Opinions

Berger v. ND Workers Comp. et al. 2000 ND 224
Docket No.: 20000153
Filing Date: 12/27/2000
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: An owner of a business is not entitled to workers compensation benefits without securing optional coverage.
In determining whether a claimant was an employee or an owner when he was injured, the rules for determining whether a person is an independent contractor or an employee, do not apply, and the Bureau may consider other evidence or factors.

State v. Helmenstein 2000 ND 223
Docket No.: 20000062
Filing Date: 12/27/2000
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Voluntariness of a confession is determined by the totality of the circumstances, focusing on the characteristics and condition of the accused at the time of the confession, as well as the details of the setting in which the confession was obtained.
Miranda warnings are required when a person is in custody and is interrogated. Custody is a mixed question of law and fact and is fully reviewable on appeal.
The requirement of bringing a person before a magistrate without unnecessary delay is a factor to consider in evaluating the voluntariness of a confession. Unnecessary delay depends upon the circumstances of each case.
A change of venue rests in the sound discretion of the trial court and will not be reversed absent an abuse of discretion. A defendant challenging a denial of a change of venue must establish prejudice or establish that a fair and impartial jury could not be empaneled.

Interest of C.R.H. (CONFIDENTIAL) 2000 ND 222
Docket No.: 20000228
Filing Date: 12/21/2000
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: In terminating parental rights under N.D.C.C. ch. 27-20 the trial court has no authority to make the termination contingent on the terminated parents receiving visitation rights upon the child's adoption.

Disciplinary Board v. Keller 2000 ND 221
Docket No.: 20000225
Filing Date: 12/21/2000
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Once objections are filed by an attorney to a hearing panel's findings and recommendations, the appropriate procedure to address a claim of lack of notice of order for default is to move the Supreme Court to remand the matter to the Hearing Panel for consideration of a motion to vacate.

Superpumper, Inc. v. Nerland Oil (Cross-reference w/970307) 2000 ND 220
Docket No.: 20000103
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The automatic bankruptcy stay applies to actions against a non-debtor codefendant where there is such an identity between the debtor and the codefendant that the debtor is the real party defendant and a judgment against the codefendant is, in effect, a judgment against the debtor.

Pfeifle v. Tanabe 2000 ND 219
Docket No.: 20000134
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A lessee may terminate a lease and vacate the premises when the lessor fails to secure quiet possession of the premises within a reasonable time, considering the cumulative effect of long-standing and continuous problems.
Before vacating premises, a lessee must give notice to a lessor by requests to repair dilapidations or to secure quiet possession of leased property; however, such notice need not be in writing.
A lessee does not waive a right to terminate a lease by remaining in possession for a period after alleged problems occurred, when the problems continued throughout the period and the lessee repeated complaints and requests for repairs during the period.

Davenport v. State 2000 ND 218
Docket No.: 20000148
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.

Redfield v. Bitterman, et al. (CONSOLIDATED W/20000162 & 20000181) 2000 ND 217
Docket No.: 20000107
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Absent an abuse of discretion, the supreme court will not set aside a trial court's order on a motion for an extension of time to appeal, based upon excusable neglect.
Section 50-24.1-07, N.D.C.C., does not authorize recovery of medical assistance benefits from the estate of a recipient's spouse who predeceases the recipient, beyond assets to which the recipient had a legal title or interest.

Mondry v. Mondry 2000 ND 216
Docket No.: 20000207
Filing Date: 12/21/2000
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Judgment valuing and distributing marital property and awarding attorney fees is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4).

State v. Lee 2000 ND 215
Docket No.: 20000171
Filing Date: 12/21/2000
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgment of conviction for the felony offense of bail jumping is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Lawrence v. Delkamp (CONSOLIDATED W/20000151) 2000 ND 214
Docket No.: 20000061
Filing Date: 12/12/2000
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Under N.D.C.C. 14-09-06.2(1)(j), threats can constitute domestic violence for purposes of restricting visitation only if they constitute the infliction of fear of imminent physical harm.

