Opinions

Blomdahl v. Blomdahl 2011 ND 78
Docket No.: 20100053
Filing Date: 4/13/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A motion for contempt under N.D.C.C. 14-05-25.1 is not an "action upon the judgment" for purposes of applying the ten-year statute of limitations in N.D.C.C. 28-01-15.
For a contempt finding under N.D.C.C. 14-05-25.1, there must be a violation of a valid and existing court order, judgment, or decree.

Christensen v. N.D. Dep't of Human Services 2011 ND 77
Docket No.: 20100263
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: An applicant for Medicaid benefits has the responsibility to provide information sufficient to establish eligibility and has the burden of proving an asset is not actually available.

Matter of Wolff 2011 ND 76
Docket No.: 20100290
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: In civil commitment cases, the State must clearly show the committed individual's personality disorder is likely to manifest itself in a serious difficulty in controlling his or her behavior.
The conduct evidencing the committed individual's serious difficulty in controlling his or her behavior need not be sexual in nature.

Schumacker v. Schumacker 2011 ND 75
Docket No.: 20100282
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Merely conflicting allegations in affidavits and moving papers for a change in primary residential responsibility of parties' children must be resolved at an evidentiary hearing, unless the party opposing the movant has conclusively proved the movant's allegations are insufficient or have no credibility.
Pre-divorce conduct can be relevant for a change of custody when the divorce was stipulated and the trial court was unaware of the facts at the time of the stipulation.
Inadmissible hearsay statements are not competent evidence supporting a prima facie case for a change of primary residential responsibility.
Statements by declarants on their state of mind and emotion fit an exception to the hearsay rule and are competent evidence.

Swanson, et al. v. Swanson, et al. 2011 ND 74
Docket No.: 20090289
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Every person who has actual notice of circumstances sufficient to put a prudent person on inquiry and who omits to make such inquiry with reasonable diligence is deemed to have constructive notice of all facts such inquiry would have disclosed had it been properly pursued.
The information sufficient to put a prudent person on inquiry may consist of a statement made by the claimant of the adverse ownership right. The information need not be so full or detailed as to communicate a complete description of the adverse interest if it creates a reasonable belief a conflict right exists as a fact.
To comply with the requirement for a reasonably diligent inquiry, a prospective purchaser with actual notice of circumstances sufficient to put a prudent person on inquiry must, at the very least, conduct a record search. If a purchaser fails to make a reasonably diligent inquiry, the purchaser cannot claim the protection of a good-faith purchaser status.

Matter of J.G. (CONFIDENTIAL) 2011 ND 73
Docket No.: 20100366
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying petition for discharge from commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Trowbridge 2011 ND 72
Docket No.: 20100363
Filing Date: 4/12/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order granting motion to reduce sentence summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Disciplinary Board v. Rozan 2011 ND 71
Docket No.: 20110031
Filing Date: 4/6/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Discipline ordered for lawyer.

Thompson, et al. v. Schmitz, et al. (cross-reference w/20080191) 2011 ND 70
Docket No.: 20100248
Filing Date: 3/28/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An award of attorney's fees and pre-judgment interest is permitted under the Business Corporations Act when a district court finds an officer or director of a corporation violates fiduciary duties or finds a party to have acted arbitrarily, vexatiously, or otherwise not in good faith.
The district court may award expert witness fees, including fees for experts who do not testify, under the Business Corporations Act.

Kost v. Kraft 2011 ND 69
Docket No.: 20100159
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The receipt and acceptance of leased goods need not be exclusively referable to an alleged oral lease agreement, and conduct consistent with an oral agreement is sufficient to take a claimed oral lease agreement out of the statute of frauds even though the conduct is not inconsistent with some other plausible arrangement between the parties.
A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law.

Loper v. Adams 2011 ND 68
Docket No.: 20100101
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: The district court has discretion in determining appropriate sanctions for a party's failure to timely supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert's testimony.
A party moving for enlargement of time under N.D.R.Civ.P. 6(b)(2) after the original deadline has passed has the burden to demonstrate that his failure to timely comply was the result of excusable neglect, and the district court has broad discretion in determining whether to allow additional time.
The determination whether certain conduct is a superseding, intervening cause is a question of fact.

