Opinions

Brummund v. Brummund (Cross Ref w/ 20080170) 2010 ND 119
Docket No.: 20090219
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: Under the Uniform Premarital Agreement Act, prospective spouses may contract with respect to their rights in the property of either or both of them whenever and wherever acquired, and may specify the disposition of property upon divorce.

Burris Carpet Plus, Inc. v. Burris, et al. 2010 ND 118
Docket No.: 20090104
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: To prevail on a trademark infringement claim, a plaintiff must first show it has a valid mark that merits protection.
A valid trademark is a distinctive mark, symbol, or designation used by a producer or manufacturer to identify and distinguish its services or goods from the services or goods of others.
Ownership rights in a trademark accrue when the mark is used or displayed in the marketplace.
The use of a corporate name in connection with goods or services is not "use" of each word in the name for trademark purposes.
A name that a business entity uses that is not required to be registered as a trade name may still be registered to receive the protections of the trade name statutes.
State and federal courts have concurrent jurisdiction over claims arising under the Lanham Act.
When there is no express constitutional or statutory declaration upon a subject, the common law is applied.

State v. Emil (Consolidated w/20090287) 2010 ND 117
Docket No.: 20090286
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The State may appeal from an order suppressing evidence only "when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding."
To meet the statutory requirements, the prosecutor's statement must explain the relevance of the suppressed evidence, or the relevance must be clear from the record.

Holbach v. Holbach, et al. 2010 ND 116
Docket No.: 20090319
Filing Date: 6/30/2010
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: When a settlement agreement is wholly incorporated into a divorce judgment, the settlement is merged into the judgment and ceases to be independently viable.
Contracts to devise property are enforceable and become irrevocable upon the death of one of the parties.
An agreement to agree is enforceable if the essential terms of the agreement are reasonably certain and definite.
Contractual terms are reasonably certain and definite if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.

State v. Gunderson 2010 ND 115
Docket No.: 20100050
Filing Date: 6/30/2010
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Order requiring restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Ellis v. North Dakota State University 2010 ND 114
Docket No.: 20090313
Filing Date: 6/17/2010
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: When this Court has decided a legal question and remanded the case for further proceedings, the question will not be decided differently on a subsequent appeal in the same case where the facts remain the same.

Hanneman v. Nygaard 2010 ND 113
Docket No.: 20090278
Filing Date: 6/17/2010
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An involuntary dismissal of a plaintiff's action, which does not otherwise specify, operates as an adjudication on the merits.
Res judicata prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies, but does not preclude litigation of additional new claims.
A district court must make findings of fact that are sufficient to enable an appellate court to understand the factual determinations made by the district court and the basis for the conclusions of law, and a district court's findings of fact should be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the district court's decision.

City of Mandan v. Gerhardt 2010 ND 112
Docket No.: 20090274
Filing Date: 6/15/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) "Terry" stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures.
Community caretaking allows law enforcement-citizen contact, including stops, without an officer's reasonable suspicion of criminal conduct.
Even a casual encounter can evolve into a seizure when a reasonable person would view a law enforcement officer's actions--if done by another private citizen--as threatening or offensive.
An officer may also develop a reasonable and articulable suspicion of unlawful conduct from the officer's initial community caretaking encounter.

State v. McKay (Consolidated w/20090296 - 20090298 & 20090342) 2010 ND 111
Docket No.: 20090295
Filing Date: 6/14/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment of conviction for aggravated assault and order revoking probation are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Martinson v. Martinson 2010 ND 110
Docket No.: 20090324
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In deciding a request for attorney fees and costs under N.D.C.C. 14-05-23, a court must balance one party's needs against the other party's ability to pay and consider whether either party's actions unreasonably increased the time and expenditures on the case.

State v. Bauer 2010 ND 109
Docket No.: 20090212
Filing Date: 6/10/2010
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: The nonexistence of self-defense instruction given by the trial court correctly provides that the burden of proof is on the State to prove beyond a reasonable doubt that the defendant was not acting in self-defense.
The pattern jury instructions are not controlling law, and are published with the caution that they are neither a restatement nor an encyclopedia of the prevailing law.

