Opinions

Kovarik v. Kovarik 2009 ND 82
Docket No.: 20080230
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's property division in a divorce is not erroneous with respect to property transferred by one spouse in contemplation of divorce when the court does not include it in the mathematical worksheet but the record reflects the court considered it.
A purported gift of certificates of deposit during the donor's lifetime to one of the spouses will not be included in the marital estate if it fails to meet either one of the requisite elements of a valid gift, i.e., donative intent, delivery, and acceptance.

Haugrose v. Anderson 2009 ND 81
Docket No.: 20080131
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

State ex rel. Stenehjem v. Simple.Net, Inc. 2009 ND 80
Docket No.: 20080144
Filing Date: 5/6/2009
Case Type: Appeal - Civil - Contempt of Court
Author: Maring, Mary

Highlight: A federal judgment based on stipulation does not pre-empt valid state law that does not conflict with any federal law.
A court has discretion in deciding whether to grant a stay on the basis of comity.

Frokjer v. ND Board of Dental Examiners 2009 ND 79
Docket No.: 20080200
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A medical professional's interest in a license to practice is a substantial, constitutionally protected property right.
Disciplinary proceedings against a dentist must provide due process protections, including the right to a fair hearing before an impartial decision maker.
The mere fact that a licensing board or agency has the authority to assess costs and attorney fees in the disciplinary process does not render the board or agency inherently biased in violation of due process.
It is the administrative agency's responsibility to assess the credibility of witnesses and resolve conflicts in the evidence, and reviewing courts do not reweigh the evidence, make independent findings of fact, or substitute their judgment for that of the agency.

State v. Saulter 2009 ND 78
Docket No.: 20080220
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Lay opinion testimony must be rationally based on the perceptions of the witness.
Lay opinion testimony is admissible only to help the jury or court understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations an untrained layman could not make if perceiving the same acts or events.
If evidence is admitted in error, the entire record will be considered and the court will decide in light of all the evidence whether the error was so prejudicial that the defendant's rights were affected and a different decision would have occurred absent the error.

Disciplinary Board v. Stensland 2009 ND 77
Docket No.: 20080213
Filing Date: 4/30/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for sixty days and ordered to pay costs and expenses of the proceedings for violating N.D.R. Prof. Conduct 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3.
A lawyer's failure to notify a client with a pending matter of his suspension from the practice of law is a violation of N.D.R. Lawyer Discipl. 6.3.

State v. Johnson 2009 ND 76
Docket No.: 20070248
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: The affirmative defense of mistake of law requires that the individual seeking to use it had made reasonable effort to determine whether his or her conduct constituted an offense.
In determining whether a prosecutor's statement at trial was an impermissible encroachment upon a defendant's right against self-incrimination, the language used must have been manifestly intended to be or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Such comments must also be considered in the context in which they were made.

Matter of D.V.A. (CONFIDENTIAL) 2009 ND 75
Docket No.: 20080319
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Absent a petition for discharge, a committed sexually dangerous individual does not have a right to a discharge hearing.
A district court's decision to hold a hearing following its review of the annual reevaluation reports regarding a committed sexually dangerous individual's mental condition is a matter of discretion and is therefore subject to an abuse of discretion standard of review.

Farmers Union Oil Company v. Smetana 2009 ND 74
Docket No.: 20080158
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Although an order granting summary judgment is not appealable, an attempted appeal from the order granting summary will be treated as an appeal from a subsequently entered consistent judgment, if one exists.
A motion for summary judgment is not an opportunity for the district court to conduct a mini-trial, and if there are disputed issues of material fact that require resolution by findings of fact, the party opposing summary judgment is entitled to present its evidence to a finder of fact in a full trial.
A deed may not be reformed to correct a mutual mistake if it would prejudice rights acquired by third persons in good faith and for value.
A third-party purchaser acts without good faith if he has actual or constructive notice of the specific defect to be cured by reformation of the deed.

