Opinions

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.

State v. Ehli (Cross-reference w/20030092) 2004 ND 125
Docket No.: 20030327
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Other
Author: Kapsner, Carol

Highlight: A probation condition prohibiting a sex offender from having contact with his minor children is not a de facto termination of parental rights.

State v. Reimche (Consolidated w/20040003) 2004 ND 124
Docket No.: 20040002
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Convictions of aggravated assault are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

City of Minot v. Kary (Consolidated w/20030344) 2004 ND 123
Docket No.: 20030343
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Convictions for driving under the influence of alcohol and unlawful consumption of alcohol are summarily affirmed under 35.1(a)(3) and (4).

State v. Kokron 2004 ND 122
Docket No.: 20040034
Filing Date: 6/30/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Judgment and sentence for gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

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.

Fast, et al. v. State 2004 ND 111
Docket No.: 20030310
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: The state may be held liable for money damages for an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.
Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
Landowners are not liable for snow removal efforts that do not create an unreasonably dangerous or more hazardous condition.

Karsky v. Kirby, et al. 2004 ND 110
Docket No.: 20030354
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: When a stipulation is incorporated into a judgment, the court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
The right to a hearing from the Banking Board's denial of an application for transfer of the ownership of a banking institution can be waived by the parties.
When a judgment is clarified by the same trial judge who entered it, the clarification is entitled to considerable deference.

Riemers v. Anderson, et al. (CONSOLIDATED w/20030318) (see Docket Memo) 2004 ND 109
Docket No.: 20030317
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.
Questions unnecessary to the determination of an appeal are not answered.

Kostrzewski v. Frisinger 2004 ND 108
Docket No.: 20040009
Filing Date: 6/3/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: As a general rule of statutory construction, a specific statute governs over a more general statute.
When a party files a foreign child custody judgment, a trial court shall confirm the judgment unless a person contesting the validity of the registered judgment establishes one of the three grounds listed in N.D.C.C. 14-14.1-25(4).
Mere registration of a foreign child custody judgment does not require determination of the registering court's jurisdiction under N.D.C.C. 14-14.1-14.

Minto Grain v. Tibert, et al. (Cross-Ref w/20010302, 20030207 & 208) 2004 ND 107
Docket No.: 20030297
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The right to the possession of disputed real estate is the only fact that can be rightfully litigated in a summary eviction action unless damages or rent is claimed.
Adverse possession and acquiescence may be asserted as a defense or counterclaim in a summary eviction action.

State v. Nordahl 2004 ND 106
Docket No.: 20030269
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: A district court does not abuse its discretion when it revokes probation for failure to pay restitution without holding a hearing when a defendant agreed to restitution as part of a plea agreement.

Baker v. Mayer 2004 ND 105
Docket No.: 20030324
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A trial court's decision to grant a disorderly conduct restraining order will not be reversed unless the trial court clearly abused its discretion.
"Reasonable grounds" for a disorderly conduct restraining order is synonymous with "probable cause."
An alleged victim of disorderly conduct must show more than that the person's actions are unwanted; the alleged victim must show that the actions were intended to adversely affect the alleged victim's safety, privacy, or security.

Duma v. Keena, et al. 2004 ND 104
Docket No.: 20030302
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: Unopposed instructions become the law of the case.
A special verdict will be set aside only if it is perverse and clearly contrary to the evidence. Reconciliation of a verdict includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

State v. Markel 2004 ND 103
Docket No.: 20030299
Filing Date: 6/3/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for class B felony possession of a controlled substance with intent to deliver is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Reishus v. Thompson 2004 ND 102
Docket No.: 20040007
Filing Date: 6/3/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: A trial court judgment dismissing a negligence action is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Peterson 2004 ND 101
Docket No.: 20040134
Filing Date: 5/28/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

State v. Guthmiller 2004 ND 100
Docket No.: 20030298
Filing Date: 5/7/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness.
A district court's decision on a suppression motion is affirmed unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence to support the decision or the decision goes against the manifest weight of the evidence.

Disciplinary Board v. Balerud (CONFIDENTIAL) 2004 ND 99
Docket No.: 20040113
Filing Date: 5/7/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer placed on disability inactive status until further order of the Court.

State v. McClary 2004 ND 98
Docket No.: 20030237
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: A jury verdict is inconsistent when, under the jury instructions and evidence, the verdict cannot be rationally reconciled.
A trial court may not question the jury about how it arrived at its verdict.

