Opinions

State v. Steen 2005 ND 199
Docket No.: 20050216
Filing Date: 11/29/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order denying motion for a new trial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Croaker 2005 ND 198
Docket No.: 20050145
Filing Date: 11/29/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Conviction of simple assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Johnson v. State (Cross-Ref. w/20050028 & 20050029) 2005 ND 197
Docket No.: 20050168
Filing Date: 11/29/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Conviction of contact by bodily fluids is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Stevenson 2005 ND 196
Docket No.: 20050134
Filing Date: 11/29/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Judicial Vacancy in Judgeship No. 3, Northeast Judicial District 2005 ND 195
Docket No.: 20050369
Filing Date: 11/17/2005
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bottineau.

Interest of J.F. (CONFIDENTIAL) 2005 ND 194
Docket No.: 20050046
Filing Date: 11/15/2005
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: Orders finding a child to be unruly and deprived are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Wild Rice River Estates v. City of Fargo 2005 ND 193
Docket No.: 20050074
Filing Date: 11/14/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal, but a trial court's findings of fact on a takings claim will not be set aside unless they are clearly erroneous.
A temporary deprivation of all economically viable use of property does not necessarily constitute a taking of property requiring compensation.
An extraordinary delay in governmental decisionmaking coupled with bad faith on the part of the governmental body may result in a compensable taking of property.

Klose v. State (cross-reference w/20010309) 2005 ND 192
Docket No.: 20050044
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An appellant failing to file a trial transcript on appeal assumes the risks and consequences of such failure.

State v. Laib 2005 ND 191
Docket No.: 20050099
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: For the crime of terrorizing, the critical inquiry is whether the defendant intended to place others in fear for their safety.
For the crime of terrorizing, a threat does not have to be made verbally.
For the crime of terrorizing, a communication, either verbal or nonverbal, is sufficient to be a threat if a reasonable person could conclude that it was a threat under the circumstances.

Wetzel v. Schlenvogt (CONSOLIDATED W/20050122) 2005 ND 190
Docket No.: 20050121
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A corporation may not be represented by a non-attorney agent in a legal proceeding.
When a case is commenced on behalf of a corporation by a non-attorney agent, the case and all documents signed by the non-attorney agent are void from the beginning.
Reasonable grounds exist for obtaining a disorderly conduct restraining order when the facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.
A disorderly conduct restraining order does not require a pattern of behavior.
The district court does not abuse its discretion in granting a disorderly conduct restraining order when there is sufficient, admissible evidence that disorderly conduct has been committed, whether that evidence is received on direct examination or cross-examination.
Whenever there is a discrepancy between a trial court's oral and written statements, the written statement controls.

State v. Noorlun 2005 ND 189
Docket No.: 20040329
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: On appeal, jury instructions are considered as a whole to determine whether they correctly and adequately advise the jury of the applicable law and do not mislead or confuse the jury.
Whether documentary evidence should be excluded for lack of adequate foundation is within a trial court's discretion, and adequate foundation may be established by circumstantial evidence, including the events preceding, surrounding, and following the transmission of the document.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.
An information filed in district court before a preliminary examination is not invalid unless the defendant objects to the information before entering a plea.

Johnson v. State 2005 ND 188
Docket No.: 20050230
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A motion for summary disposition of an application for post-conviction relief asking the court to rely solely on the pleadings is treated like a N.D.R.Civ.P. 12(b) motion, and under Rule N.D.R.Ct. 3.2(a), a ten-day response time should be provided the non-moving party before the trial court rules.
A motion for summary disposition of an application for post-conviction relief asking the court to go beyond the face of the pleadings is treated like a N.D.R.Civ.P. 56 motion, and under N.D.R.Ct. 3.2, the non-moving party in a motion for summary judgment has thirty days to respond.

