Opinions

Clark v. Clark 2006 ND 182
Docket No.: 20050436
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decisions to admit expert testimony or deny a continuance will not be reversed absent an abuse of discretion.
A district court's decision whether to allow children to testify about their custody preference is reviewed under the abuse of discretion standard.
Rotating custody arrangements are in a child's best interests only if the parents are able to cooperate and set aside their differences and conflicts in their role as parents.
A district court's custody decision under the best-interest-of-the-child analysis is subject to the clearly erroneous standard of review.
Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, as a matter of law, a district court must clearly set forth how it arrived at the amount of income and the level of support.
A district court cannot include depreciation deductions in income when determining an obligor's child support obligation.

Hagel v. Hagel 2006 ND 181
Docket No.: 20050434
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to perform its appellate function.

Mountrail Bethel Home v. Lovdahl, et al. 2006 ND 180
Docket No.: 20060002
Filing Date: 8/16/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court must make findings on issues a party raises and presents evidence on.

State v. Woinarowicz 2006 ND 179
Docket No.: 20060032
Filing Date: 8/16/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The Sixth Amendment Confrontation Clause does not apply to the same extent at pretrial suppression hearings as it does at trial.
A district court is not bound by the Rules of Evidence at pretrial evidentiary hearings.
Constructive possession of a controlled substance may be established by showing the individual had the power and ability to exercise dominion and control over the controlled substance.
An arrestee's person and purse may be searched incident to arrest.

Heng v. Rotech Medical Corp., et al. 2006 ND 176
Docket No.: 20050311
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Issues cannot be raised for the first time on appeal.
Whether an employee has established a prima facie case of retaliatory discharge is a question of law fully reviewable on appeal.
An employer's failure to follow its own policies may support an inference of pretext, but not when the departure in policy is applied to all employees.
The admission of deposition testimony under N.D.R.Civ.P. 32(a) lies within the district court's discretion.
A comparison of hours and rates charged by opposing counsel is probative of the reasonableness of a request for attorney fees by prevailing counsel.
Mediation fees may not be awarded as an allowable cost if the parties have contractually agreed to share those expenses.
Electronic legal research fees are a component of attorney fees and cannot be separately taxed as costs.

State ex rel. ND Housing Finance Agency v. Center Mutual Ins. Co. 2006 ND 175
Docket No.: 20050224
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: An instrument payable to multiple payees non-alternatively may only be negotiated, discharged, or enforced by all of them.
Payment of a check by a payor bank to one joint payee over the forged endorsement of another payee does not discharge the drawer's obligation on the instrument, and the payee has an action against the drawer on the instrument.
A check containing a forged endorsement is not "properly payable" under N.D.C.C. 41-04-32(1), and the drawer has a right to reimbursement of the amount of the check to its account if its bank accepts and pays the check.

Hunt v. Banner Health System 2006 ND 174
Docket No.: 20050402
Filing Date: 7/30/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The presence of a clear, conspicuous, and unambiguous disclaimer may act as an "escape hatch" in an employee handbook, virtually undoing other implied promises made in the handbook.
The language in an employee manual simply stating it does not guarantee employment does not preclude the manual from being an employment contact.

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.

Molitor v. Molitor 2006 ND 163
Docket No.: 20040041
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court's custody decision is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
A trial court's findings of fact in child custody cases should be stated with sufficient specificity to enable the appellate court to understand the factual basis for the court's decision.
The failure to raise the issue of judicial bias in the trial court precludes appellate court review on appeal.
When a party seeking modification of custody within two years of issuance of a custody order does not prove any of the grounds listed under N.D.C.C. 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody.

Riemers v. State, et al. 2006 ND 162
Docket No.: 20050433
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: Absent personal jurisdiction, a court is powerless to do anything beyond dismissing a case without prejudice.

Lautt v. Lautt 2006 ND 161
Docket No.: 20050373
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The standard of review for child support determinations depends on the issue appealed: a de novo standard applies to questions of law; a clearly erroneous standard applies to questions of fact; and an abuse of discretion standard applies to discretionary matters.
A district court errs by failing to close the record following the hearing and to address a child support modification motion.

Witzke v. City of Bismarck 2006 ND 160
Docket No.: 20060113
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A prosecutor is absolutely immune from liability for prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the State's case at trial, and other conduct intimately associated with the judicial process.
There is no private cause of action for perjury.