Tibert, et al. v. City of Minto, et al. (Cross ref. w/20030208) 2004 ND 97
Docket No.: 20030207
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A district court's legal conclusion of mootness is reviewed de novo.
A common-law dedication must be proven by clear and convincing evidence. The party attempting to establish the existence of the common-law dedication must show there was an intention to dedicate and a public acceptance of the dedication.
Whether a common-law dedication occurred is a question of fact which will not be disturbed on appeal unless clearly erroneous.

Haley v. Dennis, et al. 2004 ND 96
Docket No.: 20030284
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Malpractice
Author: Maring, Mary

Highlight: A jury verdict that assesses a percentage of fault to the defendant after finding the defendant was not negligent is an inconsistent and irreconcilable verdict.
When the jury during deliberations requests additional instruction on a substantive point of law, the court must notify the parties or counsel before responding to the jury's request.

Hilgers v. Hilgers (Cross-reference w/ 20010208) 2004 ND 95
Docket No.: 20030252
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: N.D.R.Civ.P. 6(e), permitting an additional three days to be added to the time for service by mail, does not apply to extend the time when the time begins to run only after actual receipt of notice.
A letter opinion is not an appealable order unless followed by a subsequently entered consistent judgment or order.
The Supreme Court exercises its supervisory authority only to rectify errors and prevent injustice when no adequate alternative remedies exist.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.

Jaste v. Gailfus, et al. 2004 ND 94
Docket No.: 20030261
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: A court errs by deciding summary judgment on a legal doctrine other than those raised by the parties unless the parties are given notice and an opportunity to be heard. The error is reversible if not harmless.

Wetsch v. ND Dept. of Transportation 2004 ND 93
Docket No.: 20030254
Filing Date: 5/5/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Refusal to submit to an onsite screening test constitutes a violation of informed consent law and may properly result in a one-year suspension of an individual's driver's license.
An individual's demand to have blood drawn for a chemical screening in a medical environment, such as a hospital, constitutes refusal under North Dakota's informed consent statute.

Airport Inn Enterprises, Inc. v. Ramage 2004 ND 92
Docket No.: 20040032
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A condition precedent is one that must be performed or happen before a duty of immediate performance arises on the promise that the condition qualifies.
When an agreement is conditioned upon obtaining financing, a condition precedent to performance of the agreement is created.
When financing is a condition precedent, there is no enforceable agreement until the financing is obtained.

All New Gutter Service, Inc. v. Dusek 2004 ND 91
Docket No.: 20030321
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment finding no oral contract after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tweeten 2004 ND 90
Docket No.: 20030151
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A district court may not dismiss a case with prejudice for prosecutorial misconduct unless a hearing is held in which it is determined by clear and convincing evidence the prosecution has proceeded in bad faith.

Meyer v. Meyer 2004 ND 89
Docket No.: 20030214
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A change in spousal support, which was initially awarded upon the parties' stipulation, should be made only with great reluctance by the trial court upon a showing of a material change in circumstances.
Findings of fact should be sufficiently stated so the reviewing court is able to understand the factual basis for the trial court's decision, particularly in view of our standards for modification of spousal support.
A case will be remanded if the reviewing court cannot discern the rationale for the result reached by the trial court.

State v. Helm 2004 ND 88
Docket No.: 20030273
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for class C felony terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Reciprocal Discipline of Chinquist 2004 ND 87
Docket No.: 20040100
Filing Date: 4/26/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Oliver-Mercer Electric Coop. v. Davis, et al. (Consol. w/ 20030158) 2004 ND 86
Docket No.: 20030157
Filing Date: 4/19/2004
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The right to a trial by jury is determined by the character of the issues as framed by the complaint or appearing on the face of the pleadings.
A secured creditor must give reasonable notice of the time and place of a sale of collateral and must conduct the sale in a commercially reasonable manner.
When a secured creditor who failed to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
For purposes of a deficiency judgment, the fair market value of the collateral must be determined at the time of the sale. A secured creditor who failed to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral. If a secured creditor has failed to provide the debtor proper notice of the sale of collateral, the selling price of the collateral is not credible evidence.
Every aspect of a sale of collateral must be commercially reasonable, including the method, manner, time, place, and terms.

State v. Clark 2004 ND 85
Docket No.: 20030238
Filing Date: 4/19/2004
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: An appellate court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.
A prosecutor's closing arguments may properly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs into the argument.
An argument that asks jurors to place themselves in the shoes of a party is improper and should be avoided.

