Opinions

Olsson v. Workforce Safety and Insurance, et al. 2007 ND 58
Docket No.: 20060371
Filing Date: 5/1/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming the decision of Workforce Safety and Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Hieb v. Hieb 2007 ND 57
Docket No.: 20060240
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment dividing marital property and awarding spousal support, attorney fees, and costs is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Deacon's Development v. Lamb, et al. 2007 ND 56
Docket No.: 20060335
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A district court order awarding costs and attorney fees is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kessel v. Rutherford, et al. 2007 ND 55
Docket No.: 20060267
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: Personal injury judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Gisvold v. Windbreak Inc. 2007 ND 54
Docket No.: 20060209
Filing Date: 4/19/2007
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: In considering a motion for a new trial based on insufficiency of the evidence, a district court may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally and fairly come to different conclusions; rather, a district court may set aside a jury verdict when, in considering all the evidence, the court's judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.
A district court's decision on a motion for a new trial must concisely state the grounds on which the ruling is based.

Estate of Stave 2007 ND 53
Docket No.: 20060189
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: In a proceeding to contest a will, four elements must be proven to establish undue influence: 1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence.
For the issue of undue influence to be submitted to a jury, the evidence must be sufficient with regard to each essential element of the claim and the evidence must also create more than just a mere suspicion of undue activity.

State v. Westmiller 2007 ND 52
Docket No.: 20060246
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: 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.

Odden v. Rath 2007 ND 51
Docket No.: 20060170
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: 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.

Matter of Anderson 2007 ND 50
Docket No.: 20060088
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: The district court may extend for good cause the 60-day period within which a commitment hearing must be held.
For the civil commitment proceedings under N.D.C.C. ch. 25-03.3, the legislature specifically excluded the right to a jury trial.
Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Sexually predatory conduct includes the act of compelling another to submit to sexual contact by force. It also includes sexual contact with a minor when the actor is an adult.
A person need not be diagnosed with a sexual disorder. The actor need only have a congenital or acquired condition that is manifested by a personality disorder or other mental disorder or dysfunction.
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.

Lorenz v. Lorenz 2007 ND 49
Docket No.: 20060068
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.

City of West Fargo v. Olson 2007 ND 48
Docket No.: 20060325
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A conviction for driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Bovkoon 2007 ND 47
Docket No.: 20060312
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for livestock running at large is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Gratech Co., Ltd. v. Wold Engineering, P.C. (Cross-Ref. w/20030181) 2007 ND 46
Docket No.: 20060272
Filing Date: 3/27/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An arbitration award is vacated only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator's mistake as to fact or law is not a sufficient ground for overturning an arbitration award.
A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties.
When no evidence is introduced and when the district court makes no specific findings of fact to support its determination on attorney's fees, it is impossible for the Supreme Court on appeal to appropriately review the decision of the district court.

State v. Frohlich 2007 ND 45
Docket No.: 20060178
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Motions for continuance will be granted only for good cause shown, either by affidavit or otherwise.
The denial of a continuance will be reversed only if it is an abuse of discretion.
When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice. In exercising its discretion, the district court may consider the time required for trial preparation and the diligence of the moving party.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
Cumulative evidence is additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.

City of Belfield v. Kilkenny 2007 ND 44
Docket No.: 20060176
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: All laws must meet two requirements to survive a void-for-vagueness challenge: the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and the law must provide a reasonable person with adequate and fair warning of the proscribed conduct.

State v. Mulske 2007 ND 43
Docket No.: 20060184
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: If an accused desires to exercise his constitutional right to testify, the accused must act affirmatively and express to the court his desire to do so at the appropriate time or a knowing and voluntary waiver of the right is deemed to have occurred.
Unlike other constitutional rights that can be waived only after the court makes a formal inquiry, the court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily. Instead, the court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision.

State v. Bachmeier 2007 ND 42
Docket No.: 20060235
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Observed traffic violations provide law enforcement officers with the basis for a stop.
The exclusionary rule is only designed to safeguard an individual's rights through its deterrent effect, and it is not a personal constitutional right of the party aggrieved.
North Dakota law authorizes law enforcement personnel operating a class A emergency vehicle to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property.

Jelsing v. Peterson 2007 ND 41
Docket No.: 20060112
Filing Date: 3/22/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An initial award of custody must be made to one parent before a court may decide whether to allow a custodial parent to relocate with a child to another state.

State v. Olson (Consolidated w/20060183) 2007 ND 40
Docket No.: 20060182
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: 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.

State v. Brossart 2007 ND 39
Docket No.: 20060242
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor
The proper remedy for addressing claims of unlawful police conduct is allowing the defendant to raise the issue to the factfinder and offer his resistance as a justification defense to the preventing-arrest charge.

State v. Altru Health Systems 2007 ND 38
Docket No.: 20060107
Filing Date: 3/8/2007
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The district court's inquiry in proceedings for enforcing an administrative subpoena is limited to whether: (1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant to the inquiry of the administrative proceeding; (3) the subpoena is reasonably specific; and (4) the subpoena is not unduly broad or burdensome.
A court's decision to issue a protective order imposing restrictions on an administrative subpoena is reviewed for an abuse of discretion.

