Opinions

Baukol Builders v. County of Grand Forks 2008 ND 116
Docket No.: 20060120
Filing Date: 6/9/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party cannot seek the benefits of a transaction under the law and thereafter challenge the validity of the transaction.
A governing body has some discretion to award a public improvement construction contract to the lowest responsible bidder.
In assessing the lowest responsible bidder, a governing body may consider the prospective bidder's ability, capacity, reputation, experience, and efficiency.
Absent statutory or contractual authority, each party to a lawsuit bears its own attorney fees.

Peterson v. Ziegler 2008 ND 115
Docket No.: 20070275
Filing Date: 6/9/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Generally, the time computation rules in N.D.R.Civ.P. 6 apply to an appeal from an administrative agency decision unless the provisions of the rule conflict with a governing statute.
A driver is not harmed by a law enforcement officer's failure to give the implied consent advisory before the driver consents to a chemical test.

Burlington Northern v. Fail, et al. 2008 ND 114
Docket No.: 20070212
Filing Date: 6/9/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.
A reservation must be clearly expressed in a deed and described with enough certainty so it can be identified as to its location.

Olson v. State 2008 ND 113
Docket No.: 20070071
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A petitioner seeking post-conviction relief through DNA testing of evidence must present a prima facie case showing the evidence to be tested has been subject to a sufficient chain of custody.
To establish a prima facie case, the petitioner must present testimony or otherwise show that evidence still exists and has not been substituted, tampered with, replaced, or altered in any material respect.

Overboe v. Brodshaug 2008 ND 112
Docket No.: 20070263
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A motion to vacate a default judgment is addressed to the sound discretion of the district court.
A statute of limitation does not defeat defensive recoupment, which must arise out of the same transaction that is the subject matter of the plaintiff's action and can only be used to reduce or avoid the plaintiff's recovery.
Interest before maturity is compensation for the use of money and is regulated by usury statutes, while interest allowed after maturity is considered compensation for damages for the wrongful detention of money and is not regulated by the usury statutes.

Lawrence v. Delkamp 2008 ND 111
Docket No.: 20070131
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Rule 43(a), N.D.R.Civ.P., permits, and does not mandate, courts to allow presentation of testimony by contemporaneous transmission.
The admissibility of telephonic testimony is conditioned on good cause in compelling and unexpected circumstances and the availability of appropriate safeguards.
It is within the district court's discretion to deny a party's request to allow telephonic testimony in the absence of appropriate safeguards, and it is within the district court's discretion to determine that having someone onsite to administer an oath or affirmation is an appropriate safeguard required for the admissibility of telephonic testimony.

Wheeler v. State (consolidated w/20070164 & 20070165) 2008 ND 109
Docket No.: 20070163
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An applicant for post-conviction relief has the burden of establishing grounds for relief.
A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
In a post-conviction proceeding, the district court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed.

State v. Curtis (cross ref. 20070249 & 20070333) 2008 ND 108
Docket No.: 20070250
Filing Date: 6/5/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A criminal defendant's Sixth Amendment right to compulsory process is not absolute, and does not guarantee the right to secure the attendance and testimony of any and all witnesses.
A defendant alleging a violation of his right to compulsory process has the burden of showing that the testimony would have been both favorable and material to his defense.
The civil dispute doctrine, which allows a court to dismiss criminal proceedings if the matter should have been adjudicated civilly, is limited to cases where there is a legitimate property or contract dispute that is better suited for resolution in a civil matter.

B.L.L., et al. v. W.D.C. (CONFIDENTIAL) 2008 ND 107
Docket No.: 20070324
Filing Date: 6/5/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: Whether a child has been abandoned is a question of fact.
Non-custodial parents abandon their children if they fail, without justifiable cause, to communicate with the child or to provide for the care and support of the child as required by law.
While imprisonment alone is not sufficient to constitute intentional abandonment, imprisonment when combined with other factors, such as parental neglect and withholding parental affection, may support a finding that the parent had relinquished all parental claims and thereby abandoned the child.

Guardianship/Conservatorship of V.J.V.N. 2008 ND 106
Docket No.: 20080024
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: The district court has discretionary authority regarding the management of a protected person's estate, and the court's decisions on those matters will be reversed on appeal only for an abuse of discretion.
When the Supreme Court interprets statutes, its duty is to ascertain the legislative intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.