Klug et al. v. City of Minot 2011 ND 67
Docket No.: 20100217
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A home rule city may enact ordinances that supersede state laws regulating police pension plans.
A member of a defined benefit plan does not have a claim to particular assets that are part of the general asset pool and is not entitled to a share of the surplus assets.

State v. Norman (cross-ref. 20020172) 2011 ND 66
Docket No.: 20100296
Filing Date: 3/25/2011
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Appeal from a trial court order denying the State's motion requiring DNA sample summarily dismissed under N.D.R.App.P. 35.1(a)(1) and (a)(7).

Grand Forks Homes, Inc., et al. v. State of North Dakota 2011 ND 65
Docket No.: 20100198
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: The State Board of Equalization has no authority under state law to reclassify locally assessed property as exempt from taxation.
Timely filing of an appeal from a decision of a board of county commissioners is mandatory to invoke a district court's appellate subject matter jurisdiction over the appeal.

Johnson, et al. v. Hovland, et al. 2011 ND 64
Docket No.: 20100043
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A district court has wide discretion in deciding whether to permit amended pleadings after the time for an amendment has passed, and the court does not abuse its discretion in denying a motion to amend the complaint when a proposed amendment would be futile.
If leave to amend is not sought until after discovery has closed and a summary judgment motion has been docketed, a proposed amendment is properly classified as futile unless the allegations of the proposed amended complaint are supported by substantial evidence.
A party seeking reformation of a written instrument must establish by clear and convincing evidence that the document does not state the parties' intended agreement. Courts grant the high remedy of reformation only upon the certainty of error.

Collection Center v. Bydal 2011 ND 63
Docket No.: 20100093
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party to a joint obligation who satisfies more than that party's share of the claim against all obligors may require a proportionate contribution from all the parties joined with that party, and disproportionate contribution may be allowed if the parties have agreed to a different allocation on their liability or one of the comakers has received a disproportionate benefit from the transaction.
After an assignment, the assignee of a nonnegotiable chose in action acquires no greater rights than held by the assignor and is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor, and to all other defenses and equities that could have been asserted against the assignor at the time of the assignment.
Under N.D.R.Civ.P. 12(f), the district court has discretion either upon a motion by a party or on its own to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in a pleading.
If a plaintiff files an amended complaint that changes the theory or scope of the case, the defendant may plead as though it were responding to the original complaint and add new counterclaims without requesting leave of court.
Under N.D.R.Civ.P. 13(a), if a claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim, it is a compulsory counterclaim and must be pleaded in response to the opposing party's pleading. Under Rule 13's "opposing party" requirement, when a plaintiff has brought suit in one capacity, the defendant may not counterclaim against the plaintiff in a different capacity.

Prchal v. Prchal 2011 ND 62
Docket No.: 20100128
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Whether contempt has been committed lies within the district court's sound discretion, which will not be overturned on appeal absent a clear abuse of that discretion.
To modify parenting time, the moving party must demonstrate a "material change in circumstances" has occurred since entry of the previous parenting time order and the modification is in the child's "best interests."
The district court has continuing jurisdiction after a divorce judgment has been entered over matters pertaining to parenting rights and responsibilities of the children of the marriage.
Both the decision to appoint a parenting coordinator and to order counseling are committed to the district court's sound discretion.

State v. Tompkins 2011 ND 61
Docket No.: 20100234
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Law enforcement has no duty to assist an accused in obtaining an independent blood-alcohol test. Once a reasonable request is made for an independent test, however, law enforcement must not interfere to the extent a reasonable opportunity to obtain the test is denied.
In addition to the obligation to pay for all costs associated with the independent blood-alcohol test, N.D.C.C. 39-20-02 affords an accused only the right to have the test performed, to choose the professional to administer the test, and to receive the test results.

