Opinions

City of Fargo v. Gullekson 2001 ND 165
Docket No.: 20010101
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: If the police have reasonable and articulable suspicion a vehicle is owned by a driver whose license is suspended, and have reasonable and articulable suspicion the owner was driving the vehicle, an investigatory stop could be made to determine if the crime of driving with a suspended license is being committed.

State v. Gleeson 2001 ND 164
Docket No.: 20010096
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving under suspension based on a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

City of West Fargo v. Ross 2001 ND 163
Docket No.: 20010104
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: If the police have a reasonable and articulable suspicion a certain moving vehicle belongs to a driver whose license is suspended, and the police have a reasonable and articulable suspicion the owner was driving the vehicle, an investigatory stop can be made to determine if the crime of driving with a suspended license is being committed.

Davison v. Wanner 2001 ND 162
Docket No.: 20010088
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: The trial court's dismissal of this civil damages action for failure of proof summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Ballard 2001 ND 161
Docket No.: 20000316
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Judgment of conviction for two counts of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Stockert v. Stockert 2001 ND 160
Docket No.: 20000353
Filing Date: 10/16/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Denial of motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Jensen (Cross-Ref. w/20010012, 13 & 14) 2001 ND 159
Docket No.: 20010097
Filing Date: 10/16/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal conviction for failure to appear after release - bail jumping summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Disciplinary Board v. Gronneberg 2001 ND 158
Docket No.: 20010184
Filing Date: 9/26/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for one year following any application by him for licensure of an inactive attorney under Admission to Practice R. 7.

Dickson v. Dickson (cross-ref. w/960237) 2001 ND 157
Docket No.: 20010011
Filing Date: 9/5/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A custodial parent proposing a move to another state is not required to first seek employment outside the general area.
Although relevant to a custodial parent's proposed move to another state, a comparative cost-of-living analysis is not required.
In considering the location of family members on the noneconomic aspects of a proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties' child.

Warner and Company v. Solberg 2001 ND 156
Docket No.: 20000327
Filing Date: 9/5/2001
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: North Dakota's restraint of business statute prohibits an excessive restraint on a person's exercise of a lawful profession, trade, or business.
If an unreasonable restraining clause can be separated leaving a reasonable agreement, the reasonable clause will be sustained and the unreasonable restraining clause rejected.

Estate of Zimmerman (Consolidated w/20010002) 2001 ND 155
Docket No.: 20000361
Filing Date: 8/30/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: Under the probate law in effect before January 1996, a surviving spouse's property is includable in the decedent's augmented estate to the extent the property was derived from the decedent without full consideration in money or money's worth.
Property distributed to a surviving spouse in a prior divorce from the decedent is derived from the decedent without full consideration in money or money's worth.

Rose v. United Equitable Ins. Co., et al. 2001 ND 154
Docket No.: 20000333
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: A fraud action is not barred by the passage of time until six years after discovery of the facts constituting the fraud.
The purpose of a motion for dismissal for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the statement of the claim presented in the complaint.
When a motion for dismissal for failure to state a claim upon which relief can be granted is made, the complaint is construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true.
A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

State v. Bouck (CONSOLIDATED W/20000347-20000348)(cross-ref. 20010045-46) 2001 ND 153
Docket No.: 20000346
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Contempt of Court
Author: Kapsner, Carol

Highlight: When the law prescribes a place of imprisonment to which a convicted defendant can be sentenced, the court cannot direct a different place of incarceration, and, if it does, the sentence is void and the defendant is entitled to resentencing.

Doan, et al. v. City of Bismarck, et al. 2001 ND 152
Docket No.: 20010042
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Summary judgment rarely should be granted in negligence cases because issues involving reasonableness standards generally are inappropriate for summary disposition.
A landowner owes a duty to lawful entrants to maintain property in a reasonably safe condition in view of all the circumstances and owes a duty to an injured party if the landowner has control over the property where the injury occurred.
Under the doctrine of retained control, an employer who hires an independent contractor is liable for harm to others for whom the employer owes a duty to exercise reasonable care, if the employer retains control of an part of the work and causes harm by failing to exercise such control with reasonable care.
In negligence actions, customs or practices do not necessarily establish the standard of care, but may be evidence of whether conduct meets the general standard of reasonable care under the circumstances.

