Opinions

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.

State v. Coppage 2008 ND 134
Docket No.: 20070304
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: A motion for a new trial not based on newly discovered evidence must be filed within ten days of the verdict under N.D.R.Crim.P. 33.
A jury verdict convicting a defendant of both attempted murder and aggravated assault is not legally inconsistent.
Aggravated assault is not a lesser-included offense of attempted murder, except under subsection 4 of section 12.1-17-02, N.D.C.C.
Unchallenged jury instructions become the law of the case.
A criminal defendant's actions need not result in a potentially fatal injury in order for the defendant to be convicted of attempted murder under N.D.C.C. 12.1-16-01(1)(b).

Sambursky v. State (CON w/20070178 thru 20070182) (Cross-Ref w/20050330-335) 2008 ND 133
Docket No.: 20070177
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal.

Barros v. ND Dept. of Transportation 2008 ND 132
Docket No.: 20080066
Filing Date: 6/26/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department of Transportation is not required to call all persons who have handled a blood sample to establish a chain of custody for the sample. To establish chain of custody and introduce the results of a blood test, the Department's must show that the sample tested is the same one originally drawn from the defendant.

Interest of K.L. and M.S. (CONFIDENTIAL)(consolidated w/20070310) 2008 ND 131
Docket No.: 20070309
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State cannot rely on past deprivation alone, but must provide prognostic evidence, Ademonstrating the deprivation will continue.
A claim for ineffective assistance of counsel in termination proceedings is recognized, but the necessary evidence of the claim must appear on the face of the record and a case will not be remanded for the purpose of developing a record to support the claim.

Matter of E.W.F. (Confidential) 2008 ND 130
Docket No.: 20080037
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court's order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.
In addition to the three requirements contained in the plain language of the statute governing sexually dangerous individual commitments, substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior.
In a civil proceeding, a party's failure to offer evidence refuting or otherwise explaining the opposing party's witness testimony warrants the inference that the opposing party's witness's statements were true and correct.

Laib v. Laib 2008 ND 129
Docket No.: 20070079
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When the district court in a divorce proceeding has made specific findings that the domestic violence presumption against an award of custody has been triggered and the perpetrator has failed to rebut the presumption, the court may not later change custody to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.
A motion for relief from a judgment is not a substitute for an appeal.

Adoption of C.D. (CONFIDENTIAL) 2008 ND 128
Docket No.: 20070171
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Adoption
Author: VandeWalle, Gerald

Highlight: An Indian tribe's determinations of its own membership and eligibility for membership are binding and conclusive in a proceeding under the Indian Child Welfare Act ("ICWA").
The burden of proof is upon the party asserting ICWA's applicability to present evidence that the child is an "Indian child" as defined in 25 U.S.C. section 1903(4).
Allegations in pleadings, motions, or briefs are not evidence.
For purposes of applying ICWA, membership in a tribe is not synonymous with enrollment as a member of a tribe, and a party may be a member of a tribe without being enrolled in the tribe.
ICWA applies only to tribal Indians, and does not extend to ethnic Indians who are not eligible for membership in a federally recognized Indian tribe.

Allen v. State 2008 ND 127
Docket No.: 20080025
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Everett 2008 ND 126
Docket No.: 20070074
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

O'Connor v. Jensen 2008 ND 125
Docket No.: 20080035
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Amended judgment modifying child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Murphy v. State 2008 ND 124
Docket No.: 20070375
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Ernst (Cross-reference 20040117 & 20060250) 2008 ND 123
Docket No.: 20070359
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Huber (Consolidated w/20080059) 2008 ND 122
Docket No.: 20080058
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author:

Highlight: Criminal judgments for DUI and DUS are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Mastre 2008 ND 121
Docket No.: 20080029
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment for terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Mayer 2008 ND 120
Docket No.: 20080046
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for possessing marijuana, methamphetamine, and drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Schmeets (Consolidated w/20070361) 2008 ND 119
Docket No.: 20070360
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4), and remanded to correct clerical errors.