Matter of the Reciprocal Discipline of Johannson 2004 ND 84
Docket No.: 20040102
Filing Date: 4/16/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Reciprocal Discipline of Schaefer 2004 ND 83
Docket No.: 20040101
Filing Date: 4/16/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Peterson v. ND University System, et al. 2004 ND 82
Docket No.: 20030249
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A writ of mandamus is not the appropriate avenue for judicial review of State Board of Higher Education decisions to dismiss tenured faculty members because tenure rights are contractual and not statutory in nature.
The proper standard of judicial review of a substantive State Board of Higher Education decision to dismiss a tenured faculty member for cause is whether a reasoning mind could have reasonably determined that the factual conclusions were supported by clear and convincing evidence.

Garcia v. State (consolidated w/20030307) 2004 ND 81
Docket No.: 20030162
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel's performance was deficient and the deficient performance prejudiced him.
Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms.
The prejudice element requires a petitioner to establish a reasonable probability that, but for his trial counsel's errors, the result of the proceeding would have been different.
A petitioner misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in an earlier proceeding.

Keller v. Bolding 2004 ND 80
Docket No.: 20030221
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A person's willful failure to destroy or prevent the spread of Canada thistle on land in the person's possession violates North Dakota's public policy.
Forfeitures of estates under leases are not favored.
A condition involving a forfeiture must be interpreted strictly against the party for whose benefit it is created.
A contract cannot be arbitrarily terminated under a provision authorizing termination.
Evidentiary imprecision on the amount of damages does not preclude recovery.

Riemers v. O'Halloran, et al. 2004 ND 79
Docket No.: 20030280
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Court-appointed expert witnesses are absolutely immune from suit on the basis of their testimony.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.

State v. Parizek (consolidated w/20030086 through 20030088) 2004 ND 78
Docket No.: 20030085
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Police officers may freeze a situation and conduct a limited investigative stop of persons present at the scene of a recently committed crime without violating the Fourth Amendment.
A law enforcement officer may conduct a frisk or pat down search of a person only when the officer possesses an articulable suspicion the individual is armed and dangerous.
Certainty that an object is a weapon is not required before an officer may continue a pat down search to the inner clothing site where the object is located.
Generally, where an object recovered from a suspect during a pat down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby.
Evidence obtained by unlawful police conduct is admissible if the prosecution proves by a preponderance of the evidence that the evidence would have inevitably been discovered by lawful means.

State v. Buchholz 2004 ND 77
Docket No.: 20030275
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Neumann, William

Highlight: A party's failure to object at trial to references to, and evidence of, other alleged bad acts waives that issue.
A party's failure to submit a proposed jury instruction on consideration of evidence of other bad acts precludes a party from claiming the trial court erred in failing to instruct the jury on that issue.
The statute of limitations in the 1993 version of N.D.C.C. 29-04-03.1 applies to offenses for which the statute of limitations had not expired under prior law.
In the absence of specific language in a sequestration order, N.D.R.Ev. 615 does not apply to witnesses' out-of-court communications during trial.
The failure to raise a violation of the ten-day, pre-sentence report notice at sentencing waives that issue.

Gullickson v. Kline 2004 ND 76
Docket No.: 20030223
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Other
Author: Neumann, William

Highlight: Only a person who has been the victim of disorderly conduct, or the parent or guardian of a minor who has been a victim, may seek a disorderly conduct restraining order.
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.

State v. Causer 2004 ND 75
Docket No.: 20030124
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Neumann, William

Highlight: The State is required to provide prior written notice of the alleged probation violations to a probationer.
The trial court is not required to inform a probationer of his statutory right to appeal from a probation revocation. A probationer has no constitutional right to appeal and there is no notification requirement in North Dakota's statutes or rules of procedure.
A probationer does not have a constitutional right to counsel on appeal from a probation revocation because there is no constitutional right to appeal. A trial court has no duty to inform a probationer of his state-granted right to counsel, nor does a trial court have a duty to appoint counsel for a probationer, absent a probationer's request.
A probationer's right against double jeopardy is not violated by a trial court's imposition of additional probation as part of resentencing after probation is revoked.
North Dakota's statutory scheme provides a probationer with actual notice that a probation violation could result in the imposition of a sentence more severe than his originally imposed sentence.

Danzl, et al. v. Heidinger, et al. 2004 ND 74
Docket No.: 20030239
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Absent statutory or contractual authority, each party to a lawsuit bears the party's own attorney fees.