McKenzie Co. Social Service Bd., et al. v. C.G. (CONFIDENTIAL) 2001 ND 151
Docket No.: 20010047
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A judgment entered without personal or subject matter jurisdiction is void.
Determining the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them.
Affirmative relief is not available under N.D.R.Civ.P. 60(b)(iv).

State v. Wiest 2001 ND 150
Docket No.: 20000306
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Without an objection to testimony at trial, appellate review is limited to determining if its admission constituted obvious error affecting substantial rights.
A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless the court abused its discretion.

Higgins v. Trauger (Consolidated w/20010074) 2001 ND 149
Docket No.: 20010073
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: When a failure to timely redeem from a tax sale is attributable in part to the neglect of the redemptioner, and not wholly to a mistake made by the county auditor, equitable principles do not apply to extend the redemption period.
A person who owes a duty to pay taxes on property and who fails to pay the taxes, cannot in collusion with others purchase tax sale certificates for the property to strengthen the person's title.

Stoppler v. Stoppler 2001 ND 148
Docket No.: 20000330
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
A trial court's determination on visitation is treated as a finding of fact.
To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property.
A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.

Heinz v. Heinz 2001 ND 147
Docket No.: 20000298
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: A lengthy marriage supports an equal division of all marital assets.
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
Spousal support payments must be included in computing monthly net income for child support purposes.

State v. Shafer-Imhoff 2001 ND 146
Docket No.: 20000350
Filing Date: 8/29/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Application of N.D.C.C. 1-02-17 to eliminate the punishment of imprisonment for a criminal statute that was repealed after the criminal act was committed but before conviction, is not an invalid pardon.
A trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of the applicable law.
When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute.
After the jury has advised the court of an impasse, the court may employ more than one N.D.R.Ct. 6.9 option without being advised again of an impasse.

Farmers Alliance Mutual Ins. Co. v. Hulstrand Construction, Inc. 2001 ND 145
Docket No.: 20010054
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: Absent concerted action, there is no third-party claim for contribution among tortfeasors under North Dakota law.
When the parties to a contract agree to modify or alter the terms of their original contract, the new agreement ordinarily must be supported by new or additional consideration.
When the parties to a contract sign a subsequent agreement which is intended to merely clarify or explain the terms of the original contract, no new or additional consideration is necessary.

Eggl v. Letvin Equipment Co. 2001 ND 144
Docket No.: 20000318
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A trial court's determinations on questions of breach of warranty are treated as findings of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a).
Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact.
Questions of nonconformity with a contract, substantial impairment of value, and timely notice of revocation are questions of fact.
The time for discovering a breach of warranty and what is a reasonable time for revocation of acceptance are fact questions.
A buyer's right of revocation is not conditioned upon whether it is the seller or the manufacturer that is responsible for the nonconformity.

Interest of N.H., et al. (CONFIDENTIAL) 2001 ND 143
Docket No.: 20000278
Filing Date: 8/29/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Prognostic evidence is a basis for reasonable predictions about future behavior when determining whether a child's deprivation is likely to continue or will not be remedied. Prognostic evidence includes reports and opinions of professionals.
Lack of parental cooperation with social service agencies is insufficient to establish deprivation but is pertinent to whether deprivation will continue.

Interest of H.G. (CONFIDENTIAL) 2001 ND 142
Docket No.: 20010197
Filing Date: 8/29/2001
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's involuntary commitment order is reviewed under a more probing clearly erroneous standard.
Even though mentally ill, engaging in imprudent business practices is not enough to find a respondent presents a substantial likelihood of dangerousness to property and is, therefore, a person requiring treatment.