Sailer v. Sailer 2009 ND 73
Docket No.: 20080114
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A premarital agreement is not enforceable if it was not executed voluntarily; however, the party against whom enforcement is sought has the burden to prove it was not executed voluntarily.
In a premarital agreement, parties may contract to keep their property separate. If one spouse uses his or her earnings to support the other, such fact does not, alone, indicate he or she voluntarily waived the enforceability of the premarital agreement.
Section 14-03.1-06(2), N.D.C.C., does not preclude enforcement of a premarital agreement if a party does not prove that enforcement of the premarital agreement would cause him or her to be eligible for public assistance.
When a trial court discusses whether a premarital agreement is clearly unconscionable, its analysis requires complete factual findings about the parties' relative property values, the other resources, and forseeable needs of the spouse asserting the premarital agreement is unconscionable.
A trial court is required to determine the total value of the marital estate in order to make an equitable division of property.

Gowan v. Ward County Commission 2009 ND 72
Docket No.: 20080239
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A local governing body's decision to deny a rezoning request will not be reversed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.

Ude v. State (Consolidated w/20080304, 20080305 & 20080306) 2009 ND 71
Docket No.: 20080303
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness.
Once the State requests summary disposition, the petitioner is put on his proof and must provide evidentiary support for his application in response to the State's request.
A petitioner cannot claim the district court erred in denying him the opportunity to present witness testimony when the petitioner never informed the district court he had witnesses present to testify.
Failing to make an offer of proof at trial prevents a meaningful appeal on the issue of whether witnesses should have been allowed to testify.

Dronen v. Dronen 2009 ND 70
Docket No.: 20080110
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: As a general rule, courts do not look favorably upon separating siblings in custody cases, although split custody is not prohibited.
A long-term marriage supports an equal property distribution.
If parties in a divorce action cannot agree upon the present value of a retirement account, it may be necessary to divide the future benefits using a formula that equally allocates the risks and benefits of the retirement.
Application of the Bullock formula is not required in every case involving retirement benefits. Instead, a district court should consider the facts of each case when deciding the best way to equitably divide the marital property.
A district court has the inherent power to sanction a litigant for misconduct.
When sanctioning a party, the district court should consider the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.

State v. Mitchell 2009 ND 69
Docket No.: 20080293
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for terrorizing summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Johnson v. Department of Transportation 2009 ND 68
Docket No.: 20080309
Filing Date: 4/30/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: District court judgment affirming an administrative decision suspending driving privileges for three years after arrest for driving under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Tran 2009 ND 67
Docket No.: 20080240
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Criminal judgment finding appellant guilty of possession of marijuana with intent to deliver and possession of ecstasy is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mund 2009 ND 66
Docket No.: 20080266
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for delivery of alcohol to a minor is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Asset Acceptance LLC v. Grzeskowiak 2009 ND 65
Docket No.: 20080335
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Order denying motion to vacate default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Order denying demand for change of judge is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Clifford v. State 2009 ND 64
Docket No.: 20080248
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Mitchell 2009 ND 63
Docket No.: 20080274
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Sentencing order finding defendant guilty of assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Neva v. Fennell 2009 ND 62
Docket No.: 20080189
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Personal Injury
Author:

Highlight: Order denying motion for a new trial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Grzeskowiak v. Nodak Electric Coop. 2009 ND 61
Docket No.: 20080298
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment of dismissal for failure to properly serve process is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Sanderson v. Harlow 2009 ND 60
Docket No.: 20080282
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order dismissing plaintiff's joint custody action with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Ellis v. North Dakota State University 2009 ND 59
Docket No.: 20070005
Filing Date: 4/9/2009
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: Equitable estoppel may preclude the application of a statute of limitations by a party whose actions induce another party to not file a claim within a prescribed statutory period.
In balancing the constitutional authority of the Board of Higher Education to remove faculty and employees, the constitutional authority of the legislature and the constitutional limits of review by the judicial branch under separation of powers concepts, the proper standard of review of a substantive Board decision to dismiss an employee for cause is whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence.

