Opinions

Landers, et al. v. Biwer, et al. 2006 ND 109
Docket No.: 20050313
Filing Date: 5/16/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Specific performance cannot be enforced against a party to a contract if specific performance is not just and reasonable to that party or if the party's assent was obtained by misrepresentation.
Because specific performance is an equitable remedy, a litigant seeking specific performance is held to a higher standard than one merely seeking money damages, and to receive equity a litigant must "do equity" and must not come into court with "unclean hands."
All the circumstances surrounding a transaction may be considered when deciding whether specific performance is just and reasonable to a party.
An award of damages will not be disturbed if the award is within the range of the evidence presented to the trier of fact.
For disputes involving oral contracts, the trier of fact determines whether an oral contract exists and what the terms of the oral contract are, and the findings of fact of the district court will not be reversed unless they are clearly erroneous.

City of Bismarck v. Mariner Construction, Inc., et al. 2006 ND 108
Docket No.: 20050322
Filing Date: 5/16/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The interpretation of a written contract to determine its legal effect is a question of law, and a court must initially determine if the contract is ambiguous.
If a contract is unambiguous, the court interprets the meaning of the contract as a matter of law and the trier of fact determines if the contract, as construed by the court, has been breached.
If a contract is ambiguous, the trier of fact may consider extrinsic evidence about the parties' intent to determine the meaning of the contract and the trier of fact then decides whether the parties have breached the contract.
If a contract is uncertain, the language of the contract is interpreted most strongly against the party who caused the uncertainty; however, for contracts between a public entity and a private party, it is presumed the uncertainty was caused by the private party.

Disciplinary Board v. Chinquist 2006 ND 107
Docket No.: 20050359
Filing Date: 5/16/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5(a) and (b), 1.7(a), 1.8(a), and 1.15(a) and (f).
Having consensual sexual relations with a domestic relations client serves the attorney's own interests and creates an inherent conflict with the proper representation of the client.

Roth v. State 2006 ND 106
Docket No.: 20050227
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Claiming ineffective assistance of trial and appellate counsel for the first time in the first post-conviction relief application is not misuse of process.

Disciplinary Board v. Hellerud 2006 ND 105
Docket No.: 20050354
Filing Date: 5/11/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Charging an unreasonable fee can subject an attorney to discipline.
Failing to communicate the basis, rate, and amount of fee within a reasonable time period can subject an attorney to discipline.
What attorneys charge for their services is generally a matter of agreement between the lawyer and the client.
A client's failure to complain does not prevent the Disciplinary Board from hearing a complaint. Nor does it prevent the Supreme Court from imposing sanctions.

Interest of C.S. 2006 ND 104
Docket No.: 20060116
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: A respondent in an involuntary commitment proceeding has a due process right to counsel.
A respondent's waiver of counsel in a mental health proceeding must be knowing, intelligent, and voluntary.
In an involuntary commitment proceeding, the trial court must determine the competence of the respondent to make a knowing and intelligent waiver of the right to counsel before permitting the respondent to proceed without counsel.
A presumption of incompetence does not arise simply due to the fact that mental health proceedings are being undertaken against the respondent.
For the record to disclose a valid waiver of right to counsel in a mental health proceeding, it must mirror the record of a valid waiver in a criminal proceeding.
In a mental health proceeding where the respondent wishes to represent himself, the trial court must make the respondent aware of the dangers and disadvantages of self-representation.
The trial court must assess the validity of a waiver of counsel and competence to make that waiver before each proceeding during which the respondent wishes to represent himself.
Courts should indulge every reasonable presumption against a waiver of counsel.

Interest of K.L. (Confidential) 2006 ND 103
Docket No.: 20060115
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: Mentally ill persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs.
When deciding whether alternative treatment to hospitalization is adequate, the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs, and (2) whether an alternative treatment program is sufficient to prevent harm or injuries that an individual may inflict on himself or others.
While family involvement may be crucial in the recovery of mentally ill persons, it alone cannot defeat a district court finding that a person is dangerous and requires hospitalization if the record supports that finding.

State v. Grager (Consolidated w/20050281-20050292) 2006 ND 102
Docket No.: 20050280
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A prosecutor does not have the right to appeal an order dismissing a case when the proseuctor requested the dismissal.
The prosecution may not appeal an order suppressing evidence after the case has been dismissed at its request.

Lausen v. Hertz 2006 ND 101
Docket No.: 20050371
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A court may, without an evidentiary hearing, deny a motion seeking modification of custody, unless the court finds the moving party has established a prima facie case justifying modification.
An unappealed judgment authorizing the custodial parent to remove the child from the state is res judicata.

State v. Haibeck (Cross-Ref. w/20040060) 2006 ND 100
Docket No.: 20050367
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
An argument that is not adequately articulated, supported, and briefed will not be considered on appeal.
A motion for acquittal may not be granted before the prosecution has the opportunity to present its evidence.