Opinions

Riemers v. State 2009 ND 115
Docket No.: 20080332
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: When considering whether to allow individual speech on government property, courts employ a forum analysis for balancing the government's interest in limiting the use of its property and the interests of those wanting to use the property for expressive activity.
A university may establish reasonable time, place, and manner restrictions when permitting access to its campus and facilities.

Vanderscoff v. Vanderscoff 2009 ND 114
Docket No.: 20080318
Filing Date: 6/30/2009
Case Type: Appeal - Civil - Divorce - Property
Author:

Highlight: District court order denying motion to amend spousal support obligation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Vicknair, et al. v. Phelps Dodge Industries, Inc., et al. 2009 ND 113
Docket No.: 20080139
Filing Date: 6/29/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: The availability of an adequate alternative forum is a prerequisite to granting a motion to dismiss based on forum non conveniens, and an adequate alternative forum does not exist if the statute of limitations has expired in the proposed alternative forum.

Disciplinary Board v. Peterson 2009 ND 112
Docket No.: 20090159
Filing Date: 6/24/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Disciplinary Board v. Wolff (Interim Suspension) 2009 ND 111
Docket No.: 20090189
Filing Date: 6/24/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Khokha v. Shahin 2009 ND 110
Docket No.: 20080211
Filing Date: 6/22/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: Evidence of a plaintiff's bad reputation or bad character is generally admissible in a defamation action.
Specific instances of a plaintiff's conduct or a plaintiff's particular character traits are not relevant in a defamation action unless they were generally known by others in the community.
Reputation evidence in a defamation action is permissible only if it affects the aspects of reputation that were defamed.
There is no liability for defamatory statements that are privileged.
Absolute privilege is limited to situations in which the free exchange of information is so important that even defamatory statements made with actual malice are privileged, while qualified privilege may be abused and does not provide absolute immunity from liability.
Whether a qualified privilege is abused is a question of fact.

Miller v. Workforce Safety and Insurance, et al. 2009 ND 109
Docket No.: 20080238
Filing Date: 6/19/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Under North Dakota's workers compensation law and procedure, a "rehearing" is an evidentiary hearing.
WSI has the responsibility to weigh the credibility of the medical evidence and resolve conflicting medical opinions, and a reviewing court is limited to determining only whether a reasoning mind reasonably could have determined that the factual conclusions were proved by the weight of the evidence from the entire record.

State v. Golden 2009 ND 108
Docket No.: 20080301
Filing Date: 6/17/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A district court may not grant a defendant's motion to suppress statements made to police officers while the defendant was not subject to custodial interrogation.
A defendant who goes to a police station voluntarily, understanding that questioning will ensue, and who is told by the interviewing officers that he does not have to answer any questions, that he is not under arrest, and that he is free to leave at any time, and who, finally, leaves the police station unobstructed, is not in custody for Miranda purposes.

Eberle v. Eberle 2009 ND 107
Docket No.: 20080317
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Interlocutory orders generally are not appealable and may be revised or reconsidered any time before the final order or judgment is entered.
A settlement agreement is unconscionable and may not be enforced if there are procedural abuses arising out of the contract formation and substantive abuses relating to the terms of the agreement.
When a settlement agreement is rapidly entered into, only one party is represented by an attorney, and the terms of the agreement are one-sided it strongly indicates the agreement was entered into under duress or undue influence.

Matter of Midgett (Cross-Ref. w/20070109) 2009 ND 106
Docket No.: 20080255
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: In addition to the three statutory requirements, the State must prove the committed individual has serious difficulty controlling his behavior in order to satisfy substantive due process.
The district court must specifically state the facts on which it relied to determine an individual has serious difficulty in controlling his behavior.

