Opinions

Anderson v. Director, N.D. Dept. of Transportation 2005 ND 97
Docket No.: 20040337
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: An investigative stop of a vehicle requires the officer have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Information from a tip may provide the factual basis for a stop.
In evaluating the factual basis for a stop, the totality of the circumstances is considered, including the quantity, or content, and quality, or degree of reliability, of the information available to the officer.
When reasonable and articulable suspicion arises from an informant's tip, there is an inverse relationship between quantity and quality, and the information must be analyzed generally according to the type of tip and its reliability.
A caller-informant must provide at least some specific and articulable facts to support the bare allegations of criminal activity for a stop to be justified based on the call.

Negaard v. Negaard (Consol. w/20040312) (Cross-Ref. w/20010251 & 20030174) 2005 ND 96
Docket No.: 20040140
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.
An appeal of a contempt finding must be made within "60 days after entry of the judgment or order being appealed."
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.
In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child.
Under Section 28-26-01(2), N.D.C.C., a court may award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim.

Koenig v. ND Dept. of Transportation 2005 ND 95
Docket No.: 20040351
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: The Department does not lack jurisdiction to suspend a license merely because an officer failed to forward test results that were not printed because of a printer malfunction.

Glasow v. E.I. Dupont De Nemours and Company, et al. 2005 ND 94
Docket No.: 20040321
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Rule 23(l), N.D.R.Civ.P., governs the dismissal of all class actions, regardless of whether a motion to certify the class is filed.

Smith v. Kulig 2005 ND 93
Docket No.: 20040237
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A landowner's only duty to a trespasser is to refrain from harming the trespasser in a willful and wanton manner.
A landowner is not under any affirmative duty to give a trespasser warning of concealed perils, although, by the exercise of reasonable care, the landowner might have discovered the defect or danger that caused the injury.

Woods v. Ryan 2005 ND 92
Docket No.: 20040227
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In deciding whether to change custody of a child, a court must use a two-part analysis, considering first whether there has been a material change of circumstances, and then, if the court decides there has been, deciding whether a change in custody is necessary to serve the best interests of the child.

Bollin v. ND Dept. of Transportation 2005 ND 91
Docket No.: 20040291
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Chemical analysis results will not be admitted into evidence if the test was not performed in accordance with methods and devices approved by the state toxicologist.
If the chemical analysis form indicates an alternative disinfectant was used during the blood draw but neither the form nor testimony identifies the disinfectant, license suspension is improper.

Choice Financial Group v. Schellpfeffer, et al. 2005 ND 90
Docket No.: 20040204
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Where partial summary judgment is rendered for only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification of the partial summary judgment as final under N.D.R.Civ.P. 54(b).

State v. Olsen (Consolidated w/20050040) 2005 ND 89
Docket No.: 20040202
Filing Date: 5/17/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a jury conviction for burglary and a denial of post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

State v. Thompson 2005 ND 88
Docket No.: 20050089
Filing Date: 5/17/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: An appeal from an order denying a motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (7).

Disciplinary Board v. Christensen (CONSOLIDATE W/ 20050139 & 20050140) 2005 ND 87
Docket No.: 20050138
Filing Date: 5/13/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded and ordered to pay costs of disciplinary proceedings.

State v. Keller 2005 ND 86
Docket No.: 20040059
Filing Date: 5/10/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The right to a lesser-included-offense instruction requires that the offense be a lesser included offense of the greater, that the evidence be such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser, and generally, that the instruction be requested.
North Dakota's current lesser-included-offense law has its origin in the North Dakota Rules of Criminal Procedure, not N.D.C.C. 12.1-01-04(15).
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser offense.
Criminal facilitation is not a lesser included offense of conspiracy to commit murder.
Criminal facilitation is not a lesser included offense of attempted murder.
Reckless endangerment is not a lesser included offense of attempted murder.

