Opinions

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.

Baity v. Workforce Safety & Insurance, et al. 2004 ND 184
Docket No.: 20040096
Filing Date: 10/12/2004
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: Supplementary disability benefits may be awarded only after Workforce Safety and Insurance has determined the claimant is incapable of rehabilitation of earnings capacity and is therefore permanently and totally disabled.
An agency's systemic disregard of the law may warrant reversing the agency decision without a showing of prejudice by the party relying on the improper conduct, but evidence of a single improper act is not sufficient to establish systemic disregard.

Interest of R.R. (CONFIDENTIAL) 2004 ND 183
Docket No.: 20040265
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court is required only to determine whether treatment other than hospitalization is appropriate, not which unit in the hospital is appropriate.
A district court order requiring treatment at the State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of K.G. (CONFIDENTIAL) 2004 ND 182
Docket No.: 20040264
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court order revoking alternative treatment and requiring treatment at the State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Ernst v. Burdick, et al. (Consolidated w/20040105) 2004 ND 181
Docket No.: 20040104
Filing Date: 10/12/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: The statutory provisions for criminal history record collection and dissemination under N.D.C.C. ch. 12-60 do not create a private cause of action for violations.

Disciplinary Board v. Secrest 2004 ND 180
Docket No.: 20040243
Filing Date: 10/4/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded and ordered to pay costs of disciplinary proceedings for violating N.D.R. Prof. Conduct 1.4(b).

Hansen, et al. v. Scott, et al. (Cross-reference w/20010195) 2004 ND 179
Docket No.: 20040044
Filing Date: 9/23/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: When applying principles of comity, it is not against North Dakota public policy to grant a sister state's employees the same level of immunity North Dakota state employees enjoy.

Evenson v. Quantum Industries, Inc., et al. 2004 ND 178
Docket No.: 20040033
Filing Date: 9/17/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The parol evidence rule precludes the use of evidence of prior oral negotiations and agreements to vary or add to the terms expressed in a written contract.
Preliminary oral statements and promises related to the terms of the contract do not provide the basis for a fraud claim if there is a subsequent written contract.

Jackson v. State 2004 ND 177
Docket No.: 20030365
Filing Date: 9/15/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Lee 2004 ND 176
Docket No.: 20030336
Filing Date: 9/15/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: If a party does not object to an alleged error at the time it occurs, and does not give the court time to remedy any possible prejudice that may result, the party waives any ground of complaint against its admission upon appeal.
If a party does not object to an alleged error during trial, the party alleging an error has the burden of proving the alleged error was obvious by showing it is plain and it affects substantial rights of the party. The alleged error is not obvious unless it is a clear deviation from an applicable legal rule under current law.

City of Wahpeton v. Timmerman (Consolidated w/ 20040076 & 20040077) 2004 ND 175
Docket No.: 20040075
Filing Date: 9/15/2004
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Convictions of driving without a license and resisting arrest and subsequent denials of motions to dismiss charges and withdraw guilty pleas are summarily affirmed under N.D.R.App.P. 35.1(a)(1), (2) and (4).

Nodak Mutual Ins. Co. v. Wamsley, et al. 2004 ND 174
Docket No.: 20030374
Filing Date: 9/13/2004
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: The significant-contacts approach to choice-of-law questions is appropriate in contract cases with multistate factual contacts.
In insurance contract cases, consideration of predictability of results favors application of the law of the state in which the insurance policy was negotiated, issued, and the premiums paid.

Flatt v. Kantak, et al. 2004 ND 173
Docket No.: 20030285
Filing Date: 9/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A physician must disclose material risks to obtain a patient's informed consent for a medical procedure.
On appeal, a trial court's rulings on expert testimony are reviewed under the abuse-of-discretion standard.
A trial court is not required to instruct a jury in the exact language sought by a party if the court's instructions correctly and adequately inform the jury of the applicable law.
A physician's duty of disclosure in an informed consent case is measured under the reasonable patient standard.
A party challenging the constitutionality of a statute must allege an injury traceable to the statute.

Judicial Conduct Commission v. Giese 2004 ND 172
Docket No.: 20040177
Filing Date: 9/2/2004
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: Former municipal judge censured.

