Opinions

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.

Foster v. Foster 2004 ND 226
Docket No.: 20040063
Filing Date: 12/14/2004
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A custody determination should be based on the best interests of the child and will not be overturned unless clearly erroneous.
Failure to allow a party 10 days to object to proposed findings of fact before a judgment is filed is harmless error because N.D.R.Ct. 7.1(b)(3) and N.D.R.Civ.P. 52(b) provide a remedy for that party.
A guardian ad litem may make a custody recommendation when advocating the best interests of the child.

Huff v. Board of Medical Examiners 2004 ND 225
Docket No.: 20040151
Filing Date: 12/14/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: If an act is blatantly illegal or improper, or a licensee admits to a violation, a disciplinary board need not introduce expert evidence to establish the necessary standard.
In a disciplinary proceeding before a medical disciplinary board having some members who are not medical experts and physician members who are medical professionals but may not be experts in the field of medicine practiced by the physician appearing before them, expert testimony in a case in which such testimony would likely be helpful will best protect the fairness of the contested case proceedings, the integrity of the administrative record, and the right to meaningful judicial review.

State v. Linghor 2004 ND 224
Docket No.: 20030360
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause to arrest an automobile passenger exists where drug paraphernalia is in plain view in the car.
The existence of an arrest is determined objectively, gauged by whether a reasonable person would conclude he was under arrest and not free to leave.
When a jury is unable to reach a verdict and a mistrial results, a subsequent retrial is not double jeopardy.
A trial judge has discretion in declaring a mistrial due to a hung jury, and while reasonable jury deliberation should be encouraged, a judge does not abuse that discretion in declaring a mistrial when the judge asks the jury for a list of divisive issues, polls the jurors to determine whether a verdict could be reached, and spends considerable time consulting both parties regarding available options.

State v. Jaster 2004 ND 223
Docket No.: 20030355
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: A current attorney-client relationship with the prosecutor is one of the exclusive causes of an implied bias that warrants dismissal of a juror.
A defendant must exhaust all peremptory challenges before objecting to the denial of a challenge for cause.
A party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the district court refused to excuse for cause, and no biased juror sits.
A statement is inadmissible hearsay only if it is offered to prove the truth of the matter asserted.
The pattern jury instruction on reckless endangerment erroneously omits the term "particular" from the definition of the crime.

State v. Bates 2004 ND 222
Docket No.: 20040095
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

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

State v. Ernst 2004 ND 221
Docket No.: 20040117
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denial of a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

City of Mandan v. Cordova 2004 ND 220
Docket No.: 20040147
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Per Curiam

Highlight: The district court's judgment affirming the prior municipal court decision finding indecent conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Engwicht v. Lako 2004 ND 219
Docket No.: 20040079
Filing Date: 11/26/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: The district court's interpretation of an oral contract for well-drilling services is not clearly erroneous, and the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Edwardson v. Lauer 2004 ND 218
Docket No.: 20040110
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The clearly erroneous standard of review applies to a district court judgment changing a minor's name under the Uniform Parentage Act.

Bolinske v. Herd, et al. 2004 ND 217
Docket No.: 20040086
Filing Date: 11/19/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The unsolicited referral of an out-of-state lawyer by an in-state lawyer does not provide sufficient contacts to make the out-of-state lawyer amenable to suit in North Dakota. The mere representation of a resident client by a nonresident lawyer does not subject the nonresident lawyer to personal jurisdiction; more is required.
The contacts being used to acquire personal jurisdiction over a nonresident party must be directly related to the litigation.

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.

Disciplinary Board v. Madlom 2004 ND 206
Docket No.: 20040280
Filing Date: 11/4/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

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

Disciplinary Board v. Peterson (Con. w/20040168&169)(Cross-ref. w/20040134) 2004 ND 205
Docket No.: 20040167
Filing Date: 11/4/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Heng v. Rotech Medical Corp. 2004 ND 204
Docket No.: 20040082
Filing Date: 11/2/2004
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: When an employee policy manual expressly states that it does not create a contract, the employee is on notice that the manual preserves the presumption of employment at will.
A prima facie case for retaliatory discharge under the whistle-blower statute is established by showing (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the existence of a causal connection between the employee's protected activity and the employer's adverse action.
Reporting a suspected violation of law to an employer is protected activity, and the violation need not be reported to outside authorities.
Whether an employee has made a report in good faith is a question of fact, and summary judgment dismissing the employee's retaliatory discharge claim is appropriate only if reasonable minds could only conclude that the reports were made solely for a purpose other than reporting an illegality.
Circumstantial evidence, including proximity in time between the protected activity and the adverse employment action, may provide an inference of causation.