Eberts, et al. v. Billings Co. Board of Commissioners 2005 ND 85
Docket No.: 20040309
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A board of county commissioners may condemn land for a road under quick take procedures in N.D.C.C. 24-05-09 through 24-05-15.

Cusey v. Nagel 2005 ND 84
Docket No.: 20040241
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A person who petitions for a disorderly conduct restraining order must allege specific facts or threats.

Sorlie v. Workforce Safety and Insurance, et al. 2005 ND 83
Docket No.: 20040250
Filing Date: 4/29/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The pretermination due process procedures for terminating disability benefits do not apply to a lump-sum award.
Claimants reapplying for disability benefits must show both a significant change in their medical condition and an actual wage loss caused by the significant change in their compensable medical condition.

Hanson v. Hanson 2005 ND 82
Docket No.: 20040275
Filing Date: 4/26/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may modify a prior custody order after a two-year period following the date of entry of an order establishing custody if the court finds that a material change in circumstances has occurred and that the modification is necessary to serve the best interest of the child. A party seeking to modify a custody order bears the burden of showing that a change of custody is required.
A district court must first calculate the presumptively correct child support amount before it can depart from the Child Support Guidelines.

Aker v. ND Department of Transportation 2005 ND 81
Docket No.: 20040366
Filing Date: 4/26/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment reversing an administrative agency decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Jorgensen v. ND Dept. of Transportation 2005 ND 80
Docket No.: 20040338
Filing Date: 4/26/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Inclusion of chemical test results in an officer's certified report to the Director of the North Dakota Department of Transportation under N.D.C.C. 39-20-03.1(3) is a basic and mandatory provision without which the department may not suspend a person's driving privileges.

Edinger v. Governing Authority of Stutsman Co. Correctional Center 2005 ND 79
Docket No.: 20040233
Filing Date: 4/26/2005
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: When the information available to a governing body suggests a reasonable probability of future litigation or adversarial administrative proceedings, the governing body may close a portion of a public meeting and meet in executive session to receive and discuss the advice of its attorney.

Interest of B.M., et al. (CONFIDENTIAL) 2005 ND 78
Docket No.: 20040205
Filing Date: 4/26/2005
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) and (4).

State v. Bleibaum 2005 ND 77
Docket No.: 20040333
Filing Date: 4/26/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a jury conviction for aggravated assault, a class C felony, is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

May v. Sprynczynatyk 2005 ND 76
Docket No.: 20040232
Filing Date: 4/11/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Failure of the Department of Transportation to file the transcript of the administrative hearing within twenty days, as required by N.D.C.C. 39-20-06, does not automatically mandate summary reversal of the decision suspending a driver's license.
To establish systemic disregard of the law by an administrative agency sufficient to warrant reversal of a decision in the agency's favor, a party must demonstrate some persistent pattern of improper agency conduct.
A party must make a specific objection to evidence at the time it is offered for admission into evidence to give the opposing party an opportunity to argue the objection and to give the trial court an opportunity to fully understand the objection and appropriately rule on it.

State of ND v. NDSU, et al. 2005 ND 75
Docket No.: 20040228
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: For purposes of an insurance policy exclusion for surface water damage, surface water does not lose its character as surface water by being diverted underground through man-made structures.
The efficient proximate cause doctrine applies only where two or more independent forces operate to cause the loss.
The efficient proximate cause doctrine does not apply to a loss caused by a discernable cause even though the insured attempts to characterize the cause in various ways to create the appearance of multiple causes.
A covered peril that is merely a concurrent cause is insufficient to allow coverage under the efficient proximate cause doctrine.

Home of Economy v. Burlington Northern 2005 ND 74
Docket No.: 20040267
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The Interstate Commerce Commission Termination Act of 1995 does not preempt state jurisdiction over railroad grade crossings.

