Opinions

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.

State v. Noack 2007 ND 82
Docket No.: 20060237
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A self-represented litigant is subject to the rules of appellate procedure and must reasonably comply with them to obtain judicial review.
It is essential that litigants provide a statement of the issues to be reviewed, a statement of the facts, and an argument section to obtain judicial review.

Lynch v. Sweeney 2007 ND 81
Docket No.: 20060104
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: In visitation disputes, a district court must award a noncustodial parent reasonable costs and attorney fees if the court finds there has been willful and persistent denial of visitation rights by the custodial parent.
A district court's decision about the reasonableness and amount of attorney fees to award will not be overturned on appeal absent an abuse of discretion.

State by Workforce Safety v. JFK Raingutters, et al. 2007 ND 80
Docket No.: 20060196
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: North Dakota's workers compensation laws apply to an Indian employer and his state-chartered company, and to work projects occurring on the reservation.
Administrative res judicata applies to final agency orders.

Dvorak v. Dvorak, et al. 2007 ND 79
Docket No.: 20060050
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a post-decision motion is made in a civil case, and a notice of appeal is filed before it is decided, a party who wants the disposition of the motion reviewed on appeal must file either an amended notice of appeal or a separate notice of appeal from the order deciding the motion.
An obligor whose child support obligation is delinquent cannot disclaim any interest that obligor might have in a trust, and his attempt to assign or otherwise disclaim the interest is voidable. Any attempt to disclaim the interest after notice of delinquency is furnished to the person administering the trust is absolutely void.
Under agency principles, notice to an attorney, on matters for which the attorney is acting for the client, is notice to the client.

Finley v. ND Dept. of Transportation 2007 ND 78
Docket No.: 20070020
Filing Date: 6/7/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The Department of Transportation's decision to revoke driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Tutt 2007 ND 77
Docket No.: 20060205
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Standing alone, a statutory minimum sentence is not an "element" of the offense.
The U.S. Supreme Court has rejected the argument that the fact of a prior conviction must be found by a jury.

State v. Paul 2007 ND 76
Docket No.: 20070025
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court's judgment for driving while under suspension and an order granting the State's motion in limine are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Rydell GM Auto Center v. Johnson 2007 ND 75
Docket No.: 20070037
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An order denying a party's request to vacate default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of L.J. and G.J. (Confidential) 2007 ND 74
Docket No.: 20060376
Filing Date: 6/7/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

Highlight: An order terminating a father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Mantz v. Mantz 2007 ND 73
Docket No.: 20060365
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A second amended judgment modifying a child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

White Mountain v. State 2007 ND 72
Docket No.: 20060357
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Alexander 2007 ND 71
Docket No.: 20060363
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions of unlawful entry into a vehicle are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Deraas v. Workforce Safety and Insurance, et al. 2007 ND 70
Docket No.: 20070016
Filing Date: 5/9/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: District court judgment affirming a Workforce Safety & Insurance order is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Chamley v. Khokha, et al. 2007 ND 69
Docket No.: 20060261
Filing Date: 5/8/2007
Case Type: Appeal - Civil - Malpractice
Author: Marquart, Steven

Highlight: Any person rendering aid or assistance with an expectation of remuneration is not protected by North Dakota's Good Samaritan Act.
A doctor who is a salaried employee of a hospital and performs a procedure in the hospital has an expectation of remuneration.

State v. Rogers 2007 ND 68
Docket No.: 20060300
Filing Date: 5/8/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: When deciding the sufficiency of the evidence, the evidence and all reasonable inferences are viewed in the light most favorable to the prosecution, and this Court determines whether a rational factfinder could have found guilt beyond a reasonable doubt. Only if the evidence is insufficient to sustain a conviction will this Court allow a judgment of acquittal.
An unchallenged jury instruction becomes the law of the case.
The Double Jeopardy Clause bars retrial when the prosecution has failed to produce sufficient evidence to prove its case.
For the purposes of N.D.C.C. 12.1-22-03(1), and based on the ordinary meanings of the statutory words, "dwelling" includes a hotel room.
For an offense to be a lesser-included offense, it must be impossible to commit the greater offense without committing the lesser.

