Opinions

Anderson v. Director, N.D. Dept. of Transportation 2005 ND 97
Docket No.: 20040337
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: An investigative stop of a vehicle requires the officer have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Information from a tip may provide the factual basis for a stop.
In evaluating the factual basis for a stop, the totality of the circumstances is considered, including the quantity, or content, and quality, or degree of reliability, of the information available to the officer.
When reasonable and articulable suspicion arises from an informant's tip, there is an inverse relationship between quantity and quality, and the information must be analyzed generally according to the type of tip and its reliability.
A caller-informant must provide at least some specific and articulable facts to support the bare allegations of criminal activity for a stop to be justified based on the call.

Negaard v. Negaard (Consol. w/20040312) (Cross-Ref. w/20010251 & 20030174) 2005 ND 96
Docket No.: 20040140
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.
An appeal of a contempt finding must be made within "60 days after entry of the judgment or order being appealed."
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.
In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child.
Under Section 28-26-01(2), N.D.C.C., a court may award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim.

Koenig v. ND Dept. of Transportation 2005 ND 95
Docket No.: 20040351
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: The Department does not lack jurisdiction to suspend a license merely because an officer failed to forward test results that were not printed because of a printer malfunction.

Glasow v. E.I. Dupont De Nemours and Company, et al. 2005 ND 94
Docket No.: 20040321
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Rule 23(l), N.D.R.Civ.P., governs the dismissal of all class actions, regardless of whether a motion to certify the class is filed.

Smith v. Kulig 2005 ND 93
Docket No.: 20040237
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A landowner's only duty to a trespasser is to refrain from harming the trespasser in a willful and wanton manner.
A landowner is not under any affirmative duty to give a trespasser warning of concealed perils, although, by the exercise of reasonable care, the landowner might have discovered the defect or danger that caused the injury.

Woods v. Ryan 2005 ND 92
Docket No.: 20040227
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In deciding whether to change custody of a child, a court must use a two-part analysis, considering first whether there has been a material change of circumstances, and then, if the court decides there has been, deciding whether a change in custody is necessary to serve the best interests of the child.

Bollin v. ND Dept. of Transportation 2005 ND 91
Docket No.: 20040291
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Chemical analysis results will not be admitted into evidence if the test was not performed in accordance with methods and devices approved by the state toxicologist.
If the chemical analysis form indicates an alternative disinfectant was used during the blood draw but neither the form nor testimony identifies the disinfectant, license suspension is improper.

Choice Financial Group v. Schellpfeffer, et al. 2005 ND 90
Docket No.: 20040204
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Where partial summary judgment is rendered for only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification of the partial summary judgment as final under N.D.R.Civ.P. 54(b).

State v. Olsen (Consolidated w/20050040) 2005 ND 89
Docket No.: 20040202
Filing Date: 5/17/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a jury conviction for burglary and a denial of post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

State v. Thompson 2005 ND 88
Docket No.: 20050089
Filing Date: 5/17/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: An appeal from an order denying a motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (7).

Disciplinary Board v. Christensen (CONSOLIDATE W/ 20050139 & 20050140) 2005 ND 87
Docket No.: 20050138
Filing Date: 5/13/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded and ordered to pay costs of disciplinary proceedings.

State v. Keller 2005 ND 86
Docket No.: 20040059
Filing Date: 5/10/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The right to a lesser-included-offense instruction requires that the offense be a lesser included offense of the greater, that the evidence be such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser, and generally, that the instruction be requested.
North Dakota's current lesser-included-offense law has its origin in the North Dakota Rules of Criminal Procedure, not N.D.C.C. 12.1-01-04(15).
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser offense.
Criminal facilitation is not a lesser included offense of conspiracy to commit murder.
Criminal facilitation is not a lesser included offense of attempted murder.
Reckless endangerment is not a lesser included offense of attempted murder.

Eberts, et al. v. Billings Co. Board of Commissioners 2005 ND 85
Docket No.: 20040309
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A board of county commissioners may condemn land for a road under quick take procedures in N.D.C.C. 24-05-09 through 24-05-15.

Cusey v. Nagel 2005 ND 84
Docket No.: 20040241
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A person who petitions for a disorderly conduct restraining order must allege specific facts or threats.

Sorlie v. Workforce Safety and Insurance, et al. 2005 ND 83
Docket No.: 20040250
Filing Date: 4/29/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The pretermination due process procedures for terminating disability benefits do not apply to a lump-sum award.
Claimants reapplying for disability benefits must show both a significant change in their medical condition and an actual wage loss caused by the significant change in their compensable medical condition.

