Opinions

State v. Iverson 2006 ND 193
Docket No.: 20060097
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: A statute authorizing credit for time served in custody cannot be retroactively applied after a person has been finally convicted.

State v. Schmidkunz 2006 ND 192
Docket No.: 20050141
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The district court has broad discretion over the conduct of a trial, including scheduling the time for jury deliberations. The court must exercise its discretion in a manner that best comports with substantial justice.

Leet, et al. v. City of Minot 2006 ND 191
Docket No.: 20060011
Filing Date: 9/13/2006
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: 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.

Strand, et al. v. Cass County, et al. 2006 ND 190
Docket No.: 20050380
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Jury instructions are reviewed to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
A local government body may only be held liable for constitutional violations which result from a policy or custom of the government body.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.

Tibert, et al. v. City of Minto 2006 ND 189
Docket No.: 20050393
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A decision of a local governing body will be affirmed on appeal unless the local governing body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support the decision.

Interest of B.L.S. (Confidential) 2006 ND 188
Docket No.: 20060216
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court cannot allow a respondent in a mental health proceeding to waive the right to counsel without first establishing, on the record, that the respondent is competent to waive counsel and that the waiver is knowingly, intelligently, and voluntarily made.
To establish a valid waiver of counsel in a mental health proceeding, the district court must engage in a colloquy on the record that mirrors the required colloquy for the waiver of counsel in a criminal proceeding.

ACUITY v. Burd & Smith Construction, Inc., et al. 2006 ND 187
Docket No.: 20060001
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: A commercial general liability insurance policy excludes coverage for damage to the insured's work product and provides coverage for accidental damage to property other than the insured's work product.

Jochim v. Jochim 2006 ND 186
Docket No.: 20060038
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Ungar v. ND State University 2006 ND 185
Docket No.: 20050340
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: Res judicata, or claim preclusion, prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies resulting final judgment from a court of competent jurisdiction. Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or must have been litigated, and decided in the prior action.
For the district court to have subject-matter jurisdiction over a university professor's claims against the university, the plaintiff must comply with the statutory notice of claim requirements and exhaust the internal administrative remedies.

State v. Dailey 2006 ND 184
Docket No.: 20060030
Filing Date: 8/24/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: After a jury's verdict has been announced, a trial judge may explain to a jury what will occur after the trial has ended.

Peoples State Bk. of Truman v. Molstad Excavating, et al. 2006 ND 183
Docket No.: 20050444
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: 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
Docket No.: 20050436
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.

Hagel v. Hagel 2006 ND 181
Docket No.: 20050434
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to perform its appellate function.

Mountrail Bethel Home v. Lovdahl, et al. 2006 ND 180
Docket No.: 20060002
Filing Date: 8/16/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court must make findings on issues a party raises and presents evidence on.

State v. Woinarowicz 2006 ND 179
Docket No.: 20060032
Filing Date: 8/16/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The Sixth Amendment Confrontation Clause does not apply to the same extent at pretrial suppression hearings as it does at trial.
A district court is not bound by the Rules of Evidence at pretrial evidentiary hearings.
Constructive possession of a controlled substance may be established by showing the individual had the power and ability to exercise dominion and control over the controlled substance.
An arrestee's person and purse may be searched incident to arrest.

Heng v. Rotech Medical Corp., et al. 2006 ND 176
Docket No.: 20050311
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Issues cannot be raised for the first time on appeal.
Whether an employee has established a prima facie case of retaliatory discharge is a question of law fully reviewable on appeal.
An employer's failure to follow its own policies may support an inference of pretext, but not when the departure in policy is applied to all employees.
The admission of deposition testimony under N.D.R.Civ.P. 32(a) lies within the district court's discretion.
A comparison of hours and rates charged by opposing counsel is probative of the reasonableness of a request for attorney fees by prevailing counsel.
Mediation fees may not be awarded as an allowable cost if the parties have contractually agreed to share those expenses.
Electronic legal research fees are a component of attorney fees and cannot be separately taxed as costs.

State ex rel. ND Housing Finance Agency v. Center Mutual Ins. Co. 2006 ND 175
Docket No.: 20050224
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: An instrument payable to multiple payees non-alternatively may only be negotiated, discharged, or enforced by all of them.
Payment of a check by a payor bank to one joint payee over the forged endorsement of another payee does not discharge the drawer's obligation on the instrument, and the payee has an action against the drawer on the instrument.
A check containing a forged endorsement is not "properly payable" under N.D.C.C. 41-04-32(1), and the drawer has a right to reimbursement of the amount of the check to its account if its bank accepts and pays the check.