State v. Ripley (consolidated w/20080291) 2009 ND 105
Docket No.: 20080290
Filing Date: 6/17/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When determining whether a trial court abused its discretion by denying a motion to continue a trial, this Court uses the same factors that are used to determine whether a trial court had good cause to grant a motion to continue a trial. The factors are: (1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) prejudice to the defendant.
The matter of substitution of appointed counsel is committed to the sound discretion of the trial court. Absent a showing of good cause for the substitution, a refusal to substitute appointed counsel is not an abuse of discretion.
Under N.D.R.Crim.P. 52(a), any error, defect, irregularity, or variance that does not affect substantial rights is harmless and must be disregarded.
If a party raises an issue but fails to provide supporting argument, reasoning, or citation to relevant authorities, we deem the argument to be without merit and consider it waived.

Matter of A.M. (CONFIDENTIAL) 2009 ND 104
Docket No.: 20080204
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A district court order denying a petitioner's request for discharge from commitment as a "sexually dangerous individual" is reviewed under a modified clearly erroneous standard and is affirmed unless it is induced by an erroneous view of the law or the order is not supported by clear and convincing evidence.
The State has the burden to prove by clear and convincing evidence that the committed individual remains a "sexually dangerous individual."
"Sexually dangerous individual" is defined as an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.
The definition of "sexually dangerous individual" also requires a nexus between the disorder and dangerousness, proof of which encompasses evidence showing the individual has serious difficulty in controlling his behavior.

Darby v. Swenson, Inc. 2009 ND 103
Docket No.: 20080215
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A district court has wide discretion in deciding matters relating to amending pleadings after the time for an amendment as a matter of course has passed.
A district court does not abuse its discretion in denying a motion to amend the complaint when such an amendment would be a futile act.
An amendment is futile for purposes of determining whether leave to amend should be granted, if the added claim would not survive a motion for summary judgment.
All warranties may be properly excluded if that exclusion is part of the bargain between the parties.

Matter of Rush 2009 ND 102
Docket No.: 20080337
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: In civil commitments of sexually dangerous individuals, the State must prove by clear and convincing evidence a nexus between the individual's disorder and the likelihood that he or she will engage in further acts of sexually predatory conduct. Subsequently, the district court must specifically state in its memorandum opinion the facts upon which it relied in finding that such a nexus existed.
The weakness or non-existence of a basis for an expert's opinion goes to their credibility, and not necessarily to the admissibility of the opinion evidence.
While a district court must conduct a commitment proceeding to determine whether an individual is a sexually dangerous individual within sixty days after a finding of probable cause, the court may extend this time period for good cause.
The district court has wide discretion over the mode and order of presenting evidence, and actions of the court regarding the mode and order of presenting evidence will not be disturbed on appeal absent an abuse of discretion.

Matter of R. A. S. (Confidential) 2009 ND 101
Docket No.: 20090001
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: The United States Supreme Court has held substantive due process rights require an individual facing commitment must be shown to have serious difficulty controlling his behavior. This constitutional requirement may be viewed as part of the definition of a sexually dangerous individual.
At a discharge hearing, the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his behavior.

Interest of I.W. & D.A. (CONFIDENTIAL) 2009 ND 100
Docket No.: 20090032
Filing Date: 6/17/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Barbie v. Minko Construction, Inc., et al. 2009 ND 99
Docket No.: 20080214
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim.
The plaintiff must prove not only that she has been injured by a negligent act, but must prove the identity of the person responsible for that act.
If, based upon the evidence presented, it is equally probable that the negligence was that of someone other than the defendant, the plaintiff has not met her burden of proving a breach of duty by the defendant.
Res ipsa loquitur applies only if the plaintiff proves that the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant.

State v. Deutscher 2009 ND 98
Docket No.: 20080207
Filing Date: 6/17/2009
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Kapsner, Carol

Highlight: The State may appeal from an order quashing an information, but there can be no appeal from a true judgment of acquittal. If a trial court's decision resolves some or all of the factual elements of the events charged, the decision is a judgment of acquittal rather than a quashing of the information.
An attempted appeal may be treated as a request for supervisory writ.
A trial court may not, on its own motion, enter a judgment of acquittal under N.D.R.Crim.P. 29(c).

Moore v. State (Cross-Ref. with 20060224) 2009 ND 97
Docket No.: 20090036
Filing Date: 6/17/2009
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)(6) and (7).