Matrix Properties, Corp. v. TAG Investments, et al. (cross-ref. w/990336) 2000 ND 213
Docket No.: 20000192
Filing Date: 12/12/2000
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court's post-judgment order summarily affirmed under N.D.R.App.P. 35.1 (a)(1).

State v. Glass 2000 ND 212
Docket No.: 20000126
Filing Date: 12/12/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: DUI is a strict liability offense for which a jury instruction on culpability is not required.
Failure to preserve an objection or make an offer of proof precludes a later assertion of error unless a defendant establishes obvious error affecting the defendant's substantial rights. Obvious error is recognized only with extreme caution.

Syvertson v. Malaktaris, et al. 2000 ND 211
Docket No.: 20000146
Filing Date: 12/11/2000
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment dismissing a complaint under Rule 12(b), N.D.R.Civ.P., is summarily affirmed under N.D.R.App.P. 35.1.

Nodak Mutual Farm Bur. v. Kosmatka, et al. 2000 ND 210
Docket No.: 20000213
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: N.D.R.Civ.P. 54(b) allows final judgment adjudicating fewer than all claims or the rights and liabilities of fewer than all parties in multiparty litigation.
Rule 54(b) certification requires a showing of extraordinary circumstances or that unusual hardship will result in the absence of review.
Rule 54(b) certification is improper when subsequent proceedings in the trial court may render the appellate review moot.

Schultze v. Continental Ins. Co. 2000 ND 209
Docket No.: 20000135
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: When several claims are made against an insured, an insurer has a duty to defend the entire lawsuit if there is potential liability or a possibility of coverage for one of the claims.

Interest of W.E., et al. (CONFIDENTIAL)(Consolidated w/20000079 & 20000080) 2000 ND 208
Docket No.: 20000078
Filing Date: 12/7/2000
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: To terminate parental rights, a three-part test must be satisfied by clear and convincing evidence: (1) the child is deprived; (2) the conditions and causes of deprivation are likely to continue; and (3) the child is suffering or will suffer serious physical, mental, moral, or emotional harm.
Review of a termination proceeding is similar to a trial de novo, with appreciable weight afforded to the juvenile court's decision.

Jones v. Barnett 2000 ND 207
Docket No.: 20000140
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An action to rescind a quitclaim deed is barred by the statute of limitations when the seller fails to submit evidence she did not discover until years later she had been fraudulently induced to convey the property, when her own pleadings indicate knowledge of material facts accruing beyond the six-year limit for fraud claims.
The statute of frauds invalidates oral contracts for an interest in real property, and a contract action based on an alleged contract collateral to a quitclaim deed is barred by the statute of limitations when the alleged contract was executed beyond the six-year limit for contract actions.

Berlin v. State 2000 ND 206
Docket No.: 20000076
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, the defendant must prove the counsel's performance was deficient and the deficient performance prejudiced the result.
An application for post-conviction relief may be denied for misuse of process if the applicant presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding.

State v. Gleeson 2000 ND 205
Docket No.: 20000084
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: When there is sufficient doubt concerning a defendant's competency, a trial court must on its own motion conduct a hearing to determine whether the defendant is competent to stand trial.
Inconsistent testimony at trial and confusion regarding administrative and criminal proceedings do not create a sufficient doubt of a defendant's competency so as to warrant a hearing on the issue.

Mayo v. Mayo 2000 ND 204
Docket No.: 20000032
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.

Logan v. Bush 2000 ND 203
Docket No.: 20000090
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Erickstad (CONSOLIDATED W/20000051 and w/20000052 & 20000053)) 2000 ND 202
Docket No.: 20000050
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue for adverse pretrial publicity must demonstrate a reasonable likelihood of prejudice so pervasive that it is impossible to impanel a fair and impartial jury.
When a party fails to object to a proposed instruction, fails to specifically request an instruction, or fails to object to omission of an instruction, the issue is not adequately preserved for appellate review and inquiry is limited to whether the jury instructions as given constitute obvious error.
Evidence of value of a vehicle from the Kelley Blue Book Internet website may be admissible under the market report or commercial publication hearsay exception, N.D.R.Ev. 803(17).