Disciplinary Board v. Nemec (Consolidated w/ 20090078) 2009 ND 58
Docket No.: 20090077
Filing Date: 4/9/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Newman v. State (cross-ref w/20060294) 2009 ND 57
Docket No.: 20080136
Filing Date: 4/8/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: District court order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Black Cloud 2009 ND 56
Docket No.: 20080261
Filing Date: 4/8/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment finding appellant guilty of terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of M.W. (CONFIDENTIAL) 2009 ND 55
Docket No.: 20080190
Filing Date: 4/7/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A statute is ambiguous if it is susceptible to meanings that are different, but rational.
Under N.D.C.C. 27-20-34, a juvenile court is to automatically transfer a case involving gross sexual imposition or attempted gross sexual imposition only if the gross sexual imposition or attempted gross sexual imposition charge is "by force or by threat of imminent death, serious bodily injury, or kidnapping."

State v. Kunze 2009 ND 54
Docket No.: 20080253
Filing Date: 4/7/2009
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgment for contact by bodily fluids with a law enforcement officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of B.F. (CONFIDENTIAL) 2009 ND 53
Docket No.: 20080140
Filing Date: 4/6/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: Double jeopardy bars the State from appealing a juvenile court judge's order rejecting a judicial referee's determination of guilt.

Bergum v. ND Workforce Safety and Insurance, et al. 2009 ND 52
Docket No.: 20080097
Filing Date: 4/6/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: A claimant seeking workforce safety and insurance benefits has the burden of proving by a preponderance of the evidence that the claimant has suffered a compensable injury and is entitled to benefits.
A compensable injury must be established by medical evidence supported by objective medical findings.
It is not a compensable injury when the claimant's employment merely acts to trigger symptoms in a preexisting injury, disease, or other condition unless a claimant's employment substantially accelerates the progression of, or substantially worsens the severity of, the preexisting injury, disease, or other condition.

Langer, et al. v. Pender, et al. 2009 ND 51
Docket No.: 20080115
Filing Date: 4/6/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The primary objective in construing a trust instrument is to ascertain the settlor's intent.
When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself.
General rules of construction of written documents apply to the construction of trust instruments.
Particular clauses of a contract are subordinate to its intent.
When provisions in a contract are irreconcilable, the words which are inconsistent with the contract's nature or with the main intention of the parties are to be rejected.

Fremling v. Fremling 2009 ND 50
Docket No.: 20080197
Filing Date: 4/6/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment denying spousal support summarily affirmed under N.D.R.App.P. 35(1)(a)(2).

Reciprocal Discipline of Thoms 2009 ND 49
Docket No.: 20090100
Filing Date: 4/6/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Hoff v. Krebs, et al. 2009 ND 48
Docket No.: 20080249
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: The implied co-insured rule does not apply when the initial claim arises from an injured third party.
The legal principle underlying the implied co-insured rule is the mutually insurable interest between a lessor and lessee.

State v. Bethke 2009 ND 47
Docket No.: 20080159
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The failure to file an information does not automatically require reversal if the error is harmless beyond a reasonable doubt.
The failure to arraign a defendant does not warrant a reversal of a conviction if the issue is not raised before trial.
After an adverse decision at a preliminary hearing, the State may issue a new complaint if the State offers new evidence or has other good cause. An analysis from the State Laboratory constitutes new evidence.

Interest of J.K. (Confidential) 2009 ND 46
Docket No.: 20080180
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: Findings of fact in juvenile matters will not be set aside on appeal unless clearly erroneous.
To establish theft of property under N.D.C.C. 12.1-23-02(1), the State must prove an individual (1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof.
Sufficient evidence existed to find juvenile committed theft because testimony of accomplice was corroborated by independent evidence connecting the juvenile with the commission of the theft.

