Opinions

Estate of Truax 2007 ND 182
Docket No.: 20070121
Filing Date: 11/19/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Judgment denying a motion to amend a judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Hendricks Prop. Mgmt. Corp. v. Birchwood Prop. Ltd. Partnership, et al. 2007 ND 181
Docket No.: 20070028
Filing Date: 11/19/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The interpretation of an agency agreement is governed by laws for construing contracts except to the extent the agent's fiduciary relationship with the principal requires a special rule, or the parties agree otherwise.
A district court's findings of fact and conclusions of law must be stated with sufficient specificity to provide reviewing courts with a clear understanding of the district court's decision, and a district court's findings of fact are adequate if the reviewing court is able to understand the factual basis for the district court's decision.
A liquidated damage clause is valid if the damages stemming from a breach are impractical or extremely difficult to estimate when the contract was entered, the parties reasonably endeavored to fix their damages, and the amount stipulated bears a reasonable relation to the probable damages and is not disproportionate to any damages reasonably anticipated.
Face-to-face negotiations are not necessary to uphold a liquidated damage clause.

Intercept Corp. v. Calima Financial LLC, et al. 2007 ND 180
Docket No.: 20060307
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The corporate veil of a limited liability company may be pierced if the same conditions and circumstances under which the corporate veil of a corporation may be pierced under North Dakota law are present.
A lack-of-personal-jurisdiction defense is waived if it is neither made by motion nor included in a responsive pleading.

Axtmann, et al. v. Chillemi, et al. 2007 ND 179
Docket No.: 20070006
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Corporations
Author: VandeWalle, Gerald

Highlight: The officers and directors of a corporation generally are not liable for the ordinary debts of the corporation, but a corporation's corporate veil may be disregarded when the corporation has insufficient capitalization for purposes of the corporate undertaking.
A district court's decision to pierce a corporate veil and impose personal liability on an officer or director is reviewed under the clearly erroneous standard.

State v. McAvoy 2007 ND 178
Docket No.: 20070095
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Conditions of probation are interpreted as mandatory.
When a violation of probation is contested, the State needs to prove a probation violation by a preponderance of the evidence.

Hawes v. ND Department of Transportation (consolidated w/20070060) 2007 ND 177
Docket No.: 20070059
Filing Date: 11/14/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: That the defendant's vehicle is out of gas does not render the vehicle inoperable as a matter of law.
When there has been no objection to a prosecutor's argument, the judgment will not be reversed unless it was an obvious error affecting a defendant's substantial rights.

State v. Jacobs 2007 ND 176
Docket No.: 20070033
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Amended criminal judgment for possession of methamphetamine with intent to deliver and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Mountrail Bethel Home v. Lovdahl (Cross-reference w/ 20060002) 2007 ND 175
Docket No.: 20070148
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment finding enforceable contract did not exist is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Skarsgard (Consolidated w/20070084) 2007 ND 174
Docket No.: 20070083
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgments for driving under the influence of alcohol and driving with a suspended license are summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4), and (7).

State v. Thompson (Consolidated w/20070143) 2007 ND 173
Docket No.: 20070142
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

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

Oie v. State 2007 ND 172
Docket No.: 20070119
Filing Date: 11/14/2007
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).

State v. $2996.00 U.S. Currency 2007 ND 171
Docket No.: 20070082
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting forfeiture of $2996.00 is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Light 2007 ND 170
Docket No.: 20070327
Filing Date: 11/14/2007
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Interim suspension of lawyer ordered.

Rodenbiker v. Workforce Safety and Insurance 2007 ND 169
Docket No.: 20070114
Filing Date: 10/29/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Section 65-05-10, N.D.C.C., does not provide for an award of partial disability benefits when an injured worker cannot be returned to substantial gainful employment as defined under N.D.C.C. 65-05.1-01(3), and does not have a retained earnings capacity to meet the income test of N.D.C.C. 65-05.1-01(6)(a)(3).
The purpose of partial disability benefits is to assist individuals who can be returned to substantial gainful employment through rehabilitation, but will experience a decrease in earnings capacity upon return to the workforce.
Partial disability benefits are for individuals who can return to substantial gainful employment, but at a lesser amount of income.

