Opinions

Krall v. State (Consol. w/20050212 & 20050213) (cross-ref. 20000004) 2006 ND 51
Docket No.: 20050211
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of applications for post-conviction relief and motions for default judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Arth v. Arth 2006 ND 50
Docket No.: 20050061
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Order for dismissal of lawsuit with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Hoverson 2006 ND 49
Docket No.: 20050237
Filing Date: 3/2/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The level of outrageous conduct necessary to prove a due process violation and bar prosecution is quite high and must shock the conscience of the court.
A trial court may permit cross-examination of a witness regarding the underlying facts of a conviction involving dishonesty or deceit.
A trial court may permit cross-examination of a witness regarding specific instances of conduct not resulting in a conviction.
A sentencing court may make reasonable inferences based upon evidence in the record, and those inferences may be a factor in sentencing.

Fischer, et al. v. Berger, et al. 2006 ND 48
Docket No.: 20050182
Filing Date: 2/28/2006
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20-year period of prescription.
The doctrine of acquiescence does not apply to a claim for an easement by prescription for a road across another's property.

Interest of F.F., et al. (CONFIDENTIAL) 2006 ND 47
Docket No.: 20050210
Filing Date: 2/28/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A court may terminate parental rights on finding the child (1) is deprived and (2) has been in foster care for at least four hundred fifty of the previous six hundred sixty nights.

Berge v. Berge 2006 ND 46
Docket No.: 20050124
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When a trial court does not clearly state how it calculated the amount of child support, the Supreme Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding.
Nonrecurrent payments are includable in an obligor's income for determining child support.
It is improper to calculate an obligor's annual employment income based on a mid- year pay stub when the obligor's employment income is reflected on the obligor's prior year's tax return.
If an obligor's most recent annual earnings are a more reliable indicator of future circumstances, the most recent annual earnings may be used to calculate a child support obligation.

State v. Bergstrom 2006 ND 45
Docket No.: 20050110
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: In a civil forfeiture action, the State must show probable cause exists to bring the forfeiture action, and then the claimant must prove, by a preponderance of the evidence, the property is not subject to forfeiture.
Because forfeiture is a civil proceeding, apart from an underlying criminal proceeding, the burden of each party does not change when the defendant is acquitted of the criminal charge.
A district court may not rely on a prior probable cause determination, made when a search warrant was issued, to conclude there was probable cause to bring a civil forfeiture action.
Findings of fact are adequate if they provide this Court with an understanding of the district court's factual basis used in reaching its determination.
A court must balance four factors when deciding if a delay in bringing a forfeiture action has violated the claimant's due process rights: length of delay, the reason for the delay, the claimant's assertion of his right, and prejudice to the claimant.

State v. Anderson (CONSOLIDATED W/ 20050229) 2006 ND 44
Docket No.: 20050202
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Information from an informant may provide the factual basis to establish reasonable suspicion for an investigatory stop.
Circumstances of a case must be evaluated in determining whether actions taken by law enforcement officers during an investigatory stop are reasonable and do not amount to a defacto arrest.
The public safety exception to Miranda allows admission of statements a suspect makes in answering questions about whether the suspect has a weapon.
Law enforcement officers may conduct a warrantless search of a vehicle for weapons or additional occupants under the public safety exception to the warrant requirement.

Causer v. State (cross-ref. w/20030124) 2006 ND 43
Docket No.: 20050389
Filing Date: 2/23/2006
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) and (7).

Ward County Farm Bureau, et al. v. Poolman 2006 ND 42
Docket No.: 20050170
Filing Date: 2/23/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: A petitioner for a writ of mandamus must first demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ.

State v. Ernst 2006 ND 41
Docket No.: 20050395
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: The writ of audita querela has been abolished in North Dakota.
Opposite-sex surveillance of male inmates is constitutionally permissible because minimal intrusions on prisoner's privacy were outweighed by institutional concerns for safety and equal employment opportunity.

Ficklin v. Ficklin (CONFIDENTIAL) 2006 ND 40
Docket No.: 20050364
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Before a court may enter a protection order, there must be a showing of actual or imminent domestic violence.
Past abusive behavior is a relevant factor to consider in determining whether domestic violence is actual or imminent.
Where a person might live after the issuance of a domestic violence protection order is not relevant to the issuance of a domestic violence protection order.
The use of a standardized form does not excuse a court's duty to make findings that support the issuance of the order and allow for an intelligible review of a case on appeal.

State v. Stewart (Consolidated w/20050080 thru 20050086) 2006 ND 39
Docket No.: 20050079
Filing Date: 2/23/2006
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.
A search warrant must describe with particularity the places to be searched and items to be seized to avoid "exploratory rummaging" in its execution.
The State must provide actual notice of its intention to admit prior bad acts testimony.

