Opinions

Burris Carpet Plus, Inc. v. Burris, et al. 2010 ND 118
Docket No.: 20090104
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: To prevail on a trademark infringement claim, a plaintiff must first show it has a valid mark that merits protection.
A valid trademark is a distinctive mark, symbol, or designation used by a producer or manufacturer to identify and distinguish its services or goods from the services or goods of others.
Ownership rights in a trademark accrue when the mark is used or displayed in the marketplace.
The use of a corporate name in connection with goods or services is not "use" of each word in the name for trademark purposes.
A name that a business entity uses that is not required to be registered as a trade name may still be registered to receive the protections of the trade name statutes.
State and federal courts have concurrent jurisdiction over claims arising under the Lanham Act.
When there is no express constitutional or statutory declaration upon a subject, the common law is applied.

State v. Emil (Consolidated w/20090287) 2010 ND 117
Docket No.: 20090286
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The State may appeal from an order suppressing evidence only "when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding."
To meet the statutory requirements, the prosecutor's statement must explain the relevance of the suppressed evidence, or the relevance must be clear from the record.

Holbach v. Holbach, et al. 2010 ND 116
Docket No.: 20090319
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: When a settlement agreement is wholly incorporated into a divorce judgment, the settlement is merged into the judgment and ceases to be independently viable.
Contracts to devise property are enforceable and become irrevocable upon the death of one of the parties.
An agreement to agree is enforceable if the essential terms of the agreement are reasonably certain and definite.
Contractual terms are reasonably certain and definite if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.

State v. Gunderson 2010 ND 115
Docket No.: 20100050
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Order requiring restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Ellis v. North Dakota State University 2010 ND 114
Docket No.: 20090313
Filing Date: 6/17/2010
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: When this Court has decided a legal question and remanded the case for further proceedings, the question will not be decided differently on a subsequent appeal in the same case where the facts remain the same.

Hanneman v. Nygaard 2010 ND 113
Docket No.: 20090278
Filing Date: 6/17/2010
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An involuntary dismissal of a plaintiff's action, which does not otherwise specify, operates as an adjudication on the merits.
Res judicata prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies, but does not preclude litigation of additional new claims.
A district court must make findings of fact that are sufficient to enable an appellate court to understand the factual determinations made by the district court and the basis for the conclusions of law, and a district court's findings of fact should be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the district court's decision.

City of Mandan v. Gerhardt 2010 ND 112
Docket No.: 20090274
Filing Date: 6/15/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) "Terry" stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures.
Community caretaking allows law enforcement-citizen contact, including stops, without an officer's reasonable suspicion of criminal conduct.
Even a casual encounter can evolve into a seizure when a reasonable person would view a law enforcement officer's actions--if done by another private citizen--as threatening or offensive.
An officer may also develop a reasonable and articulable suspicion of unlawful conduct from the officer's initial community caretaking encounter.

State v. McKay (Consolidated w/20090296 - 20090298 & 20090342) 2010 ND 111
Docket No.: 20090295
Filing Date: 6/14/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment of conviction for aggravated assault and order revoking probation are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Martinson v. Martinson 2010 ND 110
Docket No.: 20090324
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In deciding a request for attorney fees and costs under N.D.C.C. 14-05-23, a court must balance one party's needs against the other party's ability to pay and consider whether either party's actions unreasonably increased the time and expenditures on the case.

State v. Bauer 2010 ND 109
Docket No.: 20090212
Filing Date: 6/10/2010
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: The nonexistence of self-defense instruction given by the trial court correctly provides that the burden of proof is on the State to prove beyond a reasonable doubt that the defendant was not acting in self-defense.
The pattern jury instructions are not controlling law, and are published with the caution that they are neither a restatement nor an encyclopedia of the prevailing law.