Opinions

Harter v. ND Dept. of Transportation 2005 ND 70
Docket No.: 20040281
Filing Date: 4/6/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Section 39-20-04.1(1)(a), N.D.C.C., provides penalties for persons under the age of 21 who drive with a blood alcohol concentration of at least .02 percent by weight.
The rule of lenity, which requires ambiguities in the law to be interpreted in favor of a criminal defendant, does not apply in civil cases.

Guardianship/Conservatorship of Van Sickle (Consolidated w/20040224) 2005 ND 69
Docket No.: 20040195
Filing Date: 4/4/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: The Supreme Court will determine a moot issue if the matter is capable of repetition, yet evading review.
A person has no right to demand to appear in a court proceeding and testify by telephone.
A guardian may place a ward in a locked and secured unit of a basic care facility without first obtaining a court order.
The party proposing the transfer of a ward to a more restrictive living arrangement has the burden of proving by clear and convincing evidence that the proposed placement is the least restrictive alternative available.
A district court has discretion over the order in which evidence is presented.
The best interest of a ward is served by appointing a non-family member as guardian when family members are unable to get along with each other.
A district court does not abuse its discretion in denying a motion for new trial when the alleged error is raised for the first time in the motion for new trial and the alleged error could have been raised during the actual trial.

Strand, et al. v. U.S. Bank National Association ND, et al. 2005 ND 68
Docket No.: 20040068
Filing Date: 3/31/2005
Case Type: Certified Question - Civil - Civil
Author: Kapsner, Carol

Highlight: A party alleging that a contractual provision is unconscionable must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the various factors, viewed in totality, to determine whether the contractual provision is so one-sided as to be unconscionable.
Procedural unconscionability is established when one party is in such a superior bargaining position that it totally dictates all terms of the contract, a preprinted standard form contract is used, there is no possible negotiation of terms, and the only option presented to the other party is to "take it or leave it."
The right to bring a class action is procedural, and a class action is not a substantive remedy.
Contractual provisions which limit or exclude remedies otherwise available at law and leave a party without an effective remedy are substantively unconscionable.

Larson v. Larson 2005 ND 67
Docket No.: 20040248
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In construing a statute, courts are to ascertain the legislature's intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.
As amended, N.D. law does not allow a court to award post-minority child support for college expenses.

Dvorak v. Dvorak 2005 ND 66
Docket No.: 20040222
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Tax returns from the most recent five years are properly used to determine the self-employment income of an obligor in calculating child support obligations.
In awarding attorney's fees in a divorce action, a court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.

Buri v. Ramsey, et al. 2005 ND 65
Docket No.: 20040164
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A trial court's determination about whether a conversion has been committed is a finding of fact which will not be overturned on appeal unless it is clearly erroneous.
The injured party in a conversion dispute has the option of choosing either N.D.C.C. 32-03-23(1) or N.D.C.C. 32-03-23(2) to determine the value of the converted property.
Recovery for specific costs incurred to recover the property are to be determined under N.D.C.C. 32-03-23(3).

Interest of A.M.S. (Consolidated w/20040269 & 20040270) 2005 ND 64
Docket No.: 20040268
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Federal law permits decisions regarding rebuttal of child support payments to be made under criteria established by the State.
Under the Child Support Guidelines, an incarcerated child support obligor whose payment amounts are based on an imputed, federal-minimum-wage income cannot reduce these presumptively correct payments by showing a lack of financial resources due to imprisonment.

State v. Krull 2005 ND 63
Docket No.: 20040239
Filing Date: 3/23/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: If a defendant does not object at trial to the introduction of a child's hearsay statements regarding sexual abuse, our inquiry is limited to whether the admission into evidence constitutes obvious error affecting substantial rights.
A trial court abuses its discretion and commits plain error if, under N.D.R.Ev. 803(24), it admits a child's hearsay statements regarding sexual abuse without first making explicit findings regarding the reliability and trustworthiness of the statements. Merely quoting the terms of the hearsay rule and ordering the statements admitted is inadequate.
Even if a trial court commits plain error, for reversal, the error must have affected the defendant's substantial rights by altering the trial's outcome.
A defendant's inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.

Doll v. ND Department of Transportation 2005 ND 62
Docket No.: 20040188
Filing Date: 3/23/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Guidelines for use of a standard solution are not part of the approved method for conducting an Intoxilyzer test unless the State Toxicologist expressly includes them in the approved method filed with the clerk of district court.

City of Horace v. City of Fargo 2005 ND 61
Docket No.: 20040219
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Annexation statutes are construed liberally to encourage the natural and well-ordered development of municipalities.
A resolution and annexation plat, with a subsequent notation to a judgment that invalidated part of the annexation and was consistent with the parties' mediation agreement, constituted an accurate map for the part of the annexation that had not been invalidated.