State v. Dahl (consolidated w/20090262) 2010 ND 108
Docket No.: 20090261
Filing Date: 6/10/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A criminal defendant is incompetent to stand trial when he lacks sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or when he lacks a rational as well as factual understanding of the proceedings against him. The essence of being able to consult with a lawyer with a reasonable degree of rational understanding is the ability to coherently confer with counsel and provide necessary and relevant information to formulate a defense.
When evaluating a defendant's competence to stand trial, the most recently completed psychological evaluation is not automatically given more weight than older evaluations. Absent other factors, the contents of a report are controlling.
Whether district court's failure on its own to hold a competency hearing constitutes obvious error requires analyzing four nonexclusive factors: 1) defendant's irrational behavior, 2) defendant's demeanor before the trial court, 3) any prior medical opinions on competence to stand trial and 4) trial counsel's questioning of defendant's competency before the trial court.

Eberle v. Eberle 2010 ND 107
Docket No.: 20090332
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A fee for transcript preparation for appellate review is properly taxed by the clerk as a necessary disbursement for the prevailing party on appeal.
A district court's decision on parenting time is a finding of fact reviewed under the clearly erroneous standard of review.

State v. Clark (Consolidated w/20090234-20090238) 2010 ND 106
Docket No.: 20090233
Filing Date: 6/10/2010
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: When no plea is taken and judgment is pronounced on the theory that a guilty plea has been entered, the judgment is a nullity and thus void.
When a defendant's knowledge that he was waiving his rights and voluntarily and knowingly pleading guilty is clearly reflected from the whole record, he is not denied the constitutional right to due process.

State v. Pixler (Consolidated w/20090311) 2010 ND 105
Docket No.: 20090310
Filing Date: 6/10/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The age, education, and mental capacity of the defendant, his background and experience, and his conduct at the time of the alleged waiver are probative factors bearing on whether an accused has validly waived counsel and pled guilty.
Some degree of mental disorder does not necessarily mean a defendant is incompetent or incapable of knowingly, intelligently, and voluntarily entering a guilty plea.

Estate of Eggl 2010 ND 104
Docket No.: 20100048
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: In an unsupervised probate, a district court order settling all of a claimant's claims is appealable without a N.D.R.Civ.P. 54(b) certification.
A court's primary objective in construing a will is to ascertain the testator's intent.
Whether a will is ambiguous is a question of law.
A will is ambiguous if, after giving effect to each word and phrase, its language is susceptible to more than one reasonable interpretation.
In a "per capita" distribution, the members of the designated class receive equal shares.

Interest of D.H. (CONFIDENTIAL) 2010 ND 103
Docket No.: 20100109
Filing Date: 6/10/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: Parental rights may be terminated when a child is deprived, and the court finds (1) that the conditions and causes of the deprivation are likely to continue, and (2) that such continued deprivation will probably cause the child to suffer serious physical, mental, moral, or emotional harm.

M.M., et al. v. Fargo Public School Dist. #1, et al. 2010 ND 102
Docket No.: 20090121
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: The recreational use immunity statutes do not bar suits against school districts brought by students injured on school grounds during the school day.
A person can "suggest" without making a statement.
A district court is not required to instruct the jury in the exact language sought by a party if the court's instructions correctly and adequately inform the jury of the applicable law.

State ex. rel. Schlect v. Wolff 2010 ND 101
Docket No.: 20100034
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: An appellate court will not engage in unassisted searches through parties' briefs for a rationale supporting a court's decision.
A district court must provide an explanation of its decision sufficient to inform the parties and allow a proper review of its decision.

Paulson v. Paulson 2010 ND 100
Docket No.: 20090225
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Because a discretionary trust interest is an expectancy that gave no assurance of any future benefit, the trial court did not err in excluding the trust from the marital estate.
The trial court may consider how long the parties have lived together and then marry in its spousal support determination.

Dutton v. Workforce Safety & Insurance 2010 ND 99
Docket No.: 20090177
Filing Date: 6/10/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: A permanent partial impairment evaluation must be conducted by an independent, unbiased physician.
In determining whether a claimant is entitled to attorney fees and costs under N.D.C.C. 28-32-50(1), an administrative agency's position is substantially justified if a reasonable person could think the position is correct and the position has a reasonable basis in law and fact.

Matter of Midgett (Cross-Ref w/20080255 & 20070109) 2010 ND 98
Docket No.: 20090253
Filing Date: 6/10/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Where the district court makes sufficiently detailed findings of fact, supported by the record, on whether a committed individual has serious difficulty controlling his behavior, the reviewing court will not reverse on that issue.