Bertsch v. Bertsch 2007 ND 168
Docket No.: 20070110
Filing Date: 10/19/2007
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The law of the case doctrine applies only to issues decided by final judgments.
A district court has broad discretion regarding the scope of discovery.
A district court discovery order must be obeyed by the party to whom the order was issued. Failure to obey the order will result in a sanction, requiring the failing party to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified.

Kienzle v. Yantzer 2007 ND 167
Docket No.: 20060364
Filing Date: 10/19/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When a stipulation is incorporated into a judgment, the judgment is interpreted and enforced, not the underlying contract.
A district court's interpretation of its own judgment is entitled to deference when the language of the judgment is ambiguous.
A district court's decision whether to allow a custodial parent to relocate out of state with the child is a finding of fact, and will not be overturned on appeal unless clearly erroneous.

Interest of T. E. (Confidential) 2007 ND 166
Docket No.: 20070278
Filing Date: 10/16/2007
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: A State Hospital patient can be subject to more than one 90-day forced medication order.
The refusal-of-medication requirement of N.D.C.C. § 25-03.1-18.1(1)(a)(2) can be met when a patient who is not literally refusing medication but is taking medication only because of a prior forced medication order indicates he would not take further medication unless ordered to do so by a court.

Sayler v. ND Dept. of Transportation 2007 ND 165
Docket No.: 20070101
Filing Date: 10/16/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: When an administrative order revoking a driver's license is appealed to the district court, the director or the hearing officer who rendered the decision must file a certified transcript of the testimony and all other proceedings within twenty days after receipt of the notice of appeal.
Probable cause to arrest a driver for driving under the influence exists if the police officer (1) observes some signs of physical or mental impairment, and (2) has reason to believe the driver's impairment is caused by alcohol.

State v. Barendt 2007 ND 164
Docket No.: 20060370
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A fact-finder decides the credibility of witnesses, and is not required to believe a witness's testimony, even when no direct evidence is offered to the contrary.

Ritter, Laber & Assoc., et al. v. Koch Oil, et al. (Cross w/20000224 & 20030347) 2007 ND 163
Docket No.: 20070029
Filing Date: 10/16/2007
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: A party seeking reformation of a written agreement must prove by clear and convincing evidence the document does not fully or truly state the agreement the parties intended to make.
The party seeking reformation of an agreement on the basis of mutual mistake must show that, when the agreement was executed, both parties intended to say something different from what was said in the document.
In a class action lawsuit, the district court may award payment to the class representatives. Factors in making the decision include the risk to class representatives in bringing suit, the time and effort spent by the class representatives, the duration of the litigation, the time and effort expended by the representatives in pursuing the litigation, and the degree to which the class has benefitted from the representatives' actions.
The districtr court must consider the factors listed under N.D.R.Civ.P. 23(p)(5) in awarding attorney fees in a class action lawsuit.
The district court is considered an expert in determining an award of attorney fees, and its decision will not be overturned on appeal absent a clear abuse of discretion.
In awarding attorney fees in a class action lawsuit, the court may consider not only the available settlement fund but also the amount of actual claims on the fund.

State v. Fasteen 2007 ND 162
Docket No.: 20070046
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Under the Terry doctrine, a law enforcement officer can make an investigative stop of a vehicle if the officer has a reasonable and articulable suspicion that the motorist has violated or is violating the law.
Under N.D.C.C. 39-10-38(1), no person may turn a vehicle right or left upon a roadway without giving an appropriate signal and unless or until such movement can be made with reasonable safety.

State v. Hemmes (consolidated w/20070011) 2007 ND 161
Docket No.: 20070010
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Brady v. Maryland, 373 U.S. 83 (1963) does not apply to probation revocation proceedings.
The evidentiary disclosure requirements of N.D.R.Crim.P. 16 apply to probation revocation proceedings.

State v. Skarsgard (Consolidated w/ 20060305) 2007 ND 160
Docket No.: 20060304
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A law enforcement officer may make an investigative stop of a vehicle if the officer has at least a reasonable suspicion that the motorist has violated the law or probable cause to believe the motorist has done so.
When a law enforcement officer observes a vehicle with no license plates and no viewable registration certificate, the officer has reasonable grounds to stop the driver and check if the driver has a valid certificate in his possession.
An adequate foundation for admission of blood-alcohol test results may be established by the testimony of witnesses.
A jury is generally presumed to follow instructions, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.
Generally, pretrial bail issues are moot after conviction.
Reversal of a conviction and release from confinement is not a remedy for allegations of deliberate indifference to serious medical needs in violation of the cruel and unusual punishment clause of the Eighth Amendment.
Appellate review of a criminal sentence focuses only on whether the district court acted within the limits prescribed by statute, or substantially relied on an impermissible factor.

