260
For a filed document or process to be a necessary part of the approved method for conducting an Intoxilyzer test, the State Toxicologist must expressly include it in the approved method and make it a part of the requirement for fair administration.
Proof that the standard solution used for Intoxilyzer tests has not been used more than 50 times is not part of the approved method.
Boumont v. Boumont , 2005 ND 20, 691 N.W.2d 278
The Child Support Guidelines' equal-physical-custody provision mandates the appropriate formula for calculating child support in cases where a divorce judgment or court order provides each parent with physical custody of their children exactly 50% of the time, regardless of the actual custodial arrangement subsequently exercised by the parties.
Johnson v. State , 2005 ND 19, 691 N.W.2d 288
Under N.D.R.Ct. 3.2(a), an applicant for post-conviction relief has 10 days to respond to a motion for summary disposition made by the State.
State v. Steen , 2004 ND 228, 690 N.W.2d 239
To prevail in a post-conviction proceeding on a claim of ineffective assistance of counsel, the petitioner must show not only that trial counsel's performance fell below an objective standard of reasonableness, but must also demonstrate prejudice by establishing a reasonable probability that, but for counsel's errors, the result of the trial would have been different.
Spectrum Care, L.L.C. v. Workforce Safety and Insurance , 2004 ND 229, 690 N.W.2d 233
Section 65-04-32, N.D.C.C., applies to an employer's challenge to the classification of its employees for purposes of establishing insurance premiums payable to Workforce Safety and Insurance, and a court's review of a decision regarding those classifications is under sections 28-32-46 and 28-32-49, N.D.C.C.
State v. Linghor , 2004 ND 224, 690 N.W.2d 201
Probable cause to arrest an automobile passenger exists where drug paraphernalia is in plain view in the car.
The existence of an arrest is determined objectively, gauged by whether a reasonable person would conclude he was under arrest and not free to leave.
When a jury is unable to reach a verdict and a mistrial results, a subsequent retrial is not double jeopardy.
A trial judge has discretion in declaring a mistrial due to a hung jury, and while reasonable jury deliberation should be encouraged, a judge does not abuse that discretion in declaring a mistrial when the judge asks the jury for a list of divisive issues, polls the jurors to determine whether a verdict could be reached, and spends considerable time consulting both parties regarding available options.
Edwardson v. Lauer , 2004 ND 218, 689 N.W.2d 407
The clearly erroneous standard of review applies to a district court judgment changing a minor's name under the Uniform Parentage Act.
Sutherland v. ND Dept. of Human Services , 2004 ND 212, 689 N.W.2d 880
The Department of Human Services must follow a five-step sequential process under federal regulations for evaluating disability claims.
Charles McCauley Partnership v. Tyrone Township , 2004 ND 214, 689 N.W.2d 410
Summary judgment is inappropriate where "battling affidavits," wrought with concerns over witness credibility, are presented regarding whether a township road is vacant due to a statutorily prescribed period of non-use.
State v. Charette , 2004 ND 187, 687 N.W.2d 484
Circumstantial evidence can, without more, be sufficient to warrant a conviction, assuming the circumstantial evidence is of such probative force to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.
The existence of conflicting evidence does not prohibit a jury from finding a defendant guilty beyond a reasonable doubt.
The decision to admit or exclude demonstrative evidence is subject to abuse-of-discretion review.
A trial court does not abuse its discretion when it refuses to allow defendant to try on clothing evidence found at a murder scene when defendant has gained weight since the date of the murder.
Rule 16, N.D.R.Crim.P., specifically addresses discovery of formal, recorded statements, and the State does not violate this rule if it fails to disclose a witness's informal, pre-trial statements.
Ernst v. Burdick , 2004 ND 181, 687 N.W.2d 473
The statutory provisions for criminal history record collection and dissemination under N.D.C.C. ch. 12-60 do not create a private cause of action for violations.
Heckelsmiller v. State , 2004 ND 191, 687 N.W.2d 454
Ineffective assistance of counsel exists where trial counsel, after calling witnesses to the stand and discovering that they have not complied with a defense-requested sequestration order, makes no offer of proof as to the substance of these witnesses' critical testimony, thus denying defendant a meaningful appeal on the issue of whether these witnesses should have been allowed to testify.
Flatt v. Kantak , 2004 ND 173, 687 N.W.2d 208
A physician must disclose material risks to obtain a patient's informed consent for a medical procedure.