Judicial Conduct Commission v. McGuire 2004 ND 171
Docket No.: 20040073
Filing Date: 8/31/2004
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: Clear and convincing evidence in a judicial disciplinary proceeding means evidence which leads to a firm belief or conviction that the allegations are true.
In judicial disciplinary proceedings, the party seeking discovery has to show a need for the information beyond mere relevance.
Extra-judicial conduct is not simply conduct arising geographically outside of the courtroom, but is conduct which arises from something outside of the events of the courtroom itself.
Suspending a judge from office without pay does not violate the constitutional directive that a judge's salary shall not be diminished during this term of office.
The purpose of discipline in judicial conduct cases is not to punish a judge, but is to preserve the integrity of the judicial system and public confidence in the system and, when necessary, safeguard the bench and public from those who are unfit.
A respondent in a judicial disciplinary proceeding is not initially responsible for payment of the cost of a hearing transcript, but if the respondent is ultimately found to have committed misconduct, the cost of the hearing transcript may be assessed against the respondent.

Interest of R.H. 2004 ND 170
Docket No.: 20040053
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

Smith Enterprises v. In-Touch Phone Cards, et al. 2004 ND 169
Docket No.: 20040039
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A determination of the terms of an oral contract is a question of fact and will be reversed on appeal only if clearly erroneous.
To prevail on a claim of unlawful interference with business, a plaintiff must prove: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.

State v. Spidahl (Consolidated w/20030349-20030352) 2004 ND 168
Docket No.: 20030348
Filing Date: 8/31/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause to arrest does not require that commission of the offense be established with absolute certainty, or proved beyond a reasonable doubt.

Investors Real Estate Trust Properties v. Terra Pacific Midwest, et al. 2004 ND 167
Docket No.: 20030363
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: A plaintiff alleging negligence must present affirmative evidence that the defendant's conduct caused the injury, and may not establish causation solely by discrediting other possible causes.
A plaintiff relying upon the doctrine of res ipsa loquitur must show the defendant had exclusive control of the specific instrumentality that caused a fire, not merely control of the location or area where the fire occurred.

Grinnell Mutual Reinsurance Co. v. Lynne, et al. 2004 ND 166
Docket No.: 20030217
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: To successfully oppose a motion for summary judgment, a party must not rely upon unsupported or conclusory allegations.
An insurance policy is not ambiguous when the plain language of the policy precludes coverage.
A causal relationship exists when damage to property arises out of the inherent nature of the work performed.
A house is real property and a fixture when the actions of the owner manifest an intention to have the house remain on the property permanently.

Horner v. Horner 2004 ND 165
Docket No.: 20030367
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: Duration of a marriage is only one factor of the Ruff-Fischer guidelines and is not controlling in a distribution of marital property.
A party's dissipation of marital assets is a particularly relevant factor in arriving at an equitable distribution of the property.
Periodic cash payments awarded without interest need to be discounted to present value in determining whether a property distribution is equitable.
Distributing farm assets to one spouse with an offsetting monetary award to the other spouse is an acceptable method of preserving the viability of a family farm.

Dietz v. Kautzman, et al. 2004 ND 164
Docket No.: 20030362
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An order or judgment awarding attorney fees and costs as a discovery sanction is ordinarily interlocutory and not appealable, but it is appealable when accompanied by a finding of contempt.
A district court has a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the district court abused its discretion.

State v. Haibeck 2004 ND 163
Docket No.: 20040060
Filing Date: 8/9/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Under the automobile exception to the warrant requirement of the Fourth Amendment to the U.S. Constitution, contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant where probable cause exists.
When conducting a search under the automobile exception, law enforcement does not need separate findings of probable cause to support multiple searches of a vehicle when the searches are virtually contemporaneous.
A Miranda violation does not require suppression of the physical fruits of a suspect's unwarned but voluntary statements.
The fact that an officer may have authority to arrest a suspect does not mean that a suspect is in custody for purposes of Miranda.

Grandbois and Grandbois, Inc., et al. v. City of Watford City, et al. 2004 ND 162
Docket No.: 20030250
Filing Date: 8/5/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial.
The plaintiff has the burden of showing actual damage and establishing that the actual damage was proximately caused by the alleged fraudulent or deceitful act.

Grand Forks Co. v. Tollefson, et al. 2004 ND 161
Docket No.: 20030370
Filing Date: 8/4/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Neumann, William

Highlight: An employee's benefit year, for purposes of calculating a former employer's liability for unemployment benefits, begins when the employee first files a request for determination of insured status, and a subsequent benefit year cannot be established until the expiration of the current benefit year.
In an administrative proceeding, a party's failure to request that a witness be subpoenaed waives the right to have the witness present and available for cross-examination.