State v. Garten 2006 ND 38
Docket No.: 20050208
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denials of a motion to suppress, motion to sever the counts against the defendant, and a motion for new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Klein 2006 ND 37
Docket No.: 20050293
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving while under the influence of alcohol summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

Maynard v. McNett 2006 ND 36
Docket No.: 20050090
Filing Date: 2/8/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: When divorced parents share custody, the designation of a single custodian is not required, each parent can be declared a custodian, and both parents have all the legal rights designated to a custodial parent.
A parent with joint legal and physical custody may not be granted permission to move with the divorced parents' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent.
A parent with joint physical and legal custody who wishes to relocate with the child must make two motions before the parent may be given permission to relocate: one for a change of custody and one to relocate with the child.
When a parent with joint legal and physical custody moves for change of custody and permission to relocate, the statutory best-interests-of-the-child factors must be applied rather than the Stout-Hawkinson factors, because the Stout-Hawkinson factors were designed to address the best interests of the child when a primary custodian has already been designated.

Preference Personnel, Inc. v. Peterson 2006 ND 35
Docket No.: 20050255
Filing Date: 2/8/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: 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.

Stein v. Workforce Safety and Ins., et al. 2006 ND 34
Docket No.: 20050196
Filing Date: 2/6/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: A court cannot ignore the clear language of a statute under the guise of liberal construction.
A recalculation of average weekly wage under N.D.C.C. § 65-05-09(1) is authorized only if the employee is able to return to employment for twelve consecutive months or more before the recurrence of the disability that is the subject of the recalculation.

MBNA v. Hart 2006 ND 33
Docket No.: 20050179
Filing Date: 2/3/2006
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: A court must confirm an arbitration award upon application of any party to the award unless a party has filed a motion with the court to vacate, modify, or correct the award within 90 days after delivery of a copy of the award, or within 90 days after grounds are known or should have been known to the injured party if the motion to vacate is based on corruption, fraud, or other undue means.

Davis v. Killu, et al. 2006 ND 32
Docket No.: 20040301
Filing Date: 2/2/2006
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: An expert's testimony may not be used merely as a conduit to place otherwise inadmissible evidence before a jury.
Parties are required to create a record that will permit informed appellate review.
Nonprejudical mistakes by the trial court constitute harmless error and are not grounds for reversal.
A failure to object acts as a waiver of the claim of error.

Bertsch v. Bertsch 2006 ND 31
Docket No.: 20050183
Filing Date: 2/2/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.

Interest of D.D., et al. (CONFIDENTIAL)(Consolidated w/ 20050177) 2006 ND 30
Docket No.: 20050176
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Juvenile Law
Author: Maring, Mary

Highlight: Findings of fact in juvenile proceedings will not be set aside on appeal unless clearly erroneous.
Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, a probability of harm to the child may be established by prognostic evidence that a parent's current inability to care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.

Simon v. Simon (Consolidated w/20050356) 2006 ND 29
Docket No.: 20050279
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The offset provisions of the split custody and equal custody regulations of the child support guidelines continue to apply to the parents' child support obligations when one parent assigns the right to receive child support to the State as reimbursement for TANF benefits received.

Schwan v. Folden 2006 ND 28
Docket No.: 20050185
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: If a plaintiff does not move for default judgment after the default has occurred or within a reasonable time after the default, and the answer is subsequently filed, the plaintiff waives its right to default judgment for a defendant's failure to appear.
The strong preference of the courts is to decide cases on their merits rather than by default judgment.
A party who proceeds to trial rather than pursuing a default judgment waives its right to default judgment.
Only items in the record may be included in the appendix, and the Supreme Court may take appropriate action against any person failing comply with this rule.

Lentz v. Spryncznatyk 2006 ND 27
Docket No.: 20050234
Filing Date: 1/31/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.
A statute is not retroactively applied merely because prior convictions are used that occurred before the effective date of a statute, as long as the triggering offense occurred after the effective date of the statute.

Dunn v. State 2006 ND 26
Docket No.: 20050336
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A motion for summary dismissal under the Uniform Post-Conviction Relief Act is akin to a motion for summary judgment.
Thirty days' response time is allowed following motions for summary dismissal under the Uniform Post-Conviction Relief Act.
Summary dismissal is appropriate if the petitioner in a post-conviction relief action fails to raise a genuine issue of material fact.

State v. Nikle 2006 ND 25
Docket No.: 20050172
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Great weight is given to a potential juror's claim that he or she will maintain impartiality.
No legal rule is violated if a jury panel is not rejected after one venireperson makes a comment which, though arguably inappropriate, does not affect the fairness or impartiality of any member of the venire.
Assistance of counsel is effective if, despite counsel's "errors," the results of the proceedings would remain unchanged.

Wheeler v. Gardner 2006 ND 24
Docket No.: 20050166
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: An inmate's responsibility for costs of a medical visit is not limited to a maximum of $10, but rather an inmate is responsible for the actual health care costs plus an additional $10 fee for each medical visit requested by the inmate.
An "after hours" fee billed by a dental office is a health care cost for which an inmate is liable.

Hilgers v. Hilgers (Cross-ref w/20010208 & 20030252) 2006 ND 23
Docket No.: 20050146
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Interest of B.V. (CONFIDENTIAL) 2006 ND 22
Docket No.: 20050300
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: 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.