Litoff v. Pinter 2005 ND 73
Docket No.: 20040330
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion for reinstatement of unsupervised visitation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Paulson v. Paulson 2005 ND 72
Docket No.: 20040242
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A trial court cannot delegate to anyone the power to decide questions of child custody or related issues.
When a party agrees to the court's appointing one person to serve as both custody investigator and guardian ad litem, that party waives the right to object that the court's appointee is in violation of the rules of court when she acts as the child's advocate and also testifies at the custody proceedings.
A trial court's denial of a motion for continuance will not be set aside on appeal absent an abuse of discretion by the trial court.

H-T Enterprises v. Antelope Creek Bison Ranch 2005 ND 71
Docket No.: 20040194
Filing Date: 4/6/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The purpose of the no-counterclaim provision in the eviction statute is to get a speedy determination of possession.
A defendant in an eviction action may show the character of the parties' possessory rights, evidence of a strained relationship having a bearing on whether a material breach has occurred, and affirmative defenses and counterclaims.

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.

Makeeff v. City of Bismarck 2005 ND 60
Docket No.: 20040272
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A landowner is not immune from liability for an accident that occurs on the landowner's premises just because the accident was caused by a natural accumulation of snow and ice.
Landowners or occupiers have a duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of an injury, and the burden of avoiding the risk.
Landowners, however, are not insurers of their premises, nor must they endure unreasonable burdens to maintain it.

State v. Nelson 2005 ND 59
Docket No.: 20040284
Filing Date: 3/23/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: If an application for a search warrant contains statements intentionally false or made with reckless disregard for the truth, the false material must be set aside, and if the remaining content is insufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought.
Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search.

Kastrow v. State 2005 ND 58
Docket No.: 20040318
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Wheeler v. Jahnke, et al. (Consol. w/20040362) (Cross-ref. w/20040341-20040343) 2005 ND 57
Docket No.: 20040361
Filing Date: 3/23/2005
Case Type: Original Proceeding - Criminal - Writ of Certiorari
Author:

Highlight: A district court order affirming a magistrate's finding of probable cause to bind a defendant over for trial on charges of gross sexual imposition and encouraging the deprivation of a minor is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Jacob, et al. v. Nodak Mutual Ins. Co., et al. 2005 ND 56
Docket No.: 20040197
Filing Date: 3/8/2005
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: Age alone, without other evidence, is insufficient to survive a motion for summary judgment in an age discrimination case.
Section 34-01-20, N.D.C.C., prohibits an employer from discharging an employee for reporting illegalities and requires a report to be made for the purpose of blowing the whistle to expose an illegality.
Section 14-02.4-03, N.D.C.C., does not prohibit a retaliatory discharge for participating in an internal employee investigation.

Simpson, et al. v. Chicago Pneumatic Tool Co., et al. 2005 ND 55
Docket No.: 20040133
Filing Date: 3/8/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: For purposes of res judicata and collateral estoppel, parties and their privies are barred by a former judgment.
Res judicata and collateral estoppel apply when subsequent claims are based on the same facts and events but different legal theories are pled.
A district court's determination regarding a request for sanctions under N.D.R.Civ.P. 11 will not be reversed unless the court abused its discretion.
Monetary sanctions may not be awarded against a represented party for a violation of N.D.R.Civ.P. 11(b)(2).

Interest of R.F. (CONFIDENTIAL) 2005 ND 54
Docket No.: 20050053
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: An individual found to be a person requiring mental-health treatment has the right to the least restrictive conditions necessary to achieve the purposes of treatment.
Orders for in-patient hospitalization and treatment are reviewed under the clearly erroneous standard. A district court's finding that alternative treatment is inadequate or that hospitalization is the least restrictive alternative will not be set aside unless clearly erroneous.
An order for in-patient hospitalization is not clearly erroneous where a doctor testifies that a mentally ill individual's dementia, which has yet to be fully diagnosed or treated, likely triggered a prescription-drug overdose, and asserts that the hospital's structure and supervision are temporarily needed to help avoid future self-medication accidents.

