Opinions

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.

Interest of K.G. (Confidential) 2005 ND 156
Docket No.: 20050266
Filing Date: 8/31/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's finding, that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless it is clearly erroneous.

Amerada Hess Corp., et al. v. Fong 2005 ND 155
Docket No.: 20040378
Filing Date: 8/31/2005
Case Type: Appeal - Civil - Tax Realted
Author: Maring, Mary

Highlight: Gross-up amounts are not "foreign dividends" subject to partial exclusion under state tax law.
The rule of strict construction of ambiguous tax statutes in favor of the taxpayer is a rule of last resort when other means of ascertaining the legislature's intentions have failed.
An administrative agency need not use the rulemaking process to collect an erroneous interpretation of a statute.
While there may be a public desire to avoid double taxation as a matter of public policy, there is no constitutional prohibition against double taxation.

Frisk v. Frisk 2005 ND 154
Docket No.: 20050051
Filing Date: 8/23/2005
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A domestic violence protection order, originally entered under a stipulation or agreement specifically declining to issue findings regarding domestic violence, cannot be extended absent a threshold finding of actual or imminent domestic violence.

Disciplinary Board v. Hoffman 2005 ND 153
Docket No.: 20040379
Filing Date: 8/23/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An isolated instance of ordinary negligence does not constitute lack of competence or diligence under the rules of professional conduct.

State v. Parisien (Consolidated w/20040349 & 20040350) 2005 ND 152
Docket No.: 20040348
Filing Date: 8/18/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: All communications with jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
The mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced.
The giving of an Allen-type charge after the trial court has been informed of a deadlocked jury's numerical split is a factor to consider in assessing whether the totality of the circumstances indicate a coerced verdict.

Miller, et al. v. Diamond Resources, Inc. 2005 ND 150
Docket No.: 20040274
Filing Date: 8/18/2005
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A proximate cause is a cause that, as a natural and continuous sequence unbroken by any controlling intervening cause, produces the injury, and without it the injury would not have occurred.
The intervening negligence of another cannot be a superseding cause that extinguishes a wrong-doer's liability if that negligence was a foreseeable consequence of the situation created by the wrong-doer.

Heart River Partners, et al. v. Goetzfried, et al. 2005 ND 149
Docket No.: 20050003
Filing Date: 8/18/2005
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Parol evidence is admissible in an action to reform a written deed when, through fraud or mutual mistake of the parties, or a mistake by one party which the other at the time knew or suspected, the deed does not truly express the parties' intention.

Disciplinary Board v. Korsmo 2005 ND 148
Docket No.: 20050251
Filing Date: 8/3/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Rojas v. Workforce Safety and Insurance, et al. 2005 ND 147
Docket No.: 20040352
Filing Date: 7/28/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Before a claimant's continuing workers compensation disability benefits may be terminated, WSI must provide pretermination notice of the contemplated action, a summary of the evidence supporting termination, and a meaningful pretermination opportunity to respond in writing to the alleged grounds for termination.
A notice of intent to discontinue benefits and of the claimant's opportunity to respond sent to the claimant by regular mail is insufficient to guarantee due process when the presumption of receipt under N.D.C.C. 31-11-03(24) has been rebutted and it is determined the claimant never received the notice.

CybrCollect, Inc. v. ND Dept. of Financial Institutions, et al. 2005 ND 146
Docket No.: 20040214
Filing Date: 7/27/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Consumer electronic fund transactions in North Dakota are subject to the Electronic Fund Transfer Act and Regulation E, which was issued by the Federal Reserve Board to carry out the purpose of the Act.
An administrative hearing may not be held unless the parties have been served with a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. Basic notions of fundamental fairness dictate a person challenging an agency action must be adequately informed in advance of the questions to be addressed at the hearing so the person can be prepared to present evidence and arguments on those questions.

Estate of Richmond 2005 ND 145
Docket No.: 20040360
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: If the evidence presented in opposition to a motion for summary judgment is of insufficient caliber or quantity to allow a rational finder of fact to find fraud by clear and convincing evidence, there is no genuine issue of material fact.
Fraud is never presumed, even under circumstances that give rise to a suspicion of fraud.