On appeal, a trial court's rulings on expert testimony are reviewed under the abuse-of-discretion standard.
A trial court is not required to instruct a jury in the exact language sought by a party if the court's instructions correctly and adequately inform the jury of the applicable law.
A physician's duty of disclosure in an informed consent case is measured under the reasonable patient standard.
A party challenging the constitutionality of a statute must allege an injury traceable to the statute.
State v. Spidahl , 2004 ND 168, 686 N.W.2d 115
Probable cause to arrest does not require that commission of the offense be established with absolute certainty, or proved beyond a reasonable doubt.
Dietz v. Kautzman , 2004 ND 164, 686 N.W.2d 110
An order or judgment awarding attorney fees and costs as a discovery sanction is ordinarily interlocutory and not appealable, but it is appealable when accompanied by a finding of contempt.
A district court has a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the district court abused its discretion.
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).
Miller v. Workforce Safety and Insurance , 2006 ND 1, 707 N.W.2d 809
Ex parte communications are those that are without notice and opportunity for all parties to participate in the communication.
Workforce Safety and Insurance can consult with its outside legal counsel in reviewing a pending administrative law judge's recommendation as long as those communications are not ex parte.
Miller v. Workforce Safety and Insurance , 2004 ND 155, 684 N.W.2d 641
Ex parte communications are those that are without notice and opportunity for all parties to participate in the communication.
Workforce Safety and Insurance can consult with its outside legal counsel in reviewing a pending administrative law judge's recommendation as long as those communications are not ex parte.
State v. Mathre , 2004 ND 149, 683 N.W.2d 918
The appellant must provide a transcript on appeal, and the appellant suffers any consequences resulting from the lack of a transcript to review.
An arrest is not unlawful merely because there is no subsequent conviction of the crime for which an individual is arrested.
A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.
State v. Berger , 2004 ND 151, 683 N.W.2d 897
When no separate judgment of conviction has been entered and an order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, the order serves as the judgment and is appealable.
When considered in totality, a driver's erratic driving, belligerent and physically aggressive conduct, use of profanity, extreme nervousness, physical shaking and inability to stand still, glossy and watery eyes, and failure of a light reactivity field sobriety test may be sufficient to create probable cause to arrest the driver for driving under the influence of drugs.
Oppegard-Gessler v. Gessler , 2004 ND 141, 681 N.W.2d 762
A custodial parent may not change the residence of a child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.
The best interests of the child are the primary consideration in determining whether a custodial parent should be allowed to relocate with the child to another state.
A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error.
Interest of T.J.L. , 2004 ND 142, 682 N.W.2d 735
Effective March 1, 2004, findings of fact in juvenile matters will not be set aside on appeal unless clearly erroneous.
When there has been an extensive period in which efforts have been made to overcome a parent's inabilities to effectively parent, courts cannot allow the child to remain in an indeterminate status midway between foster care and the obvious need for permanent placement.
Moen v. Thomas , 2004 ND 132, 682 N.W.2d 738
Although the existence of an attorney-client relationship turns largely on the client's subjective belief it exists, the client's subjective belief must also be objectively reasonable.
A party must specifically request that questions on a special verdict form be submitted to the jury, and vague references to requested instructions or special verdict forms are insufficient to preserve the issue for appeal.
A trial court does not abuse its discretion by refusing to include a requested question in a special verdict form when a party has not presented sufficient evidence to support it.
Fladeland v. Gudbranson , 2004 ND 118, 681 N.W.2d 431
An agreement for the sale of real property is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent.
Absent a written contract or agreement for the sale of real property, a court may compel the specific performance of any agreement for the sale of real property in case of part performance thereof.
Part performance of an alleged oral contract must be consistent only with the existence of the alleged oral contract.
Dietz v. Kautzman , 2004 ND 119, 681 N.W.2d 437
The 21-day safe harbor provision under N.D.R.Civ.P. 11 can be waived by a party against whom sanctions are sought for bringing a frivolous claim, when the party continues to advance the claim rather than withdraw or appropriately correct it.
A trial court's decision to impose sanctions under N.D.R.Civ.P. 11 rests within the sound discretion of the court and it will not be overturned on appeal unless the court has abused its discretion.
State v. Flanagan , 2004 ND 112, 680 N.W.2d 241
An appellate court may notice a claimed error that was not brought to the attention of the trial court if there was plain error which affected the defendant's substantial rights, and the appellate court concludes the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Omitting an element of the crime from the jury instruction is obvious error, but is not reversible error when the element was not disputed.