Mathre v. State 2000 ND 201
Docket No.: 20000097
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Defense counsel should consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury, but failure to do so is not always ineffective assistance of counsel.
A defendant alleging ineffective assistance of counsel has a heavy burden to demonstrate her counsel's representation fell below an objective standard of reasonableness and she was prejudiced by counsel's deficient performance.

O'Neill v. O'Neill 2000 ND 200
Docket No.: 20000091
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A movant seeking change of custody, who brings allegations, supported by affidavit, demonstrating a custodial environment which may be endangering the childrens' physical or mental health, presents a prima facie case entitling the movant to an evidentiary hearing.
If the allegations of a movant seeking a modification of child custody are so unfounded and unsupported as to render them false and not made in good faith, the court can award costs and reasonable attorney fees.

State v. Gehring 2000 ND 199
Docket No.: 20000114
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denial of a suppression motion and judgment entered on a conditional guilty plea are summarily affirmed. N.D.R.App.P. 35.1(a)(2).

State v. Lunstad 2000 ND 198
Docket No.: 20000113
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of surreptitious intrusion summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Wilson 2000 ND 197
Docket No.: 20000101
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Judgment of conviction for crime of accomplice to assault is summarily affirmed under N.D.R.App.P. 35.1(a) (3) and (7).

ND Workers Comp. Bureau, et al. v. General Investment Corp., et al. 2000 ND 196
Docket No.: 20000116
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Maring, Mary

Highlight: Section 38-09-01, N.D.C.C., generally reserves fifty percent of all oil, natural gas, or minerals whenever the State transfers land owned by the State.
The Workers Compensation Bureau may adjust or compromise claims upon defaults in the payment of premiums or premium installments.
A quitclaim deed executed by the State reflecting a compromise and a settlement releasing the Workers Compensation Bureau's doubtful claim to land, and does not reflect a sale resulting in a transfer of land.

Schumacher v. Schumacher (Cross-ref. w/990016) 2000 ND 195
Docket No.: 20000155
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Spousal support and child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Robb (Cross-reference w/ 20000096) 2000 ND 194
Docket No.: 20000259
Filing Date: 11/1/2000
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Attorney ordered disbarred.

Lake Region Lutheran Home, Inc. v. Halvorson, et al. 2000 ND 193
Docket No.: 20000120
Filing Date: 11/1/2000
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An appeal from a trial court's judgment dismissing a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) (the trial court did not abuse its discretion).

Center Mutual Insurance Co. v. Thompson 2000 ND 192
Docket No.: 20000118
Filing Date: 10/31/2000
Case Type: Appeal - Civil - Insurance
Author: Neumann, William

Highlight: Terms of an insurance policy are given their ordinary, usual, and commonly accepted meaning.
The absence of a definition in an insurance policy in and of itself does not establish ambiguity or mean the issue is automatically resolved in favor of the insured.
The existence of an employment relationship is ordinarily a question of fact.

Belisle v. Gibson, et al. 2000 ND 191
Docket No.: 20000125
Filing Date: 10/31/2000
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: The trial court's denial of a motion for a new trial and its judgment entered on a jury verdict finding defendants not liable in a personal injury action are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Kautzman v. Kautzman (Cross ref. w/980004, 990328 & 990386) 2000 ND 190
Docket No.: 20000083
Filing Date: 10/30/2000
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: When a party executes on a money judgment to secure a division of property, the debtor is not entitled to an exemption for life insurance policies or annuities.
A trial court may enforce an equitable lien by whatever means appropriate to do justice between the parties.
If a party cannot demonstrate prejudice resulting from an allegedly defective notice, there is no right to redress.

Farstveet, et al. v. Rudolph, et al. 2000 ND 189
Docket No.: 20000044
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Abandonment of the homestead must be established by clear and convincing evidence that the debtor voluntarily departed from the homestead and left without the intent to return and occupy it as a home.
A creditor cannot set aside as fraudulent a transfer of homestead property that the debtor could have claimed as exempt.
Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Uniform Fraudulent Transfer Act and is not subject to a fraudulent transfer.

