Opinions

State v. Feist 2006 ND 21
Docket No.: 20050152
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: When the nature of a plea agreement is ambiguous, a trial court should clarify the existence of a plea agreement on the record.
The court must allow the defendant to withdraw a plea of guilty whenever the defendant proves withdrawal is necessary to correct a manifest injustice.
The failure of a district court to substantially comply with the requirements of N.D.R.Crim.P. 11(c) in conjunction with ambiguity on the record as to what sort of plea negotiations existed between the parties creates a manifest injustice requiring the withdrawal of a guilty plea.

Perez v. Nichols 2006 ND 20
Docket No.: 20050228
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: To succeed in a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant failed to discharge that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant's negligence.
The driver of an automobile has a duty to keep a proper lookout, and failure to discharge that duty is negligence.
In a negligence claim, when the evidence permits a reasonable fact-finder to reach only one reasonable conclusion, negligence becomes a question of law and is appropriate for summary judgment.

Interest of M.B., et al. (CONFIDENTIAL) 2006 ND 19
Docket No.: 20050206
Filing Date: 1/31/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: To terminate parental rights, the petitioner must provide specific facts that will be relied on to terminate the parent's rights so the parent has notice and is able to meaningfully prepare a defense.
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. Schrum 2006 ND 18
Docket No.: 20050267
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A criminal defendant's sentence must be credited for time served in custody on that charge.

Korynta v. Korynta 2006 ND 17
Docket No.: 20050201
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When calculating child support, a trial court must not base its child support award on an extrapolation of an obligor's future income, unless evidence of the obligor's recent past circumstances are not a reliable indicator of his future circumstances.

Hewson v. Hewson 2006 ND 16
Docket No.: 20050218
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court does not have continuing jurisdiction to modify a property distribution in a divorce judgment, but has continuing jurisdiction to modify child support.
Agreements between parents as to the support and maintenance of a child shall only be accepted by a trial court if they are in the child's best interest.
An agreement between parents purporting to prohibit or limit the power of a court to modify future child support violates public policy and is invalid.
As a matter of equity, a divorcing parent attempting to satisfy her child support obligation by foregoing a rightful share of the marital property is entitled to offset the amount of marital property given up against her child support obligation so long as it does not supercede the child's right to support.
When the equitable-offset remedy calculation results in a credit in favor of the obligor, the obligor receives only a credit against her future child support obligations and is not entitled to reimbursement for that credit.

Edward H. Schwartz Const. Inc. v. Driessen 2006 ND 15
Docket No.: 20050150
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The existence of an oral contract and the extent of its terms are questions of fact that are reviewed under the clearly erroneous standard of review.
A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because an appellate court may have viewed the evidence differently does not entitle it to reverse the trial court.

State v. Smith 2006 ND 14
Docket No.: 20050264
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: When an incorrect notice of appeal is filed leading to an issue not being appealed and the case proceeds through appeal, oral argument, and a written opinion, the issue will not be considered on a second appeal when the party made no attempt have the issue reviewed by correcting the notice of appeal or filing a petition for rehearing after the first appeal.

Disciplinary Board v. Giese 2006 ND 13
Docket No.: 20050158
Filing Date: 1/31/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: During a suspension, suspended attorneys may not hold themselves out as being authorized to practice law in this state.
Rule 6.3, N.D.R. Lawyer Discipl., requires full compliance with the rules for lawyer discipline, including timely notice to clients about a suspended attorney's status.

Kuperus v. Willson, et al. 2006 ND 12
Docket No.: 20050114
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A written settlement agreement is interpreted under rules for construing written contracts.
A settlement agreement will not be set aside absent a showing of fraud, duress, undue influence, or other grounds for rescinding a contract.