Opinions

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).

State v. Steen 2005 ND 199
Docket No.: 20050216
Filing Date: 11/29/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order denying motion for a new trial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Croaker 2005 ND 198
Docket No.: 20050145
Filing Date: 11/29/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Conviction of simple assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Johnson v. State (Cross-Ref. w/20050028 & 20050029) 2005 ND 197
Docket No.: 20050168
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Conviction of contact by bodily fluids is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Stevenson 2005 ND 196
Docket No.: 20050134
Filing Date: 11/29/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Judicial Vacancy in Judgeship No. 3, Northeast Judicial District 2005 ND 195
Docket No.: 20050369
Filing Date: 11/17/2005
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bottineau.

Interest of J.F. (CONFIDENTIAL) 2005 ND 194
Docket No.: 20050046
Filing Date: 11/15/2005
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: Orders finding a child to be unruly and deprived are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Wild Rice River Estates v. City of Fargo 2005 ND 193
Docket No.: 20050074
Filing Date: 11/14/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal, but a trial court's findings of fact on a takings claim will not be set aside unless they are clearly erroneous.
A temporary deprivation of all economically viable use of property does not necessarily constitute a taking of property requiring compensation.
An extraordinary delay in governmental decisionmaking coupled with bad faith on the part of the governmental body may result in a compensable taking of property.

Klose v. State (cross-reference w/20010309) 2005 ND 192
Docket No.: 20050044
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An appellant failing to file a trial transcript on appeal assumes the risks and consequences of such failure.

State v. Laib 2005 ND 191
Docket No.: 20050099
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: For the crime of terrorizing, the critical inquiry is whether the defendant intended to place others in fear for their safety.
For the crime of terrorizing, a threat does not have to be made verbally.
For the crime of terrorizing, a communication, either verbal or nonverbal, is sufficient to be a threat if a reasonable person could conclude that it was a threat under the circumstances.

Wetzel v. Schlenvogt (CONSOLIDATED W/20050122) 2005 ND 190
Docket No.: 20050121
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A corporation may not be represented by a non-attorney agent in a legal proceeding.
When a case is commenced on behalf of a corporation by a non-attorney agent, the case and all documents signed by the non-attorney agent are void from the beginning.
Reasonable grounds exist for obtaining a disorderly conduct restraining order when the facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.
A disorderly conduct restraining order does not require a pattern of behavior.
The district court does not abuse its discretion in granting a disorderly conduct restraining order when there is sufficient, admissible evidence that disorderly conduct has been committed, whether that evidence is received on direct examination or cross-examination.
Whenever there is a discrepancy between a trial court's oral and written statements, the written statement controls.

State v. Noorlun 2005 ND 189
Docket No.: 20040329
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: On appeal, jury instructions are considered as a whole to determine whether they correctly and adequately advise the jury of the applicable law and do not mislead or confuse the jury.
Whether documentary evidence should be excluded for lack of adequate foundation is within a trial court's discretion, and adequate foundation may be established by circumstantial evidence, including the events preceding, surrounding, and following the transmission of the document.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.
An information filed in district court before a preliminary examination is not invalid unless the defendant objects to the information before entering a plea.

Johnson v. State 2005 ND 188
Docket No.: 20050230
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A motion for summary disposition of an application for post-conviction relief asking the court to rely solely on the pleadings is treated like a N.D.R.Civ.P. 12(b) motion, and under Rule N.D.R.Ct. 3.2(a), a ten-day response time should be provided the non-moving party before the trial court rules.
A motion for summary disposition of an application for post-conviction relief asking the court to go beyond the face of the pleadings is treated like a N.D.R.Civ.P. 56 motion, and under N.D.R.Ct. 3.2, the non-moving party in a motion for summary judgment has thirty days to respond.