Laib v. State 2005 ND 187
Docket No.: 20050108
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A defendant who has inexcusably failed to raise an issue on a prior direct appeal may not raise the issue in a subsequent application for post-conviction relief.
A defendant claiming ineffective assistance of counsel must prove that counsel's representation fell below an objective standard of reasonableness and that the defendant was thereby prejudiced.
To demonstrate prejudice from ineffective representation, the defendant must establish a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

Hoff v. Fitterer 2005 ND 186
Docket No.: 20050088
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Under the child support guidelines, in cases of underemployment an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
In cases of underemployment, the child support guideline subsection resulting in the greatest imputed income must be used.

Interest of E.I., Jr. (Confidential) 2005 ND 185
Docket No.: 20050024
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mohamed 2005 ND 184
Docket No.: 20050156
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Moore 2005 ND 183
Docket No.: 20050144
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Trial court's denial of petitioner's motion to withdraw his guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of L.J. (CONFIDENTIAL) 2005 ND 182
Docket No.: 20050078
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of C.R. and S.R. (CONFIDENTIAL) 2005 ND 181
Docket No.: 20050062
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

L.C.V. v. D.E.G. (CONFIDENTIAL) 2005 ND 180
Docket No.: 20050008
Filing Date: 10/26/2005
Case Type: Appeal - Civil - Paternity
Author: Crothers, Daniel John

Highlight: The trial court cannot delegate to a custody investigator its authority to award custody to the parent who will promote the best interest and welfare of the child, and it is within the trial court's discretion to assign the weight given to a custody investigator's recommendations.
The trial court's choice for custody between two fit parents is a difficult one, and the appellate court will not retry the case or substitute its judgment for that of the trial court when the decision is supported by the evidence.
Attorney fees are not allowed to a successful litigant in a custody and support proceeding unless expressly authorized by statute or agreement.

Ernst, et al. v. Acuity 2005 ND 179
Docket No.: 20050128
Filing Date: 10/24/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Business risk exclusions in a contractor's comprehensive general liability policy are designed to exclude coverage for defective workmanship by the insured causing damage to the project itself.

Bjerklie v. Workforce Safety and Insurance 2005 ND 178
Docket No.: 20050111
Filing Date: 10/18/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: In an administrative appeal, only issues properly raised before the agency will be reviewed on appeal.
The Administrative Agencies Practice Act requires that alleged errors be specifically enumerated for the district court.
An administrative agency's decision will be summarily affirmed if the appellant fails to specifically identify any error with particularity.
A workers compensation claimant has good cause for not attending an independent medical examination if the claimant has a reason that would cause a reasonably prudent person to refuse to attend under the same or similar circumstances.
When a workers compensation claimant who has a reasonable opportunity to inform WSI that she cannot attend an independent medical examination fails to do so, the claimant's responsibility to cooperate with WSI has not been fulfilled, the claimant has not communicated properly with WSI, the claimant does not have good cause to not attend the IME, and the claimant has failed to comply with rehabilitation requirements.

Interest of L.D.M. (CONFIDENTIAL) 2005 ND 177
Docket No.: 20040319
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: The requirement that two experts conclude statutory conditions have been met to civilly commit a person as a dangerous sexual individual can be met by testimony of two experts employed by the same employer who have conferred during the evaluation process, providing each arrives at a separately held conclusion.
In considering the totality of the evidence, the court can rely on the expert opinion of witnesses called by the State and by the defendant in deciding whether the statutory conditions are met for civil commitment, under N.D.C.C. ch. 25-03.3, of a person as a dangerous sexual individual.

Clark v. Clark 2005 ND 176
Docket No.: 20050101
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When the district court provides no factual findings or explanation for the basis of its custody decision, remand is necessary.
A district court must make factual findings regarding spousal support.
An award of grandparent visitation or custody is clearly erroneous if exceptional circumstances do not exist, the best interests of the child were not examined, and the grandparent did not petition the court for visitation or custody.
A successor judge taking over a case must either make a N.D.R.Civ.P. 63 certification before resuming proceedings or order a new trial.

Seehafer v. Seehafer 2005 ND 175
Docket No.: 20050069
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A probate homestead may not be claimed in land when the claimant held no interest and her deceased husband held only a joint tenancy.

