Opinions

Lund v. Lund 2011 ND 53
Docket No.: 20100147
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Whether to grant a continuance lies within the sound discretion of the district court, and its decision to deny a motion for a continuance will not be reversed on appeal absent an abuse of discretion.
The mere fact that a judge has previously ruled against a party in the same or a prior proceeding does not demonstrate bias requiring disqualification.

Interest of G.L.D. (CONFIDENTIAL) 2011 ND 52
Docket No.: 20100230
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: To preclude discharge from treatment as a sexually dangerous individual, the State must prove by clear and convincing evidence that the committed individual remains a sexually dangerous individual and has serious difficulty controlling his or her behavior.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.

Interest of L.T. (CONFIDENTIAL) 2011 ND 51
Docket No.: 20110040
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. 25-3.1-15, waiver of a mental health respondent's right to be present at a hearing cannot be found on the basis of only his or her failure to appear at the treatment hearing.

Grand Forks Homes, Inc., et al. v. Grand Forks Bd. of Co. Comm'r(cons. 20100202) 2011 ND 50
Docket No.: 20100197
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A district court's decision whether to order the taking of additional evidence under N.D.C.C. 28-34-01(3) is discretionary.
The basic concept of charity is to provide a gift to assist those in need.
Restricting the use of property for charitable purposes such as providing housing for the handicapped, the elderly, or persons with low incomes does not alone suffice to qualify for a charitable tax exemption.

State v. Erickson 2011 ND 49
Docket No.: 20100285
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: An acquittal, as distinguished from a dismissal quashing an information, is determined by the substance of the judge's ruling.
An order quashing an information is appealable, but a judgment of acquittal is not.
The district court must have a sufficient legal basis to dismiss a criminal charge.
When a court dismisses a criminal action sua sponte, it is required to give the parties notice of its intent to do so and an opportunity to respond.

State v. Johnson (consolidated w/20100241-20100242) 2011 ND 48
Docket No.: 20100240
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers, not weighed in individual layers but in the laminated total.
An application for a warrant that is based upon stale information of previous misconduct is insufficient because it does not establish probable cause that similar or other improper conduct is continuing to occur.

State v. Sauer 2011 ND 47
Docket No.: 20100164
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The prosecution has a duty to disclose documents and data a defendant requests in a criminal case, and the failure to disclose is a discovery violation.
A district court has discretion in applying a remedy for a discovery violation, and the court does not abuse its discretion in remedying the violation unless a defendant shows he was significantly prejudiced and denied a substantial right.

Motschman v. Bridgepoint et al. 2011 ND 46
Docket No.: 20100158
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The statute of frauds must be specifically pleaded, and a party who fails to plead it will be deemed to have waived his right to rely upon it.
The district court may decline to consider an issue or argument raised for the first time on a motion for reconsideration if it could have been raised in earlier proceedings.
Consideration does not fail or become void merely because a party refuses to cash a check tendered as payment in performance of the contract.

Geffre v. N.D. Dep't. of Health 2011 ND 45
Docket No.: 20100110
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: An appellant must meet the statutory requirements for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal.
A nonadministrative party does not have to show an absence of substantial justification for the agency action or prevail on the merits of the underlying appeal to receive an award of attorney fees and costs when the nonadministrative party prevails on an intertwined ruling made in conjunction with the underlying appeal.
In an employer-employee relationship, insubordination imparts a willful disregard of express or implied directions of the employer and refusal to obey reasonable orders.
A party making a constitutional claim must provide persuasive authority and reasoning, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

Nuveen v. Nuveen 2011 ND 44
Docket No.: 20100134
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The fair market value of a business is ordinarily the proper method for valuing property in a divorce.
A district court may consider a difference in earning power when determining an award of spousal support, but equalization of incomes is not a goal or measure of spousal support.
In awarding permanent spousal support, a district court may rely upon a substantial disparity in divorcing spouses' incomes that cannot be remedied by a property division or rehabilitative spousal support.