Opinions

Adoption of H.R.W. (CONFIDENTIAL) 2004 ND 216
Docket No.: 20040108
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: In adoption proceedings, termination of parental rights does not require consent of a parent who has abandoned the child or has failed for at least one year, without justifiable cause, to communicate with the child or to provide for the care and support of the child.
Findings of fact by the trial court in matters of adoption will not be set aside on appeal unless clearly erroneous.

Hawley v. LaRocque (Cross-Ref. w/19980029) 2004 ND 215
Docket No.: 20040057
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Charles McCauley Partnership v. Tyrone Township 2004 ND 214
Docket No.: 20040175
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Summary judgment is inappropriate where "battling affidavits," wrought with concerns over witness credibility, are presented regarding whether a township road is vacant due to a statutorily prescribed period of non-use.

Greywind v. State 2004 ND 213
Docket No.: 20040080
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Informing a defendant of the prospect of receiving a harsher sentence if he were to go to trial is not coercion sufficient to render a guilty plea involuntary.
If a defendant pled guilty knowingly and voluntarily, he cannot show actual prejudice resulted from his trial attorney's failure to more thoroughly investigate the case before he pled guilty.
Recantation is looked upon by courts with suspicion and disfavor.

Sutherland v. ND Dept. of Human Services, et al. 2004 ND 212
Docket No.: 20040165
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The Department of Human Services must follow a five-step sequential process under federal regulations for evaluating disability claims.

State v. Hayek 2004 ND 211
Docket No.: 20040098
Filing Date: 11/19/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: An ineffective assistance of counsel claim is more properly pursued in a post-conviction relief proceeding. Without a properly developed record, it is difficult to determine whether an attorney's conduct is part of a legitimate trial strategy or if the representation fell below the acceptable standard of reasonableness.
Failure to object at the time of an alleged error waives the claimed error and does not preserve the issue for appeal.

Striefel v. Striefel 2004 ND 210
Docket No.: 20040072
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Pensions and retirement benefits are marital assets subject to equitable distribution by the court.

State v. Whitetail 2004 ND 209
Docket No.: 20040187
Filing Date: 11/19/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for delivery of alcoholic beverages to persons under 21 is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Packineau v. State 2004 ND 208
Docket No.: 20030345
Filing Date: 11/4/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Forster v. West Dakota Veterinary Clinic, et al. 2004 ND 207
Docket No.: 20040061
Filing Date: 11/4/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: In a defamation action, the court determines whether a communication is capable of bearing particular meaning and whether that meaning is defamatory, and the jury determines whether a communication capable of a defamatory meaning was so understood by its recipient.
Direct evidence of the recipient's understanding of the defamatory nature of a libel is not required if other evidence is sufficient to permit an inference of that understanding.
When the circumstances of the occasion for a communication are not in dispute, the determination whether there is a qualified privilege is a question of law for the court, but the determination whether a qualified privilege has been abused is generally a question of fact.
Plaintiffs in a defamation action have a duty to mitigate damages.
Evidence of a plaintiff's general bad reputation or bad character is admissible in a defamation action only if it affects the aspects of reputation asserted to have been defamed.
While cumulative evidence may sometimes strengthen the weight and credibility of a witness's testimony, a district court does not necessarily abuse its discretion by excluding cumulative evidence.
Expert testimony is allowed if the witness is shown to have some degree of expertise in the field in which he is to testify.
Employment without a definite term is presumed to be at will, and an at-will employee may be terminated with or without cause.
A prior written agreement providing it can be modified only in writing does not prevent the parties from entering into a new oral agreement.