Opinions

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.

State v. Stroh 2011 ND 139
Docket No.: 20100157
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The admissibility of an Intoxilyzer test result is governed by N.D.C.C. 39-20-07(5).
Fair administration of an Intoxilyzer test may be established by proof that the State Toxicologist's approved method for conducting the test has been scrupulously followed. However, "scrupulous" compliance does not mean "hypertechnical" compliance.
The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.
Observing the person to be tested is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.

Vanlishout v. ND Dept. of Transportation 2011 ND 138
Docket No.: 20110017
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Actual physical control does not require that the defendant be able to instantaneously operate the vehicle. Rather, defendant must be able to manipulate the controls of the vehicle and must be under the influence of intoxicating liquor, drugs, or other substances.

State v. McElya 2011 ND 137
Docket No.: 20100349
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: Double jeopardy is a defense that may be waived and must be raised at some point in proceedings before the district court.

Crandall v. Crandall 2011 ND 136
Docket No.: 20100402
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The child support guidelines require a parent who does not have primary residential responsibility of a child to pay child support to the parent awarded primary residential responsibility.
Financial misconduct and dissipation of assets are grounds for an unequal property distribution.

Willits v. Job Service of ND, et al. 2011 ND 135
Docket No.: 20100375
Filing Date: 7/13/2011
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: To be eligible for unemployment benefits, the employee must make reasonable efforts to preserve one's employment.
An employee who voluntarily quits before the employer has been given a reasonable chance to resolve identified problems is not entitled to unemployment benefits.