Opinions

State v. Frederick 2006 ND 113
Docket No.: 20050432
Filing Date: 6/1/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Convictions of manufacture of a controlled substance, possession of drug paraphernalia, and abuse or neglect of a child are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Kunze v. State (Consol. w/20050377-20050379) (Cross-ref. w/990163-990166) 2006 ND 112
Docket No.: 20050376
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court's summary denial of a motion for an evidentiary hearing on post-conviction relief and denial of a motion to vacate criminal judgments is affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

Carpenter v. Rohrer, et al. 2006 ND 111
Docket No.: 20050127
Filing Date: 5/17/2006
Case Type: Appeal - Civil - Malpractice
Author: Kapsner, Carol

Highlight: An appellant must provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors and assumes the consequences for the failure to file a complete transcript.
Special jury verdicts are upheld whenever possible and set aside only if it is shown they were perverse and clearly contrary to the evidence.
A witness's qualification to testify as an expert is left to the sound discretion of the trial court and is not reversed on appeal absent an abuse of discretion.

Bank Center First, Bismarck, ND v. R.C. Transport LLC, et al. 2006 ND 110
Docket No.: 20050299
Filing Date: 5/17/2006
Case Type: Appeal - Civil - Foreclosure
Author: VandeWalle, Gerald

Highlight: Filing a money judgment in a county where the judgment debtor has an interest in real property is a lien on the judgment debtor's interest in the real property.
The 60-day limit for redeeming from a prior redemptioner begins to run when the prior redemptioner's written notice of redemption is filed with the office of the county recorder.
To redeem property, a redemptioner need pay only the purchase price with interest, plus amounts which have been paid to protect the premises.

Landers, et al. v. Biwer, et al. 2006 ND 109
Docket No.: 20050313
Filing Date: 5/16/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Specific performance cannot be enforced against a party to a contract if specific performance is not just and reasonable to that party or if the party's assent was obtained by misrepresentation.
Because specific performance is an equitable remedy, a litigant seeking specific performance is held to a higher standard than one merely seeking money damages, and to receive equity a litigant must "do equity" and must not come into court with "unclean hands."
All the circumstances surrounding a transaction may be considered when deciding whether specific performance is just and reasonable to a party.
An award of damages will not be disturbed if the award is within the range of the evidence presented to the trier of fact.
For disputes involving oral contracts, the trier of fact determines whether an oral contract exists and what the terms of the oral contract are, and the findings of fact of the district court will not be reversed unless they are clearly erroneous.

City of Bismarck v. Mariner Construction, Inc., et al. 2006 ND 108
Docket No.: 20050322
Filing Date: 5/16/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The interpretation of a written contract to determine its legal effect is a question of law, and a court must initially determine if the contract is ambiguous.
If a contract is unambiguous, the court interprets the meaning of the contract as a matter of law and the trier of fact determines if the contract, as construed by the court, has been breached.
If a contract is ambiguous, the trier of fact may consider extrinsic evidence about the parties' intent to determine the meaning of the contract and the trier of fact then decides whether the parties have breached the contract.
If a contract is uncertain, the language of the contract is interpreted most strongly against the party who caused the uncertainty; however, for contracts between a public entity and a private party, it is presumed the uncertainty was caused by the private party.

Disciplinary Board v. Chinquist 2006 ND 107
Docket No.: 20050359
Filing Date: 5/16/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5(a) and (b), 1.7(a), 1.8(a), and 1.15(a) and (f).
Having consensual sexual relations with a domestic relations client serves the attorney's own interests and creates an inherent conflict with the proper representation of the client.

Roth v. State 2006 ND 106
Docket No.: 20050227
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Claiming ineffective assistance of trial and appellate counsel for the first time in the first post-conviction relief application is not misuse of process.

Disciplinary Board v. Hellerud 2006 ND 105
Docket No.: 20050354
Filing Date: 5/11/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Charging an unreasonable fee can subject an attorney to discipline.
Failing to communicate the basis, rate, and amount of fee within a reasonable time period can subject an attorney to discipline.
What attorneys charge for their services is generally a matter of agreement between the lawyer and the client.
A client's failure to complain does not prevent the Disciplinary Board from hearing a complaint. Nor does it prevent the Supreme Court from imposing sanctions.

Interest of C.S. 2006 ND 104
Docket No.: 20060116
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: A respondent in an involuntary commitment proceeding has a due process right to counsel.
A respondent's waiver of counsel in a mental health proceeding must be knowing, intelligent, and voluntary.
In an involuntary commitment proceeding, the trial court must determine the competence of the respondent to make a knowing and intelligent waiver of the right to counsel before permitting the respondent to proceed without counsel.
A presumption of incompetence does not arise simply due to the fact that mental health proceedings are being undertaken against the respondent.
For the record to disclose a valid waiver of right to counsel in a mental health proceeding, it must mirror the record of a valid waiver in a criminal proceeding.
In a mental health proceeding where the respondent wishes to represent himself, the trial court must make the respondent aware of the dangers and disadvantages of self-representation.
The trial court must assess the validity of a waiver of counsel and competence to make that waiver before each proceeding during which the respondent wishes to represent himself.
Courts should indulge every reasonable presumption against a waiver of counsel.