Hanson v. Hanson 2005 ND 82
Docket No.: 20040275
Filing Date: 4/26/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may modify a prior custody order after a two-year period following the date of entry of an order establishing custody if the court finds that a material change in circumstances has occurred and that the modification is necessary to serve the best interest of the child. A party seeking to modify a custody order bears the burden of showing that a change of custody is required.
A district court must first calculate the presumptively correct child support amount before it can depart from the Child Support Guidelines.

Aker v. ND Department of Transportation 2005 ND 81
Docket No.: 20040366
Filing Date: 4/26/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment reversing an administrative agency decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Jorgensen v. ND Dept. of Transportation 2005 ND 80
Docket No.: 20040338
Filing Date: 4/26/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Inclusion of chemical test results in an officer's certified report to the Director of the North Dakota Department of Transportation under N.D.C.C. 39-20-03.1(3) is a basic and mandatory provision without which the department may not suspend a person's driving privileges.

Edinger v. Governing Authority of Stutsman Co. Correctional Center 2005 ND 79
Docket No.: 20040233
Filing Date: 4/26/2005
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: When the information available to a governing body suggests a reasonable probability of future litigation or adversarial administrative proceedings, the governing body may close a portion of a public meeting and meet in executive session to receive and discuss the advice of its attorney.

Interest of B.M., et al. (CONFIDENTIAL) 2005 ND 78
Docket No.: 20040205
Filing Date: 4/26/2005
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) and (4).

State v. Bleibaum 2005 ND 77
Docket No.: 20040333
Filing Date: 4/26/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a jury conviction for aggravated assault, a class C felony, is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

May v. Sprynczynatyk 2005 ND 76
Docket No.: 20040232
Filing Date: 4/11/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Failure of the Department of Transportation to file the transcript of the administrative hearing within twenty days, as required by N.D.C.C. 39-20-06, does not automatically mandate summary reversal of the decision suspending a driver's license.
To establish systemic disregard of the law by an administrative agency sufficient to warrant reversal of a decision in the agency's favor, a party must demonstrate some persistent pattern of improper agency conduct.
A party must make a specific objection to evidence at the time it is offered for admission into evidence to give the opposing party an opportunity to argue the objection and to give the trial court an opportunity to fully understand the objection and appropriately rule on it.

State of ND v. NDSU, et al. 2005 ND 75
Docket No.: 20040228
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: For purposes of an insurance policy exclusion for surface water damage, surface water does not lose its character as surface water by being diverted underground through man-made structures.
The efficient proximate cause doctrine applies only where two or more independent forces operate to cause the loss.
The efficient proximate cause doctrine does not apply to a loss caused by a discernable cause even though the insured attempts to characterize the cause in various ways to create the appearance of multiple causes.
A covered peril that is merely a concurrent cause is insufficient to allow coverage under the efficient proximate cause doctrine.

Home of Economy v. Burlington Northern 2005 ND 74
Docket No.: 20040267
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The Interstate Commerce Commission Termination Act of 1995 does not preempt state jurisdiction over railroad grade crossings.

Litoff v. Pinter 2005 ND 73
Docket No.: 20040330
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion for reinstatement of unsupervised visitation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Paulson v. Paulson 2005 ND 72
Docket No.: 20040242
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A trial court cannot delegate to anyone the power to decide questions of child custody or related issues.
When a party agrees to the court's appointing one person to serve as both custody investigator and guardian ad litem, that party waives the right to object that the court's appointee is in violation of the rules of court when she acts as the child's advocate and also testifies at the custody proceedings.
A trial court's denial of a motion for continuance will not be set aside on appeal absent an abuse of discretion by the trial court.

H-T Enterprises v. Antelope Creek Bison Ranch 2005 ND 71
Docket No.: 20040194
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The purpose of the no-counterclaim provision in the eviction statute is to get a speedy determination of possession.
A defendant in an eviction action may show the character of the parties' possessory rights, evidence of a strained relationship having a bearing on whether a material breach has occurred, and affirmative defenses and counterclaims.

Harter v. ND Dept. of Transportation 2005 ND 70
Docket No.: 20040281
Filing Date: 4/6/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Section 39-20-04.1(1)(a), N.D.C.C., provides penalties for persons under the age of 21 who drive with a blood alcohol concentration of at least .02 percent by weight.
The rule of lenity, which requires ambiguities in the law to be interpreted in favor of a criminal defendant, does not apply in civil cases.

