Opinions

Eifert v. Eifert 2006 ND 240
Docket No.: 20060069
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In deciding custody, a district court may consider the child's interaction and interrelationships with a party's extended family and others who may significantly affect the child's best interests.

State v. Doohen 2006 ND 239
Docket No.: 20060089
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement.
Under the automobile exception, law enforcement may search for illegal contraband without a warrant when probable cause exists.
A police officer may draw inferences based on his own experience in deciding whether probable cause exists.
Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious individual would warrant a belief that certain items may be contraband or useful as evidence of a crime.

Glasser v. Glasser 2006 ND 238
Docket No.: 20060159
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Divorce
Author: Maring, Mary

Highlight: An order dismissing an order to show cause why a party should not be held in contempt of court is appealable.
Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. The question whether a judgment is ambiguous is a question of law. There is an ambiguity when language can be reasonably construed as having at least two alternative meanings.
If the language used in a judgment is ambiguous, there is room for construction, but if the language is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning.

Genter v. Workforce Safety & Ins. Fund, et al. 2006 ND 237
Docket No.: 20060145
Filing Date: 11/28/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: 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.

Klein v. Larson 2006 ND 236
Docket No.: 20060062
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In an initial custody decision, the trial court must award custody to the parent who will better promote the best interests and welfare of the child.
A parent's numerous prior criminal offenses, although not involving crimes of moral turpitude, are relevant evidence of the parent's moral fitness.

Silbernagel, et al. v. Silbernagel, et al. 2006 ND 235
Docket No.: 20060201
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Summary judgment in a quiet title action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Morrell 2006 ND 234
Docket No.: 20060078
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered upon a conditional guilty plea to the offense of carrying a loaded firearm in a motor vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Otto v. State (Cross-Ref. w/20030368) 2006 ND 233
Docket No.: 20060093
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Wishek v. Kaseman 2006 ND 232
Docket No.: 20060192
Filing Date: 11/15/2006
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Per Curiam

Highlight: A judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Trinity Hospitals v. Mattson, et al. 2006 ND 231
Docket No.: 20060121
Filing Date: 11/14/2006
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Highlight: The Supreme Court's authority to issue a supervisory writ is a discretionary power exercised rarely, cautiously, and only in extraordinary cases to rectify errors and to prevent injustice when no adequate alternative remedy exists.
A contributing employer is immune from suit under the exclusive remedy provisions of workers' compensation law, and Workforce Safety and Insurance's determination that two affiliated corporations are encompassed under the same premium is a salient factor in determining a contributing employer.

Disciplinary Board v. Aakre 2006 ND 230
Docket No.: 20060260
Filing Date: 11/14/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Tverberg v. Workforce Safety & Insurance, et al. 2006 ND 229
Docket No.: 20060064
Filing Date: 11/13/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The rehabilitation provisions of workers compensation law are intended to return injured workers to substantial gainful employment with a minium of retraining as soon as possible after a work injury, but those provisions do not require complete rehabilitation to preinjury earning capacity.
Section 65-05.1-01(6), N.D.C.C., applies if a vocational consultant determines that none of the priority options under N.D.C.C. 65-05.1-01(4) are viable and will not return the employee to the lesser of two-thirds of the average weekly wage or ninety percent of the employee's preinjury earnings.
Partial disability benefits are to be awarded based on a calculation for retained earnings capacity, and WSI may use a statewide job pool to calculate the employee's retained earnings capacity.

Disciplinary Board v. Bullis 2006 ND 228
Docket No.: 20060132
Filing Date: 11/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Attorney suspended from practice of law for 90 days, ordered to complete six hours of non-self-study continuing legal education courses on conflicts of interest within the next two years in addition to the mandatory CLE requirements, and ordered to pay costs and expenses of proceedings.
When a lawyer has conflicting responsibilities as the lawyer for various clients, those loyalties owed to the client are impaired.
An attorney representing multiple clients cannot by subjective or secret analysis eliminate one as a current client and decide that he is only representing another current client on a particular transaction.
Business transactions between an attorney and client are fraught with pitfalls and traps, and an attorney, with his superior knowledge and education, engages in business transactions with a client at the attorney's peril and is held to the highest standards.