State v. Skarsgard 2007 ND 159
Docket No.: 20070034
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: The criminal code definition of "offense" as "conduct for which a term of imprisonment or fine is authorized under statute after conviction" applies to driving violations under N.D.C.C. 39-08-01 and 39-06-42.
Judgments for driving under the influence and driving under suspension which are on appeal are "offenses" that can be used to enhance subsequent driving under the influence and driving under suspension judgments.

State v. Overby 2007 ND 158
Docket No.: 20070054
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Findings of parole violations, revocation of parole and re-sentencing to an additional year of incarceration are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Gruett 2007 ND 157
Docket No.: 20070039
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for possession of methamphetamine with intent to deliver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Moilwa 2007 ND 156
Docket No.: 20070058
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court criminal judgment for criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Knight 2007 ND 155
Docket No.: 20070047
Filing Date: 10/16/2007
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)(3) and (7).

State v. Johnson 2007 ND 154
Docket No.: 20060315
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal conviction for failure to register as a sex offender is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Tassler 2007 ND 153
Docket No.: 20070078
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Revocation of probation and sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Jager 2007 ND 152
Docket No.: 20070080
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kram v. N.D. Department of Transportation 2007 ND 151
Docket No.: 20070102
Filing Date: 10/16/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: An order suspending commercial driving privileges for one year is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Grzeskowiak (Consolidated w/20060355) 2007 ND 150
Docket No.: 20060354
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: Orders deferring imposition of sentence for unlawful display of license plates and failure to transfer title of a vehicle are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Swenson v. Workforce Safety and Insurance Fund, et al. 2007 ND 149
Docket No.: 20070049
Filing Date: 9/5/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant must prove by objective medical evidence that he suffered a compensable injury. Objective medical evidence may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.
Although a medical opinion supported by a treatise or other scientific authority may be more persuasive, physicians are not required to offer such support.

State v. Newman 2007 ND 148
Docket No.: 20060294
Filing Date: 9/5/2007
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Persons accused of crimes have a constitutional right to a trial by an impartial jury.
An appellate court will not set aside a verdict merely on a whimsy or fanciful notion that prejudicial misconduct occurred.
A defendant on a criminal charge has a constitutional right to be present in the courtroom at every stage of the trial, but the right is not absolute and can be waived by the defendant.

Lee v. Lee 2007 ND 147
Docket No.: 20060321
Filing Date: 8/30/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court has subject matter jurisdiction to order a party to pay spousal support beyond the party's original spousal support obligation, even when the original obligation has already ended, when reconsideration of an interrelated child support obligation could constitute a change in circumstances for purposes of the spousal support obligation.
A change in a child support obligation may constitute a material change in circumstances requiring reconsideration of an interrelated spousal support obligation.
Attorney's fees will not be awarded absent a showing of need or a showing that an appeal was frivolous.

State v. Tibor 2007 ND 146
Docket No.: 20060274
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A court does not abuse its discretion in allowing expert testimony about child sexual abuse accommodation syndrome if it finds the testimony may assist the jury in understanding the evidence or determine a fact in issue.
Mere repetition of a child's out-of-court statements does not make them unduly prejudicial.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.

State v. Demars 2007 ND 145
Docket No.: 20070015
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Denial of a motion to suppress evidence will not be reversed if there is sufficient competent evidence capable of supporting the court's findings, and if its decision is not contrary to the manifest weight of the evidence.

Peterson, et al. v. Dakota Molding, Inc., et al. 2007 ND 144
Docket No.: 20060356
Filing Date: 8/30/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: In a garnishment proceeding, where a garnishee denies liability, the plaintiff may move the court for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted.
The question whether probable cause has been shown, so as to require leave to file a supplemental complaint making a garnishee a party to an action, depends on whether the evidence shows probable grounds for believing that the garnishee might be held liable.
A term in an insurance policy should be construed to mean what a reasonable person in the position of the insured would think it meant. Limitations or exclusions from broad coverage must be clear and explicit. When the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability on the insurer.