Interest of R.W.S. (CONFIDENTIAL) 2007 ND 37
Docket No.: 20060167
Filing Date: 3/5/2007
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: When deciding a question of the violation of a federal constitutional right, courts look to federal courts for guidance. Decisions of federal courts other than the United States Supreme Court, interpreting the United States Constitution are considered for guidance.
Juveniles have the same rights as adult defendants to be free from physical restraints. The right to remain free from physical restraints is based on considerations beyond the potential for jury prejudice, including inhibition of free consultation with counsel. Extending the right to remain free from physical restraints during juvenile proceedings is consonant with the rehabilitative purposes of the juvenile justice system.
The constitutional requirement to be free from physical restraints is not absolute. The court may take into account special considerations that call for restraints.
The factors a juvenile court should consider when deciding whether to place a juvenile in physical restraints are: the accused's record, temperament, and the desperateness of his situation; the security situation at the courtroom and courthouse; the accused's physical condition; and whether there was an adequate means of providing security that was less prejudicial.
The burden is on the beneficiary of a constitutional error to prove the error is harmless beyond a reasonable doubt.
The admissibility of an in-court identification that is not preceded by a pretrial identification is to be determined by considering whether the in-court identification procedure is unnecessarily suggestive and susceptible to a substantial likelihood of irreparable misidentification.
Any suggestiveness of an in-court identification can be reduced by the juvenile's opportunity to cross-examine the witnesses and his ability to raise doubts about the accuracy of the identifications.

Riverwood Commercial Park, et al. v. Standard Oil Company, et al. 2007 ND 36
Docket No.: 20060122
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The law of the case doctrine applies only in the immediate case, and does not apply to bar claims or issues in a subsequent, separate action.
Res judicata claim preclusion applies to whole claims, whether litigated or not, whereas collateral estoppel issue preclusion applies to particular issues that have been actually contested and litigated in a prior action.
Res judicata claim preclusion does not bar claims that could not have been brought in the prior action.
Collateral estoppel issue preclusion applies only if determination of the issue in the prior action was necessary and essential to support the judgment.
A finding of fact that is not ruled upon on appeal because it was not necessary for the appellate court's decision is not conclusive between the parties in a subsequent action.
Dismissal of an action for failure to join an indispensable party under N.D.R.Civ.P. 19 is not an adjudication on the merits and cannot be granted with prejudice.

Estate of Carlson 2007 ND 35
Docket No.: 20060204
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A North Dakota court has no subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state.
Under the Uniform Probate Code, no presentation of claim is required in regard to matters claimed in proceedings against a decedent that were pending at the time of death.
Under the Uniform Probate Code, a judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim in a North Dakota probate proceeding.

Gonzales v. Witzke 2007 ND 34
Docket No.: 20060277
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Wagner v. Wagner 2007 ND 33
Docket No.: 20060124
Filing Date: 3/2/2007
Case Type: Appeal - Civil - Divorce
Author: Crothers, Daniel John

Highlight: A spousal support determination will not be reversed on appeal unless it is clearly erroneous.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing the spouse with the opportunity to acquire an education, training, work skills, or experience to become self-supporting.

Whitecalfe v. ND Dept. of Transportation (CONSOLIDATED W/20060269) 2007 ND 32
Docket No.: 20060202
Filing Date: 2/28/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: 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.

State v. Duchene 2007 ND 31
Docket No.: 20060164
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Issues not briefed by an appellant are abandoned, and become the law of the case and will not be considered on appeal.

State v. Austin (CONSOLIDATED W/ 20060194) 2007 ND 30
Docket No.: 20060022
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Expert testimony is admissible when specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Whether expert testimony is useful falls within the district court's discretion, and the decision whether to allow the testimony will not be reversed on appeal unless the district court has abused its discretion.
A defendant claiming ineffective assistance of counsel must prove that the counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.

Holden v. Holden 2007 ND 29
Docket No.: 20060212
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: North Dakota law does not mandate a set formula or method to determine how marital property is to be divided after a divorce; rather, the property division is based on the particular circumstances of each case.
Property need not be liquidated for a distribution to be equitable.

McCrothers Corp., et al. v. City of Mandan 2007 ND 28
Docket No.: 20060127
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: 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.

Stockman Bank of Montana v. AGSCO, Inc., et al. 2007 ND 27
Docket No.: 20060119
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An agricultural supplier's lien is a statutory lien and cannot be obtained or enforced unless there is substantial compliance with the statute.
The producer's actual knowledge is substantial compliance with requirement for notice to the producer before filing the lien.

Stockman Bank of Montana v. AGSCO, Inc., et al. (Cross Ref w/20070357) 2007 ND 26
Docket No.: 20060174
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: 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.

State v. Streeper 2007 ND 25
Docket No.: 20060162
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: When a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal conduct.
The use and admission of photographs in criminal trials is largely within the discretion of the district court.
A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made.
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, the conviction will not be reversed on grounds the prosecutor exceeded the scope of permissible closing argument.