SPW Associates v. Anderson, et al. 2006 ND 159
Docket No.: 20050205
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Principles of partnership law apply to a joint venture.
A joint venturer is an agent of the joint venture and has authority to grant a security interest in joint venture property.

City of Bismarck v. DePriest (Consolidated w/20060071 & 20060072) 2006 ND 158
Docket No.: 20060070
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Law enforcement officials may use persons under 21 years of age to attempt to purchase alcoholic beverages to conduct alcohol compliance checks.

Johnson v. Gehringer (cross-reference w/20010170) 2006 ND 157
Docket No.: 20050394
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court's finding of contempt will not be overturned unless there is a clear abuse of discretion.
The interpretation of an amended judgment is a question of law which is fully reviewable on appeal.

Interest of K.H. (CONFIDENTIAL) 2006 ND 156
Docket No.: 20050305
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Juvenile Law
Author: Kapsner, Carol

Highlight: A juvenile's right to counsel can be waived even if the minor is of a young age, provided the juvenile is represented by the child's parent, guardian, or custodian.
Deference is given to a juvenile court's credibility determinations.

Spectrum Care v. Stevick, et al. 2006 ND 155
Docket No.: 20060018
Filing Date: 7/18/2006
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: A person is disqualified from receiving unemployment compensation benefits if the person is discharged for misconduct.
An employer has the burden to establish by a preponderance of the evidence that a terminated employee's actions constitute misconduct that disqualifies the employee from receiving unemployment compensation benefits.

Gietzen v. Gabel 2006 ND 153
Docket No.: 20050268
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When there is credible evidence of domestic violence, it is the predominate factor in a child custody decision.
Specific findings and conclusions are required when a district court addresses whether evidence of domestic violence triggers the presumption against awarding custody of a child to a perpetrator of domestic violence.
When reciprocal domestic violence is claimed, a district court must make specific findings on the degree of violent behavior by each parent.

State v. Torkelsen 2006 ND 152
Docket No.: 20050250
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: The mere presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.

Wilson v. Ibarra 2006 ND 151
Docket No.: 20050357
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: To justify a termination of all visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail.

State v. Entzi 2006 ND 150
Docket No.: 20060066
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Denial of a motion to terminate probation is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Guardianship and Conservatorship of Johnson 2006 ND 149
Docket No.: 20060021
Filing Date: 7/5/2006
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: An order appointing co-guardians and co-conservators with unlimited authority to make decisions for the ward is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Korsmo 2006 ND 148
Docket No.: 20060054
Filing Date: 6/30/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Rekkedal v. Feist 2006 ND 147
Docket No.: 20050430
Filing Date: 6/30/2006
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Dismissal of a lawsuit for failure to timely file the complaint requires that the demand to file has been served under N.D.R.Civ.P. 4(d); N.D.R.Civ.P. 5 service of the demand is not sufficient.
A party will be sanctioned for including in its appendix material not in the district court record.

Disciplinary Board v. Aakre 2006 ND 146
Docket No.: 20050382
Filing Date: 6/29/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Estate of Sorenson 2006 ND 145
Docket No.: 20050350
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: No acknowledgment or promise is sufficient evidence of a new or continuing contract to preclude operation of the statute of limitations unless the acknowledgment or promise is contained in a writing signed by the party to be charged.
Whenever services are rendered by one family member for another, a presumption arises that the services are gratuitous and that compensation was not intended, and a claimant has the burden to rebut the presumption by proof that the services were not gratuitous, which may be established by proof that the parties expressly or impliedly agreed the claimant would be compensated.

State ex rel. Bd. of University and School Lands v. Alexander, et al. 2006 ND 144
Docket No.: 20050409
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: The parties to a prior foreclosure action and their assigns are bound by a judgment in the prior action under principles of res judicata.
The Pembina Nation Little Shell Band of North America is not a federally recognized Indian tribe.

Interest of J.S. (CONFIDENTIAL) 2006 ND 143
Docket No.: 20060156
Filing Date: 6/29/2006
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.
When available alternative treatment programs are insufficient to prevent harm or injures that an individual may inflict on himself or others, less restrictive treatment cannot be ordered.