State v. Kunze 2007 ND 143
Docket No.: 20060377
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: When a trial court concludes it is necessary to physically restrain a defendant at trial in front of the jury, the court must consider less restrictive, less prejudicial methods of restraint.
To provide for meaningful appellate review, a trial court must articulate its reasons for placing the defendant in physical restraints on the record, including a discussion of less prejudicial alternatives.

Tedford v. Workforce Safety and Insurance, et al. 2007 ND 142
Docket No.: 20060320
Filing Date: 8/27/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement offset provision, N.D.C.C. 65-05-09.2, authorizing offset of social security retirement benefits against workers compensation disability benefits, does not apply to injured employees who were receiving benefits for a total disability prior to the statute's effective date.
In determining whether an administrative agency acted without substantial justification, triggering an award of actual attorney fees and costs under N.D.C.C. 28-32-50(1), the fact that a judge at an earlier stage of the proceedings agreed with the agency's position is persuasive evidence that the position was substantially justified.

Superior, Inc. v. Behlen Mfg. 2007 ND 141
Docket No.: 20060308
Filing Date: 8/24/2007
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A contractual right to indemnification may be implied based on the special nature of the relationship between the parties, or when there are unique factors demonstrating that the parties intended the would-be indemnitor to bear the ultimate responsibility for a certain matter.
Implied contractual indemnity is an equitable remedy that is available only if a party does not have an adequate remedy at law.
Under the Uniform Commercial Code, a buyer may seek consequential damages from the seller when it incurs liability to a third party as a result of the use or resale of the seller's product.

J.P. v. Stark Co. Social Services, et al. 2007 ND 140
Docket No.: 20070004
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: When a medicaid recipient receives out-of-state medical care without prior approval when there is no emergency, payment may be covered only if there was good cause for not first securing approval, the care and services were not available in state, and the care and services were medically necessary.

Graner v. Graner 2007 ND 139
Docket No.: 20060359
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's decision on a custodial parent's motion to relocate out-of-state will be reversed on appeal only if it is clearly erroneous.
Increased visitation expenses and distance are not a sufficient basis to deny a custodial parent's motion to relocate.
A court may not modify custody within two years of an order establishing custody, unless the court finds the modification is in the child's best interests and there is willful denial of visitation, the child's environment endangers the child's physical or emotional health or impairs the child's emotional development, or the noncustodial parent has had primary physical care of the child for longer than six months.

State v. Washington 2007 ND 138
Docket No.: 20060369
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: The probable cause standard is the same for both searches and arrests.
Once a vehicle has been validly stopped and its occupants lawfully detained, law enforcement officers may constitutionally order the driver and passengers out of the vehicle, even in situations not amounting to arrest.
Law enforcement officers have the right to use appropriate forcible means to effectuate an arrest.
An officer's subjective intent plays no role in ordinary probable cause Fourth Amendment analysis.

City of Fargo v. Malme, et al. 2007 ND 137
Docket No.: 20070043
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.
Home rule charters allow cities to enact laws contrary to those of the state.
The supersession provision in N.D.C.C. 40-05.1-05 applies only to those powers enumerated in N.D.C.C. 40-05.1-06, and those powers must also be included in the home rule charter and be implemented by ordinance.
The rule of strict construction applies in defining municipal powers, and any doubt as to the existence or extent of municipal powers must be resolved against the municipality.

Stephenson v. Hoeven, et al. 2007 ND 136
Docket No.: 20070055
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Statutes are construed as a whole to give meaning, if possible, to every word, phrase, and sentence.
An administrative agency may adopt specific rules of procedure when necessary to comply with requirements outside the administrative agencies practice act or when necessary to comply with the requirements of federal law.

Farmers Union Mut. Ins. Co. v. Assoc. Electric and Gas Ins. Services Ltd. 2007 ND 135
Docket No.: 20060303
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: Statutory interpretation is a question of law and fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.
Statutes are construed as a whole and are harmonized to give meaning to related provisions.
If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit.
Under N.D.C.C. 26.1-41-17, which permits a basic no-fault insurer to seek equitable allocation and intercompany arbitration for no-fault benefits paid, "the motor vehicle liability insurer of a secured person" does not include an excess liability insurer.