Ruud v. Frandson, et al. 2005 ND 174
Docket No.: 20050049
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's resolution of an ambiguity in a will is a finding of fact that will not be set aside unless it is clearly erroneous.
A competent testator may dispose of property as the testator wishes without regard to the desires of beneficiaries, juries, or courts as long as the terms of the will are not prohibited by law or opposed to public policy.
An estate may be granted on a condition, upon the performance or breach of which the estate shall commence, be enlarged, or be defeated.
When there is a testamentary gift upon a condition that is accepted by the beneficiary, the beneficiary must perform the condition, however burdensome.
Under N.D.R.Civ.P. 15(b), a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings.
Amendment of the pleadings by implication under N.D.R.Civ.P. 15(b) arises only when the evidence introduced is not relevant to any issue pleaded in the case.

Farmers Union Mutual Ins. Co. v. Decker, et al. 2005 ND 173
Docket No.: 20040371
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The evidence must show the claim is within an exception to the exclusion in order to benefit from coverage.
An insurer's obligation to defend an insured and pay the resulting attorney fees arises when the complaint alleges facts that create a possibility of coverage under the policy.

State v. Bartelson 2005 ND 172
Docket No.: 20040266
Filing Date: 10/18/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An officer's subjective intent is irrelevant on the question of probable cause if a driver has committed a traffic violation.
An officer's probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation.

Hoffman v. Disciplinary Board 2005 ND 171
Docket No.: 20050162
Filing Date: 10/18/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A petitioner has the burden of establishing qualifications for reinstatement to the bar by clear and convincing evidence.
A lawyer's speech outside of a courtroom setting may be limited more than that of a lay person.

City of Bismarck v. Witzke 2005 ND 170
Docket No.: 20050169
Filing Date: 10/18/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction of attempted criminal mischief is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Acuity Ins. Co. v. Meridian Ins. Co. 2005 ND 169
Docket No.: 20050093
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Insurance
Author: Per Curiam

Highlight: Summary judgment in an insurance contribution action is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).

Disciplinary Board v. Wilkes 2005 ND 168
Docket No.: 20050297
Filing Date: 10/4/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred for felony convictions.

State v. Frankfurth 2005 ND 167
Docket No.: 20050112
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A criminal information must contain all essential elements of the offense in order to charge that offense.
A motion to arrest the judgment may be made after trial when the information fails to charge a crime.
A defective information failing to charge a crime cannot be "cured" through proper jury instruction or other means short of amendment.

Sayler v. State 2005 ND 166
Docket No.: 20050048
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.

Mastrony v. Mastrony 2005 ND 165
Docket No.: 20050002
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Child Support
Author: Not Available

Highlight: Divorce judgment awarding custody and dividing the marital estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Eagleman v. State (Cross-Ref. w/20030149) 2005 ND 164
Docket No.: 20040359
Filing Date: 9/27/2005
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)(7).

State v. Leftbear 2005 ND 163
Docket No.: 20050042
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Allen 2005 ND 162
Docket No.: 20050102
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

M.S.B. v. J.M.B. (CONFIDENTIAL) 2005 ND 161
Docket No.: 20050075
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Paternity
Author: Per Curiam

Highlight: Judgment establishing physical custody of a minor child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Oie 2005 ND 160
Docket No.: 20050031
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A district court does not abuse its discretion in accepting a guilty plea when the factual basis is established through open court inquiry and review of the pre-sentence investigation report.

State v. Moore 2005 ND 159
Docket No.: 20050133
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Denial of motion to correct illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Guardianship/Conservatorship of Onstad 2005 ND 158
Docket No.: 20040235
Filing Date: 9/26/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: VandeWalle, Gerald

Highlight: While N.D.R.Civ.P. 60(b) ordinarily may not be used as a substitute for an appeal or to relieve a party from deliberate choices, in unusual cases a party who has not taken an appeal may obtain relief on a 60(b) motion.
A successor judge should respect the law of the case.

Interest of K.G. (Confidential) 2005 ND 156
Docket No.: 20050266
Filing Date: 8/31/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's finding, that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless it is clearly erroneous.

