Opinions

Weninger v. Grzeskowiak 2003 ND 80
Docket No.: 20030009
Filing Date: 5/3/2003
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Hoffner, et al. v. Johnson, et al. 2003 ND 79
Docket No.: 20020208
Filing Date: 5/12/2003
Case Type: Appeal - Civil - Malpractice
Author: VandeWalle, Gerald

Highlight: The six-year statute of repose for medical malpractice actions under N.D.C.C. 28-01-18(3) does not violate equal protection.
For equitable estoppel precluding application of a statute of limitation or repose, the plaintiff must show affirmative deception by the defendant.

Morton Co. Social Service Bd. v. Hakanson 2003 ND 78
Docket No.: 20020278
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A child support order is modified when past due child support obligations are forgiven.
When a child support judgment is transcribed and filed with the clerk of court in another county for the purpose of enforcement, the original county does not lose continuing jurisdiction for all other child support matters, such as modification of the original judgment.

Sommers v. Sommers 2003 ND 77
Docket No.: 20020149
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A party moving to dismiss an appeal for acceptance of benefits of a judgment must clearly establish waiver of the right to appeal by the other party.
Ordinarily, fair market value, not liquidation value, is the proper method of valuing property in a divorce.
In valuing a business that is not going to be liquidated, expenses and theoretical tax liabilities that would only be incurred upon liquidation should not be deducted.

State v. Thorson 2003 ND 76
Docket No.: 20020212
Filing Date: 5/6/2003
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: To establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.
Under N.D.R.Crim.P. 16, the prosecution must disclose, upon the defendant's request, names and statements of witnesses the prosecution intends to call and also the relevant statements within the prosecution's possession or control of other persons.
The defendant's failure to discover evidence from a lack of reasonable diligence defeats a Brady claim that the prosecution withheld that evidence.

Malchose v. Kalfell, et al. 2003 ND 75
Docket No.: 20020290
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: A trial court may determine a document is authentic based on the proponent's chain of custody testimony and the document's internal indicia of trustworthiness.
The public record exception to the hearsay rule applies to all records and data compilations of a public agency, including those not generally accessible to the public. The availability of a custodian or other witness with knowledge of the making of the record is not a requirement for admissibility.

Disciplinary Board v. Query (CONSOLIDATED W/20030025) 2003 ND 74
Docket No.: 20030024
Filing Date: 5/6/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred for conviction of a serious crime, and the effective date for disbarment is the date of the disbarment order.

State v. Tollefson 2003 ND 73
Docket No.: 20020197
Filing Date: 5/6/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: An officer who reasonably believes a suspect may have a weapon in his pocket, but who is unable to determine with certainty whether the object is a weapon during a pat-down search, acts reasonably by reaching into the pocket to recover the object.

Ellis v. State 2003 ND 72
Docket No.: 20020289
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A Sixth Amendment violation of the right to assistance of counsel occurs if the government knowingly intrudes into the attorney-client relationship and the intrusion demonstrably prejudices the defendant, or creates a substantial threat of prejudice.

Vandeberg v. State (Consolidated w/20020321) 2003 ND 71
Docket No.: 20020320
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: The State cannot require a petitioner, in every post-conviction relief case, to prove up his case prior to any hearing merely by moving for summary disposition and asserting the petitioner has offered no evidence to support his claims.