Opinions

Harfield, et al. v. Tate (Cross-ref. w/19980345) 2004 ND 45
Docket No.: 20030039
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: The commission of an act cannot be proved by showing the commission of similar acts by the same person at other times, or by showing the act was in conformity with the person's character or a character trait.

State v. Lemons 2004 ND 44
Docket No.: 20030029
Filing Date: 2/25/2004
Case Type: Appeal - Criminal - Assault
Author: Neumann, William

Highlight: A trial court's refusal to allow a defense witness to testify by telephone is not an abuse of discretion because the Rules of Criminal Procedure provide that all testimony is to be taken orally in open court.
Denial of a motion for continuance to procure an absent witness is not obvious error when a defendant fails to demonstrate the denial affected a substantial right.
Without a showing of prejudice, a trial court's denial of a motion for new trial is not an abuse of discretion.

State v. Ochoa (Consolidated w/20030133) 2004 ND 43
Docket No.: 20030132
Filing Date: 2/25/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Without an unequivocal waiver of the constitutional right to counsel or an unequivocal assertion of the constitutional right to self-representation, a trial court is not required to permit self-representation or inquire into the issue of self-representation.
Hybrid representation is not a constitutional right. A defendant's request to proceed in such a manner is not an unequivocal assertion of a defendant's Sixth Amendment right to self-representation.

Wutzke v. Hoberg, et al. 2004 ND 42
Docket No.: 20030300
Filing Date: 2/25/2004
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: A party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts to be compelled by the writ and must demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of law.

Seibel v. Seibel 2004 ND 41
Docket No.: 20030095
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Dixon v. McKenzie Co. Grazing Association 2004 ND 40
Docket No.: 20030005
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The governing body of a cooperative grazing association is subject to the general law governing directors of cooperatives.
The good-faith acts of cooperative directors within the cooperative's power and in the exercise of honest business judgment are valid.
A court generally will not interfere with or regulate the conduct of a cooperative's directors in the reasonable and honest exercise of their judgment and duties when their judgment is uninfluenced by personal consideration.

St. Claire, et al. v. St. Claire 2004 ND 39
Docket No.: 20030233
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Although prisoners have diminished constitutional protections, they maintain a due process right to reasonable access to the courts.
Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.
A person's due process right to appear may be satisfied by allowing appearance via telephone.

Interest of D.L.M. 2004 ND 38
Docket No.: 20030240
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The child support guidelines require the imputation of income when an obligor is unemployed.
A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining a child support obligation.
If the trial court finds the presumptively correct child support amount has been rebutted, it must make a specific finding.

Nesvig v. Nesvig 2004 ND 37
Docket No.: 20030041
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The actual nature of the subject matter of an action determines whether an action is a legal malpractice case.
Good faith is not a defense to a legal malpractice action.
A fiduciary relationship exists when one is under a duty to give advice for the benefit of another upon matters within the scope of the relationship.
An attorney may undertake to manage or invest a client's property, and in doing so, the attorney not only must conform to the applicable standard of care and comply with the fiduciary obligations, but also may assume the responsibilities of a trustee.

State v. Utvick 2004 ND 36
Docket No.: 20030103
Filing Date: 2/25/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Probable cause is not established for a no-knock search warrant when the magistrate is not presented with any information regarding the suspect's ability to destroy the evidence or the ease with which evidence may be destroyed.
State courts apply the good-faith exception to the exclusionary rule in a manner consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
The good-faith exception to the federal exclusionary rule must be considered when a no-knock warrant has been issued in error.
A no-knock search warrant is not issued on a per se basis when the officer presents information sufficiently particularized to rebut any legal conclusion that the warrant was issued on a per se basis, even though the information was not sufficiently particularized to provide probable cause for a no-knock provision.