Opinions

Wilson v. Koppy 2002 ND 179
Docket No.: 20020161
Filing Date: 11/5/2002
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: Mandamous is not available when there is another remedy at law.

Adoption of S.A.L. (CONFIDENTIAL) 2002 ND 178
Docket No.: 20020027
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: A parent can effectively waive the right to court-appointed counsel in a parental termination proceeding. An effective waiver must be a voluntary, knowing, and intelligent relinquishment of the benefits of counsel.

Obrigewitch v. Director, N.D. Dept. of Transportation 2002 ND 177
Docket No.: 20020164
Filing Date: 11/5/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Probable cause to arrest a person for being in actual physical control of a vehicle while under the influence of intoxicating liquor can exist without establishing the location of the ignition key.
Continually avoiding or ignoring a police officer's request to submit to a blood alcohol test can be a refusal to submit to a chemical test.

State v. Aune 2002 ND 176
Docket No.: 20020106
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - Other
Author: Neumann, William

Highlight: A trial court may order a condition of probation requiring the probationer to stay away from a specific place.

Larson v. Norkot Manufacturing, et al. 2002 ND 175
Docket No.: 20020058
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: For a cause of action for an attorney's legal malpractice, there must be damages to the client proximately caused by the attorney's breach of a duty to the client; the statute of limitations does not begin to run until the client has incurred some damages from the alleged malpractice; and the statute of limitations is tolled until the client knows, or with reasonable diligence should know, of the injury, its cause, and the defendant attorney's possible negligence.

Meljie v. ND Workers Comp. Bureau 2002 ND 174
Docket No.: 20020158
Filing Date: 11/5/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: For determining a worker's average weekly wage for receiving a disability benefit, "seasonal employment" includes an occupation that has periods of forty-five consecutive days of not receiving wages.
Under the 1997 version of N.D.C.C. 65-05-09, a disabled employee is entitled to a weekly benefit equal to two-thirds of the employee's gross weekly wage, subject to a minimum of sixty percent of the state's average weekly wage, but not to exceed one-hundred percent of the employee's preinjury net weekly wage, after deducting social security and federal income tax.

Hilgers v. Hilgers 2002 ND 173
Docket No.: 20010208
Filing Date: 11/5/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A decision to appoint a guardian ad litem for a child is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
The trial court errs by not deciding the issue of visitation when both parties present requests for modification that are different from the existing visitation provisions.
The standard of review for the effective date of a child support modification is abuse of discretion. The burden is on the obligor to present sufficient documentation of income to justify a modification.
A party seeking custody modification is entitled to an evidentiary hearing if the party provides sufficient evidence that a material change in circumstances has occurred since the prior order and modification is necessary to serve the best interests of the child.

State v. Fontaine 2002 ND 172
Docket No.: 20020135
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Conviction for simple assault of a correctional officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Leher 2002 ND 171
Docket No.: 20020085
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A police officer approaching a stopped vehicle and inquiring in a conversational manner whether the occupant is okay or needs assistance is not a Fourth Amendment seizure. An officer directing a citizen to exit a parked vehicle, or otherwise ordering a citizen to do something may be a Fourth Amendment seizure.

State v. Fitterer 2002 ND 170
Docket No.: 20020076
Filing Date: 11/5/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Neumann, William

Highlight: Moving papers for a motion to suppress evidence require neither exceptional particularity nor supporting affidavits or other evidence, but must provide adequate notice to the trial court and the prosecution of the issues being raised.
At a motion to suppress hearing, the initial burden is the defendant's to show a prima facie case.