Riemers, et al. v. State, et al. 2008 ND 118
Docket No.: 20070307
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author:

Highlight: A district court judgment awarding attorney fees for a prior appeal is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Red River Wings, Inc. v. Hoot, Inc. (Consolidated w/20070088 & 20070089) 2008 ND 117
Docket No.: 20070087
Filing Date: 6/20/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Unambiguous contracts are particularly amenable to summary judgment.
Limited partners who participate in the business of the partnership or act in concert with the general partner are subject to the fiduciary duties of good faith, fair dealing, loyalty, and care applicable to partners in a general partnership.
Whether a person has breached a fiduciary duty is a question of fact.
Majority limited partners who control or act in concert with the general partner can be held personally liable to minority limited partners for damages for breach of fiduciary duties.
In the breach of a partnership contract by wrongful dissolution, the damages recoverable include the value of the profits the plaintiff otherwise would have received had the partnership not been wrongfully dissolved.
District courts are considered experts in determining what is a reasonable amount of attorney fees, and an award will not be reversed absent a clear abuse of discretion.
Whether interference with a contractual relationship is justified is a question of fact.
The doctrines of frustration of purpose and impossibility do not apply if the frustration or impossibility is caused by a party to the contract.
When an agreement does not specify an interest rate, the rate for prejudgment interest is 6 percent from the time the right to recover vested.

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.

Richter v. ND Dept. of Transportation 2008 ND 105
Docket No.: 20080036
Filing Date: 6/5/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Evidence that is excludable on constitutional grounds may be excluded by an administrative agency upon proper objection.

Alerus Financial, N.A., et al. v. Western State Bank, et al. 2008 ND 104
Docket No.: 20070066
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: In construing a trust agreement, the court's primary objective is to ascertain the settlor's intent.
A power of attorney is an instrument in writing authorizing another to act as one's agent, and the agent holding the power of attorney is the attorney-in-fact.
An agency relationship involves both a contractual and a fiduciary relationship, and the interpretation of an agent's authority is governed by the rules for construing contracts, except to the extent the fiduciary relationship requires a different rule.

State v. Hernandez 2008 ND 103
Docket No.: 20070380
Filing Date: 6/5/2008
Case Type: Appeal - Criminal - Sexual Offense
Author:

Highlight: A district court order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Suelzle v. ND Dept. of Transportation 2008 ND 102
Docket No.: 20080030
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Per Curiam

Highlight: Revocation of driving privileges summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Riemers v. State of North Dakota, et al. 2008 ND 101
Docket No.: 20070317
Filing Date: 6/2/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Crothers, Daniel John

Highlight: When the Supreme Court denies a petition to review a Court of Appeals decision, the decision becomes final and will not be differently determined on a subsequent appeal in the same case.
A trial court is considered an expert in determining the amount of attorney fees, and its decision concerning the amount and reasonableness of the attorney's fees will not be overturned on appeal absent a clear abuse of discretion.
Paralegal costs may be included in reasonable attorney's fees.

Guardianship/Conservatorship of D.M.O. (cross-reference 20040235) 2008 ND 100
Docket No.: 20060280
Filing Date: 5/23/2008
Case Type: Appeal - Civil - Guardian/Conservator
Author: Crothers, Daniel John

Highlight: The Supreme Court will dismiss an appeal when issues become moot or academic and there is no actual controversy left for our determination.
An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief.

Larson v. Hagerty, et al. 2008 ND 99
Docket No.: 20080056
Filing Date: 5/19/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author:

Highlight: A district court judgment dismissing a complaint which alleged that state officials had deprived the appellant access to the courts is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Reopelle v. Workforce Safety and Insurance, et al. 2008 ND 98
Docket No.: 20070240
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Unless otherwise provided, statutes in effect on the date of an injury govern a claimant's right to collect workers compensation benefits.
The five-year limit for partial disability benefits applies to claimants who have partial loss of earnings capacity occurring after June 30, 1991.

Waldie v. Waldie 2008 ND 97
Docket No.: 20070342
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's decision regarding redistribution of marital property and debt is reviewed under an abuse-of-discretion standard.
A redistribution of marital property and debt is warranted when there is a noncompliance with a court order that results in a significant shift in equity.

