Opinions

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).

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).