Gale v. ND Bd. of Podiatric Medicine 2001 ND 141
Docket No.: 20010032
Filing Date: 7/30/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A party to an administrative proceeding may waive the right to an appeal.

Lapp v. ND Dept. of Transportation 2001 ND 140
Docket No.: 20010040
Filing Date: 7/25/2001
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: In determining whether an officer had a reasonable and articulable suspicion to justify an investigatory stop, the test is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.
Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct.

Rodenburg, et al. v. Fargo-Moorhead Y.M.C.A., et al. 2001 ND 139
Docket No.: 20000279
Filing Date: 7/23/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: In reviewing a jury's findings, the evidence is viewed in the light most favorable to the verdict and the court determines only if substantial evidence supports it.
A motion for a new trial is addressed to the sound discretion of the trial court.
If nonresidents purposely direct their activities toward North Dakota, a North Dakota court may be justified in exercising personal jurisdiction over them.
Under North Dakota's comparative fault law, "fault" includes negligent and intentional conduct; a negligent tortfeasor's conduct is compared with an intentional tortfeasor's conduct, and their liability is several, not joint, with each being liable only for the amount of damages attributable to that party.

Selzler v. Selzler 2001 ND 138
Docket No.: 20000247
Filing Date: 7/20/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given.
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the proceeding.

Interest of R.O., et al. (CONFIDENTIAL)(CONSOLIDATED W/20000307) 2001 ND 137
Docket No.: 20000305
Filing Date: 7/20/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: In a parental-rights-termination proceeding alleging reports of child abuse or neglect, N.D.C.C. 50-25.1-10 abrogates the physician-patient and psychotherapist-patient privilege in N.D.R.Ev. 503.
Constitutional issues may not be raised for the first time on appeal.
Under federal law, upon a finding of good cause, a trial court may order disclosure of information about a person's alcohol or drug treatment at a federally assisted facility, but the court must restrict disclosure to essential matters.

State v. Heitzmann (Cross-Ref. w/20000312) 2001 ND 136
Docket No.: 20010017
Filing Date: 7/20/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: There is no automatic-search rule for companions of an arrestee.
If an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is in fact a weapon.
A more intrusive Terry search may be constitutionally permissible when the detainee attempts to prevent an officer from performing an effective pat-down.
Officers are entitled to use the forcible means reasonably necessary to effectuate the detentive goals of investigation, maintenance of the status quo, or officer safety.

State v. Kelly 2001 ND 135
Docket No.: 20000293
Filing Date: 7/20/2001
Case Type: Appeal - Criminal - Assault
Author: Neumann, William

Highlight: Inmate disciplinary proceedings and the resulting consequences are civil in nature.
Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial, does not affect substantial rights of the parties, and is harmless error.

Name Change of State Bar Board to Board of Law Examiners 2001 ND 134
Docket No.: 20010181
Filing Date: 7/20/2001
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

State v. Holte, et al. 2001 ND 133
Docket No.: 20010029
Filing Date: 7/20/2001
Case Type: Original Proceeding - Criminal - Writ of Certiorari
Author: VandeWalle, Gerald

Highlight: It is an affirmative defense to the strict liability crime of violating a domestic violence protection order that the defendant's acts were innocent or mistaken.

State v. Miller 2001 ND 132
Docket No.: 20000337
Filing Date: 7/20/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A trial court does not abuse its discretion or violate the defendant's right to present a defense when it excludes hearsay evidence about a dream the child-victim had about another male relative.
A trial court does not abuse its discretion when it excludes evidence which would have been merely cumulative of abundant other evidence establishing a fact.
As long as the defendant and witness are present in the courtroom and their view of each other is not physically obstructed, the Confrontation Clause is not violated by allowing the witness to testify while facing away from the defendant.