Interest of K.L. (Confidential) 2006 ND 103
Docket No.: 20060115
Filing Date: 5/11/2006
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.
While family involvement may be crucial in the recovery of mentally ill persons, it alone cannot defeat a district court finding that a person is dangerous and requires hospitalization if the record supports that finding.

State v. Grager (Consolidated w/20050281-20050292) 2006 ND 102
Docket No.: 20050280
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A prosecutor does not have the right to appeal an order dismissing a case when the proseuctor requested the dismissal.
The prosecution may not appeal an order suppressing evidence after the case has been dismissed at its request.

Lausen v. Hertz 2006 ND 101
Docket No.: 20050371
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A court may, without an evidentiary hearing, deny a motion seeking modification of custody, unless the court finds the moving party has established a prima facie case justifying modification.
An unappealed judgment authorizing the custodial parent to remove the child from the state is res judicata.

State v. Haibeck (Cross-Ref. w/20040060) 2006 ND 100
Docket No.: 20050367
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
An argument that is not adequately articulated, supported, and briefed will not be considered on appeal.
A motion for acquittal may not be granted before the prosecution has the opportunity to present its evidence.

Ziesch v. Workforce Safety & Insurance, et al. 2006 ND 99
Docket No.: 20050256
Filing Date: 5/11/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Workforce Safety and Insurance's practice of awarding lump sum disability benefits for a closed, limited time and simultaneously issuing a retroactive notice of intention to discontinue benefits does not violate due process if the claimant was not receiving ongoing disability benefits at the time of WSI's decision.
The purpose of administrative res judicata is to preserve resources and avoid wasteful expense and delay.

State v. Pace 2006 ND 98
Docket No.: 20050342
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A driving-under-the-influence arrestee being asked to submit to a chemical test is, upon request, entitled to a reasonable opportunity to contact a lawyer before deciding whether to take the test.
The reasonableness of the opportunity to consult with a lawyer before taking a chemical test for DUI is evaluated under the totality of the circumstances.
A law enforcement officer need not offer other suggestions to a DUI arrestee who is unable to reach his lawyer and makes no further requests.

Knutson, et al. v. City of Fargo 2006 ND 97
Docket No.: 20050355
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Under the North Dakota Constitution, inverse condemnation requires a public entity's taking or damaging an owner's property by some deliberate act, whether done intentionally, negligently, or innocently.
For intentional trespass, the plaintiff must establish the defendant intentionally entered the land of another, or caused a thing or third person to do so, without the consent of the landowner.
Public entities are not liable in negligence for discretionary functions or duties.
To decide whether a governmental act is protected by discretionary immunity, the court must examine whether the action is a matter of choice for the acting employee and whether that judgment or choice is of the kind that discretionary immunity was designed to shield.

Interest of J.M. (CONFIDENTIAL) 2006 ND 96
Docket No.: 20050383
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: In a proceeding for commitment as a sexually dangerous person, the evidence must clearly show a respondent's disorder is likely to manifest itself in a serious difficulty in controlling sexually predatory behavior.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
A trial court's failure to make a finding of good cause to extend the time for holding a commitment hearing within sixty days of the finding of probable cause does not require a subsequent order for commitment be vacated.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.

State v. Wheeler (Cons. w/20050258 & 20050259) 2006 ND 95
Docket No.: 20050257
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions of gross sexual imposition, encouraging the deprivation of a minor, and contributing to the delinquency of a minor are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).
A judgment should accurately reflect the proceedings and under N.D.R.Crim.P. 36, a court may correct a clerical error in a judgment due to oversight.

State v. Ruud 2006 ND 94
Docket No.: 20050314
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Theft
Author:

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

Clifford v. Redmann 2006 ND 93
Docket No.: 20050419
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying petition for writ of habeas corpus is dismissed as an unappealable order.
Dismissal of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Kaiser v. State (Cross-reference w/20040135) 2006 ND 92
Docket No.: 20050319
Filing Date: 5/11/2006
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).

City of Minot v. Hellebust 2006 ND 91
Docket No.: 20050372
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment after conviction by a jury of driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

City of Lisbon v. Dahl 2006 ND 90
Docket No.: 20050388
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment for driving under the influence of liquor or drugs is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Judicial Vacancy in Judgeship No. 4, Southwest Judicial District 2006 ND 89
Docket No.: 20060098
Filing Date: 5/4/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Judicial Vacancy in Judgeship No. 5, Southeast Judicial District 2006 ND 88
Docket No.: 20060035
Filing Date: 4/26/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Southeast District judgeship retained at Ellendale.