Rydberg, et al. v. Rydberg 2004 ND 73
Docket No.: 20030212
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Issues on appeal are not restricted to those raised in a motion to alter or amend the judgment as long as the issues were raised at the district court.
A statute of limitations acts only to bar the bringing of the specified action and does not affect other remedies.
Paternity can be rebutted by clear and convincing evidence or by a court decree establishing paternity of the child by another man.
Genetic tests are enough to rebut the presumption of paternity by clear and convincing evidence.

Roth v. Hoffer 2004 ND 72
Docket No.: 20030282
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

State v. Guscette 2004 ND 71
Docket No.: 20030177
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A person is seized under the Fourth Amendment if, in view of all the surrounding circumstances, a reasonable person would believe he or she is not free to leave the area.
A seizure does not occur under the Fourth Amendment simply because a law enforcement officer asks a person questions, and as long as reasonable persons would feel free to disregard the officer and go about their business, the encounter is consensual and no reasonable suspicion of criminal activity is required.
Consent to a search is voluntary if, under the totality of the circumstances, it is the product of an essentially free choice and not the product of coercion.

State v. Lura (Consolidated w/20030186-20030194) 2004 ND 70
Docket No.: 20030185
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Drug convictions summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Weaver v. State 2004 ND 69
Docket No.: 20030325
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Dismissal of second petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

State v. Provost (cross-ref. w/20030227 & 20030229-20030231) 2004 ND 68
Docket No.: 20030228
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for simple assault on a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Stensaker 2004 ND 67
Docket No.: 20030204
Filing Date: 4/13/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for unauthorized use of a motor vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Heinz v. Heinz 2004 ND 66
Docket No.: 20030301
Filing Date: 4/13/2004
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Amended divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Jundt v. Jurassic Resources, et al. (cross-ref. w/20010313) 2004 ND 65
Docket No.: 20030216
Filing Date: 3/26/2004
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: What could have been presented in a prior appeal may not be heard on a later appeal.
A N.D.R.Civ.P. 68 settlement offer must present a clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer.
To trigger the mandatory cost-shifting provision, a defendant seeking costs under N.D.R.Civ.P. 68 must show that the offer was more favorable than the judgment.

Graves v. State Board of Law Examiners 2004 ND 64
Docket No.: 20030137
Filing Date: 3/26/2004
Case Type: Board of Law Examiners - Other - Other
Author: Per Curiam

Highlight: The due process clause requires that the State Board of Law Examiners employ fair procedures, including a fair and impartial tribunal, when processing applications for admission to the bar.

St. Benedict's Health Center v. ND Dept. of Human Services 2004 ND 63
Docket No.: 20030289
Filing Date: 3/25/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Administrative regulations for setting Medicaid reimbursement rates involve complex and technical matters calling for agency expertise, and the Department of Human Services' expertise in interpreting its reimbursement regulations is entitled to deference.

Oldham v. Oldham 2004 ND 62
Docket No.: 20030072
Filing Date: 3/25/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A party waives an issue by not providing supporting argument.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.

Gratech Company, Ltd., et al. v. ND Dept. of Transportation 2004 ND 61
Docket No.: 20030203
Filing Date: 3/23/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: All disputes arising out of any contract entered into by the Department of Transportation for the construction or repair of highways must be submitted to arbitration.
As a condition precedent to arbitration of a highway construction dispute, a contractor seeking additional compensation for work not covered in the contract must file a written notice of claim.

Nodak Mutual Ins. Co., et al. v. Ward Co. Farm Bureau, et al. 2004 ND 60
Docket No.: 20030134
Filing Date: 3/23/2004
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: A defendant must have standing to assert a counterclaim against a plaintiff.
The existence of standing is a question of law which is reviewed de novo.
Individual shareholders generally have no right to bring actions in their individual names and on their own behalf for a wrong committed against the corporation.
To have standing to sue individually, a shareholder must allege an injury separate and distinct from other shareholders.
The statutory right to shareholder access to corporate documents and records provides a right of inspection, not a right to receive answers to questions submitted by shareholders.

Johnson v. ND Dept. of Transportation 2004 ND 59
Docket No.: 20030339
Filing Date: 3/23/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The twenty-minute waiting period required before the administration of an Intoxilyzer test can begin before arrest.
The waiting period from the S-D2 test can be used when ascertaining the twenty-minute waiting period for the Intoxilyzer test.
Observing someone is not the only way to ascertain that person has had nothing to eat, drink, or smoke during the twenty minutes preceding an Intoxilyzer test.
A fact-finder can draw reasonable inferences from the evidence.