Roberson v. Roberson 2004 ND 203
Docket No.: 20040125
Filing Date: 11/2/2004
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Conflicting testimony will not be reweighed and credibility will not be reassessed on appeal.
While the wholesale adoption of one party's proposed findings of fact discouraged, if the adopted findings adequately explain the basis of the trial court's decision, we will uphold them unless clearly erroneous.

Interest of E.R. (CONFIDENTIAL) 2004 ND 202
Docket No.: 20040122
Filing Date: 11/2/2004
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, a probability of harm to the child may be established by prognostic evidence that a parent's current inability to care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.

State v. Donovan 2004 ND 201
Docket No.: 20040066
Filing Date: 11/2/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Suppression of evidence in a criminal case is proper when the defendant is able to show the search warrant was issued in reliance upon an affidavit containing false or misleading statements.
Credibility of an informant who is a member of the "criminal milieu" must be established by more than easily obtainable facts.

Jensen v. State (Cross-reference w/20010097 & 20020166) 2004 ND 200
Docket No.: 20040137
Filing Date: 11/2/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: In a post-conviction proceeding, a claim is res judicata if it was fully and finally determined in a previous proceeding.
A misuse of process occurs when the applicant presents a claim for relief that the applicant inexcusably failed to raise in prior proceedings, or if the applicant has filed multiple applications containing claims so lacking in factual support or legal basis as to be frivolous.

Knoll v. Kuleck 2004 ND 199
Docket No.: 20040087
Filing Date: 11/2/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: The child support guidelines require a child support order to include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.
The child support guidelines require documentation of a child support obligor's income.

Rott v. Connecticut General Life Ins. Co., et al. 2004 ND 198
Docket No.: 20040172
Filing Date: 11/2/2004
Case Type: Appeal - Civil - Foreclosure
Author: Neumann, William

Highlight: A quitclaim deed transfers the grantor's interest, if any, in the property to the grantee.
If no action is taken to substitute the appropriate entity as a party to an appeal, the appeal may be dismissed.

R.R. v. G. H., et al. (CONFIDENTIAL) (Cross-Ref. w/20040288 & 20040325) 2004 ND 197
Docket No.: 20040139
Filing Date: 11/2/2004
Case Type: Appeal - Civil - Paternity
Author: Kapsner, Carol

Highlight: Visitation order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Estate of Bergman (Consolidated w/20030357) 2004 ND 196
Docket No.: 20030356
Filing Date: 10/20/2004
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: Assets conveyed by an institutionalized spouse to a community spouse before the institutionalized spouse's death and traceable to the community spouse's estate are subject to a claim for Medicaid benefits provided to the institutionalized spouse.
Transfers by a surviving community spouse before death, which are made for less than a reasonably equivalent value and which render the community spouse's estate insolvent, may be voided under N.D.C.C. ch. 13-02.1.

Staley v. Staley 2004 ND 195
Docket No.: 20040047
Filing Date: 10/20/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse's earning capacity.

Long v. Jaszczak (Consolidated with 20040089) 2004 ND 194
Docket No.: 20040088
Filing Date: 10/18/2004
Case Type: Appeal - Civil - Malpractice
Author: Neumann, William

Highlight: For purposes of the statute of limitations, an action commences when the summons, with the intent it shall be served, is delivered to the sheriff or officer of the county where the defendant resides.
A primary physician, ordering a diagnostic procedure to further a patient's care, has a legal duty to obtain the patient's informed consent.
Generally, in cases of informed consent, materiality of risk and causation are questions for the trier of fact.
Expert testimony is not required to prove whether a reasonable patient would attach significance to a particular risk.
A hospital does not owe a legal duty to obtain its patients' informed consent, it is a physician's responsibility.