Frieze v. Frieze 2005 ND 53
Docket No.: 20040103
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Section 14-09-06.6(5), N.D.C.C., limits the grounds upon which a court may grant a motion to change custody which is brought within two years following entry of the order establishing custody, and includes the persistent and willful denial of interference with visitation or a present environment which may endanger or impair the child's physical or emotional health or development.
When a stepparent's career takes him or her out of state to secure a job, allowing the spouse and stepchildren to relocate to that place is crucially important to maintaining family continuity and stability.
When the relevant factors weigh in favor of the custodial parent's request to relocate the children, the trial court's denial of the motion constitutes reversible error.

Thomas v. Workforce Safety and Insurance, et al. 2005 ND 52
Docket No.: 20040311
Filing Date: 3/4/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation.
Workforce Safety and Insurance must adequately explain the reasons for disregarding medical evidence favorable to a claimant.

Larsen v. ND Dept. of Transportation 2005 ND 51
Docket No.: 20040158
Filing Date: 3/4/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: In interpreting a statute, a court may not disregard the letter of the statute under the pretext of pursuing its spirit, and may not add words to the statute.

Roberts v. ND Department of Human Services 2005 ND 50
Docket No.: 20040277
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Neumann, William

Highlight: An applicant for medicaid benefits has the burden of establishing eligibility for benefits and providing information necessary to establish eligibility.
Transactions between a trustee and a beneficiary by which the trustee obtains any advantage from the beneficiary are presumed to be entered into without sufficient consideration.

Kaiser v. State 2005 ND 49
Docket No.: 20040135
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: If, in responding to an application for post-conviction relief, the State moves for dismissal and presents matters outside the pleading and the court does not exclude them, the opposing party shall have 30 days after service of the State's brief within which to serve and file an answer brief and supporting papers.

Gamboa v. State 2005 ND 48
Docket No.: 20040128
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response.
Post-conviction relief applications seeking withdrawal of a guilty plea must be made in a timely manner in accordance with Rule 32, N.D.R.Crim.P.

Sweeney v. Sweeney (Cross-Ref. w/20010129) 2005 ND 47
Docket No.: 20040142
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In divorce proceedings, a trial court must award reasonable attorney fees and court costs to one parent if it finds the other parent has made an allegation of harm to the child that is false and not made in good faith or if the court finds there has been willful and persistent denial of the noncustodial parent's visitation rights by the custodial parent.
The court cannot, to avoid imposing a significant burden on the offending party or to avoid disrupting the parties' improved relationship, ignore its mandate to award reasonable attorney fees and costs when there has been willful and persistent denial of visitation rights.

State v. Arth 2005 ND 46
Docket No.: 20040109
Filing Date: 3/4/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A sentence of five years' imprisonment with the last two years suspended for violation of a domestic violence protection order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Disciplinary Board v. Schoppert 2005 ND 45
Docket No.: 20050058
Filing Date: 2/28/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Ringsaker v. Workforce Safety & Insurance Fund, et al. 2005 ND 44
Docket No.: 20040155
Filing Date: 2/24/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An injured employee seeking workers compensation benefits must file a claim within one year after the injury. The date of injury is the first date that a reasonable person knew or should have known that he had suffered a work-related injury and has either lost wages because of a resulting disability or received medical treatment.

Vogel v. Workforce Safety and Insurance, et al. 2005 ND 43
Docket No.: 20040173
Filing Date: 2/23/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: In appeals from administrative agency decisions, challenged findings of fact are affirmed when supported by a preponderance of the evidence.
Questions of law are fully reviewable on appeal from an administrative decision.
A reviewing court defers to a hearing officer's unique opportunity to judge the credibility of witnesses.

