Opinions

Flattum-Riemers v. Peters-Riemers (CONFIDENTIAL) 2001 ND 121
Docket No.: 20000349
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A request for district court review of a judicial referee's findings and order need not specifically recite every issue raised before the referee to preserve those issues for appellate review.
A trial court may allow the filing of affidavits and documents less than 24 hours before a hearing.
Denial of a continuance because of the absence of a material witness is proper when the moving party does not show what the witness would testify to if present, or that the facts desired cannot be proven by other available witnesses, and when there is no showing of diligence to secure the testimony of the witness by deposition or personal appearance at trial.

State v. Schneeweiss 2001 ND 120
Docket No.: 20000295
Filing Date: 7/10/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Defendants have the right to court-appointed counsel at public expense in all felony cases and in all non-felony cases, unless the sentence upon conviction will not include imprisonment, only if they are eligible under the guidelines governing indigency.
Non-indigent defendants also have the right to court-appointed counsel, at their own expense, if they are unable to secure the assistance of counsel.
A trial court has discretion to substitute appointed counsel if a defendant shows good cause for the substitution.
A trial court has discretion to determine whether to grant a continuance of trial to change counsel and may consider the time required for trial preparation and the diligence of the moving party.
Defendants may voluntarily waive their right to counsel, or their conduct may be the functional equivalent of a voluntary waiver, but the waiver must be made knowingly and intelligently.

Tweit v. Erickson 2001 ND 119
Docket No.: 20010055
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Braunagel v. City of Devils Lake 2001 ND 118
Docket No.: 20000342
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Although declaratory and injunctive relief are available to challenge a city's failure to comply with the statutory requirements for annexation of property, they may not be used to test the wisdom of the annexation decision.
Government regulation of land use constitutes a "taking" for public use only when the owner has been deprived of all or substantially all reasonable uses of the property.

State v. Jensen (Consolidated w/20010013 & 20010014) 2001 ND 117
Docket No.: 20010012
Filing Date: 7/10/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal convictions for driving under revocation, driving under the influence, and false report to law enforcement summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Trade 'N Post, L.L.C. v. World Duty Free Americas, Inc, et al. 2001 ND 116
Docket No.: 20000176
Filing Date: 6/14/2001
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: In determining whether there is an implied private right of action under a state statute, the Court should consider whether the plaintiff is one of the class for whose especial benefit the statute was enacted, whether there is any indication of legislative intent to create such a remedy, and whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy.
The party urging an implied right of action bears the burden of proof to establish the legislature intended to create the remedy.
There is no implied private right of action for damages under the Unfair Discrimination Law, N.D.C.C. ch. 51-09, or the Unfair Trade Practices Law, N.D.C.C. ch. 51-10.
A common law tort claim for unlawful interference with business is recognized in this state.
The elements of a claim for unlawful interference with business are: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an intentional and wrongful act of interference; (4) proof that the interference caused the harm sustained; and (5) actual damages to the plaintiff.
In order to recover for unlawful interference with business, the plaintiff must prove that the interfering conduct was independently tortious or in violation of statute.

Demarce v. State (CONSOLIDATED W/20000304) 2001 ND 115
Docket No.: 20000303
Filing Date: 6/13/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of post-conviction relief and motion to reduce sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (6).

Stutsman Co. v. Westereng, et al. 2001 ND 114
Docket No.: 20000308
Filing Date: 6/8/2001
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: A Job Service appeal, in which a base-period employer does not have access to pertinent information available to the other party, does not afford the appellant a fair hearing and is not "conducted in such manner as to ascertain the substantial rights of the parties."
Disclosure of information to a base-period employer who is a party to a claim is necessary "for the proper presentation of a claimant's claim" under the North Dakota Unemployment Compensation Law.

Corbett v. Corbett 2001 ND 113
Docket No.: 20000291
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A trial court's child custody decision and property distribution are findings of fact which will not be reversed on appeal unless clearly erroneous.
Spousal support in an amount to negate child support is inappropriate.
Only court-ordered visitation can be considered in deciding whether there is extended visitation which justifies a downward deviation in the presumptively correct amount of child support.

T.F. James Co. v. Vakoch (cross-ref. w/990223) 2001 ND 112
Docket No.: 20010021
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: In a commercial lease, a provision providing for payment of attorney fees in the event of breach is enforceable and does not violate public policy.
Assignment of a different judge on remand requires balancing numerous competing interests. Reassignment is unnecessary if the integrity of the district court is preserved, litigants are protected from bias, and allegations of bias do not affect fair administration of the law.