Amerada Hess Corp., et al. v. Fong 2005 ND 155
Docket No.: 20040378
Filing Date: 8/31/2005
Case Type: Appeal - Civil - Tax Realted
Author: Maring, Mary

Highlight: Gross-up amounts are not "foreign dividends" subject to partial exclusion under state tax law.
The rule of strict construction of ambiguous tax statutes in favor of the taxpayer is a rule of last resort when other means of ascertaining the legislature's intentions have failed.
An administrative agency need not use the rulemaking process to collect an erroneous interpretation of a statute.
While there may be a public desire to avoid double taxation as a matter of public policy, there is no constitutional prohibition against double taxation.

Frisk v. Frisk 2005 ND 154
Docket No.: 20050051
Filing Date: 8/23/2005
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A domestic violence protection order, originally entered under a stipulation or agreement specifically declining to issue findings regarding domestic violence, cannot be extended absent a threshold finding of actual or imminent domestic violence.

Disciplinary Board v. Hoffman 2005 ND 153
Docket No.: 20040379
Filing Date: 8/23/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An isolated instance of ordinary negligence does not constitute lack of competence or diligence under the rules of professional conduct.

State v. Parisien (Consolidated w/20040349 & 20040350) 2005 ND 152
Docket No.: 20040348
Filing Date: 8/18/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: All communications with jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
The mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced.
The giving of an Allen-type charge after the trial court has been informed of a deadlocked jury's numerical split is a factor to consider in assessing whether the totality of the circumstances indicate a coerced verdict.

Miller, et al. v. Diamond Resources, Inc. 2005 ND 150
Docket No.: 20040274
Filing Date: 8/18/2005
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A proximate cause is a cause that, as a natural and continuous sequence unbroken by any controlling intervening cause, produces the injury, and without it the injury would not have occurred.
The intervening negligence of another cannot be a superseding cause that extinguishes a wrong-doer's liability if that negligence was a foreseeable consequence of the situation created by the wrong-doer.

Heart River Partners, et al. v. Goetzfried, et al. 2005 ND 149
Docket No.: 20050003
Filing Date: 8/18/2005
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Parol evidence is admissible in an action to reform a written deed when, through fraud or mutual mistake of the parties, or a mistake by one party which the other at the time knew or suspected, the deed does not truly express the parties' intention.

Disciplinary Board v. Korsmo 2005 ND 148
Docket No.: 20050251
Filing Date: 8/3/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Rojas v. Workforce Safety and Insurance, et al. 2005 ND 147
Docket No.: 20040352
Filing Date: 7/28/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Before a claimant's continuing workers compensation disability benefits may be terminated, WSI must provide pretermination notice of the contemplated action, a summary of the evidence supporting termination, and a meaningful pretermination opportunity to respond in writing to the alleged grounds for termination.
A notice of intent to discontinue benefits and of the claimant's opportunity to respond sent to the claimant by regular mail is insufficient to guarantee due process when the presumption of receipt under N.D.C.C. 31-11-03(24) has been rebutted and it is determined the claimant never received the notice.

CybrCollect, Inc. v. ND Dept. of Financial Institutions, et al. 2005 ND 146
Docket No.: 20040214
Filing Date: 7/27/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Consumer electronic fund transactions in North Dakota are subject to the Electronic Fund Transfer Act and Regulation E, which was issued by the Federal Reserve Board to carry out the purpose of the Act.
An administrative hearing may not be held unless the parties have been served with a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. Basic notions of fundamental fairness dictate a person challenging an agency action must be adequately informed in advance of the questions to be addressed at the hearing so the person can be prepared to present evidence and arguments on those questions.

Estate of Richmond 2005 ND 145
Docket No.: 20040360
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: If the evidence presented in opposition to a motion for summary judgment is of insufficient caliber or quantity to allow a rational finder of fact to find fraud by clear and convincing evidence, there is no genuine issue of material fact.
Fraud is never presumed, even under circumstances that give rise to a suspicion of fraud.