State v. $33,000 U.S. Currency, et al. 2008 ND 96
Docket No.: 20070336
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court's denial of a motion for relief from a default judgment will be reversed if the court abused its discretion.
A district court should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits.
Whether an appearance has been made for purposes of N.D.R.Civ. P. 55(a) is a question of law.
An appearance is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.

Riemers v. Mahar 2008 ND 95
Docket No.: 20070232
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A public figure is prohibited from recovering damages for defamatory criticism unless there is clear and convincing evidence that the statements were made with actual malice.
Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden at trial.

State v. Schwab (Consolidated w/20070277) 2008 ND 94
Docket No.: 20070276
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Once a blood alcohol test report is admitted into evidence, a court abuses its discretion by refusing to permit a DUI defendant to examine the analyst who performed the chemical testing, if the analyst is present at court.

State v. Curtis (cross ref. 20070250 & 20070333) 2008 ND 93
Docket No.: 20070249
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A criminal conviction will be reversed for insufficient evidence only when, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Threats are statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

Walberg v. Walberg, et al. 2008 ND 92
Docket No.: 20070259
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Statutes are construed to harmonize them and avoid an unreasonable result or unjust consequence.
An agreement purporting to waive past-due child support is void and may not be enforced unless the child support obligee and any assignee of the obligee have consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.

Voisine v. State 2008 ND 91
Docket No.: 20070313
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer's activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.
A probation condition is not violated during incarceration if the condition unambiguously is not effective until release.

Krueger v. Krueger 2008 ND 90
Docket No.: 20070196
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A spousal support award must consider a disadvantaged spouse's needs and a supporting spouse's ability to pay.
Permanent spousal support is appropriate when an economically disadvantaged spouse cannot be equitably rehabilitated to make up for opportunities lost during the course of a marriage, while rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of a divorce by increasing the disadvantaged spouse's earning capacity.
Voluntary retirement by a supporting spouse that results in a material change in circumstances may be a valid basis for modification of spousal support.

Interest of I.B.A. and C.B.A. (CONFIDENTIAL)(Consolidated w/20070334) 2008 ND 89
Docket No.: 20070328
Filing Date: 5/15/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: While there is no constitutional right to appear at the hearing, a parent must be represented by counsel at a hearing to terminate parental rights, absent a valid waiver of counsel.
A district court should make in-depth individual findings regarding each parent, rather than combining the parents together in its analysis of whether the children are deprived and whether deprivation is likely to continue.

Teigen, et al. v. State 2008 ND 88
Docket No.: 20070134
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Kapsner, Carol

Highlight: A court can decide constitutional issues if at least one plaintiff has standing.
All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates it contravenes the state or federal constitution.
The justice, wisdom, necessity, utility and expediency of legislation are questions for the legislative, and not for judicial determination.
Statutes are construed as a whole and harmonized to give meaning to related provisions and are construed to avoid constitutional infirmities.
A statute requiring the wheat commission to expend two mills of a wheat tax for contracts with no more than two trade associations incorporated in North Dakota that have as their primary purpose the representation of wheat producers does not violate state constitutional provisions prohibiting special laws, special privileges and immunities, and gifts.

Hoover v. Director, N.D. Dept. of Transportation 2008 ND 87
Docket No.: 20070258
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient.
If a police officer has probable cause to arrest a suspect, the officer has the right to accompany and monitor the movements of the suspect.

Interest of T.E. (Confidential) 2008 ND 86
Docket No.: 20080034
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court must to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately.

Ike v. Director, N.D. Dept. of Transportation 2008 ND 85
Docket No.: 20070302
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The issuance of a temporary operator's permit to a driver having an alcohol concentration exceeding the per se limit is a basic and mandatory requirement under N.D.C.C. 39-20-03.1. The issuance of the permit serves as the Department's official notification to the driver of the Department's intent to revoke, suspend, or deny driving privileges.
An officer's error as to a provision that is not basic and mandatory to the Department's authority to proceed is not reversible when there is no prejudice.

