Opinions

Sweeney v. Sweeney 2002 ND 206
Docket No.: 20010129
Filing Date: 12/20/2002
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A trial court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal.
The word "shall" in N.D.C.C. 14-09-06.5 and 14-09-24 creates a mandatory duty, and, if requested by a party, a trial court must award costs and reasonable attorney's fees if there has been a false allegation of abuse of child which was not made in good faith or if there has been a willful and persistent denial of visitation rights by a custodial parent.
A trial court may not suspend a noncustodial parent's child support obligation as an offset against amounts owed by the custodial parent for interfering with visitation.

Gawryluk v. Poynter, et al. 2002 ND 205
Docket No.: 20020121
Filing Date: 12/20/2002
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: The Duhig rationale applies to a grantor's overconveyance of mineral interests, and if the grantor does not own enough mineral interests to satisfy the conveyance, the conveyance is construed as a transfer of all the grantor's mineral interests.

Grand Forks Professional Baseball, Inc., et al. v. Workers Comp. 2002 ND 204
Docket No.: 20020093
Filing Date: 12/20/2002
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: An officer or director of a corporation can be held personally liable for unpaid worker's compensation insurance premiums even though that officer or director does not own stock in the corporation.

State v. Boyd 2002 ND 203
Docket No.: 20020136
Filing Date: 12/20/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A community caretaking encounter does not involve detecting, investigating, or acquiring evidence related to a potential legal violation.
The test to determine whether an officer had a reasonable and articulable suspicion to justify an investigatory stop is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.

State v. Bingaman (cross-reference w/20020134) 2002 ND 202
Docket No.: 20010287
Filing Date: 12/20/2002
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: To prove obvious error, a party must show (1) error, (2) which is plain, and (3) that affects substantial rights.

Wanner v. N.D. Workers Comp. Bureau 2002 ND 201
Docket No.: 20020080
Filing Date: 12/20/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: While a failure to report income from work is material to the Bureau's ability to determine a claimant's entitlement to benefits and to calculate the amount of benefits, a failure to report money received apart from work is not similarly material
Absent a statutory or administrative definition of "work," an ordinary person would reasonably expect to have to report as work only activities performed in regular employment by others for remuneration, or showing an ability to regularly perform a gainful occupation, and would not ordinarily expect to have to report casual activities not done for remuneration and not performed for an employer.

State v. Hernandez 2002 ND 200
Docket No.: 20020123
Filing Date: 12/20/2002
Case Type: Appeal - Criminal - Sexual Offense
Author:

Highlight: Judgment entered on defendant's guilty plea to gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of G.H. 2002 ND 199
Docket No.: 20020337
Filing Date: 12/20/2002
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order requiring treatment at the State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mohamed 2002 ND 198
Docket No.: 20020130
Filing Date: 12/20/2002
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: Conviction of child abuse and neglect is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Disciplinary Board v. Sundby 2002 ND 197
Docket No.: 20020340
Filing Date: 12/11/2002
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Larson v. Larson 2002 ND 196
Docket No.: 20020129
Filing Date: 12/10/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: A motion to reconsider an order disposing of a time-tolling, post-trial motion does not extend the time to file a notice of appeal.

Greybull v. Harlan 2002 ND 195
Docket No.: 20020204
Filing Date: 12/6/2002
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Denial of motion to reduce child support payment summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Giese v. Giese 2002 ND 194
Docket No.: 20020168
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A party cannot demand a change of judge under N.D.C.C. 29-15-21 when the assigned judge has ruled upon any matter pertaining to an action or proceeding in which the demanding party was heard or had an opportunity to be heard.
In deciding whether to award attorney fees to a party in a divorce case, the court may consider whether one party's actions have unreasonably increased the time and effort spent on the dispute.

State v. Jones 2002 ND 193
Docket No.: 20020118
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A defendant charged with a felony has a right to a preliminary hearing and, if assisted by counsel, can waive this right.
A defendant must prove alleged false statements in an affidavit in support of a search warrant were made knowingly and intentionally, or with reckless disregard for the truth.
A motion to dismiss based on official misconduct is properly denied when there was no evidence to support any act of misconduct by the prosecutor.

Ramsey Co. Social Serv. Bd., et al. v. Kamara 2002 ND 192
Docket No.: 20020174
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When seeking modification of a child support order within one year of its entry, the party seeking modification must establish that a material change of circumstances has occurred.
Income for incarcerated persons may be imputed at the minimum wage.

Interest of F.R.S. 2002 ND 191
Docket No.: 20020189
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Skorick 2002 ND 190
Docket No.: 20020090
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A trial court errs when it permits witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses despite a request for sequestration. The error may be harmless when the testimony by the rebuttal witness did not affect the defendant's substantial rights.
The control and scope of opening and closing arguments is largely a matter left to the discretion of the trial court, and a case will not be reversed on the ground that the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown.

State v. Dunn 2002 ND 189
Docket No.: 20020154
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Persons have a reasonable privacy expectation in their personal property, which is protected by the Fourth Amendment proscription against unreasonable search and seizure.
A warrantless search or seizure of personal property that has been abandoned does not violate the Fourth Amendment. Abandonment is a question of fact.

Interest of D.Q., et al. (Confidential) (Consolidated w/20020079) 2002 ND 188
Docket No.: 20020078
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Juvenile Law
Author: VandeWalle, Gerald

Highlight: A district court's review of a judicial referee's findings and recommendations under Administrative Rule 13, section 11(b), when it is a review of the record, is governed by N.D.R.Civ.P. 53, and the district court is obliged to accept the referee's findings unless they are clearly erroneous.

Walker v. Walker 2002 ND 187
Docket No.: 20020062
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Use of the Bullock formula to distribute retirement pay is not mandatory if the overall distribution of marital property is equitable.
A property distribution may include offsetting monetary awards when it is impractical or unsound to liquidate essentially nonliquid assets.
In awarding spousal support, the trial court must balance the income and needs of the disadvantaged spouse against the supporting spouse's needs and ability to pay support.
Under appropriate circumstances, termination of temporary spousal support payments may be conditioned upon the supporting spouse's retirement, when the disadvantaged spouse has been awarded a portion of the supporting spouse's monthly retirement benefits.

Myhre v. ND Workers Comp. 2002 ND 186
Docket No.: 20020083
Filing Date: 12/4/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant seeking benefits from the workers compensation fund must establish by a preponderance of the evidence a causal relationship between her employment and the medical condition for which benefits are sought.
To have a "compensable injury" under N.D.C.C. 65-01-02(11)(b)(7), a claimant must show the employment substantially accelerated the progression or substantially worsened the severity of a preexisting injury, disease, or other condition.

Hamilton v. Oppen, et al. 2002 ND 185
Docket No.: 20020045
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Averaging individual jurors' estimates of percentages of fault is not improper in a quotient verdict, but the jurors' prior agreement to be bound by the result of the computation invalidates the verdict.
The trial court's responsibility is to make certain expert testimony is reliable as well as relevant.
Relevant photographs may be excluded from evidence if their probative value is substantially outweighed by the danger of unfair prejudice.

Jensen v. State 2002 ND 184
Docket No.: 20020166
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Robinson 2002 ND 183
Docket No.: 20020070
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Defendant's sentence for accomplice to attempted murder is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Asbridge 2002 ND 182
Docket No.: 20020271
Filing Date: 11/21/2002
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for 30 days.

Jacobson v. Garaas (Consolidated w/ 20020113) 2002 ND 181
Docket No.: 20020103
Filing Date: 11/15/2002
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A petition for discipline is sufficient if it places the attorney on notice of the nature of the allegations against him.
A lawyer's free speech rights are extremely limited in the courtroom during judicial proceedings. Sanctioning a lawyer for disruptive, belligerent, and disrespectful in-court statements does not violate his right to free speech.

Intel-Foods Corporation v. Alexander, et al. 2002 ND 180
Docket No.: 20020112
Filing Date: 11/15/2002
Case Type: Appeal - Civil - Corporations
Author: Per Curiam

Highlight: An order denying a motion for a new trial on the basis of newly discovered evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Wilson v. Koppy 2002 ND 179
Docket No.: 20020161
Filing Date: 11/5/2002
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: Mandamous is not available when there is another remedy at law.

Adoption of S.A.L. (CONFIDENTIAL) 2002 ND 178
Docket No.: 20020027
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: A parent can effectively waive the right to court-appointed counsel in a parental termination proceeding. An effective waiver must be a voluntary, knowing, and intelligent relinquishment of the benefits of counsel.

Obrigewitch v. Director, N.D. Dept. of Transportation 2002 ND 177
Docket No.: 20020164
Filing Date: 11/5/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Probable cause to arrest a person for being in actual physical control of a vehicle while under the influence of intoxicating liquor can exist without establishing the location of the ignition key.
Continually avoiding or ignoring a police officer's request to submit to a blood alcohol test can be a refusal to submit to a chemical test.

State v. Aune 2002 ND 176
Docket No.: 20020106
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - Other
Author: Neumann, William

Highlight: A trial court may order a condition of probation requiring the probationer to stay away from a specific place.

Larson v. Norkot Manufacturing, et al. 2002 ND 175
Docket No.: 20020058
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: For a cause of action for an attorney's legal malpractice, there must be damages to the client proximately caused by the attorney's breach of a duty to the client; the statute of limitations does not begin to run until the client has incurred some damages from the alleged malpractice; and the statute of limitations is tolled until the client knows, or with reasonable diligence should know, of the injury, its cause, and the defendant attorney's possible negligence.

Meljie v. ND Workers Comp. Bureau 2002 ND 174
Docket No.: 20020158
Filing Date: 11/5/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: For determining a worker's average weekly wage for receiving a disability benefit, "seasonal employment" includes an occupation that has periods of forty-five consecutive days of not receiving wages.
Under the 1997 version of N.D.C.C. 65-05-09, a disabled employee is entitled to a weekly benefit equal to two-thirds of the employee's gross weekly wage, subject to a minimum of sixty percent of the state's average weekly wage, but not to exceed one-hundred percent of the employee's preinjury net weekly wage, after deducting social security and federal income tax.

Hilgers v. Hilgers 2002 ND 173
Docket No.: 20010208
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A decision to appoint a guardian ad litem for a child is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
The trial court errs by not deciding the issue of visitation when both parties present requests for modification that are different from the existing visitation provisions.
The standard of review for the effective date of a child support modification is abuse of discretion. The burden is on the obligor to present sufficient documentation of income to justify a modification.
A party seeking custody modification is entitled to an evidentiary hearing if the party provides sufficient evidence that a material change in circumstances has occurred since the prior order and modification is necessary to serve the best interests of the child.

State v. Fontaine 2002 ND 172
Docket No.: 20020135
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Conviction for simple assault of a correctional officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Leher 2002 ND 171
Docket No.: 20020085
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A police officer approaching a stopped vehicle and inquiring in a conversational manner whether the occupant is okay or needs assistance is not a Fourth Amendment seizure. An officer directing a citizen to exit a parked vehicle, or otherwise ordering a citizen to do something may be a Fourth Amendment seizure.

State v. Fitterer 2002 ND 170
Docket No.: 20020076
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Neumann, William

Highlight: Moving papers for a motion to suppress evidence require neither exceptional particularity nor supporting affidavits or other evidence, but must provide adequate notice to the trial court and the prosecution of the issues being raised.
At a motion to suppress hearing, the initial burden is the defendant's to show a prima facie case.

State v. Rohde (consolidated w/20020030-20020033) 2002 ND 169
Docket No.: 20020029
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Appeal from a conviction for driving under suspension or revocation, driving without liability insurance, and driving while under the influence of intoxicating liquor is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Hemmesch v. Bonebrake 2002 ND 168
Docket No.: 20020119
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division, temporary spousal support award, and refusal to award attorney fees is summarily affirmed, as modified, under N.D.R.App.P. 35.1(a)(2) and (4).

Johnson v. ND Dept. of Transportation 2002 ND 167
Docket No.: 20020141
Filing Date: 11/5/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: License suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Whiteman v. State 2002 ND 166
Docket No.: 20020163
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Trial court judgment dismissing a petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Judicial Conduct Commission v. Berg 2002 ND 165
Docket No.: 20020302
Filing Date: 11/4/2002
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: Former municipal judge censured and prohibited from serving in the future as a municipal judge.

Interest of K.S. and A.S. (CONFIDENTIAL) 2002 ND 164
Docket No.: 20010315
Filing Date: 10/15/2002
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Neumann, William

Highlight: To terminate parental rights under N.D.C.C. 27-20-44(1)(b)(1), the juvenile court must find clear and convincing evidence that: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm.

State v. Jones 2002 ND 163
Docket No.: 20020104
Filing Date: 10/15/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: Without a showing of excusable neglect, a trial court's denial of a request for an extension of time to file a notice of appeal is not an abuse of discretion.

Kimball v. Landeis, et al. 2002 ND 162
Docket No.: 20020100
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Summary judgment is not appropriate in a negligence action if the disputed facts and permissible inferences from those facts are such that reasonable persons could reach different conclusions from those facts and inferences.
Under N.D.R.Civ.P. 4(b)(2)(c), personal service upon an individual for whom a guardian has been appointed is accomplished by serving the individual's guardian.
Absent valid service of process, actual knowledge of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant.
For equitable tolling of a statute of limitations, a plaintiff must have several legal remedies and reasonably and in good faith pursue one of the remedies, thereby tolling the limitation for the other remedies.

Gross v. N.D. Dept. of Human Services 2002 ND 161
Docket No.: 20020086
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A decision by the Department of Human Services to place a medicaid recipient in the lock-in program is an appealable order.

Huntress, et al. v. Griffey 2002 ND 160
Docket No.: 20020063
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When the trial court's findings of fact are inadequate, an appellate court is unable to properly review the trial court's decision.

Quamme v. Bellino 2002 ND 159
Docket No.: 20020024
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: When there has been an initial award of spousal support, the district court retains jurisdiction to modify the award at least as long as the spousal support continues.
The party seeking a change of spousal support bears the burden of showing a material change in circumstances warranting a modification.
Absent modifying language in the support award, the obligee is entitled to spousal support from the obligor's estate if the obligor predeceases the obligee.

Argenziano v. State 2002 ND 158
Docket No.: 20020101
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Summary judgment dismissing a breach of contract claim is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).

J.B. v. M.R. (CONFIDENTIAL) 2002 ND 157
Docket No.: 20020072
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Paternity
Author:

Highlight: Custody judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).