Disciplinary Board v. Ward 2005 ND 144
Docket No.: 20050092
Filing Date: 7/25/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Maring, Mary

Highlight: Lawyer reprimanded for violation of N.D.R. Prof. Conduct 1.15(f), ordered to pay restitution to former clients, and ordered to pay costs and attorney's fees associated with the disciplinary proceeding.

City of Bismarck v. Judkins 2005 ND 143
Docket No.: 20040370
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A constitutional error may be declared harmless if the court, after reviewing the entire record, is convinced that the error did not contribute to the verdict.

Bladow v. Bladow 2005 ND 142
Docket No.: 20040315
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Issues that are not raised in pleadings may be tried by the express or implied consent of the parties.
A motion to modify child custody may be made within two years after entry of an order establishing custody when the court finds a persistent and willful denial or interference with visitation.
A party seeking modification of a custody order must establish a prima facie case justifying modification in order to receive an evidentiary hearing.
Split custody of siblings is not preferred.
A trial court has discretion in awarding attorney fees in a domestic relations case.
A trial court errs as a matter of law when it fails to follow the child support guidelines.

Case Credit Corp. v. Oppegard's Inc. 2005 ND 141
Docket No.: 20040369
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Jury instructions do not need to include a definition of a commonly understood word when such a definition has not been requested. Giving a definition of a commonly understood word is a matter of the trial court's discretion.
A jury instruction on issues not raised at trial is erroneous but only constitutes reversible error if the instruction was intended to mislead the jury. A special damages provision controls over a general damages provision.

State v. Ressler 2005 ND 140
Docket No.: 20040327
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Reasonable suspicion does not permit law enforcement authorities to transport a seized package from the place where suspicion arose to a law enforcement center for further investigation.
Evidence derived based on an illegal seizure must be suppressed as fruit of the poisonous tree.

Simburger v. Simburger 2005 ND 139
Docket No.: 20050032
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Once an initial custody decision has been made, visitation is governed by N.D.C.C. 14-05-22(2).
A party moving to modify visitation bears the burden of establishing that a material change in circumstances has occurred since the prior visitation order and that it is in the best interest of the child to modify the order.

Interest of B.J.K. (Confidential) 2005 ND 138
Docket No.: 20050025
Filing Date: 7/25/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A juvenile court's finding of deprivation will not be set aside unless it is clearly erroneous.
In determining whether the causes and conditions of deprivation will continue or will not be remedied, there must be prognostic evidence forming the basis for reasonable prediction of continued or future deprivation.

State v. Jackson 2005 ND 137
Docket No.: 20050072
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When the court dismisses a criminal information on the basis of its legal interpretation of a criminal statute, and not upon resolution of any factual element of the crime charged, the ruling is not a judgment of acquittal but a quashing of the information from which the State has a right to appeal.
When a sexual offender changes employment address, he must register the change with law enforcement within ten days.

GO Committee, et al. v. City of Minot 2005 ND 136
Docket No.: 20040367
Filing Date: 7/20/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: The judiciary's role in reviewing a municipality's interpretation and application of a municipal ordinance is limited by the doctrine of separation of powers to determining whether the municipality clearly abused its discretion.
Ordinances are interpreted like statutes.
Statutory interpretation is a question of law subject to full review upon appeal.

Disciplinary Board v. Sundby (Consolidated w/ 20050189 - 20050194) 2005 ND 135
Docket No.: 20050188
Filing Date: 7/18/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

State v. Barth 2005 ND 134
Docket No.: 20050015
Filing Date: 7/15/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Persistent use of profane and threatening language combined with threatening hand gestures is not constitutionally protected free speech under the First Amendment to the U.S. Constitution.
When reviewing challenges to sufficiency of the evidence, the reviewing court examines the record to determine whether there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

Citibank v. Reikowski 2005 ND 133
Docket No.: 20050043
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Debtor/Creditor
Author: Sandstrom, Dale

Highlight: Before accepting and filing an answer, a clerk should require the filing fee be paid or waived, however, if the clerk does not do so, the filing of the answer is not invalidated.

