Opinions

Zimmerman v. WSI, et al. 2010 ND 42
Docket No.: 20090243
Filing Date: 3/16/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An injured worker may be entitled to temporary partial disability benefits for a cumulative total of five years.

Dunn v. ND Dept. of Transportation 2010 ND 41
Docket No.: 20090317
Filing Date: 3/16/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Judicial estoppel prohibits a party from taking inconsistent or contradictory positions during litigation.
Administrative due process requires a fair hearing before a fair tribunal. The fact-finder in an administrative hearing cannot prejudge the case, harbor a bias against a party, or participate in the hearing if there is a high probability of bias against a party.
A district court acting in an appellate capacity has authority under the Administrative Agencies Practice Act to dispose of procedural matters as reasonably required, including the ability to vacate a judgment entered on the basis of a procedural mistake.

McAllister v. McAllister, et al. 2010 ND 40
Docket No.: 20090176
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Granting visitation to a third party is a lesser intrusion on a parent's constitutional right to the custody and companionship of his or her children than granting decisionmaking responsibility and primary residential responsibility to a third party.
A district court may recognize that it is not necessary to award primary residential responsibility to the psychological parent rather than the natural parent to prevent serious harm or detriment to the child and to also recognize that it is necessary to award visitation to the psychological parent to prevent serious harm or detriment to the child.

State v. Dudley 2010 ND 39
Docket No.: 20090293
Filing Date: 3/16/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under the automobile exception to the Fourth Amendment, a law enforcement officer may search a vehicle without a warrant if the officer has probable cause.
A law enforcement officer has probable cause to search a vehicle if, based upon the facts and circumstances known to the officer, he or she reasonably believes the vehicle contains items subject to seizure.

Tweed v. State 2010 ND 38
Docket No.: 20090171
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: To obtain post-conviction relief on the basis of newly discovered evidence, the petitioner must demonstrate (1) the evidence was discovered after trial; (2) the failure to learn about the evidence at the time of trial was not the result of a lack of diligence; (3) the newly discovered evidence is material to issues at trial; and (4) the weight and quality of the evidence would likely result in an acquittal.
To obtain post-conviction relief on the basis of ineffective assistance of counsel, the petitioner must demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was so prejudiced by counsel representation that, but for counsel's errors, the result of the proceeding would have been different.

Oie v. State 2010 ND 37
Docket No.: 20090365
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Henrickson 2010 ND 36
Docket No.: 20090229
Filing Date: 3/16/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of escape is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Parisien v. Parisien 2010 ND 35
Docket No.: 20090086
Filing Date: 3/5/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court may award spousal support to a party in a divorce action for any period of time. Spousal support determinations are findings of fact and will not be set aside unless clearly erroneous.
Spousal support awards must be made in consideration of the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.
A greater property distribution does not necessarily eliminate the need for spousal support.

Davis v. Enget, et al. 2010 ND 34
Docket No.: 20090329
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: In legal malpractice claims, expert testimony is generally required to establish the applicable standard of care and whether an attorney's conduct fell below that standard.
New evidence cannot be tendered at oral arguments because it would be fundamentally unfair to fault a trial court's decision on the basis of evidence the trial court did not have the opportunity to consider.

Wolt v. Wolt (cross ref. 20090103) 2010 ND 33
Docket No.: 20090126
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. A domestic violence protection order petitioner must prove "actual or imminent domestic violence" by a preponderance of the evidence.
"Domestic violence" includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
When the type of domestic violence justifying a domestic violence protection order is based upon fear, the harm feared by the petitioner must be "actual or imminent."
Even when a disorderly conduct restraining order has previously been entered and remains in effect, the doctrine of res judicata does not bar the subsequent entry of a domestic violence protection order.

Hagerott v. Morton Co. Bd. of Commissioners 2010 ND 32
Docket No.: 20090180
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A person is aggrieved and has standing to appeal a county commission zoning decision if the person has some legal interest that may be enlarged or diminished by the decision appealed from.
A county commission's decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision.

Dufner v. Trottier (Consolidated w/20090251; Cross-Ref. with 20010163) 2010 ND 31
Docket No.: 20090211
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Prolonged exposure to adult conflict is not in a child's best interests.
The standards to modify custody and to modify visitation are similar but different. Custody modifications require the movant to establish a prima facie case prior to entitlement of an evidentiary hearing.
In custody modification proceedings, only moving papers and supporting affidavits can be used to establish a prima facie case entitling a movant to an evidentiary hearing.