State ex rel. K.B. v. Bauer 2009 ND 45
Docket No.: 20080092
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: In calculating income to be imputed to an unemployed obligor under the child support guidelines, a court may taken into consideration the fact that the obligor's past income circumstances had changed and were not a reliable indicator of his present or future earning capacity.
In calculating imputed income, the court has discretion to exclude an obligor's past earnings from a temporary college internship that has ended.
A child support obligation may be adjusted if the obligor's ability to provide support is reduced due to visitation-related travel expenses, but the expenses must be deducted from the obligor's net income, not directly from the child support obligation.

State v. Gibbs 2009 ND 44
Docket No.: 20070378
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: A party must make a timely objection to an alleged error in the district court so the court may take appropriate action, if possible, to remedy any prejudice that may have resulted from the claimed error.
The prosecution may not comment on a defendant's failure to testify in a criminal case.
A jury is generally presumed to follow curative instructions.
The prosecution's statement during closing argument that there is no explanation for the prosecution's evidence does not constitute an improper comment on an accused's failure to testify where persons other than the accused could have offered contradictory evidence.

Interest of J.S.L. (CONFIDENTIAL) 2009 ND 43
Docket No.: 20080227
Filing Date: 4/2/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: In determining whether hearsay evidence has sufficient guarantees of trustworthiness to qualify for the residual hearsay exception, the circumstances surrounding the statement are compared to the closest applicable hearsay exception.
Hearsay evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts only if no other evidence, or very little other evidence, is available on the same point.
The introduction of allegedly inadmissible evidence in a non-jury case will be reversed only if all the competent evidence is insufficient to support the judgment or it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

State v. Henes 2009 ND 42
Docket No.: 20080166
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Issues not raised to the district court will not be addressed for the first time on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).
A district court enhances a sentence when it increases a defendant's sentence beyond the statutory maximum sentence to another offense level or sentencing range, or under a mandatory sentencing provision because of a subsequent offense.
A district court may consider an uncounseled conviction when exercising its sentencing discretion, but may not consider an uncounseled conviction when enhancing a term of imprisonment for a subsequent offense without evidence of a valid waiver of the right to counsel.

State v. Foreid 2009 ND 41
Docket No.: 20080128
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: An additional or different offense is not charged when an information is amended to fix an error in the classification of the charged offense and comply with statutory requirements.
For an instruction on a lesser included offense, there must be evidence on which the jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser.

Disciplinary Board v. Overboe 2009 ND 40
Docket No.: 20080219
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A final determination of lawyer misconduct by another jurisdiction conclusively establishes misconduct for a disciplinary proceeding in North Dakota and requires the imposition of identical discipline unless the lawyer demonstrates and it clearly appears: (1) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such an infirmity of proof establishing the misconduct in the other jurisdiction that the decision from the other jurisdiction cannot be accepted; (3) the imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants substantially different discipline in this state.

Sturn v. Director, N.D. Dept of Transportation 2009 ND 39
Docket No.: 20080199
Filing Date: 4/2/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Radar is prima facie evidence of vehicle speed. The foundational requirements for conviction using radar are not the same as the requirement for reasonable suspicion.
An officer's testimony that a vehicle was "traveling rather quickly" and that he verified that it was speeding by using radar is sufficient for reasonable suspicion even if not accompanied by all the foundational elements necessary for conviction of speeding.

State v. Leingang 2009 ND 38
Docket No.: 20080168
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contempt of Court
Author: VandeWalle, Gerald

Highlight: Contempt is not available when sums of money may be collected through the process of execution.
A litigant may have a court decide the merits of a dispute only after demonstrating standing to litigate the issue before the court.
To establish standing, a litigant must have suffered some threatened or actual injury resulting from the putatively illegal action.

State v. Holbach (consolidated w/20080003) 2009 ND 37
Docket No.: 20080002
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When an individual's constitutional right to travel has been restricted by a judicial order, any conduct in violation of that judicial order is not a constitutionally protected activity for purposes of the stalking statute.
Violence and other activities that harm another person are not constitutionally protected.
To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.

