Opinions

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.

Kobs v. Jacobson 2005 ND 222
Docket No.: 20050165
Filing Date: 12/27/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court errs as a matter of law when it does not clearly set forth how it determined the obligor's income and resulting support obligation.
Without ordering the parties to present more information and making specific findings of fact, a trial court cannot arbitrarily ignore the guidelines simply because it feels the obligor's tax returns do not adequately reflect his income.
Depreciation deductions may not be added back in when determining an obligor's net income under the guidelines.
An obligor who proved he earned more than six-tenths of the prevailing amount earned in the community by one with similar qualifications and similarly employed would still be presumed underemployed if he makes less than one-hundred and sixty-seven times the federal hourly minimum wage.

Petition to Change Resident Chambers from Stanley to Minot (cons w/20050361) 2005 ND 221
Docket No.: 20050304
Filing Date: 12/20/2005
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained; chambers relocated to Minot.

Interest of L.B.B. (CON. W/20050253 & 20050254) (CONFIDENTIAL) 2005 ND 220
Docket No.: 20050252
Filing Date: 12/20/2005
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: Gross sexual imposition in a juvenile delinquency case is not proven beyond a reasonable doubt when the state alleges only that a "sexual relationship" occurred between the accused and victim and does not specify any "sexual act" as that term is defined by statute.

Interest of M.M. (confidential) 2005 ND 219
Docket No.: 20050399
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: A district court's finding that a person is mentally ill and requires treatment will not be reversed unless it is clearly erroneous.
A district court's finding that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless clearly erroneous.
A district court's order for involuntary hospitalization must be based on clear and convincing evidence that there is a serious risk the individual will harm himself, others, or property if not hospitalized.
To authorize involuntary treatment with medication, the district court must find by clear and convincing evidence that the prescribed medication is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of the treatment outweigh known risks.

Curtis Construction Co., Inc. v. American Steel Span, Inc., et al. 2005 ND 218
Docket No.: 20050175
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A complete written contract must contain all the essential or material conditions and terms of the contract.
A complete contract may be contained in several writings or documents as long as it identifies: (1) the contracting parties; (2) the subject matter; (3) the consideration; and (4) the terms and conditions upon which the contract was entered.
The trier of fact decides the terms of an oral contract.
A contractor who has substantially performed may recover the contract price, less the expense of repairing the defects or omissions. Defects claimed must be clearly ascertainable in both their nature and origin. The injured party must prove the cost of repair or the loss of value to its property.

Wright v. State 2005 ND 217
Docket No.: 20040304
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant alleging ineffective assistance of counsel must prove counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To demonstrate prejudice resulting from counsel's deficient performance, a defendant must establish a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.

Interest of A.B., et al. (CONFIDENTIAL) 2005 ND 216
Docket No.: 20050223
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: An order granting leave to intervene in an action is not appealable.

Smith v. Hall 2005 ND 215
Docket No.: 20050270
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The failure of the non-registering party to object to registration of a foreign child support order within the statutory time limit precludes the non-registering party from further contesting the registration on any ground that could be asserted at the time of registration.

State v. Hernandez 2005 ND 214
Docket No.: 20050047
Filing Date: 12/20/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A trial court has broad discretion to determine whether a witness is qualified as an expert and whether the witness's testimony will assist the trier of fact.
A party's failure to object to evidence admitted at trial generally waives the party's right to complain on appeal about the admission of the evidence.
A trial court has discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence.
A jury is generally presumed to follow a curative instruction, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.
A trial court has broad discretion to balance the probative value of evidence against the risk of unfair prejudice.
To establish a due process violation for the destruction of evidence, a defendant must establish bad faith by the State, which means the evidence was deliberately destroyed by or at the direction of a State agent who intended to thwart and deprive the defense of the information.

Estate of Pladson v. Traill Co. Social Services, et al. 2005 ND 213
Docket No.: 20050154
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The requirement that an asset be "actually available" for purposes of determining Medicaid eligibility must be interpreted reasonably, and the focus is on the applicant's actual and practical ability to make an asset available as a matter of fact, not legal fiction.