Disciplinary Board v. Ward 2005 ND 144
Docket No.: 20050092
Filing Date: 7/25/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Maring, Mary

Highlight: Lawyer reprimanded for violation of N.D.R. Prof. Conduct 1.15(f), ordered to pay restitution to former clients, and ordered to pay costs and attorney's fees associated with the disciplinary proceeding.

City of Bismarck v. Judkins 2005 ND 143
Docket No.: 20040370
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A constitutional error may be declared harmless if the court, after reviewing the entire record, is convinced that the error did not contribute to the verdict.

Bladow v. Bladow 2005 ND 142
Docket No.: 20040315
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Issues that are not raised in pleadings may be tried by the express or implied consent of the parties.
A motion to modify child custody may be made within two years after entry of an order establishing custody when the court finds a persistent and willful denial or interference with visitation.
A party seeking modification of a custody order must establish a prima facie case justifying modification in order to receive an evidentiary hearing.
Split custody of siblings is not preferred.
A trial court has discretion in awarding attorney fees in a domestic relations case.
A trial court errs as a matter of law when it fails to follow the child support guidelines.

Case Credit Corp. v. Oppegard's Inc. 2005 ND 141
Docket No.: 20040369
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Jury instructions do not need to include a definition of a commonly understood word when such a definition has not been requested. Giving a definition of a commonly understood word is a matter of the trial court's discretion.
A jury instruction on issues not raised at trial is erroneous but only constitutes reversible error if the instruction was intended to mislead the jury. A special damages provision controls over a general damages provision.

State v. Ressler 2005 ND 140
Docket No.: 20040327
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Reasonable suspicion does not permit law enforcement authorities to transport a seized package from the place where suspicion arose to a law enforcement center for further investigation.
Evidence derived based on an illegal seizure must be suppressed as fruit of the poisonous tree.

Simburger v. Simburger 2005 ND 139
Docket No.: 20050032
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Once an initial custody decision has been made, visitation is governed by N.D.C.C. 14-05-22(2).
A party moving to modify visitation bears the burden of establishing that a material change in circumstances has occurred since the prior visitation order and that it is in the best interest of the child to modify the order.

Interest of B.J.K. (Confidential) 2005 ND 138
Docket No.: 20050025
Filing Date: 7/25/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A juvenile court's finding of deprivation will not be set aside unless it is clearly erroneous.
In determining whether the causes and conditions of deprivation will continue or will not be remedied, there must be prognostic evidence forming the basis for reasonable prediction of continued or future deprivation.

State v. Jackson 2005 ND 137
Docket No.: 20050072
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When the court dismisses a criminal information on the basis of its legal interpretation of a criminal statute, and not upon resolution of any factual element of the crime charged, the ruling is not a judgment of acquittal but a quashing of the information from which the State has a right to appeal.
When a sexual offender changes employment address, he must register the change with law enforcement within ten days.

GO Committee, et al. v. City of Minot 2005 ND 136
Docket No.: 20040367
Filing Date: 7/20/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: The judiciary's role in reviewing a municipality's interpretation and application of a municipal ordinance is limited by the doctrine of separation of powers to determining whether the municipality clearly abused its discretion.
Ordinances are interpreted like statutes.
Statutory interpretation is a question of law subject to full review upon appeal.

Disciplinary Board v. Sundby (Consolidated w/ 20050189 - 20050194) 2005 ND 135
Docket No.: 20050188
Filing Date: 7/18/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

State v. Barth 2005 ND 134
Docket No.: 20050015
Filing Date: 7/15/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Persistent use of profane and threatening language combined with threatening hand gestures is not constitutionally protected free speech under the First Amendment to the U.S. Constitution.
When reviewing challenges to sufficiency of the evidence, the reviewing court examines the record to determine whether there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

Citibank v. Reikowski 2005 ND 133
Docket No.: 20050043
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Debtor/Creditor
Author: Sandstrom, Dale

Highlight: Before accepting and filing an answer, a clerk should require the filing fee be paid or waived, however, if the clerk does not do so, the filing of the answer is not invalidated.

Reineke v. Reineke (cross-ref. w/20030014) 2005 ND 132
Docket No.: 20050006
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: An ex-wife's enhanced burden to satisfy marital debt discharged in bankruptcy by her ex-husband is a material change in circumstances warranting a modification of spousal support, and such a modification does not violate U.S. bankruptcy law.