Kraft v. ND State Board of Nursing 2001 ND 131
Docket No.: 20000320
Filing Date: 7/20/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: An agency's findings of fact are reviewed to determine if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.
A registered nurse's refusal to submit to chemical testing, as required by employer policy, violates nursing standards.
A registered nurse's conviction for simple assault, without evidence of rehabilitation, violates nursing standards and relates adversely to the practice of nursing.
After participating in an adjudicative hearing in a position adversarial to the claimant, an agency's counsel improperly communicates with the agency if the communications regarding an issue in the proceeding are without notice and opportunity for all parties to participate.

US Bank v. Arnold 2001 ND 130
Docket No.: 20010071
Filing Date: 7/13/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Whether a telephone call is an appearance entitling a defendant to eight days' notice before a hearing on an application for default judgment is generally a question of law, fully reviewable on appeal. When the nature, content, and purpose of the call is disputed, underlying factual questions are reviewed for clear error.
Relief from default judgment is extraordinary; a party seeking to disturb the finality of default judgment bears a heavy burden of proving the district court abused its discretion. To vacate default judgment, the moving party must present evidence connecting allegations of a medical condition, a busy schedule, or familial illness with excusable neglect.

Interest of P.M., et al. (CONFIDENTIAL) 2001 ND 129
Docket No.: 20000263
Filing Date: 7/13/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court's order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matrix v. TAG Investments (Cross-ref. w/990336, 20000192 & 20000356) 2001 ND 128
Docket No.: 20010060
Filing Date: 7/13/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Post-judgment orders summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7), and double costs awarded under N.D.R.App.P. 38 and 39.

Interest of T.K. (Consolidated w/20000329) 2001 ND 127
Docket No.: 20000328
Filing Date: 7/10/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: Parents' fundamental and natural rights to their children are of constitutional dimension, but they are not absolute, and parents must at least provide care to their children that satisfies the minimum community standards.
When the mental and physical health of a child are the concerns, it is not enough that a mother indicates a desire to improve, and her failure to cooperate with social service assistance programs is a relevant factor in terminating parental rights.

Heyen v. State 2001 ND 126
Docket No.: 20000310
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An application for post-conviction relief is denied if the same claims have been fully and finally determined in a previous post-conviction proceeding. It is a misuse of process to raise issues in a subsequent post-conviction application which could have been raised in the initial application.

Anderson v. Meyer Broadcasting Co. 2001 ND 125
Docket No.: 20000322
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: An employee alleging age discrimination under the North Dakota Human Rights Act must establish she is at least forty years old and persons under forty years old were treated more favorably.
An employee alleging disparate treatment sex discrimination under the Human Rights Act must identify specific instances in which persons situated similarly in all relevant aspects were treated differently.
An employee alleging retaliatory discharge bears the burden of showing she engaged in protected activity, her employer took adverse action against her, and there was a causal connection between her protected activity and the employer's adverse action.

Hoverson v. Hoverson 2001 ND 124
Docket No.: 20000227
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Economic misconduct requires misconduct which results in waste of marital assets or reduction of the net marital estate.
A trial court must provide sufficient explanation for its property distribution to permit a reviewing court to determine the basis for its distribution.
In calculating an obligor's deduction from net income for tax obligations, a hypothetical federal income tax obligation specified in the child support guidelines must be used..

Myer, et al. v. Rygg 2001 ND 123
Docket No.: 20000257
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A trial court's decision on qualification of a witness as an expert will not be reversed on appeal unless it was an abuse of discretion.
If an expert's knowledge, training, education, and experience will assist the trier of fact, the expert need not be a specialist in a highly particularized field or have a formal title or particular license.
The trial court has wide discretion to determine an appropriate sanction for violation of discovery rules.