State v. Hilgers 2004 ND 160
Docket No.: 20030169
Filing Date: 8/4/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: A trial court is not obligated to issue every subpoena requested by a defendant.
An appellant is required to file a transcript on appeal and assumes the consequences of a failure to do so. An appellate court will decline to review an issue over which it is unable to provide meaningful review.

Interest of J.S. (CONFIDENTIAL) 2004 ND 159
Docket No.: 20040183
Filing Date: 8/4/2004
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: In an appeal from a continuing treatment order, our review is limited to a review of the procedures, findings, and conclusions of the lower court.
District court's order based upon finding that less restrictive alternative treatment was not appropriate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Ficek, et al. v. Morken, et al. 2004 ND 158
Docket No.: 20030295
Filing Date: 8/4/2004
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The public duty doctrine, that there is no enforceable duty in tort when a statute or common law imposes upon a public entity a duty to the public at large rather than to a particular class of individuals, is incompatible with North Dakota law.

State v. Mitzel 2004 ND 157
Docket No.: 20030359
Filing Date: 8/4/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The existence of consent and whether it is voluntary is a question of fact to be determined from the totality of the circumstances.
Consent cannot reasonably be implied from silence and failure to object.
Consent should not be lightly inferred, must be proven by clear and positive testimony, and must be unequivocal.
The government has the burden to prove that consent was voluntarily given.
The mere fact that a person has been arrested in violation of his constitutional rights casts grave doubt upon the voluntariness of a subsequent consent.
Miranda warnings are a factor to consider under the voluntariness test, but a Miranda warning cannot support voluntariness of consent when it is given after the consent.

Gonzalez v. Tounjian, et al. (Cross-reference w/20020263) 2004 ND 156
Docket No.: 20040015
Filing Date: 8/4/2004
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: When a judgment is affirmed in part and reversed in part on appeal, post-judgment interest on the affirmed portion runs from the date of the original judgment.

Miller v. Workforce Safety and Insurance, et al. 2004 ND 155
Docket No.: 20040064
Filing Date: 7/29/2004
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald W.

Highlight: Ex parte communications are those that are without notice and opportunity for all parties to participate in the communication.
Workforce Safety and Insurance can consult with its outside legal counsel in reviewing a pending administrative law judge's recommendation as long as those communications are not ex parte.

Ag Acceptance Corp. v. Glinz, et al. 2004 ND 154
Docket No.: 20030197
Filing Date: 7/26/2004
Case Type: Appeal - Civil - Debtor/Creditor
Author: Neumann, William

Highlight: A contract must be interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting, and when the contract has been reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.
An agricultural operating loan evidenced by a promissory note specifying that all principal and interest shall be due on a date certain shortly after completion of that crop year is not a revolving charge agreement.
To establish an antitrust violation based upon illegal tying, it must be shown that the seller possesses significant market power in the tying market.

Riemers v. Peters-Riemers, et al. 2004 ND 153
Docket No.: 20030353
Filing Date: 7/23/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Collateral estoppel generally bars new litigation, based on a different claim, of issues that were or must have been determined in the prior suit.
Collateral estoppel bars relitigation of an issue if: (1) the issue decided in the prior adjudication is identical to the one presented; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted had a fair opportunity to be heard on the issue.
A court of this state that has made a child custody determination has exclusive, continuing jurisdiction over the determination.
No civil action lies for perjury in another proceeding.
Res judicata means that a valid, existing final judgment from a court of competent jurisdiction is conclusive, with regard to the issues raised, or those that could have been raised, and determined as to the parties and their privies in all other actions.
A trial court's denial of a motion for a continuance to amend a complaint will not be reversed unless the trial court abused its discretion.
A trial court's denial of a motion for a continuance to conduct additional discovery will not be reversed unless the trial court abused its discretion.

Ernst v. State 2004 ND 152
Docket No.: 20030330
Filing Date: 7/22/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: A guilty plea is a 'critical stage' in the criminal process so the constitutional right to counsel attaches.
A plea may be adjudged involuntary and withdrawn if a defendant received ineffective assistance of counsel for the plea. To prove an ineffective assistance of counsel, a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Failure to file pretrial motions, by itself, does not equate to ineffective assistance of counsel.