Burns v. Burns 2007 ND 134
Docket No.: 20060218
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.
If evidence of domestic violence does not rise to the level to trigger the presumption against an award of custody, the court may still consider the evidence as one of the best interest factors.
A district court's concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under N.D.C.C. 14-09-06.2(1)(d).
Being a child's primary caretaker does not guaranty a custody award in a divorce action.

State v. Kautzman 2007 ND 133
Docket No.: 20060329
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A mistrial must be declared before the trial is over and before the jury has been discharged. When defense counsel moves for a mistrial, an instruction to the jury must be requested to properly preserve the question for appellate review.
A judgment of acquittal may be entered only if the evidence is insufficient to sustain a conviction.
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser.
If counsel does not object to the trial court's instructions, the issue is not adequately preserved and inquiry on appeal is limited to whether the court's failure to instruct the jury was obvious error affecting substantial rights.
A party may not challenge as error a ruling or other trial proceeding invited by that party.
A trial court has broad discretion when deciding evidentiary matters, and its admission or exclusion of evidence will not be overturned on appeal unless that discretion has been abused.

State v. Muhle (Cross-reference w/20060340) 2007 ND 132
Docket No.: 20060328
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A district court's evidentiary ruling is reviewed for an abuse of discretion.
Out-of-court testimonial statements may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause.
Rule 16 of the North Dakota Rules of Criminal Procedure requires only "statements" be disclosed by the prosecution. "Statement" is defined technically and emphasizes formal, written, or recorded declarations.
To establish a violation under Brady v. Maryland, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A conviction on the ground of insufficient evidence will be reversed 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.

State v. Muhle (Cross-reference w/20060328) 2007 ND 131
Docket No.: 20060340
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A court's evaluation of the trustworthiness of a child's out-of-court statement about alleged sexual abuse, may include these non-exclusive factors: (1) the spontaneity and consistent repetition of the statements, (2) the mental state of the declarant, (3) the use of terminology unexpected of a child of similar age, and (4) a lack of motive to fabricate.
If a defendant has an opportunity to cross-examine a witness at trial, the admission of testimonial statements would not violate the Confrontation Clause.
The proper remedy for unfair surprise is a continuance, but one must be requested.
The term "statement," as used in N.D.R.Crim.P. 16(f), means a written or otherwise recorded statement made by the witness, codefendant, or other person.

Estate of Allmaras 2007 ND 130
Docket No.: 20060380
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A conservator has discretionary authority to manage the protected person's estate, subject to the conservator's fiduciary responsibilities and taking into account any known estate plan of the protected person.
A payable-on-death beneficiary has no present interest in the account, no right to prevent the depositor from removing the account funds and effectively destroying the beneficiary designation, and no right to preclude the depositor from changing or removing the beneficiaries on the account.

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.

Mann, et al. v. N.D. Tax Commissioner, et al. 2007 ND 119
Docket No.: 20060366
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Tax Realted
Author: VandeWalle, Gerald

Highlight: Due process requires a State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation that occurs when a state requires a taxpayer to pay a tax without an opportunity to challenge whether the tax is illegal before payment.
A statute may be applied retroactively when the legislature clearly intended retroactive application of the statute.
A district court has broad discretion in deciding whether to certify a class action.
A successful litigant is not entitled to attorney's fees unless authorized by statute or contract.

Noorlun v. State (cross-reference w/20070014) 2007 ND 118
Docket No.: 20070009
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: In a post-conviction proceeding, a misuse of process occurs if a defendant has inexcusably failed to raise an issue in a proceeding leading to a conviction and seeks review in an application for post-conviction relief, or if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceeding.
A defendant claiming ineffective assistance of counsel has a heavy burden of proving that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.

Bienek v. Department of Transportation 2007 ND 117
Docket No.: 20070032
Filing Date: 7/25/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Appellate review of administrative license suspensions is limited to the record before the agency.
On legal questions, such as an interpretation of a statute, an agency's decision is fully reviewable on appeal.
When a general statutory provision is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions. If the conflict between the provisions is irreconcilable, the special provision prevails and is construed as an exception to the general provision unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.
The Administrative Agencies Practice Act requires alleged errors from the administrative level be specifically enumerated for the district court.