Giese v. Giese (cross-ref. w/20020168) 2004 ND 58
Docket No.: 20030278
Filing Date: 3/23/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Civil contempt requires a willful and inexcusable intent to violate a court order. The trial court's finding of contempt will not be overturned unless there is a clear abuse of discretion.
A trial court may award attorney fees as part of the compensation to a complainant in contempt proceedings.

Interest of D.V.A. (CONFIDENTIAL) 2004 ND 57
Docket No.: 20030304
Filing Date: 3/23/2004
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: Experts in proceedings to commit sexually dangerous individuals may rely upon information reasonably relied upon by other experts in the particular field when forming opinions regarding whether an individual is sexually dangerous.
Information relied upon by experts in commitment proceedings under N.D.C.C. ch. 25-03.3 need not be admissible in evidence.
N.D.C.C. ch. 25-03.3 does not require the State to establish a respondent is not mentally retarded.

Ensign v. Bank of Baker 2004 ND 56
Docket No.: 20030234
Filing Date: 3/23/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The filing of a Uniform Commercial Code financing statement by a nonresident defendant and its two inspections of collateral in the forum state do not constitute a voluntary or purposeful effort to do business in the forum state for purposes of establishing personal jurisdiction over the nonresident defendant.

Groleau v. Bjornson Oil Co., et al. 2004 ND 55
Docket No.: 20030171
Filing Date: 3/23/2004
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: Under premises liability law, a defendant must have had control over the property where the injury occurred in order to find the defendant owed a duty to entrants upon the property.
Although a landowner generally owes a duty to lawful entrants to maintain property in a reasonably safe condition, the landowner's duty is limited when a dangerous condition is known or obvious to the entrant.
A landowner is not liable to entrants for injury caused by a known or obvious danger unless the landowner should anticipate the harm despite such knowledge or obviousness.
The determination whether a dangerous condition is open and obvious is generally a question of fact for the trier of fact.

Dettler v. Sprynczynatyk, Director, DOT 2004 ND 54
Docket No.: 20030292
Filing Date: 3/23/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: In an administrative agency appeal, the specifications of error must identify what matters are truly at issue with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.
The purpose of the specificity requirement is to prevent meaningless specifications of error.
Boilerplate specifications of error are insufficient as a matter of law.
A fact-finder can draw reasonable inferences from the evidence.

State v. Schiele 2004 ND 53
Docket No.: 20030294
Filing Date: 3/23/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction for luring a minor by computer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of K.P. (CONFIDENTIAL) (cross-ref. w/20030175) 2004 ND 52
Docket No.: 20040049
Filing Date: 3/10/2004
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: The party moving for a change of venue must establish that the convenience of witnesses and the ends of justice would be promoted by the change.
To modify an alternative treatment order and require hospitalization, the district court must find noncompliance with the terms of the order or find the order is insufficient to prevent the individual under the order from inflicting harm or injuries upon the individual or others.
Any amount of noncompliance with an alternative treatment order is cause for modification.

State v. Wilson 2004 ND 51
Docket No.: 20030112
Filing Date: 3/1/2004
Case Type: Appeal - Criminal - Theft
Author: Neumann, William

Highlight: A defendant challenging the sufficiency of the evidence must show that the evidence, when viewed in the light most favorable to the verdict, supports no reasonable inference of guilt.
Failure to give defendant's requested instruction is not error when the requested instruction misstates the law and when the instruction might unnecessarily confuse the jury.

State v. Pettit 2004 ND 50
Docket No.: 20030244
Filing Date: 3/1/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal conviction for accomplice to manufacturing methamphetamine is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Beaudoin v. South Texas Blood & Tissue Center 2004 ND 49
Docket No.: 20030148
Filing Date: 3/1/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: Removing, preserving, and delivery of body parts involves science or art requiring special skills not ordinarily possessed by lay persons and is governed by the two-year statute of limitations for malpractice.
A process server's service of process upon a corporation's Executive Office Manager will be deemed valid if a corporate employee identifies the Executive Office Manager as a proper person to accept service, the process server reasonably relies on that identifying representation, the Executive Office Manager served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made, and the service results in actual delivery to a person responsible for protecting the corporation's interests in litigation.