DeMers v. DeMers 2006 ND 142
Docket No.: 20050184
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The statutory presumption against awarding custody to the perpetrator of domestic violence applies when the district court finds there is credible evidence of domestic violence and at least one incident of domestic violence resulted in serious bodily injury or involved the use of a dangerous weapon, or there is a pattern of domestic violence within a reasonable proximity to the proceeding.
A party waives the right to appeal a divorce judgment if she unconditionally, voluntarily, and consciously accepts the benefits of the judgment.
The district court must adequately explain a substantial disparity in a property distribution.

Farmers Insurance Exchange, et al. v. Schirado 2006 ND 141
Docket No.: 20050221
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A plaintiff may establish the elements of a claim by circumstantial evidence.
Direct evidence of causation is not required if other evidence is sufficient to permit an inference that the defendant's conduct caused the plaintiff's damages.

State v. Ehli (Consolidated w/20060042) 2006 ND 140
Docket No.: 20060041
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: State's appeal of order suppressing evidence will be dismissed as moot when the underlying cases had been dismissed on a motion by the State.

State v. Hansen 2006 ND 139
Docket No.: 20050387
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An appellate court does not render advisory opinions and will dismiss an appeal if the issues have become moot or so academic that no actual controversy is left to be decided.
When a district court fails to follow established procedures and orderly process in declaring a law unconstitutional, supervisory jurisdiction may be used to vacate the district court's order.

State v. Oien 2006 ND 138
Docket No.: 20050451
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An individual trespassing is not entitled to the protections of the Fourth Amendment because he does not have a reasonable expectation of privacy.

Johnson v. Sprynczynatyk 2006 ND 137
Docket No.: 20050449
Filing Date: 6/29/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Traveling at a slower than usual speed, with no further evidence of illegal activity, does not alone create a reasonable and articulable suspicion justifying a traffic stop.

Kenmare Education Assn. v. Kenmare Public School Dist. #28 2006 ND 136
Docket No.: 20050422
Filing Date: 6/29/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Kapsner, Carol

Highlight: A school district must negotiate in good faith with the representative organization before last-offer contracts are made.
After the North Dakota Education Fact Finding Commission has issued a recommendation and the parties are still at an impasse, a School District may issue last-offer contracts limited to the current period of negotiations.

State v. Gresz 2006 ND 135
Docket No.: 20050401
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Other
Author: Kapsner, Carol

Highlight: In the absence of physical action upon another person, the failure to include a self-defense jury instruction on a charge of disorderly conduct is not obvious error.

State v. Blue 2006 ND 134
Docket No.: 20050187
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Sexual Offense
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.
Videotape recording of child's statement to forensic interviewer that included government involvement is a testimonial statement and if the child is available to testify, and the playing of the videotape without the opportunity to cross-examine the witness violates defendant's constitutional right to confront his accuser.
The "reliability and trustworthiness" factors are still to be used for non-testimonial statements. But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.

Ulsaker v. White 2006 ND 133
Docket No.: 20050207
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: All assets regardless of source, whether separately obtained or inherited property, are to be considered part of the marital estate.
A district court misapplies the law when it determines property individually held is not included in the marital estate.
A property division need not be equal, but a substantial disparity must be explained.
Questions of property division and spousal support ordinarily must be examined and dealt with together.

Interest of N.B. (CONFIDENTIAL) 2006 ND 132
Docket No.: 20060031
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Juvenile Law
Author: Per Curiam

Highlight: Juvenile court order declaring child delinquent is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Jelleberg 2006 ND 131
Docket No.: 20050446
Filing Date: 6/29/2006
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)(2) and (7).

Interest of K.G. (Confidential) 2006 ND 130
Docket No.: 20060158
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Order for continuing mental health treatment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Rutherford 2006 ND 129
Docket No.: 20050374
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted the defendant of burglary and assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

City of Fargo v. Curtis 2006 ND 128
Docket No.: 20060027
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment entered after a jury convicted the defendant of driving under the influence of alcohol and operating a motor vehicle without liability insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Ballensky v. Flattum-Riemers, et al. 2006 ND 127
Docket No.: 20050277
Filing Date: 6/5/2006
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A defendant's demand to file a complaint is personal to the demanding defendant, and a plaintiff's failure to file the complaint after a demand does not void the service of the summons as to other defendants.
The amount of damages is a question of fact, and a victim need not establish economic damages before noneconomic damages can be awarded.
A physician is immune from liability for making a good faith report that the physician treated a person for an injury sustained in a motor vehicle accident if the physician has reasonable cause to suspect the injury was inflicted in violation of any criminal law, including driving under the influence of illegal drugs.