State v. Hahne 2007 ND 116
Docket No.: 20070013
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A Fourth Amendment "seizure" occurs when a vehicle is stopped by police at a checkpoint. The basic question is whether the seizure is reasonable. If the seizure is reasonable, then it is constitutional.
Temporary law enforcement checkpoints or roadblocks established for particular public purposes are, in general, constitutional.
A court applies a three-part test to analyze the reasonableness of a law enforcement checkpoint: (1) a weighing of the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty.
Law enforcement checkpoints need not, as a matter of law, provide motorists with a way to avoid them. When considering the constitutional reasonableness of a checkpoint, avoidability is one factor that may be considered in evaluating the intrusion on the personal liberty of individual motorists.

Interest of B.B. (Confidential) 2007 ND 115
Docket No.: 20060322
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: To satisfy the business records exception to the hearsay rule, each participant in the creation of the record must be acting in the course of regularly conducted business.
The Sixth Amendment right to confront and cross-examine witnesses does not apply to civil proceedings.
A party in a deprivation proceeding in juvenile court is entitled to the opportunity to cross-examine adverse witnesses.
A juvenile court's finding of deprivation will not be set aside on appeal unless clearly erroneous.

State v. Holbach 2007 ND 114
Docket No.: 20060297
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A specific on-the-record colloquy is not necessary to establish the validity of a defendant's waiver of the right to counsel if the record establishes the defendant voluntarily, knowingly, and intelligently waived the right to counsel.

State v. Edwards 2007 ND 113
Docket No.: 20060254
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A sentencing court may correct an illegal sentence at any time.

Roth v. State (Cross-Ref. w/20050227) 2007 ND 112
Docket No.: 20060241
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show that he would have prevailed on the suppression motion and that there is a reasonable probability the successful motion would have affected the outcome.
The "reasonable cause" standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses on the necessity for executing the search warrant in the nighttime rather than in the daytime.
A nighttime searches may be upheld when there is particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours.

Interest of J.C. (Confidential) 2007 ND 111
Docket No.: 20060341
Filing Date: 7/25/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: In a proceeding to terminate parental rights, a juvenile court's decision to grant or deny a continuance is addressed to the court's discretion.
A juvenile court may not declare a parent in default and terminate parental rights without some evidentiary basis in the record to support the termination.

Weigel v. Weigel 2007 ND 110
Docket No.: 20070003
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7).

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.

State v. Fehl-Haber 2007 ND 99
Docket No.: 20060086
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A district court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless there has been an abuse of discretion.
In a criminal trial, all communications with the jurors after the jurors have retired for deliberations must be made in open court and in the presence of the defendant.
A criminal defendant may waive the right to have all communications with the jurors made after the case has been submitted to them by failing to object to the trial court's procedure in responding to the jury's request.
To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.
Where a sexual assault victim's credibility is not in issue, evidence that the victim made a similar accusation against another individual is immaterial and not likely to result in an acquittal.

State v. Flatt 2007 ND 98
Docket No.: 20060330
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Elements to an offense cannot be retroactively applied unless the Legislature expressly declares its intention to do so.
A charging document must sufficiently describe an offense based on the law in effect at the time the conduct occurred.
A defendant is not entitled to relief based on defective charging documents if the documents sufficiently allege an offense, based on the law in effect at the time the criminal conduct occurred, and the district court has jurisdiction over the matter.

State v. Silbernagel 2007 ND 97
Docket No.: 20070007
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denial of motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Moore v. State 2007 ND 96
Docket No.: 20060224
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Post-conviction relief may be granted when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."
When a defendant applies for post-conviction relief to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d), and withdrawal is allowed when necessary to correct a manifest injustice.

Interest of C.R., a child CONFIDENTIAL 2007 ND 95
Docket No.: 20070017
Filing Date: 6/26/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

City of Minot v. Holbach 2007 ND 94
Docket No.: 20070042
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction of criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

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.

Interest of A.S. and N.S. (CONFIDENTIAL) 2007 ND 83
Docket No.: 20060256
Filing Date: 6/7/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: The particular facts and circumstances of each case are considered when reviewing a juvenile court's decision on a motion for continuance because there is not a mechanical test to determine whether the juvenile court abused its discretion.
The juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
To prevent or eliminate the need for removing a child from its home and to make it possible for a child to return safely to its home, reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care.