Opinions

Estate of Thompson 2008 ND 144
Docket No.: 20070294
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: The existence of an oral contract is a question of fact.
An agreement for the sale of real property is invalid unless the agreement is in writing and subscribed by the party to be charged.
In the absence of a written agreement, a court may compel specific performance of any agreement for the sale of real property if there is part performance.
Part performance of an oral contract for the sale of land which exempts the contract from the statute of frauds and entitles a party to specific performance must be proven by evidence that it is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract.

Klose v. State (Cross-Ref. with 20010309 and 20050044) 2008 ND 143
Docket No.: 20070303
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Summary dismissal of an application for post-conviction relief is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Raising an issue in a second post-conviction application that could have been raised in a prior post-conviction application or other proceeding is a misuse of process.
To show ineffective assistance of post-conviction counsel, a post-conviction applicant must show post-conviction counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
A stipulation to certain factual elements of an offense is not a guilty plea.

State v. Lunde 2008 ND 142
Docket No.: 20070159
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Evidence which is illegally seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule; however, under the good-faith exception, evidence should not be excluded when an officer has acted in good faith upon objectively reasonable reliance on the magistrate's probable cause decision.
The good-faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.
The good-faith exception does not apply because the officer's reliance on the warrant is not objectively reasonable: (1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.

State v. Torkelsen 2008 ND 141
Docket No.: 20070140
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Any evidence obtained as a result of illegally acquired evidence must be suppressed, unless it was not produced by exploiting the illegally acquired information.
In some cases voluntary consent to search may purge the taint of unlawful police activity.
There must be separate probable cause to issue a warrant that authorizes a nighttime search. If there is not separate probable cause to authorize a nighttime search, the evidence should be excluded unless an exception to the exclusionary rule applies.
A defendant must unequivocally invoke the right to represent himself, unless his conduct rises to the level of a functional equivalent of a voluntary waiver of the right to counsel.
A defendant must make a timely request to represent himself, and it is within the trial court's discretion to grant a request made after the trial begins.

Forum Communications Co. v. Paulson, et al. 2008 ND 140
Docket No.: 20080052
Filing Date: 7/7/2008
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: The public and the media have a presumptive right of access to criminal trials, including preliminary jury questionnaires, that is not absolute and must be balanced against a defendant's right to a fair trial and jurors' privacy interests.
The presumption of criminal tiral openness can be overcome by any overriding interest and must be articulated with findings specific enough to permit effective review.
Any criminal trial closure must be narrowly tailored to serve the competing interests.

Carroll v. N.D. Workforce Safety & Insurance 2008 ND 139
Docket No.: 20070219
Filing Date: 7/7/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: For the district court to acquire subject matter jurisdiction over an appeal from a decision of an administrative agency, the appellant must satisfy the statutory requirements for perfecting the appeal.
A workers compensation claimant disputing a managed care decision must appeal from a binding dispute resolution decision, and the decision is reviewable only if the employee has been denied medical treatment.

Lagerquist v. Stergo, et al. 2008 ND 138
Docket No.: 20070285
Filing Date: 7/2/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Agency is generally a question of fact.
Agency is never presumed, and if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
On appeal, a finding of agency is reviewed under the clearly erroneous standard.
An agency relationship is created when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. Agency is either actual or ostensible.
Agency cannot be proved by showing the declarations of the alleged agent.

State v. Torkelsen (Consolidated w/20070372 & 20070373) 2008 ND 137
Docket No.: 20070369
Filing Date: 7/2/2008
Case Type: Appeal - Criminal - Sexual Offense
Author:

Highlight: Sexual assault convictions are summarily affirmed under N.D.R.App.P. 35.1(a)(3), the convictions are supported by substantial evidence.

Gerhardt, et al. v. C.K. (CONFIDENTIAL) 2008 ND 136
Docket No.: 20070282
Filing Date: 6/30/2008
Case Type: Appeal - Civil - Paternity
Author: Maring, Mary

Highlight: A proceeding to adjudicate parentage commenced before the effective date of the 2005 version of the Uniform Parentage Act is governed by the law in effect at the time the proceeding was commenced.
Section 14-17-10(1), N.D.C.C. (1993), does not require the court to compel genetic tests in response to a post-judgment motion.

State v. Blunt 2008 ND 135
Docket No.: 20070247
Filing Date: 6/30/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: Personal benefit to the defendant is not an element of the crime of misapplication of entrusted property.
At a preliminary hearing in a criminal case, the State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but need only produce sufficient evidence to establish probable cause that a crime occurred and that the defendant committed it.
The district court may consider credibility of witnesses at a preliminary hearing only when, as a matter of law, the testimony is implausible or incredible. When there is a mere conflict in the testimony, a question of fact exists for the jury, and the judge must draw the inference favorable to the prosecution.
A "bonus" is a premium paid in addition to what is due or expected, or a payment in addition to or in excess of the compensation that would ordinarily be given.