State v. Buchholz (Consol. w/20060061) (Cross-ref. w/20040118) 2006 ND 227
Docket No.: 20060044
Filing Date: 11/7/2007
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: 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.

Unterseher v. Ziegler 2006 ND 226
Docket No.: 20060181
Filing Date: 11/7/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Just 2006 ND 225
Docket No.: 20060146
Filing Date: 11/7/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: An information or complaint must contain a plain, concise, and definite written statement of the essential facts and elements of the offense.
The omission of statutory language from an information or complaint may be harmless if the defendant was not substantially prejudiced and the document is sufficiently specific to enable the defendant to prepare a defense.

Riemers v. City of Grand Forks 2006 ND 224
Docket No.: 20060057
Filing Date: 11/7/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A party opposing summary judgment may not merely rely upon the pleadings or unsupported, conclusory allegations.
A party waives an issue by not providing supporting arguments, reasoning, or citations to relevant legal authority.
An Attorney General's opinion is "highly persuasive" if it is consistent with the district court's independent analysis of the issues presented.
Under the open records law, a public entity need not disclose a record that is not in its possession or custody at the time of the request.
The "criminal intelligence and investigative information exception," which exempts active criminal investigation material from disclosure under the open records law, is temporary in nature and terminates upon the completion of the criminal prosecution.

Sambursky v. State (Consol. w/20050331-20050335) 2006 ND 223
Docket No.: 20050330
Filing Date: 11/7/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.

State v. Davis 2006 ND 222
Docket No.: 20060033
Filing Date: 11/7/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions for carrying a concealed firearm and possessing a short-barreled shotgun are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Rojas v. Workforce Safety and Ins., et al. (Cross-ref. w/20040352) 2006 ND 221
Docket No.: 20060087
Filing Date: 10/23/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: An injured employee is entitled to an award of reasonable attorney's fees when Workforce Safety and Insurance acts without substantial justification in reducing or denying the employee's benefits.

Hasper v. Center Mutual Ins. Co. 2006 ND 220
Docket No.: 20050316
Filing Date: 10/23/2006
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: An insurer which seeks to deny underinsured motorist coverage based upon the insured's failure to notify the insurer of a proposed settlement with the tortfeasor must demonstrate that it suffered actual prejudice resulting from the lack of notice.
The determination whether an insurer has been prejudiced by an unauthorized settlement is a question of fact that is generally inappropriate for summary judgment.
In determining whether an insurer has suffered actual prejudice from an unauthorized settlement, relevant factors include the amount of the tortfeasor's assets, the likelihood of recovery via subrogation, the extent of the insured's damages, and the expenses and risks of litigating the insured's cause of action.

Guardianship/Conservatorship of Thomas 2006 ND 219
Docket No.: 20050370
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: The Supreme Court applies the abuse of discretion standard when reviewing a trial court's selection of a guardian and conservator.
Concern over the appearance of undue influence can establish "good cause," justifying the appointment of a neutral and detached person as guardian and conservator over others with higher priority who have a financial interest in the protected person's assets.
The Supreme Court applies the abuse of discretion standard of review to the district court's ultimate decision whether to approve payment of a claim against a protected person's estate and the clearly erroneous standard of review to the court's underlying findings of fact.

Interest of B.L.S. (Confidential) 2006 ND 218
Docket No.: 20060234
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: After a request to treat with medication has been made, an independent physician or psychiatrist must certify that the proposed treatment 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 treatment outweigh the known risks.
Mental health respondents are entitled to adequate notice and the opportunity to prepare to address the involuntary treatment with medication.
A district court cannot order medications which have not been noticed in the request to treat with medication and have not been certified as clinically appropriate and necessary by a second physician or psychiatrist.
The involuntary treatment with medication is not limited to psychotropic medications used to treat mental illness.

