Opinions

Eberhardt v. Eberhardt 2003 ND 199
Docket No.: 20030065
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A sufficient foundation can be established for the admission of medical bills into evidence by the claimant's testimony the bills were incurred.
The question of whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court.
A trial court's determination on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.

VND, LLC v. Leevers 2003 ND 198
Docket No.: 20030091
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: The right to the possession of real estate is the only fact that can be litigated in a summary eviction action unless damages or rent is claimed.
When the right to possession depends on whether or not rent was paid or whether there are material breaches, evidence can be presented to determine those issues.
Charges classified as additional rents and defined as such under a lease are considered rents for the purpose of summary eviction.
Failure to pay rent when a credit is due cannot justify summary eviction.
When a lessee is required to purchase insurance of an "all risk" form under a lease to "protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises," the language does not also obligate the lessee to provide for liability insurance.
Custom and usage need not be considered when the language of the lease is not ambiguous.
Laches and waiver do not apply when a party is not trying to assert a right or bring a claim.

State v. Waltz (CONSOLIDATED w/20030120 & 20030121) 2003 ND 197
Docket No.: 20030119
Filing Date: 12/19/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.
After making a lawful custodial arrest of the occupant of an automobile, the police may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, including any containers found therein.
The tentative elimination of alcohol as the cause of a defendant's impairment may result in a reasonable suspicion that the defendant is under the influence of drugs.

N.D. Dept. of Human Services v. Ryan 2003 ND 196
Docket No.: 20030156
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Related administrative regulations are construed together and in conjunction with enabling legislation to harmonize and give meaning to each provision.
An individual who has been terminated through a reduction-in-force may appeal the hiring authority's decision not to reemploy the individual if no more than one year has elapsed since the individual lost employment due to the reduction-in-force.
In deciding whether to reemploy an individual who has been terminated within one year under a reduction-in force, a hiring authority may conduct personal interviews to determine the minimum qualifications established for the particular position.

Linser v. Office of Attorney General, et al. 2003 ND 195
Docket No.: 20030184
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: An applicant for Medicaid benefits must prove eligibility.
Assets in a support trust are deemed to be available to the applicant and considered to be part of the applicant's assets in determining Medicaid eligibility. However, assets in a discretionary trust are considered available only to the extent amounts are actually distributed to the beneficiary.
An asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset.

Zander v. Workforce Safety and Insurance 2003 ND 194
Docket No.: 20030129
Filing Date: 12/19/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Clear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true.

Benson v. Workforce Safety and Insurance 2003 ND 193
Docket No.: 20030155
Filing Date: 12/19/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: If an appellant fails to serve the notice of appeal from an administrative order to the district court as required by the Administrative Agencies Practice Act, the district court lacks subject matter jurisdiction and the appeal must be dismissed.

State v. Parizek 2003 ND 192
Docket No.: 20030125
Filing Date: 12/19/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction of possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Sabinash (Consolidated w/20030220) 2003 ND 191
Docket No.: 20030219
Filing Date: 12/19/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction of drug offenses and an order denying motion to suppress summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Judicial Vacancy in District Judgeship No. 4, East Central Judicial Dt 2003 ND 190
Docket No.: 20030333
Filing Date: 12/19/2003
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Judicial Vacancy in District Judgeship No. 1, Northeast Central Judicial Dt. 2003 ND 189
Docket No.: 20030326
Filing Date: 12/19/2003
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Grand Forks.

Paul v. Workforce Safety and Insurance (cross-ref. w/20010290) 2003 ND 188
Docket No.: 20030199
Filing Date: 12/2/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: The vocational rehabilitation statutes are designed to return an injured employee to substantial gainful employment as quickly and with as little retraining as possible.
Workforce Safety and Insurance's decision to terminate rehabilitation benefits must be based upon evidence that jobs exist which provide the applicant a reasonable opportunity for employment and not on a burden-shifting presumption that such jobs exist.

State v. Dodson 2003 ND 187
Docket No.: 20030042
Filing Date: 12/2/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: There must be a nexus between the place to be searched and the contraband sought to establish probable cause to issue a search warrant.
State courts apply the good faith exception to the exclusionary rule in a manner that is consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
Under the good faith exception to the exclusionary rule, exclusion of evidence is not the proper remedy when an officer has acted upon objectively reasonable reliance that a warrant was properly issued by a neutral and detached magistrate.

