Opinions

Martin v. Trinity Hospital 2008 ND 176
Docket No.: 20070329
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A subpoena to a named person must be served by personal service.
A court must quash a subpoena if it fails to allow a reasonable time for compliance or subjects a person to an undue burden.
Although mere uncertainty as to the exact amount of damages will not preclude recovery for breach of contract and the best evidence which the circumstances will permit is all the law requires, a party may not offer estimates and inexact evidence of damages if there is definite evidence available for an exact determination of the damages resulting from the breach.
The trial court may grant a pre-verdict judgment as a matter of law under N.D.R.Civ.P. 50(a) on its own motion.
It is unnecessary for an appellee to file a cross-appeal if the judgment below is entirely favorable, and the appellee may attempt to save the judgment by urging any ground raised in the trial court.

Ramsey County Farm Bureau, et al. v. Ramsey County, et al. 2008 ND 175
Docket No.: 20080054
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A county must substantially comply with mandatory post-enactment statutory publication requirements for an ordinance to become effective.
Declaratory judgment actions determine whether an ordinance is valid under current law.

State v. Crabtree 2008 ND 174
Docket No.: 20070280
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: When reviewing a district court's ruling on a motion to suppress, deference is given to the district court's findings of fact and conflicts in testimony are resolved in favor of affirmance.
The voluntariness of a confession depends upon questions of fact to be resolved by the district court. Because the district court is in a superior position to judge credibility and weight, great deference is given to a district court's determination of voluntariness.
A witness must ordinarily assert the privilege against self-incrimination when confronted with questions that the government should reasonably expect to elicit incriminating evidence, but one exception is when the assertion of the privilege is penalized so as to foreclose a free choice to remain silent and compel incriminating testimony.

Buchholz, et al. v. Burlington Resources (consolidated w/20080027) 2008 ND 173
Docket No.: 20080026
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When an oil and gas operating unit is created, existing contracts are to be regarded as modified or amended only to the extent necessary to conform to the applicable statutory provisions, the Industrial Commission's order creating the unit, or the unit operating agreement, and in all other respects remain in full force and effect.

City of Fargo v. Malme, et al. (cross reference w/20070043) 2008 ND 172
Docket No.: 20080069
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Absent statutory or contractual authority, each party to a lawsuit bears its own attorney fees.
After a successful appeal to the Supreme Court, the appellant becomes the prevailing party in the district court for purposes of taxing costs and disbursements.

Rennich v. ND Department of Human Services 2008 ND 171
Docket No.: 20070335
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Administrative agencies are authorized to promulgate rules implementing statutes which they are empowered to administer or enforce.
The term "rule" under the Administrative Agencies Practice Act does not include explanatory guidelines or manual provisions which are not intended to have the force and effect of law.

State v. Ferrie (Consolidated w/20070371) 2008 ND 170
Docket No.: 20070370
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Other
Author: Sandstrom, Dale

Highlight: A court may not dismiss a criminal case for failure to prosecute when there has been no notice to the state.

State v. Krogen 2008 ND 169
Docket No.: 20080041
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for driving under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Johnson (consolidated w/20080022) 2008 ND 168
Docket No.: 20080021
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgments for contact by bodily fluids with a law enforcement officer and a person lawfully present in a correctional facility who is not an inmate are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Ongstad, et al. v. Piper Jaffray & Co. 2008 ND 167
Docket No.: 20070260
Filing Date: 9/8/2008
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A party seeking to invoke application of federal preemption under the Securities Litigation Uniform Standards Act ("SLUSA") must show that (1) the action is a "covered class action" under the Act; (2) the action purports to be based upon state law; (3) the action alleges the defendant misrepresented or omitted a material fact, or used or employed a manipulative or deceptive device or contrivance; and (4) the action alleges the defendant's misrepresentations, omissions, manipulations, or deceptions were made in connection with the purchase or sale of a covered security.
In determining whether a class action is barred under SLUSA, courts look to the actual nature of the conduct alleged, and plaintiffs may not avoid SLUSA's preemptive effect by creative or artful pleading.
SLUSA's preemptive reach must be broadly construed, and is coextensive with federal regulatory authority over securities fraud under Section 10b and Rule 10b-5.
When a broker purchases or sells securities on a client's behalf without authorization, the unauthorized transaction may constitute securities fraud.

Von Ruden v. ND Workforce Safety and Insurance 2008 ND 166
Docket No.: 20070367
Filing Date: 9/8/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A court reviewing an administrative appeal may not consider additional evidence not contained in the administrative record filed with the court.
Waiver is a voluntary and intentional relinquishment of a known advantage, benefit, claim, privilege, or right, and may be established by express agreement or may be inferred from a party's acts or conduct.