State v. Ramsey 2005 ND 42
Docket No.: 20040035
Filing Date: 2/22/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A correct result will not be set aside merely because the trial court assigned an incorrect reason, if the result is the same under the correct law and reasoning.
When a defendant argues that the testimony of a witness is a recent fabrication or the result of improper influence or motive, prior statements of the witness may be admitted to rebut the charge if the witness is available for cross-examination and the prior statement is consistent with the testimony.
Subsequent crimes, wrongs, or acts are considered under the same evidentiary analysis as other or prior acts.
Doubts about the admissibility of evidence, such as doubts about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.
A jury is presumed to follow instructions given by the trial court.
The purpose of an appeal is to review the actions of the trial court, not to hear issues raised for the first time on appeal.

Ingebretson v. Ingebretson 2005 ND 41
Docket No.: 20040156
Filing Date: 2/22/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of permanent spousal support to a party who requested support for ten years must be supported by sufficient findings and based on the record.
The district court must consider all evidence, including a party's testimony, when determining that party's need for the purpose of awarding spousal support.
A district court is not limited by a party's testimony when awarding spousal support as long as justification is provided for an award that exceeds the party's request.

Lochthowe v. C.F. Peterson Estate 2005 ND 40
Docket No.: 20040159
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A third party who derives gain from an agreement between others has not necessarily been unjustly enriched, unless the third party has participated somehow in the transaction through which the benefit is obtained.
The clearly erroneous standard applies to the review of a district court's findings on a claim of unlawful interference with a business relationship.

Interest of D.P.O. (Cross-ref. w/20030002 & 20030020) 2005 ND 39
Docket No.: 20040176
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: On appeal, an issue will not be decided if it has become moot because events have occurred which make it impossible for the Court to issue relief or the passage of time has made the issue moot.
The decision to award grandparents visitation separate from the mother's is not clearly erroneous when it is in the best interest of the child and is based on consideration of the evidence in the record.

Rhodes v. Rhodes 2005 ND 38
Docket No.: 20040234
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A prenuptial agreement is a contract, and its interpretation is primarily a question of law for the court to decide.

Fast v. Mayer 2005 ND 37
Docket No.: 20040200
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When a trial court considers restrictions on a noncustodial parent's visitation rights, the standard of proof required is a preponderance of the evidence.
A custodial parent seeking to prevent the noncustodial parent from having unsupervised visitation must establish, by a preponderance of the evidence, that physical or emotional harm will likely result from allowing the noncustodial parent unsupervised visitation.

Mann, et al. v. ND Tax Commissioner, et al. 2005 ND 36
Docket No.: 20040174
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Tax Realted
Author: Kapsner, Carol

Highlight: A final order or judgment is necessary for appealability in an injunction action.
An appeal from an order denying reconsideration does not present the Supreme Court with the merits of the original order requested to be reconsidered, but presents for review only whether the district court abused its discretion in deciding the movant either did or did not offer sufficient grounds to reconsider the previous decision.
The Supreme Court exercises its supervisory jurisdiction over lower courts rarely to rectify errors or to prevent injustice when no adequate alternative remedies exist.

Brandt, et al. v. Somerville, et al. 2005 ND 35
Docket No.: 20040112
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: N.D.C.C. ch. 10-19.1 governs claims for breaches of fiduciary duties by those in control of a close corporation, and a trial court's findings about claims for breaches of fiduciary duties are reviewed under the clearly erroneous rule.
An agreement to restrict the transfer of stock of a close corporation will be upheld unless the price or terms of the agreement are unreasonable under all the circumstances.
In a shareholder action, a trial court has discretion to determine an appropriate remedy for violations of N.D.C.C. ch. 10-19.1 by those in control of a close corporation.

Tibert, et al. v. Slominski, et al. 2005 ND 34
Docket No.: 20040198
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: The agricultural nuisance shield of N.D.C.C. 42-04-02 extends to all corporations and limited liability companies that meet the requirements of N.D.C.C. 42-04-01 regardless of whether they meet the more limited requirements of the corporate farming law.
A claim for trespass cannot stand unless the evidence demonstrates an actual interference with the property of another.