Christianson v. Christianson 2003 ND 186
Docket No.: 20030123
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: No North Dakota statute or case law provides for the imputation of income in spousal support cases.
Equalization of income is not a goal or a measure of spousal support although it is a factor which may be considered.

Fish v. Dockter 2003 ND 185
Docket No.: 20030080
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: To be defamatory, a statement must be false, but there is no liability for defamatory statements that are privileged.
There is a qualified privilege for communications made, without malice, to an interested person by one who is also interested so as to afford a reasonable ground for supposing the motive for the communication innocent.
There is an absolute privilege for communications made incident to and during administrative proceedings.

State v. Backlund 2003 ND 184
Docket No.: 20030044
Filing Date: 12/2/2003
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: An adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses the computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult's benefit, satisfaction, lust, passions, or sexual desires.
North Dakota has jurisdiction to prosecute a defendant who solicits a person believed to be a minor to engage in sexual acts from a computer in Minnesota, where the communication is received in North Dakota and the defendant travels to and is arrested in North Dakota.
North Dakota's luring-a-minor-by-computer law does not violate the Commerce Clause or the First Amendment.
The registration and notification provisions for sexual offenders do not violate procedural due process or double jeopardy.

Bay v. State 2003 ND 183
Docket No.: 20030145
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Issues not raised to the trial court cannot be raised for the first time on appeal.
A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different.
The State fulfills its obligation in a nonbinding recommendation when it makes the recommendation, and the trial court may impose a harsher sentence without allowing the defendant to withdraw the guilty plea.
Defendants who voluntarily plead guilty waive the right to challenge nonjurisdictional defects occurring before entry of the guilty plea.

Interest of L.D. 2003 ND 182
Docket No.: 20030305
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: A petition for involuntary treatment must be supported by clear and convincing evidence.
The trial court's determination of clear and convincing evidence that a person requires treatment is a finding of fact subject to a more probing, clearly erroneous standard of review.
If other evidence presented at a treatment hearing supports the underlying allegations of the petition, the petitioner does not have to be present to testify regarding all the allegations in the petition.

Crane Johnson Lumber Co., et al. v. City of Fargo 2003 ND 181
Docket No.: 20030146
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: Property lying outside the limits of a special improvement district created by a municipality's governing body is not subject to assessment by the special assessment commission.

State v. Knowels (cross-ref. w/20010147) 2003 ND 180
Docket No.: 20030093
Filing Date: 12/2/2003
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Neumann, William

Highlight: North Dakota law does not require a chemical test to convict a person of driving while under the influence of alcohol. A conviction may be sustained when evidence of defendant's intoxication is shown through witness testimony of defendant's intoxication, based on their observations of defendant.

Kamara v. State 2003 ND 179
Docket No.: 20030180
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, a person must show counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
The standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, but the trial court's findings of fact are subject to a clearly erroneous standard of review.
The credibility of witnesses is left to the trial court to determine.

Negaard v. Negaard (cross-ref. w/20010251) 2003 ND 178
Docket No.: 20030174
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Post-judgment divorce order granting costs and attorney's fees summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).

Elshaug v. Workforce Safety and Insurance, et al. (cross-reference 990286) 2003 ND 177
Docket No.: 20030100
Filing Date: 11/18/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant has the burden of proving a right to receive workers compensation benefits or to continued benefits if they are terminated after liability for a claim has been accepted.
A claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury.

Knodel v. Knodel 2003 ND 176
Docket No.: 20030143
Filing Date: 11/18/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Hanson v. Director, N.D. Dept. of Trans. 2003 ND 175
Docket No.: 20030136
Filing Date: 11/17/2003
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Weaving twice onto the lane-dividing line on an interstate highway, even without erratic movement or sharp veering, can be sufficient to stop a vehicle.
A vehicle weaving within its own lane may be enough to justify the stop of a vehicle.
Although reasonable suspicion to stop a vehicle requires more than a "mere hunch," this standard does not require an officer to see a motorist violate a traffic law.
The totality of circumstances is considered when determining whether reasonable suspicion exists to stop a vehicle.

