Opinions

State v. Mathre 2004 ND 149
Docket No.: 20030312
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: The appellant must provide a transcript on appeal, and the appellant suffers any consequences resulting from the lack of a transcript to review.
An arrest is not unlawful merely because there is no subsequent conviction of the crime for which an individual is arrested.
A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.

Johnson v. ND Dept. of Transportation 2004 ND 148
Docket No.: 20040065
Filing Date: 7/22/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: An officer who properly arrests a driver for DUI and who obtains, within the officer's jurisdiction, the driver's consent to submit to a blood test can transport the arrestee outside the jurisdiction for the test.

State v. Stockert 2004 ND 146
Docket No.: 20030105
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A judge is required to disqualify if the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.
When personal knowledge about a matter has been obtained by a judge within another legal proceeding, disqualification is not called for.
When deciding whether or not to recuse, a judge must determine whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
In deciding whether a judge should be disqualified because of a person's involvement in a judicial campaign, the relevant factors include: 1) the significance of the person's campaign involvement; 2) whether the campaign is under way or how recently it ended; 3) whether there is an ongoing relationship between the person and the judge; 4) the significance of the person's involvement in the current case, including the closeness or remoteness of the involved individual to the case; 5) whether the issue was promptly raised; and 6) evidence of judicial bias.

Minn-Kota Ag Products, Inc., et al. v. Carlson, et al. 2004 ND 145
Docket No.: 20030303
Filing Date: 7/6/2004
Case Type: Appeal - Civil - Malpractice
Author: Neumann, William

Highlight: Issues of fact may become questions of law if a reasonable person could reach only one conclusion from the facts.
Mere speculation is not enough to defeat a motion for summary judgment. There must be enough evidence for a reasonable jury to find for the plaintiff.
An attorney has not committed legal malpractice by failing to file a cause of action when the statute of limitations expires before the attorney is retained.

State v. Sims (Consolidated w/20040036) 2004 ND 144
Docket No.: 20030150
Filing Date: 7/6/2004
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: The district court may provide for the possibility of work release in accordance with the guidelines of a correctional facility.

Ag Acceptance Corp. v. Alexander Farms, Inc., et al. 2004 ND 143
Docket No.: 20040005
Filing Date: 7/2/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment in collection action summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Interest of T.J.L. (CONFIDENTIAL) 2004 ND 142
Docket No.: 20030291
Filing Date: 6/30/2004
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Effective March 1, 2004, findings of fact in juvenile matters will not be set aside on appeal unless clearly erroneous.
When there has been an extensive period in which efforts have been made to overcome a parent's inabilities to effectively parent, courts cannot allow the child to remain in an indeterminate status midway between foster care and the obvious need for permanent placement.

Oppegard-Gessler v. Gessler 2004 ND 141
Docket No.: 20030205
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A custodial parent may not change the residence of a child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.
The best interests of the child are the primary consideration in determining whether a custodial parent should be allowed to relocate with the child to another state.
A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error.

State v. Smestad 2004 ND 140
Docket No.: 20030335
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A trial court may allow testimony as to the context of events, if the testimony is required to prove the essential statutory elements of the crime and the district court has weighed the probative value against the prejudicial nature of the testimony.

State v. Decoteau 2004 ND 139
Docket No.: 20030271
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The reasonable suspicion standard does not require an officer to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.
An officer's knowledge that a driver's license was suspended when stopped by the same officer one week earlier is sufficient to create reasonable suspicion of unlawful activity and support an investigatory stop of the vehicle.

Interest of T.T. (CONFIDENTIAL) 2004 ND 138
Docket No.: 20030266
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Juvenile Law
Author: Sandstrom, Dale

Highlight: Issues not raised in juvenile court may not be raised for the first time on appeal.
A deprivation hearing in juvenile court may not be combined with a hearing on divorce-related child custody and visitation issues.
A juvenile court's oral findings may be used to explain the juvenile court's written decision.

State v. Gill 2004 ND 137
Docket No.: 20030279
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Theft
Author: Maring, Mary

Highlight: The State has the burden in a restitution hearing to prove the amount of restitution by a preponderance of the evidence.
The defendant has the burden to raise and prove an inability to pay the amount of restitution ordered.