Rothberg v. Rothberg (Cross-Ref w/20050198) 2007 ND 24
Docket No.: 20060191
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A change in an obligor's financial circumstances that does not affect the obligor's ability to pay is not a "material" change in circumstances warranting a reduction in spousal support.

Fettig v. Workforce Safety and Insurance 2007 ND 23
Docket No.: 20060105
Filing Date: 2/28/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: To trigger the civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality of a false statement." If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

State v. Fischer (Cross-reference w/ 20060140) 2007 ND 22
Docket No.: 20060153
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: 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.

State v. Halvorson 2007 ND 21
Docket No.: 20060219
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction of felony reckless endangerment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Hanson v. Boeder 2007 ND 20
Docket No.: 20060114
Filing Date: 2/6/2007
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A breaching party cannot retract an anticipatory repudiation after an injured party sues for enforcement or damages, and an injured party is not required to accept the retraction to mitigate damages.
Issues not raised in the district court will not be considered on appeal.

Hentz v. Elma Township Board 2007 ND 19
Docket No.: 20060198
Filing Date: 2/5/2007
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A township board's decision must be affirmed unless the board acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.
Interpretation of an ordinance is fully reviewable on appeal, and failure to correctly interpret and apply the ordinances constitutes arbitrary, capricious, and unreasonable conduct.
Ordinances are interpreted like any statute.

Meier v. Said 2007 ND 18
Docket No.: 20060248
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: 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.

State v. Proell 2007 ND 17
Docket No.: 20060222
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: North Dakota is a sovereign, separate from the federal government, and the state's power to prosecute crimes is derived from its inherent sovereignty, not from the federal government.
As a result of inherent state sovereignty, state court proceedings are not ancillary to federal proceedings and state courts are not in privity with or bound by a federal court decision on a motion to suppress evidence.
Contraband found in a search incident to a valid arrest is admissible unless the search is invalidated on another basis.

State v. Loughead 2007 ND 16
Docket No.: 20060160
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A person does not have a constitutional right to confront a mere informer who does not testify against him.
There is a presumption of regularity in prosecutorial conduct, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.
In the ordinary case, so long as the prosecutor has probable cause to believe the accused committed an offense, the decision whether to prosecute and what charges to file generally rests within the prosecutor's discretion.
The government may not base its decision to prosecute on a constitutionally unjustifiable standard such as race, religion, or other arbitrary classification.
The government, upon the defendant's request, must disclose statements of the defendant, the defendant's previous record, documents and objects, any reports of examinations and tests, and information concerning expert witnesses within the government's possession, custody, or control.

State v. Bates 2007 ND 15
Docket No.: 20060179
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court's discretion, for any "fair and just" reason unless the prosecution has been prejudiced by reliance on the plea.
A factual basis is a statement of facts to assure the defendant is guilty of the crime charged.
A court may determine a sufficient factual basis in one of three ways: (1) the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime; (2) the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant; and (3) the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.
When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel is plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim.

Leftbear v. State 2007 ND 14
Docket No.: 20060244
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The time limit for filing a notice of appeal is jurisdictional.
The time limit for filing a notice of appeal may be extended only upon a showing of excusable neglect.
Excusable neglect is a fluid concept, encompassing both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.
Ignorance of the rules, or mistakes construing the rules, are insufficient to establish excusable neglect.

Klimple v. Bahl 2007 ND 13
Docket No.: 20060195
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Although there generally is no requirement in ordinary negligence cases for expert testimony to establish the elements of the tort, expert testimony is required if the issue is beyond the area of common knowledge or lay comprehension.
Although hypertechnical words are not necessary for admission of expert medical testimony, the test for admissibility is whether the expert's testimony demonstrates the expert is expressing a medical opinion that is more probable, or more likely than not.
A doctor's testimony that a certain thing is "possible" is no evidence at all.

B.J. Kadrmas, Inc. v. Oxbow Energy 2007 ND 12
Docket No.: 20060137
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The existence of a contract is a question of fact for the trier of fact, and appellate review is governed by the "clearly erroneous" standard.
In a bench trial, the court determines credibility, which is not second-guessed on appeal. The trial court's choice between two permissible views of the evidence is not clearly erroneous.
A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.
Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.
When the parties have agreed on the essential terms of a contract, the fact they contemplated a further writing memorializing the agreement does not prevent enforcement of the contract. The intent of the parties controls, and a binding agreement is created unless the parties intended there be no agreement until a writing was signed.
When the relations between parties justify the offerer expecting a reply, or when the offeree has come under a duty to communicate either a rejection or acceptance, the failure to communicate rejection or to perform this duty may result in a legal assent to the terms of the offer.

State v. Ernst (Consolidated w/20060251) 2007 ND 11
Docket No.: 20060250
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: District court order denying a motion to correct a sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Ehrhardt v. N.D. Dept. of Transportation 2007 ND 10
Docket No.: 20060255
Filing Date: 2/1/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driver's license summarily affirmed under N.D.R.App.P. 35.1(a)(5).

ND State Board of Medical Examiners v. Hsu 2007 ND 9
Docket No.: 20060134
Filing Date: 1/23/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: 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.