State v. Geiser 2009 ND 36
Docket No.: 20080120
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The definition of "child" in N.D.C.C. 19-03.1-22.2(1)(b) does not include unborn children; therefore, the crime of "endangerment of a child or vulnerable adult" does not apply to an unborn child.

Verhey v. McKenzie 2009 ND 35
Docket No.: 20070234
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a child support obligor is unemployed or underemployed, the child support guidelines permit a court to impute income to the obligor.
The district court errs as a matter of law, however, if the court fails to comply with the child support guidelines in determining an obligor's child support obligation.

State v. Curtis 2009 ND 34
Docket No.: 20080007
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A criminal defendant has a constitutional right to compulsory process to secure the attendance of witnesses who will provide testimony that is both favorable and material to a defense.
A subpoena must be served within a reasonable time before a witness's scheduled appearance, and whether service is within a reasonable time depends on the circumstances of each case.
A criminal defendant has a right to self-representation if the defendant knowingly and intelligently elects to do so.
A criminal defendant has a statutory right to require all communications with jurors after a case has been submitted to them to be made in open court and in the presence of the defendant.
A criminal defendant's statutory right to be present during the entire trial is of constitutional dimension, and the State must establish that a violation of a defendant's right to be present was harmless beyond a reasonable doubt.

Bragg, et al. v. Burlington Resources Oil & Gas Co. 2009 ND 33
Docket No.: 20080129
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An entity taking an interest in real property subject to a lis pendens--a written notice of a pending suit involving real property--is bound by all proceedings taken after the filing of the notice of lis pendens to the same extent as if that entity were a party to the underlying action, including a settlement of the underlying action.

Gunia v. Gunia 2009 ND 32
Docket No.: 20080055
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A party seeking to modify a child support obligation within one year of the decision setting the obligation must show a material change in circumstances.
A material change in circumstances is a change that was neither contemplated nor foreseen at the time of the earlier support order.
In determining a child support obligation, a district court must clearly set forth how it arrived at the obligor's net income and the level of support.
Income and expenses from a solely owned Subchapter S corporation are attributable to the obligor for child support purposes.

Koropatnicki v. State 2009 ND 31
Docket No.: 20080235
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Steen (Consolidated w/20080244 thru 20080247) 2009 ND 30
Docket No.: 20080243
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: A district court order denying defendant's motions for credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Delzer, et al. v. Anderson 2009 ND 29
Docket No.: 20080206
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author:

Highlight: Civil money judgment relating to assigned divorce debt summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

State v. Isom (Consolidated w/20080311-20080314) 2009 ND 28
Docket No.: 20080310
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: The district court's order denying defendant's motion for credit for time served is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Reciprocal Discipline of Swensen 2009 ND 27
Docket No.: 20090095
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Reciprocal Discipline of Hellerud 2009 ND 26
Docket No.: 20090097
Filing Date: 3/27/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Interest of R.M. (CONFIDENTIAL) 2009 ND 25
Docket No.: 20090084
Filing Date: 3/20/2009
Case Type: Appeal - Civil - Mental Health
Author:

Highlight: Mental health commitment and involuntary medication order summarily reversed under N.D.R.App.P. 35.1(b).

Collection Specialist Int'l v. McLaughlin Const. Co. (Cons. w/20080242) 2009 ND 24
Docket No.: 20080241
Filing Date: 2/9/2009
Case Type: Appeal - Civil - Contracts
Author:

Highlight: District court judgment in favor of McLaughlin Construction Co. in a contract case is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bruder v. WSI, et al. 2009 ND 23
Docket No.: 20080078
Filing Date: 2/6/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: When there are conflicting expert medical opinions about the cause of a workers compensation claimant's medical condition, Workforce Safety and Insurance has the responsibility to weigh credibility and resolve conflicts in the evidence.