State v. Beciraj (see Docket Memo) 2003 ND 173
Docket No.: 20030035
Filing Date: 11/13/2003
Case Type: Appeal - Criminal - Arson
Author: Sandstrom, Dale

Highlight: The crime of conspiracy is limited to agreements to engage in a crime or crimes that are defined elsewhere.
Conspiracy does not require that an offense actually be committed as long as there is an agreement and an overt act to effect an objective of the conspiracy.
The act for the purpose of conspiracy can range from an act that would be innocent in the absence of a conspiracy to the actual commission of the offense agreed upon.
Conspiracy to commit arson by damaging or destroying one's own property for the purpose of collecting insurance on the loss, may occur even when, unknown to the conspirators, the insurance has lapsed.
Evidence of a prior home fire may be properly admitted if its probative value outweighs any danger of unfair prejudice and the evidence is not used to prove character but is used to show a plan for committing arson for the purpose of collecting insurance.

Litoff v. Pinter 2003 ND 172
Docket No.: 20030074
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Although visitation between a child and the noncustodial parent is ordinarily presumed to be in the best interest of the child, visitation may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health.

State v. Beciraj (see Docket Memo) 2003 ND 171
Docket No.: 20030030
Filing Date: 11/13/2003
Case Type: Appeal - Criminal - Arson
Author: Maring, Mary

Highlight: Obvious errors affecting substantial rights may be addressed on appeal even if the error was not brought to the attention of the trial court.
Obvious error requires an appellant must establish (1) an error, (2) that is plain, which (3) affects substantial rights.
N.D.R.Ev. 404(b) prohibits the use of character evidence except for certain purposes.

Disciplinary Board v. McKechnie (Cross-reference w/ 20020199) 2003 ND 170
Docket No.: 20030153
Filing Date: 11/13/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law when this Court finds clear and convincing evidence of an ethical violation.
An attorney's disciplinary record is properly considered as an aggravating factor when it has been determined an attorney violated an ethical duty.

Akerlind v. Buck, et al. 2003 ND 169
Docket No.: 20030139
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The credibility of witnesses, including expert witnesses, and the weight to be given their testimony, are questions for the trier of fact.
A partnership agreement controls whether partners are entitled to compensation for services provided to the partnership.
A partner breaches a fiduciary duty if the partner fails to keep fiduciary property separate and distinct and uses partnership property for the partner's personal benefit.
Whether a person has breached a fiduciary duty is a finding of fact.

State v. $17,515.00 in Cash Money, et al. 2003 ND 168
Docket No.: 20030008
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: There is no constitutional right to a jury trial in a drug-related forfeiture proceeding.
In a contested drug-related forfeiture proceeding, the State must first show probable cause to believe the property is forfeitable, and then the burden of proof shifts to the claimant to prove by a preponderance of the evidence that the property is not forfeitable.

Reineke v. Reineke 2003 ND 167
Docket No.: 20030014
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property.
The appointment of a custody investigator or a guardian ad litem is committed to the trial court's discretion.

Damron v. Damron 2003 ND 166
Docket No.: 20030135
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A custodial parent's homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence the children's environment endangers or potentially endangers the children's physical or emotional health or impairs the children's emotional development.

Klingenstein v. Klingenstein 2003 ND 165
Docket No.: 20030116
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A judgment awarding spousal support and dividing marital property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Wangler v. Lerol, et al. 2003 ND 164
Docket No.: 20030066
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Waiver and estoppel will not operate to create an insurance contract that never existed.
A Miller-Shugart agreement, consisting of a stipulated confessed judgment against an insured, a covenant not to execute on the judgment, and an assignment of claims, does not eliminate the insured's damages and make the assignment of claims ineffective.
A plaintiff need not replead previously dismissed claims in an amended complaint to preserve the right to appeal the dismissal.

Judicial Vacancy in District Judgeship No. 2, South Central District 2003 ND 163
Docket No.: 20030290
Filing Date: 10/29/2003
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship ordered retained and filled.

Interest of R.F. (CONFIDENTIAL) 2003 ND 162
Docket No.: 20030288
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: At a mental health hearing on a petition for discharge, the burden of proof is the same as at an involuntary treatment hearing.
The petitioner must prove by clear and convincing evidence that the respondent is a person requiring mental health treatment.
A person requiring treatment has the right to the least restrictive means of treatment.

Disciplinary Board v. Hoffman (Consolidated w/ 20030142) 2003 ND 161
Docket No.: 20030141
Filing Date: 10/23/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law for one year when the hearing panel has found clear and convincing evidence of professional conduct violations.
Prior discipline is relevant as an aggravating factor when the prior incidents establish a pattern of misconduct.