Carkuff, et al. v. Balmer, et al. 2011 ND 60
Docket No.: 20100099
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The language of a deed, if clear and explicit, governs its interpretation, and the parties' mutual intentions must be ascertained from the four corners of the deed, if possible.
A quitclaim deed conveys only the grantor's interest or title, if any, in property, rather than the property itself.
Generally, after-acquired title by the grantor will not inure to the benefit of the grantee under a quitclaim deed.
Use of the word "grant" in a quitclaim deed which conveyed only a grantor's "right, title and interest" in the property did not operate to pass after-acquired property rights to minerals interests.

Interest of Vondal 2011 ND 59
Docket No.: 20100221
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Under N.D.R.Civ.P. 52(a), a trial court must find the facts specially and state separately its conclusions of law.

Nelson v. State 2011 ND 58
Docket No.: 20100383
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Order summarily dismissing application for post-conviction relief is remanded under N.D.R.App.P. 35(a)(3).

Stephenson v. Stephenson 2011 ND 57
Docket No.: 20100237
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: All property, including retirement accounts, must be included in a marital estate before the court can determine an equitable property division.
When dividing a pension or retirement plan, a court may award the present value of the benefits or it may award a percentage of future payments if the parties cannot agree upon the present value or if there are insufficient assets for a present division.
When parties remarry after a prior divorce, all of the parties' assets become marital property again and are subject to an equitable distribution.

State v. Christian (consolidated w/20100191 & 20100192) 2011 ND 56
Docket No.: 20100190
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Circumstantial evidence alone can be sufficient to sustain a jury's guilty verdict if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant is guilty beyond a reasonable doubt.
Constructive possession can be inferred from a totality of the circumstances.
Section 19-03.1-23(7), N.D.C.C., prohibits the possession of cocaine, regardless of the amount.

Berger v. N.D. Dept. of Transportation 2011 ND 55
Docket No.: 20100189
Filing Date: 3/22/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A hearing officer conducting an adjudicative administrative proceeding has broad discretion over the progress and conduct of the hearing, including scheduling and continuing the hearing.

Silliman v. All American Biodiesel, Inc. 2011 ND 54
Docket No.: 20100257
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Res ipsa loquitur for fire damage requires that the accused party had control over the instrumentality that caused the fire, not merely the location of the fire.
Not the mere occurrence of a fire but rather the circumstances under which the fire originated and spread gives rise to the application of res ipsa loquitur.

Lund v. Lund 2011 ND 53
Docket No.: 20100147
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Whether to grant a continuance lies within the sound discretion of the district court, and its decision to deny a motion for a continuance will not be reversed on appeal absent an abuse of discretion.
The mere fact that a judge has previously ruled against a party in the same or a prior proceeding does not demonstrate bias requiring disqualification.

Interest of G.L.D. (CONFIDENTIAL) 2011 ND 52
Docket No.: 20100230
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: To preclude discharge from treatment as a sexually dangerous individual, the State must prove by clear and convincing evidence that the committed individual remains a sexually dangerous individual and has serious difficulty controlling his or her behavior.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.

Interest of L.T. (CONFIDENTIAL) 2011 ND 51
Docket No.: 20110040
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. 25-3.1-15, waiver of a mental health respondent's right to be present at a hearing cannot be found on the basis of only his or her failure to appear at the treatment hearing.

Grand Forks Homes, Inc., et al. v. Grand Forks Bd. of Co. Comm'r(cons. 20100202) 2011 ND 50
Docket No.: 20100197
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A district court's decision whether to order the taking of additional evidence under N.D.C.C. 28-34-01(3) is discretionary.
The basic concept of charity is to provide a gift to assist those in need.
Restricting the use of property for charitable purposes such as providing housing for the handicapped, the elderly, or persons with low incomes does not alone suffice to qualify for a charitable tax exemption.

State v. Erickson 2011 ND 49
Docket No.: 20100285
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: An acquittal, as distinguished from a dismissal quashing an information, is determined by the substance of the judge's ruling.
An order quashing an information is appealable, but a judgment of acquittal is not.
The district court must have a sufficient legal basis to dismiss a criminal charge.
When a court dismisses a criminal action sua sponte, it is required to give the parties notice of its intent to do so and an opportunity to respond.

