Opinions

Buchholz v. Barnes County Water Board (Consolidated w/20070326) 2008 ND 158
Docket No.: 20070325
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Section 61-01-07, N.D.C.C., does not create a duty upon a downstream landowner to keep a watercourse free of naturally occurring vegetation.
Summary judgment is appropriate against a party who fails to establish the existence of a genuine factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial.

State v. Rodriquez (Consolidated w/20070350) 2008 ND 157
Docket No.: 20070349
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When time spent in custody is credited toward an unrelated charge, the defendant is not entitled to have that time spent in custody applied to another sentence.

State v. Keener (consolidated w/20070265 & 20080016) 2008 ND 156
Docket No.: 20070252
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Claims of ineffective assistance of counsel are best raised in post-conviction proceedings to allow the parties to fully develop the record.
A defendant arguing ineffective assistance of counsel because of a conflict of interest caused by joint representation, who did not object to the joint representation, must show there was an actual conflict that adversely affected counsel's performance.
The court's failure to comply with N.D.R.Crim.P. 44, which requires the court to inquire into the propriety of joint representation, does not by itself require reversal.
Review of issues not raised below is limited to obvious error.
Restitution orders will not be reversed on appeal unless the district court abused its discretion.

City of Devils Lake v. Grove 2008 ND 155
Docket No.: 20070292
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: If an investigative detention lasts too long or its manner of execution unreasonably infringes an individual's Fourth Amendment interests, it may no longer be justified as an investigative stop and, as a full-fledged seizure, must be supported by probable cause.
To determine whether an investigative detention has become a de facto arrest, this Court considers whether the invasion of an individual's Fourth Amendment interests is so minimally intrusive as to be justifiable on reasonable suspicion.
Officers are obligated to limit investigative methods employed during a traffic stop to the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.

Kortum, et al. v. Johnson, et al. 2008 ND 154
Docket No.: 20070186
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Close corporation shareholders owe one another a duty of utmost loyalty and good faith.
By signing a shareholder agreement, the shareholders of a close corporation do not bargain away the fiduciary duty owed to them by the corporation's other shareholders.
A shareholder agreement is presumed to reflect the reasonable expectations of a corporation's shareholders.
The threshold issue in a claim of shareholder oppression based on termination of employment is whether the terminated shareholder-employee had a reasonable expectation of continued employment.
A shareholder agreement providing for periodic reevaluation of share value signifies a bona fide intention on the part of both parties to enter into periodic negotiations; when the parties to the agreement have not reevaluated the shares as contemplated by the agreement, the remaining shareholders have the burden of showing they did not refuse in bad faith to enter into such negotiations.

City of Grand Forks v. Riemers 2008 ND 153
Docket No.: 20070379
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Traffic Violation
Author: Kapsner, Carol

Highlight: The right to appeal in this state is statutory, and there is no constitutional right to an appeal.
When a defendant has appealed a municipal court's decision on a noncriminal municipal traffic offense to district court for trial anew, the district court's decision may not be appealed to the Supreme Court.

State v. Gill (consolidated with 20070365 & 20070366) 2008 ND 152
Docket No.: 20070364
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: The scope of the community caretaking function does not extend to include officers' entry into private residences.
The warrantless entry of law enforcement officers into a home presents a Fourth Amendment issue and should not be examined under the community caretaking doctrine.

Disciplinary Board v. Fisher 2008 ND 151
Docket No.: 20080198
Filing Date: 8/21/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspention of lawyer ordered.

Hutchinson v. Boyle (Consolidated w/20080010) 2008 ND 150
Docket No.: 20080009
Filing Date: 7/28/2008
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Disorderly conduct does not include constitutionally protected activity.
A district court must address a respondent's constitutional claims before issuing a disorderly conduct restraining order.

Strand, et al. v. Cass County, et al. (Cross-Ref. w/20050380) 2008 ND 149
Docket No.: 20070168
Filing Date: 7/25/2008
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: When a party requests attorney's fees under N.D.C.C. 28-26-01(2), the court must first determine whether a claim is frivolous. If it determines the claim is frivolous, the court must then award reasonable attorney's fees to the prevailing party.
Under N.D.C.C. 28-26-31, a court is authorized to award attorney's fees for allegations and denials in any pleadings in court, made without reasonable cause and not in good faith, and found to be untrue.
Under Rule 11, N.D.R.Civ.P., a district court may award sanctions against an attorney or a represented party, or both, if they violate the rule's requirements.