WFND, LLC v. Fargo Marc, LLC 2007 ND 67
Docket No.: 20060125
Filing Date: 5/7/2007
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A motion to amend a complaint under N.D.R.Civ.P. 15(a) and a motion for voluntary dismissal under N.D.R.Civ.P. 41(a)(2) lie within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion.
A breach of contract is the nonperformance of a contractual duty when it is due, and the burden of proving the elements of a breach of contract is on the party asserting the breach.
Mixing principles of tort and contract law and using tort terminology to describe a breach of contract is improper.
Fraud applies when there is a contract between the parties and deceit applies when there is no contract between the parties.
An intent to defraud usually is not susceptible of direct proof, and can be established by circumstantial evidence.
The award of damages will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.
A district court is not required to accept the undisputed testimony of an expert witness.
A written contract may be modified by an executed oral agreement.
The parol evidence rule does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms.
Successful litigants are not allowed to recover attorney fees unless authorized by statute or by contract.
When opposing parties each prevail on some of their claims, there is no single prevailing party for whom disbursements may be taxed.
Disbursements listed in N.D.C.C. 28-26-06 may be awarded as discretionary costs under N.D.C.C. 28-26-10.

Gilbert v. Gilbert 2007 ND 66
Docket No.: 20060306
Filing Date: 5/4/2007
Case Type: Appeal - Civil - Divorce
Author: Maring, Mary

Highlight: A custodial parent seeking to change the residence of a child to another state has the burden to prove, by a preponderance of the evidence, that the move is in the child's best interest.
It is reversible error for a court to fail to give sufficient credence to the importance of keeping the custodial family intact when deciding whether to allow a custodial parent to relocate with the child to another state.

Vogel, Weir, Hunke, and McCormick v. Serbus 2007 ND 65
Docket No.: 20070019
Filing Date: 5/3/2007
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Contract dispute judgment summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Stadheim v. Stadheim 2007 ND 64
Docket No.: 20060193
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: The amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Kostelecky v. Kostelecky (Cross-reference with 20050231) 2007 ND 63
Docket No.: 20060352
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of D.M., a child CONFIDENTIAL 2007 ND 62
Docket No.: 20060236
Filing Date: 5/1/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A lower court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
A finding that someone "has issues" or "struggled with issues" is meaningless as a matter of law.
When there has been an extensive period during which efforts have been made to overcome a parent's inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.
A history of alcohol and drug abuse combined with numerous failed attempts at controlling the addiction, together with evidence of a failure to fully cooperate with social service workers to receive the necessary treatment and services to become a fit parent, demonstrates a very poor prognosis for a parent's ability to provide minimally adequate care for a child.
When the mental and physical health of a child are the concerns, it is not enough that a parent indicate a desire to improve. A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.

State v. Helton 2007 ND 61
Docket No.: 20060311
Filing Date: 5/1/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.
To sustain a conviction of delivering alcohol to a minor, the State does not need to show actual physical delivery of alcohol to a minor. The statutory definition of delivery includes constructive and attempted transfers as well.

Holbach v. Dixon 2007 ND 60
Docket No.: 20060275
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A petition for a disorderly conduct restraining order must allege specific facts or threats that adversely affect the safety, security, or privacy of another person.
To comport with due process requirements in a disorderly conduct restraining order proceeding, a court can limit the petitioner's argument to the dates alleged and the facts contained in the petition.

State v. Georgeson 2007 ND 59
Docket No.: 20060211
Filing Date: 5/1/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

Olsson v. Workforce Safety and Insurance, et al. 2007 ND 58
Docket No.: 20060371
Filing Date: 5/1/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming the decision of Workforce Safety and Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Hieb v. Hieb 2007 ND 57
Docket No.: 20060240
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment dividing marital property and awarding spousal support, attorney fees, and costs is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Deacon's Development v. Lamb, et al. 2007 ND 56
Docket No.: 20060335
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: A district court order awarding costs and attorney fees is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kessel v. Rutherford, et al. 2007 ND 55
Docket No.: 20060267
Filing Date: 5/1/2007
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: Personal injury judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Gisvold v. Windbreak Inc. 2007 ND 54
Docket No.: 20060209
Filing Date: 4/19/2007
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: In considering a motion for a new trial based on insufficiency of the evidence, a district court may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally and fairly come to different conclusions; rather, a district court may set aside a jury verdict when, in considering all the evidence, the court's judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.
A district court's decision on a motion for a new trial must concisely state the grounds on which the ruling is based.

