Opinions

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.

Flattum-Riemers v. Flattum-Riemers 2003 ND 70
Docket No.: 20020318
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A trial court's decision to change the location of a hearing to a county other than the county of venue will not be reversed on appeal unless the court has abused its discretion.
A party seeking a change of venue under N.D.R.Civ.P. 39.1(b)(1)(C) based upon the convenience of witnesses and furtherance of the ends of justice must demonstrate with specificity the identity of the witnesses, their place of residence, and the nature, necessity, and relevance of their testimony.
A trial court may under N.D.R.Civ.P. 6(d) to shorten the time for serving notice of a motion, and its decision will be reversed on appeal only for an abuse of that discretion.

Wagner v. Miskin 2003 ND 69
Docket No.: 20020200
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: An appellant assumes the consequences and the risk for the failure to file a complete transcript, and if the record on appeal does not allow for a meaningful and intelligent review of alleged error, this Court will decline review of the issue.
A party cannot complain of alleged error on appeal if the party invited the error.
A person making a defamatory statement in a privileged setting is not protected when repeating the defamatory statement in a non-privileged setting.

Interest of B.N. & K.K. (CONSOLIDATED W/20020281) (CONFIDENTIAL) 2003 ND 68
Docket No.: 20020256
Filing Date: 5/6/2003
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: The probability of serious mental and emotional harm to a child may be established by prognostic evidence that a parent's current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.

Nelsen v. N.D. Dept. of Transportation, et al. 2003 ND 67
Docket No.: 20020334
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Per Curiam

Highlight: A judgment affirming a Central Personnel Division order upholding a Department of Transportation decision to terminate an employee is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Norman 2003 ND 66
Docket No.: 20020172
Filing Date: 4/24/2003
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: The DNA database sampling requirements in N.D.C.C. 31-13-03 apply (1) to persons convicted after July 31, 2001, of a listed felony offense; and (2) to persons incarcerated after July 31, 2001, as a result of a conviction for one of the listed offenses.
Only issues which have been thoroughly briefed and argued will be addressed on appeal.
Obtaining a DNA sample under N.D.C.C. 31-13-03 does not violate a person's Fifth Amendment right against self-incrimination.

Spagnolia v. Monasky, et al. 2003 ND 65
Docket No.: 20020203
Filing Date: 4/22/2003
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: A contract is ambiguous when rational arguments can be made for different interpretations.
The intention of the parties to a contract must be gathered from the entire instrument and not from isolated clauses.
An implied trust, whether resulting or constructive, must be established by clear and convincing evidence.
An appellate court is not obligated to engage in unassisted searches of the record for evidence to support a litigant's position.
An appealing party has the burden of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.

Koapke v. Herfendal, et al. 2003 ND 64
Docket No.: 20020177
Filing Date: 4/17/2003
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A referring physician does not have a duty to obtain a patient's informed consent unless the referring physician formally prescribed or performed the procedure.
Retaining a "degree of participation" in the treatment plan associated with a surgery is not enough to create liability on the part of the referring physician.