State v. Gay 2008 ND 84
Docket No.: 20070348
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.
A search, under the Fourth Amendment, occurs when the government intrudes upon an individual's reasonable expectation of privacy.
A pat-down search is not simply a routine preliminary to a more extensive search.
The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.

State v. Vaagen 2008 ND 83
Docket No.: 20070337
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: A criminal conviction of failure to pay child support is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Feist 2008 ND 82
Docket No.: 20070305
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: A criminal judgment for fleeing or attempting to elude a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3) and (4).

Interest of C.J., S.J., and K.W. (CONFIDENTIAL) (consolidated w/20070315) 2008 ND 81
Docket No.: 20070314
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Juvenile Law
Author:

Highlight: A juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Ward, et al. v. Bullis, et al. 2008 ND 80
Docket No.: 20070188
Filing Date: 4/25/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An attorney may be liable for securities law violations if he is an agent who effects or attempts to effect the purchase or sale of securities, and he aids or participates in any way in the sale or contract for sale made in violation of the Securities Act.
Summary judgment is appropriate when either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or resolving the factual disputes would not alter the result.

Manske v. Workforce Safety and Insurance 2008 ND 79
Docket No.: 20070173
Filing Date: 4/23/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A worker's employment need not be the sole cause of injury to be compensable. It is sufficient if a work condition is a substantial contributing factor to the disease.
The fact that an employee may have physical conditions or personal habits which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim.

Haugenoe v. Workforce Safety and Insurance, et al. 2008 ND 78
Docket No.: 20070099
Filing Date: 4/22/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Section 65-01-09, N.D.C.C., does not grant WSI a subrogation interest in an injured worker's legal malpractice claim against an attorney who committed malpractice in handling the injured worker's claim against a third-party tortfeasor.

Sandvick, et al. v. LaCrosse, et al. 2008 ND 77
Docket No.: 20070146
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: The crucial elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive.
For a business enterprise to constitute a joint venture, the following four elements must be present: (1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed. There is, however, no fixed formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts.
Principles of partnership law apply to the joint venture relationship.
Joint venturers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.

Disciplinary Board v. O'Donnell (Consolidated w/ 20080085) 2008 ND 76
Docket No.: 20080084
Filing Date: 4/18/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer is suspended from the practice of law for two years, but the suspension is stayed for two years on conditions. Interim suspension is vacated.

Grosgebauer v. N.D. Dept. of Transportation 2008 ND 75
Docket No.: 20070299
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Whether a driver affirmatively refused to submit to alcohol testing is a determination of fact that is significantly reliant on the credibility of witnesses.
To cure a refusal to submit to alcohol testing, the consent to submit to testing must be clearly articulated and meet other criteria.

Stockman Bank of Montana v. AGSCO, Inc., et al.(Cross Ref w/20060174) 2008 ND 74
Docket No.: 20070357
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Where a party is erroneously ordered to pay another, the party is entitled to interest at the legal rate set by N.D.C.C. 47-14-05, when the judgment is later reversed.

State v. Jacobson 2008 ND 73
Docket No.: 20070103
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: An appearance of partiality requiring a judge's disqualification does not automatically result from a judge's casual or social acquaintance with a witness.
A disqualified judge whose withdrawal from a case is not mandatory has the option of either withdrawing or disclosing to the parties on the record the basis for his disqualification.
A party seeking to disqualify a judge from a proceeding must file a timely motion.
A party who knows the facts that would form the basis of disqualification prior to entry of a judgment against him waives his right to disqualification of a judge by failing to request disqualification until after the judge enters a judgment adverse to that party.

Bateman v. City of Grand Forks 2008 ND 72
Docket No.: 20070217
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.
Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid.
A special assessment against any property must not exceed the benefit the property receives from the improvement.
A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.

Lynnes v. Lynnes 2008 ND 71
Docket No.: 20070274
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The district court's valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.
A relatively insignificant error in valuation of a marital asset will not, standing alone, constitute sufficient grounds for reversal of the judgment.
If substantial amount of debts are excluded from the marital estate, it is not clear that the district court would have reached the same result in allocating the assets and debts had it correctly included the debts as part of the marital estate before allocating the debts between the parties.

