Opinions

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.

Swancy v. Tjon, et al. 2004 ND 35
Docket No.: 20030263
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment dismissing tort claims after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

United Community Bank v. Delorme, et al. (Consolidated w/20030262) 2004 ND 34
Docket No.: 20030251
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Foreclosure
Author: Per Curiam

Highlight: Judgment granting foreclosure and order approving sheriff's sale are summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Swensrud v. Gates 2004 ND 33
Docket No.: 20030232
Filing Date: 2/25/2004
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Distribution of property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Judicial Vacancy in District Judgeship No. 4, Northwest Judicial District 2004 ND 32
Docket No.: 20040017
Filing Date: 2/18/2004
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Minot.

Morton Co. S.S.B., et al. v. Schumacher 2004 ND 31
Docket No.: 20030226
Filing Date: 2/2/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Use of a dangerous weapon without domestic violence is not enough to create a rebuttable presumption against awarding custody under N.D.C.C. 14-09-06.2(1)(j).
Under some circumstances, destroying property with a dangerous weapon could be domestic violence.
If a presumption against custody arises under N.D.C.C. 14-09-6.2(1)(j), the presumption must be rebutted by clear and convincing evidence.
Clear and convincing evidence to rebut a presumption against custody may require the accused to demonstrate why custody with the accuser is not in the child's best interests.
Clear and convincing evidence exists to rebut the presumption when none of the "best interests of the child" factors favor the other party.

State v. Bollingberg (Consolidated w/20020349 & 20020350) 2004 ND 30
Docket No.: 20020348
Filing Date: 1/28/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A court may look to other parts of a search warrant to determine whether the command portion suffers from a clerical error.
When there is no indication of any logical reason why a requested search was prohibited in a search warrant, this may be evidence of a clerical error.

First Union National Bank v. RPB 2, LLC, et al. 2004 ND 29
Docket No.: 20030021
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Consideration is not required for the release or waiver of a mechanic's lien to be effective.
Once a lien claimant files a signed waiver or release of a mechanic's lien, the lien may not be revived by the subsequent filing of another lien.
Fraud in procuring release of a mechanic's lien must be proved by clear and convincing evidence.