McArthur v. N.D. Workforce Safety & Insurance 2009 ND 96
Docket No.: 20090081
Filing Date: 6/17/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an order of Workforce Safety & Insurance denying further disability and vocational rehabilitation benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Interest of S.J., et al. (CONFIDENTIAL) (Consolidated w/20080329) 2009 ND 95
Docket No.: 20080328
Filing Date: 6/17/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

Highlight: Termination of parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Asset Acceptance, LLC v. Nash 2009 ND 94
Docket No.: 20080345
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author:

Highlight: Order denying motion to vacate a default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Kurtenbach (consolidated w/20080339 & 20080340) 2009 ND 93
Docket No.: 20080338
Filing Date: 6/17/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgments for theft by deception, theft of property, forgery, giving false information to law enforcement and unauthorized use of personal identifying information are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Johnson v. State 2009 ND 92
Docket No.: 20090008
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

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

Judicial Vacancy in Judgeship No. 3, Southwest Judicial District 2009 ND 91
Docket No.: 20090144
Filing Date: 6/16/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Dickinson.

Eslinger v. WSI, et al. 2009 ND 90
Docket No.: 20080232
Filing Date: 5/27/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement presumption contained in N.D.C.C. 65-05-09.3(2), providing that a disabled employee who becomes eligible to receive social security retirement benefits is considered to be retired and no longer eligible for workers compensation disability benefits, does not apply to claimants who have been receiving continuing, regular, and ongoing disability benefits since before July 31, 1995, the effective date of the statute.
A claimant, whose medical condition improved and who was ineligible for total disability benefits for an eight-month period after the effective date of the retirement presumption statute, lost her right to rely upon continuing, ongoing disability benefits, and the retirement presumption statute applied to her claim when she reapplied for further disability benefits.

Kappenman, et al. v. Klipfel, et al. 2009 ND 89
Docket No.: 20080184
Filing Date: 5/26/2009
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A township board with actual knowledge of an unusually hazardous or unusulally dangerous condition on an unimproved section line road has a duty to warn travelers of that condition; actual knowledge given to at least one member of the township board impose the duty.
Failing to warn of a known unusually dangerous condition in a road is not covered by discretionary function immunity because it implicates no social, economic, or political policies.
The recreational use immunity statutes do not apply to an unimproved section line road which is made available to the public for nonrecreational travel.
Although a landowner abutting a section line continues to own the land subject to an easement, the landowner does not owe the public a duty to keep the road in a safe condition.
Breach of a duty sounding in tort will give rise to an action based upon nuisance.

Rutherford v. BNSF Railway Co. 2009 ND 88
Docket No.: 20080237
Filing Date: 5/22/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Equitable estoppel may preclude the application of the statute of limitations by a party whose actions induced another party not to file a claim within a prescribed statutory period. To raise a claim of equitable estoppel before a trial court, a party does not necessarily have to use the word "estoppel"; however, the opposing party has to be provided with fair notice of the claim. An issue not properly raised before the district court may not be raised for the first time on appeal.
The doctrine of unconscionability allows a court to deny enforcement of a contract because of procedural abuses arising from the formation of the contract and substantive abuses pertaining to the contract's terms. To prevail on an unconscionability claim, the party alleging unconscionability must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the factors, viewed in totality, to determine if the particular provision of the contract is so one-sided as to be unconscionable.
A railroad does not have a duty, as a common carrier, to lease its real property. In voluntarily contracting to do so, it is as free as any other private party to impose any condition it desires and the lessee is willing to accept.
Parties to a lease may agree that a structure on real property is classified as either part of the realty or personalty, which shall remain upon or can be removed from the leased real property upon termination of the lease.

Carlson v. Workforce Safety & Insurance, et al 2009 ND 87
Docket No.: 20080250
Filing Date: 5/18/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A corporation is an artificial person that must act through its agents, and a corporation may not be represented by a non-attorney agent in a legal proceeding.
A request for reconsideration of an administrative agency's informal decision, made on behalf of a corporate entity, is not conduct that could be performed by a non-lawyer.
Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in administrative agencies, and a motion for pro hac vice admission must be filed no later than 45 days after the service of the pleading, motion, or other paper.
A hearing officer includes an agency head when presiding in an administrative proceeding, or any other person designated to preside in an administrative proceeding.