State v. Gendron 2008 ND 70
Docket No.: 20070199
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Restitution orders will be affirmed unless the district court acted outside the limits set by statute, which is similar to an abuse of discretion standard.
The prosecution has the burden of proving the amount of restitution by a preponderance of the evidence.
Evidentiary imprecision on the amount of damages does not preclude recovery by restitution.

State v. Loomer (Consolidated w/20070236-20070239) 2008 ND 69
Docket No.: 20070235
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: For a not guilty plea, the Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence.
Unless a defendant was prejudicially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction under N.D.R.Crim.P. 7(c)(2).

Wenzel Estate v. Wenzel 2008 ND 68
Docket No.: 20070264
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's findings in a partition action will not be reversed on appeal unless they are clearly erroneous.
A trial court's equitable powers in partition actions do not include the power to order one party to buy out the other party's share of jointly owned property.

Oyloe v. ND Department of Human Services 2008 ND 67
Docket No.: 20070251
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A Medicaid-qualifying trust is considered an available asset for Medicaid eligibility purposes.
A resulting trust in favor of the settlor arises not only where an intended trust fails altogether but also where it fails in part, and where the trust fails in part, there is a resulting trust of so much of the property as is not appropriated to the part of the trust that does not fail.
Public policy will not allow the social safety net for persons who are old, poor, and unfortunate to be exploited by those who are affluent.

State v. Hidanovic 2008 ND 66
Docket No.: 20070130
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: In considering whether to grant a new trial on the ground of juror misconduct, a district court must decide whether there was misconduct and, if so, whether the misconduct could have affected the verdict of a hypothetical average juror.
A juror generally may not testify about matters or statements occurring during the course of the jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information or improper outside influence.
If evidence of possible extraneous prejudicial information or outside influence is discovered, the proper procedure is to cease investigation to reduce the possibility of juror taint from extrajudicial pressures and to notify the court so it can conduct appropriate questioning.
The rule excluding juror testimony about statements during deliberations does not preclude evidence to show a juror lied during voir dire.
To prevail on a motion for new trial on the ground of newly discovered evidence, a defendant must show the evidence was discovered after trial, the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, the newly discovered evidence is material to issues at trial, and the weight and quality of the newly discovered evidence would likely result in an acquittal.
In ruling on the relevancy of evidence, a district court has broad discretion to balance the probative value of the evidence against the risk of unfair prejudice.
Determining the admissibility of an out-of-court photographic identification of a defendant involves a two-step inquiry to determine whether the photographic identification procedure was suggestive, and whether the identification was, under the totality of the circumstances, reliable.

State v. Kieper 2008 ND 65
Docket No.: 20070100
Filing Date: 4/17/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Mere suspicion that criminal activity is taking place, which may warrant further investigation, does not rise to the level of probable cause to support issuance of a search warrant.
Issues not raised before the district court will not be considered for the first time on appeal.

City of Fargo v. Levine 2008 ND 64
Docket No.: 20070098
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The government will be ordered to produce source code for the Intoxilyzer only if the defendant establishes that the code is material and that the code is within the possession, custody, or control of the government.

State v. Herbel 2008 ND 63
Docket No.: 20070344
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Conviction of possession of marijuana by a driver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Wessman v. Wessman 2008 ND 62
Docket No.: 20070069
Filing Date: 3/31/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous.
Under N.D.C.C. 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.
When there is credible evidence of domestic violence, it dominates the hierarchy of "best interest" factors to be considered.
When a district court addresses whether evidence of domestic violence triggers the presumption under N.D.C.C. 14-09-06.2(1)(j), we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.

Stanhope v. Phillips-Stanhope 2008 ND 61
Docket No.: 20070137
Filing Date: 3/27/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.

Sauby v. City of Fargo 2008 ND 60
Docket No.: 20070202
Filing Date: 3/25/2008
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: A home rule city may not impose fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations under state law.
General language in judicial opinions must be read in the context of the issues before a court.
A court will not follow opinions of the Attorney General if they are inconsistent with the statutory interpretation that the court deems reasonable.