State v. Byzewski (CONSOLIDATED WITH 20090151) 2010 ND 30
Docket No.: 20090150
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Under N.D.R.Crim.P. 11(a)(2), "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion."
By engaging in behavior that led to a domestic violence protection order, the defendant forfeited his right to travel where the victim works.
A protection order and the defendant's presence on the campus provided law enforcement officers with reasonable and articulable suspicion to stop his vehicle.

State v. Addai 2010 ND 29
Docket No.: 20090079
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: During a stop of a vehicle, a law enforcement officer seizes every person in the vehicle, and therefore a passenger in the vehicle may challenge the legality of the stop.
Identification testimony must be suppressed if, under the totality of the circumstances, the identification procedure was unnecessarily suggestive and the identification is unreliable.
A single-person, showup identification is inherently suggestive, but is not necessarily unduly suggestive and may serve legitimate law enforcement purposes in some cases.
If a party fails to comply with N.D.R.Crim.P. 16, a discovery rule, the district court has discretion in applying a remedy.

Petition of Berger 2010 ND 28
Docket No.: 20090198
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When a minor is involved, the requirement that the district court determine whether there is "proper and reasonable cause" for a proposed name change necessarily includes consideration of the best interests of the child.
While the general standard of review for name change petitions under N.D.C.C. ch. 32-28 remains the abuse-of-discretion standard, a district court's findings on the best interests of a child when deciding a petition to change the name of a minor child are subject to the clearly erroneous standard of review.

sather 2010 ND 27
Docket No.: 20090149
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: The First Amendment does not apply to "fighting words" that are likely to incite a breach of the peace or provoke a violent reaction.
The petition in a juvenile delinquency case must set forth sufficient facts to provide the respondent with notice of the manner in which the State alleges the juvenile committed a delinquent act.
On appeal from a juvenile court order, we review the court's findings of fact under the clearly erroneous standard.

Wolt v. Wolt (cross ref. 20090126) 2010 ND 26
Docket No.: 20090103
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The district court has substantial discretion in making a custody determination, but it must consider all of the staturtory factors.
In awarding visitation to the noncustodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.
A district court's marital valuations are not clearly erroneous if they are within the range of evidence presented.
Property division need not be equal to be equitable, but a substantial disparity must be explained. A long-term marriage supports an equal distribution of property.

Fleck v. Fleck 2010 ND 24
Docket No.: 20090075
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Appellate review is especially deferential to a district court's difficult decision on primary residential responsibility when it involves two fit parents.
A district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.

Nelson v. Johnson 2010 ND 23
Docket No.: 20090133
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Landlord/Tenant
Author: Maring, Mary

Highlight: Special statutory procedures are exempt from the rules of civil procedure insofar as those statutory procedures are inconsistent with the rules.
A landlord may not commence an eviction action against a tenant for nonpayment of rent unless the landlord gives the tenant a three-day notice of intention to evict and an opportunity to pay the past due rent.
A notice of intention to evict may be served either as a summons is served and returned, or by the sheriff of the county or a process server posting the notice conspicuously upon the premises if the party cannot be found.
Service of a notice of intention to evict must have been attempted at least once and the tenant not found before the notice may be served by posting conspicuously upon the premises.
A process server is interested in the action if the server might properly have been joined as a party in the action.
No counterclaims may be interposed in an eviction action except as a set off to a demand made for damages or for rents and profits.

Grinnell Mutual Ins. Co. v. Thompson, et al. 2010 ND 22
Docket No.: 20090250
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: The Financial Responsibility Laws do not set minimum levels of insurance coverage for nonpermissive operators.

Judicial Vacancy in Judgeship No. 6, East Central Judicial District 2010 ND 21
Docket No.: 20100020
Filing Date: 2/17/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Halberg v. Halberg 2010 ND 20
Docket No.: 20090168
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines.
A court must determine an obligor's gross income before determining whether the obligor is underemployed.
For purposes of determining a child support obligation, an individual's gross income includes net income from self-employment, the value of in-kind income received on a regular basis, and employee benefits.

