Opinions

Gosbee v. Martinson, et al. 2005 ND App10
Docket No.: 20050056
Filing Date: 7/6/2005
Case Type: Appeal - Civil - Other
Author:

Highlight: Rule 54(e)(1), N.D.R.Civ.P., which provides that the trial court shall schedule a hearing when objections to costs and disbursements are filed, is mandatory and affords no discretion to the trial court to dispense with the required hearing unless it is expressly waived by the parties.
When a motion is submitted under N.D.R.Ct. 3.2 and oral argument is properly requested, the trial court has no discretion to refuse to hold a hearing.
When a trial court has erroneously failed to provide a required hearing, the appropriate remedy is a remand for a hearing.

Johnson v. State (Consolidated w/20050029) 2005 ND App8
Docket No.: 20050028
Filing Date: 6/30/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An application for post-conviction relief may be denied on the grounds of res judicata and misuse of process.
Whether there has been a manifest injustice supporting withdrawal of a guilty plea lies within the trial court's discretion.
To succeed on a claim of ineffective assistance of counsel, a defendant must prove counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.

Kerzmann v. Burleigh County Social Services 2005 ND App7
Docket No.: 20050076
Filing Date: 6/30/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Per Curiam

Highlight: The district court's dismissal of an attempted appeal because the appeal from an administrative law judge's decision affirming an agency employment termination was not properly perfected under N.D.C.C. 28-32-42 is summarily affirmed.

State v. Bernstein 2005 ND App6
Docket No.: 20040298
Filing Date: 5/26/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: To satisfy the knowledge element of criminal trespass under N.D.C.C. 12.1-22-03(3), the State must prove that the defendant knew or had a firm belief, unaccompanied by substantial doubt, that he was not licensed or privileged to be on the property.
A statement offered to show its effect upon the state of mind of the listener, rather than the truth of the matter asserted, is not hearsay.

State v. Smith 2005 ND App5
Docket No.: 20050004
Filing Date: 5/25/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: The enhanced sentencing language of N.D.C.C. 39-08-01.2(2), requiring at least 90 days incarceration, is invalid and unenforceable when sentencing a defendant found guilty of a class B misdemeanor DUI under N.D.C.C. 39-08-01.

City of Grand Forks v. Barnum 2005 ND App4
Docket No.: 20040323
Filing Date: 5/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: For a process to be a necessary part of the approved method, the State Toxicologist must expressly include it in the approved methodology and make it a part of the requirement for fair administration.
Admission of a checklist other than the one generated in the course of administering a breath test is not a foundational requirement for admissibility of the test result generated in a breath test conducted with an Intoxilyzer 5000 KB-EP and printed on a "Form 106 KB-EP."

Interest of A.K., et al. (Confidential) 2005 ND App3
Docket No.: 20040313
Filing Date: 5/10/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The State must prove the elements for termination of parental rights by clear and convincing evidence.
In determining whether the causes and conditions of deprivation will continue or will not be remedied, there must be prognostic evidence forming the basis for reasonable prediction of continued or future deprivation.

Pautz v. N.B., et al. (Confidential) (cross-ref. w/20040229) 2005 ND App2
Docket No.: 20040340
Filing Date: 4/29/2005
Case Type: Appeal - Criminal - Juvenile Law
Author: Per Curiam

Highlight: The court summarily affirmed an order declaring a child delinquent and placing her in the custody of Division of Juvenile Services for one year.

Ernst v. Tjon 2005 ND App1
Docket No.: 20040373
Filing Date: 4/29/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: A summary judgment dismissing a defamation and libel action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Lang v. State, et al. 2001 ND App2
Docket No.: 20000223
Filing Date: 1/17/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Res judicata, or claim preclusion, prohibits relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies, and which were resolved by final judgment in a court of competent jurisdiction.
Collateral estoppel, or issue preclusion, generally prohibits relitigation in a second action based on a different claim, of issues of fact or law which were, or must have been, determined in the prior suit.
Without citations to relevant authority or supportive reasoning, an argument is without merit.