Estate of Stave 2007 ND 53
Docket No.: 20060189
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: In a proceeding to contest a will, four elements must be proven to establish undue influence: 1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence.
For the issue of undue influence to be submitted to a jury, the evidence must be sufficient with regard to each essential element of the claim and the evidence must also create more than just a mere suspicion of undue activity.

State v. Westmiller 2007 ND 52
Docket No.: 20060246
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Although reasonable suspicion is the minimum quantum of evidence required for an investigatory traffic stop, a stop may be upheld on the basis of probable cause if that evidentiary standard has been satisfied.
Traffic violations, even if considered common or minor, constitute prohibited conduct and therefore provide officers with the basis for an investigatory stops.

Odden v. Rath 2007 ND 51
Docket No.: 20060170
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: To obtain an extension of a protection order, the petitioner need not make a second showing of actual or imminent domestic violence. However, the petitioner must meet the threshold burden of showing actual or imminent domestic violence at some point prior to obtaining the extension.
Although the district court should not extend a protection order based solely on the history between the parties, it remains a relevant factor to consider when determining whether an extension is warranted.
A petitioner's fear alone, with no other supporting facts, is not enough to justify the extension of a protection order.

Matter of Anderson 2007 ND 50
Docket No.: 20060088
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: The district court may extend for good cause the 60-day period within which a commitment hearing must be held.
For the civil commitment proceedings under N.D.C.C. ch. 25-03.3, the legislature specifically excluded the right to a jury trial.
Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Sexually predatory conduct includes the act of compelling another to submit to sexual contact by force. It also includes sexual contact with a minor when the actor is an adult.
A person need not be diagnosed with a sexual disorder. The actor need only have a congenital or acquired condition that is manifested by a personality disorder or other mental disorder or dysfunction.
Under the statute for committing a sexually dangerous person, proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in a criminal case.

Lorenz v. Lorenz 2007 ND 49
Docket No.: 20060068
Filing Date: 4/10/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.

City of West Fargo v. Olson 2007 ND 48
Docket No.: 20060325
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A conviction for driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Bovkoon 2007 ND 47
Docket No.: 20060312
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for livestock running at large is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Gratech Co., Ltd. v. Wold Engineering, P.C. (Cross-Ref. w/20030181) 2007 ND 46
Docket No.: 20060272
Filing Date: 3/27/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An arbitration award is vacated only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator's mistake as to fact or law is not a sufficient ground for overturning an arbitration award.
A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties.
When no evidence is introduced and when the district court makes no specific findings of fact to support its determination on attorney's fees, it is impossible for the Supreme Court on appeal to appropriately review the decision of the district court.

State v. Frohlich 2007 ND 45
Docket No.: 20060178
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Motions for continuance will be granted only for good cause shown, either by affidavit or otherwise.
The denial of a continuance will be reversed only if it is an abuse of discretion.
When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice. In exercising its discretion, the district court may consider the time required for trial preparation and the diligence of the moving party.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
Cumulative evidence is additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.

City of Belfield v. Kilkenny 2007 ND 44
Docket No.: 20060176
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: All laws must meet two requirements to survive a void-for-vagueness challenge: the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and the law must provide a reasonable person with adequate and fair warning of the proscribed conduct.

State v. Mulske 2007 ND 43
Docket No.: 20060184
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: If an accused desires to exercise his constitutional right to testify, the accused must act affirmatively and express to the court his desire to do so at the appropriate time or a knowing and voluntary waiver of the right is deemed to have occurred.
Unlike other constitutional rights that can be waived only after the court makes a formal inquiry, the court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily. Instead, the court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision.