Midthun v. Workforce Safety and Insurance, et al. 2009 ND 22
Docket No.: 20080137
Filing Date: 2/5/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A party appealing a hearing officer's decision must file reasonably specific specifications of error detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed.
The use of the word "may" in a statutory scheme is ordinarily understood as permissive rather than mandatory and operates to confer discretion.
Under N.D.C.C. 65-05-10(2), Workforce Safety and Insurance has discretion over whether to waive the five-year limitation on partial disability benefits, even where a claimant has met one of the statutory exemptions.

Adoption of J.D.F. (Confidential) 2009 ND 21
Docket No.: 20080152
Filing Date: 2/5/2009
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A district court must advise parents that they are entitled to representation by counsel, provided by the State if necessary, throughout any proceedings to terminate the parent-child relationship against their will.

Kelly v. Kelly 2009 ND 20
Docket No.: 20080103
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Adoption of H.G.C. (confidential) 2009 ND 19
Docket No.: 20080096
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: A parent's parental rights, including the right to withhold consent to an adoption, may be terminated if the parent has abandoned the minor child.
A court must consider the parent's contact and communication with the child, the parent's love, care and affection toward the child, the parent's acceptance of parental obligations, whether the parent has negligently failed to perform his parental duties, and the parent's intent in deciding whether the parent has abandoned the child.

Ulsaker v. White 2009 ND 18
Docket No.: 20080093
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A long-term marriage supports an equal distribution of marital property.
A party's dissipation of marital assets is a relevant factor for the district court to consider when dividing the marital estate.
A district court should consider tax consequences when determining divorce transactions, but phantom tax consequences are not a relevant basis on which to divide marital property.

Reinholdt v. ND Dept. of Human Services 2009 ND 17
Docket No.: 20080210
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: If a Medicaid applicant has a legal ability to obtain an asset, it is considered an actually available resource. In determining whether an asset is actually available, the focus is on the Medicaid applicant's actual and practical ability to obtain the asset as a matter of fact, not of legal fiction.

Hendrickson v. Olson 2009 ND 16
Docket No.: 20080164
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The admissibility of evidence in any adjudicative proceeding before an administrative agency is determined under the rules of evidence unless there is a specific waiver stated orally or in writing before or at the hearing.
To be eligible for Medicaid benefits as an incapacitated parent of a child receiving Medicaid benefits, a parent must have a physical or mental defect of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for 30 days or more.

City of Fargo v. Salsman 2009 ND 15
Docket No.: 20080162
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A municipality has the authority to bring a nuisance abatement action.
Whether a nuisance exists is a mixed question of fact and law.
The state nuisance law and Fargo's nuisance ordinances are not void for vagueness or unconstitutionally overbroad.

Hector, et al. v. City of Fargo 2009 ND 14
Docket No.: 20080177
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a local governing body on whether to amend the city zoning map and growth plan will be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not sufficient evidence supporting the decision.
A city must adopt a comprehensive plan governing zoning regulations, and must follow certain statutory procedures when adopting the plan.
A local governing body does not engage in contract zoning simply by speaking with landowners about concerns over the details of proposed zoning amendments.

Myers v. State (cross-reference 20050368) 2009 ND 13
Docket No.: 20080186
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The failure to file a pretrial suppression motion alone is not enough to meet the burden of proving ineffective assistance of counsel; the petitioner must show actual prejudice.

Citibank v. Reikowski 2009 ND 12
Docket No.: 20080218
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Any action or proceeding involving an issue subject to arbitration shall be stayed if an application for stay has been made.

Slorby v. Slorby 2009 ND 11
Docket No.: 20080105
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: If the language of a judgment is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning.
When interpreting a judgment, the language of the judgment should be construed as to give effect to each and every part of it, and bring all different parts into harmony as far as this can be done by fair and reasonable interpretation.