Berg v. Dakota Boys Ranch Assoc. 2001 ND 122
Docket No.: 20000301
Filing Date: 7/10/2001
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Neumann, William

Highlight: If summary judgment is denied, the proper procedure is to move for judgment as a matter of law at the close of the evidence, and the denial of that motion may be reviewed on appeal.
A party raising an argument in a summary judgment motion but abandoning the argument at trial has not preserved the issue for appellate review.
A trial court does not err in admitting a release into evidence if the release was offered for a purpose other than proving liability or the amount of the claim.

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.

Interest of A.B. (CONFIDENTIAL) 2001 ND 111
Docket No.: 20010016
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Juvenile Law
Author: Neumann, William

Highlight: If juvenile delinquency proceedings are begun in a court other than in the county of the child's residence, that court must transfer the proceedings for disposition to the juvenile court of the county of the child's residence, if the child has been adjudicated delinquent and other proceedings involving the child are pending in that court.

Moen, et al. v. Thomas, et al. (CROSS-REFERENCE W/20000169) 2001 ND 110
Docket No.: 20000111
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: The existence of an attorney-client relationship is ordinarily a question of fact.

Johnson v. Johnson 2001 ND 109
Docket No.: 20000309
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A finding by the trial court as to future intentions of a party is not affected by a subsequent decision by that party to engage in conduct contrary to the finding, and the subsequent conduct does not constitute grounds for a new trial on the basis of newly discovered evidence.
An irregularity in proceedings that will justify a new trial is one that prevents a party from having a fair trial.

Demming v. Demming 2001 ND 108
Docket No.: 20000363
Filing Date: 6/8/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

State v. Abnar (CONSOLIDATED w/20000288) 2001 ND 107
Docket No.: 20000287
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgments of conviction for possession of drug paraphernalia and possession of a controlled substance with intent to deliver are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Aune (cross-ref. w/20020106) 2001 ND 106
Docket No.: 20000294
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: The trial court's judgment of conviction for a violation of N.D.C.C. 12.1-10-05 is affirmed under N.D.R.App.P. 35.1(a)(1).

State v. Schwartz 2001 ND 105
Docket No.: 20000339
Filing Date: 6/8/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Jury verdict of guilty on two counts of misdemeanor sexual assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4).

Jorgenson, et al. v. Agway, Inc. 2001 ND 104
Docket No.: 20000300
Filing Date: 5/25/2001
Case Type: Certified Question - Civil - Civil
Author: VandeWalle, Gerald

Highlight: North Dakota's Consumer Fraud Act, N.D.C.C. ch. 51-15, applies to a farmer who purchases confection sunflower seed for use in cultivating a sunflower crop for subsequent sale and who alleges the seed is defective and marketed in violation of the Act.

Larson v. Norkot Manufacturing, et al. 2001 ND 103
Docket No.: 20000321
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The discovery rule tolls the statute of limitations in malpractice actions until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
To trigger the running of the statute of limitations, a plaintiff need not fully appreciate the potential liability or be convinced of his or her injury, but need only know enough to be on notice of a potential claim.

Remmick v. Whitman, et al. 2001 ND 102
Docket No.: 20000364
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The interest of a recorded mineral deed grantee, who is not a named party in a subsequent action to foreclose a mortgage on the real property, is not affected by the foreclosure action.

Triple Quest, Inc. v. Cleveland Gear Co., Inc. 2001 ND 101
Docket No.: 20000281
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An order dismissing an action without prejudice on the ground that jurisdiction or venue is proper in another state based on a contractual forum selection clause is appealable.
When an interest has been transferred during an action, the transferee need not be substituted or joined as a party to have standing to pursue an appeal.

Estate of Schmidt (cross-ref. w/970183) 2001 ND 100
Docket No.: 20000258
Filing Date: 5/24/2001
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author:

Highlight: Appeal of eleven orders in probate case summarily affirmed under N.D.R.App.P. 35.1(a)(1) (appeal is frivolous and completely without merit).