City of Fargo v. Knodle 2010 ND 97
Docket No.: 20100004
Filing Date: 6/10/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Judgment entered after defendant was found guilty of driving while under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Disciplinary Board v. Wolff (Interim Suspension) 2010 ND 96
Docket No.: 20100150
Filing Date: 6/7/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Botner v. Bismarck Parks, et al. 2010 ND 95
Docket No.: 20090337
Filing Date: 5/18/2010
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: Whether the district court properly granted summary judgment is a question of law reviewed de novo on the entire record.
Under premises liability law, a landowner owes a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
A public swimming pool owner owes a general duty to supervise swimmers.

Sonnenberg v. Sonnenberg 2010 ND 94
Docket No.: 20090353
Filing Date: 5/17/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When an obligor owes a duty of support to at least one obligee, as well as a duty of support to a child living with the obligor who is not also a child of that obligee, the child support guidelines require that the district court make an allowance for the child living with the obligor.
When calculating an obligor's annual gross income, the district court must use the obligor's previous year's tax return unless the court makes a specific finding that the income reflected on the tax return is not a reliable indicator of future income.
The district court should generally make a modification of child support effective from the date of the motion to modify, although the court retains discretion to set some later effective date, so long as its reasons for doing so are clear or explained.
The district court may retroactively modify a child support obligation when both parties agree to a change in primary residential responsibility and the obligor moves for relief from the judgment under N.D.R.Civ.P. 60(b)(vi).

Estate of Loomer (cross ref. w/20070018) 2010 ND 93
Docket No.: 20090175
Filing Date: 5/14/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: Partition is an equitable remedy governed by equitable principles, and district courts have wide judicial discretion in partition actions to do equity and to make a fair and just division of the property or proceeds between the parties.
A district court's findings in a partition action will not be reversed on appeal unless clearly erroneous.

Skogen, et al. v. Hemen Township Board, et al. 2010 ND 92
Docket No.: 20090301
Filing Date: 5/14/2010
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A township has a mandatory duty to construct or reconstruct a township road in a manner that does not obstruct the natural flow and drainage of surface waters in accordance with the stream crossing standards prepared by the department of transportation and the state engineer.
A township that reconstructs a township road without complying with stream crossing standards prepared by the department of transportation and the state engineer may be liable for damages.

Stenehjem, ex rel. v. Crosslands, Inc. 2010 ND 91
Docket No.: 20090199
Filing Date: 5/13/2010
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: For the purposes of the corporate farming law, "the land in question" refers to the entire tract purchased and requires the court to view the property as a single tract.
A remedial statute must be construed liberally with a view to effecting its objects, promoting justice, and effectuating the public policy articulated therein.

State v. Moe 2010 ND 90
Docket No.: 20090257
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The standard for reconciling a jury verdict is whether the verdict is legally inconsistent. Verdicts are not legally inconsistent when they can legally coexist and when the jury's findings are not clearly contrary to the evidence.

State v. Smith 2010 ND 89
Docket No.: 20090309
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Whether the trial court's findings of fact reach the level of probable cause is a question of law, fully reviewable on appeal.
The preliminary hearing is a tool to ferret out groundless and improvident prosecutions.
A motion to dismiss is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.

State ex rel. Harris v. Lee, et al. 2010 ND 88
Docket No.: 20090218
Filing Date: 5/11/2010
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Sandstrom, Dale

Highlight: The Supreme Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.
The general powers of a highway patrol officer extend over violations of law committed upon any "highway" within the state, including streets within city limits.
Even when a home rule city enacts an equivalent ordinance, all state criminal laws, including criminal and noncriminal vehicular offenses, remain in full force and effect within the city limits.
The district court has jurisdiction over all criminal offenses committed within its judicial district.

Dupay v. Dupay 2010 ND 87
Docket No.: 20090266
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Proceeds from a personal injury settlement must be considered in calculating an obligor's income for child support purposes.
A court may allocate proceeds from a lump sum personal injury settlement over a child's minority for purposes of determining a child support obligation.
An appellee who fails to cross-appeal is precluded from seeking greater relief than she received in the district court.

Erickson, et al. v. Erickson, et al. 2010 ND 86
Docket No.: 20090325
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A claim of constructive fraud requires reviewing the circumstances leading to the formation of the contract.
Constructive fraud is not a basis to rescind a contract formed with free consent.

Sheets v. Farhart Law Firm, et al. 2010 ND 85
Docket No.: 20090231
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: On appeal from a bench trial, a district court's findings of fact will not be overturned unless clearly erroneous.
A finding of fact is clearly erroneous if induced by an erroneous view of the law, no evidence exists to support it, or we are left with a definite and firm conviction the district court made a mistake.