Doepke v. Doepke 2009 ND 10
Docket No.: 20080142
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A court errs as a matter of law if it does not comply with the requirements of the child support guidelines when it determines a child support obligation.
Under the child support guidelines, a self-employed individual's child support obligation is generally calculated using an average of the individual's income for the most recent five-year period.
An issue may not be addressed if it is not included in the statement of the issues.

City of Fargo v. Lunday 2009 ND 9
Docket No.: 20080127
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under N.D.R.Crim.P. 29(a), a defendant in a criminal jury trial must still make a motion for judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal.

State v. Scutchings 2009 ND 8
Docket No.: 20080125
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A prosecutor's comment during closing arguments that the government's evidence is uncontradicted or unrebutted is improper if the only person who could have rebutted the evidence was the defendant testifying on his or her own behalf, and the defendant has chosen not to testify at the trial.

State v. Walstad (Consolidated w/20080272 & 20080273) 2009 ND 7
Docket No.: 20080271
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: The district court's order denying defendant's motion for credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).

State v. Vick 2009 ND 6
Docket No.: 20080176
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: The district court's second amended judgment denying defendant's motion for additional credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Geray v. Bertsch 2009 ND 5
Docket No.: 20060173
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: The district court's memorandum opinion and order denying defendant's motion to vacate is summarily affirmed under N.D.R.App.P. 35.1(a)(4), and plaintiff's request for attorney's fees on appeal is denied under N.D.R.App.P. 38.

Pribyl v. State 2009 ND 4
Docket No.: 20080185
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Huffling 2009 ND 3
Docket No.: 20080151
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: If a sentence imposed by a trial court is within the range authorized by statute, this Court does not have the power to review the discretion of the sentencing court.

State v. Cahoon 2009 ND 2
Docket No.: 20080173
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Adoption of E.H.L. (CONFIDENTIAL) 2009 ND 1
Docket No.: 20080167
Filing Date: 2/2/2009
Case Type: Appeal - Civil - Adoption
Author:

Highlight: Judgment terminating father's parental rights and granting grandparents' petition to adopt the child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Voigt v. State 2008 ND 236
Docket No.: 20080157
Filing Date: 12/31/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party seeking to bring a claim against the State or its employees must strictly comply with the requirements of N.D.C.C. 32-12.2-04(1).
Statements made during a legislative proceeding are absolutely privileged.

Disciplinary Board v. Karlsen (Consolidated w/ 20080295) 2008 ND 235
Docket No.: 20080294
Filing Date: 12/23/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Clark v. State (Cross-reference w/20030238) 2008 ND 234
Docket No.: 20080122
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The law does not require that an evidentiary hearing be held on an application for post-conviction relief when the parties do not request a hearing.
New counsel on appeal inherits the strategies of prior counsel.
A court does not second-guess matters of trial strategy.

Gustafson v. Gustafson 2008 ND 233
Docket No.: 20080109
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: When an award of spousal support is reversed, the party paying is entitled to restitution for any amount paid since entry of the district court judgment, unless it would be inequitable.
An owner of real property does not need to possess special knowledge or further qualification to testify to the property's value.

State v. Lium (cross ref with 20070135) 2008 ND 232
Docket No.: 20080100
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists.
Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw; (2) defendant's assertion of innocence or a legally cognizable defense to the charge; (3) prejudice to the government; (4) whether the plea was knowing and voluntary; (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P.; (6) whether adequate assistance of counsel was available to the defendant; (7) the plausibility of the reason for seeking to withdraw; (8) whether a plea withdrawal would waste judicial resources; and (9) whether the parties had reached or breached a plea agreement.

City of Minot v. Rudolph 2008 ND 231
Docket No.: 20080135
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Home rule charters permit cities to enact certain ordinances which differ from state laws.
Within the scope of statutory authorization, a home rule city's charter and the ordinances made under the charter supersede, within the territorial limits and other jurisdiction of the city, laws of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.
If the requirements to supersede state law are not met, a home rule city's powers are those bestowed by the legislature on all municipalities.