State v. Johnson (consolidated w/20100241-20100242) 2011 ND 48
Docket No.: 20100240
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers, not weighed in individual layers but in the laminated total.
An application for a warrant that is based upon stale information of previous misconduct is insufficient because it does not establish probable cause that similar or other improper conduct is continuing to occur.

State v. Sauer 2011 ND 47
Docket No.: 20100164
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The prosecution has a duty to disclose documents and data a defendant requests in a criminal case, and the failure to disclose is a discovery violation.
A district court has discretion in applying a remedy for a discovery violation, and the court does not abuse its discretion in remedying the violation unless a defendant shows he was significantly prejudiced and denied a substantial right.

Motschman v. Bridgepoint et al. 2011 ND 46
Docket No.: 20100158
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The statute of frauds must be specifically pleaded, and a party who fails to plead it will be deemed to have waived his right to rely upon it.
The district court may decline to consider an issue or argument raised for the first time on a motion for reconsideration if it could have been raised in earlier proceedings.
Consideration does not fail or become void merely because a party refuses to cash a check tendered as payment in performance of the contract.

Geffre v. N.D. Dep't. of Health 2011 ND 45
Docket No.: 20100110
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: An appellant must meet the statutory requirements for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal.
A nonadministrative party does not have to show an absence of substantial justification for the agency action or prevail on the merits of the underlying appeal to receive an award of attorney fees and costs when the nonadministrative party prevails on an intertwined ruling made in conjunction with the underlying appeal.
In an employer-employee relationship, insubordination imparts a willful disregard of express or implied directions of the employer and refusal to obey reasonable orders.
A party making a constitutional claim must provide persuasive authority and reasoning, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

Nuveen v. Nuveen 2011 ND 44
Docket No.: 20100134
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The fair market value of a business is ordinarily the proper method for valuing property in a divorce.
A district court may consider a difference in earning power when determining an award of spousal support, but equalization of incomes is not a goal or measure of spousal support.
In awarding permanent spousal support, a district court may rely upon a substantial disparity in divorcing spouses' incomes that cannot be remedied by a property division or rehabilitative spousal support.

Yellow Book Sales v. Bolinske Partnership, et al. 2011 ND 43
Docket No.: 20100283
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court order and judgment in a contract case summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Klein 2011 ND 42
Docket No.: 20100261
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court order denying a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4), and a criminal judgment sentencing a defendant as a dangerous special offender is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Deng 2011 ND 41
Docket No.: 20100247
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Assault
Author:

Highlight: Criminal judgment for aggravated assault summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Disciplinary Board v. Delorme 2011 ND 40
Docket No.: 20100414
Filing Date: 3/17/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Vicknair, et al. v. Phelps Dodge Industries, Inc., et al. 2011 ND 39
Docket No.: 20100029
Filing Date: 2/18/2011
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: When a statute is derived from a uniform act it must be construed to effectuate its general purpose to make uniform the laws of those states which enact it.
A party seeking application of the "escape clause" in N.D.C.C. 28-01.2-04, which provides an exception to the general rule that the statute of limitations of the state whose substantive law governs the case should be applied, bears the burden of proving the escape clause applies.
A party who responds to a motion for summary judgment by requesting additional time for discovery under N.D.R.Civ.P. 56(f) must identify with specificity the particular information sought and explain how that information would preclude summary judgment and why it has not previously been obtained.

Brown v. Montana-Dakota Utilities Co., et al. 2011 ND 38
Docket No.: 20100220
Filing Date: 2/14/2011
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A municipality may enact ordinances allowing it to terminate a resident's services due to nonpayment for services.
A utility company may combine balances from a customer's separate accounts and terminate services if the combined balance remains unpaid, as long as the balances are from services of the same class and for the same customer.
A customer has received personal notice by delivery, as required by regulations, when it is evident on the record the customer was aware of an unpaid utility balance and the utility company's intent to disconnect services.