Reineke v. Reineke (cross-ref. w/20030014) 2005 ND 132
Docket No.: 20050006
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: An ex-wife's enhanced burden to satisfy marital debt discharged in bankruptcy by her ex-husband is a material change in circumstances warranting a modification of spousal support, and such a modification does not violate U.S. bankruptcy law.

Gonzalez v. Gonzalez 2005 ND 131
Docket No.: 20040374
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Proposed findings prepared by trial counsel become the findings of the court when it affixes its signature to them.
In addressing whether there is evidence of domestic violence that triggers the statutory presumption against the perpetrator receiving custody of a child, the trial court must make specific factual findings and conclusions.
When the trial court decides custody between two fit parents, the court on appeal will not retry the case or substitute its judgment for that of the trial court if there is evidence to support the decision.

Interest of C.H. (CONFIDENTIAL) 2005 ND 130
Docket No.: 20050209
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's order for involuntary hospitalization must be based on clear and convincing evidence that there is a serious risk the individual will harm himself, others, or property if not hospitalized.

Lee v. Lee 2005 ND 129
Docket No.: 20040184
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A child support amount must be established in accordance with the guidelines.
A spousal support award may be modified upon a showing of a material change in circumstances.
Attorney fees in a divorce action are based on a determination of one party's need and the other party's ability to pay.

Syvertson v. State 2005 ND 128
Docket No.: 20050016
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: When establishing a Brady violation, the knowledge of the North Dakota State Hospital is not imputed to the State's Attorney's Office.
Information publicly disseminated in a newspaper article is not newly discovered evidence.

Weinreis, et al. v. Hill, et al. 2005 ND 127
Docket No.: 20040305
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court must consider the apparent or ostensible authority of an individual exercising the functions of a corporate officer to bind the corporation to an agreement.

Anderson, et al. v. Selby 2005 ND 126
Docket No.: 20040289
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Parol evidence is admissible in an action to reform a deed when, through a mistake by one party which the other at the time knew of or suspected, the deed does not truly express the parties' intent.
A grantee may not recover attorney fees from a grantor in an action by the grantor to reform a warranty deed.

State v. Hatlewick 2005 ND 125
Docket No.: 20040336
Filing Date: 7/13/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A conviction is supported by sufficient evidence when a rational fact finder, viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, is able to determine from the evidence that a defendant is guilty beyond a reasonable doubt.
A trial court retains jurisdiction to issue a restitution order after a defendant has filed a notice of appeal from the criminal judgment.

State v. Seglen 2005 ND 124
Docket No.: 20040094
Filing Date: 7/13/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: The Fourth Amendment prohibition against unreasonable searches and seizures applies only to government action and not to private parties.
Consent is a recognized exception to the warrant requirement, and the State has the burden of proving consent.
A warrantless search of all patrons entering an arena when there is no history of violence or injury is not reasonable and violates the Fourth Amendment.

Ebach v. Ebach 2005 ND 123
Docket No.: 20040306
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Whether a supporting spouse's early retirement constitutes a material change of circumstances to justify a termination or reduction of spousal support depends on the totality of the circumstances.

Guardianship of Barros 2005 ND 122
Docket No.: 20040255
Filing Date: 7/13/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: To terminate a voluntary guardianship, a fit parent must prove by a preponderance of the evidence that the impediments leading to the creation of the guardianship have been removed.
A rebuttable presumption exists that parental custody is in the best interests of the child.
The guardians must overcome the presumption that parents have a superior right to the custody of their children and prove by a preponderance of the evidence that it is in the child's best interest to continue the guardianship.

State v. Jackson (Consolidated w/20050021) 2005 ND 121
Docket No.: 20050020
Filing Date: 7/13/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author:

Highlight: Driving under suspension conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2),(3), and (7).

Beaudoin v. South Texas Blood & Tissue Center (Cross-reference w/20030148) 2005 ND 120
Docket No.: 20040356
Filing Date: 6/24/2005
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
Defendants cannot be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or from the unilateral activity of a third party.
North Dakota courts may exercise specific personal jurisdiction over nonresident defendants only if they purposefully directed their activities toward North Dakota and the cause of action arises out of or relates to the defendant's activities in the State.
A defendant's conscious and repeated decision to ship a product to North Dakota constitutes sufficient minimum contacts required to ground personal jurisdiction.
Rule 60(b)(i), N.D.R.Civ.P., which establishes grounds for vacating a default judgment, permits relief where a party itself has erred.
A trial court's denial of a motion to vacate a default judgment based on a misinterpretation and misapplication of our law must be reversed as an abuse of discretion.

