Opinions

State v. Bjerklie 2006 ND 173
Docket No.: 20050438
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A court's ruling on a motion in limine is reviewed for abuse of discretion.
A court abuses its discretion in granting a motion in limine when it acts in an arbitrary, unreasonable or unconscionable manner.

Deacon's Development v. Lamb, et al. 2006 ND 172
Docket No.: 20050147
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Attorney fees may be recovered if a court finds a party made a frivolous "claim for relief."
A court does not have authority to award attorney fees based on a position a party took prior to litigation.

Dvorak v. Dvorak (cross-ref. w/20040222) 2006 ND 171
Docket No.: 20050405
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.

Weinreis, et al. v. Hill, et al. 2006 ND 170
Docket No.: 20060026
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A principal is bound by acts of his agent under a merely ostensible authority to those persons only who in good faith and without ordinary negligence have incurred a liability or parted with value upon the faith thereof.
A district court's determination of negligence is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.

State v. Salveson (Consolidated w/20060016) 2006 ND 169
Docket No.: 20060015
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.

State v. Campbell (Consolidated w/20050337 & 20050338) 2006 ND 168
Docket No.: 20050326
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
A defendant can waive a potential Confrontation Clause violation by failing to exercise a statutorily defined opportunity to subpoena the author of the state crime laboratory report.

The Ramsey Financial Corp. v. Haugland, et al. 2006 ND 167
Docket No.: 20050375
Filing Date: 7/26/2006
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: Voluntary acquiescence in a judgment waives the right to appeal.
Absent fraud, the procedure for asserting dissenting shareholders' rights under N.D.C.C. 10-19.1-87 and 10-19.1-88 is an exclusive remedy.

Dahl, et al. v. Messmer, et al. 2006 ND 166
Docket No.: 20050426
Filing Date: 7/24/2006
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: On appeal, the substantive evidentiary standard of proof is considered when reviewing a motion for summary judgment.
Fraud is never presumed, but must be proved by evidence that is clear and convincing.
A party seeking to reform a contract must prove, by clear and convincing evidence, that the written agreement does not fully or truly state the agreement the parties intended to make.
General expressions of opinion by a seller, commending of the thing he is selling, are not actionable even though not entirely true.
Generally, statements of value and predictions of future earnings or profits fall within the class of statements whose truth or falsity cannot be precisely determined and which are not, therefore, actionable as misrepresentations of fact.

Frisk v. Frisk 2006 ND 165
Docket No.: 20050391
Filing Date: 7/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A domestic violence protection order may be extended upon request made prior to the order's expiration.
After a case has been remanded, the district court must cure any defects, but may do so in any manner consistent with the appellate court's opinion and conformable to law and justice.

Disciplinary Board v. Balerud 2006 ND 164
Docket No.: 20060165
Filing Date: 7/20/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.