The issue of impermissible gender-based peremptory challenges must be raised in the trial court.
Fast v. State , 2004 ND 111, 680 N.W.2d 265
The state may be held liable for money damages for an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.
Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
Landowners are not liable for snow removal efforts that do not create an unreasonably dangerous or more hazardous condition.
State v. Higgins , 2004 ND 115, 680 N.W.2d 645
Under N.D.R.Crim.P. 3(b), allowing amendment of a complaint is within the trial court's discretion.
To legally stop a vehicle, a law enforcement officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Operating a motorboat or vessel while intoxicated through the consumption of alcoholic beverages violates N.D.C.C. 20.1-13-07(2).
State v. Guthmiller , 2004 ND 100, 680 N.W.2d 235
The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness.
A district court's decision on a suppression motion is affirmed unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence to support the decision or the decision goes against the manifest weight of the evidence.
Meyer v. Meyer , 2004 ND 89, 679 N.W.2d 273
A change in spousal support, which was initially awarded upon the parties' stipulation, should be made only with great reluctance by the trial court upon a showing of a material change in circumstances.
Findings of fact should be sufficiently stated so the reviewing court is able to understand the factual basis for the trial court's decision, particularly in view of our standards for modification of spousal support.
A case will be remanded if the reviewing court cannot discern the rationale for the result reached by the trial court.
Garcia v. State , 2004 ND 81, 678 N.W.2d 568
To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel's performance was deficient and the deficient performance prejudiced him.
Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms.
The prejudice element requires a petitioner to establish a reasonable probability that, but for his trial counsel's errors, the result of the proceeding would have been different.
A petitioner misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in an earlier proceeding.
Danzl v. Heidinger , 2004 ND 74, 677 N.W.2d 924
Absent statutory or contractual authority, each party to a lawsuit bears the party's own attorney fees.
Peterson v. ND University System , 2004 ND 82, 678 N.W.2d 163
A writ of mandamus is not the appropriate avenue for judicial review of State Board of Higher Education decisions to dismiss tenured faculty members because tenure rights are contractual and not statutory in nature.
The proper standard of judicial review of a substantive State Board of Higher Education decision to dismiss a tenured faculty member for cause is whether a reasoning mind could have reasonably determined that the factual conclusions were supported by clear and convincing evidence.
Interest of D.V.A. , 2004 ND 57, 676 N.W.2d 776
Experts in proceedings to commit sexually dangerous individuals may rely upon information reasonably relied upon by other experts in the particular field when forming opinions regarding whether an individual is sexually dangerous.
Information relied upon by experts in commitment proceedings under N.D.C.C. ch. 25-03.3 need not be admissible in evidence.
N.D.C.C. ch. 25-03.3 does not require the State to establish a respondent is not mentally retarded.
Beaudoin v. South Texas Blood & Tissue Center , 2004 ND 49, 676 N.W.2d 103
Removing, preserving, and delivery of body parts involves science or art requiring special skills not ordinarily possessed by lay persons and is governed by the two-year statute of limitations for malpractice.
A process server's service of process upon a corporation's Executive Office Manager will be deemed valid if a corporate employee identifies the Executive Office Manager as a proper person to accept service, the process server reasonably relies on that identifying representation, the Executive Office Manager served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made, and the service results in actual delivery to a person responsible for protecting the corporation's interests in litigation.
Vandall v. Trinity Hospitals , 2004 ND 47, 676 N.W.2d 88
There is no common law tort for retaliatory discharge in North Dakota because of the statute.
A 180-day statute of limitations governs a claim for retaliatory discharge.
An individual who merely provides facts concerning the conduct of another to an administrative board possessing the authority to issue charges is not liable for wrongful use of civil proceedings before an administrative board.
In a claim for intentional infliction of emotional distress, the conduct must be so extreme in degree as to be beyond all possible bounds of decency and utterly intolerable in a civilized society.
A trial court may award attorneys' fees to a prevailing party in an action for retaliatory discharge brought under the statute.
Nesvig v. Nesvig , 2004 ND 37, 676 N.W.2d 73
The actual nature of the subject matter of an action determines whether an action is a legal malpractice case.
Good faith is not a defense to a legal malpractice action.
A fiduciary relationship exists when one is under a duty to give advice for the benefit of another upon matters within the scope of the relationship.
An attorney may undertake to manage or invest a client's property, and in doing so, the attorney not only must conform to the applicable standard of care and comply with the fiduciary obligations, but also may assume the responsibilities of a trustee.