Interest of A.R. (CONFIDENTIAL) 2010 ND 84
Docket No.: 20090197
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A violation of the disorderly conduct statute does not necessarily depend on the particular content of the speech involved, but on the behavior.
The First Amendment protections do not prevent the State from punishing fighting words that tend to incite an immediate breach of the peace.
A fundamental element of adequate notice is that allegations must be stated with particularity, giving notice of specific grounds and factual claims.

Arnegard, et al. v. Cayko, et al. 2010 ND 83
Docket No.: 20090222
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Tax Realted
Author: VandeWalle, Gerald

Highlight: The primary objective in interpreting a statute is to determine the intent of the legislature by first looking at the language of the statute and giving words their plain, ordinary, and commonly understood meaning, unless the words are defined in the code or the drafters clearly intended otherwise.
An individual claiming a tax exemption has the burden of establishing exempt status.
A residence does not qualify for a farm residence tax exemption under N.D.C.C. 57-02-08(15) if it is occupied by an individual whose nonfarm income exceeds his or her farm income for three consecutive years preceding the year for which the exemption is applied or the individual's nonfarm income exceeds $40,000 each year during the three preceding years.

State v. Gietzen 2010 ND 82
Docket No.: 20090307
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: After a chemical analysis is received into evidence, the propriety of the blood draw is a question of fact affecting the weight to be given the results of the chemical analysis.
Form 104 can establish the evidentiary foundation for the admission of chemical analyses.
Form 104 provides evidentiary foundation and does not seek to conclusively establish an element of the charged crime.

Jacob v. State 2010 ND 81
Docket No.: 20090340
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Proposed expert testimony must be viewed within the context of the other evidence and the overall conduct of the trial when a post-conviction relief petitioner alleges ineffective assistance of counsel.

Perius v. Nodak Mutual Ins. Co., et al. 2010 ND 80
Docket No.: 20090239
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Affidavits supporting and opposing a motion for summary judgment must be made on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively the affiant is competent to testify to the matters stated in the affidavit.
An affidavit of an expert submitted in opposition to a supported motion for summary judgment must set forth specific facts showing there is a genuine issue for trial.

State v. Ebertz 2010 ND 79
Docket No.: 20090245
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The Supreme Court has authority under N.D. Const. art. VI, sec. 3, to promulgate the procedural rules followed by the courts, and a procedural rule adopted by the Supreme Court prevails in a conflict with a statutory procedural rule.
Under N.D.R.Crim.P. 32.1, when a court orders a deferred imposition of sentence, the defendant's case will automatically be dismissed sixty-one days after probation terminates or expires, unless the court orders otherwise before dismissal.

Delvo v. State 2010 ND 78
Docket No.: 20090291
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Summary disposition of a post-conviction relief application is appropriate if the applicant, after being put on notice the State was putting him to his or her proof, fails to supplement the application with competent admissible evidence showing a genuine issue of material fact.

Tarnavsky v. Rankin 2010 ND 77
Docket No.: 20100035
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Order denying motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1),(4), and (7), and double costs, including reasonable attorney fees in the nominal amount of $500, are awarded to the appellee for defending a frivolous appeal.

Riemers v. Eslinger, et al. 2010 ND 76
Docket No.: 20090242
Filing Date: 5/11/2010
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Kapsner, Carol

Highlight: Under Article I, section 13 of the Constitution of North Dakota, a person has the right to a jury trial for the alleged violation of a municipal ordinance when the ordinance authorizes a fine of twenty or more dollars.

State v. Koenig 2010 ND 75
Docket No.: 20090391
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered upon a jury verdict finding the defendant guilty of allowing livestock to run at large is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3), and (4).

Skarsgard v. State (consolidated w/20090334-20090336) 2010 ND 74
Docket No.: 20090333
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying applications for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Wery v. State 2010 ND 73
Docket No.: 20090350
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Jackson 2010 ND 72
Docket No.: 20090341
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A criminal judgment is affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

State v. Tibor 2010 ND 71
Docket No.: 20090387
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Sexual Offense
Author:

Highlight: A trial court order denying the defendant's motion for a new trial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Tarnavsky v. Tschider 2010 ND 70
Docket No.: 20090348
Filing Date: 4/12/2010
Case Type: Appeal - Civil - Malpractice
Author:

Highlight: Summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).