State v. Stridiron (consolidated w/20090093) 2010 ND 19
Docket No.: 20080285
Filing Date: 1/26/2010
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: A district court's decision to consolidate offenses or its refusal to grant a separate trial will not be set aside on appeal unless the defendant establishes a clear abuse of discretion.
A district court should generally wait until voir dire to determine whether it is possible to select a fair and impartial jury.
A district court's findings in resolving a challenge based on Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection will not be overturned on appeal unless they are clearly erroneous.
In determining "corroborating circumstances" under N.D.R.Ev. 804(b)(3), the district court may analyze both the credibility of the in-court witness and the reliability of the out-of-court declarant.
The Supreme Court does not sit as a "thirteenth juror" to make independent determinations of credibility of witnesses or other evidentiary weight.

Isaacson v. Isaacson 2010 ND 18
Docket No.: 20090114
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Courts determine actual controversies and will not act in an advisory capacity to decide mooted questions or abstract propositions.
Litigants in civil nonjury cases have a right to make a final argument. This right can be waived by the parties or narrowed by the courts, but it cannot be unilaterally denied.
Rule 8.3 property and debt listings filed in divorce proceedings inform the court what value the parties assign to marital property. The assigned values are suggestions that are not binding on the court.
Items not recognized as marital assets are not included in the marital estate absent argument demonstrating the propriety of inclusion.
Continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed without a request for a continuance or a showing of inability to meet the surprising situation.

Matter of Voisine 2010 ND 17
Docket No.: 20090182
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A person can be committed as a sexually dangerous individual when the State demonstrates by clear and convincing evidence that the three-prong commitment analysis has been satisfied. The first prong requires a showing that the individual has engaged in sexually predatory conduct. The second prong requires a showing that the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction. The third prong requires a showing that the individual is likely to engage in further acts of sexually predatory conduct and that the individual has serious difficulty controlling his behavior.
Only sexually predatory conduct can be considered in determining whether an individual satisfies the first prong of the sexually dangerous individual commitment analysis. All conduct of a sexually predatory nature can be considered in determining the second prong. All relevant conduct can be considered in determining the third prong.
Incest between consenting adults is not sexually predatory conduct as defined by N.D.C.C. 25-03.3-01(9).

Rakowski v. City of Fargo 2010 ND 16
Docket No.: 20090155
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: When a party fails to file a timely appeal from an adverse decision of a local zoning board, the decision is final and the party may not collaterally attack the decision in a different proceeding.

City v. Bullinger 2010 ND 15
Docket No.: 20090308
Filing Date: 1/26/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A driver need not consent to the location where a blood draw for purposes of testing blood alcohol content will be conducted.
A driver must suffer the consequences of an officer's reasonable interpretation of the driver's conditional response to a request to submit to chemical testing.

Cartier, et al. v. Northwestern Electric, Inc. 2010 ND 14
Docket No.: 20090045
Filing Date: 1/25/2010
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: A denial of a motion for new trial is reviewed under the abuse-of-discretion standard.
When a district court has chosen a specific jury instruction, a reviewing court should not be quick to second-guess its choice if there is evidence or inferences from the evidence to support the instruction. Only scant evidence may be needed to support a jury instruction.
Under North Dakota law, counsel must object specifically to a contested jury instruction.
When a motion for a new trial is made, the party making the motion is limited on appeal to a review of the grounds presented to the lower court.

Shotbolt v. N.D. Workforce Safety and Insurance 2010 ND 13
Docket No.: 20090120
Filing Date: 1/15/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: The clear intent of N.D.C.C. ch. 65-05.1 is to rehabilitate an injured worker so the worker may return to substantial gainful employment, meaning actual rehabilitation with a realistic opportunity to return to work.
A rehabilitation plan is appropriate when it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain employment.
WSI must take a claimant's preexisting functional limitations into account when determining whether certain employment options present an opportunity for substantial gainful employment.