Interest of E.G., et al. (CONFIDENTIAL) (Consolidated w/20050448) 2006 ND 126
Docket No.: 20050447
Filing Date: 6/5/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: To terminate parental rights, the petitioner must prove three elements by clear and convincing evidence: (1) the child is a deprived child, (2) the conditions and causes of the deprivation are likely to continue or will not be remedied, and (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
To prove deprivation is likely to continue or will not be remedied, the petitioner cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.

State v. Manning 2006 ND 125
Docket No.: 20050327
Filing Date: 6/5/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: Relevant evidence is evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Tarnavsky v. Tarnavsky, et al. 2006 ND 124
Docket No.: 20050457
Filing Date: 6/5/2006
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A case is remanded to the district court with directions to vacate an order confirming a sheriff's sale when the appellee concedes on appeal that errors occurred in the sheriff's sale and consents to vacation of the order confirming the sale.

Porter v. Porter 2006 ND 123
Docket No.: 20050358
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court must analyze all four Stout-Hawkinson factors in determining whether a custodial parent may move out of state with a child.

Johnson v. State 2006 ND 122
Docket No.: 20060010
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: The affirmative defense of laches is proper in post-conviction proceedings.
For the affirmative defense of laches to prevail, the State must prove, by a preponderance of the evidence, that (1) the petitioner has unreasonably delayed in seeking relief, and that (2) the delay has prejudiced the State.

University Hotel Development v. Dusterhoft Oil, Inc., et al. 2006 ND 121
Docket No.: 20050386
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Before promissory estoppel may be invoked to enforce an agreement or to award damages, the terms of the promise must be clear, definite, and unambiguous.

Kostelecky v. Kostelecky 2006 ND 120
Docket No.: 20050231
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Property division and spousal support are interrelated and intertwined and often must be considered together. In making a spousal support determination, the district court must consider the relevant factors under the Ruff-Fischer guidelines.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing an opportunity for a disadvantaged spouse to seek education, training, or experience that will enable the spouse to become self-supporting.

Roth v. Hoffer 2006 ND 119
Docket No.: 20050328
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may correct clerical errors after an appellate court has decided an appeal if the correction is the type envisioned by N.D.R.Civ.P. 60(a) and the appellate court has not ruled explicitly or implicitly on the issue that is the subject of the correction.
A correctable clerical mistake may be made by a party.

American Crystal Sugar Co. v. Traill Co. Board of Commissioners 2006 ND 118
Docket No.: 20050343
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Tax Realted
Author: Maring, Mary

Highlight: A board of county commissioners is not required to follow formal rules of judicial procedure in tax abatement proceedings.
A court can reverse a local governing body's valuation and assessment of property only when there is such an absence of evidence or reason as to amount to arbitrary, capricious, or unreasonable action.
A board of county commissioners' classification of property as either real or personal presents a question of law fully reviewable by a court.
Structures and buildings are required to be assessed as real property, but other attached machinery and equipment used in the industrial process are classified as personal property exempt from property taxation.

Haugen v. BioLife Plasma Services, et al. 2006 ND 117
Docket No.: 20050310
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: The doctrine of res ipsa loquitur allows a fact finder to infer negligence if the plaintiff can establish three foundational elements: (1) the accident was one that does not ordinarily occur in the absence of negligence; (2) the instrumentality or agent that caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff.
When a plaintiff can present specific evidence of negligence and the cause of an accident, the plaintiff has no need to rely on a res ipsa loquitur inference.

City of Grand Forks v. Hendon/DDRC/BP, et al. 2006 ND 116
Docket No.: 20050197
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The amount of damages in a condemnation action will be upheld on appeal if it is within the range of the evidence presented to the trier of fact.

Wheeler v. Schuetzle 2006 ND 115
Docket No.: 20060074
Filing Date: 6/1/2006
Case Type: Original Proceeding - Criminal - Writ of Prohibition
Author: VandeWalle, Gerald

Highlight: The Supreme Court's original jurisdiction will not be exercised to vindicate private rights, regardless of their importance.
Before the Supreme Court's original jurisdiction will be exercised, the rights of the public, the sovereignty of the state, or the liberties of its people must be directly affected.
To exercise the Supreme Court's original jurisdiction, a private party must set forth in his petition that he has called the alleged infringement upon the sovereignty of the state to the attention of the Attorney General and requested the Attorney General to institute an original proceeding but the Attorney General refused to do so or unreasonably delayed doing so.