State v. Berger 2004 ND 151
Docket No.: 20030322
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: When no separate judgment of conviction has been entered and an order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, the order serves as the judgment and is appealable.
When considered in totality, a driver's erratic driving, belligerent and physically aggressive conduct, use of profanity, extreme nervousness, physical shaking and inability to stand still, glossy and watery eyes, and failure of a light reactivity field sobriety test may be sufficient to create probable cause to arrest the driver for driving under the influence of drugs.

Adoption of S.R.F. (CONFIDENTIAL) 2004 ND 150
Docket No.: 20030364
Filing Date: 7/22/2004
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: De novo review under the Revised Uniform Adoption Act is abolished, and cases to the contrary are overruled.
A parent's abandonment of a child is a question of fact and may be inferred from circumstantial evidence of the parent's conduct.

State v. Mathre 2004 ND 149
Docket No.: 20030312
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: The appellant must provide a transcript on appeal, and the appellant suffers any consequences resulting from the lack of a transcript to review.
An arrest is not unlawful merely because there is no subsequent conviction of the crime for which an individual is arrested.
A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.

Johnson v. ND Dept. of Transportation 2004 ND 148
Docket No.: 20040065
Filing Date: 7/22/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: An officer who properly arrests a driver for DUI and who obtains, within the officer's jurisdiction, the driver's consent to submit to a blood test can transport the arrestee outside the jurisdiction for the test.

State v. Stockert 2004 ND 146
Docket No.: 20030105
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A judge is required to disqualify if the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.
When personal knowledge about a matter has been obtained by a judge within another legal proceeding, disqualification is not called for.
When deciding whether or not to recuse, a judge must determine whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
In deciding whether a judge should be disqualified because of a person's involvement in a judicial campaign, the relevant factors include: 1) the significance of the person's campaign involvement; 2) whether the campaign is under way or how recently it ended; 3) whether there is an ongoing relationship between the person and the judge; 4) the significance of the person's involvement in the current case, including the closeness or remoteness of the involved individual to the case; 5) whether the issue was promptly raised; and 6) evidence of judicial bias.

Minn-Kota Ag Products, Inc., et al. v. Carlson, et al. 2004 ND 145
Docket No.: 20030303
Filing Date: 7/6/2004
Case Type: Appeal - Civil - Malpractice
Author: Neumann, William

Highlight: Issues of fact may become questions of law if a reasonable person could reach only one conclusion from the facts.
Mere speculation is not enough to defeat a motion for summary judgment. There must be enough evidence for a reasonable jury to find for the plaintiff.
An attorney has not committed legal malpractice by failing to file a cause of action when the statute of limitations expires before the attorney is retained.

State v. Sims (Consolidated w/20040036) 2004 ND 144
Docket No.: 20030150
Filing Date: 7/6/2004
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: The district court may provide for the possibility of work release in accordance with the guidelines of a correctional facility.

Ag Acceptance Corp. v. Alexander Farms, Inc., et al. 2004 ND 143
Docket No.: 20040005
Filing Date: 7/2/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment in collection action summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Interest of T.J.L. (CONFIDENTIAL) 2004 ND 142
Docket No.: 20030291
Filing Date: 6/30/2004
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Effective March 1, 2004, findings of fact in juvenile matters will not be set aside on appeal unless clearly erroneous.
When there has been an extensive period in which efforts have been made to overcome a parent's inabilities to effectively parent, courts cannot allow the child to remain in an indeterminate status midway between foster care and the obvious need for permanent placement.

Oppegard-Gessler v. Gessler 2004 ND 141
Docket No.: 20030205
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A custodial parent may not change the residence of a child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.
The best interests of the child are the primary consideration in determining whether a custodial parent should be allowed to relocate with the child to another state.
A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error.

State v. Smestad 2004 ND 140
Docket No.: 20030335
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A trial court may allow testimony as to the context of events, if the testimony is required to prove the essential statutory elements of the crime and the district court has weighed the probative value against the prejudicial nature of the testimony.

State v. Decoteau 2004 ND 139
Docket No.: 20030271
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The reasonable suspicion standard does not require an officer to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.
An officer's knowledge that a driver's license was suspended when stopped by the same officer one week earlier is sufficient to create reasonable suspicion of unlawful activity and support an investigatory stop of the vehicle.

