Opinions

State v. Boyle 2007 ND 109
Docket No.: 20070057
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A conviction for operating a motor vehicle without liability insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Friedt 2007 ND 108
Docket No.: 20060276
Filing Date: 7/5/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: On appeal, a constitutional question will not be decided if the dispute can be resolved on other grounds.
A trial court's admission or exclusion of evidence will not be overturned on appeal unless the trial court has abused its discretion.
An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality, and relevancy of the evidence.

Estate of Elken 2007 ND 107
Docket No.: 20060331
Filing Date: 7/2/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: The term "includes" in a statutory definition is a word of enlargement and not a term of limitation.
A reasonably ascertainable creditor entitled to actual notice of the time for making a claim against a decedent's estate is a creditor that a personal representative can uncover with reasonably diligent efforts.

Helfenstein v. Schutt 2007 ND 106
Docket No.: 20060383
Filing Date: 6/29/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Family therapy may not be denied on the basis of the recommendation of experts unless the party seeking family therapy has been given the opportunity to cross-examine the experts.

Disciplinary Board v. Sletten 2007 ND 105
Docket No.: 20070184
Filing Date: 6/27/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Scheer v. Altru Health System, et al. 2007 ND 104
Docket No.: 20060333
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A dismissal without prejudice is ordinarily not appealable; however, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.
North Dakota's medical malpractice law requires a plaintiff to serve the defendant with an admissible expert affidavit that supports a prima facie case of malpractice within three months of serving the summons.
The trial court may set a later date for serving the affidavit for good cause shown by the plaintiff.
The trial court must dismiss the case without prejudice, on motion by the defendant, for a plaintiff's failure to timely serve the affidavit or move for good cause.
A plaintiff may move for good cause as late as in response to the defendant's motion to dismiss.

Good Bird v. Twin Buttes School District, et al. 2007 ND 103
Docket No.: 20070041
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Maring, Mary

Highlight: The party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.
A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct. Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.
Public employees who have legitimate expectations of continued government employment possess property interests of which they cannot be deprived without due process.

Interest of D.C.S.H.C. (CONFIDENTIAL)(CONSOLIDATED w/20060338) 2007 ND 102
Docket No.: 20060337
Filing Date: 6/26/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.
A prisoner's due process rights are generally satisfied if the prisoner is represented at a parental-rights-termination hearing by counsel and has an opportunity to appear by deposition or other discovery technique.
In general, there is no denial of due process when the parent testifies at a termination hearing by telephone and is represented by court-appointed counsel during the proceeding.
A North Dakota district court does not have authority to order another state to allow a prisoner to appear in a civil case.

Wagner v. Wagner 2007 ND 101
Docket No.: 20060228
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: After including all of the parties' marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties' assets.
A long-term marriage supports an equal distribution of property. Liquidation of an ongoing farming operation is ordinarily a last resort.
Property division and spousal support are interrelated and intertwined and often must be considered together.

State v. Voigt 2007 ND 100
Docket No.: 20060271
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A double jeopardy claim is timely if it is raised before or during trial proceedings.
Jeopardy attaches in a jury trial when the jury is empaneled and sworn.
Nonexclusive factors for determining whether termination of a criminal trial is supported by manifest necessity include: 1) whether counsel were afforded an opportunity to be heard on the issue; 2) whether alternatives to a mistrial were explored; and 3) whether the judge's decision was made after sufficient reflection.
Mistrials declared with the defendant's consent generally do not bar later prosecutions.
A terminating event occurs under the "continuing jeopardy" doctrine if a trial before a new tribunal reasonably implicates the policies of the double jeopardy clause.