Opinions

Disciplinary Board v. Light 2007 ND 129
Docket No.: 20070226
Filing Date: 8/16/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Capital Electric Coop., Inc. v. City of Bismarck, et al. (cons w/20060270) 2007 ND 128
Docket No.: 20060199
Filing Date: 7/27/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: If a municipality has enacted an ordinance that requires electric suppliers to have a franchise, a rural electric cooperative must have a franchise to provide electric service within the municipality.
A franchise is a contract and is interpreted under rules for interpretation of a contract. Contracts are construed to give effect to the parties' mutual intention at the time of contracting, and the parties' practical interpretation of a franchise is entitled to some influence.

Home of Economy v. Burlington Northern 2007 ND 127
Docket No.: 20070002
Filing Date: 7/27/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: North Dakota law does not preclude an action for a prescriptive easement for a public road across a railroad line.
A party asserting the existence of a public road by prescription has the burden of establishing by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of a road by the public under a claim of right for 20 years.
Adverse and hostile use is ordinarily a question of fact.

State v. Vantreece 2007 ND 126
Docket No.: 20060139
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.

State v. Gaede 2007 ND 125
Docket No.: 20060188
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: A defendant may not be convicted upon the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime.
Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about the defendant's invocation of the right to remain silent.
Evidence of prior bad acts or convictions is not admissible to prove a defendant's character in order to show action in conformity therewith, but may be admissible for other purposes, such as motive, intent, preparation, or plan.
Prior-bad-act evidence may be admissible to provide a more complete story of a crime by putting the crime in context of happenings near in time and place.

Silbernagel, et al. v. Silbernagel, et al. 2007 ND 124
Docket No.: 20060037
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Once a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
The parol evidence rule is a rule of substantive law and precludes the use of evidence of prior negotiations and agreements to vary or add to the terms expressed in the written contract.
A district court's findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the decision.
Whether to administer sanctions for noncompliance with the Rules of Appellate Procedure is discretionary with the Court.

Steen v. State (cross-reference w/20040052) 2007 ND 123
Docket No.: 20060349
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A petitioner for post-conviction relief has the burden of establishing grounds for post-conviction relief.
An application for post-conviction relief may be denied on grounds of res judicata and misuse of process.
Post-conviction relief may be denied as res judicata if the same claim or claims were fully and finally determined in a previous proceeding. Misuse of process occurs when the applicant inexcusably fails either to raise a claim in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding, or if the applicant files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

State v. Schweitzer 2007 ND 122
Docket No.: 20060243
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Assault
Author: Sandstrom, Dale

Highlight: For a statement to be admissible under the "excited utterance" exception to the hearsay rule, the proponent must show: (1) a startling event or condition; and (2) the statement is the product of the declarant's stress or excitement resulting from the startling event or condition.
Hearsay included within hearsay is not excluded as hearsay if each part of the combined statements falls within a hearsay exception.
A conviction will be reversed on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
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 the counsel's deficient performance.

Rahn v. State (Consolidated w/20070023 & 20070024) 2007 ND 121
Docket No.: 20070022
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An order denying a motion to correct an illegal sentence under N.D.R.Crim.P. 35(a) is appealable, but an order denying a motion for reduction of sentence under N.D.R.Crim.P. 35(b) is not appealable.
Post-conviction proceedings under N.D.C.C. ch. 29-32.1 may not be used to challenge the Department of Corrections' failure to provide medical treatment to an inmate.

McGhee v. Mergenthal 2007 ND 120
Docket No.: 20060268
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: An implied trust is created by operation of law and is of two types: constructive trusts and resulting trusts.
An implied trust must be established by clear and convincing evidence.
A resulting trust stems from acts or expressions of the parties indicating an intent that a trust relation result from their transaction.
The two essential elements of a constructive trust are unjust enrichment and a confidential relationship.