Ralston v. Ralston (cross-ref.w/20020184) 2003 ND 160
Docket No.: 20030104
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A custodial parent does not need court approval to move a child out of state when the noncustodial parent has moved from the state before or after the divorce decree and lives more than fifty miles from the residence of the custodial parent.

Ruggles v. Sabe 2003 ND 159
Docket No.: 20030147
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A vested remainderman has an action for waste against a life tenant.

Alerus Financial v. Lamb, et al. 2003 ND 158
Docket No.: 20030106
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Foreclosure
Author: Maring, Mary

Highlight: When a motion for enlargement of time is untimely, a court, in its discretion, may grant an enlargement of time only if the failure to file timely was the result of excusable neglect.
An appellant must show the trial court manifestly abused its discretion to overturn a denial of a new trial based on new evidence.
A deficiency judgment is a judgment against a debtor personally for the unpaid balance after a foreclosure sale or a sale of repossessed property fails to satisfy the full amount of the debt.

State v. Faleide (Consol. w/20030076-20030077) 2003 ND 157
Docket No.: 20030075
Filing Date: 10/23/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A revocation of probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Grewal v. ND Association of Counties, et al. 2003 ND 156
Docket No.: 20030099
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: An employer of an independent contractor is not liable for the acts or omissions of the independent contractor unless the employer retains control of the method, manner, and operative details of the independent contractor's work.

State v. Zephyrin 2003 ND 155
Docket No.: 20020352
Filing Date: 10/23/2003
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal convictions for robbery, felonious restraint, and unauthorized use of a motor vehicle are summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4) and (7).

Iglehart v. Iglehart 2003 ND 154
Docket No.: 20030063
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: Summary judgment is appropriate in a negligence action when the record indicates the defendant did not owe a duty to the plaintiff and was not negligent.

State v. Ballweg (consolidated w/20030052 & 20030053) 2003 ND 153
Docket No.: 20030051
Filing Date: 10/23/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Facts in a search warrant affidavit are not misleading if there was no reckless or deliberate falsity nor omitted information that would have negated probable cause.
A high degree of suspicion attaches to the collective purchase of ingredients and supplies used to manufacture methamphetamine.
The combination of the presence of anhydrous ammonia, the collective purchase of an amount of Sudafed inconsistent with personal use and other supplies used to manufacture methamphetamine, and concealment of a garage creates a substantial basis to conclude probable cause exists to search a premises for a methamphetamine manufacturing operation.

Disciplinary Board v. Edin 2003 ND 152
Docket No.: 20030272
Filing Date: 9/24/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Interest of Z.C.B. (CONFIDENTIAL) 2003 ND 151
Docket No.: 20030046
Filing Date: 9/23/2003
Case Type: Appeal - Criminal - Juvenile Law
Author: VandeWalle, Gerald

Highlight: A minor is not in custody and is not entitled to representation by his parents when he is asked common sense investigatory questions during a routine traffic stop.
When there is an odor of alcohol and a minor states he had a sip of alcohol, there is enough evidence to establish he is a minor in consumption of alcohol under N.D.C.C. 5-01-08.
There is no material distinction between consuming alcohol while driving and having recently consumed alcohol while driving. A petition that charges a minor with consuming alcohol while driving is sufficient to inform a minor of the charges against him and allow him to defend against them.

Torgerson v. Torgerson 2003 ND 150
Docket No.: 20030054
Filing Date: 9/23/2003
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An obligor need not show a material change in circumstances if the motion to modify child support is brought more than one year after entry of the support order.
Income may not be imputed based on underemployment absent adequate evidence of the obligor's gross income from earnings and of the prevailing amounts earned in the community by persons with similar work history and occupational qualifications.
Under current child support guidelines, depreciation is not added back into an obligor's net income to determine support obligations.

United Valley Bank v. Lamb, et al. 2003 ND 149
Docket No.: 20030070
Filing Date: 9/23/2003
Case Type: Appeal - Civil - Foreclosure
Author: Maring, Mary

Highlight: Rule 38, N.D.R.App.P., authorizes the court to award just damages and single or double costs, including attorney's fees for a frivolous appeal.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence during litigation which evidences bad faith.