Hunt v. Banner Health System 2006 ND 174
Docket No.: 20050402
Filing Date: 7/30/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The presence of a clear, conspicuous, and unambiguous disclaimer may act as an "escape hatch" in an employee handbook, virtually undoing other implied promises made in the handbook.
The language in an employee manual simply stating it does not guarantee employment does not preclude the manual from being an employment contact.

State v. Bjerklie 2006 ND 173
Docket No.: 20050438
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A court's ruling on a motion in limine is reviewed for abuse of discretion.
A court abuses its discretion in granting a motion in limine when it acts in an arbitrary, unreasonable or unconscionable manner.

Deacon's Development v. Lamb, et al. 2006 ND 172
Docket No.: 20050147
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Attorney fees may be recovered if a court finds a party made a frivolous "claim for relief."
A court does not have authority to award attorney fees based on a position a party took prior to litigation.

Dvorak v. Dvorak (cross-ref. w/20040222) 2006 ND 171
Docket No.: 20050405
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.

Weinreis, et al. v. Hill, et al. 2006 ND 170
Docket No.: 20060026
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A principal is bound by acts of his agent under a merely ostensible authority to those persons only who in good faith and without ordinary negligence have incurred a liability or parted with value upon the faith thereof.
A district court's determination of negligence is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.

State v. Salveson (Consolidated w/20060016) 2006 ND 169
Docket No.: 20060015
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.

State v. Campbell (Consolidated w/20050337 & 20050338) 2006 ND 168
Docket No.: 20050326
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
A defendant can waive a potential Confrontation Clause violation by failing to exercise a statutorily defined opportunity to subpoena the author of the state crime laboratory report.

The Ramsey Financial Corp. v. Haugland, et al. 2006 ND 167
Docket No.: 20050375
Filing Date: 7/26/2006
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: Voluntary acquiescence in a judgment waives the right to appeal.
Absent fraud, the procedure for asserting dissenting shareholders' rights under N.D.C.C. 10-19.1-87 and 10-19.1-88 is an exclusive remedy.

Dahl, et al. v. Messmer, et al. 2006 ND 166
Docket No.: 20050426
Filing Date: 7/24/2006
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: 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.

Frisk v. Frisk 2006 ND 165
Docket No.: 20050391
Filing Date: 7/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A domestic violence protection order may be extended upon request made prior to the order's expiration.
After a case has been remanded, the district court must cure any defects, but may do so in any manner consistent with the appellate court's opinion and conformable to law and justice.

Disciplinary Board v. Balerud 2006 ND 164
Docket No.: 20060165
Filing Date: 7/20/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Molitor v. Molitor 2006 ND 163
Docket No.: 20040041
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court's custody decision is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
A trial court's findings of fact in child custody cases should be stated with sufficient specificity to enable the appellate court to understand the factual basis for the court's decision.
The failure to raise the issue of judicial bias in the trial court precludes appellate court review on appeal.
When a party seeking modification of custody within two years of issuance of a custody order does not prove any of the grounds listed under N.D.C.C. 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody.

Riemers v. State, et al. 2006 ND 162
Docket No.: 20050433
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: Absent personal jurisdiction, a court is powerless to do anything beyond dismissing a case without prejudice.

Lautt v. Lautt 2006 ND 161
Docket No.: 20050373
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The standard of review for child support determinations depends on the issue appealed: a de novo standard applies to questions of law; a clearly erroneous standard applies to questions of fact; and an abuse of discretion standard applies to discretionary matters.
A district court errs by failing to close the record following the hearing and to address a child support modification motion.

Witzke v. City of Bismarck 2006 ND 160
Docket No.: 20060113
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A prosecutor is absolutely immune from liability for prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the State's case at trial, and other conduct intimately associated with the judicial process.
There is no private cause of action for perjury.

SPW Associates v. Anderson, et al. 2006 ND 159
Docket No.: 20050205
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: 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.