State ex rel. Olson v. Harrison, et al. 2001 ND 99
Docket No.: 20000282
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: The State has not consented to suit without proper service of process.
Where no official with authority to accept service of process for the State was served in accordance with N.D.R.Civ.P. 4, the State has not been properly served.
When a tribal court does not have personal jurisdiction over the State, the tribal court's order is not appropriate for recognition as a matter of comity.
When a tribal court's order is not appropriate for recognition as a matter of comity, the State is not required to exhaust remedies available in tribal court.

Christl v. Swanson (Cross-Ref. W/19990256) 2001 ND 98
Docket No.: 20000315
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Under the Child Support Guidelines, prior to the August 1, 1999 amendments, the district court could deduct from an obligor's adjusted gross income business costs actually incurred and paid, but not expensed for internal revenue purposes.

Eaton v. State 2001 ND 97
Docket No.: 20010003
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A criminal defendant waives nonjurisdictional defects by entering a knowing and voluntary guilty plea.
Violations of the Interstate Agreement on Detainers Act that do not deprive the district court of personal jurisdiction are waived by a guilty plea.
The burden of proving a basis for post-conviction relief rests on the petitioning defendant.

Sollin, et al. v. Wangler, et al. 2001 ND 96
Docket No.: 20000284
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: A trial court should give an ultimate-outcome instruction informing the jury how its liability apportionment will affect an award of damages if the instruction is properly requested and the instruction will not confuse or mislead the jury.

Moen, et al. v. Thomas, et al. (CROSS-REFERENCE W/20000111) 2001 ND 95
Docket No.: 20000169
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: Statements of assent to an alleged oral contract are not hearsay but constitute a verbal act.
Parties to a lease may by mutual consent terminate, alter, or amend their agreement.

Rask, et al. v. Nodak Mutual Ins. Co. 2001 ND 94
Docket No.: 20000311
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Insurance
Author: Neumann, William

Highlight: In determining whether a vehicle is an underinsured motor vehicle, only the policy insuring that motor vehicle is considered.

Schuck v. Montefiore Public School Dist. No. 1 2001 ND 93
Docket No.: 20000299
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Employees are required to exhaust available administrative remedies prior to pursuing their claim in court.

State v. Rue 2001 ND 92
Docket No.: 20000317
Filing Date: 5/22/2001
Case Type: Appeal - Criminal - Other
Author: Sandstrom, Dale

Highlight: Arrests for probation violations may be made by court order or on probable cause.
A probation violator, detained on a court order of apprehension for probation violations, is detained "pursuant to" conviction of an offense, and escape from such detention is a felony offense.
Due process requires the State to prove, beyond a reasonable doubt, every element of an offense.

McDowell, et al. v. Gillie, et al. 2001 ND 91
Docket No.: 20000269
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act.
Generally, issues involving the reasonable person standard and a person's subjective state of mind are inappropriate for disposition by summary judgment.

James, et al. v. Griffin, et al. 2001 ND 90
Docket No.: 20000216
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20-year period for establishing acquiescence begins running anew.

Kinzley v. Kinzley 2001 ND 89
Docket No.: 20000277
Filing Date: 5/7/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Fox v. Fox (cross-ref. w/980198) 2001 ND 88
Docket No.: 20000231
Filing Date: 5/4/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A choice between two permissible views of the evidence is not clearly erroneous when the trial court's findings are based either on physical or documentary evidence or inferences from other facts or on credibility determinations.
A court's valuation of marital property is dependent upon the evidence presented by the parties.

Estate of Murphy, et al. v. Maus, et al. 2001 ND 87
Docket No.: 20000180
Filing Date: 5/3/2001
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: To prevail in a legal malpractice action, a plaintiff must establish the attorney's malpractice proximately caused damage to the plaintiff.

Disciplinary Board v. Howe 2001 ND 86
Docket No.: 20000341
Filing Date: 5/3/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law for 120 days when the hearing panel has found clear and convincing evidence of professional conduct violations involving lack of diligence, communication, and expediting litigation, as well as a disciplinary history of five prior disciplinary sanctions.
Prior discipline is not remote, but is relevant as an aggravating factor when the prior incidents establish a pattern of misconduct.
Disciplinary counsel may reasonably bill attorney fees at $75 per hour, which may be assessed against the attorney whose misconduct warranted the imposition of discipline.