Reciprocal Discipline of Varriano (cross ref. 20090258) 2010 ND 12
Docket No.: 20090385
Filing Date: 1/14/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Lamb v. State Board of Law Examiners 2010 ND 11
Docket No.: 20090131
Filing Date: 1/12/2010
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: Admission to Practice Rule 13 is neither subordinate to N.D.C.C. 44-04-18 nor unconstitutional under N.D. Const. art. XI, sec. 6.
The Supreme Court has the authority to admit attorneys to the Bar of North Dakota.
Where courts of this State have construed a statute and such construction is supported by the long acquiescence on the part of the legislative assembly and by the failure of the assembly to amend the law, it will be presumed that such interpretation of the statute is in accordance with legislative intent.

State v. Thompson 2010 ND 10
Docket No.: 20090117
Filing Date: 1/12/2010
Case Type: Appeal - Criminal - Assault
Author: Sandstrom, Dale

Highlight: At trial, a party must renew an objection made in a pretrial motion to exclude evidence to properly preserve the issue for appellate review.
Authentication of evidence is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
The proponent of offered evidence need not rule out all possibilities inconsistent with authenticity or conclusively prove the evidence is what it purports to be; rather, the proponent must provide sufficient proof, including circumstantial evidence, for a reasonable juror to find the evidence is what it purports to be.
A party's own statement is not hearsay.

Interest of B.B. (CONFIDENTIAL) (Cross Ref w/20070233) 2010 ND 9
Docket No.: 20090118
Filing Date: 1/12/2010
Case Type: Appeal - Civil - Juvenile Law
Author: Maring, Mary

Highlight: A pattern of parental conduct can form a basis for a reasonable prediction of future behavior.
The juvenile court may extend a dispositional order if it finds the child is deprived and reasonable efforts have been provided to finalize the permanent plan or reunify the child with the parents.
The custodian has an obligation and right to determine the nature of care, placement, and treatment of a child considering the child's best interests.

Matter of Hanenberg 2010 ND 8
Docket No.: 20090135
Filing Date: 1/12/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: The definition of a sexually dangerous individual, in addition to the three statutory requirements, requires a nexus between the disorder and dangerousness, including evidence showing the individual to be committed has serious difficulty controlling his behavior, which distinguishes a sexually dangerous individual from other dangerous persons.

Disciplinary Board v. Askew 2010 ND 7
Docket No.: 20090195
Filing Date: 1/12/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disciplinary proceedings are reviewed de novo on the record.
Because the hearing panel has the opportunity to hear witnesses and observe their demeanor, special deference is given to the hearing panel's findings on matters of conflicting evidence.

Horob v. Farm Credit Services of N.D., et al. 2010 ND 6
Docket No.: 20090111
Filing Date: 1/12/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Under the Uniform Commercial Code a security agreement may create a security interest in after-acquired collateral and may provide that the collateral will secure any obligation, including all existing and future loans or advances.
A party may not use extrinsic evidence to directly contradict express, unambiguous terms of a contract.

Heinle v. Heinle 2010 ND 5
Docket No.: 20090065
Filing Date: 1/12/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A district court may determine the proper weight to assign to a custody investigator's recommendations, and the court's award of custody will not be overturned unless clearly erroneous.
When awarding spousal support, a district court must consider the factors under the Ruff-Fischer guidelines and explain the basis for its award.
A district court's award of attorney fees will not be overturned absent an abuse of discretion.
A district court shall not use an extrapolated annual income to calculate a party's child support obligation unless the court specifically finds the income reflected by the party's previous tax return is not an accurate indicator of future income.

Everett v. State 2010 ND 4
Docket No.: 20090244
Filing Date: 1/12/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

State v. Jensen 2010 ND 3
Docket No.: 20090154
Filing Date: 1/12/2010
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A probationer's right to counsel at a revocation of probation hearing is statutorily based.
A probationer's waiver of the right to counsel must be voluntary, knowing, and intelligent.
Whether a probationer voluntarily, knowingly, and intelligently waived the right to counsel is reviewed under a clearly erroneous standard of review.

Edwards v. Edwards 2010 ND 2
Docket No.: 20090043
Filing Date: 1/12/2010
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Judicial Vacancy in Judgeship No. 1, Northwest Judicial District 2010 ND 1
Docket No.: 20090366
Filing Date: 1/6/2010
Case Type: Judicial Administration - Rule - Rule
Author:

Highlight: Judgeship retained at Williston.