Laib v. State 2005 ND 187
Docket No.: 20050108
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A defendant who has inexcusably failed to raise an issue on a prior direct appeal may not raise the issue in a subsequent application for post-conviction relief.
A defendant claiming ineffective assistance of counsel must prove that counsel's representation fell below an objective standard of reasonableness and that the defendant was thereby prejudiced.
To demonstrate prejudice from ineffective representation, the defendant must establish a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

Hoff v. Fitterer 2005 ND 186
Docket No.: 20050088
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Under the child support guidelines, in cases of underemployment an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
In cases of underemployment, the child support guideline subsection resulting in the greatest imputed income must be used.

Interest of E.I., Jr. (Confidential) 2005 ND 185
Docket No.: 20050024
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Mohamed 2005 ND 184
Docket No.: 20050156
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Moore 2005 ND 183
Docket No.: 20050144
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Trial court's denial of petitioner's motion to withdraw his guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of L.J. (CONFIDENTIAL) 2005 ND 182
Docket No.: 20050078
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of C.R. and S.R. (CONFIDENTIAL) 2005 ND 181
Docket No.: 20050062
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

L.C.V. v. D.E.G. (CONFIDENTIAL) 2005 ND 180
Docket No.: 20050008
Filing Date: 10/26/2005
Case Type: Appeal - Civil - Paternity
Author: Crothers, Daniel John

Highlight: The trial court cannot delegate to a custody investigator its authority to award custody to the parent who will promote the best interest and welfare of the child, and it is within the trial court's discretion to assign the weight given to a custody investigator's recommendations.
The trial court's choice for custody between two fit parents is a difficult one, and the appellate court will not retry the case or substitute its judgment for that of the trial court when the decision is supported by the evidence.
Attorney fees are not allowed to a successful litigant in a custody and support proceeding unless expressly authorized by statute or agreement.

Ernst, et al. v. Acuity 2005 ND 179
Docket No.: 20050128
Filing Date: 10/24/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Business risk exclusions in a contractor's comprehensive general liability policy are designed to exclude coverage for defective workmanship by the insured causing damage to the project itself.

Bjerklie v. Workforce Safety and Insurance 2005 ND 178
Docket No.: 20050111
Filing Date: 10/18/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: In an administrative appeal, only issues properly raised before the agency will be reviewed on appeal.
The Administrative Agencies Practice Act requires that alleged errors be specifically enumerated for the district court.
An administrative agency's decision will be summarily affirmed if the appellant fails to specifically identify any error with particularity.
A workers compensation claimant has good cause for not attending an independent medical examination if the claimant has a reason that would cause a reasonably prudent person to refuse to attend under the same or similar circumstances.
When a workers compensation claimant who has a reasonable opportunity to inform WSI that she cannot attend an independent medical examination fails to do so, the claimant's responsibility to cooperate with WSI has not been fulfilled, the claimant has not communicated properly with WSI, the claimant does not have good cause to not attend the IME, and the claimant has failed to comply with rehabilitation requirements.

Interest of L.D.M. (CONFIDENTIAL) 2005 ND 177
Docket No.: 20040319
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: The requirement that two experts conclude statutory conditions have been met to civilly commit a person as a dangerous sexual individual can be met by testimony of two experts employed by the same employer who have conferred during the evaluation process, providing each arrives at a separately held conclusion.
In considering the totality of the evidence, the court can rely on the expert opinion of witnesses called by the State and by the defendant in deciding whether the statutory conditions are met for civil commitment, under N.D.C.C. ch. 25-03.3, of a person as a dangerous sexual individual.

Clark v. Clark 2005 ND 176
Docket No.: 20050101
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When the district court provides no factual findings or explanation for the basis of its custody decision, remand is necessary.
A district court must make factual findings regarding spousal support.
An award of grandparent visitation or custody is clearly erroneous if exceptional circumstances do not exist, the best interests of the child were not examined, and the grandparent did not petition the court for visitation or custody.
A successor judge taking over a case must either make a N.D.R.Civ.P. 63 certification before resuming proceedings or order a new trial.

Seehafer v. Seehafer 2005 ND 175
Docket No.: 20050069
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A probate homestead may not be claimed in land when the claimant held no interest and her deceased husband held only a joint tenancy.