Beckler v. Workforce Safety and Insurance 2005 ND 33
Docket No.: 20040130
Filing Date: 2/16/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: A claimant seeking reinstatement of discontinued disability benefits must show a significant change in his compensable medical condition and an actual wage loss caused by the change in medical condition.
To prove actual wage loss, a claimant must show that he was earning wages from employment when the change in his medical condition occurred.
An appeal of an administrative agency decision invokes the appellate jurisdiction of the district court, and the court's review must be based only on the administrative record filed with the court.

Pratt v. Altendorf 2005 ND 32
Docket No.: 20040163
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Dismissal of a civil action, without prejudice, is ordinarily not appealable, but it is considered final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The notice requirement, under N.D.C.C. 4-35-21.1(1), for civil actions arising out of the application of pesticide inflicting damage on property, does not apply to an action for breach of contract alleging the applicator did not provide services in a timely manner.

Wigginton v. Wigginton 2005 ND 31
Docket No.: 20040153
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of restricted visitation is not clearly erroneous when based on evidence in the record.
The effective date of a child support obligation can be different from the date of the motion to modify if there are sufficient good reasons for it.
An allocation of income tax dependency exemptions, based on the evidence in the record, is not clearly erroneous.

State v. Buchholz 2005 ND 30
Docket No.: 20040118
Filing Date: 2/16/2005
Case Type: Appeal - Criminal - Other
Author: Neumann, William

Highlight: Statutory construction is a question of law, fully reviewable on appeal. Statutes are not interpreted in a manner that would render part of the statute mere surplusage.
Mistake of law is an affirmative defense that must be proved by a preponderance of the evidence at trial. It cannot be used to overcome a charged offense at a preliminary hearing.

Guardianship of Topp 2005 ND 29
Docket No.: 20040185
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: A trial court's order on incapacitation and guardianship is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of T.C.R. (CONFIDENTIAL) 2005 ND 28
Docket No.: 20040217
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order modifying child support to conform to the child support guidelines is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Clifford v. O'Donnell 2005 ND 27
Docket No.: 20040221
Filing Date: 2/16/2005
Case Type: Original Proceeding - Criminal - Writ of Prohibition
Author: Per Curiam

Highlight: An appeal from dismissal of a petition for a writ of prohibition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Riverside Park Condominiums Unit Owners Association v. Lucas 2005 ND 26
Docket No.: 20040014
Filing Date: 1/25/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Actions of a condominium's board of directors are reviewed under the business-judgment rule.
The power of a condominium's governing body to make rules, regulations, or amendments to the declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.
The reasonableness of a condominium use restriction is determined by reference to the common interest development as a whole.
A trial court's decision to grant or deny a request for a declaratory judgment will not be set aside unless the court has abused its discretion.
The district court has broad discretion in imposing sanctions for discovery violations, and its decision will be reversed only upon a showing of an abuse of discretion.
The trial court may impose an appropriate sanction for filing a motion for an improper purpose.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

State v. Tupa (Consolidated w/20040132) 2005 ND 25
Docket No.: 20040106
Filing Date: 1/24/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A criminal restitution award can be based on replacement costs where, for example, a victim must replace an item not readily or desirably found in a secondary market.
Fair market value or cost to repair are appropriate measures of criminal restitution if they make a victim whole, such as where a damaged or destroyed item can be cost-effectively repaired or where a viable and appropriate secondary market exists.
A trial court has wide discretion in setting the amount of restitution, and the trial judge does not abuse this discretion by awarding restitution that is within the range of reasonableness.
North Dakota law does not limit criminal restitution to those amounts that would be recoverable in a corresponding civil tort action.
Restitution payments are based on what a defendant can or will be able to pay, and the trial court does not abuse its discretion, or threaten a victim's reimbursement, by ordering payments that are within the defendant's capabilities, even if the obligation may necessitate a change in the defendant's lifestyle.