Hildenbrand v. Capital RV Center, Inc. 2011 ND 37
Docket No.: 20100118
Filing Date: 2/11/2011
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The law of the case doctrine and the scope of the parties' appeal define the parameters of appellate review.
A district court has broad discretion over the nature and scope of written questions submitted to the jury.
Contract provisions may establish entitlement to possession for conversion purposes.
The invocation of the shorthand expression "meeting of the minds" is more misleading than helpful in deciding contract issues.
A failure to explicitly request specific equitable relief is not fatal to a court's grant of equitable relief.

Sorenson v. Alinder, et al. 2011 ND 36
Docket No.: 20100254
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Under North Dakota's abandoned mineral statutes, the requirement of mailing a notice of lapse under N.D.C.C. 38-18.1-06(2) requires a "reasonable inquiry" only when the mineral owner's address does not appear of record.

Eaton v. State 2011 ND 35
Docket No.: 20100235
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The sufficiency of the factual basis to support a guilty plea is a question of law on appeal from a summary denial of an application of post-conviction relief, where the parties agree there were no disputed issues of fact.
Courts in post-conviction relief proceedings may consider information from the plea proceedings in addition to the factual basis presented to ensure there was a sufficient factual basis to support the guilty plea.
A court does not improperly infer an intent to deliver a controlled substance while establishing a factual basis to support a guilty plea, where the court relies on evidence of possession of a significant amount of the controlled substance and other items suggesting an intent to deliver.

Johnson, et al. v. Taliaferro, et al. 2011 ND 34
Docket No.: 20100314
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Subsequently enacted legislation cannot take away a vested right.

Sorenson v. Felton 2011 ND 33
Docket No.: 20100256
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The word 'or' is disjunctive in nature and ordinarily indicates an alternative between different things or actions. Terms or phrases separated by 'or' have separate and independent significance.
When the letter of the law is clear and free from ambiguity, a court need look no further than the statutory language, and it is neither necessary nor appropriate to delve into legislative history to determine legislative intent.

Kalvoda v. Bismarck Public School Dist. #1 2011 ND 32
Docket No.: 20100320
Filing Date: 2/8/2011
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: On appeal, the appellee is entitled to argue any grounds raised at the district court without cross-appealing, including those that were rejected. A cross-appeal is necessary only if the appellee seeks a more favorable result on appeal than it received in the district court.
The party seeking a writ of mandamus must demonstrate a clear legal right to performance of the acts sought and have no other plain, speedy, and adequate remedy in the ordinary course of law.

Pember v. Shapiro 2011 ND 31
Docket No.: 20100149
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may consider a mother's plan to relocate in making an initial custody award, but must do so within the best interests of the child factors.
A district court may make an initial custody award using the best interest of the child factors and proceed in the same judgment to consider the custodial parent's request to relocate with the children under the Stout-Hawkinson factors.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure and must credit any downward deviation for extended visitation for the entire year.

State v. Boespflug 2011 ND 30
Docket No.: 20100121
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The Legislature did not explicitly designate the three-year age difference requirement under N.D.C.C. 12.1-20-01(3) as an affirmative defense.
The Legislature did not make the reasonableness of the defendant's belief of the age difference a part of the three-year age difference requirement under N.D.C.C. 12.1-20-01(3).

State v. Gomez 2011 ND 29
Docket No.: 20100100
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The use of special verdicts or general verdicts with special interrogatories is disfavored in criminal cases and the rules of criminal procedure generally do not provide for special verdicts or interrogatories.
Sexual contact, as defined in N.D.C.C. 12.1-20-02(5), includes any touching, whether through clothing or other covering, of the sexual parts of the person. The language of the statute does not limit sexual contact to any touching of the sexual parts of a child.
A criminal defendant has a constitutional right to a jury trial with an impartial jury selected from a representative cross-section of the community.
To establish a prima facie violation of the fair-cross-section requirement, a defendant must show that there was an underrepresentation of a distinctive group in jury venires and that the underrepresentation was due to systemic exclusion of the group in the jury-selection process.
A punishment in a non-capital case that is grossly disproportionate to the offense is cruel and unusual punishment.