Opinions

State v. Schmidkunz 2006 ND 192
Docket No.: 20050141
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The district court has broad discretion over the conduct of a trial, including scheduling the time for jury deliberations. The court must exercise its discretion in a manner that best comports with substantial justice.

Leet, et al. v. City of Minot 2006 ND 191
Docket No.: 20060011
Filing Date: 9/13/2006
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: For recreational use immunity statutes to apply, a person's presence on the landowner's property open for public recreation must be for "recreational purposes," which includes any activity engaged in for the purpose of exercise, relaxation, pleasure, or education.
A vendor's employee who was present at the City's auditorium for purposes of his employment is not engaged in any activity for the purpose of exercise, relaxation, pleasure, or education.

Strand, et al. v. Cass County, et al. 2006 ND 190
Docket No.: 20050380
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Jury instructions are reviewed to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
A local government body may only be held liable for constitutional violations which result from a policy or custom of the government body.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.

Tibert, et al. v. City of Minto 2006 ND 189
Docket No.: 20050393
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A decision of a local governing body will be affirmed on appeal unless the local governing body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support the decision.

Interest of B.L.S. (Confidential) 2006 ND 188
Docket No.: 20060216
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court cannot allow a respondent in a mental health proceeding to waive the right to counsel without first establishing, on the record, that the respondent is competent to waive counsel and that the waiver is knowingly, intelligently, and voluntarily made.
To establish a valid waiver of counsel in a mental health proceeding, the district court must engage in a colloquy on the record that mirrors the required colloquy for the waiver of counsel in a criminal proceeding.

ACUITY v. Burd & Smith Construction, Inc., et al. 2006 ND 187
Docket No.: 20060001
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: A commercial general liability insurance policy excludes coverage for damage to the insured's work product and provides coverage for accidental damage to property other than the insured's work product.

Jochim v. Jochim 2006 ND 186
Docket No.: 20060038
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Ungar v. ND State University 2006 ND 185
Docket No.: 20050340
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: Res judicata, or claim preclusion, prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies resulting final judgment from a court of competent jurisdiction. Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or must have been litigated, and decided in the prior action.
For the district court to have subject-matter jurisdiction over a university professor's claims against the university, the plaintiff must comply with the statutory notice of claim requirements and exhaust the internal administrative remedies.

State v. Dailey 2006 ND 184
Docket No.: 20060030
Filing Date: 8/24/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: After a jury's verdict has been announced, a trial judge may explain to a jury what will occur after the trial has ended.

Peoples State Bk. of Truman v. Molstad Excavating, et al. 2006 ND 183
Docket No.: 20050444
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Part of the law of the case doctrine provides that the orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another's orders and revisit them only in special circumstances.
The law of the case is not violated and reconsideration of prior orders is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative.
Construction of a written contract to determine its legal effect is a question of law, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation.
To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.