Guardianship/Conservatorship of Van Sickle (Consolidated w/20040224) 2005 ND 69
Docket No.: 20040195
Filing Date: 4/4/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: The Supreme Court will determine a moot issue if the matter is capable of repetition, yet evading review.
A person has no right to demand to appear in a court proceeding and testify by telephone.
A guardian may place a ward in a locked and secured unit of a basic care facility without first obtaining a court order.
The party proposing the transfer of a ward to a more restrictive living arrangement has the burden of proving by clear and convincing evidence that the proposed placement is the least restrictive alternative available.
A district court has discretion over the order in which evidence is presented.
The best interest of a ward is served by appointing a non-family member as guardian when family members are unable to get along with each other.
A district court does not abuse its discretion in denying a motion for new trial when the alleged error is raised for the first time in the motion for new trial and the alleged error could have been raised during the actual trial.

Strand, et al. v. U.S. Bank National Association ND, et al. 2005 ND 68
Docket No.: 20040068
Filing Date: 3/31/2005
Case Type: Certified Question - Civil - Civil
Author: Kapsner, Carol

Highlight: A party alleging that a contractual provision is unconscionable must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the various factors, viewed in totality, to determine whether the contractual provision is so one-sided as to be unconscionable.
Procedural unconscionability is established when one party is in such a superior bargaining position that it totally dictates all terms of the contract, a preprinted standard form contract is used, there is no possible negotiation of terms, and the only option presented to the other party is to "take it or leave it."
The right to bring a class action is procedural, and a class action is not a substantive remedy.
Contractual provisions which limit or exclude remedies otherwise available at law and leave a party without an effective remedy are substantively unconscionable.

Larson v. Larson 2005 ND 67
Docket No.: 20040248
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In construing a statute, courts are to ascertain the legislature's intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.
As amended, N.D. law does not allow a court to award post-minority child support for college expenses.

Dvorak v. Dvorak 2005 ND 66
Docket No.: 20040222
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Tax returns from the most recent five years are properly used to determine the self-employment income of an obligor in calculating child support obligations.
In awarding attorney's fees in a divorce action, a court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.

Buri v. Ramsey, et al. 2005 ND 65
Docket No.: 20040164
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A trial court's determination about whether a conversion has been committed is a finding of fact which will not be overturned on appeal unless it is clearly erroneous.
The injured party in a conversion dispute has the option of choosing either N.D.C.C. 32-03-23(1) or N.D.C.C. 32-03-23(2) to determine the value of the converted property.
Recovery for specific costs incurred to recover the property are to be determined under N.D.C.C. 32-03-23(3).

Interest of A.M.S. (Consolidated w/20040269 & 20040270) 2005 ND 64
Docket No.: 20040268
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Federal law permits decisions regarding rebuttal of child support payments to be made under criteria established by the State.
Under the Child Support Guidelines, an incarcerated child support obligor whose payment amounts are based on an imputed, federal-minimum-wage income cannot reduce these presumptively correct payments by showing a lack of financial resources due to imprisonment.

State v. Krull 2005 ND 63
Docket No.: 20040239
Filing Date: 3/23/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: If a defendant does not object at trial to the introduction of a child's hearsay statements regarding sexual abuse, our inquiry is limited to whether the admission into evidence constitutes obvious error affecting substantial rights.
A trial court abuses its discretion and commits plain error if, under N.D.R.Ev. 803(24), it admits a child's hearsay statements regarding sexual abuse without first making explicit findings regarding the reliability and trustworthiness of the statements. Merely quoting the terms of the hearsay rule and ordering the statements admitted is inadequate.
Even if a trial court commits plain error, for reversal, the error must have affected the defendant's substantial rights by altering the trial's outcome.
A defendant's inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.

Doll v. ND Department of Transportation 2005 ND 62
Docket No.: 20040188
Filing Date: 3/23/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Guidelines for use of a standard solution are not part of the approved method for conducting an Intoxilyzer test unless the State Toxicologist expressly includes them in the approved method filed with the clerk of district court.

City of Horace v. City of Fargo 2005 ND 61
Docket No.: 20040219
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Annexation statutes are construed liberally to encourage the natural and well-ordered development of municipalities.
A resolution and annexation plat, with a subsequent notation to a judgment that invalidated part of the annexation and was consistent with the parties' mediation agreement, constituted an accurate map for the part of the annexation that had not been invalidated.

Makeeff v. City of Bismarck 2005 ND 60
Docket No.: 20040272
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A landowner is not immune from liability for an accident that occurs on the landowner's premises just because the accident was caused by a natural accumulation of snow and ice.
Landowners or occupiers have a duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of an injury, and the burden of avoiding the risk.
Landowners, however, are not insurers of their premises, nor must they endure unreasonable burdens to maintain it.