Davis v. State 2001 ND 85
Docket No.: 20000335
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A trial court is authorized to resentence a defendant who violates conditions of probation to any sentence that was initially available. Resentencing a defendant to a harsher sentence than his original sentence imposed does not violate double jeopardy or due process.

State v. Ellis (Cross-reference w/20000006) 2001 ND 84
Docket No.: 20000092
Filing Date: 5/1/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue under N.D.R.Crim.P. 21 has the burden of establishing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury cannot be selected in the county of original venue.
Except under N.D.C.C. 12.1-17-02(4), which involves firing a firearm or hurling a destructive device at another human being, aggravated assault is not a lesser included offense of attempted murder.
In sentencing a defendant, a trial court may consider a conviction that was pending appeal during the sentencing hearing.

Interest of C.R.C. (CONFIDENTIAL) 2001 ND 83
Docket No.: 20000286
Filing Date: 5/1/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: Termination of parental rights is appropriate when the State proves by clear and convincing evidence that a child is deprived and the deprivation is not due primarily to a lack of financial resources; the causes and conditions of the deprivation will likely continue or will not be remedied; and the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm from the deprivation.

State v. Paulson, et al. 2001 ND 82
Docket No.: 20000302
Filing Date: 5/1/2001
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Kapsner, Carol

Highlight: The failure of the parents of an injured person "incapacitated by the injury from giving the notice" to present the director of the office of management and budget a notice of claim within 180 days of discovery of the injury does not preclude the injured person from suing the State.

ND Fair Housing Council, Inc., et al. v. Peterson, et al. (CON w/20000197) 2001 ND 81
Docket No.: 20000130
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Constitutional Law
Author: Sandstrom, Dale

Highlight: Attorney General's opinions interpreting statutes do not bind the Court but will be followed if persuasive. Attorney General's opinions are afforded even greater consideration when they have been impliedly adopted by the legislature.
Refusing to rent to an unmarried couple because they are seeking to cohabit is not unlawful under the discriminatory housing practices provision of the North Dakota Human Rights Act.

Praus, et al. v. Mack, et al. 2001 ND 80
Docket No.: 20000106
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A trial court may grant parties on a side of litigation additional peremptory challenges if they have essentially adverse or antagonistic interests.
An expert witness may not be permitted to express an opinion if the facts disclosed by the evidence are such that it may be assumed the jury is capable of understanding them and arriving at its own conclusion.
A trial court's failure to instruct the jury about the violation of a safety regulation is not prejudicial error, if the complaining party had the opportunity to argue the theory to the jury and the instructions given allowed for a finding of negligence if the jury believed the complaining party's evidence.
Jury instructions on legal principles which illustrate how negligence law is applied in a specific situation are not indispensable if the parties are allowed to argue their theory of the case and the instructions given adequately inform the jury of the law.
One or more jurors in a civil case making an improper unauthorized visit to the scene of the accident is not prejudicial in the absence of a showing it influenced the verdict.

Young v. Johnson 2001 ND 79
Docket No.: 20000336
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Appeal from district court order granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Yantzer v. Yantzer 2001 ND 77
Docket No.: 20000324
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Trial court's order denying a motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. McHugh 2001 ND 76
Docket No.: 20000354
Filing Date: 5/1/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction for gross sexual imposition based on a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3),(4).

Halvorson v. Halvorson 2001 ND 75
Docket No.: 20000290
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Judgment denying a motion for reconsideration of a child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Minar v. Minar 2001 ND 74
Docket No.: 20000179
Filing Date: 4/17/2001
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor's child support obligation.
Under the child support guidelines, an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
The child support guidelines must be applied using common sense and in consideration of the circumstances.
A court may delay payment of a portion of child support when the obligor's income is temporarily reduced.
Every child support order entered in this state must address health insurance coverage for the child.

