Opinions

State v. Mikkelson 2004 ND 121
Docket No.: 20030277
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Driving under suspension conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

T.E.J. v. T.S., et al. (CONFIDENTIAL) 2004 ND 120
Docket No.: 20030337
Filing Date: 6/16/2004
Case Type: Appeal - Civil - Paternity
Author: Kapsner, Carol

Highlight: The court may impute income to determine an obligor's future support obligation when the obligor has made a voluntary change in employment.
A court must grant such rights of visitation as will enable the non-custodial parent and child to maintain a parent-child relationship, and the court may restrict or deny this right only if visitation is likely to endanger the child's physical or emotional health.

Dietz v. Kautzman (Cross-Ref w/980004, 990386, 20000083, 20020296, 20030038) 2004 ND 119
Docket No.: 20030361
Filing Date: 6/7/2004
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: The 21-day safe harbor provision under N.D.R.Civ.P. 11 can be waived by a party against whom sanctions are sought for bringing a frivolous claim, when the party continues to advance the claim rather than withdraw or appropriately correct it.
A trial court's decision to impose sanctions under N.D.R.Civ.P. 11 rests within the sound discretion of the court and it will not be overturned on appeal unless the court has abused its discretion.

Fladeland, et al. v. Gudbranson, et al. 2004 ND 118
Docket No.: 20030319
Filing Date: 6/7/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An agreement for the sale of real property is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent.
Absent a written contract or agreement for the sale of real property, a court may compel the specific performance of any agreement for the sale of real property in case of part performance thereof.
Part performance of an alleged oral contract must be consistent only with the existence of the alleged oral contract.

Ritter, Laber & Assoc., et al. v. Koch Oil, et al. (Cross w/990204 & 20000224) 2004 ND 117
Docket No.: 20030347
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A claim for conversion may arise under the same facts as a claim for a breach of contract.
The gist of a claim for conversion is not the rightful acquisition of the property, but the wrongful possession or deprivation of that property.
A party is not entitled to recover under unjust enrichment when there is an express contract between the parties relative to the same subject matter.
A motion to amend a complaint is addressed to the discretion of a trial court.

Greybull v. State (cross-ref. w/970216; 990280; 20020204) 2004 ND 116
Docket No.: 20040040
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Raising issues in an application for post-conviction relief that were not raised on direct appeal or in prior applications for post-conviction relief, absent any showing of excuse or justification is an abuse of process.
Failure to show any excuse for not having raised the issue of untimely notice of intent to enhance sentence under the special dangerous offender statute in a prior proceeding makes raising the issue on post-conviction relief an abuse of process.

State v. Higgins 2004 ND 115
Docket No.: 20030320
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Under N.D.R.Crim.P. 3(b), allowing amendment of a complaint is within the trial court's discretion.
To legally stop a vehicle, a law enforcement officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Operating a motorboat or vessel while intoxicated through the consumption of alcoholic beverages violates N.D.C.C. 20.1-13-07(2).

City of Mandan v. Sperle 2004 ND 114
Docket No.: 20040006
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: In reviewing a challenge to the sufficiency of the evidence to sustain a conviction, the appellate court will not weigh conflicting evidence or judge the credibility of witnesses but will look only to the evidence most favorable to the verdict and to the reasonable inferences therefrom to determine whether there is substantial evidence to warrant a conviction.
Special verdicts or interrogatories in criminal cases are disfavored because they may coerce a jury into rendering a guilty verdict or destroy the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences.

Bice, et al. v. Petro-Hunt, L.L.C., et al. 2004 ND 113
Docket No.: 20030306
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: An order certifying a class action under N.D.R.Civ.P. 23 is appealable, but a trial court's decision to certify a class action will not be overturned on appeal unless the trial court abused its discretion.
In determining whether a class action will provide a fair and efficient adjudication of the controversy, the trial court is not required to specifically address each of the thirteen factors listed in N.D.R.Civ.P. 23(c)(1), but must weigh the competing factors, none of which is predominant.

State v. Flanagan 2004 ND 112
Docket No.: 20030247
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An appellate court may notice a claimed error that was not brought to the attention of the trial court if there was plain error which affected the defendant's substantial rights, and the appellate court concludes the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Omitting an element of the crime from the jury instruction is obvious error, but is not reversible error when the element was not disputed.
The issue of impermissible gender-based peremptory challenges must be raised in the trial court.