State v. Bachmeier 2007 ND 42
Docket No.: 20060235
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Observed traffic violations provide law enforcement officers with the basis for a stop.
The exclusionary rule is only designed to safeguard an individual's rights through its deterrent effect, and it is not a personal constitutional right of the party aggrieved.
North Dakota law authorizes law enforcement personnel operating a class A emergency vehicle to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property.

Jelsing v. Peterson 2007 ND 41
Docket No.: 20060112
Filing Date: 3/22/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An initial award of custody must be made to one parent before a court may decide whether to allow a custodial parent to relocate with a child to another state.

State v. Olson (Consolidated w/20060183) 2007 ND 40
Docket No.: 20060182
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) Terry stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which are not Fourth Amendment seizures.
Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.
The "lateness of the hour" is another factor that may raise the level of suspicion sufficient to justify an investigative stop.

State v. Brossart 2007 ND 39
Docket No.: 20060242
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor
The proper remedy for addressing claims of unlawful police conduct is allowing the defendant to raise the issue to the factfinder and offer his resistance as a justification defense to the preventing-arrest charge.

State v. Altru Health Systems 2007 ND 38
Docket No.: 20060107
Filing Date: 3/8/2007
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The district court's inquiry in proceedings for enforcing an administrative subpoena is limited to whether: (1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant to the inquiry of the administrative proceeding; (3) the subpoena is reasonably specific; and (4) the subpoena is not unduly broad or burdensome.
A court's decision to issue a protective order imposing restrictions on an administrative subpoena is reviewed for an abuse of discretion.

Interest of R.W.S. (CONFIDENTIAL) 2007 ND 37
Docket No.: 20060167
Filing Date: 3/5/2007
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: When deciding a question of the violation of a federal constitutional right, courts look to federal courts for guidance. Decisions of federal courts other than the United States Supreme Court, interpreting the United States Constitution are considered for guidance.
Juveniles have the same rights as adult defendants to be free from physical restraints. The right to remain free from physical restraints is based on considerations beyond the potential for jury prejudice, including inhibition of free consultation with counsel. Extending the right to remain free from physical restraints during juvenile proceedings is consonant with the rehabilitative purposes of the juvenile justice system.
The constitutional requirement to be free from physical restraints is not absolute. The court may take into account special considerations that call for restraints.
The factors a juvenile court should consider when deciding whether to place a juvenile in physical restraints are: the accused's record, temperament, and the desperateness of his situation; the security situation at the courtroom and courthouse; the accused's physical condition; and whether there was an adequate means of providing security that was less prejudicial.
The burden is on the beneficiary of a constitutional error to prove the error is harmless beyond a reasonable doubt.
The admissibility of an in-court identification that is not preceded by a pretrial identification is to be determined by considering whether the in-court identification procedure is unnecessarily suggestive and susceptible to a substantial likelihood of irreparable misidentification.
Any suggestiveness of an in-court identification can be reduced by the juvenile's opportunity to cross-examine the witnesses and his ability to raise doubts about the accuracy of the identifications.

Riverwood Commercial Park, et al. v. Standard Oil Company, et al. 2007 ND 36
Docket No.: 20060122
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The law of the case doctrine applies only in the immediate case, and does not apply to bar claims or issues in a subsequent, separate action.
Res judicata claim preclusion applies to whole claims, whether litigated or not, whereas collateral estoppel issue preclusion applies to particular issues that have been actually contested and litigated in a prior action.
Res judicata claim preclusion does not bar claims that could not have been brought in the prior action.
Collateral estoppel issue preclusion applies only if determination of the issue in the prior action was necessary and essential to support the judgment.
A finding of fact that is not ruled upon on appeal because it was not necessary for the appellate court's decision is not conclusive between the parties in a subsequent action.
Dismissal of an action for failure to join an indispensable party under N.D.R.Civ.P. 19 is not an adjudication on the merits and cannot be granted with prejudice.

