Opinions

State v. Enno 2007 ND 93
Docket No.: 20060273
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A judgment entered after a jury convicted the defendant of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Hernandez v. State 2007 ND 92
Docket No.: 20070051
Filing Date: 6/26/2007
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).

Olsrud v. Bismarck-Mandan Orchestral Association 2007 ND 91
Docket No.: 20060239
Filing Date: 6/12/2007
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: N.D.R.Civ.P. 5 applies to pleadings after the original complaint is served and the court acquires personal jurisdiction over the defendant, while N.D.R.Civ.P. 4 applies to a court's exercise of personal jurisdiction over a defendant and how service of process may be made.
A plaintiff has the burden of establishing that authority to receive service of process exists between a defendant and the individual served.
A party waives an argument by not providing supporting argument, and without supporting reasoning or citation to relevant authorities, an argument is without merit.

State ex rel. Stenehjem v. Philip Morris Inc., et al. (consol. w/20060213) 2007 ND 90
Docket No.: 20060207
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The de novo standard of review applies to an appeal from the denial of a motion to compel arbitration, unless the district court's decision was based on factual findings, in which case the clearly erroneous standard applies.
Use of the words, "including, without limitation," reflects a contrary intention that an enumeration is not exhaustive, rendering the doctrine of ejusdem generis inapplicable.
The plain and unambiguous language of the tobacco master settlement agreement requires arbitration of a dispute over application of the diligent enforcement exemption to the non-participating manufacturer adjustment.

State v. Falconer 2007 ND 89
Docket No.: 20060210
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A defendant is entitled to a self-defense jury instruction if there is evidence to support it.
A defendant does not have standing to challenge a grant of immunity to another person.
An accomplice's testimony must be corroborated by independent evidence that tends to connect the defendant with the crime.

D.G.L. Trading Corp. v. Reis 2007 ND 88
Docket No.: 20070052
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The general rule that questions not raised before the district court will not be considered on appeal cannot be applied so narrowly as to affirm erroneous or incomplete applications of law in favor of judicial expediency.
U.C.C. provisions allow parties to make separate contracts regarding the return terms and risk of loss.

State v. Dennis 2007 ND 87
Docket No.: 20060265
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Consistent with the presumption that compliance with the constitutions of the state and of the United States is intended, criminal statutes are strictly construed in favor of the defendant and against the government.
When a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.
N.D.C.C. 19-03.1-23.1(1)(a) provides an offense enhancement only for the manufacture or distribution of a controlled substance within one thousand feet of a school.

State v. Albaugh 2007 ND 86
Docket No.: 20060334
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An expectation of privacy in commercial property where the public is apparently welcome is different from, and less than, a similar expectation in an individual's home.
Plain view is a recognized exception to the search warrant requirement, which allows law enforcement to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they view an object and the object's incriminating character is immediately apparent.
A search incident to an arrest is a recognized exception to the search warrant requirement, which allows an arresting officer to lawfully search the area within the arrestee's immediate control.
Consent is a recognized exception to the search warrant requirement, so long as the consent is given freely and voluntarily, without any threats or promises having been made.

Cline v. Cline 2007 ND 85
Docket No.: 20060249
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A stipulation which results in a child support obligation less than that required by the child support guidelines violates public policy and will not be enforced.
When an obligor has been awarded extended visitation, as defined under the guidelines, adjustment to child support to reflect that visitation must be made in accordance with the guidelines.
When an obligor has a reduced ability to pay child support because of travel expenses incurred for child visitation, any adjustment must be made to the obligor's net income in computing child support.

Dietz v. Dietz 2007 ND 84
Docket No.: 20060229
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To obtain an evidentiary hearing on a motion for a custody modification, the party seeking the custody modification must file moving papers and supporting affidavits that establish a prima facie case justifying the modification.
If the party opposing a motion to modify custody presents counter affidavits which conclusively establish the moving parties' allegations have no credibility, or even if uncontradicted the parties' allegations are insufficient on their face to justify a custody modification, the court may find the moving party has not established a prima facie case for modification and may deny the motion without an evidentiary hearing.
A party bringing a contempt proceeding is entitled to a hearing unless the party voluntarily, intentionally, or knowingly waives the hearing.