City of Grand Forks v. Scialdone 2005 ND 24
Docket No.: 20040119
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: Evidence about calibration checks when an Intoxilyzer has been moved is not a foundational requirement for showing an Intoxilyzer test was administered in accordance with the approved method for conducting the test or for admission of the test result into evidence.
If a defendant rebuts the prosecution's prima facie showing of fair administration of a blood-alcohol test for admission into evidence, the prosecution may present testimony to show fair administration despite defendant's rebuttal.
A judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.

Kiecker v. ND Dept. of Transportation 2005 ND 23
Docket No.: 20040150
Filing Date: 1/19/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The results of a blood-alcohol test must be received in evidence when it is shown that the sample was properly obtained and the test was fairy administered, and if the test is shown to have been performed according to methods and with devices approved by the State Toxicologist.
A document is not part of the approved method unless the State Toxicologist expressly includes it in the approved method and makes it a foundational requirement for fair administration.
The installation and repair checkout form is not part of the approved method.

Jones v. ND State Board of Medical Examiners 2005 ND 22
Docket No.: 20040161
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A physician has no statutory or due process right to appear personally before the State Board of Medical Examiners when the Board deliberates whether to accept or reject an administrative law judge's recommendations.
The Board's conclusions of law and order must sufficiently explain its rationale for not adopting an administrative law judge's recommended sanction.

State v. Smith (Consolidated w/20040115) 2005 ND 21
Docket No.: 20040114
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The information obtained by a police officer from an anonymous informant cannot alone establish probable cause if the tip provides virtually nothing from which a person might conclude the informant is honest or his information is reliable, or if the information gives absolutely no indication of the basis for identifying the criminal activities.
A police officer needs at least one reasonable and articulable factor to stop a seemingly innocent car.

Boumont v. Boumont 2005 ND 20
Docket No.: 20040213
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The Child Support Guidelines' equal-physical-custody provision mandates the appropriate formula for calculating child support in cases where a divorce judgment or court order provides each parent with physical custody of their children exactly 50% of the time, regardless of the actual custodial arrangement subsequently exercised by the parties.

Johnson v. State 2005 ND 19
Docket No.: 20040252
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Under N.D.R.Ct. 3.2(a), an applicant for post-conviction relief has 10 days to respond to a motion for summary disposition made by the State.

State v. Klindtworth 2005 ND 18
Docket No.: 20040223
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A victim's alarm or fear is an element of disorderly conduct only if the defendant is charged with those parts of the statute that refer to it.
An objective standard is used to determine whether the person's conduct alarms another individual in a disorderly conduct charge. A court may consider past conduct in determining whether it was reasonable that the victim became alarmed by the defendant's conduct identified in the charge.

Christoffersen v. Giese 2005 ND 17
Docket No.: 20040143
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

State v. Igou 2005 ND 16
Docket No.: 20040093
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: When challenging the sufficiency of the evidence to support a criminal conviction, the defendant bears the burden of showing that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.
Authority to notice obvious error on appeal is exercised cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.

State v. Fields 2005 ND 15
Docket No.: 20040037
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Actual drug evidence, rather than indicia of drugs, obtained from a garbage search, is enough to support probable cause for a search warrant.
Nighttime search warrants cannot be issued on a per se basis in drug cases. Facts supporting probable cause to justify the necessity of the nighttime execution must be set forth.

State v. Jackson 2005 ND 14
Docket No.: 20040199
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Neumann, William

Highlight: The distance an officer follows a vehicle does not abrogate a legally legitimate basis for a traffic stop.

State v. Thill 2005 ND 13
Docket No.: 20040074
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Neumann, William

Highlight: When the State fails to preserve evidence that is neither clearly exculpatory or inculpatory, a defendant must prove the State acted in bad faith to constitute a denial of due process.
Jurors are presumed to follow the trial court's jury instructions.

City of Bismarck v. Bosch 2005 ND 12
Docket No.: 20040157
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: For a filed document or process to be a necessary part of the approved method for conducting an Intoxilyzer test, the State Toxicologist must expressly include it in the approved method and make it a part of the requirement for fair administration.
Proof that the standard solution used for Intoxilyzer tests has not been used more than 50 times is not part of the approved method.