State v. Nelson 2005 ND 59
Docket No.: 20040284
Filing Date: 3/23/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: If an application for a search warrant contains statements intentionally false or made with reckless disregard for the truth, the false material must be set aside, and if the remaining content is insufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought.
Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search.

Kastrow v. State 2005 ND 58
Docket No.: 20040318
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Wheeler v. Jahnke, et al. (Consol. w/20040362) (Cross-ref. w/20040341-20040343) 2005 ND 57
Docket No.: 20040361
Filing Date: 3/23/2005
Case Type: Original Proceeding - Criminal - Writ of Certiorari
Author:

Highlight: A district court order affirming a magistrate's finding of probable cause to bind a defendant over for trial on charges of gross sexual imposition and encouraging the deprivation of a minor is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Jacob, et al. v. Nodak Mutual Ins. Co., et al. 2005 ND 56
Docket No.: 20040197
Filing Date: 3/8/2005
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: Age alone, without other evidence, is insufficient to survive a motion for summary judgment in an age discrimination case.
Section 34-01-20, N.D.C.C., prohibits an employer from discharging an employee for reporting illegalities and requires a report to be made for the purpose of blowing the whistle to expose an illegality.
Section 14-02.4-03, N.D.C.C., does not prohibit a retaliatory discharge for participating in an internal employee investigation.

Simpson, et al. v. Chicago Pneumatic Tool Co., et al. 2005 ND 55
Docket No.: 20040133
Filing Date: 3/8/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: For purposes of res judicata and collateral estoppel, parties and their privies are barred by a former judgment.
Res judicata and collateral estoppel apply when subsequent claims are based on the same facts and events but different legal theories are pled.
A district court's determination regarding a request for sanctions under N.D.R.Civ.P. 11 will not be reversed unless the court abused its discretion.
Monetary sanctions may not be awarded against a represented party for a violation of N.D.R.Civ.P. 11(b)(2).

Interest of R.F. (CONFIDENTIAL) 2005 ND 54
Docket No.: 20050053
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: An individual found to be a person requiring mental-health treatment has the right to the least restrictive conditions necessary to achieve the purposes of treatment.
Orders for in-patient hospitalization and treatment are reviewed under the clearly erroneous standard. A district court's finding that alternative treatment is inadequate or that hospitalization is the least restrictive alternative will not be set aside unless clearly erroneous.
An order for in-patient hospitalization is not clearly erroneous where a doctor testifies that a mentally ill individual's dementia, which has yet to be fully diagnosed or treated, likely triggered a prescription-drug overdose, and asserts that the hospital's structure and supervision are temporarily needed to help avoid future self-medication accidents.

Frieze v. Frieze 2005 ND 53
Docket No.: 20040103
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Section 14-09-06.6(5), N.D.C.C., limits the grounds upon which a court may grant a motion to change custody which is brought within two years following entry of the order establishing custody, and includes the persistent and willful denial of interference with visitation or a present environment which may endanger or impair the child's physical or emotional health or development.
When a stepparent's career takes him or her out of state to secure a job, allowing the spouse and stepchildren to relocate to that place is crucially important to maintaining family continuity and stability.
When the relevant factors weigh in favor of the custodial parent's request to relocate the children, the trial court's denial of the motion constitutes reversible error.

Thomas v. Workforce Safety and Insurance, et al. 2005 ND 52
Docket No.: 20040311
Filing Date: 3/4/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation.
Workforce Safety and Insurance must adequately explain the reasons for disregarding medical evidence favorable to a claimant.

Larsen v. ND Dept. of Transportation 2005 ND 51
Docket No.: 20040158
Filing Date: 3/4/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: In interpreting a statute, a court may not disregard the letter of the statute under the pretext of pursuing its spirit, and may not add words to the statute.

Roberts v. ND Department of Human Services 2005 ND 50
Docket No.: 20040277
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Neumann, William

Highlight: An applicant for medicaid benefits has the burden of establishing eligibility for benefits and providing information necessary to establish eligibility.
Transactions between a trustee and a beneficiary by which the trustee obtains any advantage from the beneficiary are presumed to be entered into without sufficient consideration.

Kaiser v. State 2005 ND 49
Docket No.: 20040135
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: If, in responding to an application for post-conviction relief, the State moves for dismissal and presents matters outside the pleading and the court does not exclude them, the opposing party shall have 30 days after service of the State's brief within which to serve and file an answer brief and supporting papers.

Gamboa v. State 2005 ND 48
Docket No.: 20040128
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response.
Post-conviction relief applications seeking withdrawal of a guilty plea must be made in a timely manner in accordance with Rule 32, N.D.R.Crim.P.