Dahlberg v. Lutheran Social Services, et al. 2001 ND 73
Docket No.: 20000152
Filing Date: 4/17/2001
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Maring, Mary

Highlight: An employer is not contractually bound to follow a progressive discipline policy where an employee handbook and the progressive discipline policy, construed as a whole, preserved the employment at-will presumption.
A plaintiff claiming intentional infliction of emotional distress must show extreme and outrageous conduct that exceeds all possible bounds of decency.
A prima facie case for retaliatory discharge requires an employee to show the employee has engaged in protected activity, the employer took adverse action against the employee, and the existence of a causal connection between the employee's protected activity and the employer's adverse action.
To be protected activity, an employee's report of a violation or suspected violation of law must be made for the purpose of exposing an illegality, and the reporter's purpose must be assessed at the time the report is made.

Wright v. ND Workers Comp. Bureau 2001 ND 72
Docket No.: 20000292
Filing Date: 4/17/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, information or evidence that has not been offered, admitted, and made a part of the official record of the proceeding generally is not considered by the administrative agency. N.D.C.C. 28-32-06(2).
An injured employee who has undergone vocational rehabilitation is responsible for making a good faith work search.
To be eligible for partial disability benefits, an injured employee must provide evidence of a loss of earning capacity.

Interest of D.N., D.N., C.N., Children (CONFIDENTIAL)(Consol. w/20000235) 2001 ND 71
Docket No.: 20000234
Filing Date: 4/12/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: When there has been an extensive period in which efforts have been made to overcome inabilities to effectively parent, the courts cannot allow the children to remain in an indeterminative status midway between foster care and the obvious need for permanent placement.

Dowhan v. Brockman, et al. 2001 ND 70
Docket No.: 20000249
Filing Date: 4/12/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The question of who is a prevailing party for an award of disbursements is a question of law, subject to de novo review, while the question of the amounts to be allowed for disbursements is one of fact, subject to an abuse-of-discretion standard of review.
A prevailing party for an award of disbursements is one who prevails on the merits of the main issue.

Hentz v. Hentz 2001 ND 69
Docket No.: 20000239
Filing Date: 4/12/2001
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Past unreasonable behavior in withholding contact between the noncustodial parent and the child is a relevant fact for the trial court to weigh in considering the custodial parent's motion to relocate to another state.

Interest of M.S. (CONFIDENTIAL) 2001 ND 68
Docket No.: 20000183
Filing Date: 4/12/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: To terminate the parental rights for an Indian child, the Indian Child Welfare Act requires proof beyond a reasonable doubt that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
To terminate parental rights for an Indian child, the Indian Child Welfare Act requires proof by clear and convincing evidence that there were active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful.
When cultural bias is not implicated in parental termination proceedings, the requirement of qualified expert witness testimony under the Indian Child Welfare Act can be met with testimony of a professional person having substantial education and experience in the area of his or her speciality even though that professional does not have specific experience or knowledge of Indian customs, tradition, or culture.

Midwestern Enterprises, Inc. v. Stenehjem 2001 ND 67
Docket No.: 20000168
Filing Date: 4/12/2001
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: "Gambling apparatus" means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons, or gambling by a person involving the playing of a machine.
"Coin-operated gaming device" means any machine that is a so-called "slot" machine that operates by means of the insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens.

State v. Duchene 2001 ND 66
Docket No.: 20000209
Filing Date: 4/11/2001
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Misleading statements made knowingly and intentionally or with reckless disregard are stricken from an affidavit in support of search warrant, and the affidavit's remaining contents are examined to determine whether that information is sufficient to establish probable cause.

State v. Klein 2001 ND 65
Docket No.: 20000285
Filing Date: 4/11/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Appeal from criminal judgment and commitment following a jury verdict of guilty is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).