Neuhalfen v. WSI, et al. 2009 ND 86
Docket No.: 20080175
Filing Date: 5/15/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: To trigger civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality" of a willful false statement. If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

State v. Corman 2009 ND 85
Docket No.: 20080156
Filing Date: 5/14/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In an appeal challenging the sufficiency of the evidence, this Court looks only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
Sufficient evidence exists to find defendant contributed to the delinquency or deprivation of a minor under N.D.C.C. 14-10-06 where testimony established defendant gave minor victim pornographic DVDs and magazines.

Luger, et al. v. Luger, et al. 2009 ND 84
Docket No.: 20080194
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A district court has subject matter jurisdiction over activities conducted on an Indian reservation by persons who are not members of the tribe residing on that reservation when such activities do not involve the tribe's authority to regulate or control such activities.
A district court has personal jurisdiction over a member of an Indian tribe residing on an Indian reservation other than that of his enrollment.
A district court abuses its discretion in ordering a monetary default judgment when monetary relief was not requested in the complaint.

Disciplinary Board v. Light (Consolidated w/ 20080321-20080327) 2009 ND 83
Docket No.: 20080320
Filing Date: 5/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred and ordered to pay costs of disciplinary proceedings.

Kovarik v. Kovarik 2009 ND 82
Docket No.: 20080230
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's property division in a divorce is not erroneous with respect to property transferred by one spouse in contemplation of divorce when the court does not include it in the mathematical worksheet but the record reflects the court considered it.
A purported gift of certificates of deposit during the donor's lifetime to one of the spouses will not be included in the marital estate if it fails to meet either one of the requisite elements of a valid gift, i.e., donative intent, delivery, and acceptance.

Haugrose v. Anderson 2009 ND 81
Docket No.: 20080131
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

State ex rel. Stenehjem v. Simple.Net, Inc. 2009 ND 80
Docket No.: 20080144
Filing Date: 5/6/2009
Case Type: Appeal - Civil - Contempt of Court
Author: Maring, Mary

Highlight: A federal judgment based on stipulation does not pre-empt valid state law that does not conflict with any federal law.
A court has discretion in deciding whether to grant a stay on the basis of comity.

Frokjer v. ND Board of Dental Examiners 2009 ND 79
Docket No.: 20080200
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A medical professional's interest in a license to practice is a substantial, constitutionally protected property right.
Disciplinary proceedings against a dentist must provide due process protections, including the right to a fair hearing before an impartial decision maker.
The mere fact that a licensing board or agency has the authority to assess costs and attorney fees in the disciplinary process does not render the board or agency inherently biased in violation of due process.
It is the administrative agency's responsibility to assess the credibility of witnesses and resolve conflicts in the evidence, and reviewing courts do not reweigh the evidence, make independent findings of fact, or substitute their judgment for that of the agency.

State v. Saulter 2009 ND 78
Docket No.: 20080220
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Lay opinion testimony must be rationally based on the perceptions of the witness.
Lay opinion testimony is admissible only to help the jury or court understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations an untrained layman could not make if perceiving the same acts or events.
If evidence is admitted in error, the entire record will be considered and the court will decide in light of all the evidence whether the error was so prejudicial that the defendant's rights were affected and a different decision would have occurred absent the error.

Disciplinary Board v. Stensland 2009 ND 77
Docket No.: 20080213
Filing Date: 4/30/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for sixty days and ordered to pay costs and expenses of the proceedings for violating N.D.R. Prof. Conduct 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3.
A lawyer's failure to notify a client with a pending matter of his suspension from the practice of law is a violation of N.D.R. Lawyer Discipl. 6.3.

State v. Johnson 2009 ND 76
Docket No.: 20070248
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: The affirmative defense of mistake of law requires that the individual seeking to use it had made reasonable effort to determine whether his or her conduct constituted an offense.
In determining whether a prosecutor's statement at trial was an impermissible encroachment upon a defendant's right against self-incrimination, the language used must have been manifestly intended to be or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Such comments must also be considered in the context in which they were made.