State v. Feist 2006 ND 21
Docket No.: 20050152
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: When the nature of a plea agreement is ambiguous, a trial court should clarify the existence of a plea agreement on the record.
The court must allow the defendant to withdraw a plea of guilty whenever the defendant proves withdrawal is necessary to correct a manifest injustice.
The failure of a district court to substantially comply with the requirements of N.D.R.Crim.P. 11(c) in conjunction with ambiguity on the record as to what sort of plea negotiations existed between the parties creates a manifest injustice requiring the withdrawal of a guilty plea.

Perez v. Nichols 2006 ND 20
Docket No.: 20050228
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: To succeed in a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant failed to discharge that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant's negligence.
The driver of an automobile has a duty to keep a proper lookout, and failure to discharge that duty is negligence.
In a negligence claim, when the evidence permits a reasonable fact-finder to reach only one reasonable conclusion, negligence becomes a question of law and is appropriate for summary judgment.

Interest of M.B., et al. (CONFIDENTIAL) 2006 ND 19
Docket No.: 20050206
Filing Date: 1/31/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: To terminate parental rights, the petitioner must provide specific facts that will be relied on to terminate the parent's rights so the parent has notice and is able to meaningfully prepare a defense.
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. Schrum 2006 ND 18
Docket No.: 20050267
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A criminal defendant's sentence must be credited for time served in custody on that charge.

Korynta v. Korynta 2006 ND 17
Docket No.: 20050201
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When calculating child support, a trial court must not base its child support award on an extrapolation of an obligor's future income, unless evidence of the obligor's recent past circumstances are not a reliable indicator of his future circumstances.

Hewson v. Hewson 2006 ND 16
Docket No.: 20050218
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court does not have continuing jurisdiction to modify a property distribution in a divorce judgment, but has continuing jurisdiction to modify child support.
Agreements between parents as to the support and maintenance of a child shall only be accepted by a trial court if they are in the child's best interest.
An agreement between parents purporting to prohibit or limit the power of a court to modify future child support violates public policy and is invalid.
As a matter of equity, a divorcing parent attempting to satisfy her child support obligation by foregoing a rightful share of the marital property is entitled to offset the amount of marital property given up against her child support obligation so long as it does not supercede the child's right to support.
When the equitable-offset remedy calculation results in a credit in favor of the obligor, the obligor receives only a credit against her future child support obligations and is not entitled to reimbursement for that credit.

Edward H. Schwartz Const. Inc. v. Driessen 2006 ND 15
Docket No.: 20050150
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The existence of an oral contract and the extent of its terms are questions of fact that are reviewed under the clearly erroneous standard of review.
A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because an appellate court may have viewed the evidence differently does not entitle it to reverse the trial court.

State v. Smith 2006 ND 14
Docket No.: 20050264
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: 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.

Disciplinary Board v. Giese 2006 ND 13
Docket No.: 20050158
Filing Date: 1/31/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: During a suspension, suspended attorneys may not hold themselves out as being authorized to practice law in this state.
Rule 6.3, N.D.R. Lawyer Discipl., requires full compliance with the rules for lawyer discipline, including timely notice to clients about a suspended attorney's status.

Kuperus v. Willson, et al. 2006 ND 12
Docket No.: 20050114
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: 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
Docket No.: 20050149
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: 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. Bertram (Consolidated w/20050036 and 20050037) 2006 ND 10
Docket No.: 20050035
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Generally, legal advice is not a defense to a criminal prosecution, but may be used to negate the requisite state of mind in some circumstances.
The "same elements" test applies to double jeopardy claims under both the state and the federal constitutions and requires consideration of whether each offense contains an element not contained in the other offense.
Proof of a defendant's knowledge of a disorderly conduct restraining order satisfies the culpability requirement for violation of a disorderly conduct restraining order.
A criminal information must contain a written statement of the essential elements of the offense, which includes the nonexistence of a defense as to which there is evidence sufficient to give rise to a reasonable doubt on an issue.

Bates v. State 2006 ND 9
Docket No.: 20050321
Filing Date: 1/31/2006
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)(2).

Moore v. State 2006 ND 8
Docket No.: 20050263
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief and order quashing a subpoena is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (2), and (4).

Interest of E.S., et al. (CONFIDENTIAL) 2006 ND 7
Docket No.: 20050246
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: Termination of parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Freeman (CONSOLIDATED W/20050318) 2006 ND 6
Docket No.: 20050097
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court's rejection of an application of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Issues not briefed by an appellant are abandoned and will not be considered on appeal.

State v. Burgard 2006 ND 5
Docket No.: 20050113
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction of unlawful possession of drug related paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Judicial Vacancy in Judgeship No. 1, South Central Judicial District 2006 ND 4
Docket No.: 20060004
Filing Date: 1/27/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bismarck.

Disciplinary Board v. Buresh 2006 ND 3
Docket No.: 20060023
Filing Date: 1/25/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Disciplinary Board v. McKechnie (consol. w/ 20050363) 2006 ND 2
Docket No.: 20050362
Filing Date: 1/9/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended.