Opinions

State v. Guthmiller 2002 ND 156
Docket No.: 20020088
Filing Date: 10/15/2002
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: The trial court's forfeiture order is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Disciplinary Board v. Butz 2002 ND 155
Docket No.: 20020210
Filing Date: 10/15/2002
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

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

Interest of R.O. (CONFIDENTIAL) 2002 ND 154
Docket No.: 20020228
Filing Date: 9/20/2002
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: Less than 24 hours notice before an involuntary commitment hearing is inadequate notice to permit preparation for the hearing.

Grad v. Jepson 2002 ND 153
Docket No.: 20020043
Filing Date: 9/20/2002
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The standard of review for a minor child's name change petition is abuse of discretion.
"Proper and reasonable cause" includes consideration of the best interests of the child in the context of a petition to change a minor child's name.

State v. Faleide 2002 ND 152
Docket No.: 20020074
Filing Date: 9/20/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Neumann, William

Highlight: A trial court may not order permanent forfeiture of personal property as a condition of probation.

Johnson v. Johnson (Cross-reference w/990353) 2002 ND 151
Docket No.: 20010288
Filing Date: 9/20/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Because parents have a mutual duty to support their children, failure to award interim child support to the custodian of a child is error as a matter of law.
Use of the Bullock formula to distribute retirement pay is not mandatory.
To award spousal support, the trial court must find the requesting spouse is disadvantaged.

Andes v. Brogdin, et al. 2002 ND 150
Docket No.: 20020047
Filing Date: 9/20/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
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. Keller (CROSS-REF. w/ 20010305, 20020018-20020020) 2002 ND 149
Docket No.: 20010227
Filing Date: 9/9/2002
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Attorney disbarred.

Rose v. United Equit. Ins. Co., et al.(CONSOL.w/20020095) 2002 ND 148
Docket No.: 20020094
Filing Date: 9/3/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: The trial court has broad discretion in determining whether to certify a class action under N.D.R.Civ.P. 23.
Class certification is not automatically precluded by the existence of individual issues which will remain after the common questions of law and fact have been resolved.
To certify a class, the trial court must find that the representative parties will fairly and adequately protect the interests of the class.

Abel v. Allen 2002 ND 147
Docket No.: 20020069
Filing Date: 8/29/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A cause of action accrues when the right to commence it comes into existence, when it can be brought in a court of law without being subject to dismissal for failure to state a claim.
A cause of action for breach of a lease accrues upon the first breach.

Bender, et al. v. Beverly Anne, Inc., et al. 2002 ND 146
Docket No.: 20010280
Filing Date: 8/29/2002
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: Under N.D.R.Civ.P. 60(a), errors in a judgment or order arising from oversights or omission may be corrected by the court at any time of its own initiative or on the motion of any party.
While a prior judgment may be set aside upon a N.D.R.Civ.P. 60(b) motion for relief from a judgment, N.D.R.Civ.P. 60(b) may not be used to impose additional affirmative relief in addition to the relief contained in the prior judgment.

State v. Yineman 2002 ND 145
Docket No.: 20010279
Filing Date: 8/29/2002
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: To challenge a conviction based on the weight of the evidence, a defendant must make an appropriate motion to adequately preserve the issue for appeal.
To preserve the issue of sufficiency of the evidence for review, a defendant in a criminal jury trial must move for a judgment of acquittal under N.D.R.Crim.P. 29, although no motion for a judgment of acquittal is necessary in a bench trial.

Boehm v. Boehm 2002 ND 144
Docket No.: 20010318
Filing Date: 8/29/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The decision to grant or deny a motion for continuance is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
A trial court's marital property valuations within the range of evidence are not clearly erroneous.
In setting the child support obligation, a trial court uses the most recent information available.

State v. Berger 2002 ND 143
Docket No.: 20010303
Filing Date: 8/29/2002
Case Type: Appeal - Criminal - Other
Author: Neumann, William

Highlight: The beginning date of a probationary term is determined by the intent of the sentencing court as expressed in the language that created the probationary status.
A condition of probation capable of more than one construction is to be construed in favor of the offender.

City of Fargo v. Wonder 2002 ND 142
Docket No.: 20010263
Filing Date: 8/29/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Neumann, William

Highlight: When questioning of a suspect does not arise in a "booking" setting, is related to an element of the suspected crime, and is reasonably likely to elicit an incriminating response, the "booking exception" to Miranda does not apply.
The administration of a breath test to determine alcohol consumption is a search.
Only items actually in the record may be included in the appendix on appeal.

Comstock Construction, Inc. v. Sheyenne Disposal, Inc. 2002 ND 141
Docket No.: 20010281
Filing Date: 8/29/2002
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A trial court's denial of a motion for new trial on the basis of sufficiency of the evidence is reviewed under the abuse-of-discretion standard.
N.D.R.Civ.P. 6(e), which authorizes the addition of three days whenever a party has a set period to do an act after service of notice or other paper by mail, applies to the time for commencing and filing an action after a written demand is served on a lienholder.

Mr. G's Turtle Mountain Lodge v. Roland Township, et al. 2002 ND 140
Docket No.: 20010202
Filing Date: 8/23/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: An attempted appeal from a judgment that has been voluntarily paid and formally satisfied of record fails for lack of jurisdiction.
Summary judgment is appropriate when a party fails to establish the existence of a material factual dispute on an essential element of his claim on which he will bear the burden of proof at trial.
A communication is not libelous if the language used is not fairly susceptible of a defamatory meaning.

Grey Bear v. ND Dept. of Human Services, et al. 2002 ND 139
Docket No.: 20010241
Filing Date: 8/23/2002
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: The statutory assignment granted to the Department of Human Services from a recipient of Medicaid benefits is for any third-party recovery a recipient may have for an injury, but is limited to the amount of medical costs provided by the Department for that injury.
A trial court does not abuse its discretion by refusing to delete an amendment to a judgment that was originally requested by the party seeking to delete the amendment.
A trial court lacks personal jurisdiction over a party when the party was neither served with a summons, nor made a voluntary general appearance.

Hoffman v. ND Workers Comp. Bureau, et al. 2002 ND 138
Docket No.: 20010310
Filing Date: 8/22/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: The Workers Compensation Bureau has an obligation to explain its disregard of evidence favorable to a claimant.
A willful failure to give a maximum consistent effort during a functional capacity evaluation can constitute an act of noncompliance with vocational rehabilitation.

U.S. Bank v. Koenig, et al. 2002 ND 137
Docket No.: 20020038
Filing Date: 8/20/2002
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Grants in a deed are interpreted in favor of the grantee, except a reservation in any grant is interpreted in favor of the grantor.
Repugnant words in a deed must be reconciled by interpreting the deed in a manner that gives effect to the repugnant clause subordinate to the general intent and purpose of the deed.

Roe v. Doe (CONFIDENTIAL) 2002 ND 136
Docket No.: 20020016
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Paternity
Author: Maring, Mary

Highlight: Under N.D.R.Civ.P. 60(b)(iv), the burden is on the moving party to show sufficient grounds exist for disturbing the finality of a judgment.
A judgment entered without subject matter jurisdiction is void.
State courts may not exercise jurisdiction over a paternity and support action if state court jurisdiction would infringe on an Indian tribe's right to govern itself.
In general, tribal courts do not have exclusive jurisdiction over claims against tribal defendants that arise outside of the reservation.
To vacate a state court judgment on the paternity of an Indian child, the moving party must show that the state court lacked jurisdiction as a matter of law.

Geinert v. Geinert 2002 ND 135
Docket No.: 20020040
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A modification of child support should generally be made effective from the date of the motion to modify, absent good reason to set some other date. If the trial court sets some later date, it must specifically explain its reasons for doing so.
Imputing income to a child support obligor who has voluntarily changed employment, but is not unemployed or underemployed, is within the discretion of the trial court.

Ziegelmann v. DaimlerChrysler Corp. 2002 ND 134
Docket No.: 20020041
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: An alleged product defect that has not manifested itself in such a way as to cause an observable adverse physical or economic harm does not constitute an injury that will support a class action lawsuit based on theories of negligence, fraud, and deceit.

State v. Keilen (Consolidated w/20020065 through 20020067) 2002 ND 133
Docket No.: 20020064
Filing Date: 8/15/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: While the right to appeal is statutory, statutes conferring the right must be liberally construed.
The State has the burden to show a warrantless search falls within an exception to the warrant requirement.
There is no community caretaking role to fill when there is no disturbance and no one is in need of assistance.

Interest of D.Z. (CONFIDENTIAL) 2002 ND 132
Docket No.: 20020190
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: To show a respondent is a person requiring treatment, the petitioner must prove by clear and convincing evidence that the person is mentally ill and there is a reasonable risk that, if the person is not treated, he poses a serious risk of harm to himself, others, or property.
A person who is found to require involuntary treatment has the right to the least restrictive conditions necessary to achieve the purposes of the treatment.

Howes v. Kelly Services, Inc. 2002 ND 131
Docket No.: 20020014
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: In considering a motion for judgment as a matter of law, a trial court must view the evidence in the light most favorable to the non-moving party and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict.
Once one party files a demand for a nine-person jury, other parties are entitled to rely on that demand for the issues it covers, and they need not file their own demand for a nine- person jury.

State v. Bell 2002 ND 130
Docket No.: 20010311
Filing Date: 8/15/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Expert witnesses may testify when no objection is made as to their expertise and qualifications.
Effective assistance of counsel is not denied when counsel fails to ask for an instruction that no longer applies.

Rush v. ND Workers Comp., et al. 2002 ND 129
Docket No.: 20010282
Filing Date: 8/15/2002
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 that the medical condition for which benefits are sought is causally related to the work injury.

Meide, et al. v. Stenehjem, et al. 2002 ND 128
Docket No.: 20010273
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible.
Extrinsic evidence is considered only if the language of the agreement is ambiguous and the parties' intentions cannot be determined from the writing alone.

New Town Public School Dist. v. State Bd. of Public School Ed. 2002 ND 127
Docket No.: 20020071
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: An administrative agency may deviate from a prior decision if it rationally explains the reason for its departure.
Appellate court gives appreciable deference to agency expertise if the subject matter of agency decision is technical.
A party raising a constitutional claim must provide persuasive authority and reasoning or forego the constitutional challenge entirely.

BeauLac v. BeauLac 2002 ND 126
Docket No.: 20010316
Filing Date: 8/15/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: To find a person in contempt of a prior court order, that person must have had actual notice or knowledge of that order.
Although the courts do not look favorably upon separating siblings in custody cases, a split custody award is not absolutely prohibited where the trial court finds that type of custody arrangement desirable under the circumstances.
Although a trial court should make specific factual findings and conclusions regarding the statutory presumption against awarding custody to a person who has perpetrated domestic violence, specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption.

Sjostrand v. ND Workers Comp., et al. 2002 ND 125
Docket No.: 20010271
Filing Date: 8/15/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The Workers Compensation Bureau's termination of an injured worker's disability benefits for a false claim or false statement, without first providing an opportunity for an evidentiary hearing, does not violate the worker's right to due process of law.
The Bureau's findings on a false claim or false statement must be affirmed if they are supported by a preponderance of the evidence.

Petition to Change Judgeship No. 2 or No. 6 from Valley City to Jamestown 2002 ND 124
Docket No.: 20020057
Filing Date: 8/2/2002
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Petition to move chambers from Valley City to Jamestown denied.

Interest of N.S. (CONFIDENTIAL) 2002 ND 123
Docket No.: 20020145
Filing Date: 7/17/2002
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: The district court order for continuing mental health treatment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Johnson Farms v. McEnroe 2002 ND 122
Docket No.: 20010148
Filing Date: 1/22/2003
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made.

State v. Maurstad (CONSOLIDATED W/20010293) 2002 ND 121
Docket No.: 20010292
Filing Date: 7/16/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Challenges to probationary searches, authorized by a probationer's conditions of probation, are reviewed under the standard of whether the search was reasonable, after examining the totality of the circumstances, including whether the search was performed in a reasonable manner.
Whether a probationary search was conducted as a subterfuge for a criminal investigation is no longer considered.

Lithun, et al. v. DuPaul 2002 ND 120
Docket No.: 20020008
Filing Date: 7/16/2002
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Matrix v. TAG Investments, et al. 2002 ND 119
Docket No.: 20020026
Filing Date: 7/16/2002
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: An order and judgment offsetting the amounts the parties owed each other are summarily affirmed under N.D.R.App.P. 35.1(a)(7), subject to an adjustment of damages and a reduction in costs.

Kautzman v. Kautzman (Cross-ref.w/980004,990328,990386 & 20000083) 2002 ND 118
Docket No.: 20010296
Filing Date: 7/16/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A change of substance that contradicts the transcript of a deposition is impermissible unless it can plausibly be represented as the correction of an error in transcription.

Brandt v. Milbrath 2002 ND 117
Docket No.: 20010294
Filing Date: 7/15/2002
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: Although prior driving behavior may be probative of negligence and comparative negligence, it may be excluded because of a witness's uncertainty as to the identity of the vehicle or driver.
The district court and appellate court apply different standards when considering a motion for a new trial.
When considering a motion for a new trial, based on insufficient evidence, the district court must weigh the evidence and examine the evidence supporting the verdict and the evidence challenging the verdict.
On appeal, the standard for reviewing an order denying a motion for new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict.

State v. Guthmiller (cross-reference 20020088) 2002 ND 116
Docket No.: 20010312
Filing Date: 7/11/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Whether probable cause exists to issue a search warrant is a question of law, and on appeal, the sufficiency of information before the magistrate is reviewed based on the totality of the circumstances.
For a home search warrant, the evidence before the magistrate must show a nexus between the home and the contraband sought.

Piatz, et al. v. Austin Mutual Ins. Co. 2002 ND 115
Docket No.: 20010082
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Insurance
Author: Neumann, William

Highlight: When the record on appeal does not allow for a meaningful and intelligent review of an alleged error, we will decline to review the issue.
An insurance company does not waive its defenses regarding the reasonableness and necessity of continued treatment by initially paying no-fault benefits.
A witness need not be licensed in a particular field to be an expert, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field.

Shaw v. Shaw 2002 ND 114
Docket No.: 20010268
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A child support obligor is entitled to an adjustment of a child support obligation for extended visitation if the trial court orders visitation or custody for the obligor parent that exceeds sixty out of ninety consecutive nights.

Nodak Mutual Ins. Co., et al. v. Stegman, et al. (Cross-Ref w/20000074) 2002 ND 113
Docket No.: 20010225
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: An acknowledgment of satisfaction of judgment must be notarized or otherwise witnessed and authenticated.
A person who does not regain consciousness after an accident and does not suffer conscious pain and suffering may bring a personal injury action against the tortfeasor for other damages, and therefore is an "injured person" under the hospital lien statute, N.D.C.C. 35-18-01.
A hospital lien attaches immediately upon rendering of medical services to a person injured in an accident.
A valid hospital lien has priority over claims of other creditors, and the hospital is entitled to collect the full amount of its lien from the tortfeasor's insurance without equitable allocation with other creditors' claims.

Phipps v. ND Dept. of Transportation 2002 ND 112
Docket No.: 20020055
Filing Date: 7/11/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: A chemical test is performed when a breath, blood, or urine sample is taken and preserved for analysis.
Performance of a chemical test does not ensure the admissibility of the test results.
A chemical test performed exactly two hours after driving is performed within two hours of driving.

Interest of R.K. (CONFIDENTIAL) 2002 ND 111
Docket No.: 20020013
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: The definition of a deprived child is broad enough to include a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing parental care for the child.
In making a custody disposition under the Uniform Juvenile Court Act, the court has considerable latitude but must rule consistent with the purpose of the Act to provide for the care of the child in a family environment whenever possible, separating the child from a parent only when necessary for the child's welfare or in the interest of public safety.

Sevland v. Sevland 2002 ND 110
Docket No.: 20010231
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Supervised visitation is not required unless there is a serious bodily injury, use of a dangerous weapon, or a pattern of domestic violence.
The visitation statute is not designed to place into the hands of children power over the occurrence, length, time, or place of the visits.

Mayer v. Mayer 2002 ND 109
Docket No.: 20020036
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order refusing to vacate a stipulated divorce decree is summary affirmed under N.D.R.App.P. 35.1(a)(4).

Larson v. McMorrow 2002 ND 108
Docket No.: 20020042
Filing Date: 7/11/2002
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: The district court's issuance of a domestic violence protection order is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Taylor 2002 ND 107
Docket No.: 20010306
Filing Date: 7/11/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).