Matter of D.V.A. (CONFIDENTIAL) 2009 ND 75
Docket No.: 20080319
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Absent a petition for discharge, a committed sexually dangerous individual does not have a right to a discharge hearing.
A district court's decision to hold a hearing following its review of the annual reevaluation reports regarding a committed sexually dangerous individual's mental condition is a matter of discretion and is therefore subject to an abuse of discretion standard of review.

Farmers Union Oil Company v. Smetana 2009 ND 74
Docket No.: 20080158
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Although an order granting summary judgment is not appealable, an attempted appeal from the order granting summary will be treated as an appeal from a subsequently entered consistent judgment, if one exists.
A motion for summary judgment is not an opportunity for the district court to conduct a mini-trial, and if there are disputed issues of material fact that require resolution by findings of fact, the party opposing summary judgment is entitled to present its evidence to a finder of fact in a full trial.
A deed may not be reformed to correct a mutual mistake if it would prejudice rights acquired by third persons in good faith and for value.
A third-party purchaser acts without good faith if he has actual or constructive notice of the specific defect to be cured by reformation of the deed.

Sailer v. Sailer 2009 ND 73
Docket No.: 20080114
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A premarital agreement is not enforceable if it was not executed voluntarily; however, the party against whom enforcement is sought has the burden to prove it was not executed voluntarily.
In a premarital agreement, parties may contract to keep their property separate. If one spouse uses his or her earnings to support the other, such fact does not, alone, indicate he or she voluntarily waived the enforceability of the premarital agreement.
Section 14-03.1-06(2), N.D.C.C., does not preclude enforcement of a premarital agreement if a party does not prove that enforcement of the premarital agreement would cause him or her to be eligible for public assistance.
When a trial court discusses whether a premarital agreement is clearly unconscionable, its analysis requires complete factual findings about the parties' relative property values, the other resources, and forseeable needs of the spouse asserting the premarital agreement is unconscionable.
A trial court is required to determine the total value of the marital estate in order to make an equitable division of property.

Gowan v. Ward County Commission 2009 ND 72
Docket No.: 20080239
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A local governing body's decision to deny a rezoning request will not be reversed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.

Ude v. State (Consolidated w/20080304, 20080305 & 20080306) 2009 ND 71
Docket No.: 20080303
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness.
Once the State requests summary disposition, the petitioner is put on his proof and must provide evidentiary support for his application in response to the State's request.
A petitioner cannot claim the district court erred in denying him the opportunity to present witness testimony when the petitioner never informed the district court he had witnesses present to testify.
Failing to make an offer of proof at trial prevents a meaningful appeal on the issue of whether witnesses should have been allowed to testify.

Dronen v. Dronen 2009 ND 70
Docket No.: 20080110
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: As a general rule, courts do not look favorably upon separating siblings in custody cases, although split custody is not prohibited.
A long-term marriage supports an equal property distribution.
If parties in a divorce action cannot agree upon the present value of a retirement account, it may be necessary to divide the future benefits using a formula that equally allocates the risks and benefits of the retirement.
Application of the Bullock formula is not required in every case involving retirement benefits. Instead, a district court should consider the facts of each case when deciding the best way to equitably divide the marital property.
A district court has the inherent power to sanction a litigant for misconduct.
When sanctioning a party, the district court should consider the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.

State v. Mitchell 2009 ND 69
Docket No.: 20080293
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

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

Johnson v. Department of Transportation 2009 ND 68
Docket No.: 20080309
Filing Date: 4/30/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: District court judgment affirming an administrative decision suspending driving privileges for three years after arrest for driving under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Tran 2009 ND 67
Docket No.: 20080240
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Criminal judgment finding appellant guilty of possession of marijuana with intent to deliver and possession of ecstasy is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mund 2009 ND 66
Docket No.: 20080266
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for delivery of alcohol to a minor is summarily affirmed under N.D.R.App.P. 35.1(a)(3).