Seibel v. Seibel , 2004 ND 41, 675 N.W.2d 182
When two years have passed since a prior custody order, a court may modify child custody if there is a significant change of circumstances since the original custody decree, and if this change is necessary to serve the best interests of the child.
Whether there was a change of circumstances requiring modification of custody in the best interests of the children is not considered when the parent seeking modification has not proven a material change in circumstances.
The principle standard in awarding attorney's fees in litigation about marital obligations between former spouses is one party's need and the other's ability to pay.
St. Claire v. St. Claire , 2004 ND 39, 675 N.W.2d 175
Although prisoners have diminished constitutional protections, they maintain a due process right to reasonable access to the courts.
Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.
A person's due process right to appear may be satisfied by allowing appearance via telephone.
Interest of D.L.M. , 2004 ND 38, 675 N.W.2d 187
The child support guidelines require the imputation of income when an obligor is unemployed.
A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining a child support obligation.
If the trial court finds the presumptively correct child support amount has been rebutted, it must make a specific finding.
Baier v. Job Service ND , 2004 ND 27, 673 N.W.2d 923
A person is disqualified from receiving unemployment benefits if discharged for misconduct in connection with employment.
An employee who deliberately violates or disregards standards of behavior that the employer rightfully expects is guilty of disqualifying misconduct.
Binek v. Binek , 2004 ND 5, 673 N.W.2d 594
The enforceability of a premarital agreement entered into prior to the adoption of N.D.C.C. ch. 14-03.1 is governed by common law.
A premarital agreement is enforceable under the common law if it is fair, reasonable, equitable, and just; does not contravene public policy; and was fairly entered into.
An award of spousal support is not precluded by a premarital agreement that applies only to the couple's property in the form of a property distribution as a result of divorce.
Fargo Glass and Paint v. Randall , 2004 ND 4, 673 N.W.2d 261
Under N.D.R.Civ.P. 60(a), there is no clerical mistake in a judgment if it accurately reflects uncontroverted evidence in the proceedings.
Rule 60(a) cannot be used to introduce a new party to an action.
Green v. Mid Dakota Clinic , 2004 ND 12, 673 N.W.2d 257
Assumption of the risk is no longer an affirmative defense in North Dakota but is one part of the analysis in determining comparative fault.
Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion.
State v. Waltz , 2003 ND 197, 672 N.W.2d 457
Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.
After making a lawful custodial arrest of the occupant of an automobile, the police may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, including any containers found therein.
The tentative elimination of alcohol as the cause of a defendant's impairment may result in a reasonable suspicion that the defendant is under the influence of drugs.
Zander v. Workforce Safety and Insurance , 2003 ND 194, 672 N.W.2d 668
Clear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true.
Benson v. Workforce Safety and Insurance , 2003 ND 193, 672 N.W.2d 640
If an appellant fails to serve the notice of appeal from an administrative order to the district court as required by the Administrative Agencies Practice Act, the district court lacks subject matter jurisdiction and the appeal must be dismissed.
State v. Dodson , 2003 ND 187, 671 N.W.2d 825
There must be a nexus between the place to be searched and the contraband sought to establish probable cause to issue a search warrant.
State courts apply the good faith exception to the exclusionary rule in a manner that is consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
Under the good faith exception to the exclusionary rule, exclusion of evidence is not the proper remedy when an officer has acted upon objectively reasonable reliance that a warrant was properly issued by a neutral and detached magistrate.
Kamara v. State , 2003 ND 179, 671 N.W.2d 811
To establish ineffective assistance of counsel, a person must show counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
The standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, but the trial court's findings of fact are subject to a clearly erroneous standard of review.
The credibility of witnesses is left to the trial court to determine.
Interest of L.D. , 2003 ND 182, 671 N.W.2d 791
A petition for involuntary treatment must be supported by clear and convincing evidence.
The trial court's determination of clear and convincing evidence that a person requires treatment is a finding of fact subject to a more probing, clearly erroneous standard of review.
If other evidence presented at a treatment hearing supports the underlying allegations of the petition, the petitioner does not have to be present to testify regarding all the allegations in the petition.
Elshaug v. Workforce Safety and Insurance , 2003 ND 177, 671 N.W.2d 784
A claimant has the burden of proving a right to receive workers compensation benefits or to continued benefits if they are terminated after liability for a claim has been accepted.
A claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury.