Doeden v. Stubstad 2008 ND 165
Docket No.: 20070322
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A gift is a transfer of personal property voluntarily made without consideration and need not be in writing.
A valid gift requires an intention by the donor to give property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee.
If a written contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent, and the terms of the contract and the parties' intent are questions of fact.

Grinnell Mutual Reinsurance Co. v. Thies, et al. 2008 ND 164
Docket No.: 20080017
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: An insurance contract is construed to give effect to the mutual intention of the parties as it existed at the time of contracting.
Courts look first to the language of an insurance contract, and if the policy language is clear on its face, there is no room for construction.
A third-party liability insurance policy provides coverage for the insured's liability to another in which the insurer assumes a contractual duty to pay judgments recovered against the insured arising from the insured's negligence, while a first-party property insurance policy provides coverage for loss or damage sustained by the insured in which the insurer promises to provide coverage to the insured upon the happening of the risk insured against.

Coughlin Construction v. Nu-Tec Industries, et al. 2008 ND 163
Docket No.: 20070311
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Objections to damages must be raised in the district court to preserve those issues for appellate review.
Whether a party has made a good-faith effort to mitigate damages is a finding of fact that will be set aside on appeal only if it is clearly erroneous.
Although the officers and directors of a corporation generally are not liable for the ordinary debts of a corporation, the corporate veil may be pierced when the legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime.

Disciplinary Board v. McCray (Consolidated w/ 20070377) 2008 ND 162
Docket No.: 20070376
Filing Date: 9/3/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5, 4.1, 5.4, 5.5(e), 7.3(a), 8.4(c), (f), and (g), and N.D.R. Lawyer Discipl. 1.2A(3) and (8).
Improper solicitation of clients occurs when a lawyer involves himself with an organization that independently targets and solicits prospects for his representation.

Sanders v. Gravel Products, Inc. 2008 ND 161
Docket No.: 20080001
Filing Date: 9/2/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A person may waive contractual rights and privileges to which that person is legally entitled.
A claim that ERISA was violated because an employer failed to properly fund a retirement plan is within the concurrent jurisdiction of a state court.
A contract between one employee and an employer can be an employee benefit plan subject to ERISA.
The existence of an ERISA plan is a mixed question of fact and law.

Lucas v. Porter, et al. 2008 ND 160
Docket No.: 20070169
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The rule against splitting a cause of action is part of a rule of abatement and part of a rule of res judicata.
A pending action may be pleaded as a bar to a subsequent action where a final judgment in the prior action, pleaded in abatement, would support a plea of res judicata on the issues involved in the second action.
Claim preclusion prevents the relitigation of claims that were raised or could have been raised in prior actions between the same parties or their privies and means a valid existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to the parties and their privies in all other actions.
Claim preclusion applies even if subsequent claims are based upon a different legal theory.
For proposes of claim preclusion, privity exists if a person is so identified in interest with another that the person represents the same legal right.

Gustafson v. Poitra, et al. 2008 ND 159
Docket No.: 20070301
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Foreclosure
Author: Kapsner, Carol

Highlight: Generally, a statute of limitations is an affirmative defense that is waived if not pleaded.
Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.
In responding to a summary judgment motion, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.
Under N.D.R.Civ.P. 59, the district court in its sound discretion may vacate a decision and grant a new trial if there is newly discovered material evidence that the party could not have discovered and produced at the trial with reasonable diligence.

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.

Estate of Conley 2008 ND 148
Docket No.: 20070321
Filing Date: 7/23/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: North Dakota recognizes the common law presumption that a lost or missing will is presumed to be revoked by the testator.
The party seeking to probate the lost or missing will must demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi.

Weigel, et al. v. Lee, et al. 2008 ND 147
Docket No.: 20070296
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: A decedent's children are able to seek recovery of non-economic damages in a wrongful death action.

State v. Scholes 2008 ND 146
Docket No.: 20070316
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The validity of a search warrant is reviewed using the totality-of-the-circumstances approach, considering all of the information for probable cause together and testing affidavits executed in support of a warrant in a commonsense and realistic fashion.
Suppression of evidence is not required for a violation of N.D.R.Crim.P. 41 absent a showing that the defendant was prejudiced, or that the violation was an intentional and deliberate disregard of the rule, or that the violation offends the Fourth Amendment.
To succeed on a challenge to a search warrant based on a claim that law enforcement officers omitted information in the supporting affidavit, the defendant must show: (1) that law enforcement officers omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.

State v. Rivet (Consolidated w/ 20080011) 2008 ND 145
Docket No.: 20080008
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Prosecutor's use of a defendant's post-arrest silence after receiving Miranda warnings to impeach a defendant's exculpatory story, told for the first time at trial, violates the defendant's right to due process.
Although the right to remain silent is a personal constitutional right, under these circumstances, the violation of defendant's right to remain silent so impacted co-defendant's right to a fair trial as to necessitate a reversal of the co-defendant's judgment as well.

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.

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.