State v. Nelson 2005 ND 11
Docket No.: 20040084
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: The emergency exception to the warrant requirement may apply even when officers are already legitimately inside a residence when an emergency occurs.
Consent to search must be proven by affirmative conduct. Merely taking no action to stop officers from searching is not enough to prove conduct consistent with giving consent.
For probable cause to issue a search warrant, the magistrate must be provided with a factual basis for the affiant's assumptions. Mere speculation and conclusory statements are not enough.
During the execution of a search warrant, the presence of a third party not actually participating in the search does not necessitate suppression of the evidence discovered.

Ziegler, et al. v. Dahl, et al. 2005 ND 10
Docket No.: 20040146
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.
The existence of a partnership is a mixed question of law and fact, and the ultimate determination of whether a partnership exists is a question of law.
For a partnership, the intent element focuses not on whether individuals subjectively intended to form a partnership, but on whether the individuals intended to jointly carry on a business for profit.
Under the co-ownership requirement for a partnership, a person does not need to actually control the business so long as the person has the right to exercise control in the management of the business.

Schmidt v. Bakke 2005 ND 9
Docket No.: 20030377
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Waiver of an objection to the timeliness of a motion precludes the objection from being raised at a later date.
The effect of the separation of siblings is a consideration in the trial court's analysis of the best interests of the child and whether to grant a motion to relocate a child out of this state.
An offer of proof is needed for review of a court's exclusion of evidence. Without an offer of proof, a determination of whether the exclusion of testimony was prejudicial cannot be made. Failure to make an offer of proof may be excused if the question was in proper form on its face and was so framed as to clearly admit an answer favorable to the claim or defense of the party producing it.

Johnson v. State 2005 ND 8
Docket No.: 20040203
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Cole v. Cole 2005 ND 7
Docket No.: 20040271
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion to vacate the judgment entered in a divorce action is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Mooney (Consolidated w/ 20040181 & 20040182) 2005 ND 6
Docket No.: 20040180
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: Three criminal judgments are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Miller v. Sprynczynatyk 2005 ND 5
Docket No.: 20040273
Filing Date: 1/19/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment affirming an administrative agency decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Pautz v. N.B., et al. (CONFIDENTIAL) 2005 ND 4
Docket No.: 20040229
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: An order finding a child unruly is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Rupp 2005 ND 3
Docket No.: 20040170
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

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

State v. Jackson-Metcalf 2005 ND 2
Docket No.: 20040253
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: A revocation of probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Greybull v. State 2005 ND 1
Docket No.: 20040254
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: An appeal from dismissal of a petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Spectrum Care, L.L.C. v. Workforce Safety and Insurance 2004 ND 229
Docket No.: 20040171
Filing Date: 12/17/2004
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: Section 65-04-32, N.D.C.C., applies to an employer's challenge to the classification of its employees for purposes of establishing insurance premiums payable to Workforce Safety and Insurance, and a court's review of a decision regarding those classifications is under sections 28-32-46 and 28-32-49, N.D.C.C.

State v. Steen (Consolidated w/20040052) 2004 ND 228
Docket No.: 20020343
Filing Date: 12/17/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: To prevail in a post-conviction proceeding on a claim of ineffective assistance of counsel, the petitioner must show not only that trial counsel's performance fell below an objective standard of reasonableness, but must also demonstrate prejudice by establishing a reasonable probability that, but for counsel's errors, the result of the trial would have been different.

Gibb v. Sepe 2004 ND 227
Docket No.: 20040211
Filing Date: 12/17/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A spousal support award resulting from the parties' stipulation should be modified by the trial court only upon a showing of a material change in circumstances.
The party advocating the modification bears the burden of proving a material change occurred.
An award of attorney fees is an abuse of discretion when the prevailing party failed to show need, inability to pay, how the fees were incurred, or that the appeal was frivolous.