Gust v. State 2006 ND 114
Docket No.: 20050381
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A defendant has the burden to show he is entitled to additional credit for time served in custody.
A defendant is not entitled to credit for time spent in custody for both a separate criminal offense and a new sentence following a parole revocation.

State v. Frederick 2006 ND 113
Docket No.: 20050432
Filing Date: 6/1/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Convictions of manufacture of a controlled substance, possession of drug paraphernalia, and abuse or neglect of a child are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Kunze v. State (Consol. w/20050377-20050379) (Cross-ref. w/990163-990166) 2006 ND 112
Docket No.: 20050376
Filing Date: 6/1/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court's summary denial of a motion for an evidentiary hearing on post-conviction relief and denial of a motion to vacate criminal judgments is affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

Carpenter v. Rohrer, et al. 2006 ND 111
Docket No.: 20050127
Filing Date: 5/17/2006
Case Type: Appeal - Civil - Malpractice
Author: Kapsner, Carol

Highlight: An appellant must provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors and assumes the consequences for the failure to file a complete transcript.
Special jury verdicts are upheld whenever possible and set aside only if it is shown they were perverse and clearly contrary to the evidence.
A witness's qualification to testify as an expert is left to the sound discretion of the trial court and is not reversed on appeal absent an abuse of discretion.

Bank Center First, Bismarck, ND v. R.C. Transport LLC, et al. 2006 ND 110
Docket No.: 20050299
Filing Date: 5/17/2006
Case Type: Appeal - Civil - Foreclosure
Author: VandeWalle, Gerald

Highlight: Filing a money judgment in a county where the judgment debtor has an interest in real property is a lien on the judgment debtor's interest in the real property.
The 60-day limit for redeeming from a prior redemptioner begins to run when the prior redemptioner's written notice of redemption is filed with the office of the county recorder.
To redeem property, a redemptioner need pay only the purchase price with interest, plus amounts which have been paid to protect the premises.

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.

Ziesch v. Workforce Safety & Insurance, et al. 2006 ND 99
Docket No.: 20050256
Filing Date: 5/11/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Workforce Safety and Insurance's practice of awarding lump sum disability benefits for a closed, limited time and simultaneously issuing a retroactive notice of intention to discontinue benefits does not violate due process if the claimant was not receiving ongoing disability benefits at the time of WSI's decision.
The purpose of administrative res judicata is to preserve resources and avoid wasteful expense and delay.

State v. Pace 2006 ND 98
Docket No.: 20050342
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A driving-under-the-influence arrestee being asked to submit to a chemical test is, upon request, entitled to a reasonable opportunity to contact a lawyer before deciding whether to take the test.
The reasonableness of the opportunity to consult with a lawyer before taking a chemical test for DUI is evaluated under the totality of the circumstances.
A law enforcement officer need not offer other suggestions to a DUI arrestee who is unable to reach his lawyer and makes no further requests.

Knutson, et al. v. City of Fargo 2006 ND 97
Docket No.: 20050355
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Under the North Dakota Constitution, inverse condemnation requires a public entity's taking or damaging an owner's property by some deliberate act, whether done intentionally, negligently, or innocently.
For intentional trespass, the plaintiff must establish the defendant intentionally entered the land of another, or caused a thing or third person to do so, without the consent of the landowner.
Public entities are not liable in negligence for discretionary functions or duties.
To decide whether a governmental act is protected by discretionary immunity, the court must examine whether the action is a matter of choice for the acting employee and whether that judgment or choice is of the kind that discretionary immunity was designed to shield.

Interest of J.M. (CONFIDENTIAL) 2006 ND 96
Docket No.: 20050383
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: In a proceeding for commitment as a sexually dangerous person, the evidence must clearly show a respondent's disorder is likely to manifest itself in a serious difficulty in controlling sexually predatory behavior.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
A trial court's failure to make a finding of good cause to extend the time for holding a commitment hearing within sixty days of the finding of probable cause does not require a subsequent order for commitment be vacated.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.