Choice Financial Group v. Schellpfeffer, et al. (Cross-Ref w/20040204) 2006 ND 87
Docket No.: 20050273
Filing Date: 4/25/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Summary judgment is appropriate only after the non-moving party has had a reasonable opportunity for discovery to develop his position.
Failure to comply with the affidavit requirement of Rule 56(f), N.D.R.Civ.P., is not fatal to a request for additional discovery before a summary judgment motion is decided.
The party seeking additional discovery must identify with specificity what information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.

Steen and Berg Co. v. Berg 2006 ND 86
Docket No.: 20050155
Filing Date: 4/25/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A primary objective of a nonclaim statute is the expeditious and orderly processing of decedents' estates, and if claims against a decedent's estate are not timely filed, the claims are barred as a matter of law.
Casting a claim in terms of title to property is insufficient to avoid the time limitations of the nonclaim statute if the gist of the claim sounds in tort or in contract.

Disciplinary Board v. Mertz 2006 ND 85
Docket No.: 20050360
Filing Date: 4/24/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney may attempt to compromise an infraction by proposing payment for the individual's injuries and agreeing not to file a potential suit against the individual in exchange for the individual dismissing the complaint.
When representing a client, an attorney may not use means that have no substantial purpose other than to embarrass or burden a third party.

State ex rel. Stenehjem v. FreeEats.com, Inc. 2006 ND 84
Docket No.: 20050171
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law.
A state's police power encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community.
The statutory language of the Telephone Consumer Protection Act of 1991 clearly expresses Congress' intent that the Act was not meant to occupy the field within its subject matter.
The Telephone Consumer Protection Act does not preempt a state law which prohibits telemarketing calls using automatic telephone dialing systems or artificial or prerecorded voice messages.

Sanderson, et al. v. Walsh Co., et al. 2006 ND 83
Docket No.: 20050303
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A dismissal without prejudice is not appealable except where the dismissal has the practical effect of terminating the litigation in the plaintiff's forum, e.g., a statute of limitations has run or where litigation is foreclosed in the state court.
Mailing, even by certified mail with return receipt and restricted delivery, does not constitute "delivering" for purposes of service of process on a county or the State under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F).

Interest of P.F. (CONFIDENTIAL) 2006 ND 82
Docket No.: 20050302
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A preliminary hearing must be held within seventy-two hours of the filing of a petition for commitment of a sexually dangerous individual. The purpose of the hearing is to determine whether there is probable cause to believe that individual is sexually dangerous.
Expert testimony is not required at the preliminary hearing.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.
In determining whether a person is "sexually dangerous," the State's experts may rely on all sexual predatory conduct, not just that conduct that resulted in a successful conviction on a sexual offense.

Marchus v. Marchus 2006 ND 81
Docket No.: 20050329
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or explained.

Murphy v. State (cross-ref. w/20050428) 2006 ND 80
Docket No.: 20050456
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of Spicer 2006 ND 79
Docket No.: 20050366
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When a district court fails to specifically state its findings, its decision will not be upset when valid reasons for the decision are discernable, either by deduction or inference.
A district court's finding that a non-custodial parent consented to the custodial parent relocating out of state with the parties' child is subject to the clearly erroneous standard of review.
A district court's decision on modification of visitation is a finding of fact that will not be reversed unless clearly erroneous.

Larson v. Schuetzle 2006 ND 78
Docket No.: 20050418
Filing Date: 4/19/2006
Case Type: Original Proceeding - Civil - Writ of Certiorari
Author: VandeWalle, Gerald

Highlight: The State Penitentiary warden has authority and control over the penitentiary and its inmates.
Simply because prison inmates retain certain constitutional rights does not mean those rights are not subject to restrictions and limitations.
Maintaining institutional security, safety, and internal order may require limitation or retraction of the retained constitutional rights of convicted prisoners and pretrial detainees.
Prison administrators are entitled to deference in the adoption and execution of policies intended to preserve the security, safety, internal order, and discipline of the prison.
When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.

State v. Genre (Cons. w/20050239,20050247& 20050248) 2006 ND 77
Docket No.: 20050238
Filing Date: 4/19/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Voluntary consent to search is an exception to the warrant requirement.
An officer is generally not required to administer the Miranda warning during a traffic stop because the person is not in custody.
Statements made to law enforcement in an effort to cooperate with the hope of receiving some benefit are not statements made during a plea discussion and are admissible.