State v. Krous 2004 ND 136
Docket No.: 20030372
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The word "submit" in a probation condition similar to that in N.D.C.C. 12.1-32-07(4)(n) means consent to a reasonable warrantless search.

Gartner v. Job Service North Dakota 2004 ND 135
Docket No.: 20040038
Filing Date: 6/30/2004
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Maring, Mary

Highlight: An unemployed individual may be entitled to unemployment benefits while attending a retraining program if reasonable and suitable work opportunities for which the individual is suited by training, experience, and physical capabilities do not exist in the individual's locality.

Aamodt v. Dept. of Transportation 2004 ND 134
Docket No.: 20040056
Filing Date: 6/30/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department must meet the basic and mandatory provisions of the statute to have authority to suspend driving privileges.
The statutory provision requiring a police officer to include in the notice to the Department reasonable grounds to believe a person had been driving or had been in actual physical control of a motor vehicle while under the influence of alcohol is a basic and mandatory provision.

Tibert, et al. v. Minto Grain, et al. (Cross ref. w/20030207) 2004 ND 133
Docket No.: 20030208
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A trial court's decision granting judgment on the pleadings is reviewed de novo.
The purpose of liberal pleading requirements is to apprise the defendant of the nature of the plaintiff's claim.

Moen, et al. v. Thomas, et al. (cross-reference w/20000111; 20000169) 2004 ND 132
Docket No.: 20030309
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Although the existence of an attorney-client relationship turns largely on the client's subjective belief it exists, the client's subjective belief must also be objectively reasonable.
A party must specifically request that questions on a special verdict form be submitted to the jury, and vague references to requested instructions or special verdict forms are insufficient to preserve the issue for appeal.
A trial court does not abuse its discretion by refusing to include a requested question in a special verdict form when a party has not presented sufficient evidence to support it.

Frontier Enterprises v. DW Enterprises, et al. 2004 ND 131
Docket No.: 20040050
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A partial summary judgment that fails to adjudicate all claims against all parties is interlocutory and not appealable.

Johnson v. State (Consolidated w/20030257) 2004 ND 130
Docket No.: 20030256
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: An application for post-conviction relief is properly dismissed on the pleadings if the court cannot discern a potential for proof to support the application.
A defendant who inexcusably fails to raise all his claims in a single post-conviction proceeding misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding.
The Strickland standard for assessing ineffective assistance of counsel applies to claims of ineffective post-conviction counsel.
A criminal defendant has no constitutional right to "hybrid" representation and to act as co-counsel with his attorney.

Tibbetts v. Dornheim 2004 ND 129
Docket No.: 20030267
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Generally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment.
All of the issues between parties are merged in the final judgment.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

Azure, et al. v. Belcourt Public School Dist. 2004 ND 128
Docket No.: 20030338
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: In a negligence case, duty is a question of whether a relationship between the parties gives rise to any legal obligation; whether a duty exists is a question of law.
Summary judgment is appropriate when the record indicates the defendant did not owe a duty of care to the plaintiff in a negligence action.

City of Fargo v. Habiger 2004 ND 127
Docket No.: 20030248
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A judge is not obligated to withdraw as judge under the change-of-judge statute if the record does not reflect compliance with statutory procedures.
The waiver of the right to appointed counsel is effective if the waiver is made voluntarily, knowingly, and intelligently.
Character evidence may be introduced to demonstrate a defendant's propensity for veracity.

Interest of T.F., et al. (CONFIDENTIAL) 2004 ND 126
Docket No.: 20030236
Filing Date: 6/30/2004
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: Under federal law, termination of parental rights to an Indian child requires proof beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
Incarceration of a parent, by itself, does not establish abandonment of a child for purposes of terminating parental rights.
A probability of serious mental and emotional harm to the child may be established from a parent's current inability to properly care for the child.

State v. Ehli (Cross-reference w/20030092) 2004 ND 125
Docket No.: 20030327
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Other
Author: Kapsner, Carol

Highlight: A probation condition prohibiting a sex offender from having contact with his minor children is not a de facto termination of parental rights.