Interest of W.K. (Confidential) 2009 ND 218
Docket No.: 20090351
Filing Date: 12/22/2009
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court may order involuntary treatment and hospitalization or involuntary treatment with medication only if the court finds a person qualifies as a "person requiring treatment" as defined by N.D.C.C. 25-03.1-02(12).
To qualify as a "person requiring treatment," the district court must find by clear and convincing evidence: (1) the person is mentally ill, and (2) if not treated, there is a reasonable expectation that the person presents a serious risk of harm to herself, others, or property.
A district court's order for involuntary treatment and hospitalization or involuntary treatment with medication will be reversed on appeal only if clearly erroneous.

Lucas v. Riverside Park Condominiums Unit Owners Association 2009 ND 217
Docket No.: 20090122
Filing Date: 12/22/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Adverse rulings alone are not evidence of judicial bias or partiality.
To prevail on a claim for failure to make a reasonable accommodation under the federal Fair Housing Act and state Housing Discrimination Act, the plaintiff must establish (1) that he or an associate of his is handicapped and that the defendant knew or should have known of this fact; (2) that an accommodation may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; (3) that such accommodation is reasonable; and (4) that the defendant refused to make the requested accommodation.
Unpublished decisions from other jurisdictions have value only if they are persuasive.
Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
A district court must find that a plaintiff's claim was frivolous to award a prevailing defendant costs and attorney fees under the provisions of the federal Fair Housing Act and state Housing Discrimination Act.
A court should not use the wisdom of hindsight to determine whether claims are frivolous.

Judicial Vacancy in Judgeship No. 5, South Central Judicial District 2009 ND 216
Docket No.: 20090345
Filing Date: 12/22/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Bismarck.

State v. Moore 2009 ND 215
Docket No.: 20090143
Filing Date: 12/21/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: District court order setting restitution and amending criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Woodward v. Woodward (Consolidated w/ 20090053) 2009 ND 214
Docket No.: 20080343
Filing Date: 12/18/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Civil contempt requires a willful and inexcusable intent to violate a court order, and a complainant must clearly and satisfactorily show that the alleged contempt has been committed.
Issues not raised or considered in the district court cannot be raised for the first time on appeal.
A district court may order psychological evaluations for a parent if it is in a child's best interests.

Minto Grain, et al. v. Tibert, et al. 2009 ND 213
Docket No.: 20080300
Filing Date: 12/17/2009
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The district court's decision on a motion for judgment as a matter of law is fully reviewable on appeal under the same standard as the district court, examining the sufficiency of the evidence viewing the evidence supporting the jury verdict as true, and deciding whether that evidence is so insufficient, reasonable minds could reach only one conclusion.
A party making a motion for new trial is limited on appeal to the grounds in that motion.
The grounds for post-trial motions must be stated with "particularity."
A district court's denial of a new trial motion based on juror misconduct will not be reversed unless the court abused its discretion.

Dunford v. Tryhus 2009 ND 212
Docket No.: 20090178
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Statutes of limitations are a legal bar to a cause of action and begin to run when the underlying cause of action accrues. Accrual typically occurs at the commission of the wrongful act giving rise to the cause of action, and an injury usually arises contemporaneously with the wrongful act causing the injury.
The discovery rule is an exception to the statute of limitations and, if applicable, postpones a claim's accrual until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury.

Ude v. Ude 2009 ND 211
Docket No.: 20090070
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: The district court may extend an existing protection order after the petitioner shows there has been actual or imminent domestic violence prior to the extension.
Factors affecting extension of a protection order include threats of violence, violations of previous protection orders, a petitioner's fear of the respondent, and the history of the parties.
A district court's authority to issue or extend a protection order includes the authority to modify the child visitation terms of an existing divorce decree.

State v. Grant 2009 ND 210
Docket No.: 20090076
Filing Date: 12/15/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: In a sexual assault case, statements reasonably pertinent to the medical diagnosis and treatment of physical and psychological trauma are admissible under N.D.R.Ev. 803(4).
Under N.D.R.Ev. 803(4), courts may admit statements for the purpose of medical diagnosis or treatment made by the person seeking treatment or a third party, so long as the relationship between the person seeking treatment and the third party is sufficiently close to ensure that the guaranty of trustworthiness inherent in the rule applies under the circumstances.
When reviewing appeals regarding the sufficiency of the evidence in criminal cases, the defendant must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.