Flanagan v. State (Cross-Ref. w/20030247) 2006 ND 76
Docket No.: 20050226
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An application for post-conviction relief may be denied as res judicata if the claim is a variation of a claim that was fully and finally determined in a previous proceeding.
A defendant claiming ineffective assistance of counsel must establish counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To establish prejudice, a defendant must establish a reasonable probability that but for counsel's errors the result of the criminal proceeding would have been different, and a reasonable probability is a probability sufficient to undermine confidence in the outcome of the criminal proceeding.

Gustafson v. ND Department of Human Services 2006 ND 75
Docket No.: 20050390
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Under the 2003 version of the statute, for Medicaid eligibility, the purchase of an annuity is considered an uncompensated assignment or transfer of assets if it is not expected to return the full principal and interest within the purchaser's life expectancy.
Once a Medicaid applicant supplies a physician's estimate of reasonable life expectancy, the burden shifts to the Department of Human Services to accept or determine a reasonable life expectancy.

State v. Davenport (cross-ref. w/2000148) 2006 ND 74
Docket No.: 20050274
Filing Date: 4/19/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: An order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Edin v. Disciplinary Board 2006 ND 73
Docket No.: 20060102
Filing Date: 4/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstatement ordered.

Hopfauf, et al. v. Hieb, et al. 2006 ND 72
Docket No.: 20050203
Filing Date: 4/6/2006
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: Summary judgment is properly granted if the information available to the trial court precluded the existence of a genuine issue of material fact, entitling the moving party to summary judgment as a matter of law.
A district court's denial of a request for additional time for discovery under N.D.R.Civ.P. 56(f) is not overturned on appeal absent an abuse of discretion.
An element of negligent failure to obtain informed consent, as in any negligence action, is the existence and extent of a duty. A duty to disclose can only arise if the physician knew or should have known of the risks to be disclosed.

Bernabucci, et al. v. Huber, et al. 2006 ND 71
Docket No.: 20050275
Filing Date: 4/3/2006
Case Type: Appeal - Civil - Corporations
Author: VandeWalle, Gerald

Highlight: If extrinsic evidence is conclusive and undisputed, the determination of the meaning of a contract is a function for the court to resolve as a matter of law.
A court does not abuse its discretion when it denies a requested amendment to a complaint which would be futile.

Thompson v. Workforce Safety and Insurance, et al. 2006 ND 69
Docket No.: 20050392
Filing Date: 3/31/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: When reviewing the decision of an administrative agency, courts do not make independent findings of fact or substitute their judgment for that of the agency, but determine whether a reasoning mind could reasonably have determined that the factual conclusions reached were supported by the weight of the record.
If the decision of the administrative agency was consistent with the opinion of the sole testifying physician, the agency's decision was supported by the weight of the record.

Victor v. Workforce Safety & Insurance, et al. (Consolidated w/20050400) 2006 ND 68
Docket No.: 20050384
Filing Date: 3/29/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Workforce Safety and Insurance has discretion in determining what rehabilitative services are reasonably necessary and a reasoning mind reasonably could have decided that a $10,000 animal hoist was not a reasonably necessary rehabilitative service for a worker employed at a dog grooming business.

Manning v. Manning 2006 ND 67
Docket No.: 20050065
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Nesvig v. Nesvig (cross-ref. w/20030041) 2006 ND 66
Docket No.: 20050125
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: In deciding whether to compel testimony of an unretained expert, the court should consider: whether the expert is being called to testify about facts of the case or to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; whether the witness is a unique expert; the likelihood a comparable witness will willingly testify; and the degree the witness is oppressed by having to continually testify.
The district court does not abuse its discretion by failing to sequester an expert witness from observing trial testimony where the expert's presence is essential to presentation of the party's cause and no prejudice results.

Rothberg v. Rothberg 2006 ND 65
Docket No.: 20050198
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An order denying a motion to modify child support or spousal support that is intended to be the final order of the court is appealable.
Conclusory, general findings of fact do not comply with N.D.R.Civ.P. 52(a), and the trial court must specifically state the subordinate facts upon which its ultimate factual conclusions rest.
In deciding whether to award attorney fees in a divorce proceeding, the court must consider the parties' financial needs and ability to pay.

Kramer v. Kramer 2006 ND 64
Docket No.: 20050222
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court should ordinarily not order a distribution of marital property that is inconsistent with the parties' contract, but a court may set aside a property settlement agreement if the agreement is executed under mistake, duress, menace, fraud, or undue influence, or if the agreement is unconscionable.

State v. Stavig 2006 ND 63
Docket No.: 20050278
Filing Date: 3/29/2006
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: Probation and restitution in a felony case may be extended for only one additional period of probation, not to exceed five years.
Ona revocation of probation appeal: (1) the Court reviews under a clearly erroneous standard whether the defendant violated his or her probation; and (2) the Court reviews under an abuse of discretion standard whether the district court's revoking the defendant's probation.