Estate of Carlson 2007 ND 35
Docket No.: 20060204
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A North Dakota court has no subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state.
Under the Uniform Probate Code, no presentation of claim is required in regard to matters claimed in proceedings against a decedent that were pending at the time of death.
Under the Uniform Probate Code, a judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim in a North Dakota probate proceeding.

Gonzales v. Witzke 2007 ND 34
Docket No.: 20060277
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Wagner v. Wagner 2007 ND 33
Docket No.: 20060124
Filing Date: 3/2/2007
Case Type: Appeal - Civil - Divorce
Author: Crothers, Daniel John

Highlight: A spousal support determination will not be reversed on appeal unless it is clearly erroneous.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing the spouse with the opportunity to acquire an education, training, work skills, or experience to become self-supporting.

Whitecalfe v. ND Dept. of Transportation (CONSOLIDATED W/20060269) 2007 ND 32
Docket No.: 20060202
Filing Date: 2/28/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The Department of Transportation must meet the basic and mandatory provisions of the statute to have authority to revoke driving privileges.
When a licensee is arrested for driving under the influence and receives an initial notice of revocation of driving privileges, the licensee is not denied due process simply because the initial notice does not include a statement of the arresting officer's probable cause.

State v. Duchene 2007 ND 31
Docket No.: 20060164
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Issues not briefed by an appellant are abandoned, and become the law of the case and will not be considered on appeal.

State v. Austin (CONSOLIDATED W/ 20060194) 2007 ND 30
Docket No.: 20060022
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Expert testimony is admissible when specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Whether expert testimony is useful falls within the district court's discretion, and the decision whether to allow the testimony will not be reversed on appeal unless the district court has abused its discretion.
A defendant claiming ineffective assistance of counsel must prove that the counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.

Holden v. Holden 2007 ND 29
Docket No.: 20060212
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: North Dakota law does not mandate a set formula or method to determine how marital property is to be divided after a divorce; rather, the property division is based on the particular circumstances of each case.
Property need not be liquidated for a distribution to be equitable.

McCrothers Corp., et al. v. City of Mandan 2007 ND 28
Docket No.: 20060127
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: Nude or semi-nude dancing is expressive conduct protected by the First Amendment.
Content-neutral time, place, and manner regulations are not subject to strict scrutiny.
A state has power to prohibit the sale of alcoholic beverages in inappropriate locations through its inherent police powers.
The First Amendment does not entitle an alcoholic beverage establishment, its dancers, or its patrons to have alcohol available during a presentation of nude or semi-nude dancing.
A city's interest in curbing the secondary effects associated with adult entertainment establishments is substantial.
Overly broad statutes are those that restrict constitutionally protected expression as well as expression that is unprotected, and an overbreadth challenge may be brought even though the challenger's rights may not have been violated under the circumstances.
Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal.

Stockman Bank of Montana v. AGSCO, Inc., et al. 2007 ND 27
Docket No.: 20060119
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An agricultural supplier's lien is a statutory lien and cannot be obtained or enforced unless there is substantial compliance with the statute.
The producer's actual knowledge is substantial compliance with requirement for notice to the producer before filing the lien.

Stockman Bank of Montana v. AGSCO, Inc., et al. (Cross Ref w/20070357) 2007 ND 26
Docket No.: 20060174
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A principal and its duly authorized agent may file an agricultural supplier's lien for agricultural supplies furnished to an agricultural producer.
An agricultural supplier's lien filed as a security interest created by contract to secure money advanced or loaned for any purposes is not effective to secure a priority over crop liens.
An agricultural supplier's lien cannot be obtained or enforced unless there has been substantial compliance with the statutory requirements for the lien.
An agricultural supplier may be entitled to a lien on crops if the agricultural supplier furnishes supplies to the producer within 120 days before the lien was filed and if the supplies were applied to crops in North Dakota.

State v. Streeper 2007 ND 25
Docket No.: 20060162
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: When a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal conduct.
The use and admission of photographs in criminal trials is largely within the discretion of the district court.
A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made.
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, the conviction will not be reversed on grounds the prosecutor exceeded the scope of permissible closing argument.