State v. Wheeler (Cons. w/20050258 & 20050259) 2006 ND 95
Docket No.: 20050257
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions of gross sexual imposition, encouraging the deprivation of a minor, and contributing to the delinquency of a minor are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).
A judgment should accurately reflect the proceedings and under N.D.R.Crim.P. 36, a court may correct a clerical error in a judgment due to oversight.

State v. Ruud 2006 ND 94
Docket No.: 20050314
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Theft
Author:

Highlight: Conviction for theft of property is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Clifford v. Redmann 2006 ND 93
Docket No.: 20050419
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying petition for writ of habeas corpus is dismissed as an unappealable order.
Dismissal of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Kaiser v. State (Cross-reference w/20040135) 2006 ND 92
Docket No.: 20050319
Filing Date: 5/11/2006
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).

City of Minot v. Hellebust 2006 ND 91
Docket No.: 20050372
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment after conviction by a jury of driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

City of Lisbon v. Dahl 2006 ND 90
Docket No.: 20050388
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment for driving under the influence of liquor or drugs is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Judicial Vacancy in Judgeship No. 4, Southwest Judicial District 2006 ND 89
Docket No.: 20060098
Filing Date: 5/4/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Judicial Vacancy in Judgeship No. 5, Southeast Judicial District 2006 ND 88
Docket No.: 20060035
Filing Date: 4/26/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Southeast District judgeship retained at Ellendale.

Choice Financial Group v. Schellpfeffer, et al. (Cross-Ref w/20040204) 2006 ND 87
Docket No.: 20050273
Filing Date: 4/25/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Summary judgment is appropriate only after the non-moving party has had a reasonable opportunity for discovery to develop his position.
Failure to comply with the affidavit requirement of Rule 56(f), N.D.R.Civ.P., is not fatal to a request for additional discovery before a summary judgment motion is decided.
The party seeking additional discovery must identify with specificity what information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.

Steen and Berg Co. v. Berg 2006 ND 86
Docket No.: 20050155
Filing Date: 4/25/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A primary objective of a nonclaim statute is the expeditious and orderly processing of decedents' estates, and if claims against a decedent's estate are not timely filed, the claims are barred as a matter of law.
Casting a claim in terms of title to property is insufficient to avoid the time limitations of the nonclaim statute if the gist of the claim sounds in tort or in contract.

Disciplinary Board v. Mertz 2006 ND 85
Docket No.: 20050360
Filing Date: 4/24/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney may attempt to compromise an infraction by proposing payment for the individual's injuries and agreeing not to file a potential suit against the individual in exchange for the individual dismissing the complaint.
When representing a client, an attorney may not use means that have no substantial purpose other than to embarrass or burden a third party.

State ex rel. Stenehjem v. FreeEats.com, Inc. 2006 ND 84
Docket No.: 20050171
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law.
A state's police power encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community.
The statutory language of the Telephone Consumer Protection Act of 1991 clearly expresses Congress' intent that the Act was not meant to occupy the field within its subject matter.
The Telephone Consumer Protection Act does not preempt a state law which prohibits telemarketing calls using automatic telephone dialing systems or artificial or prerecorded voice messages.

Sanderson, et al. v. Walsh Co., et al. 2006 ND 83
Docket No.: 20050303
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A dismissal without prejudice is not appealable except where the dismissal has the practical effect of terminating the litigation in the plaintiff's forum, e.g., a statute of limitations has run or where litigation is foreclosed in the state court.
Mailing, even by certified mail with return receipt and restricted delivery, does not constitute "delivering" for purposes of service of process on a county or the State under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F).

Interest of P.F. (CONFIDENTIAL) 2006 ND 82
Docket No.: 20050302
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A preliminary hearing must be held within seventy-two hours of the filing of a petition for commitment of a sexually dangerous individual. The purpose of the hearing is to determine whether there is probable cause to believe that individual is sexually dangerous.
Expert testimony is not required at the preliminary hearing.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.
In determining whether a person is "sexually dangerous," the State's experts may rely on all sexual predatory conduct, not just that conduct that resulted in a successful conviction on a sexual offense.

Marchus v. Marchus 2006 ND 81
Docket No.: 20050329
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or explained.

Murphy v. State (cross-ref. w/20050428) 2006 ND 80
Docket No.: 20050456
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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