Disciplinary Board v. Vela 2005 ND 119
Docket No.: 20050173
Filing Date: 6/24/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Riverwood Commercial Park v. Standard Oil Co., Inc., et al. 2005 ND 118
Docket No.: 20040314
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The purpose of the summary eviction statute is to provide an inexpensive, expeditious, and simple means to determine possession of property.
The major distinction between a lease and an easement or license is that a lease confers exclusive use and possession of the property against the world, including the landowner, whereas an easement or license merely grants a right or permission to nonexclusive use of the land for a specific, limited purpose.

Martin v. Stutsman Co. Social Services, et al. 2005 ND 117
Docket No.: 20050019
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: An administrative agency is bound by its own duly issued regulations. The agency, nevertheless, has a reasonable range of informed discretion in the interpretation and application of its own rules.
Courts generally defer to an agency's reasonable interpretation of its rule when the language is ambiguous or when the language is so technical that only a specialized agency has the experience and expertise to understand it.

Interest of D.A. (CONFIDENTIAL) 2005 ND 116
Docket No.: 20050174
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: An mental health forced treatment order must be supported by evidence that forced medication is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the individual patient's needs, and that the benefits of the treatment outweigh known risks.

Houn v. Workforce Safety and Insurance, et al. 2005 ND 115
Docket No.: 20050013
Filing Date: 6/22/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Section 65-05-08(1), N.D.C.C., applies to reapplications for disability benefits after disability benefits previously have been discontinued and does not apply to applications when a claimant has not previously received disability benefits.

Tri-State Ins. Co. of Minnesota v. Commercial Group West, et al. 2005 ND 114
Docket No.: 20050007
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: Under a builder's risk insurance policy, a party not expressly named as a co-insured under the policy is protected from subrogation only to the extent that the insurance policy expressly covers the party's property.

Estate of Littlejohn 2005 ND 113
Docket No.: 20040326
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The interpretation of an attorney in fact's authority under a power of attorney is generally governed by the rules for construing contracts.

Johnson v. Nodak Mutual Ins. Co. 2005 ND 112
Docket No.: 20040293
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: An insurer's payment for an insured's independent medical examination is not a no-fault benefit for purposes of a statute of limitations that requires actions for further benefits to begin no later than four years after the last payment of benefits.
A motion for relief from a judgment may not be used to provide a litigant with a second chance to present new legal theories to a court.

Brandner v. Brandner 2005 ND 111
Docket No.: 20040236
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The trial court must determine net marital worth by considering all property and debt accumulated by the parties.
A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.
A trial court's decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.

Berlin v. State 2005 ND 110
Docket No.: 20050030
Filing Date: 6/22/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A court may summarily dismiss a facially invalid application for post-conviction relief.

Disciplinary Board v. Edin (Consolidated w/ 20050011) 2005 ND 109
Docket No.: 20050010
Filing Date: 6/7/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law from the date of his interim suspension to the date this opinion is filed and ordered to pay the costs and attorney's fees for the disciplinary proceeding.

Martin, et al. v. Berg, et al. 2005 ND 108
Docket No.: 20050001
Filing Date: 6/6/2005
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: On appeal from a summary judgment, the Supreme Court decides whether the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law.
Where the language of a will is clear and unambiguous, the testator's intent must be determined from the language of the will.

Estate of Kimbrell (Consolidated w/20040322) 2005 ND 107
Docket No.: 20040226
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The surviving spouse of a decedent occupying real property as a homestead receives the right to possession, use, control, income, and rents of the property for life or until the surviving spouse again marries, limited in size and value to the land and the dwelling house, with all its appurtenances and other improvements, not to exceed $80,000 in value, over and above liens and encumbrances.