Hild, et al. v. Johnson, et al. 2006 ND 217
Docket No.: 20060056
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: An undivided mineral interest conveyed or reserved in a deed may be expressed as a percentage, as a fraction, or as a specified number of mineral acres.
A grantee of a specified number of mineral acres in a described tract of land acquires that number of acres, and does not gain or lose if the tract contains more or less acreage than contemplated by the parties.
A grantee of an undivided mineral interest expressed as a percentage or fraction acquires that quantum in the entire described tract of land, and may gain or lose if the tract contains more or less acreage than contemplated by the parties.
When there is a discrepancy in a deed between the specific description of the property conveyed and an expression of the quantity conveyed, the specific description is controlling.
Quantity is the least certain of all elements of description in a deed, and all other elements of description must be ambiguous and uncertain before a recital of quantity will be considered.

Rummer v. State (Cross-reference w/19950324) 2006 ND 216
Docket No.: 20050341
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: The petitioner has the burden of establishing grounds for post-conviction relief.
In order to prevail on a post-conviction claim for ineffective assistance of counsel, the petitioner has the heavy burden of proving: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
To establish a Brady violation, 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 foreign-national criminal defendant may waive any right to consular notification by failing to timely raise the issue.

Livinggood v. Balsdon 2006 ND 215
Docket No.: 20060130
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: On remand, a district court may, unless otherwise specified, make its decision on the basis of the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the district court abuses its discretion.
Forcible ejectment or exclusion from real property is a conclusion of law fully reviewable on appeal.
Forcible ejectment from real property does not require the actual application of physical force; rather, it is enough if it is present and threatened, and is justly to be feared. This standard requires only that the plaintiff had reason to believe that he would be put out by the application of physical force if he did not obey.
The appropriate standard of review in an appeal challenging a district court's award of damages in a bench trial is whether the district court's findings of fact on damages are clearly erroneous.
A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property.

Eichhorn v. The Waldo Township Bd. of Supervisors, et al. 2006 ND 214
Docket No.: 20050295
Filing Date: 10/17/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: Intervention is appropriate when the intervenor claims an interest relating to the property or transaction that is the subject of the action and that the disposition of the action may as a practical matter impair or impede the intervenor's ability to protect that interest, unless the interest is adequately represented by existing parties.
A party seeking a writ of mandamus must show that there is a "clear legal right" to performance of the particular act sought to be compelled by the writ and that there is no other plain, speedy, and adequate remedy in the ordinary course of law.
North Dakota statutes envision cooperation between townships and water resource district boards.

Witzke v. Gonzales 2006 ND 213
Docket No.: 20060155
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: A civil action is commenced by the service of a summons.
Absent personal jurisdiction, the court is powerless to do anything beyond dismissing without prejudice.

State v. Ebel (Consolidated w/20050441-20050443) 2006 ND 212
Docket No.: 20050440
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The Court looks at the "totality of the circumstances" on appeal, giving deference to the district court's findings, to determine whether a search warrant was supported by probable cause.
An evidentiary hearing on whether false statements were provided to support the issuance of a search warrant is only required where: (1) a defendant makes a substantial preliminary showing, accompanied by an offer of proof, that false statements were made in support of a search warrant, either knowingly and intentionally or with reckless disregard for the truth, and (2) the allegedly false statements are necessary to a finding of probable cause.

State v. Sevigny 2006 ND 211
Docket No.: 20050315
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Evidence of an alibi defense may be excluded if a defendant fails to give sufficient notice of his intent to present evidence of an alibi.
A defendant has a right to give testimony about an alibi, even if the defendant fails to give notice of the defense and all alibi evidence is excluded.
A district court must make sufficient findings of fact when admitting or excluding testimony about a child's out-of-court statements about sexual abuse.
A district court has wide discretion over the mode and order of interrogating witnesses and presenting evidence.
Intentional disobedience of a court order constitutes contempt.