State v. Murchison 2004 ND 193
Docket No.: 20030328
Filing Date: 10/15/2004
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: The preliminary hearing is a critical stage of the proceedings at which the defendant has a constitutional right to representation by counsel.
A defendant has the burden of establishing he is indigent and qualifies for appointment of counsel.
In deciding whether to grant a motion for recusal, the trial judge must determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge's impartiality. Recusal is not required in response to spurious or vague charges of partiality.
A trial judge is allowed the widest range of discretion in fixing a criminal sentence and appellate review is generally confined to whether the court acted within the statutory sentencing limits or substantially relied upon an impermissible factor in determining the severity of the sentence.

Riemers v. Grand Forks Herald, et al. 2004 ND 192
Docket No.: 20040069
Filing Date: 10/15/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake. A privileged communication does not enjoy absolute immunity, however.
To prevent abuse, the privilege is a qualified privilege. A qualified privilege is abused if statements are made with actual malice, without reasonable grounds for believing them to be true, and on a subject matter irrelevant to the common interest or duty.

Heckelsmiller v. State (Cross-Ref. w/20030179) 2004 ND 191
Docket No.: 20040111
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Ineffective assistance of counsel exists where trial counsel, after calling witnesses to the stand and discovering that they have not complied with a defense-requested sequestration order, makes no offer of proof as to the substance of these witnesses' critical testimony, thus denying defendant a meaningful appeal on the issue of whether these witnesses should have been allowed to testify.

Estate of Gross v. ND Dept. of Human Services 2004 ND 190
Docket No.: 20040071
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: The monthly payments from a nonassignable annuity are a holder's interest in a contractual right to receive money payments and are an available asset under medicaid law.
There is a presumption that a holder's interest in a contractual right to receive money payments is saleable without working an undue hardship, and the presumption may be rebutted by evidence demonstrating the contractual right to receive money payments is not saleable without working an undue hardship.

Schmidt, et al. v. Wittinger 2004 ND 189
Docket No.: 20040051
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A trial court can order a partition of real property if a partition in kind cannot be made without great prejudice to the owners.
For the partition in kind of real property, great prejudice exists when the value of the share of each in case of a partition would be materially less than the share of the money equivalent that each could probably obtain from the whole.
A joint tenant must account to cotenants for receiving more than a proportionate share of the rents and profits.
A cotenant's failure to participate in the federal conservation reserve program is not a legal breach entitling the joint tenants to compensatory damages.

Riemers v. Omdahl, et al. 2004 ND 188
Docket No.: 20040099
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Malpractice
Author: Maring, Mary

Highlight: In a legal malpractice action, the statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
In a legal malpractice action, the continuous representation rule tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.

State v. Charette 2004 ND 187
Docket No.: 20040001
Filing Date: 10/12/2004
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Circumstantial evidence can, without more, be sufficient to warrant a conviction, assuming the circumstantial evidence is of such probative force to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.
The existence of conflicting evidence does not prohibit a jury from finding a defendant guilty beyond a reasonable doubt.
The decision to admit or exclude demonstrative evidence is subject to abuse-of-discretion review.
A trial court does not abuse its discretion when it refuses to allow defendant to try on clothing evidence found at a murder scene when defendant has gained weight since the date of the murder.
Rule 16, N.D.R.Crim.P., specifically addresses discovery of formal, recorded statements, and the State does not violate this rule if it fails to disclose a witness's informal, pre-trial statements.

Kouba v. State of North Dakota, et al. 2004 ND 186
Docket No.: 20040129
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Public policy demands that the State retain immunity for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions.
The adjudicative acts performed by State officials in carrying out their duties are quasi-judicial in nature, and, therefore, immune from liability.
When a governmental agency systemically disregards the requirements of law, reversal may be required to ensure the government acts consistently and predictably in accordance with the law.

Kouba v. Hoeven, et al. 2004 ND 185
Docket No.: 20040138
Filing Date: 10/12/2004
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Kapsner, Carol

Highlight: A petitioner for a writ of mandamus must demonstrate a clear legal right to performance of the act sought to be compelled by the writ and must demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of the law.