City of Bismarck v. DePriest (Consolidated w/20060071 & 20060072) 2006 ND 158
Docket No.: 20060070
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Law enforcement officials may use persons under 21 years of age to attempt to purchase alcoholic beverages to conduct alcohol compliance checks.

Johnson v. Gehringer (cross-reference w/20010170) 2006 ND 157
Docket No.: 20050394
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: 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.

Interest of K.H. (CONFIDENTIAL) 2006 ND 156
Docket No.: 20050305
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Juvenile Law
Author: Kapsner, Carol

Highlight: A juvenile's right to counsel can be waived even if the minor is of a young age, provided the juvenile is represented by the child's parent, guardian, or custodian.
Deference is given to a juvenile court's credibility determinations.

Spectrum Care v. Stevick, et al. 2006 ND 155
Docket No.: 20060018
Filing Date: 7/18/2006
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: 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.

Gietzen v. Gabel 2006 ND 153
Docket No.: 20050268
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When there is credible evidence of domestic violence, it is the predominate factor in a child custody decision.
Specific findings and conclusions are required when a district court addresses whether evidence of domestic violence triggers the presumption against awarding custody of a child to a perpetrator of domestic violence.
When reciprocal domestic violence is claimed, a district court must make specific findings on the degree of violent behavior by each parent.

State v. Torkelsen 2006 ND 152
Docket No.: 20050250
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: 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
Docket No.: 20050357
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: To justify a termination of all visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail.

State v. Entzi 2006 ND 150
Docket No.: 20060066
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Denial of a motion to terminate probation is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Guardianship and Conservatorship of Johnson 2006 ND 149
Docket No.: 20060021
Filing Date: 7/5/2006
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: An order appointing co-guardians and co-conservators with unlimited authority to make decisions for the ward is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Korsmo 2006 ND 148
Docket No.: 20060054
Filing Date: 6/30/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Rekkedal v. Feist 2006 ND 147
Docket No.: 20050430
Filing Date: 6/30/2006
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Dismissal of a lawsuit for failure to timely file the complaint requires that the demand to file has been served under N.D.R.Civ.P. 4(d); N.D.R.Civ.P. 5 service of the demand is not sufficient.
A party will be sanctioned for including in its appendix material not in the district court record.

Disciplinary Board v. Aakre 2006 ND 146
Docket No.: 20050382
Filing Date: 6/29/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Estate of Sorenson 2006 ND 145
Docket No.: 20050350
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: No acknowledgment or promise is sufficient evidence of a new or continuing contract to preclude operation of the statute of limitations unless the acknowledgment or promise is contained in a writing signed by the party to be charged.
Whenever services are rendered by one family member for another, a presumption arises that the services are gratuitous and that compensation was not intended, and a claimant has the burden to rebut the presumption by proof that the services were not gratuitous, which may be established by proof that the parties expressly or impliedly agreed the claimant would be compensated.

State ex rel. Bd. of University and School Lands v. Alexander, et al. 2006 ND 144
Docket No.: 20050409
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: The parties to a prior foreclosure action and their assigns are bound by a judgment in the prior action under principles of res judicata.
The Pembina Nation Little Shell Band of North America is not a federally recognized Indian tribe.

Interest of J.S. (CONFIDENTIAL) 2006 ND 143
Docket No.: 20060156
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: Mentally ill persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs.
When deciding whether alternative treatment to hospitalization is adequate, the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries that an individual may inflict on himself or others.
When available alternative treatment programs are insufficient to prevent harm or injures that an individual may inflict on himself or others, less restrictive treatment cannot be ordered.

DeMers v. DeMers 2006 ND 142
Docket No.: 20050184
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The statutory presumption against awarding custody to the perpetrator of domestic violence applies when the district court finds there is credible evidence of domestic violence and at least one incident of domestic violence resulted in serious bodily injury or involved the use of a dangerous weapon, or there is a pattern of domestic violence within a reasonable proximity to the proceeding.
A party waives the right to appeal a divorce judgment if she unconditionally, voluntarily, and consciously accepts the benefits of the judgment.
The district court must adequately explain a substantial disparity in a property distribution.

Farmers Insurance Exchange, et al. v. Schirado 2006 ND 141
Docket No.: 20050221
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A plaintiff may establish the elements of a claim by circumstantial evidence.
Direct evidence of causation is not required if other evidence is sufficient to permit an inference that the defendant's conduct caused the plaintiff's damages.