Interest of T.A., et al. (CONFIDENTIAL) 2006 ND 210
Docket No.: 20060063
Filing Date: 10/17/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: To terminate parental rights, the petitioner must prove three elements by clear and convincing evidence: (1) the child is a deprived child, (2) the conditions and causes of the deprivation are likely to continue or will not be remedied, and (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
To prove deprivation is likely to continue or will not be remedied, the petitioner cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.

State v. Odom 2006 ND 209
Docket No.: 20060106
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. Consent is an exception to the warrant requirement. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include. The scope of a search is generally defined by its expressed object.
When general consent is given to search a room, no limitations are placed on the consent, the consent is not withdrawn, and the expressed object of the search is known, a police officer can reasonably search locked or closed containers within the room without a warrant.

Forbes v. Workforce Safety & Ins., et al. 2006 ND 208
Docket No.: 20050431
Filing Date: 10/17/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: In an administrative appeal, the Court determines only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.
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.

City of Bismarck v. Perusquia 2006 ND 207
Docket No.: 20060048
Filing Date: 10/17/2006
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)(3).

Jangula v. Jangula (Cross-Ref. w/20050070) 2006 ND 206
Docket No.: 20060168
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: A district court's property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

City of Jamestown v. Rethemeier (Consolidated w/20060100) 2006 ND 205
Docket No.: 20060099
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Denial of motion to suppress and judgment of conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Lee v. Buehner, et al. 2006 ND 204
Docket No.: 20060052
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: A judgment awarding damages in a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Ernst v. State 2006 ND 203
Docket No.: 20060108
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).

Thurn v. Workforce Safety and Insurance, et al. 2006 ND 202
Docket No.: 20060092
Filing Date: 10/17/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: An order of Workforce Safety and Insurance denying workers compensation benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. DeGroot 2006 ND 201
Docket No.: 20050408
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Conviction of theft of property summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Jackson (cross-ref. w/940199) 2006 ND 200
Docket No.: 20060034
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction of driving under suspension summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Interest of K.S., et al. (Consolidated w/20050398) CONFIDENTIAL 2006 ND 199
Docket No.: 20050397
Filing Date: 10/17/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sandberg v. American Family Ins. 2006 ND 198
Docket No.: 20050396
Filing Date: 9/14/2006
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: The requirements of a statute may become part of an insurance policy.
An insured's unauthorized settlement with Workforce Safety and Insurance does not adversely affect an insurer, because the settlement does not affect the insurer's right to a reduction in damages payable to the insured for uninsured motorist coverage by the amount paid or payable for workers' compensation benefits.
An amount is payable for workers' compensation benefits if it would have been paid to the workers' compensation claimant.

Stenvold v. Workforce Safety & Insurance, et al. 2006 ND 197
Docket No.: 20050344
Filing Date: 9/14/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: 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.

State v. Graf (Consolidated w/20050411-20050417) 2006 ND 196
Docket No.: 20050410
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Warrantless searches inside an individual's home are presumptively unreasonable, but searches inside an individual's home are not unreasonable if the search falls under one of the well-delineated exceptions to the warrant requirement.
Consent to search is an exception to the warrant requirement.
Consent to search purges the taint of prior unlawful police activity if the consent was voluntary under the totality of the circumstances and if the taint of the prior unlawful activity is purged, considering the temporal proximity between the illegal search and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
Consultation with an attorney may purge the taint of prior unlawful police activity.

Industrial Commission v. Noack 2006 ND 195
Docket No.: 20060067
Filing Date: 9/13/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: 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.

Ellis v. Disciplinary Board 2006 ND 194
Docket No.: 20060081
Filing Date: 9/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disciplinary proceedings against lawyers, including reinstatement proceedings, are reviewed de novo on the record.
After a lengthy suspension, a lawyer may be required to retake and pass the bar examination as a condition of reinstatement.

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.