State v. Salter 2008 ND 230
Docket No.: 20080080
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A driver's consent to chemical testing is implied if the statutory implied consent provisions have been met, and a driver must affirmatively refuse to submit to testing to withdraw the consent.

Serr v. Serr (Cross-Ref w/20070231) 2008 ND 229
Docket No.: 20080188
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To determine whether parents have equal physical custody of a child for purposes of applying child support guidelines, the actual language of the judgment controls.

State v. Moos (Consolidated w/20080048) 2008 ND 228
Docket No.: 20080047
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: The Blockburger "same elements" test, used to determine whether two crimes constitute the same offense for purposes of double jeopardy, is merely a canon of statutory construction and is not controlling if the legislative intent is clear from the face of the statute or the legislative history.
Multiple convictions and punishments are not permitted for the same conduct under the theft by deception, forgery or counterfeiting, and deceptive writings statutes.
Although the State has the burden of proving the appropriate amount of restitution, the defendant has the burden to raise and prove an inability to pay the restitution ordered.
A motion for a new trial based upon newly discovered evidence will be granted only if the new evidence is of such a nature that it would probably produce an acquittal upon retrial.

State v. Roth 2008 ND 227
Docket No.: 20080060
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A defendant's probation can be revoked if he violates the conditions of probation while incarcerated or on parole on other charges.

Schipper Construction, Inc. v. American Crystal Sugar Co. 2008 ND 226
Docket No.: 20080123
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A notice of rescission must be clear, unambiguous, and unequivocal.

Matter of Peterson's dogs 2008 ND 225
Docket No.: 20080094
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: When an animal has been confiscated under a law for humane treatment of animals, the owner is entitled to a hearing to determine whether the animal should be returned.
Whether an owner has voluntarily relinquished or waived ownership rights to an animal generally is a finding of fact, and the owner must be allowed an opportunity to present evidence on that issue if it has been adequately raised.

Brummund v. Brummund 2008 ND 224
Docket No.: 20080170
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Certification of an order or judgment as final under N.D.R.Civ.P. 54(b) is reserved for those cases involving unusual circumstances where failure to allow an immediate appeal would create demonstrated prejudice or hardship.
Rule 54(b) certification is not appropriate if the judgment does not fully decide an entire claim.

State v. Uran 2008 ND 223
Docket No.: 20080111
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A warrantless search of a home is not unreasonable if the search falls under an exception to the search warrant requirement.
The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect.

Matter of G.R.H. (CONFIDENTIAL) 2008 ND 222
Docket No.: 20080102
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: In reviewing the civil commitment of a sexually dangerous individual, all sexually predatory conduct, including that which did not result in a charge or conviction, may be considered.
Evidence showing serious difficulty in controlling behavior suffices to distinguish a sexually dangerous individual from other dangerous persons.

Siewert v. Siewert (Consolidated w/20080095) 2008 ND 221
Docket No.: 20080065
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: District courts have discretion to appoint a guardian ad litem in child custody modification cases.
A court may modify a child custody order if more than two years have passed since the order was entered and there has been a material change in circumstances and the modification is necessary to serve the best interests of the child.
A court's decision to modify custody is a finding of fact, which will be reversed on appeal only if it is clearly erroneous.
District courts have jurisdiction to modify child support while an appeal is pending from a decision on a custody motion that does not address child support.

State v. Harlan 2008 ND 220
Docket No.: 20080083
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Evidence discovered as a result of a pocket search following a safety pat-down search which provides no indication of a weapon or anything similar must be suppressed because the pocket search under such circumstances has exceeded the initial justification for the pat-down search.

State v. Mosbrucker 2008 ND 219
Docket No.: 20070355
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A victim must understand more than the physical aspects of sex to be capable of understanding the nature of a sexual act under N.D.C.C. 12.1-20-03(1)(e).
The remedies afforded by appeal from a judgment and appeal from an order denying a new trial are independent remedies.