Opinions

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.