Ruud v. Frandson, et al. 2005 ND 174
Docket No.: 20050049
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's resolution of an ambiguity in a will is a finding of fact that will not be set aside unless it is clearly erroneous.
A competent testator may dispose of property as the testator wishes without regard to the desires of beneficiaries, juries, or courts as long as the terms of the will are not prohibited by law or opposed to public policy.
An estate may be granted on a condition, upon the performance or breach of which the estate shall commence, be enlarged, or be defeated.
When there is a testamentary gift upon a condition that is accepted by the beneficiary, the beneficiary must perform the condition, however burdensome.
Under N.D.R.Civ.P. 15(b), a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings.
Amendment of the pleadings by implication under N.D.R.Civ.P. 15(b) arises only when the evidence introduced is not relevant to any issue pleaded in the case.

Farmers Union Mutual Ins. Co. v. Decker, et al. 2005 ND 173
Docket No.: 20040371
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The evidence must show the claim is within an exception to the exclusion in order to benefit from coverage.
An insurer's obligation to defend an insured and pay the resulting attorney fees arises when the complaint alleges facts that create a possibility of coverage under the policy.

State v. Bartelson 2005 ND 172
Docket No.: 20040266
Filing Date: 10/18/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An officer's subjective intent is irrelevant on the question of probable cause if a driver has committed a traffic violation.
An officer's probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation.

Hoffman v. Disciplinary Board 2005 ND 171
Docket No.: 20050162
Filing Date: 10/18/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A petitioner has the burden of establishing qualifications for reinstatement to the bar by clear and convincing evidence.
A lawyer's speech outside of a courtroom setting may be limited more than that of a lay person.

City of Bismarck v. Witzke 2005 ND 170
Docket No.: 20050169
Filing Date: 10/18/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction of attempted criminal mischief is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Acuity Ins. Co. v. Meridian Ins. Co. 2005 ND 169
Docket No.: 20050093
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Insurance
Author: Per Curiam

Highlight: Summary judgment in an insurance contribution action is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).

Disciplinary Board v. Wilkes 2005 ND 168
Docket No.: 20050297
Filing Date: 10/4/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred for felony convictions.

State v. Frankfurth 2005 ND 167
Docket No.: 20050112
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A criminal information must contain all essential elements of the offense in order to charge that offense.
A motion to arrest the judgment may be made after trial when the information fails to charge a crime.
A defective information failing to charge a crime cannot be "cured" through proper jury instruction or other means short of amendment.

Sayler v. State 2005 ND 166
Docket No.: 20050048
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: 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.

Mastrony v. Mastrony 2005 ND 165
Docket No.: 20050002
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Child Support
Author: Not Available

Highlight: Divorce judgment awarding custody and dividing the marital estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Eagleman v. State (Cross-Ref. w/20030149) 2005 ND 164
Docket No.: 20040359
Filing Date: 9/27/2005
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)(7).

State v. Leftbear 2005 ND 163
Docket No.: 20050042
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Allen 2005 ND 162
Docket No.: 20050102
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

M.S.B. v. J.M.B. (CONFIDENTIAL) 2005 ND 161
Docket No.: 20050075
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Paternity
Author: Per Curiam

Highlight: Judgment establishing physical custody of a minor child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Oie 2005 ND 160
Docket No.: 20050031
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A district court does not abuse its discretion in accepting a guilty plea when the factual basis is established through open court inquiry and review of the pre-sentence investigation report.

State v. Moore 2005 ND 159
Docket No.: 20050133
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Denial of motion to correct illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Guardianship/Conservatorship of Onstad 2005 ND 158
Docket No.: 20040235
Filing Date: 9/26/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: VandeWalle, Gerald

Highlight: While N.D.R.Civ.P. 60(b) ordinarily may not be used as a substitute for an appeal or to relieve a party from deliberate choices, in unusual cases a party who has not taken an appeal may obtain relief on a 60(b) motion.
A successor judge should respect the law of the case.