Klindt, et al. v. Pembina Co. Water Resource Bd., et al. 2005 ND 106
Docket No.: 20040299
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Landowners are not required to appeal a water resource board's determination of benefits of a project to the state engineer if the cost of the project is less than $100,000.
A water resource board may find that an entire watershed would be benefited by a snagging and clearing project.
All land that will be benefited by a water project should be assessed the cost of the project.
The participation of a water resource board member who should have been disqualified in establishing a project does not require nullification of the project unless his presence was necessary to constitute a quorum and his vote determined the result.
Successful litigants are not entitled to attorney fees unless authorized by contract or statute.

State v. Driscoll 2005 ND 105
Docket No.: 20040292
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A magistrate's probable-cause decision is reviewed using a totality-of-the-circumstances test. A substantial basis for the magistrate's conclusion must exist.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence can establish this nexus.
Unsupported and conclusory statements are alone insufficient to establish probable cause.
If an accepted, reasonable theory of probable cause subsequently proves to be untrue or unfounded, it does not retroactively undermine a previously correct conclusion that probable cause to search existed, invalidate a properly issued search warrant, or release a criminal actor from culpability for crimes uncovered during the execution of the search warrant.
In executing a valid search warrant, police may inspect and open any item that could reasonably contain the objects of the search, regardless of whether these items are personal or private or specifically particularized in the search warrant.

People to Save the Sheyenne River v. ND Dept.of Health (CON. w/20040377) 2005 ND 104
Docket No.: 20040376
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: In the absence of an adjudicative proceeding and findings of fact, appellate review of an administrative agency decision to issue a Pollutant Discharge Elimination System permit is to determine whether the decision is arbitrary, capricious, or unreasonable.

City of Grand Forks v. Lamb 2005 ND 103
Docket No.: 20040196
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: VandeWalle, Gerald

Highlight: When a defendant appeals to the district court from a conviction in municipal court, the district court does not review the record and decision of the municipal court, but holds a new trial and independently determines whether the defendant has violated the ordinance.
A notice of appeal filed after the municipal court has announced its decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
When a city has the authority to regulate a certain subject, an ordinance is presumed valid and the burden is upon the party challenging the ordinance to demonstrate how the city exceeded its authority.

Interest of R.F. (CONFIDENTIAL) (cross-ref. w/20030288) 2005 ND 102
Docket No.: 20050148
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: In some situations it may be reasonable for a doctor to conclude that less restrictive alternatives to hospitalization do not exist.
The State Hospital or treatment facility is not required to look outside North Dakota for treatment options other than hospitalization.

Rolette Co. Social Service Bd., et al. v. B.E. (CONFIDENTIAL) 2005 ND 101
Docket No.: 20040357
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Paternity
Author: Kapsner, Carol

Highlight: A dismissal of an action without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The state courts have concurrent subject-matter jurisdiction with the tribal courts to determine a support obligation against an enrolled Indian where parentage is not at issue and the parent against whom support is sought is not residing on the Indian reservation.

R.R. v. G.H. (CONFIDENTIAL) (Cross-ref. w/20040139 & 20040288) 2005 ND 100
Docket No.: 20040325
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Contempt of Court
Author: Per Curiam

Highlight: District court orders denying a motion to change venue, finding a party in contempt, and awarding $300 paid in bond as reimbursement for costs and expenses are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Oliver-Mercer Electric Coop. v. Davis, et al. (Consol. w/20040308)(see Memo) 2005 ND 99
Docket No.: 20040307
Filing Date: 5/25/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: When a secured creditor who fails to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
A secured creditor who fails to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral.
A secured creditor's failure to provide credible evidence bars recovery of a deficiency judgment.

ND Human Rights Coalition, et al. v. Bertsch 2005 ND 98
Docket No.: 20040297
Filing Date: 5/17/2005
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: A trial court's decision to certify a class action will not be overturned on appeal unless the court abused its discretion.
A trial court's explanation of its decision to grant a class action certification must be sufficient to enable a reviewing court to understand the basis for the court's decision.