State v. Raulston (CONSOLIDATED W/20050160 & 20050161) 2005 ND 212
Docket No.: 20050159
Filing Date: 12/20/2005
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A sentence is not illegal if, during the judge's oral pronouncement of the sentence, he states a hypothetical that could not come to fruition.
A defendant need not be informed of an 85 percent service requirement for a guilty plea to be knowingly, intelligently, and voluntarily entered, as such a requirement is a parole condition rather than a mandatory minimum sentence.
An ineffective assistance of counsel claim fails when an attorney's performance--deficient or not--does not prejudice a defendant, due to the overwhelming evidence favoring the defendant's guilt.
The State may respond to an application for post-conviction relief within the time allowed by the court.
The district court's failure to make explicit findings and conclusions in its denial of post-conviction relief is harmless error based on the ample evidence within the record.

State v. Pailing (CON w/20050120, 20050306, 20050307, 20050308, & 20050309 2005 ND 211
Docket No.: 20050073
Filing Date: 12/20/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An amended judgment, an order denying a motion to amend a criminal judgment, and an order denying a petition for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Shermer 2005 ND 210
Docket No.: 20050066
Filing Date: 12/20/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An appeal from a criminal judgment and an order denying a motion to suppress is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. White Mountain 2005 ND 209
Docket No.: 20050157
Filing Date: 12/20/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition and tampering with evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

McMechan v. Engstrom, et al. 2005 ND 208
Docket No.: 20050235
Filing Date: 12/20/2005
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

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

Reciprocal Discipline of Edinger 2005 ND 207
Docket No.: 20050429
Filing Date: 12/14/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Eriksmoen v. N.D. Dept. of Transportation 2005 ND 206
Docket No.: 20050129
Filing Date: 11/29/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: An arrestee's right to consult privately with counsel before taking a chemical test must be balanced against society's interest in obtaining important evidence.
If a person arrested for driving under the influence is asked to submit to a chemical test and responds with a request to speak with an attorney, the failure to allow the arrested person a reasonable opportunity to contact an attorney prevents the revocation of her license for refusal to take the test. The reasonableness of the opportunity to consult with counsel is viewed objectively in light of the totality of the circumstances.

Oien v. Oien 2005 ND 205
Docket No.: 20050204
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Under the child support guidelines, disability does not necessarily excuse a parent from the obligation to pay child support.
The presence of a disability is a consideration that the court can take into account when determining the amount of support.
Submitting a document to a judge or to court personnel other than the clerk is not filing.

Gray v. N.D. Game and Fish Dept. 2005 ND 204
Docket No.: 20050103
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: The laws of the states participating in the Interstate Wildlife Violator Compact need not be identical to support reciprocal enforcement of an out-of-state wildlife conviction in North Dakota.
A judgment rendered in violation of due process is void in the rendering state and is not entitled to full faith and credit elsewhere.
The Interstate Wildlife Violator Compact does not require congressional consent under the compact clause of the federal constitution.
A suspension of hunting privileges under the Interstate Wildlife Violator Compact is not double jeopardy.
The due process clause does not require presuspension notice and hearing before hunting privileges may be suspended under the Interstate Wildlife Violator Compact.

Jangula v. Jangula 2005 ND 203
Docket No.: 20050070
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Once separate property, or property exempt from being included as marital property, is commingled, placed into a joint bank account, or placed in joint tenancy, the property no longer has any separate identity and therefore becomes marital property.

Matthews v. State 2005 ND 202
Docket No.: 20050068
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Conclusory allegations that counsel failed to call certain witnesses without indicating what the testimony would have been, how it might have affected the outcome of the trial, or what prejudice may have resulted from the failure to call them, do not support a claim of ineffective assistance of counsel.
Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.

Interest of P.B. (CONFIDENTIAL) 2005 ND 201
Docket No.: 20050351
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: An individual committed to a mental health facility does not enjoy the same level of freedom and rights as an uncommitted individual.
Once a decision of hospitalization is made, it is not the province of this Court to micro-manage the State Hospital.

Pfau v. Pfau 2005 ND 200
Docket No.: 20050077
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: The district court denial of a motion for new trial and a motion for post-judgment relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).