Opinions

Makelky v. Makelky 2011 ND 149
Docket No.: 20100406
Filing Date: 7/25/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

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

Mertz v. City of Elgin 2011 ND 148
Docket No.: 20110054
Filing Date: 7/21/2011
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The decision of a local governing body must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not evidence to support its decision.
The interpretation of a zoning ordinance is governed by the rules of statutory construction.
The interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.

State v. Starke (Consolidated w/20100327) 2011 ND 147
Docket No.: 20100062
Filing Date: 7/18/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant is entitled to a jury instruction on an ordinary defense for which credible evidence has been introduced. The jury must find that the State has proved the non-existence of this defense beyond a reasonable doubt in order to convict.
Under the defense of premises statute, "trespass" is not confined merely to uninvited entrants, but include the unlawful remaining in the premises of another.
The use of force in defending one's premises must be reasonable under the circumstances.

Wahl v. Northern Improvement Company, et al. 2011 ND 146
Docket No.: 20100295
Filing Date: 7/18/2011
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: A district court has broad discretion over the presentation of evidence and the conduct of trial.
The factors used to determine the reasonableness of attorney fees should be used as guidelines to determine whether expert witness fees are reasonable.

Glass v. Glass 2011 ND 145
Docket No.: 20100260
Filing Date: 7/15/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A material change of circumstances can occur if a child's environment may endanger the child's physical or emotional health, or impair the child's emotional development.
Cases that are "close calls" may result in a change of primary residential responsibility when other considerations are weightier than the custodial stability factor.
A party challenging the denial of a request for continuance must show prejudice resulted from the denial.

Estate of Vestre 2011 ND 144
Docket No.: 20100400
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A trial court has broad discretion to grant relief from the waiver of the right to a jury trial.
If a case goes to trial after a motion for summary judgment is denied, the question whether the trial court erred in denying summary judgment is moot; the appropriate question on appeal is whether the trial court erred in denying the movant's subsequent motion for judgment as a matter of law.
To establish undue influence, the person challenging the will must prove: 1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence.

State v. Gonzalez 2011 ND 143
Docket No.: 20110051
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Appellate review of a sentencing court's decision is confined to whether the sentencing court acted within the limits prescribed by statute or substantially relied on an impermissible factor.

Interest of D.J. (CONFIDENTIAL) 2011 ND 142
Docket No.: 20100403
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A juvenile court may require production of court-ordered reports or evaluations for purposes of making necessary findings on the requirements for a juvenile to register as a sexual offender.

State v. Kleppe (consolidated w/20110029) 2011 ND 141
Docket No.: 20100354
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: The defense of depredation does not apply to the offense of unlawfully taking and possessing big game because deer is not a fur-bearer.
The offense of unlawfully taking and possessing big game is a strict liability offense because the statute defining the offense does not contain a culpability requirement. A statute establishing a strict liability offense, however, does not always preclude an affirmative defense.
A defendant may be entitled to a jury instruction on excuse and his conduct may be excused if the evidence shows the defendant believed the facts were such that his conduct was necessary and appropriate for any of the purposes that would establish a justification or excuse under N.D.C.C. ch. 12.1-05, even though his belief was mistaken. A mistaken belief of the law is rarely available as a defense and is generally precluded when the offense is a strict liability offense that contains no culpability requirement.
At a restitution hearing, the State has the burden of proving the amount of restitution by a preponderance of the evidence.

Silbernagel, et al. v. Silbernagel, et al. (Consol. w/ 20100394 & 20100395) 2011 ND 140
Docket No.: 20100393
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: When a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
A judgment is construed to give effect to each and every part of it and bring all different parts into harmony as far as can be done by a fair and reasonable interpretation.
Parties' objective manifestations from a settlement agreement and judgment, rather than their secret or subjective manifestations of intent, control the interpretation of the judgment.