Interest of T.T. (CONFIDENTIAL) 2004 ND 138
Docket No.: 20030266
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Juvenile Law
Author: Sandstrom, Dale

Highlight: Issues not raised in juvenile court may not be raised for the first time on appeal.
A deprivation hearing in juvenile court may not be combined with a hearing on divorce-related child custody and visitation issues.
A juvenile court's oral findings may be used to explain the juvenile court's written decision.

State v. Gill 2004 ND 137
Docket No.: 20030279
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Theft
Author: Maring, Mary

Highlight: The State has the burden in a restitution hearing to prove the amount of restitution by a preponderance of the evidence.
The defendant has the burden to raise and prove an inability to pay the amount of restitution ordered.

State v. Krous 2004 ND 136
Docket No.: 20030372
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The word "submit" in a probation condition similar to that in N.D.C.C. 12.1-32-07(4)(n) means consent to a reasonable warrantless search.

Gartner v. Job Service North Dakota 2004 ND 135
Docket No.: 20040038
Filing Date: 6/30/2004
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Maring, Mary

Highlight: An unemployed individual may be entitled to unemployment benefits while attending a retraining program if reasonable and suitable work opportunities for which the individual is suited by training, experience, and physical capabilities do not exist in the individual's locality.

Aamodt v. Dept. of Transportation 2004 ND 134
Docket No.: 20040056
Filing Date: 6/30/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department must meet the basic and mandatory provisions of the statute to have authority to suspend driving privileges.
The statutory provision requiring a police officer to include in the notice to the Department reasonable grounds to believe a person had been driving or had been in actual physical control of a motor vehicle while under the influence of alcohol is a basic and mandatory provision.

Tibert, et al. v. Minto Grain, et al. (Cross ref. w/20030207) 2004 ND 133
Docket No.: 20030208
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A trial court's decision granting judgment on the pleadings is reviewed de novo.
The purpose of liberal pleading requirements is to apprise the defendant of the nature of the plaintiff's claim.

Moen, et al. v. Thomas, et al. (cross-reference w/20000111; 20000169) 2004 ND 132
Docket No.: 20030309
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Although the existence of an attorney-client relationship turns largely on the client's subjective belief it exists, the client's subjective belief must also be objectively reasonable.
A party must specifically request that questions on a special verdict form be submitted to the jury, and vague references to requested instructions or special verdict forms are insufficient to preserve the issue for appeal.
A trial court does not abuse its discretion by refusing to include a requested question in a special verdict form when a party has not presented sufficient evidence to support it.

Frontier Enterprises v. DW Enterprises, et al. 2004 ND 131
Docket No.: 20040050
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A partial summary judgment that fails to adjudicate all claims against all parties is interlocutory and not appealable.

Johnson v. State (Consolidated w/20030257) 2004 ND 130
Docket No.: 20030256
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: An application for post-conviction relief is properly dismissed on the pleadings if the court cannot discern a potential for proof to support the application.
A defendant who inexcusably fails to raise all his claims in a single post-conviction proceeding misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding.
The Strickland standard for assessing ineffective assistance of counsel applies to claims of ineffective post-conviction counsel.
A criminal defendant has no constitutional right to "hybrid" representation and to act as co-counsel with his attorney.

Tibbetts v. Dornheim 2004 ND 129
Docket No.: 20030267
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Generally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment.
All of the issues between parties are merged in the final judgment.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

Azure, et al. v. Belcourt Public School Dist. 2004 ND 128
Docket No.: 20030338
Filing Date: 6/30/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: In a negligence case, duty is a question of whether a relationship between the parties gives rise to any legal obligation; whether a duty exists is a question of law.
Summary judgment is appropriate when the record indicates the defendant did not owe a duty of care to the plaintiff in a negligence action.

City of Fargo v. Habiger 2004 ND 127
Docket No.: 20030248
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A judge is not obligated to withdraw as judge under the change-of-judge statute if the record does not reflect compliance with statutory procedures.
The waiver of the right to appointed counsel is effective if the waiver is made voluntarily, knowingly, and intelligently.
Character evidence may be introduced to demonstrate a defendant's propensity for veracity.

Interest of T.F., et al. (CONFIDENTIAL) 2004 ND 126
Docket No.: 20030236
Filing Date: 6/30/2004
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: Under federal law, termination of parental rights to an Indian child requires proof beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
Incarceration of a parent, by itself, does not establish abandonment of a child for purposes of terminating parental rights.
A probability of serious mental and emotional harm to the child may be established from a parent's current inability to properly care for the child.