State v. Ballweg , 2003 ND 153, 670 N.W.2d 490
Facts in a search warrant affidavit are not misleading if there was no reckless or deliberate falsity nor omitted information that would have negated probable cause.
A high degree of suspicion attaches to the collective purchase of ingredients and supplies used to manufacture methamphetamine.
The combination of the presence of anhydrous ammonia, the collective purchase of an amount of Sudafed inconsistent with personal use and other supplies used to manufacture methamphetamine, and concealment of a garage creates a substantial basis to conclude probable cause exists to search a premises for a methamphetamine manufacturing operation.
Iglehart v. Iglehart , 2003 ND 154, 670 N.W.2d 343
Summary judgment is appropriate in a negligence action when the record indicates the defendant did not owe a duty to the plaintiff and was not negligent.
Interest of Z.C.B. , 2003 ND 151, 669 N.W.2d 478
A minor is not in custody and is not entitled to representation by his parents when he is asked common sense investigatory questions during a routine traffic stop.
When there is an odor of alcohol and a minor states he had a sip of alcohol, there is enough evidence to establish he is a minor in consumption of alcohol under N.D.C.C. 5-01-08.
There is no material distinction between consuming alcohol while driving and having recently consumed alcohol while driving. A petition that charges a minor with consuming alcohol while driving is sufficient to inform a minor of the charges against him and allow him to defend against them.
Krank v. Krank , 2003 ND 146, 669 N.W.2d 105
In making its custody decision, the trial court is not required to make specific findings of fact on each factor under N.D.C.C. 14-09-06.2(1), but the court should consider all relevant factors in making the decision.
Benson v. Benson , 2003 ND 131, 667 N.W.2d 582
When a North Dakota court issues an initial custody decree, the state retains exclusive, continuing jurisdiction to modify the decree unless: (1) a North Dakota court determines the child and at least one parent no longer have a significant connection with the state and the state no longer has substantial evidence concerning the child, or (2) it is determined by North Dakota or another state that all of the parties to the custody dispute have moved away from the state.
A North Dakota court may decline to exercise jurisdiction upon determining that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.
Weiss v. Collection Center, Inc. , 2003 ND 128, 667 N.W.2d 567
The least-sophisticated-consumer standard is used to determine whether a debt collector has used false or misleading practices to collect a debt.
A cause of action for intentional infliction of emotional distress requires proof of extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress.
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 D.P.O. , 2003 ND 127, 667 N.W.2d 590
Establishment of a psychological parent relationship does not end the trial court's inquiry in making a custody decision, but merely furnishes a justification for the award of custody to a party other than the natural parent.
When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent's paramount right to custody prevails unless the court finds it in the child's best interests to award custody to the psychological parent to prevent serious harm or detriment to the child.
As a prerequisite to awarding grandparent visitation, the trial court must determine whether the visitation would be in the best interests of the child and whether the visitation would interfere with the parent-child relationship.
Rist v. ND Dept. of Transportation , 2003 ND 113, 665 N.W.2d 45
Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct.
If an officer learns something during a caretaking encounter that causes a reasonable suspicion or probable cause, the encounter can lead to further investigation, seizure, and even arrest.
Probable cause to arrest a person for being in actual physical control of a vehicle while under the influence of intoxicating liquor can exist without establishing the vehicle's operability or the location of the vehicle's ignition key.
State v. Schwab , 2003 ND 119, 665 N.W.2d 52
Under N.D.R.Crim.P. 3(b), amendment of a complaint is within the district court's discretion.
On appeal, a trial court's jury selection process is reviewed using an abuse of discretion standard.
A potential juror's acquaintance with a possible witness is not implied bias.
In a fair-cross-section challenge, a defendant must show the group alleged to be excluded is a distinctive group in the community, the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and the group was systematically excluded in the jury selection process.
Peters-Riemers v. Riemers , 2003 ND 96, 663 N.W.2d 657
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.
Interest of A.B. , 2003 ND 98, 663 N.W.2d 625
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.
Fercho v. Remmick , 2003 ND 85, 662 N.W.2d 259
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.
Trinity Health v. North Central Emergency Services , 2003 ND 86, 662 N.W.2d 280
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.
Northern Plains Alliance, L.L.C. v. Mitzel , 2003 ND 91, 663 N.W.2d 169
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.
Hoffner v. Johnson , 2003 ND 79, 660 N.W.2d 909
The six-year statute of repose for medical malpractice actions under N.D.C.C. 28-01-18(3) does not violate equal protection.
