Opinions

State v. Tibor 2007 ND 146
Docket No.: 20060274
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A court does not abuse its discretion in allowing expert testimony about child sexual abuse accommodation syndrome if it finds the testimony may assist the jury in understanding the evidence or determine a fact in issue.
Mere repetition of a child's out-of-court statements does not make them unduly prejudicial.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.

State v. Demars 2007 ND 145
Docket No.: 20070015
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Denial of a motion to suppress evidence will not be reversed if there is sufficient competent evidence capable of supporting the court's findings, and if its decision is not contrary to the manifest weight of the evidence.

Peterson, et al. v. Dakota Molding, Inc., et al. 2007 ND 144
Docket No.: 20060356
Filing Date: 8/30/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: In a garnishment proceeding, where a garnishee denies liability, the plaintiff may move the court for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted.
The question whether probable cause has been shown, so as to require leave to file a supplemental complaint making a garnishee a party to an action, depends on whether the evidence shows probable grounds for believing that the garnishee might be held liable.
A term in an insurance policy should be construed to mean what a reasonable person in the position of the insured would think it meant. Limitations or exclusions from broad coverage must be clear and explicit. When the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability on the insurer.

State v. Kunze 2007 ND 143
Docket No.: 20060377
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: When a trial court concludes it is necessary to physically restrain a defendant at trial in front of the jury, the court must consider less restrictive, less prejudicial methods of restraint.
To provide for meaningful appellate review, a trial court must articulate its reasons for placing the defendant in physical restraints on the record, including a discussion of less prejudicial alternatives.

Tedford v. Workforce Safety and Insurance, et al. 2007 ND 142
Docket No.: 20060320
Filing Date: 8/27/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement offset provision, N.D.C.C. 65-05-09.2, authorizing offset of social security retirement benefits against workers compensation disability benefits, does not apply to injured employees who were receiving benefits for a total disability prior to the statute's effective date.
In determining whether an administrative agency acted without substantial justification, triggering an award of actual attorney fees and costs under N.D.C.C. 28-32-50(1), the fact that a judge at an earlier stage of the proceedings agreed with the agency's position is persuasive evidence that the position was substantially justified.

Superior, Inc. v. Behlen Mfg. 2007 ND 141
Docket No.: 20060308
Filing Date: 8/24/2007
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A contractual right to indemnification may be implied based on the special nature of the relationship between the parties, or when there are unique factors demonstrating that the parties intended the would-be indemnitor to bear the ultimate responsibility for a certain matter.
Implied contractual indemnity is an equitable remedy that is available only if a party does not have an adequate remedy at law.
Under the Uniform Commercial Code, a buyer may seek consequential damages from the seller when it incurs liability to a third party as a result of the use or resale of the seller's product.

J.P. v. Stark Co. Social Services, et al. 2007 ND 140
Docket No.: 20070004
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: When a medicaid recipient receives out-of-state medical care without prior approval when there is no emergency, payment may be covered only if there was good cause for not first securing approval, the care and services were not available in state, and the care and services were medically necessary.

Graner v. Graner 2007 ND 139
Docket No.: 20060359
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's decision on a custodial parent's motion to relocate out-of-state will be reversed on appeal only if it is clearly erroneous.
Increased visitation expenses and distance are not a sufficient basis to deny a custodial parent's motion to relocate.
A court may not modify custody within two years of an order establishing custody, unless the court finds the modification is in the child's best interests and there is willful denial of visitation, the child's environment endangers the child's physical or emotional health or impairs the child's emotional development, or the noncustodial parent has had primary physical care of the child for longer than six months.

State v. Washington 2007 ND 138
Docket No.: 20060369
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: The probable cause standard is the same for both searches and arrests.
Once a vehicle has been validly stopped and its occupants lawfully detained, law enforcement officers may constitutionally order the driver and passengers out of the vehicle, even in situations not amounting to arrest.
Law enforcement officers have the right to use appropriate forcible means to effectuate an arrest.
An officer's subjective intent plays no role in ordinary probable cause Fourth Amendment analysis.

City of Fargo v. Malme, et al. 2007 ND 137
Docket No.: 20070043
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.
Home rule charters allow cities to enact laws contrary to those of the state.
The supersession provision in N.D.C.C. 40-05.1-05 applies only to those powers enumerated in N.D.C.C. 40-05.1-06, and those powers must also be included in the home rule charter and be implemented by ordinance.
The rule of strict construction applies in defining municipal powers, and any doubt as to the existence or extent of municipal powers must be resolved against the municipality.