Opinions

Abernathey v. Department of Transportation 2009 ND 122
Docket No.: 20080336
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A law enforcement officer's approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.
An occupant of a vehicle has not been "seized" when a law enforcement officer requests, rather than orders or commands, that the occupant exit a vehicle.

Interest of B.K. and D.K. (CONFIDENTIAL) 2009 ND 121
Docket No.: 20090027
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Paul 2009 ND 120
Docket No.: 20080292
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: The decision to admit expert testimony is discretionary with the district court.
A district court must make explicit findings and explain its reasoning for its decision when considering the trustworthiness of a child's out-of-court hearsay statements about sexual abuse.
Evidence of prior sexual abuse of a victim of the charged crime is not evidence of wholly separate and independent crimes, and is not evidence of "other crimes" for purposes of N.D.R.Ev. 404(b).
Uncharged prior acts of sexual abuse between the defendant and the same victim are admissible under the exceptions to N.D.R.Ev. 404(b).
The uncorroborated testimony of a child is sufficient to sustain a conviction of a sexual offense.

State v. Zajac 2009 ND 119
Docket No.: 20080203
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal on the grounds presented to the trial court in the motion for a new trial.
Jury instructions are reviewed as a whole to determine whether the instructions fairly and adequately informed the jury of the applicable law.
A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense. Whether there is sufficient evidence to support a jury instruction is viewed in the light most favorable to the defendant.
A defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification are present.

Vann v. Vann 2009 ND 118
Docket No.: 20080344
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A settlement agreement is unconscionable if there are procedural abuses arising out of the contract formation and substantive abuses relating to the terms of the agreement.
The involvement of only one attorney is troubling, but that fact alone does not conclusively establish an agreement is unconscionable.
A party having capacity and opportunity to read a contract without being misled as to its contents cannot avoid the contract by claiming he has not read it.

Henke v. State (Consolidated w/ 20080348) 2009 ND 117
Docket No.: 20080347
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A district court may summarily dismiss an application for post-conviction relief on its own accord only if the application fails to state a claim for which relief could be granted.
A district court cannot put an applicant to her proof. Under post-conviction relief, only a party can move for summary disposition.

Interest of A.B. (CONFIDENTIAL) 2009 ND 116
Docket No.: 20080256
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State is not required to provide long-term and intensive treatment if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.

Riemers v. State 2009 ND 115
Docket No.: 20080332
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: When considering whether to allow individual speech on government property, courts employ a forum analysis for balancing the government's interest in limiting the use of its property and the interests of those wanting to use the property for expressive activity.
A university may establish reasonable time, place, and manner restrictions when permitting access to its campus and facilities.

Vanderscoff v. Vanderscoff 2009 ND 114
Docket No.: 20080318
Filing Date: 6/30/2009
Case Type: Appeal - Civil - Divorce - Property
Author:

Highlight: District court order denying motion to amend spousal support obligation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Vicknair, et al. v. Phelps Dodge Industries, Inc., et al. 2009 ND 113
Docket No.: 20080139
Filing Date: 6/29/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: The availability of an adequate alternative forum is a prerequisite to granting a motion to dismiss based on forum non conveniens, and an adequate alternative forum does not exist if the statute of limitations has expired in the proposed alternative forum.