For equitable estoppel precluding application of a statute of limitation or repose, the plaintiff must show affirmative deception by the defendant.
Wagner v. Miskin , 2003 ND 69, 660 N.W.2d 593
An appellant assumes the consequences and the risk for the failure to file a complete transcript, and if the record on appeal does not allow for a meaningful and intelligent review of alleged error, this Court will decline review of the issue.
A party cannot complain of alleged error on appeal if the party invited the error.
A person making a defamatory statement in a privileged setting is not protected when repeating the defamatory statement in a non-privileged setting.
Ellis v. State , 2003 ND 72, 660 N.W.2d 603
A Sixth Amendment violation of the right to assistance of counsel occurs if the government knowingly intrudes into the attorney-client relationship and the intrusion demonstrably prejudices the defendant, or creates a substantial threat of prejudice.
State v. Norman , 2003 ND 66, 660 N.W.2d 549
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.
Schmidt v. Schmidt , 2003 ND 55, 660 N.W.2d 196
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.
Lawrence v. Delkamp , 2003 ND 53, 658 N.W.2d 758
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.
City of Grand Forks v. Ramstad , 2003 ND 41, 658 N.W.2d 731
To establish a Brady violation, the defendant must show the prosecution withheld evidence which was favorable to him.
A defendant alleging a Brady violation must show he could not have obtained the undisclosed evidence with reasonable diligence.
Under N.D.R.Crim.P. 16, the prosecution has a duty to provide documents in the possession of the State Toxicologist's office, even if the defendant could have otherwise obtained the documents himself.
Berger v. Holt , 2003 ND 34, 657 N.W.2d 273
A parent's legal obligation to support his or her child continues when the child is placed in foster care.
Simpson v. Chicago Pneumatic Tool Co. , 2003 ND 31, 657 N.W.2d 261
A trial court's discovery decision and denial of a motion for new trial will not be reversed on appeal unless the court abused its discretion.
Shields v. Shields , 2003 ND 16, 656 N.W.2d 712
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
First Western Bank & Trust v. First Lutheran Church Foundation , 2003 ND 21, 656 N.W.2d 726
The parties have the primary duty to bring to the court's attention the proper rules of law applicable to a case.
To warrant a new trial based on newly discovered evidence, it must appear the evidence is in fact newly discovered, and not merely the importance of it.
Moen v. State , 2003 ND 17, 656 N.W.2d 671
To pursue a claim against the State or a state employee, a person must give notice of the claim within 180 days "after the alleged injury is discovered or reasonably should have been discovered."
Without the timely filing of a notice of claim as required by N.D.C.C. 32-12.2-04, a court lacks jurisdiction to entertain a lawsuit against the State.
Duemeland v. Norback , 2003 ND 1, 655 N.W.2d 76
A document is ambiguous when reasonable arguments can be made for different interpretations of the meaning of the document.
State v. Weisz , 2002 ND 207, 654 N.W.2d 416
When a party fails to adequately preserve an issue for appellate review, appellate inquiry is limited to noticing obvious error.
A defendant's rights against being placed in double jeopardy are not violated when he pleads guilty to simple assault in one county and is charged with aggravated assault in another county because the crimes were separate offenses.
State v. Boyd , 2002 ND 203, 654 N.W.2d 392
A community caretaking encounter does not involve detecting, investigating, or acquiring evidence related to a potential legal violation.
The test to determine whether an officer had a reasonable and articulable suspicion to justify an investigatory stop is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.
Walker v. Walker , 2002 ND 187, 653 N.W.2d 722
Use of the Bullock formula to distribute retirement pay is not mandatory if the overall distribution of marital property is equitable.
A property distribution may include offsetting monetary awards when it is impractical or unsound to liquidate essentially nonliquid assets.
In awarding spousal support, the trial court must balance the income and needs of the disadvantaged spouse against the supporting spouse's needs and ability to pay support.
Under appropriate circumstances, termination of temporary spousal support payments may be conditioned upon the supporting spouse's retirement, when the disadvantaged spouse has been awarded a portion of the supporting spouse's monthly retirement benefits.
Interest of D.Q. , 2002 ND 188, 653 N.W.2d 713
A district court's review of a judicial referee's findings and recommendations under Administrative Rule 13, section 11(b), when it is a review of the record, is governed by N.D.R.Civ.P. 53, and the district court is obliged to accept the referee's findings unless they are clearly erroneous. <