Olson v. Workforce Safety and Insurance 2008 ND 59
Docket No.: 20070094
Filing Date: 3/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 2003 version of N.D.C.C. 65-01-02(5)(b), the calculation of a self-employed worker's average weekly wage was based upon the net profit shown on Schedule C of his preceding year's tax return.

Hitz v. Hitz 2008 ND 58
Docket No.: 20070211
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.

Erickson, et al. v. Brown, et al. 2008 ND 57
Docket No.: 20070044
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.

Serr v. Serr 2008 ND 56
Docket No.: 20070231
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

Young v. Young 2008 ND 55
Docket No.: 20070293
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.

Niemann v. Niemann 2008 ND 54
Docket No.: 20060332
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.

Buchholtz v. Director, N.D. Dept. of Transportation 2008 ND 53
Docket No.: 20070241
Filing Date: 3/20/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed.
"Observing" a DUI arrestee is not the only manner of "ascertaining" that the arrestee had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

State v. Jacobsen 2008 ND 52
Docket No.: 20070105
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: An order revoking probation is reviewed under a two-step analysis, determining (1) whether the factual finding of a probation violation was clearly erroneous and (2) whether the district court abused its discretion when it decided revocation of probation was warranted.
Although the State generally has the burden of proving by a preponderance of the evidence that the defendant violated the terms of probation, when revocation proceedings are triggered by a failure to pay restitution, the defendant has the burden to raise and prove an inability to pay restitution as ordered by the court.
A sentencing court generally may revoke probation and impose incarceration for failure to pay restitution only after considering the reason for nonpayment and whether there are adequate alternative forms of punishment, but this limitation does not apply when restitution is ordered as part of a plea agreement.

Interest of B.B. (CONFIDENTIAL) (Cross-ref. w/ 20060322) 2008 ND 51
Docket No.: 20070233
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Juvenile Law
Author: VandeWalle, Gerald

Highlight: A child is deprived if clear and convincing evidence shows the child is without the proper parental care necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents or guardians.
Reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home, and to make it possible for a child to return safely to the child's home.

State v. Brockel 2008 ND 50
Docket No.: 20070139
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: An officer can order a driver to sit in the patrol car when the officer issues a citation.
To justify a pat-down search, an officer must have a reasonable suspicion the person is armed and dangerous, or the person consented to the search.

Makedonsky v. ND Department of Human Services 2008 ND 49
Docket No.: 20070183
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: An applicant for Medicaid benefits has the burden of proving eligibility.
An applicant for Medicaid benefits may be required to initiate an appropriate legal action to make an asset available for purposes of calculating eligibility for Medicaid benefits.
An attorney in fact has a relation of personal confidence with the principal and is deemed a trustee, and all transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.

White v. Altru Health System, et al. 2008 ND 48
Docket No.: 20070031
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: The medical malpractice statute in effect at the time of injury applies.

Huwe v. Workforce Safety and Insurance 2008 ND 47
Docket No.: 20070067
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Although WSI has the authority to weigh the credibility of medical evidence and resolve conflicting medical opinions, it may not do so in an unreasoned manner but must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.
A claimant reapplying for disability benefits under N.D.C.C. 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition.

Mulske v. State 2008 ND 46
Docket No.: 20070245
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Heyen v. State 2008 ND 45
Docket No.: 20070271
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Tibor (Consolidated w/ 20070190 & 20070191) 2008 ND 44
Docket No.: 20070189
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: District court criminal judgments for guilty of gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Darby (Cross Reference w/20060368 & 20060278) 2008 ND 43
Docket No.: 20070092
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Theft
Author:

Highlight: A criminal judgment for burglary and simple assault is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Disciplinary Board v. Vela (Consol. w/ 20080032; Cross ref. 20050173) 2008 ND 42
Docket No.: 20080031
Filing Date: 3/17/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered

Sabo, et al. v. Keidel, et al. 2008 ND 41
Docket No.: 20070206
Filing Date: 3/3/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Summary judgment may be appropriate in a case regarding an unambiguous trust.
Extrinsic evidence is not admissible to contradict the terms of an unambiguous trust instrument.
A life estate holder's interest in property includes both the right to possession and use including the right to profits generated by the property during the tenant's life.