State v. Reimche (Consolidated w/20040003) 2004 ND 124
Docket No.: 20040002
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Convictions of aggravated assault are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

City of Minot v. Kary (Consolidated w/20030344) 2004 ND 123
Docket No.: 20030343
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Convictions for driving under the influence of alcohol and unlawful consumption of alcohol are summarily affirmed under 35.1(a)(3) and (4).

State v. Kokron 2004 ND 122
Docket No.: 20040034
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Judgment and sentence for gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Mikkelson 2004 ND 121
Docket No.: 20030277
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Driving under suspension conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

T.E.J. v. T.S., et al. (CONFIDENTIAL) 2004 ND 120
Docket No.: 20030337
Filing Date: 6/16/2004
Case Type: Appeal - Civil - Paternity
Author: Kapsner, Carol

Highlight: The court may impute income to determine an obligor's future support obligation when the obligor has made a voluntary change in employment.
A court must grant such rights of visitation as will enable the non-custodial parent and child to maintain a parent-child relationship, and the court may restrict or deny this right only if visitation is likely to endanger the child's physical or emotional health.

Dietz v. Kautzman (Cross-Ref w/980004, 990386, 20000083, 20020296, 20030038) 2004 ND 119
Docket No.: 20030361
Filing Date: 6/7/2004
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: The 21-day safe harbor provision under N.D.R.Civ.P. 11 can be waived by a party against whom sanctions are sought for bringing a frivolous claim, when the party continues to advance the claim rather than withdraw or appropriately correct it.
A trial court's decision to impose sanctions under N.D.R.Civ.P. 11 rests within the sound discretion of the court and it will not be overturned on appeal unless the court has abused its discretion.

Fladeland, et al. v. Gudbranson, et al. 2004 ND 118
Docket No.: 20030319
Filing Date: 6/7/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An agreement for the sale of real property is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent.
Absent a written contract or agreement for the sale of real property, a court may compel the specific performance of any agreement for the sale of real property in case of part performance thereof.
Part performance of an alleged oral contract must be consistent only with the existence of the alleged oral contract.

Ritter, Laber & Assoc., et al. v. Koch Oil, et al. (Cross w/990204 & 20000224) 2004 ND 117
Docket No.: 20030347
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A claim for conversion may arise under the same facts as a claim for a breach of contract.
The gist of a claim for conversion is not the rightful acquisition of the property, but the wrongful possession or deprivation of that property.
A party is not entitled to recover under unjust enrichment when there is an express contract between the parties relative to the same subject matter.
A motion to amend a complaint is addressed to the discretion of a trial court.

Greybull v. State (cross-ref. w/970216; 990280; 20020204) 2004 ND 116
Docket No.: 20040040
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Raising issues in an application for post-conviction relief that were not raised on direct appeal or in prior applications for post-conviction relief, absent any showing of excuse or justification is an abuse of process.
Failure to show any excuse for not having raised the issue of untimely notice of intent to enhance sentence under the special dangerous offender statute in a prior proceeding makes raising the issue on post-conviction relief an abuse of process.

State v. Higgins 2004 ND 115
Docket No.: 20030320
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Under N.D.R.Crim.P. 3(b), allowing amendment of a complaint is within the trial court's discretion.
To legally stop a vehicle, a law enforcement officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Operating a motorboat or vessel while intoxicated through the consumption of alcoholic beverages violates N.D.C.C. 20.1-13-07(2).

City of Mandan v. Sperle 2004 ND 114
Docket No.: 20040006
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: In reviewing a challenge to the sufficiency of the evidence to sustain a conviction, the appellate court will not weigh conflicting evidence or judge the credibility of witnesses but will look only to the evidence most favorable to the verdict and to the reasonable inferences therefrom to determine whether there is substantial evidence to warrant a conviction.
Special verdicts or interrogatories in criminal cases are disfavored because they may coerce a jury into rendering a guilty verdict or destroy the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences.

