Opinions

Petition to Change Judgeship No. 4 Chambers from New Rockford to Lisbon 2010 ND 145
Docket No.: 20100174
Filing Date: 8/3/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Judicial Vacancy in Judgeship No. 4, SEJD (see 20100169 and 20100174) 2010 ND 145
Docket No.: 20100130
Filing Date: 8/3/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at New Rockford.

State v. Blunt (cross-reference w/20070247) 2010 ND 144
Docket No.: 20090110
Filing Date: 7/16/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: In determining what constitutes an acquittal, the label used by the district court is not conclusive and the reviewing court will consider the substance of the district court's ruling to determine whether it actually represents a resolution of some or all of the factual elements of the offense charged.
The district court may withdraw from the jury's consideration particular factual issues or legal theories not supported by the evidence and submit the remaining factual issues and legal theories to the jury.
The State may elect to charge each misapplication of entrusted property as a separate offense, or the State may charge all misapplication of entrusted property as a single offense.

Woodward v. Woodward (Cross-Ref w/20080343 & 20090053) 2010 ND 143
Docket No.: 20090316
Filing Date: 7/15/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, and the test for appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality.
Persistent and willful denial or interference with parenting time is grounds for modification of primary residential responsibility.

Reciprocal Discipline of Kenny 2010 ND 142
Docket No.: 20100194
Filing Date: 7/19/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded under Rule 4.4, N.D.R. Lawyer Discipl., governing reciprocal discipline.

Thornton v. Klose 2010 ND 141
Docket No.: 20090320
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A temporary child support order amending a prior divorce judgment and setting the parties' child support obligations for a period of one year is appealable.
When a divorce judgment explicitly orders a child custody schedule which results in an unequal division of custodial time between the parents, it does not order "equal physical custody" and the child support offset provision does not apply.
Judgment provisions allowing the parties to mutually agree to a different custodial schedule or declaring the parties are considered to have equal physical custody for purposes of calculating child support do not trump an ordered custody schedule or convert the unequal division of custody into "equal physical custody."

Melchior v. Lystad, et al. 2010 ND 140
Docket No.: 20100045
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Summary judgment is appropriate if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result.
Where a grantor conveys land in such a manner as to include all of the minerals, and then reserves to himself fifty percent of the minerals, the reservation is not operative when the grantor owns only fifty percent of the minerals. Both the grant and the reservation cannot be given effect, so the grantor loses because the risk of title loss is on the grantor.
For a mutual mistake to justify reformation of a contract, it must be shown that at the time of the execution of the agreement, both parties intended to say something different from what was said in the instrument.

State v. Meador 2010 ND 139
Docket No.: 20100063
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: The retroactive application of the sexual offender registration statute is remedial and non-punitive and does not violate federal or state constitutional prohibitions against ex post facto laws.
A party waives an issue if the party does not provide supporting argument, and an argument is without merit if the party does not provide supportive reasoning or citations to relevant authorities.

Investors Title Insurance Co. v. Herzig, et al. (Consol. w/20090052) 2010 ND 138
Docket No.: 20090051
Filing Date: 7/13/2010
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.
At common law, a cause of action to enforce a penalty does not survive the death of either party unless the penalty is contractual. Causes that are remedial or contractual survive.
A remedial sanction includes a sanction that is conditioned upon performance or nonperformance of an act required by court order. A sanction requiring payment of money is remedial if imposed to compensate a party or complainant, other than the court, for loss or injury suffered as a result of the contempt.

State v. Poitra 2010 ND 137
Docket No.: 20090339
Filing Date: 7/13/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A defendant claiming statements in an affidavit for a search warrant are false or misleading because important information was omitted must show: (1) law enforcement omitted facts with the intent or in reckless disregard of whether they made the affidavit misleading, and (2) the affidavit would not have been sufficient to support a finding of probable cause if the omitted information had been included.
A juvenile does not have a statutory right to have an attorney present when a search warrant is executed.
A person cannot take advantage of his own wrong.