State v. Loh 2000 ND 188
Docket No.: 20000095
Filing Date: 10/26/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: An officer has probable cause justifying a vehicle stop, based on evidence of a traffic violation, which is not invalidated when an officer subjectively suspects another offense.
Following a vehicle for five miles before initiating an investigatory stop does not invalidate the probable cause justifying the vehicle stop.

Schaefer, et al. v. Souris River Telecom., et al. 2000 ND 187
Docket No.: 20000011
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: A stipulation as to foundation does not eliminate a trial court's discretion to reject evidence on grounds of relevance.
Allowing a party to read the deposition of an opposing party's witness into evidence is not necessarily an abuse of discretion.
Denying a motion for new trial brought on the ground a party abused discovery by failing to provide a document relating to liability is not an abuse of discretion when liability is not at issue in the trial.

City of Jamestown v. Dardis (CONSOLIDATED W/ 20000110) 2000 ND 186
Docket No.: 20000109
Filing Date: 10/26/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Absent one of the exceptions to the warrant requirement at the time of the entry, evidence gained in violation of the Fourth Amendment's protections against unreasonable searches and seizures is inadmissible under the exclusionary rule.
To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent.
Opening the door widely with the knowledge a police officer is on the threshold is not sufficient affirmative conduct to constitute consent.

Syvertson v. State 2000 ND 185
Docket No.: 20000100
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A request for oral argument is incomplete if the requesting party fails to secure a time for oral argument.
A post-conviction relief application is denied if all issues were either fully and fairly determined in a direct appeal or petitioner inexcusably failed to raise them in that appeal.
Petitioner for post-conviction relief is not entitled to a new judge upon his application for post- conviction relief.

City of Mandan v. Leno 2000 ND 184
Docket No.: 20000104
Filing Date: 10/26/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: The limited statutory right of a person arrested for driving while under the influence of intoxicating liquor to a reasonable opportunity to consult with an attorney attaches after arrest.

Anderson v. Resler 2000 ND 183
Docket No.: 19990254
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Burlington Northern, et al. v. Benson Co. Water (Cons. w/990369-373;990378-380) 2000 ND 182
Docket No.: 19990368
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Fandrich, et al. v. Wells Co. Bd. of Co. Comm., et al. 2000 ND 181
Docket No.: 20000054
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: While a court may issue a writ of mandamus ordering a government entity to comply with applicable law, it cannot control the government entity's discretion in determining the methods to be used in complying with the law.
Political subdivisions have no duty to provide perfect drainage.
When each party prevails on some issues, there is no single prevailing party against whom disbursements may be taxed.

Schuh, et al. v. Weiss, et al. 2000 ND 180
Docket No.: 20000161
Filing Date: 10/26/2000
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment awarding damages for cost of repair and loss of use and enjoyment of real property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mora 2000 ND 179
Docket No.: 19990377
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

State v. Haverluk 2000 ND 178
Docket No.: 20000077
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A law enforcement officer may conduct a limited search of a vehicle's interior if there is a reasonable suspicion of danger to the officer.
A law enforcement officer may search a vehicle's interior incident to a lawful arrest as long as the search is contemporaneous with the arrest. A search incident to arrest is not invalid simply because the search preceded the arrest as long as the arrest quickly followed the search and the fruits of the search were not needed for probable cause to arrest.

State v. Ellis (cross reference 2000092) 2000 ND 177
Docket No.: 20000006
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant who seeks a new trial because voir dire has not been transcribed must first request transcription of the voir dire on the record. Failure to make a request for transcription on the record precludes a defendant from later asserting error.
A defendant requesting a change of venue has the burden of showing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found.
Denial of change of venue will not be reversed unless the trial court abused its discretion.

City of Fargo v. Doty 2000 ND 176
Docket No.: 20000020
Filing Date: 10/3/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Jury verdict of guilty on the charge of reckless driving summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3), (4), and (7).

Rott v. ND Department of Transportation 2000 ND 175
Docket No.: 20000112
Filing Date: 10/3/2000
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: A statute providing for the cancellation of a minor's driver's license upon accumulation of a point total in excess of five points is not applied retroactively when the offense triggering the cancellation occurs after the effective date of the statute. Enactment of the statute does not change the status of the minor's driver's license so as to require notification of the statute's enactment.