Bice, et al. v. Petro-Hunt, L.L.C., et al. 2004 ND 113
Docket No.: 20030306
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: An order certifying a class action under N.D.R.Civ.P. 23 is appealable, but a trial court's decision to certify a class action will not be overturned on appeal unless the trial court abused its discretion.
In determining whether a class action will provide a fair and efficient adjudication of the controversy, the trial court is not required to specifically address each of the thirteen factors listed in N.D.R.Civ.P. 23(c)(1), but must weigh the competing factors, none of which is predominant.

State v. Flanagan 2004 ND 112
Docket No.: 20030247
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An appellate court may notice a claimed error that was not brought to the attention of the trial court if there was plain error which affected the defendant's substantial rights, and the appellate court concludes the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Omitting an element of the crime from the jury instruction is obvious error, but is not reversible error when the element was not disputed.
The issue of impermissible gender-based peremptory challenges must be raised in the trial court.

Fast, et al. v. State 2004 ND 111
Docket No.: 20030310
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: The state may be held liable for money damages for an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.
Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
Landowners are not liable for snow removal efforts that do not create an unreasonably dangerous or more hazardous condition.

Karsky v. Kirby, et al. 2004 ND 110
Docket No.: 20030354
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: When a stipulation is incorporated into a judgment, the court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
The right to a hearing from the Banking Board's denial of an application for transfer of the ownership of a banking institution can be waived by the parties.
When a judgment is clarified by the same trial judge who entered it, the clarification is entitled to considerable deference.

Riemers v. Anderson, et al. (CONSOLIDATED w/20030318) (see Docket Memo) 2004 ND 109
Docket No.: 20030317
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.
Questions unnecessary to the determination of an appeal are not answered.

Kostrzewski v. Frisinger 2004 ND 108
Docket No.: 20040009
Filing Date: 6/3/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: As a general rule of statutory construction, a specific statute governs over a more general statute.
When a party files a foreign child custody judgment, a trial court shall confirm the judgment unless a person contesting the validity of the registered judgment establishes one of the three grounds listed in N.D.C.C. 14-14.1-25(4).
Mere registration of a foreign child custody judgment does not require determination of the registering court's jurisdiction under N.D.C.C. 14-14.1-14.

Minto Grain v. Tibert, et al. (Cross-Ref w/20010302, 20030207 & 208) 2004 ND 107
Docket No.: 20030297
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The right to the possession of disputed real estate is the only fact that can be rightfully litigated in a summary eviction action unless damages or rent is claimed.
Adverse possession and acquiescence may be asserted as a defense or counterclaim in a summary eviction action.

State v. Nordahl 2004 ND 106
Docket No.: 20030269
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: A district court does not abuse its discretion when it revokes probation for failure to pay restitution without holding a hearing when a defendant agreed to restitution as part of a plea agreement.

Baker v. Mayer 2004 ND 105
Docket No.: 20030324
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A trial court's decision to grant a disorderly conduct restraining order will not be reversed unless the trial court clearly abused its discretion.
"Reasonable grounds" for a disorderly conduct restraining order is synonymous with "probable cause."
An alleged victim of disorderly conduct must show more than that the person's actions are unwanted; the alleged victim must show that the actions were intended to adversely affect the alleged victim's safety, privacy, or security.

Duma v. Keena, et al. 2004 ND 104
Docket No.: 20030302
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Unopposed instructions become the law of the case.
A special verdict will be set aside only if it is perverse and clearly contrary to the evidence. Reconciliation of a verdict includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

State v. Markel 2004 ND 103
Docket No.: 20030299
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for class B felony possession of a controlled substance with intent to deliver is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Reishus v. Thompson 2004 ND 102
Docket No.: 20040007
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: A trial court judgment dismissing a negligence action is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Peterson 2004 ND 101
Docket No.: 20040134
Filing Date: 5/28/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

State v. Guthmiller 2004 ND 100
Docket No.: 20030298
Filing Date: 5/7/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness.
A district court's decision on a suppression motion is affirmed unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence to support the decision or the decision goes against the manifest weight of the evidence.

Disciplinary Board v. Balerud (CONFIDENTIAL) 2004 ND 99
Docket No.: 20040113
Filing Date: 5/7/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer placed on disability inactive status until further order of the Court.